Campbell v Commission (Access to documents - Documents concerning an infringement procedure brought by the Commission against Republic of Lithuania - Judgment) [2018] EUECJ T-312/17 (05 December 2018)

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(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning an infringement procedure brought by the Commission against the Republic of Lithuania — Refusal of access — Exception relating to the protection of inspections, investigations and audits — General presumption — Overriding public interest)

Liam Campbell, residing in Dundalk (Ireland), represented by J. MacGuill and E. Martin-Vignerte, Solicitors,

European Commission, represented by C. Ehrbar and M. Konstantinidis, acting as Agents,

APPLICATION under Article 263 TFEU for annulment of Commission Decision C(2017) 2448 final of 7 April 2017 refusing access to documents relating to infringement procedure 2013/0406 against the Republic of Lithuania regarding the application of Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p.1),

composed of A.M. Collins, President, R. Barents and J. Passer (Rapporteur), Judges,

having regard to the written part of the procedure and further to the hearing on 17 May 2018,

1 By letter of 30 January 2017, the applicant, Mr Liam Campbell, submitted, under Article 6 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), a request to the European Commission for access to all the correspondence that had passed between the Commission and the Republic of Lithuania, and to all the proceedings arising from that correspondence, concerning the failure to transpose Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ 2010 L 280, p. 1).

2 By letter of 7 March 2017, the Commission provided the applicant with 16 documents relating to the national transposition measures notified by the Lithuanian authorities. However, it refused access to four other documents on the basis of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001. The documents to which access was refused were the letter of formal notice from the Commission to the Lithuanian authorities in connection with infringement procedure 2013/0406 (Document No 14 in the list in the Commission’s response), the Republic of Lithuania’s reply (Document 18), the reasoned opinion from the Commission to the Republic of Lithuania (Document No 19) and the latter’s reply to the reasoned opinion (Document No 20).

3 By letter of 8 March 2017, the applicant submitted a confirmatory application for access to documents in accordance with Article 7(2) of Regulation No 1049/2001.

4 By decision C(2017) 2448 final of 10 April 2017 (‘the contested decision’), the Secretary-General of the Commission confirmed the refusal of access on the basis of the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.

5 The Commission noted that the documents at issue were drafted in the framework of infringement procedure 2013/0406, which was still ongoing. The disclosure of documents in the file relating to that procedure risked having an adverse effect on the dialogue between the Commission and the Republic of Lithuania. Accordingly, the Commission based its refusal on the general presumption of non-disclosure of documents relating to the infringement procedure during its pre-litigation stage. Moreover, the Commission concluded (i) that there was no overriding public interest in disclosure, (ii) that it was not possible to grant partial access and (iii) that the applicant had not adduced any evidence capable of calling into question the validity of the finding that the four disputed documents were covered by the general presumption of non-disclosure stemming from the exception provided for in the third indent of Article 4(2) of Regulation No 1049/2001.

6 By application lodged at the Court Registry on 1 June 2017, the applicant brought the present action.

7 On 22 June 2017, the applicant requested anonymity under Article 66 of the Rules of Procedure of the General Court. The Court rejected that application by decision of 4 July 2017.

8 On 19 July 2017, the applicant requested that the procedure be adjudicated under an expedited procedure pursuant to Article 152 of the Rules of Procedure. The Court dismissed that application by decision of 31 July 2017.

9 By order of 8 November 2017, made following an application lodged at the Court Registry on 22 May 2017 and the Commission’s observations of 17 July 2017, the President of the Eighth Chamber of the Court granted the applicant legal aid.

10 Acting upon a proposal of the Judge-Rapporteur, the Court (Eighth Chamber) decided to open the oral part of the procedure.

13 The applicant relies, in essence, on three pleas in law in support of his action, alleging, first, infringement, as a result of unlawful reliance on a general presumption, of the obligation to examine the application for access in a concrete manner; secondly, infringement of the obligation to carry out a specific and effective examination of the possibility of partial access; and, thirdly, a manifest error of assessment with regard to the existence of an overriding public interest.

The first plea in law, alleging infringement, as a result of unlawful reliance on a general presumption, of the obligation to examine the application for access in a concrete manner

14 The applicant notes that the Commission based the contested decision on the general presumption established by the Court of Justice in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738).

15 The applicant argues that, by applying such a presumption, the Commission erred in law. The Commission referred to the categories of documents defined in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), but failed to take into account the fact that the documents at issue in the case giving rise to that judgment concerned the infringement procedure laid down by a specific regulation and not the general infringement procedure.

16 The applicant submits that, as regards all the categories of documents defined by the Court of Justice, a pattern may be observed. In each case, Regulation No 1049/2001 is counterbalanced by another regulation which, so the applicant argues, provides a more restrictive framework for the disclosure of documents during an investigation.

17 Such a combination of Regulation No 1049/2001 and a specific regulation governing disclosure to the public is not present here. The infringement procedure brought against the Republic of Lithuania is based on Article 258 TFEU. Moreover, Directive 2010/64, to which the infringement procedure relates, does not contain any specific provision relating to investigation of an alleged infringement.

18 Consequently, the Commission could not, in the applicant’s view, rely on a general presumption in the present case. Having erred in law, the Commission failed to undertake a concrete examination of each document.

19 The applicant argues that, beyond the fact that the contested decision states that the documents at issue cannot be disclosed on account of a general presumption, the Commission has failed to demonstrate any hypothetical, let alone real and reasonably foreseeable, risk that the infringement procedure might be undermined.

20 The applicant refers, in support of his position, to the Commission’s publication of a press release concerning the infringement procedure at issue and to the duration of that procedure. He argues that the Commission has failed to establish the existence of a risk to the proper completion of the infringement procedure in the event of disclosure of the four disputed documents.

22 As a preliminary point, it is necessary to bear in mind that, under Article 15(3) TFEU, any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, is to have a right of access to documents of the Union’s institutions, subject to the principles and the conditions that are defined by EU law. Moreover, the same right is recognised by Article 42 of the Charter of Fundamental Rights of the European Union.

23 Regulation No 1049/2001 seeks, as indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible. It is also apparent from that regulation, in particular from recital 11 and Article 4 thereof, which lays down a system of exceptions in that regard, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 40). Nevertheless, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 63).

24 Under the exception relied upon by the Commission, namely that provided for in the third indent of Article 4(2) of Regulation No 1049/2001, the institutions must refuse access to a document where its disclosure would undermine the protection of the purpose of inspections, investigations and audits, unless there is an overriding public interest in disclosure.

25 It follows that, the system of exceptions laid down in Article 4 of Regulation No 1049/2001, 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 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 42, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 42).

26 In the present case, it is not disputed that the documents covered by the applicant’s request, to which the Commission refused to grant access, relate to an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. The applicant in fact seeks access to the documents contained in the Commission’s administrative file relating to an infringement procedure initiated against the Republic of Lithuania, which is undeniably an investigation (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 1 and 43, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 43).

27 In order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(2) of Regulation No 1049/2001. The institution concerned must also explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in that article (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116; of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 44; and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 68).

28 However, the case-law has acknowledged that it is open to the institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as similar general considerations are likely to apply to requests for disclosure relating to documents of the same nature (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 116; of 14 November 2013 LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 45; and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 69).

29 It must be stated that, according to the case-law, it can be presumed that disclosure of the documents relating to an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001 (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 46).

30 Contrary to what the applicant claims, when it refers to the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), application of the general presumption concerning the documents relating to an infringement procedure does not presuppose the applicability, in a particular case, of a specific regulation providing for a more restrictive framework than that of Regulation No 1049/2001 for the disclosure of documents during an investigation.

31 In this regard, it should be noted that, when the Court of Justice, in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 52 to 55), referred to 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), that was not for the purpose of finding that application of the general presumption presupposes the applicability of that regulation. Rather, it was for the purpose of finding that the first sentence of Article 6(1) of that regulation, which lays down a rule intended to facilitate access to documents containing environmental information, provides that that rule does not apply to investigations, in particular those concerning possible infringements of EU law (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 54).

32 It followed, so the Court of Justice continued, that the infringement procedure under Article 258 TFEU is regarded, by Regulation No 1367/2006 as a procedure which, as such, has characteristics that preclude full transparency from being granted in the environmental field. The infringement procedure therefore has a special position within the system of access to documents (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 55).

33 The applicant is therefore wrong to contend that application of the general presumption concerning the documents relating to an infringement procedure presupposes the applicability, in a particular case, of a specific regulation providing for a more restrictive framework than that of Regulation No 1049/2001 for the disclosure of documents during an investigation.

34 In addition, in later passages of the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), the Court of Justice made some general observations on the objectives of the infringement procedure under Article 258 TFEU (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 56 to 64) in order to conclude that there is a general presumption that disclosure of the documents in the administrative file concerning an infringement procedure, in principle, undermines the protection of the purpose of investigations (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 65 and 66).

35 The Court of Justice held that the General Court had not erred in law by recognising that it is possible for the Commission to base its decision on the general presumption that public access, even if only partial, to the documents relating to an infringement procedure during the pre-litigation stage thereof jeopardises the achievement of the objectives of that procedure in order to refuse access to those documents on the basis of the third indent of Article 4(2) of Regulation No 1049/2001 (judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 70).

36 Finally, it should be noted that, in the judgment of 11 May 2017, Sweden v Commission (C‑562/14 P, EU:C:2017:356, paragraph 40), the Court of Justice expressly recalled having decided, in the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), that documents relating to an infringement procedure during the pre-litigation stage may benefit from the general presumption of confidentiality. The Court of Justice stated that it had held, in paragraph 65 of that judgment, that it can be presumed that the disclosure of the documents concerning an infringement procedure during its pre-litigation stage risks altering the nature of that procedure and changing the way it proceeds and that, accordingly, that disclosure would in principle undermine the protection of the purpose of investigations, within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.

37 By its very nature, the general presumption recognised by the EU judicature –– according to which even partial access by the public to the documents relating to an infringement procedure at the pre-litigation stage would jeopardise the achievement of the objectives of that procedure –– has the effect that, when the presumption is raised against a request for access, the institution relying on it does not have to carry out a specific and effective examination of the risk in respect of each document.

38 As regards the fact that the Commission published a press release informing the public about sending a reasoned opinion to the Republic of Lithuania in the infringement procedure in question, it does not affect the applicability of the general presumption. As the Commission rightly points out, the fact that an infringement procedure is ongoing is not confidential and the Commission regularly publishes press releases to inform the public of those procedures. Those circumstances in no way alter the fact that the documents relating to these procedures cannot be released without jeopardising the achievement of the objectives of the procedures.

39 As regards the argument that the infringement procedure is lengthy and that the Republic of Lithuania seeks to prolong it, it must be rejected. Indeed, regardless of the fact that it does not appear from the file that the Republic of Lithuania, which replied to the reasoned opinion within the period prescribed, seeks to prolong that procedure or that the procedure is excessively lengthy given the complexity, noted by the Commission, of the issues in question, it should be recalled that the Court of Justice, in holding there to be a general presumption attaching to documents relating to an infringement procedure during the pre-litigation stage of that procedure, sought to ensure that the dialogue between the Commission and the Member State concerned is protected and did not set a term beyond which the ongoing dialogue should no longer be protected by the presumption.

40 Finally, as regards the argument that the Commission disclosed 16 documents of the 20 it identified and could not rely on a general presumption selectively, it should be noted that the 16 documents which were disclosed are the transposition measures notified by the Republic of Lithuania, which are public information that the Commission provided to the applicant for information purposes. By contrast, the four documents to which access was refused are documents concerning the infringement procedure and thus benefit from the general presumption of confidentiality defined by the case-law.

41 The Court finds the applicant’s reference to the judgment of 7 September 2017, France v Schlyter (C‑331/15 P, EU:C:2017:639) to be irrelevant. The case giving rise to that judgment did not concern access to documents relating to an infringement procedure during the pre-litigation stage, but access to an opinion issued by the Commission 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 and of rules on information society services (OJ 1998 L 204, p. 37). As the Court of Justice stated, the specific system of that directive established a requirement of transparency, particularly for economic operators, so that they are able to be appraised of the extent of the obligations that may be imposed on them and to anticipate the adoption of technical regulations by adapting, if necessary, their products or services in a timely manner (judgment of 7 September 2017, France v Schlyter, C‑331/15 P, EU:C:2017:639, paragraphs 72 to 82). The present case concerns, instead, the protection of the dialogue between the Commission and the Member States in the context of the infringement procedure governed by Article 258 TFEU and, in that context, the non-disclosure of documents relating to that procedure.

42 In the light of all the foregoing considerations, the applicant has not established that, when applying the exception set out in the third indent of Article 4(2) of Regulation No 1049/2001, the Commission unlawfully relied on a general presumption with regard to documents relating to infringement procedure 2013/0406 and wrongly failed, on that account, to carry out a specific examination of each document.

The second plea in law, alleging infringement of the obligation to undertake a specific and effective examination of possible partial access

44 The applicant complains that the Commission failed to undertake a specific and effective examination of the possibility of granting partial access. The Commission was not entitled to rely on a general presumption. The applicant refers to the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738).

46 According to Article 4(6) of Regulation No 1049/2001, if only parts of the requested document are covered by any of the exceptions to the right of access, the remaining parts of the document are to be released.

47 It should be noted that general presumptions, such as that concerning access to documents relating to an infringement procedure, indicate that the documents covered by them do not fall within an obligation of disclosure, in full or in part, of their content (see, to that effect, judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 133; of 25 March 2015, Sea Handling v Commission, T‑456/13, not published, EU:T:2015:185, paragraph 91; and order of 25 May 2016, Syndial v Commission, T‑581/15, not published, EU:T:2016:337, paragraph 53).

48 In the present case, as was held in the context of the first plea, the Commission was fully entitled to rely on the general presumption of non-disclosure.

49 In part 4 of the contested decision, the Commission examined the possibility of granting partial access and rejected it, having regard to (i) the fact that, in the present case, the general presumption applied and (ii) the lack of evidence capable of calling into question the conclusion that the documents at issue were covered by that presumption in their entirety. It must be stated that the applicant has not put forward anything capable of refuting that reasoning.

50 As to the applicant’s reference to paragraph 67 of the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), it is sufficient to recall that, as has already been noted in the context of the first plea, he has not established that the infringement procedure concerned by the request for access had characteristics that justified disregarding the general presumption of non-disclosure.

The third plea in law, alleging a manifest error of assessment regarding the existence of an overriding public interest

52 The applicant asserts that the Commission made a manifest error of assessment in not recognising the existence of an overriding public interest.

53 The applicant accepts that the purpose of his request for documents was to provide the fullest possible information to the High Court (Ireland) so that it might be in the best position to make a fair adjudication on the request to surrender the applicant to the Republic of Lithuania.

54 He argues, however, that it is not in the public interest for the right to a fair trial and the rights of the defence to be affected by the refusal to give access to documents in relation to an infringement procedure. The applicant relies on the judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), particularly paragraphs 110 to 112. The exception to the right of access must be balanced against the aim of protecting the right to a fair trial by giving citizens the opportunity to monitor the veracity of information provided by the Member States to the Commission.

55 The applicant submits that there is an overriding public interest in disclosure so as to allow the public to verify the effectiveness of the infringement procedure in a case where a delay in disclosure might have the opposite effect to that sought –– the protection of rights –– by the infringement procedure. The Commission made a manifest error of assessment by not acknowledging the existence of such an overriding public interest and, in any event, by considering the infringement procedure to be the swiftest way to achieve a full protection of the suspect or accused person’s right to a fair trial as guaranteed by Directive 2010/64. For all of the foregoing reasons, the applicant contends that, in the present case, complete disclosure should be made of the entire file concerning the infringement procedure.

57 The Court observes that the general presumptions recognised by the case-law with regard to certain categories of documents, including the category relating to documents concerning the infringement procedure at the pre-litigation stage of that procedure, do not exclude the possibility of demonstrating that a given document, disclosure of which has been requested, is not covered by that presumption, or that there is an overriding public interest in disclosure of the document concerned in accordance with the last clause of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 66, and of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 48).

58 It is, however, for the party requesting access to put forward specific circumstances that show that there is an overriding public interest which justifies the disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90).

59 A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 158; of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93; of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 105; and of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 131).

60 In so far as the applicant relies on his intention to provide certain information to a national court in proceedings concerning him, it must be held that that fact does not establish the existence of a public interest but rather the existence of a private interest (see, to that effect, judgment of 15 September 2016, Herbert Smith Freehills v Commission, T‑755/14, not published, EU:T:2016:482, paragraph 75).

61 Concerning the reference to paragraphs 110 to 112 of the judgment of 6 July 2006, Franchet and Byk v Commission (T‑391/03 and T‑70/04, EU:T:2006:190), it should be noted that the passages of that judgment quoted by the applicant relate to the application of the exception concerning the protection of the purpose of investigations, and not to the question of the existence of an overriding public interest. Accordingly, that judgment cannot support the applicant’s claims under the third plea seeking to demonstrate that there is an overriding public interest in the disclosure of the documents requested.

62 As regards the reference to the fact that it would not be in the public interest for the right to a fair trial and the rights of the defence, guaranteed by Articles 47 and 48 of the Charter of Fundamental Rights, to be affected by the refusal to grant access to documents relating to an infringement procedure, it should be noted that, admittedly, the right to a fair trial and the rights of the defence are in themselves a public interest. However, the fact that those rights manifest themselves here by the applicant’s individual interest in defending himself before the Irish courts implies that the interest which he invokes is not a public interest but, as already noted in paragraph 60 above, of a private character (see, to that effect, judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 138).

63 In that regard, the applicant’s observation that it is for the national court, adjudicating in the context of a surrender procedure that may affect the fundamental rights of the person concerned, to seek out all relevant evidence confirms that the interest for which the applicant seeks protection in the present case is of a private character. It should be noted in that regard that, at the hearing, the Commission stated that, by virtue of the principle of sincere cooperation referred to in Article 4(3) TEU and mentioned in the order of 13 July 1990, Zwartveld and Others (C‑2/88-IMM, EU:C:1990:315, paragraphs 17 and 18), it was open to the national court to ask the Commission for information regarding the infringement procedure for the purpose of examining the question of any infringement of the applicant’s fundamental rights, but that, in the present case, such a request had not been made.

64 As regards the claim that there is an overriding public interest in disclosure so as to allow the effectiveness of the infringement procedure to be established, the Court observes that general considerations, relating to the principle of transparency and the right of the public to be informed about the work of the institutions, cannot justify the disclosure of documents relating to the pre-litigation phase of an infringement procedure (see, to that effect, judgment of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraphs 91 and 93). In addition, the Commission, as it has rightly stated and, moreover, as it has done in the present case, ensures that the public is informed about the progress of specific infringement cases through the regular publication of press releases.

65 It follows from the foregoing considerations that the applicant has not established that the Commission erred in concluding that there was no overriding public interest justifying disclosure of the documents concerning the infringement procedure in the present case.

67 As none of the pleas put forward in the action is well founded, the action must be dismissed.

68 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

69 The applicant maintains that, because of the issues raised by this case, it should not be ordered to pay the Commission’s costs. The Commission disagrees with this assessment.

70 Under Article 149(5) of the Rules of Procedure, where the recipient of legal aid is unsuccessful, the Court may, in ruling as to costs in the decision closing the proceedings, if equity so requires, order that one or more other parties should bear their own costs or that those costs should be borne, in whole or in part, by the cashier of the Court by way of legal aid.

71 In the present case, having regard to the particular circumstances of the case, the Court considers that it is appropriate to apply Article 149(5) of the Rules of Procedure, to the effect that each party should bear its own costs.

2. Orders Mr Liam Campbell and the European Commission each to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Campbell v Commission (Access to documents - Documents concerning an infringement procedure brought by the Commission against Republic of Lithuania - Judgment) [2018] EUECJ T-312/17 (05 December 2018) URL: http://www.bailii.org/eu/cases/EUECJ/2018/T31217.html Cite as: EU:T:2018:876, ECLI:EU:T:2018:876, [2018] EUECJ T-312/17

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