# C_2023261EN.01003801.xml

| 24.7.2023 | EN | Official Journal of the European Union | C 261/38 |
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24.7.2023

EN

Official Journal of the European Union

C 261/38

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Action brought on 15 May 2023 — Acampora and Others v Commission

(Case T-261/23)

(2023/C 261/53)

Language of the case: Italian

Parties

Applicants: Roberto Acampora (Naples, Italy) and 172 others (represented by: E. Iorio, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

| — | annul the express decision of the European Commission of 27 January 2023 (EMPL.C.1/BPM/kt (2023) 633265) refusing the request for access Gestdem No 2023/0263 to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic, and to the Italian Republic’s subsequent response in infringement proceedings 2016/4081, relating to the compatibility with EU law of the national law governing the services provided by magistrati onorari (honorary judges) and to Italy’s response; |
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annul the express decision of the European Commission of 27 January 2023 (EMPL.C.1/BPM/kt (2023) 633265) refusing the request for access Gestdem No 2023/0263 to the supplementary letter of formal notice of 15 July 2022, issued by the European Commission to the Italian Republic, and to the Italian Republic’s subsequent response in infringement proceedings 2016/4081, relating to the compatibility with EU law of the national law governing the services provided by magistrati onorari (honorary judges) and to Italy’s response;

| — | annul the implicit decision of the European Commission of 15 March 2023 refusing the request to confirm the explicit decision by communicating that it was not in a position, for administrative reasons, to respond to the request for confirmation or to state if and when an express response would be given; |
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annul the implicit decision of the European Commission of 15 March 2023 refusing the request to confirm the explicit decision by communicating that it was not in a position, for administrative reasons, to respond to the request for confirmation or to state if and when an express response would be given;

| — | 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 applicants rely on three pleas in law.

| 1. | First plea in law, relating to the admissibility of the action. The applicants are exercising a general right of EU citizens to transparency of the work of the institutions in order to obtain the necessary information, according to the right guaranteed to all EU citizens by Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. (1) Knowledge of the letter of formal notice and Italy’s response would give the applicants the practical benefit of exercising their right to information knowing, after almost seven years, the reasons why no reasoned opinion has yet been issued by the Commission. The Commission first issued an express decision refusing access on 27 January 2023 and an implicit refusal decision on 15 March 2023, in which it stated that it is not in a position, for administrative reasons, to respond to the request for confirmation of the decision of 27 January 2023 and that it does not know if or when it will respond. Applicants are entitled to bring an action before the Court against implicit decisions involving implied refusal under Article 8(3) of Regulation (EC) No 1049/2001. |
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1.

First plea in law, relating to the admissibility of the action. The applicants are exercising a general right of EU citizens to transparency of the work of the institutions in order to obtain the necessary information, according to the right guaranteed to all EU citizens by Regulation (EC) 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents. (1) Knowledge of the letter of formal notice and Italy’s response would give the applicants the practical benefit of exercising their right to information knowing, after almost seven years, the reasons why no reasoned opinion has yet been issued by the Commission. The Commission first issued an express decision refusing access on 27 January 2023 and an implicit refusal decision on 15 March 2023, in which it stated that it is not in a position, for administrative reasons, to respond to the request for confirmation of the decision of 27 January 2023 and that it does not know if or when it will respond. Applicants are entitled to bring an action before the Court against implicit decisions involving implied refusal under Article 8(3) of Regulation (EC) No 1049/2001.

| 2. | Second plea in law, alleging infringement of the principles with respect to access to 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) No 1049/2001 — the existence of a general interest in accessing the supplementary letter of formal notice of 15 July 2022. |
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Second plea in law, alleging infringement of the principles with respect to access to 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) No 1049/2001 — the existence of a general interest in accessing the supplementary letter of formal notice of 15 July 2022.

| 3. | Third plea in law, alleging non-compliance with the obligation to state reasons for the measures adopted by the European institutions. 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 why disclosure of the supplementary letter of formal notice of 15 July 2022 and Italy’s response would undermine the aforementioned ‘climate of trust’; it replied with a form setting out few and meagre items of information which would allow the applicants and the Court to carry out a genuine review of the legality of reasons for the refusal, insufficient reasons having been given for that refusal; that is particularly true as regards the reasons that would have prevented at least 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 express decision of 27 January 2023 containing the contested refusal of access does not set out clearly the reasons on which it is based, 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 adopted measure imposes the limitation of a right recognised by the Treaty in respect of the applicants, consisting in a restriction of such rights, the reasons must be somewhat stricter, more precise and accurate so that the choices made are clearly understandable. The implicit decision of 15 March 2023 is entirely without a statement of reasons and defers sine die the Commission’s decision.
  The refusal of access to the documents referred to is all the more unjustified in the light of the fact that the supplementary letter of formal notice of 15 July 2022 was published informally on a Facebook page of which thousands of magistrati onorari (honorary judges) are members. |
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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. 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 why disclosure of the supplementary letter of formal notice of 15 July 2022 and Italy’s response would undermine the aforementioned ‘climate of trust’; it replied with a form setting out few and meagre items of information which would allow the applicants and the Court to carry out a genuine review of the legality of reasons for the refusal, insufficient reasons having been given for that refusal; that is particularly true as regards the reasons that would have prevented at least 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 express decision of 27 January 2023 containing the contested refusal of access does not set out clearly the reasons on which it is based, 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 adopted measure imposes the limitation of a right recognised by the Treaty in respect of the applicants, consisting in a restriction of such rights, the reasons must be somewhat stricter, more precise and accurate so that the choices made are clearly understandable. The implicit decision of 15 March 2023 is entirely without a statement of reasons and defers sine die the Commission’s decision.

The refusal of access to the documents referred to is all the more unjustified in the light of the fact that the supplementary letter of formal notice of 15 July 2022 was published informally on a Facebook page of which thousands of magistrati onorari (honorary judges) are members.

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

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