In short

We won Case T-201/21 Covington & Van Vooren vs European Commission.  But why did we litigate?  Why did we ask to see how the member states voted on an EU implementing act?  A short background story, worth a few minutes of your time if interested in the EU as a democracy… 

The context

In 2017, the European Food Safety Authority (EFSA) adopted an opinion expressing safety concerns over Hydroxy Anthracene Derivatives (HADs).  HADs occur naturally in plants like cabbage, sprouts, rhubarb, etc.  They taste bitter and are a defence mechanism of the plant against bugs.  In humans, in high concentrations HADs have a laxative effect.

In 2018, the Commission starts work on banning foods with high concentrations of HADs and laxative effect, through a draft Implementing Act.  To be adopted, these kinds of administrative Acts require a positive vote by a Committee composed of the 27 EU Member States. 

By 2020 the draft Implementing Act had expanded in scope and would ban certain HADs altogether.  The ban itself is being challenged in four parallel annulment proceedings (with hearings taking place over the next few weeks), but that’s another story.

The vote

Not all member states agreed with the expanded scope of the draft implementing act. There was quite some back and forth in the Committee, but by 5 November 2020, the Commission pushed for a vote, using the written procedure (remember that, this matters).

The voting sheet for November 2022 shows that 22 member states voted in favour and five member states against.  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’d closely followed the process, something was off.  Through informal conversations, it seemed that at least one 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 the EU Transparency Regulation.  We wanted to see which member states voted in what way, to double check if and how QMV had indeed been reached.  Then the plot thickened.  We were refused access to 21 votes in favour, not 22 as indicated on the voting sheet.  So this suggested that there was an abstention counted as a vote in favour- but by which country?  When our request for access to the member states twenty-two individual votes was refused, we decided to litigate and brought Case T-201/21.

Public vote = democracy 101

In T-201/21, we had argued that the vote of a member state in an EU context is intrinsically public.  As the exercise of sovereignty by a country, leading to legally binding acts, it cannot be considered an “opinion” that the Commission can refuse to disclose.  Unfortunately the General Court did not accept our argument.  The Court considers that a vote in comitology is “preparatory” to the final implementing act, and therefore access can be refused.  But the Court did agree there is no general presumption that the member states’ votes are confidential.  For the Court, any refusal to release the votes should be duly justified as to how it negatively impacts the decision making process. Let’s see what happens next- will this go on appeal or will we see the votes?  In our view, anyone should be able to check the member states’ votes on any binding EU act.  That is just democracy 101.

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Photo of Bart Van Vooren Bart Van Vooren

Bart Van Vooren, partner leads a dynamic practice at the intersection of EU regulatory law, global health, and biodiversity law. In these fields, he advises innovative pharmaceutical, food, cosmetic and technology companies on complex EU and global regulatory, compliance and policy assignments.

Bart…

Bart Van Vooren, partner leads a dynamic practice at the intersection of EU regulatory law, global health, and biodiversity law. In these fields, he advises innovative pharmaceutical, food, cosmetic and technology companies on complex EU and global regulatory, compliance and policy assignments.

Bart holds a Ph.D. in EU and International Law and was a professor of EU law until 2013. During that time, he wrote the first-ever handbook with Cambridge University Press on “EU External Relations Law” (2014). He then transitioned to private practice, and frequently acted for the Belgian government before the EU Court of Justice (e.g. C-16/16P Belgium vs Commission). Bart joined Covington in 2016, leading some of our most consequential EU litigation proceedings (e.g. C-311/18 “Schrems II”) over the years.  Having handled nearly 50 cases before the EU Court, he’s uniquely qualified to support our corporate clients in our most high-stakes disputes. Recent examples include T-189/21 Aloe Vera of Europe v Commission (which we won, so the Commission decided to appeal); as well as T-201/21 Covington & Burling and Van Vooren v Commission (which we also won, and hence is also on appeal).

As a pioneer in biodiversity law, over the past 15 years Bart has built a unique, global practice on Access and Benefit-Sharing (ABS) laws under the Convention on Biological Diversity, the Nagoya Protocol, the Plant Treaty, the High Seas Treaty and the WHO Pandemic Agreement. ABS compliance is critical when sourcing biological materials for life sciences R&D and I work with many of the world’s innovative life sciences companies on the whole range of e.g. transactional, contractual, compliance, IP, (EU) regulatory and litigation work relating to ABS. As biodiversity has increasingly become identified as a major commercial and financial risk to companies, so has the practice expanded to e.g. biodiversity credit markets, biodiversity insurance, biodiversity claims and advertising, and so on. Since April 2025, Bart has been appointed as the industry representative to the Steering Committee of the UN Biodiversity Fund that seeks funding from the private sector for biodiversity conservation and restoration.

Bart also pioneered our global health practice. He has advised pharmaceutical clients on seasonal and pandemic influenza since 2016. Since then, this practice area expanded to cover all matters relating to infectious diseases, and as of 2020, emergency preparedness and response (eg. WHO prequalification, International Coordination Group negotiations, Emergency Use Listing, International Health Regulations Rev 2024). He has been the pharmaceutical industry’s lead lawyer advising on the WHO Pandemic Treaty negotiations, adopted on 14 May 2025. Currently, he continues to advise on the work of the Intergovernmental Working Group (“IGWG”) teasing out the technical details of the “Pathogen Access and Benefit-Sharing System” intended to create legally binding obligations on companies to commit vaccines, therapeutics and diagnostics in case of a new global health emergency.

In Chambers rankings, clients have kindly described Bart as “very knowledgeable, action-focused and service-focused lawyer”, adding that he “really tries to find a way of working through challenges”, am “customer-oriented” and provide “sound advice and reasonable options for our business with pros and cons.”

Finally, Bart has an active pro bono practice assisting NGOs defending the human rights of persons with a disability through strategic litigation before the EU Court.

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