Case T-139/06: Action brought on  12 May 2006  — France v Commission
Date: 2006-05-12
Institutions: Court of First Instance
Subjects: EC Decision, European Commission, France, action for failure to act, fishing controls, fishing regulations, judgment of the Court (EU), periodic penalty payment

15.7.2006

EN

Official Journal of the European Union

C 165/31

Form of order sought

Pleas in law and main arguments

— Annulment of Article 2 of Council Regulation (EC) No
881/2002 of 27 May 2002 as amended by Council Regu-
lation (EC) No 561/2003 of 27 March 2003 and Commis-
sion Regulation (EC) No 246/2006 of 10 February 2006
and of the reference to the applicant in Annex I;

— order the Council to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments relied on by the applicant
are identical to those relied on in Case T-135/06 Al-Faqih v
Council.

Action brought on 12 May 2006 — France v Commission

(Case T-139/06)

(2006/C 165/62)

Language of the case: French

Parties

Applicant: French Republic (Paris, France)
(represented by: E.
Belliard, acting as Agent, G. de Bergues, acting as Agent, S.
Gasri, acting as Agent)

Defendant: Commission of the European Communities

Form of order sought

— Principally, annul

the contested decision due to the

Commission's lack of competence;

— Alternatively, annul the contested decision on the ground
the

irregularity due to infringement of

of a procedural
rights of the defence;

— In the further alternative, annul the contested decision in
that it contains an incorrect assessment of the measures
taken by France to execute fully the judgment of 12 July
2005;

— In the even further alternative, annul the contested decision
in that it should have contained a lower amount of periodic
penalty payment;

By judgment of 11 June 1991 (1), the Court of Justice of the
European Communities found that the applicant had failed to
fulfil the obligations imposed on Member States by Community
law in the area of fisheries policy. Since that judgment was not
implemented, the Commission brought an action before the
Court of Justice based on Article 228 EC and by judgment of
12 July 2005 (2)
the applicant was ordered to pay to the
Commission a penalty payment for each period of six months
as from delivery of the judgment as well as a fixed sum.
Following that judgment, the Commission carried out examina-
tions as to the extent of the applicant's implementation of the
judgment of the Court of 11 June 1991 and, on finding that
the applicant had not executed it
the Commission
directed a decision at it requesting the payment of the financial
penalties imposed on it by the Court of Justice in the judgment
of 12 July 2005. The decision in question is the contested deci-
sion.

fully,

In support of its action the applicant is relying on several pleas.

Principally,
it submits that the contested decision should be
annulled due to the Commission's lack of competence in that
the Commission cannot adopt a decision which imposes on a
Member State the recovery of a periodic penalty payment
imposed by the Court of Justice in the context of Article 228
EC. It submits that under Article 228 EC only the Court of
Justice has jurisdiction to call for such a payment in that that
implies a prior finding that the failure to fulfil obligations is
persisting.

Alternatively, the applicant submits the procedural irregularity
of the taking of a decision by the Commission owing to infrin-
gement of the rights of the defence inasmuch as the French
authorities did not have the opportunity of properly presenting
their observations before the contested decision was taken.

In the further alternative, the applicant submits an argument as
to the incorrect assessment by the Commission of the measures
taken by France to execute fully the judgment of the Court of
Justice.

In the even further alternative, it submits that, given the imple-
menting measures which it has introduced since the Court of
Justice's judgment, the Commission should have set the amount
of the periodic penalty payment at a lower level.

Lastly, in the further alternative again, the applicant submits
that if the Court of First Instance considers that the Commis-
sion did not itself have the power to reduce the amount of the
periodic penalty payment
imposed in the judgment of the
Court of Justice, it is for the Court of First Instance to do so
itself in the context of its unlimited jurisdiction.

— In the further alternative again, reduce the amount of the

periodic penalty payment;

(1) Case C-64/88 Commission v France [1991] ECR I-2727
(2) Case C-304/02 Commission v France [2005] ECR I-6263

— Order the Commission to pay the costs or, if the amount of
the periodic penalty payment is reduced by the Court of
First Instance, order each party to bear its own costs.