Luxembourg, 27/06/2002 (Agence Europe) - The Court of First Instance (CFI) has just passed judgement in a case between British American Tobacco and the European Commission over access to the documents necessary for the manufacturer to dispute the draft directive, then the EU's "Tobacco" Directive. The Commission's conduct was "regrettable", says the Court of First Instance, chaired by Bo Vesterdorf. But, in the end, British American Tobacco obtained all the documents it needed, including some key-documents for the continuation of the case the manufacturer began against the Council and Parliament.
In 2000, British American Tobacco (Investment) Ltd, the British tobacco manufacturer part of the group of the same name, had asked on behalf of the group that the Commission forward it all the international scientific research work and minutes of the meetings of the cancer experts committee on which the Commission had based its draft Tobacco directive. The Commission's "regrettable" conduct had consisted in saying - due to the fact it seems, of the disorganisation of the services concerned - that these minutes did not exist, whereas the Commission had, in fact,… lost them.
The case has been the subject of three hearings, with the documents appearing one at a time just before the meeting with the judges. "It was only after it ordered the summoning of witnesses and after one of the witnesses proffered written evidence that the Commission was able to find and send to the applicant, on the day before the hearing fixed for hearing witnesses, the relevant sets of minutes of the cancer experts committee", the CFI states. Almost 21 months following the initial request by British American Tobacco to be able to consult the documents, the Commission "also found a document" which it produced to the applicant "only minutes before the hearing of 5 March 2002", it states.
On 24 October 2001, the day before the date fixed for the hearing of witnesses, the Court received a letter from one of the key-witnesses summoned by the cigarette manufacturers, Professor Veronesi, stating that the high-level Cancer Experts Committee had been minuted.
British American Tobacco obtained it, not without difficulty, but had received all documents it had requested, the Court considers, drawing up the list:
- minutes of the meeting of the cancer experts committee assessing the international research. The company is finally in possession of all the minutes, the Court notes. But BAT is not happy: it claimed that there were other minutes that the Commission was concealing from it and that related to an evaluation of the scientific work at international level. British American Tobacco has not provided clues that could lead to doubt the Commission's claim, for which all minutes were in the company's possession.
- A study entitled "Cancer, cigarette smoking and premature death in Europe" drawn up by Professor Boyle for the cancer experts committee in view of the Helsinki Conference.
- A piece of bibliographic research prepared in July 1996 by "Health Promotion Wales" in the framework of the contract concluded with the Commission. A copy of that document was directly addressed to John Ryan, Head of Unit within the Health and Consumer Protection Directorate General in the Commission (and who, according to observers, had been had been criticised in passing by the simple mention of his name in the ruling, a fairly unusual occurrence). At the 5 March 2002 hearing, British American Tobacco confirmed that it had received these documents.
- Reports by the Commission evaluating the international scientific research.
The Commission thus based itself on these documents to draw up the draft "Tobacco" directive. These documents do indeed comprise an evaluation of international scientific research referred to in many page footnotes, the CFI observes.
Among the questions broached in the documents: maximum content of tar and nicotine per cigarette; the use of the words "light" and "mild" to qualify certain cigarettes and the impact of these words on tobacco consumption. BAT considered that in addition there was an internal evaluation of these documents, drawn up by an external consultant acting on behalf of the Commission. Without relevant and consistent evidence indicating the existence of other documents, the Court finds that the applicant's request for access has been satisfied on this point.
Possible consequences of this ruling
On 2 July, British American Tobacco (Investments) and Imperial Tobacco will dispute the validity of the "Tobacco" directive before the judges of the European Court of Justice. According to observers, this CFI ruling could provide arguments to the legal advisers of Parliament and Council who will have no difficulty in explaining to the Court that the cigarettes manufacturers were aware of information on which the Commission based its draft directive, later adopted by Council and Parliament on 5 June 2001.
EUROPE recalls that this directive especially concerns the maximum tar and nicotine content in cigarettes and the labelling of packets.
Finally, worth noting that Germany had tried to have certain provisions annulled in this directive but the case was considered inadmissible as it was lodged too late (EUROPE will return to this).