Order of the Court (Second Chamber) of 17 February 2005 in Case C-250/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia in Giorgio Emanuele Mauri v Ministero della Giustizia, Commissione per gli esami di avvocato presso la Corte d'appello di Milano (Article 104(3) of the Rules of Procedure — Access to the profession of advocate — Rules on the examination for authorisation to practise as an advocate)
Date: 2005-05-14
Institutions: Court of Justice
Subjects: examination, interpretation of the law, lawyer

C 115/8

EN

Official Journal of the European Union

14.5.2005

Chamber), composed of R. Silva de Lapuerta, President of the
Chamber, J. Makarczyk and P. Kūris (Rapporteur), Judges; F.G.
Jacobs, Advocate General; R. Grass, Registrar, gave a judgment
on 10 March 2005, in which it:

1. Declares that, by failing to adopt

networks

the laws,

regulations and
administrative provisions necessary to comply with Directives
2002/19/EC of the European Parliament and of the Council of 7
March 2002 on access to, and interconnection of, electronic
communications networks and associated facilities (Access Direc-
tive), 2002/20/EC of the European Parliament and of the Council
of 7 March 2002 on the authorisation of electronic communica-
tions
(Authorisation Directive),
2002/21/EC of the European Parliament and of the Council of 7
March 2002 on a common regulatory framework for electronic
communications networks and services (Framework Directive), and
2002/22/EC of the European Parliament and of the Council of 7
March 2002 on universal service and users' rights relating to elec-
tronic communications networks and services (Universal Service
Directive), the Grand Duchy of Luxembourg has failed to fulfil its
obligations under those directives.

services

and

2. Orders the Grand Duchy of Luxembourg to pay the costs.

(1) OJ C 190, 24.07.2004.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 10 March 2005

in Case C-240/04: Commission of the European Commu-
nities v Kingdom of Belgium (1)

(Failure of a Member State to fulfil obligations — Directives
2002/19/EC, 2002/20/EC, 2002/21/EC and 2002/22/EC —
Electronic communications networks and services — Failure
to transpose within the prescribed period)

(2005/C 115/16)

(Language of the case: French)

In Case C-240/04 Commission of the European Communities
(Agent: M. Shotter) v Kingdom of Belgium (Agent: E. Dominko-
vits) — Action under Article 226 EC for failure to fulfil obliga-
tions, brought on 8 June 2004 — the Court (Fifth Chamber),
composed of R. Silva de Lapuerta, President of the Chamber, J.
Makarczyk and P. Kūris (Rapporteur),
Jacobs,
Advocate General; R. Grass, Registrar, gave a judgment on 10
March 2005, in which it:

Judges; F.G.

1. Declares that, by failing to adopt all the laws, regulations and
administrative provisions necessary to comply with Directives
2002/19/EC of the European Parliament and of the Council of 7
March 2002 on access to, and interconnection of, electronic
communications networks and associated facilities (Access Direc-
tive), 2002/20/EC of the European Parliament and of the Council
of 7 March 2002 on the authorisation of electronic communica-
tions
(Authorisation Directive),
2002/21/EC of the European Parliament and of the Council of 7
March 2002 on a common regulatory framework for electronic
communications networks and services (Framework Directive), and
2002/22/EC of the European Parliament and of the Council of 7
March 2002 on universal service and users' rights relating to elec-
tronic communications networks and services (Universal Service
Directive), the Kingdom of Belgium has failed to fulfil its obliga-
tions under those directives.

networks

services

and

2. Orders the Kingdom of Belgium to pay the costs.

(1) OJ C 190, 24.07.2004.

ORDER OF THE COURT

(Second Chamber)

of 17 February 2005

in Case C-250/03: Reference for a preliminary ruling from
the Tribunale amministrativo regionale per la Lombardia
in Giorgio Emanuele Mauri v Ministero della Giustizia,
Commissione per gli esami di avvocato presso la Corte
d'appello di Milano (1)

(Article 104(3) of the Rules of Procedure — Access to the
profession of advocate — Rules on the examination for
authorisation to practise as an advocate)

(2005/C 115/17)

(Language of the case: Italian)

In Case C-250/03: reference for a preliminary ruling under
Article 234 EC from the Tribunale amministrativo regionale
per la Lombardia, (Italy), made by decision of 13 November
2002, received at the Court on 11 June 2003, in the proceed-
ings between Giorgio Emanuele Mauri and Ministero della
Giustizia, Commissione per gli esami di avvocato presso la
Corte d'appello di Milano — the Court (Second Chamber),
composed of C.W.A. Timmermans (Rapporteur), President of
the Chamber, C. Gulmann, R. Schintgen, J. Makarczyk and J.
Klučka, Judges; P. Léger, Advocate General; R. Grass, Registrar,
made an order on 17 February 2005, the operative part of
which is as follows:

14.5.2005

EN

Official Journal of the European Union

C 115/9

Articles 81 EC, 82 EC and 43 EC do not preclude a rule, such as
that laid down by Article 22 of Royal Decree-Law No 1578 of 27
November 1933, in the version applicable at the time of the facts in
in connection with the
the main proceedings, which provides that,
examination regulating access to the profession of advocate, the exam-
ination committee is to be composed of five members appointed by
the Minister for Justice, namely two judges, a professor of law and
two advocates, the latter being nominated by the Consiglio nazionale
forense (National Bar Council) on a joint proposal by the bar councils
of the district concerned.

(1) OJ C 200 of 23.08.2003.

Appeal brought on 14 February 2005 by Kingdom of
Sweden against the judgment delivered on 30 November
2004 by the Fifth Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-168/02 between IFAW Internationaler Tierschutz-
Fonds gGmbH, supported by Kingdom of the Netherlands,
Kingdom of Sweden and by Kingdom of Denmark and
Commission of the European Communities, supported by
United Kingdom of Great Britain and Northern Ireland

(Case C-64/05 P)

(2005/C 115/18)

(Language of procedure: English)

An appeal against the judgment delivered on 30 November
2004 by the Fifth Chamber, Extended Composition, of the
Court of First Instance of the European Communities in Case
T-168/02 (1) between IFAW Internationaler Tierschutz-Fonds
gGmbH, supported by Kingdom of the Netherlands, Kingdom
of Sweden and by Kingdom of Denmark and Commission of
the European Communities, supported by United Kingdom of
Great Britain and Northern Ireland, was brought before the
Court of Justice of the European Communities on 14 February
2005 by Kingdom of Sweden, represented by K. Wistrand,
acting as agent.

The Appellant claims that the Court should:

1. set aside the Judgment of the Court of First Instance of 30

November 2004 in Case T-168/02;

2. annul the decision of the Commission of 26 March 2002

and

3. order the Commission to pay the costs incurred by the
Kingdom of Sweden in the proceedings before the Court of
Justice.

Pleas in law and main arguments:

The Swedish Government submits that
the Court of First
Instance has infringed Community law in the judgment under
appeal.

The Court of First Instance first observed that the right of
access to documents of the institutions, provided for in Article
2 of Regulation (EC) No 1049/2001 of the European Parlia-
(‘openness regulation’), covers all
ment and of the Council
documents held by those institutions and, as a result, they may
be required, in appropriate cases, to make available documents
originating from third parties,
the
Member States. The Court of First Instance pointed out that the
so-called authorship rule, that is to say, the principle that the
person who drew up a document has control over the docu-
ment and thus decides whether it may be disclosed, regardless
of who holds the document, was not incorporated into the
Regulation.

in particular,

including,

that

the openness

regulation implies

The Court of First Instance none the less took the view that
Article 4(5) of
the
Member States are subject to special treatment and that the
authorship rule therefore applies to documents drawn up by
Member States. To justify that position, the Court of First
Instance pointed out, first, that the obligation to obtain agree-
ment, under Article 4(5) of the openness regulation, would
otherwise risk becoming a dead letter and, second, that it is
neither the object nor the effect of that regulation to amend
national legislation. According to the Court of First Instance,
the Member State is under no obligation to state the reasons
for any request made by it under Article 4(5) of the openness
regulation.

finds that

the Swedish Government

However,
there is no
express and unequivocal support for the Court of First Instan-
ce's interpretation in the provision in question or elsewhere in
the openness regulation. Under those circumstances none of
the arguments on which the Court of First Instance based its
interpretation, either on its own or taken together with the
others, can constitute a reason to disregard the fundamental
rule on which the openness regulation is based. According to
the regulation, it is for the institution holding the document to
assess whether a document should be disclosed. If none of the
exceptions to the rule of disclosure in Articles 4(1) to 4(3) of
the openness regulation is applicable, the document is to be
disclosed. The obligation to obtain agreement under Article
4(5) of the openness regulation is a procedural rule which
would serve its purpose even if the Member States were not
allowed an absolute right of veto. Nor does the absence of a
right of veto entail any amendment to national legislation.

Under the openness regulation a decision to refuse access to a
document can only be made on the basis of one of the excep-
tions set out in Article 4(1) to 4(3). If the Member State in
question does not state reasons for its refusal to disclose a
document, that Member State thus incurs the risk that the insti-
tution will not be in a position to find that there is a specific
need for confidentiality which can constitute a ground not to
disclose the document according to the exceptions to the rule
of disclosure in the openness regulation.