# C_2006060EN.01002502.xml

| 11.3.2006 | EN | Official Journal of the European Union | C 60/25 |
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Appeal brought on 9 January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo and Others against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic

(Case C-6/06 P)

(2006/C 60/48)

Language of the case: Spanish

An appeal against the judgment of the Court of First Instance (Third Chamber) of 19 October 2005 in Case T-415/03 Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic, was brought before the Court of Justice of the European Communities on 9 January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo and Others, represented by E. Garayar Gutiérrez, G. Martínez-Villaseñor, A. García Castillo and M. Troncoso Ferrer, abogados.

The appellants claim that the Court should:

| (1) | Declare the present appeal admissible; |
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| (2) | Therefore, set aside in its entirety the judgment of the Court of First Instance of 19 October 2005 in Case T-415/03; |
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| (3) | Consider the forms of order sought by the appellants at first instance, namely that it should:
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Declare that the Community incurred non-contractual liability for removing part of the share of the Total Allowable Catch for anchovy allocated to Spain and the fleet authorised to fish for anchovy in ICES area VIII during the years 1996 to 2001, by the transfer, authorised by the Council of the European Union in Regulations Nos 3074/95( 1 ), 390/97( 2 ), 45/98( 3 ), 48/1999( 4 ) and 2848/2000( 5 ), of Portugal's quota in ICES area IX to be fished by France in ICES area VIII, in breach of: Article 161(1)(f) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities and of the principle of relative stability; and of the principles of legal certainty and legitimate expectations. —
Order the Community, represented by the Council, to compensate the appellants for the certain and actual loss suffered as a consequence of the Council's acts, loss which includes both damage sustained and loss of profit, as referred to in this appeal and its annexes; —
Order the Community, represented by the Council, to pay any default interest. | — | Declare that the Community incurred non-contractual liability for removing part of the share of the Total Allowable Catch for anchovy allocated to Spain and the fleet authorised to fish for anchovy in ICES area VIII during the years 1996 to 2001, by the transfer, authorised by the Council of the European Union in Regulations Nos 3074/95( 1 ), 390/97( 2 ), 45/98( 3 ), 48/1999( 4 ) and 2848/2000( 5 ), of Portugal's quota in ICES area IX to be fished by France in ICES area VIII, in breach of: Article 161(1)(f) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities and of the principle of relative stability; and of the principles of legal certainty and legitimate expectations. | — | Order the Community, represented by the Council, to compensate the appellants for the certain and actual loss suffered as a consequence of the Council's acts, loss which includes both damage sustained and loss of profit, as referred to in this appeal and its annexes; | — | Order the Community, represented by the Council, to pay any default interest. |
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| — | Declare that the Community incurred non-contractual liability for removing part of the share of the Total Allowable Catch for anchovy allocated to Spain and the fleet authorised to fish for anchovy in ICES area VIII during the years 1996 to 2001, by the transfer, authorised by the Council of the European Union in Regulations Nos 3074/95( 1 ), 390/97( 2 ), 45/98( 3 ), 48/1999( 4 ) and 2848/2000( 5 ), of Portugal's quota in ICES area IX to be fished by France in ICES area VIII, in breach of: Article 161(1)(f) of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic to the European Communities and of the principle of relative stability; and of the principles of legal certainty and legitimate expectations. | | | | | | |
| — | Order the Community, represented by the Council, to compensate the appellants for the certain and actual loss suffered as a consequence of the Council's acts, loss which includes both damage sustained and loss of profit, as referred to in this appeal and its annexes; | | | | | | |
| — | Order the Community, represented by the Council, to pay any default interest. | | | | | | |

| (4) | Order the Council to pay the costs of the proceedings. |
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Pleas in law and main arguments

The appellants have brought their appeal against the judgment of the Court of First Instance of 19 October 2005 because that Court dismissed their action for a declaration of non-contractual liability which they had brought against the Council of the European Union to obtain compensation for the loss suffered as a result of the Council's authorisation of the transfer to the French Republic of part of the anchovy quota allocated to the Portuguese Republic.

The appellants consider that the Court of First Instance erred in law in its assessment of whether there had been a sufficiently serious breach of a higher-ranking rule of law and of the principles of legal certainty and the protection of legitimate expectations. In the view of the appellants, and contrary to what was held by the Court of First Instance, the Council did not have the discretion attributed to it by that Court, and approved the transfer of the fishing quotas in breach of the rules governing procedure and competence laid down for it by the Act of Accession of the Kingdom of Spain and Regulations Nos 685/95( 6 ) and 3760/92( 7 ).

The appellants consider that the Court of First Instance also erred in law in denying that the principle of relative stability could confer rights on individuals. If that were the case, it would render the Common Fisheries Policy meaningless and infringe the appellants' right to effective legal protection, in breach of what the Court of First Instance itself has held.

Lastly, the appellants allege that the Court of First Instance infringed their rights of defence, since not only did it fail to take account of the reports produced at the proceedings when the damage suffered as a consequence of the Council's acts was being assessed, it also rejected as not having been submitted at the appropriate time a request for measures of enquiry, which by definition the appellants could only make in the course of the proceedings.

For all these reasons, the appellants claim that the Court of Justice of the European Communities should declare the ruling given by the Court of First Instance in its judgment of 19 October 2005 to be in breach of the law and declare that the Community incurred extra-contractual liability by effecting between 1995 and 2000 a transfer of fishing quotas from Portugal to France which the Court of Justice itself had already declared to be in breach of the law.

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( 1 )  Council Regulation of 22 December 1995 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1996 and certain conditions under which they may be fished OJ 1995 L 330, p. 1.

( 2 )  Council Regulation of 20 December 1996 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1997 and certain conditions under which they may be fished OJ 1997 L 66, p. 1.

( 3 )  Council Regulation of 19 December 1997 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1998 and certain conditions under which they may be fished OJ 1998 L 12, p. 1.

( 4 )  Council Regulation of 18 December 1998 fixing, for certain fish stocks and groups of fish stocks, the total allowable catches for 1999 and certain conditions under which they may be fished OJ 1999 L 13, p. 1.

( 5 )  Council Regulation of 15 December 2000 fixing for 2001 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where limitations in catch are required OJ 2000 L 334, p. 1.

( 6 )  Council Regulation of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources OJ 1995 L 71, p. 5.

( 7 )  Council Regulation of 20 December 1992 establishing a Community system for fisheries and aquaculture OJ 1992 L 389, p. 1.

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