Case C-139/07P: Appeal brought on 8 March 2007 by Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities
Date: 2007-06-23
Institutions: Court of Justice
Subjects: European Commission, Germany, State aid, action for annulment (EU), appeal, control of State aid, glass industry

C 140/6

EN

Official Journal of the European Union

23.6.2007

Reference for a preliminary ruling from the Tribunalul
Dâmboviţa (Romania) lodged on 24 January 2007 — Minis-
terul Administraţiei şi Internelor — Direcţia Generală de
Paşapoarte Bucureşti v Gheorghe Jipa

(Case C-33/07)

(2007/C 140/10)

members to move and reside freely within the territory
of the Member States be interpreted as meaning that the
Member States may impose restrictions on the freedom
of movement and residence of a citizen of the Union on
grounds of ‘public policy’ and ‘public security’ automati-
cally, without
that person's ‘personal conduct’ being
examined?

Language of the case: Romanian

(1) OJ L 158, p. 77.

Referring court

Tribunalul Dâmboviţa

Parties to the main proceedings

Applicant: Ministerul Administraţiei şi
Generală de Paşapoarte Bucureşti

Internelor — Direcţia

Defendant: Gheorghe Jipa

Questions referred

(1) Must Article 18 EC (consolidated version published in OJ
2002 C 325 of 24.12.2002) be interpreted as meaning that
the legislation in force in Romania (Articles 38 and 39 of
Law 248/2005 on the conditions for the free movement of
Romanian citizens abroad) places obstacles in the way of
the free movement of persons?

2 (a) Do Articles 38 and 39 of Law 248/2005 (national legis-
lation), which prevent a person (who is a Romanian
citizen and, now, a citizen of the Union) from moving
freely in another State (in this case, a Member State of
the European Union), constitute an obstacle to the free
movement of persons upheld by Article 18 EC?

(b) May a Member State of the European Union (in this
case Romania) place a limitation on the exercise of the
right of freedom of movement of citizens within the
territory of another Member State?

3 (a) Does the concept of

residence’ used in the
‘illegal
national provisions of Government Decree 825/2005
approving the Agreement between the Government of
Romania, of the first part, and the Governments of the
Kingdom of Belgium, of the Grand Duchy of Luxem-
bourg and of the Kingdom of the Netherlands, of the
other part, on the readmission of persons who are in an
illegal situation (the provision on the basis of which the
readmission of the defendant was ordered, his situation
being that of ‘illegal residence’) fall within the grounds
of ‘public policy’ or ‘public security’ provided for in
Article 27 of Directive 2004/38/EEC, (1) so that a
restriction on the freedom of movement of such a
person may be imposed?

(b) If the foregoing question is answered in the affirmative,
must Article 27 of Directive 2004/38/EC of the Euro-
pean Parliament and of the Council of 29 April 2004
on the right of citizens of the Union and their family

Appeal brought on 8 March 2007 by Commission of the
European Communities against the judgment delivered by
the Court of First
Instance (Fifth Chamber) on 14
December 2006 in Case T-237/02 Technische Glaswerke
Ilmenau GmbH v Commission of the European Commu-
nities

(Case C-139/07P)

(2007/C 140/11)

Language of the case: German

Parties

Appellant: Commission of the European Communities (repre-
sented by V. Kreuschitz and P. Aalto, acting as Agents)

Other parties to the proceedings: Technische Glaswerke Ilmenau
GmbH, Schott Glas, Kingdom of Sweden and Republic of
Finland

Form of order sought

— set aside the judgment of the Court of First Instance of 14
December 2006 (1)
in Case T-237/02 Technische Glaswerke
the
Ilmenau v Commission which annuls the decision of
Commission of 28 May 2002 in so far as it refuses access to
documents
in
respect of aid granted to Technische Glaswerke Ilmenau
GmbH, and

relating to the investigation procedures

— order Technische Glaswerke Ilmenau GmbH to pay the

costs.

Pleas in law and main arguments

the European Communities request

The Commission of
the
Court to set aside the judgment of the Court of First Instance of
14 December 2006 in Case T-237/02, which annuls the deci-
sion of the Commission of 28 May 2002 in so far as it refuses
access to documents relating to the investigation of aid granted
to Technische Glaswerke Ilmenau GmbH.

23.6.2007

EN

Official Journal of the European Union

C 140/7

According to the settled case-law of the Court of First Instance
and the Court of Justice, the parties, and accordingly the reci-
pient of aid, have no right of access to documents in cases of
investigation of aid. It follows that the decision of the Court of
First Instance erred in law in paragraphs 87 to 89 of the judg-
ment under appeal by stating that there were no special circum-
stances making it manifestly clear that the access to documents
requested should be refused. In fact, it is clear from the case-law
that the documents concerned are fully covered by an exception
to the right of access to documents and accordingly that each
document should not be individually examined.

Furthermore, cases of
investigation of aid are proceedings
against the State granting the aid, particularly where the reci-
pient of the aid has no entitlement to aid. Accordingly, what is
relevant to the question of access to documents is what the
Court of Justice itself has ruled in relation to actions for infrin-
gement under Article 226 EC, namely that there is no public no
right of access to documents in such proceedings.

The judgment under appeal also leads to the absurd result that
the general public enjoys, on the basis of
the legislation
promoting transparency, namely Regulation No 1049/2001 (2),
more extensive rights of access to documents than a recipient of
aid who is directly subject to proceedings against him, who is
also — precisely because he is directly and individually
concerned for the purposes of Article 230(4) EC — entitled to
raise proceedings against the decision ending the procedure. It is
even harder to understand why the further consequence, namely
that an application of a recipient of aid under reference to the
applicable case-law may be rejected where such a response
cannot be given to an application of a recipient of aid or an
independent third party who relies on the transparency regu-
lation.

With the third ground of appeal, the Commission criticises the
judgment under appeal for giving the same expression, namely
the word ‘document’, in the singular, in Article 4(2) of Regu-
lation No 1049/2001 and in Article 6 of the regulation is given
a different meaning. While,
in Article 4(2), that word means
that each document must be considered for a refusal to be
given, the Court of First Instance interpreted Article 6 in such a
way that access may also be requested to a bundle of documents
that has been designated as an administrative file.

With the fourth ground of appeal, the Commission claims that
the Court of First Instance infringed Article 255 EC, inasmuch
as its decision was not arrived at on the basis of the language of
the legislation, but on the basis of assumptions reached without
reference to that wording.

Lastly, the Commission claims that the Court of First Instance
wrongly held that both the procedures relating to the investiga-
tion of the aid granted to Technische Glaswerke Ilmenau GmbH
had already been completed at
the decision
concerning access to the administrative file, so that the authori-
ties had no interest in maintaining the confidentiality of the
documents. That is partly incorrect because of the proceedings
pending before the Court of First Instance. The Court of First

the time of

Instance also appears to have wrongly concluded that Regu-
lation No 1049/2001 made the earlier case-law and the relevant
procedural provisions relating to the monitoring of aid obsolete.

(1) OJ 2006 C 331, p. 29
(2) OJ 2001 L 145, p. 43

Reference for a preliminary ruling from the Bundesverwal-
lodged on 20 March 2007 —
tungsgericht

(Germany)

Arcor AG & Co. KG v Bundesrepublik Deutschland

(Case C-152/07)

(2007/C 140/12)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Arcor AG & Co. KG

Defendant: Bundesrepublik Deutschland

Intervener: Deutsche Telekom AG

Questions referred

Are Commission Directive 90/388/EEC of 28 June 1990 on
competition in the markets for telecommunications services
(Competition Directive) (1) and Directive 97/33/EC of the Euro-
pean Parliament and of the Council of 30 June 1997 on inter-
connection in telecommunications with regard to ensuring
universal service and interoperability through application of the
principles of Open Network Provision (ONP) (Interconnection
Directive) (2) to be interpreted as meaning that the national
regulatory authority is precluded from requiring, in 2003, the
operator of a network which is interconnected with a public
local telecommunications network to pay a contribution to the
market-dominant operator of
the local network in order to
compensate him for the deficit incurred as a result of providing
the local loop?