Judgment;Abstract — ECLI:EU:T:2022:556
Date: 2022-09-14
Language of the case: English
Court formation: Sixth Chamber, Extended Composition
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - successful
Origin: France

summary record shall not mention the individual position of the members in the committee’s discussions’ and the second that the ‘the committee’s discussions shall be confidential’. 90 In other words, in the contested decisions, the Commission did not rely on provisions of Regulation No 1049/2001, or even of Regulation No 182/2011, or on the content of an internal regulation which the SCoPAFF had actually adopted. 91 Moreover, in that respect, when asked by means of a measure of organisation of procedure whether the SCoPAFF had adopted rules of procedure, the Commission, in its reply lodged at the Court Registry on 15 March 2022, stated that that committee had not adopted rules of procedure but that it organised its work in accordance with the Standard Rules of Procedure. However, the Commission has not produced any evidence in support of that assertion. When questioned at the hearing on the basis of that approach of the SCoPAFF, the Commission did not refer to any particular basis, but stated, in essence, that while the SCoPAFF had not reproduced the Standard Rules of Procedure in an internal regulation, it referred to them ‘in practice’ in order to organise its work. 92 It must therefore be held that, unlike the situation taken into account by the Court in paragraph 86 of the judgment of 28 May 2020, ViaSat v Commission (T‑649/17, not published, EU:T:2020:235), which related to certain activities of another comitology committee, in the present case there is nothing in the file to suggest that the SCoPAFF has adopted rules of procedure corresponding to the provisions of the Standard Rules of Procedure invoked by the Commission in the contested decisions and which would underline the importance that that committee attached to the confidentiality of certain information exchanged within it and its discussions. 93 In the second place, in any event, even if the SCoPAFF had adopted or followed ‘in practice’ the rules in the Standard Rules of Procedure, including the provisions relied on by the Commission in the contested decisions, that fact would not permit the inference that those provisions – even if it were to be interpreted as emphasising the confidential nature of the discussions within the SCoPAFF and the positions expressed by the Member States in that context – could exclude, as a matter of principle, certain documents from the scope of Regulation No 1049/2001. 94 It should be noted that recital 19 of Regulation No 182/2011 states that public access to information on committee proceedings should be ensured in accordance with Regulation No 1049/2001. To that end, Article 9(2) of Regulation No 182/2011 provides that the principles and conditions concerning public access to documents applicable to the Commission are to apply to committees (an identical provision was, moreover, contained in Article 7(2) of Decision 1999/468). Regulation No 182/2011 thus recalls that committees are subject to the same rules as the Commission as regards public access to documents, namely those laid down in Regulation No 1049/2001, and does not contain any specific rule on public access to documents as regards the work of committees. 95 It is true that Article 9(1) of Regulation No 182/2011 provides that each committee is to adopt its own rules of procedure on the basis of standard rules to be drawn up by the Commission following consultation with the Member States, and published in the Official Journal of the European Union. 96 However, the provisions of the rules of procedure of a committee, or even those of the Standard Rules of Procedure, whether or not they have been adopted by the committee as its own rules of procedure, cannot, in response to a request for public access, make it possible for protection to be granted to documents which goes beyond what is provided for by Regulation No 1049/2001. 97 Thus, the Standard Rules of Procedure relied on by the Commission in the contested decisions cannot permit a protection of the individual positions expressed by the Member States that goes beyond that laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, by analogy, judgment of 18 December 2008, Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 92). 98 Furthermore, it follows from the case-law that the EU legislation on access to documents cannot justify an institution’s refusal, as a matter of principle, to grant access to documents pertaining to its deliberations on the basis that they contain information relating to positions taken by representatives of the Member States (see, to that effect, judgment of 10 October 2001, British American Tobacco International (Investments) v Commission, T‑111/00, EU:T:2001:250, paragraph 52 and the case-law cited). 99 It follows that, as regards public access to the documents inherent in the work of comitology committees, the Commission cannot take the view that the relevant legal framework excludes, as a matter of principle, public access to the individual positions of the Member States. 100 In the third place, moreover, it must be observed that the provisions of the Standard Rules of Procedure relied on by the Commission in the contested decisions cannot be interpreted as precluding public access, on request, to the individual positions of the Member States. 101 First, Article 10(2) of the Standard Rules of Procedure relates to the content of the ‘summary record’ of the work of committees. As is apparent from Article 10(1)(c) of Regulation No 182/2011, the summary record is one of the documents that form part of the register of committee proceedings held by the Commission pursuant to the latter provision, documents whose references are published in that register in accordance with paragraph 5 of that provision. It is true that Article 10(2) of the Standard Rules of Procedure adds that, although the summary record describes the agenda items and the voting results, it ‘shall not mention the individual position of the members in the committee’s discussions’. However, the latter provision does not relate to public access to the documents of committees, but to the content of the register of committee proceedings, in particular the content of one of the documents of which it is composed, the summary record. The fact that the summary record does not mention the individual position of the Member States has no bearing on access to documents and cannot therefore prejudice public access, upon application, to documents showing those individual positions. Furthermore, contrary to what was argued by the Commission at the hearing, that provision cannot be interpreted as meaning that the individual position of the Member States should not be recorded in any document, since that provision concerns only the content of the summary record. 102 Furthermore, in so far as, before the Court, the Commission also relied on Article 10(1) of Regulation No 182/2011 in support of the argument that the individual positions of the Member States should be protected, since only the results of votes appear in the register of committee proceedings, that argument must also be rejected for the same reasons. That provision concerns only the content of the register of the committee proceedings, and not public access to documents, which, as follows from Article 9(2) of Regulation No 182/2011, may be granted pursuant to Regulation No 1049/2001. 103 Second, Article 13(2) of the Standard Rules of Procedure does indeed state that ‘the committee’s discussions shall be confidential’. 104 However, first, that provision merely refers to the confidential nature of the ‘committee’s discussions’, and not the entire procedure at the end of which those committees are to hold their discussions (see, by analogy, judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 81). Second, without there being any need to define the concept of ‘the committee’s discussions’ within the meaning of that provision, it is sufficient to note that the scope of that provision appears to be qualified by the whole of Article 13 of the Standard Rules of Procedure. Paragraph 1 thereof states that applications for access to the committee’s documents are to be handled by the Commission in accordance with Regulation No 1049/2001 and paragraph 3 adds that ‘documents submitted to members of the committee, experts and representatives of third parties shall be confidential …, unless access is granted to those documents pursuant to paragraph 1 or they are otherwise made public by the Commission’. 105 Thus, Article 13(1) and (3) of the Standard Rules of Procedure provides for the possibility that, in accordance with Regulation No 1049/2001, access may be granted inter alia to documents transmitted by a member of the committee to other members of the committee and that, in that case, those documents are not confidential, or lose their confidentiality. Those provisions do not in any way exclude documents, such as emails, which contain the observations or the proposals of a committee member on a draft measure, except to reduce unduly the scope of that paragraph 3 as regards access to documents. 106 Moreover, contrary to the Commission’s submission at the hearing, there is nothing to support the interpretation that, in view of the alleged confidentiality arising from Article 13(2) of the Standard Rules of Procedure, a committee’s discussions are in principle sensitive. 107 It follows from the foregoing that, contrary to what the Commission maintained in the contested decisions, the comitology procedures, and in particular the Standard Rules of Procedure, do not in themselves require access to documents showing the individual position of the Member States within the SCoPAFF to be refused in order to protect the decision-making process of that committee, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001, which, however, does not in any way prevent the Commission, in duly justified cases, from refusing access to documents which show the individual position of the Member States within that committee where their disclosure would be likely specifically to undermine the interests protected by the exceptions provided for in Article 4 of Regulation No 1049/2001. (2) Cooperation and mutual confidence and the complexity and sensitivity of the decision-making process 108 In the contested decisions, the Commission stated that disclosure of the individual position of the Member States, expressed in a context of confidentiality, would negatively affect their cooperation ‘in comitology procedures’ and would affect the mutual trust between the Member States and the Commission. The Commission added, in essence, that the fact that the 2013 guidance document on bees had been the subject of discussion for more than six years, the fact that an agreement had not been reached between the Member States during that period and the fact that that guidance document was the subject of revision constituted solid evidence of the complexity and sensitivity of the decision-making process which had to be protected in the present case. In addition, in the second contested decision, the Commission referred to the politically sensitive nature of the 2013 guidance document on bees, which was demonstrated by the duration of the discussions relating to it. 109 The applicant claims that the Commission did not explain how the effect on mutual trust would seriously undermine the decision-making process and that the circumstances invoked in the contested decisions are irrelevant, whereas it is rather the lack of transparency that hinders the decision-making process. 110 The Commission replies, in essence, that the factors relied on in the contested decisions must not be considered individually, but taken as a whole. 111 In the first place, in so far as, in the contested decisions, the Commission referred to the need to protect cooperation between the Member States, it is sufficient to note that, in that regard, the Commission relied on abstract reasoning relating to the preservation of that cooperation in comitology procedures in general. Similarly, in so far as, in the contested decisions, the Commission referred to the need to protect the mutual trust between the Commission and the Member States, since the individual positions of the latter were exchanged ‘in a context of confidentiality’, it must be stated that the Commission also relied on reasons of a general nature. Those justifications are based on the premiss that the comitology procedures protect, with regard to a request for access to documents, the confidentiality of the individual positions of the Member States expressed within the committees, a premiss which, however, has already been rejected in paragraph 107 above. They are therefore justifications which have no concrete connection with the specific circumstances of the decision-making process at issue in the present case. 112 Consequently, as the applicant points out, the explanations contained in the contested decisions are not capable of demonstrating how cooperation and mutual trust in the decision-making process in question would be affected in the event that the requested documents were disclosed. 113 Moreover, it should be recalled that the Member States are bound by a duty of sincere cooperation between themselves and with the EU institutions under Article 4 TEU, with the result that disclosure of the requested documents cannot, in any event, give rise to the concern that that obligation would not be respected or that the duties of the Member States might be weakened in that respect. 114 In the second place, in so far as, in the contested decisions, the Commission relied on certain factual circumstances in order to support its assertion that the decision-making process to be protected in the present case is complex and sensitive, or even that the 2013 guidance document on bees is politically sensitive, it must be observed that the Commission did not refer to the content of the requested documents, but rather, in a general way, to the decision-making process at issue as a whole or to the 2013 guidance document on bees. 115 In that regard, first of all, it should be noted that, in the contested decisions, the Commission did not therefore claim, still less demonstrate, that the requested documents were of a sensitive nature or that they were sensitive documents within the meaning of Article 9 of Regulation No 1049/2001, that provision not being at issue in the present case. Nor has the Commission submitted that any Member State would have requested it, in accordance with Article 4(5) of Regulation No 1049/2001, not to disclose, without its agreement, its position on the 2013 guidance document on bees. 116 Next, it is clear from the case-law that the alleged complexity of the decision-making process does not, in itself, constitute a particular reason to fear that disclosure of the requested documents would seriously undermine that process (see, to that effect and by analogy, judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 81). Similarly, the fact that a subject is sensitive also cannot, in itself, constitute an objective reason sufficient to justify the concern that the decision-making process would be seriously undermined if the requested documents were disclosed (see, to that effect, judgments of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 80, and of 20 September 2016, PAN Europe v Commission, T‑51/15, not published, EU:T:2016:519, paragraph 34). An allegedly sensitive subject matter cannot be confused with a sensitive document (judgment of 21 April 2021, Pech v Council, T‑252/19, not published, under appeal, EU:T:2021:203, paragraph 57). 117 Thus, the Court has already held that the complexity of the discussions, divergent views as between the participants or the sensitive nature of a debate do not justify, in themselves, the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 21 April 2021, Pech v Council, T‑252/19, not published, under appeal, EU:T:2021:203, paragraph 56). 118 Lastly, it should be noted that the circumstances relied on by the Commission in the contested decisions do not give grounds for concerns that the decision-making process would be seriously undermined if the requested documents were disclosed. 119 First, the facts that the 2013 guidance document on bees was discussed for several years and that, during that period, an agreement was not reached between the Member States do not corroborate a need to protect the requested documents as relied on by the Commission but, on the contrary in the circumstances of the present case, tend to contradict it. The decision-making process at issue did not result in the adoption of the 2013 guidance document on bees, although it is common ground that that process took place without the public having had access to the individual position of the Member States in that regard. Thus, on the one hand, the failure of the process is unconnected with any form of information or transparency vis-à-vis the public and, on the other hand, it has not been established that the lack of access to the requested documents would enable that process to achieve that result. The disclosure of those documents does not therefore appear to be capable of undermining the decision-making process in question in any way. 120 Second, the fact that the 2013 guidance document on bees is the subject of a review by the EFSA also does not support the need for protection invoked by the Commission. The disclosure of the requested documents has no impact on that review, which is carried out by the EFSA, and not by the Commission. 121 It follows from the foregoing that the reason given in the contested decisions relating to cooperation and mutual trust and the complexity and sensitivity of the decision-making process is not such as to demonstrate, in the circumstances of the present cases, a risk that the decision-making process in question would be seriously undermined. (3) External pressure, margin of manoeuvre and flexibility 122 In the contested decisions, the Commission stated that it had been, and continued to be, the target of external pressure from several interested parties, sometimes representing conflicting interests. It added that the Member States and the Commission itself must be free to explore all options in ‘standing committees’ and be free from external pressure. To disclose the requested documents would expose a long and difficult decision-making process to greater external pressure. Thus, according to the Commission, disclosure of the requested documents would reduce the Member States’ margin of manoeuvre as well as their flexibility when voting by seriously undermining the decision-making process that will recommence within the Commission. 123 The applicant claims that external pressure should not be taken into account and that, in any event, such pressure is not the consequence of the disclosure of the requested documents. 124 The Commission replies that the applicant itself admitted the existence of such pressure. 125 In the first place, as regards the external pressure relied on in the contested decisions, it is clear from the case-law that the protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents relating to the decision-making process. Nevertheless, the reality of such external pressure must be established with certainty, and evidence must be adduced to show that there was a reasonably foreseeable risk that the ongoing decision-making process would be substantially affected owing to that external pressure (see, to that effect, judgment of 18 December 2008, Muñiz v Commission, T‑144/05, not published, EU:T:2008:596, paragraph 86). 126 It must be observed that, in the contested decisions, the reason relating to the existence of external pressure was put forward by the Commission in a general and vague manner. 127 First of all, although the Commission stated that it had been, and continued to be, the target of external pressure from several stakeholders, it should be noted that that pressure was simply alleged, and its factual reality not been demonstrated in the contested decisions. Furthermore, the Commission referred to that pressure in such an abstract manner (‘the Commission has been, and is still, the target of external pressure from various stakeholders, representing sometimes conflicting interests’) that it would be possible to use that justification in any decision-making process in any area whatsoever. 128 It is true that, as the Commission submits, in the statement of modification of the application in Case T‑371/20, the applicant stated that it ‘[acknowledged] that, in [that] process, the Commission [had] been the target of external pressure’. However, besides the fact that the Court’s review of legality relates to the contested decisions and that that statement by the applicant does not counteract the lack of information in the contested decisions, that statement is equally as vague and general as that of the Commission. Although the applicant refers to ‘[that] process’, it does not specify the external pressure it concerns, with the result that it cannot be concluded that the ‘reality’ of that pressure was established ‘with certainty’ within the meaning of the case-law referred to in paragraph 125 above. 129 Next, in any event, as the applicant points out, in essence, the justification put forward in the contested decisions relates solely to external pressures of which the Commission itself was the target. By contrast, the contested decisions do not refer to any external pressure to which the Member States were exposed. Furthermore, the contested decisions do not provide any evidence allowing a link to be established between the external pressure brought to bear on the Commission, assuming it were proven, and the harm which would result from disclosure of the requested documents relating to the individual positions of the Member States. 130 Furthermore, it should be borne in mind that, in the contested decisions, the Commission did not claim that the failure of the decision-making process to achieve the intended outcome was the result of external pressures, but expressly stated that it resulted from the disagreement between the Member States, which has no connection with the pressure to which the Commission is alleged to have been exposed. 131 Lastly, although the Commission stated that the Member States and the Commission had to be free from external pressures in order to explore any options in ‘standing committees’, it suffices to note that it did not refer to the decision-making process at issue within the SCoPAFF, but referred expressly, in general terms, to ‘standing committees’ as a whole. 132 In the second place, as regards the margin for manoeuvre and flexibility referred to in the contested decisions, first of all, it should be noted that the Commission merely made general assertions, which do not make it possible to establish that disclosure of the requested documents would lead to a reduction in the margin of manoeuvre or flexibility of the Member States within the SCoPAFF. 133 The Commission did not refer to any concrete evidence capable of demonstrating any deterioration in the position of the Member States in the event of disclosure of the requested documents. On the contrary, as observed in paragraph 131 above, when it stated that the Member States should be able to explore all the options, it did not refer to the situation within the SCoPAFF in the context of the decision-making process at issue, but to their position within ‘standing committees’ in general. 134 Next, in so far as the contested decisions must be understood as seeking to establish a link between the reduction in the Member States’ margin for manoeuvre and the external pressure exerted by the Commission, it should be borne in mind that the Commission has not provided any evidence to support the conclusion that the pressure that it would suffer would have an impact on the position of the Member States and that, therefore, disclosure of the requested documents would reduce their margin for manoeuvre or their flexibility. 135 Finally, it should be borne in mind that it is apparent from the case-law that the fact that the margin of manoeuvre and the capacity to reach a compromise between the Member States are reduced cannot establish that there is a sufficiently serious and reasonably foreseeable risk justifying the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 20 September 2016, PAN Europe v Commission, T‑51/15, not published, EU:T:2016:519, paragraph 36). 136 It follows from the foregoing that the reason given in the contested decisions relating to external pressure, margin for manoeuvre and flexibility is not capable of demonstrating, in the circumstances of the present cases, a risk that the decision-making process in question would be seriously undermined. 137 It follows that the reasons put forward by the Commission in the contested decisions cannot justify, in the circumstances of the present cases, the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, even on the hypothesis, as set out in paragraph 62 above, that that provision is applicable in the present case. 138 It is necessary therefore also to uphold the second complaint in the second part of the first plea in law and, on that basis also, to annul the contested decisions in so far as they refuse to grant access to the requested documents on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001. 4. Conclusion as regards the first plea 139 It follows from all the foregoing that, in the contested decisions, the Commission infringed the first subparagraph of Article 4(3) of Regulation No 1049/2001 by refusing to disclose the requested documents on the ground that to do so would seriously undermine an ongoing decision-making process. 140 Consequently, there is no need to examine whether there is an overriding public interest in the disclosure of the requested documents having regard to their legislative and environmental nature, which is the issue raised by the second and third pleas. 141 It is necessary, however, to examine the fourth plea in law. C. The fourth plea in law, alleging the misapplication of Article 4(1)(b) and Article 4(6) of Regulation No 1049/2001 142 The applicant claims that the contested decisions cannot be based on the need to protect privacy and the integrity of the individual as regards personal data contained in the requested documents, since, if such information appears in those documents, the Commission should anonymise them and disclose the other parts of the documents. 143 The applicant adds that it is not bound by the content of the contested decisions and that it maintains that the Commission could have disclosed the requested documents after having anonymised the information on personal data: although the Commission did so in respect of document 2 referred to in the first contested decision and in respect of documents 3, 10, 12 and 33 covered by the second contested decision, the remaining documents have not yet been published. 144 The Commission contends that the fourth ground of appeal is factually incorrect and ineffective. 145 As a preliminary point, it should be recalled that, in the contested decisions, the Commission granted partial access pursuant to Article 4(6) of Regulation No 1049/2001 to certain requested documents, namely document 2 referred to in the first contested decision and documents 3, 10, 12 and 33 referred to in the second contested decision (see paragraphs 9 and 14 above). Thus, while granting access to certain parts of those documents, the Commission refused access to other parts of those documents. To that end, the Commission relied on the exceptions designed to protect, first, an ongoing decision-making process under the first subparagraph of Article 4(3) of Regulation No 1049/2001 and, second, the privacy and integrity of the individual, pursuant to Article 4(1)(b) of that regulation. It was in relation to those documents to which the applicant had had partial access that the Commission therefore applied Article 4(1)(b) of Regulation No 1049/2001 in the contested decisions in order to protect the personal data of certain individuals. 146 As is apparent from the argument put forward by the applicant in the fourth plea, and as the applicant confirmed at the hearing, by that plea it does not seek to claim that, as regards the documents to which it has had partial access, the Commission infringed Article 4(1)(b) of Regulation No 1049/2001 by not granting it access to the personal data to which it was refused access under that provision. In other words, while disputing the contested decisions in so far as they granted partial access to some of the requested documents, the applicant does not request access to the personal data protected by the Commission contained in those documents and, moreover, it has not put forward any argument calling into question the Commission’s application of that exception in that regard. The applicant submits however, in essence, that the Commission should have followed the same approach for the other requested documents, in the sense that it should also have granted it partial access to those other documents by confining itself to protecting only the personal data that they may contain. The applicant’s argument is therefore, in essence, that the Commission unduly applied the first subparagraph of Article 4(3) of Regulation No 1049/2001. 147 In those circumstances, as the Commission contends, it must be held that the fourth plea is ineffective, since, first, it cannot call into question the Commission’s application of Article 4(1)(b) of Regulation No 1049/2001 in the present case and, second, the application of that provision has no impact on the application of the first subparagraph of Article 4(3) of that regulation. Any infringement of the first provision, even if it were established, could not, of itself, lead to the disclosure of the documents or parts of requested documents to which access was refused under the second provision. 148 The fourth plea in law must therefore be dismissed. 149 As both the first and second complaints raised in the second part of the first plea have been upheld (see paragraphs 61 and 62 and paragraphs 137 and 138 above respectively), and as the upholding of each of those complaints must, in itself, lead to the annulment of the contested decisions, those decisions must be annulled. IV. Costs 150 The applicant claims that the Commission should be ordered, in each of the present cases, to pay it the sum of EUR 3 000 by way of costs. 151 In that regard, it must be recalled that, in the decision ending the proceedings, the Court determines exclusively how the costs are to be allocated between the parties, without ruling on the amount of the costs. In the event of a dispute, the amount of the recoverable costs may be the subject of a separate action, governed under Article 170 of the Rules of Procedure, distinct from the decision on the allocation of the costs. Thus, taxation of costs may only take place following the judgment or the order ending the proceedings (judgment of 6 February 2019, Karp v Parliament, T‑580/17, not published, EU:T:2019:62, paragraph 100). 152 Consequently, the part of the applicant’s head of claim relating to costs in which it asks the Court to fix at EUR 3 000 the amount which the Commission should pay to it in respect of costs in each of the present cases must be rejected as inadmissible. 153 The fact remains that the applicant has sought an order that the Commission should pay the costs. 154 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 155 Since the Commission has been largely unsuccessful, it must be ordered to bear its own costs as well as those incurred by the applicant, in accordance with the form of order sought by the latter. On those grounds, THE GENERAL COURT (Sixth Chamber, Extended Composition) hereby: 1. Annuls the decisions of the European Commission C(2020) 4231 final of 19 June 2020 and C(2020) 5120 final of 21 July 2020, in that they refuse to grant access to the requested documents on the basis of the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents; 2. Orders the Commission to pay the costs. Marcoulli Frimodt Nielsen Schwarcz Iliopoulos Norkus Delivered in open court in Luxembourg on 14 September 2022. E. Coulon A. Marcoulli Registrar President * Language of the case: English.