JUDGMENT OF THE COURT OF FIRST INSTANCE (Seventh Chamber)

18 December 2008 (*)

(Access to documents – Regulation (EC) No 1049/2001 – Documents relating to a meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee – Refusal of access – Exception relating to the protection of the decision-making process)

In Case T‑144/05,

Pablo Muñiz, residing in Brussels (Belgium), represented initially by B. Dehandschutter, and subsequently by L. Defalque, lawyers,

applicant,

v

Commission of the European Communities, represented by P. Costa de Oliveira and I. Chatzigiannis, acting as Agents,

defendant,

APPLICATION for annulment of the Commission’s decision of 3 February 2005 refusing to grant access to certain documents relating to the September 2004 meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Seventh Chamber),

composed of N.J. Forwood, President, D. Šváby (Rapporteur) and L. Truchot, Judges,

Registrar: C. Kristensen, Administrator,

having regard to the written procedure and further to the hearing on 13 February 2008,

gives the following

Judgment

 Legal context

1        Article 255 EC states:

‘1. Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, shall have a right of access to European Parliament, Council and Commission documents, subject to the principles and the conditions to be defined in accordance with paragraphs 2 and 3.

2. General principles and limits on grounds of public or private interest governing this right of access to documents shall be determined by the Council, acting in accordance with the procedure referred to in Article 251 within two years of the entry into force of the Treaty of Amsterdam.

…’

2        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) defines the principles and conditions of and limits on the right of access to the documents of those institutions provided for in Article 251 EC. That regulation has been applicable since 3 December 2001.

3        Article 2(1) and (3) of Regulation No 1049/2001 provide:

‘1. Any citizen of the 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 this Regulation.

3. This Regulation shall apply 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.’

4        Article 4 of Regulation No 1049/2001, relating to exceptions to the right of access, provides that:

‘…

3. Access to a document, drawn up by an institution for internal use or received by an institution, which relates to a matter where the decision has not been taken by the institution, shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

Access to a document containing opinions for internal use as part of deliberations and preliminary consultations within the institution concerned shall be refused even after the decision has been taken if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure.

5. A Member State may request the institution not to disclose a document originating from that Member State without its prior agreement.

6. If only parts of the requested document are covered by any of the exceptions, the remaining parts of the document shall be released.

7. The exceptions as laid down in paragraphs 1 to 3 shall only apply for the period during which protection is justified on the basis of the content of the document …’ 

5        Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) established, by its Article 247, a ‘Customs Code Committee … composed of representatives of the Member States with a representative of the Commission as chairman’.

6        Article 8 of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1) provides as follows:

‘The committee established under Article 247 of [Regulation No 2913/92] may examine any matter referred to it by its chairman, either on his own initiative or at the request of a representative of a Member State:

(a) concerning the combined nomenclature;

(b) concerning the Taric nomenclature and any other nomenclature which is wholly or partly based on the combined nomenclature or which adds any subdivisions to it, and which is established by specific Community provisions with a view to the application of tariff or other measures relating to trade in goods.’

7        Article 9 of Regulation No 2658/87 provides as follows:

‘1. Measures relating to the matters set out below shall be adopted in accordance with the procedure defined in Article 10:

(a) application of the combined nomenclature and the Taric concerning in particular:

– the classification of goods in the nomenclatures referred to in Article 8,

– explanatory notes …’.

8        The first subparagraph of Article 10(2) of Regulation No 2658/87 refers to Articles 4 and 7 of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23), which provide as follows:

‘Article 4

Management procedure

1. The Commission shall be assisted by a management committee composed of the representatives of the Member States and chaired by the representative of the Commission.

2. The representative of the Commission shall submit to the committee a draft of the measures to be taken. The committee shall deliver its opinion on the draft within a time-limit which the chairman may lay down according to the urgency of the matter. The opinion shall be delivered by the majority laid down in Article 205(2) of the Treaty, in the case of decisions which the Council is required to adopt on a proposal from the Commission. The votes of the representatives of the Member States within the committee shall be weighted in the manner set out in that Article. The chairman shall not vote.

3. The Commission shall, without prejudice to Article 8, adopt measures which shall apply immediately. However, if these measures are not in accordance with the opinion of the committee, they shall be communicated by the Commission to the Council forthwith. In that event, the Commission may defer application of the measures which it has decided on for a period to be laid down in each basic instrument but which shall in no case exceed three months from the date of such communication.

4. The Council, acting by qualified majority, may take a different decision within the period provided for by paragraph 3.

Article 7

1. Each committee shall adopt its own rules of procedure on the proposal of its chairman, on the basis of standard rules of procedure which shall be published in the Official Journal of the European Communities. Insofar as necessary existing committees shall adapt their rules of procedure to the standard rules of procedure.

2. The principles and conditions on public access to documents applicable to the Commission shall apply to the committees.’

9        The second subparagraph of Article 10(2) of Regulation No 2658/87 provides that ‘the period laid down in Article 4(3) of Decision 1999/468 … shall be set at three months’.

10      Article 8 of the rules of procedure of the Customs Code Committee, adopted by the ‘General Customs Rules’ Section of the Customs Code Committee on 5 December 2001 (document ‘TAXUD/741/2001 final’), states that ‘[t]he committee may create working groups … to examine particular issues’ and that ‘[t]he working groups [are] chaired by a representative of the Commission or of a Member State’.

 Background to the dispute

11      On 1 October 2004, the applicant, Mr Muñiz, a lawyer specialising in customs matters, requested access to the agenda of the September 2004 meeting of the Customs Code Committee, ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ (‘the Nomenclature Committee’). The Commission provided the applicant with a copy of the agenda in question on 12 October 2004. It contained a list of the items to be discussed by the Nomenclature Committee at its meeting of 20 September 2004, and a list of those items to be discussed by the Working Group of the Nomenclature Committee (‘the Working Group’) at its meeting of 21 to 23 September 2004.

12      By an e-mail of 13 October 2004 sent to Mrs C. at the Commission, the applicant requested access to the minutes of the Working Group’s September 2004 meeting (‘the Working Group’s minutes’), and to certain documents of the Taxation and Customs Union Directorate‑General (DG), discussed by the Working Group and listed below (those documents and the Working Group’s minutes are hereinafter referred to as ‘the requested documents’):

‘6.1. Vehicles for dual use (doc. TAXUD/860/2004, TAXUD/974/2004 and TAXUD/2438/2004); 6.3. Home cinema – Ampli/tuner (doc. TAXUD/1915/2002 (+Add), TAXUD/1369/2003 and TAXUD/1268/2003); 6.6. Microwave ovens (doc. TAXUD/2424/2004); 6.7. Power supply units (doc. TAXUD/1342/2003, TAXUD/2465/2004, and TAXUD/2495/2004); 6.8. USB keys (doc. TAXUD/2456/2004 and TAXUD/2456/2004 Annexes); 6.10. Surveillance systems (doc. TAXUD/2421/2004); 6.12. Incomplete ADP machines (doc. XXI/770/1998 and TAXUD/2432/2004).’

13      On 1 December 2004, Mr V., head of the Relations with the Institutions, Internal Coordination unit of Directorate A, General Affairs, of the Taxation and Customs Union DG, informed the applicant that access to the requested documents was refused to him on the basis of the second subparagraph of Article 4(3) of Regulation No 1049/2001.

14      On 15 December 2004, the applicant submitted a confirmatory application to the Commission requesting that it reconsider its position on access to the requested documents. That confirmatory application was registered on 16 December 2004.

15      By letter of 14 January 2005, the Commission extended the time-limit for replying to the confirmatory application by 15 working days, pursuant to Article 8(2) of Regulation No 1049/2001.

16      On 3 February 2005, the applicant received the Commission’s decision (‘the contested decision’) upholding the decision of the Taxation and Customs Union DG refusing his request for access to the requested documents. In the contested decision, the Commission stated, first, in essence, that the requirements of the first subparagraph of Article 4(3) of Regulation No 1049/2001 were satisfied, because the requested documents related to matters where a decision had not yet been taken by the Commission, and disclosure of the requested documents would seriously undermine the Commission’s decision-making process.

17      In that regard, the Commission pointed to the informal nature of the Working Group, and stated that, in the requested documents, the Working Group provided a preliminary analysis of technical matters for subsequent discussion in the meetings of the Nomenclature Committee. It said that, since the Nomenclature Committee had not completed examination of those matters at the time when the contested decision was drafted, and as no final decision had yet been taken, disclosure of the requested documents would expose the Committee to unnecessary and detrimental pressure, preventing it from holding frank discussions in a cooperative atmosphere. The Commission also explained that the deliberations of the Working Group reflected an exchange of internal views on an ongoing decision-making process. The capacity of the Commission staff and of experts participating in working meetings to express their views would be curtailed if, when drafting documents such as the requested documents, they had to take into account the possibility that their opinions and assessments could be disclosed to the public. The protection of that ‘space to think’ was fundamental in safeguarding the Commission’s decision-making process, which would be seriously undermined if that institution could no longer rely on full and frank advice from its services. The Commission then pointed out that it was not merely the decision-making process of the College of Commissioners which was protected by Article 4(3) of Regulation No 1049/2001, but also the decision-making process of the Nomenclature Committee, and in particular the process for arriving at a goods classification decision. The Commission did not infringe its obligations on openness by leading discussions within the Working Group, since the outcome of those discussions is reflected in the documents examined by the Nomenclature Committee or in its minutes. The applicant always had the widest measure of access to the minutes and the agenda of the Nomenclature Committee’s meetings. Secondly, the Commission pointed out that the requirements for partial access to documents under Article 4(6) of Regulation No 1049/2001 were not satisfied. It stated, first, that, at the time when the contested decision was adopted, all parts of the Working Group’s minutes were covered by those exceptions relied on and, second, even if some marginal parts of the other requested documents could have been disclosed, because they were not covered by those exceptions, it would have been possible only at the expense of a disproportionate administrative workload. Thirdly, the Commission asserted that there was no public interest overriding that of protecting the Commission’s decision-making process which could justify disclosure of the documents under Article 4(3) of Regulation No 1049/2001.

 Procedure and forms of order sought by the parties

18      By application lodged at the Registry of the Court of First Instance on 12 April 2005, the applicant brought this action. The applicant waived the right to lodge a reply; the Commission was informed of this on 29 July 2005.

19      By document lodged at the Registry on 8 July 2005, the Republic of Finland applied for leave to intervene in the present case in support of the form of order sought by the applicant. By order of 13 September 2005, the President of the Fifth Chamber granted leave to intervene. The Republic of Finland later withdrew its intervention.

20      As measures of organisation of procedure provided for in Article 64 of the Rules of Procedure, the Court put questions in writing to the Commission. The Commission replied to those questions within the prescribed time-limits and annexed certain requested documents to its reply. In that regard, it relied on the second subparagraph of Article 4(3) of Regulation No 1049/2001 as the basis for refusal of access to the Working Group’s minutes. The applicant, who was requested to submit his observations on that reply, pointed out that the reply amounted to a change in the legal basis of the refusal and concluded that the contested decision should also be annulled in so far as it refused access on that legal basis. At the hearing, he claimed, however, that the validity of the refusal of access to the Working Group’s minutes should be examined by the Court under the first subparagraph of Article 4(3) of Regulation No 1049/2001, even though the Commission maintained that the refusal was now based on the second subparagraph of Article 4(3) of that regulation. The Commission, nevertheless, stated at the hearing that it was defending the contested decision on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001.

21      On 23 May 2007, the applicant filed an application for measures of organisation of procedure under Article 64(3)(d) of the Rules of Procedure with regard to the minutes of the Working Group’s meeting of September 2004. On 15 June 2007, the Commission submitted its observations on the application for measures of organisation of procedure.

22      By letter of 1 February 2008, the Commission informed the Court that certain other requested documents had been sent to the applicant in the meantime.

23      Following a change in the composition of the Chambers of the Court of First Instance, the Judge-Rapporteur was attached to the Seventh Chamber, to which the present case was accordingly assigned.

24      The applicant claims that the Court should:

–        annul the contested decision in so far as it refuses him full access to the requested documents; or

–        annul the contested decision in so far as it refuses him partial access to the requested documents;

–        order the Commission to pay the costs.

25      The Commission contends that the Court should:

–        dismiss the action as unfounded;

–        order the applicant to pay the costs.

26      At the hearing the applicant requested leave to extend the subject-matter of the dispute, and to amend his heads of claim so as to include the Commission’s decision of 7 May 2007 by which it refused to send to him the document ‘TAXUD/974/2004’ originating from the Republic of Austria, on account of the fact that that Member State, after consultation, did not grant him access to it.

 Law

 Application for annulment of the Commission’s decision of 7 May 2007

27      The applicant’s request for leave to extend the subject-matter of the dispute, and to amend his heads of claim so as to include the Commission’s decision of 7 May 2007 was formulated for the first time orally at the hearing, without the applicant’s having forwarded that decision to the Court, and without his having established the legal and factual link which must exist between his request and the subject-matter of the dispute before the Court.

28      It follows that the applicant’s request for leave to extend the subject-matter of the dispute, and to amend his heads of claim, must be refused.

 The head of claim seeking to challenge the refusal of full access to the requested documents

29      The applicant submits two pleas in law against the contested decision. He claims, first, that that decision infringes the first subparagraph of Article 4(3) of Regulation No 1049/2001 by refusing full access to the requested documents and, second, that the contested decision infringes Article 2(1) of that regulation.

30      It is appropriate to examine together the pleas submitted by the applicant.

 Arguments of the parties

–       Infringement of Article 2(1) of Regulation No 1049/2001

31      The applicant claims, in essence, that the contested decision contravenes the Commission’s obligations on openness. It also jeopardises the already limited access to the minutes of the Nomenclature Committee.

32      According to the applicant, the Commission cannot justify the refusal of access to the Working Group’s minutes and documents either on the basis that the outcome of its work is reflected in the minutes of the Nomenclature Committee or in the documents examined by that committee, or on the basis that the file is still in discussion.

33      In that regard, first, the applicant submits that the minutes of the Nomenclature Committee do not reflect the work of the Working Group. The role of the Nomenclature Committee is limited, in some cases, to expressing its agreement or disagreement, without further explanation, with a draft measure prepared and discussed within the Working Group. By way of example, the applicant refers to the ‘microwave ovens’ item, which appears on the agenda of the Working Group at issue in the contested decision, but is not mentioned in the agenda for the Nomenclature Committee meeting. The discussions within the Working Group in relation to that item are not reflected in a meaningful manner in the minutes of the subsequent meetings of the Nomenclature Committee.

34      Second, the applicant claims that that would allow a systematic refusal to disclose internal documents, including all working group documents, on the sole ground that the file was not yet closed. That would be contrary to the first subparagraph of Article 4(3) of Regulation No 1049/2001.

35      The applicant seeks, therefore, the annulment of the contested decision in so far as it circumvents the Commission’s transparency obligations under Regulation No 1049/2001 and prevents the applicant from exercising his rights of access to documents under Article 2 of that regulation.

36      The Commission submits that the second plea raised by the applicant is unfounded and should be dismissed.

37      The Commission points out that Article 2(1) of Regulation No 1049/2001 provides for a right of access to documents of the institutions subject to the principles, conditions and limits defined by that regulation. It follows that, if an institution refuses access on the basis of the correct application of one or more of the exceptions under Article 4 of the regulation in question, Article 2(1) of that regulation cannot be infringed.

38      According to the Commission, the important issue in the present case is whether it refused the documents correctly on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001. In its view, the factual allegations made by the applicant are irrelevant to the subject‑matter of the present dispute.

39      As regards the applicant’s allegation that the reasoning set out in the contested decision would allow a systematic refusal to disclose internal documents on the sole ground that the file was still not closed, the Commission contends in response that Article 4(3) of Regulation No 1049/2001 provides for a number of conditions to be met in each specific case before access is refused. The question is not merely whether a document is an internal document relating to a decision not yet taken, but whether disclosure of that document would seriously undermine an institution’s decision-making process, something that the Commission has explained in this particular case.

40      The Commission submits, in support of its contention that the work of the Working Group is reflected in the documents examined by the Nomenclature Committee or in its minutes, that the persons who may participate in the work of the Working Group are the same as those who participate in the work of the Nomenclature Committee. As regards the Nomenclature Committee measures which appear in the minutes of the meeting of that committee, the Working Group may, according to the Commission, verify and/or clarify the facts set out in the text and refine the wording, without however altering the classification. In any event, the minutes of the Nomenclature Committee present the final version of the discussions and, therefore, can alone represent the actual position of the Nomenclature Committee on a given matter.

41      The Commission contends with regard to the example given by the applicant in relation to microwave ovens, an item on the agenda of the Working Group’s September meeting, that that item was considered in the course of a subsequent meeting of the Nomenclature Committee (November 2004), the agenda and minutes for which are available on the internet.

–       Infringement of the first subparagraph of Article 4(3) of Regulation No 1049/2001

42      The applicant claims, in the first place, that the reasons given in the contested decision are not valid grounds for refusing access to the requested documents under the first subparagraph of Article 4(3) of Regulation No 1049/2001.

43      In that regard, first, the applicant submits that the grounds relied upon by the Commission do not prove that there is a risk that the Commission’s decision-making process would be seriously undermined as required by that article. The applicant argues that the exception provided for in that article should be applied restrictively.

44      Second, the applicant points out that, as the Working Group and the Nomenclature Committee are both part of the Commission, it does not really matter which of them is the author of the requested documents, as only the content of those documents could prevent their disclosure.

45      Third, the applicant states that the Nomenclature Committee plays a fundamental role in the legislative process in matters relating to customs legislation, in particular tariff classification. The minutes and the agenda of the Nomenclature Committee have been published regularly on the Comitology registry website since the end of 2004. The Nomenclature Committee is assisted by the Working Group, which performs a function similar to its own. The applicant claims that it is essential for him, in order to advise clients on developments in customs matters, to monitor the activities of the Nomenclature Committee and of the Working Group regularly.

46      Fourth, the applicant claims that citing ‘the internal exchange of views’ and ‘the preliminary analysis of technical matters’ contained in the requested documents would prevent access to any internal documents concerned with any ongoing decision-making process. The first subparagraph of Article 4(3) of Regulation No 1049/2001 does not have such a broad scope. A refusal of access to documents must, according to the applicant, be based on other grounds.

47      Fifth, the risk that the Nomenclature Committee or the Working Group may not be able to hold their discussions in a frank and cooperative atmosphere does not show, in the applicant’s submission, that disclosure of the requested documents would seriously undermine the institution’s decision-making process. Such an argument is insufficient.

48      He points out that the Commission has disclosed minutes of the Working Group on other occasions, even when the file was not closed. Disclosure of the Working Group’s minutes does not therefore seriously undermine the Commission’s decision-making process, contrary to the Commission’s claims.

49      The applicant submits, in the second place, that the contested decision was wrong automatically to rule out access to the entire category of documents drawn up for internal use, in particular by the Working Group. That runs counter to the obligation to state reasons by reference to the specific content of the requested documents. The applicant claims that the contested decision contains no evidence that the content of the requested documents was examined.

50      The contested decision is consequently contrary to the first subparagraph of Article 4(3) of Regulation No 1049/2001 and should therefore be annulled.

51      According to the Commission, the first plea raised by the applicant is unfounded and should be dismissed. It submits that it applied the appropriate legal provisions correctly in the present case, applying every exception on which it relied restrictively and explaining the reasons for its decision clearly to the applicant.

52      The Commission contends, with reference to recital 11 in the preamble to Regulation No 1049/2001, that certain public and private interests should be protected by way of exceptions. It submits that the first subparagraph of Article 4(3) provides for a ‘mandatory’ exception which should be applied by an institution where that institution has not yet taken a decision and disclosure of the requested documents would seriously undermine that institution’s decision-making process.

53      The Commission points out that, in the contested decision, the Secretary-General of the Commission mentioned all but one of the requested documents and informed the applicant that, after having carefully considered his request and all the documents concerned under Regulation No 1049/2001, he had come to the conclusion that no documents could be disclosed. The Commission submits that the refusal to release the requested documents was based on the first subparagraph of Article 4(3) of Regulation No 1049/2001. Their disclosure, at the time when the contested decision was being drafted, would have seriously undermined the Commission’s decision-making process.

54      The Commission points out that its Secretary-General examined all the requested documents individually, including document ‘TAXUD/2424/2004’, which is not referred to specifically in the contested decision. It is clear from the text of that decision that it applies to all the requested documents.

55      As regards the requested documents, the Commission maintains that, at the time of the request for access, the decisions to which they related had not been taken, either by the Nomenclature Committee or by the Commission. The Commission took the view that disclosure of those documents before the Nomenclature Committee had had the opportunity to examine them and deliver its opinion would have seriously undermined its decision-making process, for the purposes of which the opinion of the Nomenclature Committee is a formal requirement.

56      First, the Commission contends in that regard that, since all the requested documents related to the classification of goods in the nomenclature, and as that particular issue affected important commercial interests, it considered it imperative to protect the Nomenclature Committee’s decision-making process from all external pressure and influence.

57      Second, it contends that the capacity of Commission officials and experts participating in the work of working groups to express their views would be curtailed if, when drafting documents, they had to take into account the possibility that their opinions and assessments might be disclosed to the public. That would be particularly true if disclosure were to take place not only before the relevant Commission decision was taken, but even before the competent committee had delivered its opinion.

58      Third, according to the Commission, disclosure of the views expressed within the Working Group would be premature, since it is possible that some of those views would not be followed when considered in the context of the Nomenclature Committee. The Working Group, which was created to support the work of the Nomenclature Committee, carries out a preliminary analysis of technical matters for subsequent discussion in the meetings of that Committee. It also refines Commission proposals. It is the Nomenclature Committee, according to the Commission, that delivers opinions on the measures to be adopted by the Commission.

59      Disclosure of the minutes of the Working Group meeting, at the time of the request, presented, in the Commission’s view, the risk that initial internal points of view would be misinterpreted by the public as the Commission’s final position on a particular subject. According to the Commission, it was the content of the requested documents which required the application of an exception and not the authorship of those documents.

60      Fourth, the Commission points to the informal nature of the Working Group. There is no legal basis, no mandate and no formal decision creating it. It cannot give official opinions to the Commission regarding the adoption of draft implementing measures. It is composed of the same delegates as sit in the Nomenclature Committee. However, those delegates participate in the work of the Working Group as experts and not in their capacity as Member State representatives.

61      According to the Commission, the only minutes of the Working Group which have ever been drafted are those of September 2004, requested by the applicant. They were drafted only because the purpose of the working group in question was to prepare for the November 2004 meeting of the Nomenclature Committee taking place two months later.

62      The Commission states that the Working Group’s assessments may be confirmed, changed or completely disregarded during the subsequent deliberations of the Nomenclature Committee, which has the final say on the matters considered. The Nomenclature Committee’s assessments of the work carried out by the Working Group are documented in the Committee’s minutes. These, as well as certain other types of documents produced by the Nomenclature Committee, are generally available on the Commission’s website.

63      Fifth, the Commission contends that it did not, in this case, conduct an assessment by reference to a category of documents, but merely stated the reasons for its decision by reference to a category of documents. It is clear from the contested decision that all of the documents requested were subject to a genuine and individual examination. The Commission submits that the Court of First Instance has recognised in its case-law the possibility for the institutions to present the reasons for their decisions not to disclose documents by reference to categories of documents.

64      The explanation provided by the Commission in the contested decision to the effect that the first subparagraph of Article 4(3) of Regulation No 1049/2001 applies to all the requested documents reflects the fact that those documents were of a similar nature and that the article in question therefore applied to all the documents in exactly the same way.

65      Sixth, the Commission submits that it has demonstrated its willingness to make available to the applicant any document requested as soon as an exception provided for in Regulation No 1049/2001 ceases to apply in accordance with Article 4(7) of that regulation. It refers in particular to the positive responses to 44 of the 47 requests for access made to the Taxation and Customs DG by the applicant, either alone or with Mr D. B., since 2002. The only case in which the Commission has refused to disclose the documents requested is that which forms the subject-matter of these proceedings. The other requests concerned documents which did not exist or were fully acceded to at the time of the administrative appeal, after the relevant decision-making process was concluded.

66      Seventh, in the course of the written stage of the present proceedings, the Commission released to the applicant some of the requested documents, in their entirety, maintaining that the exception in question had ceased to apply to them. The following documents were released: ‘TAXUD/2424/2004’ relating to microwave ovens; ‘TAXUD/1915/2002’, ‘TAXUD/1915/2002 (add.)’ and ‘TAXUD/1268/2003’ relating to home cinema; ‘TAXUD/2421/2004’ relating to surveillance systems; ‘TAXUD/2456/2004’ and ‘TAXUD/2456/2004 Annexes’ relating to USB keys; ‘TAXUD/860/2004’ and ‘TAXUD/2438/2004’ relating to vehicles for dual use; ‘TAXUD/2432/2004’ relating to incomplete ADP machines; ‘TAXUD/1369/2003’ relating to home cinema (with the exception of the name of a Finnish company which appears in it).

67      Eighth, the Commission confirmed that, in the contested decision, it refused to disclose the requested documents exclusively on the basis of the first subparagraph of Article 4(3) of Regulation No 1049/2001. According to the Commission, at the time when it was preparing the contested decision, it was clear that all the requested documents related to matters where no decision had yet been taken. The contested decision, according to the Commission, amended and replaced the reply to the applicant’s initial request.

 Findings of the Court

68      It should be pointed out, first of all, that the legality of the contested decision must be assessed on the basis of the facts and the law as they stood at the time when the decision was adopted (Joined Cases T‑391/03 and T‑70/04 Franchet and Byk v Commission [2006] ECR II‑2023, paragraph 114).

69      It must then be noted that, at the time when the contested decision was adopted, the refusal to disclose all the requested documents fell within the scope of the exception to the right of access provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001.

70      In that regard, the Commission asserted, in essence, in the contested decision, that the conditions laid down in that article were satisfied, as the requested documents related to matters where the Commission had not yet taken a decision, and that the disclosure of those documents would seriously undermine the Commission’s decision-making process. To justify that refusal, the Commission relied, in the contested decision, on a number of grounds which can be split into two groups.

71      As regards the first group of grounds put forward by the Commission, concerning the characteristics of the procedure in question, first it should be noted that the Commission relied on the preliminary nature of the analysis of technical matters contained in the requested documents, on the informal nature of the Working Group, and on the fundamental nature of that ‘space to think’ in its decision-making process. Second, it relied on the fact that the outcome of the Working Group’s meetings were reflected in the documents examined by the Nomenclature Committee, or in its minutes, and that the applicant has had access to those minutes and to the agendas of the Nomenclature Committee’s meetings.

72      In the second group of grounds put forward by the Commission, concerning the consequences of possible access to the requested documents, the Commission relied on the fact that disclosure of the requested documents at the time when the contested decision was adopted would have exposed the Nomenclature Committee to unnecessary and detrimental pressure and would have prevented it from holding frank discussions in a cooperative atmosphere, and also on the fact that the capacity of Commission staff and experts participating in working meetings to express their views would be curtailed if, when drafting documents such as those requested, they had to take into account the possibility that their opinions might be disclosed to the public. Lastly, the Commission stressed that the decision-making process would be seriously undermined if it could no longer rely on full and frank advice from its services.

73      As regards the justification for the exception at issue, the Court must examine, first, whether those reasons relied upon by the Commission in refusing access to the requested documents demonstrate that such access would have seriously undermined that institution’s decision-making process and then, if necessary, whether there is an overriding public interest in disclosure of the requested documents.

74      In that regard, it is appropriate to bear in mind settled case-law, according to which it must be shown that the access in question was likely specifically and actually to undermine the interest protected by the exception, and that the risk of that interest being undermined was reasonably foreseeable and not purely hypothetical (see Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69, and the case-law cited).

75      In addition, in order to be covered by the exception in the first subparagraph of Article 4(3) of Regulation No 1049/2001, the decision-making process would have to be ‘seriously’ undermined. That is the case, in particular, where the disclosure of the documents in question has a substantial impact on the decision-making process. The assessment of that serious nature depends on all of the circumstances of the case including, inter alia, the negative effects on the decision-making process relied on by the institution as regards disclosure of the documents in question.

76      In the present case, the decision-making process at issue relates to measures on the classification of goods adopted by the Commission, following an opinion of the Nomenclature Committee, where the classification in the Combined Nomenclature of the Common Customs Tariff of particular goods is likely to give rise to difficulty or be controversial, and is governed by Regulation No 2658/87. The outcome of that decision-making process has a definite impact, in particular on operators’ imports, since a new classification generally leads to a change in the customs duty applied to imports.

77      That decision-making process, which is of a legislative nature, consists, in essence, of the representative of the Commission submitting to the committee of which he is the chairman, and which comprises Member State representatives, a draft of the measures to be adopted, so that the committee can deliver its opinion by the majority required under Article 205(2) EC within a time-limit which the chairman may lay down according to the urgency of the matter. If those proposed measures are not in accordance with the opinion of the committee, the Commission must communicate, to the Council, a proposal relating to the measures to be taken. In the absence of a different decision adopted by the Council by qualified majority within three months from the date on which the proposal was communicated to it, the Commission adopts the proposed measures (Article 10 of Regulation No 2658/87).

78      As regards the first group of grounds put forward by the Commission, it is important to note that the requested documents all emanate from the Working Group which was created pursuant to Article 8 of the rules of procedure of the Customs Code Committee to support the work of the Nomenclature Committee. More specifically, the Working Group, which met from 21 to 23 September 2004, was given the task of preparing the Nomenclature Committee meeting of November 2004. It is common ground that the files involving the requested documents had not yet been examined in the Nomenclature Committee, on the date of the first request on 13 October 2004 (see paragraphs 11 and 12 above). In that context, the Commission pointed to the informal nature of the working group and the preliminary nature of its analysis of technical matters contained in those documents. Such arguments are, however, irrelevant.

79      While it is true that the requested documents were involved at an early stage of the decision-making process, it is nevertheless the case that they were drawn up or received by the Commission and were in its possession within the meaning of Article 2(3) of Regulation No 1049/2001, which provides that its provisions apply ‘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’. Therefore, that article must be regarded as applying to all the requested documents and, indeed, the Commission has not disputed that.

80      Moreover, the exception with which Article 4(3) of Regulation No 1049/2001 is concerned covers access to documents for internal use which relate to a matter where the institution has not yet taken a decision. However, neither by its wording nor by reason of the interest that it protects does that exception preclude the possibility of requesting access to documents for internal use containing a preliminary analysis.

81      As regards, in particular, the informal nature of the Working Group, at the hearing the Commission pointed to the fact that, on the one hand, the composition of the group varied, in that it depended on the actual presence of the Member States invited to participate in it and, on the other, that the Working Group did not have a formal role in the decision-making process, as the Nomenclature Committee’s adoption of a position constituted the important formal step. Furthermore, the Commission added that what was discussed within the Working Group was raised again in the Nomenclature Committee, which has the authority to give the required opinion.

82      It is clear that those explanations as to the informal nature of the Working Group do not alter in the slightest the fact that documents emanating from the Working Group ‘can be disclosed’, in the sense indicated in paragraphs 79 and 80 of the present judgment, that is to say, can be disclosed subject to the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001. It should be added that, although the Nomenclature Committee is not bound by the Working Group’s proposal, it is nevertheless the case that documents drawn up or received by the Working Group are of interest to that committee for the purpose of delivering its opinion. That is particularly so when the Nomenclature Committee, basing itself on the technical expertise of the Working Group, confines itself to referring, in its minutes, to documents submitted by the latter.

83      That is also the position in the present case. It is clear from the minutes of the Nomenclature Committee’s meetings of 20 September 2004 and 11 and 12 November 2004, annexed to the application, that that committee made reference to the Working Group’s documents, namely, inter alia, the files on the classification of goods and the minutes of the discussions within the Working Group. However, the Nomenclature Committee’s reference was made without recording, in the minutes, the essential content of those documents or at the very least the main points of the assessments of that committee concerning the work of the Working Group.

84      Therefore, the Commission’s argument that the outcome of the work of the Working Group is reflected in the documents examined by the Nomenclature Committee, or in its minutes, and that the applicant has had access to those documents must be rejected. Such access cannot be regarded as satisfying the requirements of the public’s right to the widest measure of access to documents and of openness which inter alia 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, as is clear from recitals 2 and 4 in the preamble to, and Article 1(a) of, Regulation No 1049/2001.

85      It follows that, in the present case, contrary to the Commission’s contentions, neither the preliminary nature of the analysis contained in the requested documents, nor the informal nature of the Working Group with which they are associated, nor the fact that the outcome of the work of the Working Group was reflected in the documents examined, is such as to justify special treatment under Regulation No 1049/2001 in regard to the application of the exception in question to the right of access to those documents.

86      As regards the second group of grounds put forward by the Commission, it should be pointed out, first, that the protection of the decision-making process from targeted external pressure may constitute a legitimate ground for restricting access to documents relating to the decision-making process. Nevertheless, the reality of such external pressure must be established with certainty, and evidence must be adduced to show that there was a reasonably foreseeable risk that the classification decision to be taken would be substantially affected owing to that external pressure. That is not, however, the situation in this case.

87      In that regard, it must be pointed out, at the outset, that the risk of external pressure is referred to in a vague and general way in the contested decision. In addition, the Commission’s submissions in that context are not sufficiently concrete and substantiated to constitute evidence to show that there would have been a genuine risk of external pressure if the requested documents had been disclosed before the Nomenclature Committee’s opinion had been delivered.

88      In fact, the Commission limited itself to asserting that there was a possibility of such external pressure on account of the significant commercial interests in matters of customs tariff classification. However, that mere possibility cannot per se constitute a legitimate ground for restricting access to documents since, in accordance with the first subparagraph of Article 4(3) of Regulation No 1049/2001, the exception provided for therein must be interpreted and applied strictly (see, to that effect, Case C-266/05 P Sison v Council [2007] ECR I‑1233, paragraph 63, and Franchet and Byk v Commission, cited in paragraph 68 above, paragraph 84).

89      The Commission did express some concerns, namely, that the capacity of its staff and the experts participating in the working meetings to express their opinions would be curtailed if, during the drafting of documents such as the requested documents, they had to take into account the possibility that their opinions would be disclosed to the public. At the hearing, the Commission specified, in that regard, that if the members of the Working Group knew that their opinions might be made public, they would no longer be able to express themselves freely.

90      For the purpose of deciding whether there is a legitimate reason for fearing that the disclosure of documents might undermine the decision-making process, the institution’s perspective, set out in the preceding paragraph, must indeed be taken into account. However, that factor does not play a decisive role, as the determinant issue is whether the concerns of the relevant institution are objectively justified.

91      That is not the case here. Since the Commission’s contentions are not corroborated by other evidence, they do not establish that its concerns are objectively justified.

92      Furthermore, the fact that the institution in question promised to respect the confidentiality of discussions between its staff and experts participating in the working meetings, supposing that such a promise was made, cannot justify protection of the opinions expressed to an extent which goes beyond that laid down in Article 4(3) of Regulation No 1049/2001.

93      In any event, it must be observed that there is no objective reason to differentiate, on that point, between the Working Group and the Nomenclature Committee, whose minutes and other documents are disclosed on request without that compromising the ability of its members to express themselves freely. In addition, it should be pointed out that it is the Working Group itself which decides what will be included in its minutes.

94      Having regard to the foregoing, the pleas in law must be accepted and it must be held that the reasons put forward by the Commission in the contested decision are not sufficient to establish that there was a risk that the decision-making process would be seriously undermined if the requested documents had been disclosed. The Commission was therefore not entitled to rely on the exception provided for in the first subparagraph of Article 4(3) of Regulation No 1049/2001 to refuse access to the requested documents. Consequently, it infringed that article and Article 2(1) of that regulation in relation to its obligations on openness.

95      As regards the applicant’s head of claim challenging the contested decision inasmuch as it refused him full access to the requested documents, it must be borne in mind that, in the contested decision, the Commission refused the applicant access to all the requested documents, and it was only in the course of the present proceedings that it disclosed some of those documents in their entirety.

96      The documents which have not yet been disclosed, or which have been only partially disclosed, are as follows:

–        ‘TAXUD/1369/2003’ relating to home cinema;

–        ‘TAXUD/974/2004’ relating to vehicles for dual use;

–        ‘TAXUD/1342/2003’, ‘TAXUD/2465/2004’ and ‘TAXUD/2495/2004’ relating to power supply units;

–        ‘XXI/770/1998’ relating to incomplete ADP machines;

–        the Working Group’s minutes (‘TAXUD/3010/2004 – Annex V’).

97      It must therefore be held that there is no longer any need to adjudicate on the applicant’s first head of claim inasmuch as it relates to requested documents that have already been disclosed to the applicant in their entirety.

98      Consequently, in the light of all of the foregoing considerations, the contested decision must be annulled as regards the first head of claim, in so far as it relates to documents referred to in paragraph 96 above. Thus there is no need to adjudicate on the second head of claim.

 Costs

99      Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Article 87(6) of those rules provides that where a case does not proceed to judgment, the costs are to be in the discretion of the Court. As the Commission was unsuccessful, it must be ordered to pay the costs incurred by the applicant, in accordance with those provisions.

On those grounds,

THE COURT OF FIRST INSTANCE (Seventh Chamber)

hereby:

1.      Annuls the Commission’s decision of 3 February 2005 inasmuch as it refused access to documents, ‘TAXUD/1369/2003’ relating to home cinema, ‘TAXUD/974/2004’ relating to vehicles for dual use, ‘TAXUD/1342/2003’, ’TAXUD/2465/2004’ and ‘TAXUD/2495/2004’ relating to power supply units, ‘XXI/770/1998’ relating to incomplete ADP machines, and to the minutes of the September 2004 meeting of the Working Group of the ‘Tariff and Statistical Nomenclature Section (Mechanical/Miscellaneous)’ of the Customs Code Committee (document ‘TAXUD/3010/2004 – Annex V’);

2.      Declares that there is no need to adjudicate on the remainder of the action;

3.      Orders the Commission to pay the costs incurred by Mr Pablo Muñiz.

Forwood

Truchot

Šváby

Delivered in open court in Luxembourg on 18 December 2008.

[Signatures]


* Language of the case: English.