EU General Court Judgments in Cases T-570/22 Herbert Smith Freehills v Commission and T-311/23 British American Tobacco Polska Trading v Commission

Wednesday 25th September 2024

EU General Court: Judgments in Cases T-570/22 Herbert Smith Freehills v Commission and T-311/23 British American Tobacco Polska Trading v Commission

(Provisions governing the institutions – Access to documents)

The applicants – Herbert Smith Freehills LLP (case T-570/22) as well as British American Tobacco Polska Trading sp. z o.o. on its own behalf and on behalf of 4 other British American Tobacco group companies (case T-311/23) – asked the General Court for the annulment of two Commission decisions pursuant Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents: Commission Decisions C (2022) 4816 and C (2023) 5443.

The applicants asked for access to documents the Commission used to adopt the Delegated Directive  2022/2100,  amending Directive 2014/40/EU as regards the withdrawal of certain exemptions in respect of heated tobacco products.

They included, inter alia, all documents containing data from the EU’s common electronic entry point on the volume of sales of tobacco products by category (expressed in number of cigarettes/cigars/cigarillos or in weight) per Member State between January 1, 2015 and December 31, 2020.

Also, they requested documents containing supporting data and interim documents created within the Commission (including relevant statistics and findings) relating to the Commission’s conclusion (recorded in the summary record of the Tobacco Policy Expert Group meeting of December 2, 2021 and presented to the same Group) that developments in the market for heated tobacco products constituted a significant change in the situation within the meaning of Directive 2014/40.

Indeed, after that Tobacco Policy Expert Group meeting, the Commission had informed the representatives of the Member States that “developments in the market for heated tobacco products constituted a significant change in the situation” within the meaning of Directive 2014/40.

On June 15, 2022, the Commission published a report setting out significant developments in the situation for heated tobacco products under Directive 2014/40.

Following the report, on June 29, 2022, the Commission adopted Delegated Directive 2022/2100.

On March 11, 2022 (T-570/22) and on November 4, 2022 (T-311/23), the applicants made distinct applications to the Commission for access to documents under Regulation No 1049/2001. The documents requested were based on elements extracted from three different databases, namely Euromonitor, the “EU-CEP” and the “Tracking System”.

On April 8, 2022 and on January 17, 2023, the Commission partially rejected the requests of access, however disclosing access to some documents corresponding to the subject of the requests the Commission had identified (the “disclosed documents”).

The applicants took the view, first, that the Commission had not disclosed all the relevant interim documents and, second, that the Commission should have given it access to information from the relevant underlying databases which can be regarded as existing documents.

On July 3, 2022 and on August 4, 2023, the Commission adopted the two contested decisions (Commissions decisions C (2022) 4816 and C (2023) 5443, maintaining that it did not hold any documents other than those it had already disclosed.

The applicants challenged both decisions, asking the General Court to annul them, contesting that the Commission had no other documents than those disclosed.

In support of their action, the applicants raise, inter alia, the alleged infringement of Regulation No 1049/2001, by refusing access to the data contained in the three databases which it used to prepare the report: Euromonitor, the ‘EU-ECP’ and the ‘traceability system’.

Background Documents T-570/22

Background Documents T-311/23