# C_2021206EN.01003201.xml

| 31.5.2021 | EN | Official Journal of the European Union | C 206/32 |
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31.5.2021

EN

Official Journal of the European Union

C 206/32

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Action brought on 23 March 2021 — De Capitani v Council

(Case T-163/21)

(2021/C 206/40)

Language of the case: English

Parties

Applicant: Emilio De Capitani (Brussels, Belgium) (represented by: O. Brouwer and B. Verheijen, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:

| — | annul the defendant’s decision to refuse access to certain documents requested pursuant to 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, as communicated to the Applicant on 14 January 2021 in a letter with the reference SGS 21/000067, including the annex thereto; |
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annul the defendant’s decision to refuse access to certain documents requested pursuant to 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, as communicated to the Applicant on 14 January 2021 in a letter with the reference SGS 21/000067, including the annex thereto;

| — | order the Council to pay the applicant’s costs pursuant to Article 134 of the Rules of Procedure of the General Court, including the costs relating to any intervening parties. |
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order the Council to pay the applicant’s costs pursuant to Article 134 of the Rules of Procedure of the General Court, including the costs relating to any intervening parties.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

| 1. | First plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exemption (first subparagraph of Article 4(3) of Regulation 1049/2001) (1) and failure to state reasons, because the disclosure would not seriously undermine the decision-making process.






  — | It is argued that the contested decision does not take into account the new constitutional dimension which emanated with the entry into force of the Lisbon Treaty, in particular Article 15(2) TFEU, and which created a new legal regime for public access to documents, in particular for legislative documents. |
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1.

First plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exemption (first subparagraph of Article 4(3) of Regulation 1049/2001) (1) and failure to state reasons, because the disclosure would not seriously undermine the decision-making process.

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It is argued that the contested decision does not take into account the new constitutional dimension which emanated with the entry into force of the Lisbon Treaty, in particular Article 15(2) TFEU, and which created a new legal regime for public access to documents, in particular for legislative documents.

| — | Furthermore, the applicant argues that the contested decision failed to apply and meet the correct test under Article 4(3) of Regulation 1049/2001 and incorrectly relied on an argument that disclosure of the requested documents would put into question the final choices made by the Member States and would create unnecessary uncertainty on their intentions. |
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Furthermore, the applicant argues that the contested decision failed to apply and meet the correct test under Article 4(3) of Regulation 1049/2001 and incorrectly relied on an argument that disclosure of the requested documents would put into question the final choices made by the Member States and would create unnecessary uncertainty on their intentions.

| — | The applicant also maintains that the contested decision incorrectly relied on an argument that disclosure of the requested documents would hamper the delegations in their ability to find a balance between the various interests in the legislative procedure at issue and incorrectly relied on an argument that refusing to disclose a limited number does not amount to denying citizens the possibility to obtain information about the legislative decision-making. |
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The applicant also maintains that the contested decision incorrectly relied on an argument that disclosure of the requested documents would hamper the delegations in their ability to find a balance between the various interests in the legislative procedure at issue and incorrectly relied on an argument that refusing to disclose a limited number does not amount to denying citizens the possibility to obtain information about the legislative decision-making.

| 2. | Second plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exemption (first subparagraph of Article 4(3) Regulation 1049/2001) and failure to state reasons, because the contested decision failed to recognise and grant access on the basis of overriding public interests.






  — | The applicant points out that the contested decision failed to recognise and grant access on the basis of overriding public interests. In particular, he maintains that an overriding public interest exists, as disclosure would enable European citizens to participate in the legislative process and ensure that it does not stall but continues and reaches a conclusion. |
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Second plea in law, alleging errors of law and manifest error of assessment resulting in the misapplication of the protection of the decision-making process exemption (first subparagraph of Article 4(3) Regulation 1049/2001) and failure to state reasons, because the contested decision failed to recognise and grant access on the basis of overriding public interests.

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The applicant points out that the contested decision failed to recognise and grant access on the basis of overriding public interests. In particular, he maintains that an overriding public interest exists, as disclosure would enable European citizens to participate in the legislative process and ensure that it does not stall but continues and reaches a conclusion.

| 3. | Third plea in law, alleging, in subsidiary order: errors of law and manifest error of assessment resulting in the misapplication of the obligation to provide partial access to documents (Article 4(6) Regulation 1049/2001) and failure to state reasons.






  — | The applicant argues that the contested decision did not examine and grant partial access to the requisite legal standard. It misapplied the legal test, which makes it necessary to assess whether every part of a requested document is covered by the invoked exemption for refusing access. |
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3.

Third plea in law, alleging, in subsidiary order: errors of law and manifest error of assessment resulting in the misapplication of the obligation to provide partial access to documents (Article 4(6) Regulation 1049/2001) and failure to state reasons.

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The applicant argues that the contested decision did not examine and grant partial access to the requisite legal standard. It misapplied the legal test, which makes it necessary to assess whether every part of a requested document is covered by the invoked exemption for refusing access.

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(1)  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).

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