Contents
Judgment of the General Court (Eighth Chamber)10 September 2025note(Access to documents — Regulation (EC) No 1049/2001 — Documents concerning the work of the Code of Conduct Group (Business Taxation) established by the Council — Partial refusal of access — Article 4(1)(a) of Regulation No 1049/2001 — Exceptions relating to the protection of the public interest as regards international relations and the financial, monetary or economic policy of the Union or of a Member State — General presumption of confidentiality — Obligation to state reasons)In Case T‑255/24,Martijn Frederik Nouwen, residing in Amsterdam (Netherlands), represented by M. Weijers, lawyer,vCouncil of the European Union, represented by B. Driessen and L. Atzeni, acting as Agents,THE GENERAL COURT (Eighth Chamber),composed of A. Kornezov, President, D. Petrlík (Rapporteur) and S. Kingston, Judges,Registrar: L. Ramette, Administrator,having regard to the written part of the procedure, in particular:– the measure of inquiry of 6 November 2024 and the documents produced in implementation of that measure, filed with the Registry of the General Court on 21 November 2024, and– the measures of organisation of procedure of 31 March 2025,further to the hearing on 30 April 2025,gives the following
Judgment
1By his action under Article 263 TFEU, the applicant, Mr Martijn Frederik Nouwen, seeks the annulment of Decision SGS 24/00008 of the Council of the European Union of 7 March 2024, by which the Council refused to grant him access to certain documents of the group established by the Council and composed of high-level representatives of the Member States and the European Commission (‘the Code of Conduct Group’), relating to the revision of a code of conduct in the field of business taxation (‘the contested decision’).
Background to the dispute and events subsequent to the initiation of the action
2In 1997, as part of an overall review of harmful tax competition, the Council and representatives of the governments of the Member States, meeting within the Council of 1 December 1997, adopted a resolution on a code of conduct for business taxation (OJ 1998 C 2, p. 2; ‘the Tax Code of Conduct’).
3In 2022, the Tax Code of Conduct was amended by the Resolution of the Council and of the Representatives of the Governments of the Member States, meeting within the Council, on a revised Code of Conduct for Business Taxation (OJ 2022 C 433, p. 1), it being understood that that resolution did not take place in the context of a legislative procedure.
4The applicant is a professor who, inter alia, carries out research on the Tax Code of Conduct.
5By email of 14 July 2023 (‘the initial application’), the applicant, on the basis 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), requested that the Council provide him with the emails, including their annexes, from the Member States, the Commission and the Council, exchanged between them from 2019 to 30 May 2023, concerning the ‘reform/revision of the (mandate/scope of the) [Tax] Code of Conduct (and its supervising body: the Code of Conduct Group) (‘the request for access’).
6By email of 7 August 2023, the Council responded to the initial application, stating that it was unable to identify the documents falling within the scope of the request for access.
7On 25 August 2023, the applicant reiterated his request for access in a new email, providing the Council with information to facilitate the identification of the documents which were the subject of that request.
8After conducting a further search, the Council stated, in an email of 8 September 2023, that it was not in possession of the documents requested.
9On the same day, the applicant replied to the Council that, in his opinion, the latter did indeed have some documents falling within the scope of his initial application. In that regard, the applicant identified an email account managed by the Council to which, in particular, three Member States had sent emails relating to the revision of the Tax Code of Conduct.
10By email of 20 October 2023, the Council informed the applicant that it had been able to identify a number of documents meeting the criteria of the request for access and that it was consulting the Commission and the Member States on the possibility of disclosing those documents.
11On 30 January 2024, in the absence of a response from the Council concerning the documents which he had identified, the applicant submitted a confirmatory application under Article 7(2) of Regulation No 1049/2001 (‘the confirmatory application’).
12On 13 February 2024, the Council stated that a response to the confirmatory application would be provided within 15 working days. By email of 20 February 2024, that deadline was then extended by an additional 15 working days.
13On 7 March 2024, the Council adopted the contested decision, by which it identified 75 emails meeting the criteria of the request for access. It fully disclosed 55 of those documents to the applicant. The Council refused access to 19 of those documents in full and to one of them in part (together, ‘the documents at issue’).
14More specifically, the Council, first, refused access in full to emails sent, as part of the revision of the Tax Code of Conduct, by:– Ireland, on 16 October, 22 October and 16 November 2020 and on 19 February, 2 August, 19 October, 21 October and 3 November 2021;– the French Republic, on 22 October and 16 November 2020;– the Italian Republic, on 22 October and 16 November 2020 and on 6 August and 23 November 2021;– the Grand Duchy of Luxembourg, on 26 October 2020 and on 4 August, 19 October and 2 November 2021;– the Republic of Austria, on 15 October 2021.
15Secondly, the Council refused access in part to an email sent, in the same context, by the Republic of Lithuania on 24 November 2021.
16The Council based the refusal of access on the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001, after having consulted, under Article 4(5) of that regulation, the Member States from which the documents at issue originated.
17By order of 6 November 2024, the General Court ordered the Council, on the basis of Article 91(c) of the Rules of Procedure of the General Court, to produce the documents at issue. The Council complied with that order. Under Article 104 of the Rules of Procedure, those documents were not disclosed to the applicant.
Forms of order sought
18The applicant claims that the Court should:– annul the contested decision in so far as it refused to grant the applicant access to the documents at issue;– order the Council to pay the costs.
19The Council contends that the Court should:– dismiss the action;– order the applicant to pay the costs.
Law
20In support of his action, the applicant relies on three pleas in law, alleging:– first, the incomplete or careless implementation of the request for access or, at least, an insufficient statement of reasons in that regard.– second, according to a subdivision into five parts, an unjustified refusal to grant access to the documents at issue or, at least, an insufficient statement of reasons in that regard;– third, that the Council should have granted partial access to the documents at issue to which access was fully refused or, at least, an insufficient statement of reasons in that regard.
The first plea in law, alleging the incomplete or careless implementation of the request for access or, at least, an insufficient statement of reasons in that regard
21The first plea in law is divided, in essence, into two complaints.
The first complaint, alleging the incomplete or careless implementation of the request for access
22The applicant claims that his request for access was handled incompletely or, at least, carelessly. It is apparent from the contested decision that the Council’s Tax Policy, Customs Union and Export Credits Unit, which carried out the searches to find the documents requested, stated twice, in response to the initial application, that it was not in possession of those documents, with the result that the applicant would not be able to verify whether the Council had collected all the documents requested. That uncertainty appears all the more obvious since the email account referred to in paragraph 9 above constitutes the only address that has been used for years by the members of the Code of Conduct Group. Therefore, it was not necessary for the applicant to specify further to the Council the location of the documents requested.
23The Council disputes that line of argument.
24By his complaint, the applicant alleges that the Council, in essence, has failed to comply with its obligation to provide a complete list of the documents requested.
25In that regard, it should be noted that any refusal of access may be challenged by way of court proceedings, whatever the reasons relied on to refuse that access. Thus, if the institution argues that the document requested does not exist, it is for that institution, in the event of a dispute, to justify its refusal of access for that reason before the Courts of the European Union (see judgment of 20 September 2019, Dehousse v Court of Justice of the European Union, T‑433/17, EU:T:2019:632, paragraph 35 and the case-law cited).
26However, it follows from the wording of Article 2(3) of Regulation No 1049/2001 that the possibility for an institution to grant a request for access necessarily presupposes that the documents referred to in that request exist (see judgment of 23 April 2018, Verein Deutsche Sprache v Commission, T‑468/16, not published, EU:T:2018:207, paragraph 34 and the case-law cited).
27Where an institution states that a document does not exist in the context of a request for access, the non-existence of that document is presumed, in accordance with the presumption of legality attaching to EU acts (see judgment of 25 September 2024, British American Tobacco Polska Trading v Commission, T‑311/23, not published, EU:T:2024:645, paragraph 75 and the case-law cited).
28For the same reasons, an institution’s assertion that there are no documents other than those it has identified as corresponding to the request for access also benefits from a presumption of legality (judgment of 23 April 2018, Verein Deutsche Sprache v Commission, T‑468/16, not published, EU:T:2018:207, paragraph 36).
29Nevertheless, that presumption may be rebutted in any way on the basis of relevant and consistent evidence produced by the applicant for access (see judgment of 25 September 2024, British American Tobacco Polska Trading v Commission, T‑311/23, not published, EU:T:2024:645, paragraph 76 and the case-law cited).
30In the present case, the Council stated, in paragraph 8 of the contested decision, that, following a search, it had identified some emails meeting the criteria mentioned in the request for access, the list of which appears in that decision. It follows, implicitly, but necessarily, that the Council found that it did not hold any other documents corresponding to those criteria.
31The applicant disputes the reliability of that presupposition on the ground that the Council had initially denied, in response to the initial application, that it was in possession of the documents requested.
32In that regard, it should be noted, first, that Articles 7 and 8 of Regulation No 1049/2001 provide, as stated in recital 13 thereof, for a two-stage procedure for access to documents. The reply to an initial application for access to documents, under Article 7(1) of that regulation, is merely an initial statement of position. Such a reply confers on the applicant the right, provided for in Article 7(2) of that regulation, to repeat an application for access notwithstanding a first reasoned refusal and allows the EU institution concerned to reconsider its initial position before taking a final refusal decision and, where appropriate, to remedy any illegalities affecting an initial refusal (see judgment of 29 July 2024, Validity v Commission, C‑51/23 P, not published, EU:C:2024:664, paragraph 49 and the case-law cited).
33Secondly, since an institution is required to carry out a full examination of all the documents covered by an application for disclosure, it may, at any moment, including for the first time during the examination of the confirmatory application, identify further documents potentially related to the application (see judgment of 13 November 2024, Kargins v Commission, T‑110/23, not published, EU:T:2024:805, paragraph 31 and the case-law cited).
34It follows that the mere fact of identifying more documents covered by the request for access following a confirmatory application cannot constitute a relevant element for rebutting the presumption of legality referred to in paragraph 28 above.
35Next, the fact that the applicant had to specify, in his confirmatory application, the email account in which the Council could find the documents requested is, moreover, not decisive. That information alone does not show that the Council would hold more documents than those which it found on the basis of such information.
36Lastly, the applicant has not submitted to the Court any other argument or evidence to challenge the Council’s assertions set out in paragraph 8 of the contested decision.
37In those circumstances, it should be noted that, in accordance with the case-law cited in paragraphs 26 to 29 above, the applicant has not rebutted the presumption of legality attaching to the contested decision with regard to the circumstance that the Council did not have any documents covered by the request for access other than those identified in that decision.
38That finding is not called into question by the applicant’s argument that the Council had not stated to him that his initial application was not sufficiently clear.
39In that regard, Article 6(2) of Regulation No 1049/2001 provides that, if an application is not sufficiently precise, the institution is to ask the applicant to clarify the application and to assist the applicant in doing so.
40It follows from that provision that the mere finding that the application for access was insufficiently precise, whatever the reasons, must lead the addressee institution to make contact with the applicant in order to define as closely as possible the documents requested (see judgment of 22 May 2012, Internationaler Hilfsfonds v Commission, T‑300/10, EU:T:2012:247, paragraph 84 and the case-law cited).
41In the present case, following the emails from the Council referred to in paragraphs 6 and 8 above, the applicant provided the Council with further details concerning the documents requested, in particular by indicating the email account in which, in his opinion, the Council could find those documents.
42Following that clarification, the Council found the documents which were the subject of the request for access, as is apparent from its email referred to in paragraph 10 above.
43In those circumstances, the Council was not required to contact the applicant again in order to identify better the documents requested before adopting the contested decision.
44In the light of the foregoing, the first complaint put forward in support of the first plea must be rejected as unfounded.
The second complaint, based on the failure to provide adequate reasons in respect of the search method used to respond to the request for access
45The applicant claims that the explanations provided by the Council do not make it possible to determine the search method which was used to respond to the request for access, with the result that it is not possible to ascertain whether the Council has gathered all the documents requested. In particular, in order to justify the contested decision to a sufficient legal standard, the Council should have stated the systems which were consulted in order to find those documents, the search terms used, the questions put to the competent persons in the units concerned and any sorting applied by the Council’s Legal Service.
46The Council disputes that line of argument.
47The statement of reasons required by the second paragraph of Article 296 TFEU must be appropriate to the measure in question and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the court having jurisdiction to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest that the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 24 April 2024, Naass and Sea-Watch v Frontex, T‑205/22, not published, EU:T:2024:266, paragraph 44 and the case-law cited).
48As regards the context in which a response to a confirmatory application to access documents was adopted, it is appropriate to consider the sufficiency of the reasons given, in particular, in the light of all the exchanges between the institution and the applicant for access, taking into account the information available to the applicant about the nature and content of the documents requested (see, by analogy, judgment of 24 April 2024, Naass and Sea-Watch v Frontex, T‑205/22, not published, EU:T:2024:266, paragraph 45 and the case-law cited).
49Furthermore, if an institution explains, in a clear and unequivocal manner, that it does not possess any documents which are covered by a request for access, other than the documents disclosed or identified, it cannot be alleged that that institution has failed to provide adequate reasons (see, to that effect, judgments of 23 April 2018, Verein Deutsche Sprache v Commission, T‑468/16, not published, EU:T:2018:207, paragraph 40; of 25 September 2024, British American Tobacco Polska Trading v Commission, T‑311/23, not published, EU:T:2024:645, paragraph 93; and of 13 November 2024, Kargins v Commission, T‑110/23, not published, EU:T:2024:805, paragraphs 22 and 23).
50In the present case, as set out in paragraph 5 above, the applicant had identified in his initial application the authors, recipients and subject matter of the documents requested, as well as the period during which they were allegedly created.
51Furthermore, it is apparent from paragraphs 9 and 10 above that, following the additional information provided by the applicant in his confirmatory application, in particular, with regard to the existence of an email account, the Council identified documents meeting the criteria mentioned in the request for access.
52The Council listed those documents in paragraph 8 of the contested decision, specifying each time their author and their date.
53It is apparent from those explanations and their context, implicitly but unequivocally, that the Council consulted the email account identified by the applicant to find the documents requested and selected documents meeting the request for access based on the criteria defined by the applicant in his initial application. It also follows that the Council is of the view that it does not have other documents which are covered by the request for access.
54In those circumstances, and in accordance with the case-law recalled in paragraphs 47 to 49 above, the Council was not required to include in the reasons for the contested decision further information relating to the systems which it consulted to search the documents requested, the search terms used, the questions put to the competent persons in the units concerned and any sorting applied by its Legal Service.
55In the light of the foregoing, the second complaint put forward in support of the first plea and, therefore, the first plea in law, in its entirety, must be rejected as unfounded.
The first to the fourth parts of the second plea in law, alleging an unjustified refusal to grant access to the documents at issue or, at least, an insufficient statement of reasons in that regard
56By the contested decision, the Council refused to disclose the documents at issue on the ground that their disclosure would undermine the public interests protected by the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001, namely the public interests relating to international relations and the financial, monetary or economic policy of the Union or of a Member State.
57In that regard, first of all, as regards the protection of the public interest relating to international relations, the Council explained, in paragraph 39 of the contested decision, that the documents at issue ‘contain[ed] elements of discussions concerning the revision of the mandate of the Code of Conduct Group in order to ensure that the group is able, in the future, to continue to make its effective contribution to promote fair tax competition and address harmful tax practices’ and that ‘these documents contain[ed] details on several sensitive tax issues concerning third countries.’
58Next, in paragraph 40 of the contested decision, the Council stated that, ‘as [those] documents reflect the possibility of changes in particular as regards the scope of the mandate [of that group] in the context of developments at international level, their release would affect the negotiation process in international forums and weaken the EU’s position vis-à-vis third countries.’
59In that context, according to paragraph 41 of the contested decision, ‘disclosing internal working documents, even after a decision has been reached, would allow third countries to access individual preliminary comments, positions and conclusions reached by individual Member States which are not necessarily compatible with the final position reached by the Council’. It also stated that ‘disclosure of these documents [was] likely to undermine the proper conduct of international relations with third countries by revealing the Member States[’] positions on these issues.’
60For those reasons, the Council found, in paragraph 42 of the contested decision, that ‘releas[ing] the [documents at issue] would undermine the protection of the public interest as regards international relations, pursuant to Article 4(1)(a), third indent, of Regulation … No 1049/2001’.
61With regard to the protection of the financial, monetary or economic policy of the Union or of a Member State, the Council reiterated, in paragraph 43 of the contested decision, that ‘the documents [at issue] concern[ed] the revision of the mandate of the [Code of Conduct] [G]roup … [and] reflect[ed] the possibility of changes in particular as regards the scope of the mandate in the context of developments at national and international level’.
62Furthermore, according to paragraph 44 of that decision, ‘these documents deal with key issues relating to the options and methodology in order to ensure that the Code of Conduct Group is able, in the future, to continue to make its effective contribution to promote fair tax competition and address harmful tax practices.’
63In paragraph 45 of the contested decision, the Council stated that ‘the documents [at issue] contain[ed] certain comments which [were] not reflected in the final position taken by the Council, including comments on possible future measures to be taken by the governments of individual Member States in the area of taxation and preventing tax evasion,’ That same paragraph also states that ‘the disclosure of the documents concerned would, in an actually foreseeable and not purely hypothetical way, create an unstable regulatory environment that [was] likely to trigger unwarranted and undesirable behaviour by economic operators’ and that ‘possible reactions of economic operators to such working comments reflecting possible future adaptations of the financial and economic policy of the Member States could have negative influence on the financial or economic policy of the Member States concerned’.
64Consequently, the Council found, in paragraph 46 of the contested decision, that ‘[the] disclosure of the documents [at issue would affect] the protection of the public interest as regards the financial and economic policy of the … Union and its Member States’.
65It is that context that it is necessary to examine the first to fourth parts of the second plea in law.
The first part of the second plea in law, alleging that the Council incorrectly assessed the reasons given by the Member States to oppose the disclosure of the documents requested and the insufficient reasoning in that regard, and the second part of the second plea in law, alleging an inaccuracy of the factual framework on which the contested decision is based and an insufficient statement of reasons in that regard
66By the first part of the second plea in law, the applicant takes issue with the fact that no emails from Ireland, the Italian Republic, the Grand Duchy of Luxembourg and the Republic of Austria have been made public, whereas emails from almost all other Member States, which have been identified as falling within the scope of the request for access, were made public. Thus, it seems that the Council was guided by the interests of those four Member States, and not by the content of the documents at issue, with the result that the Council did not correctly apply Article 4(5) of Regulation No 1049/2001. According to the applicant, at least, the Council did not provide sufficient reasons for its decision in that regard.
67By the second part of the second plea in law, the applicant claims, in essence, that, for the same reasons, the contested decision is based on an erroneous factual framework. In any event, the Council incorrectly failed to explain why and in what way the documents at issue differed from those which were made public.
68The Council disputes that line of argument.
69Article 4(5) of Regulation No 1049/2001 permits the Member States to request that a document originating from that Member State not be disclosed without its prior agreement.
70The exercise of the power conferred by Article 4(5) of Regulation No 1049/2001 on the Member State concerned is subject to the substantive exceptions set out in paragraphs 1 to 3 thereof, with the Member State merely being given, in that regard, a power to take part in the institution’s decision. The prior agreement of the Member State concerned referred to in that Article 4(5) thus resembles not a discretionary right of veto, but a form of assent confirming that none of the grounds of exception under paragraphs 1 to 3 of that article is present. The decision-making process thus established by Article 4(5) therefore requires the institution and the Member State involved to confine themselves to the substantive exceptions laid down in those paragraphs 1 to 3 (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 35 and the case-law cited).
71Where the implementation of rules of EU law is thus entrusted jointly to the institution and the Member State which has made use of the possibility granted by Article 4(5) of Regulation No 1049/2001, and such implementation consequently depends on the dialogue to be carried on between them, they are obliged in accordance with the duty of loyal cooperation set out in Article 4(3) TEU to act and cooperate in such a way that those rules are effectively applied (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 36 and the case-law cited).
72Nevertheless, the intervention of the Member State concerned does not affect, from the point of view of the person requesting access, the nature of an EU act of the decision subsequently addressed to him or her by the institution in response to the request for access made to it concerning a document in its possession (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 37 and the case-law cited).
73It follows that if, following that dialogue with the institution, the Member State concerned objects to disclosure of the document at issue, it is obliged to state reasons for that objection with reference to the exceptions listed in Article 4(1) to (3) of Regulation No 1049/2001 (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 38 and the case-law cited).
74In addition, as is apparent in particular from Articles 7 and 8 of Regulation No 1049/2001, the institution is itself obliged to give reasons for a decision refusing a request for access to a document. Such an obligation means that the institution must, in its decision, not merely record the fact that the Member State concerned has objected to disclosure of the document applied for, but also set out the reasons relied on by that Member State to show that one of the exceptions to the right of access in Article 4(1) to (3) of the Regulation applies. That information will allow the person who has asked for the document to understand the origin and grounds of the refusal of his or her request and the competent court to exercise, if need be, its power of review (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 39 and the case-law cited).
75That being said, the institution is not required to carry out, with respect to the document to which access is refused, an exhaustive assessment of the reasons for objecting put forward by the Member State on the basis of the exceptions in Article 4 of Regulation No 1049/2001. Thus, the obligation to carry out a specific and individual examination which stems from the principle of transparency does not apply where the request for access concerns a document originating from a Member State, as referred to in Article 4(5) of Regulation No 1049/2001. To insist on such an exhaustive assessment could lead to the institution to which a request for access to a document has been made being able, after carrying out the assessment, wrongly to communicate the document in question to the person requesting access, notwithstanding the objection, duly reasoned, of the Member State from which that document originates (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 40 and the case-law cited).
76On the other hand, the institution’s obligation to conduct a diligent examination must lead it to check whether the explanations given by the Member State to oppose the disclosure of its documents appear to it, prima facie, to be well founded. It is necessary for the institution to determine whether, in the light of the circumstances of the case and of the relevant rules of law, the reasons given by the Member State for its objection were capable of justifying prima facie such refusal and, accordingly, whether those reasons made it possible for that institution to assume the responsibility conferred on it under Article 8 of Regulation No 1049/2001. It is a matter of preventing the institution from adopting a decision which it does not consider to be defensible since it is the author of that decision and is therefore responsible for its lawfulness (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 41 and the case-law cited).
77In the present case, the Council stated, in paragraph 20 of the contested decision, that Ireland, the French Republic, the Italian Republic, the Republic of Lithuania, the Grand Duchy of Luxembourg and the Republic of Austria opposed the disclosure of some of the documents requested, which they issued, for the reasons set out in paragraphs 21 to 23 of that decision.
78In particular, some of those Member States argued, first, that the disclosure of the documents which they issued could undermine their economic and financial policy within the meaning of the fourth indent of Article 4(1)(a) of Regulation No 1049/2001. Secondly, some of them submitted that such disclosure was likely to undermine the international relations which they maintain with third countries within the meaning of the third indent of Article 4(1)(a) of that regulation. That disclosure would reveal their position on interactions with those countries and the differential treatment of those countries in comparison to Member States in the context of the work carried out by the Code of Conduct Group.
79Next, in paragraphs 39 to 47 of the contested decision, the Council explained that it examined the reasons put forward by those Member States and found that the reasons based on the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001 were intended to apply to the documents at issue. Those reasons have been set out in paragraphs 57 to 59 and 61 to 63 above.
80It is apparent from those paragraphs of the contested decision that the Council ascertained whether, taking into account the circumstances of the case and the applicable rules of law, the reasons put forward by Ireland, the French Republic, the Italian Republic, the Republic of Lithuania, the Grand Duchy of Luxembourg and the Republic of Austria, in support of their opposition to the disclosure of the documents at issue, were such as to justify, prima facie, such a refusal. Thus, the applicant cannot claim that the Council did not correctly apply Article 4(5) of Regulation No 1049/2001, or that it adopted the contested decision on the basis of an incorrect factual framework.
81That finding is not called into question by the fact that the other Member States did not object to the disclosure of the documents requested. First, that fact alone does not mean that the Council did not carry out a prima facie assessment of the documents at issue in the light of their content and the reasons given by the Member States to oppose their disclosure. Secondly, in the context of its prima facie assessment and in the light of the various explanations provided by the Member States concerned, the Council was entitled to consider that the different contents of the documents disclosed and the documents at issue did not present a comparable risk of harm to the interests protected by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
82Lastly, the reasoning set out in that regard in the contested decision is sufficient in the light of the requirements recalled in paragraph 47 above, since it allows the applicant to know the content and the result of the assessment carried out by the Council and the Courts of the European Union to exercise their power of review.
83In that regard, the applicant cannot argue that the Council was required to explain how the disclosed documents differed from the documents at issue. As is apparent from the case-law recalled in paragraph 47 above, it was not necessary for the Council, in the contested decision, to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of adequate reasoning must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. The decision-making process established by Article 4(5) of Regulation No 1049/2001, which requires the Council to consult individually each of the Member States from which documents, which are the subject of a request for access, originate, may, by its nature, give rise to a situation, such as that in the present case, in which certain Member States oppose the disclosure of some of those documents and others do not oppose it.
84In the light of the foregoing, the first and second parts of the second plea in law must be rejected as unfounded.
The third and fourth parts of the second plea in law, alleging the absence of a risk of harm, respectively, to the protection of international relations and to the protection of the financial, monetary or economic policy of the Union or of a Member State or, at least, an insufficient statement of reasons in that regard
85By the third and fourth parts of the second plea in law, the applicant maintains that the Council incorrectly relied on the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001 to oppose the disclosure of the documents at issue. Furthermore, the Council did not provide sufficient reasons for the contested decision in that regard.
–The preliminary issue of whether a general presumption of confidentiality should apply to the documents at issue
86At the outset, the Council argues that a general presumption of confidentiality should be applied to the documents at issue, since they form part of the work carried out by the Code of Conduct Group, which must remain confidential in order to protect the financial, monetary or economic policy of the Union or of a Member State and to preserve the effectiveness of that work.
87In that regard, it should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 48 and the case-law cited).
88That core EU objective is also reflected, first, in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and, secondly, in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 49 and the case-law cited).
89To those ends, Article 1 of Regulation No 1049/2001 provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 51 and the case-law cited).
90That being said, it follows from Article 4 of Regulation No 1049/2001, which introduces a system of exceptions in that regard, that that right is, nevertheless, subject to certain limits based on reasons of public or private interest (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 52 and the case-law cited).
91As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 53 and the case-law cited).
92In that regard, it should be borne in mind that where an EU institution, body, office or agency that has received a request for access to a document 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 must not be purely hypothetical (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 54 and the case-law cited).
93In certain cases, the Court acknowledged that it was however open to that institution, body, office or agency 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 (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 55 and the case-law cited).
94The objective of such presumptions is thus the possibility, for the EU institution, body, office or agency concerned, to consider that the disclosure of certain categories of documents undermines, in principle, the interest protected by the exception which it is invoking, by relying on such general considerations, without being required to examine specifically and individually each of the documents requested (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 56 and the case-law cited).
95As the law stands, the Court has recognised five categories of documents which enjoy general presumptions of confidentiality (see, to that effect, judgment of 29 July 2024, Validity v Commission, C‑51/23 P, not published, EU:C:2024:664, paragraph 37), namely, first, the documents in an administrative file relating to a procedure for reviewing State aid (judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau, C‑139/07 P, EU:C:2010:376, paragraph 61), second, the submissions lodged in proceedings before the courts of the European Union, for as long as those proceedings remain pending (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 94), third, the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings (judgments of 28 June 2012, Commission v Éditions Odile Jacob, C‑404/10 P, EU:C:2012:393, paragraph 123, and of 28 June 2012, Commission v Agrofert Holding, C‑477/10 P, EU:C:2012:394, paragraph 64), fourth, the documents relating to an infringement procedure during its pre-litigation stage, including the documents exchanged between the Commission and the Member State concerned during an EU Pilot procedure (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 65, and of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 51) and, fifth, the documents relating to a proceeding under Article 101 TFEU (judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 93).
96Five further general presumptions of confidentiality have been enshrined in the case-law of the General Court, namely those which apply, first, to the bids submitted by the tenderers in a public procurement procedure where a request for access has been made by another tenderer (judgment of 29 January 2013, Cosepuri v EFSA, T‑339/10 and T‑532/10, EU:T:2013:38, paragraph 101), second, to the documents submitted under Article 11(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles [101] and [102 TFEU] (OJ 2003 L 1, p. 1), by the national competition authorities to the Commission (judgment of 12 May 2015, Unión de Almacenistas de Hierros de España v Commission, T‑623/13, EU:T:2015:268, paragraph 64), third, multiple-choice questions asked during an open competition organised by the European Personnel Selection Office (EPSO) (judgment of 12 November 2015, Alexandrou v Commission, T‑515/14 P and T‑516/14 P, EU:T:2015:844, paragraph 94), fourth, to documents relating to an investigation by the European Anti-Fraud Office (OLAF) (judgment of 26 May 2016, International Management Group v Commission, T‑110/15, EU:T:2016:322, paragraph 44) and, fifth, to documents relating to proceedings for abuse of a dominant position which have been closed (judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraph 44).
97In each of those cases, the refusal to grant access at issue related to a set of documents which were clearly defined by the fact that they all belonged to a file relating to ongoing administrative or judicial proceedings (see, to that effect, judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 81 and the case-law cited).
98Moreover, the general presumptions of confidentiality are based on the fact that the exceptions to the right of access to documents set out in Article 4 of Regulation No 1049/2001 cannot, where the documents which are the subject of a request for access fall within a particular area of EU law, be interpreted without taking account of the specific rules governing access to those documents. Those general presumptions thus make it possible to ensure consistency in the application of legal rules which pursue different objectives and do not expressly provide for one to take precedence over the other (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 182 and the case-law cited).
99Furthermore, the application of general presumptions is essentially dictated by the overriding need to ensure that the procedures at issue operate correctly, and to guarantee that their objectives are not jeopardised. Accordingly, a general presumption may be recognised on the basis that access to the documents involved in certain procedures is incompatible with the proper conduct of those procedures and the risk that those procedures could be undermined, it being understood that general presumptions ensure that the integrity of the conduct of the procedure can be preserved by limiting intervention by third parties (see judgment of 6 October 2021, Aeris Invest v ECB, T‑827/17, EU:T:2021:660, paragraph 183 and the case-law cited).
100In the present case, first of all, the documents requested are not defined by the fact that they all belonged to a file relating to ongoing administrative or judicial proceedings.
101Next, it is common ground that there are no specific rules governing access to documents relating to the revision of the Tax Code of Conduct.
102Lastly, the Council cannot rely on paragraph 13 of the Council Conclusions of 9 March 1998 concerning the establishment of the Code of Conduct Group (business taxation) (OJ 1998 C 99, p. 1), on paragraph 17 of Council conclusions 15148/15 of 8 December 2015 on the future of the code of conduct (business taxation), on paragraph 15 of Council conclusions 108/16 of 8 March 2016 on the code of conduct on business taxation, or on the recitals of Council conclusions 14452/22 of 8 November 2022 on the reform of the Code of Conduct for Business Taxation, from which it would follow that the entire work of the Code of Conduct Group should be confidential.
103The scope of the obligations incumbent upon an EU institution under Regulation No 1049/2001, as interpreted by the Courts of the European Union, cannot depend on the content of acts, such as the Council’s conclusions, adopted by the institution concerned itself.
104In those circumstances, a presumption of confidentiality is not intended to apply to the documents at issue.
105That finding is not called into question by the Council’s argument raised at the hearing that such a presumption must apply to the documents requested on the ground that the Code of Conduct Group has an intergovernmental character because taxation remains an exclusive competence of the Member States.
106The Council fails to explain how that fact alone would justify the establishment of a general presumption of confidentiality, in the light, in particular, of the considerations set out in paragraphs 97 and 99 above.
107Furthermore, it is common ground that the Council holds the documents at issue. Thus, those documents are subject to the principles arising from Regulation No 1049/2001, including those enshrined in the case-law of the Courts of the European Union for the purpose of recognising a general presumption of confidentiality.
108In the light of the foregoing, the Council’s argument that the documents at issue are covered by a general presumption of confidentiality must be rejected.
–The applicability of the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001 to the documents at issue, and compliance with the obligation to state reasons
109The Council submits, first of all, that, in the context of the procedure provided for in Article 4(5) of Regulation No 1049/2001, the Member States concerned have demonstrated that the exceptions provided for in the third and fourth indents of Article 4(1)(a) of that regulation applied to the documents at issue. However, the Council cannot substitute its analysis for that of the Member States in that regard. Furthermore, the Council has a wide discretion in determining whether disclosure of those documents could undermine the public interests protected by those exceptions.
110Next, with regard more specifically to the exception relating to the protection of international relations, it is apparent from paragraphs 39 to 42 of the contested decision that the documents at issue relate to sensitive tax issues concerning third countries, expected developments at international level and in international forums, and future amendments to the Tax Code of Conduct. The disclosure of such elements represents a reasonably foreseeable, and not purely hypothetical, risk for the development of international relations with third countries. That risk is all the higher as certain tax regimes of third countries may be mentioned therein in a negative manner.
111Lastly, the disclosure of the documents at issue presents a concrete, and not purely hypothetical, risk for the financial, monetary or economic policy of the Union or of a Member State, in so far as those documents summarise the statements of the Member States concerning the revision of the Tax Code of Conduct, which is a key instrument in promoting sound and fair tax competition and addressing harmful tax practices. First, the need to ensure a stable regulatory framework for businesses requires not disclosing some future measures that may be adopted to achieve the objectives of the Tax Code of Conduct. Secondly, it is appropriate to keep some measures envisaged in the context of the fight against harmful tax practices confidential in order to avoid adaptation strategies on the part of economic operators.
112In that regard, it should be borne in mind, at the outset, that, where a Member State relies on Article 4(5) of Regulation No 1049/2001 and puts forward grounds for refusal listed in Article 4(1) to (3) thereof, it is for the European Union judicature to review, on application by a person to whom the institution has refused to grant access, whether that refusal could have been validly based on those exceptions, regardless of whether the refusal results from an assessment of those exceptions by the institution itself or by the Member State concerned (see judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 72 and the case-law cited, and judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 52).
113Thus, ensuring effective judicial protection for the person who has made the request and to whom the institution has refused to grant access to one or more documents originating from a Member State following an objection by that State means that the European Union judicature must assess the lawfulness of the decision to refuse access in the specific case, in the light of all relevant factors, among the most important of which are the documents whose disclosure has been refused (see judgment of 21 June 2012, IFAW Internationaler Tierschutz-Fonds v Commission, C‑135/11 P, EU:C:2012:376, paragraph 73 and the case-law cited).
114As regards the scope of the exceptions concerned, it should be borne in mind that, under the third indent of Article 4(1)(a) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest as regards international relations.
115Likewise, under the fourth indent of Article 4(1)(a) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of the public interest as regards the financial, monetary or economic policy of the Union or a Member State.
116The particularly sensitive and essential nature of the interests protected by Article 4(1)(a) of Regulation No 1049/2001 confers on the decision which must thus be adopted by the institution a complex and delicate nature which calls for the exercise of particular care (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 35, and of 7 February 2018, Access Info Europe v Commission, T‑851/16, EU:T:2018:69, paragraph 38).
117That is all the more so since the exceptions set out in Article 4(1) of Regulation No 1049/2001 are framed in mandatory terms inasmuch as the institutions are obliged to refuse access to documents falling under any one of those exceptions once the relevant circumstances covered by those exceptions are shown to exist, and there is no need to balance the protection of the public interest against an overriding general interest (see judgment of 7 February 2018, Access Info Europe v Commission, T‑851/16, EU:T:2018:69, paragraph 38 and the case-law cited).
118Furthermore, the criteria set out in Article 4(1)(a) of Regulation No 1049/2001 are very general, since access must be refused, as is clear from the wording of that provision, if disclosure of the document concerned would ‘undermine’ the protection of the ‘public interest’ at issue and not only, as had been proposed during the legislative procedure which preceded the adoption of that regulation, when that protection has actually been ‘significantly undermined’ (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 36, and of 7 February 2018, Access Info Europe v Commission, T‑851/16, EU:T:2018:69, paragraph 39).
119Thus, the principle of strict construction of the exceptions set out in Article 4 of Regulation No 1049/2001, as recalled in paragraph 91 above, does not, in respect of the public interest exceptions provided for in Article 4(1)(a) of that regulation, preclude the institution concerned from enjoying a wide discretion for the purpose of determining whether disclosure of a document to the public would undermine the interests protected by that provision. Consequently, the review by the General Court of the legality of a decision by that institution refusing access to a document on the basis of one of those exceptions must be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated and whether there has been a manifest error of assessment or a misuse of powers (see judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 64, and of 7 February 2018, Access Info Europe v Commission, T‑851/16, EU:T:2018:69, paragraph 40).
120In the present case, the Council relied on the grounds set out in paragraphs 39 to 41 and 43 to 45 of the contested decision, the content of which is reproduced in paragraphs 57 to 59 and 61 to 63 above, to justify its refusal to grant access to the documents at issue under the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
121In accordance with the case-law recalled in paragraphs 112 and 113 above, it is therefore for the Court to ascertain whether that refusal could validly be based, in light of the content of the documents at issue, on such grounds.
122In that regard, it should be noted, in the first place, that two of the documents at issue manifestly do not contain any element which might fall within those exceptions in the manner alleged by the Council.
123First, by its email sent on 23 November 2021, the Italian Republic merely states that it has withdrawn its reservations on the latest draft of the new Tax Code of Conduct, without specifying what those reservations consisted of.
124Secondly, by its email sent on 15 October 2021, the Republic of Austria merely forwards two editorial observations on some paragraphs of the draft of the new Tax Code of Conduct. By the first observation, the Republic of Austria draws attention to a mere clerical error. By the second observation, it proposes to delete or modify a sentence, because it was inaccurate, in so far as it referred to the possibility of reducing the taxable base of an undertaking which would not be subject to tax for lack of tax residence.
125Nothing in the content of the emails referred to in paragraphs 123 and 124 above reveals the existence of considerations which might fall within the exceptions at issue in the manner alleged by the Council. Accordingly, the Council should have granted full access to the emails sent by the Italian Republic on 23 November 2021 and by the Republic of Austria on 15 October 2021.
126In the second place, it should be noted that, in the redacted part of the email sent on 24 November 2021, the Republic of Lithuania comments on the accuracy of a table containing a description of the defensive tax measures which are in force in that Member State.
127However, as the Council acknowledged at the hearing, following a question put by the Court and the measures of organisation of procedure of 31 March 2025, the table concerned was made public in at least one document published on the Council’s website before the adoption of the contested decision, namely on page 42 of the Council’s Report 14230/21 on the Code of Conduct Group of 26 November 2021.
128It follows from the case-law that the disclosure of a document the essential content of which has already been made public is not likely to cause reasonably foreseeable, and not purely hypothetical, harm to the interests protected under Article 4 of Regulation No 1049/2001 (see, to that effect, judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 60).
129In those circumstances, the disclosure of the redacted part of the email of 24 November 2021 from the Republic of Lithuania is manifestly not likely to undermine international relations or the financial, monetary or economic policy of the Union or of that Member State.
130It follows that the Council should have granted full access to the email sent on 24 November 2021 by the Republic of Lithuania.
131In the third place, with regard to the documents at issue other than those referred to in paragraphs 125 and 130 above, it is apparent from both the explanations provided by the Council in paragraphs 39 to 41 and 43 to 45 of the contested decision and the examination of the content of the documents at issue, in the version communicated to the Court, such as Annex B.1 to the Council’s letter of 21 November 2024 lodged pursuant to the order of 6 November 2024 granting measures of inquiry (‘the disclosed documents at issue’), that those documents contain several passages the disclosure of which would present a reasonably foreseeable, and not purely hypothetical, risk to the interests protected by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
132With regard to the public interest relating to the protection of international relations, those passages contain sensitive observations on the tax regimes of third countries and the treatment to be given to those regimes, refer to the possibility of modifications to the scope of the mandate of the Code of Conduct Group in the light of certain developments and negotiations at international level and contain observations and individual positions of the Member States concerned which are not necessarily compatible with the final position adopted by the Council. The disclosure of such passages is thus likely to undermine the proper conduct of international relations with third countries, to affect the negotiation process in international forums and to weaken the position of the European Union with regard to third countries or international organisations.
133Those considerations concern, for example, the following passages from the documents at issue:– the passage, on page 7, fifth and sixth paragraphs, of the disclosed documents at issue, which begins with the words ‘While [Member State]’ and ends with the words ‘the provisions of the Code’;– the passage, on page 15, third paragraph, of the disclosed documents at issue, which begins with the words ‘[Member State] is supportive …’ and ends with the word ‘work’;– the passage, on page 30, fifth paragraph, of the disclosed documents at issue, which begins with the words ‘Broadly, we are’ and ends with the words ‘our interests’;– the passage on page 42 of the disclosed documents at issue, in the third frame, which begins with the words ‘We propose these’ and ends with the words ‘effective taxation’;– the passage, on page 44, second paragraph, of the disclosed documents at issue, which begins with the words ‘Indeed, as expressed’ and ends with the word ‘clarified’;– the passage, on page 52, fifth paragraph, of the disclosed documents at issue, which begins with the words ‘REITERATES’ and ends with the words ‘beginning of 2022’;– the passage, on page 63, fifth to seventh paragraphs, of the disclosed documents at issue, which begins with the words ‘All delegations’ and ends with the words ‘mandate of the Code of Conduct’; and– the passage, on page 66, third and fourth paragraphs, of the disclosed documents at issue, which begins with the words ‘While we are’ and ends with the words ‘are finalised’.
134Likewise, with regard to the financial, monetary or economic policy of the Union or of a Member State, the documents at issue contain several passages which relate to measures aimed at ensuring that the Code of Conduct Group can continue, in the future, to make an effective contribution to promote fair tax competition and address harmful tax practices, and contain certain comments which are not necessarily reflected in the final position adopted by the Council. Thus, the disclosure of such passages is likely to reveal certain sensitive aspects of the policy of those Member States in the field of direct taxation, which falls within their exclusive competence, and to create an unstable regulatory environment, which, in turn, could trigger certain behaviours among economic operators which could have negative repercussions on the financial, monetary or economic policy of the Member States.
135Those considerations concern, for example, the following passages from the documents at issue:– the passage, on page 3, tenth paragraph, of the disclosed documents at issue, which begins with the words ‘Further to this’ and ends with the words ‘tax rates’;– the passage, on page 7, eighth to eleventh paragraphs, of the disclosed documents at issue, which begins with the words ‘[Member State] does not agree’ and ends with the words ‘in the document’;– the passage, on page 18, in the section ‘[Member State] Comments’, third paragraph, of the disclosed documents at issue, which begins with the words ‘[Member State] welcomes’ and ends with the word ‘specifically’;– the passage on page 22, third paragraph, of the disclosed documents at issue, which begins with the words ‘There is a concern’ and ends with the words ‘this suggestion’;– the passage, on page 25, third paragraph, of the disclosed documents at issue, which begins with the words ‘[Member State] has participated’ and ends with the word ‘formation’;– the passage, on page 51, first paragraph, of the disclosed documents at issue, which begins with the words ‘We have’ and ends with the words ‘Code of conduct’;– the passage, on page 55, fourth paragraph, of the disclosed documents at issue, which begins with the words ‘Considering the latest’ and ends with the words ‘include it formally’;– the passage, on page 70, third paragraph, of the disclosed documents at issue, which begins with the words ‘We also take note’ and ends with the words ‘in terms of … the Commission’; and– the passage, on page 72, fifth paragraph, of the disclosed documents at issue, which begins with the words ‘Concerning paragraph’ and ends with the words ‘business activities’.
136It follows from the foregoing and, in particular, from the content of the passages cited as examples, in paragraphs 133 and 135 above, that the Council was well founded, taking into account the case-law principles set out in paragraphs 116 to 119 above, to oppose, on the basis of the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001, the disclosure of the documents at issue, except those referred to in paragraphs 125 and 130 above.
137Lastly, paragraphs 39 to 41 and 43 to 45 of the contested decision contain a sufficiently clear statement of reasons which enables the applicant to understand the reasons why the Council found that access to the documents at issue could undermine the interests protected by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001. Those reasons also enable the Court to exercise its power of review. In those circumstances, the applicant cannot claim that the contested decision is not sufficiently reasoned in that regard.
138In the light of the foregoing, the third and the fourth parts of the second plea in law must be upheld in respect of the three documents at issue identified in paragraphs 125 and 130 above. However, they must be rejected in respect of the other documents at issue.
The third plea in law, alleging that the Council should have granted partial access to the documents at issue to which access was refused in full or, at least, an insufficient statement of reasons in that regard
139By his third plea in law, the applicant argues that the Council should have granted at least partial access to the documents at issue. Furthermore, the Council did not provide a sufficient statement of reasons for the contested decision in that regard.
140The Council disputes that argument, relying, in essence, on the grounds set out in the contested decision.
141Furthermore, at the hearing, the Council argued that, even assuming that there were passages in the documents at issue which were not covered by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001, the disclosure of such passages would not be of use to the applicant.
142In that regard, it should be borne in mind that, under Article 4(6) of Regulation No 1049/2001, if only parts of the requested documents are covered by any of the exceptions provided for in Article 4 of that regulation, the remaining parts of the document are to be released.
143It is apparent from the very wording of Article 4(6) of Regulation No 1049/2001 that an institution is required to consider whether it is appropriate to grant partial access to the documents requested and to confine any refusal to information covered by the relevant exceptions. The institution must grant partial access if the aim pursued by that institution in refusing access to a document could be achieved if the institution merely struck out the passages which might harm the public interest to be protected (see judgment of 24 April 2024, Naass and Sea-Watch v Frontex, T‑205/22, not published, EU:T:2024:266, paragraph 85 and the case-law cited).
144In the present case, in paragraphs 48 and 49 of the contested decision, the Council ruled out the possibility of granting partial access to the documents at issue – with the exception of the email of 24 November 2021 from the Republic of Lithuania – considering that it was impossible to identify significant parts of those documents which were not covered by the exceptions at issue and which could practically be separated from the rest of those documents.
145It follows from the examination of the documents at issue that each of them – except those referred to in paragraphs 125 and 130 above, to which full access should have been granted – contains passages which, while taking into account the case-law principles set out in paragraphs 112 to 119 above, are manifestly not covered by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
146Those passages contain, in particular, general observations on the reasons for revising the Tax Code of Conduct and the appropriate time to do so, and editorial observations on certain parts of the draft new Tax Code of Conduct or the resolution relating thereto, it being understood that those observations do not relate to the subject matters raised by the Council in paragraphs 39 to 41 and 43 to 45 of the contested decision or, moreover, to general questions on the practical implementation of the draft new Tax Code of Conduct. They also contain courtesies between the various stakeholders involved in the revision of the Tax Code of Conduct and proposals to hold additional meetings. The disclosure of such passages is manifestly not likely to present a reasonably foreseeable, and not purely hypothetical, risk to the interests protected by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
147Furthermore, those passages can be easily separated from the rest of the content of the documents concerned.
148Those considerations apply, in particular, to the following passages:– the passage, on page 3, second to fourth paragraphs, of the disclosed documents at issue, which begins with the words ‘[Member State] is open’ and ends with the words ‘that agreed objective’;– the passage, on page 7, third paragraph, of the disclosed documents at issue, which begins with the words ‘In many places’ and ends with the words ‘concerns below’;– the passage, on page 11, first paragraph, of the disclosed documents at issue, which begins with the words ‘Thank you’ and ends with a number;– the passage, on page 15, fourth paragraph, of the disclosed documents at issue, which begins with the words ‘What would be’ and ends with the words ‘is required’;– the passage, at the beginning of page 18 of the disclosed documents at issue, which begins with the words ‘Dear Colleagues’ and ends with the word ‘Regards’;– the passage, on page 23, last paragraph, of the disclosed documents at issue, which begins with the words ‘Overall, we’ and ends with the word ‘subsidiarity’;– the passage, page 25, first paragraph, of the disclosed documents at issue, which begins with the words ‘As noted’ and ends with the words ‘in practice’;– the passage, on page 30, first to fourth paragraphs, of the disclosed documents at issue, which begins with the words ‘[Member State] remains’ and ends with the words ‘questions for us’;– the passage, on page 32 of the disclosed documents at issue, which begins with the words ‘Please find’ and ends with the word ‘conduct’;– the passage, on page 44, second paragraph, of the disclosed documents at issue, which begins with the words ‘I’m writing’ and ends with the word ‘report’;– the passage, on page 49, first to fourth paragraphs, of the disclosed documents at issue, which begins with the words ‘[Member State] welcomes’ and ends with the word ‘references’, and the passage, from the sixth paragraph on page 49 to the eighth paragraph on page 50 of those documents, which begins with the words ‘Noting the Commission’ and ends with the words ‘digitalised economic environment’;– the passage, on page 52, first to third paragraphs, of the disclosed documents at issue, which begins with the words ‘Dear all’ and ends with the words ‘better clarified’;– the passage, on page 55, seventh to ninth paragraphs, of the disclosed documents at issue, which begins with the words ‘Moreover, we have’ and ends with the words ‘the discussion’;– the passage, on page 63, last paragraph, of the disclosed documents at issue, which begins with the word ‘Finally’ and ends with the words ‘to achieve’;– the passage, on page 66, fifth and sixth paragraphs, of the disclosed documents at issue, which begins with the words ‘In addition’ and ends with the word ‘observations’;– the passage, on page 69, last paragraph, of the disclosed documents at issue, which begins with the words ‘Concerning paragraph’ and ends with the words ‘document WK 11708/2021’; and– the passage, on page 72, last paragraph, of the disclosed documents at issue, which begins with the words ‘Concerning paragraph’ and ends with the words ‘document WK 11708/2021.’
149Furthermore, in the fourth paragraph of page 8 of the documents at issue, reference is made to a document which was already made public on the Council’s website before the adoption of the contested decision, namely Council conclusions 15429/17 of 5 December 2017 on EU list of non-cooperative jurisdictions for tax purposes, part of the content of which is reproduced in that paragraph, which the Council acknowledged at the hearing, following a question put by the Court and the measures of organisation of procedure of 31 March 2025. Thus, in accordance with the case-law recalled in paragraph 128 above, the disclosure of that passage would manifestly not undermine the interests protected by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001.
150Lastly, since the Council maintains that the disclosure of the passages referred to in paragraphs 146 to 149 above would not be of use to the applicant, and even assuming that that argument, raised for the first time at the hearing, would be admissible, it should be noted that Article 4(6) of Regulation No 1049/2001, like that regulation as a whole, does not require the applicant to show that the document whose disclosure is requested is ‘useful’ to him or her. It is not for the institution receiving a request for access to documents to assess the usefulness of the document for the applicant. This is all the more so since Article 4(6) of Regulation No 1049/2001 cannot be interpreted in such a way as to amount to exempting the institution concerned from an obligation which is expressly envisaged in that provision, namely the obligation to disclose parts of the document requested, whereas such an exemption is not among the exceptions exhaustively listed by that regulation (see, to that effect, judgment of 24 April 2024, Naass and Sea-Watch v Frontex, T‑205/22, not published, EU:T:2024:266, paragraph 87 and the case-law cited).
151In the light of the foregoing, it must be stated that the Council made a manifest error of assessment when it found that partial access could not be granted to the documents at issue, apart from those referred to in paragraphs 125 and 130 above, to which full access should, in any event, have been granted. The third plea in law must therefore be upheld.
152In those circumstances, there is no need to rule on the remainder of the argument put forward in support of the third plea, based on a failure to provide adequate reasons, it being understood that that argument was raised as a subsidiary argument.
The fifth part of the second plea in law, alleging misuse of powers
153The applicant submits that the Council has misused its powers. The manner in which the Council handled the request for access, its categorical refusal to grant access to the documents at issue of four Member States and the limited reasoning that that institution provided in that regard gives rise to the feeling that ‘concealed interests’ were at stake. That impression is further fuelled by the fact that, in the past, some Member States wanted to prevent the public from knowing that they had opposed measures to address harmful tax competition and tax evasion.
154The Council disputes that line of argument.
155It follows from settled case-law that a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the Treaties for dealing with the circumstances of the case (judgment of 13 November 1990, Fedesa and Others, C‑331/88, EU:C:1990:391, paragraph 24; see, also, judgment of 16 April 2013, Spain and Italy v Council, C‑274/11 and C‑295/11, EU:C:2013:240, paragraph 33 and the case-law cited).
156In the present case, the applicant merely alleges a ‘feeling’ that ‘concealed interests’ played a role in the Council’s refusal to grant access to the documents at issue, without, however, providing objective, relevant and consistent evidence to support that argument.
157In those circumstances, the fifth part of the second plea must be rejected.
Conclusion
158In the light of all of the foregoing considerations, the third and fourth parts of the second plea in law must be upheld in so far as the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001 do not apply to the emails sent by the Italian Republic on 23 November 2021 and the Republic of Austria on 15 October 2021, or to the redacted part of the email from the Republic of Lithuania sent on 24 November 2021. Likewise, the third plea must be upheld in so far as the Council ruled out the possibility of granting partial access to the remaining documents at issue.
159Therefore, and to that extent, the contested decision must be annulled.
160That being so, it is not for the Court to substitute itself for the Council and to indicate all the parts of the documents at issue to which partial access should have been granted, because the Council is required, when implementing this judgment, and in accordance with Article 266 TFEU, to take into account the reasoning set out in it (see judgment of 4 May 2012, In’t Veld v Council, T‑529/09, EU:T:2012:215, paragraph 124).
161In that regard, it should be noted that the passages from the documents at issue referred to in paragraphs 148 and 149 above constitute only examples of passages which are manifestly not covered by the exceptions provided for in the third and fourth indents of Article 4(1)(a) of Regulation No 1049/2001, the Council being obliged, where appropriate after consulting the Member States under Article 4(5) of that regulation, to identify all passages which are not covered by them.
162Lastly, the action must be dismissed as to the remainder.
Costs
163Under Article 134(2) of its Rules of Procedure, where there is more than one unsuccessful party, the General Court must decide how the costs are to be shared.
164In the present case, since each party has been unsuccessful in part, it is appropriate to order each party to bear its own costs.
Operative part
On those grounds,THE GENERAL COURT (Eighth Chamber)hereby:
1.Annuls Decision SGS 24/00008 of the Council of the European Union of 7 March 2024, in so far as the Council, first, refused to grant access to the emails sent by the Italian Republic on 23 November 2021 and the Republic of Austria on 15 October 2021; second, refused to grant broader access to the email sent by the Republic of Lithuania on 24 November 2021; and, third, ruled out the possibility of granting partial access to the remaining documents identified in paragraph 33 of that decision, namely the emails sent by Ireland on 16 October, 22 October and 16 November 2020, and on 19 February, 2 August, 19 October, 21 October and 3 November 2021, the French Republic on 22 October and 16 November 2020, the Italian Republic on 22 October and 16 November 2020, and on 6 August 2021, and the Grand Duchy of Luxembourg on 26 October 2020, 4 August, 19 October and 2 November 2021;
2.Dismisses the action as to the remainder;
3.Orders the Council and Mr Martijn Frederik Nouwen each to bear their own costs.
Delivered in open court in Luxembourg on 10 September 2025.
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