Case T-403/05: Action brought on  15 November 2005  — MyTravel/Commission
Date: 2006-01-14
Institutions: Court of First Instance
Subjects: European Commission, access to information, action for annulment (EU), document, economic concentration, merger control, provision of documents, travel agency

14.1.2006

EN

Official Journal of the European Union

C 10/29

Pleas in law and main arguments

the Parliament, challenges the
The applicant, an official of
increase in the rate of contribution to the pension scheme to
9,75 %,
introduced by Annex XIII to the Staff Regulations,
which came into force on 1 May 2004. In support of his
claims, he alleges the illegality of that annex, in the light of
Article 83(4) of the Staff Regulations, in the version applicable
prior to 1 May 2004. The effect of that latter provision was to
allow the contribution at
issue to be altered for the sole
purpose of ensuring actuarial balance. However, the applicant
submits that the increase in question was decided upon for
other reasons, namely, to cover a pre-existing deficit in the
Community pension scheme.

Furthermore, the applicant claims that the criteria used by
Eurostat to calculate the actuarial balance are based on para-
meters which have led to miscalculations. He also pleads a
breach of the principle of proportionality, in that the increase
in question goes beyond what is strictly necessary to restore
actuarial balance. Lastly, the applicant alleges infringement of
his legitimate expectations, since the Parliament clearly let it be
understood that it would not allow the rate of contribution to
be altered otherwise than in strict compliance with the actuarial
balance.

Action brought on 15 November 2005 — MyTravel/
Commission

(Case T-403/05)

(2006/C 10/57)

Language of the case: English

Parties

Applicant(s): MyTravel Group plc (Rochdale, United Kingdom)
[represented by: D. Pannick, QC, A. Lewis, Barrister, M.
Nicholson, S. Cardell, B. McKenna, Solicitors]

Defendant(s): Commission of the European Communities

Form of order sought

— Annul, in its entirety or in the alternative in such part as
the Court may determine,
the Commission's decision,
contained in two letters to the applicant's counsel dated 5
September 2005 and 12 October 2005, not to grant to the
applicant access to the report prepared by the Commission
following the judgment of the Court of First Instance, of 6

June 2002, in Case T-342/99, Airtours/Commission, as well
as a number of drafts, working papers and notes, either
relating to the preparation of that report or contained in
the Commission's decision which was
the case file of
annulled by the aforementioned judgment;

— order the Commission to pay the applicant's costs.

Pleas in law and main arguments

The applicant, then named ‘Airtours plc.’, brought an applica-
tion requesting the annulment of the Commission's decision
regarding the applicant's merger with another company. By its
judgment in Case T-342/99, Airtours/Commission, the Court
annulled that decision, as requested by the applicant. The appli-
application (Case T-212/03,
cant
MyTravel/Commission),
for damages allegedly incurred by
reason of the Commission's errors and breaches of Community
law in its handling of the case leading to the annulment.

then brought

another

those second proceedings,

In the context of
the applicant,
relying on Regulation 1049/2001 (1), requested the Commis-
sion to grant it access to the report prepared by the Commis-
sion's services following the judgment, as well as a number of
drafts, working papers and notes, either relating to the prepara-
tion of that report or contained in the case file of the Commis-
sion's decision, which had been annulled. By the contested deci-
sion, the Commission rejected the applicant's request, consid-
ering that the exceptions in Article 4, paragraphs 2 and 3, of
Regulation 1049/2001, relating to the protection of court
proceedings and legal advice, of the purposes of inspections,
the Commission's decision
investigations and audits or of
making process, should apply.

The applicant requests the annulment of this decision. It chal-
lenges in detail the Commission's assertions that certain docu-
ments should not be disclosed in order to protect court and
legal proceedings, and considers that it should not be open to
the Commission to rely on the need to protect historic court
proceedings, such as the ones in Case T-342/99, already closed,
in order to resist the disclosure of documents which are central
to the achieving of a just result in separate, ongoing proceed-
ings.

With regard to the protection of investigations, the applicant
contends that the Commission's appraisal of a proposed merger
is not an investigation for the purposes of the exception and
that the exception does not apply to internal enquiries nor
in any event apply to enquiries which are closed.
does it
the applicant considers that disclosure would not
Further,
undermine the purpose of
investigations in similar merger
procedures. The applicant also challenges the Commission's
assertion that an internal audit aimed at modernising adminis-
trative procedures could not be independent if its recommenda-
tions and findings were made public.

C 10/30

EN

Official Journal of the European Union

14.1.2006

Finally, the applicant considers that the Commission has not
established that disclosure would seriously undermine its future
decision-making process, since the report of which disclosure
was requested does not relate to the way decisions will be
taken in future but to the way in which they were wrongly
taken in the past, transparency could not be equated to undue
external pressure and the disclosure requested would have no
impact on the stability of the Community legal order.

The applicant finally argues that there is an overriding public
interest in the disclosure of the requested documents.

(1) OJ L 145, 31/05/2001, p. 43

Action brought on 9 November 2005 — Alessandro Caval-
laro v Commission of the European Communities

(Case T-406/05)

(2006/C 10/58)

Language of the case: Italian

Parties

Applicant: Alessandro Cavallaro (Rome, Italy) (represented by:
Carlo Forte, lawyer)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

— annul decision ADMIN. B.2.-ABF/adm-D(05)18560 of the

appointing authority (AIPN) of 10 August 2005;

— in the alternative, order time to start running again for the
purposes of bringing an action for annulment of decisions
ADMIN-B-3 No 10577 of 27 February 2002 and No
53089 of 14 November 2002;

— in the further alternative, declare admissible the plea of
unlawfulness seeking a declaration that decisions ADMIN-B-
3 No 10577 of 27 February 2002 and No 53089 of 14
November 2002 are inapplicable, allowing the applicant

the right to payment of the sums relating to the expatria-
tion allowance from 1 December 2001 and for the entire
period of service with the European Commission in Brus-
sels, including arrears and interest;

— order the defendant to pay the costs.

Pleas in law and main arguments

The applicant in the present case appeals against the decision
of the appointing authority of 10 August 2005, in which he
was refused the expatriation allowance provided for in Article
4 of Annex VII
the European
Communities, and requests payment of the sums relating to
such allowance to be allowed from 1 March 2005 and for the
entire period of service with the Commission delegation in
Rome.

to the Staff Regulations of

It must be noted in that respect that back in 2002, immediately
after being employed by the Commission,
that authority
refused the expatriation allowance of 16 % on the assumption
that during the entire reference period for the calculation of the
five years referred to in the second indent of Article 4(1)(a) of
Annex VII to the Staff Regulations, the applicant had exercised
his professional activities in Brussels.

The applicant was subsequently transferred to the office of the
Commission delegation in Rome, and again asked for the
benefit of that allowance. The present action is brought against
the adverse decision in respect of that new request.

In support of his claims, the applicant pleads:

— misapplication of Article 4(1)(b) of the Staff Regulations;

— inconsistency of the statement of reasons and error in fact
concerning the documentation supplied in respect of the
1990-1995 period. On that point, the applicant reiterates
that he lived outside Italy from 1990 to 1995, and that he
did not study in Italy between 1992 and 1995. In any
event, the Commission's statements in the contested deci-
sion contradict the statements set out in the decisions of
2002; and

— inconsistency of the statement of reasons concerning the
presumption that from July 1990 to July 1995 the appli-
cant lived in Italy. In that respect it is asserted that the mere
declaration of the applicant, made at a time in which he
was working as an auxiliary agent, that his place of recruit-
in Italy, did not
ment was to be determined as Ariccia,
suffice to demonstrate his intention to remain living in that
place uninterruptedly, developing normal social relations
there.