62022CJ0726_RES
Case C‑726/22 P
European Commission
v
Pollinis France
Judgment of the Court (Fifth Chamber) of 16 January 2025
(Appeal – Access to documents – Regulation (EC) No 1049/2001 – Article 4(3), first subparagraph – Protection of the decision-making process – Regulation (EU) No 182/2011 – Committee procedure – Positions expressed by Member States and other Members of Committees – Refusal to grant access)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Conditions – Strict interpretation and application
(European Parliament and Council Regulation No 1049/2001, recital 11 and Art. 4(3), first subpara.)
(see paragraphs 62, 65)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Obligation to state reasons – Scope
(European Parliament and Council Regulation No 1049/2001, Art. 4)
(see paragraph 63)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Scope – Administrative activity of the Commission – Included
(European Parliament and Council Regulation No 1049/2001, Art. 2(3))
(see paragraph 66)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Taking a decision – Concept – Existence of specific matter on which a decision will be taken – Included
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraph 73)
EU institutions – Right of public access to documents – Regulation No 1049/2001 – Exceptions to the right of access to documents – Protection of the decision-making process – Conditions – Concrete, actual and serious detriment to that process – Scope – Intention of an institution to take a decision – Not included
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraphs 74, 77, 78)
Résumé
Hearing an appeal, which it dismisses, brought by the European Commission against the judgment of the General Court in the case Pollinis France v Commission, (
1
) by which that court annulled the two decisions of the Commission (
2
) refusing access to documents concerning the guidance document of the European Food Safety Authority (EFSA) of 2013, (
3
) the Court of Justice clarifies the scope to the exception relating to there being an ongoing decision-making process, (
4
) in the context of a committee procedure, and gives a ruling on what may qualify as a ‘matter where the decision has not been taken by the institution’.
Pollinis France is a French non-governmental organisation acting to protect the environment and the purpose of which is the protection of wild and honey bees and the promotion of sustainable agriculture in order to help preserve pollinators. In 2020, it lodged with the Commission two requests for access (
5
) to certain documents concerning the EFSA guidance document of 2013. The first request covered, in essence, documents recording the positions of the Member States, of the members of the Standing Committee on Plants, Animals, Food and Feed (
6
) and of the Commission in relation to that guidance document and any draft relating to the same subject matter, received or drawn up by the Commission since October 2018. The second request concerned certain documents relating to that EFSA guidance document of 2013 and covered, in essence, correspondence, agendas, minutes or reports of meetings between members of the SCoPAFF and certain officials or Members of the Commission in the period between July 2013 and September 2018.
In response to the confirmatory requests for access, the Commission granted, by two decisions of 2020, partial access to some documents and refused access to some other documents, on the basis of the exceptions, respectively, relating to the protection of privacy and the integrity of the individual (
7
) and the existence of an ongoing decision-making process.
The EFSA guidance document of 2013 had been discussed for several years within the SCoPAFF, without any agreement having been reached on its text due to disagreement amongst the Member States, and without that document having been adopted by the Commission. In 2019, the Commission had asked the EFSA to revise its guidance document of 2013 in order to take account of more recent scientific developments.
It is against that background that, in the judgment under appeal, the General Court, seised of two actions for annulment, found that, by the decisions at issue adopted in 2020, the Commission indicated that, pending the finalisation of the revision of that guidance document, its examination within the SCoPAFF was ‘halted’ and that that meant that the decision-making process could be regarded as being ‘ongoing’, since it would resume only after the completion of that revision.
However, according to the General Court, at the time that the decisions at issue were adopted there was no longer any decision-making process with a view to implementing the EFSA guidance document of 2013. On the contrary, the Commission had decided, implicitly but necessarily, not to implement that document. The very fact that a revision of it was ongoing at the time that the decisions at issue were adopted meant that it was impossible to determine the content of any revised document, the form of its possible adoption or the procedure that might be followed for that purpose, and so the Commission’s decision-making process was devoid of any object. Consequently, the Commission could not validly rely on the exception relating to the protection of an ongoing decision-making process.
Findings of the Court
Hearing an appeal brought by the Commission which raised two grounds of appeal, the Court of Justice examines, in the context of the first ground, whether the General Court was correct in law to hold, in the judgment under appeal, that the Commission’s decision-making process on the subject of the EFSA guidance document of 2013 had been closed at the time when the decisions at issue were adopted.
As a preliminary matter, the Court of Justice recalls that Regulation No 1049/2001, which is based on the principal of openness and transparency, seeks to confer on the public as wide a right of access as possible to the documents of the EU institutions. While that right of access is subject to certain limits based on reasons of public or private interest, the exceptions from the right of access provided for by Regulation No 1049/2001 must be interpreted and applied strictly. In addition, 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 actually undermine the interest protected by the exception provided for in Article 4 of Regulation No 1049/2001 that that institution relies on. Finally, the risk of that interest being undermined must be reasonably foreseeable and not purely hypothetical.
First of all, as regards, more specifically, the exception relating to the protection of the decision-making process, the Court indicates, first, that under the first subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document, drawn up by an institution for internal use or received by it and which relates to a matter where the decision has not been taken by that institution, is to be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in the disclosure of the document in question.
In that regard, the Court recalls that the concept of ‘decision-making process’ must be understood as relating directly to the taking of a decision, without covering the entire administrative procedure which led to it. The taking of a decision presupposes that there is a specific matter to which the decision to be taken will relate, and that is so irrespective of whether the adoption of a specific and identifiable draft act is imminent. Moreover, contrary to the Commission’s submission, the General Court did not find that if a decision were not to be taken imminently, there would in fact be no decision-making activities.
Next, to hold that a decision has not yet been taken and therefore a ‘decision-making process’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001, is ongoing where there is no defined object of such a process would be contrary to both the scheme of that provision and the case-law. Thus, so long as the specific object of a decision to be taken in the future has not yet been defined, any risk that the decision-making process aimed at adopting that decision would be undermined as a result of the disclosure of a document requested pursuant to Regulation No 1049/2001 is by definition hypothetical, given that it would, in practice, be impossible to ascertain whether the content of that document actually relates to that decision-making process.
Finally, it is also without erring in law that the General Court did not find that the argument put forward by the Commission that it still had ‘the objective’ of implementing a guidance document on bees was decisive in the assessment of whether there was a ‘matter where the decision has not been taken by the institution’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. To accept that an institution’s intention alone to take a decision on a matter within its competence makes it possible for it to rely on that provision, without it being required that there was a decision-making process with a view to adopting a decision on a defined object, would, in practice, result in recognising that that institution has the option of refusing to disclose any document which related to that matter. The concept of a ‘matter where the decision has not been taken by the institution’ should not be interpreted so broadly as to cover every document which relates to a given matter.
Consequently, the Court of Justice concludes that the General Court was fully entitled to hold that the fact that the Commission still had the objective of implementing a guidance document on bees in order to provide the Member States’ authorities with a document setting out ‘current scientific and technical knowledge’ did not suffice, in itself, to make it possible to conclude that there was still a ‘matter where the decision [had] not been taken by the institution’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001. It concludes that the first ground of appeal must therefore be rejected and, next, that the second ground of appeal must be rejected as ineffective and, consequently, the appeal in its entirety must be dismissed.
(
1
)	Judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556; ‘the judgment under appeal’).
(
2
)	Commission decisions C(2020) 4231 final of 19 June 2020, in Case T‑371/20, and C(2020) 5120 final of 21 July 2020, in Case T‑554/20 (‘the decisions at issue’).
(
3
)	Guidance Document on the risk assessment of plant protection products on bees, adopted by the EFSA on 27 June 2013 (‘the EFSA guidance document of 2013’).
(
4
)	On the basis of the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).
(
5
)	Pursuant to Regulation No 1049/2001 and Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).
(
6
)	‘SCoPAFF’.
(
7
)	Within the meaning of Article 4(1)(b) of Regulation No 1049/2001.