JUDGMENT OF THE GENERAL COURT (Eighth Chamber)
15 September 2016 (*)
(Access to documents — Regulation (EC) No 1049/2001 — Documents drawn up in the context of the preparatory works leading to the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of court proceedings — Exception relating to the protection of the decision-making process — Rights of the defence — Overriding public interest)
In Case T‑18/15,
Philip Morris Ltd, established in Richmond (United Kingdom), represented by K. Nordlander and M. Abenhaïm, lawyers,
applicant,
v
European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,
defendant,
APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision Ares(2014) 3694540 of 6 November 2014, refusing access to certain documents relating to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1),
THE GENERAL COURT (Eighth Chamber),
composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written procedure and further to the hearing on 21 January 2016,
gives the following
Judgment
Background to the dispute
1        By email of 22 January 2014, the applicant, Philip Morris Ltd, submitted a number of applications for access to documents to the Secretariat-General of the European Commission, pursuant to 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        Those applications all concerned the legislative procedure that had led to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1) (‘the TPD’).
3        A large number of those applications for access, including the three giving rise to the present case and registered under the references GestDem 2014/522, 2014/536 and 2014/552, were entrusted to the Commission’s Directorate-General (DG) for ‘Health and Consumers’.
4        By email of 21 February 2014, the DG for ‘Health and Consumers’ informed the applicant that, in view of the volume of documents concerned, it was not in a position to reply within the time limit laid down in Article 7(1) of Regulation No 1049/2001 and proposed to find a solution in accordance with Article 6(3) of that regulation.
5        By letter of 10 March 2014, the applicant accepted, in principle, the Commission’s proposal to divide the requested documents into various batches. However, it stated that it would refuse that proposal if it meant that, as a result, the applicant would not receive a reply concerning all of the documents covered by its applications by 25 April 2014.
6        By letter of 21 March 2014, the Head of Unit D4 ‘Substances of human origin and tobacco control’ of the DG for ‘Health and Consumers’ stated that the time limit proposed by the applicant was unreasonable, indicating that it was open to an institution to weigh the interest in public access to the documents, on the one hand, against the burden of work so caused, on the other, in order to safeguard, in those particular cases, the interests of good administration. It also stated that it would return to that issue as swiftly as possible in order to determine the next steps to be taken and the time limits to be applied.
7        By letter of 2 April 2014, the Director-General of the DG for ‘Health and Consumers’ answered some of the applications for access and informed the applicant that the Commission would deal with the applications concerning the other documents identified in various batches.
8        By letter of 23 April 2014, the applicant reminded the Commission that, failing a fair solution, the Commission was bound by the time limits laid down in Article 7(1) of Regulation No 1049/2001, stating that it reserved the right to bring proceedings in the event that its applications were still pending on 1 May 2014. It also requested that the order of priority of the batches be amended slightly, which, for the most part, was accepted by the Commission.
9        By its initial reply of 22 July 2014, the Director-General of the DG for ‘Health and Consumers’ granted full or partial access to the documents concerned by the applications GestDem 2014/522 (24 documents), GestDem 2014/536 (12 documents) and GestDem 2014/552 (four documents). The refusal to provide full or wider access was based on the exceptions relating to the protection of privacy and the integrity of the individual, international relations, commercial interests, legal advice and the decision-making process.
10      By letter of 12 August 2014, the applicant submitted a confirmatory application for full access to the six documents still at issue.
11      On 11 September 2014, the Secretariat-General of the Commission extended the time limit for a reply by 15 working days in accordance with Article 8(2) of Regulation No 1049/2001.
12      On 2 October 2014, a second holding reply was sent to the applicant.
13      On 6 November 2014, the Commission adopted Decision Ares(2014) 3694540 in response to the confirmatory application (‘the contested decision’), confirming its refusal to grant full access to five of the six documents covered by the confirmatory application, namely, Documents Nos 1 to 4 and 6.
14      The following can thus be gleaned from the contested decision:
–        as regards Document No 1 (email from the cabinet of Commissioner Dalli to members of staff of the DG for ‘Health and Consumers’, sent on 26 October 2011), that the redactions maintained concern internal, preliminary discussions and analyses regarding various possible options for regulating tobacco products;
–        as regards Document No 2 (exchange of emails between Commissioner Dalli and a member of his cabinet on 25 October 2011), that the redactions maintained concern internal reflections regarding the issue of the labelling and packaging of tobacco products and arrangements for the sale of tobacco products;
–        as regards Document No 3 (response from the DG for ‘Enterprise’ to the Commission’s ‘inter-service consultation’ regarding the proposal for a revision of the TPD submitted on 11 December 2012), that the redactions maintained set out the position of that DG regarding the issue of the labelling of tobacco products;
–        as regards Document No 4 (response from the Commission’s DG for ‘Trade’ to the ‘inter-service consultation’ regarding the proposal for a revision of the TPD submitted on 11 December 2012), that the redactions maintained are observations regarding the regulation of the labelling and packaging of tobacco products;
–        as regards Document No 6 (email from a member of staff of the DG for ‘Health and Consumers’ sent on 5 May 2012 to other members of staff of that DG concerning the Impact Assessment for the TPD), that the redactions maintained set out the critical opinions of a member of staff of the DG for ‘Health and Consumers’ regarding other Commission services in the context of the finalisation of the Impact Assessment for the revision of the TPD.
15      The reason given for the refusal to grant full access was the need to protect:
–        as regards Documents Nos 2, 3, 4 and 6, privacy and the integrity of the individual (Article 4(1)(b) of Regulation No 1049/2001);
–        as regards Documents Nos 1 to 4, court proceedings (second indent of Article 4(2) of Regulation No 1049/2001);
–        as regards Document No 6, the decision-making process (second subparagraph of Article 4(3) of Regulation No 1049/2001).
16      Regarding the protection of privacy and the integrity of the individual, the Commission considered that redacting the names of certain officials, in particular those who were not Directors, in a sensitive case-file such as that in the present case, was justified in order to protect those officials from potential external pressure.
17      Regarding the protection of court proceedings, the Commission considered, making reference to court proceedings pending before the Court of Justice of the European Union (a case which has since given rise to the judgment of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323)), the courts of the United Kingdom and the World Trade Organisation (WTO), that disclosure of Documents Nos 1 to 4 would seriously compromise the ability of its Legal Service effectively to defend the validity of the TPD before the Courts of the European Union on an equal footing with the other parties, contrary to the principle of equality of arms.
18      Regarding the protection of the decision-making process, the Commission considered that disclosure of Document No 6 would harm co-operation between Commission services and would undermine the willingness of the Commission staff concerned freely to express their views in future internal deliberations and consultations and, accordingly, would seriously compromise the decision-making process.
19      Lastly, regarding possible overriding public interests, the Commission concluded that there was no overriding public interest capable of justifying full disclosure with regard to the documents in question.
Procedure and forms of order sought
20      By application lodged at the Registry of the General Court on 12 January 2015, the applicant brought the present action.
21      On 13 April 2015, the Commission submitted its defence.
22      In accordance with Article 47(1) of the Rules of Procedure of the General Court of 2 May 1991, the General Court (Eighth Chamber) decided that a second exchange of pleadings was unnecessary.
23      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure.
24      By order of 11 November 2015, the Court ordered the Commission to produce copies of the requested documents, pursuant to Article 91(c) of the Rules of Procedure of the General Court, and stated that, pursuant to Article 104 of those Rules, those documents were not to be communicated to the applicant. The Commission complied with that order within the prescribed period.
25      By decision of the President of the Eighth Chamber of the General Court of 16 December 2015, Cases T‑796/14, T‑800/14 and T‑18/15 were joined for the purposes of the oral procedure in accordance with Article 68(1) of the Rules of Procedure.
26      The parties presented oral argument and answered the questions put to them by the Court at the hearing on 21 January 2016.
27      The applicant claims that the Court should:
–        declare the action admissible;
–        annul the contested decision in so far as it refuses full access to Documents Nos 1 to 4 and 6 as listed in the application, with the exception of the data relating to the protection of privacy and the integrity of the individual;
–        order the Commission to pay the costs.
28      The Commission contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
29      In support of the action, the applicant raises two pleas in law, the first alleging infringement of Article 15(3) TFEU and the second indent of Article 4(2) of Regulation No 1049/2001 and the second alleging infringement of Article 15(3) TFEU and Article 4(3) of that regulation.
Preliminary observations
30      It should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ‘ever closer union among the peoples of Europe’, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 of that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 68; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 72).
31      To that end, the purpose of Regulation No 1049/2001, as indicated in recital 4 and Article 1 thereof, is to give the public a right of access to documents of the institutions that is as wide as possible (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 69; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 73).
32      It is true that that right is nonetheless subject to certain limitations based on grounds of public or private interest. More specifically, and in accordance with recital 11 thereof, Article 4 of Regulation No 1049/2001 lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 70 and 71; 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 74; and 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29).
33      Nevertheless, since such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 63; 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 36; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 73; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).
34      The mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that exception (judgments of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51, and 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69).
35      First, if the institution concerned decides to refuse access to a document that it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually compromise the interest protected by the exception, among those provided for in Article 4 of Regulation No 1049/2001, upon which it relies. Moreover, the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).
36      Second, if an institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming, as noted in recital 2 of Regulation No 1049/2001, from increased openness, in that it enables citizens to participate more closely in the decision-making process and guarantees that the administration enjoys greater legitimacy and is more effective and more accountable to the citizen in a democratic system (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45; 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32; and 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53).
First plea in law: infringement of Article 15(3) TFEU and the second indent of Article 4(2) of Regulation No 1049/2001
37      In the first plea in law, the applicant accuses the Commission of having infringed Article 15(3) TFEU and the second indent of Article 4(2) of Regulation No 1049/2001 in that it did not demonstrate that full disclosure of Documents Nos 1 to 4 would specifically and actually undermine the protection of the court proceedings identified. None of those documents was drawn up in the context of such proceedings and none of them may benefit from the general presumption of protection applicable to pleadings of the institutions.
38      Moreover, with regard to the principle of equality of arms, the applicant argues that that principle does not in itself constitute an exception under Regulation No 1049/2001. Although the principle of equality of arms was mentioned in the judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541) as one element among others that support the recognition of a general presumption that disclosure of the pleadings lodged by one of the institutions in court proceedings undermines the protection of those proceedings so long as those proceedings are pending, the Commission is trying to extend that principle to justify its refusal to disclose documents that are in no way related to pending court proceedings. However, the principle of equality of arms cannot, as such, justify a refusal to disclose documents entirely unrelated to any pending court proceedings and drawn up in the context of a legislative procedure.
39      Furthermore, the Commission’s abstract reference to WTO proceedings cannot justify invoking the exception deriving from the second indent of Article 4(2) of Regulation No 1049/2001, because WTO proceedings are not ‘court proceedings’. The applicant also submits that the information at issue, relating to the adoption of the TPD under EU law, cannot be such as to prejudice that exception, with regard to a WTO case, given that neither the Commission nor the applicant is a party to the WTO proceedings referred to in the contested decision and that it is difficult to understand how full disclosure of Documents Nos 1 to 4 could prejudice those proceedings brought by third countries. In the same vein, the abstract reference to a case pending before the Court of Justice of the European Union cannot justify an exception either.
40      Accordingly, the applicant submits that the Commission’s abstract references to the principle of equality of arms should have been substantiated by a clearer factual explanation demonstrating how disclosure would specifically and actually undermine the protection of the court proceedings referred to by the Commission.
41      Lastly, the Commission also failed to assess properly whether an overriding public interest could nevertheless justify disclosure.
42      In the first place, the Commission contends that it does not dispute the fact that the documents were not drawn up in the context of court proceedings, but maintains that that fact alone is not sufficient to exclude those documents from the ambit of the exception in question or to exclude the reasons put forward to justify the very limited redactions made to them.
43      The Commission argues, in that regard, that the effectiveness of the exception in respect of the protection of court proceedings could easily be circumvented by an unduly restrictive interpretation of its scope. Before judicial proceedings are formally brought, it is impossible to find ‘pleadings submitted before a court’ or ‘documents drawn up for the sole purpose of specific court proceedings’.
44      The integrity of possible subsequent court proceedings and the fundamental principle of equality of arms between the parties would be seriously compromised if one of the parties had privileged access to internal information belonging to the other party and closely related to legal issues that could be at the heart of a future dispute.
45      According to the Commission, the exception relating to the protection of court proceedings has to be interpreted as covering, before and after the commencement of judicial proceedings, not only the documents in the judicial file and the documents drawn up solely for the purposes of specific court proceedings, but also other internal documents closely ‘related’ or ‘relevant’ to future or pending court proceedings, since the disclosure of such documents would compromise the principle of equality of arms and would disturb the serenity and the proper conduct of the court proceedings concerned.
46      In that context, the Commission contends that, although the documents at issue were not drawn up specifically for the purposes of pending court proceedings which had not yet been brought at that time, disclosure of those documents would reveal to the public its position on particularly sensitive and contentious issues. The obligation to disclose those documents would compromise the principle of equality of arms, which is at the heart of the exception based on the protection of court proceedings. Disclosure of the documents in their entirety would also limit the Commission’s ability to define and adapt its line of defence during court proceedings, as it would have revealed the positions adopted internally by its services even before having had to submit its defence in the pending court proceedings. Lastly, such disclosure would propel the debate into the public arena at the same time as the case is pending before the Court of Justice of the European Union, which would necessarily disturb the serenity of the proceedings.
47      In the second place, the Commission also contends that, in the contested decision, it referred to very specific and concrete court proceedings that were either already pending or expected, including proceedings before the WTO Appellate Body and proceedings before the Court of Justice of the European Union. It states that it has since intervened in the case brought by the Republic of Poland against the European Parliament and the Council of the European Union (a case which has since given rise to the judgment of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323)) and in the cases which have since given rise to the judgments of 4 May 2016, Pillbox 38 (C‑477/14, EU:C:2016:324) and Philip Morris Brands and Others (C‑547/14, EU:C:2016:325).
48      In the third place, the Commission maintains that, in the contested decision, it described as precisely as possible the content of the redacted words or phrases in the four documents and the justification for their redaction. However, it would not have been possible, given the limited volume of redacted text, to give further detail regarding the positions of the services without disclosing them and without depriving the exception of its very purpose. In addition, it explained which disputes, in which it had intervened, were currently pending before the WTO, stating that the redacted sentences related to the same issues.
49      Lastly, as regards the weighing up of interests, the Commission contends that it explained the reasons why the interest to be protected, connected to its rights of the defence, was of greater importance. Moreover, it considered that the interest invoked by the applicant was private and not public.
50      It should be borne in mind that among the limited exceptions listed in Article 4 of Regulation No 1049/2001 there is an exception relating to the protection of court proceedings.
51      It is apparent from case-law that the expression ‘court proceedings’ is to be interpreted as meaning that the protection of the public interest precludes disclosure of the content of documents drawn up solely for the purposes of specific court proceedings (see judgments of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraphs 88 and 89 and the case-law cited, and 3 October 2012, Jurašinović v Council, T‑63/10, EU:T:2012:516, paragraph 66 and the case-law cited).
52      Similarly, it has been held that ‘documents drawn up solely for the purposes of specific court proceedings’ must be understood to mean pleadings or other documents lodged, internal documents concerning the investigation of the case, and correspondence between the DG concerned and the Legal Service or a law firm concerning the case, the purpose of this definition of the scope of the exception in that case being to ensure both the protection of work done within the Commission and confidentiality and the safeguarding of professional privilege for lawyers (judgment of 6 July 2006, Franchet and Byk v Commission, T‑391/03 and T‑70/04, EU:T:2006:190, paragraph 90).
53      The existence of a general presumption has also been acknowledged in respect of the pleadings in court proceedings envisaged in the second indent of Article 4(2) of Regulation No 1049/2001, so long as those proceedings remain pending (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 94).
54      In that context, the Court held that pleadings lodged before it in court proceedings were wholly specific, in that they were inherently more a part of the judicial activities of the Court than of the administrative activities of the Commission, those latter activities not requiring, moreover, the same breadth of access to documents as the legislative activities of an EU institution.
55      According to that case-law, such pleadings are drafted exclusively for the purposes of those court proceedings, in which they play the key role. It is by means of the application initiating proceedings that the applicant defines the parameters of the dispute and it is, in particular, during the written procedure that the parties provide the EU judicature with the information on the basis of which it is to adjudicate (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 78).
56      The Court also held that the exception relating to the protection of court proceedings meant that such protection was necessary to ensure observance of the principles of equality of arms and the sound administration of justice. The granting of access to documents to one party could upset the vital balance between the parties to a dispute, a state of balance which was at the root of the principle of equality of arms, since only the institution concerned by an application for access to documents, and not all the parties to the proceedings, would be bound by the obligation of disclosure (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 85 to 87).
57      In addition, the Court held that the presumption against disclosure of pleadings was justified in the light of the Statute of the Court of Justice of the European Union and the Rules of Procedure of the Courts of the European Union (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 96 to 99).
58      Lastly, the Court ruled that the general presumption mentioned above was applicable only to specific pending proceedings. Although disclosure of pleadings lodged in pending court proceedings was presumed to undermine the protection of those proceedings, because of the fact that those pleadings constituted the basis on which the Court carried out its judicial activities, the Court ruled that that was not the case where the proceedings in question had been closed by a decision of the Court (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 130).
59      Once the court proceedings are at an end, there are no longer grounds for presuming that disclosure of pleadings lodged in the course of those proceedings may undermine the protection of those proceedings. The Court did not rule out the possibility that disclosure of pleadings relating to court proceedings that were closed but connected to other proceedings which remained pending could create a risk that the latter proceedings might be compromised, especially where the parties to the pending case were not the same as those in the case which had been closed. Nevertheless, such a risk depends on a number of factors, such as, in particular, the degree of similarity between the arguments put forward in the two cases. If the Commission’s pleadings were repeated only in part, partial disclosure could be sufficient to prevent any risk of compromising the pending proceedings. Accordingly, only a specific examination of the pleadings to which access is requested can enable the Commission to establish whether their disclosure may be refused on the basis of the second indent of Article 4(2) of Regulation No 1049/2001 (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 132 to 135).
60      In the present case, it is common ground that Documents Nos 1 to 4 were drawn up in the years preceding the commencement of any court proceedings. Indeed, as can be clearly seen from the contested decision, those documents were drawn up in the context of preliminary consultations and deliberations with a view to the adoption of the legislative proposal in question. Consequently, for that reason alone, they cannot be regarded as having been drawn up solely for the purposes of specific court proceedings (see, to that effect, judgment of 3 October 2012, Jurašinović v Council, T‑63/10, EU:T:2012:516, paragraph 76).
61      However, the Commission seeks, in the context of the exception relating to the protection of court proceedings, an interpretation also covering documents which are not drawn up solely for the purposes of court proceedings on the ground, in essence, of the principle of equality of arms and of its rights of the defence, which could be compromised by a restrictive interpretation of that exception. According to the Commission, if disclosure of pleadings connected with specific court proceedings could compromise its position in those proceedings, the same is true as regards a document revealing to the public its position on issues that may be the subject of future proceedings which have not yet been brought.
62      It should be borne in mind that, in accordance with the case-law cited in paragraph 33 above, the exceptions referred to in Article 4 of Regulation No 1049/2001 must be interpreted and applied strictly.
63      In the same vein, it should be borne in mind that the case which gave rise to the judgment of 21 September 2010, Sweden and Others v API and Commission (C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541), primarily deals with specific documents, namely pleadings, and the question of when a general presumption is applicable and when a specific examination must be carried out in relation to pleadings.
64      However, it does not follow from the case-law cited above that other documents are to be excluded, should the case arise, from the scope of the exception relating to the protection of court proceedings. Indeed, it can be seen from that case-law that the principles of equality of arms and the sound administration of justice are at the heart of that exception (judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 85). The need to ensure equality of arms before a court justifies the protection not only of documents drawn up solely for the purposes of specific court proceedings, such as pleadings, but also of documents whose disclosure is liable, in the context of specific proceedings, to compromise that equality, which is a corollary of the very concept of a fair trial. However, in order for the exception to apply, it is necessary that the requested documents, at the time of adoption of the decision refusing access to those documents, should have a relevant link either with a dispute pending before the Courts of the European Union, 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.
65      In those two cases, although those documents have not been drawn up in the context of specific court proceedings, the integrity of the court proceedings concerned and the equality of arms between the parties could be seriously compromised if parties were to benefit from privileged access to internal information belonging to the other party which is closely connected to the legal aspects of pending or potential (but imminent) proceedings.
66      It is well known, in that regard, that the legislative proposal concerning tobacco products is one of the most debated of all the recently adopted EU proposals. Thus, like the first Tobacco Products Directive, which had been the subject of persistent legal controversy, it was foreseeable that the TPD would also be the subject of such legal controversy.
67      It must be pointed out that, in the first place, at the time of adoption of the contested decision (6 November 2014), the applicant had confirmed that, at the end of June 2014, it had brought an action contesting the validity of the TPD before the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court), United Kingdom.
68      In the second place, as can also be seen from the contested decision, on 22 July 2014 the Republic of Poland had brought an action against the Parliament and the Council, contesting the validity of a number of provisions of the TPD which, according to the Republic of Poland, infringed Article 114 TFEU and infringed the principle of proportionality and the principle of subsidiarity.
69      The Commission was therefore fully entitled to consider, having regard to the history of the legislative process relating to the adoption of the TPD, that a reference for a preliminary ruling was highly likely in the near future and, consequently, that disclosure of the documents in question could compromise the principle of equality of arms in the expected preliminary ruling proceedings.
70      It is therefore necessary to examine whether Documents Nos 1 to 4 are ‘relevant’ to the two sets of court proceedings mentioned above and, accordingly, whether disclosure of those documents could compromise the principle of equality of arms, the main ground relied upon by the Commission in order to justify its refusal to disclose those documents in full.
71      First of all, it should be noted that the Commission granted full access or very wide partial access to most of the requested documents. Similarly, it should be noted that, in view of the brevity of the redacted parts, it was not possible for the Commission to give a more detailed explanation of the content of those documents without disclosing them.
72      Next, it must be found, following the production of the documents in the context of the measure of inquiry, that the redacted parts of Documents Nos 1 to 4 concerned contentious issues relevant to the reference for a preliminary ruling and to the proceedings brought by the Republic of Poland. The issues touched on concern, inter alia, the packaging, labelling and arrangements for the sale of tobacco products and the interpretation of Article 24 of the TPD: issues that could well be connected with the legislative powers of the European Union, the legal basis chosen and the proportionality of the proposed measure. The positions taken by the staff of the various Directorates-General of the Commission regarding various policy options are also involved.
73      The principle of equality requires the institution by which the contested act was issued to be in a position effectively to defend the legality of its actions before the courts. That possibility would be seriously compromised if the institution in question were obliged to defend itself, not only having regard to the pleas in law and arguments raised by the applicant, or, as in the present case, in the context of preliminary ruling proceedings, but also having regard to the positions taken internally concerning the legality of the various options envisaged in the context of the drawing up of the act in question. In particular, unlike the situation for documents that contain elements constituting the factual basis of the Commission’s exercise of its powers, disclosure of which may prove to be necessary in order for the objectives set out in paragraph 30 above to be met, disclosure of documents containing that type of position is such as to oblige the institution concerned, as a result, to defend itself against assessments by its own staff which have, ultimately, been disregarded. That fact could upset the balance between the parties to court proceedings, inasmuch as the applicant would not be obliged to disclose that type of internal assessment (see, to that effect, judgment of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 87).
74      Accordingly, disclosure of such documents to the public while court proceedings concerning the interpretation and the legality of the act in question are pending could compromise the Commission’s defensive position and the principle of equality of arms, in so far as it would reveal the internal legal positions of its services on contentious issues although no similar obligation would be imposed on the other party.
75      Lastly, as regards the applicant’s criticism that the Commission failed to carry out a proper assessment of whether an overriding public interest could justify disclosure of the documents in question, it is for the institution concerned, as already stated in paragraph 36 above, to weigh the particular interest to be protected by non-disclosure of the document concerned against the existence of an overriding public interest justifying such disclosure, notwithstanding the fact that the protected interest may thereby be compromised.
76      In that regard, it can be seen from the contested decision that the Commission considered that its rights of the defence were of greater importance at the time when the relevant questions were being examined before the Courts of the European Union and that disclosure of the redacted parts of the requested documents could compromise the principle of equality of arms. In addition, it considered that the interest invoked by the applicant was private and not public.
77      The applicant has not put forward arguments to invalidate that assessment. In addition, in so far as the applicant argues that the Commission is not a party to one of the court proceedings referred to in the contested decision, it should be noted that the Commission has an interest in ascertaining that any act adopted on the basis of one of its proposals is lawful and that it will therefore, as a rule, intervene in proceedings concerning the validity of an act of the European Union, in accordance with its institutional mandate as affirmed in Article 17 TEU. Consequently, that argument cannot succeed.
78      It follows from the foregoing that the first plea in law must be rejected.
Second plea in law: infringement of Article 15(3) TFEU and the second subparagraph of Article 4(3) of Regulation No 1049/2001
79      In the second plea in law, the applicant argues that the Commission has not explained how disclosure of the two redacted paragraphs of Document No 6 would specifically and actually undermine the protection of the decision-making process. Nor did the Commission weigh up the interest invoked against the overriding public interest presented by disclosure of the documents.
80      The Commission disputes those arguments.
81      Under the second subparagraph of Article 4(3) of Regulation No 1049/2001, access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned is to be refused even after the decision has been taken if disclosure of the document would seriously compromise the institution’s decision-making process, unless there is an overriding public interest in disclosure.
82      It should be borne in mind that, according to the case-law cited in paragraph 35 above, the principle that the exceptions laid down in Article 4 of Regulation No 1049/2001 must be interpreted strictly requires the institution relying on one of those exceptions to explain how disclosure of the requested document could specifically and actually compromise the interest protected by that exception. Likewise, in accordance with that case-law, the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical. Furthermore, in order to be covered by the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process must be seriously compromised.
83      It is necessary to determine whether, by refusing to grant access to Document No 6 on the ground that disclosure of that document would seriously compromise its decision-making process, the Commission infringed the second subparagraph of Article 4(3) of Regulation No 1049/2001.
84      Thus, in the contested decision, the Commission stated that the redacted parts corresponded to the personal reflections of an official in the context of the finalisation of the Impact Assessment regarding the revision of the TPD. According to the Commission, those reflections had no connection with the content of the proposal for a revision of the TPD, but concerned internal working methods. The Commission added that the exchanging of informal emails between officials did not constitute the Commission’s formal position.
85      The Commission considered that disclosure could, in the first place, seriously compromise its decision-making process owing to the fact that co-operation between its internal services would be adversely affected and, in the second place, discourage Commission officials from freely expressing their opinions or observations regarding the internal functioning of the institution.
86      In that regard, it should be noted at the outset that the Commission has refused to disclose the second paragraph and the first three sentences of the third paragraph of the document in question.
87      As regards the second paragraph, it must be found that the statement of reasons in the contested decision reflects the content of that part of the document at issue, since it concerns criticisms made by the author of that document as regards certain aspects of another Commission service’s conduct during the procedure of adopting the proposal for a revision of the TPD. In view of the content of that paragraph, the Commission did not make an error of assessment in considering that disclosure thereof would seriously compromise its decision-making process, as it would deter staff from making such remarks independently and without being unduly influenced by the prospect of wide disclosure exposing the institution of which they are part. The possibility of expressing views independently within an institution helps to encourage internal discussions with a view to improving the functioning of that institution and contributing to the smooth running of the decision-making process.
88      By contrast, apart from two references to the Commission service concerned by the criticisms set out in the second paragraph of the document in question, the first three sentences of the third paragraph of that document refer, in essence, to the steps to be taken in drawing up the proposal for a revision of the TPD. In those circumstances, the content of those sentences does not support the Commission’s assessment that its decision-making process would be seriously compromised.
89      Accordingly, the Commission has failed to demonstrate to the requisite legal standard that the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001 was applicable to the first three sentences of the third paragraph of Document No 6.
90      It follows from the foregoing that the second plea in law must be upheld in part. Consequently, the contested decision must be annulled in so far as it refuses access to the first three sentences of the third paragraph of Document No 6 and the action must be dismissed as to the remainder.
Costs
91      Under Article 134(3) of its Rules of Procedure, the General Court may order that the costs be shared or order the parties to bear their own costs if each party succeeds on some heads and fails on others. In the circumstances of the present case, it is appropriate to order each party to bear its own costs.
On those grounds,
THE GENERAL COURT (Eighth Chamber)
hereby:
1.      Annuls Commission Decision Ares(2014) 3694540 of 6 November 2014, refusing access to certain documents relating to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, in so far as it refused access to the first three sentences of the third paragraph of Document No 6;
2.      Dismisses the action as to the remainder;
3.      Orders each party to bear its own costs.
Gratsias
Kancheva
Wetter
Delivered in open court in Luxembourg on 15 September 2016.
[Signatures]
* Language of the case: English