23.2.2008   

EN

Official Journal of the European Union

C 51/32

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Set aside paragraph 2 of the operative part of the judgment of the Court of First Instance of 12 September 2007 in Case T-36/04;

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annul the Commission's decision of 20 November 2003 in its entirety, in accordance with the forms of order sought by API before the Court of First Instance, and thus also in respect of the refused access to the pleadings submitted by the Commission in Case T-209/01 Honeywell v Commission, Case T-210/01 General Electric v Commission and Case C-203/03 Commission v Austria, and

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order the Commission to pay the costs.

1.

By the judgment under appeal, the Court of First Instance incorrectly applied Community law by failing to annul the Commission's decision in its entirety.

2.

On the one hand, the Court of First Instance found that, in accordance with Article 4(2) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council regarding public access to European Parliament, Council and Commission documents (1), the institutions are obliged to assess whether disclosure would specifically and in a concrete manner harm an interest protected by an exception. Only if that is the case can an exception form the basis of a refusal to disclose a document. That examination must be made in respect of each individual document. The applicant supports that conclusion.

3.

Nevertheless, on the other hand, the Court of First Instance concluded that in precisely that case the Commission was not obliged to carry out such an examination, by reference to the fact that there is a general requirement of confidentiality for documents lodged in pending cases until the oral procedure has taken place in the case. That general requirement for confidentiality is based in part on the right to a fair hearing before an impartial tribunal, in part on the fact that the Commission is to be able to uphold its interests as a party to the case. In that regard, the Court of First Instance found that the Commission did not make an incorrect assessment when it refused access to the documents lodged.

4.

In the view of the applicant the later ruling is incompatible with the obligation to examine the question of disclosure by reference to the contents of the specific document. By its judgment, the Court of First Instance thus incorrectly applied Community law.