Molitorisova v Commission (Action for annulment - Access to documents - Order) [2025] EUECJ T-353/24_CO (14 April 2025)

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Cite as: [2025] EUECJ T-353/24_CO

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ORDER OF THE GENERAL COURT (Fifth Chamber)

14 April 2025 (*)

(Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Regulation (EC) No 234/2011 - Article 76(d) of the Rules of Procedure - Premature confirmatory application - Absence of a challengeable act - Inadmissibility )

In Case T‑353/24,

Alexandra Molitorisová, residing in Kulmbach (Germany), represented by K. Purnhagen, professor,

applicant,

v

European Commission, represented by M. Burón Pérez and A.-C. Simon, acting as Agents,

defendant,

THE GENERAL COURT (Fifth Chamber),

composed of J. Svenningsen, President, J. Laitenberger (Rapporteur) and J. Martín y Pérez de Nanclares, Judges,

Registrar: V. Di Bucci,

makes the following

Order

1        By her action based on Article 263 TFEU, Alexandra Molitorisová seeks annulment of the alleged implied decision of the European Commission of 16 November 2020 by which it refused her access to certain documents relating to food additives and food enzymes due to failure to reply to her alleged confirmatory application within the required time limit.

 Background to the dispute

2        On 25 March 2024, the applicant, acting on the basis of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), requested access to 'all public summaries of dossiers supporting applications for food additives and food enzymes [pursuant to Article 2(1)(c) of Commission Regulation (EU) No 234/2011 of 10 March 2011 implementing Regulation (EC) No 1331/2008 of the European Parliament and of the Council establishing a common authorisation procedure for food additives, food enzymes and food flavourings (OJ 2011 L 64, p. 15)] that were ever received by the Commission or are in possession of the Commission' ('the request for access').

3        The request for access was made via the portal of the EASE platform and was registered under the reference GestDem 2024/1651.

4        On 16 April 2024, the Commission informed the applicant that the request for access concerned a very large number of documents from third parties which would need to be assessed individually and that the detailed analysis of those documents, together with the need to consult the third parties concerned, could not be carried out within the time limits laid down in Article 7 of Regulation No 1049/2001. Consequently, it asked her to specify the objective of that request and her specific interest in the documents requested, with a view to finding a fair solution pursuant to Article 6(3) of that regulation. It was stated that, in the absence of a reply within five working days, the Commission would unilaterally restrict the scope of that request, so that it could be dealt with within 30 working days.

5        By email of 18 April 2024, the Commission informed the applicant that it was not able to deal with her request for access within the time limit required by Article 7(1) of Regulation No 1049/2001 and that it was extending that time limit by 15 working days until 13 May 2024, pursuant to Article 7(3) of that regulation.

6        On 18 April 2024, the applicant informed the Commission that she objected to a limitation on the scope of her request for access.

7        By letter of 7 May 2024, the Commission informed the applicant that, in the absence of a mutual agreement on a fair arrangement and given the workload that would result from dealing with the request for access, its scope would be reduced to 30 documents, namely 14 food additives applications and 16 food enzymes applications received in 2023, which could be dealt with within 30 working days from the date of registration of the request for access. The Commission's letter further informed the applicant of her rights under Article 7(2) of Regulation No 1049/2001 in the following terms:

'In accordance with Article 7(2) of Regulation (EC) No 1049/2001, you are entitled to make a confirmatory application requesting the Commission to review this position.

Such a confirmatory application should be addressed to the Secretariat-General of the Commission within 15 working days upon receipt of this letter.'

8        By email of 8 May 2024, the applicant made a confirmatory application asking the Commission to reconsider its position as expressed in its letter of 7 May 2024. The Commission acknowledged receipt of that email the same day.

9        On 13 May 2024, the Commission informed the applicant that it was not able to deal with the reduced request for access in accordance with her letter of 7 May 2024 within the time limit expiring the same day, but that it would endeavour to provide the documents covered by the request as soon as possible.

10      By email of 29 May 2024, the applicant reminded the Commission of her confirmatory application of 8 May 2024. In that same email, she informed the Commission of technical issues preventing her from accessing the dossier on her request for access via the portal of the EASE platform.

11      By email of 3 June 2024, the Commission informed the applicant that a reply to her request for access was in the process of being signed by the hierarchy and would be sent to her as soon as possible. In that same email, the Commission explained that the confirmatory application of 8 May 2024 could not be registered as such, since she had submitted it to the Commission before expiry of the time limit for replying to the request for access, but that the applicant was entitled to submit a fresh confirmatory application for lack of initial reply within the required time limit.

12      On 3 June 2024, the applicant replied to the email referred to in paragraph 11 above, explaining that she had made a confirmatory application on 8 May 2024 in accordance with the information contained in the Commission's letter of 7 May 2024, and that on 8 May 2024 she had received an acknowledgement of receipt of her email of that same day, with the result that her letter of 8 May 2024 had to be regarded as a confirmatory application triggering the time limits for reply laid down in Article 8 of Regulation No 1049/2001.

13      By letter of 19 June 2024, the Commission replied to the request for access and provided the applicant with 26 documents to which it decided to grant full access, as well as 2 documents to which it granted partial access pursuant to the exceptions provided for in Article 4 of Regulation No 1049/2001. The Commission further informed the applicant that access to two documents had to be denied pursuant to those exceptions. In that same letter, the Commission informed the applicant of her right to make a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 requesting the Commission to reconsider its position as set out in that letter.

 Forms of order sought

14      The applicant claims that the Court should:

–        annul the 'implied decision of the defendant of 16 November 2020 to refuse access to certain documents relating to food additives and food enzymes sought pursuant to [Regulation No 234/2011]';

–        order the Commission to pay the costs.

15      By separate document lodged at the Registry of the General Court on 3 December 2024, the Commission raised a plea of inadmissibility pursuant to Article 130(1) of the Rules of Procedure of the General Court, in which it contended that the Court should:

–        dismiss the action as manifestly inadmissible;

–        order the applicant to pay the costs.

16      On 17 January 2025, the applicant lodged her observations on the objection of inadmissibility raised by the Commission. She claims that the Court should declare the action to be admissible and order the Commission to pay the costs.

 Law

17      Under Article 130(1) and (7) of the Rules of Procedure, if the defendant so requests, the Court may rule on inadmissibility or lack of competence without going to the substance of the case. In the present case, since the Commission requested a ruling on the inadmissibility of the action, the Court, considering that it has sufficient information from the material in the file, has decided to rule on that application without taking further steps in the proceedings.

18      The Commission contends that the present action is inadmissible on the ground that it seeks annulment of a non-existent decision impliedly adopted by it on 16 November 2020. Therefore, the annulment of that alleged decision cannot in any way benefit the applicant who has, therefore, no interest in that decision being annulled. Furthermore, the Commission contends that its letter of 7 May 2024 did not constitute a reply to her request for access pursuant to Article 7(1) of Regulation No 1049/2001, but that it merely stated that no fair arrangement pursuant to Article 6(3) of that regulation had been found. In those circumstances, and given that the extended time limit for replying to the request for access expired only on 13 May 2024, the applicant's email of 8 May 2024 could not be registered as a confirmatory application pursuant to Article 7(2) of that regulation. The incorrect information contained in the Commission's letter of 7 May 2024 about the possibility of lodging such a confirmatory application requesting the Commission to reconsider its position as expressed in that letter was without prejudice to the possibility for the applicant to familiarise herself with the remedies available to her. By its email of 3 June 2024, the Commission informed the applicant that, in view of the lack of reply to the request for access, she was entitled to make a fresh confirmatory application. Furthermore, by its letter of 19 June 2024, the Commission informed the applicant of her right to make a confirmatory application within 15 working days following receipt of the reply to her request for access. However, the applicant did not make a confirmatory application against the absence of an explicit reply by the expiry of the time limit for reply of 13 May 2024, or against the explicit reply of 19 June 2024. Consequently, even if the action is construed as seeking annulment of the explicit reply of 19 June 2024, the Court finds that, in the absence of a confirmatory application, that reply does not constitute a decision capable of affecting the applicant's interests and, therefore, of being challenged through an action for annulment under Article 263 TFEU.

19      In her observations on the objection of inadmissibility, the applicant explains that the reference in the application to the existence of an implied decision by the Commission of 16 November 2020 is merely a typing error. Despite that error, the Commission was able to identify the partial refusal to grant full access to the public, non-confidential version of the documents sought, as communicated to the applicant by the letter of 7 May 2024, as being the decision annulment of which was sought. The applicant submits that, by unilaterally limiting the scope of the request for access to 30 documents, that email already contained a statement of position by the Commission which could be challenged by a confirmatory application under Article 7(2) of Regulation No 1049/2001. Therefore, in so far as her confirmatory application made on 8 May 2024 gave rise to an implied refusal decision upon expiry of the time limit provided for in Article 8 of that regulation, that decision could also be challenged through the present action. Lastly, the applicant asks the Court to identify any other negative decision relating to her confirmatory application formally notified to her by the Commission via the portal of the EASE platform.

20      In the present case, first, the Court finds that, although in her application the applicant formally requests annulment of an alleged implied decision of 16 November 2020 to refuse her request for access to documents, she nevertheless recognised, in her observations on the Commission's objection of inadmissibility, that it was a typing error.

21      Second, in her observations on the objection of inadmissibility, the applicant expressly clarified that the action was directed mainly at the letter of 7 May 2024, referred to in paragraph 7 above, and, in the alternative, at the alleged implied decision to refuse the confirmatory application of 8 May 2024, referred to in paragraph 8 above. The applicant further stated that, in the further alternative, her action must be understood as being directed at 'any other document, which the Court finds that it would qualify as a negative decision on a confirmatory application and had been delivered through the [portal of the EASE platform] in a legally effective way'.

22      It is accordingly appropriate to examine first of all whether, as the Commission contends, in essence, the letter of 7 May 2024, referred to in paragraph 7 above, and the alleged implied decision to refuse the confirmatory application of 8 May 2024, referred to in paragraph 8 above, may not be challenged through an action for annulment.

23      In that regard, it should be borne in mind that, according to settled case-law, the procedure for access to documents held by the institutions is carried out in two stages and that the response to an initial application within the meaning of Article 7 of Regulation No 1049/2001 is only the first position adopted which, in principle, cannot be subject to an appeal (see judgment of 14 July 2016, Sea Handling v Commission, C‑271/15 P, not published, EU:C:2016:557, paragraph 76 and the case-law cited; order of 25 March 2022, Saure v Commission, T‑151/21, not published, EU:T:2022:208, paragraph 26).

24      Under Article 7(2) of Regulation No 1049/2001, that initial statement of position entitles the applicant to make, within 15 working days of receiving the reply of the institution concerned, a confirmatory application asking the institution to reconsider its position. Similarly, under Article 7(4) of that regulation, failure by the institution to reply within the prescribed time limit entitles the applicant to make a such an application.

25      The making of a confirmatory application must enable the institution concerned to re-examine its position before taking a definitive refusal decision which could be the subject of an action before the Courts of the European Union. Such a procedure makes it possible to process initial applications more promptly and, consequently, more often than not to meet the applicant's expectations, while also enabling the institution to adopt a detailed position before definitively refusing access to the documents sought by the applicant, in particular where the applicant reiterates the request for disclosure of those documents notwithstanding a reasoned refusal by that institution (see order of 10 November 2011, Agapiou Joséphidès v Commission and EACEA, C‑626/10 P, not published, EU:C:2011:726, paragraph 94 and the case-law cited).

26      Thus, only the measure adopted by the Commission in response to a confirmatory application, which replaces the initial statement of position, is a decision and is capable of producing legal effects such as to affect the applicant's interests and, therefore, being the subject of an action for annulment under Article 263 TFEU (see, to that effect, order of 15 February 2012, Internationaler Hilfsfonds v Commission, C‑208/11 P, not published, EU:C:2012:76, paragraph 30 and the case-law cited).

27      In the present case, in the first place, the applicant asks for annulment of the letter of 7 May 2024.

28      In that regard, it should be borne in mind that, by the letter of 7 May 2024, the Commission merely stated that no fair arrangement under Article 6(3) of Regulation No 1049/2001 had been found and informed the applicant that, as a result, in the interest of sound administration, it would proceed with a unilateral limitation of the scope of the request for access.

29      It follows that the letter of 7 May 2024 does not contain the Commission's definitive position on the request for access to documents of 25 March 2024 and, therefore, is merely a preparatory measure adopted under the principle of sound administration in the course of the procedure for processing that request for access, without any intention of putting an end to that procedure (see, to that effect, order of 7 June 2017, De Masi v Commission, T‑11/16, not published, EU:T:2017:385, paragraph 47).

30      Moreover, as a preparatory act, the letter of 7 May 2024 is not capable of forming the subject matter of an action for annulment (see, to that effect, order of 7 June 2017, De Masi v Commission, T‑11/16, not published, EU:T:2017:385, paragraph 48).

31      Consequently, in so far as it is directed at the letter of 7 May 2024, the action is inadmissible.

32      In the second place, the applicant seeks annulment of the alleged implied decision to reject the confirmatory application of 8 May 2024, by which she asked the Commission to reconsider its position as expressed in its letter of 7 May 2024 regarding the reduction in the number of documents referred to in the request for access.

33      The Court finds that, in accordance with the case-law referred to in paragraphs 23 to 26 above, in the access to documents procedure, a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 may be made only against the decision setting out the Commission's initial statement of position.

34      Since, as established in paragraphs 27 to 31 above, the letter of 7 May 2024 does not constitute such an initial statement of position, the request of 8 May 2024 cannot be categorised as a confirmatory application.

35      Contrary to what the applicant claims, procedural economy does not justify allowing her to make a confirmatory application before the close of the first phase of the access to documents procedure, that is to say, before expiry of the time limit for reply on 13 May 2024, on the ground that, in its letter of 7 May 2024, the Commission gave her to understand that it would reduce to 30 the number of documents covered by the request for access. Procedural economy requires that the Commission be able, where necessary, to communicate the reasons why it refused access to certain documents under inter alia the exceptions laid down in Article 4 of Regulation No 1049/2001, with the result that the applicant may, in a subsequent confirmatory application, articulate his or her arguments calling that assessment by the Commission into question.

36      It is true that, in the present case, the letter of 7 May 2024 contained incorrect information as to the possibility of making a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 asking the Commission to reconsider its position as expressed in that letter. That information may have misled the applicant as to the need to make a confirmatory application by way of reaction to the letter of 7 May 2024. However, that information does not change the nature of the letter of 7 May 2024 which, as held above, does not constitute an initial statement of position on the request for access of 25 March 2024.

37      Therefore, the applicant may not rely on the time limit for reply referred to in Article 8(3) of Regulation No 1049/2001, provided for in the event of absence of reply to a confirmatory application, to conclude that there was a challengeable implied decision to refuse her confirmatory application of 8 May 2024.

38      It follows from the foregoing that, inasmuch as the action is directed at an alleged implied decision to refuse the confirmatory application of 8 May 2024 within the meaning of Article 8(3) of Regulation No 1049/2001, it must be dismissed as inadmissible as there is no challengeable act.

39      In any event, by the adoption of an explicit decision to refuse partial access of 19 June 2024, the Commission de facto revoked the implied decision to refuse access (judgment of 15 January 2013, Strack v Commission, T‑392/07, not published, EU:T:2013:8, paragraph 67), which therefore disappeared from the EU legal order and, consequently, may no longer be the subject matter of an action for annulment.

40      Lastly, in so far as, in her observations on the objection of inadmissibility, the applicant submits, in the alternative, that the action must be understood as being directed at 'any other document, which the Court finds that it would qualify as a negative decision on a confirmatory application and had been delivered through the [portal of the EASE platform] in a legally effective way', it should be borne in mind that, in accordance with settled case-law, the subject matter of the dispute as delimited in the application lodged pursuant to Article 263 TFEU must enable the General Court to identify precisely the measures which the applicant seeks to have set aside, it being understood that the Court cannot, in any event, rule ultra petita by granting a form of annulment which goes beyond that sought by the applicant. Accordingly, such an application which does not expressly refer to the specific measure or measures annulment of which is sought and does not enable that measure or those measures to be identified with sufficient precision does not meet the requirements laid down by Article 76(d) of the Rules of Procedure (see judgment of 5 December 2018, Bristol-Myers Squibb Pharma v Commission and EMA, T‑329/16, not published, EU:T:2018:878, paragraph 33 and the case-law cited). Therefore, it is not for the Court to identify other refusal decisions which might be challenged in the present action and, since the application fails to identify such decisions, the Court finds that the action is inadmissible inasmuch as it seeks annulment of such decisions.

41      Consequently, the objection of inadmissibility raised by the Commission must be upheld and the action dismissed as inadmissible.

 Costs

42      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.

43      Under Article 135(2) of the Rules of Procedure, the Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if it has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

44      In the present case, the applicant has been unsuccessful in all of her claims. However, the Court finds that, as stated in paragraph 36 above, the letter of 7 May 2024 contained incorrect information which may have misled the applicant as to the possibility of making a confirmatory application pursuant to Article 7(2) of Regulation No 1049/2001 asking the Commission to reconsider its position as expressed in that letter.

45      Consequently, it is fair in the circumstances of the present case to order each party to bear its own costs.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      Each party shall bear its own costs.

Luxembourg, 14 April 2025.

V. Di Bucci

 

J. Svenningsen

Registrar

 

President


*      Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.


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