ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER
OF THE COURT OF FIRST INSTANCE
11 March 2009 (*)
(Removal from the register)
In Case T-342/08,
Edward William Batchelor, residing in Brussels (Belgium), represented initially by F. Carlin, Barrister, F. Young, Solicitor, A. Barav and D. Reymond, lawyers, and subsequently by F. Carlin, A. Barav and D. Reymond,
applicant,
v
Commission of the European Communities, represented by C. O’Reilly and
P. Costa de Oliveira, acting as Agents,
defendant,
ANNULMENT ACTION of the implied negative Commission decision, deemed to have been made on 11 June 2008 and of the express negative Commission decisions (SGlE/31HP/cr D(2008) 5545 and SGlE/3IEV/psi D(2008) 6636), of
3 July and 7 August 2008, refusing to grant access to the applicant to the correspondence exchanged by the Commission and the Belgian authorities concerning measures notified by Belgium, pursuant to Article 3a(1) of Directive 89/552/EEC of the Council on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (OJ 1998, L 298, p. 23), ultimately declared compatible with the single market, by Commission decision 2007/479/EC, of
25 June 2007 (JO 2007, L 80, p. 24).
1 By letter lodged at the Registry of the Court of First Instance on 26 January 2009, the applicant informed the Court in accordance with Article 99 of the Rules of Procedure of the Court of First Instance that, the Commission having withdrawn the contested decisions, it considered the action to have become devoid of purpose and, hence, wished to withdraw its application. It moreover requested, in these circumstances, pursuant to Article 87(5) of the Rules of Procedure, that the defendant be ordered to pay the costs.
2 By letter lodged at the Registry of the Court on 4 February 2009, the defendant informed the Court that it had no observations on the application for discontinuance. It sought no order as to costs.
3 The first subparagraph of Article 87(5) of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in the observations of the other party on the discontinuance. In accordance to the second subparagraph of the aforementioned provision however, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if it appears justified by the conduct of that party.
4 In the present case, the Commission informed the Court that it withdrew the contested decisions by decision dated 16 December 2008, notified to the applicant on 17 December 2008; that it granted full access, in accordance with Regulation (EC) 1049/2001, to all but two of the requested documents and, accordingly, applied for the action to be declared devoid of purpose. It appears, thus, that the abovementioned decision to disclose the documents to the applicant was triggered by the action for annulment lodged by the applicant at the Court and that such conduct justifies that the defendant be ordered to bear the entire costs of the proceedings.
5 In those circumstances, there is no need to adjudicate on the application for leave to intervene submitted by Sweden.
6 The case will therefore be removed from the register and the defendant ordered to pay the costs.
On those grounds,
THE PRESIDENT OF THE SEVENTH CHAMBER
OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Case T-342/08 is removed from the register of the Court of First Instance.
2. In those circumstances, there is no need to adjudicate on the application for leave to intervene submitted by Sweden.
3. The defendant shall bear the costs.
Luxembourg, 11 March 2009.