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Pending cases - September 2006

28 March 2012

Statewatch observatory on EU FOI case law
Cases pending at the European Courts
Compiled by Steve Peers, Professor of Law, Human Rights Centre, University of Essex

Cases pending before the EU Court of First Instance

1. BAT v Commission, Case T-170/03

Subject-matter: comitology documents re tobacco classification; inspections exception

Status: no hearing yet

Summary of pleas:

The applicant in the present case challenges the refusal of the defendant to grant it access to certain documents relating to the classification of expanded tobacco for Customs and Excise duty purposes. Regarding this topic, it points out that it has a vital interest in knowing why a given product - expanded tobacco - is treated as smoking tobacco within the meaning of Article 5(1) of Directive 95/59/EC of 27 November 1995, on taxes other than turnover taxes which affect the consumption of manufactured tobacco1, and thus as an excisable product. The applicant considers the product an intermediary product, unsmokable without further processing, and therefore not excisable. It is stressed that there has been no published decision determining the issue and giving the reasons for the classification chosen.

As regards two of the sets of requested documents (a complete set of documents of the Customs Cooperation Council on the Classification of expanded tobacco for customs classification purposes and all the attendance lists of all meetings of the Committee on Excise Duties, or any other relevant Committee, at which the definition of 'smoking tobacco' was debated), the applicant submits that the Commission infringed Article 8(1) and (2) of Regulation(EC) 1049/20012, by not responding within the regulatory time-limits thereof.

In relation to the full minutes of all meetings of Excise duties, or any other relevant committee, at which the definition of 'smoking tobacco' was debated, including the full minutes of discussions on other agenda points, the applicant claims that the contested refusal:

- Misapplied the principle of proportionality. In particular, the Commission made no attempt to confer informally with the applicant with a view to finding a fair solution, pursuant to Article 6 of Regulation (EC) 1049/2001

- Has not given due weight to the applicant's interest in receiving the requested documentation

Moreover, the applicant doesn't accept the Commission's contention that the Member States would have to be consulted in relation to the submissions made by them in the minutes. It is the applicant's position that, in accordance with Article 4(4) of Regulation (EC) 1049/2001, a consultation with a Member State shall take place only when it is not clear whether a document shall or shall not be disclosed. Furthermore, the final decision as to whether or not a document shall be released remains with the Commission, and this must be reasoned and clearly justified as falling within one of the exemptions provided for in the access regulation.

2. API v Commission, Case T-36/04

Subject-matter: documents submitted to courts

Status: hearing held 28 Feb. 2007

Summary of pleas:

The applicant is a non-profit organisation of foreign journalists based in Belgium, aiming to assist its members in reporting back to their home countries about the European Union. It applied to the Commission for access to all the submissions made by the Commission in the course of certain proceedings before the European Court of Justice and the European Court of First Instance. Such access was denied by the contested decision.

In support of its application the applicant invokes an infringement of Articles 2 and 4, paragraph 2, of Regulation 1049/20011. According to the applicant article 4 paragraph 2 of Regulation 1049/2001 does not justify a blanket exclusion of the Commission's pleadings from the principle of open access to Community documents, nor does it give the Commission the right to refuse access to its pleadings merely because the matter itself or related proceedings are still pending.

3. Jordana v. Commission, Case T-161/04

Subject-matter: documents concerning staff competition; 'privacy' exception

Status: no hearing yet

Summary of pleas:

The applicant in these proceedings contests the defendant's decision denying him access to the reserve list for general competition A7/A6 COM/A/637 and the individual decisions appointing officials in Grade A 6 from 5 October 1995.

In support of his claims, the applicant alleges, first, misapplication of the exception under Article 4(1)(b) Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. 1 That exception concerns privacy and the integrity of the individual, in particular in accordance with Community legislation regarding the protection of personal data. The applicant states, in that connection, that it cannot be considered that the disclosure of the documents requested could infringe the privacy of the persons whose names appear in them, since belonging to the civil service is not a matter falling within the scope of privacy.

Moreover, to the extent that individual decisions regarding the appointment of European civil servants are in the public domain, the applicant alleges infringement of Article 5(b) of Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data. 2 The applicant also alleges failure to fulfil the obligation to provide reasons and breach of the principle of sound administration.

4. Bavarian Lager Company v Commission, Case T-194/04

Subject-matter: documents concerning a list of persons lobbying of the Commission; 'privacy' exception

Status: hearing held 13 Sept. 2006

Summary of pleas:

The applicant company was formed on 28 May 1992 to import German beer for sale in public houses in the United Kingdom. In 1993 the applicant complained to the Commission about an alleged violation of Article 28 EC (then Article 30 of the EC Treaty) in connexion with the "guest beer provision" in UK legislation. Under this provision breweries are required to allow public houses bound to them by exclusive purchasing agreements to offer a "guest" beer from a different brewery. The guest beer had to be a beer undergoing fermentation in the cask from which it was sold, a type of beer which is almost exclusively produced in the United Kingdom. The beer sold by the applicant as well as most beers produced outside the United Kingdom could not be covered by this provision and the applicant considered this a measure of equivalent effect to a quantitative restriction. In a letter of 21 April 1997 the Commission informed the applicant that, in view of a proposed amendment of the guest beer provision, the procedure against the United Kingdom had been suspended and would be brought to a close as soon as the amendment had been adopted.

On 5 December 2003 the applicant requested the Commission, on the basis of Regulation 1049/20011, to grant it full access to the minutes of a meeting on this matter, which took place on 11 October 1996 between representatives of the Commission, the United Kingdom government and breweries. In particular, the applicant asked the Commission to reveal the identity of certain persons whose names had been blanked out in the minutes previously disclosed to the applicant. The Commission rejected the applicant's request and confirmed its refusal in a letter of the Secretary General to the applicant, dated 18 March 2004. In support of its refusal it invoked the need to protect personal data of the persons present at the meeting, as well as a potential risk to the Commission's ability to carry out investigations in such cases if the identity of persons giving information to the Commission were to be disclosed.
By its application, the applicant requests first of all a declaration against the Commission's decision to suspend the procedure against the United Kingdom. In this respect, the applicant invokes a violation of Articles 28 and 12 EC.

Concerning the Commission's refusal to grant it access to the documents requested, the applicant submits that Article 2 of Regulation 1049/20011 obliges the Commission to make full disclosure of the persons who attended the meeting in question, and that none of the exceptions contained in Article 4 apply. The applicant further contends that the exception in Article 4 paragraph 3 may be disregarded because there is overwhelming public interest in disclosure.

5. WWF v Council, Case T-264/04

Subject-matter: documents concerning WTO negotiations; 'international relations' exception

Status: change to: hearing held 8 Nov. 2006; judgment scheduled for 25 April 2007

Summary of pleas:

By a letter dated 23 February 2004 the applicant applied to the Council in accordance with Article 6 of Regulation 1049/20011Official Journal L 145 , 31/05/2001 P. 43 - 48 and sought information with respect to an item entitled "WTO-Sustainability and Trade after Cancun" on the agenda of the "Article 133 EC" Committee for a meeting of its Deputy Members on 19 December 2003. By letter of 17 March 2004 the Council indicated that, in relation to the applicant's application, it had identified a note of the Commission covering a wide range of issues concerning the follow-up to the Cancun conference which, however, it declined to disclose on the basis that disclosure would undermine the European Union's commercial interests and would be prejudicial to economic relationships with third countries. It further informed the applicant that no minutes of meetings of the Deputy Members of the Committee were drawn up.

The applicant made a confirmatory application in accordance with Article 7 paragraph 2 of Regulation 1049/2001 on 5 April 2004. By the contested decision the Council maintained its refusal on the grounds it had already indicated.

In support of its application to annul the contested decision the applicant contends that the Council has erred in its assessment of the sensitivity of the relevant information, has failed to provide adequate reasons for its refusal and has failed to apply properly the principle of proportionality in assessing the possibility of partial disclosure.

6. Pitsiorlas v Council and ECB (Cases T-3/00 and T-337/04)

Subject-matter: documents concerning central bank agreements

Status: Case T-3/00 remitted back to CFI by ECJ (judgment Case C-193/01 P, above); Case T-337/04 is a connected claim for damages; hearing held 29 March 2007

Summary of pleas (in Case T-337/04):

The applicant previously brought an action before the Court of First Instance (Case T-3/00) 1 for annulment of the refusal of the Council and the European Central Bank to allow him access to the 'Basle/Nyborg' Agreement on the reinforcement of the European Monetary System. The applicant argued that he needed the agreement in order to complete the doctoral thesis that he was writing.
In his present action, the applicant pleads that the refusal of the Council and the European Central Bank to allow him access was unlawful for the same reasons as those pleaded by him in the previous action. In addition he pleads that, by reason of the refusal, he has been unable up until now to complete his doctoral thesis. He submits that as the possessor of a doctoral thesis specialising in economic and monetary law he would succeed in obtaining a job as a lawyer in an international body or organisation. He thus considers that he has suffered material damage equal to the difference between (i) the salary that he would have received from such a job in the period from April 2001 - when he would have completed his doctoral thesis and found such a job - until three months after delivery of the Court of First Instance's judgment and (ii) his past and future earnings over the same period working as a lawyer in Greece. By his action he thus seeks compensation for that material loss and the award of damages for non-material harm.

7. CO-FRUTTA v Commission (Case T-355/04)

Subject-matter: documents concerning EC banana market; 'commercial secrecy' exception

Status: no hearing yet

Summary of pleas:

In support of its claims, the applicant argues that the refusal of its request for access to documents is unlawful inasmuch as it stems from misapplication by the Commission of the procedural and substantive rules governing the Subject-matter. In particular:

- the Commission infringed the procedural time-limits laid down in Regulation (EC) No 1049/2001 1 and Decision 2001/937 2 and refused access on the basis of belated opposition by certain Member States;

- the measure is manifestly contradictory in so far as the delay was caused by the need to consult the Member States. Yet the Commission itself maintains that, irrespective of the opposition by those Member States, it would in any event have refused access. Thus the Commission is also in breach of the relevant rules which required it to reach an unfettered decision, since it had already made up its mind as to the final decision to be adopted;

- the Commission relied on one of the exceptions provided for in Regulation No 1049/2001 to refuse access, without putting forward any ground in that regard; in any event, as to the exception relied on (protection of commercial secrecy under Article 4(2) of Regulation No 1049/2001), the applicant notes that the conditions for the application of that exception do not exist since in the OCM banana sector there cannot be said to be any commercial secrets to be protected, in the terms stated by the Commission;

- the Commission failed to rule in regard to a series of documents mentioned in the applicant's request for access, thereby infringing the principle of sound administration;

- the Commission did not grant partial access in respect of the documents from the States which did not oppose disclosure.

8. Terezakis v. Commission Case T-380/04

Subject-matter: documents concerning airport contract; 'Member State veto' issue

Status: hearing held on 30 March 2006

Summary of pleas:

Regarding the Commission(s refusal to allow him access to the main contract, the applicant invokes first of all a manifest error in law and fact, in that the Commission did not make clear whether the author of the document, Athens International Airport, is a third party other than a Member State or whether it is an authority of the Greek State and consequently whether, paragraph 4 of Article 4 of Regulation 1049/20011 or paragraph 5 of the same article should apply. The applicant also submits that the Commission provided no evidence that it has considered granting access without consulting the third party. He also considers that by opting for an extensive interpretation of the notion of protection of commercial interests the Commission has violated the principle of the widest possible access to documents, set out in Article 1 (a) of Regulation 1049/2001.

In connexion with the same document, the applicant also claims that the Commission has violated Article 4 paragraph 4 of Regulation 1049/2001 and Articles 5 paragraphs 3 and 4 of Decision 2001/9372 by failing to assess the justification advanced by the third party for refusing to consent to disclosure, and failing to reveal to the applicant elements of that assessment. The applicant also argues that the Commission violated Article 4 paragraph 6 of Regulation 1049/2001 by failing to consider the possibility of granting partial access and that, finally, it has violated its duty to state reasons for its decision.

By its contested decision the Commission also refused access to the invoices and final report on the completion of the airport on the grounds that they are examined in the framework of an audit commissioned by DG Regional Policy and not yet completed. Concerning this part of the Commission(s Decision the applicant submits that the Commission misinterpreted Article 4 paragraph 2 of Regulation 1049/2001 and committed a manifest error of fact in considering that the audit in question falls under this provision. He also invokes a violation of the principle of the widest possible access as well as violation of Annex V to the Commission decision granting assistance from the Cohesion Fund, which provides that Member States concerned shall ensure open and easy access to relevant information requested by the public. He also submits that the Commission failed to consider partial access.

Concerning the Commission(s refusal to grant access to the costs of the construction items the applicant submits that the Commission mistakenly considered that this application did not constitute an application for access to documents and thus violated Articles 7 and 8 of Regulation 1049/2001.

Finally, the applicant invokes a manifest lack of good faith and a violation of the principle of good administration by the Commission, which failed to indicate, in its contested decision, when it expected to be in possession of the sub-contracts.

9. CO-FRUTTA v. Commission Case T-446/04

Subject-matter: see Case T-355/04, above

Status: no hearing yet

Summary of pleas:

In support of its complaints, the applicant submits that the Commission could no longer adopt the contested decision given that an (implied) decision rejecting the confirmatory application had already been taken by reason of the absence of a reply.
Furthermore, the applicant puts forwards other arguments largely the same as those in the action brought in Case T-355/04 (OJ C 262 of 23 October 2004).

10. Rhiannon Williams v Commission, Case T-42/05

Subject-matter: documents concerning GM foods; 'international relations' exception

Status: no hearing yet

Summary of pleas:

The applicant is a doctoral research fellow and is carrying out a project on the impact of globalisation on Community environment and development cooperation law and policy. For this, the applicant has asked for access to documents in order to review the background to recent legislation about genetically modified organisms (GMO). Following the request of the applicant, access to only part of the documents was granted.

In support of her application, the applicant submits an infringement of Article 8 of Regulation No 1049/20011 and a failure to state reasons in accordance with Article 253 EC. According to the applicant, the Commission has given an incomplete reply to the request for access and did not identify all the documents included within its scope. The applicant claims that other documents exist, for which no reasons for refusal of access have been given and no exceptions have been invoked.

The applicant furthermore submits that the Commission erred in law and misapplied the exception under the second paragraph of Article 4(3) and the third indent of Article 4(1)(a) of Regulation No 1049/2001. The applicant also submits that the Commission failed to state reasons and erred in considering that disclosure would seriously undermine the decision making process, that there is no overriding public interest in disclosure of the documents and that the documents in question would weaken the
Commission's position before the WTO panel on the de facto moratorium on the approval and marketing of biotech products.

The applicant also submits an infringement of the principle of proportionality and a failure to state reasons in not considering partial access to the documents.

11. SpA Navigazione Libera del Golfo v. Commission, Case T-109/05

Subject-matter: documents concerning State aids; 'commercial interests' exception

Status: no hearing yet

Summary of pleas:

When it informed the applicant of the decision of 16 March 2004, allegedly on the grounds of protection of the commercial interests of Caremar the Commission did not, when giving the reasons for its decision, disclose information on the operating costs of Caremar's commercial activities, in particular the extra costs incurred by the connections to the island of Capri carried out under public service obligations and the annual payments made for that service by the Region of Campania.

The applicant has always operated similar passenger transport services on the same Naples Beverello-Capri route under public service obligations without, however, receiving any subsidy to offset the extra costs inherent in those obligations and, as a result, it regards that treatment as discriminatory.

In the light of the applicant's legal interest in bringing proceedings and the need to acquire full knowledge of the Caremar decision within the shortest time for the purposes of protecting its own interests and of any consequent challenge to the decision of 16 March 2004, the applicant asked for access to information concerning the extra costs of the public service obligations borne by Caremar for the connections to the island of Capri and the amount of the aid relating thereto.

By decision of 3 February 2005 the Commission refused access to the information requested by NLG, essentially pleading grounds of protection of the commercial interests of Caremar.

Challenging that decision, NLG submits that the Commission committed, inter alia, a serious error of law by failing to have regard to the provisions of its Communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions, 3 which expressly lays down in paragraph 17 the requirements of transparency and of disclosure of information regarding the costs of public services inasmuch as it is not considered confidential or protected as a business secret.

12. Borax Europe Ltd v. Commission, Case T-121/05

Subject-matter: documents recordings concerning chemicals legislation; 'privacy' and decision-making exceptions

Status: no hearing yet

Summary of pleas:

The applicant contests the decision of the Commission to refuse the applicant access to certain documents and tape recordings related to the preparation of the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances1. More in particular, the applicant's requested access to the audio recordings or transcripts of the meeting of the specialised experts in the field of reproductive toxicity on the classification of boric acid and borates.

In support of its application, the applicant submits that the defendant made a manifest error of assessment and infringed Articles 4(1)(b) and 4(3) of Regulation 1049/20012. According to the applicant, the defendant erred in stating that access to the documents would undermine the integrity of the specialised experts consulted and would expose them to external pressure. The applicant claims furthermore that the defendant erred in applying the exception relating to the protection of the Commission's decision making process and in deciding that there was no overriding public interest in disclosure.

The applicant finally invokes a violation of the principle of proportionality in failing to grant partial access to the audio recordings.

13. Internationaler Hilfsfonds e.V. v. Commission (Case T-141/05)

Subject-matter: decision-making exception

Status: no hearing yet

Summary of pleas:

In the contested document the Commission denied the applicant unrestricted access to the European Commission's file relating to Contract LIEN 97-2011 by reference to Article 4(1)(b) and the second subparagraph of Article 4(3) of the Transparency Regulation 1 and to the Data Protection Regulation 2.

The applicant claims that the contested decision infringes Article 4(3) of the Transparency Regulation. The applicant is of the opinion that the reasons given by the European Commission for its refusal to grant unrestricted access to the file concerning Contract LIEN 97-2011, namely that unrestricted access to the file would impair the decision-making process, are invalid. The applicant further contends that there is public interest in the disclosure of the documents in question. The applicant also questions the applicability of Article 4(1)(b) of the Transparency Regulation.

The applicant complains furthermore of the refusal to grant unrestricted access to the file by reference to the Data Protection Regulation.

In addition, the applicant submits that the European Commission's action is arbitrary.

14. Pablo Muñiz v. Commission (Case T-144/05)

Subject-matter: customs documents; decision-making exception

Status: no hearing yet

Summary of pleas:

The applicant is a lawyer specialising in advising clients on customs related issues. In order to best advise his clients the applicant addressed, on 13 October 2004, a request to the Commission for access to the minutes of the September meeting of the Customs Code Committee - Tariff and Statistical Nomenclature Section as well as for access to certain TAXUD documents.

This request was refused on 1 December 2004, on the basis of Article 4.3 of Regulation 1049/2001. The applicant requested a review of the initial decision on 15 December 2004. The contested decision was issued as a result of that request, and confirmed the previous decision to refuse access.

The applicant contends that the contested decision infringes Article 4.3 of Regulation 1049/2001. According to the applicant, the reasons provided for refusing access, namely that disclosure of the requested documents would seriously undermine the Commission's decision making process, are not valid grounds under this provision. The applicant also contends, in the same context, that the contested decision erroneously reasoned by reference to a category of documents rather than evaluate the content of each one of the requested documents.

The applicant further considers that Article 4.6 of the same regulation was violated, in that the Commission refused even partial access to the requested documents. He also argues that the contested decision circumvents Article 2.1 of that regulation by leading to a systematic refusal to disclose internal documents, on the sole ground that the relevant file is not closed.
Finally, the applicant considers that an overriding public interest, consisting in the need for interested parties to have a better understanding of the decisions adopted on tariff classifications matters, justified disclosure of the requested documents.

15. Borax Europe Ltd. v. Commission (Case T-166/05)

Subject-matter: documents See Case T-121/05 above

Status: no hearing yet

Summary of pleas:

See Case T-121/05 above.

16. Nomura Principal Investment Plc and Nomura International Plc v. Commission (Case T-233/05)

Subject-matter: documents concerning state aid; Member State veto and exceptions for inspections, etc. and decision-making

Status: no hearing yet

Summary of pleas:

The Commission has, in the contested decision, confirmed its refusal to grant the applicants access to a copy of the non-confidential version of all documents collected during the proceedings and investigations leading to the adoption of the Commission(s decision of 14 July 2004 in State Aid case No. CZ 46/2003 - Czech Republic - Investicní a postovní banka, a.s. (IPB)/Ceskoslovenská obchodní banka, a.s. (CSOB).

The applicants submit that the Commission wrongly applied the exception in Article 4(2), third indent, of Regulation 1049/2001 1 to all the documents in question and that the Commission, amongst other things, failed to carry out an individual assessment of the content of the documents.

With regard to the documents originating from the Czech authorities and the Commission(s internal documents, the applicants claim that the Commission misapplied the exceptions laid down in Article 4(3), second subparagraph, and Article 4(5) of the Regulation.

The applicants moreover submit that the Commission erred in refusing to grant partial access to the requested documents under Article 4(6) of the Regulation and that the Commission failed to provide sufficient reasoning in accordance with Article 253 EC.

Finally, the applicants are of the opinion that the exceptions in Article 4(2), third indent, and Article 4(3), second subparagraph, of the Regulation should be set aside and that access to the documents should be granted for the benefit of the overriding public interest in the protection of the integrity of the European Union(s State aid and enlargement policies.

17. Editions Odile Jacob SAS v. Commission (Case T-237/05)

Subject-matter: documents concerning competition proceedings; exceptions for inspections, etc., commercial interests, decision-making and legal advice.

Status: no hearing yet

Summary of pleas:

The applicant has brought two actions for annulment before the Court of First Instance, the first (Case T-279/04) 1 being against the Commission's decision of 7 January 2004 declaring the concentration operation whereby Lagardere was to acquire exclusive control of the assets of Vivendi Universal Publishing, subject to honouring the latter's undertakings, compatible with the common market (COMP.M/2978 - Lagardere/Natexis/VUP), and the second (Case T-452/04)2 being against the Commission's decision of 30 July 2004, concerning the approval of Wendel Investment as the acquirer of the assets surrendered in accordance with the decision of 7 January 2004.

On 27 January 2005, the applicant asked the Commission, on the strength of Article 255 EC and Regulation No 1049/2001, for access to certain documents concerning that case. The Commission sent only one of the documents requested, maintaining that the others were covered by exceptions to the principle of public access to documents. On 18 February 2005, the applicant made a confirmatory application, which was likewise rejected by the Commission on 7 April 2005.

In support of its action against that latter decision, the applicant argues that it is void because it was based on an examination by categories of document requested and not on a specific and individual examination of each document.

It also argues that the Commission made clear errors of assessment in applying each of the exceptions under Article 4(2) of Regulation No 1049/2001, which it relied upon in dismissing the request. More particularly, the exceptions concern protection of the purpose of investigation activities, the protection of commercial interests, the protection of the decision-making process, and the protection of the Commission's legal opinions. In the applicant's submission, the Commission has not applied any of those exceptions correctly.

The applicant also claims that the Commission has infringed its right to at least partial access to the documents concerned.
Finally, the applicant claims that the proportionality principle has been infringed because the Commission did not balance the exceptions referred to in Article 4(2) of Regulation No 1049/2001 against the higher public interest justifying disclosure of the documents requested.

18. MyTravel v Commission (Case T-403/05)

Subject-matter: documents concerning competition proceedings; exceptions for court proceedings and legal advice, inspections, investigations and audits, and decision-making

Status: no hearing yet

Summary of pleas:

The applicant, then named "Airtours plc.", brought an application requesting the annulment of the Commission's decision regarding the applicant's merger with another company. By its judgment in Case T-342/99, Airtours/Commission, the Court annulled that decision, as requested by the applicant. The applicant then brought another application (Case T-212/03, MyTravel/Commission), for damages allegedly incurred by reason of the Commission's errors and breaches of Community law in its handling of the case leading to the annulment.

In the context of those second proceedings, the applicant, relying on Regulation 1049/20011, requested the Commission to grant it access to the report prepared by the Commission's services following the judgment, as well as a number of drafts, working papers and notes, either relating to the preparation of that report or contained in the case file of the Commission's decision, which had been annulled. By the contested decision, the Commission rejected the applicant's request, considering that the exceptions in Article 4, paragraphs 2 and 3, of Regulation 1049/2001, relating to the protection of court proceedings and legal advice, of the purposes of inspections, investigations and audits or of the Commission's decision making process, should apply.

The applicant requests the annulment of this decision. It challenges in detail the Commission's assertions that certain documents should not be disclosed in order to protect court and legal proceedings, and considers that it should not be open to the Commission to rely on the need to protect historic court proceedings, such as the ones in Case T-342/99, already closed, in order to resist the disclosure of documents which are central to the achieving of a just result in separate, ongoing proceedings.

With regard to the protection of investigations, the applicant contends that the Commission's appraisal of a proposed merger is not an investigation for the purposes of the exception and that the exception does not apply to internal enquiries nor does it in any event apply to enquiries which are closed. Further, the applicant considers that disclosure would not undermine the purpose of investigations in similar merger procedures. The applicant also challenges the Commission's assertion that an internal audit aimed at modernising administrative procedures could not be independent if its recommendations and findings were made public.

Finally, the applicant considers that the Commission has not established that disclosure would seriously undermine its future decision-making process, since the report of which disclosure was requested does not relate to the way decisions will be taken in future but to the way in which they were wrongly taken in the past, transparency could not be equated to undue external pressure and the disclosure requested would have no impact on the stability of the Community legal order.
The applicant finally argues that there is an overriding public interest in the disclosure of the requested documents.

19. A.S.TER v Commission (Case T-409/05)

Subject-matter: exception inspections, investigations and audits

Status: no hearing yet

Summary of pleas:

The applicant in the present action, a limited liability company most of whose capital is held by the Municipality of Genoa, seeks annulment of the defendant's decision rejecting access, under Article 7(e) of Regulation (EC) No 1049/2001 1 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, to the complaint (and annexes thereto) sent to the Commission on 21 February 2005, which gave rise to an investigation which may lead to initiation of formal infringement proceedings against the applicant.

Access was withheld on the basis that disclosure might have had an adverse impact on the conduct of the investigation by the Commission.

In support of its claims, the applicant alleges infringement of Article 4(2) of Regulation No 1049/2001, of the principle audi alteram partem and of the principles of transparency, cooperation and participation in proceedings, and also lack of an adequate statement of reasons.

It submits in that regard that there is, despite the defendant's claim, no need to withhold distribution of documents relating to the infringement proceedings in order to avoid undermining the inquiries, but that, on the contrary, it is necessary for the purpose of such inquiries for the procedure to be conducted with the greatest transparency and cooperation, so that the Municipality of Genoa and the applicant can produce the documentation required for conduct of the investigations.

Furthermore, since the applicant is a party to administrative proceedings before the defendant, the contested decision infringes the principle audi alteram partem.

The applicant adds that objections to rights of access must be interpreted restrictively and in the light of the principle entitlement to information and the principle of proportionality.

20. Navigazione Libera del Golfo v Commission (Case T-444/05)

Subject-matter: see Case T-109/05 above; also 'Member State veto' issue

Status: no hearing yet

Summary of pleas:

The pleas in law and main arguments are similar to those put forward in Case T-109/05 Navigazione Libera del Golfo v Commission.
It should, however, be stated that the contested decision in Case T-109/05 is based on Article 4(2) of Regulation No 1049/2001, whereas the decision at issue in this case is based on Article 4(4) and (5) of that regulation. Accordingly, it was not Caremar that was consulted, as 'third party author' of the documents/data to which access was requested, but rather it was the Italian authorities, which did not issue the documents of the case and had no concerns relating to commercial interests, that were consulted.

Further, that consultation was carried out in an artificial manner, given that the Member States have exclusive competence together with a right of veto which is binding on the Commission.

21. Landtag Schleswig-Holstein v. Commission (Case T-236/06)

Subject-matter: access to legal opinion concerning EC competence over data retention.

Status: no hearing yet; parallel case before the Court of Justice (Case C-406/06) dismissed as inadmissible.

Summary of pleas:

In the contested decision, the Commission refused the applicant's request for access to document SEK (2005) 420 on the basis of the second indent of Article 4(2) of the transparency regulation. This document contains a legal analysis of the Community's competence in the field of the retention of personal data by operators of electronic communications networks.

The applicant alleges, first, breach of Article 10 EC in conjunction with the second paragraph of Article 1 EU. The applicant takes the view that the Commission is under an obligation to grant it access to the document which it has applied for in the framework of the reciprocal duties of genuine cooperation in accordance with the principle of transparency, on the ground that there is a strong public and parliamentary interest in full disclosure of this document.

The applicant further alleges breach of Article 255 EC and Article 2(1) of the transparency regulation. It submits in this regard that the Commission was wrong to base its refusal to grant access to the document applied for on the second indent of Article 4(2) of the transparency regulation, since disclosure of the document would not have prejudiced the Commission's legal advice. The defendant therefore incorrectly exercised its discretion

22. Leclercq v Commission (Case T-299/06)

Subject-matter: access to an extract from a database concerning EC staff

Status: no hearing yet

Summary of pleas:

By this action, the applicant seeks the annulment of the decision of 27 July 2006, adopted by the Secretary-General of the Commission, rejecting her confirmatory application for access to an extract from the databases containing information relating to the Commission's staff. The reasons for refusal put forward by the Commission were that the application was outside the scope of Regulation No 1049/2001 on the ground that, in this case, it was not an application for access to an existing document held by the institution, within the meaning of that regulation.

In support of her action, the applicant relies on two pleas in law. The first alleges infringement of Article 3(a) of Regulation No 1049/2001 on the ground that, in the contested decision, the Commission excludes a database from the meaning of 'document'. The applicant claims that the Commission made a manifest error of assessment by making such exclusion which is not provided for by the regulation and goes against the broad interpretation which should be given, in the applicant's submission, to the meaning of 'document' in Regulation No 1049/2001.

The second plea in law alleges infringement of Article 4 of Regulation No 1049/2001 and of the duty to state reasons on the ground that the Commission did not state in the contested decision how the disclosure of the document sought would undermine a public or private interest so that it could be refused on the basis of one of the exceptions in Article 4 of the regulation.

The applicant claims that the Commission's conduct, which she alleges to be unlawful because contrary to Regulation No 049/2001, is capable of giving rise to its non-contractual liability under the second paragraph of Article 288 EC. She therefore claims compensation for the losses, both pecuniary and non-pecuniary, which the Commission's conduct has caused her.

Cases pending before the EU Court of Justice

1. Sweden and Turco v Council (Cases C-39/05 P and C-52/05 P)

Subject-matter: appeal against judgment in Case T-84/03, Turco v Council, concerning access to Council legal service opinion on draft legislation

Status: no hearing yet

Judgment appealed against: Case T-84/03

2. Sweden v Commission (Case C-64/05 P)

Subject-matter: appeal against judgment in Case T-168/02, IFAW v Commission, concerning the 'Member State veto' on access to Member States' documents

Status: hearing held 16 Jan. 2007

Judgment appealed against: Case T-168/02

3. Heinrich (Case C-345/06)

Subject-matter: reference from national court concerning interpretation of access to documents Regulation

Status: no hearing yet

Questions referred:

Do documents within the meaning of Article 2(3) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents include acts which are required to be published in the Official Journal of the European Union pursuant to Article 254 EC?

Do regulations or parts thereof have binding force if, contrary to the requirement of Article 254(2) EC, they are not published in the
Official Journal of the European Union?

4. Commission v Technische Glaswerke Ilmenau (Case C-139/07 P)

Subject-matter: appeal against judgment in Case T-237/02

Status: no hearing yet

Judgment appealed against: Case T-237/02