62023TJ0590_RES
Case T‑590/23
Emilio De Capitani
v
Council of the European Union
Judgment of the General Court (Ninth Chamber) of 29 October 2025
(Access to documents – Regulation (EC) No 1049/2001 – Working documents issued by the General Secretariat of the Council concerning two legislative proposals pending at the time of the request for access – Partial refusal of access – Exception relating to the protection of the decision-making process – Action for annulment – No publication, in the Council’s register, of documents to which access was granted pursuant to a request – Absence of a challengeable act – Inadmissibility)
Action for annulment – Actionable measures – Concept – Acts producing binding legal effects – Silence or inaction of an institution – Decision confirming the refusal to grant access to documents – Equivalence to an implied decision refusing publication, in the register, of the documents to which access was granted – Not included
(Art. 263 TFEU; European Parliament and Council Regulation No 1049/2001, Arts 2(1), 8(3) and 12)
(see paragraphs 46-55)
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 – Concept – Scope – Legislative documents – Included
(Art. 15(3) TFEU; Charter of Fundamental Rights of the European Union, Art. 42; European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraphs 70-74)
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 – Specific, actual and serious detriment to that process – Concept of serious detriment – Substantial impact on the decision-making process – Criteria for assessment
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraphs 93-98, 109-114)
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 – Specific, actual and serious detriment to that process – General and abstract justification of that detriment – Not permissible
(European Parliament and Council Regulation No 1049/2001, Art. 4(3), first subpara.)
(see paragraphs 106, 115, 119, 120)
Résumé
The General Court, hearing an action for annulment, which it partially upholds, rules on the relationship between, on the one hand, the right of access to documents on request (
1
) and, on the other hand, the obligations of the institutions to make, as far as possible, documents directly accessible to the public, in particular, legislative documents.
The applicant, Mr Emilio De Capitani, submitted a request for access to 33 working documents of the Council of the European Union exchanged in the course of several legislative procedures which were part of the Pact on Migration and Asylum (‘WK documents’). In response to that request, the Council provided him with full access to 27 WK documents and partial access to 3 WK documents. However, it completely refused him access to three WK documents, on the ground that their disclosure would seriously undermine its decision-making process. (
2
)
Following the applicant’s confirmatory application concerning access to two of the documents to which he had been refused access (‘the documents at issue’), the Council adopted the contested decision, (
3
) by which it confirmed its refusal to grant access to those documents.
The applicant therefore brought an action before the General Court seeking, in essence, annulment of the contested decision in so far as it, first, refuses him access to the documents at issue and, secondly, in the applicant’s view, implicitly refuses the publication in the register of the legislative documents to which he had been granted access.
Findings of the Court
In its assessment of the second head of claim, the Court examines whether the contested decision contains an implicit refusal of the Council to publish in the register the documents disclosed to the applicant in response to his request for access, capable of constituting a challengeable act.
First of all, the Court observes that the contested decision does not refer to the publication, in the register, of the documents disclosed to the applicant and recalls that, in principle, inaction on the part of an institution cannot be deemed to be equivalent to an implied decision, unless there are express provisions laying down a deadline after which an implied decision will be deemed to have been taken by the institution and prescribing the content of that decision.
Next, the Court notes that, in the context of access to documents, the silence of an institution is expressly taken into account solely under Article 8(3) of Regulation No 1049/2001, which concerns only confirmatory applications brought by persons who enjoy the right of access to documents, guaranteed by Article 2(1) of that regulation.
Accordingly, the Court examines whether the right of access to documents within the meaning of Article 2(1) of that regulation includes the publication of documents in the register of the institution concerned on the basis of Article 12(2) of Regulation No 1049/2001. In that regard, it notes that the Court of Justice has already held that that regulation does not directly link the right of access to documents, set out in Article 2(1) thereof, with the obligation imposed on the institutions to create a public register, laid down by Article 11 of that regulation, with the result that compliance with the duty to register documents cannot be enforced by means of an application for access to documents. (
4
) According to the General Court, those findings are applicable to the obligations laid down by Article 12 of Regulation No 1049/2001, which describes the administrative practice which the institutions concerned must adopt as regards making documents accessible to the public and has no link to the right of access itself. The Court states, furthermore, that that article does not impose any unconditional obligation on the institutions concerned since, first, those institutions make, ‘as far as possible’, documents directly accessible to the public and, secondly, legislative documents should, subject to Articles 4 and 9 of the abovementioned regulation, be made directly accessible.
Lastly, the Court infers from the above that an institution cannot be required to publish a document in its register by means of an application for access to documents and that the right of access to documents under Article 2(1) of Regulation No 1049/2001 does not include the publication of documents in the register of the institution concerned. Consequently, the Council’s silence in the contested decision in relation to the publication, in the register, of the WK documents to which access was granted to the applicant cannot be deemed equivalent to an implied decision to refuse such publication arising under Article 8(3) of Regulation No 1049/2001.
In the light of the foregoing, the General Court rejects that head of claim as inadmissible in the absence of a challengeable act.
(
1
)	For the purposes of Article 2(1) 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).
(
2
)	Within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
(
3
)	Decision SGS 23/002579 of the Council of the European Union of 14 July 2023 (‘the contested decision’).
(
4
)	See, to that effect, judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 44).