T-507/25

ORDER OF THE GENERAL COURT (Sixth Chamber) 8 April 2026 (*) ( Action for annulment – Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the revision of Regulation (EU) No 1169/2011 – Initial refusal of access – Act not open to challenge – Inadmissibility ) In Case T‑507/25, Access Info Europe, established in Madrid (Spain), represented by R. Hable, lawyer, applicant, v European Commission, represented by M. Burón Pérez and K. Herrmann, acting as Agents, defendant, THE GENERAL COURT (Sixth Chamber), composed of P. Škvařilová-Pelzl, President, I. Nõmm and R. Pezzuto (Rapporteur), Judges, Registrar: V. Di Bucci, having regard to the written part of the procedure, makes the following Order 1        By its action under Article 263 TFEU, the applicant, Access Info Europe, seeks the annulment of the decision of the European Commission of 3 April 2025 to reject the applicant’s initial application for access to certain documents.  Background to the dispute 2        The applicant is a non-profit organisation, established as an association under Spanish law, whose activity consists in promoting and protecting the right of access to information in Europe. 3        On 3 March 2025, via the platform ‘asktheEU.org’, the applicant, 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 three documents from the Commission’s Directorate-General for Health and Food Safety, namely the impact assessment report, the opinion of the Regulatory Scrutiny Board and the minutes of the upstream-meeting ‘RSB – SANTE’ (‘the requested documents’), relating to the revision process of Regulation (EU) No 1169/2011 of the European Parliament and of the Council of 25 October 2011 on the provision of food information to consumers, amending Regulations (EC) No 1924/2006 and (EC) No 1925/2006 of the European Parliament and of the Council, and repealing Commission Directive 87/250/EEC, Council Directive 90/496/EEC, Commission Directive 1999/10/EC, Directive 2000/13/EC of the European Parliament and of the Council, Commission Directives 2002/67/EC and 2008/5/EC and Commission Regulation (EC) No 608/2004 (OJ 2011 L 304, p. 18). That request was registered, on 7 March 2025, under the reference EASE 2025/1345 (‘the request at issue’). 4        On 28 March 2025, the Commission notified the applicant of an extension of the time limit for reply, pursuant to Article 7(3) of Regulation No 1049/2001. 5        By letter of 3 April 2025, the Commission refused access to the requested documents under the exception provided for by the first paragraph of Article 4(3) of Regulation No 1049/2001 (‘the decision of 3 April 2025’). 6        On 9 April 2025, the applicant submitted, on the basis of Article 7(2) of Regulation No 1049/2001, a confirmatory application for access to the requested documents. That confirmatory application was registered on 10 April 2025. 7        On 6 May 2025, the Commission, in accordance with Article 8(2) of Regulation No 1049/2001, notified the applicant of an extension of the time limit for reply, which was now set at 30 May 2025. 8        By letter of 24 July 2025, almost two months after the expiry of the time limit referred to in paragraph 7 above, the Commission adopted the decision in response to the confirmatory application, which was notified to the applicant the following day (‘the letter of 24 July 2025’). 9        By application lodged at the Registry of the General Court on 28 July 2025, the applicant brought the present action.  Forms of order sought 10      In the application, the applicant claims that the Court should: –        annul the decision of 3 April 2025; –        order the Commission to pay the costs, including the costs of any intervening parties. 11      By separate document lodged at the Registry of the General Court on 9 October 2025, 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 General Court should: –        dismiss the action as manifestly inadmissible; –        order the applicant to pay the costs. 12      On 21 November 2025, the applicant lodged its observations on the plea of inadmissibility raised by the Commission. It claims, in essence, that the General Court should dismiss the plea of inadmissibility.  Law 13      Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility or lack of competence without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.  The claim for annulment 14      The Commission contends that the action is inadmissible on the ground that it is directed against an act which is not challengeable, in so far as it does not produce binding legal effects capable of bringing about a distinct change in the applicant’s legal position. The decision of 3 April 2025, as a response to an initial application for access to requested documents, constitutes merely an initial statement of position in the context of the procedure relating to access to documents, which cannot be regarded as being a challengeable act. In that regard, only the decision adopted in response to a confirmatory application for access, submitted on the basis of Article 7(2) of Regulation No 1049/2001, is capable of being the subject of an action for annulment under Article 263 TFEU. 15      The applicant contests the plea of inadmissibility raised by the Commission and maintains that the letter of 24 July 2025 cannot be regarded as a confirmatory decision, which, by triggering a new time limit for bringing an action for annulment, can legitimately be challenged under Article 263 TFEU. That letter cannot retroactively and unilaterally revoke the legal effects of the expiry of the legally prescribed time limit set for 30 May 2025. To allow the Commission, contrary to the wording of Article 8(3) of Regulation No 1049/2001, to issue a confirmatory decision subsequent to the expiry of that time limit would seriously infringe on the right to effective judicial protection and, in particular, the principle of equality of arms enshrined in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union. 16      Therefore, according to the applicant, because the time limit for bringing an action for annulment started to run on 30 May 2025, the only question that remains is whether the act open to challenge is the implied decision of 30 May 2025 or the decision of 3 April 2025. 17      In that regard, the applicant submits, first, that the implied decision of 30 May 2025 cannot constitute an act open to challenge. An action for annulment challenging the implied decision cannot rely on any reasoned pleas in substance but only on the procedural defect of the Commission not having responded within the legally prescribed time limit. Furthermore, that implied decision, since it does not contain any reasoning, does not protect either the right of the applicant to access documents or the public and private interests of third parties which must be safeguarded by means of an exception to that right and, in particular, by balancing those interests against that right to access documents. 18      Second, the applicant submits that, in the absence of a confirmatory decision from the Commission within the legally prescribed time limit which expired on 30 May 2025, the decision of 3 April 2025 loses its preliminary nature and becomes, in accordance with Article 8 of Regulation No 1049/2001, the act expressing the definitive legal position of the Commission. Therefore, the decision of 3 April 2025 is the only open to challenge in the present case. 19      As a preliminary point, 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 is, in principle, not actionable (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, and order of 25 March 2022, Saure v Commission, T‑151/21, not published, EU:T:2022:208, paragraph 26). 20      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. Only the measure adopted by the institution concerned 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, consequently, of being the subject of an action for annulment under Article 263 TFEU (see order of 12 November 2021, Courtois and Others v Commission, T‑669/21, not published, EU:T:2021:810, paragraph 11 and the case-law cited). 21      In the present case, it is apparent from the form of order sought and pleas in law in the application that the applicant is seeking the annulment of the decision of 3 April 2025, which was adopted by the Commission in response to the application at issue, namely the initial application of 3 March 2025, and not the annulment of the decision adopted in response to the confirmatory application submitted by the applicant. 22      In that regard, first, it follows from Article 8(3) of Regulation No 1049/2001 that the lack of response of the institution concerned to a confirmatory application for access within the prescribed time limit, namely the time limit required by Article 8(1) of that regulation, which may be extended under Article 8(2) of that regulation, constitutes a decision to refuse access. Second, that implied decision constitutes the starting point for the period within which the person concerned may bring an action for annulment against that decision (see order of 12 November 2021, Courtois and Others v Commission, T‑669/21, not published, EU:T:2021:810, paragraph 17 and the case-law cited). 23      Next, contrary to what the applicant, in essence, claims in its observations on the plea of inadmissibility, the expiry of the time limit provided for by Article 8(1) and (2) of Regulation No 1049/2001 does not have the effect of depriving the institution of the power to adopt an express confirmatory decision. On the contrary, the administration remains obliged, in principle, even belatedly, to provide a reasoned response to applications for access made by a citizen and, accordingly, retains its power to respond to an application for access to documents outside the prescribed time limit (see, to that effect, judgment of 19 January 2010, Co-Frutta v Commission, T‑355/04 and T‑446/04, EU:T:2010:15, paragraphs 56 and 59), without that delay entailing an infringement of the right to effective judicial protection. As is apparent from the case-law cited in paragraph 22 above, the person concerned may, in any event, bring an action for annulment in accordance with the provisions of Article 263 TFEU against the implied decision refusing access. 24      Finally, where the institution concerned responds expressly and definitively to the confirmatory application by refusing access to the documents in question, it implicitly but necessarily withdraws the implied decision refusing access (see, to that effect, judgment of 29 September 2021, AlzChem Group v Commission, T‑569/19, EU:T:2021:628, paragraph 27). 25      In the present case, the Commission, did not respond to the applicant’s confirmatory application within either the initial time limit or within the extended time limit, which expired on 30 May 2025. Therefore, an implied decision refusing access arose on 30 May 2025 pursuant to Article 8(3) of Regulation No 1049/2001. However, by letter of 24 July 2025, which was notified to the applicant the next day (see paragraph 8 above), the Commission adopted an express decision refusing access, admittedly after the expiry of the extended period, but before the expiry of the time limit for bringing an action against the implied decision and before the present action was brought against the decision of 3 April 2025. Accordingly, by adopting that express decision, the Commission withdrew the implied decision (see, to that effect, judgment of 29 September 2021, AlzChem Group v Commission T‑569/19, EU:T:2021:628, paragraphs 25 and 29). 26      Therefore, the decision capable of being the subject of an action for annulment, at the time when the applicant brought the present action, was the letter of 24 July 2025, which is to say the express decision rejecting the confirmatory application, of which the applicant became aware the following day. 27      Consequently, in so far as it is directed against the decision of 3 April 2025, adopted by the Commission in response to the application at issue, namely the initial application of 3 March 2025, the present action concerns an act which is not open to challenge and must be dismissed as inadmissible.  The application to intervene 28      Pursuant to Article 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility, as provided in Article 130(1) of those rules, a decision on the application to intervene is not to be given until after the plea has been rejected or the decision on the plea reserved. Furthermore, under Article 142(2) of those rules, the intervention is to become devoid of purpose, inter alia, where the application is declared inadmissible. 29      Given that the plea of inadmissibility raised by the Commission has been upheld in the present case and that the present order therefore closes the proceedings, there is no longer any need to adjudicate on the application made by Foodwatch eV to intervene in support of the pleas of the applicant.  Costs 30      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. 31      In addition, under Article 144(10) of the Rules of Procedure, Foodwatch is to bear its own costs relating to the application to intervene. On those grounds, THE GENERAL COURT (Sixth Chamber) hereby orders: 1.      The action is dismissed as inadmissible. 2.      There is no need to adjudicate on Foodwatch eV’s application to intervene. 3.      Access Info Europe shall bear its own costs and pay those incurred by the European Commission. 4.      Foodwatch eV shall bear its own costs relating to the application to intervene. Luxembourg, 8 April 2026. V. Di Bucci   P. Škvařilová-Pelzl Registrar   President *      Language of the case: English.