Appeal brought on 7 August 2008 by Internationaler Hilfsfonds e.V. against the judgment delivered by the Court of First Instance (Fifth Chamber) on 5 June 2008 in Case T-141/05 Internationaler Hilfsfonds e.V. v Commission

(Case C-362/08 P)

(2008/C 272/20)

Language of the case: German

Parties

Appellant: Internationaler Hilfsfonds e.V. (represented by: H. Kaltenecker, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

The Court of First Instance declared the action for annulment brought by the appellant against the decision of the Commission, which refused to grant the appellant access to certain documents relating to Contract LIEN 97-2011 concerning the co-financing of a medical aid programme organised in Kazakhstan, inadmissible on the following grounds: the action for annulment was brought against a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings, and even if the contested decision were not merely confirmatory, it could also not be considered to be a decision against which, for the purposes of Regulation No 1049/2001, an action for annulment can be brought.

The judgment contains both serious errors of law and of fact.

First, as regards classifying the contested decision, the Court of First Instance failed to take into consideration that the notice which the Commission had sent to the appellant earlier by way of a response to a confirmatory application within the meaning of Article 7(2) of Regulation No 1049/2001 should have been regarded as invalid, since it had not been written by the Secretary General of the Commission and did not provide grounds or instructions on legally recognised rights. Since, as a consequence, the reply had no legal effect, it would not have been possible to bring an action for annulment against it. Therefore, only the contested decision — in other words, the Commission's reply to the appellant's new application — can be considered to be a final notice, which, in contrast to the position taken by the Court of First Instance, was actually sent following a fresh and complete examination of the situation by the Commission. Consequently, the contested decision cannot ‘simply be confirmatory’, since a measure that has no legal effect cannot be confirmed. However, regrettably, the Court of First Instance failed to examine the legal validity of the earlier Commission notice, which led to the wrong classification of the contested decision of the Commission.

Second, the Court of First Instance's claim that the contested decision constitutes a reply to an initial application within the meaning of Regulation No 1049/2001 and could, for that reason, not be considered to be a decision against which an action for annulment can be brought, is based on a wrong interpretation of Article 7(2) of Regulation No 1049/2001. The Court of First Instance overlooked that it is possible, but not obligatory under that regulation to make a confirmatory application. Taking that into consideration, and in the light of the Commission's hostile attitude throughout the entire preparatory phase, the appellant was no longer under an obligation to make a confirmatory application. In the course of the proceedings, the appellant requested that a reference to the nature of the regulation be added to the minutes of the hearing, since those minutes were incomplete in this respect. By refusing that request to make a correction to the minutes of the hearing, the Court of First Instance also committed a procedural error.