# C_2012065EN.01001701.xml

| 3.3.2012 | EN | Official Journal of the European Union | C 65/17 |
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3.3.2012

EN

Official Journal of the European Union

C 65/17

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Action brought on 27 December 2011 — Spirlea and Spirlea v Commission

(Case T-669/11)

2012/C 65/32

Language of the case: German

Parties

Parties

Applicants: Darius Nicolai Spirlea (Cappezzano Piamore, Italy) and Mihaela Spirlea (Cappezzano Piamore) (represented by: V. Foerster and T. Pahl, lawyers)

Applicants:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Accept the present application made on the basis of Article 263 TFEU; |
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Accept the present application made on the basis of Article 263 TFEU;

| — | declare the application admissible; and |
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declare the application admissible; and

| — | declare it well-founded, and accordingly find that the Commission has committed substantial procedural irregularities and other substantive errors of law; |
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declare it well-founded, and accordingly find that the Commission has committed substantial procedural irregularities and other substantive errors of law;

| — | on that basis annul the decision of the Commission’s Secretariat-General of 9 November 2011 (SG.B.5/MKu/rc-Ares(2011)); |
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on that basis annul the decision of the Commission’s Secretariat-General of 9 November 2011 (SG.B.5/MKu/rc-Ares(2011));

| — | order the European Commission to pay the costs. |
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order the European Commission to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicants rely on nine pleas in law.

| 1. | Failure to adhere to the order of assessment in Regulation (EC) No 1049/2001 (1)

  The applicants submit that the defendant failed to fulfil its assessment obligation under Article 4(4) of Regulation No 1049/2001 and to adhere to the mandatory order of assessment provided for by that regulation. |
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1.

Failure to adhere to the order of assessment in Regulation (EC) No 1049/2001 (1)

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The applicants submit that the defendant failed to fulfil its assessment obligation under Article 4(4) of Regulation No 1049/2001 and to adhere to the mandatory order of assessment provided for by that regulation.

| 2. | Breach of the principle of equality of arms
  The applicants submit that the Member State concerned was informed of the substance of the applicants’ reasons for requiring access to the document requested, but that, by contrast, the contested decision contains only rudimentary statements regarding the substance of the German authorities’ response. |
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2.

Breach of the principle of equality of arms

The applicants submit that the Member State concerned was informed of the substance of the applicants’ reasons for requiring access to the document requested, but that, by contrast, the contested decision contains only rudimentary statements regarding the substance of the German authorities’ response.

| 3. | Breach of the applicants’ right to be heard
  The applicants submit that the defendant withheld the substance of the German authorities’ answer from them and that the applicants were unable to comment on the merits of the Member State’s opposition having regard to the requisite exceptions under Article 4(1) and (2) of Regulation No 1049/2001. |
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3.

Breach of the applicants’ right to be heard

The applicants submit that the defendant withheld the substance of the German authorities’ answer from them and that the applicants were unable to comment on the merits of the Member State’s opposition having regard to the requisite exceptions under Article 4(1) and (2) of Regulation No 1049/2001.

| 4. | Non-rejection of the second exception
  In the applicants’ view, the defendant failed in its duty to rule out the second exception claimed by the German authorities (Article 4(1)(a), third indent, of Regulation No 1049/2001). |
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4.

Non-rejection of the second exception

In the applicants’ view, the defendant failed in its duty to rule out the second exception claimed by the German authorities (Article 4(1)(a), third indent, of Regulation No 1049/2001).

| 5. | Failure to identify the document to which the applicants seek access
  In the applicants’ view, the defendant failed in its duty to describe in precise terms — with regard to the number of pages and the author — the document to which access was refused. |
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5.

Failure to identify the document to which the applicants seek access

In the applicants’ view, the defendant failed in its duty to describe in precise terms — with regard to the number of pages and the author — the document to which access was refused.

| 6. | Breach of the right to be heard in the context of the consultation procedure
  The applicants submit that the defendant’s failure to make the request for consultation issued to the German authorities available to the applicants is contrary to recital 2 in the preamble to Regulation No 1049/2001. The applicants also object to the fact that the German authorities’ answer was not made available to them. |
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6.

Breach of the right to be heard in the context of the consultation procedure

The applicants submit that the defendant’s failure to make the request for consultation issued to the German authorities available to the applicants is contrary to recital 2 in the preamble to Regulation No 1049/2001. The applicants also object to the fact that the German authorities’ answer was not made available to them.

| 7. | Unlawful application of Article 4(5) of Regulation No 1049/2001
  The applicants object to the fact that the Commission extended the scope of application of Article 4(5) of Regulation No 1049/2001 to ‘German authorities’ and, moreover, made manifest errors of assessment in its examination of and reasoning as regards the circumstances provided for under Article 4(5) of Regulation No 1049/2001. |
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7.

Unlawful application of Article 4(5) of Regulation No 1049/2001

The applicants object to the fact that the Commission extended the scope of application of Article 4(5) of Regulation No 1049/2001 to ‘German authorities’ and, moreover, made manifest errors of assessment in its examination of and reasoning as regards the circumstances provided for under Article 4(5) of Regulation No 1049/2001.

| 8. | No specific consideration of Article 4(6) of Regulation No 1049/2001
  It is claimed that the Commission disregarded the right of partial access to the documents under Article 4(6) of Regulation No 1049/2001, in that the document as a whole was brought within the scope of Article 4(2) of that regulation. |
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8.

No specific consideration of Article 4(6) of Regulation No 1049/2001

It is claimed that the Commission disregarded the right of partial access to the documents under Article 4(6) of Regulation No 1049/2001, in that the document as a whole was brought within the scope of Article 4(2) of that regulation.

| 9. | Overriding public interest in disclosure (Article 4(2) of Regulation No 1049/2001) |
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9.

Overriding public interest in disclosure (Article 4(2) of Regulation No 1049/2001)

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(1)  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 (OJ 2001 L 145, p. 43).

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