Jean-François Giordano v European Commission.
Date: 2014-10-14
31. The first part of the first ground of appeal is admissible to the extent that the Court is requested by the appellant to rule on the existence of an error of law committed by the General Court in the characterisation of harm alleged as actual and certain in the context of the European Union’s non-contractual liability (see, to that effect, judgments in Archer Daniels Midland  v Commission , C‑510/06 P, EU:C:2009:166, paragraph 105, and in Commission v Schneider Electric , C‑440/07 P, EU:C:2009:459, paragraph 191).
33. As regards the second part of the first ground of appeal, it is clear that it does not meet the admissibility requirements specific to an appeal since, by developing a series of arguments to submit that he has suffered unusual and special damage, the appellant requests, in essence, a simple re-examination of the application submitted to the General Court (see, to that effect, judgments in Interporc  v Commission , C‑41/00 P, EU:C:2003:125, paragraph 16, and Reynolds Tobacco and Others v Commission , C‑131/03 P, EU:C:2006:541, paragraph 50).
35. According to settled case-law, the European Union’s non-contractual liability under the second paragraph of Article 340 TFEU is subject to the satisfaction of a number of conditions, namely the unlawfulness of the conduct alleged against the EU institution, the fact of damage and the existence of a causal link between the conduct of the institution and the damage complained of (judgment in Agraz and Others  v Commission , C‑243/05 P, EU:C:2006:708, paragraph 26 and case-law cited).
36. The condition relating to damage requires that the damage for which compensation is sought be actual and certain, which it is for the appellant to prove (judgment in Agraz and Others  v Commission , C‑243/05 P, EU:C:2006:708, paragraph 27 and case-law cited).
40. In particular, as is clear from paragraph 18 of the judgment under appeal, by simply referring to the fallacy of the premiss that the appellant had a right to fish and would necessarily have exhausted his quota, the General Court erred in law in considering the condition relating to harm. The existence of a right conferred on individuals by a rule of law does not relate to the actual nature of the harm alleged but constitutes a condition for a finding of a sufficiently serious breach of such a rule by an EU institution, in order that the non-contractual liability of the European Union be incurred. Moreover, the rejection by the General Court of the appellant’s argument that he would have exhausted his quota is solely relevant for assessing the extent of the harm alleged, but not the very existence of such harm, the certainty of which is not called into question by uncertainty as to its precise extent (see, to that effect, judgment in Agraz and Others  v Commission , EU:C:2006:708, paragraph 36).
44. As noted in paragraph 35 of the present judgment, for the non-contractual liability of the European Union to arise, a number of conditions must be met. They include, where the unlawfulness of a legal measure is at issue, the existence of a sufficiently serious breach of a rule of law intended to confer rights on individuals (judgment in Commission  v Schneider Electric , EU:C:2009:459, paragraph 160).
46. In this regard, it should be noted that that argument rests on the premiss that the adoption of emergency measures by the Commission requires proof of a quota actually being exceeded. However, that premiss is incorrect. Indeed, according to the very wording of Article 7(1) of Regulation No 2371/2002, the Commission may adopt such measures as soon as there is evidence of a ‘serious threat to the conservation of living aquatic resources or to the marine ecosystem resulting from fishing activities and requiring immediate intervention’ without having to wait for an allocated quota to be exceeded. As noted by the Court in paragraphs 63 to 65 of the judgment in AJD Tuna  (EU:C:2011:153), various recitals of Regulation No 530/2008 include indications, the accuracy of which Mr Giordano did not dispute, which adequately demonstrate that such a serious threat existed here.
49. It should also be noted that, as the Court has held, the freedom to pursue a trade or profession does not constitute an absolute prerogative, but must be viewed in relation to its function in society (see, to that effect, judgment in FIAMM and Others  v Council and Commission , C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 183 and case-law cited). Accordingly, limitations may be imposed on the exercise of that freedom provided, in accordance with Article 52(1) of the Charter, that they are prescribed by law and that, in accordance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others (see, to that effect, judgment in Digital Rights Ireland and Others , C‑293/12 and C‑594/12, EU:C:2014:238, paragraph 38).
50. In the present case, Regulation No 530/2008 undeniably meets an objective of general interest pursued by the European Union, namely to avoid, pursuant to Article 7(1) of Regulation No 2371/2002, a serious threat to the conservation and recovery of bluefin tuna stock in the Eastern Atlantic and the Mediterranean Sea. Moreover, as is clear from paragraphs 77 to 85 of the judgment in AJD Tuna  (EU:C:2011:153), the measures prohibiting fishing contained in Regulation No 530/2008 are not manifestly inappropriate in relation to what is necessary to attain that objective of general interest, and thus comply with the principle of proportionality.
54. As one of the conditions for the European Union to incur liability is not satisfied, the action must be dismissed as being unfounded, without it being necessary to examine whether the other conditions are satisfied in the present case.
Costs