In short
On February 5, 2026, the European Court of Justice (ECJ) dismissed the European Commission’s appeal in Case C-540/23 P, confirming the Judgment of the General Court in Case T-201/21, Covington & Burling and Van Vooren v Commission.
The Court confirmed that Member States’ votes when adopting administrative EU acts are not subject to a general presumption of confidentiality. While the Court did not go as far as holding that such votes must always be disclosed, as we had argued; it set a very high threshold for any refusal of access.
The context
In 2017, the European Food Safety Authority (EFSA) adopted an opinion expressing safety concerns over Hydroxyanthracene Derivatives (HADs). HADs occur naturally in plants like cabbage, sprouts, rhubarb, and various botanicals. They are a defence mechanism of the plant against pests. In humans, in high concentrations HADs have a laxative effect.
In 2018, the Commission started work on banning laxatives with high concentrations of HADs, through a so-called “Implementing Regulation”. These are administrative acts of the EU executive that require a positive vote by a committee composed of twenty-seven (27) EU Member States.
By November 2020, the Commission pushed for the adoption of an Implementing Regulation with a much wider scope than laxatives. However, not all Member States agreed with the expanded scope of the draft implementing act.
The voting sheet for November 2020 shows that twenty-two (22) Member States voted in favour and five (5) Member States against, out of 27. This means that a Qualified Majority Vote (QMV) had been reached, although a “blocking minority” against the draft Act was just a hair away. And so the draft ban became law in April 2021.
But for those who had closely followed the process, something was off. Through informal conversations, it seemed that at least one (1) Member State had abstained. Why did this not show up in the voting sheet? And could this abstention have tilted the blocking minority the other way – so that the Act would not have been adopted?
These questions were why we filed the access request under Regulation 1049/2001 on public access to documents (the “EU Transparency Regulation”), to the votes of 22 Member States cast within the Committee. As this was a written procedure, we requested the emails by which the Member States had voted in favour, against, or abstained. This would allow us to confirm if and how QMV had indeed been reached. The Commission refused access, but critically, the Commission stated it refused access to twenty-one (21) votes in favour, not twenty-two (22) as indicated on the public voting sheet. This suggested that an abstention was counted as a vote in favour – but by which country? Given the Commission’s refusal, there was no way to know. Hence we decided to litigate and brought Case T-201/21.
The 2023 General Court Judgment (T-201/21) – no general presumption of confidentiality of Member States’ votes
At first instance, the General Court rejected the Commission’s position that Member States’ votes during the procedure to adopt implementing acts benefit from a general presumption of confidentiality.
The Court did not go so far to accept our argument that Member States’ votes should always be public in a democratic EU based on the rule of law. Nevertheless, the Court held that the Commission may refuse to disclose such votes only if it duly justifies, in a specific and concrete manner, how disclosure would have negative effects on the decision-making process. Because the Commission failed to do so, the General Court annulled that refusal.
On appeal, the Commission sought a second bite at the apple, reiterating that Member States votes in committee should always be confidential. We lodged a cross-appeal, maintaining that Member States’ votes should always be disclosed to ensure democratic legitimacy of EU decision-making.
The 2026 ECJ Judgment (C-540/23 P) – confirmation of a very high threshold for refusing access
On appeal, on February 5, 2026, the ECJ followed the General Court’s Judgment at first instance, while setting a very high threshold for refusal.
First, the ECJ rejected the existence of a general presumption of confidentiality applicable to Member States’ votes, holding that the legal framework governing comitology procedures cannot, in itself, preclude the right of access to documents under the EU Transparency Regulation.
Second, the ECJ confirmed that Member States’ votes in comitology constitute “opinions” for the purposes of Article 4(3) of the EU Transparency Regulation. On that point, it aligned with the General Court and rejected our argument that such votes must always be disclosed.
Third and critically, the ECJ set a very high threshold for the Commission to refuse access to votes. In this regard, the Court expressly stated that the application of Article 4(3) “does not mean that EU citizens are, in general, prevented from knowing which way those votes have gone”. Access may be refused only if disclosure would “seriously undermine the institution’s decision-making process” and, because that exception derogates from the principle of the “widest possible public access to documents of the EU institutions”, it must be interpreted and applied strictly.
Notably, the Court grounded its reasoning in democratic legitimacy (paras. 89-90). It held that, when assessing an EU Institution’s decision on access to documents, account must be taken of the advantages stemming from increased openness, insofar as it “enables citizens to participate more closely in the decision-making process” and ensures that the EU administration enjoys “greater legitimacy” and is “more accountable to the citizen in a democratic system.”
Crucially, the Court went on to make clear that these considerations not only apply when EU Institutions act in their legislative capacity, but also in the administrative decision-making process leading to the adoption of implementing acts of general scope, which – the Court agreed – “may affect EU citizens as a whole.”
The Court concluded by setting out the applicable standard of proof, requiring the Commission, when rejecting access to documents, to demonstrate (i) that disclosure would seriously undermine the decision-making process and (ii) that such negative consequences are concretely linked to the decision-making process concerned.
In the present case, the Commission decision did not set out any specific evidence capable of meeting this threshold and was rather based on abstract reasoning on the maintenance of cooperation between Member States in comitology procedures. Consequently, the ECJ dismissed the Commission’s appeal.
Why this Matters
While the ECJ did not go as far as holding that Member States’ votes on implementing acts must always be disclosed, it firmly rejected the Commission’s attempt to shield those votes behind a general presumption of confidentiality.
The full judgment in Case C-540/23 P can be found here. The General Court judgment under appeal can be found here.
Mathilde Raebisch of Covington & Burling LLP contributed to the preparation of this article.