Case C-380/06: Action brought on 15 September 2006 — Commission of the European Communities v Kingdom of Spain
Date: 2006-12-02
Institutions: Court of Justice
Subjects: European Commission, Spain, action for failure to fulfil an obligation, claim, foodstuff, payment, trading operation

2.12.2006

EN

Official Journal of the European Union

C 294/25

Questions concerning Articles 44 to 47 of Decision No. 1/95
and Article 47 of the Additional Protocol to the Ankara Agree-
ment

the right to rely upon any breach of the same in order to
resist the payment of anti-dumping duties otherwise due?

(6) Do the provisions of Article 44(2) of Decision No. 1/95
of the EC-Turkey Association Council of 22 December
1995 on implementing the final phase of the Customs
Union, read together with Article 47 of the Additional
Protocol
to the Ankara Agreement, require the Com-
munity to have made an application for a recommenda-
tion to the EC-Turkey Council of Association and to have
made a notification to the EC-Turkey Council of Associa-
tion prior to making the anti-dumping duties imposed by
Council Regulation (EC) No. 2584/98 (3) also applicable to
products imported from Turkey and which were in free
circulation?

(7) Does Article 46 of Decision No. 1/95 require that the
Community, having amended by Council Regulation (EC)
No. 2584/98 the product scope and duty rates imposed
by three previous Council Regulations on imports of
certain CTVs originating in China and Korea, inform the
Customs Union Joint Committee that it intends to apply
these measures also to imports from Turkey, before it can
make imports from Turkey of CTVs originating in China
or Korea and in free circulation, subject to the application
of
the new anti-dumping duties imposed by Council
Regulation (EC) No. 2584/98?

(8) Do Articles 44 to 47 of Decision No. 1/95 require that
traders be informed, or otherwise be made aware, of
information given pursuant to Article 46 of Decision No.
1/95 or a notification made pursuant to Article 47(2) of
the Additional Protocol to the Ankara Agreement?

(9)

In the event that an application, notification or informa-
tion is required:

(a) What form must any such measure of application and
notification pursuant to Article 44 of Decision No.
1/95, read together with Article 47 of the Additional
Protocol to the Ankara Agreement, take?

(b) What form must any measure of information given
pursuant to Article 46 of Decision No. 1/95 take?

(1) OJ L 11, P.88
(2) OJ L 3, P.23
(3) OJ L 324, p. 1

Action brought on 15 September 2006 — Commission of
the European Communities v Kingdom of Spain

(Case C-380/06)

(2006/C 294/43)

Language of the case: Spanish

Parties

Applicant: Commission of the European Communities (repre-
sented by: B. Schima and S. Pardo Quintillán, acting as Agents)

Defendant: Kingdom of Spain

Form of order sought

The Court is asked to:

— declare that, by authorising, under Law 3/2004 of 29
December 2004 on combating late payment in commercial
transactions, a period of 90 days for the payment of specific
staple foods and postponing the entry into force of certain
provisions until 1 July 2006, the Kingdom of Spain has
failed to fulfil its obligations under Article 3(1)(2) and (4) of
Directive 2000/35/EC of the European Parliament and of
the Council of 29 June 2000 on combating late payment in
commercial transactions (1);

— order the Kingdom of Spain to pay the costs.

(c) Do the steps taken by the European Commission in
the present case sufficiently comply with the required
form of application, notification or information?

Pleas in law and main arguments

(d) What is the consequence of non-compliance?

(10) Are Articles 44, 46 and 47 of Decision No. 1/95 and
to the Ankara
Article 47 of
Agreement directly applicable or of direct effect
in
national courts, so as to confer upon individual traders

the Additional Protocol

Directive 2000/35/EC does not provide for the partial or
gradual application of
its provisions in any circumstances.
Accordingly the postponement until 1 July 2006 is contrary to
Article 3(1) and (2) thereof. It also infringes Article 3(4) which
provides that the Member States are to ensure that, in the inter-
ests of creditors and of competitors, adequate and effective
means exist to prevent the continued use of terms which are
manifestly unfair.

C 294/26

EN

Official Journal of the European Union

2.12.2006

Thus the postponement of the application of the maximum
period of 60 days cannot be regarded as an additional require-
ment in favour of creditors, nor is it in any event acceptable, in
legislation to
particular on account of the fact that national
transpose Directive 2000/35/EC ought to have been brought
into force before August 2002.

— Annul Commission Decision 2003/245/EC of 4 April 2003
on the requests received by the Commission to increase
MAGP IV objectives to take into account improvements on
safety, navigation at sea, hygiene, product quality and
working conditions for vessels of more than 12 m in
length overall as it applied to the safety capacity application
for a proposed new RSW vessel MFV Golden Rose.

(1) OJ L 200 of 8.8.2000. p. 35.

— Order the Commission to pay the costs of the entirety of

these proceedings.

Pleas in law and main arguments

The appellant submits that the judgment of the Court of First
Instance should be set aside on the following grounds:

By determining the appellant's interest in bringing the proceed-
ings by reference to the date of
the adoption of decision
2003/245 and not the date on which the application was
lodged the Court of First Instance applied an incorrect legal
test;

The Court made a substantive error apparent from the docu-
ments submitted to it, namely as to the appellant's ownership
of the MFV ‘Golden Rose’ at all times material to the applica-
tion;

The finding that the appellant was not individually concerned
by decision 2003/245 ‘since the vessels in question are ficti-
tious’ has no basis in law and is, moreover, contradicted by the
reasoning of the Court of First Instance in its judgment;

The appellant is, and at all material times has been, the owner
of the MFV ‘Golden Rose’. It therefore cannot be said to have
lost the interest it unquestionably had at the commencement of
its action for the annulment of decision 2003/245 in so far as
it impacted upon its application for safety tonnage in respect of
the proposed MFV ‘Golden Rose’;

The Court of First Instance erred in finding that the appellant
was deprived of standing to seek the annulment of decision
2003/245 by reason of the steps it took to mitigate the loss
and damage sustained as a result of that measure.

(1) OJ L 90, P. 48

Appeal brought on 14 September 2006 by Ocean Trawlers
Ltd against the judgment of the Court of First Instance
(First Chamber) delivered on 13 June 2006 in Joined Cases
T-218/03 to T-240/03: Cathal Boyle and others v Commis-
sion of the European Communities

(Case C-382/06 P)

(2006/C 294/44)

Language of the case: English

Parties

Appellant: Ocean Trawlers Ltd (represented by: P. Gallagher SC,
A. Collins SC, D. Barry, Solicitor)

Other parties to the proceedings: Ireland, Commission of the Euro-
pean Communities

Form of order sought

The applicant claims that the Court should:

— Set aside the judgment of the Court of First Instance of June
13, 2006 in so far as it dismissed the application in Case T-
226/03, Ocean Trawlers Ltd. V. Commission for the annul-
ment of Commission Decision 2003/245/EC (1) of 4 April
2003 on the requests received by the Commission to
increase MAGP IV objectives to take into account improve-
ments on safety, navigation at sea, hygiene, product quality
and working conditions for vessels of more than 12 m in
length overall as it applied to the safety capacity application
for proposed new RSW vessel MFV Golden Rose and
ordered Ocean Trawlers Ltd. to bear its own costs.