CELEX: C1995/174/15
Language: en
Date: 1995-07-08 00:00:00
Title: Action brought on 28 April 1995 by X against the Commission of the European Communities (Case T-109/95)

No C 174/8         | EN                  Official Journal of the European Communities                                        8 . 7 . 95
1 . the application for interim measures is dismissed;                  undermine the objectives of the Community's policy on
                                                                        improved access to Community documents . Thus, if the
2.  the costs are reserved.
                                                                        Commission invokes an exception to the general access
                                                                        to its documents , it must establish the ' imperative
                                                                        reasons ' for which the conditions laid down in the
                                                                        exception clause are fulfilled, and deal with the
                                                                        particularities of the case and with the contents of the
                                                                        documents to which access is required .
                                                                        The applicant states that the Commission invoked two
Action brought on 18 April 1995 by WWF UK (World Wide                   reasons for its refusal to grant access to the documents in
Fund for Nature ) against the Commission of the European                question : its interest in the confidentiality of its
                         Communities
                                                                        proceedings and the protection of the public interest, in
                      ( Case T-105/95 )                                 particular, the ability of the Commission to conduct
                        ( 95/C 174/ 14 )                                infringement proceedings . However, the Commission
                                                                        did not provide any ' imperative reasons ' for which the
                                                                        disclosure of the documents in question would affect the
              (Language of the case: English)                           protection of its interest in the confidentiality of its
                                                                        proceedings ; and , as regards the second reason, the
An action against the Commission of the European                        Commission did not deal with the particularities of the
Communities was brought before the Court of First                       case : its reasoning consists entirely of general statements
Instance of the European Communities on 1 8 April 1995 by               which, if correct, would apply to all infringement
WWF UK ( World Wide Fund for Nature ), represented by Dr                proceedings . The applicant maintains therefore that the
Georg M. Berrisch, with an address for service in                       Commission wrongly invoked the exception clause in
Luxembourg at the Chambers of Turk et Prum, Avenue                      the Code of conduct and that, accordingly, the contested
Guillaume 13 B, L-1651 Luxembourg.                                      decision constitutes the most extensive breach possible
                                                                        for the applicant's right of access to Commission
                                                                        documents .
The applicant claims that the Court should :
                                                                    2 . Insufficient reasoning — Infringement of Article 190 of
— annul the decision of the European Commission                         the EC Treaty
    contained in a letter of 2 February 1995 from the
    Secretary-General of the European Communities to
    counsel for the applicant by which the Secretary-General            The applicant states that Article 190 requires that the
    confirmed the refusal of the Directors-General of DG XI             Community institutions must provide reasoning for
    and DG XVI to grant the applicant access to                         their decisions . The main purpose of this provision is to
    Commission documents relating to the examination of                 make judicial review of such decisions possible . In this
    the Mullaghmore project, and in particular to the                   respect, the duty to provide sufficient reasoning serves to
    examination of whether structural funds may be used                 protect the rights of defence of those concerned by the
                                                                        decision .
    for the project, and
— order the Commission to pay the costs of these                        The applicant emphasizes that the reasoning of the
    proceedings .                                                       contested decision does not deal with the particularities
                                                                        of the case . It consists only of broad statements and it
                                                                        does not suffice to justify the conclusion that the
Pleas in law and main arguments adduced in support:                     Commission was entitled to refuse to make public the
                                                                        documents in question .
The applicant submits that the contested decision must be
annulled for two reasons :
1 . Violation of the ' Code of conduct concerning public
    access to Commission and Council documents ' ( the
    ' Code of conduct') and of Decision 94/90/ECSC , EC,
    Euratom of 8 February 1994 on public access to                  Action brought on 28 April 1995 by X against the
    Commission documents ( the 'adopting Decision ').                       Commission of the European Communities
                                                                                            ( Case T-109/95 )
    The applicant maintains that the Code of conduct and
    the adopting Decision are legally binding on the                                          ( 95/C 174/ 15
    Commission and that they impose upon it an obligation
    to grant, to the widest extent possible, access to its                           (Language of the case: English)
    documents . This obligation is the corollary of a right
    enjoyed by natural and legal persons in the Community.
    The exception clause in the Code of conduct must be             An action against the Commission of the European
    interpreted strictly and its application may not                Communities was brought before the Court of First
 ---pagebreak--- 8 . 7. 95            LEN                    Official Journal of the European Communities                                   No C 174/9
Instance of the European Communities on 28 April 1995 by               The applicant submits that:
X, represented by Mr Drs. P. Bergkamp, with an address for
service in Luxembourg at c/o Ms Ruth Bleijerveld , Embassy
of the Netherlands, 5 , rue C. M. Spoo, L-2546                         ( a ) the measures decided in the judgment of 9 June 1994
Luxembourg.                                                                  necessarily include , under Article 1 76 of the EC Treaty,
                                                                             a decision as to the applicant's fitness without undue
                                                                             and unnecessary delay and without subjecting the
                                                                             applicant to any further medical examination ;
The applicant claims that the Court should :
                                                                       ( b ) the defendant has all information and data about the
— annul the decision of the Commission of the European                       applicant's fitness that is necessary to make a
     Communities        signed    by Frans          de    Koster,            decision ;
     Director-General , Directorate-General of Personnel and
     Administration , dated 17 February 1995, confirming
     the decision of the defendant, signed by Frans de Koster,         (c ) the defendant has had an opportunity to examine the
     Director-General , Directorate-General of Personnel and                 applicant, who has fully cooperated with all tests and
     Administration, dated 4 November 1994 and the                           examinations that the defendant has required ;
     decision of the defendant, signed by Nicolas Hoffmann,
     Chef du Service Medical, Directorate-General of
     Personnel and Administration, dated 2 August 1994,                ( d ) the health status of the applicant today is irrelevant, in
                                                                             so far as the Commission must only make a decision
                                                                             based on the applicant 's fitness at the time of the
— annul the decision of the defendant, signed by Frans de                    medical examination in 1990;
     Koster , Director-General, Directorate-General of
     Personnel and Administration, dated 1 February 1995 ,
     denying the applicant's claims for compensation of                ( e ) the defendant has refused to compensate the applicant's
     damages caused by the defendant's requirement that the                  damages caused by the liver biopsy and the breach of
     applicant undergo a liver biopsy , and the defendant's                  confidentiality, in spite of the fact that the decision to
     breach of its duty to maintain the confidentiality of the               require that the applicant undergo a liver biopsy was
     applicant's medical and personal data ,                                 not made solely and exclusively by the specialist, but
                                                                             was made by the defendant itself, and the fact that the
                                                                             defendant physicians have breached their obligations to
— order the defendant to compensate all material and                         maintain confidentiality and that the applicant has
     non-material damages caused by this biopsy and the                      suffered material and non-material harm as a result of
     breach of confidentiality, and                                          these wrongful acts of the defendant.
— order the defendant to pay the costs of ( 1 ) the
     proceedings and ( 2 ) the applicant's lawyer's fees, in
     accordance with applicable law.
Pleas in law and main arguments adduced in support:
                                                                       Action brought on 12 May 1995 by Friedel Borsch against
The applicant is the same as in case T-94/92, which has been            the Council of the European Union and the Commission of
judged by a judgment of 9 June 1 994, whereby the Court of                                the European Communities
First Instance has annulled the defendant's decision of
24 September 1991 and 3 July 1992, declaring that the                                          (Case T-120/95 )
applicant did not satisfy the requirement of physical fitness                                    ( 95 /C 174/ 16 )
laid down in Article 28 ( e ) of the Staff Regulations .
In 1990 , although the applicant had previously informed the                            (Language of the case: German)
defendant of a liver biopsy conducted in Spain, the
 Commission required a second liver biopsy, which resulted
 in confirming the results of the first one . As a complication         An action against the Council of the European Union and
 of the second biopsy, the applicant suffered a biliary                 the Commission of the European Communities was brought
 peritonitis, severe pain and suffering and his life was in             before the Court of First Instance of the European
 danger . Furthermore , without the applicant's consent, a              Communities on 12 May 1995 by Friedel Borsch of
 physician of the Commission's medical service has informed             Wipperfiirth, Germany, represented by Bernd Meisterernst,
 various other persons of the results of the liver biopsy.              Mechtild Diising, Dietrich Manstetten, Frank Schulze and
 Finally, by letter of 2 August 1 994 , the defendant invited the       Winfried Haneklaus, Rechtsanwalte, Miinster, with an
 applicant to make an appointment for a 'new                            address for service in Luxembourg at the Chambers of
 pre-appointment medical examination '.                                 Dupong & Associes, 14a Rue des Bains .