EN Official Journal of the European Union C 153/48

Action brought on 6 May 2009 — Government of Gibraltar v Commission

(Case T-176/09)

2009/C 153/92

Language of the case: English

Parties

Applicant: Government of Gibraltar (represented by: D. Vaughan, QC and M. Llamas, Barrister)

Defendant: Commission of the European Communities

Form of order sought

— annul Decision 2009/95/EC to the extent that it extends ES6120032 to British Gibraltar Territorial Waters (both within and outside UKGIB0002) and to an area of the High Seas;

— order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

By means of present application, the applicant seeks the partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049) (1) insofar as it designates ES6120032 “Estrecho oriental” site so as to include Gibraltar Territorial Waters (both within and outside UKGIB0002) and an area of the High Seas.

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

First, the applicant submits that the contested decision is in breach of the EC Treaty in that:

— the Commission made manifest errors of law in that, in breach of Article 299 EC, it has designated an area of one Member State, British Gibraltar Territorial Waters, as forming part of another Member State, Spain;

— it was adopted in breach of Articles 3(2) and 4(1) of the Directive 92/43/ECC (2) and in manifest violation of the scheme of that directive, as it purports to attribute “site of Community importance” status to a large part of the site ES6120032 which is not in Spanish territory and which is national to another Member State and in clear breach of Article 2 of the same directive to a part of the High Seas which do not form part of the European territory of Member States and over which Spain does not, and cannot, exercise any jurisdiction or sovereignty;

— it contains an error in law in that it purports to grant “site of Community importance” status and Directive 92/43/ECC obligations to parts of ES6120032, being under Spanish sovereignty, which overlap with UKGIB0002, being under United Kingdom sovereignty, thereby purporting to apply two separate and distinct legal, penal, administrative and monitoring regimes in the same site area;

— it was adopted in breach of Article 300(7) EC and provisions of Part XII of the United Nations Convention on the Law of the Sea 1982 (UNICLOS), the Barcelona Convention on the Protection of the Mediterranean Sea 1976 and the 1995 Protocol to that Convention as it requires Spain to comply with the same environmental obligations in the part of British Gibraltar Territorial Waters included in ES6120032 as are required to be complied with by the UK/Gibraltar in the same area;

Second, the applicant claims that the contested decision is vitiated by manifest errors of facts which lead the Commission to an improper application of the law and infringements of the EC Treaty since it is based on information which is false and misleading.

Third, the applicant contends that the contested decision was adopted in breach of the principle of legal certainty in that the automatic effect of the “overlapping” designation of the sites is to apply two systems of law (Gibraltar’s and Spain’s law implementing the Directive 92/43/ECC) in the same area for the same purpose.

In the alternative, the applicant claims that the contested decision was adopted in breach of the principles set for in Articles 2, 3, 89 and 137(1) UNICLOS as a matter of customary international law. As a further alternative, it submits that the decision, to the extent it designates ES6120032 as encompassing British Gibraltar Territorial Waters is in breach of the principle of customary international law that the territorial sea extends, as a minimum, to three nautical miles.

(1) OJ 2009 L 43, p. 393

(2) 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