CELEX: C1998/055/63
Language: en
Date: 1998-02-20 00:00:00
Title: Action brought on 23 December 1997 by Hanne Norup Carlsen and Others against the Council of the European Union (Case T-610/97)

C 55/32               EN                 Official Journal of the European Communities                                    20.2.98
Ð order the Commission to pay the entire costs.                     The applicants claim that the Court should:
Pleas in law and main arguments adduced in support:                 Ð annul the decision of the Council of the European
                                                                         Union of 3 November 1997 in so far as the Council
The applicant, formerly a temporary servant of the                       thereby refuses to release documents from the Legal
European Commission, has already brought two cases                       Services, including in particular:
before the Court of First Instance (1). The essential facts in
the present case are the same as those in Case T-47/97.                  Ð DOK.R/2026/77 (ENV.118) (AGRI 563),
The present case is directed against the decision of the                 Ð DOK.R/1867/77 (JUR.95) (ENV.106), and
appointing authority, contained in the letter which the
latter sent to the applicant on 14 January 1997, notified
on 22 January 1997. In that letter, the appointing                       Ð DOK.R/2048 dk/77 (ENV.199) (AGRI 568).
authority refused to accede to the applicant's request to
comply with the judgment of the Court of First Instance
of 27 February 1992 in Case T-165/89 (2) and thus                   Pleas in law and main arguments adduced in support:
withdraw the draft decision, as provided for in Article 19
of the Rules on the Insurance of Officials of the European
Communities against the Risk of Accident and of                     The applicants in the present case have brought
Occupational Disease, which it drew up on 27 November               proceedings against the Danish Prime Minister concerning
1996 on the basis of the medical opinions of new experts.           the question whether he was entitled to ratify the Treaty
In the present action the applicant seeks the annulment of          on European Union, on the ground that accession to that
the decision contained in the letter of 14 January 1997             Treaty was contrary to Article 20 of the Danish Grundlov
which takes a definitive position both as to the validity of        (Basic Law), which provides that powers vested in the
the draft decision of 27 November 1996 and on the sole              authorities of the Kingdom may, to a specified extent, be
means of challenging that action (by Committee). The                transferred by legislation to international authorities. The
applicant pleads breach of res judicata as well as failure to       case is at present pending before the Danish Hùjesteret
comply with the judgment in Case T-165/89, misuse of                (Supreme Court).
powers, infringement of Articles 18 and 19 of the
Insurance Rules, breach of the principle of sound
management as enshrined, for example, in Article 15 of              In the proceedings before the Hùjesteret, it has, according
Annex VIII to the Staff Regulations and, in the alternative,        to the applicants, become essential to gain access to
infringement of Article 73 of the Staff Regulations and             certain documents of the Council of the European Union
Article 12 of the Insurance Rules.                                  concerning legal measures which indicate the extent of the
                                                                    competence transferred to the European Union by the
                                                                    Danish legislation governing accession, including in
(1) Case T-165/89 (OJ C 23, 31.1.1990, p. 9); Case T-47/97 (OJ
    C 142, 10.5.1997, p. 22).                                       particular the question of the application of Article 235 of
(2) [1992] ECR II-367.                                              the Treaty prior to the Maastricht Treaty. During the
                                                                    proceedings before the Hùjesteret, the applicants requested
                                                                    that the Danish Government be ordered to produce a long
                                                                    list of documents, relating in particular to the views
                                                                    expressed by the other Member States and the Council's
                                                                    Legal Service regarding the legal basis for Council
                                                                    Directive 79/409/EEC of 2 April 1979 on the conservation
Action brought on 23 December 1997 by Hanne Norup                   of wild birds (OJ L 103, 25.4.1979, p. 1), and the
Carlsen and Others against the Council of the European              applicants' pleas were upheld in part by order of the
                              Union                                 Hùjesteret of 3 November 1997. The Hùjesteret did not in
                       (Case T-610/97)                              this connection address the issue of the release of
                                                                    documents held by the Council, an issue of which the
                          (98/C 55/63)                              applicants had notified the Council prior to the order.
               (Language of the case: Danish)
                                                                    In the contested decision, the Council acceded to the
                                                                    request for the release of documents, with the exception of
An action against the Council of the European Union was             those setting out the views of the Legal Services of the
brought before the Court of First Instance of the European          Council and the Commission, to which the applicants also
Communities on 23 December 1997 by Hanne Norup                      sought access. The Council stated in this connection that
Carlsen, Ingeborg Fangel, Nicolas Fischer, Jùrgen Erik              those views, in accordance with consistent practice, would
Hansen, Marianne Henriksen, Ole Donbñk Jensen,                      not be released, on the ground that publication of the
Yvonne Petersen, Iver Reedtz-Thott, Lars Ringholm and               opinions of the Legal Services on issues dealt with by the
Arne Würgler, represented by Karen Dyekjñr-Hansen, of               Council could adversely affect the public interest in the
the Copenhagen Bar, with an address for service in                  maintenance of legal certainty and the stability of
Luxembourg at the Chambers of Aloyse May, 31 Grand-                 Community law, as well as the public interest in ensuring
Rue.                                                                that the Council has access to independent legal advice.
 ---pagebreak--- 20.2.98              EN                  Official Journal of the European Communities                                  C 55/33
In support of their plea in law, the applicants argue that          Menen (Belgium), represented by P. Cavenaille and K.
the Council has failed to comply with the duty to state             Tanghe, of the LieÁge Bar, with an address for service in
reasons pursuant to Article 190 of the Treaty. The Council          Luxembourg at the Chambers of A. Schmitt, 62, avenue
has failed to explain adequately why release of the                 Guillaume.
documents to which access has been refused should be
contrary to the public interest'. Since the reason given
consists merely in a standard reference to opinions drafted         The applicant claims that the Court should:
by the Legal Services being exempted en bloc from the
right of access, without any kind of specific consideration
being paid as to whether the interests invoked regarding            Ð declare the application admissible and well founded,
the maintenance of legal certainty and the stability of
Community law apply in regard to the documents
requested, the decision must on that ground alone be                Ð rule that the defendants are liable for the damage
annulled as being vitiated by fundamental procedural                    suffered by the applicant,
defects.
                                                                    Ð consequently, order the defendants jointly and
The applicants further argue that the decision is contrary              severally to pay a sum provisionally fixed at
to fundamental principles of law concerning application of              BEF 46 655 281, subject to increase or decrease during
the Treaty, including in particular the principle in force on           the course of the proceedings, together with 8 %
transparency in the decision-making process (see                        interest from 1 January 1993, the date on which the
Declaration No 17 in the Final Act to the Treaty on                     damage was effectively suffered, to the date of
European Union, the Code of Conduct concerning Public                   payment in full,
Access to Council and Commission Documents (93/730/
EC, OJ L 340, 31.12.1993, p. 41), and Council Decision
93/731/EC of 20 December 1993 on public access to                   Ð order the defendants jointly and severally to pay the
Council documents (OJ L 340, 31.12.1993, p. 43)). The                   costs.
applicants submit in this connection that the exceptions to
the fundamental principle of transparency must be
                                                                    Pleas in law and main arguments adduced in support:
narrowly construed, and the Council cannot therefore
exempt an entire group of documents from the right of
access merely on the basis of their origin. On the contrary,        The applicant, a firm of customs agents, complains that
an examination must be made in each case as to whether              the defendants ruined its intra-Community business with
the interests referred to in the Code of Conduct provide            effect from 1 January 1993 by abolishing customs controls
justification for exempting a specific document from the            and formalities at internal borders through a series of acts
right of access. There are in this case no such specific            which it specifies in detail. It also complains that the
interests such as could justify the refusal to grant access.        defendants failed to adopt any effective transitional
                                                                    measures enabling customs agents progressively to adapt
                                                                    to the new situation. In that regard, it pleads inter alia
In the alternative, the applicants submit that the interests
                                                                    breach of acquired rights and violation of the principle of
pleaded by the Council do not appear to apply in regard
                                                                    the protection of legitimate expectations.
to the documents which they have requested. On the
contrary, the maintenance of legal certainty and the
stability of Community law can be guaranteed by allowing
the public to discover the full basis on which the Council
has adopted secondary legal measures.
                                                                    Action brought on 24 December 1997 by Wybo NV
                                                                    against the Commission of the European Communities
                                                                               and the Council of the European Union
                                                                                          (Case T-619/97)
Action brought on 24 December 1997 by Transfluvia NV
against the Commission of the European Communities                                          (98/C 55/65)
           and the Council of the European Union
                      (Case T-611/97)                                              (Language of the case: Dutch)
                        (98/C 55/64)
                                                                    An action against the Commission of the European
                (Language of the case: Dutch)                       Communities and the Council of the European Union was
                                                                    brought before the Court of First Instance of the European
                                                                    Communities on 24 December 1997 by Wybo NV, of
An action against the Commission of the European                    Poperinge (Belgium), represented by P. Cavenaille and K.
Communities and the Council of the European Union was               Tanghe, of the LieÁge Bar, with an address for service in
brought before the Court of First Instance of the European          Luxembourg at the Chambers of A. Schmitt, 62, avenue
Communities on 24 December 1997 by Transfluvia NV, of               Guillaume.