News

Court of First Instance annuls refusal from the Commission to disclose the minutes of the Working Group assisting the Nomenclature Committee
Date: 18/12/2008

Today’s judgment in the case Muñiz v. Commission (case T-144/05), saw the Court of First Instance clearly rule in favour of increased transparency in the way the Commission adopts rules for the classification of imported products under the Community Customs Tariff. Such rules, which often result in a significant increase in the customs duty on imported products and which are applied retroactively to all imports during the previous three-year period, are often adopted in closed sessions of the Customs Code Committee (Tariff and Statistical Nomenclature Section – Mechanical Sector) without stakeholders being consulted or even informed about the fact that new classification rules are being discussed. As a result, the first time importers or manufacturers have the possibility to set out their views is when they are confronted with huge claims for the payment of additional duties. This has led to an increasing number of court cases and even several WTO challenges of the EC’s classification practice as being in breach of its international obligations.

In order to obtain information on future classification initiatives, companies or their legal representatives have been forced to ask for access to the minutes and working documents of the Customs Code Committee under the Commission’s rules on access to documents. While this has resulted in increased transparency where the Customs Code Committee is concerned, the Commission has tried to avoid granting access by moving the more sensitive discussions to so-called informal “Working Groups” which were allegedly not subject to the Community rules on transparency. Only when a final decision had been agreed upon in the Working Group would the issue be put on the agenda of the Customs Code Committee as an “item for adoption”.

Pablo Muñiz, a senior associate at Van Bael & Bellis, a Brussels firm specialised in EC Trade and customs law, challenged the Commission decision refusing access to certain documents, and in particular to the minutes of such Working Groups before the Court of First Instance.

In today’s judgment, the Court of First Instance has rejected all the arguments invoked by the Commission to refuse access to the minutes of the Working Group. 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 minutes.

Moreover, the Court of First Instance has also rejected as unsubstantiated the allegations raised during the hearing that disclosure of the minutes would create a risk that the members of the Working Group could be subject to undue external pressure, in view of the large commercial importance of the customs classification matters being discussed.

This judgment should be seen as an important step in the direction of a more transparent approach towards the adoption of classification rules by the Commission and the eventual adoption of a consultation procedure whereby all stakeholders can put forward their views before a final decision is taken.