# C_2022432EN.01003601.xml

| 14.11.2022 | EN | Official Journal of the European Union | C 432/36 |
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14.11.2022

EN

Official Journal of the European Union

C 432/36

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Action brought on 1 October 2022 — Primicerj v Commission

(Case T-612/22)

(2022/C 432/44)

Language of the case: Italian

Parties

Applicant: Paola Primicerj (Rome, Italy) (represented by: E. Iorio, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul the decision of the European Commission of 2 August 2022 (EMPL.C.1/BPM/kt (2022)5785472) which refuses the request for access (Gestdem No 2022/4090) to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic in the infringement proceedings 2016/4081, relating to the compatibility with EU law of the national law governing the services provided by magistrati onorari (honorary judges); |
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annul the decision of the European Commission of 2 August 2022 (EMPL.C.1/BPM/kt (2022)5785472) which refuses the request for access (Gestdem No 2022/4090) to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic in the infringement proceedings 2016/4081, relating to the compatibility with EU law of the national law governing the services provided by magistrati onorari (honorary judges);

| — | order the European Commission to grant the applicant access to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic in the infringement proceedings 2016/4081; |
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order the European Commission to grant the applicant access to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic in the infringement proceedings 2016/4081;

| — | order the European Commission, in the event of opposition, to bear the costs of the proceedings. |
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order the European Commission, in the event of opposition, to bear the costs of the proceedings.

Pleas in law and main arguments

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

| 1. | First plea in law, relating to the admissibility of the action.






  — | It is submitted in that regard that the applicant is acting in the exercise of a general right of EU citizens to transparency of the work of the institutions in order to obtain the necessary information, according to that guaranteed to all EU citizens by Regulation (EC) 1049/2001 (1) 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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1.

First plea in law, relating to the admissibility of the action.

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It is submitted in that regard that the applicant is acting in the exercise of a general right of EU citizens to transparency of the work of the institutions in order to obtain the necessary information, according to that guaranteed to all EU citizens by Regulation (EC) 1049/2001 (1) of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents.

| — | Knowledge of the letter of formal notice would give the applicant, moreover, the practical benefit of exercising her right to information knowing, after more than six years, the reasons for which no reasoned opinion has yet been issued by the Commission. |
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Knowledge of the letter of formal notice would give the applicant, moreover, the practical benefit of exercising her right to information knowing, after more than six years, the reasons for which no reasoned opinion has yet been issued by the Commission.

| 2. | Second plea in law, alleging an infringement of the principles with respect to the access of documents of the EU institutions provided for in the second paragraph of Article 1 of the Treaty on European Union, Article 42 of the Charter of Fundamental Rights of the European Union, and Article 1 and the third indent of Article 4(2) of Regulation (EC) 1049/2001 — the existence of a general interest in accessing the supplementary letter of formal notice of 15 July 2022.






  — | It is submitted in that regard that there exists a general and overriding interest in the right to information, that is, to know of the work of the Commission and of the Italian Republic relating to the independence of the judiciary, an essential condition of the rule of law, with the consequence that the rules of exclusion of the right to access are to be interpreted in a restrictive manner. |
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2.

Second plea in law, alleging an infringement of the principles with respect to the access of documents of the EU institutions provided for in the second paragraph of Article 1 of the Treaty on European Union, Article 42 of the Charter of Fundamental Rights of the European Union, and Article 1 and the third indent of Article 4(2) of Regulation (EC) 1049/2001 — the existence of a general interest in accessing the supplementary letter of formal notice of 15 July 2022.

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It is submitted in that regard that there exists a general and overriding interest in the right to information, that is, to know of the work of the Commission and of the Italian Republic relating to the independence of the judiciary, an essential condition of the rule of law, with the consequence that the rules of exclusion of the right to access are to be interpreted in a restrictive manner.

| — | The absolute inadequacy of the entire system of rules that govern the office of the magistratura onoraria (honorary judges) and in particular the giudici onorari di pace (magistrates) has, it is argued, already been noted by the Court of Justice of the European Union by its judgments of 16 July 2020 and 7 April 2022, with an infringement of the principle of conditionality. |
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The absolute inadequacy of the entire system of rules that govern the office of the magistratura onoraria (honorary judges) and in particular the giudici onorari di pace (magistrates) has, it is argued, already been noted by the Court of Justice of the European Union by its judgments of 16 July 2020 and 7 April 2022, with an infringement of the principle of conditionality.

| — | It is contrary to the rules on transparency and disclosure of documents of the EU institutions to deny that there is an overriding general interest to know not the confidential documents and the exchange of communication between the Commission and the Italian Republic but rather the objections raised by the letter of formal notice of 15 July 2022, which has been highlighted by the national press and been the subject of summary communication issued by the European Commission itself. |
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It is contrary to the rules on transparency and disclosure of documents of the EU institutions to deny that there is an overriding general interest to know not the confidential documents and the exchange of communication between the Commission and the Italian Republic but rather the objections raised by the letter of formal notice of 15 July 2022, which has been highlighted by the national press and been the subject of summary communication issued by the European Commission itself.

| 3. | Third plea in law, alleging non-compliance with the obligation to state reasons for the measures adopted by the European institutions.






  — | It is submitted in that regard that by examining the reasons for the measures, all the interested parties can be placed in a position to know and understand the methods by which the institutions implement the Treaty, since the obligation to state reasons has both a review function and a participatory function, in so far as in making the assessments made prior to the adoption of the institutions’ measures clearly understandable, it contributes to alleviating the democratic deficit often levelled against the European Union. |
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3.

Third plea in law, alleging non-compliance with the obligation to state reasons for the measures adopted by the European institutions.

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It is submitted in that regard that by examining the reasons for the measures, all the interested parties can be placed in a position to know and understand the methods by which the institutions implement the Treaty, since the obligation to state reasons has both a review function and a participatory function, in so far as in making the assessments made prior to the adoption of the institutions’ measures clearly understandable, it contributes to alleviating the democratic deficit often levelled against the European Union.

| — | The principles regarding the statement of reasons have not been complied with, since the Commission submitted only wholly generic and formulaic claims for the reasons for which the disclosure of the supplementary letter of formal notice of 15 July 2022 would undermine the aforementioned ‘climate of trust’; it replied with a form in which few and scarce claims were inserted which would allow the applicant and the Court a genuine review of the legality of reasons for the refusal, that refusal being insufficiently justified; that is particularly true as regards the reasons that would have prevented at least a partial disclosure of the document, already to some extent disseminated with the infringement package of 15 July 2022, albeit not in such a way as to enable understanding of the content and the reasons for the additional objections made in relation to Italy. |
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The principles regarding the statement of reasons have not been complied with, since the Commission submitted only wholly generic and formulaic claims for the reasons for which the disclosure of the supplementary letter of formal notice of 15 July 2022 would undermine the aforementioned ‘climate of trust’; it replied with a form in which few and scarce claims were inserted which would allow the applicant and the Court a genuine review of the legality of reasons for the refusal, that refusal being insufficiently justified; that is particularly true as regards the reasons that would have prevented at least a partial disclosure of the document, already to some extent disseminated with the infringement package of 15 July 2022, albeit not in such a way as to enable understanding of the content and the reasons for the additional objections made in relation to Italy.

| — | The contested refusal of access does not clearly indicate the grounds on which it is founded, their legal basis, the factual basis and the way in which the different relevant interests have been taken into consideration, because the refusal affects the exercise of rights pursuant to Articles 17 and 47 of the Charter of Fundamental Rights, with the consequence that since the measure adopted imposes the limitation of a right recognised to the applicant by the Treaty, consisting in a restriction of such rights, the reasons must be somewhat stricter, more precise and accurate in order that the choices made are clearly understandable. |
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The contested refusal of access does not clearly indicate the grounds on which it is founded, their legal basis, the factual basis and the way in which the different relevant interests have been taken into consideration, because the refusal affects the exercise of rights pursuant to Articles 17 and 47 of the Charter of Fundamental Rights, with the consequence that since the measure adopted imposes the limitation of a right recognised to the applicant by the Treaty, consisting in a restriction of such rights, the reasons must be somewhat stricter, more precise and accurate in order that the choices made are clearly understandable.

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

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