C_2006294EN.01003301.xml

2.12.2006

Official Journal of the European Union

C 294/33

Action brought on 1 September 2006 — Landtag Schleswig-Holstein v Commission of the European Communities

(Case C-406/06)

(2006/C 294/57)

Language of the case: German

Parties

Applicant: Landtag Schleswig-Holstein (represented by: S. Laskowski and J. Caspar, acting as Agents)

Defendant: Commission of the European Communities

Form of order sought

—	declare that the Court of Justice has jurisdiction and that the action is admissible; in the alternative, refer the action to the Court of First Instance under the second paragraph of Article 54 of the Statute of the Court of Justice (2005);

—	annul the Commission decisions of 10 March 2006 (JUR (2006) 55023) and of 23 June 2006 (SG/E/3MM/flD (2006) 6175);

—	order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The applicant contests the Commission decision of 10 March 2006 and the decision of 23 June 2006 notified on 26 March 2006, each refusing the application of the Landtag Schleswig-Holstein (assembly of the Land of Schleswig-Holstein) for full access to internal Commission document SEC (2005) 420 of 22 March 2005. Document SEC (2005) 420 contains the legal grounds for the choice of Article 95 EC as the legal basis for Directive 2006/24/EC of the European Parliament and of the Council of 15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks and amending Directive 2002/58/EC, (1) and is referred to in the grounds of the Commission proposal for the directive COM (2005) 438 final (p. 6). That document was requested by the science department of the Landtag of Schleswig-Holstein for the preparation of a legal opinion on the possible effects of Directive 2006/24/EC on parliamentary privilege.

The applicant claims that the adverse decisions and the refusal to grant full access to the document at issue are subject to the following grounds for invalidity as provided for in the second paragraph of Article 230 EC:

—

breach of the duty to cooperate in good faith under Article 10 EC in conjunction with Article 1(2) EU or breach of the right of access to the document under Article 255 EC and Article 2(1) of Regulation (EC) No 1049/2001 on access to information in conjunction with Article 10 EC and Article 1(2) EC; and

—	misuse of powers.

By virtue of Article 10 EC in conjunction with Article 1(2) EC, the Commission is under an obligation to grant the Landtag of Schleswig-Holstein, as an institution of a Member State, access to the document sought, within the scope of the mutual duties to cooperate in good faith and in compliance with the principle of transparency, since there is strong public and parliamentary interest in the full disclosure of the document.

In addition the right to full access to the document at issue is based on Article 255 EC and Article 2(1) of Regulation No 1049/2001 on access to information in conjunction with Article 10 EC and Article 1(2) EU, and the complaint is made that the Commission incorrectly based its refusal to grant access to the document on the second indent of Article 4(2) of Regulation No 1049/2001 and misused its powers, since disclosure of the document would not undermine the protection of the Commission's legal advice.

(1) OJ L 105 of 13.4.2006, p. 54.