Case T-380/04: Action brought on 22 September 2004 by Ioannis Terezakis against the Commission of the European Communities
Date: 2004-12-04
Institutions: Court of First Instance
Subjects: European Commission, Greece, access to information, action for annulment (EU), airport, building industry, construction costs, contract, document, right to information

C 300/46

EN

Official Journal of the European Union

4.12.2004

The applicants claim that the Court should:

The applicant claims that the Court should:

— annul the Commission's decision of 30 June 2004 (C(2004)
2037 final), concerning State Aid NN 34A 2000/Österreich
‘Qualitätsprogramme und das AMA-Biozeichen und das
AMA-Gütesiegel’;

— order the Commission to pay the costs.

— Annul the Commission Decision in the form of a letter
dated 12 July 2004 and received by the applicant on 16
July 2004 refusing to the latter access to the main contract,
the sub-contracts, the costs of the construction items, the
invoices and the final report relating to the construction of
the Spata airport;

Pleas in law and main arguments

— Order that the costs of, and occasioned by these proceed-

ings be borne by the defendant.

The applicants first claim infringement of procedural rules. The
Commission treated the measures which formed the subject-
matter of
the contested decision as notified aid, although
Austria had given no such notification. The Commission
infringed Article 4(4) of Regulation 659/1999, as it had no
discretion and should have instituted the formal investigation
procedure. The Commission infringed the duty to state reasons
because it did not carefully and impartially examine all the
legal and factual considerations brought to its notice by the
applicants. A period of 52 months was disproportionate in the
context of the preliminary investigation procedure and consti-
tuted an infringement of the general principle that proceedings
should be of a reasonable duration.

The applicants further claim infringement of Article 87(3)(c) of
the EC Treaty. The Commission assumed, on the basis of insuf-
ficient enquiries and factual findings, that the requirements for
the exception under Article 87(3)(c) EC were fulfilled.

Finally, the applicants claim that there has been infringement
of the prohibition on implementation in accordance with the
third sentence of Article 88(3) EC and Article 3 of Regulation
No 659/99. There is, they maintain, a prohibition on imple-
menting aids that have not been notified, and retrospective
curing of the defect by the final decision is not permissible.

Action brought on 22 September 2004 by Ioannis Tere-
zakis against the Commission of the European Commu-
nities

(Case T-380/04)

(2004/C 300/90)

(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 22 September 2004 by Ioannis
Terezakis, Brussels
represented by L. Defalque,
lawyer.

(Belguim),

Pleas in law and main arguments:

Regarding the Commission's refusal to allow him access to the
main contract, the applicant invokes first of all a manifest error
in law and fact, in that the Commission did not make clear
whether the author of
the document, Athens International
Airport, is a third party other than a Member State or whether
it is an authority of the Greek State and consequently whether,
paragraph 4 of Article 4 of Regulation 1049/2001 (1) or para-
graph 5 of the same article should apply. The applicant also
submits that the Commission provided no evidence that it has
considered granting access without consulting the third party.
He also considers that by opting for an extensive interpretation
of
the
Commission has violated the principle of the widest possible
access to documents, set out in Article 1 (a) of Regulation
1049/2001.

the notion of protection of commercial

interests

In connexion with the same document,
the applicant also
claims that the Commission has violated Article 4 paragraph 4
of Regulation 1049/2001 and Articles 5 paragraphs 3 and 4 of
Decision 2001/937 (2) by failing to assess the justification
advanced by the third party for refusing to consent to disclo-
sure, and failing to reveal to the applicant elements of that
assessment. The applicant also argues that the Commission
violated Article 4 paragraph 6 of Regulation 1049/2001 by
failing to consider the possibility of granting partial access and
that, finally, it has violated its duty to state reasons for its deci-
sion.

By its contested decision the Commission also refused access to
the invoices and final report on the completion of the airport
on the grounds that they are examined in the framework of an
audit commissioned by DG Regional Policy and not yet
completed. Concerning this part of the Commission's Decision
the applicant submits that
the Commission misinterpreted
Article 4 paragraph 2 of Regulation 1049/2001 and committed
a manifest error of fact in considering that the audit in question
falls under this provision. He also invokes a violation of the
principle of the widest possible access as well as violation of
Annex V to the Commission decision granting assistance from
that Member States
the Cohesion Fund, which provides
concerned shall ensure open and easy access to relevant infor-
mation requested by the public. He also submits that
the
Commission failed to consider partial access.

4.12.2004

EN

Official Journal of the European Union

C 300/47

Concerning the Commission's refusal to grant access to the
costs of the construction items the applicant submits that the
Commission mistakenly considered that this application did not
constitute an application for access to documents and thus
violated Articles 7 and 8 of Regulation 1049/2001.

Finally, the applicant invokes a manifest lack of good faith and
a violation of the principle of good administration by the
Commission, which failed to indicate, in its contested decision,
when it expected to be in possession of the sub-contracts.

Trade mark or
asserted
opposition:

by way

sign
of

national word and figurative mark
‘CLEN’

Decision of the Opposi-
tion Division:

rejection of notice of opposition

Decision of
of the Appeal:

the Board

dismissal of the appeal

(1) OJ L 145 of 31.5.2001, p. 43 - 48.
(2) OJ L 345 of 29.12.2001, p. 94 - 98.

Pleas in law:

application of Article
incorrect
8(1)(b) of Regulation (EC) No
40/94 (1)

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community trade mark – OJ L 11, 14.01.1994, pp. 1-36

Action brought on 22 September 2004 by RB Square
Holdings Spain S.L. against the Office for Harmonisation
in the Internal Market

(Case T-384/04)

(2004/C 300/91)

Action brought on 23 September 2004 by the Federal
Republic of Germany against the Commission of the Euro-
pean Communities

(Language in which the application was drafted: French)

An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the
European Communities on 22 September 2004 by RB Square
Holdings Spain S.L., established in Barcelona (Spain), repre-
sented by K. Manhaeve, lawyer, with an address for service in
Luxembourg.

Unelko N.V. was also a party to the proceedings before the
Fourth Board of Appeal.

The applicant claims that the Court should:

— annul Decision R 652/2002-4 of

the Fourth Board of

Appeal of the Office

(Case T-389/04)

(2004/C 300/92)

(Language of the case: German)

An action against the Commission of the European Commu-
nities was brought before the Court of First Instance of the
European Communities on 23 September 2004 by the Federal
Republic of Germany, represented by C.-D. Quassowski, acting
as Agent, and G. Quardt, lawyer.

— order the Office to pay all the costs.

The applicant claims that the Court should:

Pleas in law and main arguments:

Applicant for the Com-
munity trade mark:

Unelko N.V.

Community trade mark
concerned:

figurative mark ‘clean x’ — Appli-
filed for
cation No 222 471,
goods
in Class 3 (bleaching
preparations, etc.)

Proprietor of the mark
or sign asserted by way
of opposition in the
opposition proceedings:

the applicant

— annul Commission Decision C(2004)2641 of 14 July 2004
on restructuring aid for MobilCom, insofar as the Commis-
sion thereby requires Germany to ensure that MobilCom
and all companies in its group close their Online-Shops for
the direct online sale of MobilCom mobile telephone
contracts for the period of seven months, that for that
period of closure of the Online-Shops the direct online sale
of MobilCom mobile telephone contracts via the MobilCom
Shops website is also discontinued, that MobilCom and
companies in its group take no other steps to circumvent
those conditions and that clients are not transferred directly
via an automatic link on the relevant website to a sales
partner;

— order the Commission to pay the costs.