EN Official Journal of the European Union C 274/19

Appeal brought on 10 August 2010 the European Commission against the judgment of the General Court delivered on 9 June 2010 in Case T-237/05 Éditions Odile SAS v Commission

(Case C-404/10 P)

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2010/C 274/30

Language of the case: French

Parties

Appellant: European Commission (represented by: B. Smulders, O. Beynet, and P. Costa de Oliveira, acting as Agents)

Other party to the proceedings: Éditions Odile Jacob SAS, Lagardère SCA

Forms of order sought

— Set aside the judgment of the General Court of 9 June 2010, Case T-237/05, Éditions Odile Jacob SAS v Commission, in that it annuls the Commission Decision of 7 April 2005, refusing access to documents concerning the merger control case NO COMP/M.2978;

— Dismiss the respondent’s application for annulment brought before the General Court and give a final ruling on the questions which form the subject-matter of the present appeal;

— Order the appellant to pay the costs incurred by the Commission in respect of both the proceedings at first instance and the present appeal.

Pleas in law and main arguments

The Commission bases its appeal on two pleas in law.

By its first plea in law, the appellant claims that the General Court misinterpreted Regulation (EC) No 1049/2001 (1) by failing to take account of, for the purposes of the interpretation of the exceptions to the right of access to documents, the provisions of Council Regulation No 4064/89 (2) on concentrations between undertakings. The general rules on rights of access should take account of the specific features of competition proceedings and the confidentiality guarantees offered to undertakings concerned by a concentration.

By its second plea in law, which comprises five parts, the Commission complains of misinterpretation of, by the General Court, of Article 4(2) and (3) of the above-mentioned Regulation No 1049/2001, in so far as it assumed that the appellant had an obligation to carry out a concrete, individual examination of each of the documents covered by a request for access, even in cases manifestly covered by an exception (first part). The Commission also disputes the restrictive interpretation made by the General Court of the exception regarding the protection of the purpose of inspections and audit investigations, according to which that exception cannot apply after the adoption by the Commission of its merger control decision closing the administrative procedure (second part). The appellant also claims that the General Court made a manifest error of law in requiring, first, that a concrete and individual examination of the documents be carried out by the Commission, with a description of the contents, second, by requiring consultation with third parties, despite the manifest nature of the application of the exception concerning the protection of commercial interests (third part). In addition, the Commission maintained that the General Court made an error of law made in so far as it annulled its decision to refuse access to internal documents, where those documents are within the scope of the exception “the decision-making process” mentioned in Article 4(3), second subparagraph (fourth part). Finally, the appellant claims that there was a misinterpretation of Article 4(6) of the above-mentioned Regulation (fifth part).

(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 2001L 14, p. 45)

(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L395, p. 1)