# C_2006010EN.01002901.xml

| 14.1.2006 | EN | Official Journal of the European Union | C 10/29 |
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14.1.2006

EN

Official Journal of the European Union

C 10/29

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Action brought on 15 November 2005 — MyTravel/Commission

(Case T-403/05)

(2006/C 10/57)

Language of the case: English

Parties

Applicant(s): MyTravel Group plc (Rochdale, United Kingdom) [represented by: D. Pannick, QC, A. Lewis, Barrister, M. Nicholson, S. Cardell, B. McKenna, Solicitors]

Applicant(s):

Defendant(s): Commission of the European Communities

Defendant(s):

Form of order sought

| — | Annul, in its entirety or in the alternative in such part as the Court may determine, the Commission's decision, contained in two letters to the applicant's counsel dated 5 September 2005 and 12 October 2005, not to grant to the applicant access to the report prepared by the Commission following the judgment of the Court of First Instance, of 6 June 2002, in Case T-342/99, Airtours/Commission, 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 was annulled by the aforementioned judgment; |
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Annul, in its entirety or in the alternative in such part as the Court may determine, the Commission's decision, contained in two letters to the applicant's counsel dated 5 September 2005 and 12 October 2005, not to grant to the applicant access to the report prepared by the Commission following the judgment of the Court of First Instance, of 6 June 2002, in Case T-342/99, Airtours/Commission, 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 was annulled by the aforementioned judgment;

| — | order the Commission to pay the applicant's costs. |
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order the Commission to pay the applicant's costs.

Pleas in law and main arguments

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 1049/2001 (1), 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.

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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.

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(1)  OJ L 145, 31/05/2001, p. 43

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