EN Official Journal of the European Union C 165/31

Action brought on 12 May 2006 — France v Commission

(Case T-139/06)

(2006/C 165/62)

Language of the case: French

Parties

Applicant: French Republic (Paris, France) (represented by: E. Belliard, acting as Agent, G. de Bergues, acting as Agent, S. Gasri, acting as Agent)

Defendant: Commission of the European Communities

Form of order sought

— Principally, annul the contested decision due to the Commission's lack of competence;

— Alternatively, annul the contested decision on the ground of a procedural irregularity due to infringement of the rights of the defence;

— In the further alternative, annul the contested decision in that it contains an incorrect assessment of the measures taken by France to execute fully the judgment of 12 July 2005;

— In the even further alternative, annul the contested decision in that it should have contained a lower amount of periodic penalty payment;

— In the further alternative again, reduce the amount of the periodic penalty payment;

— Order the Commission to pay the costs or, if the amount of the periodic penalty payment is reduced by the Court of First Instance, order each party to bear its own costs.

Pleas in law and main arguments

By judgment of 11 June 1991 (1), the Court of Justice of the European Communities found that the applicant had failed to fulfil the obligations imposed on Member States by Community law in the area of fisheries policy. Since that judgment was not implemented, the Commission brought an action before the Court of Justice based on Article 228 EC and by judgment of 12 July 2005 (2) the applicant was ordered to pay to the Commission a penalty payment for each period of six months as from delivery of the judgment as well as a fixed sum. Following that judgment, the Commission carried out examinations as to the extent of the applicant's implementation of the judgment of the Court of 11 June 1991 and, on finding that the applicant had not executed it fully, the Commission directed a decision at it requesting the payment of the financial penalties imposed on it by the Court of Justice in the judgment of 12 July 2005. The decision in question is the contested decision.

In support of its action the applicant is relying on several pleas.

Principally, it submits that the contested decision should be annulled due to the Commission's lack of competence in that the Commission cannot adopt a decision which imposes on a Member State the recovery of a periodic penalty payment imposed by the Court of Justice in the context of Article 228 EC. It submits that under Article 228 EC only the Court of Justice has jurisdiction to call for such a payment in that that implies a prior finding that the failure to fulfil obligations is persisting.

Alternatively, the applicant submits the procedural irregularity of the taking of a decision by the Commission owing to infringement of the rights of the defence inasmuch as the French authorities did not have the opportunity of properly presenting their observations before the contested decision was taken.

In the further alternative, the applicant submits an argument as to the incorrect assessment by the Commission of the measures taken by France to execute fully the judgment of the Court of Justice.

In the even further alternative, it submits that, given the implementing measures which it has introduced since the Court of Justice's judgment, the Commission should have set the amount of the periodic penalty payment at a lower level.

Lastly, in the further alternative again, the applicant submits that if the Court of First Instance considers that the Commission did not itself have the power to reduce the amount of the periodic penalty payment imposed in the judgment of the Court of Justice, it is for the Court of First Instance to do so itself in the context of its unlimited jurisdiction.

(1) Case C-64/88 Commission v France [1991] ECR I-2727

(2) Case C-304/02 Commission v France [2005] ECR I-6263