Appeal brought on 14 February 2005 by Kingdom of Sweden against the judgment delivered on 30 November 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-168/02 between IFAW Internationaler Tierschutz-Fonds gGmbH, supported by Kingdom of the Netherlands, Kingdom of Sweden and by Kingdom of Denmark and Commission of the European Communities, supported by United Kingdom of Great Britain and Northern Ireland

(Case C-64/05 P)

(2005/C 115/18)

Language of procedure: English

An appeal against the judgment delivered on 30 November 2004 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-168/02 (1) between IFAW Internationaler Tierschutz-Fonds gGmbH, supported by Kingdom of the Netherlands, Kingdom of Sweden and by Kingdom of Denmark and Commission of the European Communities, supported by United Kingdom of Great Britain and Northern Ireland, was brought before the Court of Justice of the European Communities on 14 February 2005 by Kingdom of Sweden, represented by K. Wistrand, acting as agent.

The Appellant claims that the Court should:

Pleas in law and main arguments:

The Swedish Government submits that the Court of First Instance has infringed Community law in the judgment under appeal.

The Court of First Instance first observed that the right of access to documents of the institutions, provided for in Article 2 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (‘openness regulation’), covers all documents held by those institutions and, as a result, they may be required, in appropriate cases, to make available documents originating from third parties, including, in particular, the Member States. The Court of First Instance pointed out that the so-called authorship rule, that is to say, the principle that the person who drew up a document has control over the document and thus decides whether it may be disclosed, regardless of who holds the document, was not incorporated into the Regulation.

The Court of First Instance none the less took the view that Article 4(5) of the openness regulation implies that the Member States are subject to special treatment and that the authorship rule therefore applies to documents drawn up by Member States. To justify that position, the Court of First Instance pointed out, first, that the obligation to obtain agreement, under Article 4(5) of the openness regulation, would otherwise risk becoming a dead letter and, second, that it is neither the object nor the effect of that regulation to amend national legislation. According to the Court of First Instance, the Member State is under no obligation to state the reasons for any request made by it under Article 4(5) of the openness regulation.

However, the Swedish Government finds that there is no express and unequivocal support for the Court of First Instance's interpretation in the provision in question or elsewhere in the openness regulation. Under those circumstances none of the arguments on which the Court of First Instance based its interpretation, either on its own or taken together with the others, can constitute a reason to disregard the fundamental rule on which the openness regulation is based. According to the regulation, it is for the institution holding the document to assess whether a document should be disclosed. If none of the exceptions to the rule of disclosure in Articles 4(1) to 4(3) of the openness regulation is applicable, the document is to be disclosed. The obligation to obtain agreement under Article 4(5) of the openness regulation is a procedural rule which would serve its purpose even if the Member States were not allowed an absolute right of veto. Nor does the absence of a right of veto entail any amendment to national legislation.

Under the openness regulation a decision to refuse access to a document can only be made on the basis of one of the exceptions set out in Article 4(1) to 4(3). If the Member State in question does not state reasons for its refusal to disclose a document, that Member State thus incurs the risk that the institution will not be in a position to find that there is a specific need for confidentiality which can constitute a ground not to disclose the document according to the exceptions to the rule of disclosure in the openness regulation.

None of the arguments on which the Court of First Instance based its decision is sufficient to allow an exception in respect of documents from the Member States to be made to the fundamental principle that it is the institution which holds a document which is responsible for assessing whether it should be disclosed. The decision of the Court of First Instance thus infringed Community law.

(1)  OJ C 202, 24.08.2002, p. 30.