Case T-237/04: Action brought on 14 June 2004 by Ultradent Products, Inc., and Michael J.S. Renouf 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), cosmetic product, medical device, provision of documents, statistical nomenclature, technical specification

9.10.2004

EN

Official Journal of the European Union

C 251/19

Action brought on 1 June 2004 by Hans-Martin Tillack
against the Commission of the European Communities

(Case T-193/04)

(2004/C 251/36)

(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 1 June 2004 by Hans-Martin
Tillack, Brussels, represented by Ian S. Forrester, QC, Thierry
Bosly, Christoph Arhold, Nathalie Flandin,
Justus Herrlinger
and Juliette Siaens, lawyers.

The applicant claims that the Court should:

— annul the decision of OLAF to make its complaint to the

German and Belgian authorities;

— award him pecuniary damages for an amount of money to
be fixed by the Court, plus interest at a rate to be fixed by
the Court;

— award him the costs of the present action;

— take such other or further action as justice may require.

Pleas in law and main arguments:

In March 2004, the applicant's office and home were searched
by the Belgian authorities following an official complaint of the
Antifraud Unit of the European Commission (OLAF), accusing
the applicant of bribery of an EU official.

The applicant submits that OLAF's decision must be declared
void, since it was taken in breach of essential procedural
requirements and it infringed the fundamental right of the
protection of journalistic sources.

The applicant alleges that in breach of Article 11(7) of Regu-
lation 1073/1999 (1), the OLAF Supervisory Committee was
not informed prior to the complaints to the national authori-
ties. During the entire internal OLAF investigation, the appli-
cant has never been heard. Moreover, the decision was void in
that it was based on the wrong legal basis. OLAF acted in the
context of an internal OLAF investigation which aims to cover
alleged breaches of applicable rules by officials although the
applicant is neither an official nor a servant of any Community
organ.

submits

the applicant

Furthermore,
that OLAF's decision
infringed the fundamental right of protection of journalistic
sources, as part of freedom of the press, since the national
authorities were asked to search the applicant's home and
office in order to identify his informants within the Commis-
sion.

As far as his application for damages is concerned, the appli-
cant alleges that OLAF's complaints to the national authorities
and its various public accusations of the applicant constituted
maladministration which caused significant injury to the appli-
cant's professional and personal reputation.

(1) Regulation (EC) No 1073/1999 of the European Parliament and of
the Council of 25.12.1999 concerning investigations conducted by
the European Anti-Fraud Office (OLAF) (OJ L 136 of 31.5.1999,
p. 1).

Action brought on 14 June 2004 by Ultradent Products,
Inc., and Michael J.S. Renouf against the Commission of
the European Communities

(Case T-237/04)

(2004/C 251/37)

(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 14 June 2004 by Ultradent Products
Inc., South Jordan, Utah, USA and Michael J. S. Renouf, Brus-
sels, Belguim, represented by Mr S. Crosby and Mr C. Bryant,
Solicitors.

The applicant claims that the Court should:

— Annul the decision of the Commission of 5 April 2004 to
refuse to give access to the documents identified in the
administrative procedure,
three
applications, all dated 27 October 2003, for access to docu-
ments connected to the classification of tooth-bleaching
products;

following the applicants'

— Annul the decision of the Commission of 5 April 2004 to
refuse to give access to the documents which must, given
the circumstances, be presumed to exist;

— Order the defendant to pay the applicants' costs pursuant
to Article 87 of the Rules of Procedure of the Court of First
Instance.

C 251/20

EN

Official Journal of the European Union

9.10.2004

Pleas in law and main arguments:

the

By three letters dated 27 October 2003 the second applicant
presented to the Commission three requests for access to docu-
ments connected to the question of whether tooth-bleaching
products should be classified as cosmetic products or as
medical devices. More particularly,
second applicant
requested access to documents relating to a complaint made on
behalf of the first applicant to the Commission contesting the
classification of such products by the United Kingdom Authori-
ties, to documents relating to the preparation of the answer by
Commissioner Borino to a written question to the Commission
on such products and finally to all documents of the Commis-
the classification of such
sion relating to the question of
products. At the same time the second applicant, who is a soli-
citor, declared in his application that he was acting on behalf
of the first applicant.

Confirmatory applications were filed on 16 December 2003.
On 17 December 2003 the Commission replied to the initial
applications and the applicants filed a further confirmatory
application on 7 January 2004 which purported to withdraw
the three previous confirmatory applications of 16 December.
The Commission replied to the application of 7 January 2004
by a letter dated 5 April 2004. Enclosed with this letter were a
number of documents.

the administrative procedure
The applicants contend that
revealed that, apart from the documents disclosed to the appli-
cants by the letter of 5 April 2004, a number of documents on
the matters in question certainly exist and other documents
may also be presumed to exist. According to the applicants all
these documents are within the scope of the initial application
and within the possession of the Commission, but have not
been disclosed to the applicants. On this basis the applicants
consider the letter of 5 April 2004 as a decision to refuse
access to all these documents, and request its annulment. In
support of their application they invoke a violation of Article 8
of Regulation
145,
31/05/2001 p. 43-48 and of this regulation in general. They
further submit that the Commission failed to give reasons for
not granting access to the documents that certainly exist, nor
has it invoked any exceptions to the right of access in order to
justify its refusal.

1049/2001 (1) Official

Journal

L

(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.

European Communities on 28 June 2004 by the Republic of
Poland, represented by Jarosław Pietras, acting as Agent.

The applicant claims that the Court should:

— declare invalid Articles 3 and 4(3) and (5), eighth indent, of
Commission Regulation (EC) No 1972/2003 of 10
November 2003 on transitional measures to be adopted in
respect of trade in agricultural products on account of the
accession of the Czech Republic, Estonia, Cyprus, Latvia,
Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia
(OJ 2003 L 293, p. 3), as amended by Commission Regu-
lation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L
39, p. 13) and Commission Regulation (EC) No 735/2004
of 20 April 2004 (OJ 2004 L 114, p. 13);

— order the Commission of the European Communities to

pay the costs of the proceedings.

Pleas in law and main arguments

With regard to Article 3 of Regulation No 1972/2003 the
applicant raises the following heads of complaint:

— infringement of

the principle of

the free movement of
goods through the introduction of customs duties in the
amount of a customs rate applicable erga omnes and
exceeding the level of customs rates in force during the
period prior to Poland's accession to the European Union;

— lack of competence on the Commission's part and breach
of Articles 22 and 41, first paragraph, and Part 5 of Annex
IV to the Act concerning the conditions of accession of the
Czech Republic, the Republic of Estonia, the Republic of
Cyprus, the Republic of Latvia, the Republic of Lithuania,
the
the Republic of Hungary,
Republic of Poland, the Republic of Slovenia and the Slovak
Republic and the adjustments to the Treaties on which the
European Union is founded (1) through the adoption of
measures altering the conditions defined in that Act for the
adoption by the Republic of Poland of the rules governing
the customs union;

the Republic of Malta,

— infringement of

the principle of non-discrimination on
the adoption of
grounds of nationality by reason of
measures providing for treatment of persons from Poland
that differs from that of persons from the Community of
15 States who are in a comparable position;

Action brought on 28 June 2004 by the Republic of
Poland against the Commission of the European Commu-
nities

— breach of a fundamental procedural requirement by virtue

of the inadequate reasoning of the measures adopted;

(Case T-257/04)

(2004/C 251/38)

(Language of the case: Polish)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the

— infringement of the principle of the protection of legitimate
expectations by reason of the introduction of a method, at
variance with the conditions laid down in the abovemen-
tioned Act of Accession, for dealing with products which
were in temporary storage on 1 May 2004, were covered
by customs procedures or were in transit within the
enlarged Community, and in particular by reason of the
introduction of customs duties exceeding the level of
customs rates in force during the period prior to Poland's
accession to the European Union.