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CoAStaL NLP Group 27

62000CJ0031

Conseil national de l'ordre des architectes v Nicolas Dreessen.

2002-01-22

25 The Court has emphasised that those judgments are merely the expression in judicial decisions of a principle inherent in the fundamental freedoms of the Treaty, and that the legal effect of that principle cannot be reduced as a result of the adoption of directives on mutual recognition of diplomas (Hocsman, paragraphs 24 and 31).

61998CJ0238

Hugo Fernando Hocsman v Ministre de l'Emploi et de la Solidarité.

24 Those judgments are merely the expression in individual cases of a principle which is inherent in the fundamental freedoms of the Treaty.

2000-09-14

62000CJ0031

Conseil national de l'ordre des architectes v Nicolas Dreessen.

2002-01-22

25 The Court has emphasised that those judgments are merely the expression in judicial decisions of a principle inherent in the fundamental freedoms of the Treaty, and that the legal effect of that principle cannot be reduced as a result of the adoption of directives on mutual recognition of diplomas (Hocsman, paragraphs 24 and 31).

61998CJ0238

Hugo Fernando Hocsman v Ministre de l'Emploi et de la Solidarité.

31 While that principle was indeed applied in cases concerning professions for the practice of which there were no harmonisation or coordination measures in existence at the time, its legal ambit cannot be reduced as a result of the adoption of directives on mutual recognition of diplomas.

2000-09-14

61989CJ0110

Commission of the European Communities v Hellenic Republic.

1991-05-30

15 It must be pointed out that this difference in treatment between private traders and KIDEP occurred during a period in which, as the Court has already ruled in its judgment in Case C-32/89 (Greece v Commission [1991] ECR I-1321, at paragraph 15 et seq.), the Greek authorities, in disregard for the provisions of Community law, were directing interventions by that body on the market in cereals.

61989CJ0032

Hellenic Republic v Commission of the European Communities.

15 The Court has already held, in its judgment of 12 July 1990 in Case C-35/88 Commission v Greece, cited above, that by adopting budgetary measures to cover the deficit incurred by KYDEP as a result of its intervention on the market in feed grain and by enabling KYDEP to obtain loans from the Bank of Greece by virtue of a State guarantee, the Greek Government intervened, contrary to Community law, between 1 January 1981 and 26 March 1984 with regard to the conditions under which KYDEP bought and sold feed grain.

1991-03-19

61989CJ0110

Commission of the European Communities v Hellenic Republic.

1991-05-30

21 It ought finally to be noted that the common organizations of the markets are based on the concept of an open market to which every producer has free access under genuinely competitive conditions and the functioning of which is regulated solely by the instruments provided for in those organizations. In particular, in sectors covered by a common organization of the market, and a fortiori when that organization is based, as in the present case, on a common price system, Member States can no longer take action through unilateral measures affecting the machinery of price-formation as established under the common organization (judgment in Case C-35/88 Commission v Greece [1990] ECR I-3125, paragraph 29).

61988CJ0035

Commission of the European Communities v Hellenic Republic.

29 With regard to whether such State intervention is compatible with Regulation No 2727/75, it should be noted that the common organizations of the markets are based on the concept of an open market to which every producer has free access under genuinely competitive conditions and the functioning of which is regulated solely by the instruments provided for in those organizations . In particular, in sectors covered by a common organization of the market, and a fortiori when that organization is based, as in the present case, on a common price system, Member States can no longer take action, through national provisions adopted unilaterally, affecting the machinery of price-formation as established under the common organization ( judgment in Case C-281/87 Commission v Greece [1989] ECR 4015, paragraph 16 ).

1990-07-12

61989CJ0111

Staat der Nederlanden v P. Bakker Hillegom BV.

1990-05-02

8 It must be pointed out at the outset that Article 36 of the Treaty, to which the national court' s judgment refers, cannot be applied in a situation such as that at issue in the main proceedings . The Court has consistently held that Article 36 must be interpreted strictly and thus cannot be understood as authorizing measures of a different nature from those referred to in Articles 30 to 34 ( see, inter alia, the judgment of 25 January 1977 in Case 46/76 Bauhuis v Netherlands (( 1977 )) ECR 5, paragraph 12 ). The first question

61976CJ0046

W. J. G. Bauhuis v The Netherlands State.

12 ALTHOUGH ARTICLE 36 OF THE TREATY PROVIDES THAT ' THE PROVISIONS OF ARTICLES 30 TO 34 SHALL NOT PRECLUDE PROHIBITIONS OR QUANTITATIVE RESTRICTIONS ON IMPORTS . . . JUSTIFIED ON GROUNDS OF . . . THE PROTECTION OF HEALTH AND LIFE OF HUMANS , ANIMALS . . . ' , THIS PROVISION CONSTITUTES A DEROGATION FROM THE BASIC RULE THAT ALL OBSTACLES TO THE FREE MOVEMENT OF GOODS BETWEEN MEMBER STATES SHALL BE ELIMINATED AND MUST BE INTERPRETED STRICTLY AND THUS CANNOT BE UNDERSTOOD AS AUTHORIZING MEASURES OF A DIFFERENT NATURE FROM THOSE REFERRED TO IN ARTICLES 30 TO 34 .

1977-01-25

61989CJ0112

Upjohn Company and Upjohn NV v Farzoo Inc. and J. Kortmann.

1991-04-16

18 Those two definitions cannot, however, be viewed as rigorously distinct. As the Court stated in paragraph 22 of its judgment in van Bennekom, a substance which is endowed with properties "for treating or preventing disease in human beings or animals" within the meaning of the first part of the Community definition, but which is not presented as such, falls within the scope of the second part of the Community definition of a medicinal product.

61982CJ0227

Criminal proceedings against Leendert van Bennekom.

22 IT IS APPARENT IN THIS CONNECTION THAT A SUBSTANCE WHICH IS ENDOWED WITH PROPERTIES ' ' FOR TREATING OR PREVENTING DISEASE IN HUMAN BEINGS OR ANIMALS ' ' WITHIN THE MEANING OF THE FIRST PART OF THE COMMUNITY DEFINITION , BUT WHICH IS NOT ' ' PRESENTED ' ' AS SUCH , FALLS IN PRINCIPLE WITHIN THE SCOPE OF THE SECOND PART OF THE COMMUNITY DEFINITION OF A MEDICINAL PRODUCT .

1983-11-30

62000CJ0036

Kingdom of Spain v Commission of the European Communities.

2002-03-21

23 The rules of procedure laid down by the Treaty vary according to whether the aid at issue constitutes existing aid or new aid. While the former is subject to Article 88(1) and (2) EC, the latter is governed by Article 88(2) and (3) EC (Case C-47/91 Italy v Commission [1992] ECR I-4145, paragraph 22).

61991CJ0047

Italian Republic v Commission of the European Communities.

22 The rules of procedure which the Treaty lays down vary according to whether the aid constitutes existing or new aid. While the former is subject to Article 93(1) and (2), the latter is governed by Article 93(2) and (3).

1992-06-30

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61999CJ0321

Associação dos Refinadores de Açúcar Portugueses (ARAP), Alcântara Refinarias - Açúcares SA and Refinarias de Açúcar Reunidas SA (RAR) v Commission of the European Communities.

49 However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose.

2002-05-16

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61995CJ0367

Commission of the European Communities v Chambre syndicale nationale des entreprises de transport de fonds et valeurs (Sytraval) and Brink's France SARL.

63 As regards the Commission's obligation to state reasons, it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Joined Cases 296/82 and 318/82 Netherlands and Leeuwarder Papierwarenfabriek v Commission [1985] ECR 809, paragraph 19, Case C-350/88 Delacre and Others v Commission [1990] ECR I-395, paragraphs 15 and 16, and Case C-56/93 Belgium v Commission [1996] ECR I-723, paragraph 86).

1998-04-02

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

62000CJ0113

Kingdom of Spain v Commission of the European Communities.

47 It should first of all be observed that the obligation to provide a statement of reasons laid down in Article 253 EC is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure. Accordingly, the statement of reasons required by Article 253 EC must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent court to exercise its power of review (see, inter alia, Case C-17/99 France v Commission [2001] ECR I-2481, paragraph 35 and Italy v Commission, cited above, paragraph 48).

2002-09-19

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

62000CJ0113

Kingdom of Spain v Commission of the European Communities.

48 Furthermore, that requirement must be appraised by reference to the circumstances of each case, in particular the content of the measure, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see France v Commission, cited above, paragraph 36, and Italy v Commission, cited above, paragraph 48).

2002-09-19

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61999CJ0248

French Republic v Monsanto Company and Commission of the European Communities.

68 In that regard, it follows from Article 225 EC, the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergadem and Goupil v Commission [2000] ECR I-5291, paragraph 34).

2002-01-08

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61997CJ0310

Commission of the European Communities v AssiDomän Kraft Products AB, Iggesunds Bruk AB, Korsnäs AB, MoDo Paper AB, Södra Cell AB, Stora Kopparbergs Bergslags AB and Svenska Cellulosa AB.

50 Article 176 of the Treaty, which was the only provision relied on before the Court of First Instance by the respondents and on which the contested decision is founded, requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure.

1999-09-14

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61997CJ0310

Commission of the European Communities v AssiDomän Kraft Products AB, Iggesunds Bruk AB, Korsnäs AB, MoDo Paper AB, Södra Cell AB, Stora Kopparbergs Bergslags AB and Svenska Cellulosa AB.

56 So, although Article 176 of the Treaty requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act, that article, contrary to what the Court of First Instance held in paragraphs 69, 72 and 85, does not mean that the Commission must, at the request of interested parties, re-examine identical or similar decisions allegedly affected by the same irregularity, addressed to addressees other than the applicant.

1999-09-14

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61998CJ0458

Industrie des poudres sphériques v Council of the European Union, Commission of the European Communities, Péchiney électrométallurgie and Chambre syndicale de l'électrométallurgie et de l'électrochimie.

81 In order to comply with a judgment annulling a measure and to implement it fully, the institution is required to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 193/86, 99/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27).

2000-10-03

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61998CJ0210

Salzgitter AG, formerly Preussag Stahl AG v Commission of the European Communities and Federal Republic of Germany.

43 As the Commission itself acknowledges, however, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal.

2000-07-13

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61998CJ0174

Kingdom of the Netherlands and Gerard van der Wal v Commission of the European Communities.

27 That is, however, not enough to exonerate the Commission entirely from its obligation to disclose those documents. In so far as they are held by the Commission, such documents fall within the scope of Decision 94/90, which provides for the widest public access possible. Any exception to that right of access must therefore be interpreted and applied strictly.

2000-01-11

62000CJ0041

Interporc Im- und Export GmbH v Commission of the European Communities.

2003-03-06

56. Accordingly, it cannot be inferred from Article 2(2) of Decision 94/90 and the 1994 communication that the Secretary-General could not rely on grounds other than those on which he took a position in his initial decision. He was therefore entitled to undertake a full review of the applications for access and base the contested decision [not only on the exception based on the protection of the public interest (court proceedings) but also] on the authorship rule. " 8. In rejecting the plea alleging infringement of the Code of Conduct adopted by Decision 94/90, the Court of First Instance held: "66. ... it must be held that, so long as there is no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule can be applied. ... ... 69. It must be held, [as regards the interpretation of that rule] that the authorship rule, however it may be characterised, lays down an exception to the general principle of transparency in Decision 94/90. It follows that this rule must be construed and applied strictly, so as not to frustrate the application of the general principle of transparency (Case T-188/97 Rothmans International v Commission [1999] ECR II-2463, paragraphs 53 to 55). ... 73. It is clear, on examination of the five types of documents [referred to in the contested decision], that their authors are either the Member States or the Argentine authorities. 74. It follows that the Commission has applied the authorship rule correctly in taking the view that it was not required to grant access to those documents. It cannot, therefore, have committed an abuse of rights. ... " 9. The Court of First Instance also rejected the plea alleging infringement of Article 190 of the Treaty on the following grounds: "77. According to consistent case-law, the obligation to state reasons, laid down in Article 190 of the Treaty, means that the reasoning of the Community authority which adopted the contested measure must be shown clearly and unequivocally so as to enable the persons concerned to ascertain the reasons for the measure in order to protect their rights and the Community judicature to exercise its power of review ... . 78. In the present case, in the contested decision the Commission referred to the authorship rule and informed the applicant that it should request a copy of the documents in question from the Member States concerned or the Argentine authorities. Such a statement of reasons shows clearly the reasoning of the Commission. The applicant was thus in a position to know the justification for the contested measure and the Court of First Instance is in a position to exercise its power to review the legality of that decision. Accordingly, the applicant is not justified in maintaining that a more specific statement of reasons was required (see Rothmans International v Commission , cited above, paragraph 37). " The appeal 10. By its appeal, Interporc claims that the Court should: ─ set aside the judgment under appeal in so far as, first, it rejects the claim for annulment of the contested decision in so far as it refuses access to documents emanating from the Member States or the Argentine authorities and, second, orders it to bear its own costs; ─ annul the contested decision in its entirety; ─ order the Commission to pay the costs of the appeal and the costs of the proceedings before the Court of First Instance. 11. Interporc relies on two pleas in support of its appeal. The first alleges that the Court of First Instance erred in law as regards the assessment made by the Commission of the request for access to the file (paragraphs 55 to 57 of the judgment under appeal). The second plea alleges, as its main argument, that the authorship rule is void on the ground that it infringes a rule of law of a higher order and, in the alternative, that that rule has been misinterpreted and misapplied and that the Commission has breached its obligation to state reasons laid down by Article 190 of the Treaty (paragraphs 65 to 79 of that judgment). 12. The Commission contends that the appeal should be dismissed as inadmissible and, in the alternative, as unfounded, and that the appellant should be ordered to bear the costs of the appeal. However, should the authorship rule be declared void, it requests that the effects of the Court's judgment be limited to the documents sent after delivery of that judgment. Admissibility of the appeal Arguments of the parties 13. The Commission contends that the appeal is inadmissible in its entirety. First, it is inadmissible in so far as Interporc seeks the annulment of the contested decision in its entirety. Since that decision has already been annulled in part by a judgment of the Court of First Instance which is enforceable in that respect, it cannot be annulled a second time in its entirety. Second, in support of the two pleas submitted, rather than indicating clearly the aspects of the judgment under appeal it takes issue with and the legal arguments intended specifically to support its claim for annulment, the appellant confines itself to repeating or reproducing verbatim the pleas and arguments already put before the Court of First Instance. 14. Interporc counters that, as the infringement of rules of law by the Court of First Instance is generally inseparable from the pleas in the action and the legal provisions cited in them, a fresh presentation of those pleas in the appeal is often inevitable. The Commission's position as regards the admissibility of the appeal thus tends to limit disproportionately the scope for bringing appeals. Furthermore, contrary to the Commission's submission, the pleas it relies on are supported by argument and criticise the reasoning of the Court of First Instance sufficiently clearly. Findings of the Court 15. To begin with, it must be recalled that, according to settled case-law, it follows from Article 225 EC, the first paragraph of Article 58 of the Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and also the legal arguments specifically advanced in support of the appeal (see, in particular, Case C-352/98 P Bergaderm and Goupil v Commission [2000] ECR I-5291, paragraph 34, and Case C-248/99 P France v Monsanto and Commission [2002] ECR I-1, paragraph 68). 16. Thus, where an appeal merely repeats or reproduces verbatim the pleas in law and arguments previously submitted to the Court of First Instance, including those based on facts expressly rejected by that Court, it fails to satisfy the requirements to state reasons under those provisions (see inter alia the order of 25 March 1998 in Case C-174/97 P FFSA and Others v Commission [1998] ECR I-1303, paragraph 24). 17. However, provided that the appellant challenges the interpretation or application of Community law by the Court of First Instance, the points of law examined at first instance may be discussed again in the course of an appeal (Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843, paragraph 43). Indeed, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose (see inter alia the order of 10 May 2001 in Case C-345/00 P FNAB and Others v Council [2001] ECR I-3811, paragraphs 30 and 31, and the judgment in Case C-321/99 P ARAP and Others v Commission [2002] ECR I-4287, paragraph 49). 18. In the present case the appeal, taken as a whole, specifically seeks to challenge the position adopted by the Court of First Instance on various points of law raised before it at first instance. It indicates clearly the aspects of the judgment under appeal which are criticised and the pleas in law and arguments on which it is based. 19. It is clear from the appeal as a whole that, in support of its claim for annulment, the appellant challenges paragraphs 55 to 57 and 65 to 79 of the judgment under appeal, which constitute the essential basis for paragraphs 2 and 3 of the operative part of that judgment. That part of the judgment examines the contested decision only to the extent that, by that decision, the Commission refuses the appellant access to documents emanating from the Member States or the Argentine authorities. Thus, in asking the Court to "annul the contested decision in its entirety" , the appellant clearly intended to limit its claim for annulment to the part of the decision which had not already been annulled by the Court of First Instance. 20. As regards the first plea in particular, the appellant refers to paragraphs 55 to 57 of the contested judgment in order to demonstrate that the Court of First Instance was in breach of Community law in ruling that the Commission could adopt a further decision refusing access on the basis of the authorship rule. 21. As regards the second plea of the appeal, the appellant refers first to paragraphs 65 and 66 of the judgment under appeal in connection with the first part of that plea, then to paragraphs 69 and 70 of that judgment in connection with the second part of that plea and, finally, to paragraphs 77 to 79 of the judgment in connection with the third part of the plea. The appellant takes the view that the Court of First Instance disregarded a principle of law of a higher order relating to transparency, given an erroneous interpretation in law of the authorship rule and misapplied Article 190 of the Treaty respectively. 22. It follows that the Commission's argument regarding the inadmissibility of the appeal as a whole on the ground that it seeks the annulment of the contested decision in its entirety cannot be upheld. Similarly, the objection of inadmissibility raised against the first and second pleas, according to which the appellant merely repeats arguments already raised before the Court of First Instance, must be dismissed. 23. It follows from the foregoing that the appeal is admissible. Substance The first plea of an error of law by the Court of First Instance as regards the assessment made by the Commission of the request for access to the file Arguments of the parties 24. Interporc submits that, in the judgment under appeal, the Court of First Instance made an error of law in not accepting, as regards the reasons stated for the contested decision, that the Commission failed to assess carefully and impartially all the relevant matters of fact and of law in the case. Thus, the Court of First Instance did not correctly assess the appellant's argument that the decision is based on an incomplete legal appraisal of the possible grounds for refusal. On the contrary, the Court of First Instance expressly based the alleged lawfulness of the contested decision on the mistaken premiss that the Secretary-General had undertaken a full review of the application for access (see paragraph 56 of the judgment under appeal). 25. In that regard Interporc points out that it had argued before the Court of First Instance that a request for access to documents, particularly a confirmatory application, must be the subject of a full and impartial examination by the Commission which must take account of all the grounds for refusal which the Code of Conduct adopted by Decision 94/90 allows. Only respect for that requirement makes effective judicial review of Community decisions possible, particularly where they fall within the remit of discretionary powers. 26. Moreover, according to the appellant, the Commission no longer had the right to base the contested decision on a new ground for refusal provided for by the Code of Conduct, such as the authorship rule, which it did not cite in its decision of 29 May 1996, which was annulled by the judgment in Interporc I . If that were not so, the Commission's practice would frustrate the subjective right of access to documents and create an unacceptable gap in protection by the courts since an individual would be obliged to bring actions until such time as the Commission had exhausted all the grounds for refusal liable to be used against that individual and could no longer justify a further refusal. 27. According to the Commission, the fact that, for procedural reasons, the decision of 29 May 1996 and the contested decision were based on a single ground for refusal, that is to say the protection of the public interest, or on that ground in conjunction with the authorship rule, does not of itself make those decisions incomplete. An administration has the right to base a decision on a single determinative ground, without it being necessary to take account of other possible grounds for refusal. Moreover, it is not acceptable that the Commission, following annulment by the Court of First Instance of a decision it has taken, should be effectively deprived of the right to cite relevant, and in fact mandatory, exceptions provided for by the Code of Conduct adopted by Decision 94/90. Findings of the Court 28. As a preliminary point, it should be noted that when the Court of First Instance annuls an act of an institution, that institution is required, under Article 176 of the Treaty, to take the measures necessary to comply with the Court's judgment. 29. In order to comply with a judgment annulling a measure and to implement it fully, the institution is required, according to settled case-law, to have regard not only to the operative part of the judgment but also to the grounds which led to the judgment and constitute its essential basis, in so far as they are necessary to determine the exact meaning of what is stated in the operative part. It is those grounds which, on the one hand, identify the precise provision held to be illegal and, on the other, indicate the specific reasons which underlie the finding of illegality contained in the operative part and which the institution concerned must take into account when replacing the annulled measure (Joined Cases 97/86, 99/86, 193/86 and 215/86 Asteris and Others v Commission [1988] ECR 2181, paragraph 27, and Case C-458/98 P Industrie des poudres sphériques v Council [2000] ECR I-8147, paragraph 81). 30. However, Article 176 of the Treaty requires the institution which adopted the annulled measure only to take the necessary measures to comply with the judgment annulling its measure. Accordingly, that Article requires the institution concerned to ensure that any act intended to replace the annulled act is not affected by the same irregularities as those identified in the judgment annulling the original act (Case C-310/97 P Commission v AssiDomän Kraft Products and Others [1999] ECR I-5363, paragraphs 50 and 56). 31. Therefore, given that, as the Court of First Instance held at paragraph 55 of the judgment under appeal, it followed from the judgment in Interporc I , first, that the decision of 29 May 1996 was deemed to have never existed and, second, that the Secretary-General was required, under Article 176 of the Treaty, to take a further decision, the Court of First Instance was correct in ruling, at paragraph 56 of the judgment under appeal, that the Secretary-General was entitled to undertake a full review of the applications for access and, therefore, could rely, in the contested decision, on grounds other than those on which he based the decision of 29 May 1996, notably the authorship rule. 32. The possibility of a full review which the Court of First Instance mentions also implies that the Secretary-General was not supposed, in the contested decision, to reiterate all the grounds for refusal provided for by the Code of Conduct to adopt a decision correctly implementing the judgment in Interporc I , but had simply to base its decision on those it considered, in exercising its discretion, to be applicable in the case. 33. It follows that the first plea must be rejected. The first part of the second plea alleging that the authorship rule is void on the ground that it breaches a principle of law of a higher order Arguments of the parties 34. By the first part of its second plea, Interporc submits that the Court of First Instance, at paragraphs 65 and 66 of the judgment under appeal, erred in law in denying that the principle of transparency was a principle of law of a higher order. According to Interporc the authorship rule is unlawful in that it breaches the principles of transparency and of the review of administrative activity by the public, which are guaranteed by freedom of access to documents. The fact that those general principles of a higher order are fundamental to the Community legal order is now confirmed by Article 255 EC, read in conjunction with the second paragraph of Article A and Article F(1) of the Treaty on European Union (now, after amendment, the second paragraph of Article 1 EU and Article 6(1) EU). Strict adherence to those general principles is thus an essential factor in guaranteeing the democratic structure of the European Union and the legitimacy of the exercise of the Community's sovereignty. 35. Interporc submits that, under those principles, the Commission cannot evade its obligation to disclose the documents it holds, by confining itself to referring applicants to the authors of those documents, where the legal and technical conditions for the effective exercise of the right of access to those documents is not thereby guaranteed. 36. The Commission contends that, while transparency is a political principle which can be derived from the principle of democracy, that alone does not allow any principle of law to be inferred. 37. Moreover, even if there were a general principle of law relating to the transparency of access to documents, the appellant has not established that that principle is necessarily breached by the fact that the relevant rules allow access only to the documents drawn up by the institution concerned. Findings of the Court 38. As a preliminary point, it should be noted that, at paragraphs 35 and 36 of its judgment in Case C-58/94 Netherlands v Council [1996] ECR I-2169, the Court held that there had been a progressive affirmation of individuals' right of access to documents held by public authorities, a right which has been reaffirmed at Community level on various occasions, in particular in the declaration on the right of access to information annexed (as Declaration 17) to the Final Act of the Treaty on European Union, which links that right with the democratic nature of the institutions. 39. Moreover, the importance of that right was confirmed by the developments in the Community legal framework after the adoption of the contested decision. Thus, first, Article 255(1) EC, which was inserted into the Community legal order by the Treaty of Amsterdam, provides that "[a]ny citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents ..." . Second, 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), adopted pursuant to Article 255 EC, lays down the principles and conditions for exercising that right in order to enable citizens to participate more closely in the decision-making process, to guarantee that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system and to contribute to strengthening the principles of democracy and respect for fundamental rights. 40. As regards the validity of the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90 which the Commission had to apply at the time of the adoption of the contested decision, the Court of First Instance pointed out, at paragraph 65 of the judgment under appeal, that the Court, at paragraph 37 of the judgment in Netherlands v Council , cited above, held that so long as the Community legislature has not adopted general rules on the right of public access to documents held by the Community institutions, the institutions must take measures as to the processing of such requests by virtue of their power of internal organisation, which authorises them to take appropriate measures in order to ensure their internal operation in conformity with the interests of good administration. 41. In the light of that case-law, the Court of First Instance held, at paragraph 66 of the judgment under appeal, that, so long as there was no rule of law of a higher order according to which the Commission was not empowered, in Decision 94/90, to exclude from the scope of the Code of Conduct documents of which it was not the author, the authorship rule could be applied. 42. As to that, it must be held that the Court of First Instance was right to cite paragraph 37 of the judgment in Netherlands v Council , cited above, and draw the conclusion that the authorship rule, as provided for by the Code of Conduct adopted by Decision 94/90, was enacted pursuant to the power of internal organisation which the Commission must exercise in accordance with the requirements of good administration, where no general rules on the subject have been adopted by the Community legislature. 43. Against that background, given the developments in this field as outlined at paragraphs 38 and 39 of this judgment, it must be held that the Court of First Instance did not err in law in holding, at paragraph 66 of the judgment under appeal, that, in the absence, at the time when the contested decision was adopted, of a principle or general rules of Community law expressly providing that the Commission was not empowered, under its power of internal organisation, to enact the authorship rule as provided for by the Code of Conduct adopted by Decision 94/90, that rule could be applied in the case. 44. The first part of the second plea must therefore be rejected. The second part of the second plea, alleging misinterpretation and misapplication in law of the authorship rule Arguments of the parties 45. In the alternative, Interporc submits that the judgment under appeal is based on a misinterpretation and misapplication in law of the authorship rule, in that although the Court of First Instance accepted, at paragraph 69 of that judgment, the need to interpret that rule strictly, it did not do so in this case. 46. According to Interporc, in the light of the principle of the widest possible access to documents held by the Commission laid down by Decision 94/90, the authorship rule must be interpreted like the other exceptions provided for by the Code of Conduct. The Commission therefore can exercise a discretion in each individual case as regards recourse to the system of exceptions, a discretion which it exercises subject to review by the Community Courts. The Commission was thus required in this case to indicate for each of the documents concerned the reasons why disclosure would be contrary to the interest which must be protected. If the Court of First Instance had intended to interpret the authorship rule in a genuinely strict way it should have incorporated those principles in the authorship rule. 47. The Commission recognises that the authorship rule represents a limitation on the principle of the widest possible access to documents held by the Commission and must therefore, as far as possible, be interpreted strictly. However, the wording of that rule would plainly allow such a strict interpretation only if there were doubts as to the author of the documents. According to the Commission, there were manifestly no such doubts in the present case. Findings of the Court 48. The aim pursued by Decision 94/90 as well as being to ensure the internal operation of the Commission in conformity with the interests of good administration, is to provide the public with the widest possible access to documents held by the Commission, so that any exception to that right of access must be interpreted and applied strictly (see Joined Cases C-174/98 P and C-189/98 P Netherlands and Van der Wal v Commission [2000] ECR I-1, paragraph 27). 49. In that regard, it must be held that, under the Code of Conduct adopted by Decision 94/90, a strict interpretation and application of the authorship rule imply that the Commission must verify the origin of the document and inform the person concerned of its author so that he can make an application for access to that author. 50. As is clear from paragraphs 72 and 73 of the judgment under appeal, in the contested decision the Commission informs the appellant that the documents in respect of which it has made an application for access emanate either from the Member States or from the Argentine authorities and states that it must apply directly to the authors of those documents. 51. It follows that the Court of First Instance did not err in law in holding, at paragraph 74 of the judgment under appeal, that the Commission applied the authorship rule correctly as provided for by the Code of Conduct adopted by Decision 94/90, in taking the view that it was not required to allow access to documents of which it was not the author. 52. The second part of the second plea must therefore be rejected as unfounded. The third part of the second plea alleging infringement of the obligation to state reasons Arguments of the parties 53. Interporc submits that the Court of First Instance erred in law in holding, at paragraph 78 of the judgment under appeal, that the Commission had properly discharged the obligation to state reasons incumbent upon it under Article 190 of the Treaty. According to the appellant, the Court of First Instance was not in a position to ascertain, from the reasons given for the contested decision, whether the Commission had also exercised its discretion on the question of the possibility of exercising effectively the right of access to documents vis-à-vis the Member States and the Argentine authorities. 54. The Commission contends that it fulfilled the obligation to state reasons as derived from Article 190 of the Treaty. It contends that the argument supporting the third part of the second plea in the appeal concerning infringement of the obligation to state reasons is indissolubly linked to that supporting the second part of that plea. Findings of the Court 55. It must be observed that it is settled case-law that the statement of reasons required by Article 190 of the Treaty must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Community Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 190 of the Treaty must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see, in particular, Case C-367/95 P Commission v Sytraval and Brink's France [1998] ECR I-1719, paragraph 63, and Case C-113/00 Commission v Spain [2002] ECR I-7601, paragraphs 47 and 48). 56. As regards a request for access to documents covered by Decision 94/90 and held by the Commission, the Commission, where it refuses access, must assess in each individual case whether they fall within the exceptions listed in the Code of Conduct adopted by the decision (see Netherlands and Van der Wal v Commission , cited above, paragraph 24).

61998CJ0352

Laboratoires pharmaceutiques Bergaderm SA and Jean-Jacques Goupil v Commission of the European Communities.

34 As regards the objection of inadmissibility raised by the Commission and the French Government, it follows from Article 168a of the EC Treaty (now Article 225 EC), the first paragraph of Article 51 of the EC Statute of the Court of Justice and Article 112(1)(c) of the Rules of Procedure of the Court of Justice that an appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside, and also the legal arguments specifically advanced in support of the appeal (Case C-7/95 P Deere v Commission [1998] ECR I-3111, paragraphs 34 to 35; order of 16 December 1999 in Case C-170/99 P Clauni and Others v Commission, not reported in the ECR, paragraph 15).

2000-07-04

61989CJ0119

Commission of the European Communities v Kingdom of Spain.

1991-02-26

5 It ought to be noted at the outset that, according to the established case-law of the Court, Article 95 of the Treaty lays down a prohibition of discriminatory taxation of imported goods. That prohibition produces direct effects and creates for individuals personal rights which national courts are bound to protect (see, in particular, paragraph 46 of the judgment in Case 15/81 Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen, Roosendaal [1982] ECR 1409 - the first Gaston Schul case).

61981CJ0015

Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen, Roosendaal.

46 ACCORDING TO ESTABLISHED CASE-LAW OF THE COURT THAT PROVISION CONTAINS A PROHIBITION OF DISCRIMINATION WHICH CONSTITUTES A CLEAR AND WHOLLY UNCONDITIONAL OBLIGATION AND ITS IMPLEMENTATION AND EFFECTS ARE NOT SUBJECT TO THE ADOPTION OF ANY MEASURE BY THE INSTITUTIONS OF THE COMMUNITY OR THE MEMBER STATES . THE PROHIBITION THUS PRODUCES DIRECT EFFECTS AND CREATES FOR INDIVIDUALS PERSONAL RIGHTS WHICH THE NATIONAL COURTS ARE BOUND TO PROTECT .

1982-05-05

61989CJ0119

Commission of the European Communities v Kingdom of Spain.

1991-02-26

9 The right of individuals to rely on the directly applicable provisions of the Treaty before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty (see the judgment in Case 168/85 Commission v Italy [1986] ECR 2945, at paragraph 11).

61985CJ0168

Commission of the European Communities v Italian Republic.

11 IT MUST BE OBSERVED IN THAT REGARD THAT DIRECTLY APPLICABLE PROVISIONS OF THE TREATY ARE BINDING ON ALL THE AUTHORITIES OF THE MEMBER STATES AND THEY MUST THEREFORE COMPLY WITH THEM WITHOUT ITS BEING NECESSARY TO ADOPT NATIONAL IMPLEMENTING PROVISIONS . HOWEVER , AS THE COURT HELD IN ITS JUDGMENT OF 20 MARCH 1986 IN CASE 72/85 ( COMMISSION V NETHERLANDS ( 1986 ) ECR 1219 ), THE RIGHT OF INDIVIDUALS TO RELY ON DIRECTLY APPLICABLE PROVISIONS OF THE TREATY BEFORE NATIONAL COURTS IS ONLY A MINIMUM GUARANTEE AND IS NOT SUFFICIENT IN ITSELF TO ENSURE THE FULL AND COMPLETE IMPLEMENTATION OF THE TREATY . IT IS CLEAR FROM PREVIOUS JUDGMENTS OF THE COURT , IN PARTICULAR ITS JUDGMENT OF 25 OCTOBER 1979 , CITED ABOVE , THAT IF A PROVISION OF NATIONAL LAW THAT IS INCOMPATIBLE WITH A PROVISION OF THE TREATY , EVEN ONE DIRECTLY APPLICABLE IN THE LEGAL ORDER OF THE MEMBER STATES , IS RETAINED UNCHANGED , THIS CREATES AN AMBIGUOUS STATE OF AFFAIRS BY KEEPING THE PERSONS CONCERNED IN A STATE OF UNCERTAINTY AS TO THE POSSIBILITY OF RELYING ON COMMUNITY LAW AND THAT MAINTAINING SUCH A PROVISION IN FORCE THEREFORE AMOUNTS TO A FAILURE BY THE STATE IN QUESTION TO COMPLY WITH ITS OBLIGATIONS UNDER THE TREATY .

1986-10-15

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

12 Consequently, in accordance with that which the Court has consistently held ( see the judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5 ), that legislation is caught by prohibition contained in Article 30 of the EEC Treaty, which is applicable without distinction to products originating in the Community and to those which were put into free circulation in any one of the Member States, irrespective of the actual origin of these products ( see the judgment in Case 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921, paragraph 18 ).

61974CJ0008

Procureur du Roi v Benoît and Gustave Dassonville.

5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .

1974-07-11

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

12 Consequently, in accordance with that which the Court has consistently held ( see the judgment in Case 8/74 Procureur du Roi v Dassonville [1974] ECR 837, paragraph 5 ), that legislation is caught by prohibition contained in Article 30 of the EEC Treaty, which is applicable without distinction to products originating in the Community and to those which were put into free circulation in any one of the Member States, irrespective of the actual origin of these products ( see the judgment in Case 41/76 Donckerwolcke v Procureur de la République [1976] ECR 1921, paragraph 18 ).

61976CJ0041

Suzanne Criel, née Donckerwolcke and Henri Schou v Procureur de la République au tribunal de grande instance de Lille and Director General of Customs.

18 THE RESULT OF THIS ASSIMILATION IS THAT THE PROVISIONS OF ARTICLE 30 CONCERNING THE ELIMINATION OF QUANTITATIVE RESTRICTIONS AND ALL MEASURES HAVING EQUIVALENT EFFECT ARE APPLICABLE WITHOUT DISTINCTION TO PRODUCTS ORIGINATING IN THE COMMUNITY AND TO THOSE WHICH WERE PUT INTO FREE CIRCULATION IN ANY ONE OF THE MEMBER STATES , IRRESPECTIVE OF THE ACTUAL ORIGIN OF THESE PRODUCTS .

1976-12-15

62000CJ0050

Unión de Pequeños Agricultores v Council of the European Union.

2002-07-25

21 It should be recalled that for a person to have an interest in bringing appeal proceedings the appeal must be likely, if successful, to procure an advantage for that party (Case C-174/99 P Parliament v Richard [2000] ECR I-6189, paragraph 33).

61999CJ0174

European Parliament v Pierre Richard.

33 As to whether the plea is well founded, it should be observed at the outset that for a person to have an interest in bringing appeal proceedings the appeal must be likely, if successful, to procure an advantage for that party (Case C-19/93 P Rendo and Others v Commission [1995] ECR I-3319, paragraph 13).

2000-07-13

62000CJ0050

Unión de Pequeños Agricultores v Council of the European Union.

2002-07-25

35 Thus, under Article 173 of the Treaty, a regulation, as a measure of general application, cannot be challenged by natural or legal persons other than the institutions, the European Central Bank and the Member States (see, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 40).

61978CJ0092

SpA Simmenthal v Commission of the European Communities.

40THE FIELD OF APPLICATION OF THE SAID ARTICLE MUST THEREFORE INCLUDE ACTS OF THE INSTITUTIONS WHICH , ALTHOUGH THEY ARE NOT IN THE FORM OF A REGULATION , NEVERTHELESS PRODUCE SIMILAR EFFECTS AND ON THOSE GROUNDS MAY NOT BE CHALLENGED UNDER ARTICLE 173 BY NATURAL OR LEGAL PERSONS OTHER THAN COMMUNITY INSTITUTIONS AND MEMBER STATES .

1979-03-06

62000CJ0052

Commission of the European Communities v French Republic.

2002-04-25

24 It follows that, contrary to the arguments put forward by the French Republic, the Directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (see the judgments of today in Case C-154/00 Commission v Greece [2002] ECR I-3879, paragraphs 10 to 20, and Case C-183/00 González Sánchez [2002] ECR I-3901, paragraphs 23 to 32).

62000CJ0183

María Victoria González Sánchez v Medicina Asturiana SA.

28 Thirdly, the fact that the Directive provides for certain derogations or refers in certain cases to national law does not mean that in regard to the matters which it regulates harmonisation is not complete.

2002-04-25

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

16 That type of directive is intended to promote the free movement of goods by eliminating or at least reducing obstacles to free movement which might be created by national health inspection measures adopted pursuant to Article 36 of the EEC Treaty ( see, for example, the judgment in Case 46/76 Bauhuis v Netherlands [1977] ECR 5, paragraph 30 ).

61976CJ0046

W. J. G. Bauhuis v The Netherlands State.

30 THEY CANNOT THEREFORE BE REGARDED AS UNILATERAL MEASURES WHICH HINDER TRADE BUT RATHER AS OPERATIONS INTENDED TO PROMOTE THE FREE MOVEMENT OF GOODS , IN PARTICULAR BY RENDERING INEFFECTIVE THE OBSTACLES TO THIS FREE MOVEMENT WHICH MIGHT BE CREATED BY THE MEASURES FOR VETERINARY AND PUBLIC HEALTH INSPECTIONS ADOPTED PURSUANT TO ARTICLE 36 .

1977-01-25

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

18 National rules or practices adopted in order to achieve one of the objectives referred to in Article 36 of the EEC Treaty are compatible with that Treaty only in so far as they do not exceed the limits of what is appropriate and necessary in order to achieve the desired objective ( see, for example, the judgment in Case 104/75 De Peijper [1976] ECR 613, paragraphs 16 and 17 ).

61975CJ0104

Adriaan de Peijper, Managing Director of Centrafarm BV.

16 NEVERTHELESS IT EMERGES FROM ARTICLE 36 THAT NATIONAL RULES OR PRACTICES WHICH DO RESTRICT IMPORTS OF PHARMACEUTICAL PRODUCTS OR ARE CAPABLE OF DOING SO ARE ONLY COMPATIBLE WITH THE TREATY TO THE EXTENT TO WHICH THEY ARE NECESSARY FOR THE EFFECTIVE PROTECTION OF HEALTH AND LIFE OF HUMANS .

1976-05-20

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

22 It is pointed out that, according to the case-law of the Court ( see the judgment in De Peijper, cited above, paragraph 18 ), the Member States may not derogate from Article 30 of the EEC Treaty by introducing or maintaining rules or practices which, even though they are beneficial, contain restrictions which are explained primarily by a concern to lighten the administration' s burden or reduce public expenditure, unless, in the absence of the said rules or practices, this burden or expenditure clearly would exceed the limits of what can reasonably be required .

61975CJ0104

Adriaan de Peijper, Managing Director of Centrafarm BV.

18 IN PARTICULAR ARTICLE 36 CANNOT BE RELIED ON TO JUSTIFY RULES OR PRACTICES WHICH , EVEN THOUGH THEY ARE BENEFICIAL , CONTAIN RESTRICTIONS WHICH ARE EXPLAINED PRIMARILY BY A CONCERN TO LIGHTEN THE ADMINISTRATION ' S BURDEN OR REDUCE PUBLIC EXPENDITURE , UNLESS , IN THE ABSENCE OF THE SAID RULES OR PRACTICES , THIS BURDEN OR EXPENDITURE CLEARLY WOULD EXCEED THE LIMITS OF WHAT CAN REASONABLY BE REQUIRED .

1976-05-20

61989CJ0128

Commission of the European Communities v Italian Republic.

1990-07-12

23 It is also pointed out that it is in each case the duty of the Member States to prove that the conditions for derogating from Article 30 of the EEC Treaty are met ( see, for example, the judgment in Case 251/78 Denkavit Futtermittel v Minister fuer Ernaehrung, Landwirtschaft und Forsten [1979] ECR 3369, paragraph 24 ).

61978CJ0251

Firma Denkavit Futtermittel GmbH v Minister für Ernähung, Landwirtschaft und Forsten des Landes Nordrhein-Westfalen.

24 IT IS IN EACH CASE FOR THE NATIONAL COURTS TO APPLY THESE CRITERIA IN THE LIGHT OF ALL THE CIRCUMSTANCES RELATING TO THE ACTIONS BROUGHT BEFORE THEM TAKING INTO ACCOUNT THE FACT THAT IT MUST ALWAYS BE THE DUTY OF A NATIONAL AUTHORITY RELYING ON ARTICLE 36 TO PROVE THAT THE MEASURES WHICH IT ENFORCES SATISFY THESE CRITERIA .

1979-11-08

61989CJ0154

Commission of the European Communities v French Republic.

1991-02-26

14 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).

61984CJ0205

Commission of the European Communities v Federal Republic of Germany.

27 THE COURT HAS NEVERTHELESS ACCEPTED , IN PARTICULAR IN ITS JUDGMENTS OF 18 JANUARY 1979 ( JOINED CASES 110 AND 111/78 MINISTERE PUBLIC AND ANOTHER V VAN WESEMAEL AND OTHERS ( 1979 ) ECR 35 ) AND 17 DECEMBER 1981 ( CASE 279/80 WEBB , CITED ABOVE ), THAT REGARD BEING HAD TO THE PARTICULAR NATURE OF CERTAIN SERVICES , SPECIFIC REQUIREMENTS IMPOSED ON THE PROVIDER OF THE SERVICES CANNOT BE CONSIDERED TO BE INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF RULES GOVERNING SUCH ACTIVITIES . HOWEVER , THE FREEDOM TO PROVIDE SERVICES , AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY , MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE APPLIED TO ALL PERSONS OR UNDERTAKINGS OPERATING WITHIN THE TERRITORY OF THE STATE IN WHICH THE SERVICE IS PROVIDED IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF A SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT . IN ADDITION , SUCH REQUIREMENTS MUST BE OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE THAT PROFESSIONAL RULES OF CONDUCT ARE COMPLIED WITH AND THAT THE INTERESTS WHICH SUCH RULES ARE DESIGNED TO SAFEGUARD ARE PROTECTED .

1986-12-04

62000CJ0052

Commission of the European Communities v French Republic.

2002-04-25

24 It follows that, contrary to the arguments put forward by the French Republic, the Directive seeks to achieve, in the matters regulated by it, complete harmonisation of the laws, regulations and administrative provisions of the Member States (see the judgments of today in Case C-154/00 Commission v Greece [2002] ECR I-3879, paragraphs 10 to 20, and Case C-183/00 González Sánchez [2002] ECR I-3901, paragraphs 23 to 32).

62000CJ0154

Commission of the European Communities v Hellenic Republic.

15 Thirdly, the fact that the Directive provides for certain derogations or refers in certain cases to national law does not mean that in regard to the matters which it regulates harmonisation is not complete.

2002-04-25

62000CJ0052

Commission of the European Communities v French Republic.

2002-04-25

31 In those circumstances the threshold provided for in Article 9(b) of the Directive cannot be regarded as affecting victims' rights of access to the courts (Commission v Greece, cited above, paragraph 31).

62000CJ0154

Commission of the European Communities v Hellenic Republic.

31 In those circumstances the threshold provided for in Article 9(b) of the Directive cannot be regarded as affecting victims' rights of access to the courts (today's judgment in Commission v France, cited above, paragraph 31).

2002-04-25

61989CJ0154

Commission of the European Communities v French Republic.

1991-02-26

9 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79, Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61979CJ0052

Procureur du Roi v Marc J.V.C. Debauve and others.

9 HOWEVER , IT SHOULD BE OBSERVED THAT THE PROVISIONS OF THE TREATY ON FREEDOM TO PROVIDE SERVICES CANNOT APPLY TO ACTIVITIES WHOSE RELEVANT ELEMENTS ARE CONFINED WITHIN A SINGLE MEMBER STATE . WHETHER THAT IS THE CASE DEPENDS ON FINDINGS OF FACT WHICH ARE FOR THE NATIONAL COURT TO ESTABLISH . SINCE THE TRIBUNAL CORRECTIONNEL HAS CONCLUDED THAT IN THE GIVEN CIRCUMSTANCES OF THIS CASE THE SERVICES OUT OF WHICH THE PROSECUTIONS BROUGHT BEFORE IT AROSE ARE SUCH AS TO COME UNDER PROVISIONS OF THE TREATY RELATING TO SERVICES , THE QUESTIONS REFERRED TO THE COURT SHOULD BE EXAMINED FROM THE SAME POINT OF VIEW .

1980-03-18

61989CJ0154

Commission of the European Communities v French Republic.

1991-02-26

9 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79, Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61981CJ0076

SA Transporoute et travaux v Minister of Public Works.

14 IT SHOULD BE NOTED THAT THE RESULT OF THAT INTERPRETATION OF DIRECTIVE 71/305 IS IN CONFORMITY WITH THE SCHEME OF THE TREATY PROVISIONS CONCERNING THE PROVISION OF SERVICES . TO MAKE THE PROVISION OF SERVICES IN ONE MEMBER STATE BY A CONTRACTOR ESTABLISHED IN ANOTHER MEMBER STATE CONDITIONAL UPON THE POSSESSION OF AN ESTABLISHMENT PERMIT IN THE FIRST STATE WOULD BE TO DEPRIVE ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , THE PURPOSE OF THAT ARTICLE BEING PRECISELY TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES BY PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED .

1982-02-10

61989CJ0155

Belgian State v Philipp Brothers SA.

1990-07-12

13 It should be borne in mind in that regard that, in its judgment of 5 December 1985 in Case 124/83 Direktoratet for Markedsordningerne v Corman ([ 1985] ECR 3777, paragraph 44, the Court held that an action against the successful tenderer in a sale of butter held by the intervention agencies for failure to fulfil his obligations is not barred once the security has been released . The Court considered that the Community rules imposed a responsibility on the successful tenderer independently of the security, release of which could not discharge him from his obligations .

61983CJ0124

Direktoratet for Markedsordningerne v SA Nicolas Corman et fils.

44 THE ANSWER TO THE EIGHTH QUESTION MUST THEREFORE BE THAT AN ACTION AGAINST THE SUCCESSFUL TENDERER FOR FAILURE TO FULFIL HIS OBLIGATIONS IS NOT BARRED BY APPLICATION OF THE PRINCIPLE OF LEGAL CERTAINTY ONCE THE SECURITY HAS BEEN RELEASED . THE NINTH QUESTION

1985-12-05

61989CJ0159

Commission of the European Communities v Hellenic Republic.

1991-02-26

10 The right of non-taxable importers to rely on the directly applicable provisions of Article 95 before national courts is only a minimum guarantee and is not sufficient in itself to ensure the full and complete implementation of the Treaty (see the judgment in Case 168/85 Commission v Italy [1986] ECR 2945, at paragraph 11).

61985CJ0168

Commission of the European Communities v Italian Republic.

11 IT MUST BE OBSERVED IN THAT REGARD THAT DIRECTLY APPLICABLE PROVISIONS OF THE TREATY ARE BINDING ON ALL THE AUTHORITIES OF THE MEMBER STATES AND THEY MUST THEREFORE COMPLY WITH THEM WITHOUT ITS BEING NECESSARY TO ADOPT NATIONAL IMPLEMENTING PROVISIONS . HOWEVER , AS THE COURT HELD IN ITS JUDGMENT OF 20 MARCH 1986 IN CASE 72/85 ( COMMISSION V NETHERLANDS ( 1986 ) ECR 1219 ), THE RIGHT OF INDIVIDUALS TO RELY ON DIRECTLY APPLICABLE PROVISIONS OF THE TREATY BEFORE NATIONAL COURTS IS ONLY A MINIMUM GUARANTEE AND IS NOT SUFFICIENT IN ITSELF TO ENSURE THE FULL AND COMPLETE IMPLEMENTATION OF THE TREATY . IT IS CLEAR FROM PREVIOUS JUDGMENTS OF THE COURT , IN PARTICULAR ITS JUDGMENT OF 25 OCTOBER 1979 , CITED ABOVE , THAT IF A PROVISION OF NATIONAL LAW THAT IS INCOMPATIBLE WITH A PROVISION OF THE TREATY , EVEN ONE DIRECTLY APPLICABLE IN THE LEGAL ORDER OF THE MEMBER STATES , IS RETAINED UNCHANGED , THIS CREATES AN AMBIGUOUS STATE OF AFFAIRS BY KEEPING THE PERSONS CONCERNED IN A STATE OF UNCERTAINTY AS TO THE POSSIBILITY OF RELYING ON COMMUNITY LAW AND THAT MAINTAINING SUCH A PROVISION IN FORCE THEREFORE AMOUNTS TO A FAILURE BY THE STATE IN QUESTION TO COMPLY WITH ITS OBLIGATIONS UNDER THE TREATY .

1986-10-15

62000CJ0060

Mary Carpenter v Secretary of State for the Home Department.

2002-07-11

28 It is to be noted, at the outset, that the provisions of the Treaty relating to the freedom to provide services, and the rules adopted for their implementation, are not applicable to situations which do not present any link to any of the situations envisaged by Community law (see, to that effect, among others, Case C-97/98 Jägerskiöld [1999] ECR I-7319, paragraphs 42 to 45).

61998CJ0097

Peter Jägerskiöld v Torolf Gustafsson.

43 It is clear from the case-file that the legal proceedings pending before the Tingsrätt are between two Finnish nationals, both established in Finland, concerning the right of one of them to fish in waters belonging to the other situated in Finland.

1999-10-21

62000CJ0060

Mary Carpenter v Secretary of State for the Home Department.

2002-07-11

28 It is to be noted, at the outset, that the provisions of the Treaty relating to the freedom to provide services, and the rules adopted for their implementation, are not applicable to situations which do not present any link to any of the situations envisaged by Community law (see, to that effect, among others, Case C-97/98 Jägerskiöld [1999] ECR I-7319, paragraphs 42 to 45).

61998CJ0097

Peter Jägerskiöld v Torolf Gustafsson.

44 Such a situation does not present any link to one of the situations envisaged by Community law in the field of the free provision of services.

1999-10-21

62000CJ0074

Falck SpA and Acciaierie di Bolzano SpA v Commission of the European Communities.

2002-09-24

168 As the Court of Justice has previously held, the legality of a decision concerning aid is to be assessed in the light of the information available to the Commission when the decision was adopted (Meura, cited above, paragraph 16, and Case C-241/94 France v Commission [1996] ECR I-4551, paragraph 33).

61994CJ0241

French Republic v Commission of the European Communities.

33 It must be borne in mind, as a preliminary point, that, as the Court has held, the legality of a decision concerning aid is to be assessed in the light of the information available to the Commission when the decision was adopted (Case 234/84 Commission v Belgium [1986] ECR 2263, paragraph 16).

1996-09-26

61989CJ0159

Commission of the European Communities v Hellenic Republic.

1991-02-26

6 It ought to be noted at the outset that, according to the established case-law of the Court, Article 95 of the Treaty lays downs a prohibition of discriminatory taxation of imported goods. That prohibition produces direct effects and creates for individuals personal rights which national courts are bound to protect (see in particular paragraph 46 of the judgment in Case 15/81 Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen, Roosendaal [1982] ECR 1409 - the first Gaston Schul case).

61981CJ0015

Gaston Schul Douane Expediteur BV v Inspecteur der Invoerrechten en Accijnzen, Roosendaal.

46 ACCORDING TO ESTABLISHED CASE-LAW OF THE COURT THAT PROVISION CONTAINS A PROHIBITION OF DISCRIMINATION WHICH CONSTITUTES A CLEAR AND WHOLLY UNCONDITIONAL OBLIGATION AND ITS IMPLEMENTATION AND EFFECTS ARE NOT SUBJECT TO THE ADOPTION OF ANY MEASURE BY THE INSTITUTIONS OF THE COMMUNITY OR THE MEMBER STATES . THE PROHIBITION THUS PRODUCES DIRECT EFFECTS AND CREATES FOR INDIVIDUALS PERSONAL RIGHTS WHICH THE NATIONAL COURTS ARE BOUND TO PROTECT .

1982-05-05

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

19 That legal consequence can be contrary to the principle of proportionality only if the means employed, in the present case the obligation to lodge security, was not appropriate to achieve the objective pursued or went beyond what was necessary to achieve it ( see, for example, the judgment of 18 November 1987 in Case 137/85 Maizena v BALM (( 1987 )) ECR 4587, paragraph 15 ).

61985CJ0137

Maizena Gesellschaft mbH and others v Bundesanstalt für landwirtschaftliche Marktordnung (BALM).

15 HOWEVER, THE PARTIES ARE NOT FOR THAT REASON DEPRIVED OF LEGAL PROTECTION . AS THE COURT HAS HELD IN ITS JUDGMENT OF 25 SEPTEMBER 1984 IN CASE 117/83 KONECKE V BALM (( 1984 )) ECR 3291, A PENALTY, EVEN OF A NON-CRIMINAL NATURE, CANNOT BE IMPOSED UNLESS IT RESTS ON A CLEAR AND UNAMBIGUOUS LEGAL BASIS . MOREOVER, THE COURT HAS ALWAYS EMPHASIZED THAT FUNDAMENTAL RIGHTS ARE AN INTEGRAL PART OF THE GENERAL PRINCIPLES OF COMMUNITY LAW WHICH IT IS CALLED UPON TO ENFORCE . FINALLY, IT IS SETTLED LAW ( SEE MOST RECENTLY THE JUDGMENT OF 18 MARCH 1987 IN CASE 56/86 SOCIETE POUR L' EXPORTATION DES SUCRES V OBEA (( 1987 )) ECR ...) THAT THE PROVISIONS OF COMMUNITY LAW MUST COMPLY WITH THE PRINCIPLE OF PROPORTIONALITY, THAT IS TO SAY, THE MEANS WHICH THEY EMPLOY MUST BE APPROPRIATE TO ACHIEVE THE OBJECTIVE PURSUED AND MUST NOT GO BEYOND WHAT IS NECESSARY TO ACHIEVE IT .

1987-11-18

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

25 As the Court has consistently held, that principle is breached only where comparable situations are treated differently or different situations are treated in the same way, unless such difference in treatment is objectively justified ( see, for instance, the judgment of 13 December 1984 in Case 106/83 Sermide v Cassa conguaglio zucchero (( 1984 )) ECR 4209, paragraph 28 ).

61983CJ0106

Sermide SpA v Cassa Conguaglio Zucchero and others.

28 IT IS APPROPRIATE IN THE FIRST PLACE TO POINT OUT THAT UNDER THE PRINCIPLE OF NON-DISCRIMINATION BETWEEN COMMUNITY PRODUCERS OR CONSUMERS , WHICH IS ENSHRINED IN THE SECOND SUBPARAGRAPH OF ARTICLE 40 ( 3 ) OF THE EEC TREATY AND WHICH INCLUDES THE PROHIBITION OF DISCRIMINATION ON GROUNDS OF NATIONALITY LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 7 OF THE EEC TREATY , COMPARABLE SITUATIONS MUST NOT BE TREATED DIFFERENTLY AND DIFFERENT SITUATIONS MUST NOT BE TREATED IN THE SAME WAY UNLESS SUCH TREATMENT IS OBJECTIVELY JUSTIFIED . IT FOLLOWS THAT THE VARIOUS ELEMENTS IN THE COMMON ORGANIZATION OF THE MARKETS , SUCH AS PROTECTIVE MEASURES , SUBSIDIES , AID AND SO ON , MAY NOT BE DIFFERENTIATED ACCORDING TO REGION OR ACCORDING TO OTHER FACTORS AFFECTING PRODUCTION OR CONSUMPTION EXCEPT BY REFERENCE TO OBJECTIVE CRITERIA WHICH ENSURE A PROPORTIONATE DIVISION OF THE ADVANTAGES AND DISADVANTAGES FOR THOSE CONCERNED WITHOUT DISTINCTION BETWEEN THE TERRITORIES OF THE MEMBER STATES .

1984-12-13

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

31 In order to answer that question, it must first be recalled that the Court has already ruled that there is no such thing as a general principle of objective unfairness under Community law . The Court has held that there is no legal basis in Community law for exemption on grounds of natural justice from charges due under that law ( judgment of 28 June 1977 in Case 118/76 Balkan-Import-Export v Hauptzollamt Berlin-Packhof (( 1977 )) ECR 1177, paragraphs 8 and 10 ). The Court has also ruled that there is no general legal principle in Community law that a Community provision which is in force may not be applied by a national authority if it causes the person concerned hardship which the Community legislature would clearly have sought to avoid if it had envisaged that eventuality when enacting the provision ( judgment of 14 November 1985 in Case 299/84 Neumann v BALM (( 1985 )) ECR 3663, paragraph 33 ).

61984CJ0299

Firma Karl-Heinz Neumann v Bundesanstalt für landwirtschaftliche Marktordnung.

33 IT FOLLOWS THAT IN CIRCUMSTANCES SUCH AS THOSE DESCRIBED IN THE ORDER FOR REFERENCE THE PRINCIPLE OF PROPORTIONALITY RECOGNIZED IN COMMUNITY LAW CANNOT PROVIDE ANY SOLUTION TO THE DISPUTE PENDING BEFORE THE VERWALTUNGSGERICHT . IN ORDER TO ANSWER THE SECOND QUESTION REFERRED TO THE COURT IT IS THEREFORE SUFFICIENT TO STATE THAT IN COMMUNITY LAW THERE IS NO GENERAL LEGAL PRINCIPLE THAT A COMMUNITY PROVISION THAT IS IN FORCE MAY NOT BE APPLIED BY A COMMUNITY LAW IF IT CAUSES THE PERSON CONCERNED HARDSHIP WHICH THE COMMUNITY LEGISLATURE WOULD CLEARLY HAVE SOUGHT TO AVOID IF IT HAD ENVISAGED THAT EVENTUALITY WHEN ENACTING THAT PROVISION . A NATIONAL COURT WHICH CONSIDERS THAT THERE IS SUCH A CASE OF HARDSHIP IS , HOWEVER , ALWAYS AT LIBERTY TO REFER TO THE COURT FOR A PRELIMINARY RULING ANY QUESTION ON THE INTERPRETATION AND THE VALIDITY OF THE COMMUNITY MEASURE CONCERNED , THE ANSWER TO WHICH IT CONSIDERS NECESSARY TO ENABLE IT TO GIVE JUDGMENT .

1985-11-14

62000CJ0080

Italian Leather SpA v WECO Polstermöbel GmbH & Co.

2002-06-06

40 First, it is clear from the Court's case-law that, in order to ascertain whether two judgments are irreconcilable within the meaning of Article 27(3) of the Brussels Convention, it should be examined whether they entail legal consequences that are mutually exclusive (Case 145/86 Hoffmann [1988] ECR 645, paragraph 22).

61986CJ0145

Horst Ludwig Martin Hoffmann v Adelheid Krieg.

22 IN ORDER TO ASCERTAIN WHETHER THE TWO JUDGMENTS ARE IRRECONCILABLE WITHIN THE MEANING OF ARTICLE 27 ( 3 ), IT SHOULD BE EXAMINED WHETHER THEY ENTAIL LEGAL CONSEQUENCES THAT ARE MUTUALLY EXCLUSIVE .

1988-02-04

62000CJ0080

Italian Leather SpA v WECO Polstermöbel GmbH & Co.

2002-06-06

44 Moreover, as follows from paragraph 22 of the judgment in Hoffmann, cited above, irreconcilability lies in the effects of judgments. It does not concern the requirements governing admissibility and procedure which determine whether judgment can be given and which may vary from one Contracting State to another.

61986CJ0145

Horst Ludwig Martin Hoffmann v Adelheid Krieg.

22 IN ORDER TO ASCERTAIN WHETHER THE TWO JUDGMENTS ARE IRRECONCILABLE WITHIN THE MEANING OF ARTICLE 27 ( 3 ), IT SHOULD BE EXAMINED WHETHER THEY ENTAIL LEGAL CONSEQUENCES THAT ARE MUTUALLY EXCLUSIVE .

1988-02-04

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

31 In order to answer that question, it must first be recalled that the Court has already ruled that there is no such thing as a general principle of objective unfairness under Community law . The Court has held that there is no legal basis in Community law for exemption on grounds of natural justice from charges due under that law ( judgment of 28 June 1977 in Case 118/76 Balkan-Import-Export v Hauptzollamt Berlin-Packhof (( 1977 )) ECR 1177, paragraphs 8 and 10 ). The Court has also ruled that there is no general legal principle in Community law that a Community provision which is in force may not be applied by a national authority if it causes the person concerned hardship which the Community legislature would clearly have sought to avoid if it had envisaged that eventuality when enacting the provision ( judgment of 14 November 1985 in Case 299/84 Neumann v BALM (( 1985 )) ECR 3663, paragraph 33 ).

61976CJ0118

Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof.

8 IN ITS PRESENT STATE , COMMUNITY LAW CONTAINS NO PROVISION , SUCH AS THAT EXISTING IN GERMAN LEGISLATION , WHICH ENABLES EXEMPTION FROM CHARGES INTRODUCED BY COMMUNITY LAW TO BE GRANTED BY ADMINISTRATIVE ACTION . A PROPOSAL TO THAT EFFECT WHICH WAS SUBMITTED BY THE COMMISSION TO THE COUNCIL ON 30 DECEMBER 1975 , THAT IS , AT A DATE SUBSEQUENT TO THE EVENTS WHICH GAVE RISE TO THE PRESENT CASE , HAS SO FAR NOT BEEN ACTED UPON BY THE COUNCIL .

1977-06-28

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

31 In order to answer that question, it must first be recalled that the Court has already ruled that there is no such thing as a general principle of objective unfairness under Community law . The Court has held that there is no legal basis in Community law for exemption on grounds of natural justice from charges due under that law ( judgment of 28 June 1977 in Case 118/76 Balkan-Import-Export v Hauptzollamt Berlin-Packhof (( 1977 )) ECR 1177, paragraphs 8 and 10 ). The Court has also ruled that there is no general legal principle in Community law that a Community provision which is in force may not be applied by a national authority if it causes the person concerned hardship which the Community legislature would clearly have sought to avoid if it had envisaged that eventuality when enacting the provision ( judgment of 14 November 1985 in Case 299/84 Neumann v BALM (( 1985 )) ECR 3663, paragraph 33 ).

61976CJ0118

Balkan-Import-Export GmbH v Hauptzollamt Berlin-Packhof.

10 THE REPLY TO BE GIVEN TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT THERE IS NO LEGAL BASIS UNDER COMMUNITY LAW FOR EXEMPTION FROM MONETARY COMPENSATORY AMOUNTS ON GROUNDS OF NATURAL JUSTICE .

1977-06-28

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

33 It should also be pointed out that the tendering system in issue in the main proceedings was not designed to ensure the continued enjoyment by tenderers of advantages which they may have enjoyed at any particular moment . On the contrary, the Commission, which was under an obligation to manage existing butter stocks in an efficient manner, had to adjust its policy to meet fluctuating market conditions ( see, most recently, the judgment of 14 February 1990 in Case C-350/88 Delacre and Others v Commission (( 1990 )) ECR I-395, paragraphs 26 and 32 to 34 ).

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

26 In view of those circumstances, the Commission, which was under an obligation to manage existing butter stocks and dispose of them on the most favourable terms, had to adjust its policy of aid for butter consumption by biscuit manufacturers to meet market developments .

1990-02-14

61989CJ0174

Hoche GmbH v Bundesanstalt für Landwirtschaftliche Marktordnung.

1990-06-28

33 It should also be pointed out that the tendering system in issue in the main proceedings was not designed to ensure the continued enjoyment by tenderers of advantages which they may have enjoyed at any particular moment . On the contrary, the Commission, which was under an obligation to manage existing butter stocks in an efficient manner, had to adjust its policy to meet fluctuating market conditions ( see, most recently, the judgment of 14 February 1990 in Case C-350/88 Delacre and Others v Commission (( 1990 )) ECR I-395, paragraphs 26 and 32 to 34 ).

61988CJ0350

Société française des Biscuits Delacre e.a. v Commission of the European Communities.

32 In order to determine whether this submission is well founded it must be borne in mind that, as the Court has held, the Community institutions have a wide discretionary power in regard to the common agricultural policy which reflects the responsibilities which the Treaty imposes on them ( paragraph 34 of the judgment of 11 March 1987 in Joined Cases 279, 280, 285 and 286/84 Walter Rau Lebensmittelwerke and Others v Commission (( 1987 )) ECR 1069 ). In particular, the Commission must be recognized as having such a margin of discretion in choosing the means necessary for carrying out its policy in its capacity as authority responsible for the management of butter stocks, in which it has to adjust its policy of aid for butter consumption to meet fluctuating market conditions .

1990-02-14

62000CJ0096

Rudolf Gabriel.

2002-07-11

37 According to settled case-law, the concepts used in Article 13 of the Brussels Convention must be interpreted independently, by reference principally to the system and objectives of the Convention, in order to ensure that it is fully effective (see, in particular, Case 150/77 Bertrand [1978] ECR 1431, paragraphs 14, 15 and 16; Case C-89/91 Shearson Lehman Hutton [1993] ECR I-139, paragraph 13; Case C-269/95 Benincasa [1997] ECR I-3767, paragraph 12; and Case C-99/96 Mietz [1999] ECR I-2277, paragraph 26).

61977CJ0150

Bertrand v Paul Ott KG.

16IT IS THEREFORE INDISPENSABLE , FOR THE COHERENCE OF THE PROVISIONS OF SECTION 4 OF THE CONVENTION , TO GIVE THAT EXPRESSION A UNIFORM SUBSTANTIVE CONTENT ALLIED TO THE COMMUNITY ORDER .

1978-06-21

62000CJ0108

Syndicat des producteurs indépendants (SPI) v Ministère de l'Economie, des Finances et de l'Industrie.

2001-03-15

18 As is also clear from paragraphs 22 and 23 of the judgment in Dudda, the scope of Article 9(2) of the Sixth Directive must be determined in the light of its purpose as set out in the seventh recital in its preamble, which is to establish a special regime applying to services supplied between taxable persons where the cost of the services is included in the price of the goods.

61994CJ0327

Jürgen Dudda v Finanzgericht Bergisch Gladbach.

23 The overall purpose of Article 9(2) of the Sixth Directive is accordingly to establish a special system for services provided between taxable persons where the cost of the services is included in the price of the goods.

1996-09-26

62000CJ0112

Eugen Schmidberger, Internationale Transporte und Planzüge v Republik Österreich.

2003-06-12

56. It is settled case-law since the judgment in Case 8/74 Dassonville [1974] ECR 837, paragraph 5) that those provisions, taken in their context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to trade flows in intra-Community trade (see, to that effect, Case C-265/95 Commission v France [1997] ECR I-6959, paragraph 29).

61995CJ0265

Commission of the European Communities v French Republic.

29 That provision, taken in its context, must be understood as being intended to eliminate all barriers, whether direct or indirect, actual or potential, to flows of imports in intra-Community trade.

1997-12-09

61989CJ0180

Commission of the European Communities v Italian Republic.

1991-02-26

17 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).

61984CJ0205

Commission of the European Communities v Federal Republic of Germany.

27 THE COURT HAS NEVERTHELESS ACCEPTED , IN PARTICULAR IN ITS JUDGMENTS OF 18 JANUARY 1979 ( JOINED CASES 110 AND 111/78 MINISTERE PUBLIC AND ANOTHER V VAN WESEMAEL AND OTHERS ( 1979 ) ECR 35 ) AND 17 DECEMBER 1981 ( CASE 279/80 WEBB , CITED ABOVE ), THAT REGARD BEING HAD TO THE PARTICULAR NATURE OF CERTAIN SERVICES , SPECIFIC REQUIREMENTS IMPOSED ON THE PROVIDER OF THE SERVICES CANNOT BE CONSIDERED TO BE INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF RULES GOVERNING SUCH ACTIVITIES . HOWEVER , THE FREEDOM TO PROVIDE SERVICES , AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY , MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE APPLIED TO ALL PERSONS OR UNDERTAKINGS OPERATING WITHIN THE TERRITORY OF THE STATE IN WHICH THE SERVICE IS PROVIDED IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF A SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT . IN ADDITION , SUCH REQUIREMENTS MUST BE OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE THAT PROFESSIONAL RULES OF CONDUCT ARE COMPLIED WITH AND THAT THE INTERESTS WHICH SUCH RULES ARE DESIGNED TO SAFEGUARD ARE PROTECTED .

1986-12-04

61989CJ0180

Commission of the European Communities v Italian Republic.

1991-02-26

8 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79, Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61979CJ0052

Procureur du Roi v Marc J.V.C. Debauve and others.

9 HOWEVER , IT SHOULD BE OBSERVED THAT THE PROVISIONS OF THE TREATY ON FREEDOM TO PROVIDE SERVICES CANNOT APPLY TO ACTIVITIES WHOSE RELEVANT ELEMENTS ARE CONFINED WITHIN A SINGLE MEMBER STATE . WHETHER THAT IS THE CASE DEPENDS ON FINDINGS OF FACT WHICH ARE FOR THE NATIONAL COURT TO ESTABLISH . SINCE THE TRIBUNAL CORRECTIONNEL HAS CONCLUDED THAT IN THE GIVEN CIRCUMSTANCES OF THIS CASE THE SERVICES OUT OF WHICH THE PROSECUTIONS BROUGHT BEFORE IT AROSE ARE SUCH AS TO COME UNDER PROVISIONS OF THE TREATY RELATING TO SERVICES , THE QUESTIONS REFERRED TO THE COURT SHOULD BE EXAMINED FROM THE SAME POINT OF VIEW .

1980-03-18

61989CJ0180

Commission of the European Communities v Italian Republic.

1991-02-26

8 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79, Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61981CJ0076

SA Transporoute et travaux v Minister of Public Works.

14 IT SHOULD BE NOTED THAT THE RESULT OF THAT INTERPRETATION OF DIRECTIVE 71/305 IS IN CONFORMITY WITH THE SCHEME OF THE TREATY PROVISIONS CONCERNING THE PROVISION OF SERVICES . TO MAKE THE PROVISION OF SERVICES IN ONE MEMBER STATE BY A CONTRACTOR ESTABLISHED IN ANOTHER MEMBER STATE CONDITIONAL UPON THE POSSESSION OF AN ESTABLISHMENT PERMIT IN THE FIRST STATE WOULD BE TO DEPRIVE ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , THE PURPOSE OF THAT ARTICLE BEING PRECISELY TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES BY PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED .

1982-02-10

62000CJ0113

Kingdom of Spain v Commission of the European Communities.

2002-09-19

66 Conversely, the fact that that condition is not mentioned in the exemption under Article 87(3)(a) implies greater latitude in granting aid to undertakings in regions which do not meet the criteria laid down in that exemption (see Spain v Commission, cited above, paragraph 16).

61995CJ0169

Kingdom of Spain v Commission of the European Communities.

16 Conversely, the absence of that condition in the derogation under Article 92(3)(a) implies greater latitude in granting aid to undertakings in regions which do meet the criteria laid down in that derogation.

1997-01-14

62000CJ0113

Kingdom of Spain v Commission of the European Communities.

2002-09-19

77 The aid scheme in question therefore establishes a financial incentive to sell horticultural products from Extremadura to local processors. In those circumstances it must be regarded as a measure having equivalent effect to a quantitative restriction on exports, which is prohibited by the Treaty (see, to that effect, in regard to quantitative restrictions on imports, Case 249/81 Commission v Ireland [1982] ECR 4005, paragraphs 20 to 30).

61981CJ0249

Commission of the European Communities v Ireland.

30 IRELAND HAS THEREFORE FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY ORGANIZING A CAMPAIGN TO PROMOTE THE SALE AND PURCHASE OF IRISH GOODS WITHIN ITS TERRITORY .

1982-11-24

62000CJ0114

Kingdom of Spain v Commission of the European Communities.

2002-09-19

103 The aid scheme in question therefore establishes a financial incentive to buy raw materials from agricultural and livestock holdings in Extremadura. In those circumstances, it must be regarded as a measure having equivalent effect to a quantitative restriction on imports, which is prohibited by the Treaty (see, to that effect, Case 249/81 Commission v Ireland [1982] ECR 4005, paragraphs 20 to 30).

61981CJ0249

Commission of the European Communities v Ireland.

22 THE IRISH GOVERNMENT GOES ON TO EMPHASIZE THAT THE CAMPAIGN HAS HAD NO RESTRICTIVE EFFECT ON IMPORTS SINCE THE PROPORTION OF IRISH GOODS TO ALL GOODS SOLD ON THE IRISH MARKET FELL FROM 49.2% IN 1977 TO 43.4% IN 1980 .

1982-11-24

61989CJ0186

W. M. van Tiem v Staatssecretaris van Financiën.

1990-12-04

17 In that respect it should first of all be underlined that Article 4 of the Sixth Directive confers a very wide scope on value added tax, comprising all stages of production, distribution and the provision of services ( see the judgments of the Court in Case 235/85 Commission v Netherlands [1987] ECR 1487, paragraph 7, and in Case 348/87 Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën [1989] ECR 1737, paragraph 10 ).

61987CJ0348

Stichting Uitvoering Financiële Acties v Staatssecretaris van Financiën.

10 The preliminary observation must be made that, as the Court pointed out in its judgment of 26 March 1987 in Case 235/85 Commission v Netherlands (( 1987 )) ECR 1485, the Sixth Directive confers a very wide scope on value-added tax comprising all economic activities of producers, traders and persons supplying services .

1989-06-15

61989CJ0188

A. Foster and others v British Gas plc.

1990-07-12

16 As the Court has consistently held ( see the judgment in Case 8/81 Becker v Hauptzollamt Muenster-Innenstadt [1982] ECR 53, paragraphs 23 to 25 ), where the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law . Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails . Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State .

61981CJ0008

Ursula Becker v Finanzamt Münster-Innenstadt.

23 PARTICULARLY IN CASES IN WHICH THE COMMUNITY AUTHORITIES HAVE , BY MEANS OF A DIRECTIVE , PLACED MEMBER STATES UNDER A DUTY TO ADOPT A CERTAIN COURSE OF ACTION , THE EFFECTIVENESS OF SUCH A MEASURE WOULD BE DIMINISHED IF PERSONS WERE PREVENTED FROM RELYING UPON IT IN PROCEEDINGS BEFORE A COURT AND NATIONAL COURTS WERE PREVENTED FROM TAKING IT INTO CONSIDERATION AS AN ELEMENT OF COMMUNITY LAW .

1982-01-19

61989CJ0188

A. Foster and others v British Gas plc.

1990-07-12

16 As the Court has consistently held ( see the judgment in Case 8/81 Becker v Hauptzollamt Muenster-Innenstadt [1982] ECR 53, paragraphs 23 to 25 ), where the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law . Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails . Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State .

61981CJ0008

Ursula Becker v Finanzamt Münster-Innenstadt.

24 CONSEQUENTLY , A MEMBER STATE WHICH HAS NOT ADOPTED THE IMPLEMENTING MEASURES REQUIRED BY THE DIRECTIVE WITHIN THE PRESCRIBED PERIOD MAY NOT PLEAD , AS AGAINST INDIVIDUALS , ITS OWN FAILURE TO PERFORM THE OBLIGATIONS WHICH THE DIRECTIVE ENTAILS .

1982-01-19

61989CJ0188

A. Foster and others v British Gas plc.

1990-07-12

16 As the Court has consistently held ( see the judgment in Case 8/81 Becker v Hauptzollamt Muenster-Innenstadt [1982] ECR 53, paragraphs 23 to 25 ), where the Community authorities have, by means of a directive, placed Member States under a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law . Consequently, a Member State which has not adopted the implementing measures required by the directive within the prescribed period may not plead, as against individuals, its own failure to perform the obligations which the directive entails . Thus, wherever the provisions of a directive appear, as far as their subject-matter is concerned, to be unconditional and sufficiently precise, those provisions may, in the absence of implementing measures adopted within the prescribed period, be relied upon as against any national provision which is incompatible with the directive or in so far as the provisions define rights which individuals are able to assert against the State .

61981CJ0008

Ursula Becker v Finanzamt Münster-Innenstadt.

25 THUS , WHEREVER THE PROVISIONS OF A DIRECTIVE APPEAR , AS FAR AS THEIR SUBJECT-MATTER IS CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE , THOSE PROVISIONS MAY , IN THE ABSENCE OF IMPLEMENTING MEASURES ADOPTED WITHIN THE PRESCRIBED PERIOD , BE RELIED UPON AS AGAINST ANY NATIONAL PROVISION WHICH IS INCOMPATIBLE WITH THE DIRECTIVE OR IN SO FAR AS THE PROVISIONS DEFINE RIGHTS WHICH INDIVIDUALS ARE ABLE TO ASSERT AGAINST THE STATE .

1982-01-19

62000CJ0114

Kingdom of Spain v Commission of the European Communities.

2002-09-19

103 The aid scheme in question therefore establishes a financial incentive to buy raw materials from agricultural and livestock holdings in Extremadura. In those circumstances, it must be regarded as a measure having equivalent effect to a quantitative restriction on imports, which is prohibited by the Treaty (see, to that effect, Case 249/81 Commission v Ireland [1982] ECR 4005, paragraphs 20 to 30).

61981CJ0249

Commission of the European Communities v Ireland.

30 IRELAND HAS THEREFORE FAILED TO FULFIL ITS OBLIGATIONS UNDER THE TREATY BY ORGANIZING A CAMPAIGN TO PROMOTE THE SALE AND PURCHASE OF IRISH GOODS WITHIN ITS TERRITORY .

1982-11-24

62000CJ0114

Kingdom of Spain v Commission of the European Communities.

2002-09-19

80 Conversely, the fact that that condition is not mentioned in the exemption under Article 87(3)(a) implies greater latitude in granting aid to undertakings in regions which do not meet the criteria laid down in that exemption (see Spain v Commission, cited above, paragraph 16).

61995CJ0169

Kingdom of Spain v Commission of the European Communities.

16 Conversely, the absence of that condition in the derogation under Article 92(3)(a) implies greater latitude in granting aid to undertakings in regions which do meet the criteria laid down in that derogation.

1997-01-14

61989CJ0188

A. Foster and others v British Gas plc.

1990-07-12

17 The Court further held in its judgment in Case 152/84 Marshall, paragraph 49, that where a person is able to rely on a directive as against the State he may do so regardless of the capacity in which the latter is acting, whether as employer or as public authority . In either case it is necessary to prevent the State from taking advantage of its own failure to comply with Community law .

61984CJ0152

M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching).

49 IN THAT RESPECT IT MUST BE POINTED OUT THAT WHERE A PERSON INVOLVED IN LEGAL PROCEEDINGS IS ABLE TO RELY ON A DIRECTIVE AS AGAINST THE STATE HE MAY DO SO REGARDLESS OF THE CAPACITY IN WHICH THE LATTER IS ACTING , WHETHER EMPLOYER OR PUBLIC AUTHORITY . IN EITHER CASE IT IS NECESSARY TO PREVENT THE STATE FROM TAKING ADVANTAGE OF ITS OWN FAILURE TO COMPLY WITH COMMUNITY LAW .

1986-02-26

61989CJ0188

A. Foster and others v British Gas plc.

1990-07-12

21 With regard to Article 5(1 ) of Directive 76/207 it should be observed that in the judgment in Case 152/84 Marshall, cited above, paragraph 52, the Court held that that provision was unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts .

61984CJ0152

M. H. Marshall v Southampton and South-West Hampshire Area Health Authority (Teaching).

52 FINALLY , WITH REGARD TO THE QUESTION WHETHER THE PROVISION CONTAINED IN ARTICLE 5 ( 1 ) OF DIRECTIVE NO 76/207 , WHICH IMPLEMENTS THE PRINCIPLE OF EQUALITY OF TREATMENT SET OUT IN ARTICLE 2 ( 1 ) OF THE DIRECTIVE , MAY BE CONSIDERED , AS FAR AS ITS CONTENTS ARE CONCERNED , TO BE UNCONDITIONAL AND SUFFICIENTLY PRECISE TO BE RELIED UPON BY AN INDIVIDUAL AS AGAINST THE STATE , IT MUST BE STATED THAT THE PROVISION , TAKEN BY ITSELF , PROHIBITS ANY DISCRIMINATION ON GROUNDS OF SEX WITH REGARD TO WORKING CONDITIONS , INCLUDING THE CONDITIONS GOVERNING DISMISSAL , IN A GENERAL MANNER AND IN UNEQUIVOCAL TERMS . THE PROVISION IS THEREFORE SUFFICIENTLY PRECISE TO BE RELIED ON BY AN INDIVIDUAL AND TO BE APPLIED BY THE NATIONAL COURTS .

1986-02-26

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

14 As the Court pointed out in its judgment in Mulder ( paragraphs 15 and 16 ), the applicable Community legislation does not in all cases ensure that the producers thus excluded from the grant of a representative reference quantity under Article 2 are able to obtain a special or additional reference quantity under other provisions of that legislation, since the grant of such quantities is subject to specific conditions and, moreover, can be envisaged only within the limit of the quantities available for that purpose .

61986CJ0120

J. Mulder v Minister van Landbouw en Visserij.

15 L' ANALYSE DE L' ECONOMIE ET DE L' OBJECTIF DES DISPOSITIONS DES ARTICLES 3 ET 4 DU REGLEMENT N* 857/84 DU CONSEIL FAIT APPARAITRE QU' ELLES ENUMERENT DE FACON LIMITATIVE LES SITUATIONS DANS LESQUELLES DES QUANTITES DE REFERENCE SPECIFIQUES OU SUPPLEMENTAIRES PEUVENT ETRE ATTRIBUEES PAR LES ETATS MEMBRES . CES DISPOSITIONS NE VISANT PAS LA SITUATION D' UN PRODUCTEUR N' AYANT PAS LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE EN RAISON D' UN ENGAGEMENT DE NON-COMMERCIALISATION PRIS AU TITRE DU REGLEMENT N* 1078/77, UN TEL PRODUCTEUR NE PEUT PRETENDRE A UNE QUANTITE DE REFERENCE QUE DANS LA MESURE OU IL RELEVE D' UNE OU DE PLUSIEURS DES HYPOTHESES SPECIFIQUEMENT ENVISAGEES A CET EFFET .

1988-04-28

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

14 As the Court pointed out in its judgment in Mulder ( paragraphs 15 and 16 ), the applicable Community legislation does not in all cases ensure that the producers thus excluded from the grant of a representative reference quantity under Article 2 are able to obtain a special or additional reference quantity under other provisions of that legislation, since the grant of such quantities is subject to specific conditions and, moreover, can be envisaged only within the limit of the quantities available for that purpose .

61986CJ0120

J. Mulder v Minister van Landbouw en Visserij.

16 IL APPARAIT QUE LES HYPOTHESES PREVUES NE COUVRENT PAS TOUTES LES SITUATIONS DANS LESQUELLES PEUVENT SE TROUVER LES PRODUCTEURS AYANT PRIS DES ENGAGEMENTS DE NON-COMMERCIALISATION . CELA EST NOTAMMENT LE CAS DES PRODUCTEURS DONT LA PERIODE DE NON-COMMERCIALISATION EXPIRE APRES L' ANNEE DE REFERENCE ET QUI N' ONT PAS SOUSCRIT UN PLAN D' INVESTISSEMENT OU EFFECTUE DES INVESTISSEMENTS DANS LES CONDITIONS FIXEES A L' ARTICLE 3 DU REGLEMENT N* 857/84 .

1988-04-28

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

8 It must first be noted that the Community legislation on the additional levy on milk did not originally contain any specific provision for the grant of a reference quantity to producers who had not, pursuant to an undertaking given under Regulation No 1078/77, delivered milk during the reference year adopted by the Member State concerned . However, in its judgments in Case 120/86 Mulder [1988] ECR 2321, paragraph 28, and Case 170/86 von Deetzen [1988] ECR 2355, paragraph 17, the Court declared those provisions invalid for breach of the principle of legitimate expectations in so far as they did not provide for the allocation of such a reference quantity .

61986CJ0120

J. Mulder v Minister van Landbouw en Visserij.

28 IL Y A LIEU, PAR CONSEQUENT, DE REPONDRE A LA DEUXIEME QUESTION QUE LE REGLEMENT N* 857/84 DU CONSEIL, DU 31 MARS 1984, TEL QUE COMPLETE PAR LE REGLEMENT N* 1371/84 DE LA COMMISSION, DU 16 MAI 1984, EST INVALIDE DANS LA MESURE OU IL NE PREVOIT PAS L' ATTRIBUTION D' UNE QUANTITE DE REFERENCE AUX PRODUCTEURS N' AYANT PAS, EN EXECUTION D' UN ENGAGEMENT PRIS AU TITRE DU REGLEMENT N* 1078/77 DU CONSEIL, DU 17 MAI 1977, LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE RETENUE PAR L' ETAT MEMBRE CONCERNE . SUR LA TROISIEME QUESTION

1988-04-28

62000CJ0117

Commission of the European Communities v Ireland.

2002-06-13

26 Article 6(2) of the Habitats Directive, like the first sentence of Article 4(4) of the Birds Directive, requires Member States to take appropriate steps to avoid, inter alia, deterioration of habitats in the SPAs classified pursuant to Article 4(1) (see Case C-96/98 Commission v France [1999] ECR I-8531, paragraph 35).

61998CJ0096

Commission of the European Communities v French Republic.

35 It should first be pointed out in this regard that the first sentence of Article 4(4) of the Birds Directive, in both its original version and as amended by the Habitats Directive, requires Member States to take appropriate steps to avoid, inter alia, deterioration of habitats in the SPAs classified pursuant to Article 4(1).

1999-11-25

62000CJ0129

Commission of the European Communities v Italian Republic.

2003-12-09

30. The scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see, particularly, Case C-382/92 Commission v United Kingdom [1994] ECR I-2435, paragraph 36).

61992CJ0382

Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland.

36 Moreover, the scope of national laws, regulations or administrative provisions must be assessed in the light of the interpretation given to them by national courts (see the judgment in Joined Cases C-132/91, C-138/91 and C-139/91 Katsikas and Others v Konstantinidis and Others [1992] ECR I-6577, paragraph 39).

1994-06-08

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

8 It must first be noted that the Community legislation on the additional levy on milk did not originally contain any specific provision for the grant of a reference quantity to producers who had not, pursuant to an undertaking given under Regulation No 1078/77, delivered milk during the reference year adopted by the Member State concerned . However, in its judgments in Case 120/86 Mulder [1988] ECR 2321, paragraph 28, and Case 170/86 von Deetzen [1988] ECR 2355, paragraph 17, the Court declared those provisions invalid for breach of the principle of legitimate expectations in so far as they did not provide for the allocation of such a reference quantity .

61986CJ0170

Georg von Deetzen v Hauptzollamt Hamburg-Jonas.

17 IL Y A LIEU, PAR CONSEQUENT, DE REPONDRE A LA QUESTION POSEE QUE LE REGLEMENT N* 857/84 DU CONSEIL, DU 31 MARS 1984, TEL QUE COMPLETE PAR LE REGLEMENT N* 1371/84 DE LA COMMISSION, DU 16 MAI 1984, EST INVALIDE DANS LA MESURE OU IL NE PREVOIT PAS L' ATTRIBUTION D' UNE QUANTITE DE REFERENCE AUX PRODUCTEURS N' AYANT PAS, EN EXECUTION D' UN ENGAGEMENT PRIS AU TITRE DU REGLEMENT N* 1078/77 DU CONSEIL, DU 17 MAI 1977, LIVRE DE LAIT PENDANT L' ANNEE DE REFERENCE RETENUE PAR L' ETAT MEMBRE CONCERNE .

1988-04-28

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

9 In those judgments, the Court stated, on the one hand, that a producer who had voluntarily ceased production for a certain period could not legitimately expect to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime ( Mulder, paragraph 23; von Deetzen, paragraph 12 ), but, on the other hand, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he could legitimately expect not to be subject, on the expiry of his undertaking, to restrictions which specifically affected him for the very reason that he had availed himself of the possibilities offered by the Community provisions ( Mulder, paragraph 24; von Deetzen, paragraph 13 ).

61986CJ0120

J. Mulder v Minister van Landbouw en Visserij.

23 A CET EGARD, IL CONVIENT D' ADMETTRE, AINSI QUE LE GOUVERNEMENT NEERLANDAIS ET LA COMMISSION L' ONT FAIT OBSERVER AVEC RAISON, QU' UN OPERATEUR AYANT LIBREMENT ARRETE SA PRODUCTION PENDANT UN CERTAIN TEMPS NE PEUT PAS LEGITIMEMENT S' ATTENDRE A POUVOIR REPRENDRE LA PRODUCTION DANS LES MEMES CONDITIONS QUE CELLES QUI PREVALAIENT AUPARAVANT ET A NE PAS ETRE SOUMIS A D' EVENTUELLES REGLES, ENTRE-TEMPS ARRETEES, RELEVANT DE LA POLITIQUE DES MARCHES OU DE LA POLITIQUE DES STRUCTURES .

1988-04-28

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

9 In those judgments, the Court stated, on the one hand, that a producer who had voluntarily ceased production for a certain period could not legitimately expect to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime ( Mulder, paragraph 23; von Deetzen, paragraph 12 ), but, on the other hand, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he could legitimately expect not to be subject, on the expiry of his undertaking, to restrictions which specifically affected him for the very reason that he had availed himself of the possibilities offered by the Community provisions ( Mulder, paragraph 24; von Deetzen, paragraph 13 ).

61986CJ0120

J. Mulder v Minister van Landbouw en Visserij.

24 IL N' EN RESTE PAS MOINS QU' UN TEL OPERATEUR, LORSQU' IL A, COMME EN L' ESPECE, ETE INCITE, PAR UN ACTE DE LA COMMUNAUTE, A SUSPENDRE LA COMMERCIALISATION POUR UNE PERIODE LIMITEE, DANS L' INTERET GENERAL ET CONTRE PAIEMENT D' UNE PRIME, PEUT LEGITIMEMENT S' ATTENDRE A NE PAS ETRE SOUMIS, A LA FIN DE SON ENGAGEMENT, A DES RESTRICTIONS QUI L' AFFECTENT DE MANIERE SPECIFIQUE EN RAISON PRECISEMENT DU FAIT QU' IL AVAIT FAIT USAGE DES POSSIBILITES OFFERTES PAR LA REGLEMENTATION COMMUNAUTAIRE .

1988-04-28

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

9 In those judgments, the Court stated, on the one hand, that a producer who had voluntarily ceased production for a certain period could not legitimately expect to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime ( Mulder, paragraph 23; von Deetzen, paragraph 12 ), but, on the other hand, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he could legitimately expect not to be subject, on the expiry of his undertaking, to restrictions which specifically affected him for the very reason that he had availed himself of the possibilities offered by the Community provisions ( Mulder, paragraph 24; von Deetzen, paragraph 13 ).

61986CJ0170

Georg von Deetzen v Hauptzollamt Hamburg-Jonas.

12 A CET EGARD, IL CONVIENT D' ADMETTRE, AINSI QUE LA COMMISSION L' A FAIT OBSERVER AVEC RAISON, QU' UN OPERATEUR AYANT LIBREMENT ARRETE SA PRODUCTION PENDANT UN CERTAIN TEMPS NE PEUT PAS LEGITIMEMENT S' ATTENDRE A POUVOIR REPRENDRE LA PRODUCTION DANS LES MEMES CONDITIONS QUE CELLES QUI PREVALAIENT AUPARAVANT, ET A NE PAS ETRE SOUMIS A D' EVENTUELLES REGLES, ENTRE-TEMPS ARRETEES, RELEVANT DE LA POLITIQUE DES MARCHES OU DE LA POLITIQUE DES STRUCTURES .

1988-04-28

62000CJ0136

Rolf Dieter Danner.

2002-10-03

26 Article 60 of the Treaty provides that the chapter concerning services applies to services normally provided for remuneration. It has already been held that, for the purposes of that provision, the essential characteristic of remuneration lies in the fact that it constitutes consideration for the service in question (see Case 263/86 Belgian State v Humbel [1988] ECR 5365, paragraph 17).

61986CJ0263

Belgian State v René Humbel and Marie-Thérèse Edel.

17 The essential characteristic of remuneration thus lies in the fact that it constitutes consideration for the service in question, and is normally agreed upon between the provider and the recipient of the service .

1988-09-27

62000CJ0141

Ambulanter Pflegedienst Kügler GmbH v Finanzamt für Körperschaften I in Berlin.

2002-09-10

38 The Court has already held, in Case C-384/98 D. [2000] ECR I-6795, at paragraph 18, that the concept of `provision of medical care' does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.

61998CJ0384

D. v W.

18 Clearly, therefore, the concept of provision of medical care does not lend itself to an interpretation which includes medical interventions carried out for a purpose other than that of diagnosing, treating and, in so far as possible, curing diseases or health disorders.

2000-09-14

62000CJ0143

Boehringer Ingelheim KG, Boehringer Ingelheim Pharma KG, Glaxo Group Ltd, The Wellcome Foundation Ltd, SmithKline Beecham plc, Beecham Group plc, SmithKline & French Laboratories Ltd and Eli Lilly and Co. v Swingward Ltd and Dowelhurst Ltd.

2002-04-23

48 In contrast, the trade mark proprietor may oppose the repackaging if it is based solely on the parallel importer's attempt to secure a commercial advantage (see, to that effect, Upjohn, paragraph 44).

61997CJ0379

Pharmacia & Upjohn SA v Paranova A/S.

44 In contrast, the condition of necessity will not be satisfied if replacement of the trade mark is explicable solely by the parallel importer's attempt to secure a commercial advantage.

1999-10-12

61989CJ0189

Karl Spagl v Hauptzollamt Rosenheim.

1990-12-11

9 In those judgments, the Court stated, on the one hand, that a producer who had voluntarily ceased production for a certain period could not legitimately expect to resume production under the same conditions as those which previously applied and not to be subject to any rules of market or structural policy adopted in the meantime ( Mulder, paragraph 23; von Deetzen, paragraph 12 ), but, on the other hand, that where such a producer had been encouraged by a Community measure to suspend marketing for a limited period in the general interest and against payment of a premium he could legitimately expect not to be subject, on the expiry of his undertaking, to restrictions which specifically affected him for the very reason that he had availed himself of the possibilities offered by the Community provisions ( Mulder, paragraph 24; von Deetzen, paragraph 13 ).

61986CJ0170

Georg von Deetzen v Hauptzollamt Hamburg-Jonas.

13 IL N' EN RESTE PAS MOINS QU' UN TEL OPERATEUR, LORSQU' IL A, COMME EN L' ESPECE, ETE INCITE, PAR UN ACTE DE LA COMMUNAUTE, A SUSPENDRE LA COMMERCIALISATION POUR UNE PERIODE LIMITEE, DANS L' INTERET GENERAL ET CONTRE PAIEMENT D' UNE PRIME, PEUT LEGITIMEMENT S' ATTENDRE A NE PAS ETRE SOUMIS, A LA FIN DE SON ENGAGEMENT, A DES RESTRICTIONS SPECIFIQUES EN RAISON PRECISEMENT DU FAIT QU' IL AVAIT FAIT USAGE DES POSSIBILITES OFFERTES PAR LA REGLEMENTATION COMMUNAUTAIRE .

1988-04-28

61989CJ0190

Marc Rich & Co. AG v Società Italiana Impianti PA.

1991-07-25

27 It would also be contrary to the principle of legal certainty, which is one of the objectives pursued by the Convention (see judgment in Case 38/81 Effer v Kantner [1982] ECR 825, paragraph 6) for the applicability of the exclusion laid down in Article 1(4) of the Convention to vary according to the existence or otherwise of a preliminary issue, which might be raised at any time by the parties.

61981CJ0038

Effer SpA v Hans-Joachim Kantner.

6 IT IS CLEAR FROM THE PROVISIONS OF THE CONVENTION , AND IN PARTICULAR FROM THE PREAMBLE THERETO , THAT ITS ESSENTIAL AIM IS TO STRENGTHEN IN THE COMMUNITY THE LEGAL PROTECTION OF PERSONS THEREIN ESTABLISHED . FOR THAT PURPOSE , THE CONVENTION PROVIDES A COLLECTION OF RULES WHICH ARE DESIGNED INTER ALIA TO AVOID THE OCCURRENCE , IN CIVIL AND COMMERCIAL MATTERS , OF CONCURRENT LITIGATION IN TWO OR MORE MEMBER STATES AND WHICH , IN THE INTERESTS OF LEGAL CERTAINTY AND FOR THE BENEFIT OF THE PARTIES , CONFER JURISDICTION UPON THE NATIONAL COURT TERRITORIALLY BEST QUALIFIED TO DETERMINE A DISPUTE .

1982-03-04

61989CJ0192

S. Z. Sevince v Staatssecretaris van Justitie.

1990-09-20

20 According to Article 2(1 ) of the Agreement, its purpose is to promote the continuous and balanced strengthening of trade and economic relations between the parties, and it establishes between the European Economic Community and Turkey an association which provides for a preparatory stage to enable Turkey to strengthen its economy with aid from the Community, a transitional stage for the progressive establishment of a customs union and for the alignment of economic policies, and a final stage based on the customs union and entailing close coordination of economic policies ( see judgment in Case 12/86 Demirel, supra, paragraph 15 ). As far as freedom of movement for workers is concerned, Article 12 of the Agreement, forming part of Title II concerning implementation of the transitional stage, provides that the contracting parties agree to be guided by Articles 48, 49 and 50 of the EEC Treaty for the purpose of progressively securing freedom of movement for workers between them . Article 36 of the Additional Protocol signed on 23 November 1970, annexed to the Agreement establishing an association between the European Economic Community and Turkey, concluded by Regulation ( EEC ) No 2760/72 of the Council of 19 December 1972 ( Official Journal 1973 C 113, p . 17, hereinafter referred to as the "Additional Protocol ") lays down the time-limits for the progressive attainment of such freedom of movement and provides that the Council of Association is to decide on the rules necessary to that end .

61986CJ0012

Meryem Demirel v Stadt Schwäbisch Gmünd.

15 ACCORDING TO ARTICLES 2 TO 5 THEREOF, THE AGREEMENT PROVIDES FOR A PREPARATORY STAGE TO ENABLE TURKEY TO STRENGTHEN ITS ECONOMY WITH AID FROM THE COMMUNITY, A TRANSITIONAL STAGE FOR THE PROGRESSIVE ESTABLISHMENT OF A CUSTOMS UNION AND FOR THE ALIGNMENT OF ECONOMIC POLICIES, AND A FINAL STAGE BASED ON THE CUSTOMS UNION AND ENTAILING CLOSER COORDINATION OF ECONOMIC POLICIES .

1987-09-30

61989CJ0192

S. Z. Sevince v Staatssecretaris van Justitie.

1990-09-20

8 By way of a preliminary observation, it should be borne in mind that, as the Court has consistently held, the provisions of an agreement concluded by the Council under Articles 228 and 238 of the EEC Treaty form an integral part of the Community legal system as from the entry into force of that agreement ( see judgments in Case 12/86 Demirel [1987] ECR 3719, paragraph 7 and in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 12 ).

61988CJ0030

Hellenic Republic v Commission of the European Communities.

12 It must be pointed out first of all that as the Court has consistently held ( see, most recently, the judgment of 30 September 1987 in Case 12/86 Demirel v Stadt Schwaebish Gmuend (( 1987 )) ECR 3719, paragraph 7 ), the provisions of an agreement concluded by the Council under Articles 228 and 238 of the Treaty form, as from the entry into force of the agreement, an integral part of the Community legal system .

1989-11-14

62000CJ0150

Commission of the European Communities v Republic of Austria.

2004-04-29

60. The fact therefore that a product is classified as a foodstuff in another Member State cannot prevent its being classified as a medicinal product in the Member State of importation if it displays the characteristics of such a product (see, inter alia, Delattre , paragraph 27; LTM , paragraph 24; and Laboratoires Sarget , paragraph 23).

61988CJ0369

Criminal proceedings against Jean-Marie Delattre.

27 In any event, the fact that a product is classified as a foodstuff in another Member State cannot prevent its being classified as a medicinal product in the Member State concerned when it displays the characteristics of such a product.

1991-03-21

62000CJ0150

Commission of the European Communities v Republic of Austria.

2004-04-29

81. The prohibition on measures having an effect equivalent to quantitative restrictions laid down in Article 28 EC relates to all rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade (see, inter alia, Case 8/74 Dassonville [1974] ECR 837, paragraph 5, and Case C-192/01 Commission v Denmark [2003] ECR I‑9693, paragraph 39).

61974CJ0008

Procureur du Roi v Benoît and Gustave Dassonville.

5 ALL TRADING RULES ENACTED BY MEMBER STATES WHICH ARE CAPABLE OF HINDERING, DIRECTLY OR INDIRECTLY, ACTUALLY OR POTENTIALLY, INTRA-COMMUNITY TRADE ARE TO BE CONSIDERED AS MEASURES HAVING AN EFFECT EQUIVALENT TO QUANTITATIVE RESTRICTIONS .

1974-07-11

62000CJ0154

Commission of the European Communities v Hellenic Republic.

2002-04-25

31 In those circumstances the threshold provided for in Article 9(b) of the Directive cannot be regarded as affecting victims' rights of access to the courts (today's judgment in Commission v France, cited above, paragraph 31).

62000CJ0052

Commission of the European Communities v French Republic.

31 In those circumstances the threshold provided for in Article 9(b) of the Directive cannot be regarded as affecting victims' rights of access to the courts (Commission v Greece, cited above, paragraph 31).

2002-04-25

61989CJ0192

S. Z. Sevince v Staatssecretaris van Justitie.

1990-09-20

8 By way of a preliminary observation, it should be borne in mind that, as the Court has consistently held, the provisions of an agreement concluded by the Council under Articles 228 and 238 of the EEC Treaty form an integral part of the Community legal system as from the entry into force of that agreement ( see judgments in Case 12/86 Demirel [1987] ECR 3719, paragraph 7 and in Case 30/88 Greece v Commission [1989] ECR 3711, paragraph 12 ).

61986CJ0012

Meryem Demirel v Stadt Schwäbisch Gmünd.

7 IT SHOULD FIRST BE POINTED OUT THAT, AS THE COURT HELD IN ITS JUDGMENT OF 30 APRIL 1974 IN CASE 181/73 HAEGEMAN V BELGIUM (( 1974 )) ECR 449, AN AGREEMENT CONCLUDED BY THE COUNCIL UNDER ARTICLES 228 AND 238 OF THE TREATY IS, AS FAR AS THE COMMUNITY IS CONCERNED, AN ACT OF ONE OF THE INSTITUTIONS OF THE COMMUNITY WITHIN THE MEANING OF ARTICLE 177 ( 1 ) ( B ), AND, AS FROM ITS ENTRY INTO FORCE, THE PROVISIONS OF SUCH AN AGREEMENT FORM AN INTEGRAL PART OF THE COMMUNITY LEGAL SYSTEM; WITHIN THE FRAMEWORK OF THAT SYSTEM THE COURT HAS JURISDICTION TO GIVE PRELIMINARY RULINGS CONCERNING THE INTERPRETATION OF SUCH AN AGREEMENT .

1987-09-30

61989CJ0192

S. Z. Sevince v Staatssecretaris van Justitie.

1990-09-20

9 The Court has also held that, since they are directly connected with the Agreement to which they give effect, the decisions of the Council of Association, in the same way as the Agreement itself, form an integral part, as from their entry into force, of the Community legal system ( see judgment in Case 30/88 Greece v Commission, supra, paragraph 13 ).

61988CJ0030

Hellenic Republic v Commission of the European Communities.

13 For the attainment of the objectives laid down by the EEC-Turkey Association Agreement and in the circumstances provided for by that agreement, Article 22 thereof confers a power of decision on the Association Council . With regard to Decision No 2/80, the Court has already held in its judgment of 27 September 1988 in Case 204/86 Hellenic Republic v Council (( 1988 )) ECR 5323, paragraph 20 that, by providing for cooperation with regard to "... the implementation of the aid ... made available to Turkey", the Association Council placed that aid within the institutional framework of the Association . Since it is directly connected with the Association Agreement, Decision No 2/80 forms, from its entry into force, an integral part of the Community legal system .

1989-11-14

61989CJ0198

Commission of the European Communities v Hellenic Republic.

1991-02-26

18 However, in view of the specific requirements in relation to certain services, the fact that a Member State makes the provision thereof subject to conditions as to the qualifications of the person providing them, pursuant to rules governing such activities within its jurisdiction, cannot be considered incompatible with Articles 59 and 60 of the Treaty. Nevertheless, as one of the fundamental principles of the Treaty the freedom to provide services may be restricted only by rules which are justified in the general interest and are applied to all persons and undertakings operating in the territory of the State where the service is provided, in so far as that interest is not safeguarded by the rules to which the provider of such a service is subject in the Member State where he is established. In addition, such requirements must be objectively justified by the need to ensure that professional rules of conduct are complied with and that the interests which such rules are designed to safeguard are protected (see inter alia the judgment in Case 205/84 Commission v Germany [1986] ECR 3755, at paragraph 27).

61984CJ0205

Commission of the European Communities v Federal Republic of Germany.

27 THE COURT HAS NEVERTHELESS ACCEPTED , IN PARTICULAR IN ITS JUDGMENTS OF 18 JANUARY 1979 ( JOINED CASES 110 AND 111/78 MINISTERE PUBLIC AND ANOTHER V VAN WESEMAEL AND OTHERS ( 1979 ) ECR 35 ) AND 17 DECEMBER 1981 ( CASE 279/80 WEBB , CITED ABOVE ), THAT REGARD BEING HAD TO THE PARTICULAR NATURE OF CERTAIN SERVICES , SPECIFIC REQUIREMENTS IMPOSED ON THE PROVIDER OF THE SERVICES CANNOT BE CONSIDERED TO BE INCOMPATIBLE WITH THE TREATY WHERE THEY HAVE AS THEIR PURPOSE THE APPLICATION OF RULES GOVERNING SUCH ACTIVITIES . HOWEVER , THE FREEDOM TO PROVIDE SERVICES , AS ONE OF THE FUNDAMENTAL PRINCIPLES OF THE TREATY , MAY BE RESTRICTED ONLY BY PROVISIONS WHICH ARE JUSTIFIED BY THE GENERAL GOOD AND WHICH ARE APPLIED TO ALL PERSONS OR UNDERTAKINGS OPERATING WITHIN THE TERRITORY OF THE STATE IN WHICH THE SERVICE IS PROVIDED IN SO FAR AS THAT INTEREST IS NOT SAFEGUARDED BY THE PROVISIONS TO WHICH THE PROVIDER OF A SERVICE IS SUBJECT IN THE MEMBER STATE OF HIS ESTABLISHMENT . IN ADDITION , SUCH REQUIREMENTS MUST BE OBJECTIVELY JUSTIFIED BY THE NEED TO ENSURE THAT PROFESSIONAL RULES OF CONDUCT ARE COMPLIED WITH AND THAT THE INTERESTS WHICH SUCH RULES ARE DESIGNED TO SAFEGUARD ARE PROTECTED .

1986-12-04

62000CJ0187

Helga Kutz-Bauer v Freie und Hansestadt Hamburg.

2003-03-20

55. As regards the argument which the German Government derives from the encouragement of recruitment, it is for the Member States to choose the measures capable of achieving the aims which they pursue in employment matters. The Court has recognised that the Member States have a broad margin of discretion in exercising that power (see Seymour-Smith and Perez , paragraph 74).

61997CJ0167

Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez.

74 It is true that in paragraph 33 of the Nolte case the Court observed that, in choosing the measures capable of achieving the aims of their social and employment policy, the Member States have a broad margin of discretion.

1999-02-09

62000CJ0187

Helga Kutz-Bauer v Freie und Hansestadt Hamburg.

2003-03-20

56. Furthermore, as the Court stated at paragraph 71 of its judgment in Seymour-Smith and Perez , it cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.

61997CJ0167

Regina v Secretary of State for Employment, ex parte Nicole Seymour-Smith and Laura Perez.

71 It cannot be disputed that the encouragement of recruitment constitutes a legitimate aim of social policy.

1999-02-09

62000CJ0187

Helga Kutz-Bauer v Freie und Hansestadt Hamburg.

2003-03-20

61. Nor can the City of Hamburg, whether as a public authority or as an employer, justify discrimination arising from a scheme of part-time work for older employees solely because avoidance of such discrimination would involve increased costs (see, to that effect, Hill and Stapleton , paragraph 40).

61995CJ0243

Kathleen Hill and Ann Stapleton v The Revenue Commissioners and Department of Finance.

40 So far as the justification based on economic grounds is concerned, it should be noted that an employer cannot justify discrimination arising from a job-sharing scheme solely on the ground that avoidance of such discrimination would involve increased costs.

1998-06-17

62000CJ0187

Helga Kutz-Bauer v Freie und Hansestadt Hamburg.

2003-03-20

71. Furthermore, a person such as Ms Kutz-Bauer would be able to rely on Article 5(1) of Directive 76/207 as against a public authority such as the City of Hamburg (see, in that regard, Marshall I , paragraph 49, and Case C-188/89 Foster and Others [1990] ECR I-3133, paragraphs 19 and 21).

61989CJ0188

A. Foster and others v British Gas plc.

21 With regard to Article 5(1 ) of Directive 76/207 it should be observed that in the judgment in Case 152/84 Marshall, cited above, paragraph 52, the Court held that that provision was unconditional and sufficiently precise to be relied on by an individual and to be applied by the national courts .

1990-07-12

61989CJ0198

Commission of the European Communities v Hellenic Republic.

1991-02-26

9 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61979CJ0052

Procureur du Roi v Marc J.V.C. Debauve and others.

9 HOWEVER , IT SHOULD BE OBSERVED THAT THE PROVISIONS OF THE TREATY ON FREEDOM TO PROVIDE SERVICES CANNOT APPLY TO ACTIVITIES WHOSE RELEVANT ELEMENTS ARE CONFINED WITHIN A SINGLE MEMBER STATE . WHETHER THAT IS THE CASE DEPENDS ON FINDINGS OF FACT WHICH ARE FOR THE NATIONAL COURT TO ESTABLISH . SINCE THE TRIBUNAL CORRECTIONNEL HAS CONCLUDED THAT IN THE GIVEN CIRCUMSTANCES OF THIS CASE THE SERVICES OUT OF WHICH THE PROSECUTIONS BROUGHT BEFORE IT AROSE ARE SUCH AS TO COME UNDER PROVISIONS OF THE TREATY RELATING TO SERVICES , THE QUESTIONS REFERRED TO THE COURT SHOULD BE EXAMINED FROM THE SAME POINT OF VIEW .

1980-03-18

61989CJ0198

Commission of the European Communities v Hellenic Republic.

1991-02-26

9 Although Article 59 of the Treaty expressly contemplates only the situation of a person providing services who is established in a Member State other than that in which the recipient of the service is established, the purpose of that Article is nevertheless to abolish restrictions on the freedom to provide services by persons who are not established in the State in which the service is to be provided (see judgment in Case 76/81 Transporoute v Minister of Public Works [1982] ECR 417, at paragraph 14). It is only when all the relevant elements of the activity in question are confined within a single Member State that the provisions of the Treaty on freedom to provide services cannot apply (judgment in Case 52/79 Procureur du Roi v Debauve [1980] ECR 833, at paragraph 9).

61981CJ0076

SA Transporoute et travaux v Minister of Public Works.

14 IT SHOULD BE NOTED THAT THE RESULT OF THAT INTERPRETATION OF DIRECTIVE 71/305 IS IN CONFORMITY WITH THE SCHEME OF THE TREATY PROVISIONS CONCERNING THE PROVISION OF SERVICES . TO MAKE THE PROVISION OF SERVICES IN ONE MEMBER STATE BY A CONTRACTOR ESTABLISHED IN ANOTHER MEMBER STATE CONDITIONAL UPON THE POSSESSION OF AN ESTABLISHMENT PERMIT IN THE FIRST STATE WOULD BE TO DEPRIVE ARTICLE 59 OF THE TREATY OF ALL EFFECTIVENESS , THE PURPOSE OF THAT ARTICLE BEING PRECISELY TO ABOLISH RESTRICTIONS ON THE FREEDOM TO PROVIDE SERVICES BY PERSONS WHO ARE NOT ESTABLISHED IN THE STATE IN WHICH THE SERVICE IS TO BE PROVIDED .

1982-02-10

61989CJ0200

FUNOC v Commission of the European Communities.

1990-10-11

14 In this submission, the applicant is disregarding the fact that, as the Court recognized in Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 10 to 14 and in Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraphs 10 to 14, delegation of signature is the normal means whereby the Commission exercises its powers . The applicant has not provided any evidence to show that the Community administration failed to comply with the relevant rules in this case .

61969CJ0048

Imperial Chemical Industries Ltd. v Commission of the European Communities.

10 BY APPLICATION LODGED AT THE COURT REGISTRY ON 1 OCTOBER 1969 IMPERIAL CHEMICAL INDUSTRIES LTD . HAS BROUGHT AN APPLICATION AGAINST THAT DECISION . SUBMISSIONS RELATING TO PROCEDURE AND TO FORM THE SUBMISSIONS CONCERNING THE ADMINISTRATIVE PROCEDURE ( A ) THE COMPLAINT RELATING TO THE SIGNING OF THE " NOTICE OF OBJECTIONS " BY AN OFFICIAL OF THE COMMISSION

1972-07-14

61989CJ0200

FUNOC v Commission of the European Communities.

1990-10-11

14 In this submission, the applicant is disregarding the fact that, as the Court recognized in Case 48/69 ICI v Commission [1972] ECR 619, paragraphs 10 to 14 and in Case 8/72 Cementhandelaren v Commission [1972] ECR 977, paragraphs 10 to 14, delegation of signature is the normal means whereby the Commission exercises its powers . The applicant has not provided any evidence to show that the Community administration failed to comply with the relevant rules in this case .

61969CJ0048

Imperial Chemical Industries Ltd. v Commission of the European Communities.

11 THE APPLICANT ASSERTS THAT THE NOTICE OF OBJECTIONS, FOR WHICH ARTICLE 2 OF REGULATION NO 99/63 OF THE COMMISSION MAKES PROVISION, IS IRREGULAR BECAUSE IT IS SIGNED BY THE DIRECTOR-GENERAL FOR COMPETITION PER PROCURATIONEM ALTHOUGH, ACCORDING TO THE APPLICANT, NO SUCH DELEGATION OF POWERS ON THE PART OF THE COMMISSION IS PERMITTED .

1972-07-14

62000CJ0188

Bülent Kurz, né Yüce v Land Baden-Württemberg.

2002-11-19

41 Entitlement to the rights enshrined in the three indents of Article 6(1) of Decision No 1/80 is therefore subject only to the condition that the Turkish worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment (Nazli, paragraph 32).

61997CJ0340

Ömer Nazli, Caglar Nazli and Melike Nazli v Stadt Nürnberg.

32 Entitlement to the rights enshrined in the three indents of Article 6(1) is therefore subject only to the condition that the worker has complied with the legislation of the host Member State governing entry into its territory and pursuit of employment.

2000-02-10

62000CJ0206

Henri Mouflin v Recteur de l'académie de Reims.

2001-12-13

28 The principle of equal pay enshrined in Article 119 of the Treaty, like the general principle of non-discrimination of which it is a particular expression, presupposes that male and female workers whom it covers are in comparable situations (see Case C-218/98 Abdoulaye and Others [1999] ECR I-5723, paragraph 16).

61998CJ0218

Oumar Dabo Abdoulaye and Others v Régie nationale des usines Renault SA.

16 According to the case-law of the Court, the principle of equal pay, like the general principle of non-discrimination of which it is a particular expression, presupposes that male and female workers whom it covers are in comparable situations (see Gillespie, cited above, paragraphs 16 to 18).

1999-09-16

62000CJ0210

Käserei Champignon Hofmeister GmbH & Co. KG v Hauptzollamt Hamburg-Jonas.

2002-07-11

47 In other areas, the Court has accepted that a system of strict criminal liability penalising breach of a Community regulation is not in itself incompatible with Community law (Hansen, paragraph 19; Case C-177/95 Ebony Maritime and Loten Navigation [1997] ECR I-1111, paragraph 36).

61995CJ0177

Ebony Maritime SA and Loten Navigation Co. Ltd v Prefetto della Provincia di Brindisi and others.

36 The Court has, moreover, already accepted that a system of strict criminal liability penalizing breach of a regulation is not in itself incompatible with Community law (Hansen, cited above, paragraph 19).

1997-02-27

62000CJ0228

Commission of the European Communities v Federal Republic of Germany.

2003-02-13

27. Second, the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the EC Treaty (see, in particular, Case C-207/96 Commission v Italy [1997] ECR I-6869, paragraph 18).

61996CJ0207

Commission of the European Communities v Italian Republic.

18 The Court has also held that the reasoned opinion must contain a cogent and detailed exposition of the reasons which led the Commission to the conclusion that the Member State concerned had failed to fulfil one of its obligations under the Treaty (Commission v Germany, paragraph 24).

1997-12-04