The Committee on Excise Duties, which is chaired by the Commission and composed of representatives of the Member States, decided, at its meetings in 1998 and 1999, that expanded tobacco should be treated in the same way as smoking tobacco and therefore be subject to excise duty.

British American Tobacco International applied to the Commission under the provisions of the Commission's Decision of 8 February 1994 on public access to its documents ¹ for access to the minutes of those meetings. The Commission's 1994 Decision, which states that " the public will have the widest possible access to documents held by the Commission and the Council", lists the cases where access to documents must, or may, be refused.

After an initial refusal, the Commission agreed to give British American Tobacco International partial access to the minutes. It nevertheless refused to disclose the identities of the national delegations referred to in the minutes, on the basis that the confidentiality of its proceedings ensured full and frank discussion among the Member States.

British American Tobacco International applied to the Court of First Instance for annulment of the Commission's decision, arguing that it had an interest in ascertaining the positions expressed by the Member States within the Committee with regard to the rules for expanded tobacco.

On 6 December 2000 the Court of First Instance had amended its rules of procedure by adding the following provision: "Where it is necessary for the Court of First Instance to verify the confidentiality, in respect of one or more parties, of a document that may be relevant in order to rule in a case, that document shall not be communicated to the parties at the stage of such verification. Where a document to which access has been denied by a Community institution has been produced before the Court of First Instance in proceedings relating to the legality of that denial, that document shall not be communicated to the other parties."

That provision was applied for the first time in the examination of this case. The Court called on the Commission, by order of 19 February 2001, to produce to it the minutes at issue so that it could examine them.

The Court began by observing that there are two categories of exception to the public's right of access to Commission documents. The first comprises mandatory exceptions, whose purpose is to protect the interests of third parties and the general public (public security, business secrecy, confidentiality required by the legislation of a Member State that has supplied information, etc.). The second is non-mandatory and relates to discussions within the Commission, which merely bring into play the interests of the institution. The Commission relied solely on the non- mandatory exception.

The Court held that the deliberations of the Committee on Excise Duties are to be regarded as being the deliberations of the Commission. Nevertheless, the fact that the documents at issue related to deliberations of that committee did not by itself justify application of the non- mandatory exception relating to the confidentiality of the Commission's proceedings.

The Court observed that an institution cannot refuse, as a matter of principle, to grant access to documents pertaining to its deliberations simply because they contain information relating to positions taken by representatives of the Member States. The interests at stake must be balanced on a case by case basis with account being taken of the content of the document in question.

The Court held that the minutes relate to discussions which had been terminated by the time British American Tobacco International made its request. Disclosing the identities of the delegations referred to in the documents could no longer inhibit the Member States from effectively expressing their respective positions regarding the tax treatment of expanded tobacco.

The Court thus found that the Commission's reason for refusing access could not justify the conclusion that its interest in protecting the confidentiality of proceedings ought to prevail over the applicant's interest.

The Court therefore annulled the Commission's decision partially refusing access to certain minutes of the Committee on Excise Duties.

Note: An appeal against the judgment of the Court of First Instance, limited to points of law, may be brought before the Court of Justice within two months of the notification of the judgment.

Unofficial document for media use only; not binding on the Court of First Instance. Available in English and French. For the full text of the judgment, please consult our Internet page www.curia.eu.int  at approximately 3 pm today. For further information please contact Fionnuala Connolly: Tel: (00 352) 4303 3355; Fax: (00 352) 4303 2731

1 -     94/90/ECSC, EC, Euratom