16.3.2013

EN

Official Journal of the European Union

C 79/22

(Case T-3/13)

2013/C 79/39

Language of the case: German

Parties

Applicant: Ronja s.r.o. (Znojmo, Czech Republic) (represented by: E. Engin-Deniz, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—Hold a hearing;

—Annul the decision of the Commission in Gestdem 2012/3329 and grant full access to the documents;

—Declare that the Commission acted unlawfully by not initiating proceedings for failure to fulfil obligations against the Republic of Austria for infringement of Article 13 of Directive 2001/37/EC (1) and Article 34 TFEU on the basis of Paragraph 7a of the Austrian Tabakgesetz (‘the Law on tobacco’);

—Order the Commission to reimburse the costs of the proceedings and the costs of representation.

Pleas in law and main arguments

In support of the action, the applicant relies inter alia on the following pleas in law:

1.Infringement of the second indent of Article 4(2) of Regulation (EC) No 1049/2001 (2)

Here the applicant submits in essence that the Commission refused full access to the requested documents (written correspondence between the Republic of Austria and the Commission in connection with complaint No 2008/4340 of alleged non-compliance of the Austrian Law on tobacco with Directive 2001/37) largely on the basis of the arguments of the Austrian authorities, without examining the content of those arguments. The applicant takes the view however that it was not access to the documents but the refusal of access which had negative effects on the action seeking to establish State liability which it brought before the Austrian Constitutional Court. It adds that the purpose of the exception in the second indent of Article 4(2) of Regulation No 1049/2001 was rather to require access to the documents at issue to be granted.

2.Failure to initiate proceedings for non-compliance with Treaty obligations against the Republic of Austria for infringement of Article 13 of Directive 2001/37 and Article 34 TFEU on the basis of Paragraph 7a of the Austrian Law on tobacco

In this connection the applicant submits inter alia, that if proceedings for failure to fulfil obligations had been initiated, the Austrian Constitutional Court could not, in its decision on the applicant’s claims in respect of State liability, have come to the conclusion that Directive 2001/37 does not confer rights on undertakings, but only on consumers.

Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ 2001 L 194, p. 26).

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 2001 L 145, p. 43).