# C_2010134EN.01004301.xml

| 22.5.2010 | EN | Official Journal of the European Union | C 134/43 |
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22.5.2010

EN

Official Journal of the European Union

C 134/43

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Action brought on 11 March 2010 — Conte and Others v Council

(Case T-121/10)

2010/C 134/72

Language of the case: Italian

Parties

Parties

Applicants: Conte (Pomezia, Italy), Casa del Pescatore Soc. coop. rl (Civitanova Marche, Italy), Guidotti Giovanni & Figli Snc (Termoli, Italy), Organizzazione di produttori della pesca di Civitanova Marche Soc. coop. rl (Civitanova Marche, Italy), Consorzio gestione mercato ittico Manfredonia Soc. coop. rl (Cogemim) (Manfredonia, Italy) (represented by: P. Cavasola, G. Micucci and V. Cannizzaro, lawyers)

Applicants:

Defendant: Council of the European Union

Defendant:

Form of order sought

Form of order sought

| — | Annul the contested regulation. |
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Annul the contested regulation.

| — | 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

The applicants in the present case all operate in the fisheries sector and are subject to the obligations laid down in the contested regulation.

In support of their claims, the applicants put forward the following grounds:

| 1. | Articles 9(2) and (3) and 10(1) and (2) of the contested regulation are invalid in so far as those provisions lay down an unconditional obligation for fishing vessels over 15 metres to be equipped with a double monitoring system: a satellite tracking system, provided for in Article 9, and, in addition, an automatic ship identification system. These are two different monitoring systems which essentially have the same function. No adequate reasons are given for that obligation. The obligation also appears to be in breach of the principle of proportionality, in this case as regards the need for and appropriateness of the measure. Moreover, the obligation to be equipped with a double monitoring system represents a financial burden for the applicants which is unjustified and unreasonable. |
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1.

Articles 9(2) and (3) and 10(1) and (2) of the contested regulation are invalid in so far as those provisions lay down an unconditional obligation for fishing vessels over 15 metres to be equipped with a double monitoring system: a satellite tracking system, provided for in Article 9, and, in addition, an automatic ship identification system. These are two different monitoring systems which essentially have the same function. No adequate reasons are given for that obligation. The obligation also appears to be in breach of the principle of proportionality, in this case as regards the need for and appropriateness of the measure. Moreover, the obligation to be equipped with a double monitoring system represents a financial burden for the applicants which is unjustified and unreasonable.

| 2. | Articles 15 and 17 of the contested regulation are invalid in so far as those provisions lay down an obligation for fishing vessels of 12 metres’ length or more to provide certain information on a daily basis and, in any event, before entry to port, or even four hours before entry to port. According to the applicants, that obligation is unreasonable, disproportionate and even incapable of being fulfilled. Especially for vessels engaged in small scale fishing in fishing zones located at a distance of a few hours’ navigation from ports, it would be impossible to comply with that obligation, unless the vessels were to remain stuck outside the port until the time periods in question have elapsed. |
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2.

Articles 15 and 17 of the contested regulation are invalid in so far as those provisions lay down an obligation for fishing vessels of 12 metres’ length or more to provide certain information on a daily basis and, in any event, before entry to port, or even four hours before entry to port. According to the applicants, that obligation is unreasonable, disproportionate and even incapable of being fulfilled. Especially for vessels engaged in small scale fishing in fishing zones located at a distance of a few hours’ navigation from ports, it would be impossible to comply with that obligation, unless the vessels were to remain stuck outside the port until the time periods in question have elapsed.

| 3. | The system of surveillance and inspections is invalid in so far as the contested regulation lays down an unconditional obligation to grant access to rooms of the vessel and to files and electronic documents and to submit to forms of inspection and questioning by officers who are to operate without any authorisation from the judicial authorities and are not subject to any control by police bodies. The rights to confidentiality, home-life and privacy and the right of defence in their various forms would thus be infringed. Such control, as well as infringing the various basic rights referred to above, would ultimately, as a result of its intrusive nature, deprive of all substance the right of fisheries operators to exercise an economic freedom, guaranteed by the founding Treaties. A specific ground of invalidity relates to Article 82, which gives the inspection officers the power to take protective measures in relation to evidence of possible infringements. |
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3.

The system of surveillance and inspections is invalid in so far as the contested regulation lays down an unconditional obligation to grant access to rooms of the vessel and to files and electronic documents and to submit to forms of inspection and questioning by officers who are to operate without any authorisation from the judicial authorities and are not subject to any control by police bodies. The rights to confidentiality, home-life and privacy and the right of defence in their various forms would thus be infringed. Such control, as well as infringing the various basic rights referred to above, would ultimately, as a result of its intrusive nature, deprive of all substance the right of fisheries operators to exercise an economic freedom, guaranteed by the founding Treaties. A specific ground of invalidity relates to Article 82, which gives the inspection officers the power to take protective measures in relation to evidence of possible infringements.

| 4. | Article 73(8) of the contested regulation is invalid in so far as that provision provides for the freedom for Member States to make fisheries operators liable for the financial burden of the surveillance system. It is submitted in this connection that that provision is clearly invalid because it is at odds with the principle of social distribution of expenditure necessary for the furtherance of public interests. |
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4.

Article 73(8) of the contested regulation is invalid in so far as that provision provides for the freedom for Member States to make fisheries operators liable for the financial burden of the surveillance system. It is submitted in this connection that that provision is clearly invalid because it is at odds with the principle of social distribution of expenditure necessary for the furtherance of public interests.

| 5. | Article 92 of the contested regulation is invalid in so far as that provision provides for a system of transferring liability for any infringement, so that, irrespective of who is responsible, it ultimately lies with the owner of the fishing vessel and any assignees. It is submitted in this regard that that provision is contrary to the principle that liability should be imputed only to the person responsible, the principle of the protection of the right to private property and the principle of proportionality, since it is not directed, from any rational perspective, at preventing circumvention of the sanctions regime. |
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5.

Article 92 of the contested regulation is invalid in so far as that provision provides for a system of transferring liability for any infringement, so that, irrespective of who is responsible, it ultimately lies with the owner of the fishing vessel and any assignees. It is submitted in this regard that that provision is contrary to the principle that liability should be imputed only to the person responsible, the principle of the protection of the right to private property and the principle of proportionality, since it is not directed, from any rational perspective, at preventing circumvention of the sanctions regime.

| 6. | Article 103 of the contested regulation is invalid in so far as that provision provides that, where a Member State fails to fulfil its obligations under the regulation itself, that can lead to the financial assistance provided under Regulation 1198/2006 (1) and Regulation 861/2006 (2) being suspended. The suspension of the aid entails a transfer of liability from the State to the individuals, who are thus made to bear the adverse consequences of the State’s conduct. That form of transfer of sanctions infringes the principle that punishment should be applied only to the offender and the principle of proportionality. |
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6.

Article 103 of the contested regulation is invalid in so far as that provision provides that, where a Member State fails to fulfil its obligations under the regulation itself, that can lead to the financial assistance provided under Regulation 1198/2006 (1) and Regulation 861/2006 (2) being suspended. The suspension of the aid entails a transfer of liability from the State to the individuals, who are thus made to bear the adverse consequences of the State’s conduct. That form of transfer of sanctions infringes the principle that punishment should be applied only to the offender and the principle of proportionality.

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| 7. | Article 14(1), (2), (3), (4) and (5), Article 17(1), Article 58(1), (2), (3) and (5), Article 59(2) and (3), Article 60(4) and (5), Article 62(1), Article 63(1), Article 64, Article 65, Article 66(1) and (3), Article 67(1) and Article 68 of the contested regulation are invalid. The applicants submit in this connection that the regulation is based only on Article 37 TEC, which permits the establishment of a common fisheries policy, and that the measures contained in the regulation are lawful only if they relate to the fisheries policy established by the Community institutions in various acts. However, the provisions referred to above do not relate to sectors or species which are governed by the common fisheries policy and therefore fall outside the scope of Article 37 TEC. |
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7.

Article 14(1), (2), (3), (4) and (5), Article 17(1), Article 58(1), (2), (3) and (5), Article 59(2) and (3), Article 60(4) and (5), Article 62(1), Article 63(1), Article 64, Article 65, Article 66(1) and (3), Article 67(1) and Article 68 of the contested regulation are invalid. The applicants submit in this connection that the regulation is based only on Article 37 TEC, which permits the establishment of a common fisheries policy, and that the measures contained in the regulation are lawful only if they relate to the fisheries policy established by the Community institutions in various acts. However, the provisions referred to above do not relate to sectors or species which are governed by the common fisheries policy and therefore fall outside the scope of Article 37 TEC.

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(1)  Council Regulation (EC) No 1198/2006 of 27 July 2006 on the European Fisheries Fund.

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(2)  Council Regulation (EC) No 861/2006 of 22 May 2006 establishing Community financial measures for the implementation of the common fisheries policy and in the area of the Law of the Sea.

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