Judgment of the General Court (Eighth Chamber) of 15 September 2016 — Herbert Smith Freehills v Commission

(Case T‑755/14)

‛Access to documents — Regulation (EC) No 1049/2001 — Documents relating to discussions preceding 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 legal advice — Rights of the defence — Overriding public interest’

1. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Strict interpretation and application — Obligation to make a specific and individual examination for documents covered by an exception — Scope (European Parliament and Council Regulation No 1049/2001, first, second and fourth recitals and Arts 1 and 4) (see paras 30-34)

2. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Duty to balance relevant interests — Scope concerning documents underlying the legislative process (European Parliament and Council Regulation No 1049/2001, second and sixth recitals and Art. 4) (see para. 35)

3. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Obligation on the institution to examine the nature of the measure as legal advice and the actual possibility of the protection of legal advice being undermined, and to verify the absence of a higher public interest justifying disclosure — Disclosure of legal opinions concerning legislative processes — Obligation on the institution to state in detail its reasons for any decision refusing access (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 41-44)

4. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Concept of legal advice — Legal advice emanating from an author external to the institution and sent to the legal services of other institutions — Inclusion (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 47, 49-53)

5. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Scope — Exchange of views between the legal services of three institutions concerning the adoption of a legislative text in the context of a trialogue — Included (Art. 294 TFEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 58, 59)

6. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Overriding public interest justifying the disclosure of documents — Invocation of the principle of transparency — Need to put forward particular considerations in relation to the case (European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 67-70, 74)

7. EU institutions — Right of public access to documents — Regulation No 1049/2001 — Exceptions to the right of access to documents — Protection of legal advice — Scope — Refusal to disclose a legal opinion of the Commission concerning the legal basis used for the adoption of a legislative act forming the subject-matter of an action before the EU judicature — Lawfulness — Commission not a party to the dispute — Irrelevant (Art. 17 TEU; European Parliament and Council Regulation No 1049/2001, Art. 4(2), second indent) (see paras 76, 77)

Re:

APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision Gestdem 2014/2070 of 24 September 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).

Operative part

The Court:

1. Dismisses the action;

2. Orders Herbert Smith Freehills LLP to bear its own costs and to pay those incurred by the European Commission;