Case C-532/07 P: Appeal brought on 29 November 2007 by Commission of the European Communities against the judgment of the Court of First Instance (Grand Chamber) delivered on 12 September 2007 in Case T-36/04: Association de la presse internationale ASBL v Commission of the European Communities
Date: 2007-11-29
Institutions: Court of Justice
Subjects: European Commission, General Court (EU), access to EU information, action for annulment (EU), association, communications profession

26.1.2008

EN

Official Journal of the European Union

C 22/37

Form of order sought

The appellant claims that the Court should:

Appeal brought on 29 November 2007 by Commission of
the European Communities against the judgment of the
Court of First Instance (Grand Chamber) delivered on
12 September 2007 in Case T-36/04: Association de la
presse internationale ASBL v Commission of the European
Communities

— set aside the judgment of the Court of First Instance of the
European Communities in Case T-36/04, API v Commission,
of 12 September 2007 in so far as the Court of First
Instance upheld the Commission's right not to disclose the
Commission's pleadings in cases where an oral hearing was
yet to be held;

(Case C-532/07 P)

(2008/C 22/66)

Language of the case: English

— annul the parts of Commission Decision D(2003) 30621 of
20 November 2003 not previously annulled by the Court of
First Instance in Case T-36/04, or in the alternative refer the
case back to the Court of First Instance for further adjudica-
tion in the light of the judgment of the Court of Justice; and

Parties

— order the Commission to pay costs.

Appellant: Commission of the European Communities (repre-
sented by: C. Docksey and P. Aalto, Agents)

Other party to the proceedings: Association de la presse internatio-
nale ASBL (API)

Pleas in law and main arguments

Form of order sought

The Appellant submits that the contested judgment should be
set aside on the following grounds:

1. First,

the Court of First

Instance erroneously interpreted
Article 4(2) 2nd indent of the Regulation (the ‘court proceed-
ings exception’) when it held that the Commission need not
carry out a concrete assessment as to whether to give access
to its written pleadings before the oral hearing. This interpre-
tation (i) is contrary to well-established principles for inter-
preting the court proceedings exception that are recognised
elsewhere in the Judgment; (ii) is premised on a non-existent
right by the Commission to defend its interests ‘free from all
external influences’; (iii) relies on manifestly incorrect legal
arguments when invoking the ‘equality of arms principle’;
(iv) erroneously dismisses the significance of other jurisdic-
tions' rules that allow access to pleadings before the hearing;
and (v) wrongly relies on the need to protect the effet utile of
the Community courts' in camera procedures.

2. Second, the Court of First Instance misinterpreted the term
‘overriding public interest’ in Article 4(2) in fine of the Regu-
lation by holding that, when written pleadings submitted to
the courts are in issue, the general public interest in the
content of proceedings before the Community courts is not
capable of overriding any interest protected by the court
proceedings exception.

The appellant claims that the Court should:

— quash the contested judgment in part insofar as it annulled
the decision of the Commission refusing access to docu-
ments requested by API as from the date of the hearing
concerning all actions save infringement proceedings;

— give final judgment in the matters that are the subject of this

appeal;

— order the Applicant in Case T-36/04 to pay the costs of the
Commission arising from that case and from the present
appeal.

Pleas in law and main arguments

that

The Commission respectfully submits that, first, the Court of
First Instance has erred in law by interpreting court proceedings
the institutions must consider
exception to the effect
requests for access to written pleadings in non-infringement
actions on a case by case basis as from the date of the hearing.
In this respect the Commission respectfully submits that the
conclusions of the Court of First Instance are inconsistent with
its reasoning, that the CFI did not take into account the interest
in the proper administration of justice or the interest of other
persons mentioned in the procedure, and that the CFI only
considered the rights and obligations of one of the parties.
Whilst court documents submitted by the institutions are not
excluded from the scope of Regulation 1049/2001 (1),
the
conclusion reached by the CFI has no basis in Community legis-
lation or in the case law of the Court of Justice.

C 22/38

EN

Official Journal of the European Union

26.1.2008

Second, the CFI has erred in law by interpreting the investiga-
tions exception to the effect that the Commission must consider
requests for access to written pleadings in infringement proceed-
ings under Article 226 EC on a case by case basis as from the
date of
including actions which have been
decided but not yet been resolved, thus weakening the ability of
the Commission as guardian of the Treaties to ensure respect by
Member States of their obligations under Community law.

the judgement,

Third,
the CFI has erred in law by interpreting the court
proceedings exception to the effect that the institutions must
consider requests for access to their written pleadings on a case
by case basis in actions which have been decided but which are
related to pending actions,
thus weakening their ability to
defend their interests before the Community Courts and weak-
ening the ability of the Commission as guardian of the Treaties
to seek to enforce Community law.

(1) OJ L 145, p. 43.

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

(Case C-541/07)

(2008/C 22/67)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia)

Defendant: Hellenic Republic

fall within the

2. The Commission takes the view that that prohibition does
not
application of Directive
field of
92/22/EEC, as amended by Directive 2001/92/EC, and must
be examined in the context of Articles 28 and 30 in the
absence of harmonisation at Community level.

3. That prohibition constitutes a measure having equivalent
effect to a quantitative restriction on the free movement of
goods that is contrary to Article 28 EC, given that it consti-
tutes in practice an obstacle to trade in Greece in such films
which are lawfully manufactured and in circulation in other
Member States.

4. The Commission also observes that the Greek authorities
have not succeeded in adducing sufficient evidence as to the
justification for the measure and as to the simultaneous
observance of proportionality.

5. More specifically, it has not been proved that criteria exist for
establishing, on the carrying out of checks, whether the films
in question meet certain minimum conditions, in accordance
with the submissions of the Greek authorities.

6. Consequently, the Commission considers that the legislation
in question constitutes an infringement of Article 28 EC that
cannot be justified on the basis of Article 30 EC or by over-
riding reasons relating to the public interest within the
meaning of the Court of Justice's case-law.

Action brought on 10 December 2007 — Commission of
the European Communities v Hellenic Republic

(Case C-548/07)

(2008/C 22/68)

Language of the case: Greek

Form of order sought

Parties

— declare that, by prohibiting in Decree 12078/1343 of
3 March 2004 of the Minister for Transport, as interpreted
on the basis of Circular 45007/4795 of 28 July 2004 issued
by the Directorate for Road Safety and the Environment,
window films which are manufactured and/or sold lawfully
on the market of other Member States of the European
Union from being placed on vehicle windows generally, the
Hellenic Republic has failed to fulfil
its obligations under
Articles 28 and 30 of the EC Treaty;

— order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

1. Following a complaint, the Commission examined the Greek
legislation which prohibits the placing of window films on
vehicle windscreens and on their windows generally.

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and M. van Beek)

Defendant: Hellenic Republic

Form of order sought

— declare that the Hellenic Republic has failed to fulfil its obli-
gations under Directive 96/34/EC (1) on the framework
agreement on parental leave concluded by UNICE, CEEP and
the ETUC and, more specifically, under Clauses 1(2), 2(1),
the agreement
2(3)(b), 2(3)(e) and (f), 2(4) and 2(6) of
annexed to that directive;

— order the Hellenic Republic to pay the costs.