# C_2005205EN.01003202.xml

| 20.8.2005 | EN | Official Journal of the European Union | C 205/32 |
| --------- | -- | -------------------------------------- | -------- |

---

Action brought on 17 June 2005 by Editions Odile Jacob SAS against the Commission of the European Communities

(Case T-237/05)

(2005/C 205/59)

Language of the case: French

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 June 2005 by Editions Odile Jacob SAS, established in Paris, represented by W. van Weert and O. Fréget, lawyers.

The applicant claims that the Court should:

| 1. | annul the contested decision, in which the Commission refused to send to the applicant documents which it had requested, since:
—
the Commission did not specifically and individually examine each of the documents to which the applicant was seeking access; —
the Commission wrongly applied the exceptions under Article 4(2) of Regulation No 1049/2001; —
the Commission infringed in any event the applicant's right to partial access to the documents requested; —
the Commission infringed the principle of proportionality by not balancing application of the exceptions under Article 4(2) of Regulation No 1049/2001 with the higher interest justifying the disclosure of the documents. | — | the Commission did not specifically and individually examine each of the documents to which the applicant was seeking access; | — | the Commission wrongly applied the exceptions under Article 4(2) of Regulation No 1049/2001; | — | the Commission infringed in any event the applicant's right to partial access to the documents requested; | — | the Commission infringed the principle of proportionality by not balancing application of the exceptions under Article 4(2) of Regulation No 1049/2001 with the higher interest justifying the disclosure of the documents. |
| -- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- | - | ----------------------------------------------------------------------------------------------------------------------------- | - | -------------------------------------------------------------------------------------------- | - | --------------------------------------------------------------------------------------------------------- | - | --------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |
| — | the Commission did not specifically and individually examine each of the documents to which the applicant was seeking access; | | | | | | | | |
| — | the Commission wrongly applied the exceptions under Article 4(2) of Regulation No 1049/2001; | | | | | | | | |
| — | the Commission infringed in any event the applicant's right to partial access to the documents requested; | | | | | | | | |
| — | the Commission infringed the principle of proportionality by not balancing application of the exceptions under Article 4(2) of Regulation No 1049/2001 with the higher interest justifying the disclosure of the documents. | | | | | | | | |

| 2. | order the Commission to pay the costs. |
| -- | -------------------------------------- |

Pleas in law and main arguments

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.

---

( 1 )  OJ C 262 of 23.10.04, p. 33

( 2 )  OJ C 45 of 19.02.05, p. 24

---