JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber)
10 October 2001 (1)
(Decision 94/90/ECSC, EC, Euratom - Public access to Commission
documents - Minutes of the Committee on Excise Duties - Partial
access - Exception - Identities of national delegations - Protection
of an institution's interest in the confidentiality of its proceedings)
In Case T-111/00,
British American Tobacco International (Investments) Ltd,
established in London (United Kingdom), represented by S. Crosby,
Commission of the European Communities , represented
by U. Wölker and X. Lewis, acting as Agents, with an address
for service in Luxembourg, defendant,
APPLICATION for annulment of the Commission's decision partially
refusing an application for access to certain minutes of the
Committee on Excise Duties,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (First
composed of: B. Vesterdorf, President, M. Vilaras and N.J.
Registrar: H. Jung,
having regard to the written procedure and further to the
hearing on 7 March 2001, gives the following
- On 6 December 1993 the Commission and the Council approved
a common code of conduct concerning public access to Council
and Commission documents (OJ 1993 L 340, p. 41, hereinafter 'the
code of conduct).
- In order to implement the code of conduct, the Commission
adopted, on 8 February 1994, Decision 94/90/ECSC, EC, Euratom
on public access to Commission documents (OJ 1994 L 46, p. 58).
Article 1 of Decision 94/90 formally adopts the code of conduct,
the text of which is annexed to the decision.
- The code of conduct lays down the following general principle:
- 'The public will have the widest possible access to documents
held by the Commission and the Council.
- The circumstances in which an institution may refuse an application
for access to documents are set out in the code of conduct, under
the heading 'Exceptions, in the following terms:
'The institutions will refuse access to any document whose
disclosure could undermine:
- the protection of the public interest (public security,
international relations, monetary stability, court proceedings,
inspections and investigations),
- the protection of the individual and of privacy,
- the protection of commercial and industrial secrecy,
- the protection of the Community's financial interests,
- the protection of confidentiality as requested by the natural
or legal persons that supplied the information or as required
by the legislation of the Member State that supplied the information.
They may also refuse access in order to protect the institution's
interest in the confidentiality of its proceedings.
- Article 24 of Council Directive 92/12/EEC of 25 February
1992 on the general arrangements for products subject to excise
duty and on the holding, movement and monitoring of such products
(OJ 1992 L 76, p. 1), as amended by Article 1(11) of Council
Directive 94/74/EC of 22 December 1994 (OJ 1994 L 365, p. 46)
'1. The Commission shall be assisted by a Committee on Excise
Duties, hereinafter referred to as the Committee. The Committee
shall be composed of the representatives of the Member States
and chaired by a Commission representative.
The Committee shall draw up its rules of procedure.
2. The measures necessary for the application of Articles
5, 7, 15b, 18, 19 and 23 shall be adopted in accordance with
the procedures laid down in paragraphs 3 and 4.
3. The Commission representative shall submit to the [Committee]
a draft of the measures to be adopted. The Committee shall deliver
its opinion on the draft within a time-limit which the Chairman
may lay down according to the urgency of the matter. The Committee
shall take its decision by the majority laid down in Article
148(2) of the Treaty. The Chairman shall not vote.
4. (a) The Commission shall adopt the intended measures where
they are in accordance with the Committee's opinion.
(b) Where the intended measures are not in accordance with
the opinion of the Committee, or in the absence of any opinion,
the Commission shall forthwith submit to the Council a proposal
relating to the measures to be taken. The Council shall act on
a qualified majority.
If, on the expiry of three months from the date on which the
matter was referred to it, the Council has not adopted any measures,
the Commission shall adopt the proposed measures, save where
the Council has decided against the said measures on a simple
5. In addition to the measures referred to in paragraph 2,
the Committee shall examine the matters referred to it by its
chairman, either on his own initiative or at the request of the
representative of a Member State, concerning the application
of Community provisions on excise duties.
- The applicant, British American Tobacco International (Investments)
Ltd, is a company established in the United Kingdom belonging
to the British American Tobacco group which, at the relevant
time, exported expanded tobacco from the United Kingdom to various
Member States of the Community.
- In 1998 the applicant became aware, through the intervention
of the United Kingdom authorities, of extracts of the minutes
of a meeting held by the Committee on Excise Duties on 7 and
8 October 1997. It was apparent from those extracts that, at
the instigation of one of the Member States, a majority of delegations
had expressed their wish that expanded tobacco be treated in
the same way as 'smoking tobacco, as defined in Article 5(1)
of Council Directive 95/59/EC of 27 November 1995 on taxes other
than turnover taxes which affect the consumption of manufactured
tobacco (OJ 1995 L 291, p. 40), and thus as a product subject
to excise duty for the purposes of Directive 92/12. Subsequently,
the applicant was informed by the same authorities that an opinion
to that effect had been adopted by the Committee on Excise Duties,
that the delegation of the Italian Republic had expressed reservations
and that Italy's tax authorities were encountering difficulties
in applying the decision. The applicant therefore asked the Commission
for the tax treatment of expanded tobacco to be reconsidered
by the committee and that the decision be reversed.
- By letter of 16 November 1999 the Commission confirmed that
an agreement had been reached at a meeting of the committee on
29 and 30 April 1998 pursuant to which expanded tobacco had to
be treated as smoking tobacco and, consequently, as a product
subject to excise duty. Its movement between the Member States
was thus conditional upon completion of the formalities set out
in Article 18(1) ofDirective 92/12. The Commission also indicated
that, in accordance with the applicant's request, it had again
raised the question of the tax treatment of expanded tobacco
at a meeting of the committee on 28 and 29 October 1999. The
members of the committee had, however, refused to reopen the
debate and had instead confirmed their position.
- By letter of 6 January 2000 the applicant applied to the
Commission under Decision 94/90 for access to the minutes of
the meetings of the Committee on Excise Duties of 29 and 30 April
1998 and 28 and 29 October 1999 in so far as they concerned the
tax treatment of expanded tobacco.
- By letter of 17 January 2000 the Commission's 'Taxation and
Excise Union Directorate-General informed the applicant that
its request had been refused on the ground that disclosure of
the documents in question could undermine the protection of confidentiality
as requested by the legal persons that had supplied the information.
- The applicant made a confirmatory application by letter of
4 February 2000 to the Secretary General of the Commission, in
accordance with Article 2(2) of Decision 94/90.
- By letter of 8 March 2000 the Secretary General of the Commission
informed the applicant of his decision to refuse access to the
minutes in question on the ground that their disclosure could
undermine the protection of confidentiality as requested by the
legal person that had supplied the information, and in order
to protect the institutions's interest in the confidentiality
of its proceedings.
Procedure and form of order sought by the parties
- By application lodged at the Registry of the Court of First
Instance on 2 May 2000, the applicant brought the present action.
- Upon hearing the report of the Judge-Rapporteur, the Court
of First Instance (First Chamber) decided to open the oral procedure.
- By order of 19 February 2001 pursuant to Article 66(1) of
its Rules of Procedure, the Court of First Instance ordered the
Commission, by way of measures of inquiry, to produce the minutes
of the meetings of the Committee on Excise Duties to which access
had been denied, so that it could consider their contents.
- On 1 March 2001 the Commission lodged at the Registry of
the Court of First Instance the two sets of minutes of the Committee
on Excise Duties relating to the committee's meetings of 29 and
30 April 1998 and of 28 and 29 October 1999. In accordance with
the third subparagraph of Article 67(3) of the Rules of Procedure,
those documents were not communicated to the applicant.
- The parties presented oral argument at the hearing on 7 March
2001 and replied to questions put to them by the Court.
- The applicant claims that the Court should:
- annul the decision denying access to the documents;
- order the Commission to pay the costs.
- The Commission contends that the Court should:
- dismiss the action as unfounded;
- order the applicant to pay the costs.
The ambit of the dispute
- At the hearing the Commission informed the Court and the
applicant of its decision to grant the applicant access to a
non-confidential version of the minutes in question in which
the identities of the delegations expressing the positions recorded
in the minutes would be masked. The Court took formal notice
- On being invited to respond to the replacement of the initial
decision denying access by that latter decision, the applicant
made a consequential amendment of the form of order sought and
its pleas in law.
- According to settled case-law, heads of claim directed against
a decision which is replaced during the course of proceedings
may be regarded as being directed against the replacement decision
because the latter decision constitutes a new factor which entitles
the applicant to amend its heads of claim and pleas in law (Case
14/81 Alpha Steel v Commission  ECR 749,
paragraph 8, Case 103/85 Stahlwerke Peine-Salzgitter v
Commission  ECR 4131, paragraph 11, Case T-23/96
De Persio v Commission  ECR-SC 1-A-483 and
II-1413, paragraph 32). It would, in fact, not be in the interests
of the administration of justice and would be contrary to the
requirement of procedural economy to oblige the applicant, in
such an eventuality, to make a fresh application to the Court
(Alpha Steel v Commission, paragraph 8).
- In the present case the applicant seeks annulment of the
Commission's decision in that it refuses to disclose the names
of the Member States referred to in the minutes at issue.
- Consequently, the parties agree, and formal notice has been
taken of the fact, that the only question remaining is whether
the Commission was entitled to grant only partial access to the
documents in question, withholding the identities of the delegations
that had expressed their positions in the meetings to which the
minutesrelate. Formal notice is also taken of the applicant's
withdrawal of all other pleas and arguments put forward in its
application challenging the initial decision refusing access.
- The Commission also stated at the hearing that its refusal
to disclose the names of the Member States referred to in the
minutes was based solely on the non-mandatory exception relating
to the protection of an institution's interest in the confidentiality
of its proceedings. The Court is therefore required to rule solely
on the application for annulment of that decision to refuse to
disclose the names of the Member States and on the plea in law
put forward in support of that application, being infringement
of Decision 94/90.
Arguments of the parties
- The applicant maintains that the Commission's decision not
to disclose the names of the Member States referred to in the
minutes to which it sought unrestricted access is contrary to
Decision 94/90 in that it is founded upon incorrect application
of the non-mandatory exception relating to the protection of
the Commission's interest in the confidentiality of its proceedings.
The necessary prior balancing of the interests at stake ought,
according to the applicant, to have resulted in its interests
prevailing over those of the Commission.
- The applicant submits that it clearly has an interest in
ascertaining the identities of the various delegations referred
to in the minutes. It argues that, despite harmonisation of excise
duties within the Community, there remain significant differences
in the treatment of expanded tobacco by the various customs authorities
of the Member States, and this causes the applicant difficulty.
Given that the applicant is responsible for managing the tax
aspects of the British American Tobacco group's commercial operations,
it is important that it know precisely what position is adopted
by each of the Member States concerned so that it may effectively
conduct bilateral negotiations with them.
- The applicant submits that the Commission's alleged interest
is based upon the false premiss that keeping the identities of
the national delegations confidential is indispensable if frank
discussions are to take place between the Member States. According
to the applicant the contrary is true. It is the non-confidentiality
of the positions adopted by the members of a committee that ensures
honest debate, as is confirmed by the transparency of the discussions
which take place within other institutional bodies, such as parliamentary
bodies. Furthermore, it should be clear from case-law (Case T-194/94
Carvel and Guardian Newspapers v Council 
ECR II-2765) that it is legitimate to ask institutions to disclose
the positions adopted by national delegations during the course
- As regards the argument put forward by the Commission that
the applicant at no point made known its interest in the identities
of the delegations referred to in the minutes, the applicant
replies that it wished to ascertain the positions adopted by
the Member States, that is to say, not only the content of their
discussions but also the identities of the delegations which
expressed a position. That information formed an integral part
of the documents to which it sought access. There was therefore
no need for it to state additional reasons in support of its
request in that regard. In any event, unless the burden of proof
were to be reversed, it falls to the Commission to justify its
position in the event that it refuses to grant access to a document,
and not for the applicant to give reasons for its request.
- The Commission takes the view that its decision to grant
partial access to the minutes, without disclosing the identities
of the various delegations referred to in them, does reflect
a proper balancing of the interests at stake.
- It maintains that sufficient account has been taken of the
applicant's interest in the present case. It was clear from the
application that the applicant's aim in requesting access to
the documents was simply to find out what was said in the committee
regarding the treatment of expanded tobacco. The Commission emphasises
that it is indispensable that it be informed of the interests
of the applicant when it comes to balancing the various interests
at stake, yet at no time did the applicant indicate that it also
wished to know the identities of the delegations expressing the
various positions. Furthermore, according to the Commission,
the applicant itself emphasised, during the written procedure,
that partial access to the documents in question might be a satisfactory
- The Commission also argues that, thanks to its own activities,
the applicant in any event knows which are the Member States
whose customs authorities are imposing special requirements.
It therefore already has the information it is requesting.
- The Commission submits that its own interests require that
the identities of the various delegations attending the committee
meetings be kept confidential. Since it presides over the Committee
on Excise Duties, it has an interest in ensuring that discussions
between Member States remain full, frank and honest. It emphasises
that, in meetings such as those for which the minutes at issue
were produced, the committee does not have a comitology function.
It is merely a forum for debate between the Member States, in
accordance with Article 24(5) of Directive 92/12. Consequently,
disclosing the identities of the delegations would be all the
more likely to undermine the smooth running of the debate.
- In response to the questions put by the Court of First Instance,
the Commission stated at the hearing that, more generally, its
basic principle is that the identities of national delegations
referred to in committee meetings are not disclosed, albeit that
it stated that the interests at stake must be balanced on a case
by case basis with account being taken of the content of the
document in question.
Findings of the Court
- It should be observed at the outset that the code of conduct
adopted by the Commission by Decision 94/90 sets out two categories
of exception to the public's right of access to Commission documents.
The first category, framed in compulsory terms, comprises the
'mandatory exceptions which are intended to protect the interests
of third parties or of the general public. The second, framed
in non-mandatory terms, concerns the internal deliberations of
the institution, in which case solely the interests of the institution
are at stake (Case T-105/95 WWF UK v Commission
 ECR II-313, paragraph 60).
- In the present case, as the Commission stated at the hearing,
the contested decision, by which it partially rejected the applicant's
request for access to the minutes of the meetings of the Committee
on Excise Duties, was based solely on the non-mandatory exception
whereby it may refuse access to its documents 'in order to protect
the interest of the institution in the confidentiality of its
- It must be emphasised that the deliberations of the Committee
on Excise Duties, and the documents of that committee, are to
be regarded as being the deliberations and documents of the Commission.
The main task of the committee, which was constituted in pursuance
of a Community act, is to assist the Commission, which presides
over it and provides its secretariat. The Commission thus draws
up the minutes which the committee adopts. In addition, it appears
that this committee does not have its own administration, budget,
archives or premises, still less an address of its own. Consequently,
the committee is not a natural or legal person, nor a Member
State or any other national or international body, and cannot
be regarded as another 'Community institution or body within
the meaning of the code of conduct (see, to that effect, Case
T-188/97 Rothmans v Commission  ECR II-2463,
paragraphs 58 and 59).
- Given that the Committee on Excise Duties is thus to be regarded
as part of the Commission, the Commission is entitled to rely
upon the exception relating to the protection of the confidentiality
of its deliberations where the documents to which access has
been requested concern the deliberations of that committee.
- Nevertheless, the fact that the documents at issue relate
to deliberations of the Committee on Excise Duties cannot by
itself justify application of the exception invoked.
- According to case-law, any exception to the right of access
to documents covered by Decision 94/90 must be interpreted and
applied strictly (Joined Cases C-174/98 P and C-189/98 P Netherlands
and Van der Wal v Commission  ECR I-1, paragraph
27, and Case T-20/99 Denkavit Nederland v Commission
 ECR II-3011, paragraph 45). The Commission nevertheless
enjoys a margin of discretionin applying the non-mandatory exception,
albeit that in the exercise of that discretion it must strike
a genuine balance between the interest of the citizen in obtaining
access to its documents and its own interest in protecting the
confidentiality of its deliberations (WWF UK v Commission,
paragraph 59; see also, in relation to the Council, Carvel
and Guardian Newspapers v Council, cited above, paragraph
65, and Case T-174/95 Svenska Journalistförbundet
v Council  ECR II-2289, paragraph 113).
- Thus, in its review of a decision's legality, the Court must,
without substituting its own assessment for that of the Commission,
ascertain whether the Commission has indeed struck a balance
between the interests at stake without overstepping the boundaries
of its power of assessment. It is to that end that the Court
ordered production of the documents at issue.
- As regards, first of all, the assessment of the applicant's
interest, it should be borne in mind that, under Decision 94/90,
any person may request access to any unpublished Commission document,
without being required to give a reason for the request (Svenska
Journalistförbundet v Council, paragraph 65).
One consequence of that situation is that, where it has no information
on the particular reasons underlying a request for access, the
institution concerned cannot be criticised, when it comes to
balance the various interests at stake for the purpose of application
of the non-mandatory exception, for assessing the applicant's
interest by reference to the interest that any citizen might
have who asks for access to the institution's documents, and
without taking into account particular interests of which, by
definition, it is unaware.
- However, in the circumstances of the present case, the Commission
cannot contend that it was unaware of the applicant's intentions
in submitting its request for access to the minutes in question.
As is clear from the documents before the Court (see paragraphs
7 and 8 of the present judgment), that request was preceded by
steps which the applicant took in order to put its case opposing
the decision taken by certain Member States to treat expanded
tobacco as 'smoking tobacco within the meaning of Article 5(1)
of Directive 95/59 and, consequently, to make it subject to the
regime provided for in Directive 92/12 concerning products subject
to excise duty. The aim of the applicant's request, in view of
the implications that such treatment would have for it from both
a tax and administrative point of view, was thus to ascertain
what positions were adopted on that question within the committee.
- Against that background, the Commission clearly could not
have been unaware of the applicant's interest in being able to
ascertain not only the substance of the discussions but also
the identities of the delegations voicing the opinions expressed.
- Next, it must be observed that that interest could not be
regarded as irrelevant to the balancing of the interests at stake.
- In this connection, it should be observed that the documents
to which access was sought concerned the implementation in the
Member States of provisions which had been the subject of harmonisation
at the Community level. Directive 92/12 in fact seeks to lay
down a number of rules on the holding, movement and monitoring
of products subject to excise duty, in particular so as to ensure
that chargeability of excise duties is identical in all the Member
States (Case C-296/95 EMU Tabac and Others  ECR
I-1605, paragraph 22). In so far as concerns tobacco products
in particular, the chargeability and structure of excise duty
on any given product depends, amongst other things, on its inclusion
in one of the categories laid down in Directive 95/59 (Case C-319/96
Brinkmann  ECR I-5255).
- It is not in dispute that differences in the treatment of
expanded tobacco by the Member States have been noted. Some have
classified it as smoking tobacco within the meaning of Article
5(1) of Directive 95/59, with the intention of making it subject
to excise duties and making the document provided for in Article
18(1) of Directive 92/12 a requirement for exportation to their
territory. Furthermore, it appears from extracts of the minutes
of the meeting of the Committee on Excise Duties of 7 and 8 October
1997 (see paragraph 7 of the present judgment) already communicated
to the applicant that, according to the Commission, this was
'a typical instance of differing views within the Community affecting
trade by multinational firms. Despite the positions then expressed
by the various national delegations within the committee at the
meetings to which the minutes at issue relate, the Commission
does not dispute that there are still significant differences
in the treatment by the Member States of exports of expanded
tobacco to their respective territories.
- That being so, the possibility of ascertaining the identities
of the delegations which formally expressed a position on the
matter must be regarded as of manifest importance to the applicant
and its business, in particular, so that the applicant can argue
its case before the tax and customs authorities of the Member
- That conclusion is in no way called into question by the
argument that the applicant had, in any event, identified which
Member States' customs authorities impose special requirements.
Even assuming it had, the fact that the applicant is aware of
the individual practices of the authorities of certain Member
States does not diminish its interest in acquainting itself with
the positions formally expressed by them in meetings of the Committee
on Excise Duties. Furthermore, that argument, by implying that
the positions expressed by the Member States within the committee
correspond to widely-known practices on the part of their customs
authorities, merely calls into question the confidential nature
of the positions expressed and not the applicant's interest in
- As regards the argument that the applicant admitted, during
the written procedure, that partial access to the minutes might
be a satisfactory solution, that too must berejected. Suffice
it to observe that, in its application, the applicant merely
pointed out that the Commission had failed to consider the possibility
of granting partial access to the minutes. It nevertheless sought
annulment of the decision refusing access in its entirety.
- Secondly, it must be established whether the Commission could,
without exceeding the limits on its power of assessment, have
found that its interest in the confidentiality of its proceedings
prevailed over the applicant's interest, and thus refuse to disclose
the identities of the delegations referred to in the minutes.
In this connection the Commission argues that disclosing that
information could compromise the effectiveness of the discussions
between the Member States, that is to say, render them less full,
frank and honest, and thus undermine the smooth running of the
- However, as is clear from case-law, the code of conduct adopted
by the Commission in Decision 94/90 cannot justify an institution's
refusal, as a matter of principle, to grant access to documents
pertaining to its deliberations on the basis that they contain
information relating to positions taken by representatives of
the Member States, since that would fail to comply with the obligation
to balance the interests involved (see, in relation to the Council,
Carvel and Guardian Newspapers v Council, cited
above, paragraphs 72 and 73). The Commission's submission that
disclosing the identities of the delegations would necessarily
undermine the smooth running of the committee's proceedings is,
by itself, insufficient to override the applicant's basic right
of access under Decision 94/90.
- Furthermore, as the Commission accepted at the hearing (see
paragraph 34 of the present judgment), the interests at stake
must be balanced on a case by case basis with account being taken
of the content of the document in question.
- In the present case, it is clear, first of all, from the
content of the minutes of the meeting of the committee of 29
and 30 April 1998 that the delegation of one of the Member States
was won over to the point of view of the majority in spite of
the fact that it regarded expanded tobacco as unsmokable. It
follows that all 15 delegations were thus in favour of the accompanying
document referred to in Article 18(1) of Directive 92/12 being
compulsory for movement of the product within the Community.
- Furthermore, as regards the minutes of the meeting of the
committee of 28 and 29 October 1999, reference is made in that
document to the applicant's request for the committee to reconsider
its position and to the refusal of three delegations to reopen
the debate on the matter, as well as to the fact that the other
delegations expressed no opinion.
- It must therefore be observed that the minutes relate to
discussions which had been terminated by the time the applicant
made its request (see, a contrario, in a case concerning
documents relating to ongoing inspections, Denkavit Nederland
vCommission, cited above, paragraph 48). Consequently,
disclosure of the identities of the delegations referred to in
those documents could no longer inhibit the Member States from
effectively expressing their respective positions regarding the
tax treatment of expanded tobacco.
- Thus, if there is a proper balancing of the interests at
stake, a reason of that nature cannot, in the present case, cause
the interest in protecting the confidentiality of proceedings
to prevail over the applicant's interest.
- It follows from the foregoing that, in the particular circumstances
of this case, the contested decision is vitiated by a manifest
error of assessment and must therefore be annulled.
- Under Article 87(2) of the Rules of Procedure of the Court
of First Instance, the unsuccessful party is to be ordered to
pay the costs if they have been applied for in the successful
party's pleadings. Since the Commission has been unsuccessful,
it must, in accordance with the form of order sought by the applicant,
be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (First Chamber)
1. Annuls the Commission's decision partially to reject
an application for access to certain minutes of the Committee
on Excise Duties.
2. Orders the Commission to pay the costs.
Delivered in open court in Luxembourg on 10 October 2001.