The Court confirms that an initial refusal under the access to documents regulation cannot be challenged directly before the Court
Brief for the Order of the General Court (Sixth Chamber) – Case T-507/25 Access Info Europe v European Commission. Published on April 8th – Ruling: Inadmissibility
The Dispute
Access Info Europe, a Madrid-based transparency NGO requested access in March 2025 to three preparatory documents held by the Commission’s DG SANTE, these being the impact assessment report, the Regulatory Scrutiny Board opinion, and the minutes of a RSB-SANTE upstream meeting, which related to the then ongoing revision of the Food Information to Consumers Regulation (Reg (EU) No 1169/2011). The Commission refused access under Article 4 (3) of Regulation 1049/2001, which protects documents relating to ongoing decision-making processes.
Access Info Europe (AIE) submitted a confirmatory application in April 2025, as required by the two-stage procedure under Regulation 1049/2001, to which the Commission failed to respond within either the standard or extended deadline, which expired on May 30th, 2025. It wouldn’t be until 24th July 2025, nearly two months late, that the Commission issued an express decision refusing access. AIE had, in the meantime, brought an action before the General Court on 28 July 2025, directed not at the late express decision but at the original 3 April 2025 initial refusal.
The Ruling
The General Court dismissed the action as inadmissible. The Court confirmed settled case law that the two-stage access to documents procedure under Regulation 1049/2001 means only the response to a confirmatory application constitutes a reviewable act under Article 263 TFEU. The initial refusal is merely a first-stage position not open to challenge.
The Court also addressed Access Info Europe’s procedural argument head-on. The applicant had contended that because the Commission failed to respond within the extended deadline of 30 May 2025, an implied refusal arose on that date under Article 8(3) of Regulation 1049/2001, and that this should either trigger the action window against the initial decision or mean no subsequent express decision could be valid.
The Court rejected both contentions. First, it confirmed that an institution retains the power to issue an express confirmatory decision even after the prescribed deadline expires, without that delay constituting an infringement of effective judicial protection (the implied decision remains open to challenge in the meantime). Second, when the Commission issued its express decision on 24 July 2025, before the action was brought and before the action window against the implied decision had closed, that express decision implicitly withdrew the implied refusal and became the only act capable of being challenged. The correct challengeable act was therefore the letter of 24 July 2025, not the 3 April 2025 initial refusal.
Access Info Europe was ordered to pay costs.
