Order of the Court (Tenth Chamber) of 15 July 2026.#Emilio De Capitani v Council of the European Union.#Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Access to documents – Regulation (EC) No 1049/2001 – Working documents issued by the General Secretariat of the Council of the European Union – No publication, in the Council’s register, of documents submitted following a request for access – Article 10 and Article 16(8) TEU – Article 15 TFEU – No implied refusal to publish – No challengeable act – Appeal in part manifestly inadmissible and in part manifestly unfounded.#Case C-13/26 P.

ORDER OF THE COURT (Tenth Chamber)

15 July 2026 (*)

( Appeal – Article 181 of the Rules of Procedure of the Court of Justice – Access to documents – Regulation (EC) No 1049/2001 – Working documents issued by the General Secretariat of the Council of the European Union – No publication, in the Council’s register, of documents submitted following a request for access – Article 10 and Article 16(8) TEU – Article 15 TFEU – No implied refusal to publish – No challengeable act – Appeal in part manifestly inadmissible and in part manifestly unfounded )

In Case C‑13/26 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 January 2026,

Emilio De Capitani, residing in Brussels (Belgium), represented by O.W. Brouwer, A. Pliego Selie, T.C. van Helfteren, advocaten, and N.S. Piga, avocat,

appellant,

the other parties to the proceedings being:

Council of the European Union,

defendant at first instance,

Kingdom of Belgium,

Republic of Finland,

Kingdom of Sweden,

French Republic,

interveners at first instance,

THE COURT (Tenth Chamber),

composed of J. Passer (Rapporteur), President of the Chamber, D. Gratsias and B. Smulders, Judges,

Advocate General: T. Ćapeta,

Registrar: A. Calot Escobar,

having decided, after hearing the Advocate General, to give a decision by reasoned order, in accordance with Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1        By his appeal, Mr Emilio De Capitani seeks to have set aside the judgment of the General Court of the European Union of 29 October 2025, De Capitani v Council (T‑590/23, ‘the judgment under appeal’, EU:T:2025:1001), by which that court, after having partially upheld his application for annulment of Decision SGS 23/002579 of the Council of the European Union of 14 July 2023 (‘the contested decision’), in so far as it had refused him access to working documents drawn up by the General Secretariat of the Council in the context of two legislative procedures pending at the time of the request for access, dismissed as inadmissible for lack of a challengeable act his action for annulment of the ‘implicit or continued explicit decision’ of the Council not to directly publish, in the register it keeps, legislative documents to which access was granted pursuant to a request under 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).

2        The appellant also asks the Court, if it were to uphold the appeal, to give final judgment in the matter or, in the alternative, to refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice.

3        Finally, the appellant asks the Court to order the Council to pay the costs of the proceedings, including the costs of any interveners.

 The appeal

4        Under Article 181 of the Rules of Procedure of the Court of Justice, where the appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss that appeal in whole or in part.

5        That provision must be applied in the present case.

6        On 12 May 2026, the Advocate General adopted the following position:

‘1.      The substantive issues raised by the appellant in the present appeal – which concern the interpretation of the Council’s obligations arising from the principle of transparency, particularly in the context of a legislative procedure – clearly play an important role in the democratic life of the European Union. However, the present appeal will not enable the Court to provide such an interpretation.

2.      For the reasons set out below, I propose that the Court should dismiss the appeal in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible, pursuant to Article 181 of the Rules of Procedure …

 The appeal

3.      By his appeal, the appellant, Mr … De Capitani, requests that the [judgment under appeal] be set aside in part. By that judgment, the General Court, first, partially upheld his action for annulment of the [contested decision], in so far as it had refused him access to working documents drawn up by the General Secretariat of the Council in the context of two legislative procedures pending at the time of the request for access (first point of the operative part of the judgment under appeal).

4.      Second, the General Court dismissed his action for annulment of the contested decision as inadmissible on the ground that it did not contain an “implicit or continued explicit decision” of the Council not to publish directly in the register the legislative documents which had been made accessible to it following a request under Regulation [No 1049/2001]. More specifically, the General Court considered that there was no challengeable act (second point of the operative part of the judgment under appeal).

5.      The present appeal challenges the second point of the operative part of the judgment under appeal.

6.      The appellant claims, principally, that paragraphs 25 to 58 and 62 to 75 of the judgment under appeal and point 2 of the operative part of that judgment should be set aside on the ground that there was a misinterpretation of EU law, and that paragraphs 49 to 58 and point 2 of the operative part of that judgment should be set aside on the ground that there was a procedural error. He puts forward two grounds in support of his appeal.

 The first ground of appeal

7.      The first ground of appeal, which comprises two parts, alleges that the General Court erred in law in its interpretation of EU law.

8.      By the first part of the first ground of appeal, directed against paragraphs 62 to 75 of the judgment under appeal, the appellant submits that the General Court committed several errors of law in the interpretation of the fundamental democratic right to and obligation of legislative transparency that follows from Article 10 and Article 16(8) TEU and Article 15(2) TFEU, the specific right of access to the Council’s legislative documents laid down in Article 15(3) TFEU and the duty to make those documents publicly available in the Council’s register.

9.      According to the appellant, legislative documents to which no exception to the right of access applies must be made available to the public in the Council’s register immediately after their “creation” in order to enable citizens to exercise their democratic right of participation, as enshrined in Article 10 TEU, and to prevent citizens from being compelled to submit requests for access under Regulation No 1049/2001.

10.      However, in paragraphs 62 to 75 of the judgment under appeal, the General Court ruled on the arguments put forward in support of the first ground of appeal in the action for annulment, which it upheld on other grounds.

11.      Since the appellant has obtained the annulment sought on the basis of that first plea, he has no interest in challenging the grounds on which the General Court rejected part of his arguments. The first part of the first ground of appeal must therefore be rejected as manifestly inadmissible.

12.      By the second part of the first ground of appeal, which is directed against paragraphs 25 to 58 of the judgment under appeal, the appellant claims that the General Court misconstrued the scope of Regulation No 1049/2001 by interpreting it without taking account of the changes introduced by the Treaty of Lisbon. In that regard, the appellant alleges several errors of law in the General Court’s interpretation of Article 2(4) and Article 12(1), (2) and (4) of Regulation No 1049/2001. In his view, those provisions, read together, require the Council to make available to the general public, in the Council’s register, legislative documents to which access has been granted to an applicant.

13.      However, the General Court held, in paragraphs 50 to 55 of that judgment, that Regulation No 1049/2001 does not directly link the right of access to documents, provided for in Article 2(1) of that regulation, to the obligation of the institutions to establish a public register, laid down in Article 11 of that regulation, or to the obligation to make those registers accessible to the public, laid down in Article 12 of that regulation. It relied, inter alia, on the judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250, paragraph 44), by which the Court of Justice held that compliance with the obligation to register documents cannot be enforced by means of a request for access to documents.

14.      The General Court inferred from this that the contested decision, by which the Council ruled on the appellant’s request for access to certain preparatory legislative documents, did not contain any implied refusal on its part to publish the documents in question in its register.

15.      The appellant argues that the judgment of 2 October 2014, Strack v Commission (C‑127/13 P, EU:C:2014:2250), is not applicable, since it was delivered in a context that differs significantly from that at issue in the present case. He submits that Articles 2, 11 and 12 of Regulation No 1049/2001 must be interpreted as meaning that legislative documents to which an institution has granted access must be made available to the public in the register of that institution, where appropriate by way of a link to their electronic location. Consequently, a person could claim, by means of a request for access to documents, the right to have those documents made available to the public.

16.      However, the appellant does not explain how that line of argument, even if well founded, would call into question the General Court’s finding that the Council’s silence in the contested decision regarding the publication, in the register, of the documents to which access was granted to the appellant was not capable of constituting an implicit decision of the Council to refuse such publication in that register.

17.      For that reason, I consider that the second part of the first ground of appeal is manifestly unfounded.

18.      For the reasons set out above, I propose that the Court of Justice reject the appellant’s first ground of appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded.

 The second ground of appeal

19.      By his second ground of appeal, the appellant submits that the General Court committed a “procedural error” in declaring the second head of claim of the application for annulment inadmissible without examining the fourth plea of that action, alleging infringement of the obligation of legislative transparency laid down in Article 15 TFEU.

20.      However, the appellant does not indicate, with the requisite clarity and precision, how the General Court committed a “procedural error” by deciding in that way. Consequently, its line of argument does not meet the requirements of Article 256(1) TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure.

21.      In any event, it is apparent from the judgment under appeal that the arguments relied on in support of the fourth plea in the application for annulment related to the second head of claim. Since the General Court rejected that second head of claim as inadmissible, the General Court was not required to rule on the arguments raised before it in support of the fourth plea for annulment. The appellant is therefore not justified in claiming that the General Court vitiated that judgment by a procedural error.

22.      I therefore propose that the Court of Justice reject the second ground of appeal as manifestly inadmissible.

23.      In the light of the foregoing, I propose that the Court should dismiss the appeal as being, in part, manifestly inadmissible and, in part, manifestly unfounded.’

7        For the same reasons as those given by the Advocate General, the appeal must be dismissed in its entirety, pursuant to Article 181 of the Rules of Procedure, as being in part manifestly inadmissible and in part manifestly unfounded.

 Costs

8        Under Article 137 of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the order which closes the proceedings.

9        In this case, since the present order was adopted before the appeal was served on the Council and on the interveners at first instance and, therefore, before either of them could have incurred costs, Mr De Capitani must be ordered to bear his own costs.

On those grounds, the Court (Tenth Chamber) hereby orders:

1.      The appeal is dismissed as being in part manifestly inadmissible and in part manifestly unfounded.

2.      Mr Emilio De Capitani shall bear his own costs.

Luxembourg, 15 July 2026.

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*      Language of the case: English.