EN Official Journal of the European Union C 298/17

Appeal brought on 8 August 2011 by United Kingdom of Great Britain and Northern Ireland against the order of the General Court (Seventh Chamber) delivered on 24 May 2011 in Case T-115/10: United Kingdom of Great Britain and Northern Ireland v European Commission

(Case C-416/11 P)

2011/C 298/31

Language of the case: English

Parties

Appellant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent, D. Wyatt QC, V. Wakefield, Barrister)

Other party to the proceedings: European Commission

Form of order sought

The applicant asks the Court that:

— the Order of the General Court be set aside;

— the United Kingdom's action for annulment be declared admissible and the case be referred back to the General Court so that it may examine the substance of the United Kingdom's action for annulment;

— the Commission be ordered to pay the United Kingdom's costs of the present proceedings and those arising at first instance relating to the plea of inadmissibility; and

— the costs be reserved as to the remainder.

Pleas in law and main arguments

1. The United Kingdom appeals against the Order of the General Court of the European Union (Seventh Chamber) in Case T-115/10 United Kingdom v Commission, in which the General Court ruled that the United Kingdom's action for the annulment of the listing of the Spanish Site of Community Importance ES6120032 (‘Estrecho Oriental’) in Commission Decision 2010/45/EU (1) was inadmissible.

2. The General Court found that the listing of Site ES6120032 in Commission Decision 2010/45/EU was merely confirmatory of the earlier listing of that Site in Commission Decision 2009/95/EC (2). It was wrong to do so, since the listing of Site ES6120032 in Decision 2010/45/EU was adopted on the basis of substantial new facts, namely that ES6120032: (a) overlaps and purports to include the greater part of British Gibraltar territorial waters (‘BGTW’) and (b) overlaps and purports to include the entire area of a pre-existing United Kingdom Site of Community Importance, with the code UKGIB0002 and the name ‘Southern Waters of Gibraltar’.

3. At the time of the first listing of ES6120032 in Decision 2009/95/EC, it seems that only Spain had actual knowledge of the fact that ES6120032 overlaps with UKGIB0002 and BGTW. Certainly the United Kingdom did not know this fact, and there has been no indication that the Commission or the Habitats Committee (which adopted Decision 2009/95/EC) knew this fact.

4. By the time of the second listing of ES6120032 in Decision 2010/45/EU, the United Kingdom, the Commission and the Habitats Committee all knew this highly relevant fact, as evidenced by the debate which preceded the adoption of this measure.

5. Since there was no actual knowledge of the fact of the overlapping at the time of adoption of Decision 2009/95/EC, the General Court focussed on constructive knowledge, namely whether there could have been knowledge of the fact of the overlap at the time. It held that neither the United Kingdom nor the Commission could not have known of the fact at that time, and so (according to its reasoning) Decision 2010/45/EU was ‘merely confirmatory’ of the earlier listing.

6. The General Court fell into serious errors of law in its consideration of constructive knowledge. In particular: (a) It erred as to the identity of the parties whose constructive knowledge was legally relevant (which forms ground one of the present appeal). In particular, the General Court misunderstood case-law and ignored legal principle in considering the constructive knowledge of the Commission. The United Kingdom submits that only the constructive knowledge of the United Kingdom was relevant. Alternatively, if the constructive knowledge of any party other than the United Kingdom is relevant, it must be that of the decision-maker (i.e. the Commission and the Habitats Committee), and not that of the Commission alone; and (b) It erred as to the standard to be applied when determining what ‘could have’ been known (which forms ground two of the present appeal). In particular, the General Court failed to direct itself properly or at all as to the proper standard, namely that a party should only be fixed with knowing that which a prudent person should reasonably have known. Moreover, the General Court committed a manifest error of assessment of the facts, in deciding that the standard of constructive knowledge had been met.

(1) 2010/45/EU: Commission Decision of 22 December 2009 adopting, pursuant to Council Directive 92/43/EEC, a third updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document C(2009) 10406)

OJ L 30, p. 322

(2) 2009/95/EC: Commission Decision 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)

OJ L 43, p. 393