Summary
Parties
Grounds
Decision on costs
Operative part
Keywords
Council - Right of public access to Council documents - Refusal of access to a document - Actions for annulment - Time-limit - Time-barred
(Art. 230 EC; Council Decision 93/731, Art. 7(3))
Summary
$$An action for annulment, lodged out of time, against a Council decision refusing the applicant access to a document must be dismissed as inadmissible where, pursuant to Article 7(3) of Decision 93/731 on public access to Council documents, the General Secretariat's letter notifying him of that decision pointed out to him the content of Articles 195 and 230 EC which concern, respectively, the conditions for addressing complaints to the Ombudsman, and review by the Court of the legality of acts adopted by the Council. A normally diligent individual could have been left in no doubt either as to the finality of this decision, nor as to the time-limit for bringing proceedings laid down by Article 230 EC.
( see paras 23-24 )
Parties
In Case T-3/00,
Athanasios Pitsiorlas, residing in Thessaloniki (Greece), represented by D. Papafilippou, lawyer,
applicant,
v
Council of the European Union, represented by M. Bauer, S. Kyriakopoulou and D. Zachariou, acting as Agents, with an address for service in Luxembourg,
and
European Central Bank, represented by C. Zilioli, P. Vospernik and C. Kroppenstedt, acting as Agents, with an address for service in Luxembourg,
defendants,
APPLICATION for annulment of the Council's decision of 30 July 1999 and the decision of the European Central Bank of 8 November 1999 refusing the applicant access to a document,
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (First Chamber),
composed of: B. Vesterdorf, President, M. Vilaras and N.J. Forwood, Judges,
Registrar: H. Jung,
makes the following
Order
Grounds
Background to the application
1 The applicant is preparing a doctoral thesis in law at the University of Thessaloniki in Greece.
2 By letter dated 6 April 1999, received at the General Secretariat of the Council on 9 April 1999, he asked to have access, pursuant to Council Decision 93/731/EC of 20 December 1993 on public access to Council documents (OJ 1993 L 340, p. 43), as amended by Council Decision 96/705/EC, ECSC, Euratom, of 6 December 1996 (OJ 1996 L 325, p. 19), to the Basle/Nyborg Agreement on the reinforcement of the European Monetary System (EMS) endorsed by the Council of Economic and Finance Ministers at their informal meeting at Nyborg, Denmark, on 12 September 1987.
3 In its letter of 11 May 1999, communicated to the applicant on 15 May 1999, the General Secretariat of the Council responded in the following terms:
The Secretariat General has given careful consideration to your request, but as it has not been possible to find the document, we believe that it is most probably a [European Central Bank] document. Your request should therefore be addressed directly to that institution ....
4 By letter dated 8 June 1999, received at the General Secretariat of the Council on 10 June 1999, the applicant made a formal request pursuant to Article 7(1) of Decision 93/731.
5 By letter dated 5 July 1999 the General Secretariat of the Council notified the applicant that, because of the impossibility of taking a decision within the time-limit of one month under Article 7(3) of Decision 93/731, it had decided to extend this time-limit pursuant to Article 7(5), which provides:
Exceptionally, the Secretary-General, having notified the applicant in advance, may extend by one month the time-limits laid down in the first sentence of paragraph 1 and in paragraph 3.
6 At the same time, by letter dated 28 June 1999 addressed to the Public Relations department of the European Central Bank (ECB), the applicant asked to have access to the document in question pursuant to ECB Decision 1999/284/EC of 3 November 1998 concerning public access to documentation and the archives of the European Central Bank (OJ 1999 L 110, p. 30). This request was refused by letter dated 6 July 1999, and the applicant then asked, by letter dated 27 July 1999, that this decision be reconsidered on the basis of Article 23.3 of the Rules of Procedure of the European Central Bank, adopted on 7 July 1998 (OJ 1998 L 338, p. 28), as amended on 22 April 1999 (OJ 1999 L 125, p. 34).
7 By letter dated 2 August 1999, notified to the applicant on 8 August 1999, the General Secretariat of the Council notified the applicant of the Council's decision of 30 July 1999 refusing the applicant's formal request (hereinafter the Council decision). This decision was drafted in the following terms:
Following a detailed search, we have established that the document referred to in your request is the "Report of the Committee of Governors on the reinforcement of the EMS", which was published by the Committee of Governors of the Member States of the EEC at Nyborg on 8 September 1987.
Since the rules on the administrative functioning of the EMS have never formed part of Community law, the Council has never been called upon to take a decision of this nature.
Since the document requested in this case was produced by the governors of the central banks, we suggest you address your request directly to the governors of the central banks or to the ECB.
8 In the same letter, the General Secretariat referred the applicant to the provisions of Articles 195 EC and 230 EC, on, respectively, the conditions for addressing complaints to the Ombudsman, and the review by the Court of the legality of acts adopted by the Council.
9 By letter dated 8 November 1999, notified to the applicant on 13 November 1999, he was notified that the Governing Council of the ECB had decided not to give him access to the document in question (hereinafter the ECB decision).
Procedure and forms of order sought by the parties
10 It was against this background that, by application lodged at the Registry of the Court of First Instance on 20 January 2000, the applicant brought the present action for annulment of the Council decision and the ECB decision.
11 By letter dated 10 January 2000, the applicant sought a grant of legal aid. This application was dismissed by order of 8 May 2000 of the President of the First Chamber of the Court of First Instance.
12 By separate document, lodged at the Registry of the Court of First Instance on 11 April 2000, the Council raised a plea of inadmissibility under Article 114 of the Rules of Procedure, on which the applicant submitted observations on 29 June 2000.
13 In its plea of inadmissibility, the Council requested the Court of First Instance to:
- dismiss the action against the Council decision as manifestly inadmissible, without consideration of the substance;
- order the applicant to pay the costs.
14 In his observations on the plea, the applicant asked the Court of First Instance to:
- dismiss the plea of inadmissibility and consider the substance of the action;
- instruct the Council to produce the minutes of the meeting of 30 July 1999 as well as the minutes of the committees responsible for dealing with his request;
- order the Council to place on the file the reports and minutes of the monetary committee referred to by the ECB in its letter of 8 November 1999;
- order certain measures of inquiry in respect of the ECB;
- order the Council to pay the costs.
Admissibility of the action for annulment of the Council decision
15 Under Article 114 of the Rules of Procedure, if a party so requests, the Court of First Instance determines admissibility without considering the merits under the circumstances laid down in paragraphs 3 and 4 thereof. In this case, the Court of First Instance takes the view that there is sufficient information in the file and will rule on the admissibility of the action for annulment of the Council decision without considering the merits of that action, or that for annulment of the ECB decision, and without an oral hearing.
16 Similarly, the measures of organisation of procedure or inquiry sought by the applicant are neither relevant nor necessary for the determination of admissibility, and there is no need to order them.
Arguments of the parties
17 The Council submits that, in so far as it concerns its decision, the action is out of time, having been introduced after the time-limit of two months laid down by the fifth paragraph of Article 230 EC. Contrary to the claims of the applicant, the fact of being out of time is not mitigated by the existence of an excusable error. Firstly, the Council decision was not of such nature as to provoke pardonable confusion in the mind of the applicant since it is clearly apparent that it is a final decision susceptible to review. Secondly, as a lawyer and doctoral student in law, the applicant was clearly in a position to understand that the Council decision should have been challenged without waiting for that of the ECB.
18 The applicant does not deny that the application against the Council is out of time, but submits that this is due to an excusable error within the meaning of the case-law (Joined Cases T-33/89 and T-74/89 Blackman v Parliament [1993] ECR II-249 and Case C-195/91 P Bayer v Commission [1994] ECR I-5619). In this respect, he submits that he was the victim of deceit on the part of the institutions in question in that he was encouraged not to challenge the Council decision straightaway but to wait for that of the ECB. Consequently, the application should, exceptionally, be held to be admissible.
Findings of the Court
19 Under the fifth paragraph of Article 230 EC the time-limit for bringing an action for annulment is two months from, depending on the case, the publication of the act, its notification to the applicant or, in default, the time when the latter knew of the act. In accordance with the combined provisions of Article 102(2) of the Rules of Procedure of the Court of First Instance and Annex II to the Rules of Procedure of the Court of Justice, this time-limit must, additionally, be increased on account of distance by 10 days for parties resident in Greece.
20 In this case, the Council decision was notified to the applicant on 8 August 1999 by letter of the General Secretariat. Adding the allowance for distance, the time for bringing an action for annulment of this decision therefore expired on Monday 18 October 1999 at midnight.
21 The application having been lodged on 20 January 2000, the action is time-barred.
22 According to settled case-law, an excusable error may, it is true, in exceptional circumstances have the effect of not making the applicant out of time (Case 25/68 Schertzer v Parliament [1977] ECR 1729, paragraph 19; Case 117/78 Orlandi v Commission [1979] ECR 1613, paragraph 11; Case C-165/99 Austria v Commission, order of 26 October 2000, not published in the European Court Reports, paragraph 17). This is so, in particular, when the conduct of the institution concerned has been, either alone or to a decisive extent, such as to give rise to pardonable confusion in the mind of a party acting in good faith and exercising all the diligence required of a normally experienced person (Blackman v Parliament, paragraph 34, and Bayer v Commission, paragraph 26).
23 However, in this case, the applicant has adduced no evidence in support of his assertion that the Council adopted such behaviour. It should be noted, by contrast, that pursuant to Article 7(3) of Decision 93/731, the General Secretariat's letter notifying the applicant of the Council decision pointed out to him, furthermore, the content of Articles 195 EC and 230 EC which concern, respectively, the conditions for addressing complaints to the Ombudsman, and the review by the Court of the legality of acts adopted by the Council. Therefore a normally diligent individual could have been left in no doubt either as to the finality of this decision, nor as to the time-limit for bringing proceedings laid down by Article 230 EC.
24 Given that the circumstances put forward by the applicant cannot be regarded as exceptional circumstances giving rise to an excusable error, the action against the Council decision must be dismissed as inadmissible.
Decision on costs
Costs
25 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for. The applicant having been unsuccessful in his claim for the annulment of the Council decision and the Council having sought an order for costs, he must be ordered to bear his own costs relating to the plea of inadmissibility as well as those of the Council.
Operative part
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
hereby orders:
1. The action against the Council decision of 30 July 1999 is dismissed as inadmissible.
2. The applicant shall bear his own costs relating to the plea of inadmissibility and those of the Council.
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