Source: EURLEX
Language: en
Format: md

JUDGMENT OF THE GENERAL COURT (Second Chamber)

25 September 2024 ([\*](#Footnote*))

( Access to documents – Council Regulation (EC) No 1049/2001 – Public health – Delegated Directive (EU) 2022/2100 – Withdrawal of certain exemptions for heated tobacco products – Preparatory documents – Databases – Article 2(3) of Regulation No 1049/2001 – Documents held by an institution – Declaration of non-existence – Presumption of lawfulness )

In Case T‑311/23,

**British American Tobacco Polska Trading sp. z o.o.,** established in Warsaw (Poland), represented by L. Van den Hende, M. Schonberg, J. Penz-Evren and E. White, lawyers,

applicant,

v

**European Commission,** represented by M. Burón Pérez, Ș. Ciubotaru and F. van Schaik, acting as Agents,

defendant,

THE GENERAL COURT (Second Chamber),

composed of A. Marcoulli, President, R. Norkus and L. Spangsberg Grønfeldt (Rapporteur), Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure,

further to the hearing on 25 April 2024,

gives the following

**Judgment**

1        By its action pursuant to Article 263 TFEU, the applicant, British American Tobacco Polska Trading sp. z.o.o., seeks the annulment of Commission Decision C(2023) 5453 final of 4 August 2023 adopted pursuant to Article 4 of the Implementing Rules 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) (‘the contested decision’).

**Background to the dispute**

***P****rocedure** **for** **the adoption of****Delegated Directive (EU) 2022/2100***

2        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) regulates the placing on the market of tobacco products. To that end, it seeks to approximate the laws, regulations and administrative provisions of the Member States concerning, inter alia, the ingredients, labelling and packaging of tobacco products.

3        Article 7(1) and (7) of Directive 2014/40 provides that Member States are to prohibit the placing on the market of tobacco products with a characterising flavour and of those containing flavourings in any of their components. Article 7(12) of that directive, prior to being amended by Commission Delegated Directive (EU) 2022/2100 of 29 June 2022 amending Directive 2014/40 as regards the withdrawal of certain exemptions in respect of heated tobacco products (OJ 2022 L 283, p. 4), exempted tobacco products other than cigarettes and roll-your-own tobacco from the prohibitions laid down in paragraphs 1 and 7 of that article. Similarly, the first subparagraph of Article 11(1) of Directive 2014/40, prior to being amended by Delegated Directive 2022/2100, provided that the Member States could exempt tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco from certain obligations concerning the labelling of tobacco products and the mandatory affixing on the packaging of certain warnings, information messages and combined health warnings. In addition, Article 7(12) and Article 11(6) of Directive 2014/40 state that the European Commission is to adopt delegated acts to withdraw the exemptions referred to in Article 7 or the possibility of granting the exemptions referred to in Article 11 for a particular product category if there is a substantial change of circumstances as established in a report drawn up by the Commission.

4        Article 2(28) of Directive 2014/40 defines a ‘substantial change of circumstances’ as follows: ‘an increase of the sales volumes by product category by at least 10% in at least five Member States based on sales data transmitted in accordance with Article 5(6) or an increase of the level of prevalence of use in the under 25 years of age consumer group by at least five percentage points in at least five Member States for the respective product category based on the Special Eurobarometer 385 report of May 2012 or equivalent prevalence studies; in any case, a substantial change of circumstances is deemed not to have occurred if the sales volume of the product category at retail level does not exceed 2.5% of total sales of tobacco products at [EU] level’.

5        On 2 December 2021, the EU Expert Group on Tobacco Policy (‘the Expert Group on Tobacco Policy’) held a meeting the summary minutes of which were published. In those minutes, it was stated that the Commission had informed the Member States’ representatives that ‘market developments concerning heated tobacco products constituted a substantial change of circumstances’ within the meaning of Article 2(28) of Directive 2014/40.

6        On 9 February 2022, the Commission made a second presentation regarding the market developments concerning heated tobacco products to the Expert Group on Tobacco Policy.

7        On 15 June 2022, the Commission, in accordance with Directive 2014/40, published a report establishing a substantial change of circumstances for heated tobacco products (‘the Report’).

8        Following the Report, on 29 June 2022, the Commission adopted Delegated Directive 2022/2100. Article 1 of Delegated Directive 2022/2100 amended Article 7(12) and Article 11(1) of Directive 2014/40. With effect from 23 October 2023, which is the date by which the measures provided for in Delegated Directive 2022/2100 were required to have been transposed, heated tobacco products are no longer to be exempted from the prohibitions relating to characterising flavours referred to in Article 7(1) and (7) of Directive 2014/40. In addition, as from that date, heated tobacco products for smoking which are not prohibited are subject to the same constraints concerning labelling on packaging as other tobacco products for smoking which are not exempted.

***The request for access to documents bearing the reference EASE 2022/6296***

9        By email of 4 November 2022, the applicant, on its own behalf and on behalf of four other companies in the British American Tobacco group, submitted to the Commission three requests for access to documents pursuant to Regulation No 1049/2001. On 23 November 2022, it responded to the requests for clarifications sought by the Commission. Having regard to those clarifications, the requests for access to documents (together, ‘the requests’) were worded as follows and concerned:

–        ‘all documents pertaining to the preparation of [the Report], including documents containing supporting data, intermediary documents created within the Commission such as spreadsheets containing or cross-checking the data, draft analysis, earlier draft versions of [the Report] and any other reports, studies, emails, minutes of meetings and notes. Please also include all documents created for the preparation of (or otherwise related to) the presentations given by [Directorate-General (DG)] SANTE B2 of [the Commission] to meetings of the Expert Group on Tobacco Policy on 2 December 2021 (17th meeting) and 9 February 2022 (18th meeting) …’ (‘the first request’);

–        ‘all documents containing the [EU Common Entry Gate] data on the sales volumes of tobacco products per type, whether reported in sticks or by weight, per Member State from 1 January 2015 to 31 December 2020, collected pursuant to Article 5(6) of [Directive 2014/40]’ (‘the second request’);

–        ‘all documents containing data originating from the EU tobacco traceability system established under Article 15 of Directive 2014/40 on the sales volumes of tobacco products per type, whether reported in sticks or by weight’ (‘the third request’).

10      In the email of 4 November 2022, the applicant also stated as follows:

‘In relation to the second and third [requests], we refer to the clarification by the [Court of Justice] according to which (i) “all information which can be extracted from an electronic database by general use through pre-programmed search tools, even if that information has not previously been displayed in that form or ever been the subject matter of a search by the staff of the institutions, must be regarded as an existing document” and (ii) in order to satisfy the requirements of Regulation No 1049/2001, the institutions “may be led to establish a document from information contained in a database by using existing search tools” ([judgment of 11 January 2017, *Typke* v *Commission*, C‑491/15 P, EU:C:2017:5])’.

11      On 13 December 2022, the Commission extended the time limit to respond to the requests by a further 15 working days.

12      By letter of 17 January 2023, the Commission partially refused the requests. It stated that it had identified 10 documents that fall within the scope of the requests (together, ‘the disclosed documents’), namely:

–        the Commission’s presentation for the meeting of the Expert Group on Tobacco Policy on 2 December 2021 (Document 1);

–        the agenda of the meeting of the Expert Group on Tobacco Policy on 2 December 2021 (Document 1a);

–        the minutes for the meeting of the Expert Group on Tobacco Policy on 2 December 2021, entitled ‘Summary Record of Expert Group on Tobacco Policy’ (Document 1b);

–        the Commission’s presentation for the meeting of the Expert Group on Tobacco Policy on 9 February 2022 (Document 2);

–        the agenda of the meeting of the Expert Group on Tobacco Policy on 9 February 2022 (Document 2a);

–        the minutes for the meeting of the Expert Group on Tobacco Policy on 9 February 2022 (Document 2b);

–        a draft Commission delegated directive with regard to exemptions for heated tobacco products (Document 2c);

–        the Report (Document 3);

–        the draft report from the Commission on the establishment of a substantial change of circumstances for heated tobacco products in line with Directive 2014/40 (ARES (2022) 1893644) (Document 3a);

–        a report entitled ‘Attitudes of Europeans towards tobacco and electronic cigarettes’ (Document 3b).

13      The Commission agreed to disclose Document 3a and provided the applicant with internet links allowing it to consult the nine other documents, which were already publicly available. Furthermore, the Commission stated that it did not hold any other documents corresponding to the requests and, consequently, partially refused those requests.

14      On 3 February 2023, the applicant submitted to the Commission a confirmatory application within the meaning of Article 7(4) of Regulation No 1049/2001 (‘the confirmatory application’). In the confirmatory application the applicant considered, first, that the Commission had not disclosed all relevant intermediate documents and, second, that the Commission should have given it access to ‘information from the underlying relevant databases that qualified as existing documents’.

15      By email of 27 February 2023, the Commission extended the time limit to respond to the confirmatory application by a further 15 working days.

16      On 28 March 2023, the applicant requested that the Commission give a ruling on the confirmatory application as soon as possible. It also stated that, if the Commission failed to adopt an express decision before 5 April 2023, it would consider referring the matter to the European Ombudsman or bringing an action for annulment against the implied rejection of the confirmatory application.

17      On 4 August 2023, the Commission adopted the contested decision. In the contested decision, the Commission maintained that it did not hold any documents other than the documents it had already disclosed.

**Procedure and forms of order sought**

18      By application lodged at the Registry of the General Court on 26 May 2023, the applicant brought the present action, which was initially directed against the implied decision rejecting the confirmatory application.

19      By a document lodged at the Court Registry on 16 August 2023, following the adoption of the contested decision, the Commission applied for a declaration that there is no need to adjudicate.

20      On 5 September 2023, the applicant lodged a statement of modification of the application.

21      By decision of the Second Chamber of the General Court of 25 January 2024 adopted pursuant to Article 130(7) of the Rules of Procedure of the General Court, the examination of the application for a declaration that there is no need to adjudicate was reserved until its ruling on the substance of the case.

22      At the hearing, the Commission withdrew its application for a declaration that there is no need to adjudicate.

23      The applicant, after modification of the application, claims that the Court should:

–        annul the contested decision;

–        order the Commission to pay the costs.

24      The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

**Law**

25      The applicant puts forward two pleas in law. The first plea alleges infringement of Article 2(1) and (3) of Regulation No 1049/2001 and the second plea alleges a failure to state reasons.

***The first plea** **in law****, alleging infringement of** **Article 2****(1) and (3) of Regulation No 1049/2001***

26      The first plea in law is divided into two parts. By the first, the applicant disputes the Commission’s contention that it does not hold documents other than those that have been disclosed. In support of the second part, which it is appropriate to examine first, the applicant considers that the Commission infringed Article 2(1) and (3) of Regulation No 1049/2001 by refusing to grant it access to data contained in the three databases that it used in order to prepare the Report, namely the Euromonitor, the EU Common Entry Gate (‘the EU-CEG’) and the EU tobacco traceability system established pursuant to Article 15 of Directive 2014/40 (‘the traceability system’).

*The second part of the first plea in law, alleging that, by refusing to grant access to the relevant information contained in the Euromonitor, the EU-CEG and the traceability system databases, the Commission infringed Article 2(1) and (3) of Regulation No 1049/2001*

27      First, in general, the applicant submits that the relevant information recorded in the Euromonitor, the EU-CEG and the traceability system databases must be regarded as existing documents within the meaning of the case-law and that the Commission cannot therefore refuse to disclose that information to it. The applicant also submits that the Commission has already disclosed some of those data, whereas, in the contested decision, it considers that it cannot do so because it does not own the databases from which they were extracted.

28      It is however clear, given that the Commission was able to use such data in the preparation of the Report, that those data are in its possession as it has physical control over the data allowing it to access them. Furthermore, those data were already extracted via existing search tools. The internal guidelines relating to access to documents, which were adopted by the Commission, themselves provide that such data are documents that may be disclosed.

29      Secondly, as regards the relevant data contained in the Euromonitor database, the applicant submits that the Commission has already disclosed them since they appear in the documents which were disclosed to it and were made publicly accessible. Even if the contract concluded with Euromonitor legitimately provides for a restriction on disclosure, that would be a reason which could possibly justify an exception to the communication of those data within the meaning of Article 4(2) of Regulation No 1049/2021 and not a reason relevant to assessing whether the Commission is ‘in possession’ of such data within the meaning of Article 2(3) of that regulation. The possibility for the applicant to subscribe directly to Euromonitor is not a matter that may justify the rejection of the requests.

30      Thirdly, with regard to the relevant data contained in the EU-CEG, the applicant considers that the only relevant criterion is whether the Commission has physical control over the data, that is to say, the Commission’s capacity to extract the data from the database. The Commission is not therefore justified in arguing that it merely provides technical capacity on behalf of the Member States. Nor is it justified in relying on Decision 1856/2017/EIS of the European Ombudsman of 23 July 2018, which cannot prevail over the case-law. Furthermore, the Commission cannot argue that the disclosure of data that it used in preparation for the adoption of a delegated directive cannot constitute use of such information ‘for the purposes of Directive’ 2014/40. Lastly, the Commission cannot rely on the commercially sensitive nature of certain information extracted from the EU-CEG to justify a refusal to disclose documents without raising the exception provided for in Article 4(2) of Regulation No 1049/2001, which it did not do in the present case.

31      Fourthly, as regards the traceability system, the applicant maintains that the Commission has not demonstrated that in order to disclose the extracted data it would need to make a ‘substantial investment’ within the meaning of the case-law. Moreover, the Commission did not consult it in order to determine the procedures for accessing the data which could have satisfied the requests. In that regard, the Commission could have communicated to it the raw data that it had extracted without reprocessing it. Article 25(2) of Commission Implementing Regulation (EU) 2018/574 of 15 December 2017 on technical standards for the establishment and operation of a traceability system for tobacco products (OJ 2018 L 96, p. 7) cannot be interpreted as excluding all the data contained in the traceability system from the scope of Regulation No 1049/2001.

32      Fifthly, according to the applicant, the contested decision is inconsistent with the Commission’s internal guidelines, according to which, first, ‘the fact that certain databases are only managed by the Commission for facilitating exchanges between Member States … does not, per se, exclude the application of Regulation No 1049/2001’ and, secondly, ‘as long as the documents contained in the databases are in the Commission’s possession, the Commission should make an assessment under the Regulation’. Moreover, the Commission cannot rely on the decision of the European Ombudsman in Case 1856/2017/EIS.

33      The Commission disputes the applicant’s arguments.

34      First, according to the Commission, the inclusion in the Report of data extracted from the Euromonitor, the EU-CEG and the traceability system databases is insufficient to demonstrate that such data were ‘in its possession’. The publication of the Report cannot entail an obligation to provide access to all underlying data, since, as the Commission essentially submits, the Report is the result of the processing of the data which is distinct from the data on which it is based.

35      Secondly, the Commission argues that the data contained in the Euromonitor, the EU-CEG and the traceability system databases are not ‘in its possession’.

36      So far as concerns Euromonitor, the Commission submits that it cannot communicate the data extracted from that database without infringing the intellectual property rights of the manager thereof. In any event, the applicant acknowledges that the data extracted from the Euromonitor have been communicated to it. The Commission submits that the fact that it was able to use that database does not mean that it is able to perform new searches for the purpose of satisfying requests by third parties. At the hearing, in response to a question by the Court, the Commission nevertheless stated that it held a subscription which was valid at the time of the contested decision.

37      As for the EU-CEG, the Commission maintains that the data belong to each Member State, that it is not the recipient of the information and that it is neither the owner of, nor legally responsible for, the information. Furthermore, the communication of such data in the manner sought by the applicant does not constitute use in accordance with Article 5(7) of Directive 2014/40. In addition, the Commission relies on the judgment of 3 May 2018, *Malta* v *Commission* (T‑653/16, EU:T:2018:241), the reasoning in which can be applied in the present case. Contrary to the applicant’s claims, the refusal to disclose the data extracted from the EU-CEG is not based on the need to protect commercially sensitive data.

38      With regard to the traceability system, it is a database hosted by independent third parties recording data relating to manufacturers and importers that have access to data concerning themselves only under restrictive conditions. Granting public access to those data would constitute a threat to the objective pursued by Article 15(8) of Directive 2014/40. That provision should be regarded as a *lex specialis* which takes precedence over Regulation No 1049/2001. The Court should achieve a consistent interpretation ensuring effective compliance with those two provisions. In that regard, the Commission also relies on the approach adopted in the judgment of 3 May 2018, *Malta* v *Commission* (T‑653/16, EU:T:2018:241). The Commission considers that it was right to aggregate the data extracted from the traceability system in order to establish a substantial change of circumstances for heated tobacco products, without such use granting the public a separate right of access to those data. The disclosure of documents containing those data constitutes a form of access satisfying the obligations laid down in Regulation No 1049/2001.

39      Thirdly, the Commission submits that, regardless of whether the data are in its possession, they cannot be extracted without requiring alteration of the organisation of the databases or the search tools currently available. Such operations should be regarded as requiring a substantial investment and the creation of new documents. However, the Commission is not required to create new documents. The arguments put forward by the applicant in support of the first part of the first plea and the expert’s statement produced by the applicant support the Commission’s claims.

40      Fourthly, the Commission disputes having disregarded its internal guidelines relating to access to documents, since it considers that it has established that it does not hold the databases in question and that the extraction of data requested by the applicant amounts to the drawing up of a new document.

41      It should be recalled that, according to the wording of Article 2(1) and (3) of Regulation No 1049/2001, any citizen of the European Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, subject to the principles, conditions and limits defined in the regulation, which applies to all documents held by an institution, that is to say, documents drawn up or received by it and in its possession, in all areas of activity of the European Union.

42      Article 4 of the regulation, entitled ‘Exceptions’, provides for the exceptions to the right of access to documents.

43      It is common ground in the present case that the Commission did not rely on any of the exceptions provided for in Article 4 of Regulation No 1049/2001, but that it refused to disclose the data extracted from the Euromonitor, the EU-CEG and the traceability system databases on the ground that they did not constitute documents in its possession, within the meaning of Article 2(3) of that regulation. Thus, the question of whether certain documents or data not disclosed by the Commission are covered by one of the exceptions is outside the scope of this dispute.

44      The right of access to documents of the institutions applies only to existing documents in the possession of the institution concerned and Regulation No 1049/2001 may not be relied upon to oblige an institution to create a document which does not exist. It follows that a request for access that would require the Commission to create a new document, even if that document were based on information that already appears in existing documents held by it, falls outside the framework of Regulation No 1049/2001 (see, to that effect, judgments of 2 October 2014, *Strack* v *Commission*, C‑127/13 P, EU:C:2014:2250, paragraphs 38 and 46, and of 11 January 2017, *Typke* v *Commission*, C‑491/15 P, EU:C:2017:5, paragraph 31).

45      As Advocate General Bobek observed in points 44 to 51 of his Opinion in the case *Typke* v *Commission* (C‑491/15 P, EU:C:2016:711), the very nature of a database consists in the data that it contains, which, unlike ‘static’ documents the existence of which is observed physically, are not immediately accessible but become so only after a process of enquiry presenting varying degrees of complexity.

46      Depending on the structure and the restrictions imposed by their programming, the information that electronic databases contain may be regrouped, linked and presented in different ways using programming languages. However, the programming and IT management of such databases are not included among the operations carried out in the context of general use by final users. Those users normally access information contained in a database by using preprogrammed search tools. Those tools enable them to perform standardised operations easily in order to display the information which they usually need. A substantial investment on their part is, in general, not required in that context (judgment of 11 January 2017, *Typke* v *Commission*, C‑491/15 P, EU:C:2017:5, paragraph 36).

47      In those circumstances, all information which can be extracted from an electronic database by general use through preprogrammed search tools, even if that information has not previously been displayed in that form or ever been the subject matter of a search by the staff of the institutions, must be regarded as an existing document. It follows that the institutions, to satisfy the requirements of Regulation No 1049/2001, may be led to establish a document from information contained in a database by using existing search tools (judgment of 11 January 2017, *Typke* v *Commission*, C‑491/15 P, EU:C:2017:5, paragraphs 37 and 38).

48      On the other hand, any information whose extraction from a database calls for a substantial investment must be regarded as a new document and not as an existing document. Accordingly, any information which would, in order to be obtained, require an alteration either to the organisation of an electronic database or to the search tools currently available for the extraction of information must be considered to be a new document (judgment of 11 January 2017, *Typke* v *Commission*, C‑491/15 P, EU:C:2017:5, paragraphs 39 and 40).

49      Thus, according to the case-law, any information which may be extracted using search tools currently available to the institution and the programming of which does not require a substantial investment on its part must be regarded as a document held by an institution and in principle subject to disclosure when it is the subject of a request for access submitted in application of Regulation No 1049/2001.

50      It is in the light of those principles that it is necessary to examine the legality of the refusal by the Commission to disclose data contained in the Euromonitor, the EU-CEG and the traceability system databases, which it used to prepare the disclosed documents, on the ground that those data were not documents in its possession within the meaning of Article 2(3) of Regulation No 1049/2001.

51      In the first place, it must be recalled that the requests relate to data that the Commission extracted from the three databases referred to above to establish its finding of a substantial change of circumstances for heated tobacco products within the meaning of Article 2(28) of Directive 2014/40. In order to find that the conditions allowing it to adopt Delegated Directive 2022/2100 were satisfied, the Commission stated in the disclosed documents that data to which it had access enabled it to establish that there had been an increase of sales volume for heated tobacco products of at least 10% in the territory of at least five EU Member States and that the sales volume of those products exceeded 2.5% of total sales of tobacco products at EU level. In the requests, the applicant does not ask the Commission to grant it general access to the databases that it used, but rather that it disclose the data in the light of which it made that finding.

52      In the second place, in order to refuse to disclose those data, the Commission raised a first argument, alleging that, even though it did not dispute having had access to them, it did not hold the data recorded in the three databases that it had used and, therefore, that those data could not be regarded as being in its possession within the meaning of Article 2(3) of Regulation No 1049/2001.

53      In that regard, first, as regards the Euromonitor database, the Commission confirmed at the hearing, in response to a question by the Court, that, at the date of the adoption of the contested decision, it had access to that database on the basis of a subscription. It therefore had access to the information sought by the applicant. Therefore, in relying on the intellectual property rights of the owner of that database and on the contractual restrictions relating to the terms of the subscription that it held to find that it did not hold the requested information, within the meaning of Article 2(3) of Regulation No 1049/2001 and without prejudice to the question whether those rights could, if appropriate, provide support for a refusal of disclosure under Article 4 of the regulation, the Commission made an error of law.

54      Secondly, the Commission does not contest being entitled to access the EU-CEG in order to establish whether there was a factual situation covered by Directive 2014/40, as it did in the present case in order to ascertain whether, in the market for heated tobacco products, there had been a substantial change of circumstances within the meaning of Article 2 of that directive. Since the applicant does not seek the disclosure of information other than that which allowed the Commission to establish such a change, the Commission’s submission that, to satisfy those requests, it would have had to access the EU-CEG for purposes outside the application of the directive within the meaning of Article 5(7) thereof is unfounded. Consequently, and since the Commission could lawfully access the data whose disclosure was requested, that institution cannot rely on the arguments that those data belong to the Member States concerned, that it was not itself the recipient of those data and that it is neither their owner nor legally responsible for them, in order to conclude that they are not documents in its possession within the meaning of Article 2(3) of Regulation No 1049/2001.

55      Similarly, the Commission cannot rely in the present case on the solution adopted in the judgment of 3 May 2018, *Malta* v *Commission* (T‑653/16, EU:T:2018:241). In that judgment, in order to find that, in that case, the Commission had unlawfully communicated certain information, the Court ruled on whether the exceptions provided for in Article 4(4) and (5) of Regulation No 1049/2001 precluded the disclosure requested and not on the question of its possession by that institution within the meaning of Article 2(3) of that regulation. The same is true in so far as the requests are capable of covering commercially sensitive information. The protection of such interests would raise the exception provided for in Article 4(2) of the abovementioned regulation and not the question of whether or not that information is held by the Commission, within the meaning of Article 2(3) of that regulation.

56      Finally, as the applicant rightly submits, Decision 1856/2017/EIS of the European Ombudsman of 23 July 2018, in so far as it states that the data recorded in the EU-CEG are not ‘in the possession’ of the Commission, cannot prevail over the case-law. In addition, it should be noted that the request for access to the documents of which the Ombudsman was seised concerned a general request for access to the EU-CEG, whereas, as stated in paragraph 54 above, the requests in the present case relate to data to which the Commission lawfully had access for the purposes of the application of Directive 2014/40 and for the preparation of a delegated act.

57      It follows that, by taking the view that the requests, in so far as they related to the EU-CEG, related to information which the Commission did not hold within the meaning of Article 2(3) of Regulation No 1049/2001, the Commission also erred in law.

58      Thirdly, the considerations set out in paragraphs 54 to 57 above also apply as regards the Commission’s refusal, on the basis of Article 2(3) of Regulation No 1049/2001, in relation to the data recorded in the traceability system. The Commission states in the contested decision that it extracted data from that database in order to support its finding that there had been a substantial change of circumstances in the market for heated tobacco products. Since it actually accessed it for the purposes of applying Directive 2014/40 and preparing a delegated act and since it does not dispute that it has that possibility, the Commission was therefore not justified in refusing to disclose the data recorded in that database on the ground that it did not hold them within the meaning of Article 2(3) of Regulation No 1049/2001.

59      As regards the Commission’s submission that Article 15(8) of Directive 2014/40 constitutes a *lex specialis* derogating from the provisions of general application of Regulation No 1049/2001, it suffices to state that those specific rules laid down in the directive could, at most, constitute an exception capable of justifying a refusal to disclose, but that they cannot affect the scope of the concept of holding or possession referred to in Article 2(3) of Regulation No 1049/2001, which depends only on whether the institution receiving a request for access to documents holds or lawfully has access to those documents.

60      In the third place, however, it must be borne in mind that, as is apparent from paragraphs 45 to 49 above, the question whether data which are the object of a request for access must be regarded as an existing document depends essentially on the complexity of the search of the databases in question. Only extractions carried out using search tools which do not require a substantial investment may be regarded as existing documents within the meaning of Article 2(3) of Regulation No 1049/2001.

61      The Commission explained in detail, at the hearing, without being validly contradicted by the applicant, that, in view of the nature of the data recorded in the EU-CEG and the traceability system databases, the architecture of those databases and their data model, the information necessary to assess the variation in the sales volume of heated tobacco products on the national markets in the European Union required complex and iterative searches, involving the programming of specifically developed searches for that purpose. The Commission indicated that the databases in question contained raw data and that they had not been designed specifically to make clear substantial changes in the situation covered by Directive 2014/40. In order to assess whether the situation in the market for heated tobacco products had so changed, the Commission therefore had to carry out searches in stages that enabled it to isolate the relevant data. It also stated that the search processes necessary for each of those databases, although they were of a comparable degree of complexity, were not identical and had had to be adapted to the specific characteristics of each of them.

62      Such circumstances are of such nature as to constitute a need to make a substantial investment within the meaning of paragraphs 36 and 40 of the judgment of 11 January 2017, *Typke* v *Commission* (C‑491/15 P, EU:C:2017:5). Accordingly, the Commission was justified in taking the view that the requests, in so far as they related to data which needed to be extracted from the EU-CEG and the traceability system databases, would have involved the creation of new documents within the meaning of the case-law and, for that reason, had to be rejected.

63      That is not the case, however, as regards the information contained in the Euromonitor database. It is common ground that that database provides market reports and surveys in a format which is accessible to the general public. In those circumstances, as is apparent from the assessments set out in paragraph 53 above, the Commission could not lawfully reject the requests in so far as they related to the data originating from Euromonitor and used to prepare the disclosed documents on the ground that those documents were not in its possession within the meaning of Article 2(3) of Regulation No 1049/2001.

64      That assessment, as has already been mentioned in paragraphs 43 and 53 above, is without prejudice to the possibility for the Commission, if it considers that it is justified in doing so, to refuse that disclosure on the basis of one of the exceptions provided for in Article 4 of Regulation No 1049/2001. That question, however, is outside the scope of the present dispute, since the contested decision is based exclusively on the ground examined in paragraph 63 above.

65      In the fourth place, since it follows from the foregoing that, except as regards the data from Euromonitor, the rejection of the requests complies with Regulation No 1049/2001 as interpreted in the light of the case-law principles referred to in paragraphs 47 to 49 above, the applicant’s submission that the Commission failed to comply with its own internal guidelines on access to documents is unfounded.

66      In the fifth place, it also follows from the foregoing that, given that identifying the scope of the requests presented no difficulty and that there was no possibility of satisfying them by using less complex means, the applicant is not justified in complaining that the Commission did not confer with it, within the meaning of the judgment of 26 October 2011, *Dufour* v *ECB* (T‑436/09, EU:T:2011:634, paragraph 172), in order to allow it to amend or clarify its requests so as to cover data that could be extracted without making a substantial investment.

67      It follows that the second part of the first plea in law must be upheld as regards the data extracted by the Commission from the Euromonitor database for the preparation of the disclosed documents and rejected as to the remainder.

*The first part of the first plea in law, alleging that the Commission did not grant access to all the intermediate documents relating to the preparation of the Report*

68      According to the applicant, there is no doubt that intermediate documents relating to the preparation of the Report exist to which the Commission has unlawfully refused to grant it access. It is implausible that the relevant information from the three databases used by the Commission, namely the Euromonitor, the EU-CEG and the traceability system, was extracted and directly inserted into the two slide show presentations communicated to it and into the Report. The applicant disputes the Commission’s claim that the extraction of data could constitute intermediate steps in setting out the results in the Report, without however entailing the creation of intermediate documents. The applicant considers, furthermore, that the Commission should have retained those documents.

69      The applicant refers to the statement of an expert in statistical methods and regulatory analysis according to which the extraction of data in itself required the creation of documents for storage of those data. The Commission itself states that it made calculations. Thus, according to the applicant, the Commission had to make methodological choices and it is implausible that they would not have been recorded in documents. Documents allowing the later verification of the data obtained must also exist.

70      Furthermore, the Commission cannot argue that the data necessary for producing the Report were not recorded in the ARES system. Failure to record the documents necessary to establish whether the Report and, therefore, Delegated Directive 2022/2100 were well founded is contrary to the principle of good administration. In addition, the Commission, where it has a received a request for access to documents, cannot restrict its searches to documents recorded in the ARES registration system.

71      The presumption of legality, which attaches to any statement from the institutions relating to the non-existence of documents, can be rebutted and should be rebutted in the present case. The Commission does not maintain that it did not create or retain any documents that correspond to the requests. By claiming merely that it could not find such documents, it places the applicant in the impossible situation of having to show that documents exist which it claims not to have, even though those documents necessarily exist.

72      The Commission disputes the applicant’s arguments. It contends that, on the date on which the contested decision was adopted, it did not hold any intermediate documents covered by the requests and that its statement to that effect carries a presumption of veracity. The applicant has not provided any prima facie evidence or any indication capable of rebutting that presumption. The Commission is not required to retain short-lived documents. The fact that the documents disclosed bear an ARES number does not mean that the search for documents was restricted to documents previously registered in that database, since all the documents which are identified as falling within the scope of a request for access to documents are registered in the ARES system before being disclosed.

73      The parties disagree as to whether, at the date of the contested decision, there were any intermediate documents which, according to the applicant, would have been drawn up in the preparation of the Report and the other disclosed documents.

74      In that regard, it should be borne in mind that, according to the case-law, the exercise of the right of access to documents provided for any interested person in Regulation No 1049/2001 necessarily presupposes that the documents requested exist and are held by the institution concerned. By contrast, the right of access to documents cannot be relied on in order to oblige the institution to create a document which does not exist (judgment of 2 October 2014, *Strack* v *Commission*, C‑127/13 P, EU:C:2014:2250, paragraphs 38 and 46).

75      Moreover, according to settled case-law, where an institution states that a document does not exist in the context of a request for access, the non-existence of that document is presumed, in accordance with the presumption of legality attaching to EU acts (see judgment of 25 September 2018, *Psara* *and Others* v *Parliament*, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 33 and the case-law cited).

76      Nevertheless, that presumption may be rebutted in any way on the basis of relevant and consistent evidence produced by the applicant for access (see judgment of 25 September 2018, *Psara and Others* v *Parliament*, T‑639/15 to T‑666/15 and T‑94/16, EU:T:2018:602, paragraph 33 and the case-law cited). That presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested (see judgment of 19 January 2010, *Co-Frutta* v *Commission*, T‑355/04 and T‑446/04, EU:T:2010:15, paragraph 155).

77      The right of access to documents requires the institutions to do what is necessary to facilitate the effective exercise of that right. Such effective exercise requires that the institutions concerned, in so far as possible and in a non-arbitrary and predictable manner, draw up and retain documentation relating to their activities (judgment of 25 April 2007, *WWF European Policy Programme* v *Council*, T‑264/04, EU:T:2007:114, paragraph 61).

78      In the decisions which it adopted during the administrative procedure, as it also confirmed in its written pleadings and at the hearing, the Commission stated unequivocally and consistently that it had not drawn up documents during the stages of creating the disclosed documents. In particular, the Commission stated that, despite its searches, it had not found draft documents or documents recording the results, provisional or definitive, of the searches it had carried out in the three databases used to establish the factual findings set out in the disclosed documents.

79      The applicant challenges those statements by arguing that they are implausible. In its view, the complex nature of the searches carried out in the databases required the drafting of documents specifying the methodology used and containing the intermediate results obtained. Moreover, it is not credible that the disclosed documents were not the subject of draft or provisional versions. According to the applicant, all those intermediate documents had to be retained and the Commission could not refuse to disclose those documents.

80      Those assumptions, however, are not supported by any prima facie evidence in the case file and cannot be regarded as serious indicia of the existence of documents the reality of which the Commission disputes.

81      First, it is true that, at the hearing, the Commission acknowledged that the complex nature of extracting data contained in the EU-CEG and the traceability system databases had required a number of searches to be conducted in successive stages. Contrary to the applicant’s claims, however, that iterative search process did not in itself involve the drawing up of separate documents in which all the stages carried out successively were recorded. The expert’s statement produced by the applicant, while describing the processes of searching and recording intermediate results which, according to the applicant, the Commission must have used in order to obtain the aggregated data set out in the disclosed documents, does not prove that the necessary technical steps led to the creation of separate documents, including as regards the methodology used to assess whether circumstances in the market for heated tobacco products had substantially changed, within the meaning of Article 2(28) of Directive 2014/40.

82      Admittedly, as is apparent from the case-law referred to in paragraph 77 above, the institutions cannot deprive of all substance the right of access to documents which they hold by failing to register the documentation relating to their activities. However, that is not the case here, since the data extracted from the Euromonitor, the EU-CEG and the traceability system databases were presented in the disclosed documents, and in particular in the two presentations to the Expert Group on Tobacco Policy (Documents 1 and 2) and in the successive versions of the Report (Documents 3 and 3a), the results of which were themselves reproduced in Delegated Directive 2022/2100.

83      Secondly, as noted in paragraph 74 above, the exercise of the right of access for any interested person presupposes that the requested documents exist and are held by the institution concerned. Consequently, the right of access to documents cannot be relied on in order to oblige the institution to create a document which does not exist, even though the institution concerned would also have been required to draw up and hold such a document (see, to that effect, judgment of 2 October 2014, *Strack* v *Commission*, C‑127/13 P, EU:C:2014:2250, paragraphs 37, 38 and 46).

84      Thirdly, contrary to the applicant’s contention, the fact that the disclosed documents all bear an ARES reference does not constitute evidence capable of proving that the Commission limited its search solely to the documents which had been recorded in that archiving system. The explanation put forward by the Commission that all the documents that it discloses are, at the time of their disclosure, recorded in the ARES registration system is plausible. Accordingly, the fact that the documents disclosed bear an ARES reference does not support the conclusion that the Commission did not carry out an exhaustive search for documents capable of falling within the scope of the requests, including documents not previously recorded in the ARES registration system. Finally, by contrast with the situation in which the European Ombudsman adopted a decision in Case 1316/2021/MIG, upon which the applicant relies, the Commission did not in the present case, at any stage of the administrative procedure, consider that certain documents could by their very nature escape any obligation to be recorded in the ARES register.

85      It follows from the foregoing that the applicant has not put forward sufficient evidence or arguments to rebut the presumption of legality attaching to the Commission’s statement that documents other than the disclosed documents do not exist. Nor is it apparent from any of the documents in the case file that any such documents exist. Consequently, the first part of the first plea in law must be rejected.

86      It follows from the foregoing that the first plea must be upheld in part, as regards the refusal to communicate the data referred to in paragraph 67 above, and rejected as to the remainder.

***The second plea in law, alleging a failure to state reasons***

87      According to the applicant, the contested decision is vitiated by three defects in the statement of reasons. First, the statement of reasons for the contested decision is contradictory. On the one hand, the Commission stated that it does not hold any intermediate documents. On the other, it also stated that the extraction of data from the traceability system required the creation of intermediate documents. Secondly, the contested decision does not indicate with sufficient precision whether some documents were not retained or whether the Commission restricted its searches to documents recorded in the ARES registration system. Thirdly, the indication that the Commission does not hold any documents from the traceability system contradicts the indication that the documents disclosed contain such data.

88      The Commission contests that line of argument.

89      It should be recalled that an EU institution is not obliged to adopt a position, in the statement of reasons for its decisions, on all the arguments on which interested persons concerned may rely in their defence. It is sufficient if it sets out the facts and the legal considerations of fundamental importance in the context of the decision (see judgment of 1 July 2008, *Chronopost and La Poste* v *UFEX and Others*, C‑341/06 P and C‑342/06 P, EU:C:2008:375, paragraph 96 and the case-law cited).

90      First, it must be observed that the contested decision clearly indicated that the Commission held no documents other than those which it had identified and disclosed. Moreover, it cannot be interpreted as meaning that the extraction of data from the Euromonitor, the EU-CEG and the traceability system databases would necessarily have led to the creation of intermediate documents. Contrary to the applicant’s submissions, there is therefore no contradiction in the grounds of the contested decision.

91      Secondly, as the Commission rightly submits, the Commission merely indicated in the contested decision, on a hypothetical basis, the reasons why, if there had been any intermediate documents, they might not have been retained. Those explanations are sufficiently clear and, contrary to the applicant’s claims, do not mean that intermediate documents were in fact created or that the Commission restricted its search to the ARES system.

92      Thirdly, the applicant’s interpretation according to which the Commission indicated that it did not hold any documents containing data extracted from the traceability system, while acknowledging that it disclosed such data, clearly results from a misreading of the contested decision.

93      Fourthly, and lastly, it is clear from the contested decision that the Commission stated that it did not possess any documents corresponding to the requests other than the disclosed documents. Those statements, which were neither ambiguous nor contradictory, were sufficient to enable the applicant to understand the reasons for the rejection of the requests and for the Court to review the legality of those assessments.

94      It follows that the second plea in law must be rejected.

95      It follows from all of the foregoing that the action must be upheld in part, as regards the refusal to disclose the data extracted from the Euromonitor database which was sought by the requests, and dismissed as to the remainder.

**Costs**

96      Under Article 134(2) of its Rules of Procedure, where there is more than one unsuccessful party, the General Court must decide how the costs are to be shared. In the present case, it is appropriate to order each party to bear their own costs.

On those grounds,

THE GENERAL COURT (Second Chamber)

hereby:

1.      **Annuls Commission Decision C(2023) 5453 final of 4 August 2023 in so far as it refuses to disclose the data extracted from the Euromonitor database;**

2.      **Dismisses the action as to the remainder;**

3.      **Orders the European Commission and British American Tobacco Polska Trading sp. z o.o. to bear their own costs.**

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| --- | --- | --- |
| Marcoulli | Norkus | Spangsberg Grønfeldt |

Delivered in open court in Luxembourg on 25 September 2024.

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| --- | --- | --- |
| V. Di Bucci |  | S. Papasavvas |

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| --- | --- | --- |
| Registrar |  | President |

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[\*](#Footref*)      Language of the case: English.

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