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

JUDGMENT OF THE GENERAL COURT (Fourth Chamber)

13 November 2024 (*)

( Access to documents - Regulation (EC) No 1049/2001 - Preparatory documents of the Commission relating to a request for internal review of Implementing Regulation (EU) 2021/2049 as regards the renewal of the approval of the active substance cypermethrin - Partial refusal to grant access - Article 4(2) of Regulation No 1049/2001 - Exception relating to the protection of court proceedings )

In Case T‑104/23,

Pesticide Action Network Europe (PAN Europe), established in Brussels (Belgium), represented by A. Bailleux, lawyer,

applicant,

v

European Commission, represented by M. Burón Pérez and G. Gattinara, acting as Agents,

defendant,

THE GENERAL COURT (Fourth Chamber),

composed of R. da Silva Passos, President, I. Reine and T. Pynnä (Rapporteur), Judges,

Registrar: V. Di Bucci,

having regard to the written part of the procedure,

having regard to the order of 10 November 2023 by which the General Court ordered the Commission to produce in full the eight documents to which it refused access in part or in full and the production of those documents by the Commission on 24 November 2023,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

gives the following

Judgment

1        By its action under Article 263 TFEU, the applicant, Pesticide Action Network Europe (PAN Europe), seeks the annulment of Commission Decision C(2022) 9583 of 12 December 2022, by which the Commission partially refused the applicant access to certain documents (‘the contested decision’), requested 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 not-for-profit association governed by Belgian law whose mission is gradually to reduce the use of pesticides and to replace them with their agroecological alternatives.

3        On 24 November 2021, the European Commission adopted Implementing Regulation (EU) 2021/2049 renewing the approval of the active substance cypermethrin as a candidate for substitution in accordance with Regulation (EC) No 1107/2009 of the European Parliament and of the Council concerning the placing of plant protection products on the market, and amending the Annex to Commission Implementing Regulation (EU) No 540/2011 (OJ 2021 L 420, p. 6).

4        On 20 January 2022, the applicant submitted to the Commission a request for internal review (‘the request for internal review’), in accordance with Article 10 of Regulation (EC) No 1367/2006 of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

5        On 18 February 2022, the Commission requested technical and scientific assistance from the European Food Safety Authority (EFSA) in preparing the reply to the request for internal review. On 15 March 2022, EFSA issued a technical report, which was made available to the public.

6        By letter of 23 June 2022, the Member of the Commission responsible for Health and Food Safety informed the applicant that she had carefully assessed the applicant’s claims in the request for internal review and that that request was unfounded. The detailed assessment of the grounds for internal review (‘the detailed assessment’) was enclosed with that letter.

7        By email of 23 June 2022, the applicant sent the Commission’s Directorate-General for Health and Food Safety (‘DG Health’) a request for access to documents under Regulation No 1049/2001 (‘the initial request’), which concerned the documents relating to the request for internal review that were prepared by and exchanged within the Commission.

8        By its reply of 23 August 2022 (‘the initial reply’), DG Health informed the applicant that it had identified 35 documents concerned by the initial request. Of the 35 documents identified, it granted the applicant full access to 2 documents and partial access to 18 others, with the exception of the personal data of the natural persons concerned. No access was granted to the remaining 15 documents, on the basis of two exceptions set out in Article 4 of Regulation No 1049/2001, namely the exception relating to the protection of court proceedings (second indent of Article 4(2)) and the exception relating to the protection of the decision-making process (second subparagraph of Article 4(3)).

9        On 31 August 2022, the applicant brought an action for annulment of the Commission’s decision of 23 June 2022 rejecting its request for internal review (‘Case T‑536/22’).

10      On 2 September 2022, the applicant filed a confirmatory application, pursuant to Article 7(2) of Regulation No 1049/2001, asking the Commission to disclose in full the remaining documents (‘the confirmatory application’).

11      On 23 September 2022, the applicant submitted another request for access to documents in which it sought access to all communications between the Member States and the Commission within the Standing Committee on Plants, Animals, Food and Feed (‘SCoPAFF’) and all communications presenting the position of the Member States concerning the possible renewal of cypermethrin and of another substance.

12      On 28 November 2022, in response to the request for access to documents of 23 September 2022, the Commission informed the applicant that it had identified 135 documents as falling within the scope of the request and explained that no access could be granted to any of them, as they were entirely covered by the exception relating to the protection of the institution’s decision-making process provided for in the second subparagraph of Article 4(3) of Regulation No 1049/2001. The applicant did not submit, within the prescribed period, a confirmatory application asking the Commission to reconsider its position on the 135 documents identified.

13      By decision of 12 December 2022, in response to the confirmatory application made on 2 September 2022, the Commission identified 15 documents covered by that application. The Commission decided to grant additional and partial access to seven documents, with the exception of the personal data of the persons concerned under Article 4(1)(b) of Regulation No 1049/2001. It also granted the applicant partial access to three documents with redacted passages, relying on the ground of the protection of personal data provided for in Article 4(1)(b) of that regulation, of the protection of court proceedings provided for in the second indent of Article 4(2) thereof, and of the protection of the decision-making process provided for in the second subparagraph of Article 4(3) thereof. Access to the remaining five documents was refused on the basis of the provisions referred to above.

 Procedure and forms of order sought

14      The applicant claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

15      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

16      The applicant raises three pleas in support of its action. By the first plea, it submits that the contested decision infringes the second indent of Article 4(2) of Regulation No 1049/2001, concerning the exception relating to the protection of court proceedings. By the second plea, it submits that the contested decision infringes the second subparagraph of Article 4(3) of Regulation No 1049/2001, concerning the exception relating to the protection of the decision-making process. In addition, in the reply, the applicant raised a third plea relating to the exchanges within SCoPAFF.

 The third plea, relating to the exchanges within SCoPAFF

17      In the reply, the applicant submits that the exchanges within SCoPAFF, referred to in paragraph 11 above, which relate to its request for internal review, should be regarded as covered by its initial request, which was broadly worded, and that the inclusion of those exchanges in the initial request is supported by the rationale for that request.

18      The applicant states that certain documents relating to a SCoPAFF meeting of 14 and 15 July 2022, in particular, self-evidently fall within the scope of the contested decision. The applicant explains that it did not explicitly mention the exchanges within SCoPAFF in the initial request and in the confirmatory application, as the General Court had not yet adopted the judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556), in which the General Court, in paragraph 99 of that judgment, states that ‘as regards public access to the documents inherent in the work of comitology committees, the Commission cannot take the view that the relevant legal framework excludes, as a matter of principle, public access to the individual positions of the Member States’.

19      The Commission disputes the applicant’s arguments. In any event, that plea is inadmissible as a new plea within the meaning of Article 84(1) of the Rules of Procedure.

20      In the light of the fact that the scope of the initial request, as understood by the Commission in the decision of 12 December 2022, was challenged by the applicant, it is necessary to examine the content of that request in order to be able to assess the merits of the arguments put forward in the context of the present plea.

21      In its initial request, the applicant requested ‘to receive the following documents related to [its request for internal review] of … Commission [I]mplementing Regulation (EU) 2021/2049 renewing the approval of the active substance cypermethrin …:

–        all internal communications within the … Commission (inter-service/DG and between administrations and cabinets),

–        the minutes of all … Commission meetings, the notes of phone calls related to [its] request,

–        all communications between the … Commission and [EFSA],

–        all other inter-institutional communications,

–        all external communications with stakeholders’.

22      Thus formulated, the scope of the initial request does not expressly cover the exchanges within SCoPAFF. In addition, in the confirmatory application, the applicant also does not claim that those exchanges should have been identified by the Commission as covered by the initial request. This is confirmed by the fact that the applicant submitted another request for access concerning the exchanges within SCoPAFF (see paragraph 11 above). The applicant is therefore not justified in claiming that the identification of the documents requested should have included the exchanges within SCoPAFF.

23      Consequently, the initial request does not cover the exchanges within SCoPAFF, but only the documents relating to the request for internal review that were prepared by and exchanged within the Commission (paragraph 7 above). The fact that the General Court has since adopted the judgment of 14 September 2022, Pollinis France v Commission (T‑371/20 and T‑554/20, EU:T:2022:556), in which it concluded that it was possible to grant access to documents showing the individual position of the Member States within SCoPAFF (judgment of 14 September 2022, Pollinis France v Commission, T‑371/20 and T‑554/20, EU:T:2022:556, paragraph 107), cannot alter the fact that, in the present case, the exchanges within SCoPAFF do not fall within the scope of the applicant’s initial request.

24      It follows from the foregoing that the third plea, relating to the exchanges within SCoPAFF, even if it were admissible, must be rejected.

25      Thus, the present action is directed against the Commission’s decision of 12 December 2022, in so far as it grants only partial access to documents 14, 19 and 25, and refuses access to documents 20, 21, 23, 24 and 29, as cited in the table annexed to that decision (‘the documents at issue’).

 The first plea, relating to the exception for the protection of court proceedings

26      The first plea, by which the applicant claims that the contested decision infringes the second indent of Article 4(2) of Regulation No 1049/2001, concerning the exception relating to the protection of court proceedings, comprises, in essence, three parts.

27      First, the applicant submits that no court proceedings had been initiated when it submitted the initial request. In its view, the fact that it declared on its website that it would challenge in court a decision that would reject its request for internal review can hardly be regarded as equivalent to the initiation of court proceedings. It is true that, when the contested decision was adopted, the applicant had already brought an action. However, no confirmatory application would have been needed if the Commission had not unlawfully raised that exception in its initial reply.

28      Secondly, the applicant claims that the exception relating to the protection of court proceedings does not cover the type of documents requested by it, as those documents were not drafted in the framework of court proceedings or with a view to defending the Commission. They relate, in the applicant’s view, to the preparation of an administrative act that concerns it.

29      Thirdly, the applicant submits that the information requested relates to emissions into the environment, within the meaning of Article 6(1) of Regulation No 1367/2006. In its view, the exception relating to the protection of court proceedings does not apply if there is an overriding public interest in disclosure of the document concerned. In particular, that exception should be interpreted restrictively in so far as the information requested relates to emissions into the environment.

30      The Commission disputes the applicant’s arguments.

 General considerations on the right of public access to documents

31      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 (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34, and of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 73).

32      That core EU objective is also reflected 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 in the enshrining of the right of access to documents in Article 42 of the Charter of Fundamental Rights of the European Union (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 74 and the case-law cited).

33      That right of access to documents is subject to certain limits based on grounds of public or private interest. 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 the protection of 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).

34      As such exceptions depart from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (see judgment of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 78 and the case-law cited).

35      Thus, if the institution concerned decides to refuse access to a document which it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and effectively undermine the interest protected by the exception – among those provided for in Article 4 of Regulation No 1049/2001 – upon which it is relying. In addition, the risk of the interest being undermined 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).

36      Moreover, if the institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages of increased openness (see judgments of 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32 and the case-law cited, and of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53 and the case-law cited).

37      It is however for the party requesting access to refer to specific circumstances to establish an overriding public interest which justifies the disclosure of the documents concerned (judgments of 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 94, and of 16 July 2015, ClientEarth v Commission, C‑612/13 P, EU:C:2015:486, paragraph 90).

38      Thus, regarding access to documents, the case-law establishes that the principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view (judgment of 20 September 2016, PAN Europe v Commission, T‑51/15, not published, EU:T:2016:519, paragraph 21).

39      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).

40      As regards, in particular, the exception relating to the protection of court proceedings, the second indent of Article 4(2) of Regulation No 1049/2001 provides that 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.

41      In that regard, it must be recalled that the principles of equality of arms and the sound administration of justice are at the heart of the exception relating to the protection of court proceedings. 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).

42      In the judgment of 15 September 2016, Philip Morris v Commission (T‑796/14, EU:T:2016:483), the General Court specified that the integrity of the court proceedings concerned and the equality of arms between the parties could be 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 (judgment of 15 September 2016, Philip Morris v Commission, T‑796/14, EU:T:2016:483, paragraph 90).

43      It is in the light of those legal elements that the first plea relied on by the applicant in support of its action must be examined.

 The first part of the first plea, relating to the existence of court proceedings

44      It is apparent from the case-law referred to in paragraphs 39 and 41 above that the existence of a link between the documents requested and pending court proceedings is assessed at the time when the decision refusing access to the documents was adopted. Therefore, the applicant’s argument that no court proceedings had been initiated when it submitted the initial request (see paragraph 27 above) must be rejected as inadmissible.

45      In addition, the applicant submits that no court proceedings were ongoing at the time of the initial reply and that no confirmatory application would have been needed had the Commission not unlawfully raised that exception in that reply.

46      In that regard, it must be recalled that, according to settled case-law, by virtue of Article 8 of Regulation No 1049/2001, the response to the initial request is only an initial statement of position, conferring on the applicant the right to request, in the case in point, the Secretary-General of the Commission to reconsider the position in question. Consequently, only the measure adopted by the Secretary-General of the Commission, which is a decision and which entirely replaces the previous statement of position, is capable of producing legal effects such as to affect the interests of the applicant and, in consequence, capable of being the subject of an action for annulment (see judgment of 28 March 2017, Deutsche Telekom v Commission, T‑210/15, EU:T:2017:224, paragraphs 80 and 81 and the case-law cited).

47      It follows that the argument based on the unlawfulness of the initial reply is irrelevant for the purposes of the judicial review of the contested decision and cannot succeed.

48      On the date on which the contested decision was adopted, the applicant had already brought the action in Case T‑536/22, seeking annulment of the decision rejecting the request for internal review (see paragraph 9 above). Therefore, the documents at issue had a link with a dispute pending before the Courts of the European Union.

49      In addition, in accordance with the case-law referred to in paragraph 42 above, the exception relating to the protection of court proceedings could also be relied on at the time when the initial reply was adopted, even though that reply preceded the initiation of court proceedings, since the information contained in the requested documents was closely connected to the legal aspects of imminent proceedings. Since the applicant had submitted the request for internal review and declared on its website that it intended to bring an action against a decision rejecting that request, court proceedings appeared imminent.

50      It follows that the first part of the first plea, relating to the existence of court proceedings, must be rejected.

 The second part of the first plea, relating to the application of the exception to the type of documents requested

51      The applicant submits that the exception relating to the protection of court proceedings does not cover the type of documents requested by it, as those documents were not drafted in the framework of court proceedings or with a view to defending the Commission.

52      In that regard, it must be recalled that, according to the case-law, in order to determine whether a document falls within the scope of one of the exceptions to the right of access to documents, only the content of the document requested is relevant (judgment of 29 October 2020, Intercept Pharma and Intercept Pharmaceuticals v EMA, C‑576/19 P, EU:C:2020:873, paragraph 36).

53      It is apparent from the examination of the documents at issue that the eight documents concern the preparation of the detailed assessment annexed to the Commissioner’s letter of 23 June 2022, by which the applicant’s request for internal review was rejected. More specifically, documents 20, 23, 24 and 29 are various drafts of the detailed assessment and documents 14, 19, 21 and 25 consist of exchanges of emails, comments and notes between DG Health, the Directorate-General for the Environment and the Legal Service for the purpose of preparing that reply. The documents at issue contain internal and preliminary positions of the Commission’s services on how to reply to the request for internal review.

54      By its action in Case T‑536/22, the applicant sought annulment of the decision rejecting the request for internal review. Therefore, the documents at issue contain internal information that is closely connected to the legal aspects of that case.

55      The argument that the documents at issue were not drafted in the framework of court proceedings or with a view to defending the Commission must therefore be rejected.

56      The applicant also submits that the contested decision does not provide any explanation as to why certain documents should not be disclosed to it. The applicant does not understand how the Commission’s preliminary positions could undermine its legal position.

57      In that regard, it should be noted that the contested decision contains a specific explanation that disclosure to the public of the documents at issue would reveal critical internal and preliminary positions of the services of the Commission involved in Case T‑536/22, positions which are predominant in, and relevant for, the case before the General Court. It is also apparent from the contested decision that, having regard to the subject matter of the case before the General Court, which concerns the legality of the Commission’s rejection of the request for internal review, the disclosure of internal positions on ‘possible shortcomings and anticipating problems’ in the course of the preparation of the Commission’s reply may compromise the principle of equality of arms and the atmosphere of serenity in which the exchange of arguments by the parties must take place in the course of court proceedings.

58      Thus, it must be held that the applicant was in a position to understand the precise reasons why the Commission considered, in the present case, that disclosure of the documents at issue could undermine the court proceedings before the General Court. The argument that the contested decision provides no explanation as to why the documents at issue should not be disclosed to the applicant must therefore be rejected.

59      It follows from all of the foregoing considerations that the second part of the first plea must be rejected.

 The third part of the first plea, concerning the concept of ‘information relating to emissions into the environment’ and the existence of an overriding public interest

60      The applicant submits that there is an overriding public interest in disclosure of the documents at issue, based on the fact that the information requested relates to emissions into the environment. In that regard, such information relating to emissions into the environment justifies a particularly restrictive interpretation of the exception relating to the protection of court proceedings.

61      The applicant submits that the initial request concerns information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the substance in question, was correct, and the data relating to the effects of those emissions on the environment. The request for internal review, which is the subject of the documents at issue, puts forward a number of reasons and scientific elements explaining why the Commission should not have renewed the approval of the active substance cypermethrin.

62      In the applicant’s view, the Commission’s interest in defending its acts is less important than the need to understand why an active substance for which EFSA had raised several ‘areas of concern’ was nonetheless re-approved.

63      It is true that, in accordance with Article 6(1) of Regulation No 1367/2006, concerning the exception relating to the protection of court proceedings provided for in the second indent of Article 4(2) of Regulation No 1049/2001, the grounds for refusal are to be interpreted in a restrictive way, taking into account the public interest served by disclosure and whether the information requested relates to emissions into the environment.

64      In addition, it is necessary to include in the concept of ‘information [which] relates to emissions into the environment’ information enabling the public to check whether the assessment of actual or foreseeable emissions, on the basis of which the competent authority authorised the product or substance in question, is correct, and the data relating to the effects of those emissions on the environment. It is apparent, in essence, from recital 2 of Regulation No 1367/2006 that the purpose of access to environmental information provided by that regulation is, inter alia, to promote more effective public participation in the decision-making process, thereby increasing, on the part of the competent bodies, the accountability of decision-making and contributing to public awareness and support for the decisions taken. In order to be able to ensure that the decisions taken by the competent authorities in environmental matters are justified and to participate effectively in decision-making in environmental matters, the public must have access to information enabling it to ascertain whether the emissions were correctly assessed and must be given the opportunity reasonably to understand how the environment could be affected by those emissions (judgment of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889, paragraph 80).

65      Nevertheless, while it is not necessary to apply a restrictive interpretation of the concept of ‘information [which] relates to emissions into the environment’, that concept may not, in any event, include information containing any kind of link, even direct, to emissions into the environment. If that concept were interpreted as covering such information, it would to a large extent deprive the concept of ‘environmental information’ as defined in Article 2(1)(d) of Regulation No 1367/2006 of any meaning (judgment of 23 November 2016, Commission v Stichting Greenpeace Nederland and PAN Europe, C‑673/13 P, EU:C:2016:889, paragraph 81).

66      It is also apparent from the case-law that the concept of information which ‘relates to emissions into the environment’ for the purposes of Article 6(1) of Regulation No 1367/2006 is not limited to information which makes it possible to assess the emissions as such, but also covers information relating to the effects of those emissions (judgment of 7 March 2019, Tweedale v EFSA, T‑716/14, EU:T:2019:141, paragraph 92).

67      In the present case, the applicant appears to infer the possible existence of information on emissions into the environment from the fact that it filed a request for internal review under Regulation No 1367/2006 and that, in that review procedure, exchanges took place with EFSA.

68      In accordance with the case-law referred to in paragraph 65 above, the concept of ‘information [which] relates to emissions into the environment’ cannot include information containing any kind of link to such emissions. Consequently, the mere fact that the review procedure is a procedure with a view to annulling the approval of the active substance cypermethrin does not, in itself, mean that the documents at issue contain information relating to emissions into the environment.

69      Nevertheless, it should be noted that, as stated in paragraph 53 above, the documents at issue include only the positions expressed by the Commission’s services on how to reply to the request for internal review. Consequently, those documents contain only information that was included in the final version of the detailed assessment sent to the applicant (see paragraph 6 above) and that enabled the public to ascertain whether the emissions into the environment were correctly assessed, within the meaning of the case-law cited in paragraph 64 above. The Commission therefore correctly stated in the contested decision that ‘no scientific assessment with self-standing (new) environmental information, or information related to emissions into the environment is being carried out and was actually carried out in the case at stake’.

70      Furthermore, as regards the Commission’s request that EFSA examine the scientific information provided by the applicant, it must be held that the outcome of that analysis, namely the technical report of EFSA of 15 March 2022, was sent to the applicant. In the Commission’s view, all the correspondence between it and EFSA concerning the assessment of the scientific information submitted by the applicant in the request for internal review was disclosed, with only personal data having been redacted in reply to the initial request. Thus, the applicant had access to the analyses of the scientific elements of the case, which enabled it to check the data relating to the effects of the emissions on the environment and to understand the reasons behind the re-approval of cypermethrin.

71      It follows from the foregoing considerations that the applicant has not established the existence of a public interest that would justify granting it access to the documents at issue.

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

73      First, the applicant claims, for the first time before the General Court, that everyone has the right of access to his or her file, in accordance with Article 41(2)(b) of the Charter of Fundamental Rights. In its view, that right justifies a particularly restrictive interpretation of the exception relating to the protection of court proceedings. Secondly, the applicant submits that the disclosure of the documents at issue would be the sign of an open, in-depth and unbiased review of its request.

74      In that regard, it should be recalled that, under Article 1 TEU, that treaty ‘marks 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’. Article 10(3) TEU provides that every citizen is to have the right to participate in the democratic life of the Union and that decisions are to be taken as openly and as closely as possible to the citizen. Similarly, 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’. 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, paragraphs 55 and 56).

75      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. However, the fundamental nature of the principle of openness means that the exceptions derogating from it are to be interpreted and applied strictly. 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 (see, to that effect, judgment of 26 July 2023, Troy Chemical Company v Commission, T‑662/21, not published, EU:T:2023:442, paragraphs 82 to 84).

76      In the present case, 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 the documents at issue, without that being contrary to the principle of openness. Thus, the arguments referred to in paragraph 73 above must be rejected, as must the third part of the first plea in its entirety.

77      For all those reasons, the Commission could validly refuse to grant access to the documents at issue, on the basis of the second indent of Article 4(2) of Regulation No 1049/2001. The first plea must therefore be rejected.

78      According to the case-law, in order for the contested decision to be well founded in law, it is sufficient if one of the exceptions put forward by the Commission in order to refuse access to the requested documents was justified (judgments of 11 July 2018, ClientEarth v Commission, T‑644/16, not published, EU:T:2018:429, paragraph 78, and of 25 November 2020, Bronckers v Commission, T‑166/19, EU:T:2020:557, paragraph 78).

79      Consequently, the action must be dismissed, without there being any need to examine the merits of the second plea, in so far as it alleges infringement of the second subparagraph of Article 4(3) of Regulation No 1049/2001 concerning the exception relating to the protection of the decision-making process.

 Costs

80      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 (Fourth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Pesticide Action Network Europe (PAN Europe) to pay the costs.

Delivered in open court in Luxembourg on 13 November 2024.

*      Language of the case: English.

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