Official Journal of the European Union

EN

Series C

C/2023/217

(Case T-423/23)

(C/2023/217)

Language of the case: Italian

Parties

Applicants: Roberto Acampora (Naples, Italy) and 172 others (represented by: E. Iorio, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul the express confirmatory decision adopted on 21 May 2023 by the Secretary-General of the Commission for access to documents pursuant to Regulation (EC) 1049/2001 in relation to the request for access in GESTDEM 2023/0263, notified via the EASE platform portal on 22 May 2023 with which the registered letter with acknowledgement of receipt sent via the EASE portal, No EMPL.C.1/BPM/kt (2023)774321, rejecting the request for access by the applicants pursuant to Regulation (EC) 1039/2001, was confirmed;

—order the Commission, in the event of opposition, to bear the costs of the proceedings.

Pleas in law and main arguments

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

1.First plea in law, concerning the admissibility of the action.

—The applicants are acting in the exercise of a general right of citizens of the European Union to transparency in the operations of the institutions for the purposes of obtaining the necessary information, as guaranteed to all citizens of the European Union by Regulation (EC) 1049/2001.

—Knowledge of the supplementary letter of formal notice and Italy’s response, moreover, would give the applicants the specific benefit of exercising their right to information since they would know, after almost seven years, the reasons why the Commission has still not issued any reasoned opinion.

—The Commission first issued an express decision refusing access on 27 January 2023 and then an express decision confirming the refusal on 21 May 2023, in which it is reiterated that the documents in the infringement proceedings are excluded from the right of access and that there were no grounds of public interest to grant access, even partial, to the requested documents.

—It is possible under Article 8 of Regulation (EC) 1049/2001 to bring an action before the Court against express decisions.

2.Second plea in law, alleging infringement of the principles regarding access to the acts of the institutions of the European Union laid down in the second paragraph of Article 1 of the Treaty on European Union, Article 42 of the Charter of Fundamental Rights of the European Union of the European institutions, laid down by Article 1 and the third indent of Article 4(2) of Regulation (EC) 1049/2001 — the existence of a general interest of access to the supplementary letter of formal notice of 15 July 2022.

—There is a general and overriding interest of the right to information in knowing how the Commission and the Italian Republic are operating regarding the independence of the judiciary, an essential condition of the rule of law, with the consequence that the rules excluding the right of access are interpreted restrictively.

—The absolute inadequacy of the entire system of rules governing the lay judiciary in Italy, and in particular the lay justices of the peace and the lay deputy public prosecutors, has already been established by the Court of Justice of the European Union in its judgments of 16 July 2020 and 7 April 2022, with infringement of the principle of conditionality.

—It is contrary to the rules regarding transparency and circulation of documents of the institutions of the European Union to deny that there is general overriding interest in knowing, not the confidential documents and the exchange of dialogue between the Italian Republic and the Commission, but the allegations made with the supplementary letter of formal notice of 15 July 2022, to which prominence was given by the national press and which was the subject of summary communication circulated by the European Commission itself, as well as Italy’s response, followed by a reasoned opinion in the same infringement proceedings as proof of Italy’s absolute non-compliance and of the applicant’s continuing interest in accessing the documents requested.

3.Third plea in law, alleging infringement of the obligation to state reasons for the acts of the European institutions.

—By examining the reasoning of the acts, all interested parties can be placed in the position to know and understand how the institutions implement the Treaty. Given that the obligation to state reasons has both a control function and a participatory function in so far as it renders clearly understandable the assessments made prior to the adoption of the acts of the institutions, it contributes to alleviating the democratic deficit often disputed in the European Union.

—The principles regarding the statement of reasons have been infringed, since the Commission has given only wholly generic and formulaic claims as to why disclosure of the supplementary letter of formal notice of 15 July 2022 and Italy’s response would prejudice the aforementioned ‘climate of trust’. The Commission responded with few and scarce claims that would allow the applicants and the General Court to carry out a real review of the legality of the grounds for refusal — which is not sufficiently reasoned above all as regards the reasons that would have prevented at least a partial disclosure of the documents — in so far as the supplementary letter had already been partially circulated with the infringements package of 15 July 2022 — even if in such a way that it does not allow for an understanding of its content and the reasons for the additional objections made in relation to Italy.

—The express decision of 21 May 2023 confirming the refusal of access does not indicate in a clear and specific way the grounds on which it is based, their legal basis, the factual circumstances and the way in which the different relevant interests were taken into consideration, since the refusal affects the exercise of the rights laid down by Articles 17 and 47 of the Charter of Fundamental Rights of the European Union, with the result that, since the adopted measure imposes the limitation of a right recognised to the applicant by the Treaty, consisting in a restriction of those rights, the reasoning must be more rigorous, accurate and timely in order that the choices made are clearly understood.

—The refusal of access to the documents indicated was even more unjustified considering that the supplementary letter of formal notice of 15 July 2022 was informally published on a Facebook page to which thousands of lay judges are subscribed.

ELI: http://data.europa.eu/eli/C/2023/217/oj

ISSN 1977-091X (electronic edition)