22.11.2008

EN

Official Journal of the European Union

C 301/43

(Case T-368/08)

(2008/C 301/74)

Language of the case: English

Parties

Applicant: Atlantean Ltd (Killybegs, Ireland) (represented by: M. Fraser, D. Hennessy, Solicitors, G. Hogan SC, E. Regan, and C. Toland, Barristers)

Defendant: Commission of the European Communities

Form of order sought

—Annul Commission Decision C(2008) 3236 of 26 June 2008 addressed to Ireland responding to the request by Ireland concerning the Atlantean;

—Order the Commission to pay the applicant's costs of these proceedings.

Pleas in law and main arguments

In the present case, the applicant is bringing an action for partial annulment of Commission Decision C(2008) 3236 final of 26 June 2008 which provided for the rejection of the request by Ireland in respect of the applicant's vessel Atlantean to increase capacity under the fourth multi-annual guidance programme (MAGP IV) applicable for the reasons of improvements in safety, navigation at sea, hygiene, product quality and working conditions for vessels of more than 12 m in length overall. The first Commission Decision 2003/245/EC of 4 April 2003 (1) rejecting the request by Ireland was annulled by the Court's judgment of 13 June 2006 in so far as it applied to the applicant's vessel Atlantean (2).

The applicant states in support of its contentions that the contested decision was not made on the basis of criteria set out in Council Decision 97/413/EC (3), which it considers to be the appropriate legal base, but on application of Article 11(5) of Council Regulation 2371/2002/EC (4). The applicant therefore submits that the Commission not only lacked the competence to make the decision but it also infringed the principles of non-retroactivity, legal certainty, protection of legitimate expectations, the principles of non-discrimination and of equal treatment and the principle of proportionality. It states that the Commission breached its obligation to state reasons laid down in Article 253 EC as well as the applicant's right to be heard and its rights to property. The applicant further claims that the Commission misused its powers, acted mala fides and made inexcusable and manifest error in its decision. It also submits that the Commission acted in excess in the bounds of its discretion.

Furthermore, the applicant claims that the Commission, in adopting the contested decision, sought to defeat a related claim for damages made by the applicant in Case T-125/08 (5), pending before the Court, and was therefore not bona fide.

(1) OJ 2003 L 90, p. 48.

(2) Case T-192/03, Atlantean Ltd. v Commission [2006] ECR II-42.

(3) Council Decision of 26 June 1997 concerning the objectives and detailed rules for restructuring the Community fisheries sector for the period from 1 January 1997 to 31 December 2001 with a view to achieving a balance on a sustainable basis between resources and their exploitation, OJ L 175, p. 27.

(4) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy, OJ L 358, p. 59.

(5) Case T-125/08, Atlantean Ltd. v Commission, OJ C 116, p. 28.