Case C-28/08 P: Appeal brought on 24 January 2008 by Commission of the European Communities against the judgment of the Court of First Instance (Third Chamber) delivered on 8 November 2007 in Case T-194/04: Commission of the European Communities v The Bavarian Lager Co. Ltd, European Data Protection Supervisor (EDPS)
Date: 2008-01-24
Institutions: Court of Justice
Subjects: European Commission, United Kingdom, access to EU information, action for annulment (EU), appeal, beer, provision of documents, quantitative restriction

29.3.2008

EN

Official Journal of the European Union

C 79/21

The Court of First Instance failed to ascertain whether the judi-
cial system provides a means of redress that would enable the
chairman of a committee to apply for a declaration of unlawful-
ness in respect of the conduct of the President of the European
Parliament where the latter exceeds his powers under the Rules
of Procedure and thereby infringes the participation rights of a
committee chairman or of the Parliament as a whole.

The Court of First Instance the Court held that Article 8(b) of
Regulation (EC) No 45/2001 of the European Parliament and of
the Council of 18 December 2000 on the protection of indivi-
duals with regard to the processing of personal data by the
Community institutions and bodies and on the free movement
of such data (2) may not be applied in the case of personal data
in documents held by an institution falling under Regulation
1049/2001. However no provision of
either Regulation
45/2001 or Regulation 1049/2001 requires or permits this
provision to be disabled in order to permit a norm under Regu-
lation 1049/2001 to have effect. The CFI has therefore erred in
law in interpreting Article 4(1)(b) of Regulation 1049/2001 so
as require a provision of Community law to be set aside.

Appeal brought on 24 January 2008 by Commission of the
European Communities against the judgment of the Court
of First Instance (Third Chamber) delivered on 8 November
2007 in Case T-194/04: Commission of
the European
Communities v The Bavarian Lager Co. Ltd, European Data
Protection Supervisor (EDPS)

Second, the Court held that, notwithstanding the specific refer-
ence in Article 4(1)(b) to Community legislation on data protec-
tion, personal data in documents shall be disclosed to the public
under Regulation 1049/2001 except in cases where there is a
clear risk of undermining the protection of the right of privacy
and integrity of the individual.

(Case C-28/08 P)

(2008/C 79/36)

Language of the case: English

Parties

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

Other parties to the proceedings: The Bavarian Lager Co. Ltd,
European Data Protection Supervisor

Form of order sought

The appellant claims that the Court should:

— to quash the contested judgment in full;

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

this appeal; and

— to order the Applicant in Case T-194/04 to pay the costs of
the Commission arising from that case and from the present
appeal, or, in the event of a ruling against the Commission
upon appeal, to order that the Commission should pay half
the costs of the Applicant in Case T-194/04 arising from
that case.

Pleas in law and main arguments

the interpretation of

This appeal concerns
the exceptions
relating to the protection of privacy and data protection and
investigations set forth respectively in Articles 4(1)(b) and 4(2),
2nd indent of Regulation (EC) No 1049/2001 of 30 May 2001
regarding public access to European Parliament, Council and
Commission documents (1).

By limiting the scope of the exception under Article 4(1)(b) to
such cases, the Court has adopted a restrictive interpretation of
the exception in Article 4(1)(b) which deprives the additional
requirement in the second part of that exception (‘in particular
in accordance with Community legislation on data protection’)
of its effet utile. The Court has erred in law in limiting the said
exception to exclude Community legislation on data protection
from its scope in cases where access is requested to personal
data contained in a document.

Third, the Court adopted an interpretation of the exception
relating to the protection of ‘investigations’ which casts doubt on
the ability of the Commission to carry out its functions effec-
tively by relying on information received on a confidential basis
from third parties in order for them to assist the Commission in
conducting its inquiries.

The CFI has erred in law by interpreting the exception relating
to investigations in Article 4(2), third indent, of Regulation
1049/2001 to the effect that the Commission may not provide
assurances of confidentiality made in the course of its investiga-
tions of an alleged violation of Community law, nor respect
such assurances in the future.

Finally, the Commission has appealed on costs.

(1) OJ L 145, p. 43.
(2) OJ L 8, p. 1.