Contents
Judgment of the General Court (Ninth Chamber)29 October 2025note(Access to documents — Regulation (EC) No 1049/2001 — Working documents issued by the General Secretariat of the Council concerning two legislative proposals pending at the time of the request for access — Partial refusal of access — Exception relating to the protection of the decision-making process — Action for annulment — No publication, in the Council’s register, of documents to which access was granted pursuant to a request — Absence of a challengeable act — Inadmissibility)In Case T‑590/23,Emilio De Capitani, residing in Brussels (Belgium), represented by O. Brouwer, T. van Helfteren and N. Piga, lawyers,supported byKingdom of Belgium, represented by M. Jacobs and C. Pochet, acting as Agents,byRepublic of Finland, represented by H. Leppo and M. Pere, acting as Agents,and byKingdom of Sweden, represented by C. Meyer-Seitz, acting as Agent,vCouncil of the European Union, represented by L. Atzeni, X. Chamodraka and J. Rurarz, acting as Agents,supported byFrench Republic, represented by B. Fodda, B. Herbaut, S. Royon and B. Travard, acting as Agents,THE GENERAL COURT (Ninth Chamber),composed, at the time of the deliberations, of L. Truchot, President, M. Sampol Pucurull (Rapporteur) and T. Perišin, Judges,Registrar: P. Cullen, Administrator,having regard to the written part of the procedure,having regard to the order of 20 March 2025 ordering the Council to produce the documents to which it had refused the applicant access and the production of those documents by the Council on 3 April 2025,having regard to the written questions and requests for the production of documents addressed to the applicant and Council on 13 March and 10 April 2025 and their responses,further to the hearing on 30 April 2025,gives the following
Judgment
1By his action based on Article 263 TFEU, the applicant, Mr Emilio De Capitani, seeks the annulment, first, of Decision SGS 23/002579 of the Council of the European Union of 14 July 2023 in so far as it refused him access, on the basis of the exception relating to the protection of the decision-making process, to two working documents drawn up by the General Secretariat of the Council in the context of two legislative procedures pending at the time of the request for access (2016/0132 (COD) and 2020/0279 (COD)) which were part of the Pact on Migration and Asylum (‘the contested decision’) and, secondly, of the ‘implicit or continued explicit decision’ of the Council not to directly publish, in the register it keeps (‘the register’), legislative documents to which access was granted pursuant to a request under 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).
Background to the dispute
2On 6 March 2023, the applicant submitted, on the basis of Regulation No 1049/2001, a request for access to, inter alia, 33 Council working documents exchanged in the course of several legislative procedures (‘the initial request’). In accordance with internal classification rules, the Council working documents bear the code ‘WK’ (‘WK documents’).
3By three letters of 27 March, 20 April and 24 April 2023, the General Secretariat of the Council replied to the initial request by providing the applicant full access to 27 WK documents and partial access to 3 WK documents. However, the Council completely refused access to documents WK 1505/2023 and WK 1513/2023 (together, ‘the documents at issue’) and to document WK 768/2023 on the ground, in essence, that their disclosure would seriously undermine its decision-making process.
4As is apparent from the letter of the General Secretariat of the Council of 24 April 2023, the documents at issue were drawn up by the latter in the context of the examination within the Council of two legislative proposals which were pending at the time of the initial request. Each contains a compilation of comments of the delegations of the Member States on those proposals.
5In particular, document WK 1505/2023, addressed to the Council’s ‘Asylum’ working group and drawn up in the context of legislative procedure 2020/0279 (COD), concerns the proposal for a Regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive [2003/109/EC] and the proposed [Asylum and Migration Fund Regulation] (‘the proposal for a regulation on asylum and migration management’).
6Document WK 1513/2023, addressed to the Council’s Justice and Home Affairs Counsellors and drawn up in the context of legislative procedure 2016/0132 (COD), concerns the amended proposal for a Regulation of the European Parliament and of the Council on the establishment of ‘Eurodac’ for the comparison of biometric data in order to effectively apply the Regulation on Asylum and Migration Management and the Resettlement Regulation, to identify illegally staying third-country nationals or stateless persons and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes and amending Regulations (EU) 2018/1240 and (EU) 2019/818 (‘the amended proposal for the Eurodac Regulation’).
7Those two legislative proposals are part of the Pact on Migration and Asylum, which was made up of a series of legislative acts which the European Commission had proposed on 23 September 2020.
8On 14 May 2023, the applicant made a confirmatory application for access to the documents at issue under Article 7(2) of Regulation No 1049/2001 (‘the confirmatory application’).
9On 14 July 2023, the Council adopted the contested decision, by which it confirmed the refusal to grant access to the documents at issue on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
Facts subsequent to the bringing of the action
10On 14 May 2024, the Council and the European Parliament adopted the legislative acts that are part of the Pact on Migration and Asylum and accordingly concluded the legislative procedures in the context of which the documents at issue were created.
11On 11 and 12 September 2024, the documents at issue were classified by the Council as public on the basis of Article 11(6) of Annex II to its decision of 1 December 2009 adopting the Council’s Rules of Procedure (OJ 2009 L 325, p. 35; ‘the Rules of Procedure’), with the result that they may now be automatically disclosed to anyone who requests them.
Forms of order sought
12The applicant claims that the Court should:– annul the contested decision in so far as it refuses him access to the documents at issue;– annul the ‘implicit or continued explicit decision’ of the Council not to publish directly in the register legislative documents to which access was granted pursuant to a request for access under Regulation No 1049/2001, in accordance with Article 2 and Article 12 of that regulation and the principle of legislative transparency set out in Article 15(2) TFEU;– order the Council to pay the costs.
13The Council contends that the Court should:– dismiss the applicant’s second head of claim as inadmissible;– dismiss the action as unfounded as regards the remainder or in its entirety, in the event of the second head of claim being deemed to be admissible;– order the applicant to pay the costs.
14The Kingdom of Belgium and the Republic of Finland claim that the Court should:– annul the contested decision in so far as it refuses access to the documents at issue;– order the Council to pay the costs.
15The French Republic contends that the Court should:– dismiss the applicant’s second head of claim as inadmissible;– dismiss the action as unfounded as to the remainder;– order the applicant to pay the costs.
16The Kingdom of Sweden states, in essence, that it supports the applicant’s first head of claim.
Law
17In support of the action, the applicant relies on four pleas in law.
18The first plea in law alleges an error in law in the interpretation and application of the exception relating to the protection of the decision-making process laid down by the first subparagraph of Article 4(3) of Regulation No 1049/2001, notably because the interpretation and application of that exception in the contested decision infringe the obligation of legislative transparency set out in Article 15(2) TFEU. That plea consists, in essence, of three parts which concern, first, the interpretation of that exception in the light of Article 15(2) TFEU and Article 16(8) TEU; secondly, the refusal to grant access to the documents at issue pursuant to that exception; and, thirdly, the Council’s alleged practice, claimed to be reflected in the contested decision, of not making WK documents public, whether at its own initiative in the register or on request, which infringes Article 15(2) TFEU.
19The second plea in law alleges, in the alternative, the existence, in any event, of an overriding public interest justifying the disclosure of the documents at issue.
20The third plea in law, submitted in the further alternative, alleges the necessity of granting, at the very least, partial access to the documents at issue, in accordance with Article 4(6) of Regulation No 1049/2001, and a failure to state reasons.
21The fourth plea in law alleges an error in law and infringement of Article 2 and Article 12 of Regulation No 1049/2001 and of the principle of legislative transparency set out in Article 15(2) TFEU, because the Council decided, implicitly in the contested decision and/or in an explicit and continued manner, not to publish directly in the register the legislative documents which were disclosed at the request of a citizen.
22It must be found that the application does not clearly indicate which pleas relate to which heads of claim.
23From reading the pleadings of the parties, it is appropriate to find that the fourth plea in law and the arguments put forward in the third part of the first plea in law, which concern the lack of publication by the Council of WK documents in the register, relate, in essence, to the applicant’s second head of claim, as he confirmed at the hearing.
24As regards the applicant’s first head of claim, it is supported by the other pleas and arguments put forward in the application.
The plea of inadmissibility raised against the applicant’s second head of claim
25The Council, supported by the French Republic, argues that the applicant’s second head of claim and the arguments put forward in support of it are inadmissible.
26In order to examine this plea of inadmissibility, it is appropriate to ascertain, first of all, what the purpose is of the applicant’s second head of claim before examining its admissibility.
The purpose of the second head of claim
27As has been stated in paragraph 12 above, by his second head of claim, the applicant requests that the Court annul the ‘implicit or continued explicit decision’ of the Council not to publish directly in the register legislative documents to which access was granted pursuant to a request for access under Regulation No 1049/2001.
28The Council submits that that head of claim does not constitute an action for annulment of an act under Article 263 TFEU, but rather a request for a declaratory judgment or, at best, an action for failure to act brought on the basis, in essence, of Article 265 TFEU.
29The applicant states that, by the second head of claim, he is in no way requesting a declaratory judgment and does not allege failure to act for the purpose of Article 265 TFEU.
30According to the applicant, the ‘implicit decision and/or explicit continued decision’ of the Council not to publish in the register the WK documents to which he gained access, referred to by the second head of claim, is inherently covered by the contested decision and may therefore be challenged on the basis of the fourth paragraph of Article 263 TFEU.
31In response to a written question from the Court concerning the scope of the action for annulment of an alleged ‘continued explicit decision’ of the Council not to publish directly in the register legislative documents, the applicant stated at the hearing that he did not intend to raise a plea of illegality against certain provisions of the Rules of Procedure referred to in his pleadings. The Council confirmed that it understood the application in the same way.
32From reading the applicant’s arguments, it must be found that, by his second head of claim, he seeks, in essence, annulment of the contested decision on the basis of the fourth paragraph of Article 263 TFEU, because, in his view, that decision implicitly refuses the publication in the register of the documents referred to in the initial request and to which he had been granted access, thus reflecting an alleged practice of the Council of not making WK documents public.
The admissibility of the second head of claim
33On the assumption that the second head of claim ought to be regarded as having been put forward on the basis of the fourth paragraph of Article 263 TFEU, the Council and the French Republic submit that the issue of publication, in the register, of the WK documents to which the applicant gained access in response to the initial request is not dealt with in the contested decision, either explicitly or implicitly. In their view, that decision concerns only the refusal to grant access to the documents at issue. The applicant, they argue, did not indicate any other act which concerned the alleged decision of the Council not to directly publish in the register the documents to which he had been granted access or any other document. According to them, it follows that, as regards the applicant’s second head of claim, there is an absence of a challengeable act.
34In any event, the Council and the French Republic state that, in order to seek the annulment of a decision under the fourth paragraph of Article 263 TFEU, the applicant must demonstrate that he or she is directly concerned by the lack of publication of the relevant documents in the register and prove a personal interest in obtaining annulment of that decision.
35However, according to the Council, the applicant cannot claim an interest in having any WK document published in the register, since such publication is governed by provisions of Regulation No 1049/2001 which do not relate to specific applications for access. Furthermore, since he has received certain WK documents in response to the initial request, the applicant, it argues, lost any interest in having them entered into the register and is therefore not directly concerned.
36The French Republic adds that, in order to justify his interest in bringing proceedings, the applicant cannot effectively argue that the WK documents to which he gained access should have been published in the register so as not to discriminate against other EU citizens and institutions such as the Parliament.
37The applicant responds that the contested decision indicates that the Council had granted access to certain WK documents referred to in the initial request. However, according to the applicant, that does not amount to making those documents available to the public, as required by Articles 11 and 12 of Regulation No 1049/2001 and Article 15(2) TFEU. Accordingly, the applicant has not obtained full satisfaction, since the contested decision is, from a legal perspective, partial or incomplete and infringes his rights to legislative transparency and democracy.
38The applicant claims that a person requesting documents is entitled to have those documents published in the registry and made accessible on the basis of Articles 11 and 12 of Regulation No 1049/2001 and, accordingly, by reason of a decision which grants access to those documents pursuant to a request brought on the basis of Article 2(1) of that regulation. According to the applicant, requiring that person to challenge an alleged ‘non-publication act’ would mean that such a person has to demonstrate that he or she is directly and individually concerned by that act. Such a requirement would clearly be disproportionate and undermine the public’s right of access to documents entered into the register and the applicant’s right to effective judicial review in relation to that non-publication.
39The applicant adds that the fact that he actually received some WK documents in response to the initial request should not deprive him of the right to challenge the ‘partial decision’ of the Council not to publish those documents in the register.
40On that basis, the applicant submits that his second head of claim and the arguments put forward in support of it are admissible.
41In that regard, it is appropriate, first of all, to ascertain whether the contested decision contains, in addition to the refusal to grant access to the documents at issue, an implicit refusal of the Council to publish in the register the documents disclosed to the applicant in response to the initial request, capable of constituting a challengeable act for the purpose of the fourth paragraph of Article 263 TFEU.
42It is not disputed that the contested decision does not refer to the publication, in the register, of the documents disclosed to the applicant and that those documents had not been published on the date on which the present action was brought.
43According to settled case-law, in principle, both the Court of Justice and the General Court refuse to accept – since to do so would call into question the system of remedies instituted by the FEU Treaty – that mere inaction on the part of an institution can be deemed to be equivalent to an implied decision, unless there are express provisions laying down a deadline after which an implied decision will be deemed to have been taken by the institution which has been asked to state its position and prescribing the content of that decision (see order of 13 November 2012, ClientEarth and Others v Commission, T‑278/11, EU:T:2012:593, paragraph 32 and the case-law cited).
44Furthermore, the Court of Justice has not excluded that, in certain particular circumstances, the principle referred to in paragraph 43 above may not be applicable, with the result that an institution’s silence or inaction may exceptionally be considered to constitute an implied decision of refusal (see, to that effect, judgment of 9 December 2004, Commission v Greencore, C‑123/03 P, EU:C:2004:783, paragraph 45).
45In the present case, it must accordingly be ascertained whether the silence of the Council in the contested decision as regards the publication, in the register, of the WK documents to which access was granted to the applicant is capable of constituting an implicit decision of the Council to refuse such publication by virtue of either of the hypotheses referred to in paragraphs 43 and 44 above.
46In that regard, it should be noted, first, that the applicant has not relied on the existence of particular circumstances allowing for the Council’s silence to be exceptionally deemed equivalent to an implied decision of refusal.
47Secondly, in the context of access to documents, the silence of an institution is expressly taken into account solely under Article 8(3) of Regulation No 1049/2001; that provision, concerning the processing of confirmatory applications, states that ‘failure by the institution to reply within the prescribed time limit shall be considered as a negative reply and entitle the applicant to institute court proceedings against the institution and/or make a complaint to the Ombudsman, under the relevant provisions of the [FEU] Treaty.’
48Article 8(3) of Regulation No 1049/2001 thus concerns only confirmatory applications brought by persons who enjoy the right of access to documents, guaranteed by Article 2(1) of that regulation.
49It is therefore necessary to ascertain whether the right of access to documents, guaranteed by Article 2(1) of Regulation No 1049/2001, includes the publication of documents in the register of the institution concerned on the basis of Article 12(2) of that regulation, as the applicant claims.
50In that regard, it must be found that the Court of Justice has already held that Regulation No 1049/2001 does not directly link the right of access to documents, set out in Article 2(1) thereof, with the obligation imposed on the institutions to create a public register, laid down by Article 11 of that regulation. Therefore, compliance with the duty to register documents cannot be enforced by means of an application for access to documents (see, to that effect, judgment of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 44).
51As the Council claims, the findings in paragraph 50 above are applicable to the obligations laid down by Article 12 of Regulation No 1049/2001, under which ‘the institutions shall as far as possible make documents directly accessible to the public in electronic form or through a register in accordance with the rules of the institution concerned’ (Article 12(1)), in particular, ‘legislative documents [which] should, subject to Articles 4 and 9 [of that regulation], be made directly accessible’ (Article 12(2)).
52Article 12 of Regulation No 1049/2001 thus describes the administrative practice which the institutions concerned must adopt as regards making documents accessible to the public and has no link to the right guaranteed by Article 2(1) of that regulation. Furthermore, as the Council notes, Article 12 of that same regulation does not impose any unconditional obligation on the institutions concerned since that article provides, first, that those institutions make, ‘as far as possible’, documents directly accessible to the public and, secondly, that legislative documents should, subject to Articles 4 and 9 of Regulation No 1049/2001, be made directly accessible.
53It follows that an institution cannot be required to publish a document in its register by means of an application for access to documents.
54Accordingly, contrary to what the applicant claims, the right of access to documents guaranteed by Article 2(1) of Regulation No 1049/2001 does not include the publication of documents in the register of the institution concerned.
55The Council’s silence in the contested decision in relation to the publication, in the register, of the WK documents to which access was granted to the applicant cannot be deemed equivalent to an implied decision to refuse such publication arising under Article 8(3) of Regulation No 1049/2001.
56In any event, it must be found that, in the initial request, the applicant had not requested that the Council publish in the register the WK documents to which he sought access. In the confirmatory application, the applicant merely took note of the full or partial access granted by the Council to certain requested WK documents, without however claiming that the latter should be included directly in the register or seeking publication to that effect.
57In the light of the foregoing, it must be found that the Council did not implicitly refuse, in the contested decision, to publish in the register documents to which the applicant had gained access in response to the initial request.
58Accordingly, the applicant’s second head of claim must be rejected as inadmissible in the absence of a challengeable act.
The applicant’s first head of claim
59In support of the first head of claim, which seeks annulment of the contested decision in so far as it refuses access to the documents at issue, the applicant raises, in essence, the first three pleas in law of his action as set out in paragraphs 18 to 20 above.
60As a preliminary point, it must be stated that the legislative nature of the documents at issue is not in dispute.
The first plea in law, alleging an error of law in the interpretation and application of the exception laid down by the first subparagraph of Article 4(3) of Regulation No 1049/2001, notably because the interpretation and application of that exception in the contested decision infringe the obligation of legislative transparency set out in Article 15(2) TFEU
61As has been stated in paragraph 18 above, the first plea in law consists, in essence, of three parts.
–The first part, concerning the interpretation of the exception laid down by the first subparagraph of Article 4(3) of Regulation No 1049/2001, read in the light of Article 15(2) TFEU and Article 16(8) TEU
62The applicant states that Article 15(2) TFEU and Article 16(8) TEU have strengthened the right of EU citizens to be informed and to participate in the democratic life of the European Union since those provisions require that the co-legislators meet in public when deliberating and voting on a draft legislative act.
63The applicant submits that Article 15(2) TFEU created a new regime of legislative transparency which overrides the exception relating to the protection of the decision-making process provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, prior to the entry into force of the Treaty of Lisbon. A legal tension now exists between those two provisions. However, according to the applicant, primary law takes precedence over secondary law such as a provision of a regulation, this is the case even for a provision in internal rules of procedure, and requires access to legislative documents because of the normative choice made in the Treaty of Lisbon for legislative transparency (Article 15(2) TFEU) and the democratic right of participation in the decision-making process of the European Union (Article 10 TEU).
64Accordingly, although the EU judicature has recognised that the principle of openness is not absolute, that does not allow the Council to invoke the exception relating to the decision-making process contained in the first subparagraph of Article 4(3) of Regulation No 1049/2001 in respect of legislative documents.
65The applicant adds that Article 15(3) TFEU on access to documents does not refer to the legislative transparency of the Council, but, in keeping with the predominantly administrative subject of the right of access to documents, only to the transparency of the procedure. In the applicant’s view, the transparency of the procedure does not equate to legislative transparency, and the reference in the third subparagraph Article 15(3) TFEU to ‘its documents’ does not relate to the legislative documents that belong to the joint legislative function of the Parliament and the Council, but rather to the internal Council documents that are unrelated to the legislative procedure.
66The Council, supported by the French Republic, disputes the applicant’s arguments.
67It must be recalled that, under the first subparagraph of Article 4(3) of Regulation No 1049/2001, 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, is to be refused if disclosure of that document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
68The applicant argues, in essence, that the first subparagraph of Article 4(3) of Regulation No 1049/2001 has become obsolete as regards legislative documents because it was adopted on the basis of the EC Treaty and accordingly does not take into account the amendments made by Article 15(2) TFEU and by Article 16(8) TEU which necessitate legislative transparency since they require that the Council ‘meet in public’ when deliberating and voting on a draft legislative act.
69As the Council and the French Republic have indicated, that argument has already been examined and rejected by the General Court in the judgment of 25 January 2023, De Capitani v Council (T‑163/21, EU:T:2023:15, paragraphs 33 to 62).
70In particular, it is apparent from the judgment of 25 January 2023, De Capitani v Council (T‑163/21, EU:T:2023:15), that, while Article 15(2) TFEU lays down the principle of publication of legislative debates during the sessions of the Parliament and the Council, that provision does not concern the right of access to documents or the limits and conditions for the exercise of that right, which are governed by Article 15(3) TFEU and Article 42 of the Charter of Fundamental Rights of the European Union (‘the Charter’) (see, to that effect, judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 53).
71However, the provisions of the FEU Treaty and of the Charter governing the right of access to documents of the institutions, bodies, offices and agencies of the European Union provide that the exercise of that right may be subject to limits and conditions laid down by regulations, including as regards access to legislative documents (judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 47).
72Contrary to what the applicant claims, Article 15(3) TFEU does not exclude from its scope documents that belong to the joint legislative function of the Parliament and the Council (see, to that effect, judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 46).
73The fifth subparagraph of Article 15(3) TFEU states that the Parliament and the Council are to ensure publication of the documents relating to the legislative procedures ‘under the terms laid down by the regulations referred to in the second subparagraph’ of that paragraph. Although it thus highlights the principle that legislative documents must be published, that provision does not provide that those documents must be made public in all cases and without exception, as evidenced by the reference to the ‘terms’ which the regulations may lay down for that purpose (judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 45).
74Consequently, it remains open to the EU institutions to refuse, on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, to grant access to certain documents of a legislative nature in duly justified cases (see judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 57 and the case-law cited).
75Accordingly, the first part put forward, in essence, in support of the first plea in law is unfounded and must be rejected.
–The second part, concerning the application, in the contested decision, of the first subparagraph of Article 4(3) of Regulation No 1049/2001
76The applicant, supported by the Kingdom of Belgium, the Republic of Finland and the Kingdom of Sweden, argues that access to the documents at issue could not be refused on the ground of protection of the Council’s decision-making process. First, the types of arguments invoked in the contested decision to refuse access to the documents at issue have already been rejected by the EU judicature. Secondly, the Council does not, as required by the case-law, demonstrate that disclosure of the documents at issue would result in a specific, actual and reasonably foreseeable risk of seriously undermining its decision-making process.
77The applicant observes that disclosure of the documents at issue would have enabled European citizens to understand the Council’s intent with regard to a highly pressing issue, namely that of migration, identified as one of the key priorities of the Commission and therefore highly impactful on the 2024 European elections. In addition, according to the applicant, the stalemate called by the Parliament due to the Council’s failure to adopt a position on the amended proposal for the Eurodac Regulation, as well as other legislative proposals relating to migration, is the perfect illustration of how the absence of legislative transparency hinders the democratic process.
78The applicant notes that the documents at issue are not devoid of immediate political commitment, as the Council asserts before the Court.
79Furthermore, the applicant notes that the arguments put forward by the French Republic before the Court regarding the content and sensitivity of the documents at issue and the legislative procedures in question (see paragraphs 88 to 91 below) are significantly more detailed than the contested decision, which did not carefully assess the confirmatory application. In any event, the applicant submits that the arguments put forward by the French Republic are not capable of justifying the refusal of access to the documents at issue.
80The Kingdom of Belgium adds that transparency in legislative matters has been strengthened in the Council through a new approach set out in a note, bearing the reference ST 9493/20, sent on 9 July 2020 by the Presidency and the General Secretariat of the Council to the members of the Committee of Permanent Representatives (Coreper), and entitled ‘Strengthening legislative transparency’ (‘Note ST 9493/20’). The Kingdom of Belgium states that, after adopting that new approach, the Council took the decision, which is given concrete expression in Article 11(5) and (6) of the Rules of Procedure, to make new categories of documents connected to legislative procedures public from the outset. The Kingdom of Belgium therefore submits that the application of an exception to the right of access to documents must be supported by even more robust reasoning where the document concerned has been issued in the context of a legislative procedure.
81The Republic of Finland notes that transparency is firmly rooted in the Treaties and refers to the provisions already relied on by the applicant and to Article 298(1) TFEU and Article 42 of the Charter. According to the Republic of Finland, the reasoning in the contested decision is too general and abstract and could easily be applied to various other pieces of draft legislation. With regard to Note ST 9493/20, the Republic of Finland states that it specifically concerns the disclosure of legislative documents by the Council on its own initiative. That note was in no way intended to limit or otherwise affect public access to documents based on requests for access to documents, which is covered by comprehensive and well-established case-law.
82The Kingdom of Sweden refers to Article 42 of the Charter and emphasises that the fact that the decision-making process surrounding the adoption of a legislative act is sensitive, as in the present case, is not sufficient to apply the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001, since it is the content of the document requested for disclosure that matters.
83The Council, supported by the French Republic, responds that, as established in the contested decision, disclosure of the documents at issue could, in a reasonably foreseeable and not merely hypothetical manner, seriously undermine its decision-making process, which distinguishes the present case from that examined in the judgment of 25 January 2023, De Capitani v Council (T‑163/21, EU:T:2023:15).
84In the Council’s opinion, there is a fundamental difference between, on the one hand, exchanges devoid of immediate political commitment within working groups, by officials and experts of Member States’ delegations intervening at a technical level, and, on the other, the political position endorsed at the level of either Coreper or the Council that allows for the launch of trilogues, which is always reflected in a public document. In that regard, the Council states that a general approach is always issued ab initio, in accordance with Article 11(5) of Annex II to the Rules of Procedure, and that its initial negotiating mandate, when endorsed at the level of Coreper, is also published, as provided for in paragraph 1(e) of the annex to Note ST 9493/20. It is precisely the intent of ‘the Council’ with regard to a highly pressing issue which, according to the applicant, disclosure of the documents at issue would enable European citizens to understand.
85According to the Council, the actual assessment of a document may lead to the conclusion that the disclosure of such preliminary exchanges referred to in paragraph 84 above, in view of their specific content and the particular context of the decision-making process to which they pertain, would risk compromising the effectiveness of its decision-making process.
86In the present case, the Council claims that the refusal to disclose the documents at issue was not based on general considerations, but on the specific and detailed examination of the content of those documents, carried out in consultation with the Member States which made the comments contained therein. In its view, that is also shown by the fact that the Council had given access to several other documents concerning discussions at working-group level, which were also referred to in the initial request.
87In its rejoinder, the Council claims that the brevity of the explanation provided in the contested decision is justified, in particular, by the need not to disclose the very information which the exception relating to the decision-making process was intended to protect.
88The French Republic adds that disclosure of the documents at issue could weaken the Council’s position in negotiations on the other legislative acts proposed in the Pact on Migration and Asylum.
89The French Republic explains that the documents at issue were drawn up at a particularly sensitive stage in the negotiation of the legislative acts in question, that reaching an agreement within the Council and, a fortiori, between the Parliament and the Council required particularly delicate compromises and that disclosure of the documents at issue, which concerned the fragmented positions of the Member States, would certainly have threatened the achievement of a compromise in the trilogues.
90Furthermore, the French Republic indicates that the documents at issue contained elements of a particularly sensitive nature. Accordingly, in the opinion of the French Republic, document WK 1513/2023 contained sensitive security information concerning the limitations and issues associated with the operation of the Eurodac system, in the version applicable at that time.
91In addition, the French Republic claims that the information in the documents at issue might be used in a real and reasonably foreseeable way by actors hostile to European interests to try to prevent the successful conclusion of negotiations on the Pact on Migration and Asylum as a whole, or to undermine the political position of a Member State.
92In that regard, it must be recalled that Regulation No 1049/2001 seeks, as indicated in recital 4 and Article 1 thereof, to confer on the public the widest possible right of access to documents.
93That right is nonetheless subject to certain limitations based on grounds of public or private interest. More specifically, and in accordance with recital 11 of Regulation No 1049/2001, Article 4 of the regulation lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that article (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 59 and the case-law cited).
94Since such exceptions derogate from the principle that the public should have the widest possible access to the documents, they must be interpreted and applied strictly (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 61 and the case-law cited).
95Where an EU institution, body, office or agency to which a request for access to a document has been made decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception, and the risk of the interest being undermined must be reasonably foreseeable and not purely hypothetical (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 62 and the case-law cited).
96Therefore, the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 requires it to be established that access to the documents requested was likely to undermine specifically and actually the protection of the decision-making process of the institution concerned, and that the likelihood of that interest being undermined was reasonably foreseeable and not purely hypothetical (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 63 and the case-law cited).
97According to the case-law, the decision-making process is ‘seriously’ undermined, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 where, inter alia, the disclosure of the documents 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 as regards disclosure of the documents in question (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 64 and the case-law cited).
98That case-law cannot be interpreted as requiring the institutions to submit evidence to establish the existence of such a risk. It is sufficient in that regard if the contested decision contains tangible elements from which it can be inferred that the risk that the decision-making process would be undermined was, 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 be reasonably foreseen that the decision-making process would be undermined if the documents requested 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).
99In the present case, as has been stated in paragraphs 4 to 7 above, the documents at issue were drawn up by the General Secretariat of the Council in the course of the discussion of two legislative proposals which are part of the Pact on Migration and Asylum and contained, each, a compilation of comments of the delegations of the Member States on those two legislative proposals.
100The Council took the view, in the contested decision, that the documents at issue came within the scope of the first subparagraph of Article 4(3) of Regulation No 1049/2001, explaining its analysis as follows:‘The [documents at issue] concern the ongoing reform of the Common European Asylum System. Negotiations on this sensitive issue are currently underway with the [Parliament] as regards the [amended proposal for the] [Eurodac] Regulation, while those concerning the [proposal for a regulation on asylum and migration management] are just beginning. Both documents contain elements forming the position of Member States, exchanged as preliminary or intermediate comments for internal use on legislative files, one of which is just undergoing the initial trilogue procedural steps. The disclosure of these comments would reveal the trade-offs and compromises requested or accepted by delegations and the alternatives proposed or considered, as well as strategic approaches for negotiations of the Council, thus weakening and making more difficult its negotiating position and having a negative impact on its future discussions with the [Parliament]. In this context, and considering the content of the two [documents at issue], the Council considers that their disclosure would specifically and actually undermine the [decision-making] process of the institution.’
101As the Republic of Finland states, the reasoning in the contested decision may be applied to any WK document drawn up in a Council working group that compiles the positions of Member States in legislative procedures classified as sensitive.
102The contested decision does not describe the specific content of the documents at issue or contain the reasoning set out by the French Republic which is restated in paragraphs 88 to 91 above, with the result that such reasoning cannot be taken into consideration in the assessment of the legality of the contested decision.
103As is apparent from paragraph 100 above, in order to refuse access to the documents at issue, the Council, in essence, relied, in the contested decision, on the grounds set out below.
104In the first place, the Council stated that the documents at issue concerned the ongoing reform of the Common European Asylum System and that negotiations on this ‘sensitive’ issue were underway with the Parliament and within the Council.
105As regards that statement, the French Republic explains that the Pact on Migration and Asylum, proposed by the Commission, was of major political importance for the European Union.
106However, the mere reference, in the contested decision, to the sensitive nature of the negotiations or the political importance of the issue in question cannot justify the refusal of access to the documents at issue. Whilst relating to a matter of some importance, possibly characterised by both political and legal difficulty, there is nothing in that decision to suggest that the content of the documents at issue is particularly sensitive to the point of jeopardising a fundamental interest of the European Union or of the Member States if disclosed (see, to that effect, judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 76 and the case-law cited).
107In the second place, the Council stated, in the contested decision, that the documents at issue included preliminary or intermediate comments for internal use on legislative files and that one of the documents was just undergoing the initial trilogue procedural steps.
108As regards that second ground, the Council explains before the Court that the comments of the Member States had been made early at a technical level and that they were devoid of political commitment. Furthermore, the Council claims that the publication of certain very early, preliminary comments made at a technical level presented a reasonably foreseeable risk of impacting the mutual trust established between the technical experts of the Member States and might put those Member States in a very difficult position in the legislative procedures concerned, since such preliminary comments could have set out concerns, suggestions or positions which were later changed by the Member States themselves, as a result of technical or political discussions, or which were not in line with the final position of the Council.
109In that regard, it should be borne in mind that, as the Council acknowledged before the Court, the preliminary nature of the discussions relating to the legislative proposal in question does not justify, as such, the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001. That provision makes no distinction according to the state of progress of the discussions. It envisages, in general, the documents relating to a question where a ‘decision has not been taken’ by the institution concerned, by contrast with the second subparagraph of Article 4(3), which envisages the situation where a decision has been taken by the institution concerned (see judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 78 and the case-law cited).
110According to the case-law, it is irrelevant whether the documents at issue were produced or received at an early, late or final stage of the decision-making process. In the same way, the fact of the documents having been produced or received in a formal or informal context has no effect on the interpretation of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 101 and the case-law cited).
111It has also been held that whether or not a document is ‘technical’ is not a relevant criterion for the purposes of the application of the first subparagraph of Article 4(3) of Regulation No 1049/2001 (judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 95).
112Furthermore, the members of Council working groups are given a mandate from the Member States that they represent and, at the time of deliberation on a given legislative proposal, they express the position of their Member State within the Council when the Council acts in its capacity as co-legislator. The fact that those working groups are not authorised to adopt the definitive position of that institution does not mean, however, that their work does not form part of the normal legislative process, or that the documents drawn up are ‘technical’ in nature and not political, contrary to what the applicant claims (see, to that effect, judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 95).
113In addition, a proposal is, by its nature, intended to be discussed and is not liable to remain unchanged following such discussion. Public opinion is perfectly capable of understanding that the author of a proposal is likely to amend its content subsequently. For precisely the same reasons, an applicant for access to legislative documents in the context of an ongoing procedure will be fully aware of the preliminary character of the information contained therein and of the fact that it is intended to be amended throughout the discussions in the course of the preparatory work of the Council working group until agreement on the whole text is reached (see judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 79 and the case-law cited).
114Accordingly, disclosure of the positions of every delegation of the Member States could not, in itself, impact the mutual trust between technical experts of those delegations or the negotiating position of the Member States in the legislative procedures.
115It follows that the preliminary or intermediate nature of the ongoing discussions between the delegations of the Member States that are reflected in the documents at issue and the fact that the legislative proposals in question had not been subject to a consensus or a compromise within the Council are not capable of establishing, in themselves, the risk of the decision-making process being seriously undermined if those documents were disclosed.
116In the third place, the Council stated, in the contested decision, that the disclosure of the comments of the Member States would reveal the trade-offs and compromises requested or accepted by delegations and the alternatives proposed or considered, as well as strategic approaches for negotiations of the Council, thus weakening and making more difficult its negotiating position and having a negative impact on its future discussions with the Parliament.
117As regards that third ground, the Council explains before the Court that the exchanges reflected in the documents at issue had revealed difficulties that needed to be addressed before the Council could adopt its initial position allowing for the launch of trilogues and that the legislative proposals were difficult to negotiate. The Council also states that the publication of the comments of a Member State that contain criticisms regarding the negotiating mandate or the general approach of the Council may put Member States in a difficult situation if they must then hold the Council Presidency and defend that general approach. In the Council’s view, the brevity of the explanation in the contested decision is justified, in particular, by the need not to undermine those sensitive interests which the exception relating to the decision-making process was intended to protect. The French Republic adds that the documents at issue list both the ‘red lines’ of certain Member States and the points on which other Member States were flexible and that the disclosure of that information ran the risk of reducing the ability of certain Member States to express their views.
118In that regard, it should be borne in mind that, according to the case-law, since Member States express, in the context of Council working groups, their respective positions on a given legislative proposal, and accept that their position could evolve, the fact that those elements are then disclosed, on request, is not in itself capable of undermining the sincere cooperation which the Member States and the institutions are required to exercise among themselves pursuant to Article 4(3) TEU (see judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 83 and the case-law cited).
119In the present case, the reasoning set out in paragraphs 116 and 117 above is of a general and abstract nature. The specific and detailed examination of the content of the documents at issue, which the Council confirms having carried out, is not reflected in the contested decision. The Council does not explain the content of those documents, or the particular context of the decision-making process to which they pertain. However, from reading the documents at issue, produced at the Court’s request and now accessible to the public on request (see paragraph 11 above), the Council could have also set out the content of those documents and the particular context of each of the legislative proposals in question, without revealing the actual positions of the Member States. In addition, the Council has produced no tangible evidence capable of showing that access to the documents at issue would have undermined the sincere cooperation of the Member States. The risk alleged therefore appears to be hypothetical.
120It follows from the foregoing that none of the grounds relied on by the Council in the contested decision supports the conclusion that disclosure of the documents at issue would specifically, effectively and in a non-hypothetical manner seriously undermine the decision-making process, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
121Accordingly, the second part put forward, in essence, in support of the first plea in law is well founded and must accordingly be upheld.
Conclusion
122Since the second part of the first plea in law has been upheld, the applicant’s first head of claim must be upheld and the contested decision must be annulled, without it being necessary to examine the arguments of the third part of the first plea in law which relate to that head of claim, or the second and third pleas in law which were also put forward in support of that head of claim.
Costs
123Under Article 134(3) of the Rules of Procedure of the General Court, where each party succeeds on some and fails on other heads of claim, the parties are to bear their own costs. However, if it appears justified in the circumstances of the case, the Court may order that one party, in addition to bearing its own costs, pay a proportion of the costs of the other party.
124In the present case, the applicant and the Council have been unsuccessful in part. However, since the contested decision has been annulled in its entirety, it appears justified to order the Council to bear its own costs and to pay half of the applicant’s costs, while ordering the latter to bear the other half of his own costs.
125In accordance with Article 138(1) of the Rules of Procedure, the Kingdom of Belgium, the French Republic, the Republic of Finland and the Kingdom of Sweden are to bear their own costs.
Operative part
On those grounds,THE GENERAL COURT (Ninth Chamber)hereby:
1.Annuls Decision SGS 23/002579 of the Council of the European Union of 14 July 2023;
2.Dismisses the action as to the remainder;
3.Orders the Council to bear its own costs and to pay half of those incurred by Mr Emilio De Capitani;
4.Orders Mr Emilio de Capitani to pay half of his own costs;
5.Orders the Kingdom of Belgium, the French Republic, the Republic of Finland and the Kingdom of Sweden to bear their own costs.
Delivered in open court in Luxembourg on 29 October 2025.
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