Case C-506/08 P: 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
Date: 2008-11-14
Institutions: Court of Justice
Subjects: European Commission, access to information, appeal, document, economic concentration, merger control, provision of documents, travel agency

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.

7.3.2009

EN

Official Journal of the European Union

C 55/7

5. In the appellant's view, the reasoning of the Court of First
Instance in the matter of opinions of the legal service is at
variance with the judgment of the Court in the Turco case.
Even if the present case does not concern legislation, clearly
an examination must also take place in this instance on the
basis of the content of the opinions. The fact that the
lawfulness of a previous decision could be called into ques-
tion does not of itself constitute a reason for not disclosing
the document — rather the contrary. The absence of infor-
mation can in itself give rise to doubt as to the lawfulness
of a certain decision and the legitimacy of the decision-
making process as a whole. The risk of doubt could also be
averted if the Commission clearly stated in the decision the
reasons why it had opted for a solution which the legal
service had advised against. The claim that the legal service
would be more reticent and cautious lacks any basis, in the
same way as the Court's reasoning regarding other docu-
ments. Besides, the appellant considers that the argument
that it would be difficult for the legal service to defend a
different position in court is stated in terms which are too
general to show that there is a risk which is reasonably
foreseeable and not purely hypothetical.

6. The appellant does not question that a large part of the
content of the documents in question may be so sensitive
and that it must remain confidential. Such a conclusion
must, however, be based, according to case-law, on a
specific and individual examination to determine whether
disclosure of the content of the document would result in
the interest to be protected being seriously undermined.

7. As regards the freedom of opinion of officials, the appellant
wishes to point out that it is incumbent on an official to
perform the duties which arise from the service and in
accordance with the staff regulations of officials employed
in the Community institutions. The fact that the public
have a legal right to scrutinise the activity does not consti-
tute an acceptable reason for him to neglect the proper
performance of his duties.

8. An undertaking which is party to a concentration of under-
in common with any Union citizen or business
takings,
with its seat in the European Union whatsoever, has a right
to be informed about a document even if the information
in the document is confidential
in order to protect the
internal decision-making procedure, if there is nevertheless
an overriding public interest in the disclosure of the docu-
ment. The considerations which MyTravel has put forward
could,
in the appellant's view, quite plausibly constitute
such a public interest and cannot be dismissed without
further examination — as the Court of First Instance has
done — solely with reference to the applicant's private
interests. The applicant is under no obligation either to
plead or to prove anything in that regard; rather, it is for
the institutions to ascertain whether there is an overriding
public interest.

9. The appellant submits that, by its decision, the Court of
First Instance has disregarded Community law and failed to
apply the second indent of Article 4(2) and the second sub-
paragraph of Article 4(3) of the transparency regulation
correctly.

10. In any event there are probably parts of the documents
which it should be possible to disclose pursuant to the
provisions on partial disclosure in Article 4(6) of the trans-
parency regulation.

(1) OJ C 272, p. 18.

sp.

z o.o.

Appeal brought on 27 November 2008 by HUP Uslugi
Polska
(formerly HP Temporärpersonal-
gesellschaft mbH) against the judgment of the Court of
First Instance (Fifth Chamber) delivered on 24 September
2008 in Case T-248/05 HUP Uslugi Polska sp. z o.o.
(formerly HP Temporärpersonalgesellschaft mbH) v Office
for Harmonisation in the Internal Market (Trade Marks and
Designs), Manpower, Inc.

(Case C-520/08 P)

(2009/C 55/10)

Language of the case: English

Parties

Appellant: HUP Uslugi Polska sp. z o.o. (formerly HP Temporär-
personalgesellschaft mbH) (represented by: M. Ciresa, Rechtsan-
walt)

Other parties to the proceedings: Office for Harmonisation in the
Internal Market (Trade Marks and Designs), Manpower, Inc.

Form of order sought

The appellant claims that the Court should:

— annul the judgment under appeal

— order OHIM to pay the costs

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First
Instance
in conjunction with
Article 7(1)(b), 7(1)(c), 7(1)(d) and 7(1)(g) of Council Regulation
No 40/94 on the Community trademark.

infringes Articles 51(1)(a)