Judgment_paragraph 49 · Darius Nicolai Spirlea and Mihaela Spirlea v European Commission (T-669/11)

49Indeed, the exercise of the power conferred by Article 4(5) of Regulation No 1049/2001 on the Member State concerned is delimited by the substantive exceptions set out in Article 4(1) to (3), with the Member State merely being given in this respect a power to take part in the institution’s decision. The prior agreement of the Member State referred to in Article 4(5) thus resembles not a discretionary right of veto but a form of assent confirming that none of the grounds of exception under Article 4(1) to (3) is present. The decision-making process thus established by Article 4(5) therefore requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in Article 4(1) to (3) (Sweden v Commission, paragraphs 76 and 83, and IFAW Internationaler Tierschutz-Fonds v Commission, paragraph 58).