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Action brought on 3 September 2010 - Bloufin Touna Ellas Naftiki Etaireia e.a. v Commission

(Case T-367/10)

Language of the case: English

Parties

Applicants: Bloufin Touna Ellas Naftiki Etaireia (Athens, Greece), Chrisderic (St Cyprien, France), André Sébastien Fortassier (Grau D'Agde, France) (represented by: V. Akritidis and E. Petritsi, lawyers)

Defendant: European Commission

Form of order sought

annul Commission Regulation (EU) No 498/2010 of 9 June 2010 prohibiting fishing activities for purse seiners flying the flag of France or Greece or registered in France or Greece, fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea¹;

order that all the costs occasioned by the applicants in the course of the present proceedings be borne by the Commission.

Pleas in law and main arguments

In support of the application, the applicant puts forward three pleas in law.

First, it claims that the contested regulation was adopted in breach of the principles of equal treatment and non-discrimination laid down in Article 18 TFUE that prohibits discrimination on grounds of nationality and in Article 40(2) TFUE that prohibits discrimination between producers or consumers in the agricultural sector as well as in breach of the general principle of European Union law within the meaning of Article 21(2) of the Charter of Fundamental Rights of the European Union.

In this regard, the applicant states that the Commission has discriminated on two grounds. First, it has prohibited further fishing activities of Greece, France and Spain² prior to the end of the fishing period, whilst, however, the exhaustion of the Greek quota was way lower than that of Spain. Second, whilst the Commission had informed all three EU Member States that the fishing activities would be terminated, it published two different binding termination regulations, one for Greece and France and a second one for Spain, effectively allowing the Spanish fleet to continue fishing until the end of the fishing period. The applicant claims that to its knowledge there was no objective reason justifying such different treatment.

Second, the applicant submits that the Commission violated the general principle of proportionality laid down in Article 5(4) TFUE and Protocol No 2 annexed to the Treaty and recognised in a settled case law as a superior rule of law for the protection of the individual. In the applicant's view, the Commission could have adopted more proportionate measure to ensure the compliance by EU Member States with the regime of Regulation (EC) Nr 1224/2009³ and prohibited fishing of live bleufin tuna when national quotas would have reached a more critical level, close to 100%. It could have also prohibited such activity on the same date for all EU Member States concerned.

Third, the applicant claims that the contested regulation was adopted in breach of the general principle of good and proper administration and/or duty of care as defined by established case law and foreseen in article 41 of the Charter of Fundamental Rights of the European Union.

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¹ - OJ 2010 L 142, p. 1

² - Commission Regulation (EU) No 508/2010 of 14 June 2010 prohibiting fishing activities for purse seiners flying the flag of or registered in Spain, fishing for bluefin tuna in the Atlantic ocean, east of longitude of 45° W, and in the Mediterranean sea (OJ 2010 L 149, p. 7).

³ - Council Regulation (EC) No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, OJ 2009 L 343, p. 1