Notice for the OJ

 

Action brought on 28 April 2003 by Nuova Agricast S.r.l. against the Commission of the European Communities

    (Case T-139/03)

    Language of the Case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 April 2003 by Nuova Agricast S.r.l., represented by Michele Arcangelo Calabrese, avvocato.

The applicant claims that the Court should:

(Annul the contested measures;

(Order the European Commission to pay the costs.

Pleas in law and main arguments:

By its action, the applicant company is challenging:

(1)the Commission's letter *D/50721, COMP/G1 D(03)142/PI/cpb dated 3 February 2003 (concerning consultations with the authorities of the Member State which had drawn up the documents);

(2)    Commission document SG.B.2/MM D(2003) sent by fax on 14 March 2003;

(3)    the Commission's letter *D/51652, COMP/G1/PI/cpb D(03) dated 12 March 2003.

In support of its claims, the applicant submits as follows:

(    by consulting the authorities of the Member State which had drawn up the documents requested, and in so doing even though it was already clear to it that the documents in issue were excluded from the right of access as being 'covered' by the exception 'inspections and investigations', the Commission breached the procedural guarantees conferred on individuals by Article 4(4) 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 of 31 May 2001, p. 43) and the similarly-worded Article 5(2) of the relevant updating provisions. The Commission thus infringed its own 'Code of Good Administrative Behaviour', specifically the section on 'Consistency' under the heading of 'General Principles of Good Administration'. The illegality of the consultation also gives rise, in the applicant's view, to the illegality of the partial refusal of access, which is specifically based on the reply by which the Italian authorities refused disclosure;

(    the applicant further alleges discriminatory treatment vis-à-vis a separate request (made by another individual) for access to documents coming within the same category as those to which the applicant is seeking access;

(    the applicant also submits that, in particular by treating as adequate the ostensible reasoning of the senior official who signed the documents, who refers to a measure of a national court applying national legislation which is generally recognised as being less transparent than the provisions of Regulation (EC) No 1049/2001, the Commission committed a manifest error of assessment and breached at the same time Article 4(5) of Regulation (EC) No 1049/2001, the principle of sound administration and the obligation to ensure that decisions taken by the institutions are adequately reasoned;

(    finally, the applicant submits that there has been a breach of its rights of defence in so far as access to the documents in question is the only avenue open to it to assess the legality of the decision authorising a State aid scheme.

____________