EN Official Journal of the European Union C 113/75

Action brought on 4 March 2010 — United Kingdom v Commission

(Case T-115/10)

2010/C 113/109

Language of the case: English

Parties

Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, acting as agent, assisted by D.Wyatt, QC and M. Wood, Barrister)

Defendant: European Commission

Form of order sought

— annul Commission Decision 2010/45/EU, of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC (the Habitats Directive) (1), a third updated list of sites of Community importance for the Mediterranean bio-geographical region (2), to the extent that it lists the Estrecho Oriental site of Community importance, identified by code ES6120032,

— award costs against the Commission.

Pleas in law and main arguments

By means of the present application, the applicant challenges the validity of Commission Decision 2010/45/EU (notified under document number C(2009) 10406) to the extent of its listing of the Estrecho Oriental site of Community importance, and seeks annulment of the listing of the Estrecho Oriental site of Community importance.

The applicant puts forward the following pleas in law in support of its claims.

First, the applicant submits that the contested decision was adopted in breach of Directive 92/43/EEC, in that the listing of the Spanish Estrecho Oriental site of Community importance was incompatible with it, because:

— a very substantial area of that site is located within British Gibraltar Territorial Waters (BGTW), which fall within the effective control of the United Kingdom rather than Spain, and

— because it completely overlaps the existing UK Southern Water of Gibraltar site of Community importance.

Secondly, the applicant claims that the contested decision was adopted in breach of the principle of legal certainty, in that the listing of the Estrecho Oriental site of Community importance purports to impose obligations on Spain under Directive 92/43/EEC in respect of an area within an existing site of Community importance, in respect of which the Government of Gibraltar is already subject to identical obligations under that Directive. The effect is to purport to qualify or call into question the authority of the Government of Gibraltar to implement the Directive in the Southern Waters of Gibraltar site of Community importance, and to enforce the law of Gibraltar in BGTW, creating legal uncertainty for the Government of Gibraltar, and for EU citizens.

Thirdly, the applicant contends that the contested decision was adopted in breach of the principle of proportionality, in that the listing of the Spanish Estrecho Oriental site of Community importance so as to include the whole of the UK Southern Waters of Gibraltar site of Community importance and other areas of BGTW is neither appropriate, nor necessary, to attain the environmental objectives pursued by Directive 92/43/EEC.

Finally, the applicant contends that the contested listing of the Estrecho Oriental site of Community importance must be annulled in its entirety, since partial annulment of the listing would have the affect of changing its substance, and would entail amendment by the Court of the listing, and recalculation of the centre point of the site of Community importance, and of its area, and an environmental assessment of the eligibility of the remaining part of the site to qualify as an site of Community importance.

(1) Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, p. 7

(2) OJ 2010 L 30, p. 322