Action brought on 15 March 2005 by Borax Europe Ltd against the Commission of the European Communities

(Case T-121/05)

(2005/C 143/72)

Language of the case: English

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 15 March 2005 by Borax Europe Ltd., established in Guildford (United Kingdom), represented by D. Vandermeersch and K. Nordlander, lawyers.

The applicant claims that the Court should:

Pleas in law and main arguments

The applicant contests the decision of the Commission to refuse the applicant access to certain documents and tape recordings related to the preparation of the 30th adaptation to technical progress of Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (1). More in particular, the applicant's requested access to the audio recordings or transcripts of the meeting of the specialised experts in the field of reproductive toxicity on the classification of boric acid and borates.

In support of its application, the applicant submits that the defendant made a manifest error of assessment and infringed Articles 4(1)(b) and 4(3) of Regulation 1049/2001 (2). According to the applicant, the defendant erred in stating that access to the documents would undermine the integrity of the specialised experts consulted and would expose them to external pressure. The applicant claims furthermore that the defendant erred in applying the exception relating to the protection of the Commission's decision making process and in deciding that there was no overriding public interest in disclosure.

The applicant finally invokes a violation of the principle of proportionality in failing to grant partial access to the audio recordings.

(1)  OJ English special edition: Series I Chapter 1967 p. 234

(2)  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 L 145, p. 43)