JUDGMENT OF THE GENERAL COURT (Seventh Chamber)
9 July 2025 (*)
( Access to documents – Regulation (EC) No 1049/2001 – Documents concerning alleged irregularities in the management of allowances relating to accredited parliamentary assistants – Refusal to grant access – Exception relating to the protection of court proceedings – Principles of equality of arms and the sound administration of justice )
In Case T‑1031/23,
Eva Kaili, residing in Ixelles (Belgium), represented by S. Pappas, D.-A. Pappa, and A. Pappas, lawyers,
applicant,
v
European Parliament, represented by N. Lorenz, M. Windisch and J.-C. Puffer, acting as Agents,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, G. Hesse and B. Ricziová (Rapporteur), Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure, in particular the measure of organisation of procedure of 22 January 2024,
further to the hearing on 27 February 2025,
gives the following
Judgment
1        By her action under Article 263 TFEU, the applicant, Ms Eva Kaili, seeks the annulment of the decision of the European Parliament of 31 July 2023 rejecting her confirmatory application for access to documents (‘the contested decision’).
Background to the dispute
2        By letter of 15 December 2022, the European Chief Prosecutor (ECP) requested, in accordance with Article 29(2) of Council Regulation (EU) 2017/1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’) (OJ 2017 L 283, p. 1), the lifting of the privileges and immunities of two Members of the European Parliament (MEPs) (including the applicant, an MEP during the eighth and ninth parliamentary terms) and of six accredited parliamentary assistants.
3        On 10 January 2023, the Deputy Secretary-General of the Parliament sent a letter to the applicant to inform her, first, that the EPPO had submitted a request to the Parliament for her parliamentary immunity to be lifted and, second, that that request would be announced in the plenary session of the Parliament and referred to the Committee of Legal Affairs.
4        On 6 February 2023, the applicant brought an action before the General Court, registered as Case T‑46/23, seeking the annulment of the decision of the ECP of 15 December 2022 and the decision of the President of the Parliament, disclosed by the letter of 10 January 2023. By that action, the applicant claimed, inter alia, that her case had been treated differently from those of other MEPs, given that, ‘so far, and without exception, all previous and numerous similar irregularities committed by MEPs [had been] dealt with administratively without involving criminal investigations’.
5        In that context, on 23 April 2023, the applicant submitted to the Parliament an application for access to information and documents on the basis 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 (OJ 2001 L 145, p. 43). In the first place, she requested information regarding (i) how many cases concerning irregularities in the management, by MEPs, of allowances relating to accredited parliamentary assistants had been addressed by the services of Parliament, (ii) how many of those cases had been amicably settled, and (iii) whether any of them had resulted in criminal penalties being imposed on an MEP or accredited parliamentary assistant by a national court. In the second place, the applicant requested access to documents relating to all cases concerning irregularities in the management, by MEPs, of allowances relating to accredited parliamentary assistants.
6        By letter of 13 June 2023, the Parliament informed the applicant that it was not in possession of documents concerning the information requested. As regards the application for access to documents referred to in paragraph 5 above, the Parliament identified the following documents as falling within the scope of that application
(‘the requested documents’):
–        the decisions establishing the undue defrayal of allowances for accredited parliamentary assistants and ordering recovery of the corresponding amounts from the MEPs concerned;
–        letters sent to the MEPs concerned before the adoption of such decisions and inviting them to submit observations;
–        debit notes;
–        letters sent by the authorising officer responsible for notification of such decisions and debit notes to the MEPs concerned and inviting them to pay their debt;
–        items of evidence submitted by MEPs.
7        The Parliament refused access to those documents, relying on the exception based on the protection of court proceedings laid down in the second indent of Article 4(2) of Regulation No 1049/2001. In particular, the Parliament considered that access to the requested documents would undermine the protection of the proceedings which were then pending before the General Court in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
8        On 10 July 2023, the applicant submitted a confirmatory application asking the Parliament to reconsider its position refusing access to the requested documents.
9        By the contested decision, the Parliament refused access to the requested documents and confirmed its position that the protection of court proceedings could be undermined by disclosure of those documents to the public.
Forms of order sought
10      The applicant claims that the Court should:
–        annul the contested decision;
–        order the Parliament to pay the costs.
11      The Parliament contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Substance
12      The applicant relies on a single plea in law, divided into two parts, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001. By the first part, the applicant argues that disclosure of the requested documents does not undermine the protection of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). By the second part, she argues that, in any event, there is an overriding public interest in disclosure.
13      It is appropriate to begin by examining the first part of the single plea in law, alleging that disclosure of the requested documents does not undermine the protection of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO
(T‑46/23, not published, EU:T:2024:14).
14      By the first part of the single plea in law, the applicant disputes the two considerations set out by the Parliament in the contested decision, namely (i) that disclosure of the requested documents would undermine the equality of arms in the context of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), and (ii) that disclosure of those documents would have an adverse effect on the sound administration of justice in those court proceedings.
15      As a preliminary point, it should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 73 and the case-law cited).
16      That core EU objective is also reflected in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).
17      From that perspective, Regulation No 1049/2001 seeks, as is indicated in recital 4 and Article 1 thereof, to give the public a right of access to documents of the institutions which is as wide as possible (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33).
18      Article 4 of Regulation No 1049/2001, by introducing a set of exceptions to the right of access to documents of the institutions which is conferred on the public by Article 1 of that regulation, permits the institutions to refuse access to a document in order to prevent disclosure of that document from undermining one of the interests protected by Article 4 thereof (see judgment of 28 November 2013, Jurašinović v Council, C‑576/12 P, EU:C:2013:777, paragraph 44 and the case-law cited). Nevertheless, as such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 56 and the case-law cited).
19      Thus, the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that exception (judgments of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51, and of 28 September 2022, Leino-Sandberg v Parliament, T‑421/17 RENV, not published, EU:T:2022:592, paragraph 27).
20      First, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).
21      Second, if the institution applies one of the exceptions provided for in Article 4(2) and (3) of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 of Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgments of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53, and of 28 September 2022, Leino-Sandberg v Parliament, T‑421/17 RENV, not published, EU:T:2022:592, paragraph 29).
22      Under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings and legal advice, unless there is an overriding public interest in disclosure. Moreover, according to the first sentence of Article 4(7) of Regulation No 1049/2001, the exceptions as laid down in paragraphs 1 to 3 of that article are only to apply for the period during which protection is justified on the basis of the content of the document.
23      Furthermore, it is apparent from the first sentence of Article 4(7) of Regulation No 1049/2001 that, in order to determine whether a document falls within the scope of one of the exceptions to the right of access to documents laid down in paragraphs 1 to 3 of that article, only the content of the document requested is relevant (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 36).
24      It is apparent from the case-law that the exception based on the protection of court proceedings implies that compliance with the principles of equality of arms and the sound administration of justice must be ensured. In particular, a public debate concerning certain documents of the institutions could well upset the vital balance between the parties to a dispute before the Courts of the European Union
(the state of balance which is at the basis of the principle of equality of arms), in so far as only the institution concerned by an application for access to documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure (see, to that effect, 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 85 to 87).
25      It is in the light of those considerations that the first part must be examined.
The first complaint in the first part of the single plea in law, alleging that equality of arms is not undermined in the context of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14)
26      In the contested decision, the Parliament considered that, if it were required to provide the applicant, under Regulation No 1049/2001, with potential evidence relating to a fact disputed between the parties in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14),
and in respect of which the applicant bears the burden of proof, this would undermine the principle of equality of arms, as the applicant is not bound by a corresponding obligation to disclose potential evidence relating to disputed facts in respect of which the burden of proof rests with the Parliament. However, according to the Parliament, a refusal to grant access to the requested documents under Regulation No 1049/2001 did not affect equality of arms to the applicant’s detriment, because it would not prevent the General Court from taking the measures it deems necessary on the basis of Chapter 6 of Title III of its Rules of Procedure.
27      The applicant claims that, in case of disclosure of the requested documents, the principle of equality of arms would not be undermined as the Parliament would still be in a position to defend itself. In her view, the principle of equality of arms should be understood as referring to equality of arms of defence in the sense that each party must be afforded the opportunity to examine and challenge the evidence submitted by the other party. The applicant indicates that, while the principle of equality of arms also applies to evidence, the obligation on an administration to disclose documents does not, in the context of court proceedings, deprive it of the possibility to submit all relevant evidence to substantiate its position. It is inconceivable for an administration to behave as a private litigant when it comes to self-incrimination.
28      In addition, according to the applicant, the requested documents merely constitute factual evidence and do not contain the Parliament’s interpretation of the facts concerned, its internal position or its pleadings and, therefore, they do not reveal the Parliament’s position on the contentious issues raised during the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). Furthermore, the Parliament has not explained how disclosure of the requested documents would specifically and effectively undermine the protection of court proceedings in that case.
29      The applicant also argues that it is legitimate for a natural or legal person to seek to obtain, under Regulation No 1049/2001, access to documents concerning the factual background of the decision that person wishes to challenge. While the applicant is not bound by a corresponding obligation to disclose potential evidence relating to disputed facts in respect of which the burden of proof rests with the Parliament, the latter has the right to request that the General Court adopt a measure of organisation of procedure or a measure of inquiry in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
30      The Parliament disputes the applicant’s arguments, contending that the exception based on the protection of court proceedings could apply to documents other than pleadings or documents containing legal positions. The principle of equality of arms also applies to evidence and is closely linked to respect for the distribution of the burden of proof between the parties, with the result that neither party is to be obliged to submit evidence instead of the opposing party in the proceedings in question. The requested documents are evidence relating to disputed facts in respect of which the applicant bears the burden of proof and constitute internal information closely connected to legal aspects of court proceedings, and, moreover, are the subject of such proceedings. If the Parliament were obliged to disclose the requested documents, the general rules regarding the burden of proof would be reversed and the Parliament would be placed at a substantial disadvantage vis-à-vis the opposing party in those proceedings.
31      In addition, the Parliament maintains that, in order to acquire a document which is not in its possession and which it wishes to submit in the context of court proceedings to demonstrate its claims, each party should request that the General Court adopt a measure of organisation of procedure or a measure of inquiry.
32      Furthermore, the Parliament notes, first, that, when the applicant claims that access to the requested documents was required in order for her to be able to effectively defend her interests in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), she refers to her private interest, which is irrelevant in the present case, and, second, that the applicant’s argument that the Parliament is not entitled to invoke the right to avoid self-incrimination is irrelevant and, at the very least, unfounded.
33      Lastly, according to the Parliament, in so far as the applicant’s arguments concern the obligation to state reasons, the contested decision is sufficiently reasoned and, moreover, the Parliament’s reasoning in its initial decision, which the contested decision confirmed, should also be taken into account.
34      As a preliminary point, it is necessary to respond to the applicant’s argument alleging, in essence, that the contested decision contains an inadequate statement of reasons, according to which the Parliament has not explained how disclosure of the requested documents would specifically and effectively undermine the protection of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
35      In that regard, it is sufficient to note that the Parliament adequately explained, in the contested decision, that, in essence, in so far as the requested documents would potentially serve as evidence to demonstrate the applicant’s assertions in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), in respect of which she bore the burden of proof, disclosure of those documents would undermine the principle of equality of arms, on the ground that the Parliament would no longer be on an equal footing with the applicant, as the latter is not under a corresponding obligation to disclose potential evidence relating to disputed facts in respect of which the burden of proof rests with the Parliament. Such an explanation is sufficient to enable the applicant to understand the reasons for the contested decision and to enable the General Court to review the legality of that decision.
36      Accordingly, the argument alleging that there is an inadequate statement of reasons must be rejected.
37      Next, it is necessary to assess whether disclosure of the requested documents was liable to undermine the principle of equality of arms in the context of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14),
and, therefore, to undermine the protection of court proceedings within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001.
38      It should be borne in mind that the expression ‘court proceedings’ used in the second indent of Article 4(2) of Regulation No 1049/2001 is to be interpreted as meaning that the protection of the public interest precludes the disclosure of the content of documents drawn up solely for the purposes of specific court proceedings (see judgment of 28 June 2019, Intercept Pharma and Intercept Pharmaceuticals v EMA, T‑377/18, not published, EU:T:2019:456, paragraph 30 and the case-law cited). Similarly, it has been held that those documents include pleadings or other documents lodged in the course of court proceedings, internal documents concerning the investigation of an ongoing case, and correspondence concerning the case between the Directorate-General concerned and the Legal Service or a lawyers’ office (see, to that effect, judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 90, and of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 41 and the case-law cited).
39      In addition, the Court has held that the case-law referred to in paragraph 24 above does not rule out the possibility that documents other than those constituted by the pleadings could fall within the scope of the exception based on the protection of court proceedings. In that regard, the Court has held that the need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial, by reason of the fact that those documents contain internal positions (see, to that effect, judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraphs 88 and 97, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraphs 64 and 73).
40      In that case, although those documents have not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the equality of arms between the parties could be seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party and closely connected to the legal aspects of pending or potential (but imminent) proceedings (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 90, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 65).
41      However, in order for the exception to apply, it is necessary that the documents in question, at the time of adoption of the decision refusing access to those documents, should have a relevant link with a dispute pending before the Courts of the European Union, in respect of which the institution concerned is invoking that exception, and that disclosure of those documents, even though they were not drawn up in the context of pending court proceedings, should compromise the principle of equality of arms and, potentially, the ability of the institution concerned to defend itself in those proceedings. In other words, it is necessary that those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon (judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 88, and of 26 July 2023, Troy Chemical Company v Commission, T‑662/21, not published, EU:T:2023:442, paragraph 57).
42      In the present case, in the first place, it must be stated that the requested documents, listed in paragraph 6 above, constitute, in essence, administrative decisions and documents in the administrative files relating to those decisions. It is common ground that those documents concern the Parliament’s administrative activity and that they were not drawn up for the purposes of specific court proceedings. Indeed, they were drawn up for the purposes of the Parliament’s administrative procedures in the context of monitoring the management of allowances relating to accredited parliamentary assistants. Thus, they exist independently of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
43      In the second place, the requested documents also do not belong to the group of documents, to which the case-law cited in paragraphs 39 to 41 above refers, the disclosure of which would be liable, in the context of specific proceedings, to compromise equality of arms on account of the fact that they contain internal positions. In order to satisfy the conditions laid down in that case-law, the mere fact that the requested documents will be used as evidence in court proceedings is not sufficient.
44      As is apparent from paragraph 42 above, the requested documents are completely independent of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). In that regard, it must be pointed out that the subject matter of those documents is different from the subject matter of that case. In the requested documents, the Parliament examined the irregularities in the specific management by MEPs of allowances relating to accredited parliamentary assistants, whereas, in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), the General Court was not called upon to examine the management of allowances relating to accredited parliamentary assistants by those persons, or even by the applicant, but the legality of the ECP’s request for the applicant’s parliamentary immunity to be lifted and of the decision of the President of the Parliament to announce that request to the Parliament and to refer it to the Committee of Legal Affairs.
45      Furthermore, it is not disputed by the parties that the requested documents do not contain the Parliament’s internal position on the legality of the ECP’s request for the applicant’s parliamentary immunity to be lifted and of the decision of the President of the Parliament to announce that request to the Parliament and to refer it to the Committee of Legal Affairs, or even an internal position of the Parliament on the applicant’s assertion that ‘so far, and without exception, all previous and numerous similar irregularities committed by MEPs have been dealt with administratively without involving criminal investigations’. By contrast, the requested documents concern facts relating to the Parliament’s handling of irregularities in the management of allowances relating to accredited parliamentary assistants by other MEPs. In addition, the requested documents cover an indefinite period, with the result that they may include documents relating to administrative proceedings considerably pre-dating the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
46      In the light of the considerations set out in paragraphs 44 and 45 above, it cannot be held that the requested documents contain an internal position of the Parliament on the contentious issues raised in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), as required by the case-law cited in paragraphs 39 to 41 above. Accordingly, the Parliament’s argument that the requested documents constitute internal information closely connected with the legal aspects of the court proceedings must be rejected.
47      In the third place, according to the settled case-law of the Court of Justice, the principle of equality of arms, which is a corollary of the very concept of a fair trial and aims to ensure a balance between the parties to the proceedings, implies that each party must be afforded a reasonable opportunity to present his or her case, including his or her evidence, under conditions that do not place him or her at a substantial disadvantage vis-à-vis his or her opponent (see judgment of 28 July 2016, Ordre des barreaux francophones et germanophone and Others, C‑543/14, EU:C:2016:605, paragraph 40 and the case-law cited).
48      The aim of that principle is to ensure a procedural balance between the parties to judicial proceedings, guaranteeing the equality of rights and obligations of those parties as regards, inter alia, the rules that govern the bringing of evidence and the adversarial hearing before the court and also those parties’ rights to bring an action (see judgment of 28 July 2016, Ordre des barreaux francophones et germanophone and Others, C‑543/14, EU:C:2016:605, paragraph 41 and the case-law cited).
49      Drawing inspiration from the case-law of the European Court of Human Rights, the Court of Justice has stated that the purpose of that principle is to ensure a balance between the parties to proceedings, guaranteeing that any document submitted to the court may be examined and challenged by any party to the proceedings. Conversely, the harm which a lack of balance will be likely to cause must, as a rule, be proved by the person who has suffered it (judgment of 6 November 2012, Otis and Others, C‑199/11, EU:C:2012:684, paragraph 72).
50      In the present case, first of all, it must be held that the Parliament’s argument that, if it were obliged to grant access to documents proving or refuting the claim contested in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), although the Parliament does not bear the burden of proof in respect of that claim, the general rules relating to the burden of proof would be reversed and it would be placed at a substantial disadvantage vis-à-vis the applicant in those proceedings cannot succeed.
51      It should be borne in mind that the Parliament is required to interpret the exceptions to the right of access to documents restrictively. Neither the identity of the person requesting the documents nor the use that person intends to make of the documents, if their disclosure is obtained, could justify the application of one of the exceptions laid down in Article 4(1) to (3) of Regulation No 1049/2001 (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 37). On the other hand, in order to determine whether a document is covered by an exception, only the content of the document requested is relevant (see paragraph 23 above). Thus, the institution cannot, in general, escape from its obligation under Regulation No 1049/2001 to disclose requested documents on the sole ground of avoiding having to defend itself against the evidence submitted by its opponent in court proceedings without taking account of the content of the documents requested and, therefore, of the fact that those documents do not contain an internal position of the institution on the contentious issues raised in the court proceedings relied on. An interpretation to the contrary would go beyond the objectives of the principle of equality of arms as set out in paragraphs 47 to 49 above.
52      Similarly, in the circumstances of the present case, the Parliament cannot effectively defend itself by arguing that it would no longer be on an equal footing with the applicant on the ground that she is not under a corresponding obligation to disclose potential evidence relating to disputed facts in respect of which the burden of proof rests with the Parliament in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). The Parliament, as an institution, is subject to obligations to which the applicant is not subject, including, in particular, the obligation of transparency laid down in Article 15 TFEU and implemented by Regulation No 1049/2001. The Parliament cannot escape from that obligation merely because the opposing party is not bound by a corresponding obligation.
53      Furthermore, in so far as the requested documents do not contain the Parliament’s internal position on the contentious issues raised in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), their possible disclosure was not liable to place the Parliament at a substantial disadvantage vis-à-vis the applicant, given that it would still be able to examine those documents and challenge their relevance (see paragraph 49 above).
54      The possibility for the applicant to request that the General Court adopt a measure of organisation of procedure or a measure of inquiry in order to obtain evidence in support of her assertions is not capable of calling into question the considerations set out in paragraphs 50 to 53 above. The existence of that possibility cannot relieve the Parliament of the obligation to implement Regulation No 1049/2001 and to examine the application for access to documents objectively, taking into account the content of the requested documents and the principles laid down in that regulation and in the case-law relating thereto.
55      Those considerations are supported by the case-law of the General Court according to which the exception based on the protection of the public interest (court proceedings) cannot enable the institution to escape from its obligation to disclose documents which were drawn up in connection with a purely administrative matter. That principle must be respected even if the disclosure of such documents in proceedings before the EU judicature might be prejudicial to the institution (see, by analogy, judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 91 and the case-law cited).
56      In the fourth place, as regards the Parliament’s argument that Regulation No 1049/2001 is not intended to lay down rules for the protection of the applicant’s private interest in gaining access to a document, it should be borne in mind that, under Article 6(1) of that regulation, the person applying for access is not obliged to state reasons for his or her application for access. Thus, the applicant’s reliance on her need to defend herself in the court proceedings concerning her, which reflects a private interest, is, at this stage of the examination, irrelevant for the purpose of ascertaining whether the Parliament was entitled to rely in the contested decision on the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgments of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 37, and of 23 September 2020, Basaglia v Commission, T‑727/19, not published, EU:T:2020:446, paragraph 27).
57      In the light of all the foregoing considerations, it must be concluded that disclosure of the requested documents was not liable to undermine the equality of arms in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14),
and, consequently, the first complaint in the first part of the single plea in law must be upheld.
The second complaint in the first part of the single plea in law, alleging that the sound administration of justice is not undermined in the context of the court proceedings in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14)
58      In the contested decision, the Parliament considered that access to the requested documents would undermine the sound administration of justice in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). It stated, in essence, that, if it were possible for a party to the pending court proceedings to use Regulation No 1049/2001 as a procedural instrument enabling potential evidence to be obtained with a view to establishing a disputed fact, this would undermine the ‘proper operation’ of the Rules of Procedure. According to the Parliament, it is for the General Court to decide, on the basis of the rules laid down in Chapter 6 of Title III of its Rules of Procedure, whether an institution should be obliged to produce documents that could potentially be relevant for proving or disproving a fact.
59      The applicant submits that access to the requested documents under Regulation No 1049/2001 cannot undermine the sound administration of justice in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14). She maintains, in essence, that the Rules of Procedure and Regulation No 1049/2001 constitute a pair of parallel possibilities for parties to obtain documentary evidence for the purposes of proceedings before the EU judicature, each of which pursues different objectives, imposes different conditions and leads to a different outcome in terms of scope of access to documents. The application of Regulation No 1049/2001 does not deprive the Parliament of its ability to defend itself and does not prevent the General Court from deciding on the relevance of evidence produced before it for the adjudication of the case pending before it.
60      In addition, according to the applicant, the Parliament has not explained, from a practical perspective, why disclosure of the requested documents would undermine the ‘proper operation’ of the Rules of Procedure. The applicant submits that it is not clear why the fact that the General Court can adopt measures of organisation of procedure or measures of inquiry should constitute an obstacle to an applicant seeking access to evidence under Regulation No 1049/2001.
61      The Parliament disputes the applicant’s arguments, contending that granting access to the requested documents would have undermined the rules relating to the production of evidence before the General Court in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), which are laid down in Chapter 6 of Title III of the Rules of Procedure. Those court proceedings could be distorted through granting public access to documents relevant to those proceedings, in so far as the General Court has exclusive competence to ensure the proper operation of the procedure before it, respect for the procedural rights of all parties to the proceedings, and the serenity of the proceedings. That competence of the General Court lies at the heart of the very existence of the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001.
62      The Parliament adds that the protection of procedural rights and the right of the parties to a fair trial entails ensuring the proper distribution of the burden of proof between the parties. The General Court is also competent to assess whether or not the documents should actually be produced at all and eventually communicated to the other party. If an institution could not rely on the exception based on the protection of court proceedings, the power to decide whether that institution should produce a document in the context of court proceedings would be shifted from the General Court to the person applying for access. Furthermore, according to the Parliament, although the rules governing access to documents and the production of evidence before the General Court are autonomous, they are not interchangeable, do not serve the same purpose and may, therefore, not lead to the same result.
63      As a preliminary point, if, by the line of argument that, in essence, the Parliament does not explain why disclosure of the requested documents would undermine the proper operation of the Rules of Procedure, the applicant seeks to rely on an inadequate statement of reasons for the contested decision, it is sufficient to note that the explanation provided by the Parliament, summarised in paragraph 58 above, must be regarded as sufficient to enable the applicant to understand the reasons for the contested decision and to enable the General Court to review the legality of that decision. Accordingly, the argument alleging that there is an inadequate statement of reasons for the contested decision should be rejected.
64      As regards the sound administration of justice and the integrity of court proceedings, it must be borne in mind that the exclusion of judicial activities from the scope of the right of access to documents is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of arguments by the parties and the deliberations of the court concerned in the case before it take place in an atmosphere of total serenity, without any external pressure on judicial activities. Disclosure of documents setting out the position taken by an institution or a Member State in pending court proceedings would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings (see judgment of 24 January 2024, Veritas v Commission, T‑602/22, EU:T:2024:26, paragraph 56 and the case-law cited).
65      It is common ground that an application for access to documents on the basis of Regulation No 1049/2001 and a request to the General Court seeking the adoption of a measure of organisation of procedure or a measure of inquiry relating to the communication of documents pursuant to the Rules of Procedure may be lodged independently and simultaneously. Although the Parliament observes that those two regimes cannot be applied interchangeably, with the result that Regulation No 1049/2001 cannot serve as a means of producing evidence before the Courts of the European Union, those considerations do not, however, relieve the Parliament of its obligation to examine the application for access to the requested documents objectively and in the light of all the circumstances of the case, in particular the content of those documents.
66      In that regard, it cannot be accepted that the mere act of granting the application for access to the requested documents, which could be produced before the General Court in order to prove certain claims made by the applicant in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14), undermines, for that reason alone, the objective pursued by the Rules of Procedure or the ‘proper operation’ of those rules. On the one hand, the ability of a party to request that the General Court adopt measures of organisation of procedure or measures of inquiry or the power of the General Court to adopt such measures cannot restrict the applicant’s right to present her case in the best possible manner, including the use of all legal means to obtain the evidence she finds relevant. On the other hand, the possible obtaining, pursuant to Regulation No 1049/2001, of documents intended to be produced as evidence before the General Court does not deprive that court of its competence to decide on the admissibility and relevance of that evidence; nor does it deprive it of the power to adopt, where appropriate, measures of organisation of procedure or measures of inquiry. Furthermore, in view of the circumstances of the present case, and in particular the content of the requested documents, the disclosure of which does not undermine the principle of equality of arms, as is apparent from the analysis set out in paragraphs 42 to 57 above, it cannot be presumed that access to those documents under Regulation No 1049/2001 would have the effect of exposing judicial activities to external pressure and would disturb the serenity of the proceedings within the meaning of the case-law cited in paragraph 64 above.
67      Consequently, it cannot be held that access to the requested documents under Regulation No 1049/2001 would undermine the sound administration of justice in the case which has since given rise to the order of 16 January 2024, Kaili v Parliament and EPPO (T‑46/23, not published, EU:T:2024:14).
68      Accordingly, the second complaint in the first part of the single plea in law must also be upheld and, consequently, the contested decision must be annulled, without there being any need to examine the second part of the single plea in law alleging that there is an overriding public interest in disclosure, given that the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 is not applicable in the present case (see, to that effect, judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 114 and the case-law cited).
Costs
69      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.
70      Since the Parliament has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the applicant, in accordance with the form of order sought by the latter.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby:
1.      Annuls the decision of the European Parliament of 31 July 2023 rejecting the confirmatory application for access to documents submitted by Ms Eva Kaili;
2.      Orders the Parliament to bear its own costs and to pay those incurred by Ms Kaili.
Kowalik-Bańczyk
Hesse
Ricziová
Delivered in open court in Luxembourg on 9 July 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.