# C_2004262EN.01005802.xml

| 23.10.2004 | EN | Official Journal of the European Union | C 262/58 |
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23.10.2004

EN

Official Journal of the European Union

C 262/58

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Action brought on 27 August 2004 by Co-Frutta Soc. coop. arl against the Commission of the European Communities

(Case T-355/04)

(2004/C 262/107)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 27 August 2004 by Co-Frutta Soc. coop. arl, represented by Wilma Viscardini and Gabriele Donà, lawyers.

The applicant claims that the Court should:

| — | annul under Article 230 of the EC Treaty the decision of the Commission of the European Communities in the letter of the Director General of DG Agriculture dated 28 April 2004 (AGRI/11451/28.04.2004) rejecting Co-Frutta's initial application for access to documents containing information on traders registered in the Community as importers of bananas (OCM bananas) for the years 1998, 1999 and 2000, together with the implied rejection of Co-Frutta's confirmatory application submitted by letter of 3 May 2004; |
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annul under Article 230 of the EC Treaty the decision of the Commission of the European Communities in the letter of the Director General of DG Agriculture dated 28 April 2004 (AGRI/11451/28.04.2004) rejecting Co-Frutta's initial application for access to documents containing information on traders registered in the Community as importers of bananas (OCM bananas) for the years 1998, 1999 and 2000, together with the implied rejection of Co-Frutta's confirmatory application submitted by letter of 3 May 2004;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments:

In support of its claims, the applicant argues that the refusal of its request for access to documents is unlawful inasmuch as it stems from misapplication by the Commission of the procedural and substantive rules governing the subject-matter. In particular:

| — | the Commission infringed the procedural time-limits laid down in Regulation (EC) No 1049/2001 (1) and Decision 2001/937 (2) and refused access on the basis of belated opposition by certain Member States; |
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the Commission infringed the procedural time-limits laid down in Regulation (EC) No 1049/2001 (1) and Decision 2001/937 (2) and refused access on the basis of belated opposition by certain Member States;

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| — | the measure is manifestly contradictory in so far as the delay was caused by the need to consult the Member States. Yet the Commission itself maintains that, irrespective of the opposition by those Member States, it would in any event have refused access. Thus the Commission is also in breach of the relevant rules which required it to reach an unfettered decision, since it had already made up its mind as to the final decision to be adopted; |
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the measure is manifestly contradictory in so far as the delay was caused by the need to consult the Member States. Yet the Commission itself maintains that, irrespective of the opposition by those Member States, it would in any event have refused access. Thus the Commission is also in breach of the relevant rules which required it to reach an unfettered decision, since it had already made up its mind as to the final decision to be adopted;

| — | the Commission relied on one of the exceptions provided for in Regulation No 1049/2001 to refuse access, without putting forward any ground in that regard; in any event, as to the exception relied on (protection of commercial secrecy under Article 4(2) of Regulation No 1049/2001), the applicant notes that the conditions for the application of that exception do not exist since in the OCM banana sector there cannot be said to be any commercial secrets to be protected, in the terms stated by the Commission; |
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the Commission relied on one of the exceptions provided for in Regulation No 1049/2001 to refuse access, without putting forward any ground in that regard; in any event, as to the exception relied on (protection of commercial secrecy under Article 4(2) of Regulation No 1049/2001), the applicant notes that the conditions for the application of that exception do not exist since in the OCM banana sector there cannot be said to be any commercial secrets to be protected, in the terms stated by the Commission;

| — | the Commission failed to rule in regard to a series of documents mentioned in the applicant's request for access, thereby infringing the principle of sound administration; |
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the Commission failed to rule in regard to a series of documents mentioned in the applicant's request for access, thereby infringing the principle of sound administration;

| — | the Commission did not grant partial access in respect of the documents from the States which did not oppose disclosure. |
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the Commission did not grant partial access in respect of the documents from the States which did not oppose disclosure.

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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 L 145 of 31.5.2001, p. 43).

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(2)  Commission Decision 2001/937/EC, ECSC, Euratom of 5 December 2001 amending its rules of procedure (OJ L 345 of 29.12.2001, p. 94).

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