CELEX: C2000/135/35
Language: en
Date: 2000-05-13 00:00:00
Title: Case T-41/00: Action brought on 25 February 2000 by British American Tobacco International (Holdings) B.V. against the Commission of the European Communities

C 135/18              EN                      Official Journal of the European Communities                                    13.5.2000
Action brought on 24 February 2000 by the Consorzio                      In the present case, the fact that the Italian State has no
Industric Fiammiferi (CIF) against the Commission of the                 interest in denying the CIF knowledge of the Commission’s
                   European Communities                                  investigation of the consortium’s arrangements is evident from
                                                                         the fact that the Amministrazione dei Monopoli (cf. the
                                                                         Monopolies Commission) has granted the CIF access to
                         (Case T-40/00)                                  all documents (national and Community) relating to that
                                                                         procedure. Furthermore, the documentation requested con-
                                                                         cerns investigations which have been closed for years.
                        (2000/C 135/34)
                                                                         Lastly, the CIF maintains that its rights of defence have been
                  (Language of the case: Italian)                        infringed.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               (1) OJ L 46 of 18.2.1994, p. 58.
European Communities on 24 February 2000 by the Consor-
zio Industrie Fiammiferi (CIF), with Antonio Tizzano and Gian
Michele Roberti, of the Naples Bar, with an address for service
in Brussels at 36 Place du Grand Sablon.
The applicant claims that the Court should:
— annul the contested measure;
— order the Commission to pay the costs of the proceedings.              Action brought on 25 February 2000 by British American
                                                                         Tobacco International (Holdings) B.V. against the Com-
                                                                                    mission of the European Communities
Pleas in law and main arguments
                                                                                                  (Case T-41/00)
The CIF seeks annulment of the Commission’s measure of
29 March 1999 requesting that the Communication sent by                                          (2000/C 135/35)
the Commission to the Italian anti-trust authorities in the
context of a preliminary investigation be classified as secret.
                                                                                            (Language of the case: English)
Those authorities have brought ‘anti-trust’ proceedings against
the CIF and members of the consortium, seeking a declaration
that they have infringed Articles 81 and 82 of the EC Treaty.            An action against the Commission of the European Communi-
In the statement of complaints, the following infringements of           ties was brought before the Court of First Instance of the
Article 81 were alleged: an agreement between the members                European Communities on 25 February 2000 by British
of the consortium with a view to partition of production                 American Tobacco International (Holdings) B.V., having its
through consortium bodies, an agreement between the CIF                  registered office in the Netherlands, represented by Scott
and Swedisch Match SA with a view to partition of the Italian            Crosby, Solicitor, of Kemmler Rapp Böhlke & Crosby, 9 Rond
match market, and an agreement between the CIF and                       Point Schuman, Brussels.
the Consorzio Nazionale Attività Economica Distributiva
Integrata.
                                                                         The applicant claims that the Court should:
According to the CIF, the Commission based its refusal on the
provisions of the Code of Conduct on public access to                    — annul the decision of the Commission of 20 January
Commission documents, approved by Commission Decision                        2000 refusing access to the minutes of the Excise Duty
No 90/40/ECSC, EC, Euratom (1). The CIF maintains that, in so                Committee in relation to discussions on Articles 7, 8, 9,
doing, the Commission acted incorrectly, since that Decision                 10, 23, 27 and 28 of Directive 92/12/EEC since 1 January
in no way permits documents such as those at issue to be                     1993 in the Committee’s non-comitology capacity;
classified as secret. Specifically, such documentation is not
covered by the exception relating to protection of the public
interest. That derogation can be justified only where the                — order the Commission to pay the applicant’s costs pursuant
Member States concerned have a right to expect that the                      to Article 87 of the Rules of Procedure of the Court of First
Commission respect confidentiality.                                          Instance.
 ---pagebreak--- 13.5.2000              EN                    Official Journal of the European Communities                                      C 135/19
Pleas in law and main arguments                                         — total non-access is not compatible with the principles of
                                                                             accountability, legal certainty and proportionality.
                                                                        (1) Council Directive 92/12/EEC of 25 February 1992 on the general
                                                                            arrangements for private subject to excise duty and on the
                                                                            holding, movement and monitoring of such products (OJ 1992
The applicant states that its business has been affected by the             L 76, p. 1)
abolition, with effect from 1 July 1999, of tax- and duty-free          (2) Commission Decision 94/90/ECSC, EC, Euratom of 8 February
sales to travellers on intra-EU journeys. It has a vital interest in        1994, on public access to Commission documents (OJ 1994 L 46,
understanding the legal rules governing the tax- and duty-free              p. 58).
sales in place since 1 July 1999 and the position of tax- and
duty-free supplies to the bodies and in the circumstances
mentioned in Article 23 of Directive 92/12/EEC (1). It therefore
requested access to certain minutes of the Committee on
Excise Duties relating to discussions on some of the provisions
of that directive. By letter of 20 January 2000, the Secretary
General refused to forward, even in non-confidential form, the
minutes of the Committee relating to its non-comitology                 Action brought on 28 February 2000 by City-Broker
capacity.                                                               Deutschland GmbH against the Office for Harmonisation
                                                                              in the Internal Market (Trade Marks and Designs)
                                                                                                  (Case T-42/00)
The Commission denies access to the documents on the                                             (2000/C 135/36)
grounds of confidentiality, requested by the person that
supplied the information, and of protecting the institution’s
interest in the confidentiality of its proceedings, i.e. the                               (Language of the case: German)
discussions with the Committee. For the Commission, the
Committee has comitology and non-comitology functions; in
its comitology function, its work aims at preparing formal              An action against the Office for Harmonisation in the Internal
legal acts to be adopted and published by the Commission,               Market (Trade Marks and Designs) was brought before the
whereas in its non-comitology function it offers a forum                Court of First Instance of the European Communities on
enabling the Member States to exchange opinions and ideas,              28 February 2000 by City-Broker Deutschland GmbH, of
and the role of the Commission consists in stimulating the              Munich (Germany), represented by Gert Würtenberger,
discussion in order to reach more uniform application, but              Rechtsanwalt, of Messrs Wuesthoff & Wuesthoff, Schweiger-
also, as guardian of the Treaty, in ensuring that Member States         strasse 2, Munich.
do not exceed the boundaries fixed in Community legislation.
The Commission considers that the Committee in its non-                 The applicant claims that the Court should:
comitology function has no legislative role or any similar role
and therefore attributes to the exception of confidentiality the        — annul the decision adopted on 16 December 1999 by the
widest scope possible.                                                       Third Board of Appeal of the Office for Harmonisation in
                                                                             the Internal Market in the appeal proceedings registered
                                                                             under number R 319/1999-3;
                                                                        — declare that the mark ‘CityBroker’, the subject of the
                                                                             application, is capable of registration;
The applicant contends that the Commission has misapplied
the rules relating to public access to Commission documents (2)         — order the Office to register the mark in the Community
(the Access Rules) on the following grounds:                                 Trade Mark Register.
                                                                        Pleas in law and main arguments
— the distinction between the comitology and non-comito-
    logy functions has no validity in the case of the Access            The trade mark con-             ‘CityBroker’     —    application
    Rules;                                                              cerned:                         No 303 099
                                                                        Goods or service con-           Services in Class 35
                                                                        cerned:
— the Commission has failed in the Decision to meet the                 Decision contested be-          Refusal of registration by the
    criteria for either confidentiality exception in light of the       fore the Board of Ap-           examiner
    principles of accountability arid legal certainty;                  peal: