Case C-421/08 P: Appeal brought on 24 September 2008 by Calebus SA against the judgment delivered on 14 July 2008 in Case T-366/06 Calebus SA v Commission of the European Communities, supported by the Kingdom of Spain
Date: 2008-09-24
Institutions: Court of Justice
Subjects: European Commission, Mediterranean region (EU), appeal, directory, environmental protection, protected area

7.3.2009

EN

Official Journal of the European Union

C 55/5

Re:

Operative part of the judgment

Failure of a Member State to fulfil obligations — Failure to
adopt, within the prescribed period, the provisions necessary to
comply with Article 26(3) of Directive 2002/22/EC of the Euro-
pean Parliament and of
the Council of 7 March 2002 on
universal service and users' rights relating to electronic commu-
nications networks and services (Universal Service Directive)
(OJ 2002 L 108, p. 51)

Operative part of the judgment

The Court:

1. Declares that, by failing, for all calls to the single European emer-
gency call number ‘112’, to make caller location information avail-
able, to the extent technically feasible, to the authorities handling
emergencies, the Italian Republic has failed to fulfil its obligations
under Article 26(3) of Directive 2002/22/EC of the European
Parliament and of the Council of 7 March 2002 on universal
service and users'
communications
relating to electronic
networks and services (Universal Service Directive);

rights

2. Orders the Italian Republic to pay the costs.

(1) OJ C 37 of 9.2.2008.

The Court:

1. Declares that, by failing to take all the measures necessary to trans-
pose fully and/or correctly the obligations under Article 3(1) and
(2), Article 4(1), Article 5 and Article 8(1) of Council Directive
79/409/EEC of 2 April 1979 on the conservation of wild birds,
the Hellenic Republic has failed to fulfil its obligations under those
provisions;

2. Orders the Hellenic Republic to pay the costs.

(1) OJ C 209 of 15.8.2008.

Appeal brought on 24 September 2008 by Calebus SA
against the judgment delivered on 14 July 2008 in Case
the European
T-366/06 Calebus SA v Commission of

Communities, supported by the Kingdom of Spain

(Case C-421/08 P)

(2009/C 55/08)

Language of the case: Spanish

Judgment of the Court (Sixth Chamber) of 15 January 2009
— Commission of the European Communities v Hellenic
Republic

Parties

(Case C-259/08) (1)

Appellant: Calebus SA (represented by: R. Bocanegra Sierra,
lawyer)

(Failure of a Member State to fulfil obligations — Directive
79/409/EEC — Conservation of wild birds — Preservation
and maintenance of habitats — Classification of special
protection areas — Prohibition of hunting and capture —
Incorrect transposition)

(2009/C 55/07)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (repre-
sented by: M. Patakia and D. Recchia, acting as Agents)

Defendant: Hellenic Republic (represented by: E. Skandalou,
Agent)

Re:

Failure of a Member State to fulfil obligations — Failure to
transpose Article 3(1) of Council Directive 79/409/EEC of
2 April 1979 on the conservation of wild birds (OJ 1979 L 103,
p. 1) — Incorrect transposition of Article 3(2), Article 4(1),
Article 5 and Article 8(1) of that directive

Other parties to the proceedings: Commission of the European
Communities and the Kingdom of Spain

Form of order sought

Take note of the fact that the appeal was lodged against the
order of the Court of First Instance of 14 July 2008 declaring
inadmissible the action brought by Calebus SA in Case
T-366/06, allow the appeal and, after completion of all the legal
formalities, give a judgment upholding the appeal, setting aside
the judgment under appeal, declaring the action admissible and
uphold its claims.

Pleas in law and main arguments

T-366/06

The appeal is brought against the order of 14 July 2008 of the
Court of First Instance declaring inadmissible the action brought
in Case
SA against Decision
by Calebus
2006/613/EC (1) of 19 July 2006 adopting, pursuant to Council
Directive 92/43/EEC, the list of sites of Community importance
for the Mediterranean biogeographical region as regards the
inclusion of the farm ‘Las Cuerdas’ as the SCI ‘ES61110006
Ramblas de Gergal, Tabernas y Sur de Sierra Alhamilla’, which
appears on that list.

C 55/6

EN

Official Journal of the European Union

7.3.2009

In the appeal, the appellant takes the view that the order under
appeal
is vitiated by an error of law when it states that the
action is inadmissible because the appellant company has no
direct interest in the annulment of the decision. Contrary to the
findings in the order, Decision 2006/613 requires Member
States, in any event, per se and automatically to make sites clas-
sified as Sites of Community Importance (SCI),
including the
farm ‘Las Cuerdas’, to a protection scheme which necessarily
limits the uses to which it may be put, reducing their profit-
ability and sale value. The Member States have discretion to
determine the specific content of those measures, but not to
decide whether or not to submit the farms to measures of that
type, so that the existence of that discretion is not contrary to
the direct effect of the decision on the legal status of the appel-
lant undertaking.

(1) OJ 2006 L 259, p. 1.

Appeal brought on 14 November 2008 by the Kingdom of
Sweden against the judgment of the Court of First Instance
(Third Chamber, Extended Composition) delivered on
9 September 2008 in Case T-403/05 MyTravel Group plc v
Commission of the European Communities

(Case C-506/08 P)

(2009/C 55/09)

Language of the case: English

Parties

Appellant: Kingdom of Sweden (represented by: K. Petkovska, A.
Falk, and S. Johannesson, Agents)

Other parties to the proceedings: MyTravel Group plc, Commission
of the European Communities

Form of order sought

The appellant claims that the Court should:

— set aside paragraph 2 of the operative part of the judgment
of the Court of First Instance of 9 September 2008 (1) in
Case T-403/05,

— annul

the Commission Decision of 5 September 2005
(D(2005) 8461),
in accordance with the form of order
sought by MyTravel Group plc in the Court of First Instance,
in so far as concerns the refusal of access to the Commis-
sion's report and other working documents,

— annul

the Commission Decision of 12 October 2005
in accordance with the form of order

(D(2005) 9763),

sought by MyTravel Group plc in the Court of First Instance,
in so far as concerns the refusal of access to the Commis-
sion's other internal documents, and

— order the Commission to reimburse the Kingdom of Sweden

with its legal costs at the Court of Justice.

Pleas in law and main arguments

1. The principle of openness and access to the institutions'
documents is of great importance in all the institutions'
activities, and thus also in the administrative procedure
within an institution. Article 2(3) of the transparency regu-
lation also provides that the regulation is to apply to all
documents held by an institution, that is to say, documents
drawn up or received by it and in its possession, in all areas
of activity of the European Union. However, the reasoning
of the Court of First Instance on the main issues implies
that there should be a general requirement of confidentiality
in respect of internal documents in administrative matters.
That is not consistent with the principle of the greatest
possible openness.

2. In the appellant's view, the reasoning of the Court of First
Instance in the matter of the first Decision — regarding the
report and the documents relating to it — implies that it
was not necessary for the Commission to examine the
question of disclosure in relation to the content of each
individual document and to assess the sensitivity of the
information in the report and the other documents but
that, on the contrary, it was correct to refuse disclosure on
the ground that officials would otherwise not be able to
present their opinions freely. On the basis of the general
reasoning of
the Court of First Instance as regards the
protection of document authors' freedom of opinion, it is
not possible to decide when internal documents could be
disclosed at all.

3. The appellant considers that the Court of First Instance also
fails in the second decision — regarding other documents
in the file — to uphold the fundamental requirement of an
examination to determine whether the content of each indi-
is so sensitive that disclosure would
vidual document
seriously undermine the decision-making process. The
general reasoning of the Court of First Instance is essentially
that it would be impossible for officials in the Commission
to communicate freely if information not appearing in the
final decision were to become public. On the basis of such
reasoning, no examination is necessary to determine
whether the content of the documents in question is so
sensitive that disclosure would prejudice the decision-
making process.

4. The appellant questions whether the hearing officer's report
and the note from the Directorate-General for Competition
to the advisory committee can really be regarded as docu-
ments prepared for internal use which can therefore be
kept confidential under the provisions on the protection of
the internal decision-making procedure.