# C_2010328EN.01004001.xml

| 4.12.2010 | EN | Official Journal of the European Union | C 328/40 |
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4.12.2010

EN

Official Journal of the European Union

C 328/40

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Action brought on 27 September 2010 — McBride v Commission

(Case T-459/10)

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2010/C 328/68

Language of the case: English

Parties

Parties

Applicant: Hugh McBride (Downings, Ireland) (represented by: A. Collins SC, N. Travers, Barrister and D. Barry, Solicitor)

Applicant:

Defendant: European Commission

Defendant:

Form of order sought

Form of order sought

| — | Annul Commission Decision notified under document C(2010) 4748 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Heather Jane II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and |
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Annul Commission Decision notified under document C(2010) 4748 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Heather Jane II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699; and

Boyle and Others

Commission

| — | Order the defendant to pay the costs. |
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Order the defendant to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

By means of the present application, the applicant seeks, pursuant to Article 263 TFUE, the annulment of Commission Decision notified under document C(2010) 4748 of 13 July 2010 as a letter to Ireland, to reject a safety capacity application concerning a new fishing vessel, the Heather Jane II, and taken to replace the decision regarding the said application contained in Commission Decision No 2003/245 of 4 April 2003 on the requests received by the Commission to increase in MAGP IV objectives to take into account improvements on safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12m in length overall (OJ 2003 L 90, p. 48), which was annulled, in so far as the applicant is concerned, by judgment of the General Court delivered on 13 June 2006 in Joined Cases T-218/03 to T-240/03 Boyle and Others v Commission [2006] ECR II-1699.

Boyle and Others

Commission

In support of his application, the applicant submits the following pleas in law:

| | Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 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 the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision. |
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Firstly, the applicant submits that the defendant acted without a legal basis. Article 4(2) of Council Decision No 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 the view to achieving a balance on a sustainable basis between resources and exploitation (OJ 1997 L 175, p. 27) continues to provide the appropriate legal basis for the impugned decision and, thus, the Commission lacked a legal basis purportedly to adopt the decision as an ad hoc decision.

ad hoc

| | Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements. |
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Secondly, the applicant submits that the Commission breached an essential procedural requirement. The applicant submits that the impugned decision, under Council Decision No 97/413/EC, should have been adopted pursuant to the management committee procedure and that, in choosing to adopt the decision on an ad hoc basis, the Commission acted in breach of essential procedural requirements.

ad hoc

| | Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001. |
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Thirdly, the applicant submits that by misinterpreting Article 4(2) of Council Decision No 97/413/EC, the Commission exceeded its powers, in particular in relying upon irrelevant criteria and ignoring the definition of ‘fishing effort’ provided in Council Decision No 97/413/EC and in Community fisheries legislation applicable at the time of the applicant’s application for safety tonnage in December 2001.

| | In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application on the basis, of the use of replacement capacity from a number of smaller vessels for the Heather Jane II, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded. |
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In addition, it is submitted that the impugned decision contains a number of manifest errors in the assessment of the applicant’s application for safety tonnage. It particular, the applicant claims that the Commission’s decision to refuse the applicant’s application on the basis, of the use of replacement capacity from a number of smaller vessels for the Heather Jane II, meant there was no increase in the total capacity of the polyvalent segment of the Irish fleet when that vessel was registered is unfounded.

| | Finally, the applicant alleges that the Commission breached the right to good administration. It is submitted that Commission’s refusal to assess the merits of his application constitutes a breach of its obligations under Article 41 of the Charter of Fundamental Rights of the European Union, and in particular, of his right to have his application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘fairly and within a reasonable time’. |
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Finally, the applicant alleges that the Commission breached the right to good administration. It is submitted that Commission’s refusal to assess the merits of his application constitutes a breach of its obligations under Article 41 of the Charter of Fundamental Rights of the European Union, and in particular, of his right to have his application, under Article 4(2) of Council Decision No 97/413/EC, assessed ‘fairly and within a reasonable time’.

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