Case T-441/03: Action brought on 31 December 2003 by N.V. Firma Léon Van Parys, N.V. Pacific Fruit Company, Pacific Fruchtimport GmbH and Pacific Fruit Company Italy S.p.A. against the Commission of the European Communities
Date: 2004-03-06
Institutions: Court of First Instance
Subjects: Ecuador, European Commission, action for annulment (EU), import, originating product, tariff quota, tropical fruit

6.3.2004

EN

Official Journal of the European Union

C 59/31

Action brought on 29 December 2003 by Jean Arizmendi
and 43 other applicants against the Council of the Euro-
pean Union and the Commission of the European
Communities

(Case T-440/03)

(2004/C 59/49)

(Language of the case: French)

An action against the Council of the European Union and the
Commission of
the European Communities was brought
before the Court of First Instance of the European Communities
on 29 December 2003 by Jean Arizmendi and 43 other
applicants, all residing in France, represented by Jean-François
Péricaud and Philippe Péricaud, lawyers.

The applicants claim that the Court should:

1. Order the Council of

the European Union and the
Commission of the European Communities jointly and
severally to pay to each applicant the compensation
representing the loss suffered, together with interest at
the legal rate from the date the application was lodged;

2. Order the Council of

the European Union and the
Commission of the European Communities jointly and
severally to pay the costs.

Pleas in law and main arguments

The subject matter of the present action is the loss allegedly
suffered by the applicants, who are French ship brokers, as a
result of the abolition in French law, under Law 2001-43 of
16 January 2001, of the monopoly traditionally held by French
ship brokers. This abolition occurred by reason of Article 5
the Community Customs Code (1), as applied by the
of
Commission, when steps were taken following infringement
proceedings against the French Republic (letter of formal
notice of 12 February 1997 and reasoned opinion of 3 Decem-
ber 1997) concerning the monopoly held by ship brokers,
under French law, in respect of representation for performing
the acts and formalities laid down by customs rules.

— Breach of the principles of legal certainty and legitimate
expectations, in that, first, the contested provision refers
to customs representation, which is a separate matter
from presentation of goods at customs which is the task
of the applicants, and, secondly, the monopoly was
abolished without any form of transitional measure.

— Breach of the principles of equality and proportionality,
in that the abrupt opening-up of the market in presen-
tation of goods at customs has resulted in a draconian
reduction in prices, which ships brokers, who are handi-
capped by the restrictive rules under which they operate,
cannot resist, in the absence of any transitional measures.

Lastly, the applicants allege breach of the right to property, as
laid down in the First Protocol to the European Convention on
Human Rights.

(1) Council Regulation (EEC) No 2913/92 of 12 October 1992
establishing the Community Customs Code (OJ 1992 L 302, p. 1).

Action brought on 31 December 2003 by N.V. Firma
Léon Van Parys, N.V. Pacific Fruit Company, Pacific
Fruchtimport GmbH and Pacific Fruit Company Italy
S.p.A. against the Commission of the European
Communities

(Case T-441/03)

(2004/C 59/50)

(Language of the case: Dutch)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 31 December 2003 by N.V. Firma
Léon Van Parys, established in Antwerp (Belgium), N.V. Pacific
Fruit Company, established in Antwerp (Belgium), Pacific
Fruchtimport GmbH, established in Hamburg (Germany), and
Pacific Fruit Company Italy S.p.A., established in Rome (Italy),
represented by P. Vlaemminck and J. Holmens.

The applicants claim that the Court should:

In support of their claims, the applicants contend that the
abolition of the monopoly is an act for which the Commission
is liable for the following reasons:

1.

— Breach of Article 55 of the EC Treaty (now Article 45
EC),
in implementing customs
legislation, participate in the exercise of official authority.

in that ship brokers,

the defendant

order
to pay compensation under
Article 235 EC in conjunction with Article 288 EC for
the damage suffered by the applicants as a result of the
unlawful measures introduced by Commission Regulation
No 2362/98, including default interest of 8 % to be paid
on all amounts with effect from the date on which the
damage was caused;

C 59/32

EN

Official Journal of the European Union

6.3.2004

2.

order the defendant to pay interest at the statutory rate
of 8 % on all amounts due;

3.

order the defendant to pay the costs.

Action brought on 31 December 2003 by Retecal Socie-
dad Operadora de Telecomunicaciones de Castilla y León
S.A., Euskaltel S.A., Telecable de Asturias S.A., R Cable y
Telecomunicaciones Galicia S.A. and Tenaria S.A.

Pleas in law and main arguments

The applicants claim to have suffered damage as a result of
Regulation No 2362/98 (1) in so far as bananas from Ecuador
do not qualify for the quota provided for in respect of
traditional ACP bananas and as a result of the ‘country
allocation’ system.

The applicants submit that, despite the Community’s express
intention to comply with the GATS and GATT 1994 Agree-
ments from 1 January 1999, as determined and ordered by the
WTO dispute-resolution bodies, there has been a sufficiently
serious breach of superior rules of law as a result of Regulation
No 2362/98 and Regulation No 1637/98 (2). According to the
applicants, the amendments made by those regulations, which
were enforced up to the end of 2001, infringe the GATS and
GATT Agreements, Community law, the principle of the
protection of legitimate expectations, the principle of good
faith, international customary law as codified in the Vienna
Convention on the Law of Treaties and are at variance with
the binding effect of the outcome of a dispute resolution
procedure which has been incorporated in an international
agreement concluded by the Community.

The applicants also allege infringement of the principle of
equal treatment and submit that the Commission exceeded its
powers of
implementation by enforcing, up to the end
of 2001, Regulation No 2362/98 containing rules on the
implementation of Regulation No 404/93 which are contrary
to the GATS and GATT 1994 Agreements. Finally,
the
applicants allege infringement of the protection of legitimate
expectations and of the general legal principle of ‘patere legem
quam ipse fecisti’ as a result of the failure to grant import
licences to the actual importer as declared to the Council.

(1) Commission Regulation (EC) No 2362/98 of 28 October 1998
laying down detailed rules for the implementation of Council
Regulation (EEC) No 404/93 regarding imports of bananas into
the Community (Text with EEA relevance) (OJ 1998 L 293, p. 32).
(2) Council Regulation (EC) No 1637/98 of 20 July 1998 amending
Regulation (EEC) No 404/93 on the common organisation of the
market in bananas (OJ 1998 L 210, p. 28).

(Case T-443/03)

(2004/C 59/51)

(Language of the case: Spanish)

An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 31 December 2003 by Retecal
Sociedad Operadora de Telecomunicaciones de Castilla y
León S.A., established in Valladolid (Spain), Euskaltel S.A.,
established in Zamudio, (Bizkaia, Spain), Telecable de Asturias,
established in Oviedo (Spain), R Cable y Telecomunicaciones
Galicia S.A., established in La Coruña (Spain) and Tenaria S.A.,
established in Cordovilla (Navarra, Spain), represented by José
Maria Jiménez Laiglesia, lawyer.

The applicants claim that the Court should:

— annul the decision of 21 October 2003; and

— order the Commission to pay all the costs arising from

the proceedings.

Pleas in law and main arguments

The present action is brought against the decision of the
Commission to take no further action on the complaint
submitted by the applicants relating to the alleged failure by
the Kingdom of Spain to fulfil its obligations under Article 9(8)
of the Council Regulation (EEC) No 4064/89 of 21 December
1989 (1) on the control of concentrations between undertak-
ings, with respect to the merger between VIA DIGITAL Y
SOGECABLE (Case No COMP/M.2845 Sogecable/Canal Satél-
ite Digital/Vía Digital) and conditions applied to that merger
by the Spanish authorities. The applicants submit that that
article lays down an obligation to carry out investigation and
verification, which, in the present case, the Commission has
failed to fulfil.

The applicants recall that on 22 April 2003, they sent a letter
to the Commission in which they submitted, essentially, that
the conditions adopted by the Spanish authorities were not
capable of maintaining effective competition in the sector
concerned,
in that they ensured that SOGECABLE would
remain in a monopoly situation, given what was stated by the
Commission in the referral decision.