EN Official Journal of the European Union C 106/43

Action brought on 8 March 2005 by SpA Navigazione Libera del Golfo against the Commission of the European Communities

(Case T-109/05)

(2005/C 106/84)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 8 March 2005 by SpA Navigazione Libera del Golfo (NLG), established in Naples, represented by S. Ravenna, lawyer, for annulment of the decision adopted on 3 February 2005, (1) under Article 8 of 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, (2) a decision which upholds the refusal to grant access to the information requested by the applicant.

The information requested by the applicant, of which the Commission refused disclosure, relates to the extra costs incurred by the passenger transport services between the Port of Naples Beverello and the island of Capri. Those services are operated by the public undertaking Caremar SpA, established in Naples, under a public service obligation, for which it receives annual payments (State aid) authorised by the Commission by decision of 16 March 2004, as provided for in Article 88(2) of the EC Treaty.

The applicant claims that the Court should:

1. annul the Commission decision of 3 February 2005;

2. order the Commission to pay the costs.

Pleas in law and main arguments

When it informed the applicant of the decision of 16 March 2004, allegedly on the grounds of protection of the commercial interests of Caremar the Commission did not, when giving the reasons for its decision, disclose information on the operating costs of Caremar's commercial activities, in particular the extra costs incurred by the connections to the island of Capri carried out under public service obligations and the annual payments made for that service by the Region of Campania.

The applicant has always operated similar passenger transport services on the same Naples Beverello-Capri route under public service obligations without, however, receiving any subsidy to offset the extra costs inherent in those obligations and, as a result, it regards that treatment as discriminatory.

In the light of the applicant's legal interest in bringing proceedings and the need to acquire full knowledge of the Caremar decision within the shortest time for the purposes of protecting its own interests and of any consequent challenge to the decision of 16 March 2004, the applicant asked for access to information concerning the extra costs of the public service obligations borne by Caremar for the connections to the island of Capri and the amount of the aid relating thereto.

By decision of 3 February 2005 the Commission refused access to the information requested by NLG, essentially pleading grounds of protection of the commercial interests of Caremar.

Challenging that decision, NLG submits that the Commission committed, inter alia, a serious error of law by failing to have regard to the provisions of its Communication C(2003) 4582 of 1 December 2003 on professional secrecy in State aid decisions, (3) which expressly lays down in paragraph 17 the requirements of transparency and of disclosure of information regarding the costs of public services inasmuch as it is not considered confidential or protected as a business secret.

(1) Decision not published.

(2) OJ L 145 of 31.05.2001, p. 43.

(3) OJ C 297 of 09.12.2003, p. 6.