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C\_2008142EN.01003302.xml


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| 7.6.2008 | EN | Official Journal of the European Union | C 142/33 |

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Action brought on 3 April 2008 — Cavankee Fishing and Others v Commission

(Case T-138/08)

(2008/C 142/61)

Language of the case: English

Parties

Applicants: Cavankee Fishing Co. Ltd (Lifford, Ireland), Ocean Trawlers Limited (Killybegs, Ireland), Mullglen Limited (Balbriggan, Ireland), Eamon McHugh (Killybegs, Ireland), Joseph Doherty (Burtonport, Ireland), Brendan Gill (Lifford, Ireland), Eileen Oglesby (Burtonport, Ireland), Noel McGing (Killybegs, Ireland), Larry Murphy (Castletownbere, Ireland), Thomas Flaherty (Aran Islands, Ireland), Pauric Conneely (Claregalway, Ireland), Island Trawlers Limited (Killybegs, Ireland), Cathal Boyle (Killybegs, Ireland), Eugene Hannigan (Milford, Ireland), Peter McBride (Downings, Ireland), Hugh McBride (Downings, Ireland), Patrick Fitzpatrick (Aran Islands, Ireland), Patrick O'Malley (Galway, Ireland), Cecil Sharkey (Clogherhead, Ireland) (represented by: A. Collins, SC, N. Travers, Barrister, D. Barry, Solicitor)

Defendant: Commission of the European Communities

Form of order sought

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| — | order the Commission to pay the following sums (excluding interest), increased by the costs of borrowing, further up-to-date particulars of which will be provided at the oral hearing, by way of damages to each of the applicants: Pelagic — |   Cavankee Fishing Company 2 748 276,00 EUR — |   Ocean Trawlers Ltd 6 740 000,00 EUR — |   Mullglen Ltd. 2 690 000,00 EUR — |   Eamon McHugh 3 036 187,00 EUR — |   Joseph Doherty 2 640 408,00 EUR — |   Brendan Gill 2 717 665,00 EUR — |   Eileen Oglesby 2 994 349,00 EUR — |   Noel McGing 2 444 000,00 EUR — |   Larry Murphy 4 150 000,00 EUR — |   Thomas Flaherty 2 140 000,00 EUR — |   Pauric Conneely 1 930 000,00 EUR Polyvalent — |   Island Trawlers Limited 672 000,00 EUR — |   Cathal Boyle 651 200,00 EUR — |   Eugene Hannigan 125 000,00 EUR — |   Peter McBride 106 848,00 EUR — |   Hugh McBride 106 848,00 EUR — |   Partick Fitzpatrick 177 573,00 EUR — |   Patrick O'Malley (a) |   ‘Capal Ban’ 205 698,00 EUR (b) |   ‘Capal Or’ 496 800,00 EUR — |   Cecil Sharkey 205 697,88 EUR |

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| — | order the Commission to pay the costs of these proceedings. |

Pleas in law and main arguments

In the present case, the applicants are bringing an action for non-contractual liability arising from the losses they claim to have suffered as a result of the Commission's Decision 2003/245/EC of 4 April 2003 on the requests submitted by the Member States[(1)](#ntr1-C_2008142EN.01003302-E0001) in so far as it provided for the rejection of the request by Ireland in respect of the applicants' vessels. This decision was partially annulled by the Court's judgment of 13 June 2006[(2)](#ntr2-C_2008142EN.01003302-E0002).

The applicants state in support of their contentions that in adopting the annulled decision the Commission breached a number of superior rules of law intended to confer rights on individuals by grave and manifest disregard of the discretion conferred upon the Commission by Article 4(2) of Decision 97/413/EC[(3)](#ntr3-C_2008142EN.01003302-E0003) as found by the Court in its judgment in the Joined Cases T-218/03 to T-240/03. The applicants claim that the Commission also infringed: the principle of equal treatment, the principle of care and sound administration, the freedom to pursue a trade or profession and the principle of proportionality. They claim that in such circumstances, the mere infringement of Community law establishes a sufficiently serious breach of law.

Furthermore, the applicants claim that they have suffered and continue to suffer substantial loss and damage as a direct consequence of the Commission adopting the annulled decision as they were required to purchase on the market tonnage to replace safety tonnage requested but not granted and, for some applicants, as regards to the losses flowing from days lost at sea. Therefore, the applicants claim that their damage is actual and certain.

As proof of the existence of a causal connection between the conduct and damage at issue, the applicants state that if the Commission had not acted unlawfully in refusing properly to consider the applications for safety tonnage submitted by the applicants, none of them would have been required to purchase additional tonnage.

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[(1)](#ntc1-C_2008142EN.01003302-E0001)  Decision C(2003) 1113 final on the requests received by the Commission to increase the fourth multi-annual guidance programme (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 m in length overall ([OJ 2003 L 90, p. 48](http://publications.europa.eu/resource/oj/JOL_2003_090_R_TOC)).

[(2)](#ntc2-C_2008142EN.01003302-E0002)  Joined Cases T-218/03 to T-240/03, Boyle and Others v Commission [2006] ECR II-1699.

[(3)](#ntc3-C_2008142EN.01003302-E0003)  Council Decision 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 L 175, p. 27).

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