# C_2004251EN.01001902.xml

| 9.10.2004 | EN | Official Journal of the European Union | C 251/19 |
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9.10.2004

EN

Official Journal of the European Union

C 251/19

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Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf against the Commission of the European Communities

(Case T-237/04)

(2004/C 251/37)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 14 June 2004 by Ultradent Products Inc., South Jordan, Utah, USA and Michael J. S. Renouf, Brussels, Belguim, represented by Mr S. Crosby and Mr C. Bryant, Solicitors.

The applicant claims that the Court should:

| — | Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents identified in the administrative procedure, following the applicants' three applications, all dated 27 October 2003, for access to documents connected to the classification of tooth-bleaching products; |
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Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents identified in the administrative procedure, following the applicants' three applications, all dated 27 October 2003, for access to documents connected to the classification of tooth-bleaching products;

| — | Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents which must, given the circumstances, be presumed to exist; |
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Annul the decision of the Commission of 5 April 2004 to refuse to give access to the documents which must, given the circumstances, be presumed to exist;

| — | Order the defendant to pay the applicants' costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance. |
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Order the defendant to pay the applicants' costs pursuant to Article 87 of the Rules of Procedure of the Court of First Instance.

Pleas in law and main arguments:

By three letters dated 27 October 2003 the second applicant presented to the Commission three requests for access to documents connected to the question of whether tooth-bleaching products should be classified as cosmetic products or as medical devices. More particularly, the second applicant requested access to documents relating to a complaint made on behalf of the first applicant to the Commission contesting the classification of such products by the United Kingdom Authorities, to documents relating to the preparation of the answer by Commissioner Borino to a written question to the Commission on such products and finally to all documents of the Commission relating to the question of the classification of such products. At the same time the second applicant, who is a solicitor, declared in his application that he was acting on behalf of the first applicant.

Confirmatory applications were filed on 16 December 2003. On 17 December 2003 the Commission replied to the initial applications and the applicants filed a further confirmatory application on 7 January 2004 which purported to withdraw the three previous confirmatory applications of 16 December. The Commission replied to the application of 7 January 2004 by a letter dated 5 April 2004. Enclosed with this letter were a number of documents.

The applicants contend that the administrative procedure revealed that, apart from the documents disclosed to the applicants by the letter of 5 April 2004, a number of documents on the matters in question certainly exist and other documents may also be presumed to exist. According to the applicants all these documents are within the scope of the initial application and within the possession of the Commission, but have not been disclosed to the applicants. On this basis the applicants consider the letter of 5 April 2004 as a decision to refuse access to all these documents, and request its annulment. In support of their application they invoke a violation of Article 8 of Regulation 1049/2001 (1) Official Journal L 145, 31/05/2001 p. 43-48 and of this regulation in general. They further submit that the Commission failed to give reasons for not granting access to the documents that certainly exist, nor has it invoked any exceptions to the right of access in order to justify its refusal.

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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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