EN Official Journal of the European Union C 183/21

Action brought on 3 January 2008 — EMSA v Portugal

(Case T-4/08)

(2008/C 183/44)

Language in which the application has been lodged: English

Parties

Applicant: European Maritime Safety Agency (EMSA) (represented by: Professor E. Pache, and J. Menze, Agent)

Defendant: Republic of Portugal

Form of order sought

The European Maritime Safety Agency applies for a judgment of the Court of First Instance under Article 14, sentence 2, of the Seat Agreement establishing that:

— The Portuguese Government is bound by the provisions of the Seat Agreement which is an instrument of public international law within the sphere of Community law and which cannot be modified or changed unilaterally by Portugal, including by means of national legislation;

— according to the Seat Agreement, the Portuguese Government is obliged to secure that staff of the European Maritime Safety Agency and their family members have the right to import from their last country of residence or from the country of which they are nationals, free of duty and without prohibitions or restrictions, in respect of initial establishment, within five years of taking up their appointments with the Agency and in a maximum of two shipments, vehicles purchased under market conditions in the county in question and that the past and current application of this provision of the Seat Agreement by the relevant Portuguese authorities does not fulfil this obligation; in particular, that the Portuguese Government is obliged to register, following application, under a special series free of duty and without prohibitions or restrictions, vehicles of staff members of the Agency and their families purchased under market conditions in the country of previous residence or in the country of which they are nationals;

— according to the Seat Agreement, the Portuguese Government is obliged to ensure that the staff of the European Maritime Safety Agency and their family members enjoy the privileges and immunities, exemptions and facilities granted by Portugal to members of a comparable category of the diplomatic corps in the Portuguese Republic, and that the past and current application of this provision of the Seat Agreement by the relevant Portuguese authorities does not fulfil this obligation; in particular, that the Portuguese Government is obliged to apply the rules and provisions in force until July 2007 concerning the registration and taxation of vehicles of staff of the diplomatic corps for staff of the European Maritime Safety Agency having taken up duty before that date, and their families; that the Portuguese Government is obliged to apply the rules and provisions in force until July 2007 concerning the registration and taxation of vehicles of staff of the diplomatic corps for all other cases; that the Portuguese Government is obliged to ensure that the staff of the European Maritime Safety Agency and their families are actually granted the privileges and immunities, exemptions and facilities granted by Portugal to members of a comparable category of diplomatic corps in the Portuguese Republic, and that the past and current practice of Portuguese authorities not to process application for registration of staff members of the European Maritime Safety Agency and their families is in contradiction to this obligation;

— the provisions of the Seat Agreement shall not be interpreted and applied to the extent that staff of the European Maritime Safety Agency and their family members do not enjoy at least the rights of any EU national moving residence to Portugal with regard to the introduction of used vehicles into Portuguese territory;

— a reasonable period of time for the processing of application of European Maritime Safety Agency and their family members for car registration in application of the Seat Agreement shall be considered no more than two months; and

— order in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance that the Portuguese Republic pays the costs.

Pleas in law and main arguments

The European Maritime Safety Agency (‘the EMSA’ or ‘the Agency’) was established by Regulation (EC) No 1406/2002 (1) and has its seat in Lisbon. On 28 July 2004 the Protocol between the Government of the Portuguese Republic and the European Maritime Safety Agency (2) (‘the Seat Agreement’) was signed. The Seat Agreement covers the relations between the EMSA and Portugal as its host state and applies to the agency and its staff.

The applicant submits that the Portuguese Government proposed, without prior request or suggestion of the EMSA, to enter into the said Seat Agreement providing for a range of privileges and immunities, exemptions and facilities for the Agency and its staff largely reflecting the provisions of the Protocol on the Privileges and Immunities of the European Communities (‘the Protocol’) but also providing additional facilities. It further claims that the text of the Seat Agreement proposed was similar to the text of the Seat Agreement concluded between Portugal and the European Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’) on 26 June 1996, in particular concerning vehicle registration.

In September 2005 a working group between the Portuguese Government on the one hand and EMSA and EMCDDA on the other hand was created with a view to draft detailed administrative provisions necessary for the implementation of the two Seat Agreements or Protocols.

The applicant claims that the Portuguese administration, by not processing applications for vehicle registrations submitted by EMSA staff violated its obligations resulting from the Seat Agreement clarifying the obligations resulting from the Protocol applicable to the EMSA according to Article 7 of Regulation (EC) No 1406/2002. Furthermore, the applicant claims that the Portuguese authorities did not apply the relevant Portuguese law in force with regard to EMSA staff and their family members whereas it did for EMCDDA and diplomatic missions. These actions resulted in severe impediments to the functioning of the EMSA, according to the applicant, as vehicles purchased under the legitimate expectation that the existing rules would be implemented remained unregistered. Also, vehicles brought form the place of prior residence or from the state of nationality of staff members remained with number plates of the member state of previous residence in spite of rules of that state as regards the obligation to de-register. In short, the applicant claims that the decision of the Portuguese authorities not to process vehicle registration requests created a series of serious legal and administrative difficulties for staff members who had no choice but operate a vehicle in disrespect to obligations relating to registration, insurance and technical inspection.

With regard to the Court's jurisdiction, it is further submitted that Article 8(2) of Regulation (EC) No 1406/2002 provides that the Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency and that Article 14 of the Seat Agreement provides that disputes with effect on the application of this agreement shall be examined by an ad hoc group of four members. Disputes not resolved in this way shall be subject to the judgment of the Court of Justice of the European Communities.

According to the applicant, the dispute resolution procedure provided for in Article 14 of the Seat Agreement was found to be unsuccessful and hence, the Court of Justice has jurisdiction in the current dispute regarding the interpretation of the Seat Agreement, pursuant to Article 238 EC providing that the Court of Justice shall have jurisdiction to give judgment to any arbitration clause contained in a contract concluded by or on behalf of the Community, to Article 5(1) of Regulation (EC) No 1406/2002 providing that the Agency shall be a body of the Community, and to Article 225 EC providing that the Court of Fist Instance shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Article 238 EC.

Moreover, the applicant submits that it seeks confirmation by the Court that the Seat Agreement is an instrument of international law within the sphere of Community law that binds the Portuguese authorities and that cannot be unilaterally modified. It further applies for a judgment concluding that the processing of applications for motor vehicle registrations by its staff members is in contradiction to the provisions of the Protocol and that the Portuguese authorities are obliged to implement the relevant provisions of the Protocol within a reasonable period of time. Finally, it claims that the Seat Agreement shall not be interpreted in a way that the staff of the EMSA does not enjoy at least the rights, with regards to vehicle registration, of any EU national transferring its residence to Portugal.

(1) Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ 2002 L 208, p. 1).

(2) Published in the Portuguese Official Journal No 224 of 22 September 2004, p. 6073, available on the EMSA's website http://www.emsa.europa.eu/Docs/legis/protocol%20pt%20government%20and%20emsa.pdf