Malta v Commission (Access to documents - Common fisheries policy : Order) [2017] EUECJ T-653/16

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(Interim measures — Access to documents — Regulation (EC) No 1049/2001 — Common fisheries policy — Regulation (EC) No 1224/2009 — Documents exchanged by Malta and the Commission — Access granted to Greenpeace — Application for suspension of operation — Prima facie case — Balancing of interests)

European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking the suspension of the operation of the decision of the Commission of 13 July 2016, adopted in accordance with Regulation (EC) No 1049/2001, relating to a request for access to documents registered under the reference GestDem2015/5711A-018-2014,

Background to the dispute, procedure and forms of order sought by the parties

1 In March 2010, Greenpeace sent the European Commission information about an allegedly irregular shipment of live bluefin tuna from Tunisia to a tuna farm in Malta. This information prompted the Commission to open an administrative inquiry.

2 On 14 April 2010, Greenpeace requested access to the documents relating to that administrative inquiry (‘the request of 14 April 2010’), which was refused by the Commission. Greenpeace then complained to the European Ombudsman.

3 On 19 April 2012, Greenpeace requested that the Commission grant it access to the documents drawn up or received after the first request was made (‘the request of 19 April 2012’). The Commission refused to grant access to those documents. Greenpeace then complained to the European Ombudsman again.

4 At the time of the request of 14 April 2010, the Commission had asked the Republic of Malta to open an administrative inquiry based on Article 102(2) of Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006 (OJ 2009 L 343, p. 1). At the time of the request of 19 April 2012, the Republic of Malta was in the process of implementing an action plan drawn up by the Commission following its administrative inquiry under Article 102(2) of Regulation No 1224/2009.

5 The European Ombudsman, in her draft recommendation of 29 June 2015, concluded that the Commission had failed to state sufficient grounds for its refusal to give access to the documents and recommended that the Commission grant access to the documents concerned or provide valid reasons for not doing so.

6 On 29 July 2015, referring to its requests of 14 April 2010 and of 19 April 2012 and to the European Ombudsman’s recommendations, Greenpeace renewed its previous requests for access to the documents and requested access to the entirety of the documents relating to them, including the following documents:

– ‘any and all written documents relating to the transfer of Atlantic bluefin tuna from Tunisia to Malta and subsequent caging and/or slaughtering of tuna in Malta on 20, 21 and 22 March [2010], including, for instance, copies of the catch and transfer declarations, observer reports, etc.;

– any and all video material documenting the transport, caging and, if applicable, slaughtering of that tuna [...];

– any and all written communication on the above matter between the European Commission and the Governments of Malta, Italy and/or the secretariat of the International Convention on the Conservation of Atlantic Tunas;

– Commission Decision C(2010) 7791 of 12 November 2010 or thereabouts, informing [the Republic of] Malta of identified irregularities in the field of controls of bluefin tuna activities and requesting it to open an administrative inquiry based on Article 102(2) of Council Regulation (EC) No 1224/2009, including any annexes thereto;

– the report drawn up by the Maltese authorities in response, as required by Article 102(3) of the aforementioned regulation;

– any documents concerning the Commission’s evaluation of the report mentioned in the previous point;

– the action plan referred to in Article 102(4) of the aforementioned regulation; and

– any correspondence between [the Republic of] Malta and the Commission regarding identified irregularities in the field of controls of bluefin tuna activities in Malta drawn up or received after 3 March 2011.’

7 On 28 September 2015, the Commission informed the Republic of Malta of that request for access to documents submitted by Greenpeace (‘the request of 29 July 2015’) and consulted it as to whether it opposed the disclosure of documents originating from Malta and imposed a deadline for a response of five working days.

8 On 30 September 2015, the Republic of Malta requested an extension of the time limit. In addition, it requested that the Commission explain why it had opted to include within the scope of the request of 29 July 2015 a large number of documents related to the day-to-day operations between Malta and the Commission, including a considerable number of emails and bilateral meeting minutes. The Republic of Malta stated that the Commission should undertake a detailed evaluation explaining why each of the suggested documents and its annexes had been identified as falling within the scope of the request of 29 July 2015.

9 On 5 November 2015, the Commission extended the deadline by 15 working days. In addition, the Commission maintained, inter alia, that the request of 29 July 2015 ‘pertain[ed] to investigations carried out both in the process leading up to the Action Plan of 2011 as well as in its wake with a view to ensuring a return to a situation where [the Republic of Malta] fully complied with its obligations under relevant provisions of Union law’. According to the Commission, taking into account the fact that those investigations had been successfully completed and resulted in the finding that the Republic of Malta was currently complying fully with its obligations under EU law, the exception to access to documents for the purposes of inspections, investigations and audits no longer applied. Lastly, the Commission expressed its intention to give access to Greenpeace initially to documents originating from itself and subsequently to documents originating from the Republic of Malta.

10 On the same day, the Commission granted Greenpeace access to the documents originating from the Commission itself and stated that a consultation was ongoing with the Republic of Malta regarding the documents originating from it.

11 On 30 November 2015, the Republic of Malta sent its observations to the Commission. It noted, inter alia, that numerous documents identified by the Commission were not in fact connected to the request of 29 July 2015 and that Article 113 of Regulation No 1224/2009 precluded access to the documents drawn up in the context of that regulation.

12 On 23 December 2015, the Commission informed Greenpeace of the fact that the Republic of Malta objected to the disclosure of all documents originating from it. Therefore, the Commission refused to grant access to those documents.

14 By letter of 13 April 2016, the Commission informed the Republic of Malta of Greenpeace’s confirmatory application. In that same letter the Commission explained, inter alia, the following:

– certain documents originating from the Maltese authorities, even if redacted of personal data, were transmitted by error at the same time as the Commission documents on 5 November 2015;

– subsequent to a review of the documents covered by the request of 29 July 2015, further documents originating from the Maltese authorities falling under the scope of Greenpeace’s request had been identified. The Commission therefore asked, ‘on the basis of this complete set of documents’, whether the Republic of Malta still opposed the disclosure of the documents originating from its own authorities or parts thereof, on the basis of the exceptions laid down in Article 4(1) to (3) 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);

– following the Commission’s prima facie analysis, partial access should be granted to the documents in question, in which only personal data should be redacted in accordance with Article 4(1)(b) of Regulation No 1049/2001. The Commission also stated that, in its view, Article 113 of Regulation No 1224/2009 does not exclude the application of Regulation No 1049/2001 to requests for public access to documents containing data obtained in the context of Regulation No 1224/2009.

15 In the event that the Republic of Malta continued to oppose the disclosure of the full set of documents (including those which were only identified at the confirmatory stage by the Commission), the Commission invited the Republic of Malta to communicate, within five working days from the date of receipt of that letter, the detailed and motivated reasons on which it relied.

16 On 18 April 2016, the Republic of Malta replied by indicating that, when considering the confirmatory application, the Commission had identified 121 additional documents, thereby adding to the already considerable number of documents indicated by the Commission as being relevant to the request of 29 July 2015. The Republic of Malta claimed that this was due to the fact that the Commission had failed to take into account that requests for access to a document must be made in a sufficiently precise manner to enable the institution to identify the document and that only a limited number of documents featuring in the Commission’s list had been indicated in a sufficiently precise manner in the requests made by Greenpeace.

17 On 27 April 2016, the Commission indicated to the Republic of Malta that, in its opinion, the relevant request for access to documents in the instant case was the request of 29 July 2015 rather than the requests of 14 April 2010 or of 19 April 2012. It also reaffirmed that other documents originating from the Republic of Malta that fall under the scope of the request of 29 July 2015 had been identified at the examination stage of the confirmatory application and that the Commission had not consulted the Republic of Malta on those documents at the initial examination stage of the request of 29 July 2015, since, at that time, they had not been identified as being relevant to that request. The Commission also deferred the deadline to 4 May 2016.

18 On 3 May 2016, the Republic of Malta notified the Commission that it opposed the disclosure of the documents, including the documents identified at the examination stage of the confirmatory application, and argued, inter alia, that the latter documents did not fall within the scope of the request of 29 July 2015.

19 On 19 May 2016, the Commission indicated that the excessively general nature of the comments by the Maltese authorities did not allow it to understand the concrete reasons why the Republic of Malta claimed that these documents could not be disclosed. The Commission granted the Republic of Malta an additional 10 working days to provide those details.

20 On 27 May 2016, the Republic of Malta replied by wholly maintaining its position expressed in its letter of 3 May 2016, claiming that the information that it had provided should be considered to be sufficient to identify the reasons why access to the documents had to be refused.

21 In addition, the Republic of Malta submitted that the Commission had failed to take into account its requests for explanations and had not replied to its arguments, particularly with regard to the procedural irregularities. In particular, the Republic of Malta emphasised that the Commission had decided to provide practically all the information which could be attributed to the subject of bluefin tuna, contrary to Article 113 of Regulation No 1224/2009, going far beyond the request of 29 July 2015. In addition, it criticised the fact that the Commission had extended the scope of the request of 29 July 2015 at the examination stage of the confirmatory application of 20 January 2016.

22 On 13 July 2016, the Commission adopted, in accordance with Regulation No 1049/2001, a decision relating to a request for access to documents, registered under the reference GestDem2015/5711A-018-2014 (‘the contested decision’).

23 By the contested decision, the Commission granted Greenpeace access to the documents originating from the Republic of Malta (those documents are listed in Annex B to the contested decision, which also includes documents identified following the confirmatory application) and to the documents identified following the confirmatory application (those documents are listed in Annex D to the contested decision), as well as to the documents originating from the Commission that, erroneously, do not appear among the documents sent by the Commission (those documents are listed in Annex C to the contested decision). In addition, it is clear from the contested decision that certain documents originating from the Republic of Malta and from the Commission were sent by error; Greenpeace had to ignore them and was not permitted to distribute them (those documents are listed in Annexes E and F to the contested decision).

24 On 26 July 2016, the Republic of Malta announced its intention to bring an action and lodge an application for interim measures.

25 On 28 July 2016, the Commission informed Greenpeace that, as a result, the documents could not be disclosed at that stage.

26 On 1 August 2016, the Commission confirmed that it would not disclose the documents until the General Court had given a ruling on the application for interim measures.

27 By application lodged at the Registry of the General Court on 19 September 2016, the Republic of Malta brought an action seeking, in essence, the annulment of the contested decision.

28 By a separate document, lodged at the Court Registry on 19 September 2016, the Republic of Malta lodged the present application for interim measures, in which it claimed, in essence, that the President of the General Court should:

29 In response to a question from the President of the General Court, the Commission confirmed on 29 September 2016 that it would not put the contested decision into effect before the end of the interlocutory proceedings.

30 In its observations on the application for interim measures, lodged at the Court Registry on 4 October 2016, the Commission took the view that the application should be dismissed, but did not seek a form of order.

31 It is apparent from Articles 278 and 279 TFEU, in conjunction with Article 256(1) TFEU, that the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU lays down the principle that actions are not to have suspensory effect, acts adopted by the Union institutions enjoying a presumption of legality. It is therefore only exceptionally that the judge hearing an application for interim measures may order suspension of the application of an act contested before the Court or prescribe interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

32 The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures to state the ‘subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for’.

33 Thus the judge hearing an application for interim measures may order suspension of operation and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, such that an application for interim measures must be dismissed if either of them is absent. Where appropriate, the judge hearing such an application must also weigh the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

34 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

35 Having regard to the material in the case file, the judge hearing the application for interim measures takes the view that he has all the information needed to rule on the present application for interim measures without any need first to hear oral argument from the parties.

36 In the circumstances of the present case, it is appropriate to examine first whether the requirement to establish a prima facie case is satisfied.

37 As a preliminary point, for the purposes of examining the present application for interim measures, it is necessary to clarify the scope of the form of order sought by the Republic of Malta.

38 In this regard, it must be noted that the Republic of Malta is requesting the President of the Court to ‘suspend the operation of the contested decision until the Court has ruled on the substance of the application in the main proceedings’.

39 On a literal reading, this form of order is seeking a suspension of the contested decision in its entirety, including the access granted by that decision to documents originating from the Commission.

40 In its application for interim measures, the Republic of Malta does not specifically assert that it is opposed to the disclosure of documents originating from the Commission. By contrast, it clearly focuses on documents originating from itself.

41 Lastly, the Republic of Malta confirmed in the reply it lodged in the context of the main action that it was seeking the annulment of the contested decision only in so far as it related to documents originating from itself. Since the interlocutory proceedings are necessarily accessory to a direct action (order of 12 February 1996, Lehrfreund v Council and Commission, T‑228/95 R, EU:T:1996:16, paragraph 61), the applicant cannot, as a general rule, seek a form of order in the interlocutory proceedings that is broader than that sought in the main action.

42 Having regard to those factors, the scope of the Republic of Malta’s application for interim measures should be understood as requesting suspension of the operation of the contested decision in so far as that decision grants access to documents originating from itself.

43 As regards the prima facie case requirement, it should be recalled that that requirement is satisfied where at least one of the pleas in law put forward by the party seeking interim measures in support of the main action appears, at first sight, not unfounded. This is the case where one of the pleas relied on reveals the existence of difficult legal or factual issues the solution to which is not immediately obvious and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures but must be the subject of the main proceedings (see, to that effect, orders of 3 December 2014, Greece v Commission, C‑431/14 P-R, EU:C:2014:2418, paragraph 20 and the case-law cited, and of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 59 and the case-law cited).

44 In particular as regards disputes relating to access to documents originating from a Member State, it must be recalled that Article 4(5) of Regulation No 1049/2001 places Member States in a position that is different from that of other document-holders, by providing that, unlike them, a Member State may request the institution not to disclose a document originating from that Member State without its ‘prior agreement’. The requirement for prior agreement would risk becoming a dead letter if, despite a Member State’s objection to disclosure of such a document and despite the lack of any ‘agreement’ of that Member State, the institution were nevertheless free to disclose the document in question. Such a requirement would have no useful effect, and indeed would be meaningless, if the need to obtain prior agreement for the disclosure of the document ultimately depended on the discretion of the institution in possession of the document (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraphs 43 and 44).

45 As regards the extent and the degree of review that the institution has over the reasons for non-disclosure put forward by a Member State, it is well-established case-law of the Court of Justice that, prior to refusing access to a document originating from a Member State, the institution in question is responsible for examining whether the Member State has based its objection on the substantive exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001 and whether it has duly provided reasons for its position. Therefore, when taking a decision to refuse access, the institution must make sure that those reasons exist and refer to them in its decision refusing access at the end of the procedure (see, to that effect, judgment of 18 December 2007, Sweden v Commission, C‑64/05 P, EU:C:2007:802, paragraph 99).

46 By contrast, as stated by the Court of Justice in its judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission (C‑135/11 P, EU:C:2012:376, paragraphs 63 and 64), the institution to which a request is made does not have to carry out an exhaustive assessment of the decision of the Member State in question to object by conducting a review going beyond the verification of the mere existence of reasons referring to the exceptions in Article 4(1) to (3) of Regulation No 1049/2001. Insisting on such an exhaustive assessment could lead to the institution being able, after carrying out the assessment, to wrongly communicate the document in question to the person requesting access, notwithstanding the objection, duly reasoned, of the Member State from which the document originates (order of 1 September 2015, France v Commission, T‑344/15 R, EU:T:2015:583, paragraph 30).

47 It follows that the examination to be carried out by the judge hearing the application for interim measures in the context of a dispute over access to documents originating from a Member State under Article 4(5) of Regulation No 1049/2001 is subject to a twofold restriction. In that context, the judge hearing applications for interim measures should carry out a prima facie review of the contested decision, in which the Commission, in turn, carried out a prima facie examination of the merits of the reasons advanced by the Republic of Malta. Consequently the existence of a prima facie case could only be excluded if it were so clear and obvious that the exceptions relied upon by the Republic of Malta before the Commission were inapplicable that reliance upon them amounted to an abuse of procedure on the part of the Republic of Malta (see, to that effect and by analogy, order of 1 September 2015, France v Commission, T‑344/15 R, EU:T:2015:583, paragraph 30).

48 However, it is to be noted that the Republic of Malta has not raised as a ground in support of the application for interim measures an infringement of Article 4(5) of Regulation No 1049/2001. Therefore, the twofold restriction that applies to the examination by the judge hearing the application for interim measures as to the Commission’s compliance with Article 4(5) of Regulation No 1049/2001 does not apply in the present case and it is necessary to consider, in the light of the criteria stated in paragraph 43 above, whether at least one of the grounds invoked by the Republic of Malta in support of the main proceedings appears, prima facie, not unfounded, in that it indicates the existence of a difficult legal or factual issue, the solution to which is not immediately obvious, and therefore calls for a detailed examination that cannot be carried out by the judge hearing the application for interim measures.

49 For the purposes of showing that the contested decision is, prima facie, unlawful, the Republic of Malta refers to a number of grounds that overlap to a certain extent: the first ground is based on a failure to comply with the procedural deadlines set out in Regulation No 1049/2001 and other infringements of procedural rules; the second ground is based on a disregard for the scope of the request for access to documents; the third is based on an infringement of the principle of sound administration, in that the Commission allegedly did not carry out an appropriate examination of the scope of the request of 29 July 2015 and, during the examination stage of the confirmatory application, it broadened its understanding of that scope; and the fourth ground is based, inter alia, on an infringement of Article 113 of Regulation No 1224/2009.

50 In the first place, prior to examining the grounds set out in paragraph 49 above, for the purposes of considering the present application for interim measures and without prejudice to the main proceedings, it is appropriate to reject the Commission’s argument that the grounds relied on by the Republic of Malta are inadmissible due to the fact that they do not fall within the ‘substantive exceptions [to access to documents] set out in Article 4(1) to (3) of Regulation No 1049/2001’.

51 The Commission’s argument that a review by the EU judicature of the legality of a decision taken by the Commission on appeal by a privileged applicant, as the Republic of Malta is in the present case, should be restricted to a review of compliance with Article 4(1) to (3) of Regulation No 1049/2001 is not immediately obvious. In addition, the Commission’s submission would lead to decisions relating to access to documents escaping, to a large extent, judicial review. Such an outcome would appear, prima facie, to be irreconcilable with the settled case-law of the Court of Justice, according to which the European Union is a union based on the rule of law in which all acts of its institutions are subject to review of their compatibility with, in particular, the Treaties, general principles of law and fundamental rights (see judgment of 6 October 2015, Schrems, C‑362/14, EU:C:2015:650, paragraph 60 and the case-law cited).

52 In the second place, it is appropriate to consider whether the claim of an infringement of Article 113 of Regulation No 1224/2009, alleged in the context of the fourth ground, indicates the existence of a difficult legal issue capable of establishing a prima facie case.

53 In this respect, it should be noted that Article 113 of Regulation No 1224/2009 contains no reference to Regulation No 1049/2001 and provides in paragraph 2 that ‘the data exchanged between Member States and the Commission shall not be transmitted to persons other than those in Member States or Community institutions whose functions require them to have such access unless the Member States transmitting the data give their express consent’. In addition, in accordance with paragraph 3 thereof, ‘the data [collected and received in the context of this Regulation] shall not be used for any purpose other than that provided for in this Regulation unless the authorities providing the data give their express consent for the use of the data for other purposes and on condition that the provisions in force in the Member State of the authority receiving the data do not prohibit such use’.

54 It is the Commission’s submission that Article 113 of Regulation No 1224/2009 cannot justify in the present case a refusal to disclose documents. The administrative inquiry launched against the Republic of Malta had allegedly been concluded in 2011 and its follow-up was successfully implemented as of February 2013. Thus, the Commission maintains that in accordance with the judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), a presumption of confidentiality does not apply, in any case, after the closure of the follow-up to the inquiry.

55 That argument is not, prima facie, sufficient to rule out the existence of a difficult legal issue.

56 First, it should be noted that the EU judicature has not, until now, been called upon to rule on the relationship between Article 113 of Regulation No 1224/2009 and Regulation No 1049/2001.

57 Second, having regard to the content of Article 113 of Regulation No 1224/2009 and, in particular, to the lack of a reference to Regulation No 1049/2001, the manner in which these two regulations should be reconciled is not immediately obvious. That is particularly true given that Article 113 of Regulation No 1224/2009 is a sector-specific rule adopted a number of years after the entry into force of Regulation No 1049/2001.

58 Third, the Commission’s argument that, in any case, the presumption of confidentiality cannot extend, as a matter of principle, beyond the closure of the follow-up of inquiries is not entirely supported by the EU judicature. In this regard, it follows from the judgment of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393, paragraphs 123 to 125) that, in the area of competition, the disclosure of documents exchanged by the Commission and the relevant undertakings would undermine the protection of the purpose of the investigations and the commercial interests of the undertakings involved, regardless of the question of whether the request for access relates to a control procedure that has been concluded or a control procedure that is still pending.

59 In those circumstances, the question of the nature of the relationship between Article 113 of Regulation No 1224/2009 and Regulation No 1049/2001 and the question of the relevance, in the present case, of the closure of the Commission’s investigation procedure in the light of the objectives pursued by confidentiality under Article 113 of Regulation No 1224/2009 raises difficulties that cannot be overcome by a prima facie examination and which require a detailed examination, which cannot be carried out by the judge hearing the application for interim measures, but must be the subject of the main proceedings.

60 Fourth, it is, nonetheless, still necessary to determine whether the prima facie case thus established covers the entirety of the documents originating from the Republic of Malta referred to in the contested decision.

61 In this regard, it should be noted that Annex B of the contested decision identifies 240 documents originating from the Republic of Malta to which access should be granted pursuant to that decision.

62 In the application for interim measures, the Republic of Malta does not submit that, for each of those documents, disclosure by the Commission constitutes an infringement of Article 113 of Regulation No 1224/2009. However, it claims that ‘various documents [were] exchanged between [the Republic of] Malta and the Commission within the framework of Regulation No 1224/2009’ and that ‘a large number of documents identified by the contested decision were created and exchanged within the framework of [Regulation No 1224/2009], which provides in Article 113 for the strictest confidentiality’.

63 By contrast, the Republic of Malta has identified the specific documents whose disclosure would, it claims, constitute an infringement of Article 113 of Regulation No 1224/2009 and has attached to the application for interim measures in Annex A.16 a list of documents indicating the reasons substantiating its point of view.

64 Since the Commission has not contested that the documents fall within the scope of Article 113 of Regulation No 1224/2009, it should be concluded that the Republic of Malta has established a prima facie case with regard to the documents bearing the numbers 112 to 230 in Annex B to the contested decision.

65 In the third place, it is appropriate to examine, prima facie, the argument, raised in the context of the last three grounds, that the Commission failed to examine with due diligence the scope of the request of 29 July 2015 and that it was wrong to find that the documents identified during the confirmatory stage, namely the documents bearing numbers 1 to 111 and 231 to 240 in Annex B to the contested decision, were caught by that request.

66 In this regard, first, it should be noted that, in accordance with the wording of the request of 29 July 2015, set out in paragraph 6 above, Greenpeace’s interest appears to be focused on irregularities noted in 2010 and the follow-up relating to them. By contrast, as regards the subsequent documents, it follows from that request that it also covers ‘any correspondence between [the Republic of] Malta and the Commission regarding identified irregularities in the field of controls of bluefin tuna activities in Malta drawn up or received after 3 March 2011’.

67 To the extent that that part of the request does in fact relate to documents ‘regarding identified irregularities’, it appears, prima facie, that the potential sending of all documents originating from the Republic of Malta relating to bluefin tuna would be outside of the scope of the request of 29 July 2015.

68 Second, it should be noted that it is only at the stage when it examined the confirmatory application that the Commission identified those documents as being within the scope of the request of 29 July 2015. Given the large number of relevant documents, namely 121 out of a total number of 240, the Republic of Malta’s queries during the administrative phase — to which the Commission has given no response capable of being considered, at first sight, to be satisfactory either during the administrative phase or during the interlocutory proceedings — appear, prima facie, to be relevant.

69 Third, in its observations, the Commission merely referred to its finding that ‘the application for access to documents was sufficiently precise and the interpretation of its scope by the Commission was not an unlawful extension but rather a reasonable understanding of the application’.

70 Fourth, the question of whether the 121 documents at issue fall within the scope of the request of 29 July 2015 in that they relate to ‘identified irregularities’ requires those documents to be analysed.

71 In those circumstances, it should be concluded that the argument stating that the Commission failed to examine with due diligence the scope of the request of 29 July 2015 and erred when it found that the documents identified during the confirmatory stage, namely the documents bearing numbers 1 to 111 and 231 to 240 in Annex B to the contested decision, fell within the scope of that request indicates the existence of a difficult factual issue, the solution to which is not immediately obvious and which therefore merits a detailed examination, which could not be carried out by the judge hearing the application for interim measures, but must be the subject of the main proceedings.

72 Having regard to the above, the Republic of Malta has established a prima facie case as regards the entirety of the documents originating from itself and required to be disclosed pursuant to the contested decision.

73 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the interlocutory proceedings is to guarantee the full effectiveness of the future final decision, in order to avoid a lacuna in the legal protection afforded by the EU judicature. In order to achieve that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim measures. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).

74 In the present case, the Republic of Malta submits that, if the suspension sought were not granted, the main proceedings would be deprived of all practical effect. In addition, the disclosure of those documents would cause considerable harm to the common fisheries policy and the fight against illegal fishing. Lastly, such disclosure would bring into question the trust that exists between the Commission and Member States in the context of their collaboration in the area of fisheries.

75 Given that the Commission has expressly recognised the urgency of the suspension requested and, in the absence of evidence that would manifestly call into question the Commission’s classification, it should be concluded that the request for suspension is urgent, without it being necessary to examine the arguments put forward by the Republic of Malta.

76 In accordance with case-law, the risks associated with each of the possible outcomes must be weighed in the interlocutory proceedings. Specifically, that means examining, inter alia, whether or not the interest of the party seeking interim measures in obtaining suspension of the operation of the contested act outweighs the interest in its immediate implementation. In that examination, it must be determined whether the possible annulment of that act by the judgment on the substance would make it possible to reverse the situation that would have been brought about by its immediate implementation and, conversely, whether suspension of its operation would be such as to impede the objectives pursued by the contested act in the event of the main action being dismissed (order of 1 March 2017, EMA v MSD Animal Health Innovation and Intervet international, C‑512/16 P(R), not published, EU:C:2017:149, paragraph 127).

77 In the present case, the Court will be required to give a ruling, in the context of the main proceedings, on whether the contested decision — by which the Commission decided to disclose to a third party the documents at issue — must be annulled. In that regard, it is obvious that, in order to retain the practical effect of a judgment annulling the contested decision, the Republic of Malta must be able to ensure that the Commission does not prematurely disclose the documents in question. A judgment annulling that decision would be deprived of its practical effect if this application for interim measures were dismissed.

78 Consequently, the interest defended by the Republic of Malta must prevail over the interest in the dismissal of the application for interim measures, especially given that the grant of the interim measures requested amounts to no more than maintaining the status quo for a limited period, whereas there is nothing to indicate a compelling need requiring premature disclosure of the documents at issue.

79 Having regard to the above, it should be concluded that the balance of interests favours the grant of a suspension of the operation of the contested decision.

80 It follows from the foregoing that the application for interim measures must be upheld.

81 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate that costs be reserved until the decision of the Court on the substance of the case.

1. Operation of the decision of the European Commission of 13 July 2016, adopted in accordance with Regulation (EC) No 1049/2001, relating to a request for access to documents registered under the reference GestDem2015/5711, is suspended in so far as that decision grants access to documents originating from the Republic of Malta.

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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) >> Malta v Commission (Access to documents - Common fisheries policy : Order) [2017] EUECJ T-653/16_CO (25 August 2017) URL: http://www.bailii.org/eu/cases/EUECJ/2017/T65316_CO.html Cite as: [2017] EUECJ T-653/16_CO, ECLI:EU:T:2017:583, EU:T:2017:583

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