Case T-284/04: Action brought on 12 July 2004 by UPS Europe N.V./S.A. and UPS Deutschland Inc. & Co OHG against the Commission of the European Communities
Date: 2004-10-09
Institutions: Court of First Instance
Subjects: European Commission, access to information, action for annulment (EU), distance selling, market prices, postal service, provision of documents

9.10.2004

EN

Official Journal of the European Union

C 251/25

Action brought on 12 July 2004 by UPS Europe N.V./S.A.
and UPS Deutschland Inc. & Co OHG against the Commis-
sion of the European Communities

(Case T-284/04)

(2004/C 251/45)

(Language of the case: English)

In support of their application the applicants invoke a breach
of Regulation 1049/2001, contending that none of the excep-
tions of Article 4 apply and that therefore access should have
been granted as requested. They also invoke a breach by the
Commission of the duty, under Article 253 EC, to state reasons
for its decision. The applicants submit that the Commission is
in breach of Regulation 1049/2001 also on the grounds that it
neither replied within the prescribed time limit nor stated any
reasons for refusing to grant access. Finally, they argue that the
Commission has violated its own Rules of Procedure as
amended by the Commission's decision of 5 December
2001 (3). According to the applicants, the Commission should
have finalised its consultation of Deutsche Post and have taken
a decision within the 15 day working period.

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 12 July 2004 by UPS Europe N.V./
S.A., Brussels, Belguim and UPS Deutschland Inc. & C. OHG,
represented by Mr T.R. Ottervanger and Ms A.S. Bijleveld,
lawyers.

The applicant claims that the Court should:

— Annul the implied Commission decision to refuse their
confirmatory request of 13 April 2004 for access to certain
documents;

— Order the Commission to pay the costs of this procedure.

Pleas in law and main arguments:

that

By a decision dated 20 March 2001 (1) the Commission decided
that Deutsche Post AG had infringed Article 82 of the EC
Treaty through its practices in the mail-order parcel sector. It
further required Deutsche Post to create a separate commercial
parcel services subsidiary as well as a system of transparent and
market-based pricing between Deutsche Post AG and that
subsidiary. Deutsche Post was required to inform the Commis-
sion annually on the fulfilment of these undertakings. Deutsche
Post did so by letter of 22 May 2003. The applicants, who are
also active in the same business sector, requested and received
a non-confidential version of
letter on 22 September
2003. On 20 October 2003 the applicants requested the
Commission to grant
them access to the average internal
transfer prices charged by Deutsche Post to its subsidiary, infor-
mation which had been blanked out in the non-confidential
version of the letter of 22 May 2003. They also requested
access to a report and a calculation which, according to the
same letter, had been submitted to the Commission on 16
November 2001. The request was made on the basis of Regu-
lation 1049/2001 (2) Official Journal L 145, 31/05/2001, p.
43-48. The applicants repeated their request on 18 November
2003 and made a confirmatory application on 13 April 2004.
By letter of 21 April 2004 the Commission acknowledged
receipt of the confirmatory application and stated that it was
consulting Deutsche Post on the exact scope of the commer-
cially sensitive information in the documents requested. Not
having received any further answer, the applicants consider
that there is an implied Commission decision to refuse their
application for access, and request the Court to annul it.

(1) Commission Decision of 20 March 2001 relating to a proceeding
under Article 82 of the EC Treaty (Case COMP/35.141 — Deutsche
Post AG) (notified under document number C(2001) 728), OJ L 125
5/5/2001 p. 27.

(2) 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.

(3) OJ L 345, 29/12/2001 p. 94.

Action brought on 9 July 2004 by the United Kingdom of
Great Britain and Northern Ireland against the Commis-
sion of the European Communities

(Case T-286/04)

(2004/C 251/46)

(Language of the case: English)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 9 July 2004 by the United Kingdom
of Great Britain and Northern Ireland, represented by Mr R.
Thompson QC and Mr S. Grodzinski Barrister with an address
for service in Luxembourg.

The applicant claims that the Court should:

— Annul Article 2 of Commission Decision 2004/451/EC on
the clearance of the accounts of Member States' expenditure
financed by the European Agricultural Guidance and Guar-
antee Fund,
for the 2003 financial year, notified under
document number C(2004) 1699 (1), insofar as it relates to
the accounts of the Rural Payments Agency, the Depart-
ment of Agriculture and Rural Development, the Forestry
Commission and the Countryside Council for Wales;