Corte di giustizia UE n. 1049/2026

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 8 April 2026 ( * ) ( Action for annulment – [OSCURATO:PERSONA] to documents – [OSCURATO:PERSONA] (EC) No 1049/2001 – Documents relating to the revision of [OSCURATO:PERSONA] (EU) No 1169/2011 – Initial refusal of access – Act not open to challenge – Inadmissibility ) [OSCURATO:PERSONA] T‑507/25, [OSCURATO:PERSONA], established in Madrid (Spain), represented by R. Hable, lawyer, applicant, v [OSCURATO:PERSONA], represented by M. [OSCURATO:PERSONA] and K. Herrmann, acting as Agents, defendant, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of P. Škvařilová-[OSCURATO:PERSONA], [OSCURATO:PERSONA], I. Nõmm and R. Pezzuto (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: V. [OSCURATO:PERSONA], having regard to the written part of the procedure, makes the following [OSCURATO:PERSONA] 1 By its action under [OSCURATO:PERSONA] 263 TFEU, the applicant, [OSCURATO:PERSONA], seeks the annulment of the decision of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. 3 On 3 March 2025, via the platform ‘asktheEU.org’, the applicant, on the basis of [OSCURATO:PERSONA] (EC) No 1049/2001 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 30 May 2001 regarding public access to [OSCURATO:PERSONA], [OSCURATO:PERSONA] and [OSCURATO:PERSONA] documents (OJ 2001 L 145, p. 43), requested access to three documents from the [OSCURATO:PERSONA][OSCURATO:PERSONA] for Health and [OSCURATO:PERSONA], namely the impact assessment report, the opinion of the [OSCURATO:PERSONA] and the minutes of the upstream-meeting ‘RSB – SANTE’ (‘the requested documents’), relating to the revision process of [OSCURATO:PERSONA] (EU) No 1169/2011 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA], and repealing [OSCURATO:PERSONA] 87/250/EEC, [OSCURATO:PERSONA] 90/496/EEC, [OSCURATO:PERSONA] 1999/10/EC, [OSCURATO:PERSONA] 2000/13/EC of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA], [OSCURATO:PERSONA] 2002/67/EC and 2008/5/EC and [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] notified the applicant of an extension of the time limit for reply, pursuant to [OSCURATO:PERSONA] 7(3) of [OSCURATO:PERSONA] 1049/2001. 5 By letter of 3 April 2025, the [OSCURATO:PERSONA] refused access to the requested documents under the exception provided for by the first paragraph of [OSCURATO:PERSONA] 4(3) of [OSCURATO:PERSONA] 1049/2001 (‘the decision of 3 April 2025’). 6 On 9 April 2025, the applicant submitted, on the basis of [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA], in accordance with [OSCURATO:PERSONA] 8(2) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] on 28 July 2025, the applicant brought the present action. Forms of order sought 10 In the application, the applicant claims that the [OSCURATO:PERSONA] should: –        annul the decision of 3 April 2025; –        order the [OSCURATO:PERSONA] to pay the costs, including the costs of any intervening parties. 11 By separate document lodged at the Registry of the [OSCURATO:PERSONA] on 9 October 2025, the [OSCURATO:PERSONA] raised a plea of inadmissibility pursuant to [OSCURATO:PERSONA] 130(1) of the Rules of Procedure of the [OSCURATO:PERSONA], in which it contended that the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. It claims, in essence, that the [OSCURATO:PERSONA] should dismiss the plea of inadmissibility. Law 13 Pursuant to [OSCURATO:PERSONA] 130(1) and (7) of the Rules of Procedure, the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] has applied for a decision on inadmissibility, the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 1049/2001, is capable of being the subject of an action for annulment under [OSCURATO:PERSONA] 263 TFEU. 15 The applicant contests the plea of inadmissibility raised by the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA], contrary to the wording of [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 47 of the Charter of [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]. 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 8 of [OSCURATO:PERSONA] 1049/2001, the act expressing the definitive legal position of the [OSCURATO:PERSONA]. 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 [OSCURATO:PERSONA] 7 of [OSCURATO:PERSONA] 1049/2001, is only the first position adopted which is, in principle, not actionable (see judgment of 14 July 2016, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , 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 [OSCURATO:PERSONA] , T‑151/21, not published, EU:T:2022:208, paragraph 26). 20 [OSCURATO:PERSONA] 7(2) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 263 TFEU (see order of 12 November 2021, Courtois and Others v [OSCURATO:PERSONA] , 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 8(1) of that regulation, which may be extended under [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] , 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 [OSCURATO:PERSONA] 8(1) and (2) of [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] , 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] , T‑569/19, EU:T:2021:628, paragraph 27). 25 In the present case, the [OSCURATO:PERSONA], 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 [OSCURATO:PERSONA] 8(3) of [OSCURATO:PERSONA] 1049/2001. However, by letter of 24 July 2025, which was notified to the applicant the next day (see paragraph 8 above), the [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] withdrew the implied decision (see, to that effect, judgment of 29 September 2021, AlzChem Group v [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 144(3) of the Rules of Procedure, where the defendant lodges a plea of inadmissibility, as provided in [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA] 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 [OSCURATO:PERSONA]. 31 In addition, under [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, Foodwatch is to bear its own costs relating to the application to intervene. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The action is dismissed as inadmissible. 2. There is no need to adjudicate on Foodwatch eV’s application to intervene. 3. [OSCURATO:PERSONA] shall bear its own costs and pay those incurred by the [OSCURATO:PERSONA]. 4. Foodwatch eV shall bear its own costs relating to the application to intervene. Luxembourg, 8 April 2026. V. [OSCURATO:PERSONA] P. Škvařilová-[OSCURATO:PERSONA] * Language of the case: English.