Court of Justice of the European Communities (including Court of First Instance Decisions)

JUDGMENT OF THE GENERAL COURT (Ninth Chamber)

26 July 2023 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the adoption of Implementing Regulation (EU) 2021/348 – Partial refusal of access – Exception relating to the protection of court proceedings – Exception relating to the protection of legal advice – Overriding public interest)

In Case T‑662/21,

Troy Chemical Company BV, established in Delft (Netherlands), represented by D. Abrahams, Z. Romata and H. Widemann, lawyers,

applicant,

v

European Commission, represented by C. Ehrbar, K. Herrmann and R. Lindenthal, acting as Agents,

defendant,

THE GENERAL COURT (Ninth Chamber),

composed of L. Truchot, President, M. Sampol Pucurull (Rapporteur) and T. Perišin, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 9 February 2023,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Troy Chemical Company BV, seeks the annulment of Commission Decision C(2021) 5968 final of 5 August 2021 (‘the contested decision’), by which the Commission refused the applicant access to certain parts of four documents the disclosure of which had been sought in a request made pursuant to 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).

 Background to the dispute

2        The applicant is a company governed by Netherlands law which places biocidal products on the EU market, in particular film preservatives and masonry preservatives containing carbendazim.

3        On 25 February 2021, the European Commission adopted Implementing Regulation (EU) 2021/348 of 25 February 2021 approving carbendazim as an existing active substance for use in biocidal products of product-types 7 and 10 (OJ 2021 L 68, p. 174), subject to certain specifications and conditions set out within that implementing regulation.

4        By application lodged at the Registry of the General Court on 21 May 2021, the applicant and Troy Corporation, its holding company, brought an action for the annulment of Implementing Regulation 2021/348, which was registered under number T‑297/21. In support of their action, the applicant and Troy Corporation rely on a number of pleas in law primarily challenging the duration of the approval period for carbendazim as an active substance and the imposition, within the meaning of Implementing Regulation 2021/348, of specific conditions concerning the use of biocidal products which contain it.

5        By letter of 18 March 2021, the applicant sent the Commission two requests for access under Regulation No 1049/2001 relating to the process which led to the adoption of Implementing Regulation 2021/348.

6        The first request concerned ‘any correspondence exchanged between the different directorate generals (DGs) and services of the Commission during the process for adoption of Implementing Regulation (EU) 2021/348 approving carbendazim as an existing active substance for use in biocidal products of product-types 7 and 10 between 1 September 2020 and the final adoption of the Regulation on 25 February 2021, including any documents exchanged during or related to the inter-service consultation and any versions of the draft Regulation (and comments thereon) made available’.

7        The second request for access concerned ‘any correspondence exchanged between the different directorate generals (DGs) and services of the Commission and: [(a)] the Committee on Environment, Food Safety and Public Health of [the] European Parliament and any of its individual [members]; [(b)] the European Chemicals Agency; and [(c)] any third parties, excluding those submitted by Troy Chemical B.V. or Steptoe & Johnson LLP during the process for the adoption of Commission Implementing Regulation (EU) 2021/348 approving carbendazim as an existing active substance for use in biocidal products of product-types 7 and 10 between 1 September 2020 and the final adoption of the Regulation on 25 February 2021, including any documents exchanged during or related to the inter-service consultation and any versions of the draft Regulation (and comments thereon) made available’.

8        Consideration of the first request for access, registered under reference GestDem 2021/1797, was entrusted to the Commission’s Directorate-General (DG) for ‘Health and Food Safety’. The second request for access, registered under reference GestDem 2021/1796, is not the subject of the present action.

9        On 10 May 2021, the DG for ‘Health and Food Safety’ informed the applicant that it had identified three documents concerned by the request referred to in paragraph 6 above. It also notified the applicant of its decision to refuse access to those documents.

10      By letter of 19 May 2021, the applicant, on the basis of Article 7(2) of Regulation No 1049/2001, submitted a confirmatory application for access to the three documents identified by the Commission in the context of its request for access, in order that the Commission might reconsider its position.

11      In the contested decision, the Commission identified 12 documents as being covered by the confirmatory application for access. It partially refused access to four documents, namely documents 1, 10, 12 and 15 (‘the documents at issue’). Documents 1, 12 and 15 are emails exchanged between the Commission’s DG for ‘Health and Consumer Protection’ and its Legal Service concerning the drawing up of draft Implementing Regulation 2021/348. Document 10 is a draft presentation prepared by the DG for ‘Health and Food Safety’ for the Standing Committee on Biocidal Products in the context of the same process.

12      In order to justify the refusal to grant access to certain parts of the documents at issue, the Commission, first, relied on the ground relating to the protection of court proceedings and legal advice, laid down in the second indent of Article 4(2) of Regulation No 1049/2001. Secondly, the Commission pleaded the exception based on the protection of privacy and integrity of the individual, laid down in Article 4(1)(b) of that regulation, which is not, however, disputed in the present action.

13      As regards the protection of court proceedings, the Commission considered that disclosure of the documents at issue would seriously undermine the ability of its Legal Service to defend the validity of Implementing Regulation 2021/348 effectively before the EU Courts in Case T‑297/21 and would thus infringe the principle of equality of arms.

14      Concerning the protection of legal advice, the Commission considered that documents 1, 12 and 15 could qualify as legal advice in view of their content and that their full disclosure would be liable to compromise the interest of the institution in receiving legal advice concerning complex and sensitive topics including, in particular, the preliminary opinions exchanged between its services.

15      Lastly, the Commission ruled out the existence of an overriding public interest capable of justifying full disclosure of the documents at issue, within the meaning of the last sentence of Article 4(2) of Regulation No 1049/2001.

 Forms of order sought

16      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs;

–        take such other or further measure as justice may require.

17      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

18      During the hearing, in reply to a question from the Court, the applicant stated that it was withdrawing its fourth head of claim, namely that the Court should take such other or further measure as justice may require.

19      The Court, by order of 4 January 2023, ordered the Commission, pursuant to Article 91(c) and Article 92 of its Rules of Procedure, to produce full copies of the documents to which it had partially refused to grant access, stating that, in accordance with Article 104 of those rules, those documents would not be communicated to the applicant. The Commission complied with that order within the prescribed period.

 Law

 The scope of the single plea in law

20      In support of its action, the applicant submits, in essence, a single plea in law, alleging infringement of Article 4(2) of Regulation No 1049/2001.

21      The production of the documents at issue, referred to in paragraph 19 above, enabled the Court to examine with full knowledge of the facts the single plea in law raised by the applicant, albeit that, by that plea, the applicant did not formally rely on the inapplicability of the two exceptions relied on by the Commission to the redacted information in the documents at issue. The applicant confined itself to disputing the merits of the grounds contained in the contested decision which sought to establish that disclosure of that information would have undermined the interests protected by those two exceptions and that there was no overriding public interest justifying its full disclosure (see, to that effect, judgment of 28 November 2013, Jurašinović v Council, C‑576/12 P, EU:C:2013:777, paragraphs 27 and 28).

22      In that regard, while the applicant’s line of argument concerns the merits of the statement of reasons provided by the Commission to justify recourse to the second indent of Article 4(2) of Regulation No 1049/2001, the fact remains that certain arguments put forward in support of its single plea in law concern, more specifically, the obligation to state reasons.

23      Accordingly, the Court considers that the applicant’s single plea in law is formed, in essence, of two parts, alleging, first, failure to comply with the obligation to state reasons and, secondly, infringement of the second indent of Article 4(2) of Regulation No 1049/2001.

 The first part, alleging failure to comply with the obligation to state reasons

24      By the first part of the single plea in law, the applicant pleads, in essence, a failure to comply with the obligation to state reasons in the contested decision. According to the applicant, the Commission merely states, in vague and unsubstantiated terms, that the content of the redacted passages of the documents at issue concerns the same issues as those addressed in its defence in Case T‑297/21. In particular, the Commission is alleged to have provided no explanation as to how access to those passages could concretely and actually undermine ongoing court proceedings and thus the interest protected by the second indent of Article 4(2) of Regulation No 1049/2001.

25      In that regard, it must be recalled that the obligation to state reasons is a general principle of EU law, enshrined in the second paragraph of Article 296 TFEU and in Article 41(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’), under which any legal act adopted by the EU institutions must state the reasons on which it is based. That obligation means that the EU institutions must disclose clearly and unequivocally the reasoning of the author of the measure in such a way as to enable, on the one hand, interested parties to ascertain the reasons for the measure adopted in order to enable them to protect their rights, and, on the other hand, the court having jurisdiction to exercise its power of review (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 19 and the case-law cited).

26      Thus, in the context of applying the provisions of Regulation No 1049/2001, it has been held that the purpose of the obligation on the institution to state the reasons for its decision refusing access to a document is, first, to provide the person concerned with sufficient information to make it possible to determine whether the decision is well founded or whether it is vitiated by an error which may permit its validity to be contested and, secondly, to enable the Courts of the European Union to review the lawfulness of the decision. The extent of that obligation depends on the nature of the measure at issue and the context in which it was adopted (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 20 and the case-law cited).

27      In the light of its content and function in the EU legal order, the obligation to state reasons has been described as an essential procedural requirement which may, or even must, be raised by the Court of its own motion and which must be distinguished from the question whether the reasoning is well founded, which goes to the substantive legality of the measure at issue (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 21 and the case-law cited).

28      In the present case, first of all, the contested decision contains a summary of the reasons why the Commission considered that the exception referred to in the second indent of Article 4(2) of Regulation No 1049/2001 relating to the protection of court proceedings was applicable to the documents at issue.

29      First, it should be pointed out that the Commission gave a detailed explanation of the relevant connection between the redacted sections of the documents at issue of which disclosure is sought and the legal aspects of the pending proceedings in Case T‑297/21.

30      In that regard, the Commission stated that the redacted sections within documents 1, 12 and 15 concerned legal issues which are the subject of the first, second and third pleas raised in the court proceedings pending in Case T‑297/21. It went on to state that document 10 contained a more detailed analysis comparing the way in which substances similar to carbendazim had been treated, with the result that that document was closely linked to the complaint alleging breach of the principle of non-discrimination raised in Case T‑297/21.

31      Secondly, the contested decision contains a specific and concrete description of the reasons why disclosure of those sections would jeopardise the equality of arms and sound administration of justice with respect to the three pleas relied on by the applicant in Case T‑297/21.

32      To that end, the Commission stated that such disclosure would hinder the preparation of its defence in Case T‑297/21. In particular, it specified that it will need to describe the various stages of the preparation of Implementing Regulation 2021/348 and to discuss in detail the justification for the conditions attached to the approval of carbendazim and the comparison with other similar active substances. In so doing, the Commission will therefore be required to deal specifically with the issues addressed in the redacted parts of the documents at issue.

33      Next, the contested decision sets out the reasons why the Commission considered that documents 1, 12 and 15 could qualify as legal advice, protected in accordance with the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, by reason of their author and nature. Thus, it stated that the redacted parts of those documents constituted a legal opinion concerning a sensitive topic prepared internally by its Legal Service. Disclosure of those parts would compromise the protection of legal advice and that institution’s interest in seeking such advice concerning complex and sensitive topics. Moreover, the contested decision highlights the existence of a risk, which is not purely hypothetical, of the Commission’s ability to defend itself on an equal footing with the other parties in Case T‑297/21 being undermined, since that case concerns in part the legal issue dealt with in those documents.

34      Lastly, the contested decision states that, in the present case, there is no overriding public interest justifying disclosure of the redacted parts of the documents at issue capable of prevailing over the interest referred to in the second indent of Article 4(2) of Regulation No 1049/2001.

35      Thus, it must be held that the reasons set out in paragraphs 28 to 34 above constitute sufficient information to enable the applicant to determine whether the contested decision was well founded or whether it was vitiated by a defect enabling its validity to be contested within the meaning of the case-law referred to in paragraph 25 above. Based on those grounds, the applicant was in a position to understand the specific reasons why the Commission considered, in the present case, that the documents at issue were covered by the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 and that there was no overriding public interest justifying disclosure of the redacted parts of those documents. In the present case, the Commission therefore justified, to the requisite legal standard, recourse to the exception provided for by that article.

36      Furthermore, the statement of reasons for the contested decision enables the Court to review the lawfulness of that decision.

37      Consequently, the first part, alleging failure to comply with the obligation to state reasons, must be dismissed.

 The second part, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001

 General considerations on the right of public access to documents

38      It should be borne in mind that, 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 22 January 2020, MSD Animal Health Innovation and Intervet International v EMA, C‑178/18 P, EU:C:2020:24, paragraph 48 and the case-law cited).

39      That core EU objective is also reflected, first, in Article 15(1) TFEU, which provides that the institutions, bodies, offices and agencies of the European Union are to conduct their work as openly as possible, that principle of openness also being expressed in Article 10(3) TEU and in Article 298(1) TFEU, and, secondly, in the enshrining of the right of access to documents in Article 42 of the Charter (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).

40      To that end, Regulation No 1049/2001 is intended, as is apparent from recital 4 and from Article 1 thereof, to give the fullest possible effect to the right of public access to documents of the institutions (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 73 and the case-law cited).

41      That right is subject to certain limits based on grounds of public or private interest. More specifically, and in accordance with recital 11, Article 4 of Regulation No 1049/2001 lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine one of the interests protected by that provision (see judgment of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29 and the case-law cited; judgment of 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 85; see also judgment of 22 January 2020, PTC Therapeutics International v EMA, C‑175/18 P, EU:C:2020:23, paragraph 55 and the case-law cited).

42      However, since they derogate from the principle of the widest possible access to documents, those exceptions must be interpreted and applied strictly (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75 and the case-law cited).

43      Thus the mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that provision (see judgment of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51 and the case-law cited).

44      Indeed, if the institution concerned decides to refuse access to a document that it has been asked to disclose, it must, in principle, first explain how disclosure of that document could specifically and actually undermine the interest protected by the exception, among those provided for in Article 4 of Regulation No 1049/2001, upon which it is relying. Moreover, the likelihood of that interest being compromised 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).

45      Moreover, if the institution applies one of the exceptions provided for in Article 4(2) 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 of 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).

46      Lastly, the justification for applying one of the exceptions provided for in Article 4 of Regulation No 1049/2001 must be made in the light of the facts existing on the date of adoption of the decision refusing to grant access to the documents on the basis of that exception. The legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 36 and the case-law cited).

47      It is in the light of those principles that the arguments put forward by the applicant in support of the second part of the single plea in law, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, are to be examined. That part consists of three complaints, alleging, first, erroneous application of the exception relating to the protection of court proceedings, secondly, erroneous application of the exception protecting legal advice and, thirdly, the existence of an overriding public interest in full disclosure of the documents at issue.

 The first complaint, alleging erroneous application of the exception relating to the protection of court proceedings laid down in the second indent of Article 4(2) of Regulation No 1049/2001

48      By its first complaint, the applicant argues that, while the redacted documents do indeed have a link with pending court proceedings, the other conditions necessary for invoking the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2011 concerning the protection of court proceedings are not satisfied either in respect of the ‘specific reasoning’, relating to preparation of the defence, or in respect of the ‘general reasoning’, referring to any other document that might be submitted by the Commission in Case T‑297/21.

49      It puts forward a number of arguments in support of that complaint. First, it submits that, since the Commission committed to disclose, in Case T‑297/21, the information redacted from the documents at issue, the principle of equality of arms cannot be compromised by the full publication of those documents in the context of a request for access based on Regulation No 1049/2001.

50      Secondly, it submits that the refusal to disclose the documents at issue in full is based exclusively on a ‘temporal objection’. The Commission thus refused disclosure of the redacted information on the ground that it would subsequently be addressed and set out in the Commission’s defence in Case T‑297/21. However, according to the applicant, that ground is no longer relevant now that that defence has been lodged.

51      Thirdly, according to the applicant, the parties are not on an equal footing in an action for annulment against an act adopted by the Commission, which holds internal information about its adoption process of which the applicant has no knowledge. Furthermore, the fact that it did not annex the documents at issue when it lodged its defence in Case T‑297/21 constitutes an impediment to the sound administration of justice which the disclosure of other documents is not capable of remedying.

52      Fourthly, the applicant submits that the documents at issue form the factual basis for the process of adopting Implementing Regulation 2021/348, since they were created within the final three-month period preceding publication of that implementing regulation and they concern the legality of and justification for the modifications considered while it was drawn up.

53      The Commission disputes all of the applicant’s arguments.

54      In accordance with the second indent of Article 4(2) of Regulation No 1049/2001, the institutions are to refuse access to a document where disclosure would undermine the protection of court proceedings, unless there is an overriding public interest in disclosure of the document at issue.

55      It is settled case-law that the expression ‘court proceedings’ is to be interpreted as meaning that the protection of the public interest precludes disclosure of the content of documents drawn up solely for the purposes of specific court proceedings. Those documents include the pleadings or other documents lodged during court proceedings, internal documents concerning the investigation of a pending case and correspondence between the Directorate-General concerned and the Legal Service or a law firm concerning the case (see, to that effect, judgment of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraphs 51 and 52 and the case-law cited). The purpose of that definition of the scope of the exception is inter alia to ensure the protection of work done within the Commission (see, to that effect, judgment of 7 February 2018, Access Info Europe v Commission, T‑852/16, EU:T:2018:71, paragraph 62 and the case-law cited).

56      In addition, the protection of court proceedings implies, in particular, that compliance with the principles of equality of arms and the sound administration of justice must be ensured (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, paragraph 85). Access to documents by one party could well upset the vital balance between the parties to a dispute – the state of balance which is at the basis of the principle of equality of arms – since only the institution concerned by an application for access to its documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure (see judgment of 7 February 2018, Access Info Europe v Commission, T‑852/16, EU:T:2018:71, paragraph 64 and the case-law cited).

57      In that regard, the Court has held that 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, and that disclosure of those documents, even though they were not drawn up in the context of pending court proceedings, should compromise the principle of equality of arms and, potentially, the ability of the institution concerned to defend itself in those proceedings. In other words, it is necessary that those documents should reveal the position of the institution concerned on contentious issues raised during the court proceedings relied upon (judgment of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 88).

58      The Court has specified that although those documents have not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the equality of arms between the parties could have been seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party and closely connected to the legal aspects of pending or potential but imminent proceedings (see judgment of 7 February 2018, Access Info Europe v Commission, T‑852/16, EU:T:2018:71, paragraph 66 and the case-law cited).

59      Lastly, the application of the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001 precludes the disclosure of documents only for as long as the risk of undermining court proceedings persists. It is therefore limited in time (see judgment of 6 February 2020, Compañía de Tranvías de la Coruña v Commission, T‑485/18, EU:T:2020:35, paragraph 43 and the case-law cited).

60      It is in the light of those principles that the first complaint is to be examined.

61      As a preliminary point, it is necessary to determine whether the documents at issue had, on the date on which the contested decision was adopted, a relevant link with a dispute pending before the Courts of the European Union within the meaning of the case-law referred to in paragraph 57 above.

62      Admittedly, in the present case, the documents at issue were not specifically drawn up solely for the purposes of particular court proceedings.

63      Thus, it is apparent from an examination of those documents that, first, documents 1, 12 and 15 are internal Commission documents relating to the legality of and justification for the conditions and restrictions on use envisaged in the drawing up of draft Implementing Regulation 2021/348.

64      Secondly, document 10 constitutes a preliminary version of a presentation made by the Commission to the Standing Committee on Biocidal Products on the Commission’s previous decision-making practice as regards other approved active substances and on the appropriateness of imposing conditions and restrictions on use on biocidal products and treated articles at the stage of approval of the active substance in the context of the legislation on biocidal products. In particular, slides 5 to 8 of document 10 contain a detailed draft comparison with approval decisions for other active substances with characteristics similar to carbendazim, a more concise version of which was incorporated in the final version of the presentation given to the Standing Committee on Biocidal Products.

65      It is common ground that document 10 was never sent to the Standing Committee on Biocidal Products in the context of the consideration of draft Implementing Regulation 2021/348. It is therefore a purely internal document of the DG for ‘Health and Food Safety’ which was communicated to the Commission’s Legal Service only as contextual support for its request relating to the legality of and justification for the conditions and restrictions on use envisaged in the drawing up of draft Implementing Regulation 2021/348.

66      It follows that the documents at issue contain only information relating to the legal positions taken internally on the legality of the various options considered in the drawing up of draft Implementing Regulation 2021/348. The fact that those documents were created during the final three-month period preceding publication of that regulation is not such as to call that finding into question.

67      However, it is not disputed that the redacted sections of the documents at issue have a relevant link with pending court proceedings, namely Case T‑297/21, the subject matter of which specifically concerns the legality of the conditions and restrictions imposed by Implementing Regulation 2021/348.

68      First, the redacted sections of the documents at issue are closely related to the legal issues raised in the first, second and third pleas, based on the legality of and justification for (i) the approval period for carbendazim as an active substance in biocidal products and treated articles; and (ii) the conditions and restrictions on use imposed on the authorisation of certain biocidal products and treated articles which incorporate it. Secondly, slides 5 to 8 of document 10 relate more specifically to the complaint alleging discriminatory treatment of carbendazim as compared with other active substances with similar characteristics.

69      Thus, the disclosure of documents containing that type of legal position would be such as to force the Commission, in effect, to defend itself against assessments made by its Legal Service and its own staff which have ultimately been disregarded or not submitted.

70      That fact could upset the balance between the parties to court proceedings, inasmuch as the applicant would not be obliged to disclose that type of internal assessment (see, to that effect, judgments of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 97 and the case-law cited, and of 15 September 2016, Philip Morris v Commission, T‑18/15, not published, EU:T:2016:487, paragraph 73 and the case-law cited).

71      Accordingly, since the documents at issue contain positions taken internally which have a relevant link with Case T‑297/21, their disclosure to the public could compromise the Commission’s defensive position and the principle of equality of arms, in so far as the Commission would be required to communicate the internal legal positions emanating from its services on contentious issues, while no similar obligation would be imposed on the other party.

72      That finding cannot be called into question by the following arguments put forward by the applicant.

73      First, contrary to the applicant’s unsubstantiated assertion, it is not apparent from the contested decision that the Commission committed to disclose the redacted sections of the documents at issue. It merely stated that its line of defence in Case T‑297/21 would address the same legal issues as those to which the documents at issue relate. That argument must therefore be rejected.

74      Secondly, the ‘temporal objection’ relied on by the applicant is likewise not relevant in the present case.

75      It should be recalled that the legality of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see judgment of 11 May 2017, Sweden v Commission, C‑562/14 P, EU:C:2017:356, paragraph 63 and the case-law cited).

76      Accordingly, only the date of 5 August 2021 on which the contested decision was adopted is relevant in the present case for the purpose of determining whether recourse to the exception based on the second indent of Article 4(2) of Regulation No 1049/2001 was justified.

77      It follows that the applicant’s arguments based on the actual lodging of the Commission’s defence in Case T‑297/21 and the distinction between the preparation of that defence and any other additional document subsequently submitted to the Court in the context of that case are not such as to establish that the contested decision lacked sufficient reasoning.

78      In any event, the exception provided for in the second indent of Article 4(2) of Regulation No 1049/2001, although limited in time, as recalled in paragraph 59 above, is intended to apply throughout the court proceedings in question, without distinction between the various stages of those proceedings (see, to that effect, 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, 93 and 130). That argument must therefore be rejected.

79      Thirdly, the applicant asserts that there is an asymmetry in the information held by the parties in favour of the Commission, which is contrary to the principle of openness enshrined in the TEU and the TFEU and recalled in paragraphs 38 and 39 above.

80      In that regard, Article 15(1) TFEU states that ‘in order to promote good governance and ensure the participation of civil society, the Union’s institutions, bodies, offices and agencies shall conduct their work as openly as possible’. Similarly, Article 10(3) TEU, also relied on by the applicant, provides that ‘every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen’.

81      All of those provisions confirm that the principle of openness, although of fundamental importance to the EU legal order, is not absolute (judgment of 25 January 2023, De Capitani v Council, T‑163/21, EU:T:2023:15, paragraph 56).

82      Furthermore, it is clear from recital 11 of Regulation No 1049/2001 that that regulation lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine one of the interests protected by that provision, in accordance with the case-law referred to in paragraph 41 above.

83      However, as is apparent from the case-law referred to in paragraph 42 above, the fundamental nature of the principle of openness means that the exceptions derogating from it are to be interpreted and applied strictly.

84      Thus, the right of access to documents of the institutions may be subject to certain limits on grounds of public or private interest provided that those limits comply with the conditions laid down by the legislation in force.

85      Consequently, it must be accepted that the conditions necessary for applying the exception relating to the protection of court proceedings as referred to in the second indent of Article 4(2) of Regulation No 1049/2001 were satisfied in respect of all of the documents at issue without giving rise to any asymmetry contrary to the principle of openness. That argument must therefore be rejected.

86      Fourthly, the applicant submits that the documents at issue form the factual basis for the process of adopting Implementing Regulation 2021/348.

87      It should be noted, first, that documents 1, 12 and 15 contain only information relating to the legal positions taken internally on the legality of the various options considered in the drawing up of Implementing Regulation 2021/348. Secondly, as stated in paragraph 65 above, document 10 is an internal Commission document which was never communicated to the Standing Committee on Biocidal Products in the context of its consideration of the draft of that implementing regulation.

88      Accordingly, the documents at issue do not form the factual basis for the exercise of the Commission’s competence, since they do not contain factual or scientific considerations which formed the basis for the adoption of Implementing Regulation 2021/348. That argument must therefore be rejected.

89      In the light of all of the foregoing considerations, the first complaint must be rejected.

 The second complaint, alleging erroneous application of the exception relating to the protection of legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001

90      The applicant submits that the Commission erred in applying the exception relating to the protection of legal advice to documents 1, 12 and 15. In that regard, it claims that there is confusion between the ground relating to the protection of legal advice and the ground relating to the protection of court proceedings, which are in fact distinct. According to the applicant, although the redacted sections of those documents constitute legal advice, they also form an essential part of the factual basis for the process of adopting Implementing Regulation 2021/348.

91      It submits, first, that a fear of casting doubt on the legality of the adopted measure is not a valid ground for refusing to grant access to all of the redacted sections of documents 1, 12 and 15. Secondly, according to the applicant, the ground relating to the Commission’s ability to defend itself if the redacted sections of those documents are disclosed is likewise not such as to justify an exception to the principle of transparency stemming not only from Regulation 1049/2001, but also from Article 10(3) TEU, Article 15(1) and Article 298(1) TFEU and Article 42 of the Charter.

92      The Commission disputes all of the applicant’s arguments.

93      It should be noted that the exception based on the protection of legal advice within the meaning of the second indent of Article 4(2) of Regulation No 1049/2001 is relied on by the Commission in the contested decision only for the sake of completeness.

94      It should be borne in mind that the exceptions provided for in Article 4(2) of Regulation No 1049/2001 are not cumulative, with the result that it is sufficient for access to the document in question to fall within the scope of one of those exceptions for the Commission to be entitled to refuse to disclose it (see, to that effect, judgment of 29 September 2021, TUIfly v Commission, T‑619/18, not published, EU:T:2021:627, paragraph 57 and the case-law cited).

95      In the present case, since, as is clear from the analysis set out in paragraphs 54 to 89 above, the exception relating to the protection of court proceedings being compromised is, in itself, sufficient to justify the refusal to disclose, the second complaint, even if it were well founded, would not be such as to permit the annulment of the contested decision.

96      The second complaint must therefore be rejected as ineffective.

 The third complaint, alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001, in that there is an overriding public interest in full disclosure of the documents at issue

97      The applicant claims that there is an overriding public interest in disclosure of the redacted sections of the documents at issue, which is based on the transparency and openness of the legislative process, since Implementing Regulation 2021/348 is an act of general application.

98      According to the applicant, Regulation No 1049/2001 does not distinguish between legislative acts and implementing acts. In that regard, it is submitted that the effects of implementing acts on EU citizens justify greater transparency.

99      Furthermore, the applicant claims that it is in the interests of EU citizens to be able to verify whether the Commission has adopted an implementing regulation lawfully, in particular where the documents in question form the factual basis for the adoption process.

100    In addition, the applicant argues that the adverse effect on the Commission’s ability to defend itself is a general argument, which cannot justify an exception to the requirement for openness, particularly since the Commission had committed to disclose the information contained in the redacted sections of the documents at issue during the proceedings in Case T‑297/21.

101    Moreover, it is in the interests of the sound administration of justice and the equality of arms that the Commission may not conceal the existence of contradictory analyses concerning the lawfulness of a document which is the subject of an action for annulment before the Court.

102    Lastly, Regulation No 1049/2001 requires that exceptions to the principle of transparency be interpreted strictly.

103    The Commission disputes all of the applicant’s arguments.

104    So far as concerns, at the outset, the applicant’s assertion that Regulation No 1049/2001 does not distinguish between legislative acts and implementing acts, suffice it to observe that, even if it were true, such an assertion cannot influence the question whether the disclosure of those documents is capable of undermining the interests protected by the second indent of Article 4(2) of Regulation No 1049/2001 or, therefore, the question whether the access sought to such documents may legitimately be refused by the Commission.

105    It is appropriate to point out in that regard that, whilst providing that 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 be made directly accessible, Article 12(2) of Regulation No 1049/2001 adds, however, that this is so only subject to Articles 4 and 9 thereof (judgment of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 41).

106    According to the settled case-law referred to in paragraph 45 above, it is for the institution applying one of the exceptions provided for in Article 4(2) of Regulation No 1049/2001 to weigh the particular interest to be protected through non-disclosure of the document concerned against, in particular, the public interest in that document being made accessible.

107    Thus, an overriding public interest may justify the disclosure of a document to which access has been requested notwithstanding the fact that one of the exceptions referred to in Article 4(2) of Regulation No 1049/2001 applies.

108    In the present case, the applicant puts forward, in essence, a single argument based on the existence of an overriding public interest in the transparency and openness of the legislative process.

109    It should be noted that, in accordance with case-law, an overriding public interest capable of justifying disclosure of a document need not necessarily be distinct from the principles underlying Regulation No 1049/2001 (judgment of 15 September 2016, Herbert Smith Freehills v Council, T‑710/14, EU:T:2016:494, paragraph 68).

110    Nevertheless, although it is for the institution concerned to weigh up the different interests, it is for the applicant to refer to specific circumstances that establish such an overriding public interest. A statement setting out purely general considerations is not sufficient for the purpose of establishing that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgment of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 53 and the case-law cited).

111    Furthermore, those circumstances must be such as to establish that the overriding public interest is particularly pressing and prevails over the reasons justifying the refusal to grant full access to the documents at issue (see, to that effect, judgment of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraphs 93 and 94 and the case-law cited).

112    In that context, a person seeking to oppose a ground for refusal of disclosure must, first, rely on the existence of a public interest capable of prevailing over that ground and, secondly, demonstrate precisely that, in the particular case, disclosure of the documents concerned would specifically contribute to assuring protection of that public interest to such an extent that the principle of transparency prevails over the protection of the interests on which the refusal to disclose was based, that is to say, in the present case, the protection of court proceedings and legal advice (see, to that effect, judgment of 23 January 2017, Justice & Environment v Commission, T‑727/15, not published, EU:T:2017:18, paragraph 52). Vague considerations cannot provide an appropriate basis for establishing that the principle of transparency is, in a specific case, especially pressing and prevails over the reasons justifying the refusal to disclose the documents at issue (see, to that effect, 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, paragraph 158).

113    In the present case, the applicant merely relies on vague considerations relating to the increased importance of the principle of transparency of the legislative process, referring to the binding legal effects of implementing acts, the interest of EU citizens in being able to verify their lawfulness, the principles of the sound administration of justice and equality of arms, and the strict interpretation of the exceptions provided for by Regulation No 1049/2001.

114    However, it is apparent from the contested decision that the Commission first of all considered, correctly, that such general considerations could not provide an appropriate basis for establishing that the principle of transparency was, in the present case, especially pressing and capable of prevailing over the reasons justifying the refusal to grant access to the documents at issue. Next, the Commission considered that the applicant had not specifically indicated the particular circumstances which would have justified full disclosure of those documents. Lastly, it also found that it had not been able to identify any overriding public interest capable of justifying disclosure of the redacted sections of the documents at issue.

115    In addition, the applicant submits that, in the present case, the documents at issue contributed to the adoption of Implementing Regulation 2021/348. However, it is sufficient to note that that argument has already been rejected in the analysis of the first complaint, in paragraphs 86 to 88 above. Accordingly, that mere assertion does not establish the existence of particular circumstances demonstrating precisely that, in the present case, disclosure of the documents at issue would specifically contribute to assuring the protection of the principle of transparency to such an extent that it would prevail over the protection of the interests on which the refusal to disclose was based.

116    Furthermore, the applicant submits that the reason put forward by the Commission for refusing to grant access to the redacted sections of the documents at issue cannot justify an exception to openness since the Commission committed to disclose the content of them in the proceedings in Case T‑297/21. Nevertheless, as is clear from paragraph 73 above, the Commission made no such commitment.

117    It follows that the applicant has not submitted any detailed argument capable of demonstrating that, as regards the documents at issue, the principle of transparency is, in the light of the specific circumstances of the present case, especially pressing.

118    Accordingly, the applicant has not demonstrated the existence of an overriding public interest which would justify disclosure of the documents at issue, with the result that the third complaint must be rejected and, consequently, the second part of the single plea in law must be dismissed in its entirety.

119    It follows from all of the foregoing that the present action must be dismissed.

 Costs

120    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. Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Ninth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Troy Chemical Company BV to pay the costs.

Delivered in open court in Luxembourg on 26 July 2023.

*      Language of the case: English.

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