What does an LPN do

JUDGMENT OF THE GENERAL COURT (Third Chamber)

9 September 2011 (*)

"Access to documents - Regulation (EC) No. 1049/2001 - Refusal of access - Documents relating to an ongoing infringement procedure concerning a dam project on the Sabor River - Exception relating to the protection of the purpose of inspection, investigation and audit activities - Environmental information - Regulation (EC) No. 1367/2006 - Obligation to carry out a specific and individual examination - Overriding public interest "

In Case T-29/08

Liga para Protecção da Natureza (LPN) based in Lisbon (Portugal), represented by: P. Vinagre e Silva, lawyer,

Plaintiff,

supported by:

Kingdom of Denmark, initially represented by B. Weis Fogh as authorized representative, then by C. Vang as authorized representative,

Republic of Finland, initially represented by J. Heliskoski, A. Guimaraes-Purokoski, M. Pere and H. Leppo, then by M. Heliskoski and A. Guimaraes-Purokoski as authorized representatives,

and

Kingdom of Sweden, represented by A. Falk, S. Johannesson and K. Petkovska as authorized representatives,

Intervener,

against

European Commission, represented by P. Costa de Oliveira and D. Recchia as authorized agents,

Defendant,

in response to an application for annulment of the Commission's decision of 22 November 2007 confirming the decision not to grant access to documents in the files of infringement proceedings against the Portuguese Republic concerning the planned construction of a dam at Sabor (Portugal), possibly against Council Directive 79/409 / EEC of April 2, 1979 on the conservation of wild birds (OJ L 103, p. 1) and Council Directive 92/43 / EEC of May 21, 1992 on conservation violated natural habitats and wild animals and plants (OJ L 206, p. 7),

he let

THE COURT (Third Chamber)

with the participation of the President J. Azizi (Rapporteur), the Judge E. Cremona and the Judge S. Frimodt Nielsen,

Registrar: J. Palacio González, Chief Administrative Councilor,

on the basis of the written procedure and the oral hearing on October 5, 2010

the following

judgment

 legal framework

 Regulation (EC) No. 1049/2001

1 Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 on public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) lays down the The principles, conditions and restrictions of the right of access to documents of these bodies provided for in Art. 255 EC.

2 Article 2 of Regulation 1049/2001 reads:

“1. Every citizen of the Union and every natural or legal person residing or having their registered office in a Member State shall have a right of access to documents of the institutions, subject to the principles, conditions and restrictions laid down in this Regulation.

3. This Regulation shall apply to all documents of an institution, that is to say documents relating to all areas of Union activity, drawn up or received by the institution and in its possession.

…“

3 Article 4 (2), (3) and (6) of Regulation 1049/2001 provides, inter alia:

"(2) The institutions shall refuse access to a document the disclosure of which would adversely affect:

–        …

- the protection of legal proceedings and legal advice,

- the protection of the purpose of inspection, investigation and audit activities,

unless there is an overriding public interest in its dissemination.

(3) Access to a document which has been prepared by an institution for internal use or has been received by it and which relates to a matter on which the institution has not yet taken a decision shall be denied if the document is circulated would seriously affect the decision-making process of the institution, unless there is an overriding public interest in its dissemination.

Access to a document containing opinions for internal use in the context of deliberations and preliminary discussions within the institution concerned will be denied even after the decision has been taken if the disclosure of the document would seriously affect the decision-making process of the institution, unless there is an overriding public interest in its dissemination.

(6) If only parts of the requested document are subject to one of the exceptions, the remaining parts of the document will be released. "

 Regulation (EC) No. 1367/2006

4 In the eighth recital of Regulation (EC) No. 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on access to information, public participation in decision-making and access to justice in Environmental matters on Community institutions and bodies (OJ L 264, p. 13) reads:

“The definition of 'environmental information' in this regulation includes information on the state of the environment, regardless of its form. This definition was based on the definition in Directive 2003/4 / EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and on the repeal of Council Directive 90/313 / EEC [OJ. L 41, p. 26] and its content corresponds to the definition of the Aarhus Convention. The definition of the term "document" in Regulation ... No. 1049/2001 includes environmental information within the meaning of this Regulation. "

5 Recital 15 of Regulation 1367/2006 reads:

“To the extent that exceptions are provided for in Regulation ... No 1049/2001, these should apply subject to more specific provisions in this Regulation on requests for environmental information. The reasons for denial of access to environmental information should be interpreted narrowly, taking into account the public interest in the disclosure and any reference to the information requested on emissions into the environment. ... "

6 Article 3 of Regulation 1367/2006 provides:

“Regulation… No. 1049/2001 applies to all requests for access to environmental information held by Community institutions and bodies, regardless of citizenship, nationality or place of residence and, in the case of legal persons, according to their registered office or one actual focus of their activity.

…“

7 Article 6 (1) of Regulation 1367/2006 provides under the heading "Application of derogations for requests for access to environmental information":

"Article 4 (2) first and third indents of Regulation ... No. 1049/2001, with the exception of investigations, in particular those dealing with possible violations of Community law, are interpreted as meaning that there is an overriding public interest in the dissemination, if the requested information concerns emissions into the environment. For the other exceptions under Article 4 of Regulation ... No. 1049/2001, the reasons for the refusal must be interpreted narrowly, taking into account the public interest in the disclosure and any reference to the information requested on emissions into the environment. "

 facts

8 The applicant, the Liga para Protecção da Natureza (LPN), an association incorporated under Portuguese law with its seat in Lisbon (Portugal), is a member of the Plataforma Sabor Livre, which comprises several non-governmental organizations (NGOs) whose aim is environmental protection. In this capacity, LPN is pursuing the project to build a dam on the Sabor River in Portugal (hereinafter: the dam project), in particular to ensure that the species and habitats concerned are adequately protected with regard to the requirements arising from the directive 92/43 / EEC of the Council of 21 May 1992 for the conservation of natural habitats and of wild animals and plants (OJ L 206, p. 7, hereinafter: Habitats Directive).

9 By letter dated April 22, 2003, LPN submitted a complaint registered under number 2003/4523 to the Directorate-General (DG) "Environment" of the Commission of the European Communities, in which it submitted that the dam project affected areas of Community importance (GGB ) Affect “Morais” and “Sabor and Maçãs River” in violation of the Habitats Directive.

10 In response to this complaint, the Commission initiated infringement proceedings against the Portuguese Republic and contacted the Portuguese authorities to investigate the extent to which the dam project might violate Council Directive 79/409 / EEC of 2 April 1979 on conservation of wild birds (OJ L 103, p. 1) and the Habitats Directive.

11 By letter of 27 March 2007, LPN asked DG Environment to have access to information on the handling of the complaint and to inspect documents drawn up by the “Commission working group” and those between the Between the Commission and the Portuguese authorities.

12 By letter of 22 May 2007, DG Environment rejected LPN's request for access to the documents on the basis of the third indent of Article 4 (2) of Regulation 1049/2001 on the grounds that the Disclosure of the documents in question would jeopardize the proper functioning of the infringement procedure initiated under Article 226 EC, in which the Commission and the Member States would have to work together in a climate of mutual trust in order to start negotiations and reach an amicable settlement of the differences. In that letter, the Commission stated in particular that the Commission had sent the Portuguese authorities a letter of formal notice on 18 October 2005, to which they replied on 16 December 2005, and that since then the mutual contacts had been with the aim of reaching a settlement the disagreements continued.

13 By letter of 14 June 2007 to the Commission, which was entered in its register on 22 June 2007, LPN re-applied for access and asked the Commission to reconsider its negative decision.

14 By letter of 16 July 2007, the Commission informed LPN that, pursuant to Article 8 (2) of Regulation No 1049/2001, the deadline for replies had been extended by 15 working days and thus ended on 3 August 2007.

15 By letter of 3 August 2007, the Commission informed LPN that unfortunately, due to the size of the documents requested, it was unable to reply in due time and that the Commission would do everything in its power to give it a definitive answer as soon as possible .

16 Following a public announcement by the Portuguese Minister for Economic Affairs that the Commission had filed or was about to file the complaint on which the infringement proceedings relating to the dam project were based, LPN sent it on 27 September and 1 December 2015 October 2007 two letters to the Commission.

17 By letter of 9 November 2007, DG Environment essentially replied that the Commission had not closed the infringement procedure but that it had given it "high priority" in order to form its final opinion on it soon. In addition, in accordance with the Commission's "internal rules", the complainant would be kept informed of the progress of the case and given the opportunity to express her point of view before the Commission took a decision.

18 By letter of 22 November 2007 ('the contested decision'), the Commission replied to LPN's letter of 14 June 2007 and confirmed the refusal of access to the documents requested.

19 The Commission based the contested decision essentially on the fact that the documents which were the subject of correspondence between it and the Portuguese authorities all fell within the exception provided for in the third indent of Article 4 (2) of Regulation No 1049/2001 how that provision, which concerns the protection of the purpose of inspection, investigation and audit activities, in the judgment of the General Court of 11 December 2001, Petrie and Others v Commission (T ‑ 191/99, 2001 ECR II ‑ 3677, para . 68).

20 In particular, the Commission pointed out that, in infringement proceedings between the Commission and the Member State concerned, there must be a climate of mutual trust in order to enable them to settle their differences amicably without leading to litigation before the Court must come to begin a negotiation and compromise process. The Commission also pointed out that, on the one hand, the negotiations between the Commission and the Portuguese authorities were still ongoing and, on the other hand, there had been, or should be, exchanges of views and meetings to assess the impact of the dam project . The Commission concluded that disclosure of the requested documents would affect its ability to deal with the alleged infringement, as such disclosure could jeopardize an amicable settlement of the dispute with the Portuguese authorities before the case was referred to the Court of Justice. The Commission also took the view that "restricted access" within the meaning of Article 4 (6) of Regulation No 1049/2001 was not possible for the documents mentioned, since the exception alleged applied to the documents as a whole.

21 As regards any 'overriding public interest' within the meaning of the last sentence of Article 4 (2) of Regulation No 1049/2001, the Commission took the view that there was no such interest. Article 6 (1) of Regulation No 1367/2006, according to which an overriding public interest in disclosure is presumed if the information requested relates to emissions into the environment, does not apply to investigations which, as in the present case, relate to possible ones Refer to violations of Community law. The risk of a serious breach of the Habitats Directive does not constitute such an interest either, since the Court of Justice alone has jurisdiction to determine that the Member State concerned has breached its obligations under the EC Treaty. The dissemination of the documents requested would not bring any clarity until the Court of Justice had finally decided this question.

22 By letter of 7 January 2008, LPN asked the Commission, in accordance with Regulation 1049/2001, to forward the information contained in a letter from DG Environment of "22. November 2007 "mentioned" internal rules "in order to be able to" better examine and follow up "the procedure for handling the complaint.

23 On 18 January 2008, the date on which the present action was brought against the contested decision, DG Environment informed LPN that it would propose that the Commission discontinue the infringement complaint concerning the dam project , and asked LPN to provide any comments it believed to be relevant within one month of receiving this letter.

24 By letter of 6 February 2008 to DG Environment, LPN reiterated its request for access to the documents contained in the infringement file and for access to the Commission's “internal rules”, as set out in the letter from this Directorate-General of 9 December 2008. November 2007, which it is necessary to take note of in order to effectively exercise their right to be heard and to submit "sound opinions". In addition, LPN requested that the one-month response period only begin after it had received the requested clarifications and the requested documents.

25 By letter of 19 February 2008 to the Commission, LPN reiterated its request for access to the Commission's specific 'internal rules'.

26 on 27.In February 2008, LPN submitted a brief to the Commission in which it set out technical, formal and legal objections to the fact that its complaints procedure would be closed.

27 By e-mail dated March 4, 2008, LPN added clarifications to the comments made in the February 27, 2008 pleading.

28 By letter of 3 April 2008, the Commission essentially informed LPN that, firstly, at its meeting on 28 February 2008, it had decided not to pursue the complaint concerning the dam project, and, secondly, that the complainants were involved in proceedings relating to breaches of Community law did not have privileged access to the documents and would therefore have to invoke the general right of access provided for in Regulation 1049/2001 and, thirdly, since the Commission is not investigating the complaint, the third indent of Article 4 (2) The exception provided for in that regulation is no longer applicable, so that the requested documents can now be handed over to LPN, provided that they do not fall under another exception within the meaning of this regulation. To this end, the Commission attached a list of documents called "List of documents in the file". Finally, the Commission set out the reasons why it considered it advisable, with regard to Community law on environmental matters, to terminate the complaint procedure.

29 LPN then requested access to certain documents which were included in the "List of documents on file" sent by the Commission.

30 In an application filed at the Court Registry on May 9, 2008 and entered in the register under file number T-186/08, LPN brought an action in which, inter alia, the Court of First Instance. appealed against the Commission's decision of 28 February 2008 to terminate the complaint procedure.

31 On June 20, 2008, LPN was able to consult DG Environment's files and gain access to the content of some of the documents requested.

32 By letter of 11 July 2008, LPN again applied for access to the documents the content of which had not been made available to it or to which it had only had partial access.

33 By letter of 24 October 2008, file number SG.E.3 / MIB / psi D (2008) 8639 ('the decision of 24 October 2008'), the Commission first granted LPN access to the entire contents of 21 documents which were included in a list attached to this letter. It then granted her partial access to the content of 16 other documents from the above list. Finally, she refused her access to 10 other documents from this list (cf. Nos. 2.1 to 2.3 of the decision of October 24, 2008). The Commission based the refusal of access to certain documents or certain parts of documents on the basis of Art. 4 (3) subpara. 2 of Regulation No. 1049/2001 for the protection of the decision-making process, with the exception of certain passages of a document, with regard to which it also relied on the exception for the protection of judicial proceedings provided for in Art. Nos. 2.4.1 and 2.4.2 of the decision of October 24, 2008).

34 By letter of 7 November 2008, the Commission sent LPN two additional documents.

35 By order of 7 September 2009, LPN v Commission (T ‑ 186/08, not published in the Official Collection), the General Court dismissed the above paragraphs 30 as inadmissible, in so far as it related to the annulment of the Commission's decision of February 28, 2008, which terminated the proceedings relating to the complaint.

 Procedure and requests from the parties to the proceedings

36 LPN brought the present action by application lodged at the Court Registry on January 18, 2008.

37 By submissions received by the Court Registry on May 8, 19 and 20, 2008, the Kingdom of Denmark, the Republic of Finland and the Kingdom of Sweden requested to be used in the present proceedings in support of LPN's applications as Intervener to be admitted. By order of July 8, 2008, the President of the Third Chamber of the Court of First Instance allowed these interveners. The Republic of Finland submitted its statements in intervention on August 27, 2008, and the Kingdom of Denmark and Sweden submitted their statements in intervention on September 22, 2008. The Commission delivered an opinion on those statements in intervention on 5 February 2009.

38 LPN, supported by the interveners, applied for

- annul the contested decision and

- order the Commission to pay the costs.

39 In its defense, the Commission claims that

- dismiss the action and

- order LPN to pay the costs.

40 In a separate document received by the Court Registry on November 25, 2008, the Commission requests a declaration that “the present action has become devoid of purpose since [LPN] has lost its legal interest in relation to the documents disclosed ”, That“ the subject-matter of the present action has changed in relation to the documents refused ”and that“ under these conditions and in accordance with Article 113 of the Rules of Procedure, the main matter has been settled ”.

41 LPN and the interveners submitted observations on that application in due time.

42 In its response to the Commission's application for liquidation, LPN requests that the Commission, as part of measures of organization of procedure within the meaning of Article 64 of the Rules of Procedure of the Court of First Instance, be ordered to produce documents that have not yet been disclosed to LPN or only partially disclosed.

43 On the report of the rapporteur, the court (Third Chamber) decided to open the oral hearing.

44 By letter dated July 12, 2010, as part of measures of organization of procedure under Article 64 of the Rules of Procedure, the court asked the parties to produce certain documents and to reply in writing to written questions. The parties have complied with this request and have provided lists of all the documents requested, to which LPN has been granted full or partial access in the course of the proceedings, and have replied to these questions in a timely manner. In addition, the court asked all parties to the hearing to comment on the possible consequences of the judgments of the Court of Justice of 29 June 2010, Commission / Technische Glaswerke Ilmenau and Commission / Bavarian Lager (C ‑ 139/07 P and C ‑ 28/08 P, ECR 2010, I-0000 and I-0000).

45 At the hearing on October 5, 2010, the parties to the proceedings held oral hearings and answered the oral questions put by the court.

46 At the hearing, in response to questions from the General Court, LPN withdrew its request for an examination of the legality of the decision of October 24, 2008, as well as its third plea, that of failure to observe the time limit provided for in Article 8 (1) of Regulation No 1049/2001 was inferred, subject to the fact that, in its decision on costs, the court took into account the delay in the decision at issue. LPN has also agreed that the subject-matter of the dispute will be limited to the documents and extracts from documents to which it has not yet been granted access, provided that the Commission is charged the costs related to the part of the dispute stand on which the court will no longer rule. These statements have been recorded in the minutes of the meeting.

47 As a result of the requests for rectification of the minutes of the meeting made by the Republic of Finland and LPN and received by the Court Registry on October 19 and 20, 2010, the Court decided to suspend the hearing by order of November 16, 2010 to reopen. After hearing the other parties to the proceedings on the requests mentioned, the court made the requested corrections to the minutes of the meeting and the hearing was closed.

 Legal appreciation

 To the application for execution

Arguments of the parties to the proceedings

48 The Commission points out that, by letter of 3 April 2008, it informed LPN that the ground for refusal within the meaning of the third indent of Article 4 (2) of Regulation No 1049/2001 no longer applies and that it is aware of it Sent a list of the documents contained in the file of the infringement proceedings so that LPN could exercise its right of access to the documents. The Commission also submits that LPN subsequently had access to certain requested documents and made a confirmatory application for the documents to which it was refused access in whole or in part. In response to this request, it issued the decision of October 24, 2008. Finally, by letter of 7 November 2008, it sent LPN two further documents.

49 The Commission concludes, first, that the subject-matter of the present action has changed in view of the fact that access was granted to a large part of the documents requested and that the grounds for refusal in relation to the documents to which access was fully or was partially refused, are no longer identical to those cited in the contested decision. LPN consequently lost its legal interest in having that decision annulled in relation to those documents or parts of documents that had been disclosed, since such annulment would not bring it any additional advantage.

50 LPN, supported by the interveners, applied for the application to be dismissed.

51 LPN essentially submits that the documents disclosed were sent to it late and for insufficient reasons, namely that the infringement proceedings had ended, while access to the documents was necessary during those infringement proceedings in order for it to express its point of view pertinent could have asserted and avoided the present action. In so far as it was aware of the content of those documents, however, it did not raise any objection to the fact that the subject-matter of the present dispute was limited to the documents not yet or only partially disclosed, provided that the Commission was ordered to pay the costs incurred with the Part of the legal dispute that has become irrelevant. At the hearing, LPN confirmed that it accepted such a limitation of the subject-matter of the dispute, which was recorded in the minutes of the hearing (see paragraph 46 of this judgment).

52 With regard to the documents to which access was completely or partially refused, LPN maintains its application for annulment of the contested decision. In that regard, it denies that the subject-matter of the legal dispute and the reasons for refusal have changed. The Commission cannot, in the course of the proceedings, change the grounds for refusal with the sole aim of preventing checks on the legality of the contested decision. She also claims that she still has an interest in receiving the undisclosed or partially disclosed documents and a duly reasoned answer regarding the reasons for which she was refused access to the documents during the infringement procedure. It takes the view that in the present case the ground for refusal, which relates to the protection of the purpose of investigative activities and which was relied on in the contested decision, was not given.

53 In any event, the Commission must bear the costs, on the one hand, because it failed to give proper reasons for the refusal to disclose the requested documents during the infringement proceedings and, on the other hand, because it is fully responsible for the situation which gave rise to the present interim dispute .

54 The Republic of Finland denies that the subject-matter of the dispute changed after the decision of 24 October 2008 was adopted. The mere fact that the grounds for refusal relied on in that decision differ from the grounds for refusal on which the contested decision is based does not lead to such a change, nor to the action becoming devoid of purpose within the meaning of Article 113 of the Rules of Procedure. According to the Kingdom of Sweden, the fact that the contested decision became 'ineffective' during the course of the proceedings does not oblige the Court to find that the action has become devoid of purpose as long as that decision has not been formally withdrawn. In those circumstances, LPN still has a legitimate interest in having the legality of the contested decision checked and annulled. The interveners make it clear that the Commission cannot change the subject-matter of the dispute by adopting a second decision containing new or amended reasons, since such an approach does not affect the validity of the original decision and is contrary to the principle of legal certainty. If such an approach were allowed, an institution could remove the grounds of an act challenged by the Court of First Instance by later adopting other acts on the same subject but based on different grounds.

Appreciation by the court

55 The Commission bases its request for termination on two main arguments. On the one hand, the present action has lost its subject matter and LPN has lost its interest in legal protection, since the action relates to documents which were made known to it in the course of the proceedings. Second, as a result of the decision of October 24, 2008, the subject-matter of the present action changed in so far as that decision was based on two new grounds for refusal which differ from the one put forward in support of the contested decision.

56 According to established case law, the subject of the dispute, as it was determined when the action was brought, as well as the interest in legal protection may not cease to exist until the court decision has been issued, since otherwise the legal dispute is essentially settled; this presupposes that the action can result in an advantage for the party who brought it (judgment of the Court of Justice of 7 June 2007, Wunenburger v Commission, C ‑ 362/05 P, ECR 2007, I ‑ 4333, Paragraph 42; judgment of the General Court of 24 September 2008, Reliance Industries v Council and Commission, T ‑ 45/06, ECR 2008, ECR II ‑ 2399, paragraph 35).

57 Insofar as LPN was granted access to documents and extracts from documents in the course of the proceedings, it must be assumed that the legal dispute has become irrelevant and that the main matter has therefore been settled (cf. in this sense the judgment of the court of 23 November 2004, Turco v Council, T ‑ 84/03, ECR 2004, II ‑ 4061, paragraphs 28 to 30).

58 With regard to documents not yet or only partially disclosed to the LPN, it should be noted that the mere fact that the Commission adopted a new decision on access to some of the documents to which the contested decision related was not in itself allows the conclusion that the legal dispute has become irrelevant.

59 Even if it is assumed that by adopting the decision of 24 October 2008 the Commission partially deprived the contested decision of its legal effect, the subject-matter of the dispute persists for the reason that the Commission did not formally withdraw the contested decision (see, to that effect, Wunenburger v Commission, paragraph 56 above, paragraphs 47 to 49), as it admitted in its answer to a written question from the Court of First Instance, so that in principle that decision continues to produce binding legal effects.

60 With regard to the lapse of the legal protection interest, it should also be pointed out that, according to settled case-law, the plaintiff may still have an interest in the annulment of a legal act in order to prevent the infringement allegedly inherent in the legal act from recurring in the future. Such an interest in legal protection follows from Art. 266 (1) TFEU, according to which the bodies responsible for the act declared null and void must take the measures resulting from the judgment. However, this interest in legal protection can only exist if the alleged infringement can be repeated in the future, irrespective of the circumstances of the case which led to the initiation of the action (see, to that effect, Wunenburger v Commission, paragraph 56 above, para. 50 to 53 and the case-law cited; Reliance Industries v Council and Commission, paragraph 56 above, paragraph 43).

61 In the present case, it should be noted, on the one hand, that in the contested decision the Commission adopted a position of principle on the refusal of access to all documents in the file of pending infringement proceedings in the field of environmental law and, on the other hand, that LPN is an association who is mainly dedicated to environmental protection and actively participates in decision-making processes in this area. As a result, as the Commission admitted at the hearing, there is a sufficiently concrete risk, independent of the circumstances of the individual case, that LPN will in future become involved in similar situations, i. H. when LPN asks the Commission for access to documents relating to environmental information related to an ongoing infringement procedure, it is faced with the same alleged infringement.

62 It must be concluded from this that LPN retains an interest in legal protection in relation to the contested decision in so far as it relates to the refusal of access to the relevant documents on the basis of the third indent of Article 4 (2) of Regulation No 1049/2001 referred to the exception provided, which aims in particular to protect the purpose of inspection, investigation and audit activities, as it is to be understood in the light of the relevant rules in Regulation No. 1367/2006.

63 In view of this risk of repetition of the alleged infringement, it is irrelevant that, in the event that the contested decision is annulled, the Commission is not necessarily obliged under Article 266 (1) TFEU to give LPN access to the documents that have not yet been or only partially disclosed because the decision of October 24, 2008 can still be invoked because of the validity and non-appealable nature of the exception regarding the protection of the decision-making process. Indeed, as the Commission itself admitted at the hearing, in such a case it would be required to re-examine the request for access to the documents in question with a view to any new factual or legal aspects.

64 In view of the foregoing considerations, the Commission's application for liquidation must therefore be rejected in so far as it relates to the documents in question, which have not yet been or only partially transmitted to LPN.

 Summary of the grounds for invalidity

65 Now that the subject-matter of the present dispute has been limited at the hearing, it is necessary to examine two grounds for invalidity, which were essentially relied on by LPN.

66 LPN submits, on the one hand, that the contested decision infringes several provisions of Regulation No 1367/2006, and in particular Article 6 thereof.

67 Second, LPN claims that the exception in the third indent of Article 4 (2) of Regulation No 1049/2001, which concerns in particular the protection of the purpose of investigative activities, has been incorrectly applied.

68 The latter plea consists of three parts. First, LPN alleges that the Commission unlawfully failed to carry out a specific and individual investigation and justify whether and to what extent this exception applies to each of the not yet disclosed documents to which access has been requested. Second, the Commission erroneously failed to check whether at least partial access to the above-mentioned documents should be granted. Third, the Commission misjudged the public interests, as claimed in the request for access, which required the disclosure of those documents.

69 In view of the overlap between the first and second pleas, the Court of First Instance considers it appropriate to examine them together.

 The first and second plea in law: Infringement of Regulation No 1367/2006 and the third indent of Article 4 (2) of Regulation No 1049/2001

Arguments of the parties to the proceedings

- On the first plea in law: infringement of Regulation No 1367/2006

70 As regards the relevant provisions of Regulation No 1367/2006, LPN takes the view that the documents to which access was requested contained information which it considered to be of interest in the light of the environmental interests which it was in the framework of defend and protect the dam project would have to be announced. Even if, according to Article 6 of the regulation, an overriding public interest, which allows the exemptions asserted to be overridden, cannot be presumed in the present case, the Commission is not yet relieved of its obligation to examine specifically whether at least one there is public interest in the announcement. Contrary to the requirements resulting from Article 6 (1) sentence 2 of the regulation, the Commission “automatically” applied the provisions of Regulation No. 1049/2001 and failed to fulfill its obligation to disclose any grounds for refusal based on Article 4 (2) This ordinance should be interpreted narrowly, taking into account the public interest in the disclosure.

71 It follows that the contested decision is for breach of the strict interpretation requirement of Article 4 (2), third indent, of Regulation No 1049/2001, which follows from Article 6 (1) of Regulation No 1367/2006 to be declared null and void.

72 In its reply, LPN contests the Commission's view that Regulation No 1367/2006 does not apply to the present case. The Commission itself implicitly admitted that it had not checked whether the documents concerned contained information on emissions into the environment. In interpreting the abovementioned regulation, it therefore committed an error of law.

73 The general rules of access established by Regulation No 1049/2001 do not have the effect of disregarding the more specific rules laid down in Regulation No 1367/2006 on access to information, public participation in decision-making and access to justice in environmental matters would have to stay. According to LPN, contrary to what the Commission claims, the term "environmental information" within the meaning of recital 8 of Regulation 1367/2006 should be interpreted broadly; that term should be understood in the light of the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters ('the Aarhus Convention'), signed on behalf of the European Community Council Decision 2005/370 / EC of 17 February 2005 (OJ L 124, p. 1).

74 LPN is of the opinion that, under Article 3 of Regulation No 1367/2006, only the form in which that right of access is exercised and the manner in which the information is disclosed by the Commission is governed by Regulation No 1049 / 2001 would be regulated. In applying that regulation and, in particular, the exceptions which can be used to justify the rejection of a request for environmental information, the Commission must therefore take into account the more specific conditions laid down in Regulation No 1367/2006. That view is confirmed by recital 15 of that regulation, which expressly refers to the exceptions provided for in Regulation No 1049/2001, which apply subject to the more specific provisions of Regulation No 1367/2006 on requests for access to environmental information be.

75 In addition, even if Article 6 (1) sentence 1 of Regulation No. 1367/2006 - with regard to the exceptions provided for in Article 4 (2) first and third indents of Regulation No. 1049/2001 - “Investigations, in particular those which have as their subject possible infringements of Community law ', excluded from its scope, the second sentence of the latter clearly stipulates that the reasons for the refusal based on the other exceptions provided for in Article 4 of Regulation No 1049/2001 are narrow should be interpreted, taking into account the public interest in the disclosure and any reference to the requested information on emissions into the environment. Thus, on the one hand, even if the presumption of overriding public interest does not apply, the Commission has to examine specifically whether there is a public interest and, on the other hand, if the information requested relates to emissions into the environment, as in the present case, the reasons for refusal to be interpreted narrowly.

76 In that connection, LPN submits that the Commission cannot successfully rely on the above paragraph. 19 cited judgment Petrie and Others v Commission, which was issued before the entry into force of Regulations Nos. 1049/2001 and 1367/2006. LPN clarifies that the Code of Conduct for public access to Council and Commission documents of 6 December 1993 (OJ L 340, p. 41, hereinafter: Code of Conduct), implemented by Council Decision 93/731 / EC of 20 December 1993 December 1993 on public access to Council documents (OJ L 340, p. 43) and Commission Decision 94/90 / ECSC, EC, Euratom of 8 February 1994 on public access to documents before the Commission ( OJ L 46, p. 58), which preceded these regulations, does not require such a specific and reasoned assessment of the circumstances in which access to documents could impair the proper conduct of an investigation, and does not even provide for a overriding public interest can take precedence over the interest in protecting the purpose of investigative activities. Finally, unlike the situation set out in paragraph 1 above, Petrie and Others v Commission cited in 19, when the code of conduct was applied, the 'author's rule' applied to all but two of the properly identified documents and in the present case the Commission did not even ask the Portuguese authorities whether the disclosure of the documents originating from their area are possible.

77 LPN submits in this regard that in the present case, when Regulation No 1367/2006 is applied, even information related to an investigation is disclosed, taking into account the results of the public interest test to be carried out in accordance with Article 6 of that regulation could.

78 The interveners submit, in essence, that the Commission infringed Article 6 (1) of Regulation No 1367/2006 in adopting the contested decision.

79 According to the Republic of Finland and the Kingdom of Sweden, the Community legislature, in Regulation No 1367/2006, emphasized the importance of public access to environmental information as opposed to the general rules on access under Regulation No 1049/2001. Therefore, Article 6 of Regulation No 1367/2006, even if it is not directly applicable to infringement proceedings such as the one at issue, contains specific provisions on how, in the context of the application of Regulation No 1049/2001, the particularly important general interest is addressed the disclosure of environmental information is to be assessed, in particular in the area of ​​emissions into the environment.

80 According to the Kingdom of Denmark and the Republic of Finland, therefore, when examining an application for access to a document containing environmental information, an institution must take into account the objectives of Regulation No 1367/2006, as interpreted in the light of the Aarhus Convention which stressed the particular importance and the need to improve individual access to the information referred to above compared to the access provided by the general provisions of Regulation 1049/2001, since such access would contribute to a large extent to the protection of the environment. The Commission must therefore take these principles into account when examining and assessing the exceptions provided for in Article 4 of Regulation No 1049/2001, including when assessing an (overriding) public interest in disclosure, in order to ensure the greatest possible transparency for Union citizens .

81 The Republic of Finland and the Kingdom of Sweden contest the Commission's view that the last sentence of Article 6 (1) of Regulation No 1367/2006 merely affirms the principle that the exceptions in Regulation No 1049/2001 are strictly interpreted and applied would have to be. That sentence also means that when examining the relevant information, the institution must, in particular, take into account these strict interpretation requirements and the public interest in obtaining information on emissions into the environment. Even if the form of weighing up the conflicting interests had to take place solely in the context of Regulation No 1049/2001 in the light of Regulation No 1367/2006, all the greater weight should therefore be attached to the general interest in increased transparency with regard to environmental information.

82 The Commission contends that the first plea should be rejected.

- On the second plea in law: infringement of the third indent of Article 4 (2) of Regulation No 1049/2001

83 LPN, in the context of the first part of the second plea, which is based on the lack of a specific examination of the documents in question, challenges the validity of what it considers to be vague and general reasons given by the Commission in the contested decision to justify its rejection Has submitted a request for access. In accordance with the obligation imposed on it in Article 6 (1) of Regulation No 1367/2006, the Commission must specifically examine each of the documents in question in order to assess whether they are subject to the provisions of Article 4 (2), third indent, of Regulation No 1367/2006. 1049/2001, which it did not do in the present case, contrary to the requirements resulting from the case law. If, in addition, all documents relating to inspection, investigation and audit activities were covered by this exception as long as it was not yet clear what had to be done on the basis of these activities, this would amount to access to the above-mentioned documents an incalculable, future and possibly distant future event would be linked, which would depend on the discretion of the Commission and on the speed and diligence of the various bodies.

84 Furthermore, it is wrong to take the view that disclosure of all the relevant documents would reduce the Commission's ability to deal with the infringement and, if necessary, to arrive at an amicable solution. In the opinion of LPN, on the contrary, their request for access aims “to help the Commission to find an agreement that will ensure compliance with the strict Community environmental rules that are binding on both the Member States and the Commission ". The Commission did not explain the reasons why disclosure of the documents in question might jeopardize such an amicable settlement with the Portuguese authorities. The Commission could not justify the refusal of the request for access on the basis of purely hypothetical and unfounded dangers.Furthermore, the example of the report of a visit in July 2007 by representatives of DG Environment to the area where the dam was to be built on the Sabor River, in which LPN had participated, shows that there was no such risk in the present case . The Commission is wrong to refer to the above in para. 19, cited judgment in Petrie and Others v Commission, since it came at a time when Regulation No 1367/2006 was not yet in force and was largely based on the 'copyright rule' which was not covered by Regulation No 1049/2001 according to which the Commission was relieved of its duty to examine documents produced by third parties. In the present case, the Commission was obliged to carry out this check for each document individually, which it did not do. Any other interpretation runs counter to the requirements established by the case-law for Article 4 (5) of that regulation.

85 In connection with the second part of the second plea, LPN submits that the Commission's refusal to grant it at least partial access to the documents in question is contrary to the principle of proportionality.

86 It is apparent from the contested decision that the Commission did not carry out a specific examination of the information contained in those documents, confining itself to quoting the letter of formal notice and the reply from the Portuguese authorities, without considering their specific content of Article 4 (2) third indent of Regulation 1049/2001. In addition, the Commission erroneously referred to very general categories of documents in the file, without at least specifying their number, and referred to alleged "reasoned opinions requested" of which it was not aware. A specific and individual examination of the documents mentioned was essential in order to determine whether partial disclosure was possible.

87 In its reply, LPN takes the view that the Commission breached the principles of cooperation, transparency and proportionality.

88 In the third part of its second plea in law, LPN challenges the finding that there is no public interest justifying disclosure of the documents in question, because the environmental damage in question can only be determined by the Court of Justice if the Commission is referred to it. First of all, that finding is incompatible with the fundamental right of every individual to take part in proceedings relating to the environment, as recognized in Regulation No 1367/2006. The public interest, which is aimed in particular at the protection of the environment, does not require prior confirmation by the judge of the European Union. Finally, that finding misunderstood the fact that the Commission had given LPN a right to comment before a final decision was taken on the infringement procedure initiated as a result of its complaint. In that regard, LPN submits that the documents to which it applied for access enabled it to exercise more pertinently its right to be heard in this context for the purpose of protecting the public environmental interests affected by the dam project.

89 The hypothesis that the Court of Justice found a breach of Community law by the Portuguese Republic is also irrelevant and cannot affect the right of every individual to participate specifically and preventively in environmental protection, especially since the negative environmental consequences of such a breach of Community law in the In retrospect, the Member State could no longer make amends.

90 According to the interveners, the Commission incorrectly interpreted and applied the exception provided for in Article 4 (2), third indent and (6) of Regulation No 1049/2001, to protect the purpose of inspection, investigation and audit activities.

91 An institution must assess in each individual case whether a document falls under the exceptions listed in Article 4 of Regulation No 1049/2001. This specific and individual check must in principle be carried out for every piece of information that is contained in each of the documents mentioned in the application for access and must emerge from the reasons for the decision. The statement of reasons for the contested decision does not show that the Commission carried out such a specific and individual examination of the content of the documents concerned. That decision did not even identify the documents which the Commission had refused to disclose, since the list of those documents was only communicated to LPN during the course of the proceedings. The Kingdom of Sweden adds that drawing up that list does not, in any event, amount to examining the question of whether the disclosure of all or part of each of these documents would actually and specifically affect a protected interest.

92 Contrary to what the Commission claims, the conditions under which it could exceptionally be relieved of its obligation to examine the documents in question specifically and individually, namely the constellations in which access is obviously to be refused or granted, are not met in the present case. The individual and specific examination of the documents to which access has been requested is a fundamental principle of interpretation of Regulation No 1049/2001, from which deviations can only be made for compelling reasons which the Commission has not relied on. The mere fact that the documents in question relate to an ongoing investigation is not in itself sufficient to justify the application of the exception referred to in the third indent of Article 4 (2) of that regulation.

93 The interveners contend that, pursuant to Article 6 (1) of Regulation No 1367/2006 (see paragraphs 80 and 81 of this judgment), the exceptions provided for in Article 4 of Regulation No 1049/2001 must be strictly interpreted and applied be. According to the Kingdom of Denmark and the Kingdom of Sweden, the principle of transparency aims to ensure, through the right of access to documents, that the decisions of the institutions are taken as openly as possible and that the institutions enjoy greater legitimacy and responsibility vis-à-vis the citizen (recitals 1 to 4 of Regulation 1049/2001), and thus determines the interpretation of both the general principles and the individual provisions of Regulation 1049/2001, for all the activities of these institutions, including the infringement proceedings initiated by the Commission .

94 In addition, the risk of the protected interest being impaired must be reasonably foreseeable and not purely hypothetical. More precisely, the disclosure of the documents in question must in fact be such as to jeopardize the protection of the purpose of the inspection, investigation and audit activities relating to the infringements in question. The reasoning for the contested decision, however, relates generally to the preliminary proceedings in an ongoing infringement procedure and to the Member States' interest in ensuring confidentiality without the reasoning clarifying the reasons for which the investigative activities in question are carried out, specifically by disclosing the contents of each of the documents mentioned would be impaired. These reasons amounted to the fact that all infringement proceedings had to be conducted in absolute secrecy at least until the end of their administrative part, which was incompatible with the aim of Regulation No 1049/2001 to ensure the greatest possible access to documents. That assessment is confirmed by the fact that the author's rule has been abolished, since the aim of the Community legislature was to limit the author's power to prevent the dissemination of a document he had penned by expressing his interest in it in the abstract make sure the confidentiality of the content of the document is maintained. The Commission has therefore not fulfilled its obligation to examine specifically and individually each of the documents in question in order to determine whether or not their content is confidential, and consequently those in Article 4 (2), third indent, of Regulation No 1049/2001 to interpret and apply the provided exception narrowly. The Kingdom of Denmark adds that, in doing so, the Commission has also failed to comply with its obligation to state reasons under that regulation.

95 Furthermore, according to the interveners, the Commission infringed Article 4 (6) of Regulation No 1049/2001, which requires it to assess whether the interest protected by the exception in question justifies access to the whole or merely to specific access To refuse parts of the document in question, while the remaining parts of the said document would have to be disseminated. In the absence of a specific and individual examination of the documents in question, however, the Commission necessarily failed to recognize the possibility of disclosing part of their content. In that regard, the Kingdom of Denmark and the Kingdom of Sweden oppose the view that the content of all documents and all information relating to infringement proceedings must be treated in general and absolutely confidential. Even assuming that these documents contained confidential information, the Commission should have examined specifically whether any part of the documents referred to concerned non-confidential information to be separated from them, which could be disseminated.

96 The interveners submit that, in the present case, the Commission also failed to recognize the existence of a public interest in disclosure of the documents in question. Contrary to the requirements recognized in the case-law, the Commission did not, in the contested decision, weigh up the need to protect investigative activities, on the one hand, and the public interest in the dissemination of environmental information, the importance of which is underlined by Regulation No 1367/2006, on the other. Such a weighing should have led to the result that the interest in disclosure outweighs the interest in protecting confidentiality. The possible inapplicability of the presumption that there is an overriding public interest within the meaning of Article 6 (1) of the aforementioned regulation does not relieve the Commission of its obligation to examine whether there is such an overriding public interest in disclosure. That is all the more true since, in the context of that balancing act, the Commission must take into account, on the one hand, the objectives of Regulation No 1367/2006 and the Aarhus Convention, which give particular weight to public access to environmental information (see paragraphs 80 and 81 above Judgment) and, on the other hand, it did not examine whether the disclosure of the information contained in each of the documents in question could undermine the objectives protected by the third indent of Article 4 (2) of Regulation No 1049/2001.

97 Finally, according to the Republic of Finland, the Commission could not content itself with examining an overriding public interest in pursuing a serious breach of the Habitats Directive, but rather had to examine ex officio all the circumstances which might have been relevant in that regard . The Commission therefore incorrectly applied Article 4 (2) of Regulation No 1049/2001 and Article 6 (1) of Regulation No 1367/2006.

98 The Commission contends that the second plea should be rejected.

Appreciation by the court

- Preliminary remarks

99 The first and second pleas relate essentially to the interpretation and application of the exception, which, inter alia, arise. relates to the protection of the "purpose of ... investigative activities" as provided for in Article 4 (2), third indent of Regulation No. 1049/2001 in conjunction with Article 6 (1) of Regulation No. 1367/2006.

100 In this regard, it should first be pointed out that in the context of an action for annulment brought under Art. 230 EC, the legality of the contested legal act must be assessed depending on the legal and factual aspects that existed at the time it was issued (judgment of the court of 11 March 2009, Borax Europe v Commission, T ‑ 121/05, not published in the Official Collection, paragraph 48).

101 At the time the contested decision was adopted, infringement proceedings under Article 226 EC were in progress against the Portuguese Republic in the present case. As a result, the Commission could in principle invoke the exception provided for in Article 4 (2), third indent of Regulation No. 1049/2001, which relates to the protection of the purpose of investigative activities (cf. July 2006, Franchet and Byk v Commission, T ‑ 391/03 and T ‑ 70/04, ECR 2006, ECR II ‑ 2023, paragraph 113, and of 12 September 2007, API v Commission, T ‑ 36/04 2007 ECR II-3201, paragraphs 121, 133 and 134).

102 If it refuses access to the documents in question on the basis of that exception, the Commission must nevertheless, on the one hand, fulfill its obligation to check whether those documents in their entirety actually fall under that exception and, on the other hand, any overriding public interests in their disclosure and to properly weigh up the interests in protecting your confidentiality against each other (see, in this sense, judgment of the Court of Justice of 1 July 2008, Sweden and Turco v Council, C ‑ 39/05 P and C ‑ 52/05 P, ECR 2008, I ‑4723, paragraphs 33 et seq. And judgment of the General Court of 13 April 2005, Verein für Konsumenteninformation v Commission, T ‑ 2/03, ECR 2005, II-1121, paragraphs 69 et seq.).

103 Since LPN and the interveners primarily complain that the Commission did not carry out a specific and individual examination of the documents in question and, in that context, did not take sufficient account of the provisions of Regulation No 1367/2006, it is first necessary to examine the extent to which the latter regulation is applied modify the scope of the audit obligation incumbent on the Commission under Regulation 1049/2001.

104 In that regard, it should be noted that the contested decision was taken both on the basis of Regulation No 1049/2001 and on the basis of Regulation No 1367/2006.

- On the impact of Regulation 1367/2006 on the scope of the Commission's audit obligation

105 From the 8th and 15th recitals in the preamble to Regulation No. 1367/2006, and in particular from the wording “subject to the more specific provisions of this Regulation on requests for environmental information” in conjunction with Articles 3 and 6 of that regulation, it follows that that this regulation is a lex specialis compared to Regulation No. 1049/2001 by replacing, modifying or clarifying certain provisions of this Regulation when the request for access concerns "environmental information" or information that "relates ... to emissions into the environment".

106 First, it is apparent from Article 3 of Regulation No 1367/2006 that Regulation No 1049/2001 is the regime applicable to all requests for access to environmental information held by the institution concerned.

107 Second, with regard to the right of access to documents containing such information, the second sentence of recital 15 and the second sentence of Article 6 (1) of Regulation No 1367/2006, which are largely identical in their wording, confirm that Principle according to which every exception to a subjective right or a general principle of Union law, including the right of access, which Article 255 EC in conjunction with Regulation No. 1049/2001 provides, must be strictly interpreted and applied (cf. in this sense judgments of the Court of Justice of 15 May 1986, Johnston, 222/84, ECR 1986, 1651, paragraph 36, and Sweden and Turco v Council, cited in paragraph 102 above, paragraph 36). This obligation to strictly interpret the information contained in Regulation No. 1049/2001 for the right of access to documents containing environmental information is reinforced on the one hand by the fact that the institution concerned must take into account the public interest in the disclosure of such information and by reference to whether this information relates to emissions into the environment, and on the other hand by the fact that Regulation 1049/2001 does not contain any relevant clarifications for the application of the exceptions mentioned in this area.

108 Thirdly, Article 6 (1) of Regulation No 1367/2006 does not provide the same thing as Article 4 (2a). E. of Regulation No 1049/2001, according to which the institution concerned must take into account any overriding public interest in disclosure, but restricts itself to modifying and clarifying the conditions under which that body examines whether there is an overriding interest there is a public interest in dissemination in the event of a request for access to documents containing environmental information. For example, Article 6 (1) sentence 1 of Regulation No. 1367/2006 contains a legal presumption according to which the dissemination - except when this information relates to an investigation and in particular to an investigation that has possible violations of Community law as the subject matter - there is an overriding public interest if the information requested relates to emissions into the environment. As LPN and the interveners submit, it follows that even if that legal presumption does not apply to documents relating to investigations initiated in the context of infringement proceedings, that provision does not absolve the Commission of its duty, in each individual case Any overriding public interests in the dissemination, especially those that are related to environmental information in a wider sense than that of "emissions into the environment", must be taken into account and the weighing required by case law must be taken into account (cf. in this sense the judgment in Sweden and Turco v Council, cited in paragraph 102 above, paragraphs 44, 45 and 67).

109 In the light of those considerations, it is necessary to examine whether the Commission has fulfilled its obligation in the present case to examine whether the documents in question are in fact entirely subject to the provisions of the third indent of Article 4 (2) of Regulation No 1049/2001 in conjunction with Article 6 (1) of Regulation No. 1367/2006 were included.

- Regarding the requirements applicable to the Commission's duty to examine

110 Against the background that every exception to the right of access is to be interpreted and applied strictly according to established case law, the mere fact that the requested document relates to an investigation activity within the meaning of Article 4 (2), third indent of Regulation No. 1049/2001, do not justify the application of that exception, since it only applies if disclosure of the documents concerned may in fact jeopardize the protection of the purpose of the Commission's investigation into the infringements in question (see, to that effect, the Franchet and Byk judgments, paragraph 101 above cited, paragraphs 105 and 109, and API v Commission, cited in paragraph 101 above, paragraph 127). The risk of a protected interest being impaired must be reasonably foreseeable and must not be purely hypothetical (Sweden and Turco v Council, cited in paragraph 102 above, paragraphs 43 and 63). Furthermore, as is clear from its wording, the purpose of this exception is not to protect investigative activities as such, but to protect the purpose of those activities, which in infringement proceedings is to encourage the Member State concerned to comply with Community law (cf. See API v Commission judgment, cited in paragraph 101 above, paragraphs 127 and 133 and the case-law cited; see also the Opinion of Advocate General Kokott in Commission v Technische Glaswerke Ilmenau, paragraph 44 above, Nos. 109 to 115).

111 In the context of infringement proceedings under Article 226 EC, the Commission can therefore, in principle, refuse access to that document if the disclosure of a document could damage the proper conduct of these infringement proceedings and in particular the negotiations between it and the Member State concerned, as its disclosure would undermine the protection of the purpose of investigative activities, namely to encourage the Member State to comply with Community law.

112 As is also recognized in the case law, when an institution is requested to circulate a document, it must also check in each individual case whether that document is covered by the exceptions to the law referred to in Article 4 of Regulation No 1049/2001 access falls (Sweden and Turco v Council, paragraph 102 above, paragraph 35). On the one hand, it has been made clear that the examination of an application for access to documents must be specific and individual and must relate to the content of each document requested with the said application, and on the other hand, that this examination is based on the reasoning for the decision of the institution in With regard to all the exceptions mentioned in Article 4 (1) to (3) of the regulation, on which this decision is based, must be clear (see, to that effect, the judgment of the General Court, Verein für Konsumenteninformation v Commission, cited in paragraph 102 above, para. 69 to 74; see also the Opinion of Advocate General Kokott in Commission v Technische Glaswerke Ilmenau, cited in paragraph 44 above, points 73 to 80).

113 However, there are several exceptions to the Commission's duty to examine specifically and individually the documents to which access has been requested.

114 Since the specific and individual examination which the institution must in principle carry out in response to an application for inspection of the file based on Regulation No 1049/2001 is intended, as has been decided on several occasions, to enable the institution concerned to assess the extent to which a Exception to the right of access is applicable and whether there is the possibility of partial access, such a check may be dispensable if, due to the special circumstances of the case in question, it is obvious that access should be denied or, conversely, granted. This could be the case in particular if certain documents are obviously fully covered by an exception to the right of access or are obviously fully accessible or if they have already been specifically and individually examined by the Commission under similar circumstances (judgments of the Association for Consumer Information V Commission, paragraph 102 above, paragraph 75, and API v Commission, paragraph 101 above, paragraph 58).

115 In addition, it has been recognized for Recht that the institution concerned is free to base the negative decision on general presumptions which may apply to certain categories of documents, since similar general considerations apply to requests for the disclosure of documents of the same type may apply, provided that the institution ascertains in each individual case whether the general considerations that normally apply to a particular type of document actually apply to the document in question, the disclosure of which is requested (see, in this regard, Sweden and Turco v Council, cited in paragraph 102 above, paragraph 50).

116 Furthermore, contrary to what LPN and the intervener claim, the recitals and the provisions of Regulation No 1367/2006 contain, even if they reaffirm the principle that all the exceptions to the right of access provided for in Article 4 of Regulation No 1049/2001 255 EC are to be interpreted narrowly if the request for access relates to environmental information (see paragraphs 105 to 108 of this judgment), nothing which would allow the conclusion that the general considerations in para. 114 and 115 of this judgment would not apply to a request for access to environmental information.

117