However, where an institution refuses to grant access to a document and does so in reliance on reasons which are based on an exception whose applicability is not disputed, there is no ground for maintaining that, in order to assess the lawfulness of those reasons, the General Court is obliged to order, as a matter of course, production of the whole of the document in respect of which access is sought. The General Court may decide, acting within the margin of discretion it enjoys in the assessment of evidence, whether, in a specific case, it is necessary, for the purpose of examining the merits of the reasons on the basis of which an institution has refused access to the document concerned, for that document to be produced before it.

When an applicant challenges the lawfulness of a decision refusing him access to a document on the basis of one of the exceptions provided for by Article 4 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents, claiming that the exception relied on by the institution concerned was not applicable to the document requested, the Courts of the European Union are obliged to order production of the document and to examine it, if they are to ensure the applicant’s judicial protection. Indeed, if they have not themselves consulted the document concerned, those Courts will not be in a position to assess in the specific case whether access to the document could validly be refused by that institution on the basis of the exception relied on or, consequently, to assess the lawfulness of a decision refusing access to that document.

It does not follow from either Article 4 or Article 9 of Regulation No 1049/2001 regarding public access to European Parliament, Council and Commission documents that the fact that a document has not previously been classified pursuant to Article 9(1) prevents an institution from refusing access to that document on the basis of Article 4.

First, Article 9 of that regulation is intended merely to provide for special treatment — in particular with regard to the persons responsible for processing applications for access to documents of the institutions — for documents regarded as sensitive and classified as ‘très secret/top secret’, ‘secret’ or ‘confidentiel’ in accordance with the rules of the institution concerned, which protect essential interests of the European Union or of one or more of its Member States in the areas covered by Article 4(1)(a) of Regulation No 1049/2001. Second, Article 4 of the regulation permits the institutions to refuse access to a document in order to prevent disclosure of the document from undermining one of the interests protected by that provision, the risk of the interest being undermined having to be reasonably foreseeable and not purely hypothetical and the institution concerned being required to explain how disclosure of that document could specifically and actually undermine the interest protected by such an exception.

In that context, the fact that an institution considers a document to be ‘sensitive’ within the meaning of Article 9 of Regulation No 1049/2001 cannot, on its own, justify applying to that document the exceptions provided for in Article 4(1)(a) of that regulation. Similarly, and conversely, the mere fact that a document is not classified as ‘sensitive’ within the meaning of Article 9 of Regulation No 1049/2001 cannot prevent the exceptions provided for in Article 4(1)(a) thereof from applying, unless the latter provision is to be deprived of all practical effect.

(see paras 41, 43-47)