Judgment_paragraph 97 · Philip Morris Ltd v European Commission (T-796/14)

97The principle of equality of arms requires the institution by which the contested act was issued to be in a position effectively to defend the legality of its actions before the courts. That possibility would be seriously compromised if the institution in question were to be obliged to defend itself, not only having regard to the pleas in law and arguments raised by the applicant, or, as in the present case, in the context of future preliminary ruling proceedings, but also having regard to the positions taken internally concerning the legality of the various options envisaged in the context of the drawing up of the act in question. In particular, unlike the situation for documents that contain elements constituting the factual basis of the Commission’s exercise of its powers, disclosure of which may prove to be necessary in order to meet the objectives set out in paragraph 30 above, disclosure of documents containing that type of position is such as to oblige the institution concerned, as a result, to defend itself against assessments by its own staff which have, ultimately, been disregarded. That fact could upset the balance between the parties to court proceedings, inasmuch as the applicant could not be obliged to disclose that type of internal assessment (see, to that effect, judgment 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 87).