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

JUDGMENT OF THE GENERAL COURT (Eighth Chamber)

15 September 2016 (*)

(Access to documents — Regulation (EC) No 1049/2001 — Documents drawn up in the context of the preparatory works leading to the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of legal advice — Exception relating to the protection of the decision-making process — Rights of the defence — Overriding public interest)

In Case T‑800/14,

Philip Morris Ltd, established in Richmond (United Kingdom), represented by K. Nordlander and M. Abenhaïm, lawyers,

applicant,

v

European Commission, represented by J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents,

defendant,

APPLICATION based on Article 263 TFEU and seeking annulment of Commission Decision Ares(2014) 3388066 of 29 September 2014, in so far as it refuses to grant the applicant full access to the requested documents, with the exception of the redacted personal data contained therein,

THE GENERAL COURT (Eighth Chamber),

composed of D. Gratsias, President, M. Kancheva and C. Wetter (Rapporteur), Judges,

Registrar: L. Grzegorczyk, Administrator,

having regard to the written procedure and further to the hearing on 21 January 2016,

gives the following

Judgment

 Background to the dispute

1        By email of 22 January 2014, the applicant, Philip Morris Ltd, submitted 27 initial applications for access to a number of documents to the Secretariat-General of the European Commission pursuant 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).

2        Those applications all concerned the legislative procedure that had led to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1) (‘the TPD’).

3        The Commission’s Legal Service was entrusted with one of those applications, registered under the reference GestDem 2014/520.

4        By email of 21 February 2014, the Commission’s Legal Service informed the applicant that its application was being processed but that, on account of the number of applications for access that the Legal Service was processing at that time and the nature of those applications, it was not in a position to answer the applicant within the time limit laid down in Article 7(1) of Regulation No 1049/2001.

5        By email of 14 March 2014, the Legal Service sent a second holding reply to the applicant, to which the latter replied by emails of 22 April and 21 May 2014, stating that it reserved the right to initiate the appropriate legal proceedings if it did not receive a reply within the next few days.

6        On 23 May 2014, a third holding reply was sent to the applicant, explaining that the Legal Service was still unable to complete the processing of the application on account of the number of documents identified as requiring concrete assessment and of the length of those documents.

7        On 3 June 2014, the applicant submitted a confirmatory application for access to the documents concerned, requesting that the Secretariat-General order the Legal Service to provide immediate access to the full version of the required documents.

8        By its initial reply of 20 June 2014, the Legal Service identified 30 documents covered by the applicant’s request and granted full access to eight of them and partial access to 19 others. It refused access to three documents in their entirety.

9        The refusal to grant access to those three documents or to the redacted parts of the 19 documents in respect of which partial access had been granted was based on the exceptions laid down in the second indent of Article 4(2) (protection of legal advice) and the second subparagraph of Article 4(3) (protection of the decision-making process) of Regulation No 1049/2001, and on the exception laid down in Article 4(1)(b) (protection of privacy and the integrity of the individual) of that regulation.

10      By letter of 24 June 2014, the Head of Unit SG B4 ‘Transparency’ of the Secretariat-General of the Commission explained to the applicant that, given that the reason for its confirmatory application was the failure by the Commission’s Legal Service to provide an initial reply and, in the meantime, the Legal Service had sent an initial reply, he considered that the confirmatory application was redundant.

11      On 9 July 2014, the applicant sent a further confirmatory application seeking a review of the Legal Service’s position regarding nine of the documents referred to in paragraph 9 above; access had been refused entirely in respect of three of those documents (Documents Nos 9, 12 and 14) and partial access had been granted in respect of 6 of them (Documents Nos 10, 11, 15, 16, 18 and 20).

12      On 4 August 2014, the Secretariat-General of the Commission extended the time limit for a reply by 15 working days in accordance with Article 8(2) of Regulation No 1049/2001.

13      On 25 August 2014, a second holding reply was sent to the applicant.

14      On 29 September 2014, the Commission adopted Decision Ares(2014) 3388066 in response to the confirmatory application (‘the contested decision’), which confirmed the Legal Service’s initial decision to withhold Documents Nos 9, 12 and 14 in their entirety and to grant partial access to Documents Nos 10, 11, 15, 16, 18 and 20. The reason for that refusal was the fact that granting wider access would undermine the protection of court proceedings and of legal advice provided for in the second indent of Article 4(2) of Regulation No 1049/2001 with regard to all the requested documents, the protection of the decision-making process provided for in the second subparagraph of Article 4(3) of that regulation with regard to Documents Nos 9, 10, 12, 14 and 15, and the protection of privacy and the integrity of the individual provided for in Article 4(1)(b) of that regulation with regard to Documents Nos 10, 11, 15, 16, 18 and 20.

 Procedure and forms of order sought

15      By application lodged at the Registry of the General Court on 9 December 2014, the applicant brought the present action.

16      On 18 March 2015, the Commission submitted its defence.

17      In accordance with Article 47(1) of the Rules of Procedure of the General Court of 2 May 1991, the General Court (Eighth Chamber) decided that a second exchange of pleadings was unnecessary.

18      Acting upon a proposal of the Judge-Rapporteur, the General Court (Eighth Chamber) decided to open the oral part of the procedure.

19      By order of 11 November 2015, the Court ordered the Commission to produce copies of the requested documents, pursuant to Article 91(c) of the Rules of Procedure of the General Court, and stated that, pursuant to Article 104 of those Rules, those documents were not to be communicated to the applicant. The Commission complied with that order within the prescribed period.

20      By decision of the President of the Eighth Chamber of the General Court of 16 December 2015, Cases T‑796/14, T‑800/14 and T‑18/15 were joined for the purposes of the oral procedure in accordance with Article 68(1) of the Rules of Procedure.

21      The parties presented oral argument and replied to the questions put to them by the Court at the hearing on 21 January 2016.

22      The applicant claims that the Court should:

–        declare the action admissible;

–        annul the contested decision in so far as it refuses full access to Documents Nos 9 to 12, 14 to 16, 18 and 20 as listed in the application, with the exception of the data relating to the protection of privacy and the integrity of the individual;

–        order the Commission to pay the costs.

23      The Commission contends that the Court should:

–        dismiss the action;

–        order the applicant to pay the costs.

 Law

24      In support of the action, the applicant raises three pleas in law, the first alleging a failure to state reasons, the second alleging infringement of the second indent of Article 4(2) of Regulation No 1049/2001 and the third alleging infringement of Article 4(3) of that regulation.

 First plea in law: failure to state reasons for the contested decision

25      The applicant alleges that the Commission attempted to justify its refusal to disclose the requested documents and redactions on the basis of abstract concerns which it raised generically with regard to all the relevant documents. Accordingly, by failing to explain why disclosure of the redacted information in each case would specifically and actually compromise the interests referred to in the contested decision, the Commission failed to fulfil its obligation to state reasons. Likewise, when examining the question whether there was an overriding public interest, instead of weighing up the requirements ground by ground, the Commission carried out the same assessment for all the different grounds and documents. Regarding, more specifically, the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the Commission did not explain whether the justification relied on in respect of each redaction was ‘legal advice’ or ‘court proceedings’. Moreover, the principle of ‘equality of arms’ cannot be relevant in the present case and cannot justify neglecting the necessity of conducting a proper analysis in connection with the grounds intended to protect ‘legal advice’ and ‘court proceedings’. Those two separate grounds recognised by Regulation No 1049/2001 cannot be combined, but require separate reasoning and justification.

26      The Commission disputes those assertions. It considers that the contested decision provides sufficient reasons to justify the partial refusal to grant access and to enable the applicant to understand why full access to the documents has not been granted.

27      It should be observed at the outset that, according to settled case-law, the obligation to state reasons is an essential procedural requirement, as distinct from the question whether the reasons given are correct, which goes to the substantive legality of the contested measure (judgments of 22 March 2001, France v Commission, C‑17/99, EU:C:2001:178, paragraph 35, and 26 October 2011, Dufour v ECB, T‑436/09, EU:T:2011:634, paragraph 52).

28      It is settled case-law that the statement of reasons required by Article 296 TFEU must be appropriate to the measure in question and must disclose clearly and unequivocally the reasoning followed by the institution that adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent EU Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, inasmuch as the question whether the statement of reasons for a measure meets the requirements of that article must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; 6 March 2003, Interporc v Commission, C‑41/00 P, EU:C:2003:125, paragraph 55; 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 80; and 19 November 2014, Ntouvas v ECDC, T‑223/12, not published, EU:T:2014:975, paragraph 20).

29      Regarding a request for access to documents, the reasons must be stated for any decision of an institution in respect of the exceptions set out in Article 4 of Regulation No 1049/2001. If an institution decides to refuse access to a document it has been asked to disclose, it must explain, first, how access to that document could specifically and actually compromise the interest protected by an exception laid down in Article 4 of Regulation No 1049/2001 upon which it is relying and, secondly, in the situations referred to in Article 4(2) and (3) of that regulation, whether or not there is an overriding public interest that might nevertheless justify disclosure of the document concerned (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 48 and 49; 11 March 2009, Borax Europe v Commission, T‑121/05, not published, EU:T:2009:64, paragraph 37; and 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 96).

30      It is therefore for the institution which has refused access to a document to provide a statement of reasons from which it is possible to understand and ascertain, first, whether the requested document does in fact fall within the sphere covered by the exception relied upon and, second, whether the need for protection relating to that exception is genuine (judgments of 26 April 2005, Sison v Council, T‑110/03, T‑150/03 and T‑405/03, EU:T:2005:143, paragraph 61, and 12 September 2013, Besselink v Council, T‑331/11, not published, EU:T:2013:419, paragraph 99).

31      In the present case, it is apparent from the grounds of the contested decision that the Commission based the refusal to grant access to Documents Nos 9, 12 and 14 in their entirety and the refusal to grant wider partial access in respect of Documents Nos 10, 11, 15, 16, 18 and 20 on the exception relating to the protection of legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001 as regards all the requested documents and on the exception relating to the protection of the decision-making process laid down in the second subparagraph of Article 4(3) of that regulation as regards Documents Nos 9, 10, 12, 14 and 15.

32      Documents Nos 9, 10, 12, 14 and 15 are documents containing legal opinions of the Commission’s Legal Service sent to its Directorate-General (DG) for ‘Health and Consumers’. They concern the interpretation of Article 114 TFEU and its conditions of application.

33      Document No 11 is a legal opinion sent by the Commission’s Legal Service to the DG for ‘Health and Consumers’ on 2 July 2012 containing an analysis of the legal issues raised by the draft Impact Assessment, including issues regarding the legal basis of the TPD, its proportionality and the possibility for the Member States of adopting and maintaining in force more stringent measures.

34      Document No 16 is an email sent by the Commission’s Legal Service to the DG for ‘Health and Consumers’ on 20 September 2012 setting out that service’s observations regarding the minutes of a meeting held on 19 September 2012. Similarly, Document No 18 is an email sent on 2 October 2012 setting out the Legal Service’s observations concerning a meeting held on 28 September 2012.

35      Lastly, Document No 20, an email sent on 10 October 2012, contains legal observations regarding the draft TPD addressed to the DG for ‘Health and Consumers’ by the Legal Service.

36      First, the Commission considered that disclosure of the documents in question, all of which contained legal opinions, would jeopardise the exception laid down in the second indent of Article 4(2) of Regulation No 1049/2001, an exception intended, as can be seen from the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374), to protect an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. Disclosure would put in the public domain internal opinions, drawn up under the responsibility of the Commission’s Legal Service and intended for the service responsible for preparing the proposed TPD, on highly sensitive issues that had become the subject of litigation.

37      In the contested decision, the Commission considered that the likelihood of the protected interest being compromised was not hypothetical but genuine and tangible. In that regard, the Commission mentioned:

–        the action brought by Poland before the Court of Justice of the European Union against the European Parliament and the Council of the European Union (a case which has since given rise to the judgment of 4 May 2016, Poland v Parliament and Council (C‑358/14, EU:C:2016:323)), regarding the validity of the TPD;

–        the fact that the adoption of the TPD had been strongly opposed by the tobacco industry and that questions referred for a preliminary ruling concerning the validity of that directive and the measures to be taken by the Member States when transposing that directive into their national law were expected in the near future, as had been the case with the first Tobacco Products Directive;

–        the fact that the applicant had announced that it had initiated proceedings before the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) (United Kingdom), against the TPD, which would mean that, in all likelihood, the Court of Justice of the European Union would have to be informed of the case by way of a reference for a preliminary ruling;

–        the disputes pending before the World Trade Organisation (WTO) concerning measures taken regarding tobacco by the Commonwealth of Australia following complaints made by the Republic of Cuba, the Dominican Republic, the Republic of Honduras, the Republic of Indonesia and the Ukraine, in which the European Union was intervening as an interested party.

38      As a result, according to the Commission, disclosure of the documents in their entirety could compromise the position of its Legal Service in its legal defence of the validity of the TPD on an equal footing with the other parties, and could thus infringe the principle of equality of arms. That disclosure could effectively undermine the Commission’s freedom to define or to adapt its line of defence during court proceedings, in so far as it would reveal the Legal Service’s position on those sensitive issues before it had even had the opportunity to present that position during the court proceedings.

39      Second, concerning Documents Nos 9, 10, 12, 14 and 15, the Commission explained in the contested decision that those documents were covered by the exception laid down in the second subparagraph of Article 4(3) of Regulation No 1049/2001. The opinions contained in those documents had a particularly wide scope, going beyond the context of the legislative process relating to the adoption of the TPD, and concerned the conditions for the application of Article 114 TFEU. Accordingly, in order to protect its other decision-making processes, involving the same contentious issues connected with that legal basis, the Commission considered that the documents in question had to be protected.

40      In addition, the Commission ruled out the existence of an overriding public interest in disclosure. While recognising the importance of transparency in order to enable citizens to participate in the democratic process and the presumption of openness as regards documents concerning a legislative process, the Commission nonetheless considered, having regard to the content of the documents in question, that transparency was not more important than protecting its legal advice, its rights of the defence and its decision-making processes. Disclosure of the documents in question would compromise the principle of equality of arms and the decision-making process, even after the decision concerned had been adopted. It also considered that the interest relied upon by the applicant was private and not public.

41      It is apparent from those grounds of the contested decision that, in accordance with the case-law cited in paragraphs 27 to 30 above, the Commission indicated, sufficiently comprehensibly, the reasons why it considered, first, that access to the requested documents would compromise the interest protected by the exceptions relating to legal advice and the decision-making process laid down in Article 4 of Regulation No 1049/2001 and, second, that there was no overriding public interest that might nevertheless justify disclosure of those documents.

42      Furthermore, it should be added that, as is apparent from the applicant’s written pleadings, the statement of reasons provided in the contested decision enabled the applicant to understand the reasons for the refusal to grant access and to prepare its action. In addition, that statement of reasons is sufficient to enable the Court to exercise its power of review.

43      By contrast, it must be pointed out that no explanation is provided as regards the exception relating to the protection of court proceedings. Although paragraph 2.2 of the contested decision is entitled ‘Protection of court proceedings and legal advice ([Documents Nos] 9, 10, 11, 12, 14, 15, 16, 18 and 20)’, the arguments put forward to justify the refusal to grant access to the requested documents concern only the exception relating to the protection of legal advice. However, although those two exceptions are both listed in the same indent of Article 4(2) of Regulation No 1049/2001, they are two separate grounds that cannot, as such, be combined.

44      Nevertheless, given that the Commission relied upon several exceptions in respect of the requested documents, it is necessary to examine, in the context of the second and third pleas in law, whether its reliance upon the exceptions relating to the protection of legal advice and the protection of the decision-making process, respectively, is well founded in order to determine the potential consequences arising from the lack of explanation as regards the exception relating to the protection of court proceedings.

 Second plea in law: infringement of the second indent of Article 4(2) of Regulation No 1049/2001

45      By its second plea in law, the applicant asserts, in essence, that, regarding the exception relating to legal advice, the reasons given by the Commission have been dismissed by case-law. Even if the applicant does not deny that protection of the right to receive legal advice might allow the Commission, in specific and concrete circumstances, to object to disclosure of documents, it nonetheless considers that the abstract argument concerning the Legal Service’s ability to defend the validity of the TPD at a later date is not a sufficient basis for refusing to grant access to documents.

46      Furthermore, the applicant submits that the Commission’s attempt to justify its refusal to grant access by referring to the principle of equality of arms is deeply flawed. It is very difficult to invoke a right to such procedural equality in a situation in which the public seeks access to the information that served as the basis for the conclusion that the European Union had a valid legal basis under the Treaty to legislate.

47      Lastly, it alleges that the Commission did not properly weigh up the overriding public interest.

48      The Commission disputes the merits of those arguments in respect of the nine documents at issue.

49      As a preliminary point, it should be borne in mind that, in accordance with recital 1 thereof, Regulation No 1049/2001 reflects the intention expressed in the second paragraph of Article 1 TEU of marking a new stage in the process of creating an ‘ever closer union among the peoples of Europe’, in which decisions are taken as openly as possible and as closely as possible to the citizen. As is stated in recital 2 of that regulation, the right of public access to documents of the institutions is related to the democratic nature of those institutions (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 34; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 68; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 72).

50      To that end, the purpose of Regulation No 1049/2001, as indicated in recital 4 and Article 1 thereof, is to give the public a right of access to documents of the institutions that is as wide as possible (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 33; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 69; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 73).

51      It is true that that right is nonetheless subject to certain limitations based on grounds of public or private interest. More specifically, and in accordance with recital 11 thereof, Article 4 of Regulation No 1049/2001 lays down a series of exceptions authorising the institutions to refuse access to a document where its disclosure would undermine the protection of one of the interests protected by that provision (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 62; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraphs 70 and 71; 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 74; and 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 29).

52      Nevertheless, since such exceptions derogate from the principle of the widest possible public access to documents, they must be interpreted and applied strictly (judgments of 1 February 2007, Sison v Council, C‑266/05 P, EU:C:2007:75, paragraph 63; 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 36; 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 73; and 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 75).

53      The mere fact that a document concerns an interest protected by an exception to the right of access laid down in Article 4 of Regulation No 1049/2001 is not sufficient to justify the application of that exception (judgments of 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 51, and 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 69).

54      First, if the institution concerned decides to refuse access to a document it has been asked to disclose, it must, in principle, explain how disclosure of that document could specifically and actually compromise the interest protected by an exception, provided for by Article 4 of Regulation No 1049/2001, upon which it relies. Moreover, the likelihood of that interest being compromised must be reasonably foreseeable and not purely hypothetical (see judgment of 21 July 2011, Sweden v MyTravel and Commission, C‑506/08 P, EU:C:2011:496, paragraph 76 and the case-law cited).

55      Second, if an institution applies one of the exceptions provided for in Article 4 of Regulation No 1049/2001, it is for that institution to weigh the particular interest to be protected through non-disclosure of the document concerned against, inter alia, the public interest in the document being made accessible, having regard to the advantages stemming, as noted in recital 2 of Regulation No 1049/2001, from increased openness, in that it 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 (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 45; 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 32; and 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 53).

56      Moreover, the Court has also held that those considerations are clearly of particular relevance where the Council is acting in its legislative capacity, as is apparent from recital 6 of Regulation No 1049/2001, according to which wider access must be granted to documents in precisely such cases. Openness in that respect contributes to strengthening democracy by enabling citizens to scrutinise all the information which has formed the basis of a legislative act. The possibility for citizens of finding out the considerations underlying legislative action is a precondition for the effective exercise of their democratic rights (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 46, and 17 October 2013, Council v Access Info Europe, C‑280/11 P, EU:C:2013:671, paragraph 33). Although that case-law concerns a request for access to Council documents, it is also relevant as regards to Commission documents drawn up in the context of a legislative process.

57      In the present case, it is common ground that the requested documents are opinions of the Commission’s Legal Service.

58      According to the Court’s case-law, as regards the exception relating to legal advice laid down in the second indent of Article 4(2) of Regulation No 1049/2001, the examination to be undertaken by the institution concerned when it is asked to disclose a document must necessarily be carried out in three stages corresponding to the three criteria in that provision (judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 37, and 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 95).

59      Accordingly, that institution must first be satisfied that the document it is being asked to disclose does indeed relate to legal advice. Second, it must examine whether disclosure of the parts of the document in question that have been identified as relating to legal advice would undermine the protection that must be afforded to that advice, in the sense that it would be harmful to an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice. The likelihood of that interest being compromised must, in order to be capable of being relied on, be reasonably foreseeable and not purely hypothetical. Third and lastly, if the institution concerned takes the view that disclosure of a document would undermine the protection of legal advice as defined above, it is incumbent on that institution to ascertain whether there is any overriding public interest justifying disclosure despite the fact that its ability to seek legal advice and receive frank, objective and comprehensive advice would be compromised thereby (see, to that effect, judgments of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraphs 38 to 44, and 3 July 2014, Council v in’t Veld, C‑350/12 P, EU:C:2014:2039, paragraph 96).

60      The Court has also held that, in so far as the interest in protecting the independence of that institution’s Legal Service could be compromised by disclosure of opinions of that Legal Service issued in the course of legislative procedures, that likelihood would have to be weighed up against the overriding public interests underlying Regulation No 1049/2001. Such an overriding public interest is constituted by the fact that disclosure of documents containing the opinions of an institution’s Legal Service on legal questions arising when legislative initiatives are being debated increases the transparency and openness of the legislative process and strengthens the democratic right of European citizens to scrutinise the information which has formed the basis of a legislative act, as referred to, in particular, in recitals 2 and 6 of that regulation (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 67).

61      It is apparent from the considerations mentioned above that Regulation No 1049/2001 imposes, in principle, an obligation to disclose the opinions of an institution’s Legal Service relating to a legislative process (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 68).

62      That finding does not, however, preclude a refusal, on account of the protection of legal advice, to disclose a specific legal opinion, given in the context of a legislative process, but being of a particularly sensitive nature or having a particularly wide scope that goes beyond the context of the legislative process in question. In such a case, it is incumbent on the institution concerned to give a detailed statement of reasons for such a refusal (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 69).

63      In the present case, the Court was able to find, following the production of the documents in connection with the measure of inquiry adopted by its order of 11 November 2015, that the nine documents referred to in paragraphs 32 to 35 above were issued by the Commission’s Legal Service and contained either that service’s interpretation of Article 114 TFEU or its observations regarding the draft Impact Assessment or the draft TPD itself.

64      Although it follows from the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374), that, in principle, a legal opinion must be disclosed, that judgment does not preclude a refusal to disclose a legal opinion in specific cases.

65      In addition, it is true that the Court has rebutted the argument that disclosure of a legal opinion could compromise an institution’s ability subsequently to defend the validity of a legislative act before a court as being such a general argument that it could not justify an exception to the openness provided for by Regulation No 1049/2001 (judgment of 1 July 2008, Sweden and Turco v Council, C‑39/05 P and C‑52/05 P, EU:C:2008:374, paragraph 65).

66      However, unlike in the case which gave rise to the judgment of 1 July 2008, Sweden and Turco v Council (C‑39/05 P and C‑52/05 P, EU:C:2008:374), in the present case, at the time of adoption of the contested decision (29 September 2014), an action brought at the end of June by the applicant, challenging the TPD and involving a strong likelihood of a reference for a preliminary ruling, having regard to the controversial legal issues connected with the TPD and the history of the legislative process relating to the adoption of the TPD, was pending before the courts of the United Kingdom.

67      It is well known, in that regard, that the legislative proposal concerning tobacco products is one of the most debated of all the recently-adopted EU proposals. Thus, like the first Tobacco Products Directive, which had been the subject of persistent legal controversy, it was foreseeable that the TPD would also be the subject of such legal controversy.

68      The Commission was therefore entitled to consider that a reference for a preliminary ruling was foreseeable in the near future. In addition, the Republic of Poland had brought an action before the Court of Justice of the European Union contesting the validity of a number of provisions of the TPD which, according to the Republic of Poland, infringed Article 114 TFEU, the principle of proportionality and the principle of subsidiarity.

69      Accordingly, it was not inconceivable that there was a not purely hypothetical likelihood that the Commission’s ability to defend itself on an equal footing when intervening in the actions referred to in paragraph 68 above might be compromised.

70      Indeed, the examination carried out by the General Court shows that all the redacted parts of the legal advice in question deal with the issue of the appropriate legal basis and that almost all the legal advice specifically concerns the question whether Article 114 TFEU provides a legal basis for prohibiting the placing on the market of tobacco products.

71      Therefore, it must be found that there is a connection with the subject matter of the dispute as determined by the Republic of Poland’s application initiating proceedings. Similarly, the Commission was reasonably entitled to expect that those issues would also be the subject of a reference for a preliminary ruling proposed by the national court following the action brought by the applicant before that court.

72      Granting wider access could compromise the protection of legal advice, that is, the protection of an institution’s interest in seeking legal advice and receiving frank, objective and comprehensive advice, and the position of the Commission’s Legal Service in its defence of the validity of the TPD before the Court of Justice of the European Union on an equal footing with the other parties, in so far as it would reveal the position of the Legal Service on sensitive and contentious issues before the Commission had even had the opportunity to present that position during the court proceedings, although no similar obligation would be imposed on the other party.

73      Lastly, as regards the criticism of the Commission for not carrying out an assessment of the question whether an overriding public interest might justify disclosure of the documents in question, it should be noted that that criticism is unfounded. First, it is apparent from paragraph 3 of the contested decision, summarised in paragraph 40 above, that the Commission did indeed examine whether there existed any overriding public interests. Second, according to case-law, it is for the applicant to refer to specific circumstances to establish such an overriding public interest. A statement setting out purely general considerations is not sufficient to establish that an overriding public interest prevails over the reasons justifying the refusal to disclose the documents in question (see, to that effect, judgments of 21 September 2010, Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, EU:C:2010:541, paragraph 158; 14 November 2013, LPN and Finland v Commission, C‑514/11 P and C‑605/11 P, EU:C:2013:738, paragraph 93; 27 February 2014, Commission v EnBW, C‑365/12 P, EU:C:2014:112, paragraph 105; and 2 October 2014, Strack v Commission, C‑127/13 P, EU:C:2014:2250, paragraph 131). Now, it must be found that the applicant did not, in the confirmatory application or in the context of the present action, invoke specific arguments capable of establishing that the principle of transparency was, in the present case, of especially pressing concern and could thus prevail over the reasons justifying the refusal to disclose the documents in question.

74      In the light of the foregoing, the second plea in law must be rejected.

75      Given that the Commission based its refusal on several exceptions and that its reliance upon the exception relating to legal advice is justified for all the requested documents, all of which contain legal advice, and given that reliance upon a single exception is sufficient to justify a refusal to grant access, it is not necessary to give a ruling on the third plea in law, which must, in any event, be rejected. The same is true as regards the lack of a statement of reasons in the contested decision concerning the exception relating to the protection of court proceedings as referred to in paragraph 43 above.

76      It follows that the action must be dismissed.

 Costs

77      Under Article 134(1) 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. As the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Eighth Chamber)

hereby:

1.      Dismisses the action;

2.      Orders Philip Morris Ltd to pay the costs.

Delivered in open court in Luxembourg on 15 September 2016.

[Signatures]

* Language of the case: English.

© European Union
The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice. This electronic version is not authentic and is subject to amendment.