OPINION OF ADVOCATE GENERAL
EMILIOU
delivered on 27 June 2024 (1)
Case C‑726/22 P
European Commission
v
Pollinis France
(Appeal – Access to documents – Regulation (EC) No 1049/2001 – Refusal to grant access – Guidance document on the risk assessment of plant protection products on bees – Comitology – Matter where the decision has not been taken – Decision-making process – Individual position of the Member States – Risk of seriously undermining the decision-making process)
I. Introduction
1. Collaboration permeates all realms of life and species, from human beings to humble bumblebees.
2. Viewed through this lens, the complex dynamics of comitology procedures in the European Union bear a striking resemblance to those found within a beehive. The European Commission (which could be likened to the queen bee for this specific analogy) is tasked with exercising its implementing powers to adopt new implementing acts. For their part, the comitology committees (the bees) engage in a collective effort to help ‘pollinate’ the decision-making process. While such synergy usually assists the Commission in achieving its objective, the best-laid plans (of bees and men) do not always lead to their intended conclusion. (2)
3. The present case draws upon those reflections. By its appeal, the Commission asks the Court of Justice to set aside the judgment of the General Court in Pollinis France v Commission, (3) by which it annulled two Commission decisions refusing to grant Pollinis France (4) access to documents pertaining to a guidance document prepared by the European Food Safety Authority (EFSA) concerning the risk assessment of plant protection products on bees (‘the 2013 Guidance Document’). More specifically, the Commission challenges the conclusion of the General Court, in the case at hand, that the documents requested by Pollinis France related to a matter where the decision had been taken, arguing that the decision-making process at issue was still ongoing when those decisions were adopted.
4. Accordingly, the present appeal offers an opportunity to clarify the scope of the exception set out in the first subparagraph of Article 4(3) of Regulation (EC) No 1049/2001 on access to documents. (5)
II. Legal framework
A. Regulation No 1049/2001
5. The first subparagraph of Article 4(3) of Regulation No 1049/2001 (concerning ‘Exceptions’) reads as follow:
‘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, shall 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.’
B. The Standard Rules of Procedure for Committees
6. Article 9 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, (6) states:
‘1. Each committee shall adopt by a simple majority of its component members its own rules of procedure on the proposal of its chair, on the basis of standard rules to be drawn up by the Commission following consultation with Member States. …
…
2. The principles and conditions on public access to documents and the rules on data protection applicable to the Commission shall apply to the committees.’
7. Article 10(2) of the Standard Rules of Procedure for Committees – Rules of procedure for the [name of the committee] committee (7) states:
‘… the chair shall be responsible for drawing up a summary record briefly describing each item on the agenda and the results of the vote on any draft implementing act submitted to the committee. The summary record shall not mention the individual position of the members in the committee’s discussions.’
8. Article 13 of the Standard Rules of Procedure reads of follows:
‘1. Requests for access to committee documents shall be handled in accordance with [Regulation No 1049/2001] …
2. The committee’s discussions shall be confidential.
3. Documents submitted to members of the committee, experts and representatives of third parties shall be confidential, unless access is granted to those documents pursuant to paragraph 1 or they are otherwise made public by the Commission.
…’
III. Background to the dispute
9. The background to the dispute is set out in detail in paragraphs 2 to 14 and 48 to 52 of the judgment under appeal. The circumstances that are relevant to this Opinion may be summarised as follows.
10. In 2013, the EFSA prepared the 2013 Guidance Document. That document was submitted thereafter by the Commission to the Standing Committee on Plants, Animals, Food and Feed (‘the SCoPAFF’), which is a comitology committee chaired by the Commission, with a view to its adoption. However, a lack of consensus amongst the Member States on that document’s text hindered its adoption.
11. In 2018, the Commission proposed to implement certain parts of the 2013 Guidance Document by amending the uniform principles laid down in Commission Regulation (EU) No 546/2011. (8) Accordingly, it submitted a draft regulation amending Regulation No 546/2011 to the SCoPAFF for an opinion, with the view to its adoption. Although the SCoPAFF provided a positive opinion, the Commission was not able to adopt that act because the European Parliament opposed its adoption in 2019.
12. In March 2019, the Commission asked the EFSA to revise the 2013 Guidance Document in order to take account of scientific developments since 2013.
13. On 27 January 2020, on the basis of Regulation No 1049/2001 and Regulation (EC) No 1367/2006, (9) Pollinis France lodged a request with the Commission for access to certain documents relating to the 2013 Guidance Document. By Commission Decision C(2020) 4231 final of 19 June 2020 (the first contested decision), the Commission granted partial access to one document, but refused access to all others referred to in that request, invoking the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001.
14. On 8 April 2020, Pollinis France lodged a second request for access to certain documents concerning that same guidance document. By Commission Decision C(2020) 5120 final of 21 July 2020 (the second contested decision), the Commission granted partial access to four documents, but refused access to all others referred to in that request under the same exception provided for in Regulation No 1049/2001.
15. In those contested decisions, the Commission stated that, pending the finalisation of the revision of the 2013 Guidance Document by the EFSA, its examination within the SCoPAFF was ‘halted’. It clarified, moreover, that the plan to adopt the 2013 Guidance Document would resume once the EFSA had completed its revision.
IV. Procedure before the General Court and the judgment under appeal
16. Pollinis France brought an action under Article 263 TFEU before the General Court, seeking the annulment of the contested decisions. In its application, it raised four pleas in law. In its first and second pleas, it alleged an infringement of Article 4(3) of Regulation No 1049/2001. In its third plea, Pollinis France alleged an infringement of Article 6(1) of Regulation No 1367/2006. Its fourth plea alleged a misapplication of Article 4(1)(b) and (6) of Regulation No 1049/2001.
17. By the judgment under appeal, the General Court upheld Pollinis France’s first plea, whilst considering it unnecessary to examine its second and third pleas. The General Court also briefly examined the fourth plea but dismissed it as ineffective. Accordingly, the General Court annulled the contested decisions and ordered the Commission to bear the costs.
V. Procedure before the Court of Justice and the forms of order sought
18. In its appeal, the Commission requests the Court to set aside the judgment under appeal, and order Pollinis France to pay the costs.
19. For its part, Pollinis France asks the Court to dismiss the appeal and order the Commission to pay the costs.
20. On 26 June 2023, the Commission submitted a reply and, on 27 July 2023, Pollinis France submitted a rejoinder.
VI. Assessment
21. The Commission raises two grounds of appeal, alleging several errors of law in the General Court’s interpretation and application of the first subparagraph of Article 4(3) of Regulation No 1049/2001, which lays down one of the exceptions to the right of Union citizens and residents to access documents of the EU institutions (‘the exception at issue’). It states that ‘access to a document, drawn up by an institution for internal use …, which relates to a matter where the decision has not been taken by the institution, shall 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’.
22. The first ground, directed against paragraphs 54 to 61 of the judgment under appeal, alleges an error in the interpretation of the concept of ‘matter where the decision has not been taken’. The second ground of appeal, directed against paragraphs 85 to 138 of that judgment, alleges that the General Court erred in its consideration of whether disclosure of the documents requested would ‘seriously undermine the institution’s decision-making process’.
A. First ground of appeal
1. Arguments of the parties
23. By its first ground, the Commission contends that the General Court erred in law by applying a narrow interpretation of the concept ‘matter where the decision has not been taken’, within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001, to matters that are imminently submitted for deliberation, and to situations in which the institution in question is immediately called on to adopt an identifiable draft act.
24. Furthermore, the Commission submits that the General Court mistakenly considered the defined content of the guidance document being revised by the EFSA and the forms of its possible adoption as being relevant to that concept, but failed to appreciate the importance of the objective pursued by the institution concerned.
25. In its view, the concept ‘matter where the decision has not been taken’ must be understood as referring to the exercise by that institution of its competence and the intended outcome of its action. That interpretation thus encompasses amendments to the content or strategy adopted in order to achieve its objective, including changes in the adoption procedure. In that regard, the decision to ask the EFSA to revise the 2013 Guidance Document manifests its aim to implement a guidance document on bees and represents the exercise of its authority on that matter.
26. The Commission argues, therefore, that such action amounted to one stage in the same, ongoing decision-making process, aimed at finalising a text on which the SCoPAFF could agree as part of the comitology procedure for the purpose of adopting that document. This demonstrates that there was a ‘matter where the decision [had] not been taken’ at the time when the contested decisions were adopted. Accordingly, the Commission is of the view that the General Court’s findings are legally flawed and contradictory.
27. For its part, Pollinis France defends the reasoning followed, and the findings made, by the General Court. It submits that that court’s interpretation of that concept, as well as its understanding of the term ‘decision-making process’, is correctly construed in view of the obligation to interpret the exception laid down in the first subparagraph of Article 4(3) of Regulation No 1049/2001 restrictively.
2. Analysis
28. The focal point of the first ground of appeal concerns the General Court’s interpretation of the expressions ‘matter where the decision has not been taken’ and ‘decision-making process’.
(a) ‘Matter where the decision has not been taken’
29. The term ‘matter’ is not defined in Article 4(3) of Regulation No 1049/2001. Nor is such a term expressly defined by Article 3 thereof, which includes the definitions. However, considering the ordinary meaning of this term and the corresponding terms included in the various language versions of that regulation, (10) it appears that the term ‘matter’ refers to an issue, question or situation that is being considered by an EU institution.
30. The term ‘matter’ included in the first subparagraph of Article 4(3) of Regulation No 1049/2001 denotes a certain specificity that may not be immediately evident when reading the English version of that regulation. In fact, in that language version, the term ‘matter’ is also used in Article 3 thereof which, for the purposes of the regulation, defines ‘document’ as ‘any content whatever its medium … concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’. (11) However, the vast majority of language versions of the regulation employ two different terms in Articles 3 and 4 of that regulation: whereas the former uses a term with a slightly broader meaning (such as topic, subject or theme), (12) the latter uses a term with a narrower scope and more specific connotation. (13)
31. Therefore, I am not convinced by the Commission’s claim, which underlies many of its arguments, that the term ‘matter’ within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001 should be broadly construed.
32. In that regard, I would also add that, as follows from recitals 1 to 4 of Regulation No 1049/2001, that instrument embodies the principle of openness with respect to the work of the EU institutions, (14) and is aimed at granting the public the fullest possible right of access to documents held by the EU institutions. (15) For that reason, limits placed upon that right must be interpreted and applied strictly. (16) It follows that – as the General Court stated, in essence, in paragraphs 35 to 38 of the judgment under appeal – the terms used in the first subparagraph of Article 4(3) of Regulation No 1049/2001 must be narrowly construed.
33. In addition, in its judgment in Saint-Gobain, the Court rejected the Commission’s claim that the term ‘matter’ could be construed broadly so as to grant confidentiality not only to documents drawn up as part of a decision-making process, but also to those ‘directly relating to matters dealt with in that process’. (17) It also follows from that judgment that, in order properly to understand the meaning of the term ‘matter’, it is useful to interpret it in its proper context and in the light of the objective pursued by the provision in question. (18)
34. Pursuant to the first subparagraph of Article 4(3) of Regulation No 1049/2001, for the exception to apply, it is not sufficient that the matter be under consideration for any reason or purpose. (19) Indeed, that provision refers expressly to matters examined in the context of a series of inter-related actions (‘the institution’s decision-making process’),carried out with the aim of reaching a definitive resolution in that regard (the taking of a ‘decision’).
35. The inextricable link between the terms ‘matter’, ‘decision-making process’ and ‘decision’ is of the utmost importance when identifying the scope of the exception at issue. Indeed, it reflects the overarching objective of that exception: to preserve the effectiveness of the institutions’ decision-making process, and thereby their ability to carry out their tasks. (20)
36. For that reason, I will now turn to the meaning of the terms ‘decision-making process’ and ‘decision’ for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
(b) ‘Decision-making process’ and ‘decision’
37. To begin with, I should point out that those two expressions must be understood in a general and non-technical manner. The expression ‘the institution’s decision-making process’ includes all formal and informal procedures by means of which an institution arrives at a decision in respect of a given matter. Similarly, a ‘decision’ under the first subparagraph of Article 4(3) of Regulation No 1049/2001 is not confined to ‘decisions’ within the meaning of Article 288 TFEU, but encompasses any resolution to take a specific form of action.
38. Nevertheless, this does not change the fact that those expressions also cannot be interpreted overly broadly, as the Commission suggests.
39. In that respect, I would point out that the status of a given decision-making process (whether ongoing or closed) logically appears to be contingent on whether the activity being conducted is still in progress, or whether the EU institution has taken a specific resolution in respect of a given ‘matter’. Against that background, two questions appear to be immediately relevant. First, what legitimately forms part of a ‘decision-making process’? Second, what constitutes a situation where a ‘decision’ has or has not been taken, thereby determining whether the decision-making process has ended?
40. As regards the first question, the EU Courts have indicated that preparatory work – irrespective of the preliminary character of the information prepared in institutional documents, or the preliminary nature of discussions aimed at achieving consensus – may form part of a given decision-making process. (21) This is because the first subparagraph of Article 4(3) of Regulation No 1049/2001 makes no distinction according to the state of progress of the activity at issue. (22)
41. That said, the EU Courts have also warned that the term ‘decision-making process’ should not be interpreted too broadly so as to cover an entire administrative procedure or every document which relates to a given ‘matter’. Rather, they have held that a decision-making process must be construed as relating to ‘decision-making’,(23) where the institution concerned has a margin of manoeuvre for, amongst other things, deliberation in order to decide on the choices to be made and, depending on the type of process, the potential proposals to be submitted. (24)
42. Therefore, whereas the stage at which decision-making transpires within the framework of the specific process in question is seemingly not a decisive factor, the substantive character of the decision-making itself appears to be so. Accordingly, not everything associated with the taking of a ‘decision’ may be covered by the term ‘decision-making process’. What is important is the existence of a genuine ‘decision-making’ activity in the context of which the documents in question were drawn up or received.
43. Certainly, what amounts to decision-making activity must be determined on a case-by-case basis in the light of the context and procedural steps involved. After all, it is not possible to establish a one-size-fits-all rule that is applicable to any and all decision-making processes at all levels, and which covers any and all interventions or activities.
44. However, the existence of such a margin of manoeuvre inherently underscores the fact that discussions, evaluations or other activities must be taking place in order to enable the relevant institution to arrive at a point where a decision can be taken. (25) Without such result-oriented activities, a decision-making process would scarcely qualify as being just that in any meaningful shape or form.
45. At the same time, such decision-making activity presupposes a specific matter that possesses some sort of identifiable content and an indication of the methods by means of which the related decision may be taken. Otherwise, on what basis is ‘decision-making’ meant to be carried out, and with respect to what exactly is a ‘decision’ supposed to be taken? It would be like trying to solve a problem without first knowing what the problem is.
46. To my mind, therefore, in order to identify actual decision-making, the related activities must pertain to a specific matter and demonstrate an endeavour to fulfil the purpose of the relevant process.
47. Of course, this does not imply that the content of the matter at hand, or the method and time frame for the adoption of the related decision, must remain unchanged throughout the decision-making process. As I have just outlined, the relevant institution must have room for manoeuvre within a decision-making process to amend the substance of the measure originally envisaged, change the process or timing for its adoption, or undertake other actions it deems necessary, at its own discretion or in response to the actions of the other institutions and bodies involved in the process. In fact, that flexibility is often vital for achieving consensus, particularly where comitology committees are involved, and is essential for reaching the stage at which a final decision can be taken.
48. Nevertheless, the institution’s room for manoeuvre must not fundamentally alter the nature of the matter at hand. Indeed, the original matter, even if discussed and revised at several stages during the course of a given process, should possess, at the outset and throughout, a core element which serves as the foundation for decision-making. In other words, a reasonable relationship of proximity – in terms not only of content, but possibly also of method for adoption and of objective pursued – must exist between the matter, as originally envisaged, and the one which is subsequently under consideration by the EU institutions and bodies involved.
49. In that regard, any manoeuvring which constitutes a significant departure from the original matter may be regarded as signalling that a decision-making process is closed, and a new one has begun.
50. This leads me to the second, interrelated, question: when does a decision-making process end as a result of a decision on the relevant matter having been taken?
51. Several judgments of the EU Courts appear to be relevant for the purpose of answering this question. To begin with, the General Court’s judgments in Toland v Parliament (26) and PAN Europe v Commission (27) make it clear that a ‘decision’ is not taken until the specific matter of the decision-making process – often in the form of an act or measure – is definitely addressed, rather than still forming part of discussions, evaluations, revisions or other forms of activity which are components of the process.
52. Furthermore, the decision-making processes that exist in certain procedural contexts offer additional insights into identifying the stage at which a ‘decision’ has been taken, and the related process considered closed. A notable example is the Commission’s decision-making process in the context of proposing legislative initiatives.
53. The Commission enjoys the power of legislative initiative, which means that it decides on whether or not to submit a legislative proposal, except where it is obliged to do so under EU law. In that respect, the Commission may undertake a series of steps in the course of preparing a legislative proposal.
54. In that context, the Court has observed that activities such as the preparation of impact assessment reports form part of the Commission’s decision-making process, which takes place upstream of the legislative procedure sensu stricto. (28) Indeed, such actions, which are aimed at forging consensus so as to finalise an official proposal, constitute precisely the ‘decision-making’ element of that process. Once the proposal is approved, the Commission may decide to submit it to the EU legislature, thereby putting an end to the initiative phase and commencing the legislative phase. It is at this stage, therefore, that ‘the decision’ may be regarded as having been taken, effectively bringing the decision-making process concerning a particular legislative initiative to a close. (29)
55. Similarly, the Court has noted that the Commission’s decision to abandon a legislative initiative envisaged puts a definitive end to the planned legislative action, which may not be resumed unless that institution withdraws that decision. As a consequence, the decision not to submit a proposal also clearly marks a decisive juncture – it signifies that a decision in the negative has been made, which, as a result, also brings the decision-making process to a close. (30)
56. In that respect, the transition from decision-making to decision-taking is delineated by the point in time at which the Commission takes the decision to submit its legislative proposal to the EU legislature or decides to withdraw a legislative initiative altogether. (31)
57. To my mind, the findings above are particularly relevant in the context of the Commission’s exercise of its implementing powers, in relation to which the relevant procedural rules generally require the Commission to engage in consultations with a comitology committee. Such actions may often entail the revision of draft texts for the purpose of garnering a favourable opinion from that committee. Here too, those very steps are carried out with a view to a measure’s successful adoption, and constitute the ‘decision-making’ element of the process in question.
58. Hence, one may reasonably conclude that the Commission’s decision-making process ends when the Commission definitively takes a position, one way or another, on the specific matter at hand, by adopting the envisaged measure (as originally proposed or as subsequently amended) or by abandoning it. Once a definitive choice with regard to a given matter is made, the fact that, in the future, similar administrative procedures may be started in which the documents in question may be reused does not preclude the decision-making process in relation to those documents from being closed. (32)
59. In view of the foregoing considerations, I will now examine the arguments raised by the Commission to determine whether the General Court has erred in law.
(c) The General Court’s assessment in the judgment under appeal
60. The General Court’s assessment of whether the decision-making process at issue had been closed centred on whether any decision-making activity with respect to the adoption of the 2013 Guidance Document was still in progress, or whether the decision as to its adoption (or non-adoption) had been taken, at the time when the contested decisions were adopted.
61. In paying particular attention to the deliberations surrounding the 2013 Guidance Document within the SCoPAFF, and the Commission’s subsequent attempt to implement parts of that document by introducing amendments to the uniform principles in Regulation No 546/2011, the General Court determined that the decision-making process with respect to that guidance document could be regarded as ongoing between 2013 and 2019.
62. However, the judgment under appeal, particularly in paragraphs 53 to 57 thereof, indicated that the revision of that document by the EFSA was not part of the same decision-making process. The General Court observed that any examination within the SCoPAFF had been halted, and focused on the fact that both the content of the document under revision and the method of its potential adoption, including the relevant procedure, were highly uncertain. As the revision was in such a preparatory stage, it did not reflect an actual decision-making process, but rather preparations of one yet to come.
63. In that context, the General Court not only indicated that, in its view, decision-making with respect to the 2013 Guidance Document had ceased, but, more importantly, that the Commission no longer had the aim to implement that guidance document and had taken the implicit decision against its implementation when it asked the EFSA to revise its content. On that basis, it held that the decision-making process was no longer ongoing because ‘the decision’ had been taken.
64. The Commission challenges that assessment. However, I find its arguments to be unpersuasive.
65. First, for the reasons that have been explained in point 32 above, I am of the view that the Commission’s general criticism concerning the narrow interpretation, by the General Court, of the terms included in the first subparagraph of Article 4(3) of Regulation No 1049/2001 is unfounded. The General Court’s approach is also in line with the well-accepted principle of interpretation according to which exceptions to, and derogations from, the general scheme or the general rules of a legal instrument are to be interpreted strictly. (33)
66. Second, I do not agree that the General Court restricted the concept of ‘matter where the decision has not been taken’ to matters that are imminently submitted for deliberation, and to situations in which the institution in question is immediately called on to adopt an identifiable draft act.
67. There is nothing in paragraphs 54 to 61 of the judgment under appeal to suggest that the absence of an imminent deliberation with respect to a given draft measure excludes the existence of actual decision-making activities. In particular, in paragraph 56 of the judgment under appeal, the General Court clearly acknowledged that a decision-making process could persist over an extended period, during which time an institution might be actively manoeuvring towards consensus, yet remain relatively far from finalising what will eventually emerge as the definitive act or measure.
68. Those passages of the judgment under appeal simply reaffirm the principle that a decision-making process requires the existence of a specific matter in respect of which decision-making activities are taking place. The end of paragraph 56 of the judgment under appeal is particularly telling in that regard. There, the General Court held that, given the significant uncertainty surrounding the possible content, form and timing of the revised measure, ‘the Commission’s decision-making process was devoid of any object at the time when the contested decisions were adopted’. (34)
69. Third, I do not share the Commission’s view that, in the judgment under appeal, the General Court came to its conclusions regarding the ‘matter’ and the related ‘decision-making process’ on the basis of wrong criteria.
70. As referred to in point 45 above, the existence of a decision-making process presupposes some minimum identifiable content of the decision to be adopted and the possible methods for its adoption. The absence of some core elements of the decision-making process is, in my view, particularly problematic where very specific measures had been put forward for adoption but, despite multiple attempts over a prolonged period, their adoption was finally abandoned.
71. In the light of the foregoing, unlike the Commission, I am of the view that the General Court correctly considered the possible content and form of the measure(s) proposed for adoption as elements which are relevant to establish the presence, in the case at hand, of a ‘matter where the decision has not been taken’.
72. Furthermore, I do not agree that the General Court failed to appreciate the importance of the objective pursued by the institution concerned. Paragraph 57 of the judgment under appeal does not exclude the pertinence of such an element, but only its decisive character. (35)
73. It is true that the purpose of a specific process – its raison d’être so to speak – may be a reliable indicator of its status quo: when the purpose has been achieved, the process is likely to be closed. If not, the process is possibly still ongoing. Nevertheless, that common-sense approach has its logical limits. Indeed, it fails to account for the fact that a decision-making process may also be closed even if its objective has not been achieved, such as when a particular matter is abandoned and not pursued further. As mentioned in the introduction, some plans just go awry and may thus be replaced with new plans or, as the case may be, with no plan at all.
74. That is a fortiori true with regard to matters in relation to which measures may, but need not, be adopted. In fact, that is, in particular, the case of guidance documents under Article 77 of Regulation No 1107/2009. That provision states: ‘the Commission may, in accordance with the advisory procedure … adopt or amend technical and other guidance documents … for the implementation of this Regulation. The Commission may ask the [EFSA] to prepare or to contribute to such guidance documents’. (36)
75. In that respect, far from failing to consider the objective pursued by the Commission, the General Court arrived at that conclusion by distinguishing between that institution’s broad aim of adopting a guidance document on bees and the more specific and targeted objective of adopting or implementing (in whole or in part) the 2013 Guidance Document that had been submitted to the SCoPAFF.
76. This appears to be in line with the General Court’s definition of the ‘matter’ in the case at hand which, for the reasons explained above, I find reasonable.
77. Fourth and last, I do not detect any other error of law with regard to the General Court’s interpretation or application of the concept of ‘matter where the decision has not been taken’.
78. From the outset, I must state that I find the test proposed by the Commission to define that concept – namely, the actual exercise by the institution of its competence and the corresponding purpose of its action – too broad and too vague.
79. Take this present case as an example. If the Commission were correct, so long as a guidance document (in fact, any guidance document) on bees under Article 77 of Regulation No 1107/2009 is not adopted, the decision-making process would be considered to be ongoing. This would mean that there is only a single decision-making process, regardless of the time elapsed, the number and nature of the procedural steps taken along the way, the periods in which there may be no activity taking place at all, and – most significantly – the very content of the two documents.
80. Because of its importance, I will briefly pause on this last element (the content of the envisaged measure). In my view, it is self-evident that two guidance documents on the same topic may, content-wise, be quite different. Indeed, a guidance document should reflect the latest regulatory framework and be based on current scientific and technical knowledge.(37) Given the long duration of the process up until the moment when the contested decisions were adopted, and the fact that the method of preparing the revised document is different, (38) it does not appear unreasonable to assume that the document which the EFSA was commissioned to revise in 2019 may be different (possibly significantly so) from that which the same authority had produced in 2013.
81. Should such an element be regarded, as a matter of principle, as irrelevant for the purposes of the present legal analysis?
82. I do not think so. The Commission itself acknowledges in its reply that ‘the content of a proposal is usually the crux of the debate’. Indeed, I find it highly artificial to consider that a given decision-making process may remain one and the same even when its object, procedure and schedule are profoundly altered. That is especially true when, as I have stated, an institution decides to shelve one proposal and go back to the drawing board.
83. In the light of the above, the key question in this context is the following: what was the matter (understood as the specific question, issue or situation) under consideration by the Commission, and in respect of which it intended to take a ‘decision’, thereby closing the actual ‘decision-making process’?
84. The General Court, on the basis of ‘the particular circumstances of the present cases’, (39) came to the conclusion that the object of the discussions and negotiations, throughout the entire 2013 to 2019 period, was the adoption or partial implementation of the 2013 Guidance Document. Indeed, on the basis of the information provided, or at the very least not contested, by the Commission, the General Court found that, after a particularly lengthy process, (i) the examination of the measure proposed for adoption within the SCoPAFF was (definitely) ‘halted’; (ii) the partial implementation of that measure via the adoption of an alternative measure had also failed; (iii) a new measure was being prepared; and (iv) at that stage, any considerations relating to the possible content, nature, form of adoption and procedure that could be followed for that purpose were ‘hypothetical’.
85. I am ready to accept that, as the Commission emphasises, a mere ‘revision’ of a document which is put up for adoption is, generally, an additional step which belongs to the same decision-making process. However, it cannot be ruled out that what is labelled ‘revision’ might, in some unusual circumstances, go much further than a simple adaptation, improvement or updating of the original document.
86. That is what, according to the General Court, occurred in the present case, in the light of the ‘particular circumstances’ mentioned above. Against that background, I do not find the General Court’s findings concerning what actually constituted the ‘matter’, the ‘decision making-process’ and the ‘decision’ in the case at hand to be vitiated by an error of law. In particular, in so far as the General Court (i) did not err in interpreting the concepts at issue, (ii) considered elements of law and fact that are, in principle, pertinent for the assessment, and (iii) made an overall assessment of those elements that appears to be plausible, I question whether it is appropriate for the Court of Justice to carry out a new comprehensive assessment in that regard in this appeal.
87. To do so would be to shift the Court’s role from verifying the correct interpretation of the law and the legal qualification of facts towards a more facts-oriented form of review. For example, the Court would have to examine, among other things, the following issues: has the Commission, implicitly but necessarily, definitely abandoned the possible adoption of the document as originally envisaged? Is it likely that the revised document might have a reasonable relationship of proximity to the one originally proposed for adoption?
88. In the light of all the above, I conclude that the first ground of appeal should be rejected as unfounded.
89. If the Court of Justice were to agree with my assessment, it would not need to examine the second ground of appeal in order to dismiss the Commission’s appeal, as that ground would be ineffective. Indeed, if the documents in question did not pertain to an ongoing decision-making process then the exception at issue would not be applicable at all. Accordingly, whether or not the General Court has misinterpreted the concept of ‘seriously undermin[ing] the institution’s decision-making process’, as the Commission claims in its second ground of appeal, would be immaterial and could not lead to the setting aside of the judgment under appeal. However, should the Court of Justice disagree with my assessment of the first ground of appeal, I will briefly explain why I am of the view that the second ground of appeal can also be rejected as unfounded.
B. Second ground of appeal
90. By its second ground, the Commission argues that the General Court erred in law in assessing whether disclosure of the requested documents would seriously undermine that institution’s decision-making process within the meaning of the first subparagraph of Article 4(3) of Regulation No 1049/2001.
91. That ground of appeal is divided into two parts. The second part is composed of three complaints.
1. First part
92. The first part of the second ground of appeal raises an issue of interpretation of the contested decisions.
93. The Commission submits that the General Court erred in law by substituting that institution’s statement of reasons in the contested decisions with its own interpretation. It claims that the General Court mistakenly held that that institution had not relied on Regulation No 1049/2001 in order to refuse access to the requested documents, but solely on the Standard Rules of Procedure. In its view, that finding is tantamount to a distortion of facts because it significantly modifies the arguments put forward in the contested decisions and leads to a contradictory reasoning in the judgment under appeal.
94. Like Pollinis France, I too am of the view that the Commission’s argument betrays a misunderstanding of the judgment under appeal.
95. On several occasions, in particular, in paragraphs 62 and 63 of the judgment under appeal, the General Court made it clear that, in the contested decisions, the Commission had relied on the exception set out in the first subparagraph of Article 4(3) of Regulation No 1049/2001. In turn, paragraphs 85 to 90 of the judgment under appeal, concern the manner in which the Commission has relied on the need to protect the confidentiality of the individual position of the Member States, by reference to the provisions of the Standard Rules of Procedure, without however establishing a clear link between those provisions and those set out in Regulation No 1049/2001.
96. On that basis, paragraph 90 of the judgment under appeal, which inter alia states that ‘the Commission did not rely on provisions of Regulation No 1049/2001’, must be understood as referring to the preceding paragraphs in which the General Court clarified the Commission’s reasoning in the contested decisions. It should not be misconstrued as holding that the Commission entirely failed to rely on Regulation No 1049/2001.
97. In fact, in paragraph 107 of the judgment under appeal, the General Court concluded its assessment on whether the Standard Rules of Procedure permit the refusal of access to documents showing the individual position of the Member States in accordance with Regulation No 1049/2001. That conclusion is not based on a failure on the part of the Commission to rely on provisions of that regulation. Rather, it is founded on the combined reading of the two sets of rules.
98. Therefore, I see no substitution of reasoning, nor do I detect any contradictions in that respect. The first part of the second ground should be rejected as unfounded.
2. Second part, first complaint
99. In its appeal, the Commission contends that the General Court mistakenly considered, in paragraphs 91 and 92 of the judgment under appeal, that the Standard Rules of Procedure did not apply to the SCoPAFF because it had not formally adopted its own rules of procedure.
100. In my view, this argument is ineffective. Whether or not the Standard Rules of Procedure were applicable to the procedure carried out within the SCoPAFF is of no relevance.
101. As the General Court correctly held – echoing the similar considerations developed by the European Ombudsman in her decision of 3 December 2019 in response to the complaint submitted by Pollinis France (40) – the Standard Rules of Procedure cannot be interpreted as granting documents a protection that goes beyond what is provided for by Regulation No 1049/2001. (41)
3. Second part, second complaint
102. In the first place, the Commission submits that the General Court erred in law because it rejected the relevance of the comitology rules in the light of Regulation No 1049/2001. It asserts that comitology rules are relevant when evaluating the risk that the disclosure of a document might present for the purposes of the first subparagraph of Article 4(3) of Regulation No 1049/2001. For that reason, the General Court could not depart from existing case-law emphasising the applicability of this legal framework, nor overlook the fact that the rules on confidentiality in the Standard Rules of Procedure reflect the importance attached to the confidentiality of information within committees such as the SCoPAFF. (42)
103. In the second place, the Commission claims that the General Court erred in law because it misinterpreted the comitology rules relied on by the Commission in the contested decisions. More specifically, it submits that the General Court’s assessment in paragraphs 101 to 107 of the judgment under appeal failed to recognise that the individual positions of the Member States in comitology procedures, and the information exchanged within the committees, are considered to be sensitive under those rules. In that respect, the Commission stresses that the importance of confidentiality set out in those rules should not be limited by a narrow interpretation of the term ‘committee’s discussions’ in Article 10(2) and Article 13(2) of the Standard Rules of Procedure. Article 13(3) thereof confirms this point – the Commission argues – since it indicates that documents submitted to members of a given committee during the course of an entire procedure are confidential.
104. In the third place, the Commission contends that the General Court erred in law by misinterpreting the basis of the Commission’s reasoning in the contested decisions regarding the principle of sincere cooperation laid down in Article 4 TEU.
105. Pollinis France disputes all of those claims.
106. I am not convinced by the Commission’s arguments.
107. First, the General Court did not overlook the relevance of the comitology rules for the purposes of Regulation No 1049/2001. In fact, in paragraphs 100 to 105 of the judgment under appeal, it expressly examined the Standard Rules of Procedure invoked by the Commission in the contested decisions to determine their nature and bearing on access to documents under that regulation. On that basis, it found that those provisions did not relate to public access to documents of committees, and did not themselves require such access to be refused under the first subparagraph of Article 4(3) of Regulation No 1049/2001. Accordingly, it did not fail to consider the legal framework governing comitology procedures or to state reasons for its decision.
108. Second, the General Court did not misinterpret the Standard Rules of Procedure relied on by the Commission in the contested decisions. In fact, the Commission’s arguments seem to imply that certain documents, such as those relating to the individual positions of the Member States expressed during committee proceedings, as referenced in Article 10(2) of the Standard Rules of Procedure, should essentially enjoy a general presumption of non-disclosure in view of the confidentiality referred to in the provisions cited.
109. In that regard, it should be recalled that, if an EU institution decides to refuse to grant access to a document based on one of the exceptions contained in Article 4 of Regulation No 1049/2001 – as is apparent in this case – it must explain how access to that document could specifically and actually undermine the interest protected by that exception. Moreover, the risk of the interest being undermined must be reasonably foreseeable and must not be purely hypothetical. (43) However, in certain instances, the EU institutions have been able to rely on a general presumption of non-disclosure to refuse such access. (44)
110. Nevertheless, recognition of a general presumption in respect of a category of documents presupposes that it has first been shown that it is reasonably foreseeable that disclosure of the type of document falling within that category would in fact be liable to undermine the interest protected by the exception in question. Moreover, since general presumptions constitute an exception to the rule that the EU institution concerned is obliged to carry out a specific and individual examination of every document which is the subject of a request for access and, furthermore, to the principle that the public should have the widest possible access to documents held by the EU institutions, they must be interpreted and applied strictly. (45)
111. Accordingly, the individual positions of the Member States in comitology procedures are not covered by the categories of documents which enjoy general presumptions of confidentiality. In fact, as the General Court pointed out in paragraphs 104 and 105 of the judgment under appeal, Article 13 of the Standard Rules of Procedure, when considered in its entirety, establishes that requests for access to committee documents must be handled in accordance with Regulation No 1049/2001, and that the nature of the committee discussions or documents submitted, inter alia to members of the committee, remains confidential unless access is granted to those documents by the Commission. This is further corroborated by the wording of Article 9 of Regulation No 182/2011 which, after laying down the principles according to which the committees adopt their rules of procedure, adds that ‘the principles and conditions on public access to documents … applicable to the Commission shall apply to the committees’.
112. I am, therefore, of the view that the General Court was well within its right to hold that the Standard Rules of Procedure relied on by the Commission in the contested decisions did not exclude the documents requested from the scope of Regulation No 1049/2001. For that reason, that institution was required to explain how the disclosure of the documents requested would have undermined the interest protected by the exception laid down in the first subparagraph of Article 4(3) of that regulation. That finding would remain unchanged even if the term ‘committee’s discussion’ in Article 13(2) of the Standard Rules of Procedure were interpreted broadly to encompass stages of a comitology procedure other than the end phase during which discussions are held.
113. Third, it is apparent from paragraphs 111 to 113 of the judgment under appeal that the General Court did not overlook the fact that reference to cooperation and mutual trust in the contested decisions concerned the Member States and the Commission. In fact, it expressly considered this in its assessment. In any event, the observations in those paragraphs are based on the Commission’s failure to provide the explanations capable of demonstrating how those principles would be harmed by disclosure of the requested documents. The General Court’s conclusions were not reached on the basis of a misinterpretation of the principle of sincere cooperation. (46)
114. In the light of the foregoing, the second complaint of the second part should be rejected as unfounded.
4. Second part, third complaint
115. The Commission also submits that the General Court, in its assessment, examined in isolation the various reasons which that institution had relied on in the contested decisions. That separation was artificial and resulted in a distortion of the Commission’s arguments. In particular, splitting the assessment into three separate sections meant that interrelated arguments which supported the Commission’s claims regarding the risks of disclosure were not duly considered.
116. In addition, the Commission argues that the General Court made an erroneous distinction between the external pressures exerted on the Commission and those exerted on the Member States. This distinction, according to the Commission, was flawed because it failed to recognise that both participate in a single decision-making process within the framework of comitology procedures. Likewise, the General Court failed to take account of the fact that the term ‘standing committees’ in the contested decisions included the SCoPAFF. It was therefore wrong to hold that the reference to external pressures in the contested decisions did not concern the decision-making process within the SCoPAFF.
117. Lastly, the Commission argues that the General Court applied, in paragraphs 119 and 130 of the judgment under appeal, an incorrect legal standard according to which the Commission was required to establish in the contested decisions, first, that the failure of the decision-making process to achieve its aim was due to external pressures and, second, that denying access to the requested documents would have allowed that process to achieve its objective. The Commission contends that the standard applicable requires it only to demonstrate a reasonably foreseeable risk that the decision to be taken would be substantially affected owing to that external pressure.
118. The Commission’s arguments are unconvincing.
119. In paragraph 63 of the judgment under appeal, the General Court pointed out that, in the contested decisions, the Commission had relied ‘in essence, on a set of three related grounds in order to refuse access to the requested documents on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001’. (47) Those grounds are described as follows:
‘According to the Commission, first, comitology procedures maintain the confidentiality of the individual positions of the Member States. Second, disclosure of the positions of the Member States exchanged in a context of confidentiality would compromise cooperation between the Member States and the mutual trust between the Member States and the Commission. … Third, the Commission was, and continues to be, the target of external pressures from various stakeholders with conflicting interests, with the result that disclosure of the requested documents would expose a long and complex decision-making process to additional external pressure. Disclosure of the requested documents would reduce the margin for manoeuvre and the flexibility of the Member States, which should be free to explore, without external pressure, all options within standing committees.’
120. In addition, in paragraph 110 of the judgment, the General Court noted that, in its reply, the Commission had emphasised that ‘the factors relied on in the contested decisions must not be considered individually, but taken as a whole’.
121. Furthermore, in my view, it is clear that, in the judgment under appeal, the General Court does not assess those grounds in complete isolation from each other. (48) The separate examination of those related grounds appears simply to respond to a logic of orderly assessment of the Commission’s arguments. Accordingly, it seems to me that the Commission’s claim that, in the judgment under appeal, its arguments were distorted appears to be unfounded.
122. In this context, I would also add that, in my view, the Commission has failed to explain properly how the General Court’s method of examination, had it considered the three related grounds together, would have led to a different outcome. The General Court’s analysis, at each stage, centres on an examination of whether the Commission fulfilled its obligation adequately to demonstrate – in the contested decisions, and in the light of the explanations provided during the first-instance proceedings – a risk that the decision-making process in question would be seriously undermined in view of the specific reasons invoked and the relevant evidence adduced. (49)
123. In addition, the argument that the judgment under appeal overlooked relevant factors in this context is also unconvincing.
124. To begin with, in its case-law, the General Court has consistently recognised that external pressure may constitute a legitimate ground for restricting access to documents. (50)
125. I agree. However, 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 such external pressures. The General Court’s observations in paragraphs 129 and 134 of the judgment under appeal address the lack of evidence provided to support the claim that external pressure would affect the decision-making process. Its findings were not based on whether the external pressure in question was directed towards the Commission or the Member States separately. Rather, they are based on the absence of evidence allowing a link to be established between external pressure and potential harm caused by disclosure. In that connection, I also fail to see any additional relevant factor that the General Court may have overlooked in its analysis and that, if taken into account, would have called into question the conclusion reached in paragraph 136 of the judgment under appeal.
126. Similarly, the General Court did not base its assessment on whether the contested decisions specifically referred to the decision-making process within the SCoPAFF or more generally to ‘standing committees’, in order to conclude that those decisions lacked the necessary evidence of the risks invoked by the Commission. Irrespective of whether or not the term ‘standing committees’ encompasses the SCoPAFF, the contested decisions did not contain any concrete evidence specifically linked to the decision-making process at issue.
127. Lastly, the General Court did not apply an incorrect legal standard in relation to the exception at issue. It seems to me that the Commission is reading paragraphs 119 and 130 of the judgment under appeal out of context. Those passages refer to the fact that the decision-making process in question, which lasted for several years, had failed to achieve its purported objective, notwithstanding the confidential treatment given to the documents at issue. In essence, the General Court did not set any standard under the exception set out in the first subparagraph of Article 4(3) of Regulation No 1049/2001, but simply assessed the probative value of certain factual elements alleged by the Commission.
128. In conclusion, in those paragraphs, the General Court did not stray from the well-established requirement that 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 external pressure. In fact, as is clear from paragraph 136 of the judgment under appeal, the General Court held that the Commission had failed to satisfy that legal standard.
129. Therefore, the third complaint of the second part should also be rejected as unfounded and, with it, the entire appeal.
VII. Costs
130. In accordance with Article 138(1) of the Rules of Procedure of the Court of Justice, which is applicable to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
131. Since Pollinis France has applied for costs and the Commission has been unsuccessful, the latter must be ordered to pay the costs relating to the present appeal proceedings.
VIII. Conclusion
132. In the light of the foregoing, I propose that the Court of Justice:
– dismiss the appeal;
– order the European Commission to pay the costs.