JUDGMENT OF THE GENERAL COURT (Third Chamber)
24 September 2025 (*)
( Access to documents – Regulation (EC) No 1049/2001 – Document relating to notifications for the export of dangerous chemicals which are prohibited or severely restricted within the European Union – Decision of ECHA to grant access to a third party – Exception relating to the protection of commercial interests – Proportionality )
In Case T‑1101/23,
AQ, represented by C. Mereu and M. Grassi, lawyers,
applicant,
v
European Chemicals Agency (ECHA), represented by C. Buchanan and B. Broms, acting as Agents, and by G. Gilmore, Barrister-at-Law,
defendant,
THE GENERAL COURT (Third Chamber),
composed, at the time of the deliberations, of P. Škvařilová-Pelzl, President, G. Steinfatt and D. Kukovec (Rapporteur), Judges,
Registrar: P. Cullen, Administrator,
having regard to the order of 27 March 2024, AQ v ECHA (T‑1101/23 R, not published, EU:T:2024:205),
having regard to the written part of the procedure,
further to the hearing on 17 March 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, AQ, seeks annulment of the decision of the European Chemicals Agency (ECHA) of 14 September 2023 issued in procedure for access to documents ATD/040/2023 (‘the contested decision’).
Background to the dispute and events subsequent to the bringing of the action
2        The applicant is a company the commercial activity of which is the manufacture of active substances used in the production of plant protection products, in particular ethalfluralin and trifluralin (‘the active substances’).
3        Since the active substances are not authorised for marketing within the territory of the European Union, under Regulation (EC) No 1107/2009 of the European Parliament and of the Council of 21 October 2009 concerning the placing of plant protection products on the market and repealing Council Directives 79/117/EEC and 91/414/EEC (OJ 2009 L 309, p. 1), the applicant manufactures them only for export to third countries.
4        A request for access to a document containing information from eight notifications for the export of chemicals was submitted to ECHA 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).
5        By letter of 10 August 2023, ECHA invited the applicant to inform it of the elements the disclosure of which it opposed, in accordance with Article 4(4) of Regulation No 1049/2001.
6        By letter of 29 August 2023, the applicant informed ECHA that it opposed the disclosure of the references made to its name and address, as contained in the document subject to the request for access (‘the information at issue’), and the disclosure of the identity of the importers.
7        In that regard, first, the applicant maintained in particular that the information at issue was not covered by the concept of ‘information on emissions into the environment’ within the meaning of Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26). Secondly, the applicant argued that such disclosure would undermine its commercial interests, since disclosure of its status as an exporter of the active substances, which are regarded as dangerous substances, would risk giving rise to a public outcry.
8        Following exchanges between the applicant and ECHA, the latter informed the applicant that the request for access to the documents had been submitted by the non-governmental organisation Public Eye, which had its registered office in Switzerland.
9        On 14 September 2023, by the contested decision, ECHA rejected the applicant’s request not to disclose the information at issue, finding that the arguments put forward by the applicant were purely hypothetical, vague and unfounded and noting that the information at issue was already accessible to the public on the applicant’s website.
10      By letter of 28 September 2023, the applicant requested that ECHA reconsider its position by redacting the information at issue from the document subject to the request for access. By means of that request, the applicant put forward additional arguments concerning the consequences of disclosing that information.
11      In the request referred to in paragraph 10 above, the applicant claimed that the undermining of its commercial interests stemmed from the possibility of there being a biased and inaccurate description of its activity, which might jeopardise business relationships established with its investors and customers. Furthermore, the applicant submitted that publicising its links with the countries importing the active substances would allow its competitors to map the market for plant protection products, thus obtaining an impermissible competitive advantage.
12      By letter of 3 November 2023, ECHA responded to the additional arguments put forward by the applicant and informed the applicant that it would suspend the execution of its decision to disclose, pending potential proceedings before the General Court.
13      On 14 November 2023, the applicant confirmed to ECHA its intention to bring an action for annulment against the contested decision. By application lodged at the Registry of the General Court on 24 November 2023, the applicant brought the present action. Furthermore, by a separate document lodged at the Court Registry on 15 February 2024, the applicant submitted an application for interim measures. By order of 27 March 2024, AQ v ECHA (T‑1101/23 R, not published, EU:T:2024:205), the President of the General Court dismissed that application for interim measures for lack of urgency. By order of 26 July 2024, AQ v ECHA (C‑397/24 P(R), not published, EU:C:2024:634), the Vice-President of the Court of Justice dismissed the appeal brought against that decision.
14      On 20 September 2024, ECHA informed the General Court that it would disclose the information at issue once the proceedings for interim measures before the EU judicature were concluded. At the hearing, ECHA specified, in that regard, that the suspension of the execution of the contested decision was deemed to last only for the duration of the proceedings for interim measures and not throughout all proceedings before the EU judicature.
Forms of order sought
15      The applicant claims that the Court should annul the contested decision.
16      ECHA contends that the Court should:
–        dismiss the action in its entirety;
–        order the applicant to pay the costs.
Law
Admissibility
The admissibility of certain evidence submitted in the application
17      As ECHA observes, the applicant bases its action on evidence of which ECHA was not aware until after the contested decision had been adopted.
18      This includes evidence concerning the content of the Public Eye article of 10 September 2020 (Annex A.9), the impact of that article on the financing of the applicant’s activities (Annex A.10) and the making, by the Italian Green Party, of several requests for clarification as to the applicant’s activities (Annexes A.11 and A.12).
19      In that regard, the lawfulness of the contested decision may be assessed only on the basis of the information available to ECHA at the date on which it adopted that decision (see, by analogy, judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 117).
20      It should also be borne in mind that it is for a person who is seeking the application of one of the exceptions laid down in Article 4 of Regulation No 1049/2001 to the fundamental principle of openness referred to in particular in Article 15(1) TFEU, to provide, in due time, explanations to the EU institution, body, office or agency in question as to how access to the document in respect of which access is sought could specifically and actually undermine the interest protected by that exception (see, to that effect, judgments of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 95, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 94).
21      Accordingly, it was for the applicant, during the consultation procedure and before the contested decision was adopted, to provide explanations on the nature, purpose and scope of the information at issue which supported the conclusion that there was a risk of harm to the applicant’s commercial interests arising from the disclosure of that information (see, to that effect, judgments of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 97, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 96).
22      Consequently, the evidence referred to in paragraph 18 above which was not submitted before ECHA during the administrative procedure and before the contested decision was adopted may not be taken into account in the course of reviewing the legality of the contested decision.
23      Such a finding cannot be undermined by the arguments put forward at the hearing by the applicant concerning the fact that the letter by which ECHA invited the applicant to inform it of the elements the disclosure of which it opposed, in accordance with Article 4(4) of Regulation No 1049/2001, was not sent until 10 August 2023. The applicant claims, in essence, that the ECHA consultation had to be dealt with during the August summer period during which most Italian companies, itself included, are inactive, with the result that it was not possible to submit sufficient evidence concerning a request coming from an, at the time, unknown third party.
24      In that regard, first, it should be noted that, at the applicant’s request, ECHA extended the time limit set for submitting comments in the consultation procedure, thus allowing the applicant to submit sufficient explanations concerning the implications of access to the documents at issue.
25      Secondly, as is apparent from the letter dated 29 August 2023, the applicant did not raise any issue in the course of the administrative procedure that led to the contested decision being adopted as regards the alleged impossibility to submit the evidence regarded as necessary to support its claims.
26      In that context, the mere reference made during the hearing to the inactivity of Italian undertakings in August cannot be regarded as a valid justification allowing deviation from the case-law cited in paragraphs 19 to 21 above. The same is true of the lack of information held by the applicant in respect of the identity of the person requesting access to the documents.
27      Accordingly, Annexes A.9 to A.12 must be excluded without it being necessary to assess their evidential value.
The admissibility of the document submitted at the hearing
28      At the hearing, the applicant submitted a report dated 20 May 2024 on undertakings which, like the applicant, devote their commercial activity to the export of chemicals that are prohibited within the European Union.
29      The applicant argues that that report constitutes new evidence which supports the arguments already raised in the written part of the procedure before the Court, which became available only after that part had been closed and which is relevant to the outcome of the present proceedings.
30      ECHA is of the view that the delay in submitting the evidence has not been sufficiently justified by the applicant.
31      In that regard, it should be borne in mind that Article 85(3) of the Rules of Procedure of the General Court provides that ‘the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified.’ That provision concerns offers of fresh evidence and must be read in the light of Article 92(7) of those rules, which expressly provides that evidence may be submitted in rebuttal and previous evidence may be amplified (see, to that effect, judgment of 17 December 1998, Baustahlgewebe v Commission, C‑185/95 P, EU:C:1998:608, paragraphs 71 and 72).
32      In the present case, contrary to what the applicant claims, the document in question, dated 20 May 2024, was published before the written part of the procedure was closed on 10 June 2024, that occurrence being notified to the applicant by document of 11 June 2024. In addition, no exceptional circumstance justifying the late submission of that document has been put forward by the applicant. It must also be noted that the document in question was not submitted by the applicant in response to evidence in rebuttal put forward by the opposing party.
33      Furthermore, the mere fact that the document in question would only support facts and arguments raised previously cannot enable the Court to re-examine the facts in the light of evidence submitted for the first time before it since the legality of a decision must be assessed on the basis of the information available to the decision-maker when it adopted that decision in accordance with the case-law cited in paragraph 19 above.
34      In addition, the late submission of the document referred to in paragraph 28 above cannot be regarded as admissible either as evidence in rebuttal to that submitted by ECHA or as an amplification of the offer of evidence concerning the Public Eye article (Annex A.9), which, as was found in paragraph 27 above, may not be taken into account in the assessment of the legality of the contested decision.
35      For those reasons, the submission of the document referred to in paragraph 28 above must be rejected under Article 85(3) of the Rules of Procedure without it being necessary to assess its evidential value.
Substance
The first plea in law, alleging that ECHA made a manifest error of assessment when adopting the contested decision as regards the risk of undermining the commercial interests of the applicant
36      According to the applicant, ECHA failed to consider all the relevant factors and circumstances when deciding whether to disclose the information at issue, despite the evidence provided by the applicant. In so doing, it argues, ECHA made a manifest error of assessment in that it disregarded the consequences that disclosing the information at issue was liable to have on the applicant’s commercial interests.
37      The present plea is based, in essence, on the harm to the applicant’s commercial interests arising from the risk of misuse by Public Eye of the information at issue once it has been disclosed. The existence of that risk is supported by the content of an article published by Public Eye on 10 September 2020, in which that organisation allegedly presented the applicant’s commercial activities in a way that was inaccurate and negative for the applicant.
38      More specifically, the applicant claims that, in that article, Public Eye wrongly referred to one of the active substances, ethalfluralin, as being a substance which is not only prohibited but also dangerous. Similarly, it argues, Public Eye was incorrect in its description of the target countries for the applicant’s exports, where, according to the article, the exported products had caused thousands of poisonings.
39      The applicant alleges that the publication of that article by Public Eye seriously affected the applicant’s commercial operations, by jeopardising the financing of its activities, and also prompted the Italian Green Party to make several requests for clarification concerning the applicant’s activities.
40      In the light of the considerations set out in paragraph 39 above, the applicant maintains that there is a risk, classified as ‘reasonably foreseeable’, of misuse of that information by the person requesting access to the documents, which should have justified the rejection by ECHA of that request.
41      In addition, the applicant states that disclosure of the confidential information would enable its competitors to gain an unacceptable insight into its commercial activities, from which those competitors would gain a competitive advantage.
42      Furthermore, the applicant is of the view that publication of the information at issue serves no purpose since, so far as concerns the export of chemicals, disclosure of the names and quantities of the chemicals exported is sufficient to take into account the overriding interest in transparency.
43      In addition, according to the applicant, it is irrelevant that it lists the active substances on its website among the products it markets, since it is not those substances which are problematic, but the way in which the information at issue could be used. The same is true, it argues, of the fact that, in the context of the third-party consultations conducted by ECHA in 2019 and 2020, the applicant accepted disclosure of its identity as an exporter of the active substances.
44      ECHA disputes the applicant’s arguments.
–       Preliminary observations
45      As is apparent from paragraphs 5 to 7 above, the contested decision was adopted only after the applicant had been consulted, in accordance with Article 4(4) of Regulation No 1049/2001.
46      Following ECHA’s invitation, the applicant, in its letter of 29 August 2023, stated that it opposed in particular the making public of information relating to the identity of the exporter and the importer.
47      It should be noted, however, that the information concerning the identity of the importers is not subject to the request for access to the documents, as is apparent from the contested decision, a point which the applicant does not dispute.
48      As regards the information relating to the identity of exporters with respect to the protection of its commercial interests, the applicant merely indicated in its letter of 29 August 2023 in particular that making public its identity as an exporter of active substances might give rise to a public outcry and therefore damage its reputation.
49      By contrast, in its request for reconsideration of 28 September 2023 and in its pleadings before the Court, the applicant reiterated the arguments set out in paragraph 48 above and raised additional arguments concerning the implications of disclosing the information at issue. Those include the arguments concerning the advantage which the applicant’s competitors would obtain from the unacceptable insight into its commercial activities.
50      The applicant first relied on the advantage referred to in paragraph 49 above in the letter of 28 September 2023, which was sent after the contested decision had been adopted, and elaborated on it during the hearing.
51      However, the present action for annulment does not concern the letter of 3 November 2023, referred to in paragraph 12 above, in which ECHA responded the applicant’s additional arguments contained in the letter of 28 September 2023.
52      As is apparent from the case-law referred to in paragraph 19 above, only factual and legal material available to the decision-maker when the decision was adopted may be taken into account in the assessment of the legality of the contested decision.
53      It follows that ECHA cannot be criticised for not taking into account, when it adopted the contested decision, the arguments concerning the applicant’s commercial interests which had not been raised prior to the contested decision being adopted. As was noted in paragraph 21 above, it was for the applicant, during the consultation procedure and before the contested decision was adopted, to provide explanations on the nature, purpose and scope of the information at issue which supported the conclusion that there was a risk of harm to its commercial interests stemming from the disclosure of that information.
54      It must also be borne in mind that, under Article 4(4) of Regulation No 1049/2001, as regards documents originating from a third party, the institution is to consult that third party with a view to assessing whether an exception under Article 4(1) or (2) of that regulation is applicable, unless it is clear that the document must or must not be disclosed. It follows that the institutions are under no obligation to consult the third party concerned if it is clearly apparent that the document must or must not be disclosed. In all other cases, the institutions must consult the relevant third party. Accordingly, consultation of the third party is, as a general rule, a precondition for determining whether the exceptions to the right of access provided for in Article 4(1) and (2) of Regulation No 1049/2001 are applicable in the case of third-party documents (judgments of 30 January 2008, Terezakis v Commission, T‑380/04, not published, EU:T:2008:19, paragraph 54, and of 23 September 2015, ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, EU:T:2015:675, paragraph 222).
55      It must also be noted, in that regard, that consultation of a third party other than a Member State, provided for by Article 4(4) of Regulation No 1049/2001, does not bind the institution, but must make it possible to assess whether an exception provided for by paragraph 1 or 2 of that article is applicable (judgments of 30 January 2008, Terezakis v Commission, T‑380/04, not published, EU:T:2008:19, paragraph 60, and of 23 September 2015, ClientEarth and International Chemical Secretariat v ECHA, T‑245/11, EU:T:2015:675, paragraph 223).
56      Accordingly, the purpose of the consultation prescribed by Article 4(4) of Regulation No 1049/2001 is fulfilled once the third party has stated its views on the disclosure of the information originating from it, which makes it possible to assess whether the exceptions laid down in paragraphs 1 and 2 of Article 4 of Regulation No 1049/2001 may be applied by the institution concerned. By contrast with the procedure applicable to a person requesting access to documents that is provided for in Article 7(2) of Regulation No 1049/2001, the third party which participated in the consultation procedure is not entitled to make a confirmatory application.
57      That implies that the legal effect of the consultation procedure was not subject to the letter of 3 November 2023 being adopted.
58      It follows that, in the present case, the obligation to consult the applicant in accordance with Article 4(4) of Regulation No 1049/2001 was duly fulfilled since ECHA received the applicant’s views on the consequences of disclosing the information at issue in the letter of 29 August 2023.
59      In addition, as is apparent from an assessment of all of the content of both the contested decision and the letter of 3 November 2023 referred to above, the latter was merely an additional response to the additional arguments put forward by the applicant in the letter of 28 September 2023, in which ECHA refuses to alter the contested decision, which constitutes the agency’s definitive position and is the challengeable decision in the consultation procedure in question in the present case.
60      In the contested decision, after explaining and communicating the reasons for which it intended to proceed with the disclosure of the information at issue, ECHA informed the applicant about the available means of challenging the contested decision, in accordance with Article 8(1) of Regulation No 1049/2001, thereby confirming the definitive nature of that decision, which is in no way contradicted by the content of the letter of 3 November 2023.
61      Consequently, the applicant’s additional arguments which were put forward in the letter of 28 September 2023 may not be taken into account in the assessment of the legality of the contested decision.
–       The substance
62      According to the applicant, ECHA made a manifest error of assessment by ignoring the negative consequences which the disclosure of the information at issue would have on its commercial interests. Those consequences, it argues, arise from the risk of misuse by Public Eye of the information at issue.
63      It must be borne in mind, from the outset, 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 (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 73, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 48).
64      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 (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 49).
65      It can be seen from recital 2 of Regulation No 1049/2001 that openness enables the EU institutions to have greater legitimacy and to be more effective and more accountable to EU citizens in a democratic system (see judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 50 and the case-law cited).
66      To those ends, Article 1 of Regulation No 1049/2001 provides that the purpose of that regulation is to confer on the public as wide a right of access as possible to documents of the EU institutions (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 76, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 51).
67      It is also apparent from Article 4 of that regulation, which introduces a system of exceptions in that regard, that that right is, nevertheless, subject to certain limits based on reasons of public or private interest (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 77, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 52).
68      As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 78, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 53).
69      In that regard, it should be borne in mind that, where an EU institution, body, office or agency that has received a request for access to a document decides to refuse to grant that request on the basis of one of the exceptions laid down in Article 4 of Regulation No 1049/2001 to the fundamental principle of openness recalled in paragraph 63 above, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical (judgments of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 51, and of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 54).
70      Accordingly, in order to justify refusal of access to a document the disclosure of which has been requested, it is not sufficient, in principle, for that document to fall within the scope of an activity mentioned in Article 4(2) of Regulation No 1049/2001 (judgments of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 64, and of 2 March 2022, Huhtamaki v Commission, T‑134/20, not published, EU:T:2022:100, paragraph 28).
71      Furthermore, as was noted in paragraph 21 above, it is for the person who is seeking the application of one of those exceptions by an institution, body, office or agency to which that regulation applies to provide, in due time, explanations equivalent to those referred to in paragraph 69 above.
72      As regards the concept of commercial interests, it is apparent from the case-law that it is not possible to regard all information concerning a company and its business relations as requiring the protection which must be guaranteed to commercial interests under the first indent of Article 4(2) of Regulation No 1049/2001 without frustrating the application of the general principle of giving the public the widest possible access to documents held by the institutions (judgments of 15 December 2011, CDC Hydrogene Peroxide v Commission, T‑437/08, EU:T:2011:752, paragraph 44, and of 13 January 2017, Deza v ECHA, T‑189/14, EU:T:2017:4, paragraph 55).
73      Consequently, in order to apply the exception provided for by the first indent of Article 4(2) of Regulation No 1049/2001, it must be shown that the documents at issue contain elements which may, if disclosed, seriously undermine the commercial interests of a legal person. That is the case, in particular, where the requested documents contain commercially sensitive information relating, in particular, to the business strategies of the undertakings concerned or to their commercial relations or where those documents contain information particular to that undertaking which reveal its expertise (judgments of 9 September 2014, MasterCard and Others v Commission, T‑516/11, not published, EU:T:2014:759, paragraphs 82 to 84, and of 13 January 2017, Deza v ECHA, T‑189/14, EU:T:2017:4, paragraph 56).
74      On that basis, it is necessary to assess whether ECHA was able, without making an error of assessment, to find that disclosing the information at issue was not liable to undermine the applicant’s commercial interests.
75      It must be recalled, from the outset, that the information at issue is, specifically, the applicant’s name and address.
76      In the first place, under Article 118(1) and (2) of Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ 2006 L 396, p. 1, and corrigendum OJ 2007 L 136, p. 3), as amended by Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 (OJ 2008 L 353, p. 1) (‘the REACH Regulation’):
‘1.      [Regulation No 1049/2001] shall apply to documents held by the Agency.
2.      Disclosure of the following information shall normally be deemed to undermine the protection of the commercial interests of the concerned person:
(a)      details of the full composition of a mixture;
(b)      without prejudice to Article 7(6) and Article 64(2), the precise use, function or application of a substance or mixture, including information about its precise use as an intermediate;
(c)      the precise tonnage of the substance or mixture manufactured or placed on the market;
(d)      links between a manufacturer or importer and his distributors or downstream users.
…’
77      In that regard, it should be noted that the information at issue cannot, itself, benefit from a general presumption of confidentiality, in accordance with Article 118(2) of the REACH Regulation. The information at issue is not covered by any of the specific cases set out in Article 118(2) of the REACH Regulation.
78      As regards, in particular, the case referred to in point (d) of the first subparagraph of Article 118(2) of the REACH Regulation, information concerning the importers is not covered by the request for access to the documents in question, with the result that the information at issue does not concern links between the applicant and its distributors or downstream users. Only the countries importing the active substances are referred to in the document to which access was requested in the present case.
79      In the second place, the applicant itself admits that its identity as an exporter of the active substances is accessible on its website, as ECHA observed in the contested decision.
80      By contrast, the applicant does not sufficiently explain how the disclosure of information which is not itself confidential could harm its commercial interests. The applicant does not specify how the disclosure of the information at issue by ECHA would have an impact on its commercial interests that differs from and goes beyond the consequences of the access to that information which the applicant itself provides on its website.
81      In that regard, first, the claim that the applicant’s website is visited only by a ‘niche’ audience does not lead to the conclusion that ECHA erred by failing to protect the applicant’s commercial interests when it adopted the contested decision.
82      In the third place, it is appropriate to assess whether there is a reasonably foreseeable and not purely hypothetical risk of harm for the applicant, connected with the disclosure of the information at issue, which ought to have been assessed in the contested decision.
83      It must be observed that, in the applicant’s letter of 29 August 2023, which forms part of the process of ECHA consulting it about the disclosure of the information at issue, the applicant merely alleged a risk of public outcry, which might damage its reputation.
84      It is appropriate to bear in mind that, according to the case-law, a mere unsubstantiated claim relating to a general risk of undermining commercial interests cannot lead to the data contained in a document to which access is requested being regarded as falling within the scope of the exception laid down in the first indent of Article 4(2) of Regulation No 1049/2001 where the person seeking the application of that exception by the institution, body, office or agency in question has not adduced, prior to it taking a decision in that respect, additional details concerning the nature, purpose and scope of the data, that are capable of enabling the Courts of the European Union to understand how disclosure of those data would be likely concretely and reasonably foreseeably to undermine the commercial interests of the persons concerned thereby (see, to that effect, judgment of 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 95).
85      It is true that damage to the reputation of an undertaking does undoubtedly undermine its commercial interests in so far as the reputation of any operator active on a market is essential for the performance of its economic activities (see, to that effect, judgment of 5 December 2018, Falcon Technologies International v Commission, T‑875/16, not published, EU:T:2018:877, paragraph 51).
86      However, such a risk of reputational damage must arise from the nature, purpose and scope of the data in question, in accordance with the case-law cited in paragraph 84 above, and not the envisioned behaviour of the person requesting access.
87      In so far as the applicant submits in its pleadings before the Court that the risk of public outcry and damage to its reputation arise from a risk of misuse by Public Eye of the information at issue, it should be borne in mind that neither the identity of the person requesting the document nor the use that person intends to make of a document, if its disclosure is obtained, can justify the application of one of the exceptions laid down in Article 4(2) of Regulation No 1049/2001 (see, to that effect, judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 37).
88      First, it is clear from Article 2(1) of Regulation No 1049/2001 that any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in that regulation. Furthermore, under Article 2(2), the institutions may, subject to the same principles, conditions and limits, grant access to documents to any natural or legal person not residing or not having its registered office in a Member State (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 38).
89      Secondly, Regulation No 1049/2001 imposes no limitation on the use that may be made of a document held by an institution, to which that institution has granted access (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 39).
90      In addition, it must be observed that, if the mere fear of a biased and inaccurate description of the information justified refusing access to the documents, the general principle of giving the public the widest possible access to documents held by the institutions would be made worthless.
91      The effectiveness of the right of the widest possible access to documents of the institutions cannot be affected by the anticipation of unfair, or even unlawful, conduct on the part of the person requesting access.
92      In any event, the applicant has not shown that it had provided, before the contested decision was adopted, explanations on the nature, purpose and scope of the information at issue which supports the conclusion that the alleged risk existed (see paragraph 83 above).
93      Furthermore, the applicant’s arguments relating to the damage to its reputation only confirm that its status as an exporter of active substances had already been made public at a date prior to the contested decision being adopted, as ECHA noted.
94      In the fourth place, it is necessary to reject the applicant’s argument that the disclosure of confidential information would enable its competitors to gain an unacceptable insight into its commercial activities.
95      In that regard, it must be noted that, in its letter of 29 August 2023, the applicant opposed the making public of the information at issue on the basis of the risk of damage to its reputation. The only other claim concerning the applicant’s commercial interests related to the identity of the importers, which is not covered by the request for access, as is apparent from the contested decision.
96      Therefore, in accordance with the case-law referred to in paragraph 20 above, ECHA cannot be criticised for not assessing the arguments which had not been put forward by the applicant in due time, including the argument concerning the unacceptable insight into the applicant’s commercial activities by its competitors. The same is true of the argument relied on by the applicant at the hearing as regards publicising the amount of the active substances which are exported by the applicant.
97      It is clear that, in its letter of 29 August 2023, with the exception of information relating to its identity and address, the applicant explicitly agreed to the publication of other information subject to the request for access (‘information for which disclosure is not opposed’), including the expected amount of the active substances destined for export.
98      Accordingly, the applicant cannot object to the expected amount of the active substances to be exported being made public since it accepted its publication by ECHA.
99      It is true that, in accordance with Article 118(2) of the REACH Regulation, disclosure of the precise tonnage of the substance or mixture manufactured or placed on the market is to be deemed to undermine the protection of the commercial interests of the concerned person.
100    However, first, the applicant itself agreed to the disclosure of the expected amounts to be exported. Secondly, it is not clearly apparent from the documents before the Court that the information subject to the request for access makes it possible to ascertain ‘the precise tonnage of the substance or mixture manufactured or placed on the market’ as regards the active substances, nor has the applicant made any claim to that effect.
101    In the light of the principle of strict interpretation of the exceptions departing from the principle of the widest possible public access to documents (see paragraph 68 above), the applicant’s arguments cannot therefore establish that ECHA erred by finding that the information at issue did not constitute data capable of being covered by the exception relating to the protection of commercial interests.
102    Consequently, ECHA did not err by rejecting the applicant’s request concerning the non-disclosure of the information at issue.
103    In the light of the foregoing, the first plea in law is unfounded and must be rejected.
The second plea in law, alleging infringement of principle of proportionality
104    In support of the second plea in law, the applicant claims that ECHA infringed the principle of proportionality in so far as it relied exclusively on the principle of transparency, without assessing or balancing the opposing interests in the present case. In so doing, ECHA failed to have regard for the case-law arising from the judgment of 7 September 2023, Breyer v REA (C‑135/22 P, EU:C:2023:640), according to which the system of exceptions laid down in Article 4 of Regulation No 1049/2001 is based on a balancing of the opposing interests in a given situation, that is to say, first, the interests which would be favoured by the disclosure of the documents in question and, secondly, those which would be jeopardised by such disclosure. The decision taken on a request for access to documents depends on which interest must prevail in the particular case.
105    In that regard, the second plea in law is based on the premiss that the disclosure of the information at issue is liable to undermine the applicant’s commercial interests.
106    As was found in paragraph 101 above, the applicant has not successfully established that ECHA erred by finding that the information at issue did not constitute data capable of being covered by the exception relating to the protection of commercial interests, with the result that the case-law referred to by the applicant, including the judgment of 7 September 2023, Breyer v REA (C‑135/22 P, EU:C:2023:640, paragraph 72), is not applicable to the present case.
107    Accordingly, ECHA was not required to assess to what extent there was an ‘especially pressing’ interest in the disclosure or whether there was an overriding public interest justifying the disclosure of the information at issue.
108    Consequently, the second plea in law must also be rejected as unfounded and, therefore, the action must be dismissed in its entirety.
Costs
109    Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
110    In the present case, since the applicant has been unsuccessful, it must be ordered to pay the costs, including those relating to the proceedings for interim measures before the General Court, in accordance with the form of order sought by ECHA.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby:
1.      Dismisses the action;
2.      Orders AQ to pay the costs, including those relating to the proceedings for interim measures before the General Court.
Škvařilová-Pelzl
Steinfatt
Kukovec
Delivered in open court in Luxembourg on 24 September 2025.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.