Case C-410/06: Action brought on 9 October 2006 — Commission of the European Communities v Portuguese Republic
Date: 2006-12-02
Institutions: Court of Justice
Subjects: European Commission, Portugal, action for failure to fulfil an obligation, arrangement of working time, national implementing measure, road safety, road transport

2.12.2006

EN

Official Journal of the European Union

C 294/33

Action brought on 1 September 2006 — Landtag
the European
Schleswig-Holstein v Commission of

information in conjunction with Article 10 EC and Article
1(2) EC; and

Communities

(Case C-406/06)

(2006/C 294/57)

Language of the case: German

Parties

Applicant: Landtag Schleswig-Holstein (represented by: S.
Laskowski and J. Caspar, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

— declare that the Court of Justice has jurisdiction and that
the action is admissible; in the alternative, refer the action
to the Court of First Instance under the second paragraph
of Article 54 of the Statute of the Court of Justice (2005);

— annul the Commission decisions of 10 March 2006 (JUR
(2006) 55023) and of 23 June 2006 (SG/E/3MM/flD (2006)
6175);

— order the Commission of the European Communities to

pay the costs.

Pleas in law and main arguments

The applicant contests the Commission decision of 10 March
2006 and the decision of 23 June 2006 notified on 26 March
2006, each refusing the application of the Landtag Schleswig-
Holstein (assembly of the Land of Schleswig-Holstein) for full
access to internal Commission document SEC (2005) 420 of
22 March 2005. Document SEC (2005) 420 contains the legal
grounds for the choice of Article 95 EC as the legal basis for
Directive 2006/24/EC of the European Parliament and of the
Council of 15 March 2006 on the retention of data generated
or processed in connection with the provision of publicly avail-
able electronic communications services or of public communi-
cations networks and amending Directive 2002/58/EC, (1) and
is referred to in the grounds of the Commission proposal for
the directive COM (2005) 438 final (p. 6). That document was
the Landtag of
requested by the science department of
Schleswig-Holstein for the preparation of a legal opinion on
the possible effects of Directive 2006/24/EC on parliamentary
privilege.

The applicant claims that the adverse decisions and the refusal
to grant full access to the document at issue are subject to the
following grounds for invalidity as provided for in the second
paragraph of Article 230 EC:

— breach of the duty to cooperate in good faith under Article
10 EC in conjunction with Article 1(2) EU or breach of the
right of access to the document under Article 255 EC and
Article 2(1) of Regulation (EC) No 1049/2001 on access to

— misuse of powers.

By virtue of Article 10 EC in conjunction with Article 1(2) EC,
the Commission is under an obligation to grant the Landtag of
Schleswig-Holstein, as an institution of a Member State, access
to the document sought, within the scope of the mutual duties
to cooperate in good faith and in compliance with the principle
of transparency, since there is strong public and parliamentary
interest in the full disclosure of the document.

In addition the right to full access to the document at issue is
based on Article 255 EC and Article 2(1) of Regulation No
1049/2001 on access to information in conjunction with
Article 10 EC and Article 1(2) EU, and the complaint is made
to grant
that
access to the document on the second indent of Article 4(2) of
Regulation No 1049/2001 and misused its powers, since
disclosure of the document would not undermine the protec-
tion of the Commission's legal advice.

the Commission incorrectly based its refusal

(1) OJ L 105 of 13.4.2006, p. 54.

Action brought on 9 October 2006 — Commission of the
European Communities v Portuguese Republic

(Case C-410/06)

(2006/C 294/58)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (repre-
sented by: N. Yerrell and G. Braga da Cruz, Agents)

Defendant: Portuguese Republic

Form of order sought

— a declaration that, by failing to adopt (all) the laws, regula-
tions and legislative provisions necessary to comply with
Directive 2002/15/EC (1) of the European Parliament and of
the Council of 11 March 2002 on the organisation of the
working time of persons performing mobile road transport
activities or, in any event, by failing to communicate those
provisions to the Commission, the Portuguese Republic has
failed to fulfil its obligations under Article 14 of that direc-
tive;

— an order that the Portuguese Republic should pay the costs.

C 294/34

EN

Official Journal of the European Union

2.12.2006

Pleas in law and main arguments

The period prescribed for transposition of the directive into
national law expired on 23 March 2005.

The Commission considers that by basing the regulation solely
on article 175(1) EC and deleting article 133 EC as its second
legal basis, the European Parliament and the Council have acted
in infringement of the Treaty. In accordance with article 231(1)
EC, the annulment of the Regulation constitutes the appro-
priate remedy for this infringement.

(1) OJ L 80. p. 35.

(1) OJ L 190, p.1

Action brought on 9 October 2006 — Commission of the
European Communities v European Parliament, Council of
the European Union

(Case C-411/06)

(2006/C 294/59)

Language of the case: English

Appeal brought on 13 October 2006 by the Kingdom of
Belgium against the judgment delivered by the Court of
First Instance (Second Chamber) on 25 July 2006 in Case
T-221/04 Belgium v Commission

(Case C-418/06 P)

(2006/C 294/60)

Language of the case: French

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Konstantinidis, M. Huttunen, Agents)

Parties

Defendants: European Parliament, Council of
Union

the European

Appellant: Kingdom of Belgium (represented by: A. Hubert,
Agent, H. Gilliams, P. de Bandt and L. Goossens, lawyers)

The applicant claims that the Court should:

— annul regulation (EC) No 1013/2006 (1) of the European
Parliament and of the Council of 14 June 2006 on ship-
ments of waste;

— declare that the effects of the annulled regulation are defini-
tive pending the replacement of the regulation within a
reasonable period of time by an act adopted by the Euro-
pean Parliament and the Council on the correct legal basis
of Articles 175(1) and 133 EC and justified accordingly in
the recitals;

— order European Parliament, Council of the European Union

to pay the costs.

Pleas in law and main arguments

The Commission submits that its choice of a double legal basis
was decided according to the parameters established by the
case-law of the Court of Justice which are the aim and the
content of the act. It was based on the appreciation that the
regulation includes, both as regards the aims pursued and its
contents, two linked components, neither of which can be
regarded as secondary or indirect as compared with the other,
one falling within the scope of the common commercial policy
and the other within that of protection of the environment.

Other party to the proceedings: Commission of the European
Communities

Form of order sought

— set aside the judgment delivered by the Court of First
Instance on 25 July 2006 in Case T-221/04 and, upholding
the action brought by the present appellant, annul Commis-
sion Decision 2004/136/EC (1) of 4 February 2004;

— in the alternative, set aside the judgment delivered by the
Court of First Instance on 25 July 2006 in Case T-221/04
and, on the basis of its unlimited jurisdiction, reduce the
correction of € 9 322 809 applied by the Commission in
Decision 2004/136/EC to € 1 491 085;

— in the further alternative, set aside the judgment in Case T-
221/04 delivered by the Court of First Instance on 25 July
2006 and refer the case back to the Court of First Instance;

— order the Commission to pay the costs of the proceedings
before both the Court of Justice and the Court of First
Instance.

Pleas in law and main arguments

The appellant raises four grounds in support of its appeal.