Provisional text
ORDER OF THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
18 May 2017 (*)
(Removal from the register — Discontinuance of the proceedings by the applicants — Article 136(2) of the Rules of Procedure of the General Court)
In Case T‑138/08,
Cavankee Fishing Co. Ltd, established in Lifford (Ireland), and the other applicants whose names are listed in the annex (1), represented initially by A. Collins and N. Travers, SC, assisted by D. Barry, Solicitor, and subsequently by N. Travers, SC, assisted by D. Barry, Solicitor,
applicants,
v
European Commission, represented initially by K. Banks and B. Doherty, and subsequently by A. Bouquet and K. Walkerová, acting as Agents,
defendant,
APPLICATION pursuant to Article 232 EC (now Article 268 TFEU) for compensation for damage allegedly caused to the applicants by Commission Decision 2003/245/EC of 4 April 2003 on the requests received by the Commission to increase the MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 metres in length overall (OJ 2003 L 90, p. 48).
Order
Background to the dispute
1 Cavankee Fishing Co. Ltd and the other applicants whose names are listed in the annex own vessels which are part of the Irish fishing fleet. Between 1999 and 2001, they submitted to the Department of Communications, Marine & Natural Resources requests for increased capacity for their vessels, on grounds of safety improvements pursuant to Article 4(2) of Council Decision 97/413/EC of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation (OJ 1997 L 175, p. 27).
2 In support of those individual requests, the Department of Communications, Marine & Natural Resources made a request to the Commission of the European Communities to increase the capacity of the Irish fleet in accordance with Article 4(2) of Decision 97/413.
3 On 4 April 2003, the Commission adopted Decision 2003/245/EC on the requests received by the Commission to increase MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 metres in length overall (OJ 2003 L 90, p. 48). The applicants’ vessels all appeared in Annex II to the decision listing, in accordance with the second paragraph of Article 2, the requests rejected by the Commission.
4 Decision 2003/245 was the subject of actions for annulment which gave rise to the judgment of 13 June 2006, Boyle and Others v Commission (T‑218/03 to T‑240/03, ‘the judgment in Boyle and Others’, EU:T:2006:159), in which the Court annulled that decision in so far as it applied to the applicants’ vessels, with the exception of the vessels of Mr Thomas Flaherty, Ocean Trawlers Ltd and Mr Larry Murphy. In essence, the Court ruled, in paragraph 134 of that judgment, that the Commission had adopted criteria not provided for in the applicable rules and had exceeded its powers. By letter of 14 June 2006, the owners of the vessels concerned by the judgment in Boyle and Others requested the Commission to adopt a new decision complying with that judgment.
5 Furthermore, by application lodged at the Court Registry on 3 April 2008, the applicants brought the present action for damages seeking compensation for the losses allegedly suffered following the adoption of Decision 2003/245.
6 The judgment in Boyle and Others was the subject of an appeal which gave rise to the judgment of 17 April 2008, Flaherty and Others v Commission (C‑373/06 P, C‑379/06 P and C‑382/06 P, ‘the judgment in Flaherty and Others’, EU:C:2008:230), in which the Court of Justice set aside the judgment in Boyle and Others in so far as the General Court had declared in that judgment that the actions brought by Mr Flaherty, Ocean Trawlers and Mr Murphy were inadmissible, and then, for the same reasons set out in the judgment in Boyle and Others, annulled Decision 2003/245 in so far as it applied to the vessels of Mr Flaherty, Ocean Trawlers and Mr Murphy (judgment in Flaherty and Others, paragraphs 45 to 47). By e-mail of 25 April 2008, the owners of the vessels concerned asked the Commission what steps it had taken to implement the judgment in Boyle and Others.
7 The requests from the owners of the vessels concerned by the judgment in Boyle and Others and by the judgment in Flaherty and Others were followed by several exchanges of correspondence between Ireland and the Commission. In particular, the Commission requested additional information from Ireland relating to the technical characteristics of the vessels at issue.
8 Next, the Commission adopted, on 13 July 2010, new decisions in which they rejected, once again, the original request for increased capacity of the Irish fishing fleet in relation to the applicants’ vessels, with the exception of the request from Mr Patrick O’Malley, which the Commission granted.
9 By applications lodged at the Court Registry on 27 and 28 September 2010, Mr Peter McBride and Mr Hugh McBride, Mullglen Ltd, Mr Cathal Boyle and Mr Flaherty, Ocean Trawlers, Mr Patrick Fitzpatrick, Mr Eamon McHugh, Mr Eugene Hannigan, Mr Murphy and Mr Brendan Gill brought actions for annulment of the Commission’s new decisions adopted on 13 July 2010 relating to the fishing vessels belonging to them.
10 By judgment of 13 May 2014, McBride and Others v Commission (T‑458/10 to T‑467/10 and T‑471/10, not published, ‘the judgment in McBride and Others’, EU:T:2014:249), the Court annulled the Commission’s decisions of 13 July 2010.
11 On 25 July 2014, the Commission brought an appeal against the judgment in McBride and Others.
12 By judgment of 14 June 2016 in Commission v McBride and Others (C‑361/14 P, ‘the judgment in Commission v McBride and Others’, EU:C:2016:434), the Court of Justice dismissed the appeal. The proceedings in the present case, which had been stayed since 12 May 2009, were then resumed.
13 On 6 February 2017, by a measure of organisation of the procedure, the Court asked the applicants about the likely consequences for their actions of the judgment in Commission v McBride and Others.
14 By letter filed at the Court Registry on 21 March 2017, the applicants informed the Court that, following the judgment in Commission v McBride and Others, there was no longer any reason for the Court to make a ruling in the present case. At the request of the Judge-Rapporteur, the Court Registry asked the applicants for clarification of their intentions communicated in that letter.
15 By letter filed at the Court Registry on 4 April 2017, the applicants stated that they wished to discontinue their action in accordance with Article 125 of the Rules of Procedure and requested, pursuant to Article 136(2) of those rules, that the defendant be ordered to pay the costs.
16 By letter filed at the Court Registry on 11 April 2017, the Commission stated that it was not raising any objections to the discontinuance and requested that the applicants be ordered to pay the costs, or in the alternative, that each party bear its own costs.
Discontinuance
17 Under Article 125 of the Rules of Procedure, if the applicant informs the Court, in writing or at the hearing, that he wishes to discontinue the proceedings, the President is to order the case to be removed from the Court’s register and give a decision as to costs in accordance with Article 136 of the Rules of Procedure.
18 The case must therefore be removed from the register.
Costs
19 Under Article 136(1) and (2) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. However, upon application by the party who discontinues or withdraws from proceedings, the costs shall be borne by the other party if this appears justified by the conduct of that party.
20 In the present case, it is important to note that the applicants’ decision to discontinue their actions was based on the judgment in Commission v McBride and Others, in which the Court of Justice found that the Commission did not have the power to adopt the decisions of 13 July 2010.
21 When the applicants brought their actions on 3 April 2008, that is to say, shortly before expiry of the limitation period of five years for actions against the European Union in relation to non-contractual liability arising from Article 46 of the Statute of the Court of Justice of the European Union, the Commission still had not taken any measures to comply with the judgment in Boyle and Others, pronounced in 2006, and therefore the applicants could not determine at that particular time what position the Commission would take in relation to their requests.
22 As is clear from paragraph 8 above, it was not until 13 July 2010 that the Commission adopted new decisions on the applicants’ requests.
23 In those circumstances, the Court finds that, as a result of the absence of any measures on the part of the Commission to comply with the judgment in Boyle and Others, the applicants had no alternative but to bring the present action for damages, in this instance in order to interrupt the limitation period referred to in paragraph 21 above and to preserve their rights.
24 Thus, it appears justified to order the Commission to pay part of the applicants’ costs. In that regard, the claim that the notice of discontinuance is not attributable to the Commission but is a consequence of the development of the case-law of the Court of Justice does not in any way detract from the finding made in paragraphs 20 to 23 above.
25 In the light of the foregoing considerations, it is appropriate to apply Article 136(2) of the Rules of Procedure and, accordingly, to order that the Commission must bear its own costs and pay half of the costs incurred by the applicants.
On those grounds,
THE PRESIDENT OF THE FIRST CHAMBER OF THE GENERAL COURT
hereby orders:
1. Case T‑138/08 shall be removed from the register of the General Court.
2. The European Commission shall bear its own costs and pay one half of the costs incurred by Cavankee Fishing Co. Ltd and the other applicants whose names appear in the annex.
Luxembourg, 18 May 2017.