JUDGMENT OF THE GENERAL COURT (Ninth Chamber)
25 March 2026 (*)
( Access to documents – Regulation (EC) No 1049/2001 – Documents concerning the active substances mancozeb and cypermethrin – Individual positions of the Member States in the Standing Committee on Plants, Animals, Food and Feed – Partial refusal of access – Article 4(2) and (3) of Regulation No 1049/2001 – Exception relating to the protection of the decision-making process – Exception relating to the protection of court proceedings – Overriding public interest )
In Case T‑359/21,
ClientEarth AISBL, established in Ixelles (Belgium), represented by J. Kenny, Barrister-at-Law, and F. Logue, Solicitor,
applicant,
v
European Commission, represented by C. Ehrbar, G. Gattinara and A. Spina, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber)
composed, at the time of the deliberations, of L. Truchot, President, H. Kanninen and M. Sampol Pucurull (Rapporteur), Judges,
Registrar: A. Marghelis, Administrator,
having regard to the written part of the procedure, in particular:
–        the application lodged at the Registry of the General Court on 18 June 2021,
–        the statement of modification lodged at the Court Registry on 29 September 2021,
–        the application for a declaration that there is no need to adjudicate lodged by the Commission on 14 October 2021,
–        the order of 16 February 2022 reserving the decision on the application for a declaration that there is no need to adjudicate on the merits,
having regard to the request for production of documents made by the Court to the Commission on 7 March 2023,
having regard to the decision of 19 April 2023 to stay the proceedings pending the decision closing the proceedings in the case which gave rise to the judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17),
having regard to the measure of organisation of procedure of 29 January 2025 inviting the parties to submit their observations on the consequences to be drawn, for the present case, from the judgment of 16 January 2025, Commission v Pollinis France (C‑726/22 P, EU:C:2025:17), and the responses of the applicant and the Commission, lodged at the Court Registry on 11 and 13 February 2025, respectively,
further to the hearing on 14 July 2025,
gives the following
Judgment
1        By its action under Article 263 TFEU, the applicant, ClientEarth AISBL, seeks the annulment of Commission Decision C(2021)
5499 final of 19 July 2021, by which the Commission refused it access to certain documents relating to the approval of the active substances mancozeb and cypermethrin (‘the contested decision’).
Background to the dispute and events subsequent to the bringing of the action
2        The applicant is a non-profit organisation dedicated to protecting the environment and human health in the public interest.
3        On 9 December 2020, the applicant submitted, on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), a request for access to five specific categories of documents, namely:
–        documents in the possession of the European Commission as of 15 March 2019 relating to extending the approval period for the active substance mancozeb and the subsequent decision on the non-renewal of the approval of that active substance;
–        documents in the Commission’s possession as of 31 July 2018 relating to extending the approval period for the active substance cypermethrin and the ongoing decision-making process regarding the non-renewal of the approval of that active substance;
–        documents containing the voting positions of the Member States in the Standing Committee on Plants, Animals, Food and Feed (‘the PAFF Committee’) in relation to four Commission implementing regulations;
–        documents containing correspondence since
15 March 2019 between Commission staff on the one hand and representatives of individual companies or industry associations on the other, which mention the extension or non-renewal of the approval period for the active substance mancozeb;
–        documents containing correspondence since
31 July 2018 between Commission staff on the one hand and representatives of individual companies and industry associations on the other, which mention the extension or non-renewal of the approval period for the active substance cypermethrin.
4        By letter of 17 December 2020, the Commission replied that it had registered the request and that it proposed, under Article 6(3) of Regulation No 1049/2001, to reduce the scope of that request.
5        On 18 December 2020, the applicant agreed to limit the scope of its request to three categories of documents, namely:
–        documents or information in the Commission’s possession on 15 March 2019 that record the positions and justifications of the Member States in relation to extending the approval period for the active substance mancozeb and the decision on the non-renewal of that active substance;
–        documents or information in the Commission’s possession on 31 July 2018 that record the positions and justifications of the Member States in relation to extending the approval period for the active substance cypermethrin and the decision-making process regarding the non-renewal of that active substance;
–        documents containing the voting positions of the Member States in the PAFF Committee in relation to Commission Implementing Regulation (EU) 2018/1262 of 20 September 2018 amending Implementing Regulation (EU) No 540/2011 as regards the extension of the approval periods of the active substances 1-methylcyclopropene, beta-cyfluthrin, chlorothalonil, chlorotoluron, clomazone, cypermethrin, daminozide, deltamethrin, dimethenamid-p, diuron, fludioxonil, flufenacet, flurtamone, fosthiazate, indoxacarb, MCPA, MCPB, prosulfocarb, thiophanate-methyl and tribenuron (OJ 2018 L 238, p. 62), Commission Implementing Regulation (EU) 2019/1589 of 26 September 2019 amending Implementing Regulation (EU) No 540/2011 as regards the extension of the approval periods of the active substances amidosulfuron, beta-cyfluthrin, bifenox, chlorotoluron, clofentezine, clomazone, cypermethrin, daminozide, deltamethrin, dicamba, difenoconazole, diflubenzuron, diflufenican, fenoxaprop-P, fenpropidin, fludioxonil, flufenacet, fosthiazate, indoxacarb, lenacil, MCPA, MCPB, nicosulfuron, picloram, prosulfocarb, pyriproxyfen, thiophanate-methyl, triflusulfuron and tritosulfuron (OJ 2019 L 248, p. 24), Commission Implementing Regulation (EU) 2019/2094 of 29 November 2019 amending Implementing Regulation (EU) No 540/2011 as regards the extension of the approval periods of the active substances benfluralin, dimoxystrobin, fluazinam, flutolanil, mancozeb, mecoprop-P, mepiquat, metiram, oxamyl and pyraclostrobin (OJ 2019 L 317, p. 102), and Commission Implementing Regulation (EU) 2020/2087 of 14 December 2020 concerning the non-renewal of the approval of the active substance mancozeb, in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2020 L 423, p. 50).
6        On 7 January 2021, the Commission extended the time limit for responding to the applicant’s request for access to the documents by a further 15 days, until 1 February 2021.
7        In the absence of a reply from the Commission, on 22 February 2021 the applicant submitted a confirmatory application for access to documents on the basis of Article 7(4) of Regulation No 1049/2001.
8        On the same date, 22 February 2021, the Commission’s Directorate-General (DG) for Health and Food Safety adopted a decision in which it identified 103 documents as coming within the scope of the request, granted partial access to 5 documents (documents
11, 15, 16, 18 and 86) and refused access to 87 documents (documents
1 to 10, 12 to 14, 17, 19 to 85 and 87 to 92), on the basis of the exceptions provided for in Article 4(1)(b) and the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001. It also found that 11 documents were already publicly available (documents
93 to 103).
9        By letter dated 15 March 2021, the applicant made a new confirmatory application for access to the documents asking the Commission to reconsider its position, on the basis of Article 7(2) of Regulation No 1049/2001.
10      On 16 March 2021, the Commission acknowledged receipt of that confirmatory application, stating that it would respond before 9 April 2021.
11      In the absence of an express reply to the confirmatory application of 15 March 2021, the applicant brought the present action on 18 June 2021 for annulment of the implied rejection decision, in accordance with Article 8(3) of Regulation No 1049/2001.
12      By the contested decision, sent to the applicant on 20 July 2021, the Commission replied expressly to the confirmatory application of 15 March 2021. By that decision, first, it granted partial access to certain documents and, secondly, it refused access to documents
27 to 85, 87 and 88 and to certain parts of documents
21 to 25 and 86 on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001 (‘the first batch of requested documents’), to documents
3 to 10, 12 to 14, 17, 19, 20 and 26 and to certain parts of documents
11, 15, 16, 21 to 25, 89 to 92 on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001 (‘the second batch of requested documents’) and to documents
21, 23, 24 and 26 on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 (‘the third batch of requested documents’).
Forms of order sought
13      In the final version of the form of order sought, the applicant claims that the Court should:
–        annul the contested decision;
–        order the Commission to pay the costs.
14      The Commission contends, in essence, that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
15      As a preliminary point, it should be noted that, in its reply, the applicant sought to withdraw the head of claim seeking annulment of the implied rejection decision referred to in paragraph 11 above.
16      In the final form of its pleadings, the applicant relies, in essence, on five pleas in law, alleging:
–        first, an error of assessment and an error of law relating to the first subparagraph of Article 4(3) of Regulation No 1049/2001;
–        second, an error of assessment and an error of law relating to the second subparagraph of Article 4(3) of Regulation No 1049/2001;
–        third, an error of assessment and an error of law relating to the second indent of Article 4(2) of Regulation No 1049/2001;
–        fourth, an error of assessment and an error of law which resulted in the misapplication of the overriding public interest test and a failure to state reasons in the light of the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union (‘the Charter’);
–        fifth, an error of law in that the contested decision is based on the standard rules of procedure for committees (OJ 2011 C 206, p. 11; ‘the Standard Rules of Procedure’), which are inapplicable under Article 277 TFEU.
Preliminary observations
17      In accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU to mark a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 73 and the case-law cited).
18      To that end, 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 (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 76 and the case-law cited).
19      It is also apparent from Article 4 of Regulation No 1049/2001, which introduces a system of exceptions in that regard, that that right of access is, nevertheless, subject to certain limits based on reasons of public or private interest (judgments of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 57, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 77).
20      As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 78 and the case-law cited).
21      In that regard, first, 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, it must, in principle, explain how access to that document could specifically and effectively undermine the interest protected by the exception laid down in Article 4 of Regulation No 1049/2001 upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).
22      Secondly, if the institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness, as described in recital 2 to Regulation No 1049/2001, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (see judgment of 3 July 2014, Council v in ’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53 and the case-law cited; see also, to that effect, judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45).
23      It is in the light of those considerations that the pleas in law put forward by the applicant must be examined.
The first plea in law, alleging an error of assessment and an error of law relating to the first subparagraph of Article 4(3) of Regulation No 1049/2001
24      The applicant considers that, in the contested decision, the Commission committed an error of assessment and an error of law when it refused access to the first batch of requested documents on the basis of the exception relating to protection of the decision-making process provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
25      In the first place, the applicant submits that the Standard Rules of Procedure cannot take precedence over Regulation No 1049/2001. In that regard, the applicant considers that this is not consistent with either Article 13(1) of the Standard Rules of Procedure or Article 9(2) of Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13; ‘the Comitology Regulation’), according to which Regulation No 1049/2001 applies to comitology committees. The applicant claims that the Standard Rules of Procedure do not amount to a lex specialis that could deviate from Regulation No 1049/2001.
26      In the second place, according to the applicant, the Commission has not demonstrated that disclosure of the first batch of requested documents would have a substantial and concrete impact on the decision-making process in question, namely the non-renewal of the active substance cypermethrin which was ongoing at the time of the adoption of the contested decision. In that regard, the applicant submits that the contested decision makes no reference to the specific characteristics of that decision-making process. The impacts alleged by the Commission are purely hypothetical or based on vague and unsubstantiated notions which are advanced without any reference to the particular decision-making process or the specific contents of the first batch of requested documents.
27      The Commission disputes the applicant’s arguments.
28      In the first place, the Commission submits that it does not consider that the Comitology Regulation and the Standard Rules of Procedure amount to a lex specialis that could legally deviate from or systematically take precedence over Regulation No 1049/2001. However, the Commission considers that the rules on confidentiality specific to comitology committees must be taken into consideration when assessing the exception relating to the protection of the decision-making process provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. According to the Commission, Regulation No 1049/2001 does not prevent it from taking into account the relevant legal framework.
29      In the second place, in the contested decision, the Commission considers that it has sufficiently demonstrated that disclosure of the first batch of requested documents would pose a ‘reasonably foreseeable and not purely hypothetical’ risk to the decision-making process in question. According to the Commission, the contested decision specifically addresses the risks that disclosure of the first batch of requested documents would entail. Moreover, the Commission considers that it took specific account of the content of those documents.
30      The Commission states that it has identified several factors of sensitivity, such as the fact that the decision-making process concerning the non-renewal of the active substance cypermethrin is still ongoing, the length of that process, the external pressure it faced and the fact that the ‘draft measure’ is subject to an obligation to notify the World Trade Organization (WTO). In the light of those factors, the Commission considered that disclosure of the first batch of requested documents ‘would reduce the margin of manoeuvre of the voting of the Member States and reduce their flexibility’, ‘unsettle the functioning of the Standing Committee’, ‘put under strain the trust relationship between Member States and [itself] and expose a difficult and lengthy decision-making process to further external pressure’.
31      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 an institution, which relates to a matter where the decision has not been taken by the 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 disclosure.
32      In accordance with the principle that derogations are to be interpreted strictly, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how access to that document could specifically and actually undermine the interest protected by the exception – among those laid down in Article 4 of Regulation No 1049/2001 – upon which it is relying. Moreover, the risk of that undermining must be reasonably foreseeable and not purely hypothetical. The mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 62 and the case-law cited).
33      It should also be borne in mind that the application of the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 requires it to be established that access to the documents requested is likely to undermine specifically and actually the protection of the institution’s decision-making process, and that the likelihood of that interest being undermined is reasonably foreseeable and not purely hypothetical (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 63 and the case-law cited).
34      In order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution (see judgment of 7 June 2011, Toland v Parliament, T‑471/08, EU:T:2011:252, paragraph 71 and the case-law cited).
35      That case-law cannot be interpreted as requiring the institutions to submit evidence to establish the existence of such a risk. It is sufficient in that regard if the contested decision contains tangible elements from which it can be inferred that the risk of the decision-making process being undermined was, on the date on which that decision was adopted, reasonably foreseeable and not purely hypothetical, showing, in particular, the existence, on that date, of objective reasons on the basis of which it could reasonably be foreseen that the decision-making process would be undermined if the documents were disclosed (see judgment of 22 March 2018, De Capitani v Parliament, T‑540/15, EU:T:2018:167, paragraph 65 and the case-law cited).
36      It is in the light of those provisions and principles that the reasons put forward by the Commission in the contested decision to justify the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 must be examined.
37      As a preliminary point, it should be noted that, in point 2.1 of the contested decision, in order to justify its refusal to disclose the first batch of requested documents, on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001, containing the individual positions adopted by the Member States within the PAFF Committee in the context of the comitology procedure relating to the non-renewal of the active substance cypermethrin, the Commission relied, in essence, on three reasons. According to the Commission, first, comitology procedures preserve the confidentiality of the individual positions of the Member States. Secondly, disclosure of the requested documents would put the trust relationship between Member States and the Commission – and, consequently, the decision-making process in question – under strain. Thirdly, the Commission has been the target of external pressure from various stakeholders with conflicting interests. In addition, such disclosure would reduce the margin of manoeuvre of the voting of the Member States and the flexibility of those States, which should be free to explore all options within the standing committees without external pressure. Thus, such disclosure would unsettle the functioning of the PAFF Committee and expose a difficult and lengthy decision-making process to further external pressure.
38      The three reasons referred to in paragraph 37 above must be examined in turn.
The first reason, based on the confidentiality of the Member States’ individual positions in the comitology procedure
39      In the contested decision, the Commission stated that comitology procedures preserve the confidentiality of the individual positions of the Member States and that this is reflected in certain provisions of the Standard Rules of Procedure, adopted by it pursuant to Article 9(1) of the Comitology Regulation, which explicitly exclude the positions of the Member States from public access.
40      The applicant is of the view that the Commission wrongly relied on general considerations amounting to an assertion that the Standard Rules of Procedure systematically took precedence over the right of access to documents guaranteed by Regulation No 1049/2001.
41      Here, it should be observed that, in the contested decision, in order to support the reason that the individual positions of the Member States should be protected in comitology procedures and should therefore be excluded from public access, the Commission relied on two provisions of the Standard Rules of Procedure, namely Article 10(2) and Article 13(2) thereof, the first of those provisions stating that ‘the summary record shall not mention the individual position of the members in the committee’s discussions’ and the second that ‘the committee’s discussions shall be confidential’.
42      It must be held that, unlike the situation taken into account by the Court in paragraph 86 of the judgment of 28 May 2020, ViaSat v Commission (T‑649/17, not published, EU:T:2020:235), which related to certain activities of another comitology committee, in the present case there is nothing in the file to suggest that the PAFF Committee has adopted rules of procedure corresponding to the provisions of the Standard Rules of Procedure invoked by the Commission in the contested decision and which would underline the importance that that committee attaches to the confidentiality of certain information exchanged within it and its discussions.
43      In any event, even if the PAFF Committee had adopted or followed ‘in practice’ the rules in the Standard Rules of Procedure, including the provisions relied on by the Commission in the contested decision, that fact would not permit the inference that those provisions – even if they were to be interpreted as emphasising the confidential nature of the discussions within the PAFF Committee and the positions expressed by the Member States in that context – could exclude, as a matter of principle, certain documents from the scope of Regulation No 1049/2001 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 93).
44      The provisions of the rules of procedure of a committee, or even those of the Standard Rules of Procedure, whether or not they have been adopted by the committee as its own rules of procedure, cannot, in response to a request for public access, make it possible for protection to be granted to documents which goes beyond what is provided for by Regulation No 1049/2001. They cannot therefore be interpreted as precluding public access to the individual positions of the Member States (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraphs 96 and 100).
45      In particular, the Commission cannot rely on Article 10(2) of the Standard Rules of Procedure concerning the content of the ‘summary record’ of the work of committees. That provision does not relate to public access to the documents of committees, but to the content of the summary record. The fact that the summary record does not mention the individual position of the Member States has no bearing on access to documents. It cannot therefore prejudice public access, upon application, to documents showing those individual positions (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 101).
46      Nor can the Commission rely on Article 13(2) of the Standard Rules of Procedure, which states that ‘the committee’s discussions shall be confidential’.
47      The scope of Article 13(2) of the Standard Rules of Procedure is qualified by the other provisions of that article. Thus, Article 13(1) and (3) of those rules of procedure provides for the possibility that, in accordance with Regulation No 1049/2001, access may be granted inter alia to documents transmitted by a member of the committee to other members of the committee and that, in those cases, those documents are not confidential, or lose their confidentiality. It cannot be ruled out, however, that such documents may contain the individual votes of Member States reflecting their individual positions on a draft regulation (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraphs 104 and 105).
48      It follows from the foregoing that, contrary to what the Commission maintained in the contested decision, the comitology procedures, and in particular those provided for by the Standard Rules of Procedure, do not in themselves require access to documents showing the individual position of the Member States within the PAFF Committee to be refused in order to protect the decision-making process of that committee, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see, to that effect, judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 107).
49      Accordingly, the legal framework relating to comitology procedures cannot, in itself, preclude the right of access to documents resulting from Regulation No 1049/2001, nor can it lead the Commission to allege a risk of serious undermining of the decision-making process solely because of the applicability of that legal framework.
50      In those circumstances, it must be held that the first reason alleging protection of the individual position of the Member States in comitology procedures is vitiated by an error of law.
The second reason, based on cooperation and mutual trust and the complexity and sensitivity of the decision-making process
51      In the contested decision, the Commission stated that disclosure of the individual position of the Member States, expressed in a context of confidentiality, would negatively affect their cooperation in comitology procedures, would undermine the mutual trust between the Member States and the Commission and, consequently, the decision-making process in question.
52      The applicant claims that the Commission merely asserted that disclosure of the individual positions of the Member States expressed ‘in comitology procedures’ could lead to those States and the Commission reducing their level of cooperation in the decision-making process in question. In that regard, the applicant recalls that the Member States have expressed the depth of their commitment to mutual cooperation and their trust in the Treaties.
53      In the first place, it should be noted that, in so far as, in the contested decision, the Commission referred to the need to protect cooperation with the Member States in comitology procedures, it relied in that regard on abstract reasoning relating to the preservation of that cooperation in comitology procedures in general. Similarly, in so far as, in the contested decision, the Commission referred to the need to protect the mutual trust between itself and the Member States, since the individual positions of the latter were exchanged ‘in a context of confidentiality’, it must be stated that it relied on reasons of a general nature. Those justifications are based on the premiss that the comitology procedures protect, as regards a request for access to documents, the confidentiality of the individual positions of the Member States expressed within the committees, a premiss which, however, has already been rejected in paragraph 49 above. They are therefore justifications which have no concrete connection with the specific circumstances of the decision-making process in question in the present case.
54      Consequently, as the applicant points out, the explanations provided in the contested decision are not capable of demonstrating how cooperation and mutual trust in the decision-making process in question would be affected in the event that the requested documents were disclosed and, therefore, how access to the first batch of requested documents could specifically and actually undermine the interest protected by the first subparagraph of Article 4(3) of Regulation No 1049/2001.
55      Moreover, it should be borne in mind that the Member States are bound by a duty of sincere cooperation between themselves and with the EU institutions under Article 4 TEU, with the result that disclosure of the requested documents cannot, in any event, give rise to the concern that that obligation would not be respected or that the duties of the Member States might be weakened in that respect (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 113).
56      In the second place, the Commission relies on certain factual circumstances such as the fact that the decision-making process to be protected was still ongoing, the length of that process and the obligation to notify the WTO. It should be noted that the Commission did not refer to the content of the first batch of requested documents, but rather, in a general way, to the decision-making process in question as a whole.
57      It follows from the foregoing that the second reason given in the contested decision relating to cooperation and mutual trust and the complexity and sensitivity of the decision-making process is not such as to demonstrate, in the circumstances of the present case, a risk that the decision-making process would be seriously undermined and is vitiated by an error of assessment.
The third reason, based on the protection of the decision-making process from external pressure and the preservation of the margin of manoeuvre and the flexibility of the Member States
58      In the contested decision, the Commission stated that it had been the target of external pressure from various stakeholders with conflicting interests. It adds that disclosure of the first batch of requested documents would reduce the margin of manoeuvre of the voting of the Member States and the flexibility of those States, which should be free to explore all options within the standing committees without external pressure. Thus, such disclosure would unsettle the functioning of the PAFF Committee and expose a difficult and lengthy decision-making process to further external pressure.
59      The applicant claims that the Commission does not explain how,
actually and specifically, disclosure of the first batch of requested documents could lead to increased external pressure on the decision-making process in question. According to the applicant, in order for the risk of external pressure to constitute a legitimate ground for restricting access to documents, the reality of such pressure must be established with certainty and evidence must be adduced to show that there is a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure.
60      In the first place, as regards the external pressure relied on in the contested decision, it is clear from the case-law that the protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents relating to the decision-making process. Nevertheless, the reality of such external pressure must be established with certainty, and evidence must be adduced to show that there was a reasonably foreseeable risk that the ongoing decision-making process would be substantially affected owing to that external pressure (see judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 125 and the case-law cited).
61      Thus, according to the case-law, the mere reference to a risk of negative repercussions linked to access to internal documents and the possibility that interested parties may influence the procedure do not suffice to prove that disclosure of those documents would seriously undermine the decision-making process of the institution concerned (see
judgment of 8 June 2023, Council v Pech, C‑408/21 P, not published, EU:C:2023:461, paragraph 81 and the case-law cited).
62      It must be observed that, in the contested decision, the reason relating to the existence of external pressure was put forward by the Commission in a general and vague manner.
63      First of all, although the Commission stated that it had been, and continued to be, the target of external pressure from several stakeholders, it should be noted that that pressure was simply alleged and its factual reality was not demonstrated in the contested decision. Furthermore, the Commission referred to that pressure in such an abstract manner that it would be possible to use that justification in any decision-making process in any domain whatsoever.
64      Next, the contested decision does not provide any evidence allowing a link to be established between the external pressure brought to bear on the Commission, assuming it were proven, and the harm which would result from disclosure of the first batch of requested documents, which concern the individual positions of the Member States within the PAFF Committee, in the context of the comitology procedure relating to the non-renewal of the approval of the active substance cypermethrin.
65      Lastly, although the Commission stated that the Member States and the Commission had to be free from external pressure in order to explore any options in ‘standing committees’, it suffices to note that it did not refer to the decision-making process in question within the PAFF Committee, but referred expressly, in general terms, to ‘standing committees’ as a whole.
66      In the second place, as regards the margin of manoeuvre and flexibility referred to in the contested decision, the Commission merely made vague and general assertions, which do not establish that disclosure of the requested documents would lead to a reduction in the margin of manoeuvre or flexibility of the Member States within the PAFF Committee.
67      First of all, the Commission did not refer to any concrete evidence capable of demonstrating any deterioration in the position of the Member States in the event of disclosure of the first batch of requested documents. On the contrary, as observed in paragraph 66 above, when it stated that the Member States should be able to explore all the options, it did not refer to the situation within the PAFF Committee in the context of the decision-making process in question, but to their position within ‘standing committees’ in general.
68      Next, it should be borne in mind that the Commission has not provided any evidence to support the conclusion that the pressure that it would suffer would have an impact on the position of the Member States and that, therefore, disclosure of the first batch of requested documents would reduce the Member States’ margin of manoeuvre or their flexibility.
69      Lastly, it should be borne in mind that it is apparent from the case-law that the fact that the margin of manoeuvre and the capacity to reach a compromise between the Member States are reduced cannot establish that there is a sufficiently serious and reasonably foreseeable risk justifying the application of the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 (see judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 135 and the case-law cited).
70      It follows from the foregoing that the third reason given in the contested decision relating to external pressure, margin of manoeuvre and flexibility of the Member States is not such as to demonstrate, in the circumstances of the present case, a risk that the decision-making process in question would be seriously undermined and is vitiated by an error of assessment.
71      It follows that the reasons put forward by the Commission in the contested decision cannot justify, in the circumstances of the present case, the application of the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
72      Consequently, the first plea in law must be upheld and the contested decision must be annulled in so far as it refuses access to the first batch of requested documents.
The second plea in law, alleging an error of assessment and an error of law in the light of the second subparagraph of Article 4(3) of Regulation No 1049/2001
73      The applicant considers that, in the contested decision, the Commission committed an error of assessment and an error of law when it refused access to the second batch of requested documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001. That plea is divided into two parts, one relating to an error of law which led the Commission to consider, erroneously, that the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable to the individual votes of the Member States expressed within the PAFF Committee, and the other relating to an error of law and an error of assessment which led to the incorrect application of that article to the second batch of requested documents.
The first part of the second plea in law, relating to the applicability of the second subparagraph of Article 4(3) of Regulation No 1049/2001 to the votes of the Member States expressed within the PAFF Committee
74      The applicant submits that documents
89 to 92, containing the individual votes of the Member States in the PAFF Committee on decisions not to renew the approval of the active substances mancozeb and cypermethrin, do not come within the scope of the second subparagraph of Article 4(3) of Regulation No 1049/2001. The applicant considers that those documents are not ‘opinions for internal use as part of deliberations and preliminary consultations within the institution concerned’ within the meaning of the second subparagraph of Article 4(3) of Regulation No 1049/2001. According to the applicant, the voting position of a Member State is that Member State’s final position on a given proposal, which takes the form of a formal vote, and not a mere opinion expressed internally. Only ‘deliberations’ or ‘positions’ expressed in the course of a comitology procedure, and not the outcome thereof, may be confidential.
75      The Commission disputes those arguments.
76      Under the second subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is to be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.
77      It is thus only for some of the documents for internal use, namely those containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned, that the second subparagraph of Article 4(3) of Regulation No 1049/2001 allows, depending on the case, access to be refused even after the decision has been taken, where their disclosure would seriously undermine the decision-making process of that institution (judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 79).
78      In the present case, it must therefore be examined whether documents
89 to 92 contain opinions for internal use as part of deliberations and preliminary consultations within the Commission.
79      In particular, it is necessary to verify whether documents
89 to 92 enable the PAFF Committee to deliver an opinion in accordance with Article 3(3), (4), (5) and (6) of the Comitology Regulation and, subsequently, whether that opinion enables the Commission to adopt the implementing regulation relating to the active substance concerned (see, to that effect, judgments of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 93, and of 7 June 2013, Stichting Corporate Europe Observatory v Commission, T‑93/11, EU:T:2013:308, paragraphs 32 and 33).
80      In that regard, it should be noted that document
89 contains the individual votes of the Member States expressed in the context of the comitology procedure that led to the adoption of Implementing Regulation 2020/2087. Moreover, document
91 contains the individual votes of the Member States expressed in the context of the comitology procedure concerning the extension of the approval period for, inter alia, the active substance mancozeb. Documents
90 and 92 contain the individual votes of the Member States expressed in the context of the comitology procedure concerning the extension of the approval period for, inter alia, the active substance cypermethrin.
81      As the applicant rightly submits, in the context of the examination procedure, the votes of the Member States are the expression of their sovereign rights and the qualified majority vote in which the Member States take part leads to the adoption of regulations such as those concerning the non-renewal of the active substances referred to in paragraph 81 above (see, to that effect, judgment of 14 June 2023, Covington & Burling and Van Vooren v Commission, T‑201/21, not published, under appeal, EU:T:2023:333, paragraph 40).
82      However, the votes of the Member States were cast within the PAFF Committee in the context of an examination procedure, governed by Article 5 of the Comitology Regulation, in order to enable the Commission to draw up a position on the basis of the positive or negative opinion delivered by that committee, before the draft acts concerning the non-renewal of the active substances referred to in paragraph 81 above were submitted for approval (see, to that effect, judgment of 14 June 2023, Covington & Burling and Van Vooren v Commission, T‑201/21, not published, under appeal, EU:T:2023:333, paragraph 41).
83      Moreover, in a comitology procedure such as that in question in the present case, there is always an opinion behind any voting behaviour. Therefore, the individual votes of the Member States reflect the individual positions on which they are based. Distinguishing between ‘votes’ and ‘opinions’ would thus render the application of the second subparagraph of Article 4(3) of Regulation No 1049/2001 to opinions meaningless (Opinion of Advocate General Szpunar in Commission v Covington & Burling, C‑540/23 P, EU:C:2025:440, point 72).
84      Put another way, the outcome of the individual votes of the Member States cast in the PAFF Committee, in the context of an examination procedure, had an influence on the Commission’s internal decision-making process. It follows that the individual votes of the Member States cast within that committee must be regarded as preparatory acts which it should take into account in its internal decision-making process before the acts concerning the renewal or non-renewal of the active substances referred to in paragraph 81 above are approved (see, to that effect, judgment of 14 June 2023, Covington & Burling and Van Vooren v Commission, T‑201/21, not published, under appeal, EU:T:2023:333, paragraph 42).
85      Consequently, those votes must be regarded as having been cast ‘as part of deliberations and preliminary consultations’ within the Commission.
86      It follows that the conditions of applicability of the second subparagraph of Article 4(3) of Regulation No 1049/2001 are satisfied, such that the exception to the right of access to documents laid down by that provision is applicable to the documents reflecting the individual votes of the Member States within the PAFF Committee.
87      As a result, the first part of the second plea in law must be rejected as unfounded.
The second part of the second plea in law, relating to the application of the second subparagraph of Article 4(3) of Regulation No 1049/2001
88      According to the applicant, the Commission has not demonstrated that disclosure of the second batch of requested documents would seriously undermine the interest protected by the exception laid down in Article 4(3) of Regulation No 1049/2001.
89      In that regard, the applicant submits that the Commission’s argument that the documents reflecting the individual voting positions of the Member States are not included in the list of documents referred to in Article 10(1) of the Comitology Regulation has no bearing on the question whether the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001 can be invoked to refuse disclosure of the second batch of requested documents.
90      Moreover, according to the applicant, the Commission has not demonstrated how disclosure of the second batch of requested documents would have the effect of imposing self-censorship on their authors who could cease to express views exposing the addressees of the documents to risks. Similarly, the Commission has not demonstrated that representatives of the Member States would be reluctant to express their views if they knew that those views would be made public. According to the applicant, that is a hypothetical risk that has not been established by the Commission on the basis of objective evidence.
91      Moreover, according to the applicant, the Commission does not put forward any legal basis to indicate why the alleged collegiality of the PAFF Committee would be affected by the disclosure of the requested documents.
92      The Commission disputes those arguments.
93      The Commission states that the risk that disclosure of the second batch of requested documents would entail is not purely hypothetical. Under the rules applicable to comitology procedures, Member States trust the Commission to respect fully the confidentiality of their individual positions, in order to preserve their capacity to express themselves in a free and unhindered manner within the framework of the deliberations of the PAFF Committee. That is also justified by the ability of the Commission to conduct the preparatory stages of the adoption of the implementing acts efficiently. It adds that public access to the individual votes of the Member States would specifically and actually undermine the decision-making process concerned in that it would have a negative effect on the behaviour of Member States in future comitology procedures.
94      In the present case, like the first subparagraph of Article 4(3) of Regulation No 1049/2001, if the Commission decides to refuse access to a document which it has been asked to disclose on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, it must, in principle, explain how disclosure of that document could specifically and actually undermine the interest protected. Moreover, the risk of undermining that interest must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).
95      It is necessary to ascertain whether the reasons given by the Commission in the contested decision for refusing access to the second batch of requested documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001 are capable of demonstrating that such disclosure could specifically and actually undermine the protection of the decision-making process relating to the non-renewal of the approval of the active substance cypermethrin, as regards documents
90 and 92, and the decision-making process concerning the non-renewal of the approval of the active substance mancozeb, as regards the remainder of the documents in the second batch of requested documents.
96      In that regard, in point 2.2 of the contested decision, in order to justify its refusal to disclose the second batch of requested documents on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001, the Commission puts forward a number of reasons. First, the documents containing the individual votes of Member States are not included in the list of documents to be made publicly available under Article 10 of the Comitology Regulation, as comitology procedures preserve the confidentiality of the individual positions of the Member States. Secondly, disclosure of the second batch of requested documents would put under strain the relationship of trust between Member States and the Commission. Such disclosure would affect the frank exchange of critical opinions between the Member States and the Commission for future deliberations. Thirdly, the second batch of requested documents contains the opinions, doubts or the changes of views of the Member States which, at the end of the decision-making processes concerned, may no longer appear in the final versions of the implementing measures adopted under those decision-making processes. Disclosure of those documents would mean that their authors would take that risk of disclosure into account in the future, to the point where they might be led to practise self-censorship and to cease putting forward any views that might involve the addressee of the document in question being exposed to risk. Fourthly, such disclosure would unsettle the functioning of the PAFF Committee and expose the decision-making process to future external pressure.
97      In that regard, in the first place, the Commission cannot rely on Article 10 of the Comitology Regulation, which has neither the purpose nor the effect of governing the conditions of public access to the documents listed in paragraph 1 of that article, or of establishing a confidentiality rule which should be reconciled with the rules laid down in Regulation No 1049/2001.
98      In the second place, it must be noted that, as regards the need to protect the relationship of trust between the Member States and the Commission, the latter relied on abstract reasoning relating to the maintenance of that cooperation in comitology procedures in general. The negative consequences cited by the Commission in the contested decision are based on the premiss that comitology procedures protect, as regards a request for access to documents, the confidentiality of the individual positions of the Member States. Such a premiss, however, was rejected in paragraph 49 above.
99      In the third place, as regards the possibility that Member States might practise self-censorship and may cease to express an opinion in order to avoid exposing themselves to risks, it should be noted that the Commission has merely put forward general assumptions, which do not establish that disclosure of the requested documents would lead to self-censorship of Member States’ opinions. Indeed, the Commission relies on assumptions or points to a possibility without, however, referring to any concrete evidence capable of demonstrating that representatives of the Member States would be reluctant to express their views.
100    In the fourth place, it should be noted that the reason relating to the existence of external pressure was put forward by the Commission in a general and vague manner. In that regard, the Commission merely states that disclosure of the requested documents would unsettle the functioning of the PAFF Committee and expose the decision-making process to future external pressure, without, however, demonstrating the reality of such consequences. Moreover, it would be possible to use that justification in any decision-making process in any area whatsoever.
101    It follows that the reasons put forward by the Commission in the contested decision cannot justify, in the circumstances of the present case, the application of the exception provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001.
102    Consequently, the second part of the second plea in law must be upheld and, accordingly, the contested decision must be annulled in so far as it refused access to the second batch of requested documents.
The third plea in law, alleging an error of assessment and an error of law in the light of the second indent of Article 4(2) of Regulation No 1049/2001
103    The applicant considers that, in the contested decision, the Commission committed an error of assessment and an error of law when it refused access to the third batch of requested documents on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings and legal advice.
104    In that regard, the applicant recalls that the second indent of Article 4(2) of Regulation No 1049/2001 protects only documents which are either drawn up for the purposes of specific court proceedings or which are the subject of such proceedings; the extent of the exception does not extend to documents which may be used for the purposes of such proceedings.
105    According to the applicant, the third batch of requested documents was not drawn up for the purposes of the specific court proceedings to which the Commission refers, namely the case pending before the Court on the date on which the present action was brought, which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74). The applicant considers that it is clear from the index provided by the Commission that those documents contain the comments made by the Italian Republic, Ireland, the Portuguese Republic and the Federal Republic of Germany within the PAFF Committee between March and June 2020. Thus, those documents predate the bringing of the action on 18 December 2020 in the case which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), and the adoption of the regulation which is the subject of that action. In addition, the third batch of requested documents is not the subject of the proceedings in the case which gave rise to that judgment.
106    Furthermore, the applicant submits that, in the contested decision, the Commission wrongly asserts that the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001 applies to documents the content of which may be used for the purpose of pending court proceedings. Indeed, it follows from the case-law that the requested documents must have a relevant link to court proceedings, with the result that their disclosure would compromise the equality of arms and potentially the ability of the institution to defend itself by, for example, revealing the institution’s position before it had the opportunity to present it in court, even though no similar obligation was imposed on the other party. According to the applicant, the Commission has not demonstrated the existence of such a link.
107    The Commission disputes the applicant’s arguments.
108    Under the second indent of Article 4(2) of Regulation No 1049/2001, the institutions may refuse access to a document where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest in disclosure.
109    Furthermore, it is apparent from the first sentence of Article 4(7) of Regulation No 1049/2001 that, in order to determine whether a document comes within the scope of one of the exceptions to the right of access to documents laid down in paragraphs 1 to 3 of that article, only the content of the document requested is relevant (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 36).
110    In that context, the Court of Justice has
ruled that, irrespective of the identity of the person who requests access to a document, that document may be protected under the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 if it was drawn up in the context of specific court proceedings before a court of the European Union, of a Member State, of an International Organisation or of a third state, or, if that is not the case, if, on the date on which that request is replied to, it has been produced in those court proceedings (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 48).
111    Moreover, according to the case-law, the principles of equality of arms and the sound administration of justice are at the heart of ‘[the] exception [provided for in that article]’. The need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial. However, in order for the exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link with a dispute pending before the Courts of the European Union, in respect of which the institution concerned is invoking that exception (judgment of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 64 and the case-law cited).
112    According to the case-law, the principle of equality requires the institution by which the contested act was issued to be in a position effectively to defend the legality of its actions before the courts. That possibility would be seriously compromised if the institution in question were obliged to defend itself, not only having regard to the pleas in law and arguments raised by the applicant, but also having regard to the positions taken internally concerning the legality of the various options envisaged in the context of the drawing up of the act in question. Accordingly, disclosure of such documents to the public while court proceedings concerning the interpretation and the legality of the act in question are pending could compromise the Commission’s defensive position and the principle of equality of arms, in so far as it would reveal the internal legal positions of its services on contentious issues even though no similar obligation would be imposed on the other party (see, to that effect, judgment of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 73).
113    Moreover, as regards the sound administration of justice, the exclusion of judicial activities from the scope of the right of access to documents, without any distinction being drawn between the various procedural stages, is justified in the light of the need to ensure that, throughout the court proceedings, the exchange of arguments by the parties and the deliberations of the court concerned in the case before it take place in an atmosphere of total serenity. Disclosure of documents setting out the position defended by an institution in court proceedings would have the effect of exposing judicial activities to external pressure, albeit only in the perception of the public, and would disturb the serenity of the proceedings (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 92 and 93).
114    In the present case, in point 2.3 of the contested decision, the Commission refused access to the third batch of requested documents on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 concerning the protection of court proceedings and legal advice.
115    In that regard, the Commission submits that, at the time of the adoption of the contested decision, first, the action in the case which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), brought by the applicants against Implementing Regulation 2020/2087, was pending before the Court and, secondly, the appeal in the case which has since given rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), brought by those same applicants against the order of 19 March 2021, Indofil Industries (Netherlands) v Commission (T‑742/20 R, not published, EU:T:2021:199), by which the President of the General Court had dismissed the application for suspension of operation of Implementing Regulation 2020/2087, was pending before the Court of Justice.
116    In addition, the Commission considers that, although the third batch of requested documents does not, as such, form part of the two sets of proceedings relating to the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), those documents contained views that were directly related to those cases. Thus, according to the Commission, disclosure of those documents could have seriously undermined the proper course of justice and there would have been a real and non-hypothetical risk that such disclosure would seriously affect the protection of court proceedings relating to those cases.
117    In that regard, it must be pointed out that the third batch of requested documents was not drawn up solely for the purposes of the court proceedings relating to the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74).
118    It is therefore necessary to examine whether the third batch of requested documents has a relevant link with the court proceedings relating to the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74) and, therefore, whether disclosure of those documents could have undermined the principle of the sound administration of justice and the principle of equality of arms between the parties.
119    In that regard, first, the third batch of requested documents contains the views of certain Member States exchanged in the context of the comitology procedure which led to the adoption of a number of Commission implementing regulations, including Implementing Regulation 2020/2087.
120    Secondly, in the case which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), the applicants called into question the validity of the comitology procedure which led to the adoption of Implementing Regulation 2020/2087. In particular, in their first plea in law, the applicants claimed that the decision of the PAFF Committee, in which the Member States sat, was based on an incomplete assessment of the risks of mancozeb, the active substance covered by Implementing Regulation 2020/2087.
121    Thirdly, according to the case-law, once access to a document held by an institution has been granted to a person, that person is not prohibited from disclosing that document to another person, nor, where appropriate, from making it public (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 41).
122    Thus, if the third batch of requested documents had been disclosed, the applicants in the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), could have had access to the views of various Member States exchanged within the PAFF Committee, and therefore during the comitology procedure which had led to the adoption of Implementing Regulation 2020/2087.
123    Implementing Regulation 2020/2087 is the very subject
matter of the actions which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74). Moreover, some of the arguments put forward by the applicants in the action which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), concern the validity of that comitology procedure and in particular the decision of the PAFF Committee, in which the Member States sat.
124    Therefore, if the third batch of requested documents had been disclosed, the applicants in the case which gave rise to the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), would have had access to information which was closely connected to the legal aspects of the actions in the cases giving rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74).
125    In addition, the Commission communicated to the applicants in the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74), information relating to the defensive position which it had drawn up in the context of those pending actions even though no similar obligation was imposed on the applicants in question.
126    Furthermore, if the third batch of requested documents had been disclosed, the views of the Member States contained therein could have been open to public debate, which could have been used by third parties to exert external pressure on the court proceedings relating to the cases which gave rise to the order of 16 July 2021, Indofil Industries (Netherlands) v Commission (C‑276/21 P(R), not published, EU:C:2021:634), and the judgment of 15 February 2023, UPL Europe and Indofil Industries (Netherlands) v Commission (T‑742/20, EU:T:2023:74). That could have disturbed the serenity of the proceedings before the General Court and the Court of Justice.
127    Therefore, disclosure of the third batch of requested documents could have seriously undermined the principle of the sound administration of justice and the principle of equality of arms between the parties.
128    As a result, the Commission was right to consider that disclosure of the third batch of requested documents could have undermined the protection of court proceedings, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001. Accordingly, the third plea in law must be rejected as unfounded.
The fourth plea in law, alleging an error of assessment and an error of law which resulted in the misapplication of the overriding public interest test and a failure to state reasons in the light of the second paragraph of Article 296 TFEU and Article 41 of the Charter
129    In the alternative, even if, in the contested decision, the Commission did not commit an error of assessment or an error of law when it refused access to all of the requested documents on the basis of Article 4(2) and (3) of Regulation No 1049/2001, the applicant considers that there is an overriding public interest justifying disclosure of the requested documents.
130    In the first place, the applicant relies on the fact that all of the requested documents have a link with the comitology procedure in order to justify the existence of an overriding public interest in disclosure of those documents. According to the applicant, a comitology procedure must, by its very nature, be open to public scrutiny in order to ensure greater transparency in the control exercised by the Member States over the adoption of delegated acts, strengthen the democratic legitimacy of the European Union and ensure that those States take responsibility for their own positions. According to the applicant, if the public has access only to the information published in the comitology register, it will not be able to participate effectively in the decision-making process concerned. In particular, as regards the decision-making process concerning the non-renewal of the approval of the active substance cypermethrin which had not been completed at the time of drafting its statement of modification, the applicant claims that it was not possible to know when the discussions on that renewal would resume. The applicant considers that the publication of information in the comitology register is not sufficient to meet the requirement for public access to documents while at the same time preserving the capacity of the members to express their position free from external pressure.
131    In the second place, the applicant relies on the protection of public health and the environment to demonstrate that there are overriding interests justifying disclosure of all the requested documents. The applicant submits that the use of plant protection products containing the active substances cypermethrin and mancozeb poses a high risk to public health and the environment. Thus, according to the applicant, the procedures for renewing the approval of those active substances necessarily involve an assessment of ‘actual or foreseeable’ emissions into the environment.
132    The Commission disputes the applicant’s arguments.
133    Article 4(2) and (3) of Regulation No 1049/2001 provides for exceptions to the principle of access to documents in so far as there is no overriding public interest in disclosure of the documents requested.
134    In the present case, in point 3 of the contested decision, the Commission considers that there is no overriding public interest linked to the alleged legislative nature of those documents or to the protection of the environment and which could justify disclosure of all the requested documents, namely the first, second and third batches of those documents.
135    In the first place, as regards the first and second batches of requested documents, the Commission infringed the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001 by refusing to disclose the requested documents on the ground that to do so would seriously undermine the decision-making process. Thus, there is no need to examine the question of whether there is an overriding interest justifying disclosure of the first and second batches of requested documents.
136    However, as regards the third batch of requested documents, it follows from the examination of the third plea in law that the Commission was right to consider that disclosure of those documents would have undermined the protection of court proceedings within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001.
137    Thus, in the present case, the question is whether, as the applicant claims, there is an overriding interest justifying disclosure of the third batch of requested documents linked to the alleged legislative nature of those documents or to the protection of the environment.
138    First, as regards the question of the existence of an overriding public interest justifying disclosure of the third batch of requested documents linked to the alleged legislative nature of those documents, recital 6 of Regulation No 1049/2001 provides that wider access should be granted to documents in cases where the institutions are acting in their legislative capacity, including under delegated powers, while at the same time preserving the effectiveness of the institutions’ decision-making process and that such documents should be made directly accessible to the greatest possible extent.
139    Article 12(1) of Regulation No 1049/2001 provides that the institutions are, as far as possible,
to make documents directly accessible to the public. In particular, under Article 12(2) of that regulation, legislative documents, that is to say, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, should, subject to Articles 4 and 9, be made directly accessible.
140    In that regard, it follows from recital 6 of Regulation No 1049/2001 that the considerations that that regulation enshrines the right of the public to full disclosure of the requested documents, the only means of limiting that right being the strict application of the exceptions provided for in Regulation No 1049/2001, are clearly of particular relevance where those documents are part of the European Union’s legislative activity.
141    According to the case-law, openness contributes to strengthening democracy by allowing citizens to scrutinise all the information which has formed the basis of a legislative act. In that regard, the possibility for citizens to find out the considerations underpinning legislative action is a precondition for the effective exercise of their democratic rights (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46, and of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 33).
142    Moreover, according to the case-law, it is apparent from Article 12(2) of Regulation No 1049/2001, which implements the principle derived from recital 6 thereof, that not only acts adopted by the EU legislature, but also, more generally, documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States, fall to be described as ‘legislative documents’ and, consequently, subject to Articles 4 and 9 of that regulation, must be made directly accessible (judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 85).
143    Furthermore, according to the case-law, the person intending to object to a reason for refusing disclosure must assert the existence of a public interest capable of prevailing over that reason and, moreover, demonstrate precisely that, in the particular case, disclosure of the documents concerned would contribute specifically to ensuring the protection of that public interest to the extent that the principle of transparency prevails over the protection of the interests that provided the basis for the refusal to disclose, namely, in the present case, the protection of court proceedings (see, to that effect, judgment of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 52).
144    In the present case, in point 3 of the contested decision, the Commission considers that the applicant cannot merely rely on general considerations such as the legislative nature of the requested documents to justify the existence of an overriding public interest in disclosure of those documents. According to the Commission, in the present case, the principle of transparency must not prevail over the protection of court proceedings. In particular, the Commission submits that it publishes a large number of documents relating to the work of comitology committees.
145    In that regard, it should also be recalled that the third batch of requested documents contains the views of certain Member States exchanged in the context of the comitology procedure which led to the adoption of Implementing Regulation 2020/2087.
146    Thus, such documents are exchanged in the context of a comitology procedure which led to the adoption of an implementing regulation which the parties themselves describe as ‘binding for the Member States’.
147    Therefore, the third batch of requested documents contains ‘documents drawn up or received in the course of procedures for the adoption of acts which are legally binding in or for the Member States’ which should be made directly accessible pursuant to Article 12(2) of Regulation No 1049/2001.
148    Indeed, as the Commission rightly points out, under Article 10(1) of the Comitology Regulation, it is required to publish in the register of comitology committee proceedings and thus to make directly accessible a number of documents resulting from the comitology procedure (in particular the agendas of committee meetings, the summary records of committee proceedings, the draft implementing acts on which the committees are asked to deliver an opinion, the voting results within those committees, the final draft implementing acts following delivery of the opinion of the committees and information concerning the adoption of those final drafts).
149    Nevertheless, it should be noted that Article 12(2) of Regulation No 1049/2001 provides that the documents to which it refers should be made directly accessible ‘subject to Articles 4 and 9 [of that regulation]’.
150    In the present case, as stated in paragraph 131 above, it must be noted that the Commission was right to consider that disclosure of the third batch of requested documents would have undermined the protection of court proceedings, within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001.
151    Therefore, according to the case-law referred to in paragraph 143 above, it is for the applicant intending to object to that reason for refusing disclosure to demonstrate precisely that, in the present case, disclosure of the third batch of requested documents would contribute specifically to ensuring the protection of an overriding interest linked to the legislative nature of those documents to such an extent that the principle of transparency would prevail over the protection of the interests that provided the basis for the refusal to disclose, namely, in the present case, the protection of court proceedings.
152    In the present case, the applicant merely puts forward general considerations relating to the existence of an overriding interest linked to the legislative nature of all the requested documents. It does not demonstrate precisely that, in the present case, the principle of transparency is particularly pressing, which would justify that principle prevailing over the protection of court proceedings as regards the third batch of requested documents.
153    Consequently, the existence of an overriding public interest justifying disclosure of the third batch of requested documents linked to the alleged legislative nature of those documents has not been established.
154    Secondly, as regards the question of the existence of an overriding public interest linked to the protection of the environment justifying disclosure of the third batch of requested documents, in respect of the scope of 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; ‘the Aarhus Regulation’), on which the applicant relies, it should be noted that Article 1(1)(b) of that regulation provides that its objective is to ensure the widest possible systematic availability and dissemination of environmental information held by EU institutions and bodies.
155    The Aarhus Regulation therefore applies to environmental information held by EU institutions, bodies, offices and agencies.
156    Article 2(1)(d) of the Aarhus Regulation defines environmental information.
157    In particular, Article 2(1)(d)(iii) of the Aarhus Regulation provides that ‘environmental information’ within the meaning of that regulation means any information in written form on measures such as policies and legislation affecting or likely to affect environmental elements and factors affecting or likely to affect those elements as well as measures or activities designed to protect those elements.
158    In the present case, in point 3 of the contested decision, the Commission states that it did indeed assess the request for access to documents submitted by the applicant on the basis of both Regulation No 1049/2001 and the Aarhus Regulation. However, in its view, the Aarhus Regulation does not establish a system of access to documents that would derogate from the system put in place by Regulation No 1049/2001. The Commission points out that, under Article 3 of the Aarhus Regulation, Regulation No 1049/2001 is to apply to any request for access to environmental information held by EU institutions, bodies, offices or agencies. According to the Commission, Article 6 of the Aarhus Regulation lays down specific rules regarding the application of exceptions to the principle of access to documents provided for in Article 4 of Regulation No 1049/2001. The grounds for refusal as regards access to environmental information should be interpreted restrictively. According to the Commission, the individual positions of the Member States contained in the requested documents cannot be considered to be information relating to
‘emissions into the environment’. Nor, moreover, do they constitute a ‘measure affecting or likely to affect the environment’ in accordance with Article 2(1)(d)(iii) of the Aarhus Regulation. Thus, since Article 6(1) of the Aarhus Regulation provides for the existence of an overriding interest only where the Commission refuses access to information on emissions, the existence of such an overriding interest has not been established in the present case. Lastly, the Commission also argues that the requested documents cannot be considered to contain environmental information within the meaning of Article 2(1)(d) of the Aarhus Regulation.
159    In that regard, it should be recalled that the third batch of requested documents contains the views of certain Member States exchanged in the context of the comitology procedure which led to the adoption of Implementing Regulation 2020/2087.
160    It should be noted that Implementing Regulation 2020/2087 concerning the renewal of the approval of the active substance mancozeb, which is a fungicide used to combat a variety of fungal pathogens affecting a wide range of crops, has a significant impact on the health and environment of European citizens.
161    Thus, first, Implementing Regulation 2020/2087 may be classified as a ‘measure affecting or likely to affect the environment’ in accordance with Article 2(1)(d)(iii) of the Aarhus Regulation.
162    Secondly, the third batch of requested documents contains the views of certain Member States exchanged in the context of the comitology procedure which led to the adoption of a ‘measure affecting or likely to affect the environment’.
163    Thus, the third batch of requested documents must be considered to contain environmental information within the meaning of Article 2(1)(d) of the Aarhus Regulation.
164    Consequently, in point 3 of the contested decision, the Commission was wrong to consider that the third batch of requested documents did not contain environmental information within the meaning of Article 2(1)(d) of the Aarhus Regulation and therefore did not fall within the scope of that regulation.
165    As regards the application of the Aarhus Regulation to a request for access to documents, it should be noted that Article 3 of that regulation provides that Regulation No 1049/2001 is to apply to any request for access to environmental information held by EU institutions and bodies.
166    In that regard, recital 15 of the Aarhus Regulation specifies that the exceptions provided for in Article 4 of Regulation No 1049/2001 should apply subject to any more specific provisions in the Aarhus Regulation concerning requests for environmental information. The grounds for refusal as regards access to environmental information should be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions in the environment.
167    Moreover, according to the case-law, although, pursuant to Article 3 of the Aarhus Regulation, Regulation No 1049/2001, and in particular Article 4 thereof, is to apply to any request by an applicant for access to environmental information held by EU institutions, Article 6 of the Aarhus Regulation adds more specific rules concerning such requests which in part favour and in part restrict the access to the documents (see judgment of 13 July 2017, Saint-Gobain Glass Deutschland v Commission, C‑60/15 P, EU:C:2017:540, paragraph 65 and the case-law cited).
168    More specifically, the second sentence of Article 6(1) of the Aarhus Regulation states that the grounds for refusal based on the exceptions set out in Article 4 of Regulation No 1049/2001 other than those set out in the first and third indents
of Article 4(2) of that regulation, are to be interpreted in a restrictive way ‘taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment’.
169    Such a strict interpretation of the exceptions provided for in Article 4 of Regulation No 1049/2001 is already provided for in the general case-law relating to that regulation, as is apparent from paragraph 20 above, and, therefore, in the case-law specific to the second indent of Article 4(2) of that regulation, with which the Commission has complied.
170    In the present case, the applicant merely puts forward general considerations relating to the existence of an overriding interest linked to the protection of the environment in all the requested documents. It does not demonstrate precisely that, in the present case, the principle of transparency is particularly pressing, which would justify that principle prevailing over the protection of court proceedings as regards the third batch of requested documents.
171    Consequently, the existence of an overriding public interest linked to the protection of the environment justifying disclosure of the third batch of requested documents has not been established.
172    Moreover, it should be noted that, in point 3 of the contested decision, the Commission sufficiently explained why it considered that, in the present case, there was no overriding public interest justifying disclosure of the third batch of requested documents.
173    Lastly, it should be borne in mind that, under the first paragraph of Article 21 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 of that statute and Article 76(d) of the Rules of Procedure of the General Court, the application must contain the subject matter of the dispute, the pleas in law and arguments relied on and a brief statement of those pleas in law. Those elements must be sufficiently clear and precise to enable the defendant to prepare its defence and the General Court to rule on the application, if necessary without any further information. In order to guarantee legal certainty and sound administration of justice it is necessary, in order for an action to be admissible, that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the application itself (see, to that effect, order of 28 April 1993, De Hoe v Commission, T‑85/92, EU:T:1993:39, paragraph 20 and the case-law cited). The application must, accordingly, specify the nature of the grounds on which it is based, with the result that a mere abstract statement of the grounds does not satisfy the requirements of the Rules of Procedure (see judgment of 25 March 2015, Belgium v Commission, T‑538/11, EU:T:2015:188, paragraph 131 and the case-law cited).
174    In the present case, no arguments have been put forward by the applicant in support of its claim relating to a failure to state reasons in the light of the second paragraph of Article 296 TFEU and Article 41 of the Charter. The applicant merely refers to a failure to state reasons in the heading of the present plea and fails to specify how the Commission infringed that right. Thus, that claim does not comply with the requirements laid down in Article 76(d) of the Rules of Procedure.
175    Accordingly, the fourth plea in law must be rejected as, in part, unfounded and, in part, inadmissible.
The fifth plea in law, alleging an error of law in that the contested decision is based on the Standard Rules of Procedure, which are inapplicable under Article 277 TFEU
176    In the alternative, the applicant submits that, if
Article 10(2) and Article 13(2) of the Standard Rules of Procedure were to be interpreted as meaning that the positions of Member States and the results of votes are confidential, it should be considered that the Commission erred in law when adopting the Standard Rules of Procedure, since those provisions are unlawful.
177    In that regard, the applicant submits that it is apparent from Article 9(2) of the Comitology Regulation that Regulation No 1049/2001 applies to committee documents, in particular Article 2
of Regulation No 1049/2001, which provides for a right of access to committee documents, without providing for any exception for Member State positions and voting results.
178    Thus, according to the applicant, Article 10(2) of the Standard Rules of Procedure, which provides that the summary record of committee proceedings must not mention the individual positions of Member States, and Article 13(2) of those rules, which provides that the discussions of committees are confidential, infringe Article 9(2) of the Comitology Regulation and Article 2 of Regulation No 1049/2001.
179    Therefore, pursuant to Article 277 TFEU, the applicant claims that the Standard Rules of Procedure are inapplicable in the present case and considers that the contested decision is vitiated by an error of law in so far as it is based on the Standard Rules of Procedure which are inapplicable.
180    The Commission disputes those arguments.
181    In the present case, it should be noted that the applicant’s arguments are ineffective. As is apparent from the contested decision, so far as concerns the third batch of requested documents, the Commission refused access to those documents solely on the basis of provisions of Regulation No 1049/2001, in particular the second indent of Article 4(2) of Regulation No 1049/2001, and not on the basis of provisions of the Standard Rules of Procedure. Moreover, with regard to the first and second batches of requested documents, in respect of which the Commission referred to provisions of the Standard Rules of Procedure in the contested decision, it should be recalled that that decision is annulled in so far as it concerns the first and second batches of requested documents, as is apparent from paragraphs 73 and 105 above.
182    Consequently, the fifth plea in law must be rejected as ineffective.
General conclusion
183    In the light of all the foregoing, the action must be upheld in part and the contested decision annulled in part in so far as it refuses access to the first and second batches of requested documents on the basis of the first and second subparagraphs of Article 4(3) of Regulation No 1049/2001. The action must be dismissed as to the remainder.
Costs
184    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.
185    In the present case, since the Commission has been largely unsuccessful, it must be ordered, in addition to bearing its own costs, to pay all the costs incurred by the applicant, in accordance with the form of order sought by the applicant.
On those grounds,
THE GENERAL COURT (Ninth Chamber),
hereby:
1.      Annuls Commission Decision C(2021) 5499 final of 19 July 2021, by which the Commission refused ClientEarth AISBL access to certain documents relating to the approval of the active substances mancozeb and cypermethrin, in so far as it refuses access, first, to documents 27 to 85, 87 and 88 and to certain parts of documents 21 to 25 and 86 and, secondly, to documents 3 to 10, 12 to 14, 17, 19, 20 and 26 and to certain parts of documents 11, 15, 16, 21 to 25, 89 to 92 on the basis of the first and second subparagraphs 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;
2.      Dismisses the action as to the remainder;
3.      Orders the European Commission to pay the costs.
Truchot
Kanninen
Sampol Pucurull
Delivered in open court in Luxembourg on 25 March 2026.
V. Di Bucci
M. van der Woude
Registrar
President
*      Language of the case: English.