21.9.2015

Official Journal of the European Union

C 311/27

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(Case C-331/15 P)

(2015/C 311/33)

Language of the case: English

Parties

Appellant: French Republic (represented by: G. de Bergues, D. Colas and F. Fize, acting as Agents)

Other parties to the proceedings: Carl Schlyter, European Commission, Republic of Finland, Kingdom of Sweden

Form of order sought

The French Government claims that the Court should:

—set aside the judgment delivered by the Fourth Chamber of the General Court on 16 April 2015 in Case T 402/12, Carl Schlyter v Commission, inasmuch as that judgment annulled the decision of the European Commission of 27 June 2012 refusing, during the standstill period, access to a detailed opinion concerning a draft Order relating to the content and submission conditions of the annual declaration of nanoparticle substances (2011/673/F), which had been notified to it by the French authorities pursuant to Directive 98/34/EC

—refer the case back to the General Court;

—order the respondent to pay the costs.

Grounds of appeal and main arguments

By its appeal submitted on 3 July 2015, the French Government requests the Court of Justice of the European Union, pursuant to Article 56 of the Statute of the Court of Justice, to set aside the judgment delivered by the Fourth Chamber of the General Court on 16 April 2015 in Case T 402/12, Carl Schlyter v Commission (‘the judgment under appeal’).

In support of its appeal, the French Government puts forward a single ground of appeal.

In support of that ground of appeal, the French Government submits that the General Court committed a number of errors of law in relation to the classification of the procedure laid down by Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations (‘Directive 98/34’) and in relation to the application of the exception relating to the protection of the purpose of investigations provided for in the third indent of Article 4(2) 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 (‘Regulation No 1049/2001’).

In the first place, the French Government submits that the General Court committed an error of law in refusing to classify the procedure laid down by Directive 98/34 as an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001.

In that regard, the French Government point outs, first, that the definition of the concept of investigation given by the General Court in the judgment under appeal is not based on any definition established by Regulation No 1049/2001, Directive 98/34 or the case law.

Moreover, secondly, that definition is not consistent with the approach taken by the Eighth Chamber of the General Court in its judgment of 25 September 2014 in Case T-306/12 Spirlea v Commission. In that judgment, the General Court recognised that the so-called ‘EU Pilot’ procedure may be classified as an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001. According to the French Government, the purpose and constituent elements of the so-called ‘EU Pilot’ procedure bear striking similarities to the purpose and constituent elements of the procedure laid down by Directive 98/34.

Thirdly, in the event that the Court endorses the definition of the concept of investigation contained in the judgment under appeal, the French Government considers that the procedure laid down by Directive 98/34 conforms to that definition in any event, taking into account its purpose and constituent elements.

In the second place, the French Government considers, first, that the General Court committed an error of law in holding, in the alternative, that, even if the detailed opinion delivered by the Commission forms part of an investigation within the meaning of the third indent of Article 4(2) of Regulation No 1049/2001, the disclosure of that document does not necessarily undermine the purpose of the procedure laid down by Directive 98/34.

In that regard, the French Government point outs that the applicant did not at any time in his initial application, his reply or his observations on the statements in intervention raise the argument that, if the procedure laid down by Directive 98/34 were to constitute an investigation, disclosure of the contested document would not undermine the purpose of that investigation.

Consequently, in so far as the plea raised by the General Court in the alternative was not raised by the applicant and relates to the substantive legality of the contested decision, the French Government considers that, in paragraphs 84 to 88 of the judgment under appeal, the General Court committed an error of law in raising that plea of its own motion.

Secondly, in the judgment under appeal, the General Court held that the purpose of the procedure laid down by Directive 98/34 is to prevent the adoption, by a national legislature, of a national technical regulation which constitutes an obstacle to the free movement of goods, the free movement of services or the freedom of establishment of service operators within the internal market (paragraph 85 of the judgment under appeal).

The French Government considers that the General Court thus gave a restrictive interpretation of the purpose of the procedure laid down by Directive 98/34.

The French Government takes the view that, in addition to the objective of securing the conformity of national rules, the procedure laid down by Directive 98/34 also pursues an objective relating to the quality of the dialogue between the Commission and the Member State concerned.

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(1)

OJ 1998 L 204, p. 37.

(2)

OJ 2001 L 145, p. 43.

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