EN

Official Journal of the European Union

C 155/70

(Case T-127/23)

(2023/C 155/87)

Language of the case: German

Parties

Applicant: eClear AG (Berlin, Germany) (represented by: R. Thomas, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

—annul the implied rejection of 4 January 2023 of the applicant’s request for access to Commission documents of 14 September 2022 — Reference GESTDEM No 2022/5489 — by which it seeks access to all binding tariff information decisions since 2004;

—order the defendant to pay the costs.

Pleas in law and main arguments

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

1.First plea in law, alleging infringement of Article 2(1) of Regulation 1049/2001. (1) According to the applicant:

—the requested binding tariff information decisions are documents within the meaning of Regulation 1049/2001.

—In its decision on the initial application, the Commission failed to take into account that binding tariff information decisions in hard copy were sent to it in the past, all of which came within the concept of documents in Regulation 1049/2001.

—The Commission incorrectly assumes that the invalid binding tariff information decisions that can no longer be accessed online by the public are not documents within the meaning of Regulation 1049/2001. The binding tariff information database as a whole is a document that can be made accessible to the applicant.

—According to the case-law of the Court of Justice, the individual binding tariff information decisions are also documents within the meaning of the regulation because EU officials can access them though the tools available to them.

2.Second plea in law, alleging infringement of Article 42 of the Charter of Fundamental Rights. According to the applicant:

—if the design of the database for binding tariff information decisions leads to invalid decisions no longer coming within the concept of documents in Regulation 1049/2001, this constitutes an infringement of Article 42 of the Charter of Fundamental Rights and the Commission cannot rely on it.

—There is no doubt that valid binding tariff information decisions that are available on the database are documents within the meaning of Regulation 1049/2001.

—If the actual conduct — in the present case, programming of a database — of an EU institution led to certain documents falling outside the scope of Regulation 1049/2001, this constitutes breach of the right of access to the documents of the institutions. The breach is to be examined in the light of Article 52(1) of the Charter of Fundamental Rights.

—In the present case, there does not appear to be any legal basis allowing the Commission to remove binding tariff information decisions from the scope of the Charter of Fundamental Rights after their expiry.

—Furthermore, it is not apparent which private or public interests, within the meaning of Article 15(3) TFEU, were advanced by the infringement of with Article 42 of the Charter of Fundamental Rights.

(1) 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).