Contents
Judgment of the Court (Fifth Chamber)5 February 2026note(Appeal — Access to documents — Regulation (EC) No 1049/2001 — Article 4(3), second subparagraph — Protection of the decision-making process — Refusal to disclose documents relating to the votes of the Member States concerning the amendment of Annex III to Regulation (EC) No 1925/2006 — Regulation (EU) No 182/2011 — Comitology — Decision 1999/468/EC — Regulatory procedure with scrutiny — Cross-appeal)In Case C‑540/23 P,APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 23 August 2023,European Commission, represented initially by Ș. Ciubotaru, C. Ehrbar and A. Spina, acting as Agents, and subsequently by C. Ehrbar and A. Spina, acting as Agents,the other parties to the proceedings being:Covington & Burling LLP, established in Saint-Josse-ten-Noode (Belgium),Bart Van Vooren, residing in Meise (Belgium),represented by P. Diaz Gavier, advocaat,Kingdom of the Netherlands, represented by M.K. Bulterman, H.S. Gijzen and C.S. Schillemans, acting as Agents,THE COURT (Fifth Chamber),composed of M.L. Arastey Sahún, President of the Chamber, J. Passer, E. Regan, D. Gratsias (Rapporteur) and B. Smulders, Judges,Advocate General: M. Szpunar,Registrar: A. Calot Escobar,having regard to the written procedure,after hearing the Opinion of the Advocate General at the sitting on 12 June 2025,gives the following
Judgment
1By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 14 June 2023, Covington & Burling and Van Vooren v Commission (T‑201/21, ‘the judgment under appeal’, EU:T:2023:333), by which that court annulled Commission Decision C(2021) 2541 final of 7 April 2021 (‘the decision at issue’), to the extent that, by that decision, the Commission refused, 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 (OJ 2001 L 145, p. 43), access to documents relating to the individual votes of the Member States cast in the context of a comitology procedure amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council of 20 December 2006 on the addition of vitamins and minerals and of certain other substances to foods (OJ 2006 L 404, p. 26), in so far as it concerns botanical species containing hydroxyanthracene derivatives.
2By their cross-appeal, Covington & Burling LLP and Mr Bart Van Vooren (‘the applicants at first instance’) seek to have set aside the judgment under appeal in so far as the General Court found that the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable in that case.
Legal context
Regulation No 1049/2001
3Recitals 2 and 4 of Regulation No 1049/2001 state:(2) Openness enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system. Openness contributes to strengthening the principles of democracy and respect for fundamental rights as laid down in Article 6 [TEU] and in the Charter of Fundamental Rights of the European Union.…(4) The purpose of this Regulation is to give the fullest possible effect to the right of public access to documents and to lay down the general principles and limits on such access in accordance with Article 255(2) [EC].’
4Article 1 of that regulation provides:‘The purpose of this Regulation is:(a) to define the principles, conditions and limits on grounds of public or private interest governing the right of access to European Parliament, Council [of the European Union] and Commission (hereinafter referred to as “the institutions”) documents provided for in Article 255 [EC] in such a way as to ensure the widest possible access to documents,…’
5According to Article 4(1) and (3) of the said regulation:1.The institutions shall refuse access to a document where disclosure would undermine the protection of:…(b) privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data.…3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall 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.’
Regulation (EC) No 178/2002
6Article 58 of Regulation (EC) No 178/2002 of the European Parliament and of the Council of 28 January 2002 laying down the general principles and requirements of food law, establishing the European Food Safety Authority and laying down procedures in matters of food safety (OJ 2002 L 31, p. 1), as amended by Regulation (EU) No 652/2014 of the European Parliament and of the Council of 15 May 2014 (OJ 2014 L 189, p. 1), provides, in paragraph 1 thereof:‘The Commission shall be assisted by a Standing Committee on Plants, Animals, Food and Feed … That Committee shall be a committee within the meaning of 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)] …’
Regulation No 1925/2006
7Article 8 of Regulation (EC) No 1925/2006, as amended by Commission Regulation (EU) 2019/650 of 24 April 2019 (OJ 2019 L 110, p. 21), entitled ‘Substances prohibited, restricted or under Community scrutiny’, provides, in paragraphs 1 and 2 thereof:1. The procedure provided for in this Article shall be followed where a substance other than vitamins or minerals, or an ingredient containing a substance other than vitamins or minerals, is added to foods or used in the manufacture of foods under conditions that would result in the ingestion of amounts of this substance greatly exceeding those reasonably expected to be ingested under normal conditions of consumption of a balanced and varied diet and/or would otherwise represent a potential risk to consumers.2. On its own initiative or on the basis of information provided by Member States, the Commission may take a decision designed to amend non-essential elements of this Regulation, following in each case an assessment of available information by the [European Food Safety] Authority [(EFSA)], in accordance with the regulatory procedure with scrutiny referred to in Article 14(3), to include, if necessary, the substance or ingredient in Annex III. ……’
8Article 14 of that regulation, entitled ‘Committee procedure’, states, in paragraphs 1 and 3 thereof:1. The Commission shall be assisted by the Standing Committee on the Food Chain and Animal Health established by Article 58(1) of Regulation [No 178/2002].…3. Where reference is made to this 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)] shall apply, having regard to the provisions of Article 8 thereof.’
Regulation No 182/2011
9According to recitals 6, 10 and 19 to 21 of Regulation No 182/2011:(6) In those basic acts which require the control of the Member States for the adoption by the Commission of implementing acts, it is appropriate, for the purposes of such control, that committees composed of the representatives of the Member States and chaired by the Commission be set up.…(10) Criteria should be laid down to determine the procedure to be used for the adoption of implementing acts by the Commission. In order to achieve greater consistency, the procedural requirements should be proportionate to the nature and impact of the implementing acts to be adopted.…(19) Public access to information on committee proceedings should be ensured in accordance with Regulation [No 1049/2001].(20) A register containing information on committee proceedings should be kept by the Commission. Consequently, rules relating to the protection of classified documents applicable to the Commission should also apply to the use of the register.(21) Decision [1999/468] should be repealed. In order to ensure the transition between the regime provided for in Decision [1999/468] and this Regulation, any reference in existing legislation to the procedures provided for in that Decision should, with the exception of the regulatory procedure with scrutiny provided for in Article 5a thereof, be understood as a reference to the corresponding procedures provided for in this Regulation. The effects of Article 5a of Decision [1999/468] should be provisionally maintained for the purposes of existing basic acts which refer to that Article.’
10Article 2 of that regulation, entitled ‘Selection of procedures’, provides, in paragraph 2 thereof:‘The examination procedure applies, in particular, for the adoption of:(a) implementing acts of general scope;…’
11Under Article 3 of that regulation, entitled ‘Common provisions’:1. The common provisions set out in this Article shall apply to all the procedures referred to in Articles 4 to 8.2. The Commission shall be assisted by a committee composed of representatives of the Member States. The committee shall be chaired by a representative of the Commission. …3. The chair shall submit to the committee the draft implementing act to be adopted by the Commission.…4. Until the committee delivers an opinion, any committee member may suggest amendments and the chair may present amended versions of the draft implementing act.The chair shall endeavour to find solutions which command the widest possible support within the committee. …5. In duly justified cases, the chair may obtain the committee’s opinion by written procedure. The chair shall send the committee members the draft implementing act and shall lay down a time limit for delivery of an opinion according to the urgency of the matter. Any committee member who does not oppose the draft implementing act or who does not explicitly abstain from voting thereon before the expiry of that time limit shall be regarded as having tacitly agreed to the draft implementing act.…6. The committee’s opinion shall be recorded in the minutes. ……’
12Article 4 of the said regulation, entitled ‘Advisory procedure’, provides:1. Where the advisory procedure applies, the committee shall deliver its opinion, if necessary by taking a vote. …2. The Commission shall decide on the draft implementing act to be adopted, taking the utmost account of the conclusions drawn from the discussions within the committee and of the opinion delivered.’
13According to Article 9 of the same regulation, entitled ‘Rules of procedure’:1. Each committee shall adopt by a simple majority of its component members its own rules of procedure on the proposal of its chair, on the basis of standard rules to be drawn up by the Commission following consultation with Member States. Such standard rules shall be published by the Commission in the Official Journal of the European Union.In so far as may be necessary, existing committees shall adapt their rules of procedure to the standard rules.2. The principles and conditions on public access to documents and the rules on data protection applicable to the Commission shall apply to the committees.’
14Article 10 of Regulation No 182/2011, entitled ‘Information on committee proceedings’, provides:1.The Commission shall keep a register of committee proceedings which shall contain:(a) a list of committees;(b) the agendas of committee meetings;(c) the summary records, together with the lists of the authorities and organisations to which the persons designated by the Member States to represent them belong;(d) the draft implementing acts on which the committees are asked to deliver an opinion;(e) the voting results;(f) the final draft implementing acts following delivery of the opinion of the committees;(g) information concerning the adoption of the final draft implementing acts by the Commission; and(h) statistical data on the work of the committees.2. The Commission shall also publish an annual report on the work of the committees.3. The European Parliament and the Council shall have access to the information referred to in paragraph 1 in accordance with the applicable rules.4. At the same time as they are sent to the committee members, the Commission shall make available to the European Parliament and the Council the documents referred to in points (b), (d) and (f) of paragraph 1 whilst also informing them of the availability of such documents.5. The references of all documents referred to in points (a) to (g) of paragraph 1 as well as the information referred to in paragraph 1(h) shall be made public in the register.’
15Article 11 of that regulation, entitled ‘Right of scrutiny for the European Parliament and the Council’, provides that, where a basic act is adopted under the ordinary legislative procedure, either the Parliament or the Council may at any time indicate to the Commission that, in its view, a draft implementing act exceeds the implementing powers provided for in the basic act, in which case the Commission is to review the draft implementing act, taking account of the positions expressed.
16Under Article 12 of the said regulation:‘Decision [1999/468] is hereby repealed.The effects of Article 5a of Decision [1999/468] shall be maintained for the purposes of existing basic acts making reference thereto.’
17Article 13 of the same regulation, entitled ‘Transitional provisions: adaptation of existing basic acts’, provides:1.Where basic acts adopted before the entry into force of this Regulation provide for the exercise of implementing powers by the Commission in accordance with Decision [1999/468], the following rules shall apply:(a) where the basic act makes reference to Article 3 of Decision [1999/468], the advisory procedure referred to in Article 4 of this Regulation shall apply;…(e) where the basic act makes reference to Articles 7 and 8 of Decision [1999/468], Articles 10 and 11 of this Regulation shall apply.2. Articles 3 and 9 of this Regulation shall apply to all existing committees for the purposes of paragraph 1.…’
Decision 1999/468
18According to recital 7a of Decision 1999/468, as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11):‘it is necessary to follow the regulatory procedure with scrutiny as regards measures of general scope which seek to amend non-essential elements of a basic instrument adopted in accordance with the procedure referred to in Article 251 of the Treaty, inter alia by deleting some of those elements or by supplementing the instrument by the addition of new nonessential elements. This procedure should enable the two arms of the legislative authority to scrutinise such measures before they are adopted. The essential elements of a legislative act may only be amended by the legislator on the basis of the Treaty’.
19Article 5a of that decision, entitled ‘Regulatory procedure with scrutiny’, provided, in paragraphs 1 to 4 thereof:1. The Commission shall be assisted by a Regulatory Procedure with Scrutiny Committee composed of the representatives of the Member States and chaired by the representative of the Commission.2. The representative of the Commission shall submit to the Committee a draft of the measures to be taken. The Committee shall deliver its opinion on the draft within a time limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) and (4) [EC] in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the Committee shall be weighted in the manner set out in that Article. The chairman shall not vote.3.If the measures envisaged by the Commission are in accordance with the opinion of the Committee, the following procedure shall apply:(a) the Commission shall without delay submit the draft measures for scrutiny by the European Parliament and the Council;(b) the European Parliament, acting by a majority of its component members, or the Council, acting by a qualified majority, may oppose the adoption of the said draft by the Commission, justifying their opposition by indicating that the draft measures proposed by the Commission exceed the implementing powers provided for in the basic instrument or that the draft is not compatible with the aim or the content of the basic instrument or does not respect the principles of subsidiarity or proportionality;(c) if, within three months from the date of referral to them, the European Parliament or the Council opposes the draft measures, the latter shall not be adopted by the Commission. In that event, the Commission may submit to the Committee an amended draft of the measures or present a legislative proposal on the basis of the Treaty;(d) if, on expiry of that period, neither the European Parliament nor the Council has opposed the draft measures, the latter shall be adopted by the Commission.4.If the measures envisaged by the Commission are not in accordance with the opinion of the Committee, or if no opinion is delivered, the following procedure shall apply:(a) the Commission shall without delay submit a proposal relating to the measures to be taken to the Council and shall forward it to the European Parliament at the same time;(b) the Council shall act on the proposal by a qualified majority within two months from the date of referral to it;(c) if, within that period, the Council opposes the proposed measures by a qualified majority, the measures shall not be adopted. …(d) if the Council envisages adopting the proposed measures, it shall without delay submit them to the European Parliament. If the Council does not act within the two-month period, the Commission shall without delay submit the measures for scrutiny by the European Parliament;(e) the European Parliament, acting by a majority of its component members within four months from the forwarding of the proposal in accordance with point (a), may oppose the adoption of the measures in question, …(f) if, within that period, the European Parliament opposes the proposed measures, the latter shall not be adopted. …(g) if, on expiry of that period, the European Parliament has not opposed the proposed measures, the latter shall be adopted by the Council or by the Commission, as the case may be.’
The Standard Rules of Procedure
20Article 10 of the Standard Rules of Procedure for Committees (OJ 2011 C 206, p. 11), entitled ‘Minutes and summary record of meetings’, provides, in paragraph 2 thereof:‘For the purpose of Article 10 of Regulation [No 182/2011], the chair shall be responsible for drawing up a summary record briefly describing each item on the agenda and the results of the vote on any draft implementing act submitted to the committee. The summary record shall not mention the individual position of the members in the committee’s discussions.’
21Article 13 of the Standard Rules of Procedure, entitled ‘Access to documents and confidentiality’, provides:1. Requests for access to committee documents shall be handled in accordance with Regulation [No 1049/2001]. It is for the Commission to take a decision on requests for access to those documents pursuant to its Rules of Procedure as amended by [Commission] Decision 2001/937/EC, ECSC, Euratom [of 5 December 2001 (OJ 2001 L 345, p. 94)]. …2. The committee’s discussions shall be confidential.3. Documents submitted to members of the committee, experts and representatives of third parties shall be confidential …, unless access is granted to those documents pursuant to paragraph 1 or they are otherwise made public by the Commission.4. The members of the committee, as well as experts and representatives of third parties, shall be required to respect the confidentiality obligations set out in this Article. The chair shall ensure that experts and representatives of third parties are made aware of the confidentiality requirements imposed upon them.’
Background to the dispute
22The background to the dispute is set out in paragraphs 2 to 7 of the judgment under appeal as follows:2. On 4 December 2020, the applicants [at first instance] 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 [No 1925/2006], 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; …).3. On 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 2020.4. In that letter, the Commission indicated that 21 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 [No 1049/2001].5. By 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.6. On 15 February 2021, the Commission informed the applicants [at first instance], 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 2021.7. On 10 March 2021, the Commission sent a further email to the applicants [at first instance], indicating that it would not be able to adopt a confirmatory decision within the extended time limit.’
The procedure before the General Court and the judgment under appeal
23By application lodged at the Registry of the General Court on 6 April 2021, the applicants at first instance, not having received an explicit reply to their confirmatory application of 29 January 2021, referred to in paragraph 5 of the judgment under appeal, brought an action for annulment of the Commission’s implied decision rejecting that application. On 7 April 2021, the Commission adopted and notified to Mr Van Vooren the decision at issue, by which it confirmed its refusal to grant access to the requested documents, invoking 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. It also 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, in order to justify its refusal to grant access to the personal data contained in the requested documents.
24By separate document lodged at the General Court Registry on 12 April 2021, the applicants at first instance modified their application, pursuant to Article 86 of the Rules of Procedure of the General Court, to seek annulment of the decision at issue.
25In support of their action, those applicants relied on five pleas in law, the first, raised as the main plea, alleging infringement of the second subparagraph of Article 4(3) of Regulation No 1049/2001; the second, in essence, failure to demonstrate that disclosure of the requested documents would undermine the decision-making process and the seriousness of that undermining; the third, incorrect reliance by the Commission on Regulation No 182/2011 to justify its refusal to grant access to the requested documents; the fourth, incorrect reliance by the Commission on the Standard Rules of Procedure to justify its refusal to grant access to the requested documents and, the fifth, breach 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.
26More specifically, by their first plea, the applicants at first instance claimed that, due to its very wording, the second subparagraph of Article 4(3) of Regulation No 1049/2001 was not applicable to their request for access to documents. First, their request concerned the votes of 22 Member States which had been cast in favour of the draft Commission regulation amending Annex III to Regulation No 1925/2006 as regards botanical species containing hydroxyanthracene derivatives. Those votes, however, did not constitute ‘deliberations and preliminary consultations’, but were the outcome of them. Such a vote was ‘external’ to the ‘internal’ decision-making process, the only part protected by the exception at issue. Second, such a vote did not represent the opinion of an individual committee member, but was an act by which sovereign power is exercised on behalf of a Member State.
27In that regard, the General Court considered that the requested documents had been issued as part of the decision-making process which resulted in the adoption of Regulation No 2021/468 and which was conducted on the basis of Article 8(2) of Regulation No 1925/2006, in accordance with the regulatory procedure with scrutiny referred to in Article 14(3) of that regulation and, consequently, in accordance with Article 5a of Decision 1999/468. It is apparent from the judgment under appeal that it was pursuant to that article that the Commission had submitted the draft regulation leading to the adoption of Regulation No 2021/468 to the PAFF Committee, which delivered a positive opinion on that draft, which was subsequently submitted to the Parliament and to the Council before being adopted by the Commission.
28The General Court recalled that the PAFF Committee, composed of representatives of the Member States and chaired by a representative of the Commission, is a standing committee which, in accordance with Article 14(1) of Regulation No 1925/2006, assists the Commission in the exercise of its implementing powers. In that regard, in paragraphs 40 and 41 of the judgment under appeal, it held that, while it was true that the votes of the Member States were the expression of their sovereign rights, they were, however, cast within that committee in order to enable the Commission to draw up a position, before the draft regulation leading to the adoption of Regulation No 2021/468 was submitted to the Parliament and the Council. Accordingly, as is indicated in paragraphs 42 and 43 of the judgment under appeal, the outcome of those individual votes had an influence on the Commission’s internal decision-making process and they must therefore be regarded as acts preparatory to that draft regulation which the Commission had to take into account in its internal decision-making process and, consequently, be considered as being cast ‘as part of deliberations and preliminary consultations’ within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
29Thus, taking the view that the conditions of applicability of that provision were satisfied, the General Court rejected the first plea in law put forward by the applicants at first instance. It stated, in that regard, in paragraph 44 of the judgment under appeal, that the question whether the votes of the Member States are the outcome of deliberations or constitute deliberations themselves is irrelevant, since those votes constitute, at the very least, the final stage of deliberations within the Commission. On that point, the General Court relied on the judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556), which, according to paragraph 45 of the judgment under appeal, confirmed 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.
30The General Court then examined together the second to fifth pleas in law put forward by the applicants at first instance in the alternative, by which they claimed, in essence, that the Commission, on the one hand, had failed to demonstrate that disclosure of the requested documents would seriously undermine the decision-making process and, on the other hand, had committed an error of law in finding that the disclosure at issue could not be justified. Last, they claimed that the Commission had acted in breach of the general principle of transparency guaranteed by the Treaties and the Charter of Fundamental Rights of the European Union and undermined the democratic legitimacy of implementing acts adopted under the procedure established by Regulation No 182/2011.
31In the first place, the General Court examined the arguments put forward by the applicants at first instance challenging the decision at issue according to which the whole legal framework applicable to comitology clearly provides for the confidentiality of individual voting positions of the Member States. It held, in paragraph 68 of the judgment under appeal, that that legal framework did not preclude the right of access to documents laid down by Regulation No 1049/2001 and could not, as such, justify the existence of a risk of serious undermining of the Commission’s decision-making process.
32Referring, in particular, on a number of occasions to the judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556), the General Court, first, recalled, in paragraph 59 of the judgment under appeal, that, in accordance with the case-law, the EU legislation on access to documents could not 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.
33As regards, second, the Standard Rules of Procedure, relied on by the Commission in the decision at issue, the General Court held, in paragraph 63 of the judgment under appeal, that the provisions of the rules of procedure of a committee, or even those of the Standard Rules of Procedure, could not make it possible for protection to be granted to the documents concerned by a request for access going beyond what is provided for by Regulation No 1049/2001.
34Third, the General Court found that the Commission had also been wrong to rely on Article 10(1) of Regulation No 182/2011 to justify its refusal to grant access to the requested documents. According to paragraph 67 of the judgment under appeal, although that provision does indeed provide only for the keeping of a register of the proceedings of the committee concerned in order to record the total results of votes and not the individual votes of the Member States, the fact remains that that provision concerns only the content of that register, and not public access to the documents relating to that those proceedings.
35In the second place, as regards the risk posed, according to the Commission, by the disclosure of the requested documents and, in particular, the risk of affecting the mutual trust between the Member States in the context of the comitology procedure, the General Court found, in paragraphs 73 and 74 of the judgment under appeal, that the reasons relied on by the Commission were abstract and based on the premiss that comitology procedures protect the confidentiality of the individual positions of the Member States, a premiss which, according to the General Court, is incorrect.
36Thus, the General Court annulled the decision at issue to the extent that, by that decision, the Commission refused 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 No 1049/2001 and found that it was not necessary to examine the question of the existence of an overriding public interest capable of justifying disclosure of the requested documents or of a possible breach of the principle of transparency.
Procedure before the Court and forms of order sought
37By its appeal, the Commission claims that the Court should:– set aside the judgment under appeal;– reject all the pleas in law upheld by the General Court at first instance;– give final judgment in the matter;– or, in the alternative, refer the case back to the General Court; and– reserve the costs of the present proceedings, if it refers the case back to the General Court, or order the applicants at first instance to pay the costs, if it gives final judgment in the matter.
38The applicants at first instance claim that the Court should:– dismiss the appeal;– confirm the judgment under appeal in full; and– order the Commission to pay the costs.
39The Kingdom of the Netherlands, which, by decision of the President of the Court of 9 February 2024, was admitted to intervene in support of the form of order sought by the applicants at first instance, contends that the Court should dismiss the appeal, uphold the judgment under appeal in its entirety and order the Commission to pay the costs.
40By their cross-appeal, the applicants at first instance claim that the Court should:– set aside the judgment under appeal, in so far as the General Court held that the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable;– give final judgment itself, and hold that the Member States’ individual votes in a comitology procedure must, without exception, be made public; or– in the alternative, refer the case back to the General Court; and– if it refers the case back to the General Court, reserve the costs of the present proceedings or, if it gives final judgment in the matter, order the Commission to pay the costs.
41The Commission contends that the Court should:– dismiss the cross-appeal; and– order the defendants at first instance to pay the costs of both instances.
The cross-appeal
42In support of their cross-appeal, the applicants at first instance rely on a single ground of appeal, alleging that the General Court erred in law in finding that the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable in the present case and therefore seek that the judgment under appeal be set aside in its entirety.
Arguments of the parties
43By their single ground of appeal, the applicants at first instance submit that the General Court erred in law when it held, in paragraphs 35 to 47 of the judgment under appeal, that the individual votes of the Member States cast within the PAFF Committee had to be regarded as part of deliberations and preliminary consultations, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001. They submit that to accept that those votes constitute those deliberations and preliminary consultations would mean that only the final act of a process such as that at issue – Regulation No 2021/468 in this case – would fall outside the scope of that provision of Regulation No 1049/2001.
44According to the applicants at first instance, first, those votes are not temporary opinions which may change at any time, but the result of deliberations. Nor do they constitute internal deliberations or preliminary consultations of the PAFF Committee or of the Commission, since the act of voting on a topic takes place after the end of discussions or deliberations on that topic. Only deliberations or consultations are covered by the wording of the second subparagraph of Article 4(3) of Regulation No 1049/2001, however.
45Second, as is apparent from the judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:496), votes do not fall within the category of ‘opinions for internal use’ referred to in the second subparagraph of Article 4(3) of Regulation No 1049/2001. Nor do they fall within the type of opinion for which it is necessary for the members of the committee in question to have a ‘space to think’. The individual votes of the Member States in the PAFF Committee are the expression of their sovereignty and are not ‘internal’ to the Commission or to that committee.
46Third, in the light of Article 2 TEU, to interpret individual votes cast by Member States in a comitology procedure as falling within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001 would undermine the democratic legitimacy of EU implementing acts. Not only would it make it impossible for EU citizens to know how those States have voted, but, in a case such as the present one, they would also not be in a position to review the lawfulness of a decision taken in a procedure such as that at issue.
47The Commission disputes that line of argument.
Findings of the Court
48As is apparent from the case-law of the Court, Article 4(3) of Regulation No 1049/2001 draws a clear distinction by reference to whether a procedure has been closed or not. First, according to the first subparagraph of that paragraph 3, any document drawn up by an institution for internal use or received by an institution which relates to a matter where the decision has not been taken by the institution falls within the scope of the exception for protecting the decision-making process (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 78).
49Second, taking the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 80), the EU legislature, in the second subparagraph of that paragraph 3, imposed strict conditions on the reliance of the exception laid down in Article 4(3) of Regulation No 1049/2001. Indeed, that exception only covers certain types of documents, namely documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, and the justification for refusing access to such documents is that the disclosure would ‘seriously’ undermine the institution’s decision-making process (see, to that effect, judgment of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 77).
50However, as the Advocate General observed in point 58 of his Opinion, the fact remains that, as the Court has held, that exception applies to any document containing such opinions (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 93).
51In the case at hand, it is apparent from the provisions governing the procedure in which the votes of the Member States concerned by the request of the applicants at first instance were cast that the casting of those votes constitutes a stage in the decision-making process at issue and the said votes must be regarded as opinions for internal use as part of deliberations and preliminary consultations within the Commission, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
52More specifically, by those votes, cast within the PAFF Committee, the Member States expressed their support for a draft Commission regulation amending Annex III to Regulation No 1925/2006, which, pursuant to Article 8(2) and Article 14(3) of that regulation, may be amended in accordance with the regulatory procedure with scrutiny governed by Article 5a of Decision 1999/468.
53It was at the end of the vote in that committee, which is to assist the Commission in accordance with Article 58 of Regulation No 178/2002 and Article 5a(1) of Decision 1999/468, and in view of the favourable opinion of the said committee which resulted therefrom, that the Commission, pursuant to Article 5a(3)(a) of that decision, submitted that draft regulation to the Parliament and the Council for scrutiny.
54Thus, as the General Court correctly found in paragraph 43 of the judgment under appeal, the votes concerned by the request of the applicants at first instance, on the basis of which the committee concerned is to deliver an opinion before the Commission submits its draft regulation to the Parliament and the Council, constitute ‘opinions’ within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, which cannot be regarded, as such, as being the final outcome of the decision-making process at issue.
55In the first place, as the Advocate General observed, in essence, in point 62 of his Opinion, nothing in Regulation No 1049/2001 allows for the exclusion from the scope of the second subparagraph of Article 4(3) of that regulation of documents which are not designated as ‘opinions’, but which are held by the institution concerned and are intended for internal use as part of deliberations and preliminary consultations within that institution. Therefore, in so far as it cannot be disputed that the votes concerned by the request of the applicants at first instance give concrete expression to the opinions that the Member States expressed, within the PAFF Committee, on the measures envisaged by the Commission with a view to amending Annex III to Regulation No 1925/2006, those votes must be regarded as constituting opinions, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001.
56In the second place, it is apparent from Article 5a(3) and (4) of Decision 1999/468 that the positive or negative opinion delivered by the committee concerned – in this case by the PAFF Committee – at the end of the vote cast by the representatives of the Member States which comprise it, is not the factor which determines whether or not the measures envisaged by the Commission will be adopted, since that institution is, in any event, required to submit a proposal for measures to the Parliament and the Council irrespective of the inclination of the opinion delivered by that committee.
57Admittedly, in accordance with paragraph 3 of Article 5a of Decision 1999/468, if the measures envisaged by the Commission are, as in this case, in accordance with the opinion of the Committee, the Commission is ‘without delay [to] submit’ the draft measures to the Parliament and the Council for scrutiny. However, contrary to what the applicants at first instance appear to argue, the wording of that provision cannot have the effect of altering, depending on the inclination of the opinion delivered by the committee concerned, either the status of that committee which, in accordance with paragraph 1 of that Article 5a, is to assist the Commission, or the nature of the votes cast by the Member States within the said committee. Thus, those votes cannot, in any event, be regarded as leading, on their own, to the adoption of an amending regulation such as, in the case at hand, Regulation No 2021/468.
58Those considerations cannot be called into question by the arguments of the applicants at first instance set out in paragraph 46 of the present judgment. After all, the fact that the votes of the Member States cast in a process such as the decision-making process invoked by the Commission in this case fall within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001 does not mean that EU citizens are, in general, prevented from knowing which way those votes have gone and cannot, therefore, be regarded as undermining the democratic legitimacy of EU implementing acts. It is worth recalling, in that regard, that, in accordance with that provision, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned may be refused, even after the decision has been taken, only if disclosure of that document would seriously undermine the institution’s decision-making process, unless there is an overriding interest in disclosure.
59It should be borne in mind, however, that, as the Advocate General noted in point 67 of his Opinion, according to Article 1(a) thereof, the purpose of Regulation No 1049/2001, read in the light of recital 4 thereof, is to give the fullest possible effect to the right of access to documents of the EU institutions. While, admittedly, that right is subject, even where it involves documents relating to the activity of an institution in its capacity as legislator, to certain limits based on reasons of public or private interest, it does not change the fact that, as such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see, to that effect, judgment of 16 January 2025, Commission v Pollinis France, C‑726/22 P, EU:C:2025:17, paragraph 62 and the case-law cited).
60In the light of all the foregoing, the single plea in law put forward by the applicants at first instance must be rejected and, consequently, the cross-appeal must be dismissed in its entirety.
The main appeal
61In support of its appeal, the Commission relies on two grounds of appeal, the first alleging that the General Court erred in law in holding that the legal framework applicable to comitology was irrelevant in the examination of whether disclosure of the requested documents would seriously undermine that institution’s decision-making process, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001, the second alleging that the General Court erred in law in that, in that examination, it failed to carry out a global assessment of all the relevant factors.
The first ground of appeal
Arguments of the parties
62The first ground of appeal is divided into two limbs.
63By the first limb of the first ground of appeal, the Commission claims that the General Court erred in law in its application of the principle of consistent interpretation of Regulation No 1049/2001 with other sectorial rules not directly related to access to documents and, therefore, acted in breach of its obligation to state reasons.
64Referring, more specifically, to paragraphs 64 and 67 of the judgment under appeal, the Commission submits that the General Court erred in law in holding that Article 10(1) of Regulation No 182/2011 and Article 10(2) of the Standard Rules of Procedure were not relevant to access to documents. Those provisions are relevant to the application of the exception provided for in Article 4(3) of Regulation No 1049/2001 and should have been taken into account in the analysis of whether there was a risk of that institution’s decision-making process being undermined. In support of those assertions, the Commission relies on the judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376, paragraphs 58 and 59); of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 79 et seq.); of 28 June 2012, Commission v Agrofert Holding (C‑477/10 P, EU:C:2012:394); and of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 59 to 64).
65In the light of those judgments, the Commission considers that the fact that the comitology rules provide that summary records of the discussions carried out on the basis of those rules must indicate the voting results without mentioning the individual positions of the members are among the relevant ‘objective reasons’ to be taken into account in the concrete assessment of the confidentiality of documents containing individual votes. To the extent that the General Court did not explain why it departed from the judgments mentioned in the preceding paragraph of the present judgment, the Commission considers that it also acted in breach of its obligation to state reasons.
66By the second limb of the first ground of appeal, the Commission argues that the General Court misinterpreted Article 13 of the Standard Rules of Procedure. Citing in particular paragraphs 66 and 67 of the judgment under appeal, it claims, in essence, that, if the comitology rules were not duly taken into account, they would become devoid of purpose. The General Court’s interpretation of Article 13 of the Standard Rules of Procedure conflicts with its wording and with that of Article 10(2) of those rules of procedure, as those two provisions reflect the sensitivity of the individual positions expressed by the Member States.
67It is clear from a combined reading of those provisions and of Article 10 of Regulation No 182/2011 – to which Article 10(2) of the Standard Rules of Procedure refers – that the individual positions of the members of the committee concerned and the documents submitted to those members are considered to contain sensitive information. The Commission emphasises, in that regard, the difference between, on the one hand, Article 13(2) of the Standard Rules of Procedure, which is worded in absolute terms, and, on the other hand, paragraph 3 of that Article 13, which explicitly refers to exceptions in relation to documents exchanged with representatives of third parties within comitology committees. While acknowledging that ‘the guiding principle is openness’, the Commission considers that that difference and the provisions of Regulation No 182/2011 reflect the intention of the EU legislature to offer heightened protection to the ‘discussions’ taking place in the comitology procedure and to the individual positions expressed by the members of those committees. Those rules of procedure cannot be disregarded solely because documents exchanged in comitology procedures fall within the scope of Regulation No 1049/2001.
68Referring, moreover, to paragraph 63 of the judgment under appeal, the Commission submits that rules such as Article 339 TFEU are not lex specialis permitting derogation from the requirements provided for by Regulation No 1049/2001, but can and must be taken into account in the context of its application, as that regulation does not fix in advance and in abstracto a particular level of transparency applicable to EU activities and does not limit the various legal or factual matters which may be taken into account to demonstrate in concreto that disclosure of a document may jeopardise the interests liable to be protected by Article 4 thereof.
69Last, the Commission submits that, for the same reasons as those mentioned in paragraphs 66 to 68 of the present judgment, the General Court erred in law in concluding, in paragraphs 73 to 76 of the judgment under appeal, that the Commission relied on an abstract reasoning relating to the maintenance of cooperation between the Member States in comitology procedures in general.
70The applicants at first instance, supported by the Kingdom of the Netherlands, dispute that line of argument.
Findings of the Court
71By the two limbs of its first ground of appeal, which it is appropriate to examine together, the Commission disputes, in essence, on the one hand, the General Court’s interpretation of the provisions of Regulation No 182/2011 and of the Standard Rules of Procedure. According to that institution, those provisions provide for the confidentiality of the proceedings of a committee such as the PAFF Committee and, in particular, the confidentiality of the positions expressed by the Member States within that committee. On the other hand, the Commission disputes the correlation established by the General Court between those provisions and those of Regulation No 1049/2001.
72By that line of argument, however, the Commission is essentially asking the Court to recognise, in this case, the existence of a general presumption of confidentiality and, therefore, of non-disclosure of certain documents relating to comitology procedures, particularly of documents relating to the individual positions of the Member States expressed during the proceedings of committees such as the PAFF Committee.
73It is worth recalling, in that regard, that, in accordance with well-established case-law, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to be covered by an activity mentioned in Article 4(3) of Regulation No 1049/2001. The institution concerned must also provide explanations as to how access to that document could specifically undermine the interest protected by an exception laid down in that article and invoked by it (see, to that effect, judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 53, and of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64 and the case-law cited).
74The Court has acknowledged, however, that it is open to the EU institution concerned to base its decisions in that regard on general presumptions which apply to certain categories of documents, as considerations of a generally similar kind are likely to apply to requests for disclosure relating to documents of the same nature (judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 65 and the case-law cited).
75Recognition of a general presumption in respect of a new category of documents presupposes, however, that it has first been shown that it is reasonably foreseeable that disclosure of the type of document falling within that category would be liable actually to undermine the interest protected by the exception in question. Furthermore, as general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, more generally, to the principle that the public should have the widest possible access to the documents held by the institutions of the European Union, they must be interpreted and applied strictly (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 80 and the case-law cited).
76In that type of situation, the recognition that there is a general presumption that the disclosure of documents of a certain nature will, in principle, undermine the protection of one of the interests listed in Article 4 of Regulation No 1049/2001 enables the institution concerned to deal with a global application and to reply thereto accordingly (judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 68 and the case-law cited).
77In the case at hand, in the first place, as the General Court rightly pointed out in paragraph 67 of the judgment under appeal, Article 9(2) of Regulation No 182/2011, read in conjunction with recital 19 of that regulation, states that the right of access to documents falling within its scope is to be exercised in accordance with Regulation No 1049/2001. In that regard, as is apparent from the same paragraph of the judgment under appeal, Article 10(1) of Regulation No 182/2011, which merely lists the elements which must be included in the register kept for the proceedings of a committee such as the PAFF Committee, is irrelevant, that provision not containing any specific rule regarding access to those elements or to other documents.
78In the second place, as the General Court recalled in paragraphs 63 to 68 of the judgment under appeal, the provisions of the Standard Rules of Procedure cannot, furthermore, be interpreted as precluding public access to the individual positions of the Member States. In particular, the fact that Article 10(2) of those rules of procedure provides that the summary record of committee proceedings is not to mention those individual positions cannot in any way prejudice, as the General Court noted, correctly, in paragraph 64 of that judgment, public access, upon application, to documents showing the said individual positions. As for Article 13 of the said rules of procedure, it contains provisions expressly governing the relationship between it and Regulation No 1049/2001. According to paragraph 1 of that Article 13, requests for access to committee documents are, without exception, to be dealt with by the Commission in accordance with Regulation No 1049/2001.
79It is true that, as the General Court highlighted in paragraph 66 of the judgment under appeal, paragraph 2 of that Article 13 provides that the committees’ ‘deliberations’ are to be confidential. However, it must be pointed out that paragraph 3 of the same Article 13, which makes the documents submitted to committee members, experts and representatives of third parties subject to the regime provided for by Regulation No 1049/2001 notwithstanding their confidential nature, does not contain any exception.
80In any event, Article 13 of the Standard Rules of Procedure, which, by virtue of Article 9(1) of Regulation No 182/2011, is a text ‘drawn up’ and ‘made public’ by the Commission ‘following consultation with the Member States’, must be interpreted in a manner consistent with Regulation No 1049/2001, by which, as has been recalled in paragraph 59 of the present judgment, the EU legislature established the principle of the widest possible access to documents of the EU institutions.
81It follows that the General Court was fully entitled, in compliance with its obligation to state reasons, to hold, in paragraphs 67 and 68 of the judgment under appeal, that the legal framework relating to comitology procedures could not, in itself, preclude the right of access to documents resulting from Regulation No 1049/2001 and could not, on its own, allow the Commission to allege a risk of serious undermining of its decision-making process.
82The case-law relied on in that regard by the Commission is, in the present case, irrelevant.
83First, in the judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376), the Court found that general presumptions such as those referred to in paragraph 74 of the present judgment may arise from the rules applicable to procedures for reviewing State aid and from the case-law concerning the right to consult documents on the related administrative file. As the Court held in paragraph 56 of that judgment, Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1), applicable in the case which had given rise to that judgment, did not lay down ‘any right of access to documents in the Commission’s administrative file for interested parties’ in the context of a procedure for reviewing State aid. That is not the case, however, with either Regulation No 182/2011 or the Standard Rules of Procedure, which, as is apparent from paragraphs 77 and 78 of the present judgment, refer either explicitly or in substance to the access to documents regime provided for by Regulation No 1049/2001.
84Second, considerations similar to those set out in the judgment cited in the preceding paragraph are applicable, as the Court indicates in paragraph 59 of its judgment of 28 June 2012, Commission v Agrofert Holding (C‑477/10 P, EU:C:2012:394), to merger control proceedings. It considered, after all, in paragraph 62 of that judgment, that generalised access, on the basis of Regulation No 1049/2001, to the documents exchanged in the context of such a procedure, between the Commission and the notifying parties or third parties would jeopardise the balance that the EU legislature wished to ensure between the obligation on undertakings to communicate possibly sensitive commercial information to the Commission in order that it may assess the compatibility of the proposed transaction with the common market, on the one hand, and the guarantee of increased protection, by virtue of the requirement of professional and business secrecy, for the information so provided to the Commission, on the other hand. As the Advocate General observed in point 91 of his Opinion, however, the Standard Rules of Procedure cannot be regarded as being the result of such a balance struck by the EU legislature in order to protect the work of comitology committees.
85Third, in its judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738), the Court recognised the existence of a general presumption such as that referred to in paragraph 74 of the present judgment with regard to documents relating to an infringement procedure. It is apparent from paragraph 59 of the former judgment that EU law does not provide for the right for an individual to consult the file relating to such a procedure, even if that procedure has been brought about by that individual’s complaint. It must however be emphasised that considerations such as those set out in paragraph 63 of the former judgment, which refer specifically to the consequences that any disclosure of documents within such a file might have on the conduct of the infringement procedure concerned, are not relevant in the case at hand.
86Fourth, the regulatory framework applicable to comitology procedures cannot be compared with the rules governing the disclosure of pleadings lodged by an institution in proceedings pending before the courts, either. According to the case-law, there is no provision for a general third-party right of access to pleadings submitted to the Court in such proceedings (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 99).
87Finally, the case-law relied on by the Commission in support of its argument cannot be applicable in the case at hand given the particular nature of the procedure to which the requested documents relate.
88In that regard, as is apparent from Article 2(2)(a) of Regulation No 182/2011, committees such as the PAFF Committee are to assist the Commission, inter alia in the procedure for the adoption of implementing acts of general scope. Furthermore, according to recital 7a of Decision 1999/468, the regulatory procedure with scrutiny, applied in the case at hand, must allow the two arms of the legislative authority to scrutinise measures which seek to amend non-essential elements of a basic instrument adopted in accordance with the ordinary legislative procedure before they are adopted.
89Account must therefore be taken, when examining the Commission’s line of argument, of the advantages stemming, as noted in recital 2 of the preamble to Regulation No 1049/2001, from increased openness, in that this enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45).
90While those considerations are of particular relevance where the EU institutions are acting in their legislative capacity (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46), they are also relevant where the Commission is exercising its powers in the context of a procedure for the adoption of implementing acts of general scope, such as the procedure for drawing up a draft regulation amending Annex III to Regulation No 1925/2006, which acts, as the Advocate General observed in point 100 of his Opinion, may affect EU citizens as a whole.
91In the light of all the foregoing, the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
92The second ground of appeal is divided into two limbs.
93By the first limb of the second ground of appeal, the Commission complains that the General Court acted in breach of its obligation to state reasons and made an incomplete assessment of the arguments put forward in the decision at issue.
94In particular, the General Court divided into two categories the arguments presented in that decision, namely those concerning ‘the individual position of the Member States in comitology procedures’, examined in paragraphs 54 to 69 of the judgment under appeal, and those concerning ‘the cooperation of the Member States in the comitology procedure’, examined in paragraphs 70 to 76 of that judgment. The General Court did not examine the risk of disclosure of the documents concerned in the light of the principle of sincere cooperation laid down in Article 4(3) TEU. That provision could justify the non-disclosure of confidential information where it could jeopardise the legislative process.
95The General Court also failed to examine the fact that the procedure for the adoption of Regulation No 2021/468 had not been entirely completed, which was an essential element showing that ‘it was not excluded that the Commission had to reopen the discussions before [its] final adoption …’. Accordingly, the General Court acted in breach of its obligation to state reasons, making an ‘incomplete assessment of the arguments as put forward by the Commission in the [decision at issue]’.
96By the second limb of the second ground of appeal, the Commission submits that the General Court failed to carry out a global assessment of the circumstances put forward in the context of that institution’s examination of whether there was a risk that the decision-making process invoked in the decision at issue would be seriously undermined.
97The applicants at first instance dispute that line of argument.
Findings of the Court
98By the two limbs of its second ground of appeal, which it is appropriate to examine together, the Commission complains, in essence, that the General Court failed, in its assessment of whether there was a risk that the Commission’s decision-making process would be seriously undermined, to carry out a global assessment of the evidence that it had put forward. In particular, the General Court disregarded the relevance, first, of Article 4(3) TEU and, second, of the comitology rules relating to the confidentiality of the proceedings of committees such as the PAFF Committee. In those circumstances, the General Court also acted in breach of its obligation to state reasons.
99As is apparent from paragraphs 73 and 74 of the present judgment, subject to cases where the Court recognises a general presumption of non-disclosure of a category of documents, the EU institutions are obliged to carry out an individual and concrete examination of each of the documents requested under Regulation No 1049/2001 and to provide specific explanations concerning the risk of undermining the decision-making process invoked by them and cannot therefore confine themselves to abstract, general reasons in order to justify the non-disclosure of those documents.
100As follows from the considerations set out in the examination of the first ground of appeal, however, the premiss on which the Commission relied in the decision at issue, namely that the regulatory framework governing comitology procedures protects, as regards an application for access to documents, the confidentiality of the individual positions of the Member States, is incorrect.
101In the light of those findings, none of the arguments put forward by the Commission in its second ground of appeal is capable of calling into question paragraph 73 of the judgment under appeal, by which the General Court considered that the decision at issue is based on abstract reasoning relating to the maintenance of cooperation between the Member States in comitology procedures in general.
102That is particularly true of the circumstance, relied on by the Commission, according to which the General Court did not examine, as an independent argument, the argument that it derived from Article 4(3) TEU, to which the latter, in any event, referred expressly in paragraph 72 of the judgment under appeal. Indeed, the General Court noted in paragraphs 73 and 74 of that judgment – without the Commission challenging it at the stage of the present appeal – that the negative consequences identified in the decision at issue as regards the cooperation of the Member States had no concrete link with the specific circumstances of the decision-making process at issue, those negative consequences being based on the premiss that comitology procedures protected, as regards an application for access to documents, the confidentiality of the individual positions of the Member States, which premiss, as has been recalled in paragraph 100 of the present judgment, is incorrect.
103The same applies to the Commission’s claims that the General Court failed to take account of the comitology rules relating to the confidentiality of procedures such as that at issue in the case at hand. In that regard, the General Court held, in paragraphs 68 and 69 of the judgment under appeal, that, although the legal framework relating to comitology procedures could not preclude the right of access to documents resulting from Regulation No 1049/2001 or lead the Commission to allege a risk of serious undermining of the decision-making process solely because of the applicability of that legal framework, that did not in any way prevent that institution, in duly justified cases, from refusing access to documents such as the documents requested in the case at hand, where their disclosure would be likely specifically to undermine the interests protected by the exceptions provided for in Article 4 of that regulation. The Commission however does not claim to have set out, in the decision at issue, any specific evidence capable of establishing the existence of such a risk as regards the decision-making process concerned.
104Furthermore, while the Commission claims that the General Court wrongly divided the arguments presented in the decision at issue into two categories, that institution does not explain how the General Court failed to take account of all the relevant factors in the present case or why another method of examining those arguments would have led to a different result.
105In those circumstances, the Commission also cannot maintain that the General Court acted in breach of its obligation to state reasons.
106Last, it is necessary to reject the Commission’s argument that the General Court failed to examine the fact that the procedure for the adoption of Regulation No 2021/468 had not been entirely completed, which, according to the Commission, is apparent from the decision at issue.
107On the one hand, it must be pointed out that it is apparent inter alia from paragraph 25 and the operative part of the judgment under appeal that, in that decision, the Commission – which, in its appeal, does not argue distortion in that regard – relied on the second subparagraph of paragraph 3 of Article 4 of Regulation No 1049/2001, and not on the first subparagraph of that paragraph 3, relating to the protection of a decision-making process still ongoing. As the Advocate General observed in point 114 of his Opinion, however, once the Commission relies on that second subparagraph, it cannot rely on the alleged non-completion of the procedure in order to argue that disclosure of the requested documents would seriously undermine its decision-making process.
108On the other hand and in any event, Regulation No 2021/468 was adopted on 18 March 2021, that is to say before the adoption, on 7 April of that year, of the decision at issue. The procedure for the adoption of that regulation cannot therefore be considered not to have been entirely completed at the time of the adoption of that decision.
109In the light of the foregoing, the second ground of appeal must be rejected and, consequently, the appeal must be dismissed in its entirety.
Costs
110In accordance with the first paragraph of Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court shall make a decision as to costs.
111Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
112Since the Commission has been unsuccessful in its main appeal and the applicants at first instance have applied for costs, that institution must be ordered to pay the costs relating to the main appeal.
113Since the applicants at first instance have been unsuccessful in their cross-appeal and the Commission has applied for costs, the applicants at first instance must be ordered to pay the costs relating to the cross-appeal.
114Article 140(1) of the Rules of Procedure of the Court of Justice, which is applicable to the procedure on appeal by virtue of Article 184(1) thereof, provides that the Member States and institutions which have intervened in the proceedings are to bear their own costs.
115Consequently, the Kingdom of the Netherlands must bear its own costs.
Operative part
On those grounds, the Court (Fifth Chamber) hereby:
1.Dismisses the main appeal and the cross-appeal;
2.Orders the European Commission to pay the costs relating to the main appeal;
3.Orders Covington & Burling LLP and Mr Bart Van Vooren to pay the costs relating to the cross-appeal;
4.Orders the Kingdom of the Netherlands to bear its own costs.
Delivered in open court in Luxembourg on 5 February 2026.
Source: EUR-Lex, © European Union, 1998-2026. Reuse authorised under Decision 2011/833/EU.