CELEX: C2000/149/26
Language: en
Date: 2000-05-27 00:00:00
Title: Case C-40/00: Action brought on 11 February 2000 by the Commission of the European Communities against the French Republic

C 149/16              EN                     Official Journal of the European Communities                                      27.5.2000
Pleas in law and main arguments                                         — The Court was wrong to dismiss the claim for damages
                                                                            solely on the ground that the Commission’s conduct could
                                                                            not constitute a wrongful act entailing the liability of
                                                                            the Community because the claims for annulment were
                                                                            dismissed and because the Commission is not obliged by
— Breach of essential procedural requirements and funda-                    Article 3 of Regulation No 17 to take a decision as to
    mental rights: the requirements of the right to a fair                  whether the alleged infringement took place or not. That
    hearing, respect for the rights of the defence and the need             argument is, moreover, unrelated to the dismissal of the
    to observe the audi alteram partem rule, preclude the                   application for interim measures, which of course does not
    prohibition of the production, after the hearing and before             require a decision first to be taken as to whether the alleged
    the judgment, of a document furnished voluntarily by a                  infringement took place as a finding that it is based on
    party for the debate and discussed before the Court. There              ‘substantial’‘well-documented’ evidence, as in the present
    can be no fair hearing if the court fails to consider a                 case, is sufficient, as acknowledged by the Commission
    document provided freely for the purposes of the debate                 whose opinion is corroborated by the document put
    by a party (a fortiori where the party is one of the                    forward ‘in error’ and then withdrawn with the authoris-
    institutions), on the pretext that that document, on reflec-            ation of the Court.
    tion, would be embarrassing for the party producing it.
    The plea alleging that the time taken to deal with the
    complaint and conclude the proceedings was unreasonable
    must (not may) be raised by the Court of its own motion,
    contrary to what the Court of First Instance suggests, as it
    is always what is considered to be a breach of a fundamen-
    tal right whether with regard to the administrative or the
    judicial procedure. In the present case, a period of two
    years must be considered unreasonable for the preliminary
    examination as it far exceeds the period of reflection              Action brought on 11 February 2000 by the Commission
    necessary and a period of five and a half years is equally          of the European Communities against the French Republic
    unreasonable for the proceedings.
                                                                                                 (Case C-40/00)
— Manifest error regarding the probative force of the evidence                                  (2000/C 149/26)
    produced by the complainant.
                                                                        An action against the French Republic was brought before the
                                                                        Court of Justice of the European Communities on 11 February
— Manifest error in the assessment that there is insufficient           2000 by the Commission of the European Communities,
    Community interest and that there is a discretion to refrain        represented by Enrico Traversa, Legal Adviser, and Christophe
    from ordering the cessation of serious infringements on             Giolito, of its Legal Service, acting as Agents, with an address
    the pretext of establishing priorities: the Court made an           for service in Luxembourg at the office of Carlos Gómez de la
    error of assessment of fact and law in taking the view              Cruz, Wagner Centre, Kirchberg.
    that the Commission was entitled not to pursue the
    infringements committed by PSA and to choose to deal
    instead with the Volkswagen file. As regards the centre of          The applicant claims that the Court should:
    gravity for the infringement, it cannot be limited to France,
    given that pressure is put on foreign dealers in other
    Member States and that the infringement is committed
    primarily at that level, thus outside France, so that,              — declare that by reintroducing from 1 January 1998 a total
    because of the cross-border nature of the infringement the              prohibition on the right to deduct VAT on gas oil used as
    Commission was best-placed to deal with the file and make               fuel for vehicles on the purchase of which no VAT is
    the investigations pursuant inter alia to Article 5 of the EC           deductible after having introduced a partial right to deduct
    Treaty.                                                                 several times the French Republic has failed to fulfil its
                                                                            obligations under Article 17(2) of the Sixth Council
                                                                            Directive 77/388/EEC of 17 May 1977 on the harmon-
                                                                            ization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax:
— Manifest error as regards interim measures: if the Court                  uniform basis of assessment (OJ 1977 L 145, p. 1);
    upholds the above pleas it cannot but uphold the plea
    alleging that there was an error in refusing to order interim
    measures.                                                           — order the French Republic to pay the costs.
 ---pagebreak--- 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.