EN Official Journal of the European Union C 193/29

Action brought on 24 June 2009 — Shell Hellas v Commission

(Case T-245/09)

2009/C 193/47

Language of the case: French

Parties

Applicant: Shell Hellas Oil and Chemical SA (Shell Hellas AE) (Attica, Greece) (represented by: P. Hubert, lawyer)

Defendant: Commission of the European Communities

Form of order sought

— Annul, in its entirety or in part, the implied negative response of the Commission of 16 April 2009 to the request for access to documents held by the Commission (reference GESTDEM 6159/2008) and draw all the appropriate conclusions therefrom with regard to the applicant’s access to the documents requested;

— In the alternative, should the Court consider it a decision, annul, in its entirety or in part, the letter of 15 April 2009 from the Secretariat General of the Commission stating that it is not possible to reply to the applicant’s request for access to the Commission documents (reference GESTEDEM 6159/2008) and draw all the appropriate conclusions therefrom with regard to the applicant’s access to the documents requested;

— Order the Commission to pay all the costs.

Pleas in law and main arguments

By the present action, the applicant seeks annulment of the implied decision of the Commission refusing it access to all the correspondence, relating to the enquiry on the fuel market, between the Commission and the Greek competition authority under Article 11(4) of Regulation No 1/2003. In the alternative, should the Court consider it an express decision of refusal, the applicant seeks annulment of the letter of the Secretariat General which states that the Commission is not in a position to reply to the request made by the applicant for access to the documents.

In support of its claim, the applicant raises three pleas in law.

By the first plea, alleging breach of Article 523 EC, the applicant submits that, since the refusal was implied, the defendant has not, by the very nature of the decision, given reasons which would have enabled the applicant to know why the request was refused.

By the second plea, raised in the alternative, should the Court consider either that the letter of the Secretariat General of the Commission is the decision capable of challenge or that the fresh letter of the Secretariat General of 18 June 2009 gives the true reasons for the implied decision, the applicant submits that the reasons given do not meet the requirements of Article 253 EC and contravene both the letter and the spirit of Regulation No 1049/2001. (1)

By the third plea, alleging breach of Article 255 EC and of Regulation No 1049/2001, the applicant submits that the documents to which access was requested do not fall within the scope of the exceptions to the principle of openness laid down by Regulation No 1049/2001. In that regard, the applicant submits that:

— the Commission has not undertaken a document by document analysis but has made a general assessment of the exceptions under the Regulation on the basis of the categories of documents;

— the Commission could not directly consult the Greek competition authority on the basis of Article 4(5) of Regulation No 1049/2001 to obtain its view on disclosure of the documents, since Member States alone are empowered to refuse disclosure of documents on that basis;

— the Commission was incorrect in relying on the exception relating to the protection of commercial interests (first indent of Article 4(2) of Regulation No 1049/2001) in order to refuse disclosure of the documents in their entirety when it was in a position to purge the documents of confidential information;

— the Commission could not rely on the exception relating to investigatory activities (third indent of Article 4(2) of Regulation No 1049/2001) since the Greek competition authority had already adopted its final decision in the matter in question;

— nor could it rely on the exception relating to protection of the decision-making process, either because the documents to which access was requested do not form part of a decision-making process or because that process would not be seriously undermined.

Finally, the applicant submits that, in any event, there is an overriding public interest in obtaining disclosure of the documents in question, namely, that of effectively enabling uniform application of Community law.

(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 L 145, p. 43).