In the case of Pablo Muñiz v the Commission of the European Communities (Case T-144/05), on 18 December 2008 the Court of First Instance (“CFI”) annulled the decision of the Commission of the European Communities (“Commission”) refusing access to requested documents of the Working Group assisting the Nomenclature Committee. The judgment will increase transparency in the Commission’s decision-making process regarding the adoption of classification rules of products under the Combined Nomenclature (“CN”) and TARIC.
The Muñiz judgment
On 13 October 2004, Pablo Muñiz, a lawyer specialising in advising on customs related issues, submitted a request to the Commission for access to the minutes of the Working Group assisting the Nomenclature Committee as well as for access to certain TAXUD (Taxation and Customs Union Directorate-General) documents. The request was based on Regulation 1049/2001 (“Regulation”) which enables access, under certain conditions, to documents of the European Parliament, Council and Commission. The Commission refused access on the basis of Article 4.3 of the Regulation contesting that the requested documents related to matters where a decision had not yet been taken by the Commission, and that disclosure would seriously undermine the Commission’s decision-making process. Accordingly, Pablo Muñiz brought his action at the CFI.
a) Main arguments
Pablo Muñiz argued in the first place that the contested decision infringed Article 4.3 of the Regulation by refusing full access to the requested documents. Pablo Muñiz argued that the dismissing grounds are not valid grounds for dismissal under Article 4.3 of the Regulation. Pablo Muñiz claimed that the content of the Commission’s decision for refusal erroneously reasoned by reference to a category of documents rather than evaluate the content of each one of the requested documents.
In the second place, Pablo Muñiz argued that the contested decision infringed Article 2.1 of the Regulation by leading to a systematic refusal to disclose internal documents, on the sole ground that the relevant file is not closed.
On the other hand, the Commission relied on a number of grounds which can be split into two groups.
In the first group of arguments, the Commission emphasised the characteristics of the Commission’s decision-making process. The Commission relied amongst other factors, on the preliminary nature of the analysis of technical matters contained in the requested documents, on the informal nature of the Working Group, and on the fundamental nature of that ‘space to think’ in its decision-making process. In that regard, the Commission contended that the disclosure of the views expressed within the Working Group would be premature, considering that some of the views would not be followed when considered in the context of the Nomenclature Committee. In this connection, the Working Group was created to support the work of the Nomenclature Committee and carries out a preliminary analysis of technical matters for subsequent discussion in the meetings of the Nomenclature Committee. Therefore, it is the Nomenclature Committee, according to the Commission, that delivers opinions on the measures to be adopted by the Commission. The Commission further emphasised the informal character of the Working Group considering that there is no legal basis, mandate or formal decision creating it. Therefore, the Working Group cannot give official opinions to the Commission, regarding the adoption of draft implementing measures.
In the second group of arguments, the Commission put the emphasis on the consequences of possible access to the requested documents. The Commission argued that the disclosure would expose the Nomenclature Committee to “unnecessary and detrimental pressure” which would restrict the Commission’s staff and experts to express their views considering the possibility of disclosure of their opinions.
b) Court of First Instance
The CFI rejected all the arguments put forward by the Commission.
As regards the first group of arguments, the CFI decided that neither the preliminary nature of the analysis contained in the requested documents, nor the informal nature of the Working Group justified the refusal to disclose the requested documents. In that regard, the CFI ruled that the exception in Article 4.3 of the Regulation does not preclude by its wording or reason that it protects, the possibility of requesting access to documents for internal use containing a preliminary analysis. The CFI further emphasised that the Commission’s arguments as to the informal nature of the Working Group do not alter in the slightest the fact that documents emanating from the Working Group ‘can be disclosed’ subject to the exception provided for in the first subparagraph of Article 4.3 of the Regulation.
With regard to the second group of arguments, the CFI ruled that the risk of external pressure was unsubstantiated. The CFI decided that the mere possibility of external pressure, on account of the significant commercial interests in matters of customs tariff classification, cannot per se constitute a legitimate ground for restricting access to documents since the exception provided for in Article 4.3 of the Regulation must be interpreted and applied strictly. Conclusion
The Muñiz judgment is of importance for the Commission’s decision-making process regarding the adoption of classification rules of products under the CN and TARIC. In that regard, the Muñiz judgment provides for more transparency and offers to all stakeholders the possibility to acquire, under the conditions provided for in Article 4.3 of the Regulation, a preliminary view of future classification initiatives and rules.
Moreover, the increase in transparency will not only contribute to a better flow of information towards all stakeholders but also to a better preparation as stakeholders have the possibility to request documents relating to, for example, discussions regarding new classification rules.
