Action brought on 17 August 2010 - ATC and Others v Commission

(Case T-333/10)

Language of the case: Dutch

Parties

Applicants: Animal Trading Company (ATC) BV (Loon op Zand, Netherlands), Avicentra NV (Malle, Belgium), Borgstein Birds and Zoofood Trading VOF (Wamel, Netherlands), Bird Trading Company Van der Stappen BV (Dongen, Netherlands), New Little Bird's srl (Anagni, Italy), Vogelhuis Kloeg (Zevenbergen, Netherlands) and Pistone Giovanni (Westerlo, Belgium) (represented by: M. Osse and J. Houdijk, lawyers)

Defendants: European Commission and European Union, represented by the European Commission

Form of order sought

order the European Union and/or the European Commission to pay compensation in respect of the harm which the applicants have suffered as a result of the adoption of Decision 2005/760/EC, ¹ and/or the extension thereof by way of Decision 2005/862/EC, ² and/or Decision 2006/79/EC, ³ and/or Decision 2006/405/EC, ⁴ and/or Decision 2006/522/EC, ⁵ and/or Decision 2007/21/EC, ⁶ and/or Decision 2007/183/EC, ⁷ and/or the adoption of Regulation (EC) No 318/2007; ⁸

order the European Union and/or the European Commission to pay the costs of the proceedings and the extra-judicial costs.

Pleas in law and main arguments

The applicants seek compensation for the harm which they have suffered as a result of, first, the ban on the importation of birds caught in the wild, which entered into effect in October 2005, second, the extensions of that ban, and, third, the restrictions which have been in force since 1 July 2007 on the importation of birds and which, de facto, continue the prohibition of the importation of birds caught in the wild.

With regard to the first part of their application for compensation, which concerns the adoption of Decision 2005/760/EC, the applicants put forward three pleas.

First, the applicants submit that the Commission had only a very limited margin of discretion in exercising its powers under Article 18 of Directive 91/496 ⁹ and that the Commission exceeded those powers by prohibiting imports from countries in which there had been no incidences of infection with avian influenza or in which there had been no concrete risk of contamination.

Second, the applicants contend that, even if the Commission did have a broader margin of discretion when exercising its powers, it none the less committed a sufficiently serious breach. In this connection, the applicants submit that the Commission misconstrued its powers, infringed the principles of proportionality and equal treatment, disregarded the right of property and the freedom to carry out an economic activity, and committed an infringement of the principle of the protection of legitimate expectations.

The applicants then go on to submit that they have suffered genuine and certain damage and that there is a causal connection between that damage and the Commission's unlawful actions.

Third, the applicants contend that the damage which they have suffered is abnormal and specific in character in that it goes beyond the limits of the economic risks associated with the activities in the sector concerned. The introduction of a total ban on imports of wild birds was, in the applicants' view, not foreseeable and had a particularly adverse effect on dealers in wild birds. The applicants also seek to establish liability on the Commission's part even in the event that it is adjudged to have acted correctly.

In the second part of their application for compensation, the applicants seek compensation for the harm suffered as a result of the extensions of the ban on the importation of wild birds from non-member countries. They rely, in this connection, on the same three pleas as those invoked in the first part of their application for compensation.

Finally, the applicants seek compensation in respect of the harm which they have suffered as a result of Regulation (EC) No 318/2007, which provides that the importation of birds is to be restricted to birds which have been bred in captivity and which originate in a very small number of non-member countries. The applicants put forward three pleas in law in this regard.

First, the applicants contend that Regulation (EC) No 318/2007 does not have an adequately defined legal basis. They submit that Directives 91/496 and 92/65 ¹⁰ do not contain any legal basis for the adoption of Regulation (EC) No 318/2007 by the Commission.

Second, the applicants allege that there has been an infringement of the principles of equal treatment and proportionality, in addition to a breach of the freedom of enterprise and the right to property.

The applicants continue by submitting that they have suffered genuine and certain damage and that there is a causal connection between that damage and the Commission's unlawful actions.

Third, the applicants also request that, in the event that it should be assumed that the Commission acted correctly, the General Court rule that the Commission is liable for the damage suffered as a result of Regulation (EC) No 318/2007.

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¹ - Commission Decision 2005/760/EC of 27 October 2005 concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds (OJ 2005 L 285, p. 60).

² - Commission Decision 2005/862/EC of 30 November 2005 amending Decisions 2005/759/EC and 2005/760/EC relating to measures to combat avian influenza in birds other than poultry (OJ 2005 L 317, p. 19).

³ - Commission Decision 2006/79/EC of 31 January 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards an extension of their period of application (OJ 2006 L 36, p. 48).

⁴ - Commission Decision 2006/405/EC of 7 June 2006 amending Decisions 2005/710/EC, 2005/734/EC, 2005/758/EC, 2005/759/EC, 2005/760/EC, 2006/247/EC and 2006/265/EC as regards certain protection measures in relation to highly pathogenic avian influenza (OJ 2006 L 158, p. 14).

⁵ - Commission Decision 2006/522/EC of 25 July 2006 amending Decisions 2005/759/EC and 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and movements of certain live birds into the Community (OJ 2006 L 205, p. 28).

⁶ - Commission Decision 2007/21/EC of 22 December 2006 amending Decision 2005/760/EC as regards certain protection measures in relation to highly pathogenic avian influenza and imports of birds other than poultry into the Community (OJ 2007 L 7, p. 44).

⁷ - Commission Decision 2007/183/EC of 23 March 2007 amending Decision 2005/760/EC concerning certain protection measures in relation to highly pathogenic avian influenza in certain third countries for the import of captive birds (OJ 2007 L 84, p. 44).

⁸ - Commission Regulation (EC) No 318/2007 of 23 March 2007 laying down animal health conditions for imports of certain birds into the Community and the quarantine conditions thereof (OJ 2007 L 84, p. 7).

⁹ - Council Directive 91/496/EEC of 15 July 1991 laying down the principles governing the organisation of veterinary checks on animals entering the Community from third countries and amending Directives 89/662/EEC, 90/425/EEC and 90/675/EEC (OJ 1991 L 268, p. 56).

¹⁰ - Council Directive 92/65/EEC of 13 July 1992 laying down animal health requirements governing trade in and imports into the Community of animals, semen, ova and embryos not subject to animal health requirements laid down in specific Community rules referred to in Annex A(I) to Directive 90/425/EEC (OJ 1992 L 268, p. 54).