Opinion of the Advocate General — ECLI:EU:C:2025:440
Date: 2025-06-12
Language of the case: English

summary record shall not mention the individual position of the members in the committee’s discussions.’ 11. Article 13(1) to (3) reads as follows: ‘1. Requests for access to committee documents shall be handled in accordance with [Regulation No 1049/2001]. … 2. The committee’s discussions shall be confidential. 3. Documents submitted to members of the committee, experts and representatives of third parties shall be confidential …, unless access is granted to those documents pursuant to paragraph 1 or they are otherwise made public by the Commission.’ III. Background to the dispute 12. The background to the dispute, as set out in detail in paragraphs 2 to 7 of the judgment under appeal, may be summarised as follows. 13. On 4 December 2020, Covington & Burling LLP and Mr Bart Van Vooren (‘the applicants at first instance’) submitted an application for access to documents containing the votes of 22 Member States in the PAFF Committee. Those votes were cast in favour of a draft regulation amending Annex III to Regulation No 1925/2006, which led to the adoption of Regulation (EU) 2021/468 (7) (‘the regulation at issue’). 14. On 11 January 2021, the Commission replied to the application for access to documents. After indicating that 21 documents (‘the requested documents’) had been identified as falling within the scope of the request, the Commission refused access to them on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001. 15. On 29 January 2021, Mr Van Vooren made a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 in response to the initial negative reply. 16. After having extended until 12 March 2021 the time limit for the adoption of the confirmatory decision, on 10 March 2021 the Commission informed the applicants that it would not be able to comply with that time limit. IV. The procedure before the General Court and the judgment under appeal 17. By application of 6 April 2021, the applicants at first instance brought an action before the General Court against the implied refusal decision of 12 March 2021. 18. On 7 April 2021, the Commission adopted the contested decision, confirming its refusal to grant access to the requested documents, relying in particular on the exception relating to the protection of the decision-making process, in accordance with the second subparagraph of Article 4(3) of Regulation No 1049/2001. 19. By separate document lodged at the Registry of the General Court on 12 April 2021, the applicants modified the application to take account of the adoption of the contested decision. 20. In support of their action, the applicants at first instance raised five pleas in law concerning the application of the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001. The first plea alleged the inapplicability of that provision to the requested documents. The remaining pleas were put forward in the alternative. The second plea alleged failure to demonstrate that disclosure of the requested documents would seriously undermine the decision-making process. The third and fourth pleas alleged that the Commission had erred in relying on Regulation No 182/2011 and on the Standard Rules of Procedure to justify its refusal of access to the requested documents. The fifth plea alleged breach of the principle of transparency and an undermining of the democratic legitimacy of implementing acts adopted under the procedure established by Regulation No 182/2011. 21. In the judgment under appeal, the General Court rejected the first plea, considering that the requested documents fell within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001, and upheld the second, third and fourth pleas in law. Accordingly, it annulled the contested decision and ordered the Commission to pay the costs. V. The procedure before the Court of Justice and the forms of order sought 22. By its appeal, the Commission requests that the Court set aside the judgment under appeal, reject all of the pleas in law upheld therein, and give final judgment in the matter, or, in the alternative, refer the case back to the General Court and reserve the costs of the present proceedings or order the applicants at first instance to pay the costs. 23. The applicants at first instance ask that the Court of Justice dismiss the appeal, confirm the judgment under appeal in full and order the Commission to pay the costs. (8) 24. The applicants at first instance brought a cross-appeal, asking that the Court set aside the judgment under appeal in so far as it rejected their first plea in law and give final judgment in the matter, or, in the alternative, refer the case back to the General Court and reserve the costs of the present proceedings or order the Commission to pay the costs. 25. The Commission asks that the Court of Justice dismiss the cross-appeal and order the applicants at first instance to pay the costs. 26. By order of 9 February 2024, the President of the Court granted the Kingdom of the Netherlands leave to intervene in support of the forms of order sought by the applicants at first instance in their response to the appeal. The Kingdom of the Netherlands does not support the forms of order sought in the cross-appeal. VI. Analysis 27. By their cross-appeal, the applicants at first instance ask that the Court set aside the judgment of the General Court in so far as it found that the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable to the requested documents. If the Court of Justice upholds the cross-appeal, the appeal loses its purpose, since it is based on the premiss that documents containing the individual votes of the Member States within the PAFF Committee fall within the scope of that provision. It is thus necessary first to analyse the cross-appeal. A. The cross-appeal 1. Arguments of the parties 28. In support of their cross-appeal, the applicants at first instance raise a single ground of appeal, claiming that the General Court erred in law by holding that the individual votes of the Member States cast within the PAFF Committee must be regarded as ‘opinions for internal use as part of deliberations and preliminary consultations within the institution concerned’ within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001. 29. They submit that the General Court wrongly ruled, in paragraphs 42 and 44 of the judgment under appeal, that the votes in question had an influence on the Commission’s internal decision-making process. According to the applicants at first instance, a distinction should be drawn between deliberations (discussions leading to the votes) and the result of deliberations (the votes per se); in their submission, only the former fall within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. 30. The applicants at first instance claim that the General Court gave too broad an interpretation of the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001, thereby breaching the principle under which exceptions to the widest possible access to documents must be interpreted strictly. 31. Relying on the case-law of the Court of Justice, (9) the applicants at first instance highlight the more limited scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001, when compared to the first subparagraph thereof. In that connection, they stress that the votes of the Member States are the expression of their sovereignty, and that a positive opinion of the PAFF Committee on a draft implementing act which the Council and the Parliament do not oppose leads to the adoption of a regulation. 32. The applicants at first instance maintain that interpreting the individual votes of Member States in a comitology procedure as falling within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001 undermines the legitimacy of EU implementing acts. They add that this is all the more the case since the absence of opposition or of express abstention shall be regarded as tacit agreements, which may in turn be regarded as votes in favour of the draft amending regulation (Article 3(5) of Regulation No 182/2011). 33. The Commission contends that the General Court was right to reject the first plea in law. 34. It submits that the second subparagraph of Article 4(3) of Regulation No 1049/2001 is drafted in broad terms and covers any type of opinion given to the institution. Therefore, drawing any distinction between the votes and the expression of opinions on which they are based would be artificial. Under Regulation No 182/2011, committees have the responsibility of delivering ‘opinions’ on draft implementing acts proposed by the Commission. 35. The Commission maintains that the votes of Member States do not determine the outcome of the decision-making process within the institution, but rather constitute a step in that process. In that regard, the Commission recalls that, under Article 14 of Regulation No 1925/2006, the PAFF Committee assists the Commission in the exercise of its implementing powers. 36. The Commission submits that the rationale of Article 4(3) of Regulation No 1049/2001 is to protect the institution’s decision-making process, that the votes of the Member States are part of that process, and that they thus fall within the scope of the second subparagraph of that provision. 2. Assessment 37. Do documents containing the votes of the Member States in favour of a draft amending regulation qualify as ‘opinions for internal use as part of deliberations and preliminary consultations within the institution’? 38. This question cannot be considered in isolation. Rather, it first depends on the type of comitology procedure applicable to that decision-making process. I shall argue that the application in the present case of the regulatory procedure with scrutiny militates in favour of an affirmative answer to the above question. 39. I shall then examine the wording, context and objectives of the second subparagraph of Article 4(3) of Regulation No 1049/2001. This will lead me to conclude that the requested documents fall within the scope of that provision. (a) The comitology procedure applied in order to adopt the regulation at issue 40. Pursuant to Article 8(2) and Article 14(3) of Regulation No 1925/2006, the Commission may amend Annex III to that regulation following the regulatory procedure with scrutiny. (10) 41. That procedure was introduced by way of Council Decision 2006/512 as the new Article 5a of Decision 1999/468. (11) It applies to the adoption of ‘measures of general scope’ intended to amend or supplement the basic act through the addition of non-essential elements, where the basic act was adopted by what was then called the co-decision procedure. (12) 42. As stated in recital 7a of Decision 1999/468, that procedure was introduced to enable the two branches of the legislative authority to scrutinise such measures of general scope before they are adopted. 43. Accordingly, the procedure works as follows. (13) If the Committee votes in favour of the draft measures by a qualified majority, the Commission is to submit it for scrutiny by the Parliament and the Council. (14) Both the Parliament and the Council may oppose the measures, in which case, the Commission is not to adopt them. (15) If neither of the co-legislators oppose, the Commission is to adopt the measures. (16) 44. If the Committee delivers a negative opinion, the Commission is to submit its draft to the Council, forwarding it to the Parliament at the same time. (17) If the Council opposes the measures, the Commission is not to adopt them. (18) If the Council approves the measures and the Parliament does not oppose, the measures are to be adopted. (19) If the Parliament opposes, the measures are not to be adopted. (20) 45. As the description above shows, the decisive element under this procedure is the power of the co-legislators to prevent the adoption of the draft measures, in spite of a positive opinion from the Committee. Likewise, draft measures subject to a negative opinion may nonetheless be adopted, subject to Council approval and to there being no opposition from the Parliament. (21) 46. Thus, in my view, the votes of the Member States and the corresponding opinion of the Committee are merely a step in the decision-making process leading to the adoption of the draft measures by the Commission. 47. In view of its specific features and the reasons for its introduction, the application of the regulatory procedure with scrutiny shows that the votes of the representatives of the Member States form part of the deliberations and preliminary consultations within the Commission and thus fall within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. 48. The applicants at first instance nonetheless argue that once the Committee delivers a positive opinion, the Commission is bound to send the draft measures to the Council and the Parliament. They thus maintain that the votes cast within the Committee are the outcome of the decision-making process. 49. I am not convinced by this argument. 50. First, given that the core aspect of this comitology procedure is the scrutiny by the Parliament and the Council, it is inappropriate to distinguish the decision-making process within the Committee from that taking place within the Council and the Parliament. (22) 51. Second, if either the Council or the Parliament rejects the measures, the alleged lack of discretion on the part of the Commission is meaningless. Moreover, in that event, the Commission may submit an amended draft of the measures to the Committee. (23) This means that the decision-making process continues within the Committee. 52. Third, even if the Committee delivers a negative opinion, the Commission nevertheless submits its draft to the Council and forwards it to the Parliament. 53. The applicants at first instance also argue that, in the present case, the positive opinion of the PAFF Committee itself led to the adoption of a regulation. 54. I do not find this circumstance decisive. To consider that the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001 depends on the outcome of the Committee’s opinion and on the Parliament’s and Council’s scrutiny would mean that citizens requesting access to the same type of document pertaining to the same comitology procedure would potentially be treated differently. Moreover, it would be hard to reconcile such a finding with the principle of legal certainty. 55. Having regard to the foregoing, my preliminary conclusion is that the application to the present case of the regulatory procedure with scrutiny shows that the votes of the Member States cast in favour of the regulation at issue fall within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. I shall now assess whether the wording, context and objectives of that provision, as interpreted by the Court, support my preliminary conclusion. (b) The second subparagraph of Article 4(3) of Regulation No 1049/2001 56. The Court’s judgment in Sweden v MyTravel and Commissionoffers some guidance in determining the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. However, I note that the Court has never ruled on the question whether the votes of the Member States cast within a comitology committee fall within that scope. (24) 57. In that judgment, the Court recalled that Article 4(3) of Regulation No 1049/2001 draws a clear distinction by reference to whether a procedure has been closed or not. Under the first subparagraph of that article, any document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken, falls within the scope of the exception for protecting the decision-making process. Pursuant to the second subparagraph, after the decision has been taken, the exception at issue covers only documents containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned. (25) 58. The Court also held that it is apparent from the wording of the second subparagraph of Article 4(3) of Regulation No 1049/2001 that the latter applies to any document containing opinions for internal use as part of deliberations and preliminary consultations within the institution. (26) 59. Thus, on the one hand, the scope of the second subparagraph of Article 4(3) is undoubtedly narrower than that of the first subparagraph. On the other hand, the wording of the second subparagraph of Article 4(3) is nevertheless broad enough to include any opinion for internal use as part of deliberations and preliminary consultations within the institution. 60. I would also mention the judgment of the General Court in British American Tobacco International (Investments) v Commission. (27) The question in that case was that of whether the Commission was entitled to grant partial access to the minutes of the meetings of the Committee on Excise Duties, withholding the identity of the Member States that had expressed their positions in those meetings. (28) The General Court found (29) that the deliberations of that Committee fell within the scope of the exception relating to the protection of the confidentiality of the Commission’s proceedings, under Commission Decision 94/90/ECSC. (30) However, under that decision, there was no distinction between ongoing and completed proceedings. Nonetheless, in concluding that the Commission’s interest in maintaining the confidentiality of its proceedings could not prevail over the applicant’s interest in accessing the minutes, the General Court observed that the discussions within the committee had been terminated by the time the applicant had made its request. (31) 61. The case-law cited above supports the view that the documents at issue in the present case fall within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. I shall now turn to the wording, context and objectives of that provision. 62. As regards the wording, the Commission submits that, under the applicable comitology rules, the committee’s task is precisely to deliver an ‘opinion’. (32) That fact is not necessarily decisive. Regulation No 1049/2001 applies to all documents held by an institution, in all areas of activity of the European Union (Article 2(3)). Therefore, while the term ‘opinion’ employed in the second subparagraph of Article 4(3) may include ‘opinions’ issued by a comitology committee, it may well encompass other documents. (33) 63. Aside from that, the usual meaning in everyday language of the term ‘preliminary consultations’ properly describes the assistance provided to the Commission by the PAFF Committee (Article 14 of Regulation No 1925/2006), combined with the scrutiny by the Parliament and the Council under Decision 1999/468. 64. That said, I also concede that the wording of the provision under examination here is far from clear. 65. Albeit in a different context, Advocate General Cruz Villalón identified this issue in his Opinion in Council v Access Info Europe. (34) He acknowledged that the wording ‘opinions for internal use’ is ‘scarcely appropriate’ when referring to proposals for amendment of a regulation put forward by Member States. In his view, while this does not mean that the exception is a priori inapplicable, it may later reveal that the overriding public interest in accessing the requested documents prevails over the protection of the decision-making process. (35) 66. The teleological interpretation of Regulation No 1049/2001 supports this view. 67. The purpose of Regulation No 1049/2001, as is apparent from recital 4 and Article 1 thereof, is to give the fullest possible effect to the right of public access to documents. (36) Accepting that the requested documents fall within the scope of the second subparagraph of Article 4(3) of that regulation does not contradict that objective. In order to refuse access, the institution concerned must also demonstrate that disclosure would seriously undermine its decision-making process. (37) 68. As regards Article 4(3) of Regulation No 1049/2001 specifically, both subparagraphs thereof seek to protect the decision-making process within the institution concerned. (38) However, the EU legislature took the view that, once the decision is adopted, the requirements for protecting the decision-making process are less acute, so that disclosure of any document other than those mentioned in the second subparagraph of that provision can never undermine that process and that refusal of access to such a document cannot be permitted, even if its disclosure would have seriously undermined that process if it had taken place before the adoption of the decision in question. (39) 69. In connection with the protection of the decision-making process, it is clear from their drafting history that both subparagraphs seek to allow the institution concerned a certain ‘space to think’.(40) 70. In that regard, the applicants at first instance maintain that the disclosure of the individual votes of the Member States can never affect that ‘space to think’. In their view, in order to protect that interest, only ‘deliberations’ or ‘opinions’ (positions) (41) expressed during a comitology procedure, but not the outcome thereof, may be confidential. 71. That view is untenable. 72. There is always an opinion behind any voting behaviour. Therefore, the individual votes of the Member States reflect the individual positions on which they are based. Distinguishing between votes and opinions would thus render the application of the second subparagraph of Article 4(3) of Regulation No 1049/2001 to opinions meaningless. (42) (c) Conclusion on the cross-appeal 73. Bearing in mind all the above, I propose that the cross-appeal be dismissed. B. The appeal 74. In support of its appeal, the Commission relies on two grounds of appeal. By its first ground of appeal, it submits that the General Court erred in law by rejecting the relevance of the legal framework applicable to comitology when considering whether disclosure would seriously undermine the decision-making process. By the second ground of appeal, the Commission submits that the General Court erred in law by rejecting other relevant factors and failing to assess all the relevant factors globally. 1. The first ground of appeal (a) Arguments of the parties 75. The first ground of appeal is divided into two limbs. In the first limb, the Commission submits that the General Court misapplied the principle of consistent interpretation of Regulation No 1049/2001 with sectorial rules which do not directly relate to access to documents and, as a result, infringed the obligation to state reasons. In the second limb, the Commission claims that the General Court misinterpreted the Standard Rules of Procedure. As both limbs essentially concern the interaction between Regulation No 1049/2001 and the legal framework applicable to comitology, I propose to examine them together. 76. In the Commission’s submission, by concluding that Article 10(1) of Regulation No 182/2011 and Article 10(2) and Article 13 of the Standard Rules of Procedure carry no specific weight in the assessment of the exceptions provided for in Article 4 of Regulation No 1049/2001, the General Court’s interpretation went against the wording and the purpose of the former provisions. Through those provisions, the legislature sought to offer heightened protection in terms of confidentiality for the individual positions of Member States in comitology procedures. 77. The applicants at first instance, supported by the Netherlands Government, contend that the Standard Rules of Procedure cannot expand the scope of an exception set in a regulation, which is of a higher rank. They also submit that the case-law referred to by the Commission does not alter that analysis, since it pertains to a different context and does not concern the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. 78. In any event, the applicants at first instance claim that the comitology provisions on which the Commission relies do not preclude access to the requested documents. Article 10(1) of Regulation No 182/2011 and Article 10(2) of the Standard Rules of Procedure concern the content of the registry and of the summary record, respectively, and not access to documents. Article 13 of those rules may be interpreted as allowing access to the votes of committee members. 79. The Netherlands Government argues in favour of a distinction between direct access to documents and passive disclosure. In its view, the General Court was therefore right to distinguish between, on the one hand, provisions on the potentially sensitive nature of documents containing the individual positions of the Member States under the legal framework applicable to comitology and, on the other hand, the rules applicable to a disclosure request, governed by Regulation No 1049/2001. (43) The Netherlands Government submits that this approach already stems from the judgment of the General Court in Access Info Europe v Council, (44) which the Court of Justice upheld on appeal. (b) Assessment 80. By its first ground of appeal, the Commission essentially asks that the Court apply to the present case its case-law allowing certain documents to benefit from a general presumption of confidentiality. (45) That case-law is based on the Court’s recognition of the fact that Regulation No 1049/2001 needs to be interpreted in conjunction with certain sectorial rules containing specific provisions on access to documents. 81. I shall thus first recall the case-law relied upon by the Commission and then examine whether similar considerations can apply to the circumstances of the present appeal. (1) Case-law on consistent interpretation between Regulation No 1049/2001 and other sectorial rules, justifying a general presumption of confidentiality 82. If an EU institution decides to refuse to grant access to a document based on one of the exceptions contained in Article 4 of Regulation No 1049/2001, it must explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of that interest being undermined must be reasonably foreseeable and must not be purely hypothetical. (46) However, in certain instances, the EU institutions have been able to rely on a general presumption of non-disclosure. (47) 83. As the law currently stands, the Court has recognised five categories of documents that benefit from a general presumption of confidentiality: the documents in an administrative file relating to a procedure for reviewing State aid; the pleadings lodged by an institution in court proceedings; the documents exchanged between the Commission and notifying parties or third parties in the course of merger control proceedings; the documents concerning the pre-litigation stage of an infringement procedure; and the documents relating to a proceeding under Article 101 TFEU. (48) 84. Nevertheless, recognition of a general presumption in respect of a category of documents presupposes that it has first been shown that it is reasonably foreseeable that disclosure of the type of document falling within that category would in fact be liable to undermine the interest protected by the exception in question. Moreover, since general presumptions constitute an exception (i) to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document requested and, furthermore, (ii) to the principle that the public should have the widest possible access to documents held by the EU institutions, they must be interpreted and applied strictly. (49) 85. Concerning merger control, antitrust and State aid proceedings, the Court has emphasised that these are specific substantive fields of EU law subject to strict rules concerning the right to consult the administrative file. (50) However, they do not contain a provision expressly determining which rules prevail (the sectorial rules or Regulation No 1049/2001). Accordingly, it is appropriate to ensure a coherent application of those rules. (51) 86. With regard to the pre-litigation phase of infringement procedures and proceedings before the Courts of the European Union, the Court has recalled that, under EU law, third parties to such proceedings do not have access to the case file. In particular, the Court has emphasised the specificities of judicial responsibilities and the need to respect the principles of equality of arms and sound administration of justice. (52) The Court has also underlined that disclosure of documents concerning the pre-litigation stage of an infringement procedure would likely change the nature and progress of that procedure. (53) 87. That line of reasoning cannot apply to the legal framework relating to comitology procedures. (54)First, that legal framework specifically refers to Regulation No 1049/2001. Second, comitology procedures relate to the adoption of binding acts of general application. Hence, they cannot be compared with the administrative and judicial proceedings to which the case-law analysed from paragraphs 82 to 86 refers. (2) Both Regulation No 182/2011 and the Standard Rules of Procedure refer to Regulation No 1049/2001 88. Article 9(2) of Regulation No 182/2011, read in conjunction with recital 19 thereof, specifies that the right of access to documents is to be exercised in the framework of Regulation No 1049/2001. The same holds true for Article 13(1) and (3) of the Standard Rules of Procedure. (55) 89. Hence, Article 10(1) of Regulation No 182/2011, which pertains to the committee’s registry and determines that it is to include, inter alia, the ‘voting results’, cannot be interpreted as meaning that citizens cannot request access to the individual votes of Member States pursuant to Regulation No 1049/2001. (56) Similar considerations apply to Article 10(2) of the Standard Rules of Procedure. Thus, the General Court did not err in law, in my view, when, in paragraph 64 of the judgment under appeal, it held that the fact that the summary record does not mention the individual position of the Member States does not prejudice public access, upon application, to documents showing those individual positions. 90. As far as Article 13(2) of the Standard Rules of Procedure is concerned, and irrespective of its wording, (57) it cannot be interpreted as granting documents a protection that goes beyond what is provided for under Regulation No 1049/2001. (58) 91. According to Article 9(1) of Regulation No 182/2011, the Commission is to adopt the Standard Rules of Procedure following consultation with the Member States. Contrary to the rules which are the subject of the case-law cited by the Commission, Article 13 is therefore not the result of a balance struck by the legislature in order to protect the work of comitology committees. (59) 92. Admittedly, as the Commission notes, nothing precludes a non-binding document (60) such as the Standard Rules of Procedure from having interpretative value. However, where, such as in the present case, nothing in Regulation No 182/2011 precludes disclosure, those rules alone cannot, in my view, have such effect. (61) 93. The contextual interpretation confirms my approach. In Article 9 of Regulation No 182/2011, the legislature chose to address the adoption of the Standard Rules of Procedure by the Commission and the adoption of each committee’s rules of procedure (both in paragraph 1 of that article), and public access to documents of the committees (paragraph 2 thereof). This reflects the intention that the Standard Rules of Procedure should not contravene Regulation No 1049/2001. 94. In the light of the foregoing considerations, the General Court did not err in law, in my opinion, in finding, in paragraphs 59 and 68 of the judgment under appeal, that the legal framework applicable to comitology cannot, in itself, preclude the right of access to documents resulting from Regulation No 1049/2001. Moreover, while the General Court did not specifically refer to the case-law analysed in points 82 to 86 of the present Opinion, it explained in detail, in paragraphs 63 to 67 of the judgment under appeal, why access to the requested documents could not be refused as a matter of principle. In my view, it thus follows that the General Court did not breach its obligation to state reasons. (62) (3) The specific features of comitology 95. Comitology committees assist the Commission in the performance of its implementing tasks, namely in the draft phase of acts of general scope. (63) Such a role is not comparable to those referred to in the case-law relied on by the Commission. The activities of comitology committees require a greater level of transparency. 96. In that regard, the Commission’s claim that the regulation at issue is not a legislative act within the meaning of Article 289 TFEU is not decisive. 97. In general, comitology provides for a mechanism of control by Member States of the adoption by the Commission of legally binding (64) implementing acts. (65) 98. Moreover, as is apparent from recital 7a of Decision 1999/468, the regulatory procedure with scrutiny applies to the adoption of ‘quasi-legislative’ acts. (66) 99. The Court of Justice has held that there is a need for wider access to documents linked to legislative action, as a precondition for the effective exercise of democratic rights. The same reasoning must apply to comitology procedures and, in any event, to the regulatory procedure with scrutiny. (67) 100. Just as in the case of legislative acts, citizens across the European Union may be affected by implementing acts subject to comitology. (68) 101. Exceptions to the principle of the widest access possible to documents apply under the strict conditions of Article 4 of Regulation No 1049/2001. That provision, read in conjunction with Article 12(2) of that regulation and Article 15 TFEU, does not provide for restrictions on the right of access to documents based on the formal definition of legislative and implementing acts. (69) 102. Indeed, Article 12(2) of Regulation No 1049/2001 defines ‘legislative documents’ relying on their substance, as ‘documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States’. (70) Subject to Articles 4 and 9 of that regulation, it also determines that legislative documents should be directly accessible. Moreover, pursuant to recital 6 of the regulation, action in a legislative capacity is to include the exercise of delegated powers. (71) 103. In my view, the application to the present case of the written voting procedure laid down in Article 3(5) of Regulation No 182/2011, whereby any committee member who does not oppose or does not explicitly abstain from voting is to be regarded as having tacitly agreed to the draft implementing act, reinforces the importance of accessing the requested documents. Indeed, in the light of the principle of openness inherent in any democratic system, citizens are entitled to know exactly how the required majority in the committee was achieved. (4) Conclusion on the first ground of appeal 104. Bearing in mind all of the foregoing, the legal framework applicable to comitology does not justify refusal of access to the requested documents. I thus propose that the first ground of appeal be rejected. 2. The second ground of appeal (a) Arguments of the parties 105. The second ground of appeal is divided into two limbs. Since both limbs revolve around the principle of sincere cooperation (Article 4(3) TEU), I shall examine them together. 106. The Commission essentially submits that the General Court erred in law by dismissing the relevance of the principle of sincere cooperation in determining whether disclosure of the requested documents would seriously undermine the institution’s decision-making process. According to the Commission, the General Court failed to examine this as a separate argument, as far as, in paragraphs 73 and 74 of the judgment under appeal, it referred back to its analysis of whether the legal framework applicable to comitology justified the refusal to disclose the requested documents. According to the Commission, in so doing, the General Court infringed its obligation to state reasons. At the same time, the Commission argues that such a line of reasoning entailed a failure to assess globally all the circumstances put forward in the contested decision. 107. The applicants at first instance contend that the second ground of appeal should be rejected. (72) (b) Assessment 108. As the General Court held in paragraph 72 of the judgment under appeal, the Commission maintained in the contested decision that, in view of the confidentiality requirements applicable to the votes of the Member States under the comitology legal framework, disclosure would affect the principles of mutual trust and sincere cooperation (between the Member States and with the Commission). 109. It follows that the General Court did not err in law when it rejected the Commission’s argument concerning the principle of sincere cooperation by reference to paragraph 68 of the judgment under appeal, in which it found that comitology procedures do not protect the confidentiality of the votes of the Member States. 110. In my opinion, the General Court’s reasoning described in the preceding point precisely shows that it also performed an overall assessment of all the relevant circumstances. For these reasons, I also take the view that the General Court complied with its obligation to state reasons. (73) 111. Moreover, I recall that documents pertaining to comitology procedures are not to enjoy a presumption of confidentiality. (74) Therefore, the Commission was obliged to carry out an individual and specific examination of each of the documents requested and to provide specific explanations as to the risk of seriously undermining the decision-making process. (75) 112. However, as the General Court essentially held in paragraph 73 of the judgment under appeal, the Commission’s reasoning relating to the preservation of sincere cooperation and mutual trust in comitology procedures is rather abstract and therefore insufficient to fulfil that requirement. 113. The Commission also argues that the General Court failed to take into account that the procedure for the adoption of the regulation at issue had not been fully completed. (76) That argument must also be rejected. 114. The stage of the decision-making process is only relevant for determining which subparagraph of Article 4(3) of Regulation No 1049/2001 applies to a given case. (77) Conversely, once the institution concerned relies on the second subparagraph of that article, which applies to situations in which a decision has been taken, it cannot rely on the alleged non-completion of the procedure in order to argue that disclosure would seriously undermine the decision-making process. In the present case, the Commission has relied solely on the second subparagraph of that provision. (c) Conclusion on the second ground of appeal 115. Having regard to all of the considerations above, I propose that the second ground of appeal be rejected. VII. Conclusion 116. In the light of the foregoing, I propose that the Court should dismiss the appeal and the cross-appeal, order each party to bear its own costs and order the Kingdom of the Netherlands to bear its own costs. 1 Original language: English. 2 Regulation of the European Parliament and of the Council of 20 December 2006 on the addition of vitamins and minerals and of certain other substances to foods (OJ 2006 L 404, p. 26), as amended by Regulation (EC) No 108/2008 of the European Parliament and of the Council of 15 January 2008 (OJ 2008 L 39, p. 11) (‘Regulation No 1925/2006’). 3 Regulation 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). 4 Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), as amended by Council Decision 2006/512/EC of 17 July 2006 (OJ 2006 L 200, p. 11) (‘Decision 1999/468’). 5 Regulation of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13). 6 OJ 2011 C 206, p. 11; ‘the Standard Rules of Procedure’. 7 Commission Regulation of 18 March 2021 amending Annex III to Regulation (EC) No 1925/2006 of the European Parliament and of the Council as regards botanical species containing hydroxyanthracene derivatives (OJ 2021 L 96, p. 6). 8 These forms of order are put forward in the alternative, should the Court of Justice reject the cross-appeal (see point 24 of the present Opinion). 9 Judgment of 21 July 2011, Sweden v MyTravel and Commission (C‑506/08 P, ‘the judgment in Sweden v MyTravel and Commission’ , EU:C:2011:496). 10 Judgment under appeal, paragraphs 35 to 37. 11 According to Article 12 of Regulation No 182/2011, despite the repeal of Decision 1999/468, the effects of Article 5a thereof are to be maintained for the purposes of existing basic acts referring to it. 12 See recital 7a of Decision 1999/468. The co-decision procedure (Article 251 of the Treaty establishing the European Community) afforded the European Parliament both a right to propose amendments and a right of veto. This is the procedure which the Treaty of Lisbon has renamed the ‘ordinary legislative procedure’ (Article 289 TFEU). 13 See, in that regard, Lenaerts, K. and Van Nuffel, P., EU Constitutional Law, Oxford University Press, Oxford, 2021, pp. 580 and 581. 14 See Article 5a(3)(a) of Decision 1999/468. 15 Article 5a(3)(b) and (c) of Decision 1999/468. 16 Article 5a(3)(d) of Decision 1999/468. 17 Article 5a(4)(a) of Decision 1999/468. 18 Article 5a(4)(c) of Decision 1999/468. 19 Article 5a(4)(d) and (g) of Decision 1999/468. 20 Article 5a(4)(e) and (f) of Decision 1999/468. 21 Judgment under appeal, paragraph 40, in fine. 22 See, in that regard, paragraphs 35 and 40 (in fine) of the judgment under appeal. 23 See Article 5a(3)(c) of Decision 1999/468. 24 The documents at issue in the judgment in Sweden v MyTravel and Commission concerned a report of the Hearing Officer in merger control proceedings, a note from the Commission’s Directorate-General for Competition to the Advisory Committee and a file note concerning a site visit to an undertaking. The Court of Justice concluded that those documents fell within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001: see paragraph 95 of that judgment. 25 Judgment in Sweden v MyTravel and Commission (paragraphs 78 to 80). See also judgment of 28 June 2012, Commission v Agrofert Holding (C‑477/10 P, EU:C:2012:394, paragraph 77). The General Court referred to that case-law in paragraph 29 of the judgment under appeal. 26 See judgment in Sweden v MyTravel and Commission (paragraph 93). 27 Judgment of 10 October 2001 (T‑111/00, ‘the judgment in British American Tobacco International (Investments) v Commission’, EU:T:2001:250). 28 Judgment in British American Tobacco International (Investments) v Commission (paragraphs 24 and 36). It also stems from paragraph 7 of that judgment that a majority of the Member States’ delegations had expressed their wish that expanded tobacco be treated in the same way as ‘smoking tobacco’, and thus as a product subject to excise duty. Subsequently, an opinion to that effect was adopted by the Committee on Excise Duties. 29 Judgment in British American Tobacco International (Investments) v Commission (paragraph 38). 30 Decision EC, Euratom of 8 February 1994 on public access to Commission documents (OJ 1994 L 46, p. 58) (which preceded Regulation No 1049/2001), no longer in force (see recital 17 of Regulation No 1049/2001). 31 Judgment in British American Tobacco International (Investments) v Commission (paragraphs 56 and 57). 32 Not all language versions of the second subparagraph of Article 4(3) of Regulation No 1049/2001, Article 5a of Decision 1999/468 and Article 3(5) of Regulation No 182/2011 support this view. The German (‘stellungnahme/n’), French (‘avis’), Polish (opinia/e’), Portuguese (‘parecer/es’) and English (‘opinion/s’) language versions do so. However, the Italian language version of the second subparagraph of Article 4(3) of Regulation No 1049/2001 refers to ‘riflessioni’ (thoughts), whereas the aforementioned comitology provisions refer to ‘parere’ (opinion). Likewise, while the Spanish language version of Article 4(3) of Regulation No 1049/2001 refers to ‘opiniones’ (views), the latter provisions use the term ‘dictamen’ (opinion). 33 See also, in that regard, the definition of ‘document’ under Article 3(a) of Regulation No 1049/2001. 34 C‑280/11 P, EU:C:2013:325. 35 Opinion of Advocate General Cruz Villalón in Council v Access Info Europe (C‑280/11 P, EU:C:2013:325, points 51 and 52). 36 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 69 and the case-law cited). 37 See, in that regard, Opinion of Advocate General Kokott in Sweden v MyTravel and Commission (C‑506/08 P, EU:C:2011:107, point 44). 38 During the legislative process leading to the adoption of Regulation No 1049/2001, certain versions referred to the institution’s ‘ability to carry out its duties’; see Council version of 4 April 2001. According to recital 11 of Regulation No 1049/2001, ‘the institutions should be entitled to protect their internal consultations and deliberations where necessary to safeguard their ability to carry out their tasks.’ 39 Judgment in Sweden v MyTravel and Commission (paragraph 80). 40 See Report of the European Parliament of 27 October 2000 on the proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents, document No A5-0318/2000, p. 20, referring to the ‘free exchange of ideas (“brain storming”)’. See also Amended proposal for a Regulation of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (COM/2001/0299 final), (OJ 2001 C 240E, p. 165), referring to the ‘protection of the “space to think”’. 41 The expression ‘opinions’ in this context is to be understood as ‘views’ or ‘positions’. It does not mean ‘opinions’ adopted by a comitology committee pursuant to the legal framework applicable to comitology. 42 In that regard, the General Court did not err in law when it relied, in paragraph 45 of the judgment under appeal, on paragraph 107 of its judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556), which concerned access to documents containing the individual positions of the Member States. Nevertheless, in that case, the Commission had relied on the first subparagraph of Article 4(3) of Regulation No 1049/2001, the scope of which is broader, as discussed. On appeal, that question was not analysed by the Court of Justice (judgment of 16 January 2025, Commission v Pollinis France, C‑726/22 P, EU:C:2025:17, paragraph 81). 43 Judgment under appeal, paragraph 64. 44 Judgment of 22 March 2011 (T‑233/09, EU:T:2011:105). 45 As mentioned by Advocate General Emiliou in his Opinion in Commission v Pollinis France (C‑726/22 P, EU:C:2024:562, point 108), the Commission followed a similar approach in that case. The Court did not address the issue in its judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17). 46 See, inter alia, judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraph 63 and the case-law cited). 47 The Court first accepted this general presumption in its judgment of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376, paragraphs 53 and 54). However, that formula can be traced back to the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 49 and 50). 48 See, for an overview of those instances, judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 81 and the case-law cited). 49 Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 80). 50 Judgment of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393, paragraph 109). See also judgments of 29 June 2010, Commission v Technische Glaswerke Ilmenau (C‑139/07 P, EU:C:2010:376, paragraphs 55 to 58); of 28 June 2012, Commission v Agrofert Holding (C‑477/10 P, EU:C:2012:394, paragraphs 59 to 61); and of 27 February 2014, Commission v EnBW (C‑365/12 P, EU:C:2014:112, paragraph 92). 51 Judgment of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393, paragraph 110). 52 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, paragraphs 82 and 85). In that judgment, the Court accepted the application of the general presumption of confidentiality to documents containing the Commission’s pleadings in pending actions for annulment (see paragraphs 75 and 94). 53 Judgment of 14 November 2013, LPN and Finland v Commission (C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 63). 54 See, to that effect, judgment in British American Tobacco International (Investments) v Commission, paragraph 52. See also judgment under appeal, paragraph 59 and the case-law cited. See also, by analogy, my Opinion in Saint-Gobain Glass Deutschland v Commission (C‑60/15 P, EU:C:2016:778, point 66). 55 See, in the same vein, Opinion of Advocate General Emiliou in Commission v Pollinis France (C‑726/22 P, EU:C:2024:562, point 111). 56 Judgment under appeal, paragraph 67. See also Decision of the European Ombudsman in case 2142/2018/EWM on the European Commission’s refusal to grant access to Member State positions on a guidance document concerning the risk assessment of pesticides on bees, 3 December 2019 (‘Decision of the European Ombudsman in case 2142/2018/EWM’), point 33. 57 Judgment under appeal, paragraph 66. 58 Judgment under appeal, paragraph 63. See also Opinion of Advocate General Emiliou in Commission v Pollinis France (C‑726/22 P, EU:C:2024:562, point 101). 59 See, by analogy, judgment of 28 June 2012, Commission v Éditions Odile Jacob (C‑404/10 P, EU:C:2012:393, paragraph 121 and the case-law cited). See also, to that effect, Decision of the European Ombudsman in case 2142/2018/EWM, point 13. 60 Concerning the precedence of provisions of a regulation over those of a non-binding document, see, by analogy, judgment of 14 April 2005, Belgium v Commission (C‑110/03, EU:C:2005:223, paragraph 33 and the case-law cited). 61 See, to that effect, Decision of the European Ombudsman in case 2142/2018/EWM, points 13 and 33. 62 See, in that regard, judgment of 10 February 2021, RFA International v Commission (C‑56/19 P, EU:C:2021:102, paragraph 33 and the case-law cited). 63 See Article 2(2)(a) of Regulation No 182/2011. 64 Lenaerts, K., and, Piet Van Nuffel, P., EU Constitutional Law, op. cit., p. 557. 65 See Article 291(3) TFEU and Article 1 of Regulation No 182/2011. Under Article 291(2) TFEU, where uniform conditions for implementing legally binding Union acts are needed, those acts are to confer implementing powers on the Commission (except in common foreign and security policy matters, where implementing powers are conferred on the Council). 66 See Loosen, P., ‘Comitology, claims and addition of nutrients – The new regulatory procedure with scrutiny and its application to Regulations (EC) No 1924/2006 and 1925/2006’, European Food and Feed Law Review, Vol. 2, No 2, 2007, p. 95. 67 Judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46). See also judgment in British American Tobacco International (Investments) v Commission, paragraph 33, where the Commission appears to have implicitly recognised that the higher standards of transparency required for legislative procedures apply to comitology procedures. 68 Brandsma, G.J., Curtin, D. and Meijer, A., ‘How transparent are EU “comitology” committees in practice?’, European Law Journal, Vol. 14, No 6, p. 825. 69 Decision of the European Ombudsman in case 1275/2018/THH on the European Commission’s refusal to grant full public access to the minutes of the meetings of the Technical Committee on Motor Vehicles from September 2016 to January 2017, point 32. See also Curtin, D. and Rubio, A., ‘Regulation 1049/2001 on the right of access to documents, including the digital context’, Policy Department for Citizens’ Rights and Constitutional Affairs, European Parliament, 2024, p. 13. 70 Judgment of 4 September 2018, ClientEarth v Commission (C‑57/16 P, EU:C:2018:660, paragraph 85). 71 The Treaty of Lisbon introduced the distinction between implementing and delegated acts, only the former being subject to comitology procedures (Article 291(3) TFEU). As Regulation No 1049/2001 predates the adoption of the Treaty of Lisbon, the reference in recital 6 thereof to ‘delegated powers’ is not to be interpreted as meaning that implementing powers are excluded from the wider access to documents that it sets out. Moreover, in substantive terms, the regulation at issue shares the characteristics of what is now a delegated act, to the extent that it amends a non-essential element of a regulation. See, in that regard, Article 8(2) of Regulation No 1925/2006, recital 7a of Decision 1999/468 and Article 290(1) TFEU. 72 The Netherlands Government focused its intervention on the first ground of appeal. 73 See, in that regard, judgment of 10 February 2021, RFA International v Commission (C‑56/19 P, EU:C:2021:102, paragraph 33 and the case-law cited). 74 See point 87 of the present Opinion. 75 See point 82 of the present Opinion. 76 In the contested decision (of 7 April 2021), the Commission stated that ‘the draft Commission Regulation was submitted to the scrutiny of the European Parliament and the Council on 1 December 2020. Both institutions have had three months to examine it before final adoption by the Commission. Notwithstanding the fact that this specific procedure is almost completed, the requested disclosure of the related individual votes of Member States in the framework of the relevant Standing committee, remains protected under the above mentioned rules pertaining to comitology’. I recall that the regulation at issue was adopted on 18 March 2021. 77 See, in that regard, judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17, paragraphs 68 to 79).