28.1.2012

Official Journal of the European Union

C 25/43

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(Case C-608/11 P)

(2012/C 25/80)

Language of the case: German

Parties

Appellant: Land Wien (represented by: W.-G. Schärf, Rechtsanwalt)

Other party to the proceedings: European Commission

Form of order sought

The appellant claims that the Court of Justice should:

—revise the order of the General Court of the European Union (Sixth Chamber) of 20 September 2011 in Case T-267/10 so as to take full account of the substance of its claim;

—order the European Commission to pay the costs of the proceedings at first instance and on appeal.

Grounds of appeal and main arguments

The appeal has been brought against the order to the General Court of 20 September 2011, by which that court dismissed the appellant's action seeking, essentially, the annulment of the Commission's decision of 25 March 2010 to discontinue the procedure relating to the appellant's complaint concerning a plan to expand units 3 an 4 of the Mochovce nuclear power plant in the Slovak Republic, and a declaration that the Commission has failed to act, within the meaning of Article 265 TFEU, since it failed to communicate all of the documents requested in that regard in infringement 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. (1)

The General Court infringed the Euratom Treaty in failing to interpret it in the light of the TFEU. The General Court failed to recognise that the TFEU declares as a legally enforceable right the right of access to documents laid down in Article 42 of the Charter of Fundamental Rights, on which the appellant may rely directly to obtain from the Commission all of the information which it retained in relation to the expansion of the nuclear power station in Mochovce.

Contrary to what the General Court found, the Commission's letter in response to the question put by the appellant constitutes a challengeable decision for the purposes of Article 263 TFEU. This results from the settled case-law of the Court of Justice and in particular from its judgment of 11 November 1981 in Case 60/81 (IBM).

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(1) OJ 2001 L 145, p. 43.

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