# C_2011355EN.01002601.xml

| 3.12.2011 | EN | Official Journal of the European Union | C 355/26 |
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3.12.2011

EN

Official Journal of the European Union

C 355/26

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Action brought on 10 October 2011 — Schenker v Commission

(Case T-534/11)

2011/C 355/47

Language of the case: German

Parties

Parties

Applicant: Schenker AG (Essen, Germany) (represented by: C. Von Hammerstein, B. Beckmann and C. Munding, lawyers)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Annul the contested decision of the defendant of 3 August 2011 (SG.B/MKu/psi-Ares[2001]); |
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Annul the contested decision of the defendant of 3 August 2011 (SG.B/MKu/psi-Ares[2001]);

| — | Order the defendant to bear the costs. |
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Order the defendant to bear the costs.

Pleas in law and main arguments

Pleas in law and main arguments

In support of the action, the applicant relies in essence on four pleas in law.

| 1. | First plea: lack of specific and case-by-case examination of the documents
  First, the Commission has not carried out a specific and case-by-case examination of the documents named in the application for access. According to the applicant, the Commission should not have been allowed to rely on a general presumption of the grounds for refusal of access. By doing so it disregarded the principles developed in the case-law concerning access to documents and the importance of the fundamental right of access to documents laid down in Article 42 of the Charter of Fundamental Rights. |
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1.

First plea: lack of specific and case-by-case examination of the documents

First, the Commission has not carried out a specific and case-by-case examination of the documents named in the application for access. According to the applicant, the Commission should not have been allowed to rely on a general presumption of the grounds for refusal of access. By doing so it disregarded the principles developed in the case-law concerning access to documents and the importance of the fundamental right of access to documents laid down in Article 42 of the Charter of Fundamental Rights.

| 2. | Second plea: manifest errors in the application of the exceptions laid down in Regulation (EC) No 1049/2001 (1)

  Second, the Commission made manifest errors when applying the exceptions laid down in Regulation No 1049/2001. By applying the exceptions too broadly, the Commission disregarded the principles developed in the case-law concerning access to documents and the importance of the fundamental right of access to documents laid down in Article 42 of the Charter of Fundamental Rights.
  In the light of fundamental rights and of the principle of transparency and the rule of law, the applicant should be granted a right of access to the documents which is as extensive as possible. |
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2.

Second plea: manifest errors in the application of the exceptions laid down in Regulation (EC) No 1049/2001 (1)

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Second, the Commission made manifest errors when applying the exceptions laid down in Regulation No 1049/2001. By applying the exceptions too broadly, the Commission disregarded the principles developed in the case-law concerning access to documents and the importance of the fundamental right of access to documents laid down in Article 42 of the Charter of Fundamental Rights.

In the light of fundamental rights and of the principle of transparency and the rule of law, the applicant should be granted a right of access to the documents which is as extensive as possible.

| 3. | Third plea in law: infringement of the principle of proportionality
  Third, the Commission infringed the principle of proportionality by not weighing the exceptions — approved by it in error — or at least not weighing them objectively, against the public interest in the disclosure of the documents requested. The Commission therefore disregarded the fact that the public interest in the disclosure of the documents clearly outweighed keeping them secret. |
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3.

Third plea in law: infringement of the principle of proportionality

Third, the Commission infringed the principle of proportionality by not weighing the exceptions — approved by it in error — or at least not weighing them objectively, against the public interest in the disclosure of the documents requested. The Commission therefore disregarded the fact that the public interest in the disclosure of the documents clearly outweighed keeping them secret.

| 4. | Fourth plea in law: infringement of Article 42 of the Charter of Fundamental Rights
  Fourth, the Commission disregarded the fact that the applicant in any case enjoys a right — guaranteed under Article 42 of the Charter of Fundamental Rights — to at least partial access to the documents applied for. The Commission deprives the fundamental right of access to documents and Regulation No 1049/2011 of practical effect by refusing all access whatsoever. |
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4.

Fourth plea in law: infringement of Article 42 of the Charter of Fundamental Rights

Fourth, the Commission disregarded the fact that the applicant in any case enjoys a right — guaranteed under Article 42 of the Charter of Fundamental Rights — to at least partial access to the documents applied for. The Commission deprives the fundamental right of access to documents and Regulation No 1049/2011 of practical effect by refusing all access whatsoever.

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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.

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