30.1.2010   

EN

Official Journal of the European Union

C 24/31

—

uphold the appeal and set aside the judgment of the Court of First Instance of the European Communities (Seventh Chamber) of 16 September 2009 in Case T-162/07 on account of insufficient and unclear reasoning, misinterpretation of the legal concepts cited in the appeal and incorrect assessment on the part of the Court of First Instance of the evidence adduced before it;

—

hold that the state of the proceedings permits it to give final judgment in the matter (first paragraph of Article 61 of the Statute of the Court) and to do so;

—

refer the case back to the General Court of the European Union to decide the action for damages brought on 8 May 2007 against the Council of the European Union and the European Commission to compensate for the damage suffered by reason of unlawful acts and omissions of the above institutions, as described in the action;

—

order the Council of the European Union and the European Commission to pay the costs.

1.

The Court of First Instance held that the rules in Regulation No 2454/93 on the exclusive use of Document T2M as proof of the Community nature of products of sea-fishing caught in international waters and transported through a third country were necessary and proportionate. According to the appellant, the Court did not address all its pleas and arguments, in particular concerning the possibility that the Community legislature should provide for alternative means of proof, especially in view of the inappropriate nature of the measure as regards securing trade. In addition, the Court of First Instance did not give sufficient reasons for its conclusion as to the necessity and proportionality of the Community rules, and misinterpreted the nature of Customs Document T2M as giving entitlement to free movement.

2.

According to the appellant, the Court of First Instance did not assess correctly the evidence which it submitted, with the consequence that it held that the content of the documents issued by the Tunisian customs authorities to Pigasos was not equivalent to box 13 of Document T2M. However, it is clear from the documents submitted as a whole that the Tunisian customs authorities kept the products of sea-fishing under the same continuous supervision as that prescribed by Document T2M. On the basis of the Tunisian authorities’ documents, it is confirmed that the products of sea-fishing were in Tunisian territory under the transit regime, which means under domestic law that a product is kept under continuous supervision by the customs authorities, which is also what is required to be attested to in box 13 of Document T2M.

3.

The Court of First Instance also found that Pigasos did not show the diligence required in its business activities in Tunisia, which led the Court, according to the appellant, to misinterpret that concept in law and extend the care and attention required of a businessman to generalised suspicion of the conduct of executive bodies of third countries, on the sole ground that they are not bound by Community law.