Appeal brought on 8 March 2007 by Commission of the European Communities against the judgment delivered by the Court of First Instance (Fifth Chamber) on 14 December 2006 in Case T-237/02 Technische Glaswerke Ilmenau GmbH v Commission of the European Communities

(Case C-139/07P)

(2007/C 140/11)

Language of the case: German

Parties

Appellant: Commission of the European Communities (represented by V. Kreuschitz and P. Aalto, acting as Agents)

Other parties to the proceedings: Technische Glaswerke Ilmenau GmbH, Schott Glas, Kingdom of Sweden and Republic of Finland

Form of order sought

Pleas in law and main arguments

The Commission of the European Communities request the Court to set aside the judgment of the Court of First Instance of 14 December 2006 in Case T-237/02, which annuls the decision of the Commission of 28 May 2002 in so far as it refuses access to documents relating to the investigation of aid granted to Technische Glaswerke Ilmenau GmbH.

According to the settled case-law of the Court of First Instance and the Court of Justice, the parties, and accordingly the recipient of aid, have no right of access to documents in cases of investigation of aid. It follows that the decision of the Court of First Instance erred in law in paragraphs 87 to 89 of the judgment under appeal by stating that there were no special circumstances making it manifestly clear that the access to documents requested should be refused. In fact, it is clear from the case-law that the documents concerned are fully covered by an exception to the right of access to documents and accordingly that each document should not be individually examined.

Furthermore, cases of investigation of aid are proceedings against the State granting the aid, particularly where the recipient of the aid has no entitlement to aid. Accordingly, what is relevant to the question of access to documents is what the Court of Justice itself has ruled in relation to actions for infringement under Article 226 EC, namely that there is no public no right of access to documents in such proceedings.

The judgment under appeal also leads to the absurd result that the general public enjoys, on the basis of the legislation promoting transparency, namely Regulation No 1049/2001 (2), more extensive rights of access to documents than a recipient of aid who is directly subject to proceedings against him, who is also — precisely because he is directly and individually concerned for the purposes of Article 230(4) EC — entitled to raise proceedings against the decision ending the procedure. It is even harder to understand why the further consequence, namely that an application of a recipient of aid under reference to the applicable case-law may be rejected where such a response cannot be given to an application of a recipient of aid or an independent third party who relies on the transparency regulation.

With the third ground of appeal, the Commission criticises the judgment under appeal for giving the same expression, namely the word ‘document’, in the singular, in Article 4(2) of Regulation No 1049/2001 and in Article 6 of the regulation is given a different meaning. While, in Article 4(2), that word means that each document must be considered for a refusal to be given, the Court of First Instance interpreted Article 6 in such a way that access may also be requested to a bundle of documents that has been designated as an administrative file.

With the fourth ground of appeal, the Commission claims that the Court of First Instance infringed Article 255 EC, inasmuch as its decision was not arrived at on the basis of the language of the legislation, but on the basis of assumptions reached without reference to that wording.

Lastly, the Commission claims that the Court of First Instance wrongly held that both the procedures relating to the investigation of the aid granted to Technische Glaswerke Ilmenau GmbH had already been completed at the time of the decision concerning access to the administrative file, so that the authorities had no interest in maintaining the confidentiality of the documents. That is partly incorrect because of the proceedings pending before the Court of First Instance. The Court of First Instance also appears to have wrongly concluded that Regulation No 1049/2001 made the earlier case-law and the relevant procedural provisions relating to the monitoring of aid obsolete.

(1)  OJ 2006 C 331, p. 29

(2)  OJ 2001 L 145, p. 43