62020TJ0371_RES
Joined Cases T‑371/20 and T‑554/20
Pollinis France
v
European Commission
Judgment of the General Court (Sixth Chamber, Extended Composition), 14 September 2022
(Access to documents – Regulation (EC) No 1049/2001 – Standing Committee for Plants, Animals, Food and Feed – EFSA guidance document on the risk assessment of plant protection products on bees – Individual positions of the Member States – Refusal to grant access – Article 4(3) of Regulation No 1049/2001 – Exception relating to protection of the decision-making process)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Requirements – Concrete, actual and serious detriment to that process
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraphs 40-42, 116, 117, 135)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Protection of documents drawn up under a procedure already closed – Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first and second subparas)
(see paragraphs 56-60)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Scope – Documents inherent in the work of comitology committees – Access to documents setting out the individual positions of the Member States – Whether permissible – Limits
(European Parliament and Council Regulations No 1049/2001, Art. 4(3) first subpara., and No 182/2011, recital 19 and Art. 9(1) and (2))
(see paragraphs 93-107)
Résumé
The applicant, Pollinis France, is a French non-governmental organisation whose activity concerns the protection of the environment and whose purpose is the protection of wild and honey bees and the promotion of sustainable agriculture in order to help preserve pollinators.
On 27 January 2020 and on 8 April 2020, the applicant lodged with the European Commission two requests for access (
1
) to certain documents concerning the Guidance Document of the European Food Safety Authority (EFSA) on the risk assessment of plant protection products on bees, adopted by the EFSA on 27 June 2013 (‘the 2013 guidance document on bees’).
By two decisions of 19 June 2020 and 21 July 2020, (
2
) the Commission refused to grant the applicant access to certain documents and granted partial access to certain other documents concerning the 2013 guidance document on bees (‘the contested decisions’). The refusals to grant access were based on the exception relating to the protection of the privacy and the integrity of the individual (
3
) and the exception relating to the protection of the decision-making process, both of which are provided for in Regulation No 1049/2001. (
4
)
The applicant lodged before the General Court two actions seeking the annulment of the contested decisions.
By its judgment, the General Court, in an extended composition, annuls those decisions in that they refuse access to the documents requested on the basis of the exception relating to protection of the decision-making process. On this occasion, it rules on whether a decision-making process is to be classified as being ongoing or closed, and on the access to documents setting out the individual positions of the Member States expressed within a comitology committee.
Findings of the Court
Before turning to examine the merits of the actions, the General Court first of all clarifies the subject matter of the action for the annulment of the decision of 19 June 2020.
In the present case, that decision replaced the implied rejection decision, by providing an express response to the confirmatory request lodged by the applicant on 25 March 2020. The applicant submitted a statement of modification of the application (
5
) asking for the action to be henceforth regarded as seeking the annulment of that express decision.
The General Court observes that the statement of modification is not to replace the application in its entirety, but must contain the modified form of order sought and, where appropriate, the modified pleas in law and arguments and evidence offered in connection with the modification of the form of order sought. (
6
) In the present case, the statement on the modification supplemented the application, which was the common understanding of the parties. Accordingly, the Court finds that the subject matter of the application concerned was the Commission decision of 19 June 2020.
As to the substance, in the first place, the General Court examines whether the Commission correctly applied the exception relating to protection of a decision-making process which is ongoing. In that regard, it finds that the decision-making process to which the requested documents relate could not be regarded as ongoing at the time when the contested decisions were adopted. The General Court observes that, at that time, there was no longer any decision-making process which had the aim of implementing that 2013 guidance document on bees, and that, on the contrary, the Commission had decided, implicitly but necessarily, not to implement that 2013 guidance document and had even expressly asked the EFSA to revise it. That revision, which was still ongoing at the time that the contested decisions were adopted, meant that it was impossible to determine the content of any revised document, the form of its possible adoption or the procedure that might be followed for that purpose, and so the General Court finds that it means that the Commission’s decision-making process was devoid of any object at the time when the contested decisions were adopted.
In addition, the General Court states that the review appears to have been contemplated in view of the impossibility of adopting the 2013 guidance document on bees and in order to enable the swift acceptance of a revised guidance document on bees.
It follows, according to the General Court, that the Commission’s decision-making process relating to the 2013 guidance document on bees had been closed at the time when the contested decisions were adopted and that, consequently, the Commission could not validly base the contested decisions on the exception which seeks to protect the institution’s decision-making process relating to a matter where the institution has not yet taken a decision.
In the second place, on the hypothesis that that exception were applicable, the General Court examines the grounds advanced by the Commission in the contested decisions. In that regard, to the extent that the Commission stated in the contested decisions that certain provisions in the Standard Rules of Procedure (
7
) expressly exclude the individual positions of the Member States from public access, the General Court finds that those 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 that there are no specific rules on public access to documents as regards the work of committees. (
8
) Thus, the provisions of 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 by Regulation No 1049/2001. (
9
)
Furthermore, it follows from the case-law (
10
) 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. 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.
Moreover, the General Court observes 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. The General Court states that the fact that, according to the Standard Rules of Procedure, the summary record of the work of the committees 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.
Thus, the General Court concludes 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 to be refused in order to protect the decision-making process of the committee concerned, (
11
) 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 by Regulation No 1049/2001. (
12
)
After having examined the other grounds put forward by the Commission in the contested decisions, the General Court finds that those grounds do not make it possible to establish such harm and, consequently, to justify reliance on the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001, even assuming it applies.
Therefore, the General Court finds 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.
(
1
)	Pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43) and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in the Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).
(
2
)	Commission Decisions C(2020) 4231 final of 19 June 2020 and C(2020) 5120 final of 21 July 2020.
(
3
)	Article 4(1)(b) of Regulation No 1049/2001.
(
4
)	First subparagraph of Article 4(3) of Regulation No 1049/2001.
(
5
)	In accordance with Article 86(1) and (2) of the Rules of Procedure of the General Court, where a measure the annulment of which is sought is replaced by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed or before the decision of the Court to rule without an oral part of the procedure, modify the application to take account of that new factor by introducing that modification by a separate document and within the time limit down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.
(
6
)	Article 86(4) of the Rules of Procedure of the General Court.
(
7
)	The Standard Rules of Procedure for Committees (OJ 2011 C 206, p. 11) (‘the Standard Rules of Procedure’) adopted by the Commission.
(
8
)	See recital 19 and Article 9(2) of the Regulation (EU) No 182/2011 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).
(
9
)	First subparagraph of Article 4(3) of Regulation No 1049/2001.
(
10
)	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).
(
11
)	Within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
(
12
)	Article 4 of Regulation No 1049/2001.