ORDER OF THE GENERAL COURT (Second Chamber)
20 August 2025 (*)
( Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Implied refusal of access – Express decision adopted after the action was brought – No need to adjudicate – Modification of the form of order sought – Article 86(2) of the Rules of Procedure – Failure to observe the time limit for instituting proceedings – No separate document – Manifest inadmissibility – Application for a direction to be issued – Manifest lack of jurisdiction )
In Case T‑458/24,
Agricultural and Processed Food Products Export Development Authority (APEDA), established in New Delhi (India),
Bernard O’Connor, residing in Brussels (Belgium),
represented by M. Hommé and B. O’Connor, lawyers,
applicants,
v
European Commission, represented by K. Herrmann and M. Burón Pérez, acting as Agents,
defendant,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, J. Schwarcz and L. Spangsberg Grønfeldt (Rapporteur), Judges,
Registrar: V. Di Bucci,
makes the following
Order
1        By their action under Article 263 TFEU, the applicants, Agricultural and Processed Food Products Export Development Authority (APEDA) and Mr Bernard O’Connor, seek the annulment of the implied decision of the European Commission of 1 July 2024 (‘the implied decision’) by which it refused the confirmatory application for access to documents that was registered under EASE 2024/1869 and, after modification of the form of order sought by them, of Commission Decision C(2024) 8058 final of 13 November 2024 (‘the express decision’), by which the Commission granted the applicants partial or full access to some of the requested documents.
Background to the dispute
2        By letter of 27 March 2024, Mr O’Connor made an application to the Commission, under 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), for access to documents. The application was registered under EASE/2024/1869.
3        On 13 May 2024, the Commission granted full access to some of the requested documents and partial access to others.
4        By letter of 16 May 2024, Mr O’Connor made a confirmatory application to the Commission, under Article 7(2) of Regulation No 1049/2001, asking it to reconsider its position and to grant access to all of the requested documents (‘the confirmatory application’).
5        By letter of 5 June 2024, the Commission informed Mr O’Connor that the time limit for the reply to his application had been extended by 15 additional working days, under Article 8(2) of Regulation No 1049/2001, and that the new time limit would expire on 1 July 2024. On that date, the failure to reply to the confirmatory application led to the implied decision refusing the confirmatory application, in accordance with Article 8(3) of Regulation No 1049/2001.
6        There was no express reply from the Commission before the present action was brought on 2 September 2024.
Events subsequent to the bringing of the present action
7        On 13 November 2024, the Commission adopted the express decision in response to the confirmatory application. The Commission granted partial or full access to certain documents, the disclosure of which had initially been refused.
8        On 27 January 2025, the applicants brought an action against that express decision, which was registered as Case T‑70/25.
Procedure and forms of order sought
9        By separate document lodged at the Registry of the General Court on 2 September 2024, the applicants submitted a request, pursuant to Article 152 of the Rules of Procedure of the General Court, that the present case be dealt with under an expedited procedure.
10      By decision of 9 October 2024, the General Court rejected the request for an expedited procedure.
11      By separate document lodged at the Court Registry on 4 December 2024, the Commission raised a plea of inadmissibility in respect of the action as regards the first applicant’s standing to bring proceedings and the second applicant’s representation, under Article 130(1) of the Rules of Procedure and, in the alternative, applied for a declaration that there was no need to adjudicate in so far as that action was brought against the implied decision, pursuant to Article 130(2) of that regulation (‘the application of 4 December 2024’).
12      By document lodged at the Court Registry on 16 January 2025, the applicants submitted their observations on the application of 4 December 2024 and sought the annulment of the express decision (‘the observations of 16 January 2025’).
13      By a measure of organisation of procedure of 22 January 2025, the Court asked the applicants a question as to how the observations of 16 January 2025 should be characterised. The applicants did not lodge a document responding to the measure of organisation of procedure.
14      By separate document lodged at the Court Registry on 27 January 2025, the applicants lodged a statement of modification of the application, under Article 86 of the Rules of Procedure, seeking the annulment of the express decision (‘the statement of modification of 27 January 2025’).
15      On 21 February 2025, the Commission replied to the statement of modification of 27 January 2025.
16      In the application, the applicants claim that the Court should:
–        annul the implied decision;
–        grant them access to the documents in respect of which disclosure to them was refused;
–        order the Commission to pay the costs.
17      In the application of 4 December 2024, the Commission contends that the Court should:
–        dismiss the action as manifestly inadmissible and order the applicants to pay the costs;
–        in the alternative, declare that there is no longer any need to adjudicate on the action and decide on costs pursuant to Article 137 of the Rules of Procedure.
18      In the observations of 16 January 2025 and in the statement of modification of 27 January 2025, the applicants claim that the Court should:
–        annul the express decision;
–        order the Commission to pay the costs.
19      In its response to the statement of modification of 27 January 2025, the Commission contends that the Court should:
–        dismiss the action, as modified by the statement of modification of 27 January 2025, as manifestly inadmissible;
–        dismiss the action for annulment of the implied decision as manifestly inadmissible;
–        in the alternative, declare that there is no longer any need to adjudicate on the action for annulment of the implied decision;
–        order the applicants to pay the costs.
Law
20      Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant, the Court may rule on a plea of inadmissibility without going to the substance of the case.
21      Under Article 130(2) and (7) of the Rules of Procedure, on the application of a party, the Court may declare that the action has become devoid of purpose and that there is no longer any need to adjudicate on it.
22      Furthermore, under Article 126 of the Rules of Procedure, where it is clear that the Court has no jurisdiction to hear and determine an action or where the action is manifestly inadmissible, the Court may, on a proposal from the Judge-Rapporteur, at any time decide to give a decision by reasoned order without taking further steps in the proceedings.
23      In the present case, it is necessary to examine, first, the applicants’ claim for disclosure of the requested documents, second, the claim set out in the application seeking annulment of the implied decision and, third, the modified claim for annulment of the express decision.
The claim for disclosure of the requested documents
24      By the second head of claim of their application, the applicants ask the Court to grant them access to the documents in respect of which disclosure to them was refused. That head of claim is, in its wording, closely connected to the application for annulment. Consequently, it must be interpreted as requesting that the Court order the Commission to grant access to the requested documents.
25      In that regard, it is sufficient to recall that, when exercising judicial review of legality under Article 263 TFEU, the Court is not entitled to issue directions to the institutions of the European Union (see order of 26 October 1995, Pevasa and Inpesca v Commission, C‑199/94 P and C‑200/94 P, EU:C:1995:360, paragraph 24 and the case-law cited, and judgment of 20 March 2014, Reagens v Commission, T‑181/10, not published, EU:T:2014:139, paragraph 49).
26      The claim for disclosure of the requested documents must therefore be rejected, since the Court manifestly has no jurisdiction to hear it.
The claim for annulment of the implied decision
27      In the application of 4 December 2024, the Commission submits that, having adopted a position on the confirmatory application by adopting the express decision, it has in fact withdrawn the implied decision and the legal effects of the implied decision no longer exist. It follows that the annulment of the implied decision is no longer capable, as a result, of conferring a benefit on the applicants and that their interest in bringing proceedings ceased to exist with the adoption of the express decision. Accordingly, there is no longer any need to adjudicate on the action.
28      The applicants assert that they retain an interest in securing the annulment of the implied decision on the ground that such annulment would result in the adoption of a new decision by the Commission. In that regard, the applicants state that the General Court is in a position to rule on the dispute by examining the reasons set out by the Commission in the express decision. The annulment of the implied decision would also allow for a decision on costs in favour of the applicants, since they could not be criticised for having brought an action in the absence of an express decision on the confirmatory application. A finding that there is no need to adjudicate in the present case would be contrary to the right to good administration and the right to an effective remedy, enshrined respectively in Articles 41 and 47 of the Charter of Fundamental Rights of the European Union.
29      In accordance with settled case-law, an applicant’s interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible. That purpose must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see judgment of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 32 and the case-law cited).
30      Where an institution adopts an express decision, by which, it has, in fact, withdrawn an implied decision adopted previously, an applicant no longer has an interest in bringing proceedings against that implied decision and there is no longer any need to adjudicate on the action brought against that decision (see, to that effect, judgments of 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 89, and of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 45).
31      In the present case, it must be held that the Commission adopted the express decision after the present action had been brought. It is common ground that that express decision constitutes a reasoned reply to the confirmatory application.
32      Consequently, the adoption of the express decision had the effect of withdrawing the implied decision and therefore removed the subject matter of the action, which sought annulment of that implied decision.
33      In those circumstances, the applicants cannot legitimately assert that they retain an interest in having the implied decision annulled, which has disappeared from the EU legal order.
34      Further, in accordance with Article 137 of the Rules of Procedure, where the Court finds that the action has become devoid of purpose, costs are to be in the discretion of the Court. Accordingly, contrary to what the applicants claim, the adoption of an order stating that there is no need to adjudicate cannot, in itself, deprive the applicants of the benefit of a decision on costs which, depending on the circumstances, would be favourable to them.
35      Moreover, while the applicants maintain that a finding that there is no need to adjudicate would infringe their right to an effective remedy, laid down in Article 47 of the Charter of Fundamental Rights, it is sufficient to note that that article is not intended to change the system of judicial review laid down by the Treaties and does not therefore change the conditions for assessing the interest in bringing proceedings (judgment of 30 April 2020,
Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission, C‑560/18 P, EU:C:2020:330, paragraph 62).
36      In any event, the applicants had the right, following the adoption of the express decision, either to modify the form of order sought and the pleas in law raised in the application, in accordance with Article 86 of the Rules of Procedure, in order to take account of that express decision, or to bring a new action under Article 263 TFEU against that decision. They cannot therefore claim that a finding that there is no need to adjudicate on the claim for annulment of the implied decision would infringe their right to an effective remedy or their right to have the present dispute handled within a reasonable time, as laid down in Article 41(1) of the Charter of Fundamental Rights, because they would be required to make ‘a new application to annul the express decision which in turn [would delay] a ruling on the substance of the matter’. Moreover, as stated in paragraphs 8 and 14 above, the applicants lodged a statement of modification of the application in the present case and have also brought a separate action against the express decision.
37      It follows from all the foregoing considerations that there is no longer any need to adjudicate on the present action in so far as it concerns the first head of claim in the application for annulment of the implied decision.
The claim for annulment of the express decision
38      In the first place, as regards the statement of modification of 27 January 2025, the Commission submits that that statement is manifestly inadmissible. In particular, it submits that that statement was lodged out of time and is therefore manifestly time-barred.
39      In accordance with Article 86(2) of the Rules of Procedure, the modification of the application must be made within the time limit laid 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.
40      Under the sixth paragraph of Article 263 TFEU, proceedings for annulment are to be instituted within two months of the publication of the contested measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 60 of the Rules of Procedure, that time limit is, in addition, to be extended on account of distance by a single period of 10 days.
41      In that regard, in accordance with Article 58(1)(a) of the Rules of Procedure, where a time limit expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place is not to be counted as falling within the time limit in question. In accordance with Article 58(1)(b) of the Rules of Procedure, a time limit expressed in weeks, months or years is to end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the time limit is to be calculated occurred or took place.
42      In accordance with settled case-law, the time limit for bringing actions is a matter of public policy, since it was established in order to ensure that legal positions are clear and certain and to avoid any discrimination or arbitrary treatment in the administration of justice, and it is for the General Court to ascertain of its own motion whether it has been observed (see, to that effect, judgments of 23 January 1997, Coen, C‑246/95, EU:C:1997:33, paragraph 21, and of 18 September 1997, Mutual Aid Administration Services v Commission, T‑121/96 and T‑151/96, EU:T:1997:132, paragraphs 38 and 39).
43      In the present case, as is apparent from the documents before the Court, the Commission sent the express decision to Mr O’Connor, by email, on 14 November 2024. In the statement of modification, the applicants explicitly state that, by that email, the express decision was notified to them on that date.
44      The applicants claim that, in those circumstances, the two-month time limit laid down in the sixth paragraph of Article 263 TFEU, extended on account of distance as provided for in Article 60 of the Rules of Procedure, expired on 25 January 2025. As that day was a Saturday, the time limit for lodging the statement of modification therefore expired on Monday 27 January 2025, under Article 58(2) of those rules.
45      In that regard, it is sufficient to note that Article 58(1)(a) and Article 58(1)(b) of the Rules of Procedure set out, in a consistent manner, the rules defining, respectively, the date on which a procedural time limit starts to run and the date on which such a time limit ends. Under Article 58(1)(b) of the Rules of Procedure, where the time limit is expressed in months, that time limit expires at the end of the day which, in the month indicated by the time limit, bears the same number as the day from which that time limit was fixed (see order of 17 May 2022, Shanghai Panati v EUIPO, C‑103/22 P(I), not published, EU:C:2022:399, paragraphs 35 and 36 and the case-law cited).
46      In the present case, since the applicants explicitly stated that the express decision was notified to them on 14 November 2024, the two-month time limit laid down in the sixth paragraph of Article 263 TFEU started to run, in accordance with Article 58(1)(a) of the Rules of Procedure, the day following that notification, that is to say, on 15 November 2024 at 00:00. In accordance with Article 58(1)(b) of the Rules of Procedure, that two-month time limit ended on 14 January 2025 at midnight. With the extension on account of distance of 10 days under Article 60 of the Rules of Procedure, the time limit for bringing an action definitively expired on Friday 24 January 2025 at midnight.
47      However, the applicants lodged the statement of modification on 27 January 2025, that is after the time limit for bringing an action had expired. Furthermore, the applicants have not relied on the existence of unforeseeable circumstances or of force majeure under the second paragraph of Article 45 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to Article 53 of that statute.
48      Consequently, the statement of modification of 27 January 2025 is out of time and must be rejected as manifestly inadmissible.
49      In the second place, as stated in paragraph 12 above, the applicants also sought the annulment of the express decision in the observations of 16 January 2025. In that document, the applicants not only submitted observations on the Commission’s plea of inadmissibility and application for a declaration that there is no need to adjudicate, but also commented on the reasons for the express decision and sought annulment of that decision.
50      It is therefore necessary to assess whether, by the observations of 16 January 2025, the applicants modified the application in accordance with Article 86 of the Rules of Procedure and whether, consequently, the claim for annulment of the express decision set out in that document is admissible.
51      In accordance with Article 86(2) of the Rules of Procedure, the modification of the application must be made by a separate document. That requirement is intended, inter alia, to ensure compliance with the adversarial principle and the rights of the defence, by enabling the defendant to respond to the pleas or arguments of the applicant as modified, in so far as they relate to new factors (see judgment of 27 April 2022, Roos and Others v Parliament, T‑710/21, T‑722/21 and T‑723/21, EU:T:2022:262, paragraph 60 and the case-law cited).
52      While it is therefore reasonable for modification of the application to be subject to certain formal requirements, such formal requirements do not apply for their own sake but are, on the contrary, intended to ensure the adversarial nature of proceedings and the sound administration of justice (see judgment of 24 January 2019, Haswani v Council, C‑313/17 P, EU:C:2019:57, paragraph 35 and the case-law cited).
53      In that connection, it should be noted that
although, by the judgment of 9 November 2017, HX v Council (C‑432/16 P, EU:C:2017:848, paragraphs 22 to 27), the Court of Justice criticised the General Court for failing to put the applicant in a position beforehand to regularise the request for modification due to the failure to produce the separate document required by Article 86(2) of the Rules of Procedure, that was because of circumstances specific to the case – an ambiguity in the language version of the Rules of Procedure corresponding to the language of the proceedings chosen by the applicant (judgment of 24 January 2019, Haswani v Council, C‑313/17 P, EU:C:2019:57, paragraph 41).
54      In the present case, it must be stated that the applicants lodged the document of 16 January 2025 as observations on the Commission’s plea of inadmissibility and application for a declaration that there is no need to adjudicate, as is apparent, moreover, from its title and content. It is true that, in that document, the applicants also made comments on the reasons for the express decision and sought annulment of that decision.
55      It must, however, be pointed out that Article 86(2) of the Rules of Procedure in the language version corresponding to the language of the case chosen by the applicants, namely English, is not ambiguous and expressly states that the modification of the application must be made ‘by a separate document’, which is what the applicants did, moreover, by lodging the statement of modification of 27 January 2025.
56      In that regard, the fact that, in paragraph 4 of the statement of modification of 27 January 2025, the applicants incidentally stated that the observations of 16 January 2025 dealt not only with the form of order sought by the Commission in respect of the plea of inadmissibility and application for a declaration that there was no need to adjudicate but ‘can be understood as a request to modify the application’ is also not sufficient for a finding that those observations effectively constituted a modification of the application submitted by a separate document, in accordance with Article 86(2) of the Rules of Procedure.
57      In those circumstances, the comments on the reasons for the express decision included in the observations of 16 January 2025 on the basis of which the applicants sought the annulment of that decision cannot be held, in the light of Article 86(2) of the Rules of Procedure, to have been made by ‘a separate document’.
58      Moreover, and in any event, despite the absence of specific circumstances such as those defined by the case-law referred to in paragraph 53 above, in the light of the claim for annulment of the express decision set out in the observations of 16 January 2025, the Court, by a measure of organisation of procedure of 22 January 2025, invited the applicants ‘to clarify whether [the observations of 16 January 2025] should be considered as a “modification of the application” within the meaning of Article 86 of the [Rules of Procedure], which states that such a modification is to be submitted by a separate document, rather than as “observations on the Commission’s pleas of inadmissibility and the need to adjudicate” within the meaning of Article 130 of those rules’. However, the applicants did not lodge a document in response to the measure of organisation of procedure, but submitted the statement of modification of 27 January 2025.
59      Consequently, by failing to respond to the measure of organisation of procedure and by modifying the application by a document separate from, and subsequent to, the observations of 16 January 2025, the applicants, to whom the Court had already indicated that the modification of the application was required to be submitted by a separate document, implicitly but necessarily confirmed that those observations did not constitute a modification of the application within the meaning of Article 86 of the Rules of Procedure, but observations on the plea of inadmissibility and application for a declaration that there is no need to adjudicate.
60      In those circumstances, in the absence of a response to the measure of organisation of procedure of 22 January 2025 and in view of the lodging of the statement of modification of 27 January 2025, the observations of 16 January 2025 can be regarded only as observations on the plea of inadmissibility and on the application for a declaration that there is no need to adjudicate under Article 130 of the Rules of Procedure. Such observations cannot therefore constitute a statement of modification of the application under Article 86 of the Rules of Procedure.
61      The applicants cannot be regarded, therefore, as having legitimately modified the application by the observations of 16 January 2025.
62      It follows from the foregoing considerations that the present action must be dismissed as manifestly inadmissible as regards the head of claim seeking annulment of the express decision.
63      It follows that there is no longer any need to adjudicate on a part of the present action (paragraph 37 above) and that, as to the remainder, that action must be dismissed, in part, as having been brought before a court which manifestly has no jurisdiction to hear it (paragraph 26 above) and, in part, as manifestly inadmissible (preceding paragraph), without it being necessary to rule on the plea of inadmissibility raised by the Commission concerning the first applicant’s standing to bring proceedings and the representation of the second applicant, nor on the applicants’ request that the Court order the Commission, by way of measure of inquiry, to produce the documents to which access was refused and other documents.
Costs
64      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 those rules, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
65      In the present case, although the applicants were unsuccessful in their action, it must be stated that it was the Commission’s failure to reply
to the confirmatory application within the relevant time limit which led to the applicants bringing the present action against the implied decision.
66      In the circumstances of the present case, the Court finds that it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1.      There is no longer any need to adjudicate on the claim for annulment of the implied decision of the European Commission of 1 July 2024 rejecting the confirmatory application for access to certain documents with reference EASE 2024/1869.
2.      The action is dismissed as to the remainder, in part, as having been brought before a court which manifestly has no jurisdiction to hear it and, in part, as manifestly inadmissible.
3.      Each party shall bear its own costs.
Luxembourg, 20 August 2025.
V. Di Bucci
A. Marcoulli
Registrar
President
*      Language of the case: English.