Case C-6/06 P: Appeal brought on  9 January 2006  by Cofradía de pescadores  San Pedro  de Bermeo and Others against the judgment of the Court of First Instance (Third Chamber) of  19 October 2005  in Case T-415/03 Cofradía de pescadores  San Pedro  de Bermeo and Others v Council of the European Union, supported by the Commission of the European Communities and the French Republic
Date: 2006-03-11
Institutions: Court of Justice
Subjects: EC action to establish liability, General Court (EU), Portugal, appeal, catch quota, common fisheries policy

11.3.2006

EN

Official Journal of the European Union

C 60/25

8) Restrictions on the freedom to set charges constitute a
further obstacle to freedom of establishment and freedom to
provide services. In fact, a new service provider which tries
to enter a given market must endeavour to stand out from
its competitors and the price of the services is an important
factor in procuring clients.

Appeal brought on 9 January 2006 by Cofradía de pesca-
dores ‘San Pedro’ de Bermeo and Others against the judg-
ment of the Court of First Instance (Third Chamber) of 19
October 2005 in Case T-415/03 Cofradía de pescadores
‘San Pedro’ de Bermeo and Others v Council of the Euro-
pean Union, supported by the Commission of the Euro-
pean Communities and the French Republic

Reference for a preliminary ruling from the Finanzgericht
Hamburg by order of that court of 21 November 2005 in
Willy Kempter KG v Hauptzollamt Hamburg-Jonas —
Ausfuhrerstattung

(Case C-6/06 P)

(2006/C 60/48)

(Language of the case: Spanish)

(Case C-2/06)

(2006/C 60/47)

(Language of the case: German)

Reference has been made to the Court of Justice of the Euro-
pean Communities by order of the Finanzgericht Hamburg of
21 November 2005, received at the Court Registry on 4 January
2006, for a preliminary ruling in the proceedings between
Willy Kempter KG and Hauptzollamt Hamburg-Jonas —
Ausfuhrerstattung
(Main Customs Office Hamburg-Jonas,
Export Refunds Section) on the following questions:

1. Is the review and amendment of a final administrative deci-
sion in order to take account of the interpretation of the
relevant Community law carried out by the Court of Justice
of the European Communities in the meantime subject to
the requirement that the party concerned relied on Com-
munity law when contesting the administrative decision
before the national courts?

2. Is an application for the review and amendment of a final
administrative decision which is contrary to Community
law subject to a restriction in time for overriding reasons of
Community law, apart from the conditions set out in Case
C-453/00 Kühne & Heitz [2004] ECR I-837?

An appeal against the judgment of the Court of First Instance
(Third Chamber) of 19 October 2005 in Case T-415/03
Cofradía de pescadores ‘San Pedro’ de Bermeo and Others v Council
of the European Union, supported by the Commission of the
European Communities and the French Republic, was brought
before the Court of Justice of the European Communities on 9
January 2006 by Cofradía de pescadores ‘San Pedro’ de Bermeo
and Others, represented by E. Garayar Gutiérrez, G. Martínez-
Villaseñor, A. García Castillo and M. Troncoso Ferrer,
abogados.

The appellants claim that the Court should:

(1) Declare the present appeal admissible;

(2) Therefore, set aside in its entirety the judgment of the
Court of First Instance of 19 October 2005 in Case T-415/
03;

(3) Consider the forms of order sought by the appellants at

first instance, namely that it should:

— Declare that the Community incurred non-contractual
liability for removing part of the share of the Total
Allowable Catch for anchovy allocated to Spain and the
fleet authorised to fish for anchovy in ICES area VIII
during the years 1996 to 2001, by the transfer,
authorised by the Council of the European Union in
Regulations Nos 3074/95 (1), 390/97 (2), 45/98 (3),
48/1999 (4) and 2848/2000 (5), of Portugal's quota in
ICES area IX to be fished by France in ICES area VIII, in
breach of: Article 161(1)(f) of the Act concerning the
conditions of accession of the Kingdom of Spain and
the Portuguese Republic to the European Communities
and of the principle of relative stability; and of the prin-
ciples of legal certainty and legitimate expectations.

C 60/26

EN

Official Journal of the European Union

11.3.2006

— Order the Community, represented by the Council, to
compensate the appellants for the certain and actual
loss suffered as a consequence of the Council's acts, loss
which includes both damage sustained and loss of
profit, as referred to in this appeal and its annexes;

— Order the Community, represented by the Council, to

pay any default interest.

(4) Order the Council to pay the costs of the proceedings.

Pleas in law and main arguments

The appellants have brought their appeal against the judgment
of the Court of First Instance of 19 October 2005 because that
Court dismissed their action for a declaration of non-contrac-
tual liability which they had brought against the Council of the
European Union to obtain compensation for the loss suffered
as a result of the Council's authorisation of the transfer to the
French Republic of part of the anchovy quota allocated to the
Portuguese Republic.

The appellants consider that the Court of First Instance erred in
law in its assessment of whether there had been a sufficiently
serious breach of a higher-ranking rule of law and of the prin-
ciples of legal certainty and the protection of legitimate expec-
tations. In the view of the appellants, and contrary to what was
held by the Court of First Instance, the Council did not have
the discretion attributed to it by that Court, and approved the
transfer of the fishing quotas in breach of the rules governing
procedure and competence laid down for it by the Act of
Accession of
the Kingdom of Spain and Regulations Nos
685/95 (6) and 3760/92 (7).

The appellants consider that the Court of First Instance also
erred in law in denying that the principle of relative stability
it
could confer rights on individuals. If that were the case,
would render the Common Fisheries Policy meaningless and
infringe the appellants' right to effective legal protection,
in
breach of what the Court of First Instance itself has held.

Lastly, the appellants allege that the Court of First Instance
infringed their rights of defence, since not only did it fail to
take account of the reports produced at the proceedings when
the damage suffered as a consequence of the Council's acts was
being assessed, it also rejected as not having been submitted at
the appropriate time a request for measures of enquiry, which
by definition the appellants could only make in the course of
the proceedings.

between 1995 and 2000 a transfer of fishing quotas from
Portugal to France which the Court of Justice itself had already
declared to be in breach of the law.

(1) Council Regulation of 22 December 1995 fixing, for certain fish
stocks and groups of fish stocks, the total allowable catches for
1996 and certain conditions under which they may be fished OJ
1995 L 330, p. 1.

(2) Council Regulation of 20 December 1996 fixing, for certain fish
stocks and groups of fish stocks, the total allowable catches for
1997 and certain conditions under which they may be fished OJ
1997 L 66, p. 1.

(3) Council Regulation of 19 December 1997 fixing, for certain fish
stocks and groups of fish stocks, the total allowable catches for
1998 and certain conditions under which they may be fished OJ
1998 L 12, p. 1.

(4) Council Regulation of 18 December 1998 fixing, for certain fish
stocks and groups of fish stocks, the total allowable catches for
1999 and certain conditions under which they may be fished OJ
1999 L 13, p. 1.

(5) Council Regulation of 15 December 2000 fixing for 2001 the
fishing opportunities and associated conditions for certain fish
stocks and groups of fish stocks, applicable in Community waters
and, for Community vessels, in waters where limitations in catch
are required OJ 2000 L 334 , p. 1.

(6) Council Regulation of 27 March 1995 on the management of the
fishing effort relating to certain Community fishing areas and
resources OJ 1995 L 71, p. 5.

(7) Council Regulation of 20 December 1992 establishing a Com-
munity system for fisheries and aquaculture OJ 1992 L 389, p. 1.

Appeal brought on 9 January 2006 by Beatriz Salvador
García against the judgment of the Court of First Instance
(First Chamber) of 25 October 2005 in Case T-205/02
Beatriz Salvador García v Commission of the European
Communities

(Case C-7/06 P)

(2006/C 60/49)

(Language of the case: Spanish)

For all these reasons, the appellants claim that the Court of
Justice of the European Communities should declare the ruling
given by the Court of First Instance in its judgment of 19
October 2005 to be in breach of the law and declare that the
liability by effecting
Community incurred extra-contractual

An appeal against the judgment of the Court of First Instance
(First Chamber) of 25 October 2005 in Case T-205/02 Beatriz
Salvador García v Commission of the European Communities was
brought before the Court of Justice of the European Commu-
nities on 9 January 2006 by Beatriz Salvador García, repre-
sented by R. García-Gallardo Gil-Fournier, D. Domínguez Pérez
and A. Sayagués Torres, lawyers.