CELEX: C2000/149/27
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-41/00 P: Appeal brought on 11 February 2000 by Interporc Im- und Export GmbH against the judgment delivered on 7 December 1999 by the Court of First Instance of the European Communities (First Chamber, Extended Composition) in Case T-92/98 brought by Interporc Im- und Export GmbH against Commission of the European Communities

27.5.2000             EN                     Official Journal of the European Communities                                       C 149/17
Pleas in law and main arguments                                         Pleas in law and main arguments
The Commission considers that France exhausted its right to             — Unlawfulness of the Commission’s examination of the
decide on deductible expenditure on 1 July 1982, that is to say             application for access to documents: the Court made
on the day it introduced a partial right to deduct VAT on gas               an incomplete and therefore unlawful appraisal of the
oil used as fuel (Law 82-540 of 28 June 1982). Since then                   appellant’s submissions. It considered neither its arguments
France has been outside the scope of Article 17(6) of Directive             concerning ‘forfeiture’ of the right to cite certain grounds
77/388/EEC and the transactions in question are now covered                 nor the argument that the Commission’s renewed refusal
by the general rule contained in Article 17(2). Accordingly the             was based on an incomplete legal appraisal of the grounds
French authorities are no longer empowered to lay down                      for refusal under consideration. Finally, the Court failed
specific conditions limiting the right to deduct under Article              entirely to address the fact that the Commission’s tactic of
17(2).                                                                      citing only one ground for refusal each time frustrates the
                                                                            subjective right to access to documents and gives rise to
                                                                            an unacceptable gap in legal protection.
                                                                        — Invalidity of the authorship rule by reason of breach of a
                                                                            higher-ranking principle of law, in the alternative
                                                                            erroneous interpretation and application in law and breach
                                                                            of the requirement to state reasons:
Appeal brought on 11 February 2000 by Interporc Im-                         — Because of geographical distance, linguistic and other
und Export GmbH against the judgment delivered on                                ‘technical’ problems — such as unfamiliarity with
7 December 1999 by the Court of First Instance of                                the allocation of the relevant responsibilities and
the European Communities (First Chamber, Extended                                procedures in third countries it is hardly ever possible
Composition) in Case T-92/98 brought by Interporc Im-                            for an individual to request access to and inspect
und Export GmbH against Commission of the European                               documents within the time period prescribed. The
                         Communities                                             Commission cannot evade its ‘constitutional’ duty to
                                                                                 provide access to documents in its possession, simply
                                                                                 by referring an applicant to the author of the docu-
                        (Case C-41/00 P)                                         ments, if the legal and technical requirements for the
                                                                                 effective assertion of the right to access to documents
                                                                                 are not thereby fulfilled. This is so a fortiori if the
                        (2000/C 149/27)                                          documents at issue are closely connected with the
                                                                                 implementation of Community law, as here with the
                                                                                 monitoring of a Community quota for the importation
An appeal against the judgment delivered on 7 December                           of Argentinian beef. Contrary to the view of the Court,
1999 by the Court of First Instance of the European Communi-                     the authorship rule breaches a higher-ranking principle
ties (First Chamber, extended composition) in Case T-92/98                       of law, it is incompatible with the requirement for
brought by Interporc Im- und Export GmbH against Com-                            transparency, which is a general principle of law based
mission of the European Communities was brought before the                       on the principle of democracy, and therefore void.
Court of Justice of the European Communities on 11 February
2000 by Interporc Im- und Export GmbH, represented by
Georg M. Berrisch, Rechtsanwalt, Brussels and Hamburg, of
Gaedertz Rechtsanwälte, Avenue de Tervuren 35, B-1040                       — (In the alternative) A genuinely narrow construction
Brussels.                                                                        in the light of the (higher-ranking) requirement for
                                                                                 transparency should have led to the interpretation of
                                                                                 the authorship rule as a guideline, contrary to its
                                                                                 wording. An important criterion for the correct exer-
The appellant claims that the Court should:                                      cise of discretion and the review thereof by the court is
                                                                                 the legal and technical practicability of the claim to
                                                                                 access to documents vis-à-vis the author. However the
1. Set aside paragraphs 2 and 3 of the operative part of the
                                                                                 Court has accepted that in applying the authorship
    judgment of the Court of First Instance in Case T-92/98,
                                                                                 rule the Commission may act of its own motion and
    Interporc Im- und Export GmbH v Commission.
                                                                                 has an unlimited discretion in deciding whether to
                                                                                 disclose documents produced by third parties.
2. Declare the decision of the Secretary-General of the
    Commission of 23 April 1998 void in its entirety.
3. Order the Commission to pay the costs of the appeal and
    the costs of the case at first instance.