Notice for the OJ
Action brought on 7 June 2004 by Dominique Hardy against the Council of the European Union and the Commission of the European Communities
(Case T-208/04)
(Language of the case: French)
An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 7 June 2004 by Dominique Hardy, whose place of business is in Coudeville-plage (France), represented by Jean-François Péricaud, lawyer.
The applicant claims that the Court should:
- hold that the European Community has become liable to her by the adoption, and then application, to the detriment of ship's agents (agents maritimes), of Article 5 of the Community Customs Code in an unlawful manner;
- alternatively, hold that the European Community has become liable to her by the adoption, even if lawful, and then application of Article 5 of the Community Customs Code, having caused her to suffer an abnormal and special loss;
- order the Council and the Commission jointly and severally to pay to her damages of EUR 60 510 or, alternatively, of EUR 47 829 together with interest in both cases at the legal rate from the date on which the present action was brought;
- order the Council and the Commission jointly and severally to pay the costs.
Pleas in law and main arguments
The applicant states that, following the commencement by the Commission of a Treaty infringement procedure against the French State, France has, in order to bring French law into line with Article 5 of Regulation No 2913/92,
1 repealed the monopoly held by ship's agents, of whom the applicant is one, to deal with the customs authorities. According to the applicant, the withdrawal of that monopoly follows directly from the application of Article 5 of Regulation No 2913/92 and is therefore directly attributable to the European Community.
The applicant's main submission is that the adoption of Article 5 of Regulation No 2913/92 constitutes an unlawful act for which the Community is liable.
Firstly, the applicant claims that that article fails to have regard to the derogatory provisions of Article 45 of the EC Treaty to the extent that the profession of ship's agent, by application of customs legislation, is involved in the exercise of public authority.
The applicant then alleges a breach of the principles of legal certainty and the protection of legitimate expectations. The applicant claims, on one hand, that Article 5 of Regulation No 2913/92 refers to the concept of 'representation at customs' which is different from that of 'dealing with the customs authorities', the latter being essentially carried out by ship's agents. An interpretation by analogy of that article would, according to the applicant, be contrary to the principle of legal certainty. On the other hand, the applicant alleges a violation of her legitimate expectations, arising from the absence of any transitional measure and from the fact that French ship's agents were the only ones in the Community to be constantly excluded from the earlier liberalisation measures.
Furthermore, the applicant alleges a breach, constituted by the absence of transitional measures, of the principles of equality and proportionality. Finally, the applicant alleges a breach of the right to respect of property in that the abolition of the monopoly renders the office of ship's agent non-transferable and entirely worthless.
The applicant claims, in the alternative, that the Community is liable on a no-fault basis given the abnormal and special nature of the loss suffered. According to the applicant, the harm is abnormal in that the loss of the economic value of the office and of the profit margin exceeds normal economic risks and is special in that ship's agents constitute a clearly distinct category of traders.
____________1 - Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ L 302, 19.10.1992, p.1).