CELEX: 62017TO0244
Language: en
Date: 2017-07-20 00:00:00
Title: Order of the President of the General Court of 20 July 2017.#António Conde & Companhia, SA v European Commission.#Interim measures — Fishing vessel — Northwest Atlantic Fisheries Organisation — Admissibility — New facts — Change in circumstances — Application for interim measures — Lack of interest.#Case T-244/17 R.

ORDER OF THE PRESIDENT OF THE GENERAL COURT
20 July 2017 (*)
(Interim measures — Fishing vessel — Northwest Atlantic Fisheries Organization — Admissibility — Application for interim measures — Lack of interest)
In Case T-244/17 R,

António Conde & Companhía, SA, established in Gafanha de Nazaré (Portugal), represented by J.R. García-Gallardo Gil-Fournier, lawyer,
applicant,
v

European Commission, represented by A. Bouquet, A. Lewis and F. Moro, acting as Agents,
defendant,
APPLICATION pursuant to Articles 278 and 279 TFEU for the grant of interim measures ordering the European Commission to abstain from exerting pressure on the Republic of Portugal to exclude the fishing vessel Calvão from the list of Portuguese-flagged vessels authorised to fish in the NAFO regulatory area,
THE PRESIDENT OF THE GENERAL COURT
makes the following

Order

Background to the dispute, procedure and forms of order sought 

1        The applicant, António Conde & Companhía, SA, is a fishing company established under the laws of Portugal. Its vessels have traditionally fished in the waters of the Regulatory Area of the Northwest Atlantic Fisheries Organization (NAFO). For that purpose, the vessels were granted both a fishing licence and a fishing permit by the authorities of the Republic of Portugal, pursuant to Article 13 of Council Regulation (EC) No 1386/2007 of 22 October 2007 laying down conservation and enforcement measures applicable in the Regulatory Area of the Northwest Atlantic Fisheries Organisation (OJ 2007 L 318, p. 1).

2        According to the applicant, the Republic of Portugal did not notify to the Commission its official list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area in 2017. According to the applicant, this is due to the Commission exerting pressure on Portugal.

3        In particular, the applicant submits that the Commission intervened before the Portuguese authorities, requesting them to exclude the applicant’s vessel Calvão from being allowed to fish in the NAFO Regulatory Area and therefore to exclude that vessel from the list to be drawn up by the Portuguese authorities.

4        By application lodged at the Court Registry on 26 April 2017, the applicant brought an action against the Commission for, in essence, failing to take action with regard to the applicant’s request that it refrain from requesting the Republic of Portugal to exclude the vessel Calvão from the list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area.

5        By a separate document lodged at the Court Registry on 26 April 2017, the applicant brought the present application for interim measures, in which it claims that the President of the General Court should:
–        ‘Inaudita alter parte [and] with immediate effect, and as requested by the applicant in previous letters sent to the European Commission, … [order] the European Commission to refrain from requesting Portugal not to submit to the European Commission an amended list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area for the season 2017, into which is included the fishing vessel CALVÃO owned by the [applicant] of the main Action (for the prompt forward by the European Commission of such list to the NAFO Secretariat pursuant to Article 14(1) of Council Regulation (EC) No 1386/2007); this immediate order shall be [in] force until the General Court shall adopt an interim order[;]
–        [order,] as requested by the applicant in previous letters sent to the European Commission, … the European Commission to refrain from requesting Portugal not to submit to the European Commission an amended list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area for the season 2017, including the fishing vessel CALVÃO owned by the [applicant] of the main Action (for the prompt forward by the European Commission of such list to the NAFO Secretariat pursuant to Article 14(1) of Council Regulation (EC) No 1386/2007); this Interim Order shall remain [in] force until the General Court shall decide on the main case[;]
–        … not rule on the costs of this application until a decision in the main case has been rendered by the General Court.’

6        In its observations on the application for interim measures, lodged at the Court Registry on 11 May 2017, the Commission contends, in essence, that the President of the General Court should:
–        dismiss the application for interim measures as inadmissible;
–        in the alternative, dismiss the application for interim measures as unfounded;
–        reserve the costs.

7        It follows from the observations of the Commission that, on 22 December 2016, the Republic of Portugal sent the Commission a list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area. That list included the vessel Calvão with, however, the comment ‘to WITHDRAW’. On 9 January 2017, the Commission sent NAFO the list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area. That list did not include the vessel Calvão.

8        Following the applicant’s request of 15 May 2017, the President of the General Court granted the applicant leave to reply to the observations of the Commission. In its observations, lodged at the Court Registry on 24 May 2017, the applicant did not contest the Commission’s assertion mentioned in the preceding paragraph. Furthermore, the applicant did not amend, on that occasion, its application or the form of order sought.
 Law

9        It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

10      The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

11      Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of the Vice-President of the Court of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited). 

12      In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, Case C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

13      Having regard to the material in the case file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

14      The Commission having contested the admissibility of the application, it is appropriate to examine first whether the application for interim measures is admissible.

15      It is settled case-law that when deciding whether to grant interim measures it is necessary to ascertain whether or not the applicant has established an interest in obtaining the measures requested (see order of 15 September 2011, Eurofer v Commission, T‑381/11 R, not published, EU:T:2011:483, paragraph 26 and case-law cited).

16      Although the order sought is not clearly worded, it must be understood as meaning that the applicant is requesting the President of the General Court, in essence, to order the Commission to abstain from exerting pressure on the Republic of Portugal to exclude the vessel Calvão from the list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area.

17      According to the Commission’s observations, which the applicant did not challenge, on 22 December 2016 the Republic of Portugal sent the Commission a list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area, which included the vessel Calvão with, however, the comment ‘to WITHDRAW’. Furthermore, on 9 January 2017, the Commission sent NAFO the list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area, which did not include the vessel Calvão.

18      Since the Republic of Portugal has already sent the Commission the list of Portuguese-flagged vessels authorised to fish in the NAFO Regulatory Area and the Commission has forwarded that list to NAFO, the order sought by the applicant is deprived of any use to the applicant.

19      Indeed, since the Republic of Portugal already sent that list to the Commission, which forwarded it to NAFO, there is, at least as from the time when that list was established and sent, no longer any point in ordering the Commission to abstain from exerting pressure on the Republic of Portugal to exclude the vessel Calvão from that same list.

20      Furthermore, the applicant has maintained its application and the order sought even though it did not challenge the facts submitted by the Commission and mentioned in paragraph 7 above. In these circumstances, it is not for the judge hearing the application for interim measures to reformulate the order sought.

21      That is especially so since the applicant does not claim that the Commission has the power to put the vessel Calvão on the list. To the contrary, according to the applicant the Commission has no right to alter the list submitted by the Republic of Portugal.

22      It follows, inasmuch as the request for interim measures is concerned and without prejudice to the findings in the main case, that the applicant has not established an interest in obtaining the interim measures requested.

23      It follows from the foregoing that the application for interim measures must be dismissed as inadmissible.

24      Under Article 158(5) of the Rules of Procedure, the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 20 July 2017.

E. Coulon
 
M. Jaeger

      
*      Language of the case: English.