ORDER OF THE COURT (Eighth Chamber)

29 November 2007 (*)

(Appeals – Order for removal from the Register – Discontinuance – Costs)

In Case C‑122/07 P,

APPEAL under Article 56 of the Statute of the Court of Justice, lodged on 20 February 2007,

Eurostrategies SPRL, established in Brussels (Belgium), represented by R. Lang and S. Crosby, solicitors,

appellant,

the other party to the proceedings being:

Commission of the European Communities, represented by P. Costa de Oliveira and I. Hadjiyiannis, acting as Agents, with an address for service in Luxembourg,

defendant at first instance,

THE COURT (Eighth Chamber),

composed of G. Arestis, President of the Chamber, R. Silva de Lapuerta (Rapporteur) and E. Juhász, Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1        In its appeal, Eurostrategies SPRL (‘Eurostrategies’) requests the Court of Justice to set aside the order of the Court of First Instance of the European Communities of 1 December 2006 in Case T‑203/06 Eurostrategies v Commission (not published in ECR, ‘the order under appeal’), by which it removed Case T‑203/06 from the Register of the Court of First Instance.

 The facts of the dispute and the order under appeal

2        Following a tendering procedure for a Community financing project in the field of Justice and Home Affairs, three undertakings, including Eurostrategies, submitted tenders. As the procedure did not produce the desired results, the Commission of the European Communities abandoned the project.

3        In order to find out why the contract had not been awarded and the tendering procedure had been cancelled, Eurostrategies made a request on 21 June 2006 for access to a certain number of documents concerning the procedure. The Commission replied to that request on 29 June 2006, referring that undertaking to the national authorities concerned.

4        On 30 June 2006, Eurostrategies made a new request for access to the documents. The Commission received that request on 6 July 2006, and announced that it would reply by 28 July 2006 at the latest. On that date, the Commission sent Eurostrategies an official note extending that time‑limit to 21 August 2006.

5        On 1 August 2006, Eurostrategies brought an action before the Court of First Instance seeking annulment of the implied decision by which the Commission had refused it access to the documents requested.

6        On 21 August 2006, the Commission sent Eurostrategies a letter referring, in particular, to the holding reply of 28 July 2006. It also stated that it was doing its utmost to reply to the undertaking’s request. Thus, on 9 October 2006, the Commission forwarded three documents to Eurostrategies. Following that letter, further documents were sent on 23 October 2006.

7        In those circumstances, on 25 October 2006, Eurostrategies lodged at the Court of First Instance an application to discontinue its action, seeking an order that the Commission pay the costs on the ground that it was the latter’s inactivity which had caused the application to be brought.

8        In its application for discontinuance, Eurostrategies claimed that it had not received a reply from the Commission within the time‑limit indicated in the communication of 6 July 2006, namely 28 July 2006, and that, consequently, it had been obliged to bring an action before the Court of First Instance.

9        On 9 November 2006, the Commission informed the Court of First Instance that it did not oppose the request for removal from the register, but that it sought an order that Eurostrategies pay the costs. In that statement of its position, the Commission contended that it had sent Eurostrategies a ‘holding reply’ on 28 July 2006.

10      On 11 December 2006, Eurostrategies’ lawyers received from the Registrar of the Court of First Instance a copy of the Commission’s observations on the application for discontinuance along with a certified copy of the order under appeal.

11      The Court of First Instance stated, at paragraph 4 of the order under appeal, that it was clear from Article 87(5) of its Rules of Procedure that the onus lay on Eurostrategies to establish that there had been conduct on the part of the Commission which justified derogation from the general rule in the first subparagraph of that provision so that that institution should be ordered to pay the costs of the proceedings.

12      At paragraphs 5 and 6 of the order under appeal, the Court of First Instance found that the Commission had established that it sent a holding reply to Eurostrategies on 28 July 2006. In those circumstances, the Court of First Instance was unable to find that the Commission’s conduct justified that it be ordered to pay the costs.

13      The Court of First Instance therefore applied the first sentence of the first subparagraph of Article 87(5) of its Rules of Procedure and, consequently, ordered Eurostrategies to pay the costs.

 Forms of order sought

14      Eurostrategies claims that the Court should:

–        annul the order under appeal quo ad its reasoning only; and

–        order the Commission to pay the costs.

15      The Commission contends that the Court should:

–        dismiss the appeal as manifestly inadmissible;

–        in the alternative, dismiss the appeal as unfounded; and

–        order Eurostrategies to pay the costs.

 Arguments of the parties

16      In support of its submissions, Eurostrategies relies, essentially, on pleas in law alleging, respectively, a breach of the right to a fair trial, in particular of the principle that both parties should be heard, a breach of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), and a manifest error of assessment and, in the alternative, an infringement of Community law concerning the legal effects of an email.

17      Eurostrategies states that it seeks annulment of the order under appeal solely in respect of its grounds. As drafted, the grounds imply that Eurostrategies attempted to mislead the Court of First Instance, calling into question the reputation of both the appellant and its lawyers.

18      The Commission contends that the appeal is inadmissible. It submits that Eurostrategies cannot appeal the order under appeal, since it discontinued its own action by seeking the removal of Case T‑203/06 from the register. Eurostrategies was unsuccessful only as to costs.

 The appeal

19      Under Article 119 of the Rules of Procedure, where an appeal is, in whole or in part, clearly inadmissible or clearly unfounded, the Court may at any time, acting on a report from the Judge-Rapporteur and after hearing the Advocate General, dismiss the appeal by reasoned order.

20      A ruling must be made under that provision.

21      In accordance with the second paragraph of Article 58 of the Statute of the Court of Justice, no appeal lies regarding only the amount of the costs or the party ordered to pay them.

22      With regard to this appeal, it is necessary to point out that the operative part of the order under appeal contains two points: the removal of Case T-203/06 from the Register of the Court of First Instance and an order for Eurostrategies to pay the costs.

23      Eurostrategies, however, challenges only those grounds of the order under appeal which have a direct bearing on point 2 of its operative part, relating to costs.

24      It is apparent from the abovementioned provision of the Statute of the Court of Justice that review of liability to pay the costs falls outside the Court’s jurisdiction.

25      As a consequence, in application of Article 119 of the Rules of Procedure, the appeal must be dismissed as manifestly inadmissible.

 Costs

26      Under Article 69(2) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission applied for costs against Eurostrategies and the latter has been unsuccessful, Eurostrategies must be ordered to pay the costs.

On those grounds, the Court (Eighth Chamber) hereby orders:

1.      The appeal is dismissed.

2.      Eurostrategies SPRL is ordered to pay the costs.

Luxembourg, 29 November 2007.

R. Grass

G. Arestis

Registrar

President of the Eighth Chamber

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* Language of the case: English.