# C_2009205EN.01002302.xml

| 29.8.2009 | EN | Official Journal of the European Union | C 205/23 |
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29.8.2009

EN

Official Journal of the European Union

C 205/23

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Reference for a preliminary ruling from the First Hall of the Civil Court (Republic of Malta), made on 17 June 2009 — AJD Tuna Ltd v Direttur tal-Agrikoltura u s-Sajd and Avukat Ġenerali

(Case C-221/09)

2009/C 205/41

Language of the case: Maltese

Referring court

Referring court

Prim’Awla tal-Qorti Ċivili

Parties to the main proceedings

Parties to the main proceedings

Applicant: AJD Tuna Ltd

Applicant:

Defendants: Direttur tal-Agrikoltura u s-Sajd; Avukat Ġenerali

Defendants:

Questions referred

Questions referred

| 1) | Is Commission Regulation No 530/2008 (1) invalid because it infringes Article 253 of the Treaty insofar as it does not state sufficiently the reasons for the adoption of the emergency measures established in Articles 1, 2 and 3 of the said regulation, and insofar as it does not give a clear enough picture of the reasoning behind these measures? |
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1)

Is Commission Regulation No 530/2008 (1) invalid because it infringes Article 253 of the Treaty insofar as it does not state sufficiently the reasons for the adoption of the emergency measures established in Articles 1, 2 and 3 of the said regulation, and insofar as it does not give a clear enough picture of the reasoning behind these measures?

1

| 2) | Is Commission Regulation No 530/2008 invalid because it infringes Article 7(1) of Council Regulation No 2371/2002 (2) insofar as, in its recitals, it does not establish adequately (i) the existence of a serious threat to the conservation of living aquatic resources or to the marine eco-system caused by fishing activities and (ii) the need to take immediate action? |
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2)

Is Commission Regulation No 530/2008 invalid because it infringes Article 7(1) of Council Regulation No 2371/2002 (2) insofar as, in its recitals, it does not establish adequately (i) the existence of a serious threat to the conservation of living aquatic resources or to the marine eco-system caused by fishing activities and (ii) the need to take immediate action?

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| 3) | Is Commission Regulation No 530/2008 invalid insofar as the adopted measures deprive Community operators, such as the applicant, of their legitimate expectations founded on Article 1 of Commission Regulation No 446/2008 (3) of 22 May 2008 and on Article 2 of Council Regulation No 2371/2002 of 20 December 2002? |
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3)

Is Commission Regulation No 530/2008 invalid insofar as the adopted measures deprive Community operators, such as the applicant, of their legitimate expectations founded on Article 1 of Commission Regulation No 446/2008 (3) of 22 May 2008 and on Article 2 of Council Regulation No 2371/2002 of 20 December 2002?

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| 4) | Is Article 3 of Commission Regulation No 530/2008 invalid because it infringes the principle of proportionality insofar as it implies that (i) no Community operator can exercise the activity of landing or placing in cages tuna for fattening or farming, even for tuna caught previously and perfectly in conformity with Commission Regulation No 530/2008; and (ii) no Community operator can carry out these activities with regards to tuna caught by fishermen whose ships do not fly the flag of one of the Member States listed in Article 1 of Commission Regulation No 530/2008, even when this tuna was caught in conformity with the quotas laid down by the International Convention for the Conservation of Atlantic Tunas? |
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4)

Is Article 3 of Commission Regulation No 530/2008 invalid because it infringes the principle of proportionality insofar as it implies that (i) no Community operator can exercise the activity of landing or placing in cages tuna for fattening or farming, even for tuna caught previously and perfectly in conformity with Commission Regulation No 530/2008; and (ii) no Community operator can carry out these activities with regards to tuna caught by fishermen whose ships do not fly the flag of one of the Member States listed in Article 1 of Commission Regulation No 530/2008, even when this tuna was caught in conformity with the quotas laid down by the International Convention for the Conservation of Atlantic Tunas?

| 5) | Is Commission Regulation No 530/2008 invalid because it infringes the principle of proportionality insofar as the Commission failed to establish that the measure it was going to adopt would contribute towards the recovery of tuna stocks? |
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5)

Is Commission Regulation No 530/2008 invalid because it infringes the principle of proportionality insofar as the Commission failed to establish that the measure it was going to adopt would contribute towards the recovery of tuna stocks?

| 6) | Is Commission Regulation No 530/2008 invalid because the adopted measures are unreasonable and discriminatory on grounds of nationality, within the meaning of Article 12 of the Treaty establishing the European Community, insofar as the said regulation makes a distinction between purse seiners flying the Spanish flag and those flying the flag of Greece, Italy, France, Cyprus and Malta, and insofar as it makes a distinction between these six Member States and the other Member States? |
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6)

Is Commission Regulation No 530/2008 invalid because the adopted measures are unreasonable and discriminatory on grounds of nationality, within the meaning of Article 12 of the Treaty establishing the European Community, insofar as the said regulation makes a distinction between purse seiners flying the Spanish flag and those flying the flag of Greece, Italy, France, Cyprus and Malta, and insofar as it makes a distinction between these six Member States and the other Member States?

| 7) | Is Commission Regulation No 530/2008 invalid because the principles of justice as protected under Article 47 of the Charter of Fundamental Rights of the European Union were not respected insofar as the interested parties and the Member States were not given any opportunity to submit their written comments prior to the adoption of the decision? |
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7)

Is Commission Regulation No 530/2008 invalid because the principles of justice as protected under Article 47 of the Charter of Fundamental Rights of the European Union were not respected insofar as the interested parties and the Member States were not given any opportunity to submit their written comments prior to the adoption of the decision?

| 8) | Is Commission Regulation No 530/2008 invalid because the adversarial principle (audi alteram partem), as a general principle of Community law, was not respected insofar as the interested parties and the Member States were not given any opportunity to submit their written comments prior to the adoption of the decision? |
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8)

Is Commission Regulation No 530/2008 invalid because the adversarial principle (audi alteram partem), as a general principle of Community law, was not respected insofar as the interested parties and the Member States were not given any opportunity to submit their written comments prior to the adoption of the decision?

| 9) | Is Article 7(2) of Council Regulation No 2371/2008 invalid because the adversarial principle (audi alteram partem), as a general principle of Community law, and/or the principles of justice as protected under Article 47 of the Charter of Fundamental Rights of the European Union were not respected, and consequently, is Commission Regulation No 530/2008 invalid because it was based on Council Regulation No 2371/2008? |
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9)

Is Article 7(2) of Council Regulation No 2371/2008 invalid because the adversarial principle (audi alteram partem), as a general principle of Community law, and/or the principles of justice as protected under Article 47 of the Charter of Fundamental Rights of the European Union were not respected, and consequently, is Commission Regulation No 530/2008 invalid because it was based on Council Regulation No 2371/2008?

| 10) | In the eventuality that the Court of Justice of the European Communities decides that Commission Regulation No 530/2008 is valid, should this regulation be interpreted as meaning that the measures adopted in Article 3 of the said regulation also preclude Community operators from accepting landings, the placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean sea by purse seiners flying the flag of a third country? |
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10)

In the eventuality that the Court of Justice of the European Communities decides that Commission Regulation No 530/2008 is valid, should this regulation be interpreted as meaning that the measures adopted in Article 3 of the said regulation also preclude Community operators from accepting landings, the placing in cages for fattening or farming, or transhipments in Community waters or ports of bluefin tuna caught in the Atlantic Ocean, east of longitude 45 °W, and the Mediterranean sea by purse seiners flying the flag of a third country?

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(1)  Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45 °W, and in the Mediterranean Sea

1

OJ L 155, p. 9

(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

2

OJ L 358, 31.12.2002, p. 59–80

(3)  Commission Regulation (EC) No 446/2008 of 22 May 2008 adapting certain bluefin tuna quotas in 2008 pursuant to Article 21(4) of Council Regulation (EEC) No 2847/93 establishing a control system applicable to the Common Fisheries Policy

3

OJ L 134, p. 11

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