Case T-4/08: Action brought on 3 January 2008 — EMSA v Portugal
Date: 2008-01-03
Institutions: Court of First Instance
Subjects: European Maritime Safety Agency, European official, Portugal, action for failure to fulfil an obligation, seat of institution, vehicle registration

19.7.2008

EN

Official Journal of the European Union

C 183/21

Re:

2. Transports Schiocchet — Excursions SARL shall bear the costs.

Annulment of Commission Regulation (EC) No 147/2007 of
15 February 2007 adapting certain fish quotas from 2007 to
2012 pursuant
to Article 23(4) of Council Regulation (EC)
No 2371/2002 on the conservation and sustainable exploitation
of
the Common Fisheries Policy
(OJ 2007 L 46, p. 10)

resources under

fisheries

(1) OJ C 199 of 25.8.2007.

Operative part of the order

1. The action is dismissed as being inadmissible.

2. The applicants, Atlantic Dawn Ltd and Others, shall bear their

own costs and pay those incurred by the Commission.

3. The Kingdom of Spain shall bear its own costs.

(1) OJ C 170, 21.7.2007.

Action brought on 3 January 2008 — EMSA v Portugal

(Case T-4/08)

(2008/C 183/44)

Language in which the application has been lodged: English

Parties

Applicant: European Maritime Safety Agency (EMSA)
sented by: Professor E. Pache, and J. Menze, Agent)

(repre-

Order of the Court of First Instance of 19 May 2008 —
Transports Schiocchet — Excursions v Commission

Defendant: Republic of Portugal

(Case T-220/07) (1)

(Action for damages — Limitation period — Article 46 of the
Statute of the Court — Inadmissibility)

Form of order sought

(2008/C 183/43)

Language of the case: French

Parties

Applicant: Transports Schiocchet — Excursions SARL (Beuvillers,
France) (represented by: D. Schönberger, lawyer)

Defendant: Commission of the European Communities (repre-
sented by: J.-F. Pasquier and N. Yerrell, Agents)

Re:

Application for damages for the harm allegedly suffered by the
applicant as a result of various alleged illegal acts complained of
against the Community institutions.

Operative part of the order

1. The action is dismissed as inadmissible.

The European Maritime Safety Agency applies for a judgment of
the Court of First Instance under Article 14, sentence 2, of the
Seat Agreement establishing that:

— The Portuguese Government is bound by the provisions of
the Seat Agreement which is an instrument of public inter-
law within the sphere of Community law and
national
which cannot be modified or changed unilaterally by
Portugal, including by means of national legislation;

— according to the Seat Agreement, the Portuguese Govern-
ment is obliged to secure that staff of the European Maritime
Safety Agency and their family members have the right to
import from their last country of residence or from the
free of duty and
country of which they are nationals,
without prohibitions or restrictions,
initial
establishment, within five years of taking up their appoint-
ments with the Agency and in a maximum of two ship-
ments, vehicles purchased under market conditions in the
county in question and that the past and current application
of this provision of the Seat Agreement by the relevant
Portuguese authorities does not fulfil this obligation;

in respect of

in particular, that the Portuguese Government is obliged to
register, following application, under a special series free of
duty and without prohibitions or restrictions, vehicles of
staff members of the Agency and their families purchased
under market conditions in the country of previous resi-
dence or in the country of which they are nationals;

C 183/22

EN

Official Journal of the European Union

19.7.2008

— according to the Seat Agreement, the Portuguese Govern-
ment is obliged to ensure that the staff of the European
Maritime Safety Agency and their family members enjoy the
privileges and immunities, exemptions and facilities granted
by Portugal to members of a comparable category of the
diplomatic corps in the Portuguese Republic, and that the
past and current application of this provision of the Seat
Agreement by the relevant Portuguese authorities does not
fulfil this obligation;

in particular, that the Portuguese Government is obliged to
apply the rules and provisions in force until
July 2007
concerning the registration and taxation of vehicles of staff
of the diplomatic corps for staff of the European Maritime
Safety Agency having taken up duty before that date, and
their families;

that the Portuguese Government is obliged to apply the
rules and provisions in force until July 2007 concerning the
registration and taxation of vehicles of staff of the diplo-
matic corps for all other cases;

that the Portuguese Government is obliged to ensure that
the staff of the European Maritime Safety Agency and their
families are actually granted the privileges and immunities,
exemptions and facilities granted by Portugal to members of
a comparable category of diplomatic corps in the Portuguese
Republic, and that
the past and current practice of
Portuguese authorities not to process application for regis-
tration of staff members of the European Maritime Safety
Agency and their families is in contradiction to this obliga-
tion;

— the provisions of the Seat Agreement shall not be inter-
preted and applied to the extent that staff of the European
Maritime Safety Agency and their family members do not
enjoy at least the rights of any EU national moving residence
to Portugal with regard to the introduction of used vehicles
into Portuguese territory;

— a reasonable period of time for the processing of application
family
of European Maritime Safety Agency and their
the Seat
members for car registration in application of
Agreement shall be considered no more than two months;
and

— order in accordance with Article 87(2) of the Rules of Proce-
the Portuguese

the Court of First

Instance that

dure of
Republic pays the costs.

Pleas in law and main arguments

that

submits

applicant

largely reflecting the provisions of

The
the Portuguese Government
proposed, without prior request or suggestion of the EMSA, to
enter into the said Seat Agreement providing for a range of
privileges and immunities, exemptions and facilities for the
Agency and its staff
the
Protocol on the Privileges and Immunities of
the European
Communities (‘the Protocol’) but also providing additional facil-
ities.
the Seat Agreement
the text of
the Seat Agreement
to the text of
proposed was similar
concluded between Portugal and the European Monitoring
Centre for Drugs and Drug Addiction (‘EMCDDA’) on 26 June
1996, in particular concerning vehicle registration.

further claims that

It

In September 2005 a working group between the Portuguese
Government on the one hand and EMSA and EMCDDA on the
other hand was created with a view to draft detailed administra-
tive provisions necessary for the implementation of the two
Seat Agreements or Protocols.

The applicant claims that the Portuguese administration, by not
processing applications for vehicle registrations submitted by
EMSA staff violated its obligations resulting from the Seat
Agreement clarifying the obligations resulting from the Protocol
applicable to the EMSA according to Article 7 of Regulation
(EC) No 1406/2002. Furthermore, the applicant claims that the
Portuguese authorities did not apply the relevant Portuguese law
in force with regard to EMSA staff and their family members
whereas it did for EMCDDA and diplomatic missions. These
actions resulted in severe impediments to the functioning of the
EMSA, according to the applicant, as vehicles purchased under
the legitimate expectation that
the existing rules would be
implemented remained unregistered. Also, vehicles brought
form the place of prior residence or from the state of nationality
of staff members remained with number plates of the member
state of previous residence in spite of rules of that state as
regards the obligation to de-register.
In short, the applicant
claims that the decision of the Portuguese authorities not to
process vehicle registration requests created a series of serious
legal and administrative difficulties for staff members who had
no choice but operate a vehicle in disrespect to obligations
relating to registration, insurance and technical inspection.

With regard to the Court's jurisdiction, it is further submitted
that Article 8(2) of Regulation (EC) No 1406/2002 provides
that the Court of Justice shall have jurisdiction to give judgment
pursuant
to any arbitration clause contained in a contract
concluded by the Agency and that Article 14 of the Seat Agree-
ment provides that disputes with effect on the application of
this agreement shall be examined by an ad hoc group of four
members. Disputes not resolved in this way shall be subject to
the judgment of the Court of Justice of the European Commu-
nities.

The European Maritime Safety Agency (‘the EMSA’ or ‘the
Agency’) was established by Regulation (EC) No 1406/2002 (1)
and has its seat in Lisbon. On 28 July 2004 the Protocol
between the Government of the Portuguese Republic and the
European Maritime Safety Agency (2) (‘the Seat Agreement’) was
signed. The Seat Agreement covers the relations between the
EMSA and Portugal as its host state and applies to the agency
and its staff.

According to the applicant, the dispute resolution procedure
provided for in Article 14 of the Seat Agreement was found to
be unsuccessful and hence, the Court of Justice has jurisdiction
in the current dispute regarding the interpretation of the Seat
Agreement, pursuant
the
Court of Justice shall have jurisdiction to give judgment to any

to Article 238 EC providing that

19.7.2008

EN

Official Journal of the European Union

C 183/23

arbitration clause contained in a contract concluded by or on
behalf of the Community, to Article 5(1) of Regulation (EC)
No 1406/2002 providing that the Agency shall be a body of
the Community, and to Article 225 EC providing that the Court
of Fist Instance shall have jurisdiction to hear and determine at
first instance actions or proceedings referred to in Article 238 EC.

— refer the case back to the CST;

— reserve the costs.

Pleas in law and main arguments

Moreover, the applicant submits that it seeks confirmation by
the Court that the Seat Agreement is an instrument of interna-
tional law within the sphere of Community law that binds the
Portuguese authorities and that cannot be unilaterally modified.
It further applies for a judgment concluding that the processing
of applications for motor vehicle registrations by its staff
members is in contradiction to the provisions of the Protocol
and that the Portuguese authorities are obliged to implement
the relevant provisions of
the Protocol within a reasonable
period of time. Finally, it claims that the Seat Agreement shall
not be interpreted in a way that the staff of the EMSA does not
enjoy at least the rights, with regards to vehicle registration, of
any EU national transferring its residence to Portugal.

(1) Regulation (EC) No 1406/2002 of the European Parliament and of
the Council of 27 June 2002 establishing a European Maritime
Safety Agency (OJ 2002 L 208, p. 1).

(2) Published in the Portuguese Official Journal No 224 of 22 September
2004, p. 6073, available on the EMSA's website http://www.emsa.
europa.eu/Docs/legis/protocol%20pt%20government%20and%
20emsa.pdf

Appeal brought on 5 May 2008 by the Commission of
the European Communities against the judgment of the
Civil Service Tribunal delivered on 21 February 2008 in
Case F-31/07, Putterie-De-Beukelaer v Commission

(Case T-160/08 P)

(2008/C 183/45)

Language of the case: French

Parties

By this appeal, the Commission requests that the judgment
of the Civil Service Tribunal (CST) of 21 February 2008 in Case
F-31/07 Putterie-De-Beukelaer v Commission,
in which the CST
annulled Ms Putterie-De-Beukelaer's Career Development Report
concerning the period from 1 January 2005 to 31 December
2005, be set aside in so far as that report does not acknowledge
her potential to carry out duties in category B*.

In support of its appeal, the Commission relies on a single plea
in law, alleging, first, infringement by the CST of the principles
relating to the scope of the review exercised by the Community
judicature of its own motion and, second, infringement of the
prohibition on adjudicating ultra petita.

The Commission submits that the CST was not entitled to raise
of its own motion a plea concerning the substantive legality of
the contested act alleging infringement of the respective scope
the
of Article 43 of
European Communities and Article 10(3) of Annex XIII
to
those regulations, since substantive pleas are not an absolute bar
to proceeding with an action.

the Staff Regulations of Officials of

In the alternative, the Commission claims that, in so far as para-
graphs 75 and 76 of
the judgment under appeal could be
considered separable from the plea alleging the substantive
legality of the contested measure and be categorised as a sepa-
rate plea alleging that the author of the contested act exceeded
its power, the CST infringed the Commission's rights of defence,
since the latter was not heard on that point in accordance with
Article 77 of the Rules of Procedure of the CST.

Action brought on 6 May 2008 — Ivanov v Commission

(Case T-166/08)

(2008/C 183/46)

Appellant: Commission of the European Communities (repre-
sented by: C. Berardis-Kayser and K. Herrmann, Agents)

Language of the case: French

Other party to the proceedings: Françoise Putterie-De-Beukelaer
(Brussels, Belgium)

Parties

Form of order sought by the appellant

Applicant: Vladimir Ivanov (Boulogne Billancourt, France) (repre-
sented by: F. Rollinger, lawyer)

— set aside the judgement under appeal;

Defendant: Commission of the European Communities