14 June 2023 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Standing Committee for Plants, Animals, Food and Feed – Individual positions of the Member States – Refusal to grant access – Article 4(3) of Regulation No 1049/2001 – Exception relating to protection of the decision-making process – Comitology – Regulation (EC) No 1925/2006)

In Case T‑201/21,

Covington & Burling LLP,

Bart Van Vooren,

represented by P. Diaz Gavier, lawyer,

applicants,

European Commission,

represented by C. Ehrbar and A. Spina, acting as Agents,

defendant,

THE GENERAL COURT (Fifth Chamber),

composed, at the time of the deliberations, of D. Spielmann, President, U. Öberg (Rapporteur) and R. Mastroianni, Judges,

Registrar: V. Di Bucci,

having regard to the written procedure,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

1By their action based on Article 263 TFEU, the applicants, Covington & Burling LLP and Mr Bart van Vooren, seek the annulment of the implied decision of the European Commission of 12 March 2021 and of confirmatory decision C(2021) 2541 final of the Commission of 7 April 2021 (‘the confirmatory decision’), by which their application for access to the documents relating to the voting of the Member States in a comitology procedure concerning the amendment of Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards botanical species containing hydroxyanthracene derivatives was refused.

Background to the dispute

2On 4 December 2020, the applicants submitted via the Commission’s online portal an application for access to documents containing the votes of 22 Member States in the Standing Committee on Plants, Animals, Food and Feed – General Food Law Section (‘the PAFF Committee’). Those votes were cast in favour of the draft Commission regulation amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards botanical species containing hydroxyanthracene derivatives (‘the draft amending regulation’), which led to the adoption of Commission Regulation (EU) 2021/468 of 18 March 2021 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards botanical species containing hydroxyanthracene derivatives (OJ 2021 L 96, p. 6; ‘the regulation at issue’).

3On 11 January 2021, the Commission’s Directorate-General (DG) for Health and Food Safety sent by letter to ‘Mr Bart Van Vooren Covington & Burling LLP’ a reply to the application for access to documents of 4 December 2020.

4In that letter, the Commission indicated that 21 documents (‘the requested documents’) had been identified as falling within the scope of the request. Access to those documents was refused on the basis of the exception relating to the protection of the decision-making process provided for in the second subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

5By email of 29 January 2021, Mr Van Vooren made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 in response to the initial negative reply.

6On 15 February 2021, the Commission informed the applicants, in an email addressed to Mr Van Vooren, that the time limit prescribed for the adoption of a confirmatory decision had been extended by a further 15 working days, namely until 12 March 2021.

7On 10 March 2021, the Commission sent a further email to the applicants, indicating that it would not be able to adopt a confirmatory decision within the extended time limit.

Procedure and forms of order sought

8Following the bringing of the present action for annulment of the Commission’s implied decision of 12 March 2021 refusing access to the requested documents, the Commission adopted, on 7 April 2021, the confirmatory decision and notified it to Mr Van Vooren. In that decision, the Commission confirmed its refusal to grant access to the requested documents, invoking the exception relating to the protection of the decision-making process, in accordance with the second subparagraph of Article 4(3) of Regulation No 1049/2001. In addition, it relied on the exception relating to the protection of privacy and the integrity of the individual, provided for in Article 4(1)(b) of that regulation, on the basis of which it refused to grant access to the personal data contained in the requested documents.

9By separate document lodged at the Court Registry on 12 April 2021, the applicants modified the application, pursuant to Article 86 of the Rules of Procedure of the General Court, to take account of the adoption of the confirmatory decision.

10The applicants claim that the Court should:

–annul the Commission’s implied decision of 12 March 2021 and the confirmatory decision;

–order the Commission to grant access to the requested documents immediately;

–order the Commission to pay the costs.

11The Commission contends that the Court should:

–declare that there is no need to adjudicate on the action for annulment of its implied decision of 12 March 2021;

–dismiss the action as partly inadmissible and partly unfounded;

–order the applicants to pay the costs.

Law

Subject matter of the action

12The Commission contends that the action should be declared devoid of purpose as regards the implied refusal decision of 12 March 2021. That implied decision having been withdrawn and replaced by the final confirmatory decision of 7 April 2021, only the latter should be the subject of the action.

13The applicants dispute that argument and submit that, by their action, the subject matter of which they have sought to extend, they are targeting both the implied refusal decision and the confirmatory decision. In the alternative, in so far as the Court considers the implied refusal decision to have been replaced by the confirmatory decision, the applicants consider that that implied decision must be taken into account as an act preparatory to the confirmatory decision.

14The Court recalls that, where an implied decision refusing access has been withdrawn by the effect of an express decision taken subsequently, there is no longer any need to adjudicate on the action in so far as it is directed against that implied decision (judgment of 2 July 2015, Typke v Commission, T‑214/13, EU:T:2015:448, paragraph 36; see also, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraphs 88 and 89).

15The confirmatory decision having replaced the implied refusal decision of 12 March 2021, there is no longer any need to adjudicate on the application for annulment of that implied decision.

The claim for directions to be issued

16Without raising a formal plea of inadmissibility under Article 130 of the Rules of Procedure by separate document, the Commission has expressed doubts as to the standing and interest in bringing proceedings of one of the applicants, namely the law firm Covington & Burling LLP.

17The Commission also contends that the applicants’ claim that it should be ordered to grant access to the requested documents immediately is inadmissible.

18The applicants submit that the confirmatory decision was addressed to ‘Bart Van Vooren Covington & Burling LLP’ and that the requests for access to documents were made on behalf of both applicants. In any event, it is sufficient for one or other of the applicants to have demonstrated an interest in bringing proceedings.

19In that regard, the Court notes that the confirmatory decision was addressed to ‘Bart Van Vooren Covington & Burling LLP’.

20In so far as that decision contains particulars identifying both Mr Van Vooren and the law firm Covington & Burling LLP, the applicants both have standing to bring proceedings as addressees of the said decision.

21As to the interest in bringing proceedings, the annulment of the confirmatory decision may have consequences for the legal position of the law firm Covington & Burling LLP in that it is one of the addressees of that decision. The action brought by that law firm may thus, by its outcome, procure an advantage for it. In those circumstances, the action is admissible.

22So far as concerns the admissibility of the head of claim by which the applicants request the Court to ‘order the Commission to grant access to the requested documents immediately’, the jurisdiction of the EU Courts in this case is limited to reviewing the legality of the contested measure. The General Court may not, in the exercise of that jurisdiction, issue directions to the institutions of the Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited).

23Accordingly, that head of claim must be rejected on the ground of lack of jurisdiction.

Substance

24The confirmatory decision is based on the exception to access to documents relating to the protection of the decision-making process and, as regards the personal data contained in the requested documents, on the exception to access to documents relating to the protection of privacy and the integrity of the individual.

25The applicants put forward five pleas in law concerning exclusively the application of the exception relating to the protection of the decision-making process, provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. The first plea alleges infringement of the second subparagraph of Article 4(3) of Regulation No 1049/2001. The second plea, put forward in the alternative like the rest of the pleas, alleges failure to demonstrate that disclosure of the requested documents would undermine the decision-making process and the seriousness of that undermining. The third plea alleges that the Commission erred in relying on Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13) to justify its refusal to grant access to the requested documents. The fourth plea alleges that the Commission erred in relying on the Standard Rules of Procedure for Committees published in the Official Journal of the European Union (OJ 2011 C 206, p. 11; ‘the Standard Rules of Procedure’) to justify its refusal to grant access to the requested documents. The fifth plea alleges violation of the principle of transparency and an undermining of the democratic legitimacy of implementing acts adopted under the procedure established by Regulation No 182/2011.

First plea: inapplicability of the exception relating to the protection of the decision-making process provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001

26According to the applicants, it is clear from the very wording of the second subparagraph of Article 4(3) of Regulation No 1049/2001 that that provision applies only to ‘a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution’. They argue that that provision is not applicable to their request for access to documents.

27In that regard, the Court recalls that Article 2(3) of Regulation No 1049/2001 states that the latter applies to all documents held by an institution, that is to say drawn up or received by it and in its possession, in all areas of EU activity.

28Under the second subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is to be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

29Therefore, it is only for part of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) allows, depending on the case, access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 79).

30According to the applicants, none of those criteria is satisfied as regards the documents reflecting the individual votes of the Member States.

31First, their request focused on the votes of the 22 Member States that had voted in favour of the draft amending regulation. Those votes do not constitute deliberations and preliminary consultations in themselves, but are the outcome of them. In other words, the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 protects the internal decision-making process, not the external outcome of that process, namely the breakdown of the votes of the Member States.

32The inherent nature of a vote of a Member State means that it is ‘external’ to the Commission or the PAFF Committee. Obtaining a qualified majority, leading to a positive opinion of the PAFF Committee, itself leads – where the Council or the Parliament does not object – to the adoption of the regulation at issue, which creates legal obligations directly applicable to the persons concerned.

33Second, a vote of a Member State does not represent the opinion of an individual committee member. On the contrary, it is an act by which the committee member in question merely exercises sovereign power on behalf of the relevant Member State, his or her personal view being irrelevant for voting purposes.

34The Commission disputes the applicant’s line of argument.

35In that regard, the requested documents were issued as part of the decision-making process which resulted in the adoption of the regulation at issue and which was conducted on the basis of Article 8(2) of Regulation No 1925/2006. Under that provision, the Commission may, on its own initiative or on the basis of information provided by Member States, initiate a procedure to include, in accordance with the regulatory procedure with scrutiny referred to in Article 14(3) of the said regulation, a substance or an ingredient containing a substance other than vitamins or minerals, in Annex III thereto listing the substances whose use in foods is prohibited, restricted or under European Union scrutiny, provided that that substance represents a potential risk to consumers within the meaning of Article 8(1) of the same regulation.

36By virtue of paragraph 3 of Article 14 of Regulation No 1925/2006, where reference is made to that paragraph, Article 5a(1) to (4) and Article 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23) are to apply.

37Decision 1999/468 was repealed by Regulation No 182/2011. Nevertheless, pursuant to the second paragraph of Article 12 of that regulation, the effects of Article 5a of that decision are to be maintained for the purposes of existing basic acts making reference thereto. The procedure applicable to the draft amending regulation was thus the regulatory procedure with scrutiny referred to in that Article 5a.

38In the case at hand, and pursuant to Article 5a of Decision 1999/468, the Commission submitted the draft amending regulation to the PAFF Committee, which delivered a positive opinion, acting by a qualified majority. The Commission then submitted the draft amending regulation to the Parliament and to the Council. Finally, the Commission adopted the regulation at issue.

39According to Article 14 of Regulation No 1925/2006, the Commission is to be assisted by the PAFF Committee. In that context, the Court recalls that that committee is a standing committee which assists the Commission in the exercise of its implementing powers. It is composed of representatives of the Member States and chaired by a representative of the Commission.

40As the applicants rightly submit, the votes of the Member States are the expression of their sovereign rights and the qualified majority vote in which the Member States take part leads to the adoption of the regulation at issue, subject to opposition by the Council or the Parliament.

41However, the votes of the Member States were cast within the PAFF Committee in order to enable the Commission to draw up a position on the basis of the positive or negative opinion delivered by that committee, before the draft amending regulation was submitted to the Parliament and the Council pursuant to Article 5a(3)(a) and (4)(a) of Decision 1999/468.

42Put another way, the outcome of the individual votes of the Member States cast in the PAFF Committee had an influence on the Commission’s internal decision-making process. It follows, as the Commission has rightly argued, that the individual votes of the Member States cast within the said committee must be regarded as acts preparatory to the draft amending regulation adopted by the Commission which it should take into account in its internal decision-making process before that draft is submitted to the Parliament and the Council.

43Those votes must therefore be considered as being cast ‘as part of deliberations and preliminary consultations’ within the Commission concerning the draft amending regulation.

44The question whether the votes of the Member States are the outcome of deliberations or constitute deliberations themselves is irrelevant in that regard. Although those votes may be regarded as the outcome of deliberations and thus constitute, depending on the outcome of the vote, the final stage of deliberations, that stage relates to the internal deliberations of the Commission. In any event, even if those votes are deemed to be part of the overall decision-making process involving the Parliament and the Council, they were cast ‘as part of deliberations’ of the PAFF Committee within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, as the Commission rightly notes in the confirmatory decision.

45That interpretation is confirmed by the judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 107), which confirms that the Commission, in duly justified cases, may refuse access to documents which show the individual position of the Member States within the PAFF Committee where their disclosure would be likely specifically to undermine the interests protected by the exceptions provided for in Article 4 of Regulation No 1049/2001.

46It follows that the conditions of applicability of the second subparagraph of Article 4(3) of Regulation No 1049/2001 are satisfied, such that the exception to the right of access to documents laid down by that provision is applicable to the documents reflecting the individual votes of the Member States within the PAFF Committee.

47The first plea must therefore be rejected.

Misapplication of the exception to the right of access to documents for the protection of the decision-making process, provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001

48In support of the second, third and fourth pleas in law, the applicants submit, in essence, that the Commission failed to demonstrate that disclosure of the requested documents would seriously undermine the decision-making process. The Commission also erred in law in finding that there was no overriding public interest justifying disclosure (second plea), that neither Regulation No 182/2011 (third plea) nor the Standard Rules of Procedure (fourth plea) could ground such disclosure or lead to such an interpretation of the second subparagraph of Article 4(3) of Regulation No 1049/2001. In addition, the Commission’s application of the exception provided for in the second subparagraph of Article 4(3) of that regulation violates the general principle of transparency guaranteed by the Treaties and the Charter of Fundamental Rights of the European Union and undermines democratic legitimacy (fifth plea).

49In accordance with the principle that derogations are to be interpreted strictly, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by the exception – among those laid down in Article 4 of Regulation No 1049/2001 – upon which it is relying (see, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 49).

50Moreover, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical. The mere fact that a document concerns an interest protected by an exception is not by itself sufficient to justify application of that exception (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 62 and the case-law cited).

51According to the Court’s case-law, the application of the exception provided for in the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001 requires it to be established that access to the document for internal use is likely, specifically and actually, to undermine the protection of the decision-making process of the institution and that the decision-making process must be seriously undermined (see judgment of 12 March 2019, De Masi and Varoufakis v ECB, T‑798/17, EU:T:2019:154, paragraph 27 and the case-law cited). That is the case, in particular, where the disclosure of the document in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 71 and the case-law cited).

52The institutions cannot be required to submit evidence to establish the existence of such a risk. It is sufficient in that regard if the decision contains tangible elements from which it can be inferred that the risk of the decision-making process being undermined is, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical, showing, in particular, the existence, on that date, of objective reasons on the basis of which it could reasonably be foreseen that the decision-making process would be undermined if the requested documents were disclosed (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 65 and the case-law cited).

53It is in the light of those considerations that the reasons put forward by the Commission in the confirmatory decision to justify the application of the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 must be examined.

–The individual position of the Member States in comitology procedures

54In the confirmatory decision, the Commission stated that the whole legal framework applicable to comitology clearly provides for the confidentiality of individual voting positions of Member States.

55The applicants are of the view that Regulation No 182/2011 and the Standard Rules of Procedure cannot be relied on to justify the Commission’s refusal to grant access to the requested documents.

56As a preliminary point, the Court finds in this case that, to refuse access to documents reflecting the individual votes of the Member States on the draft amending regulation, the Commission did indeed rely on Regulation No 1049/2001, but that it intended to interpret it in the light of Regulation No 182/2011 and the Standard Rules of Procedure. In that regard, the Commission itself states that it took those provisions into account in order to determine whether the disclosure of the requested documents would seriously and concretely undermine the decision-making process.

57Therefore, contrary to what the Commission submits, the applicants’ argument concerning the reference to the legal framework relating to comitology procedures is not ineffective.

58In the confirmatory decision, the Commission stated that the whole legal framework applicable to the comitology procedure clearly provides for the confidentiality of individual voting positions of the Member States. It added that Regulation No 1049/2001 and Regulation No 182/2011 must be applied in the light of their respective provisions in a coherent manner.

59In that regard, it follows from the case-law that the EU legislation on access to documents cannot justify an institution’s refusal, as a matter of principle, to grant access to documents pertaining to its deliberations on the basis that they contain information relating to positions taken by representatives of the Member States. Therefore, as regards public access to the documents inherent in the work of comitology committees, the Commission cannot take the view that the relevant legal framework excludes, as a matter of principle, public access to the individual positions of the Member States (see judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraphs 98 and 99 and the case-law cited).

60According to the applicants, Article 10(2) and Article 13(2) of the Standard Rules of Procedure, which provide for the confidentiality of the positions of committee members, do not justify refusal of access, either. In the light of the principle of the hierarchy of norms, the Standard Rules of Procedure should be interpreted in the light of Regulation No 1049/2001, which lays down the principle of disclosure, without one trumping the other, and contains no justification allowing it to be demonstrated that disclosure of the requested documents could undermine the decision-making process.

61The Commission, first, contends that Regulation No 182/2011 and the Standard Rules of Procedure adopted on the basis of Article 9 of that regulation clearly provide for the confidentiality of individual voting positions of Member States. Second, those acts contain a reference to Regulation No 1049/2001 which, at the same time, governs access to documents of the committees. Thus, there is no opposition between those two legal frameworks. It was in that legal context that the Commission applied the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001 ‘in conformity with [Regulation No 182/2011], so as not to deprive the above mentioned confidentiality requirements of any meaningful effect’, as the confirmatory decision indicates.

62The Commission adds that the legislative provisions of the Standard Rules of Procedure and of Regulation No 182/2011 were referred to because they were relevant for the assessment of the negative effect of the disclosure of the documents created in the framework of the comitology procedure. Thus, disclosure of the individual positions of the Member States would seriously affect the decision-making process.

63In that regard, it should be borne in mind that the provisions of the rules of procedure of a committee, or even those of the Standard Rules of Procedure, whether or not they have been adopted by the committee as its rules of procedure, cannot, in response to a request for public access, make it possible for protection to be granted to documents which go beyond what is provided for by Regulation No 1049/2001. They cannot therefore be interpreted as precluding public access to the individual positions of the Member States (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraphs 96, 97 and 100).

64In particular, the Commission cannot rely on the content of Article 10(2) of the Standard Rules of Procedure concerning the content of the ‘summary record’ of the work of committees. That provision does not relate to public access to the documents of committees, but to the content of the summary record. The fact that the summary record does not mention the individual position of the Member States has no bearing on access to documents. It cannot therefore prejudice public access, upon application, to documents showing those individual positions (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 101).

65Nor can the Commission rely on Article 13(2) of the Standard Rules of Procedure, which states that ‘the committee’s deliberations shall be confidential’.

66The scope of that provision is qualified by the whole of Article 13 of the Standard Rules of Procedure. Thus, Article 13(1) and (3) of those rules of procedure provides for the possibility that, in accordance with Regulation No 1049/2001, access may be granted to documents transmitted by a member of the committee to the other members of the committee, to experts and to representatives of third parties and that, in those cases, those documents are not confidential, or lose their confidentiality. It cannot be ruled out, however, that such documents may contain the individual votes of Member States reflecting their individual positions on a draft regulation (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraphs 104 and 105).

67Furthermore, in so far as, before the Court, the Commission also relied on Article 10(1) of Regulation No 182/2011 in support of the argument that that provision requires only that a register be kept for the total result of the votes and not for the individual votes of the Member States, that argument must also be rejected. That provision concerns only the content of the register of the committee proceedings, and not public access to documents, which, as follows from Article 9(2) of Regulation No 182/2011, may be granted pursuant to Regulation No 1049/2001 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 102).

68It follows that, contrary to what the Commission maintained in the confirmatory decision, the comitology procedures, and in particular the Standard Rules of Procedure, do not in themselves require access to documents showing the individual position of the Member States within the PAFF Committee to be refused in order to protect the decision-making process of that committee, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 107). Accordingly, the legal framework relating to comitology procedures cannot, in itself, preclude the right of access to documents resulting from Regulation No 1049/2001 nor can it lead the Commission to allege a risk of serious undermining of the decision-making process solely because of the applicability of that legal framework.

69However, as has already been emphasised in paragraph 45 above, that does not in any way prevent the Commission, in duly justified cases, from refusing access to documents which show the individual position of the Member States within that committee where their disclosure would be likely specifically to undermine the interests protected by the exceptions provided for in Article 4 of Regulation No 1049/2001 (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 107).

–Cooperation of the Member States in the comitology procedure

70In their second plea, the applicants claim that the Commission merely alleged that disclosure would have a negative impact on the cooperation of the Member States in the comitology procedure.

71The Commission submits that the risk posed by the disclosure of the documents at issue is not purely hypothetical. Under the rules applicable to comitology procedures, Member States trust the Commission to respect fully the confidentiality of their individual positions, in order to preserve their ability to express themselves in a free and unhindered manner in the framework of committee deliberations. That is also justified by the ability of the Commission to conduct the preparatory stages of the adoption of the implementing acts efficiently. It adds that public access to the individual votes of the Member States would actually and specifically undermine the decision-making process in that it would have a negative effect on the behaviour of Member States in future comitology procedures.

72In the confirmatory decision, the Commission states, in essence, that, in view of the regulatory framework applicable to the comitology procedure, disclosure of the requested documents would affect the mutual trust between the Member States and would be at odds with the principle of sincere cooperation provided for in Article 4(3) TEU. The Commission adds that, given that the Member States legitimately expect it to preserve the confidentiality of their individual positions, disclosure of such positions, in disregard of the rules applicable to the comitology procedure, would have a negative impact on their cooperation.

73It must be stated that, in that regard, the Commission relied on abstract reasoning relating to the maintenance of that cooperation in comitology procedures in general. The negative consequences cited by the Commission in the confirmatory decision are based on the premiss that comitology procedures protect, as regards an application for access to documents, the confidentiality of the individual positions of the Member States.

74Such a premiss, however, has been rejected in paragraph 68 above. The justifications put forward by the Commission therefore have no concrete link with the specific circumstances of the decision-making process at issue.

75It follows that the reasons put forward by the Commission in the confirmatory decision cannot justify, in the circumstances of the present case, the application of the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.

Accordingly, the confirmatory decision must be annulled in so far as it refuses access to the requested documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, without there being any need to examine the question of the existence of an overriding public interest or the fifth plea in the action.

Costs

77Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. Since the Commission has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants.

On those grounds,

hereby:

1.Declares that there is no longer any need to adjudicate on the claim for annulment of the implied decision refusing access of 12 March 2021;

2.Annuls decision C(2021) 2541 final of the European Commission of 7 April 2021 to the extent that it refuses access to the individual votes of the representatives of the Member States on the basis of the second subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents;

3.Dismisses the action as to the remainder;

4.Orders the Commission to pay the costs.

Spielmann

Öberg

Mastroianni

Delivered in open court in Luxembourg on 14 June 2023.

Registrar

President

—

Language of the case: English.