Schlyter v Commission (Judgment) [2015] EUECJ T-402/12 (16 April 2015)

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(Access to documents — Regulation (EC) No 1049/2001 — Article 4(2), third indent — Exception relating to the protection of the purpose of investigations — Regulation (EC) No 1367/2006 — Article 6(1) — Detailed opinion of the Commission concerning a draft Order relating to the annual declaration of nanoparticle substances, notified by the French authorities to the Commission in accordance with the provisions of Directive 98/34/EC — Refusal of access)

Carl Schlyter, residing in Linköping (Sweden), represented by O. Brouwer and S. Schubert, lawyers,

Kingdom of Sweden, represented initially by A. Falk, C. Meyer-Seitz, U. Persson, C. Stege, S. Johannesson and H. Karlsson, and subsequently by A. Falk, C. Meyer-Seitz, U. Persson, E. Karlsson, L. Swedenborg and C. Hagerman, acting as Agents,

European Commission, represented by P. Costa de Oliveira, A. Tokár and C. Zadra, acting as Agents,

French Republic, represented by B. Beaupère-Manokha, D. Colas and F. Fize, acting as Agents,

APPLICATION for annulment of the decision of the Commission of 27 June 2012 refusing, during the standstill period, access to its detailed opinion concerning a draft Order relating to the content and submission conditions of the annual declaration of nanoparticle substances (2011/673/F), which had been notified to it by the French authorities pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18),

composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,

having regard to the written procedure and further to the hearing on 15 January 2014,

1 Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (OJ 1998 L 204, p. 37), as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998 (OJ 1998 L 217, p. 18), is entitled ‘Directive of the European Parliament and of the Council laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services’ and organises a procedure for the exchange of information between the Member States and the European Commission relating to national initiatives for technical standards or regulations, on the one hand, and Information Society services, on the other hand.

2 Notification to the Commission of any draft technical regulation which is intended to govern those goods or services that fall within the scope of Directive 98/34 is, as a rule, mandatory (Article 8(1) of that directive).

3 In practice, the Commission undertakes to forward that draft to each of the Member States and to enter it in a public database called TRIS (Technical Regulations Information System). Those texts are fully accessible to economic operators and to citizens of the European Union.

4 Each draft notified may be examined by the Member States, the Commission and the economic operators in order to detect potentially protectionist elements and take action in order to eliminate them.

5 In order to enable that examination to be made, a minimum period of three months must, as a rule, elapse between the communication of the draft technical regulation and its adoption. During that standstill period, the Commission and Member States which take the view that the draft creates unjustified obstacles to the free movement of goods, the free movement of services or the freedom of establishment of service operators may submit comments or detailed opinions to the notifying Member State. The delivery of a detailed opinion extends that standstill period by a certain number of months depending on the subject-matter of the draft technical regulation (see Article 9(1) and (2) of Directive 98/34).

6 The Member State concerned, as a rule, reports to the Commission on the action it proposes to take on its detailed opinions and the Commission comments on that reaction (see Article 9(2) of Directive 98/34).

7 On 29 December 2011, the French authorities notified to the Commission, in accordance with Article 8(1) of Directive 98/34, a draft Order relating to the content and submission conditions of the annual declaration of nanoparticle substances, adopted pursuant to Articles R. 523-12 and R. 523-13 of the Environment Code (‘the draft Order’).

8 In accordance with Article 9(1) of Directive 98/34, the standstill period of three months from the receipt by the Commission of the communication referred to in Article 8(1) of that directive began on 30 December 2011. In March 2012, during that standstill period, the Federal Republic of Germany requested and later received additional information from the French authorities concerning the draft Order.

9 On 30 March 2012, the Commission delivered a detailed opinion, which had the effect, in accordance with the second indent of Article 9(2) of Directive 98/34, of extending the initial standstill period by an additional three months. On 2 April 2012, the United Kingdom of Great Britain and Northern Ireland also submitted its comments on the draft Order, in accordance with Article 8(2) of that directive. The French authorities replied to the United Kingdom’s comments on 6 June 2012.

10 By letter of 16 April 2012, that is to say during the standstill period, the applicant, Mr Carl Schlyter, requested access to the detailed opinion of the Commission referred to in paragraph 9 above.

11 By letter of 7 May 2012, the Commission refused the request for access of 16 April 2012, relying on the exception set out in the third indent of Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and taking the view that partial access was not conceivable on the ground that the whole document was covered by the exception relied on. Moreover, it took the view that there was no overriding public interest in disclosure of the document in the circumstances of the present case.

12 On 29 May 2012, the applicant sent to the Commission, pursuant to Article 7(2) of Regulation No 1049/2001, a confirmatory application requesting that it reconsider its position.

13 By letter of 27 June 2012 (‘the contested decision’), the Commission rejected the applicant’s confirmatory application for the reasons set out in paragraphs 14 to 16 below.

14 The Commission took the view, in point 3 of the contested decision, headed ‘Protection of the purpose of investigations’, that disclosure of the detailed opinion in question would undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.

15 In point 4 of the contested decision, headed ‘Partial access’, the Commission stated that the same was true in respect of the whole of the document to which access had been requested, which precluded any partial disclosure pursuant to Article 4(6) of Regulation No 1049/2001.

16 In point 5 of the contested decision, headed ‘Overriding public interest in disclosure’, the Commission took the view that there was not, moreover, any overriding public interest, within the meaning of Article 4(2) in fine of Regulation No 1049/2001, which would, nevertheless, justify disclosure of the document.

17 The standstill period relating to the draft Order ended on 2 July 2012. The French Republic replied to the Commission’s detailed opinion on 16 July 2012. On 26 July 2012, the Commission requested that the French authorities submit the amended draft Order, which they did on the same date.

18 On 6 August 2012, the French Republic adopted the Order relating to the content and submission conditions of the annual declaration of nanoparticle substances, adopted pursuant to Articles R. 523-12 and R. 523-13 of the Environment Code (JORF No 0185 of 10 August 2012, p. 13166). That order was notified to the Commission on 22 August 2012.

19 On 25 October 2012, after concluding its examination of the Order and deciding that there was no need to initiate infringement proceedings against the French Republic, the Commission sent the applicant a copy of the detailed opinion at issue.

20 By application lodged at the Court Registry on 6 September 2012, the applicant brought the present action.

21 On 30 November 2012, the Commission lodged its defence. It submitted, inter alia, that the action had become devoid of purpose after the communication to the applicant of the document to which he had requested access as he no longer had any interest in the annulment of the contested decision. The Commission requested the Court to declare that there was no longer any need to adjudicate.

22 By document lodged at the Court Registry on 23 November 2012, the French Republic sought leave to intervene in the present case in support of the form of order sought by the Commission. In his observations lodged on 19 December 2012, the applicant did not raise any objections to that intervention. The Commission did not lodge observations within the prescribed period.

23 By documents lodged at the Court Registry on 21 and 14 December 2012 respectively, the Republic of Finland and the Kingdom of Sweden sought leave to intervene in the present case in support of the form of order sought by the applicant. In his observations, the applicant did not raise any objections to those interventions. The Commission did not lodge observations within the prescribed period.

24 By order of 7 February 2013, the President of the Third Chamber of the Court granted the applications to intervene.

25 The French Republic, the Republic of Finland and the Kingdom of Sweden lodged statements in intervention, on which the parties submitted observations within the prescribed periods.

26 Following a change in the composition of the Chambers of the Court, the Judge-Rapporteur was assigned to the Fourth Chamber, to which the present case was accordingly allocated.

27 On hearing the report of the Judge-Rapporteur, the Court (Fourth Chamber) decided to open the oral procedure and, by way of measures of organisation of procedure pursuant to Article 64 of its Rules of Procedure, put a written question to the parties. The parties replied to that question within the prescribed period.

28 The main parties and the interveners presented oral argument and answered the oral questions put to them by the Court at the hearing on 15 January 2014.

– order the Commission to pay the costs, including those of all the interveners.

31 The Kingdom of Sweden claims that the Court should annul the contested decision.

32 The Commission, supported by the French Republic, contends that the Court should:

33 At the hearing, in reply to a question put by the Court relating to the Commission’s request for a declaration that there was no need to adjudicate because the applicant had lost any interest in the outcome of the proceedings after the communication of the document to which access had been requested, the Commission, supported by the French Republic, conceded that the applicant had an interest in the result of the case and stated that it was therefore withdrawing its request for a declaration that the action was inadmissible, formal note of which was taken in the minutes of the hearing.

34 In support of the action, the applicant puts forward three pleas in law. The first plea alleges errors of law and manifest errors of assessment in the application of the third indent of Article 4(2) of Regulation No 1049/2001 and Article 6(1) of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13). The second plea alleges an error of law, a manifest error of assessment and also failure to state reasons in the application of the overriding public interest criterion required by Article 4(2) in fine of Regulation No 1049/2001 and Article 6(1) of Regulation No 1367/2006. The third plea alleges an error of law, a manifest error of assessment and also failure to state reasons in the application of Article 4(6) of Regulation No 1049/2001.

35 In the context of the first plea, in the first place, the principal points of disagreement between the parties relate to whether the detailed opinion in question, which was delivered in the context of the procedure laid down by Directive 98/34, is covered by the third indent of Article 4(2) of Regulation No 1049/2001, under which the institutions are to refuse access to a document where its disclosure would undermine the protection of the purpose of inspections, investigations and audits. In the second place, the parties are in dispute as to whether, in view of the nature of that detailed opinion, the Commission could rely, during the standstill period, on a general presumption, under the third indent of Article 4(2) of Regulation No 1049/2001, interpreted in the light of Article 6(1) of Regulation No 1367/2006, that the disclosure of that opinion would undermine such a purpose.

36 According to the third recital in the preamble to Directive 98/34, in order to promote the smooth functioning of the internal market, as much transparency as possible should be ensured as regards national initiatives for the establishment of technical standards or regulations.

37 It is settled case-law that Directive 98/34 is designed to protect, by means of preventive monitoring, the free movement of goods and services and the freedom of establishment of service operators, which form part of the foundations of the European Union, and that this control serves a useful purpose in that technical regulations falling within the scope of that directive may constitute obstacles to trade in goods and services between Member States, such obstacles being permissible only if they are necessary to satisfy compelling requirements relating to the public interest (see, to that effect, judgment of 8 September 2005 in Lidl Italia, C‑303/04, ECR, EU:C:2005:528, paragraph 22; judgment of 15 April 2010 in Sandström, C‑433/05, ECR, EU:C:2010:184, paragraph 42; and judgment of 9 June 2011 in Intercommunale Intermosane and Fédération de l'industrie et du gaz, C‑361/10, ECR, EU:C:2011:382, paragraph 10).

38 As the obligation to notify provided for in the first subparagraph of Article 8(1) of Directive 98/34 is essential for achieving the preventive control referred to in paragraph 37 above, the effectiveness of that control will be that much greater if that directive is interpreted as meaning that failure to observe the obligation to notify constitutes a substantial procedural defect such as to render the technical regulations in question inapplicable and therefore unenforceable against individuals (judgment in Lidl Italia, cited in paragraph 37 above, EU:C:2005:528, paragraph 23, and judgment in Sandström, cited in paragraph 37 above, EU:C:2010:184, paragraph 43).

39 In the context of the procedure laid down by Directive 98/34, the Commission may deliver a detailed opinion in which it submits its observations with the intention of informing the notifying Member State of potential obstacles to trade that may be created by a regulation which is unnecessary and disproportionate in relation to the aim pursued. The notifying Member State has the choice, and not the obligation, to amend the draft that it has notified in the event of incompatibility with the rules of the Treaty. However, the notifying Member State must, as a rule, report to the Commission on the action it proposes to take on such detailed opinions and the Commission must comment on this reaction (see Article 9(2) of Directive 98/34).

40 In the contested decision, the Commission justified the application of the third indent of Article 4(2) of Regulation No 1049/2001 to the present case by taking the view that public disclosure of the detailed opinion concerned during the standstill period would hamper the French Republic’s willingness to cooperate with it in a spirit of mutual trust and, thereby, jeopardise the objective of its assessment, which is to achieve compliance with EU law (point 3, fourth paragraph, of the contested decision).

41 In the Commission’s view, the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001 applies to the procedure laid down by Directive 98/34 because that provision covers the investigations carried out by the Commission, in particular in the context of its role as guardian of the Treaties (point 3, fifth paragraph of the contested decision). That view was based on an analogy between, on the one hand, the procedure laid down by Directive 98/34 and, on the other hand, the infringement procedure provided for by Article 258 TFEU and the State aid procedure provided for by Article 108 TFEU (point 3, sixth to eighth paragraphs of the contested decision).

42 Moreover, the Commission takes the view that, since the procedure laid down by Directive 98/34 may potentially result in infringement proceedings against the notifying Member State, disclosure of the detailed opinion during the standstill period may adversely affect subsequent discussions between the parties (point 3, ninth paragraph of the contested decision).

43 With a view to the annulment of the contested decision, the applicant, supported by the Republic of Finland and the Kingdom of Sweden, submits that the third indent of Article 4(2) of Regulation No 1049/2001 is not applicable to the procedure laid down by Directive 98/34 because that procedure cannot be regarded as an ‘investigation’. He adds that the analogy between, on the one hand, the procedure laid down by that directive and, on the other hand, the infringement and State aid procedures, on which the Commission relies to justify its use of the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, is not appropriate.

44 According to the applicant, the defining characteristic of an investigation is that it can be closed by a finding that the subject of the investigation has acted, or proposed to act, in a manner that is in breach of EU law.

45 The applicant states that ‘investigation’ procedures are designed in order to prepare the ground for binding decisions as to their addressees’ permissible conduct under EU law, and are therefore characterised by the fact that the decision-making institutions have been vested with investigative powers.

46 The Commission submits, first, that an investigation is defined as a structured procedure aimed at clarifying elements of fact and law and their compatibility with EU law and, secondly, that the investigative nature of the procedure laid by Directive 98/34 is apparent from the fact that it delivers a detailed opinion when it has doubts as to the compatibility of a draft technical regulation with EU law in order to call upon the Member State concerned to provide justifications or to comply with that law.

47 The French Republic takes the view that the procedure laid down by Directive 98/34 is not a simple procedure of consultation or dialogue between the Member States and the Commission, but is a procedure which has binding legal effects. It states, in that regard, that the Commission conducts an investigation into the compatibility of a national measure with EU law, which leads to the Commission adopting a position in that regard.

48 It should be noted at the outset that Regulation No 1049/2001, which was adopted on the basis of Article 255(2) EC, seeks, as is apparent from Article 1 thereof, read in the light of recital 4 in the preamble thereto, to give the public a right of access to documents of the institutions which is as wide as possible (judgment of 14 November 2013 in LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, ECR, EU:C:2013:738, paragraph 40).

49 When an institution is asked to disclose a document, it must assess, in each individual case, whether that document falls within the exceptions to the right of public access to documents of the institutions set out in Article 4 of Regulation No 1049/2001 (judgment of 1 July 2008 in Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, ECR, EU:C:2008:374, paragraph 35).

50 The system of exceptions laid down in Article 4 of Regulation No 1049/2001, and particularly in paragraph 2 of that article, is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case (judgment in LPN and Finland v Commission, cited in paragraph 48 above, EU:C:2013:738, paragraph 42).

51 Those exceptions must be interpreted and applied strictly (judgment of 21 July 2011 in Sweden v MyTravel and Commission, C‑506/08 P, ECR, EU:C:2011:496, paragraph 75 and the case-law cited).

52 It is in the light of the foregoing considerations that a ruling must be given, in the present case, on whether, as the Commission and the French Republic claim, the procedure laid down by Directive 98/34 must be categorised as an investigation and whether the delivery of a detailed opinion by the Commission in the context of that procedure is part of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001.

53 In that regard, first of all, it must be pointed out that the concept of investigation covers all the research carried out by a competent authority in order to establish that an infringement has taken place as well as the procedure by which an administrative body gathers information and checks certain facts before making a decision.

54 Secondly, it must be borne in mind that, in the context of the procedure laid down by Directive 98/34, the Commission may issue a detailed opinion in which it takes the view that the draft technical regulation may create obstacles to the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market.

55 The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 is not, however, part of a procedure by which the administrative body gathers information and checks certain facts before taking a decision.

56 In the first, place, it must be stated that, in the context of the procedure laid down by Directive 98/34, it is not the Commission’s task to gather information before delivering a detailed opinion.

57 Recital 5 in the preamble to Directive 98/34 states that the Commission must have the necessary information at its disposal before the adoption of technical provisions and that, to that effect, the Member States must notify it of their projects in the field of technical regulations. Furthermore, the aim of the notification required by Article 8(1) of that directive is to enable the Commission to have as much information as possible on any draft technical regulation with respect to its content, scope and general context in order to enable it to exercise as effectively as possible the powers conferred on it by that directive (see, by analogy, judgment of 7 May 1998 in Commission v Belgium, C‑145/97, ECR, EU:C:1998:212, paragraph 12 and the case-law cited).

58 In the second place, although, on the basis of the information sent by the notifying Member State, the Commission checks certain facts, it does not adopt a decision, but, if necessary, issues a non-binding, interim opinion. The delivery of a detailed opinion is merely the outcome of the analysis of the draft technical regulation carried out by the Commission, as a result of which the Commission takes the view that the draft technical regulation may create obstacles to the free movement of goods and services or the freedom of establishment of service operators within the internal market (see Article 9(2) of Directive No 98/34). Furthermore, that detailed opinion does not necessarily reflect a final position on the part of the Commission, because, following its delivery, the Member State concerned must report to the Commission on the action it proposes to take on such a detailed opinion and the Commission must comment on that reaction.

59 The detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 also does not constitute the result of research carried out by a competent authority in order to establish that an infringement has taken place.

60 By its nature, a draft technical regulation is a preparatory text, which may alter and be amended. As long as that technical regulation is not adopted, it cannot infringe the rules governing the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market.

61 Consequently, the Member State to which that opinion is addressed cannot have infringed EU law because, at the time when a detailed opinion under Directive 98/34 is delivered, the national technical regulation exists only in draft form (see, to that effect and by analogy, order of 13 September 2000 in Commission v Netherlands, C‑341/97, ECR, EU:C:2000:434, paragraphs 18 and 19). The contrary view would result in the detailed opinion constituting a conditional formal notice the existence of which would be dependent on the action taken by the Member State concerned in relation to the opinion. The requirements of legal certainty, which are inherent in any procedure capable of becoming contentious, preclude such incertitude (see, to that effect and by analogy, order in Commission v Netherlands, EU:C:2000:434, paragraph 20).

62 The fact that Directive 98/34 provides that both the Commission and the other Member States may deliver a detailed opinion on the draft technical regulation of the notifying Member State confirms that the delivery of a detailed opinion by the Commission is not part of the research that it would carry out in order to establish the existence of an infringement. Member States may only allege infringement of EU rules by another Member State, but they may not adopt a reasoned opinion by which the Commission formalises the existence, in its view, of an infringement. A detailed opinion, whether it is adopted by the Commission or a Member State, is simply a way of drawing attention to a potential conflict between the draft technical regulation and EU law on the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market.

63 It follows that a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not come within the scope of an investigation because it does not constitute a decision finding that there has been an infringement inasmuch as it is an initial, provisional and advisory statement of the Commission’s position on the basis of the analysis of a notified draft technical regulation, which thus allows the notifying Member State every opportunity to amend that draft before its adoption.

64 In the light of the foregoing, it cannot reasonably be maintained that a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 comes within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001.

65 For the reasons stated in paragraphs 55 and 59 above, the refusal of access to the detailed opinion at issue cannot be justified by the Commission’s approach of drawing an analogy seeking to equate the procedure laid down by Directive 98/34 with the infringement procedure and the procedure for reviewing State aid, or seeking to compare those procedures, because, subsequent to the latter procedures, the Commission takes a decision which brings an in-depth investigation to an end, as the case may be, by a finding that a Member State has failed to fulfil its obligations or by a finding that State aid is incompatible with the internal market.

66 The following should be noted as regards the reasons given by the Commission to the effect that disclosure of the detailed opinion at issue during the standstill period would hamper the willingness of the Member State concerned to cooperate with it in a spirit of mutual trust and, thereby, jeopardise the objective of its assessment, which is to achieve compliance with EU law (see point 3, fourth paragraph of the contested decision).

67 As is apparent from recital 5 in the preamble to Directive 98/34, the notification of draft technical regulations and their assessment is designed to establish cooperation between the Commission and the Member States, as well as between the Member States themselves, in order to enable them to detect possible obstacles to trade and take the necessary measures to ensure either that the corresponding measures do not enter into force or that they are brought into line with EU law (see, to that effect and by analogy, judgment of 30 April 1996 in CIA Security International, C‑194/94, ECR, EU:C:1996:172, paragraphs 40, 41 and 50).

68 However, the Commission erroneously deduces from the objective of cooperation between it and the Member States, as well as between the Member States themselves, which the procedure laid down by Directive 98/34 is intended to achieve, that disclosure of the detailed opinion at issue during the standstill period would hamper the willingness of the notifying Member State to cooperate with it in a spirit of mutual trust and, thereby, jeopardise the objective of its assessment, which is to achieve compliance with EU law (see point 3, fourth paragraph of the contested decision).

69 In the first place, it must be pointed out that Directive 98/34 requires Member States which contemplate adopting technical regulations covered by that directive to cooperate both with the Commission and with the other Member States.

70 In practice, under Articles 8 and 9 of Directive 98/34, Member States are required, first, to communicate any draft technical regulations covered by that directive, secondly, to postpone the adoption of those drafts for at least three months and, thirdly, if the Commission delivers a detailed opinion, to report to it on the action they propose to take on such a detailed opinion.

71 Consequently, the cooperation between the Commission and the Member State concerned, which involves communicating and making their intentions regarding detailed opinions known is not contingent on the notifying Member State’s willingness to cooperate, but is required by Directive 98/34, with the result that disclosure of a detailed opinion of the Commission is not, as a matter of principle, capable of affecting the willingness of the Member State concerned to cooperate in the notification procedure.

72 In the second place, it must be borne in mind that a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 is a factor which will be taken into consideration by the national legislature when adopting the draft technical regulation. According to settled case-law, the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (see, by analogy, judgment in Sweden and Turco v Council, cited in paragraph 49 above, EU:C:2008:374, paragraph 46, and judgment of 17 October 2013 in Council v Access Info Europe, C‑280/11 P, ECR, EU:C:2013:671, paragraph 33). With regard to the latter, the necessity of ensuring that a Member State is willing to cooperate with the Commission in a spirit of mutual trust does not constitute a legitimate reason for limiting the transparency in the process for the adoption of a technical rule.

73 In the third place, it must also be borne in mind that, in the context of the procedure laid down by Directive 98/34, the detailed opinion of the Commission relating to a draft technical regulation which has been notified to it is delivered at a stage prior to the adoption of that technical regulation.

74 It may not be assumed that, if a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 were disclosed, a Member State would be less willing to cooperate in the procedure laid down by that directive. In addition to the fact that the notifying Member State is required to cooperate by Directive 98/34 (see paragraphs 68 to 70 above), it must be pointed out that the fact that a detailed opinion is made public constitutes an incentive for it to be given due consideration by that Member State. If any incompatibilities with EU law contained in that detailed opinion are made public, that Member State will a fortiori be obliged to state the reasons why it takes the view that the technical rule envisaged does not create obstacles to the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market or to amend the draft technical regulation to make it comply with EU law.

75 Consequently, the disclosure of a detailed opinion during the standstill period serves, contrary to what the Commission claims, to strengthen the cooperation between the Commission, the Member State concerned and the other Member States.

76 In any event, the Court points out that if an institution decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected by the exception — among those provided for in Article 4 of Regulation No 1049/2001 — upon which it is relying (judgment of 6 December 2012 in Evropaïki Dynamiki v Commission, T‑167/10, EU:T:2012:651, paragraph 64). However, in the present case, the Commission has not specifically and actually shown how disclosure of the detailed opinion during the standstill period could have undermined the French Republic’s willingness to cooperate. There has been no substantiation of the French Republic’s claim, made at the hearing, that the destabilising aspect of informing the public of the Commission’s potential criticisms with regard to a notified draft technical regulation before the Member State has had the opportunity to respond to them should not be underestimated. The French Republic did not, inter alia, state what would be unjustifiably destabilised as a result of the fact that an opinion of the Commission on the compliance of a draft technical regulation with certain aspects of EU law is made public.

77 Lastly, it is also necessary to reject the Commission’s argument that the disclosure during the standstill period of the detailed opinion which it had delivered in the context of the procedure laid down by Directive 98/34 could adversely affect subsequent discussions between the parties (point 3, ninth paragraph of the contested decision), inasmuch as that procedure could potentially result in infringement proceedings against the notifying Member State.

78 It must be pointed out that the nature of the check carried out by the Commission in the context of the procedure under Directive 98/34 is fundamentally different from that in the infringement procedure. The notification procedure established by Directive 98/34 is an example of an ex ante check, which is designed to ensure that draft technical regulations that the Member States are contemplating adopting comply with EU law. It must be borne in mind, in that regard, that the Commission decides to deliver a detailed opinion only in cases in which an envisaged national measure may create obstacles to the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market in order to avoid them at source. It is apparent from this that the Member State concerned cannot, during that procedure, have committed any infringement of EU law, since the very purpose of that procedure is to prevent any incompatibilities between draft technical regulations and EU law. The position adopted by the Commission cannot therefore be binding and have the aim of penalising conduct.

79 By contrast, the infringement procedure is the classic example of an ex post check, which involves monitoring national measures once they have been adopted by the Member States and is designed to restore observance of the legal order (see, to that effect, Opinion of Advocate General Alber in Commission v France, C‑230/99, ECR, EU:C:2000:603, paragraph 28). It is true that the pre-litigation stage provided for by the infringement procedure also provides for a phase of dialogue between the Commission and the Member State concerned. However, the objective is to achieve the amicable settlement of a dispute between the Commission and the Member State concerned and, failing that, to contemplate bringing proceedings before the Court of Justice on account of the incompatibilities of a national measure which has entered into force and has legal effects on the internal market.

80 In that regard, it must be borne in mind that the detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not constitute a formal notice inasmuch as there is formally no dispute between the Commission and the Member State concerned at this stage of that procedure. Since the technical regulation is merely envisaged, any incompatibility between it and EU law which is pointed out by the Commission in a detailed opinion is not established and is, in that sense, merely hypothetical.

81 Furthermore, the view expressed by the Commission in a detailed opinion which it delivers in the context of the procedure laid down by Directive 98/34 is provisional in the sense that, under Article 9 of that directive, it is an initial statement of the Commission’s position on aspects that may create obstacles to the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market which starts a dialogue between it and the Member State in question (see Article 9(2) of Directive 98/34). The provisional nature of that detailed opinion precludes the possibility of its adversely affecting a later discussion in the context of an infringement procedure. The infringement procedure presupposes in the first place that the Commission establishes its position in a formal notice. As long as the Commission’s position has not been established, it cannot adversely affect a negotiation.

82 Furthermore, the Commission has not stated the reason why the fact that a formal notice in an infringement procedure incorporates alleged infringements of EU law similar to those set out in the detailed opinion that it delivers in the context of the procedure laid down by Directive 98/34 would alter the nature and conduct of the infringement procedure and adversely affect any negotiations between it and the Member State in question. The Court points out, in that regard, that the disclosure of such a detailed opinion does not enable third parties to the infringement procedure, like the applicant, to know the content of the formal notice. The applicant may at most speculate as to that content on the basis of the detailed opinion. Such speculation by a third party to an infringement procedure is not, however, capable of altering the nature, subject-matter or conduct of that procedure. In addition, the Commission has not stated the reason why the speculation of third parties about its view as regards the compatibility of a technical regulation with the EU law on the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market would adversely affect the negotiations which it might have with the Member State concerned.

83 It is clear from all of the foregoing that a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not, in the light of its content and the context in which it was drawn up, come within the scope of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001. It follows that the Commission erred in law by relying on the third indent of Article 4(2) of Regulation No 1049/2001 in order to refuse disclosure of the detailed opinion at issue.

84 Alternatively, it must be pointed out that, even on the assumption that the detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 is part of an investigation for the purposes of the third indent of Article 4(2) of Regulation No 1049/2001, the exception provided for in that provision is designed not to protect investigations as such but the purpose of those investigations (see, to that effect, judgment of 6 July 2006 in Franchet and Byk v Commission, T‑391/03 and T‑70/04, ECR, EU:T:2006:190, paragraph 52, and judgment of 14 February 2012 in Germany v Commission, T‑59/09, ECR, EU:T:2012:75, paragraph 73 and the case-law cited).

85 It must be borne in mind in that regard that the purpose of the procedure laid down by Directive 98/34 and, in particular, that of the detailed opinion delivered by the Commission in the context of that procedure is to prevent the adoption, by a national legislature, of a technical regulation which constitutes an obstacle to the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market (see paragraph 37 above).

86 Consequently, it must be ascertained whether disclosure, during the standstill period, of a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 is capable of affecting the objective referred to in paragraph 85 above.

87 It must be pointed out that disclosure, during the standstill period, of a detailed opinion delivered by the Commission in the context of the procedure laid down by Directive 98/34 does not necessarily adversely affect the purpose of that procedure. The fact that the Commission discloses its detailed opinion to the effect that aspects of the draft technical regulation may create obstacles to the free movement of goods, the free movement of services and the freedom of establishment of service operators within the internal market (see Article 9(2) of Directive 98/34) does not jeopardise the objective of having a national technical regulation which complies with EU law. On the contrary, such disclosure will be perceived by the Member State concerned as an additional incentive to make sure that its technical regulation is compatible with the EU rules governing such fundamental freedoms.

88 On the same grounds as those set out in paragraphs 67 to 82 above, it is necessary to reject the arguments of the Commission and the French Republic based on the risk of less cooperation on the part of the Member States and of there being an effect on an infringement procedure if the detailed opinion is disclosed.

89 In view of all of the foregoing, the contested decision must be annulled in so far as it refused access to the detailed opinion at issue on the basis of the third indent of Article 4(2) of Regulation No 1049/2001.

90 Accordingly, there is no longer any need to adjudicate on whether, in view of the nature of the detailed opinion at issue, the Commission could rely, during the standstill period, on a general presumption that disclosure of that opinion would undermine the purpose of investigations, or to adjudicate on the second and third pleas put forward by the applicant.

91 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has been unsuccessful, it must be ordered to pay the costs in accordance with the form of order sought by the applicant.

92 The first subparagraph of Article 87(4) of the Rules of Procedure provides that the Member States which intervened in the proceedings are to bear their own costs. Accordingly, the French Republic, the Republic of Finland and the Kingdom of Sweden must bear their own costs.

1. Annuls the decision of the European Commission of 27 June 2012 refusing, during the standstill period, access to its detailed opinion concerning a draft Order relating to the content and submission conditions of the annual declaration of nanoparticle substances (2011/673/F), which had been notified to it by the French authorities pursuant to Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations, as amended by Directive 98/48/EC of the European Parliament and of the Council of 20 July 1998;

2. Orders the Commission to bear its own costs and to pay those incurred by Mr Carl Schlyter;

3. Orders the French Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs.

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Schlyter v Commission (Judgment) [2015] EUECJ T-402/12 (16 April 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T40212.html Cite as: [2015] EUECJ T-402/12, EU:T:2015:209, ECLI:EU:T:2015:209

Court of Justice of the European Communities (including Court of First Instance Decisions)