# C_2004094EN.01004701.xml

| 17.4.2004 | EN | Official Journal of the European Union | C 94/47 |
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17.4.2004

EN

Official Journal of the European Union

C 94/47

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Action brought on 2 February 2004 by the Autonomous Region of the Azores against the Council of the European Union

(Case T-37/04)

(2004/C 94/131)

Language of the case: English

An action against the Council of the European Union was brought before the Court of First Instance of the European Communities on 2 February 2004 by the Autonomous Region of the Azores, (Portugal), represented by M. Renouf, S. Crosby and C. Bryant, Solicitors.

The applicant claims that the Court should:

| — | Annul Articles 3 and 11 and the Annex to Council Regulation 1954/2003 in so far as: a) They provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; b) They exclude from the operation of Articles 3 and 11 demersal species covered by Regulation 2347/2002. |
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Annul Articles 3 and 11 and the Annex to Council Regulation 1954/2003 in so far as: a) They provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; b) They exclude from the operation of Articles 3 and 11 demersal species covered by Regulation 2347/2002.

| — | Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Council Regulations 685/95 and 2027/95: a) Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation 685/95 and Article 2 and Annex of Regulation 2027/95) and removes the determination of same which had been effected by Regulation 2027/95; b) Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation 2347/2002 and removes the determination of same which had been effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species (Annex III, para. 3 of Regulation 685/95); d) Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of Regulation 1954/2003 has entered into force. |
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Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Council Regulations 685/95 and 2027/95: a) Removes the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used (Articles 3(1), 6 and Annex 1 of Regulation 685/95 and Article 2 and Annex of Regulation 2027/95) and removes the determination of same which had been effected by Regulation 2027/95; b) Removes the power to determine a maximum annual fishing effort by area in respect of demersal species covered by Regulation 2347/2002 and removes the determination of same which had been effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species (Annex III, para. 3 of Regulation 685/95); d) Is capable of taking effect on 1 August 2004, whether or not a Regulation under Articles 11(2) or (3) of Regulation 1954/2003 has entered into force.

| — | Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species. |
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Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to island waters under the sovereignty or jurisdiction of Portugal in ICES Area X and CECAF for fishing of tuna or tuna-like species.

| — | Annul Article 13(b) of Council Regulation 1954/2003 insofar as it exempts Articles 19a(3), 19b, 19c, 18d and 19e(3) of Regulation (EEC) No. 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores. |
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Annul Article 13(b) of Council Regulation 1954/2003 insofar as it exempts Articles 19a(3), 19b, 19c, 18d and 19e(3) of Regulation (EEC) No. 2847/93 from application in the waters under the sovereignty or jurisdiction of Portugal around the Azores.

| — | Order the Council to pay the costs incurred by the Applicant in the present proceedings. |
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Order the Council to pay the costs incurred by the Applicant in the present proceedings.

Pleas in law and main arguments:

The Applicant claims the partial annulment of Council Regulation 1954/2003 (1) which replaces the fishing regime governing the Azorean fisheries. The applicant invokes a number of alleged procedural violations in the adoption of the regulation, which would justify its annulment as requested by the applicant. These procedural violations comprise failure to properly consult the European Parliament; failure to take into account evidence of an economic, technical, scientific and environmental nature; and failure to provide an adequate statement of reasons for the act adopted.

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The Applicant further invokes a number of alleged substantive law violations by the contested regulation, namely:

| — | breach of the principle of relative stability and related provisions of the Common Fisheries Policy, in particular Article 33 EC and Regulation 2371/2002 (2) Official Journal L 358, 31/12/2002 P. 0059 - 0080 |
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breach of the principle of relative stability and related provisions of the Common Fisheries Policy, in particular Article 33 EC and Regulation 2371/2002 (2) Official Journal L 358, 31/12/2002 P. 0059 - 0080

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| — | breach of Article 299 paragraph 2 EC |
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breach of Article 299 paragraph 2 EC

| — | breach of Articles 6 and 174 EC, and of the environmental law principles that is to say, the precautionary principle, the principle of preventive action, the principle of rectification of damage at source and the principle that the polluter should pay. |
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breach of Articles 6 and 174 EC, and of the environmental law principles that is to say, the precautionary principle, the principle of preventive action, the principle of rectification of damage at source and the principle that the polluter should pay.

| — | breach of the fundamental objectives of the Treaty, of Article 158 EC and of the principle of proportionality |
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breach of the fundamental objectives of the Treaty, of Article 158 EC and of the principle of proportionality

| — | breach of mandatory public international law requirements and thus of Article 300(7) EC |
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breach of mandatory public international law requirements and thus of Article 300(7) EC

| — | breach of Regulation 1275/94 (3) Official Journal L 140, 03/06/1994 P. 0001-0002 adopted to facilitate the integration of Spain and Portugal into the general scheme of the Common Fisheries Policy. |
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breach of Regulation 1275/94 (3) Official Journal L 140, 03/06/1994 P. 0001-0002 adopted to facilitate the integration of Spain and Portugal into the general scheme of the Common Fisheries Policy.

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(1)  Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 Official Journal L 289 , 07/11/2003 P. 0001 - 0007

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(2)  Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy

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(3)  Council Regulation (EC) No 1275/94 of 30 May 1994 on adjustments to the arrangements in the fisheries chapters of the Act of Accession of Spain and Portugal

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