Judgment of the General Court Fourth Chamber, 24 January 2024 Veritas v Commission, T-602/22

• Date: 24 January 2024
• Year: 2024

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de juges à la Cour suprême ainsi qu’un non-lieu à statuer sur les recours de cette nature encore

pendants . As regards the amendments thus introduced by that law, the Court of Justice has already

held that, particularly when viewed in conjunction with a set of other contextual factors, those

amendments are such as to suggest that the Polish legislature acted with the specific intention of

preventing any possibility of exercising judicial review of the resolutions concerned.

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In the sixth and last place, the Court explains that, while, admittedly, the effects of the judgment of

21 September 2021 of the Supreme Administrative Court referred to above do not relate to the

validity and effectiveness of the presidential acts of appointment to the judicial posts concerned, the

fact remains that the act by which the KRS puts forward a candidate for appointment to a judicial post

at the Supreme Court is an essential condition for that candidate to be appointed to such a post by

the President of the Republic of Poland.

In conclusion, the Court rules that the consequence of all the factors – both systemic and

circumstantial – referred to above, which characterised the appointment, within the Chamber of

Extraordinary Control, of the three judges constituting the referring body, is that that body does not

have the status of an independent and impartial tribunal previously established by law for the

purposes of the second subparagraph of Article 19(1) TEU, read in the light of the second paragraph

of Article 47 of the Charter, with the result that that panel does not constitute a ‘court or tribunal’

within the meaning of Article 267 TFEU. Those factors are such as to give rise to reasonable doubts in

the minds of individuals as to the imperviousness of the persons concerned and the adjudicating

panel on which they sit with regard to external factors, in particular the direct or indirect influence of

the national legislature and executive, and their neutrality with respect to the interests before them.

Those factors are thus capable of leading to a lack of appearance of independence or impartiality on

the part of those judges and of that body, which is likely to undermine the trust which justice in a

democratic society governed by the rule of law must inspire in those individuals.

2. INSTITUTIONAL PROVISIONS: RIGHT OF PUBLIC ACCESS TO

DOCUMENTS

Judgment of the General Court (Fourth Chamber), 24 January 2024 Veritas v Commission,

T-602/22

Link to the full text of the judgment

Access to documents – Regulation (EC) No 1049/2001 – Document disclosed in the context of an EU Pilot

procedure concerning the repayment of VAT – Document originating from a Member State – Refusal to

grant access – Prior agreement of the Member State – Exception relating to the protection of court

proceedings – Obligation to state reasons

In an action seeking annulment of a decision of the European Commission refusing access to a

document originating from a Member State, in its judgment, the General Court clarifies the distinction

between the formal requirement to state reasons for a refusal of access to documents and the

substantive legality of such a refusal. It also stipulates the methods of obtaining the prior agreement

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Judgment of 2 March 2021, A.B. and Others (Appointment of judges to the Supreme Court – Actions) (C-824/18, EU:C:2021:153,

paragraphs 137 and 138).

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provided for in Article 4(5) of Regulation No 1049/2001,

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regarding the disclosure of documents

originating from Member States, and the conditions for the application of the exception based on the

protection of court proceedings before the national courts,

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in the presence of such documents and

in the context of a possible reference for a preliminary ruling.

In the context of an EU Pilot procedure

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opened following the complaint of the applicant, Veneziana

Energia Risorse Idriche Territorio Ambiente Servizi SpA (Veritas), the Commission has asked the Italian

authorities for clarification concerning the arrangements for repayment of VAT unduly paid on the

Italian Environmental Hygiene Tax (TIAI). After being informed by the Commission that, having regard

to the response from the Italian authorities, it had decided not to open an infringement procedure for

failure to comply with EU law by those authorities, the applicant asked the Commission for a copy of

the Italian authorities’ response.

In its initial response, the Commission refused access to the Italian authorities’ response, on the

ground that its disclosure would undermine the protection of ongoing court proceedings in Italy,

pursuant to the second indent of Article 4(2) of Regulation No 1049/2001. By the contested

decision,

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the Commission confirmed the refusal to grant access, following the objection to the

disclosure of that letter by the Italian authorities pursuant to Article 4(5) of Regulation No 1049/2001,

on the basis of the exception provided for in the second indent of Article 4(2) of that regulation.

Findings of the Court

In the first place, the Court recalls that the obligation to state reasons is an essential procedural

requirement which must be distinguished from the question whether the reasoning is correct, the

latter being a matter which goes to the substantive legality of the contested measure. A measure

which lacks an adequate statement of reasons, for the purpose of the formal obligation to state

reasons, is one which does not make it possible to understand why, on what basis or for what reason

it was adopted, whereas the reasons for a measure and its justifications may be sufficiently known

and comprehensible, but inadequate to justify it in law, in that they are not substantiated, clear or

compliant with the relevant provisions.

As regards, in the second place, the applicant’s line of argument regarding the allegedly unlawful

reliance of the contested decision on Article 4(5) of Regulation No 1049/2001, in the absence of any

effective objection to disclosure by the Italian authorities, in particular before the initial response of

the Commission, the Court holds that it does not follow either from that provision or from the case-

law that, in order to be able to lodge an objection, the Member State which is the author of the

document at issue must first make a formal request specifically to the institution concerned, nor is it

necessary for the Member State to rely expressly on that provision. There is nothing in the wording of

that provision, which is a procedural provision dealing with the process of adoption of an EU decision

to indicate that the Member State must submit a formal request, without which the Member State’s

objection cannot be taken into account in the adoption of that decision. Thus, the Member State is

not required to proceed in two stages in order to object to the disclosure of one of its documents, first

by asking the Commission not to disclose the document in question without its prior agreement and

then by refusing to give that agreement.

It also follows that the fact that the Member State concerned is consulted under Article 4(4) of

Regulation No 1049/2001 does not preclude the subsequent application of Article 4(5) of that

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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).

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Pursuant to the second indent of Article 4(2) of Regulation No 1049/2001.

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EU Pilot procedure 9456/19/TAXUD concerning the repayment of v alue added tax (VAT) unduly paid on the Italian Environmental Hygiene

Tax (tariffa di igiene ambientale, established by Article 49 of decreto legislativo n. 22 (Legislative Decree No 22) of 5 February 1997).

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Commission Decision C(2022) 5221 final of 15 July 2022.

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regulation. Those two provisions were not considered to be mutually exclusive, but rather, as a

provision relating to third parties in general (paragraph 4) and a provision applying to specific third

parties, namely the Member States, and reiterating Declaration No 35 annexed to the Treaty of

Amsterdam (paragraph 5).

Besides, in order to ensure effective application of Article 4(5) of Regulation No1049/2001, in

particular by giving the Member State concerned the possibility of requiring its prior agreement to

disclose a document of which it is the author, the Court notes that it is also necessary for the Member

State to be informed of the existence of a request for access to that document, which is precisely the

subject of the consultation provided for in Article 4(4) of that regulation.

In the third place, the Court rejects the applicant’s argument, according to which the mere assertion

of the particular plausibility of a reference for a preliminary ruling by the Italian courts concerned is

not sufficient to justify the refusal to disclose the Italian authorities’ letter.

However, it recalls that, in order for the exception relating to the protection of court proceedings to

apply to documents which have not been drawn up in the context of specific court proceedings, the

documents requested must, at the time of adoption of the decision refusing access to those

documents, have a relevant link either with a dispute pending before the EU Courts, in respect of

which the institution concerned is invoking that exception, or with proceedings pending before a

national court, on condition that they raise a question of interpretation or validity of an act of EU law

so that, having regard to the context of the case, a reference for a preliminary ruling appears

particularly likely.

However, that case-law concerns the documents drawn up by the institutions themselves, and not, as

in the present case, documents originating from Member States and sent to an institution. In the case

of a document drawn up by an institution, the undermining of equality of arms and of the ability of

the institution concerned to defend itself can be brought only in the context of proceedings in which it

takes part, that is to say, proceedings taking place in principle before the EU Courts.

By contrast, in the case of a document originating from a Member State and linked to proceedings

pending before the national courts to which the State is a party, as in the present case, it is the

guarantee of equality of arms in those national proceedings which is taken into account. It follows

that the question whether a reference for a preliminary ruling by the Italian courts hearing the

national proceedings at issue was particularly plausible is irrelevant.

3. PROCEEDINGS OF THE EUROPEAN UNION: ACTIONS FOR

ANNULMENT

Order of the General Court (Third Chamber), 25 January 2024 Lukoil v Parliament and

Others, T-280/23

Link to the full text of the order

Action for annulment – Time limit for bringing proceedings – Out of time – Manifest inadmissibility

Hearing an action for annulment, which it dismisses as manifestly inadmissible on the ground that it

is out of time, the General Court applies, for the first time in a field other than civil service, the case-

law stemming from the judgment of 1 August 2022, Kerstens v Commission,

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concerning the

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Judgment of 1 August 2022, Kerstens v Commission (C-447/21 P, not published, EU:C:2022:612).