Case C-514/07 P: Appeal brought on 22 November 2007 by the Kingdom of Sweden to the Court of Justice against the judgment delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale a.s.b.l. (API) v Commission of the European Communities
Date: 2007-11-22
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), access to EU information, action for annulment (EU), association, communications profession

C 51/32

EN

Official Journal of the European Union

23.2.2008

2. Contrary to the assessment of the Court of First Instance the
Defendant incorrectly examined the evidence provided in
respect of the acquired distinctiveness for each member state
separately as this apparently contradicts Article 7(3) CTMR
requiring an acquired distnctiveness through use throughout
the Community. What
the Defendant would have been
required to do — instead of assessing the number of
member states — is to look at the provided evidence as a
whole and to assess whether it builds a coherent picture of
sustained use in a sufficiently large geographical area over a
sufficiently long period of time before the filing date.

(1) Council Regulation (EC) No 40/94 of 20 December 1993 on the

Community Trade Mark (OJ L 11, 14.1.1994, p. 1).

Appeal brought on 22 November 2007 by the Kingdom of
Sweden to the Court of Justice against the judgment deliv-
ered on 12 September 2007 in Case T-36/04: Association
de la presse internationale a.s.b.l. (API) v Commission of
the European Communities

(Case C-514/07 P)

(2008/C 51/54)

the European Parliament and of

2. On the one hand, the Court of First Instance found that,
in accordance with Article 4(2) of Regulation (EC)
No 1049/2001 of
the
Council regarding public access to European Parliament,
Council and Commission documents (1), the institutions are
obliged to assess whether disclosure would specifically and in
a concrete manner harm an interest protected by an excep-
tion. Only if that is the case can an exception form the basis
of a refusal to disclose a document. That examination must
be made in respect of each individual document. The appli-
cant supports that conclusion.

3. Nevertheless, on the other hand, the Court of First Instance
concluded that in precisely that case the Commission was
not obliged to carry out such an examination, by reference
to the fact that there is a general requirement of confidenti-
ality for documents lodged in pending cases until the oral
procedure has taken place in the case. That general require-
ment for confidentiality is based in part on the right to a fair
hearing before an impartial tribunal, in part on the fact that
the Commission is to be able to uphold its interests as a
party to the case. In that regard, the Court of First Instance
the Commission did not make an incorrect
found that
assessment when it refused access to the documents lodged.

4. In the view of the applicant the later ruling is incompatible
with the obligation to examine the question of disclosure by
reference to the contents of the specific document. By its
judgment, the Court of First Instance thus incorrectly applied
Community law.

Language of the case: Swedish

(1) OJ L 145, p. 43.

Parties

Appellant: Kingdom of Sweden (represented by: A. Falk and S.
Johannesson, Legal Advisers)

Other party to the proceedings: Association de la presse internatio-
nale a.s.b.l. (API) by the European Commission

Form of order sought

— Set aside paragraph 2 of the operative part of the judgment
of the Court of First Instance of 12 September 2007 in Case
T-36/04;

— annul the Commission's decision of 20 November 2003 in
its entirety, in accordance with the forms of order sought by
API before the Court of First Instance, and thus also in
respect of the refused access to the pleadings submitted by
the Commission in Case T-209/01 Honeywell v Commission,
Case T-210/01 General Electric v Commission and Case
C-203/03 Commission v Austria, and

— order the Commission to pay the costs.

Pleas in law and main arguments

1. By the judgment under appeal, the Court of First Instance
incorrectly applied Community law by failing to annul the
Commission's decision in its entirety.

Action brought on 30 November 2007 — Commission of
the European Communities v Republic of Austria

(Case C-535/07)

(2008/C 51/55)

Language of the case: German

Parties

Applicant: Commission of the European Communities (repre-
sented by: R. Sauer and D. Recchia, Agents)

Defendant: Republic of Austria

Form of order sought

— Declare that, by failing

(a) in accordance with ornithological criteria correctly to
in the Province of
in the Province of
in
suitable areas

designate or delimit
(‘Hansag’
Burgenland and ‘Niedere Tauern’
Steiermark respectively)

the most