Case C-64/05 P: 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
Date: 2005-05-14
Institutions: Court of Justice
Subjects: General Court (EU), Sweden, access to information, action for annulment (EU), confidentiality, provision of documents

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.

C 115/10

EN

Official Journal of the European Union

14.5.2005

None of the arguments on which the Court of First Instance
based its decision is sufficient to allow an exception in respect
of documents from the Member States to be made to the
fundamental principle that it is the institution which holds a
document which is responsible for assessing whether it should
be disclosed. The decision of the Court of First Instance thus
infringed Community law.

and good governance, and announces support in particular for
the moratorium on the import, export and production of light
weapons in West Africa. Thus the impugned CFSP decision is
in infringement of Article 47 TEU, since it affects Community
powers in the field of development aid.

(1) OJ C 202, 24.08.2002, p. 30.

Action brought on 21 February 2005 by the European
Commission against the Council of the European Union

(Case C-91/05)

(2005/C 115/19)

(Language of the case: English)

An action against the Council of the European Union was
brought before the Court of Justice of the European Commu-
nities on 21 February 2005 by the European Commission,
represented by Pieter Jan Kuijper and Johan Enegren acting as
Agents, with an address for service in Luxembourg.

The applicant claims that the Court should:

1. annul Council Decision 2004/833/CFSP (1)

2. declare illegal and hence inapplicable Council Joint Action

2002/589/CFSP (2), in particular Title II thereof.

Pleas in law and main arguments:

The Commission is seeking the annulment for lack of compe-
tence under Article 230, second paragraph, of the EC Treaty of
Council Decision 2004/833/CFSP of 2 December 2004 imple-
menting Joint Action 2002/589/CFSP with a view to a Euro-
pean Union contribution to ECOWAS in the framework of the
Moratorium on Small Arms and Light Weapons. The Council
took this Decision under Title V of the Treaty on European
Union, whereas Article 11(3) of the Cotonou agreement covers
actions inter alia against the spread of small arms and light
weapons. Moreover, the Commission had concluded pursuant
to Article 10(2) of Annex 1V of the Cotonou agreement a
Indicative Programme for West Africa with the
Regional
Economic Community of West African States (ECOWAS) and
the West African Economic and Monetary Union (WAEMU),
which gives support to a regional policy of conflict prevention

In addition, the Commission is seeking a declaration of illeg-
ality under Article 241 EC Treaty of Council
Joint Action
2002/589/CFSP of 12 July 2002, and in particular Title II
thereof, on the same basis and for the same reasons. Joint
Action 2002/589/CFSP is an act of a general legislative nature
on which the CFSP Decision is based, of which the annulment
for lack of competence is sought. Hence that Joint Action, and
more specifically Title II thereof should be declared inapplicable
in the present case.

(1) Council Decision 2004/833/CFSP of 2 December 2004 imple-
menting Joint Action 2002/589/CFSP with a view to a European
Union contribution to ECOWAS in the framework of the Mora-
torium on Small Arms and Light Weapons, OJ L 359, 04.12.2004,
p. 65.

(2) Council Joint Action 2002/589/CFSP of 12 July 2002 on the Euro-
pean Union's contribution to combating the destabilising accumula-
tion and spread of small arms and light weapons and repealing Joint
Action 1999/34/CFSP, OJ L 191, 19.07.2002, p. 1.

Appeal brought on 2 March 2005 (faxed on 28 February
2005) by El Corte Inglés against the judgment delivered
on 13 December 2004 by the Second Chamber of the
Court of First Instance of the European Communities in
Case T-8/03 between El Corte Inglés SA and the Office for
Harmonisation in the Internal Market (trade marks and
designs) (OHIM)

(Case C-104/05 P)

(2005/C 115/20)

(Language of the case: Italian)

On 2 March 2005 El Corte Inglés SA, represented by J. L. Rivas
Zurdo, lawyer, brought before the Court of Justice of the Euro-
pean Communities an appeal against the judgment delivered on
13 December 2004 by the Second Chamber of the Court of
First Instance of the European Communities in Case T-8/03 El
Corte Inglés SA and the Office for Harmonisation in the
Internal Market (trade marks and designs) (OHIM)