# C_2007095EN.01002603.xml

| 28.4.2007 | EN | Official Journal of the European Union | C 95/26 |
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28.4.2007

EN

Official Journal of the European Union

C 95/26

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Appeal brought on 13 February 2007 against the judgment of the Court of First Instance (Second Chamber) delivered on 11 December 2006 in Case T-290/05 Friedrich Weber v Commission of the European Communities

(Case C-107/07 P)

(2007/C 95/49)

Language of the case: German

Parties

Appellant: Friedrich Weber (represented by: W. Declair, Rechtsanwalt)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

| — | Set aside the judgment of the Court of First Instance of 11 December 2006 in Case T-290/05 (1); |
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Set aside the judgment of the Court of First Instance of 11 December 2006 in Case T-290/05 (1);

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| — | annul the Commission decision of 27 May 2005. |
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annul the Commission decision of 27 May 2005.

Pleas in law and main arguments

The appellant justifies his appeal against the above judgment as follows.

The Court of First Instance erred in dismissing the application as inadmissible inasmuch as by that application the respondent should be required by the Court to grant access to certain documents. According to the settled case-law of the Court of Justice, the Court does not have such authority to give instructions. In addition, it was observed in the contested decision that the present appellant's amended application could not be construed as meaning that that application implicitly sought annulment of the present respondent's contested decision. It could not be deduced from this that: the appellant, by his amended application, sought not only implicitly, but also explicitly, annulment of the respondent's contested decision. The appellant's amended application is admissible inasmuch as it seeks annulment of the Commission's decision. The finding that the application was inadmissible in its entirety is thus unlawful.

The Court of First Instance observes in its contested judgment that the application contained ‘accusations against German public-law broadcasting bodies and other state bodies. ’The description as such in the observations discredits the appellant's statement of facts in an unacceptable way. The derogatory description of the application as ‘accusations ’shows that the Court failed to examine the extraordinary weight of the allegations and the related infringement of Community law as relevant factors in relation to justifying the application. The Court of First Instance thus disregarded the right to a fair hearing. The way in which the restrained arguments of the appellant were assessed even gives grounds for suspecting bias and for doubts as to a fair hearing.

The impugned judgment contradicts the principles of the Treaty on European Union and the Treaty on establishing the European Community. It disregarded the declared will of the Community, to develop and strengthen democracy and the rule of law as well as human rights and fundamental freedoms. The judgment of the Court fails to recognise the significance of the principle of openness in the framework of the Community's belief in and declared will for democracy. The Court failed to examine the question as to whether the defendant's decision was compatible with the goals of the Community. The impugned judgment thus infringes applicable Community law.

It is not the case that the part of the claim put forward that contained access to the contested Commission document was fully settled. While the defendant confirmed to the Court of First Instance the authenticity of the Commission's letter published in a magazine, the appellant clearly explained, however, that the main issue was not settled by the respondent's confirmation. In support of his application, the appellant argued that the magazine in question is not an organ for the publication of the respondent's public notices.

For all these reasons, the impugned judgment of the Court of First Instance must be set aside.

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(1)  OJ 2006 C 331, p. 42.

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