Action brought on 18 April 2024 – Caronte&Tourist Isole Minori v Commission

(Case T-208/24)

Language of the case: English

Parties

Applicant: Caronte&Tourist Isole Minori SpA (Messina, Italy) (represented by: M. Maćešić, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

Annul Commission decision C(2024) 1065 final of 14 February 2024, in so far as it refuses access to documents nos. 2, 5, 7 and 9 by invoking the exceptions laid down in Article 4(2), second and third indents, of Regulation 1049/2001 ¹ and grant the access to the requested documents, with the exception of the data relating to the protection of privacy and the integrity of the individual;

Order the Commission to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

First plea in law, alleging that the Commission made a manifest error of assessment in applying Article 4(2), second indent, of Regulation 1049/2001.

It is alleged that the Commission failed to establish that, when rejecting the access to documents, the principle of equality of arms cannot be invoked when one of the parties in the national proceeding is a Member State, because it is an undisputable formal fact that the State enacts the law, executes the laws and trials on the laws. A purpose of the principle of equality of arms is to create a level playing field between two subjects participating in a civil procedure. When the Member State is a party to the proceeding, it follows, as a matter of formality, that there is always an imbalance in favour of the Member State.

Second plea in law, alleging that the Commission made a manifest error of assessment in applying Article 4(2), third indent, of Regulation 1049/2001.

The Commission cannot invoke the reason of mutual trust and cooperation between the Commission and the Member States in the process of consultations while adopting the new national Act of the Maritime Liner Transport (implementing Council Regulation (EEC) No. 3577/92) ¹ as this argument is contrary to the Schlyter case, ² i.e. that the atmosphere of mutual trust between the Commission and the Member State cannot prevail over the principle of transparency in the process of adoption of new national legislation

Disclosure of the requested documents would not undermine the purpose of the EU Pilot Procedure (initiated by the applicant) because the applicant previously received a pre-closure letter from DG Move, from which it is evident that the Commission has decided not to initiate proceedings before the Court of Justice of the EU on points relating to the issues of the previous legislative regime which are contained in the requested documents.

DG Move (handling the EU Pilot Procedure) was already familiar with the comments of the new draft Act of the Maritime Liner Transport (implementing the said Council Regulation (EEC) No 3577/92), because it actively participated in the process of adopting the new Act by carrying out a thorough assessment.

Third plea in law, alleging the failure of the Commission to determine the existence of an overriding public interest in disclosure.

The Commission failed to comply with the duty to state reasons for the absence of an overriding public interest in disclosure, as was established in the Turco case, ¹ because it only ascertained that it is irrelevant whether the outcome of the national proceeding for damage compensation for breach of EU law against the Member State would have a public effect.

There is an overriding public interest in disclosure in this matter due to the fact that the Croatian maritime cabotage market is part of the EU internal market and that the new Act on Maritime Liner Transport (implementing the said Council Regulation (EEC) No 3577/92) is, ratione personae, applicable to all shipowners from other Member States as well. Further, ratione materiae, the new Act on Maritime Liner Transport implementing the freedom to provide maritime cabotage services (one of the fundamental freedoms) affects the shipowner’s rights to freely perform maritime cabotage services, in respect of which transparency prevails.

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¹ 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).

¹ Council Regulation (EEC) No 3577/92 of 7 December 1992 applying the principle of freedom to provide services to maritime transport within Member States (maritime cabotage) (OJ 1992 L 364, p. 7).

¹ Judgment of the General Court of 16 April 2015, Carl Schlyter v Commission (T-402/12, EU:T:2015:209).

¹ Judgment of the Court of Justice of 1 July 2008, Kingdom of Sweden and Maurizio Turco v Council (Joined Cases C-39/05 P and C-52/05 P, EU:C:2008:374).