Case C-109/07: Reference for a preliminary ruling from the Prud'homie de pêche de Martigues (France) lodged on 20.2.2007 — Jonathan Pilato v Jean-Claude Bourgault
Date: 2007-04-28
Institutions: Court of Justice
Subjects: conservation of fish stocks, fishery management, fishing area, fishing net, fishing regulations, interpretation of the law

28.4.2007

EN

Official Journal of the European Union

C 95/27

Form of order sought

— Set aside the judgment of the Court of First Instance of

11 December 2006 in Case T-290/05 (1);

the appellant clearly explained,
published in a magazine,
however, that the main issue was not settled by the respondent's
confirmation. In support of his application, the appellant argued
that the magazine in question is not an organ for the publica-
tion of the respondent's public notices.

— annul the Commission decision of 27 May 2005.

For all these reasons, the impugned judgment of the Court of
First Instance must be set aside.

Pleas in law and main arguments

(1) OJ 2006 C 331, p. 42.

The appellant justifies his appeal against the above judgment as
follows.

The Court of First Instance erred in dismissing the application
as inadmissible inasmuch as by that application the respondent
should be required by the Court to grant access to certain docu-
ments. According to the settled case-law of the Court of Justice,
the Court does not have such authority to give instructions. In
it was observed in the contested decision that the
addition,
present appellant's amended application could not be construed
as meaning that that application implicitly sought annulment of
the present respondent's contested decision.
It could not be
deduced from this that: the appellant, by his amended applica-
tion, sought not only implicitly, but also explicitly, annulment
of the respondent's contested decision. The appellant's amended
application is admissible inasmuch as it seeks annulment of the
Commission's decision. The finding that the application was
inadmissible in its entirety is thus unlawful.

The Court of First Instance observes in its contested judgment
that
the application contained ‘accusations against German
public-law broadcasting bodies and other state bodies.’ The
description as such in the observations discredits the appellant's
statement of
facts in an unacceptable way. The derogatory
description of the application as ‘accusations’ shows that the
Court failed to examine the extraordinary weight of the allega-
tions and the related infringement of Community law as rele-
vant factors in relation to justifying the application. The Court
of First Instance thus disregarded the right to a fair hearing. The
way in which the restrained arguments of the appellant were
assessed even gives grounds for suspecting bias and for doubts
as to a fair hearing.

The impugned judgment contradicts the principles of the Treaty
on European Union and the Treaty on establishing the European
Community. It disregarded the declared will of the Community,
to develop and strengthen democracy and the rule of law as
well as human rights and fundamental freedoms. The judgment
of the Court fails to recognise the significance of the principle
of openness in the framework of the Community's belief in and
declared will for democracy. The Court failed to examine the
question as to whether the defendant's decision was compatible
with the goals of the Community. The impugned judgment thus
infringes applicable Community law.

It is not the case that the part of the claim put forward that
contained access to the contested Commission document was
fully settled. While the defendant confirmed to the Court of
letter
First

Instance the authenticity of

the Commission's

Reference for a preliminary ruling from the Prud'homie de
lodged on 20.2.2007 —
pêche de Martigues (France)

Jonathan Pilato v Jean-Claude Bourgault

(Case C-109/07)

(2007/C 95/50)

Language of the case: French

Referring court

Prud'homie de pêche de Martigues (France)

Parties to the main proceedings

Applicant: Jonathan Pilato

Defendant: Jean-Claude Bourgault

Questions referred

1. Should Article 11a of Council Regulation (EC) No 894/97 (1)
of 29 April 1997, as amended by Council Regulation (EC)
No 1239/98 (2) of 8 June 1998, be interpreted as also prohi-
biting nets which do not drift or hardly drift by reason of a
floating anchor to which they are attached?

2. Is Article 11a(1) and (2) of Council Regulation (EC) No 894/
97, as amended by Council Regulation (EC) No 1239/98 of
8 June 1998, valid to the extent to which:

a) it appears to pursue a strictly environmental objective,
is founded is

although the legal basis on which it
Article 43 of the EC Treaty (now Article 37 EC);

b) it does not define a drift-net and therefore does not

clearly define the scope of that term;

c) it is not clearly reasoned;

C 95/28

EN

Official Journal of the European Union

28.4.2007

d) it does not take account of available scientific and tech-
nical data, of the environmental conditions in the various
regions of the Community, or of the benefits or costs
which arise from the prohibition which it establishes;

e) it is disproportionate to the objective being pursued;

— in the alternative, reduce the amount of those fines;

— order the European Commission to pay the costs relating to
the interim proceedings and the main proceedings before
the Court of First Instance, as well as the proceedings before
the Court of Justice.

f) it

is discriminatory

very different
geographic, economic and social situations in the same
fashion;

treats

since

it

g) it does not establish any exemption for small-time fish-
ermen who fish with devices such as the ‘thonaille’, which,
apart from the fact that it is traditional in the Mediterra-
nean, is vital for that part of the population who practise
it, and is, moreover, very selective?

(1) Council Regulation (EC) No 894/97 of 29 April 1997 laying down
certain technical measures for conservation of fishery resources (OJ L
1997 132, p. 1).

(2) Council Regulation (EC) No 1239/98 of 8 June 1998, amending
Regulation (EC) No 894/97 laying down certain technical measures
for conservation of fishery resources (OJ L 1998 171, p. 1).

Appeal brought on 27 February 2007 by Fédération natio-
nale des syndicats d'exploitants agricoles (FNSEA), Fédéra-
tion nationale bovine (FNB), Fédération nationale des
producteurs de lait (FNPL) and Jeunes agriculteurs (JA)
the judgment delivered by the Court of First
against
Instance (First Chamber) on 13 December 2006 in Joined
Cases T-217/03 and T-245/03 FNCBV and Others v
Commission

(Case C-110/07 P)

(2007/C 95/51)

Language of the case: French

Parties

Appellants: Fédération nationale des syndicats d'exploitants agri-
coles (FNSEA), Fédération nationale bovine (FNB), Fédération
nationale des producteurs de lait (FNPL), Jeunes agriculteurs (JA)
(represented by: V. Ledoux and B. Néouze, avocats)

Other parties to the proceedings: Fédération nationale de la coop-
ération bétail et viande (FNCBV), Commission of the European
Communities, French Republic

Forms of Order sought

Pleas in law and main arguments

that

the appellants assert

The appellants rely on four pleas in law in support of their
appeal. Firstly,
the Court of First
Instance misconstrued the evidence submitted for its considera-
tion in that it omitted to take into account the two essential
pieces of evidence demonstrating that
the agreement of
24 October 2001 did not extend beyond 30 November 2001.
Secondly, the appellants allege that the Court of First Instance
misapplied Community law, as well as the consistent case-law of
the Court, in holding that the Commission had not infringed
the rights of the defence in failing to point out, in the statement
of objections, that it was going to calculate the sum of the fines
taking into account the cumulative turnover of the members of
the appellant federations. Thirdly, they allege infringement of
Article 15(2) of Council Regulation (EEC) No 17/62. In order to
conclude that the fines imposed did not exceed the ceiling of
10 % of turnover, laid down in that article, the Court of First
Instance took into account
the
members of those federations, without the precise conditions
and objectives laid down in the case-law being fulfilled. Finally,
by their fourth plea in law, the appellants allege an infringement
of the principle of non bis in idem, as well as a breach of the
principle of proportionality, in that the Court of First Instance
imposed, on each of the federations, a separate fine based on
the cumulative turnover of members common to those federa-
tions. According to the appellants,
in the present case only
1 federation can have a penalty imposed upon it, which takes
into account the cumulative financial capacity of the common
members of the appellant federations.

the cumulative turnover of

Reference for a preliminary ruling from the Tribunal
Superior de Justicia de Asturias
lodged on
28 February 2007 — José Manuel Blanco Pérez, Maria del
Pilar Chao Gómez v Principado de Asturias

(Spain)

(Case C-111/07)

(2007/C 95/52)

Language of the case: Spanish

— set aside the judgment of the Court of First Instance of

13 December 2006;

Referring court

— state that fines should not be imposed on the appellant

federations;

Tribunal Superior de Justicia de Asturias