Herbert Smith Freehills LLP v Commission (Access to documents - Withdrawal of certain exemptions for heated tobacco products - Judgment) [2024] EUECJ T-570/22 (25 September 2024)

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( Access to documents - 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 )

Herbert Smith Freehills LLP, established in Brussels (Belgium), represented by P. Wytinck, lawyer,

European Commission, represented by A. Spina, F. van Schaik and M. Burón Pérez, acting as Agents,

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

1 By its action pursuant to Article 263 TFEU, the applicant, Herbert Smith Freehills LLP, seeks the annulment of Commission Decision C(2022) 4816 final of 3 July 2022 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’).

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 provide 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 requests for access to documents bearing the references GESTDEM 2022/1436 and GESTDEM 2022/1437

9 On 11 March 2022, the applicant submitted two requests for access to documents under Regulation No 1049/2001 (together, ‘the requests’).

10 By the first request, the applicant requested access to ‘all documents (including relevant statistics and findings) in relation to the Commission’s conclusion (noted in the 2 December 2021 meeting summary minutes of the Expert Group on Tobacco Policy and in a presentation to the same group) that market developments concerning heated tobacco products constituted a substantial change of circumstances within the meaning of Article 2(28) of [Directive 2014/40]’. That request was registered under the reference GESTDEM 2022/1436.

11 By the second request, the applicant requested access to ‘all documents containing the [EU Common Entry Gate] data on the sales volumes of tobacco products per type, whether reported in sticks or kilograms, per Member State from 1 January 2015 to 31 December 2020, collected pursuant to Article 5(6) of [Directive 2014/40]’. That request was registered under the reference GESTDEM 2022/1437.

12 By email of 1 April 2022, the Commission requested that the deadline for ruling on the requests be extended pursuant to Article 7(3) of Regulation No 1049/2001.

13 By letter of 8 April 2022, the Commission partially refused the requests. The Commission identified three documents that fell within their scope: a presentation for the meeting of the Expert Group on Tobacco Policy on 2 December 2021 (Document ARES (2022) 2096522); a presentation for the meeting of the Expert Group on Tobacco Policy on 9 February 2002 (Document ARES (2022) 2096786); a draft report on the establishment of a substantial change of circumstances for heated tobacco products (Document ARES (2022) 1893644). The Commission disclosed the first document. As for the second document, it stated that it was already publicly available on the Commission’s website and provided a link giving access thereto. However, the Commission refused to grant access to the third document, invoking the exception under Article 4(3) of Regulation No 1049/2001 in relation to protection of the EU institutions’ decision-making process.

14 On 29 April 2022, the applicant submitted to the Commission a confirmatory application within the meaning of Article 7(2) of Regulation No 1049/2001. The applicant disputed the fact that only the three documents identified by the Commission fell within the scope of its requests, as well as the refusal to disclose the third document.

15 On 3 July 2022, the Commission adopted the contested decision. In the contested decision, the Commission considered that the third document could thereafter be disclosed. It stated, however, that it did not hold any additional documents falling within the scope of the requests. In particular, it stated that, while the three documents disclosed (‘the disclosed documents’) were based on information extracted from three different databases, namely Euromonitor, the EU Common Entry Gate (‘the EU-CEG’) and the EU tobacco traceability system (‘the traceability system’), none of the information registered in those databases could be considered documents in its possession within the meaning of Regulation No 1049/2001. The Commission also stated that it had searched for all documents falling within the scope of the requests and had not identified any documents other than the disclosed documents.

18 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

19 The first plea in law is divided into two parts. By the first part, the applicant challenges the Commission’s refusal to grant it access to the relevant information contained in the Euromonitor, the EU-CEG and the traceability system databases. By the second part, the applicant alleges that the Commission necessarily holds intermediate documents, created during the preparation of the disclosed documents, and considers that those documents should have been disclosed to it.

The first part of the first plea, concerning access to relevant information contained in the Euromonitor, the EU-CEG and the traceability system databases

20 The applicant disputes all of the assessments, contained in the contested decision, according to which the Commission considers that it could not disclose the Euromonitor, the EU-CEG and the traceability system data. In order to respond correctly to the requests, the Commission should have conducted searches for the relevant data in each of those databases or used the intermediate documents in which it collated the relevant information. At the very least, the Commission should have conferred with the applicant in order to facilitate identification of the required information. It is clear, in that regard, that they concerned notably information contained in those databases. That information should have been regarded as documents held by the Commission, within the meaning of Article 2(3) of Regulation No 1049/2001, that is to say, ‘in its possession’, within the meaning of the case-law resulting from the judgment of 11 January 2017, Typke v Commission (C-491/15 P, EU:C:2017:5).

21 As regards Euromonitor, the applicant disputes the plausibility of the claim that the Commission’s subscription expired. The Commission should provide evidence of the reliability of the data on which it relied in adopting Delegated Directive 2022/2100. The commercial restriction on the communication of data extracted from Euromonitor could at most justify an objection to their disclosure based on Article 4 of Regulation No 1049/2001, which the Commission did not raise in this case. In any event, that objection would have been unfounded, as the principle of transparency precludes the Commission from failing to disclose to the public the essential data justifying its analyses.

22 The Commission’s claim that it is restricted to managing the EU-CEG on behalf of Member States cannot mean that the data contained therein fall outside the scope of Regulation No 1049/2001. In the contested decision, the Commission acknowledges that it has free access to that database, which is sufficient for it to consider the data registered in that database as a document held by the Commission within the meaning of Article 2(3) of Regulation No 1049/2001. It cannot therefore rely on the argument that it could not disclose those data without infringing Article 5(7) of Directive 2014/40. The disclosure of data used by the Commission in relation to the exercise of its delegated powers constitutes a ‘use for the purposes of [Directive 2014/40]’ and the Commission has already disclosed some of them. The circumstances of the present case differ from the legal context of the case that gave rise to the judgment of 3 May 2018, Malta v Commission (T-653/16, EU:T:2018:241). The sole question that is the subject matter of the present dispute concerns the concept of a document held by an institution within the meaning of Article 2(3) of Regulation No 1049/2001, and not the possible exceptions that may justify a refusal to disclose such documents.

23 As regards data extracted from the traceability system, the applicant submits that the Commission should have disclosed the ‘raw’ data to which it referred in the contested decision. 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), since the Commission used those data to justify the adoption of Delegated Directive 2022/2100, must be considered together with the access to documents regime established by Regulation No 1049/2001, with the result that it cannot justify a general refusal of access to that database. Any sensitive commercial data could be anonymised.

24 As regards the three databases in question, the applicant submits that, contrary to what the Commission contends, extracting the relevant data does not require the creation of new documents involving a ‘substantial investment’, within the meaning of the case-law. The statement of the independent professor attached to the application, while showing that intermediate documents were necessarily created, cannot be interpreted as meaning that the databases could not be consulted using existing search tools. Moreover, according to the applicant, the Commission is not entitled to put forward such an argument with regard to the data extracted from Euromonitor and EU-CEG, since the contested decision refers to it only with regard to the traceability system.

25 Finally, 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.

26 The Commission contends that the applicant’s arguments rest on two incorrect premisses. According to the Commission, the requests for access submitted by the applicant do not cover information recorded in the three databases referred to in the contested decision, but only to any documents drafted on the basis of data extracted from those databases. The challenge to the grounds of the contested decision in the application rests on a first incorrect premiss, namely that the requests for access covered data recorded in the databases themselves. The second premiss, which is also incorrect, consists of regarding the three databases as being ‘in [the Commission’s] possession’ within the meaning of Article 2(3) of Regulation No 1049/2001.

27 The Euromonitor database is owned and operated by a third party. At the time of the adoption of the contested decision, the Commission contends that it no longer had a valid subscription to the database and that it cannot be required, pursuant to any principle or rule, to renew that subscription. The data that it extracted from Euromonitor are contained in the slides disclosed to the applicant (the first and second documents) and the applicant was informed that it could have access to that database through a commercial subscription.

28 The data recorded in the EU-CEG belong to each Member State to which the operators are required to submit data and those data are under the sole control of each Member State. The Commission merely provides technical capability and is not the recipient of the information recorded in the database. It cannot therefore be regarded as an owner of that database. The Commission has access to that information only for the purposes of applying Directive 2014/40. The extraction of EU-CEG data for public disclosure is ruled out by Article 5(7) of Directive 2014/40.

29 The data in the traceability system are stored in two repositories, both managed by independent third parties. As is apparent from the contested decision, the manufacturers and importers themselves have access to the data only with the authorisation of the Member States and the Commission, and in a manner which does not undermine the protection of commercially sensitive information. Granting direct public access to those data would render redundant the restrictive conditions on communication set out in Article 15(8) of Directive 2014/40, reproduced in Article 25(2) of Implementing Regulation 2018/574, which take precedence, as a lex specialis, over the general provisions of Regulation No 1049/2001.

30 The Commission argues that, even if it could be accepted that the requests for access concerned the databases themselves and that the databases must be regarded as being in its possession, which it disputes, it would then be required to prepare new documents in order to comply with those requests. However, according to settled case-law, the right of access to documents provided for by Regulation No 1049/2001 applies only to existing documents in the possession of the institution concerned. The applicant’s speculations about the existence of intermediate documents demonstrate that the applicant is aware that the extraction of data by the Commission requires a substantial investment on its part which it is not required to make again. Contrary to the applicant’s allegation, in the contested decision that argument has not been relied on only in relation to the traceability system.

31 Finally, the Commission maintains that in this instance it did not disregard its internal guidelines relating to access to documents.

32 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.

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

34 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.

35 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).

36 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.

37 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).

38 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).

39 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).

40 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.

41 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.

42 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.

43 In that regard, it is necessary to reject the Commission’s argument that the applicant did not request access to the databases and wrongfully extended the scope of the requests in the application. The requests, the wording of which is reproduced in paragraphs 10 and 11 above, cover ‘all documents’ relating to the finding of a substantial change in the market for heated tobacco products (the first request) and to data from the EU-CEG, including all sales of tobacco products of any category during the period from 1 January 2015 to 31 December 2020 (the second request). As is clear from the case-law recalled in paragraphs 38 and 39 above, the data recorded in the databases constitute documents within the meaning of Regulation No 1049/2001. It follows that the data recorded in the Euromonitor, the EU-CEG and the traceability system databases and relevant for assessing whether the circumstances of the market for heated tobacco products had been the subject of a substantial change fell within the scope of those requests.

44 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.

45 In that regard, first, as regards the Euromonitor database, the Commission indicated that, at the date of the contested decision, it no longer had a valid subscription to that database. However, the Commission cannot rely on the expiry of its commercial rights of access to a database to conclude that the information that it previously used in order to justify the adoption of a delegated act and which is the object of a request for access pursuant to Regulation No 1049/2001 is no longer accessible to it. Such an argument, if upheld, would make the availability of a document within the meaning of Regulation No 1049/2001 dependent upon the renewal by the institution concerned of a subscription to a database, which would be contrary to the objective of transparency pursued by that regulation. Therefore, by relying on the expiry of its subscription to the Euromonitor database to find that it did not hold, within the meaning of Article 2(3) of Regulation No 1049/2001, the data recorded in that database, and without prejudice to whether commercial restrictions on use of those data could, if appropriate, provide support for a refusal of disclosure under Article 4 of the regulation, the Commission made an error of law.

46 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.

47 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.

48 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 46 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.

49 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 erred in law.

50 Thirdly, the considerations set out in paragraphs 46 to 49 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.

51 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.

52 In the third place, however, it must be borne in mind that, as is apparent from paragraphs 36 to 40 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. As is apparent from paragraph 2 of the contested decision, the Commission relied on those case-law principles in respect of all the data which it extracted from the three databases, with the result that the applicant cannot successfully submit that the Commission, in its written pleadings before the Court, unlawfully extended their scope to the data recorded in the EU-CEG.

53 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 of 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.

54 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.

55 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 45 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.

56 That assessment, as has already been mentioned in paragraphs 34 and 45 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 55 above.

57 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 38 to 40 above, the applicant’s submission that the Commission failed to comply with its own internal guidelines on access to documents is unfounded.

58 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.

59 It follows that the first 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 second part of the first plea, alleging that the Commission did not disclose all the intermediate documents in its possession

60 The applicant criticises the Commission’s refusal to grant it access to certain intermediate documents which it considers necessarily exist. The applicant disputes that the only existing documents covered by the requests for access are the disclosed documents. In support of that argument, the applicant relies on a statement of a professor, an independent expert in statistical methods and regulatory analysis. According to that statement, the search of the databases would have involved the use of many ‘electronic inputs’ and the results obtained would have created many ‘electronic outputs’ that it would have been necessary to preserve to allow the results to be aggregated. The Commission would not have been able to delete those intermediate data without infringing the principle of sound administration. In any event, if those documents had been deleted, the Commission would be required to recreate them in order to comply with the requests. The applicant takes the view that it is not required to establish the existence of documents to which the Commission should have granted it access.

61 Furthermore, in the contested decision, the Commission itself acknowledges having had to take a number of non-current steps to access the traceability system. All of the search queries and their results therefore constitute documents within the meaning of Regulation No 1049/2001.

62 Moreover, the Commission should have made methodological choices to establish the substantial change of circumstances in the market for heated tobacco products that it observed in the disclosed documents. The documents determining those methodological choices should have been disclosed.

63 Finally, it follows from the fact that the disclosed documents refer to ARES that the Commission restricted its searches to documents recorded in the ARES registration system. The Commission cannot restrict its searches to documents satisfying its own registration criteria, as the European Ombudsman rightly found in its decision in Case 1316/2021/MIG.

64 The Commission contends that it cannot be required to disclose documents which do not exist and that a presumption of veracity attaches to any statement from the institutions relating to the non-possession of documents capable of being disclosed. The intermediate steps connected with the extraction of data did not necessarily produce documents. It is not required to register documents containing information which is short-lived and that do not involve action or follow-up (Commission Decision (EU) 2021/2121 of 6 July 2020 on records management and archives (OJ 2021 L 430, p. 30)).

65 The fact that the disclosed documents bear an ARES number does not mean that the search for the documents covered by the requests was limited to that register, since all the documents which are identified as falling within the scope of a request for access to documents are, in that case, registered there at the time of their identification.

66 Finally, the Commission denies having had to create documents setting out the methodological choices made in the preparation of the Report. Even if such documents existed, they would fall outside the scope of the requests.

67 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 disclosed documents.

68 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).

69 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).

70 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).

71 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).

72 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.

73 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.

74 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.

75 First, it is true that, at the hearing, the Commission acknowledged that the complex nature of the 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.

76 Admittedly, as is apparent from the case-law referred to in paragraph 71 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, the results of which were themselves reproduced in the Report and in Delegated Directive 2022/2100.

77 Secondly, as noted in paragraph 68 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).

78 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 register 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 registration system.

79 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. Therefore, the second part of the first plea in law must be rejected.

80 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 59 above, and rejected as to the remainder.

81 First, according to the applicant, the reasoning set out in the contested decision is contradictory. On the one hand, the Commission states that it does not hold any documents other than those which it has disclosed. On the other hand, on the contrary, the Commission states that it is necessary to create intermediate documents in order to use the data extracted from the traceability system.

82 Secondly, the contested decision does not take a position on the second request. Only the first request was dealt with by the Commission. In particular, the Commission failed to indicate in the contested decision whether the data expressed in mass units recorded in the EU-CEG were included in any other document held by the Commission. Is it therefore impossible to understand why the second request was rejected.

84 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).

85 In the contested decision, the Commission clearly indicated that it held no documents other than those which it disclosed. By contrast, that decision 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 separate documents. Contrary to the applicant’s submissions, there is therefore no contradiction in the grounds of the contested decision.

86 It is also clear from the contested decision that the reason for rejecting the second request is the absence of relevant documents. The contested decision expressly refers to the two requests when it states that, despite a careful search, no other documents corresponding to their subject matter were identified.

The requests for measures of organisation of procedure or for measures of inquiry

88 The applicant considers that, in view of the fact that they are not recorded in the ARES registration system, the intermediate documents that the Commission must have created and which it refuses to disclose to it are at risk of being deleted. To prevent that from happening, it requests the Court to adopt a measure of organisation of procedure or, in the event of refusal by the Commission, a measure of inquiry requiring that institution to search for all documents that may fall within the scope of the requests and to produce any such documents immediately. The applicant considers that the Commission’s search should focus primarily on physical and electronic documents held by the person in charge of coordinating work to assess changes in the market for heated tobacco products, and on the documents exchanged between staff in the relevant directorate-general.

90 It follows from the examination of the second part of the first plea that the applicant has not succeeded in rebutting the presumption of veracity attaching to the Commission’s statement that it was unable to identify documents falling within the scope of the requests. Therefore, there is no need to adopt the measure of organisation of procedure requested by the applicant, which would serve no purpose.

91 It follows from all of the foregoing that the contested decision must be annulled in so far as it refuses to disclose the data extracted from the Euromonitor database and that the action must be dismissed as to the remainder.

92 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.

1. Annuls Commission Decision C(2022) 4816 final of 3 July 2022 in so far as it refuses to disclose the data extracted from the Euromonitor database;

3. Orders the European Commission and Herbert Smith Freehills LLP to bear their own costs.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Herbert Smith Freehills LLP v Commission (Access to documents - Withdrawal of certain exemptions for heated tobacco products - Judgment) [2024] EUECJ T-570/22 (25 September 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T57022.html Cite as: EU:T:2024:644, ECLI:EU:T:2024:644, [2024] EUECJ T-570/22

Court of Justice of the European Communities (including Court of First Instance Decisions)