Information;Judgment — ECLI:EU:T:2023:333
Date: 2023-06-14
Language of the case: English
Court formation: Fifth Chamber
Subject matter: Provisions governing the Institutions;Access to documents
Procedure: Action for annulment - unfounded;Action for annulment - decision unnecessary;Action for annulment - successful;Action for annulment - inadmissible
Origin: Belgium

summary record’ of the work of committees. That provision does not relate to public access to the documents of committees, but to the content of 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. It cannot therefore prejudice public access, upon application, to documents showing those individual positions (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 101). 65 Nor can the Commission rely on Article 13(2) of the Standard Rules of Procedure, which states that ‘the committee’s deliberations shall be confidential’. 66 The scope of that provision is qualified by the whole of Article 13 of the Standard Rules of Procedure. Thus, Article 13(1) and (3) of those rules of procedure provides for the possibility that, in accordance with Regulation No 1049/2001, access may be granted to documents transmitted by a member of the committee to the other members of the committee, to experts and to representatives of third parties and that, in those cases, those documents are not confidential, or lose their confidentiality. It cannot be ruled out, however, that such documents may contain the individual votes of Member States reflecting their individual positions on a draft regulation (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraphs 104 and 105). 67 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 that provision requires only that a register be kept for the total result of the votes and not for the individual votes of the Member States, that argument must also be rejected. 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 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 102). 68 It follows that, contrary to what the Commission maintained in the confirmatory decision, 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 PAFF Committee to be refused in order to protect the decision-making process of that committee, within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 107). Accordingly, the legal framework relating to comitology procedures cannot, in itself, preclude the right of access to documents resulting from Regulation No 1049/2001 nor can it lead the Commission to allege a risk of serious undermining of the decision-making process solely because of the applicability of that legal framework. 69 However, as has already been emphasised in paragraph 45 above, that 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 (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, under appeal, EU:T:2022:556, paragraph 107). – Cooperation of the Member States in the comitology procedure 70 In their second plea, the applicants claim that the Commission merely alleged that disclosure would have a negative impact on the cooperation of the Member States in the comitology procedure. 71 The Commission submits that the risk posed by the disclosure of the documents at issue is not purely hypothetical. Under the rules applicable to comitology procedures, Member States trust the Commission to respect fully the confidentiality of their individual positions, in order to preserve their ability to express themselves in a free and unhindered manner in the framework of committee deliberations. That is also justified by the ability of the Commission to conduct the preparatory stages of the adoption of the implementing acts efficiently. It adds that public access to the individual votes of the Member States would actually and specifically undermine the decision-making process in that it would have a negative effect on the behaviour of Member States in future comitology procedures. 72 In the confirmatory decision, the Commission states, in essence, that, in view of the regulatory framework applicable to the comitology procedure, disclosure of the requested documents would affect the mutual trust between the Member States and would be at odds with the principle of sincere cooperation provided for in Article 4(3) TEU. The Commission adds that, given that the Member States legitimately expect it to preserve the confidentiality of their individual positions, disclosure of such positions, in disregard of the rules applicable to the comitology procedure, would have a negative impact on their cooperation. 73 It must be stated that, in that regard, the Commission relied on abstract reasoning relating to the maintenance of that cooperation in comitology procedures in general. The negative consequences cited by the Commission in the confirmatory decision are based on the premiss that comitology procedures protect, as regards an application for access to documents, the confidentiality of the individual positions of the Member States. 74 Such a premiss, however, has been rejected in paragraph 68 above. The justifications put forward by the Commission therefore have no concrete link with the specific circumstances of the decision-making process at issue. 75 It follows that the reasons put forward by the Commission in the confirmatory decision cannot justify, in the circumstances of the present case, the application of the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. 76 Accordingly, the confirmatory decision must be annulled in so far as it refuses access to the requested documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, without there being any need to examine the question of the existence of an overriding public interest or the fifth plea in the action. Costs 77 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. Furthermore, under Article 137 of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court. Since the Commission has been largely unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the applicants. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Declares that there is no longer any need to adjudicate on the claim for annulment of the implied decision refusing access of 12 March 2021; 2. Annuls decision C(2021) 2541 final of the European Commission of 7 April 2021 to the extent that it refuses access to the individual votes of the representatives of the Member States on the basis of the second 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; 3. Dismisses the action as to the remainder; 4. Orders the Commission to pay the costs. Spielmann Öberg Mastroianni Delivered in open court in Luxembourg on 14 June 2023. V. Di Bucci D. Spielmann Registrar President * Language of the case: English.