EN Official Journal of the European Union C 113/35

Action brought on 11 February 2009 — Germany v Commission

(Case T-59/09)

2009/C 113/73

Language of the case: German

Parties

Applicant: Federal Republic of Germany (represented by: M. Lumma and B. Klein)

Defendant: Commission of the European Communities

Form of order sought

— Annul Commission Decision SG.E.3/RG/mbp D(2008)1 0067 of 5 December 2008 granting private applicants access to documents originating from German authorities submitted in proceedings for failure to fulfil obligations No 2005/4569, irrespective of objection raised by the German Government pursuant to Article 2(5) of Regulation No 1049/2001;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant has brought an action against the Commission’s decision of 5 December 2008 to grant private third parties access to documents originating from German authorities submitted in proceedings for failure to fulfil obligations, irrespective of objection raised by the German Government pursuant to Article 2(5) of Regulation No 1049/2001. (1)

In support of its action, the applicant submits that the contested decision infringes Article 4(5) of Regulation No 1049/2001 in conjunction with the principle of loyal cooperation between the Community and the Member States laid down in Article 10 EC.

Article 4(5) of Regulation No 1049/200 allows Member States to make the disclosure of documents originating from their authorities being held by Community institutions subject to their prior agreement. The Commission has no right to conduct its own extensive assessment of the reasons for the refusal to grant access to documents under Articles 4(1) to (3) of Regulation No 1049/2001. In its judgment in Case C-64/05 P Sweden v Commission and Others, (2) the Court of Justice laid down definitive criteria that allow the relevant Community institution to disregard the Member State’s objection and to conduct its own assessment of whether the grounds of refusal as set out in Article 4(1) to (3) of Regulation No 1049/2001 are present: the objection must either provide ‘no reasons at all’ or the reasons must ‘not [be] put forward in terms of’ the grounds of refusal.

Read in conjunction with the principle of loyal cooperation between the Community and the Member States laid down in Article 10 EC, the above means that, as a rule, the Member State has the right to undertake the assessment of whether any of the grounds of refusal listed in Article 4(1) to (3) of Regulation No 1049/2001 apply. The Commission has a right to disregard the refusal to grant access only in exceptional cases, where the explanation offered by the Member State does not fulfil those criteria adequately. A comparison with Article 4(4) of Regulation No 1049/2001 also dictates this. The two criteria laid down in the case-law are essential procedural requirements which, as regards content, must be modelled on the duty to state reasons in Article 253 EC. A judicial review of whether the refusal to grant access to documents falls under Article 4(1) to (3) of Regulation No 1049/2001 is to be undertaken by the Community courts, not the Commission.

In the alternative, the applicant submits that even if the Court were to interpret the judgment in Case C-64/05 P as meaning that objection raised by a Member State pursuant to Article 4(5) of Regulation No 1049/2001 is only binding on the Community institution where it complies with Article 4(1) to (3) of that regulation, the Commission was at most authorised to examine whether the reasons submitted by the Member State contained manifest errors. However, the statement of reasons submitted by Germany could in now way be considered to be manifestly defective.

(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 2001 L 145, p. 43)

(2) Case C-64/05 P Sweden v Commission and Others [2007] ECR I-113839.