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15.8.

98 EN Official Journal of the European Communities C 258/19

(2) set aside the judgment delivered on 19 March 1998 by Commission and supplements the grounds for the
the Court of First Instance in Case T-83/96 and, Commission's refusal, without the appellant having
adjudicating afresh in the matter, annul the decision of been able to put forward any argument in fact or in
29 March 1996 addressed by the Commission to the law concerning that point.
appellant;
(1) OJ C 137 of 2.5.1998, p. 14.
(3) order the Commission of the European Communities (2) OJ L 46 of 18.2.1994, p. 58.
to pay the costs, including the costs of the proceedings
at first instance.

Pleas in law and main arguments adduced in support:

Ð Infringement of Commission Decision 94/90/ECSC, Appeal brought on 19 May 1998 by Georges Tzoano
EC, Euratom on public access to Commission against the judgment delivered on 19 March 1998 by the
documents (2): Fourth Chamber of the Court of First Instance of the
European Communities in Case T-74/96 between Georges
Tzoano and the Commission of the European
Ð The Court of First Instance failed to have regard
Communities
to the rule, based on Decision 94/90, requiring the
Commission, before denying access to any (Case C-191/98 P)
document, to show that, by reason of the
(98/C 258/32)
information which it contains, its dissemination
may cause actual prejudice to the public interest,
which is protected by the first category of
exceptions in Decision 94/90. An appeal against the judgment delivered on 19 March
1998 by the Fourth Chamber of the Court of First
Ð By applying, for the purposes of deciding whether Instance of the European Communities in Case T-74/96
to grant access to the Commission documents between Georges Tzoano and the Commission of the
concerned, the criterion of the addressee(s) of European Communities was brought before the Court of
those documents Ð in the present case, the Justice of the European Communities on 19 May 1998 by
national courts to which the letters in question Georges Tzoano, represented by Eric Boigelot, of the
were sent Ð the Court of First Instance infringed Brussels Bar, with an address for service in Luxembourg at
the provisions and objectives of Decision 94/90. the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.

Ð Neither Decision 94/90 nor any other rule of law The appellant claims that the Court should:
provides any support for the view expressed by the
Court of First Instance that the exception
concerning protection of the public interest (more (a) set aside the contested judgment (1);
particularly: court proceedings') is designed to
ensure general respect for the principle of the
procedural autonomy of courts and that the scope (b) itself adjudicate on the dispute and allow the
of that exception is therefore not restricted solely appellant's initial application:
to the protection of the interests of the parties but
encompasses the procedural autonomy of national
Ð annul the respondent's decision of 22 June 1995
and Community courts.
removing the appellant from his post without loss
of entitlement to a retirement pension and annul
Ð Infringement of the European Convention on Human the decision of 19 February 1996 expressly
Rights: the European Convention on Human rights, in rejecting the complaint lodged by the appellant on
particular Article 6 thereof and the case-law relating 21 September 1995 against the contested decision;
thereto, provides no support for the view expressed by
the Court of First Instance that it gives rise to the
Ð order the respondent to pay the costs, including
principle of procedural autonomy'. Neither the
those relating to the proceedings at first instance.
objective of Article 6 of the Convention nor the
construction placed on the guarantees described in
that article provide any legal basis for the reasoning of Pleas in law and main arguments adduced in support:
the Court of First Instance.

Ð Breach of the obligation to provide a statement of Breach of Community law, in particular:
reasons.
Ð infringement of Article 33 of the EC Statute of the
Ð Breach of the principle of the autonomy of the parties Court of Justice; the obligation to state the reasons on
and of the rights of the defence: in its judgment, the which a judgment is based is, in particular, such that
Court of First Instance substitutes itself for the the grounds on which it purports to be based must be
C 258/20 EN Official Journal of the European Communities 15.8.98

legally permissible, that is to say, adequate, not Reference for a preliminary ruling by the Regeringsrätten
vitiated by any error of law or of fact and not by order of that court of 29 April 1998 in the case of X
contradictory; AB and Y AB against Riksskatteverket
(Case C-200/98)
Ð infringement of the Staff Regulations of officials of the
European Communities, in particular Articles 12, 13, (98/C 258/33)
14 and 17, the first and second paragraphs of
Article 21, Article 25, the second paragraph of
Article 87 and the fifth paragraph of Article 88 thereof
and Annex IX thereto, in particular Articles 1, 2 and Reference has been made to the Court of Justice of the
3, the second paragraph of Article 7 and Article 11 of European Communities by order of 29 April 1998,
that annex; received at the Court Registry on 22 May 1998, for a
preliminary ruling in the case of X AB and Y AB against
Ð breach of the general principles applicable under Riksskatteverket on the following question:
Community law, in particular the principle of the
rights of the defence, the audi alteram partem rule, the
principle that the court seised of the proceedings must
be impartial (and Article 6 of the Convention on Under Paragraph 2(3) of Law 1947:576 on State Income
Human Rights), the principles of legal certainty, good Tax, an intra-group transfer is treated, under certain
faith and the protection of legitimate expectations, the conditions, as having fiscal effect if it is made by a
duty to have regard for the welfare and interests of Swedish limited liability company to another Swedish
officials and the principle that all administrative acts limited liability company which is wholly owned either by
must be based on legally permissible grounds, that is the first-named company directly or by that company
to say, grounds which are pertinent and not vitiated by together with a wholly-owned Swedish subsidiary or
any error of law or of fact. subsidiaries. The fiscal result is the same if one, or more,
of the wholly-owned subsidiaries is foreign provided it is
established, or they are established, in one and the same
The contested judgment applies a restrictive interpretation Member State and Sweden has concluded with that State a
to the fifth paragraph of Article 88 of the Staff double-taxation agreement containing a non-
Regulations of officials; the object of that provision is to discrimination clause. Against that background, is it
ensure that the administrative authority charged with compatible with existing Community law, in particular
investigating the matter and thereafter, as the case may be, Article 52 in combination with Article 58 and Article 73b
with imposing a disciplinary measure is fully informed of and d of the Treaty of Rome, to apply a set of rules under
the facts alleged against the official concerned which form which an intra-group transfer is not treated as having the
the subject-matter of the criminal prosecution brought same fiscal effect when the Swedish parent company
against him. instead owns the recipient company together with two or
more wholly-owned foreign subsidiaries which are
The appellant also complains that the Court of First established in different Member States with which Sweden
Instance based its contested judgment on incorrect has concluded a double-taxation agreement containing a
considerations and reasons which were contrary to the non-discrimination clause?
items contained in the case-file. The Court of First
Instance failed in the contested judgment to arrive at the
proper factual or legal conclusions which it should have
drawn from the information in the file before it.

The contested judgment should also be annulled on the
ground that it misapplies the audi alteram partem rule, the
principle of equality of arms and the obligation to provide Action brought on 25 May 1998 by the Commission of
a statement of pertinent reasons. Thus it wrongly the European Communities against the Kingdom of
concludes that the principle of equality of arms was Belgium
respected on the ground that the appellant had access to (Case C-201/98)
the documents which were available to the Disciplinary
Board for the purposes of delivering its opinion, on which (98/C 258/34)
the appointing authority relied in adopting the contested
decision'. The Court of First Instance also wrongly based
on the same grounds its conclusion that the appellant was
given the opportunity of acquainting himself with all the
An action against the Kingdom of Belgium was brought
facts on which the decision was based, in sufficient time
before the Court of Justice of the European Communities
to enable him to submit his observations'.
on 25 May 1998 by the Commission of the European
Communities, represented by Frank Benyon, Legal
(1) Judgment of 19 March 1998 in Case T-74/96 (OJ C 137 of Adviser, and Bernard Mongin, of its Legal Service, acting
2.5.1998, p. 13). as Agents, with an address for service in Luxembourg at
the Office of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.