title: JUDGMENT OF THE COURT (Fifth Chamber) of 27 June 1996 in Case C-234/94 (reference for a preliminary ruling from the Bundesgerichtshof): Waltraud Tomberger v. Gebrüder von der Wettern GmbH (Directive 78/660/EEC - Annual accounts - Balance sheet - Date at which profit is made)

text:
9 . 11 . 96            EN                 Official Journal of the European Communities                                    No C 336/3
     that of taxpayers who are resident or treated as such to        — the financial years of the two companies coincide,
     justify that difference in treatment.
                                                                     — the subsidiary 's annual accounts for the financial year in
3 . Article 52 of the Treaty precludes a Member State from                 question were adopted by the general meeting before
     taking account, by means ofa higher rate of income tax,               completion of the audit of the parent company 's annual
     of the fact that, by virtue of the relevant provisions of             accounts for that year,
     Council Regulation (EEC) No 1408/71 of 14 June 1971
     on the application of social security schemes to                — the subsidiary 's annual accounts for the financial year in
     employed persons and their families moving within the                 question, as adopted by its general meeting, show that
     Community, concerning the determination of the                        on the subsidiary 's balance-sheet date — namely the last
     applicable legislation, the taxpayer is not obliged to pay            day of that financial year — the subsidiary appropriated
     contributions to its national social insurance scheme.                profits to the parent company, and
     The fact that, also by virtue of Regulation (EEC)
     No 1408/71 , the taxpayer is insured under the social           — the national court is satisfied that the subsidiary 's annual
     security scheme of the State in which he resides is                   accounts for the financial year in question give a true and
     irrelevant in that regard.                                            fair view of its assets and liabilities, financial position
                                                                           and profit or loss,
(>) OJ No C 132 , 14 . 5 . 1994 .
                                                                     it is not contrary to the rule laid down in Article 31 (1 ) (c)
                                                                     (aa) of the fourth Council Directive 78/660/EEC of 25 July
                                                                     1 978 based on Article 54 (3) (g) of the Treaty on the annual
                                                                     accounts of certain types of companies, as amended by the
                                                                     seventh Council Directive 83/349/EEC of 13 June 1983
               JUDGMENT OF THE COURT                                 based on Article 54 (3) (g) of the Treaty on consolidated
                        ( Fifth Chamber)                             accounts, for the national court to consider that the profits
                        of 27 June 1996                              in question must be entered in the parent company 's balance
                                                                     sheet for the financial year in respect of which they were
in Case C-234/94 (reference for a preliminary ruling from            appropriated by the subsidiary.
the Bundesgerichtshof): Waltraud Tomberger v. Gebriider
                  von der Wettern GmbH (')
                                                                     (') OJ No C 288 , 15 . 10 . 1994 .
(Directive 78/660/EEC — Annual accounts — Balance                    ( 2 ) OJ No L 222 , 1978 , p . 11 .
            sheet — Date at which profit is made)                    ( 3 ) OJ No L 193 , 1983 , p . 1 .
                          ( 96/C 336/05 )
                (Language of the case: German)
(Provisional translation; the definitive translation will be                         JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                ( Fifth Chamber )
In Case C-234/94 : reference to the Court under Article 177                                   of 27 June 1996
of the EC Treaty from the Bundesgerichtshof ( Federal Court          in Case C-240/95 ( reference for a preliminary ruling from
of Justice ) for a preliminary ruling in the proceedings             the Cour d'Appel , Metz ( France )): Criminal proceedings
pending before that court between Waltraud Tomberger v.                                   against Remy Schmit ( 1 )
Gebriider von der Wettern GmbH — on the interpretation
of Articles 31 ( 1 ) and 59 of the fourth Council Directive          (Free movements of goods — Motor vehicles — National
78/660/EEC of 25 July 1978 based on Article 54 ( 3 ) ( g) of         system of model-year dates — Discrimination against
the Treaty on the annual accounts of certain types of                                         parallel imports)
companies ( 2 ), as amended by the seventh Council Directive                                    ( 96/C 336/06 )
83/349/EEC of 13 June 1983 based on Article 54 ( 3 ) ( g ) of
the Treaty on consolidated accounts ( 3 ), the Court ( Fifth                          (Language of the case: French)
Chamber ), composed of: D. A. O. Edward ( Rapporteur ),
President of the Chamber, J. -P. Puissochet, J. C. Moitinho
                                                                     (Provisional translation; the definitive translation will be
de Almeida, C. Gulmann and M. Wathelet, Judges; G.
                                                                                published in the European Court Reports)
Tesauro, Advocate-General ; H. von Holstein, Deputy
Registrar, has given a judgment on 27 June 1996 in which it
rules :                                                              In Case C-240/95 : reference to the Court under Article 177
                                                                     of the EC Treaty by the Cour d'Appel ( Cour of Appeal ),
Where:                                                               Metz ( France ), for a preliminary ruling in the criminal
                                                                     proceedings before that court against Remy Schmit on
— one company (the parent company) is the sole                       Article 30 of the EC Treaty — the Court ( Fifth Chamber ),
    shareholder in another company (the subsidiary), and             composed of D. A. O. Edward, President of the Chamber,
    controls it,                                                    J. -P. Puissochet, C. Gulmann, P. Jann and M. Wathelet
                                                                     ( Rapporteur ), Judges, Advocate-General : M. B. Elmer,
— under national law, the parent company and the                     Registrar : L. Hewlett, Administrator, gave a judgment on
    subsidiary form a group ,                                        27 June 1996 , the operative part of which is as follows :


title: Case T-308/04: Action brought on 19 July 2004 by Francesco Ianniello against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/42

         Action brought on 19 July 2004 by Francesco Ianniello against the Commission of the European Communities
   (Case T-308/04)
   (2004/C 262/81)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 July 2004 by Francesco Ianniello, resident in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the appeal assessor's decision of 8 September 2003 approving the applicant's 2001-2002 career development report;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments:
   In support of his appeal, the applicant invokes a breach of Article 8 of the general provisions implementing Article 43 of the Staff Regulations. The applicant claims that the provision is unlawful because it provides for the appointment of members of the Joint Evaluation Committee whose grade is the same as, or lower than, that of the applicant and who thus do not possess all the guarantees of independence or the requisite powers. The applicant adds that, although he acts on the authority of a staff union, the director of resources or his alternate did not withdraw and took part in the consideration of his appeal.
   The applicant also claims that there was a breach of the duty of confidentiality on the part of the members of the Joint Evaluation Committee, a breach of the principle that the Joint Committee should be impartial and objective, a breach of the rights of defence and of the right to an inter partes hearing, a breach of the principle of sound administration and a manifest error of assessment and inconsistency between the comments and the marks awarded.


title: Case C-393/10: Judgment of the Court (Second Chamber) of 1 March 2012 (reference for a preliminary ruling from the Supreme Court of the United Kingdom) — Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs (Framework agreement on part-time work — Definition of ‘part-time workers who have an employment contract or employment relationship’ — Judges working part-time remunerated on a fee-paid basis — Refusal to grant a retirement pension)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/3

         Judgment of the Court (Second Chamber) of 1 March 2012 (reference for a preliminary ruling from the Supreme Court of the United Kingdom) — Dermod Patrick O’Brien v Ministry of Justice, formerly Department for Constitutional Affairs
   (Case C-393/10) (1)

   (Framework agreement on part-time work - Definition of ‘part-time workers who have an employment contract or employment relationship’ - Judges working part-time remunerated on a fee-paid basis - Refusal to grant a retirement pension)
   2012/C 118/04
   Language of the case: English

      Referring court

   Supreme Court of the United Kingdom

      Parties to the main proceedings

      Applicant: Dermod Patrick O’Brien

      Defendant: Ministry of Justice, formerly Department for Constitutional Affairs

      Re:

   Reference for a preliminary ruling — Supreme Court of the United Kingdom — Interpretation of Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC (OJ 1998 L 14, p. 9) — Meaning of ‘part-time workers who have an employment contract or employment relationship’ (clause 2.1 of the directive) — Part-time judges — Difference in treatment, as regards the right to an old-age pension, between full-time and part-time judges, or between different kinds of part-time judges

      Operative part of the judgment

               1.

               European Union law must be interpreted as meaning that it is for the Member States to define the concept of ‘workers who have an employment contract or an employment relationship’ in Clause 2.1 of the Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Council Directive 97/81/EC of 15 December 1997 concerning the Framework Agreement on part-time work concluded by UNICE, CEEP and the ETUC, as amended by Council Directive 98/23/EC of 7 April 1998, and, in particular, to determine whether judges fall within that concept, subject to the condition that that does not lead to the arbitrary exclusion of that category of persons from the protection offered by Directive 97/81, as amended by Directive 98/23, and that agreement. An exclusion from that protection may be allowed only if the relationship between judges and the Ministry of Justice is, by its nature, substantially different from that between employers and their employees falling, according to national law, under the category of workers.

               2.

               The Framework Agreement on part-time work concluded on 6 June 1997 which appears in the Annex to Directive 97/81, as amended by Directive 98/23, must be interpreted as meaning that it precludes, for the purpose of access to the retirement pension scheme, national law from establishing a distinction between full-time judges and part-time judges remunerated on a daily fee-paid basis, unless such a difference in treatment is justified by objective reasons, which is a matter for the referring court to determine.

      (1)  OJ C 274, 9.10.2010.


title: Case C-307/07: Action brought on 4 July 2007 — Commission of the European Communities v Portuguese Republic

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/23

         Action brought on 4 July 2007 — Commission of the European Communities v Portuguese Republic
   (Case C-307/07)
   (2007/C 199/37)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: H. Støvlbæk and P. Andrade, Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               Declare that the Portuguese Republic, by failing to recognise diplomas which give access to the profession of pharmacist specialising in medical biology, has failed in relation to that profession to fulfil its obligations under Directive 89/48/EEC (1).

               —

               Order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The Commission considers that the professional activity of pharmacist specialising in medical biology is a regulated profession, within the scope of Directive 89/48. The Portuguese transposing legislation is restricted in its application to those professions which are specified in a list. Since the profession of pharmacist specialising in medical biology is not specified in that list, the Portuguese Republic has failed to fulfil all of its obligations under Directive 89/48.

      (1)  Council Directive 89/48/EEC of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration (OJ 1989, L 19, p. 16).


title: Case C-647/15: Action brought on 3 December 2015 — Hungary v Council of the European Union

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/43

         Action brought on 3 December 2015 — Hungary v Council of the European Union
   (Case C-647/15)
   (2016/C 038/56)
   Language of the case: Hungarian

      Parties

      Applicant: Hungary (represented by: M.Z. Fehér, Agent)

      Defendant: Council of the European Union

      Form of order sought

   In its application, Hungary claims that the Court should:

               —

               annul Council Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (1) (‘the contested decision’);

               —

               in the alternative, in the event that the first head of claim is not upheld, annul the contested decision in so far as it refers to Hungary;

               —

               order the Council to pay the costs.

      Pleas in law and main arguments

               1.

               The Hungarian Government submits that Article 78(3) TFEU does not provide the Council with an adequate legal basis for the adoption of the contested decision. Article 78(3) TFEU does not empower the Council to adopt a legislative act, nor, therefore, to adopt the measures established in the contested decision, specifically those which involve a binding exception in respect of a legislative act, in the present case Regulation (EU) No 604/2013. (2) In view of its content, the contested decision constitutes a legislative act — given that it establishes an exception in respect of Regulation No 604/2013 — with the result it could not be adopted on the basis of Article 78(3) TFEU, which solely empowers the Council to adopt acts through a non-legislative procedure, that is to say, non-legislative acts. In the event that, despite the foregoing, it is held that Article 78(3) TFEU may constitute the basis for the adoption of a legal act which entails an exception in respect of a legislative act, the Hungarian Government submits that that exception cannot go so far as to affect the essence of that legislative act and render nugatory its fundamental provisions, as the contested decision does.

               2.

               A measure established for a period of 24 months — and in certain cases, 36 months — the effects of which, moreover, go beyond even that period, is not compatible with the concept of ‘provisional measures’ referred to in Article 78(3) TFEU. The contested decision exceeds the power granted to the Council by Article 78(3) TFEU, since, in determining its period of validity, account was not taken of the period necessary for the adoption of a legislative act on the basis of Article 78(2) TFEU.

               3.

               In adopting the contested decision, the Council infringed Article 293(1) TFEU, since it departed from the Commission’s proposal without reaching unanimity.

               4.

               The contested decision establishes an exception in respect of a legislative act and itself constitutes, in view of its content, a legislative act, with the result that, in order to adopt it — even assuming that it were possible to do so on the basis of Article 78(3) TFEU — the Council would have had to respect the right of the national parliaments to issue an opinion on legislative acts, recognised in Protocols 1 and 2 annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union.

               5.

               After consulting the European Parliament, the Council substantially amended the text of the proposal, despite which it did not consult the European Parliament again.

               6.

               At the time of the approval by the Council, the linguistic versions of the draft decision in the official languages of the Union were not available.

               7.

               Furthermore, the contested decision is unlawful because its adoption is contrary to Article 68 TFEU and the conclusions reached by the European Council at its meeting on 25 and 26 June 2015.

               8.

               The contested decision infringes the principles of legal certainty and legislative clarity, since it fails to explain various aspects of how its provisions are to be applied and what relation those provisions are to have to the provisions of Regulation No 604/2013. Those unclear aspects include the issue of the application of procedural rules and guarantees in respect of the adoption of the relocation decision, as well as the fact that the contested decision does not clearly establish the selection criteria for the purpose of relocation and fails to regulate adequately the status of applicants in the Member State of relocation. The contested decision is contrary to the Geneva Convention relating to the Status of Refugees, (3) since it deprives applicants of their right to remain in the territory of the Member State in which they made their application and allows their relocation to another Member State without it being necessary to show the existence of a material link between the applicant and the Member State of relocation.

               9.

               The contested decision infringes the principles of necessity and of proportionality. Given that, in contrast with the Commission’s initial proposal, Hungary is no longer included among the beneficiary Member States, the provision in the contested decision for the relocation of 120 000 applicants for international protection is groundless. In view of the fact that, in the contested decision, provision is no longer made for any relocation from Hungary, the figure of 120 000 applicants proposed initially is now an arbitrary figure, unconnected to the situation set out in the Commission’s proposal and which it was actually intended to address. It is unacceptable — particularly in the case of a provisional measure adopted on the basis of Article 78(3) TFEU — that, as regards almost half of the applicants that fall within its scope, a definitive relocation decision be taken in the light of subsequent circumstances.

               10.

               In the alternative, the Hungarian Government submits that the contested decision infringes the principle of proportionality in respect of Hungary, since — despite the well-known fact that a large number of irregular migrants have entered Hungary and a large number of applications for international protection have been made there — obligatory quotas are imposed upon it as a host Member State. The contested decision does not comply, as regards Hungary, with Article 78(3) TFEU, since the requirement laid down in that provision, according to which such measures may be adopted for the benefit of Member States concerned by a sudden inflow of nationals of third countries, is not met by a measure that, as regards one such Member State, merely imposes obligations.

      (1)  OJ 2015 L 248, p. 80.

      (2)  Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ 2013 L 180, p. 31).

      (3)  Geneva Convention of 28 July 1951 relating to the Status of Refugees, as supplemented by the New York Protocol of 31 January 1967.


title: Case C-525/10 P: Appeal brought on 10 November 2010 by Mariyus Noko Ngele against the order of the General Court (Third Chamber) made on 10 December 2009 in Case T-390/09 Mariyus Noko Ngele v European Commission

text:
               7.5.2011

               EN

               Official Journal of the European Union

               C 139/12

         Appeal brought on 10 November 2010 by Mariyus Noko Ngele against the order of the General Court (Third Chamber) made on 10 December 2009 in Case T-390/09 Mariyus Noko Ngele v European Commission
   (Case C-525/10 P)
   2011/C 139/19
   Language of the case: French

      Parties

      Appellant: Mariyus Noko Ngele (represented by: F. Sabakunzi, avocat)

      Other party to the proceedings: European Commission
   By order of 10 March 2011, the Court of Justice (Eighth Chamber) declared the appeal inadmissible.


title: Case T-492/12: Order of the General Court of 10 December 2013 — von Storch and Others v ECB (Actions for annulment — Decisions adopted by the ECB — Technical characteristics relating to Eurosystem Outright Monetary Transactions — Measures seeking to maintain the availability of collateral — Temporary measures relating to Eurosystem refinancing operations and eligibility of collateral — Not directly affected — Inadmissibility)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/32

         Order of the General Court of 10 December 2013 — von Storch and Others v ECB
   (Case T-492/12) (1)

   (Actions for annulment - Decisions adopted by the ECB - Technical characteristics relating to Eurosystem Outright Monetary Transactions - Measures seeking to maintain the availability of collateral - Temporary measures relating to Eurosystem refinancing operations and eligibility of collateral - Not directly affected - Inadmissibility)
   2014/C 45/53
   Language of the case: German

      Parties

      Applicants: Sven A. von Storch and Others (Berlin, Germany) and the 5 216 other applicants whose names are set out in the annex to the order (represented by: M. Kerber and B. von Storch, lawyers)

      Defendant: European Central Bank (ECB) (represented by: C. Kroppenstedt and G. Gruber, Agents, assisted by H.-G. Kamann, lawyer)

      Re:

   Application for annulment, primarily, of the ECB’s decision of 6 September 2012 concerning a certain number of technical characteristics relating to Eurosystem Outright Monetary Transactions on the secondary sovereign debt markets, secondly, of the decision of the ECB of 6 September 2012 adopting additional measures intended to maintain the availability of collateral for counterparties in order to maintain their access to Eurosystem transactions to provide liquidity and, in the alternative, of Guideline 2012/641/EU of the ECB of 10 October 2012 amending Guideline ECB/2012/18 on additional temporary measures relating to Eurosystem refinancing operations and eligibility of collateral (ECB/2012/23) (OJ L 284, p. 14).

      Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               Mr Sven von Storch and the 5 216 other applicants whose names are set out in the annex to the present order shall bear their own costs and are ordered to pay those incurred by the European Central Bank (ECB).

      (1)  OJ C 32, 2.2.2013.


title: Case T-398/13: Action brought on 2 August 2013 — TVR Automotive v OHIM — TVR Italia (TVR)

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/24

         Action brought on 2 August 2013 — TVR Automotive v OHIM — TVR Italia (TVR)
   (Case T-398/13)
   2013/C 274/40
   Language of the case: German

      Parties

      Applicant: TVR Automotive Ltd (Whiteley, United Kingdom) (represented by: A. von Mühlendahl and H. Hartwig, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Other party to the proceedings before the Board of Appeal: TVR Italia Srl (Milan, Italy)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 14 May 2013 in Case R 823/2011-2;

               —

               Dismiss the appeal of 14 April 2013 by TVR Italia Srl against the decision of the Opposition Division of OHIM of 14 February 2011, B 313 248;

               —

               Order the defendant OHIM and TVR Italia Srl, if it joins the proceedings, to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: TVR Italia Srl

      Community trade mark concerned: Figurative mark, containing the word elements ‘TVR ITALIA’, for goods and services in Classes 12, 25 and 37 — Community trade mark registration No 5 699 954

      Proprietor of the mark or sign cited in the opposition proceedings: the applicant

      Mark or sign cited in opposition: National and Community word marks ‘TVR’ for goods and services in Classes 9, 11, 12, 25 and 41.

      Decision of the Opposition Division: Opposition partially upheld

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

      Pleas in law:

               —

               Infringement of Article 42(2) and (3) of Regulation No 207/2009;

               —

               Infringement of the principle res iudicata or ne bis in idem and of Article 42(2) of Regulation No 207/2009, in conjunction with Article 15 of Regulation No 207/2009


title: Case T-275/06: Action brought on 4 October 2006 — Omya v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/59

         Action brought on 4 October 2006 — Omya v Commission
   (Case T-275/06)
   (2006/C 294/119)
   Language of the case: English
   Parties

      Applicant: Omya AG (Oftringen, Switzerland) (represented by: J. Flynn, Barrister, and C. Ahlborn, Solicitor)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               […] Omya therefore respectfully asks the Court to annul the decision and to order the Commission to pay Omya's costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2006) 3163 final of 19 July 2006 in merger case COMP/M.3796 by which the Commission declared the applicant's take over of the precipitated calcium carbonate business from J.M. Huber Corporation compatible with the common market and the functioning of the Agreement on the European Economic Area. The Commission further imposed certain conditions and obligations with which the applicant is to comply.
   The applicant contends that (a) the competition concerns which the Commission has identified are unfounded and (b) that in any event the remedies effectively imposed on the applicant are inappropriate and are not justified by the concerns identified by the Commission and are not capable of producing the effects claimed by the Commission.
   The applicant invokes three pleas in law in support of its application.
   Firstly, the applicant submits that the Commission manifestly erred in concluding that the transaction would significantly impede effective competition.
   Secondly, the applicant claims that the Commission manifestly erred in its assessment and breached the principle of proportionality in requiring the disposal of the Kuusankoski plant.
   Thirdly, the applicant invokes that the Commission infringed essential procedural requirements by failing to analyse properly the evidence in its file and failing to provide the applicant with access to all relevant documents, thereby infringing the applicant's rights of defence.


title: Case T-427/14: Action brought on 12 June 2014  — Almoauto v Commission

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/56

         Action brought on 12 June 2014 — Almoauto v Commission
   (Case T-427/14)
   2014/C 253/75
   Language of the case: Spanish

      Parties

      Applicant: Almoauto, SA (Alcorcón, Madrid, Spain) (represented by: J. García Muñoz, J. Jiménez-Blanco Carrillo de Albornoz and J. Corral García, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision; and

               —

               order the Commission to pay all the costs incurred in the proceedings.

      Pleas in law and main arguments

   The pleas in law and main arguments are those raised in Case T-392/14 Gutser v Commission.


title: Case T-239/14: Action brought on 20 April 2014 — Monard v Commission

text:
               7.7.2014

               EN

               Official Journal of the European Union

               C 212/36

         Action brought on 20 April 2014 — Monard v Commission
   (Case T-239/14)
   2014/C 212/46
   Language of the case: English

      Parties

      Applicant: Eva Monard (Kessel-Lo, Belgium) (represented by: R. Antonini, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the European Commission No Ref. Ares(2014) 321920 (No SG.B.4/RH/rc-sg.dsg2.b.4(2014) 285433), taken on 10 February by the Secretary General pursuant to Article 4 of the Implementing Rules to Regulation (EC) No 1049/2001 in relation to the confirmatory application by Eva Monard for access to documents under Regulation (EC) No 1049/2001 (GESTDEM 4641/2011);

               —

               Order the European Commission to bear the costs of these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging that the Commission was obliged to grant access to the Documents to the applicant, pursuant to Article 1 of the Treaty on European Union (‘TEU’), Articles 15 and 298 of the Treaty on the Functioning of the European Union (‘TFEU’), the fundamental right of access to documents, Article 6(1) of the TEU juncto Article 42 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007 (the ‘Charter’) and Article 2(1) of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (‘Regulation No 1049/2001’). This is also confirmed by the application of Article 4(3) of Regulation No 1049/2001 a contrario. By failing to do so and by (incorrectly) relying on the exceptions laid down in Article 4(1), a), third indent and Article 4(2), second and third indents of Regulation No 1049/2001, the Commission misapplied the relevant provisions and misused its powers. The Commission also failed to apply in a correct fashion Article 4(6) and Article 4(7) and misused its powers under those provisions.

               2.

               Second plea in law, alleging that the Commission violated Article 1 TEU, Articles 15 and 298 TFEU, the fundamental right of access to documents, Article 6(1) of the TEU juncto Article 42 of the Charter and Article 8(1) and Article 8(2) of Regulation No 1049/2001 by failing to handle the applicant’s confirmatory application promptly and by extending the time limit for responding to this confirmatory application in a case that was not exceptional. As such, the Commission misused its powers and misapplied the relevant provisions by unduly postponing the issuance of a decision on the applicant’s confirmatory application.


				|

		52012DC0278

			COMMUNICATION FROM THE COMMISSION TO THE COUNCIL concerning a consultation on Fishing Opportunities for 2013 /* COM/2012/0278 final */

			   	COMMUNICATION FROM THE COMMISSION
TO THE COUNCIL
concerning a consultation on Fishing Opportunities for 2013

1.           Introduction
This consultation document sets out the ideas
of the European Commission concerning the ways in which total allowable catches
(TACs) and effort levels should be fixed in European waters and for European
fishers in 2013 and, for certain stocks, 2013-2014. Member States, Regional
Advisory Councils (RACs) and the Advisory Committee for Fisheries and
Aquaculture (ACFA) are invited to provide their views to the Commission for
consideration before a final decision is taken on the Commission's proposals.
A new approach to setting TACs for stocks where
full quantitative advice is not available is set out, based on obtaining
qualitative advice and the use of less data-demanding assessment procedures in
the provision of advice by scientific institutions (Section 4.1).
Recent information about the development of the
Common Fisheries Policy over the last years is summarised, based on scientific
advice on the state of exploited fish stocks in European and nearby waters and
on economic data provided by Member States.
The aim of setting levels of TACs, quotas and
fishing effort levels should remain to phase out overfishing. Overfishing poses
a risk of commercial collapse. Ending overfishing means that as much or more
fish could be caught with less fishing activity, less fuel burnt and smaller
fishing gears. This means taking each year a proportion of the fish in the sea
that is the right amount to let fish grow and reproduce at their most
productive level under the prevalent ecological circumstances. Under these
conditions, the long-term catches from fish stocks will be at their maximum
sustainable yield level (MSY). In 2002, the European Commission and the Member
States of the Union committed themselves to reach the objective of MSY by 2015.
A plan for moving to MSY was set out by the Commission in 2006[1]. In 2007, Member States in
Council encouraged the Commission to work towards MSY and were mindful of the
need to gather scientific advice, implement long-term plans with impact
assessments, and consult stakeholders.
Achieving and maintaining MSY will bring
significant benefits, and brings with it a change from fishing intensively on
scarce resources to fishing better on larger stocks. The same or larger
quantities will be caught, but with lower impact on the environment. Impacts of
fishing on sea bottoms will be less, by-catches of vulnerable organisms
including porpoises, dolphins and other marine mammals will decrease, because
the overall intensity of fishing will be less. Against a background of high
fuel prices, fuel consumption should decrease significantly because it takes
less fishing time to catch a tonne of fish from an abundant stock than from a
scarce one. This will reduce carbon emissions as well as the fuel expenditure
of vessel owners.
Another important benefit is that pressures to
discard will decrease. Heavily-fished stocks are mostly made up of smaller and
less valuable fish which are thrown back either because of their low value on
the markets or because they are undersized and it is illegal to land them under
the present rules. By reducing the rate of fishing, more fish will have a
chance to grow to a valuable size and it will be much easier for fishermen to
take catches of good-sized fish without taking the smaller fish.
In 2010 the International Council for the
Exploration of the Sea (ICES) developed a new form of advice concerning TAC
levels which will lead to MSY fishing by 2015. The Commission based its TAC
proposals on this new approach in 2011. For 2013, ICES plans to develop the MSY
framework further so as to provide a quantified advice for stocks for which it
has hitherto been unable to provide such advice. This development will be based
on more extensive use of assessment methods that are robust to missing
information, and on greater and more systematic use of qualitative evaluations
within a quantitative framework. The Commission welcomes this approach, which
will greatly improve the information base upon which TAC proposals are made.
2.           State of Fish Stocks
It is worrying that in European waters 65% of
the stocks are not fully assessed and only 22% of stocks under TACs known not
to be overfished (Annex I). Futhermore, the tendency over the past years has
been that a decreasing proportion of stocks (from 47% in 2003 to 35% in 2012)
can be classified according to safe biological limits. It is not clear how far
this may be affecting the data (i.e. is it the stocks at highest risk that are
no longer assessed ?).
However, where the state of stocks has been
assessed, they seem to be improving, albeit slowly: the proportion of
overfished[2]
stocks in the Atlantic and nearby seas fell from 32 out of 34 stocks in 2004 to
18 out of 38 stocks in 2011, i.e. from 94% to 47%. (see Annex I for details).
Achieving MSY is a realistic and achievable goal. The new stocks that are no
longer assessed as overfished include Iberian-Atlantic anglerfish, blue
whiting, Celtic Sea sole, west of Scotland haddock, North Sea herring, North
Sea plaice and Herring in the Gulf of Bothnia. For 2012 several TAC increases
were possible, which will provide over €135m in additional income for
fishermen. Fishing policies based on MSY are already starting to deliver more
fish for consumers and potentially more jobs and more income for people working
in the catching and processing sectors.
Current knowledge on the state of fish stocks
is summarised in Annex I and described briefly below on a regional basis[3].
Northeast Atlantic Pelagic stocks: All the main pelagic stocks except mackerel are now fished at or
within MSY fishing rates, and corresponding TACs have been set for 2012. The
Union has undertaken numerous attempts to secure the agreement of Iceland and
the Faroe Islands to join Norway and the EU in the sustainable management of
mackerel. The total of the mackerel TACs fixed by the EU, Norway, Faroe Islands
and Iceland in 2012 were 36% above the scientific advice (excluding Russian
catches). The rate of fishing of mackerel is well outside sustainable limits
and the stock will decline in future years if an agreement with Iceland and the
Faroe Islands cannot be reached for the sustainable management of this stock.
This failure to agree and the loss of proper management has led to the loss of
certification as a sustainably managed stock by the Marine Stewardship Council.
In the North Sea, Skagerrak and Kattegat
plaice, haddock, herring, Nephrops and sole (in the Skagerrak and Kattegat
only) are fished in accordance with MSY fishing mortality rates. Other stocks
are either in unknown state or are overfished. TACs exceeded scientific advice
by 5% in 2012 compared with 11% in 2011, 17% in 2010 and 37% in 2009.
Many stocks in the west
of Scotland, Irish Sea and Celtic Sea are small with uncertain
assessments. ICES has reported problems with recording of catches and other
data, including discards, for a number of stocks. Five stocks are so depleted
that, according to scientific advice, catches should be reduced to the lowest possible
level. Of 18 stocks where MSY assessments could be made, a third were
overfished and 12 were fished at or below MSY targets. Celtic Sea herring and
west of Scotland haddock have shown welcome improvements recently, but already
high discards of cod, haddock and whiting will increase if intensive fishing
with small mesh nets for Nephrops continues without the greater use of
selective gear that will let small fish escape. The
catch-composition rules that were introduced to protect this stock when it was at
a low level have now been suspended[4].
Member States have committed to introducing more selective fishing gear to
reduce discards.
Few assessments are available for the stocks in
the Bay of Biscay and Iberian-Atlantic Seas. Southern hake are in better
shape due to good recruitment of juveniles, but large over-quota catches were
again taken in 2011, so the long-term sustainability of
this stock is at risk and market prices are low. The Commission and Spain are
working on an action plan to adapt the national catch and effort registration
system to meet that challenge. Audits of the catch and effort registration
system in other Atlantic Member States will be completed during summer 2012. Nephrops in the Cantabrian Sea are still subject to an advice to
stop fishing.
In the Baltic Sea, 5 out of 7 known
stocks remain overfished. Only cod in the Eastern Baltic and herring in the
Bothnian Sea are fished at maximum sustainable yield rates.
In the Mediterranean, 80% of the resources studied are
overfished and some are at low levels (Annex Ib). The number and quality
of assessments, though still geographically unbalanced and not regular over
time have continued to increase,. and now cover more than 100 stocks from 27
species; however only 63% of evaluated stocks have been classified according to
MSY criteria. The status of 37 % of stocks remain unknown. As these assessments
have begun only recently and not all of the stocks are assessed every year, it
is not possible to use these data to look at the development of the state of
the stocks over time.
In the Black Sea,
the situation has not changed significantly. Sprat is in good condition based
on recent strong recruitments and is fished sustainably while turbot is still
highly overfished.
3.           Economic
Analysis
Economic performance is expected to be poor in
many sectors of the European fish catching industry, particularly the demersal
sectors. There are two reasons for this.
Firstly, the continued poor state of many fish
stocks means that catch rates are lower and costs associated with fishing – and
notably fuel usage- have been higher than necessary. However, TAC increases
worth at least €135m were already possible in 2012, indicating that the
short-term negative economic and social impacts resulting from the transition
to MSY could be less than was feared. The anticipated long-term positive gains
from MSY are kicking-in earlier than expected. Nevertheless, the financial
resilience of the sector is still presently quite low.
Secondly, fuel prices have climbed again to
values close to the peak values reached in July 2008, and prices of fish in the
main consumer markets fell slightly. Some offset of these stresses could be
achieved by changing to more fuel-efficient propulsion and changes in fishing
behaviour and fishing gear. Improvements in marketing strategies could also
bolster the stability of the sector. However, it is the phasing out of
overfishing that can make the biggest contribution to economic efficiency and
stability in the face of challenges from higher costs and lower product prices.
The most recent employment figures available
(for 2009) show that the total number of fishermen employed in the EU fishing
fleet (excluding Greece, whose figures were not submitted) was 134,700 - a
decrease of around 8% compared to 2005. Thus, employment in the sector
continues to decrease. An improvement in the underlying state of fish stocks is
essential to halt this declining tendency.
4.           Policy
Directions
4.1.        Developments
in scientific advice for stocks where information
is incomplete
In 2011, quantified scientific advice about
overfishing with respect to Fmsy[5]
(excluding deep-sea species) could be provided for 38 stocks out of 92 in the
North-east Atlantic, i.e. 41% of stocks, though this advice covers most of the
larger and commercially important resources. In total, 2 million tonnes of
fishing opportunities are covered by this advice, out of 2.5 million tonnes
total corresponding fishing opportunities (i.e. 80% of the catch tonnage is
covered by advice). In the Mediterranean and Black Sea, out of 103 stocks
investigated in 2011, advice about overfishing could be provided in 65 cases
(63%).
In the Atlantic, North Sea and Baltic Sea, the
number of stocks for which advice could be provided with respect to MSY rose
from 34 in 2005 to 39 in 2010 and was 38 in 2012. There has been a slight
declining trend in the proportion of stocks where a quantified analysis and
forecast is available. The proportion of stocks where no scientific advice is
available rose from 45% in 2003 to 52% in 2006 and then fell again to 36% for
2012.
The reasons for the absence of advice are various:
missing or unreliable information on catches, incomplete surveys or poor
sampling, or underlying uncertainties about the biology of the stock as well as
lack of human resources in the scientific advisory process. Providing
scientific data on fisheries according to the EU data collection framework[6] is the responsibility of Member
States, and these responsibilities in a number of cases are not met fully
despite the available EU funding. In 2011, Member States were urged by the
Commission and the Council to improve data availability for the stocks in Table
1. The results of this exercise will become apparent in the forthcoming advice
of ICES, due in June 2012.
Table 1 – Stocks subject to a joint statement by Council and
Commission on improving data availability in European waters of the Northeast
Atlantic and Baltic Sea.
 Stocks || Areas
 Anglerfish || [ North Sea and] West of Scotland
 Anglerfish || Celtic Seas
 Anglerfish || Bay of Biscay
 Haddock || Celtic Sea
 Horse mackerel || North Sea
 Megrims || Celtic Sea
 Megrims || Bay of Biscay
 Plaice || Irish Sea
 Plaice || Celtic Sea (Area VIIfg)
 Plaice || Baltic Sea
 Pollack || West Scotland
 Pollack || Celtic Sea
 Skates and Rays || West Scotland
 Sprat || Channel
 Sprat || North Sea
 Whiting || Celtic Sea
Following additional scientific studies in
2012, it is expected that the scope of scientific advice will be extended to
cover more, if not most, of the stocks. While in 2011 we had over 44 stocks for
which the scientific assessments could not be completed, this figure is likely
to decrease to about 10-12 in 2012. This will require the use of assessment
methods and advisory procedures which are novel in European advice, but which
have been well tried and tested elsewhere. It will allow case-specific
considerations to be taken into account, as was recommended in the public
consultations held in 2011.
The Commission looks forward to using this new
advice to base its proposals on fishing opportunities for these resources in
2013 and, where applicable, 2014. However, where scientific advice is
unavailable and uncertainty is greater it remains appropriate to use a more
cautious approach to setting fishing opportunities, in accordance with the
precautionary principle[7].

Meanwhile, Member States should devote
sufficient resources to deliver urgently the necessary information to allow the
state of the stocks to be estimated. The Commission will continue to promote
development of common standards and programmes for monitoring and assessing
stocks in the Mediterranean and Black Seas, including those shared with non-EU countries.
Expert working groups will be convened to focus on those stocks and areas which
have received less scientific coverage to date.
4.2.        Fishing effort
Fishing effort (limits on time at sea for
fishing vessels) has been managed alongside TACs to reduce discards and illegal
catches. Effort management is a conservation measure used in several long-term
management plans, e.g. for cod in the North Sea and Baltic Sea, the North Sea
plaice and sole, the western Channel sole and the southern hake and Norway
lobster stocks (Annex II).
Annex II shows a general, if irregular, trend
towards decreasing fishing effort since 2003 or 2004 until 2010.
The total effort decreases are greatest for the
Baltic Sea, the North Sea, the Kattegat, the Irish Sea, and the west of
Scotland but slightly less in the Western channel. Only small decreases
occurred in the Iberian-Atlantic area up to 2009. However, total effort
increased slightly in the central Baltic Sea and beam-trawl effort also
increased in the western Channel from 2010 to 2011.
Clearly, measures to reduce effort in this area
have not yet been effective.
During 2012 the Commission will review effort
management regimes implemented so far in the EU. This will include a public
meeting to be held on 5 July 2012 and will examine a wide range of issues, as
raised by science, Member States, stakeholders and industry with a view to
moving forward on the issue of simplifying stock management to a great extend
in a reformed Common Fisheries Policy.
5.           Management
by Multi-Annual plans
The Commission has started preparations to
replace current single-stock-based plans with multi-stock management plans. The
first proposal to be presented will be a multi-species plan for the Baltic Sea,
incorporating biological interactions such as predation and competition. Work
is also underway on a mixed-fisheries plan for the North Sea, which will
incorporate technical interactions, i.e. the way in which different
fleets and fishing gears catch different mixtures of fish.
Mixed-fisheries plans for the Celtic Sea, Irish
Sea and west of Scotland are to follow once the science is consolidated.
Development of proposals to amend the current plans for sole in the Bay of
Biscay and Southern hake and Norway lobster are scheduled but will depend on the
availability of data on the fisheries concerned.
Plan proposals for anchovy in the Bay of
Biscay, Baltic salmon and western horse mackerel have been adopted by the
Commission between 2009 and 2011 and are under discussion in Parliament and in
Council.
In the Mediterranean, effort will continue in
consolidating the scientific advice on an increasing number of species and
stocks to develop international long-term fisheries plans. According to the
Mediterranean Regulation[8],
EU Member States should set up multiannual plans at a national level. Despite
important delays, there has recently been progress in the implementation of
this obligation, which is being closely monitored and supported. To further speed up this process, the Commission has already started
precontentious procedures against several Member States, and this action will
be further developed in 2012. Follow-up is also planned at the General
Fisheries Commission for the Mediterranean concerning shared stocks.
These actions are expected to improve decision–making
for the establishment of international multiannual plans.
6.           Working Method for
Proposing TACs
The following principles should apply:
Where long-term plans governing TACs or effort
limits apply, these have to be followed. The Commission will also propose TACs
or effort limits at levels consistent wth Commission proposals for long-term
management plans.
Where TACs and other measures have been agreed
with third countries, these have to be implemented.
Where scientific advice is provided based on
comprehensive data and quantitative analysis and forecasts according to the
ICES "MSY framework" TACs should be set according to scientific
advice. When such advice is available it should be directly used to fix levels
of quotas or fishing effort, though a gradual implementation of this framework
by 2015 could be accepted where this is compatible with the advice.
Where indicative scientific advice is provided
based on qualitiative analysis of available information (even if this is
incomplete or incorporates expert judgement) this should be used as a basis for
TAC decisions.
Where there is no scientific advice at all
there is a need to follow the precautionary approach.
TACs for species not yet subject to TACs and
quotas may be proposed in light of scientific advice signaling a consistent
increase in landings. Candidate species in this regard include sea bass and red
mullet Guidelines for new and developing fisheries will be developed in
accordance with the statement in the minutes of the 2010 and 2011 December
Councils. Such guidelines will follow the principles and best practices and
international standards for responsible fisheries. The development of
allocation keys for these stocks will be necessary, based on track records, on
the condition that such records have been established while fishing in full
compliance with applicable (e.g. technical) conservation measures.
It is necessary to ensure the best fit between
TAC regulatory areas and stock identity in order for fishing opportunities to
meet the conservation and management status of the various stocks. The
management of Norway lobster by functional units and the management of the two
stocks of plaice in the Channel require consideration in this respect and the
Commission would encourage Member States to support the necessary TAC
rearrangement work required in these cases. It reserves the right to include
such arrangements in its proposals and welcomes feedback from Member States and
stakeholders specifically on this issue. In order to lay the foundation of
stock-specific management for lemon sole, dab, flounder and witch in the North
Sea, separate reporting of the landings of these species will be proposed.
7.           Deep Sea Species in the
Northeast Atlantic
The state of many deep-stocks cause concern.
Stocks of orange roughy, certain deep-sea sharks, red sea bream in the Bay of
Biscay and roundnose grenadier are depleted. Advice for most stocks is that
fisheries should either be reduced or not be allowed to expand unless they are
known to be sustainable. In the case of faster-growing species such as tusk,
ling, blue ling, red seabream and black scabbard, it may prove possible to
identify reference points to allow management of the stocks on a long-term
sustainable basis, but these are not presently available..
TACs for deep-sea species are fixed every two
years, most recently for 2011 and 2012. The Commission will present a separate
proposal concerning deep-sea fishing opportunities for the period 2013-2014
based on the working method described above.
8.           TACs Fixed by Member
States
Since 2011, TACs for 6 stocks have been
"delegated" to the sole Member States fishing each of these stocks
(Article 6 of Council Regulation No 57/2011 and of Council Regulation 43/2012).
This has been done – subject to safeguards concerning good management - in
cases where only one Member State has an interest in the fishery. Reporting by
the Member States concerned under Article 6 has improved, though the quality of
reports is uneven. In some cases, data on which to build advice on appropriate
measures to manage the stocks is still lacking, and for these stocks additional
caution is required. The Commission intends to propose the continued delegation
of these TACs. There will be specific follow-up with the relevant Member States
concerned as regards stocks for which further efforts are required.
9.           Schedule of Proposals
The tentative timetable of work could be as
follows:
 Fishing Opportunities Regulation || Advice Available || Commission Proposal || Possible adoption by Council
 Deep-sea 2013-2014 || June || mid-September || October
 EU stocks in Atlantic and North Sea (no international negotiations or agreements) || June || September || November
 International and joint stocks in Atlantic, North Sea, Antarctic and other areas || October-December || November || December
 Baltic Sea || May || Early September || October
 Black Sea || October || November || December
10.         Conclusion
The Commission solicits the views ofMember
States, the RACs and ACFA concerning the approach set out in this
Communication.
ANNEX
Ia –North-East Atlantic and adjacent waters
 Table 1. Scientific advice about the state of the stock || Number of fish stocks
   || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || 2012 || Ave rage
 Outside safe biological limits || 30 || 29 || 26 || 26 || 26 || 28 || 27 || 22 || 19 || 14 || 25
 Inside safe biological limits || 12 || 10 || 14 || 11 || 12 || 13 || 12 || 15 || 15 || 18 || 13
 % of stocks inside safe biological limits || 29% || 26% || 35% || 30% || 32% || 32% || 31% || 41% || 44% || 56% || 35%
 The state of the stock is unknown due to poor data || 48 || 53 || 53 || 57 || 58 || 55 || 57 || 60 || 61 || 60 || 56
 % of stocks of known status || 47% || 42% || 43% || 39% || 40% || 43% || 41% || 38% || 36% || 35% || 40%
 Table 2. Scientific advice about overfishing || Number of fish stocks
   || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || 2012 || Ave rage
 The rate of fishing on the stock is known compared to maximum sustainable yield rate ||   ||   || 34 || 23 || 32 || 33 || 35 || 39 || 35 || 38 || 34
 The stock is overfished ||   ||   || 32 || 21 || 30 || 29 || 30 || 28 || 22 || 18 || 26
 The stock is fished at the maximum sustainable yield rate ||   ||   || 2 || 2 || 2 || 4 || 5 || 11 || 13 || 20 || 7
 % of stocks overfished ||   ||   || 94% || 91% || 94% || 88% || 86% || 72% || 63% || 47% || 79%
 Table 3. "Emergency" scientific advice || Number of fish stocks
   || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || 2012 || Ave rage
 Scientific advice to stop fishing || 24 || 13 || 12 || 14 || 20 || 18 || 17 || 14 || 11 || 8 || 15
 Table 4. Difference between TACs and sustainable catches || Number of fish stocks
   || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || 2012 || Ave rage
 Excess of TAC over sustainable catch (%) || 46% || 49% || 59% || 47% || 45% || 51% || 48% || 34% || 23% || 11% || 41%
 Table 5. Summary of the scientific advice about fishing opportunities || Number of fish stocks
   || 2003 || 2004 || 2005 || 2006 || 2007 || 2008 || 2009 || 2010 || 2011 || 2012 || Ave rage
 Stocks where stock size and fishing mortality can be forecast || 40 || 34 || 40 || 31 || 29 || 30 || 34 || 36 || 36 || 40 || 35
 Stocks where a scientific advice concerning fishing opportunities is available || 59 || 52 || 54 || 65 || 61 || 62 || 63 || 55 || 55 || 47 || 57
 Stocks where no scientific advice is available || 31 || 40 || 39 || 29 || 35 || 34 || 33 || 42 || 40 || 44 || 37
   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
 (*) Where one advice covers two TACs, it is not ||   ||   ||   ||   ||   ||   ||   ||
 counted twice ||   ||   ||   ||   ||   ||   ||   ||   ||   ||   ||
  ANNEX Ib –Mediterranean and Black Seas ||   ||   ||
 Scientific advice about overfishing for the Mediterranean and Black Sea demersal and small pelagic stocks || no. || % ||
   ||   ||   ||
 Stocks classified according to criteria (reference point agreed) || 65 || 63,0 ||
 Other stocks not included due to poor data (reference point not yet agreed) || 38 || 37,0 ||
 Stocks taken into account (out of 27species) || 103 || 100 ||
 Classified stocks: ||   ||   ||
 The stock is overfished (above Fmsy or proxy) || 52 || 80,0 ||
 The stock is fished at or below the Fmsy or its proxy || 13 || 20,0 ||
 Total stocks || 65 || 100 ||
   ||   ||   ||
ANNEX
II –Fishing Effort
regulated under multi-annual plans, as reported by Member States to STECF
(information provided by the Joint Research Centre)
Figure 1. Regulated
fishing effort in the western Baltic Sea
Figure 2. Regulated
fishing effort in the central Baltic Sea
Figure 3. Regulated fishing effort in Kattegat
Figure 4. Regulated fishing effort in North Sea, Skagerrak
and Eastern Channel.
Figure 5. Regulated fishing effort in the Irish Sea.
Figure 6.
Regulated fishing effort in the west of Scotland.
Figure 7.
Regulated fishing effort in the western Channel.
Figure 8.
Regulated fishing effort in the Iberian-Atlantic waters.
Note: The different trend compared to last year is mainly due to
improved data from Portugal. Spain has not submitted data for 2010, hence the
data are only plotted to 2009.
[1]               Implementing sustainability in EU fisheries through
maximum sustainable yield. Communication from the Commission to the Council and
the European Parliament. COM (2006) 360 final.
[2]               "Overfished" means that the latest estimate
of fishing mortality rate is higher than the fishing mortality rate that will
deliver maximum sustainable yield in the long term.
[3]               A table of European quotas and relevant "traffic
lights" can be read at
http://ec.europa.eu/fisheries/documentation/publications/poster_tac2012_en.pdf.
A full analysis of the state of fish
stocks can be found at www.ices.dk and https://stecf.jrc.ec.europa.eu
[4]               Commission Regulation (EU) No 161/2012 of 23 February
2012 on emergency measures for the protection of haddock stocks in waters to
the west of Scotland. OJ L 52 pp.6-7, 24.2.2012
[5]               The rate of fishing that will achieve the highest
levels of catch on average and for the long term.
[6]               Council Regulation (EC) No 199/2008 of 25 February
2008 concerning the establishment of a Community framework for the collection,
management and use of data in the fisheries sector and support for scientific
advice regarding the Common Fisheries Policy. OJ L 60, 5.3.2008, p. 1-12
[7]               Communication from the Commission on the
precautionary principle. COM (2000) 1 final
[8]               Council Regulation (EC) No 1967/2006


title: Judgment of the Court of 27 April 1999 in Case C-99/96 (reference for a preliminary ruling from the Bundesgerichtshof): Hans-Hermann Mietz v Intership Yachting Sneek BV (Brussels Convention - Concept of provisional measures - Construction and delivery of a motor yacht)

text:
C 204/6                  EN                       Official Journal of the European Communities                                           17.7.1999
                  JUDGMENT OF THE COURT                                          It is in this regard irrelevant that the contracting parties have
                                                                                described their contract as a ‘contract of sale’. A contract having
                          of 27 April 1999                                       the characteristics mentioned above is however to be classified as
                                                                                a contract for the supply of services or of goods within the
                                                                                meaning of Article 13, first paragraph, point 3, of the
in Case C-99/96 (reference for a preliminary ruling from
                                                                                Convention of 27 September 1968. It is for the national court,
the Bundesgerichtshof): Hans-Hermann Mietz v Intership
                       Yachting Sneek BV (1)                                     should the need arise, to determine whether the particular case
                                                                                before it involves a supply of services or a supply of goods.
(Brussels Convention — Concept of provisional measures —
          Construction and delivery of a motor yacht)                        2. A judgment ordering interim payment of contractual consider-
                                                                                ation, delivered at the end of a procedure such as that provided
                           (1999/C 204/10)                                       for under Articles 289 to 297 of the Netherlands Code of Civil
                                                                                Procedure by a court not having jurisdiction under the Convention
                                                                                of 27 September 1968 as to the substance of the matter is not a
                    (Language of the case: German)                               provisional measure capable of being granted under Article 24
                                                                                of that Convention unless, first, repayment to the defendant of
                                                                                the sum awarded is guaranteed if the plaintiff is unsuccessful as
(Provisional translation; the definitive translation will be published           regards the substance of his claim and, second, the measure
                    in the European Court Reports)                               ordered relates only to specific assets of the defendant located or
                                                                                to be located within the confines of the territorial jurisdiction of
In Case C-99/96: reference to the Court under the Protocol of                    the court to which application is made.
3 June 1971 on the Interpretation by the Court of Justice of
the Convention of 27 September 1968 on Jurisdiction and the
Enforcement of Judgments in Civil and Commercial Matters
from the Bundesgerichtshof (Federal Court of Justice)                        (1) OJ C 145 of 18.5.1996.
(Germany), for a preliminary ruling in the proceedings pending
before that court between Hans-Hermann Mietz and Intership
Yachting Sneek BV — on the interpretation of Article 13, first
paragraph, points 1 and 3, Article 24, Article 28, second
paragraph, and Article 34, second paragraph, of the above
Convention of 27 September 1968 (OJ 1978 L 304, p. 36), as
amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978 L
304, p. 1 and — amended text — p. 77) and by the Convention
of 25 October 1982 on the Accession of the Hellenic
Republic (OJ 1982 L 388, p. 1) — the Court, composed of:                                       JUDGMENT OF THE COURT
G.C. Rodrı́guez         Iglesias,     President,        P.J.G. Kapteyn,
J.-P. Puissochet, G. Hirsch and P. Jann (Presidents of Cham-
bers), G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann,                                             of 27 April 1999
J.L. Murray, D.A.O. Edward (Rapporteur), H. Ragnemalm,
L. Sevón and M. Wathelet, Judges; P. Léger, Advocate General;
L. Hewlett, Administrator, for the Registrar, has given a                    in Case C-48/97 (reference for a preliminary ruling by the
judgment on 27 April 1999, in which it has ruled:                            VAT and Duties Tribunal, London): Kuwait Petroleum
                                                                                (GB) Ltd v Commissioners of Customs & Excise (1)
1. Article 13, first paragraph, point 1, of the Convention of
     27 September 1968 on Jurisdiction and the Enforcement of
     Judgments in Civil and Commercial Matters, as amended by the            (Sixth VAT Directive — Sales promotion scheme — Goods
     Convention of 9 October 1978 on the Accession of the Kingdom            supplied on redemption of vouchers — Supply for consider-
     of Denmark, Ireland and the United Kingdom of Great Britain                  ation — Price discounts and rebates — Definition)
     and Northern Ireland, and by the Convention of 25 October
     1982 on the Accession of the Hellenic Republic, must be
     construed as not applying to a contract between two parties                                       (1999/C 204/11)
     having the following characteristics, that is to say, a contract:
     — relating to the manufacture by the first contracting party of
         goods corresponding to a standard model, to which certain                               (Language of the case: English)
         alterations have been made;
     — by which the first contracting party has undertaken to                In Case C-48/97, reference to the Court under Article 177 of
         transfer the property in those goods to the second contracting      the EC Treaty by the VAT and Duties Tribunal, London, for a
         party, who has undertaken, by way of consideration, to pay          preliminary ruling in the proceedings pending before that
         the price in several instalments; and                               court between Kuwait Petroleum (GB) Ltd and Commissioners
                                                                             of Customs & Excise on the interpretation of Articles 2, point
     — in which provision is made for the final instalment to be             1, 5(6), 11A(3)(b) and 27 of the Sixth Council Directive
         paid before possession of the goods is transferred definitively     77/388/EEC of 17 May 1977 on the harmonisation of the
         to the second contracting party.                                    laws of the Member States relating to turnover taxes —


title: Case T-184/02: Action brought on 11 June 2002 by El Corte Inglés, S.A. against the Office for Harmonisation in the Internal Market

text:
24.8.2002             EN                     Official Journal of the European Communities                                       C 202/33
Grounds of claim:            —     Irregularity of the procedure        Pleas in law and main arguments
                                   in that the appeal was reas-
                                   signed to another Board of
                                   appeal and that the applicant
                                   was not informed of the              Applicant for the Com-        The applicant.
                                   change of name of the                munity trade mark:
                                   opponent.
                                                                        Community trade mark          Word mark MUNDICOR (appli-
                             —     Failure of the Board of              applied for:                  cation published in Community
                                   Appeal to provide reasons                                          Trade Mark Bulletin No 27/98,
                                   for its decision.                                                  p. 600, 14 April 1998) for goods
                                                                                in the 42 classes of the nomencla-
                             —     Breach of the concept of                                           ture.
                                   ‘likelihood of confusion’.
                             —     Misuse of rights by the              Owner of the mark or          González Cabello S.A.
                                   opponent in that it has not          sign relied on in the
                                   made any use of the mark             opposition proceedings:
                                   objected to.
                                                                        Mark or sign opposed:         Spanish mark MUNDICOLOR for
                                                                                goods in class 2 (colours, varnish-
                                                                                es, lacquers, preservatives against
                                                                                rust and against deterioration of
                                                                                wood; colorants; mordants; raw
                                                                                natural resins; metals in foil and
                                                                                powder form for painters, decor-
                                                                                ators, printers and artists).
                                                                        Decision of the oppo-         Application allowed.
                                                                        sition division:
Action brought on 11 June 2002 by El Corte Inglés, S.A.
against the Office for Harmonisation in the Internal                    Decision of the Board of      Dismissal of the appeal brought
                            Market                                      Appeal:                       by El Corte Inglés S.A.
                                                                        Pleas in law relied on:       Misapplication of Article 8(1)(b)
                       (Case T-183/02)                                                                of Regulation (EC) No 40/94 (like-
                                                                                lihood of confusion).
                       (2002/C 202/54)
                 (Language of the case: Spanish)
An action against the Office for Harmonisation in the Internal          Action brought on 11 June 2002 by El Corte Inglés, S.A.
Market was brought before the Court of First Instance of the            against the Office for Harmonisation in the Internal
European Communities on 11 June 2002 by El Corte Inglés,                                            Market
S.A. of Madrid, represented by Juan Luis Rivas Zurdo.
                                                                                (Case T-184/02)
The applicant claims that the Court should:
                                                                                (2002/C 202/55)
—    annul the decision of 22.3.02 of OHIM’s First Board of
     Appeal and the decision of 17.9.99 of OHIM’s opposition                              (Language of the case: Spanish)
     division;
—    allow registration of Community Trade Mark No 557108
     ‘MUNDICOR’ to proceed for all goods claimed in Class 2;            An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 11 June 2002 by El Corte Inglés,
—    order the opponent(s) to pay the costs.                            S.A. of Madrid, represented by Juan Luis Rivas Zurdo.
 ---pagebreak--- C 202/34               EN                    Official Journal of the European Communities                                     24.8.2002
The applicant claims that the Court should:                             Action brought on 13 June 2002 by Succession Picasso
                                                                        against the Office for Harmonisation in the Internal
—     annul the decisions of 22.3.02 of the OHIM’s First Board                                      Market
      of Appeal in Case 115/2000-1 and 15.11.99 of the
      OHIM’s Opposition Division;                                                               (Case T-185/02)
—     allow registration of Community Trade Mark No 557108
      ‘mundicolor’ to proceed in respect of all services in                                     (2002/C 202/56)
      Class 39 ‘transport services and travel arrangements’
      and Class 42 ‘providing of food and drink; temporary                                (Language of the case: English)
      accommodation’;
—     order the opponent(s) to pay the costs.
                                                                        An action against the Office for Harmonisation in the Internal
                                                                        Market was brought before the Court of First Instance of the
                                                                        European Communities on 13 June 2002 by Succession
Pleas in law and main arguments                                         Picasso, represented by Charles Gielen, lawyer. A further
                                                                        party to the proceedings before the Board of Appeal was
                                                                        DaimlerChrysler AG (Intellectual Property Management).
Applicant for the Com-        The applicant.
munity trade mark:                                                      The applicant claims that the Court should:
Community trade mark          Word mark MUNDICOR (appli-                —     annul the Decision of the Third Board of Appeal of
applied for:                  cation published in Community                   18 March 2002 and of the Opposition Division of
                              Trade Mark Bulletin No 27/98,                   11 January 2001;
                              p. 600 of 14 April 1998) for
                              goods in 42 classes of the                —     declare that the opposition filed by the applicant against
                              nomenclature.                                   the application for registration of the mark PICARO is
                                                                              successful and refuse the application for the mark in its
Owner of the mark or          IBERIA Lı́neas Aéreas de España                entirety and/or make any other order that the Court
sign relied on in the         S.A.                                            deems fit;
opposition proceedings:
                                                                        —     order DaimlerChrysler to pay all costs of the proceedings.
Mark or sign opposed:         Spanish word mark MUNDICO-
                              LOR for goods in Class 39 (pass-
                              enger transport services, excur-
                              sions and tourist promotions) and         Pleas in law and main arguments
                              42 (hotel accommodation ser-
                              vices, travel arrangements and
                              organisation of holidays).
                              Mixed international mark MUNDI            Applicant for the Com-       DaimlerChrysler
                              COLOR, extended to France, Italy,         munity trade mark:
                              Austria and the Benelux countries
                              for ‘travel planning services and         The Community trade          Word mark ‘PICARO’ — Appli-
                              organisation of travel’ in Class 39       mark sought:                 cation No 927764, relating to
                              and ‘services involving hotel                                          goods in Class 12 (vehicles and
                              accommodation and food’ in                                             parts thereof).
                              Class 42.
                                                                        Proprietor of the trade      Succession Picasso.
Decision of the oppo-         Application allowed.                      mark or sign right cited
sition division:                                                        in the opposition pro-
                                                                        ceedings:
Decision of the Board of      Dismissal of the appeal brought
Appeal:                       by El Corte Inglés S.A.                   Trade mark or sign right     The word mark ‘PICASSO’ (Com-
                                                                        cited in the opposition      munity trade mark registration
                                                                        proceedings:                 No 614567).
Grounds relied on:            Misapplication of Article 8(1)(b)
                              of Regulation (EC) No 40/94 (like-
                                                                        Decision of the Oppo-        Decision of the Board of Appeal:
                              lihood of confusion).
                                                                        sition Division:Rejection
                                                                        of the opposition.
                                                                        Dismissal of the appeal.     Grounds of claim:


title: Case C-170/04: Judgment of the Court (Grand Chamber) of 5 June 2007 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pierre, Tony Staf v Riksåklagaren ( Free movement of goods — Articles 28 EC, 30 EC and 31 EC — National provisions prohibiting the importation of alcoholic beverages by private individuals — Rule relating to the existence and operation of the Swedish monopoly on sales of alcoholic beverages — Assessment — Measure contrary to Article 28 EC — Justification on grounds of protection of the health and life of humans — Review of proportionality) )

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/2

         Judgment of the Court (Grand Chamber) of 5 June 2007 (reference for a preliminary ruling from the Högsta domstolen — Sweden) — Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pierre, Tony Staf v Riksåklagaren
   (Case C-170/04) (1)

   (Free movement of goods - Articles 28 EC, 30 EC and 31 EC - National provisions prohibiting the importation of alcoholic beverages by private individuals - Rule relating to the existence and operation of the Swedish monopoly on sales of alcoholic beverages - Assessment - Measure contrary to Article 28 EC - Justification on grounds of protection of the health and life of humans - Review of proportionality))
   (2007/C 170/03)
   Language of the case: Swedish
   Referring court
   Högsta domstolen
   Parties to the main proceedings

      Applicants: Klas Rosengren, Bengt Morelli, Hans Särman, Mats Åkerström, Åke Kempe, Anders Kempe, Mats Kempe, Björn Rosengren, Martin Lindberg, Jon Pierre, Tony Staf

      Defendant: Riksåklagaren
   Re:
   Reference for a preliminary ruling — Högsta Domstolen — Interpretation of Articles 28, 30 and 31 EC in the light of national provisions regarding a national retail monopoly for retail sales of alcoholic beverages which exclude the direct import of such beverages by individuals
   Operative part of the judgment

               1.

               A national provision, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol (alkohollagen) of 16 December 1994, under which private individuals are prohibited from importing alcoholic beverages must be assessed in the light of Article 28 EC and not in the light of Article 31 EC.

               2.

               A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages amounts to a quantitative restriction on imports within the meaning of Article 28 EC, even though that law requires the holder of the retail sale monopoly, on request, to supply and therefore, if necessary, to import the beverages in question.

               3.

               A measure, such as that in the first subparagraph of Paragraph 2 of Chapter 4 of the Law on alcohol, under which private individuals are prohibited from importing alcoholic beverages,

                           —

                           as it is unsuitable for attaining the objective of limiting alcohol consumption generally, and

                           —

                           as it is not proportionate for attaining the objective of protecting young persons against the harmful effects of such consumption,

                     cannot be regarded as being justified under Article 30 EC on grounds of protection of the health and life of humans.

      (1)  OJ C 156, 12.6.2004.


title: Case T-194/08: Action brought on 21 May 2008 — Cattin and Cattin v Commission

text:
               2.8.2008

               EN

               Official Journal of the European Union

               C 197/27

         Action brought on 21 May 2008 — Cattin and Cattin v Commission
   (Case T-194/08)
   (2008/C 197/48)
   Language of the case: French
   Parties

      Applicants: R. Cattin & Cie (Bimbo, Central African Republic) and Yves Cattin (Cadiz, Spain) (represented by: B. Wägenbaur, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Order the defendant to pay the applicant company a total of EUR 18 946 139 for material loss suffered;

               —

               Order the defendant to pay the applicant company the sum of EUR 100 000 for non-material loss suffered;

               —

               Order the defendant to pay Mr Cattin the sum of EUR 150 000 for non-material loss suffered;

               —

               Add default interest to those amounts to run from the date of delivery of the judgment in the present case until effective payment, at an annual rate equal to the rate fixed by the European Central Bank for main refinancing operations plus 2 points, such rate not to exceed 6 %;

               —

               Order the defendant to pay the costs of the case, those incurred both by the applicant company and by Mr Cattin.

         Pleas in law and main arguments
   The applicant company, specialising in production, processing and exportation of coffee in the Central African Republic, has been refused reimbursement via funds of the European Development Fund (EDF) of debts which it held from the State body ‘Soutien Café’, a body created to support the price of coffee at the time of large reductions in prices at the end of the 1980's. The applicant company was refused reimbursement on the ground that, according to an audit report established at the request of the national authorities, it had probably embezzled certain sums for the benefit of its associates. Following that refusal, the applicant company has had to suspend all its activities and dismiss the 800 permanent employees working in its plantations.
   In support of their action, the applicants allege, firstly, a breach of (i) their rights of the defence, since the applicant company did not present evidence at the time the audit report which found that there had been embezzlement was established and (ii) of the presumption of innocence, since no evidence was put forward to support that finding.
   Next, the applicants raise a plea alleging breach of the principles of effective judicial protection, legal certainty and the duty to give reasons, since the applicant company was refused reimbursement without the Commission having sent it any decision and without the company having been informed formally of the recommendations of the audit report on which that refusal was based.
   Finally, the applicants submit that the Commission infringed the principles of due care and sound administration, since applications sent to the Commission by the national authorities concerning the applicant company's case went unanswered and the audit report was based on incorrect figures, which meant that a second expert opinion was required, which the Commission accepted without, however, obtaining such an opinion.


title: Case T-565/08: Action brought on 17 December 2008 — Corsica Ferries France v Commission

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/38

         Action brought on 17 December 2008 — Corsica Ferries France v Commission
   (Case T-565/08)
   (2009/C 55/68)
   Language of the case: French
   Parties

      Applicant: Corsica Ferries France SAS (Bastia, France) (represented by: S. Rodrigues and C. Bernard-Glanz, lawyers)

      Defendant: Commission of the European Communities
   Forms of order sought

               —

               declare the present action admissible;

               —

               annul the Commission Decision of 8 July 2008 in relation to restructuring aid which France plans to grant to Société Nationale Maritime Corse-Méditerranée (SNCM);

               —

               order the Commission to pay all the costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2008) 3182 final of 8 July 2008, in which the Commission had stated that:

               —

               the compensation paid by the French Republic to Société Nationale Maritime Corse-Méditerranée (‘SNCM’), amounting to EUR 53.48 million in respect of public service obligations, constitutes illegal State aid which is nevertheless compatible with the common market;

               —

               the negative selling price of SNCM of EUR 158 million; the implementation, by Compagnie Générale Maritime et Financière (‘CGMF’), of social measures in respect of employees in the amount of EUR 38.5 million; and the joint and concomitant re-capitalisation of SNCM by CGMF in the amount of EUR 8.75 million do not constitute State aid; and

               —

               restructuring aid amounting to EUR 15.81 million which the French Republic granted to SNCM constitutes illegal State aid which is nevertheless compatible with the common market;

         In support of its action, the applicant puts forward two pleas in law alleging:

               —

               failure to state reasons and breach of the applicant's rights of defence and its right to an effective judicial remedy, insofar as too much of the data and information in the contested decision was blacked out for its content, reasoning and scope to be understood;

               —

               infringement of Articles 87 EC and 88 EC and their implementing rules, in particular the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, resulting from an inaccurate and/or incomplete assessment regarding the capital contribution of EUR 53.48 million under public service compensation; the sale of SNCM at a negative selling price of EUR 158 million; the capital contribution by CGMF amounting to EUR 8.75 million; social measures amounting to EUR 38.5 million; and the balance of EUR 22.5 million notified under restructuring aid.


title: Judgment of the Court (Second Chamber) of 15 July 2004 in Case C-272/01: Commission of the European Communities v Portuguese Republic (Failure of a Member State to fulfil its obligations — Directive 76/160/EEC — Quality of bathing water — Failure to conform to limit values — Failure to identify all inland bathing areas in Portugal — Failure to collect a sufficient number of samples)

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/1

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 15 July 2004
   in Case C-272/01: Commission of the European Communities v Portuguese Republic (1)

   (Failure of a Member State to fulfil its obligations - Directive 76/160/EEC - Quality of bathing water - Failure to conform to limit values - Failure to identify all inland bathing areas in Portugal - Failure to collect a sufficient number of samples)
   (2004/C 228/02)
   Language of the case: Portuguese
   In Case C-272/01: Commission of the European Communities (Agents: M.T. Figueira and G. Valero Jordana) against Portuguese Republic (Agents: L. Fernandes, M. Telles Romão and M. João Lois) — application for a declaration by the Court that:

               —

               by failing to adopt all the measures necessary to ensure that the quality of bathing water conforms to the values laid down in Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water (OJ 1976 L 31, p. 1),

               —

               by failing to take samples at the minimum frequencies laid down in the annex to that directive, and

               —

               by failing to identify all the inland bathing areas in Portugal,

         the Portuguese Republic has failed to fulfil its obligations under Article 4(1), in conjunction with Articles 1(2) and 3 and the annex to the directive, and under Article 6(1) and (2) of the directive
   the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J. P. Puissochet, J.N. Cunha Rodrigues and N. Colneric (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, has given a judgment on 15 July 2004 in which it:

               1.

               Declares that, by failing to take all the measures necessary to ensure that the quality of bathing water complies with the mandatory limit values laid down under Article 3 of Council Directive 76/160/EEC of 8 December 1975 concerning the quality of bathing water, the Portuguese Republic has failed to fulfil its obligations under Article 4(1) of the Directive, in conjunction with Article 3 and the Annex to that Directive;

               2.

               Dismisses the remainder of the application;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 245 of 1.9.2001.