# C_2016038EN.01003501.xml

| 1.2.2016 | EN | Official Journal of the European Union | C 38/35 |
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1.2.2016

EN

Official Journal of the European Union

C 38/35

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Appeal brought on 15 November 2015 by Ana Pérez Gutiérrez against the judgment of the General Court (Third Chamber) delivered on 9 September 2015 in Case T-168/14 Pérez Gutierrez v Commission

(Case C-604/15 P)

(2016/C 038/48)

Language of the case: Spanish

Parties

Parties

Appellant: Ana Pérez Gutiérrez (represented by: J. Soler Puebla, abogado)

Appellant:

Other party to the proceedings: European Commission

Other party to the proceedings:

Form of order sought

Form of order sought

The appellant claims that the Court should set aside the judgment of the General Court of 9 September and continue the proceedings, giving a new judgment in which it:

| 1. | Declares that when the Commission, using without consent the image of Patrick Johannes Jacquemyn, included his photograph in the picture library of health warnings for tobacco products in the European Union, it infringed the right to honour, to personal and family privacy and to one’s own image. |
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1.

Declares that when the Commission, using without consent the image of Patrick Johannes Jacquemyn, included his photograph in the picture library of health warnings for tobacco products in the European Union, it infringed the right to honour, to personal and family privacy and to one’s own image.

| 2. | Orders the respondent to pay the appellant the sum of EUR 181 104 for loss of earnings. |
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2.

Orders the respondent to pay the appellant the sum of EUR 181 104 for loss of earnings.

| 3. | Orders the respondent to pay the appellant the sum of one euro cent (EUR 0,01) per tobacco packet or product bearing the picture of Patrick Jacquemyn, the total amount — presently twenty seven million, five hundred and eighty-eight thousand and five hundred and twenty-four euros (EUR 27 588 524) — to be determined upon enforcement of the judgment. |
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3.

Orders the respondent to pay the appellant the sum of one euro cent (EUR 0,01) per tobacco packet or product bearing the picture of Patrick Jacquemyn, the total amount — presently twenty seven million, five hundred and eighty-eight thousand and five hundred and twenty-four euros (EUR 27 588 524) — to be determined upon enforcement of the judgment.

| 4. | Order the respondent to pay the appellant compensation for the profit derived from the unlawful use of the picture of Patrick Jacquemyn, amounting to EUR 13 790 000 in Spain, the place of residence of the appellant and of Patrick Jacquemyn. |
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4.

Order the respondent to pay the appellant compensation for the profit derived from the unlawful use of the picture of Patrick Jacquemyn, amounting to EUR 13 790 000 in Spain, the place of residence of the appellant and of Patrick Jacquemyn.

Pleas in law and main arguments

Pleas in law and main arguments

Discrepancies between the conduct of the hearing and the contents of the judgment

Discrepancies between the conduct of the hearing and the contents of the judgment

The appellant has never accepted the European Commission’s statements, but has merely agreed to the production of the unredacted documents out of time, which was not made clear in the judgment.

Infringement of Article 15.3 of the Treaty on the Functioning of the European Union

Infringement of Article 15.3 of the Treaty on the Functioning of the European Union

Breach of the principle of the European standard of EU citizens’ access to the documentation used by an EU body in adopting its decisions. The appellant has repeatedly requested documentation on the image rights for the photograph at issue which was never provided to her.

Lack and insufficiency of evidence entailing a failure by the General Court to conduct preparatory inquiries into the matter

Lack and insufficiency of evidence entailing a failure by the General Court to conduct preparatory inquiries into the matter

The evidence requested by the appellant was not provided, while the evidence produced by the respondent provided not the slightest shred of evidence, for practically all the information was redacted.

Breach of the principles of audi alteram partem and equality of arms

Breach of the principles of audi alteram partem and equality of arms

The documents produced by the European Commission were redacted and contained no data; they prevented any adversarial analysis by the applicant, with the result that the appellant does not consider them to be valid evidence or that they could be classified as evidence by the General Court.

Distortion of facts

Distortion of facts

The redacted documents containing no data led the General Court to believe that the alleged taking of the photographs was in principle lawful, and that presumption could not be rebutted by the appellant because all conclusive evidence in the documents was missing. The redaction of the data in the documents was carried out on the basis of an incorrect application of the principles of data protection under the 1995 directive. (1)

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(1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

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