ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER
OF THE COURT OF FIRST INSTANCE
8 May 2009 (*)
(Removal from the register)
In Case T-26/09,
Ryanair Ltd, established in Dublin (Ireland), represented by E. Vahida and
G. Metaxas-Maragkidis, lawyers,
applicant,
v
Commission of the European Communities, represented by
C. O’Reilly and P. Costa de Oliveira, acting as Agents,
defendant,
APPLICATION for annulment of Commission decision of
20 November 2008 refusing access to certain documents relating to proceedings concerning the State aid allegedly granted to the applicant through agreements with the operator of Berlin Schönefeld airport [State Aid C 27/07 (ex NN 29/07)].
1 By letter lodged at the Registry of the Court of First Instance on
20 February 2009, the applicant informed the Court, in accordance with Article 99 of the Rules of Procedure of the Court of First Instance, that it wished to discontinue proceedings. It further requested, pursuant to Article 87(5) of the Rules of Procedure, that the Commission be ordered to pay the costs.
2 In support of its claim, the applicant argued that the Commission could have prevented the initiation of the proceedings in this case by giving an express response to its confirmatory application for access to documents dated 21 August 2008 within the time-limit prescribed by Article 8(1) 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). Instead, the Commission addressed an express response to the applicant on 20 November 2008, outside the prescribed time-limit and a week after the applicant lodged an application for annulment of the Commission’s implied decision of refusal of access to documents (Case
T-496/08).
3 The applicant further stated that, taking into account the express decision of
20 November 2008, it applied for leave to amend its heads of claims and pleas in law in Case T-496/08. The applicant submitted that it had not received any response to its application for leave to amend its pleas in law by 20 January 2009, which was dangerously close to the deadline for an application for the annulment of the decision of 20 November 2008. Therefore, the applicant considers that it had no other choice but to lodge its application in the present case in order to preserve its rights to challenge the legality of the decision of 20 November 2008. However, since the application for leave to amend the pleas in law in Case
T-496/08 was granted by the Court on 29 January 2009, the applicant decided to discontinue Case T-26/09.
4 By letter lodged at the Registry of the Court on 30 March 2009, the defendant informed the Court that it did not object to the discontinuance of the case. Nevertheless, it contested any allegations of misconduct and submitted that, by lodging the present action, the applicant had acted unnecessarily as it had also lodged an application for leave to amend its pleas in law in Case T-496/08. According to the defendant, the application for leave to amend the pleas in law was, in view of the case law, very likely to succeed. The Commission also noted that the applicant’s request for leave to amend its pleas in law was submitted more than a month after the express decision of 20 November 2008 had been sent to the applicant and at a date close to the Christmas holiday period. Consequently, the defendant considered that it was the applicant’s own conduct that caused it to lodge two cases, thus creating unnecessary litigation. The defendant therefore requested that, in accordance with Article 87(5) of the Rules of Procedure, the applicant be ordered to pay the costs.
5 The first subparagraph of Article 87(5) of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the observations of the other party on the discontinuance. 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.
6 In the present case, it cannot be denied that the request for leave to amend the pleas in law in Case T-496/08 and the application for annulment in Case T-26/09 were both prompted by the adoption by the Commission of an express decision outside the prescribed time-limit. However, in view of the circumstances described in paragraphs 3 and 4 above, it is not justified, under Article 87(5) of the Rules of Procedure, that all the costs should be borne by the defendant. In this context, it is justified to order that each party bear its own costs.
7 The case will therefore be removed from the register and each party ordered to bear its own costs.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER
OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Case T-26/09 is removed from the register of the Court of First Instance.
2. Each party shall bear its own costs.
Luxembourg, 8 May 2009.
E. Coulon | | M. E. Martins Ribeiro |