EN Official Journal of the European Union C 327/15

Appeal brought on 8 October 2008 by Região autónoma dos Açores against the judgment of the Court of First Instance (Third Chamber) delivered on 1 July 2008 in Case T-37/04 Região Autónoma dos Açores v Council of the European Union

(Case C-444/08 P)

(2008/C 327/26)

Language of the case: English

Parties

Appellant: Região autónoma dos Açores (represented by: M. Renouf, Solicitor, C. Bryant, Solicitor, H. Mercer QC)

Other parties to the proceedings: Council of the European Union, Commission of the European Communities, Kingdom of Spain, Seas at Risk VZW, WWF — World Wide Fund for Nature, Stichting Greenpeace Council

Form of order sought

The appellant claims that the Court should:

— Set aside the judgment of the Court of First Instance of 1 July 2008 in Case T-37/04;

— Declare the application in Case T-37/04 admissible;

— Annul Articles 3 and 11 and the Annex of Council Regulation 1954/2003 (1) in so far as they: a) provide for the fishing effort under the Regulation to be determined by reference only to the target species and the ICES/CECAF area but not also by reference to the type of fishing gear used, whether fixed or towed; and b) exclude deep-sea species (i.e. those demersal species covered by Regulation No 2347/2002 (2)) from the scope of Articles 3 and 11 of the Council Regulation 1954/2003.

— Annul Article 15 of Council Regulation 1954/2003 in so far as the repeal of Regulations 685/95 (3) and 2027/95 (4): a) Removes (i) the power of the Community to determine fishing effort by reference not only to target species and ICES/CECAF area but also by reference to the type of fishing gear used, and (ii) the determination of the fishing effort, as effected by Regulation 2027/95; b) Removes (i) the power to determine a maximum annual fishing effort by area in respect of deep-sea species (i.e. those demersal species covered by Regulation No 2347/2002) and (ii) the determination of the maximum annual fishing effort, as effected by Regulation 2027/95; c) Removes the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;

— Annul Article 5(1) of Council Regulation 1954/2003 in so far as it does not maintain the exclusion of access of Spanish vessels to the waters of the Azores for fishing of tuna or tuna-like species;

— Refer the case back to the Court of First Instance if the Court of Justice does not consider that the state of the proceedings is such as to enable it to give final judgment; and

— Order the Council of the European Union to pay the costs incurred by the Autonomous Region of the Azores (Região Autónoma dos Açores) in respect of both the proceedings at first instance and the present appeal.

Pleas in law and main arguments

The appellant relies on seven grounds to support its appeal against the above mentioned Court of First Instance judgment.

First, that the Court of First Instance erred in law by finding that the protection afforded to the appellant under Article 299(2) EC is not sufficient to establish that the appellant is individually concerned by the contested provisions.

Second, that the Court of First Instance wrongly concluded that only Member States, and not regional authorities, have the right to defend the general interest of their territory.

Third, that the Court of First Instance erred in law by failing to distinguish environmental from economic considerations.

Fourth, that the Court of First Instance erred in law by finding that the contested provisions would not entail harmful effects for the fish stocks and for the marine environment in the Azores and, concequently, for the survival of the fishing sector in the region.

Fifth, that the Court of First Instance erred in law by finding that the effect of the contested provisions on the appellant's legislative and executive powers did not make the appellant individually concerned by the provisions.

Sixth, that the Court of First Instance erred in law by finding that the appellant's application was not admissible by virtue of the lack of other effective judicial remedies available to the appellant.

Seventh, that the Court of First Instance erred in law by failing to consider the factors relied upon by the appellant cumulatively as well as separately.

(1) Council Regulation (EC) No 1954/2003 of 4 November 2003 on the management of the fishing effort relating to certain Community fishing areas and resources and modifying Regulation (EC) No 2847/93 and repealing Regulations (EC) No 685/95 and (EC) No 2027/95 (OJ L 289, p. 1).

(2) Council Regulation (EC) No 2347/2002 of 16 December 2002 establishing specific acess requirements and associated conditions applicable to fishing for deep-sea stocks (OJ L 351, p. 6).

(3) Council Regulation (EC) No 685/95 of 27 March 1995 on the management of the fishing effort relating to certain Community fishing areas and resources (OJ L 71, p. 5).

(4) Council Regulation (EC) No 2027/95 of 15 June 1995 establishing a system for the management of fishing effort relating to certain Community fishing areas and resources (OJ L 199, p. 1).