Action brought on 31 May 2019 — Gerber v Parliament and Council

(Case T-326/19)

(2019/C 238/34)

Language of the case: Italian

Parties

Applicant: Tibor Gerber (Milan, Italy) (represented by: N. Amadei, lawyer)

Defendants: Council of the European Union, European Parliament

Form of order sought

The applicant claims that the General Court should:

—	Annul the contested Regulation No 2019/474, in particular Article 1(1), and the second sentence of Article 2 and declare that, as a consequence of that invalidity, Directive No 2019/475 has no effect in so far as it is functionally connected to the contested regulation;

—	Pending the judgment to be delivered, suspend the application of the contested regulation and Directive No 2019/475 until the day of the judgment of the General Court;

—

Pending the judgment to be delivered, order the suspension of the implementation of all implementing measures contained in Regulation No 2019/474 and Directive 2019/475, in particular those relating to the registration of motor vehicles provided for in the Act of 1 December 2018, No 132 (law converting Decree-Law No 113 of 4 October 2018 into law);

—	If appropriate, admit the testimonies that the applicant reserves the right to propose to substantiate the factual circumstances described in the application;

—	In any event, order the Council of the European Union and the European Parliament to pay all the costs of the proceedings.

Pleas in law and main arguments

This action seeks the annulment of Regulation No 2019/474 of the European Parliament and of the Council of 19 March 2019 amending Regulation (EU) No 952/2013 laying down the Union Customs Code, in particular in the parts concerning the customs regime in the Italian municipality of Campione d’Italia and its waters bordering Lake Lugano (Article 1(1) and Article 2, second sentence).

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

First plea in law, alleging infringement of the obligation to state reasons

—

In this respect, it is submitted that, in breach of Article 296(2) TFEU, the contested regulation is incomplete and contradictory in its reasoning. With regard to the inclusion of Campione in the European customs regime, it is stated that the historical reasons for its exclusion, such as isolation and economic disadvantages, are no longer valid. However, the isolation of the municipality has not disappeared and the economic disadvantages have worsened because of the declaration of the insolvency of the Casino, which represents the only source of income for the municipality.

Second plea in law, alleging an infringement of international law

—

In this regard, it is argued that, in addition to being the subject of Article 3(5) TEU, the obligation to respect international law, both conventional and customary, has often been reaffirmed by the Court of Justice. However, the contested regulation (and the related Directive 2019/475) amended a customs procedure which is the subject of a rule of customary international law adopted between Italy and Switzerland and recognised by the European Union itself, under which Campione is subject to the Swiss customs procedure. Thus, the regulation infringed an international obligation that it should have complied with under the Treaty and the case-law of the Court of Justice.

Third plea in law, alleging the right to freedom of movement of European citizens

—

In this regard, it is submitted that the contested regulation has consequences which conflict with the right conferred by Article 21 TFEU and Article 45 of the Charter of Fundamental Rights of the European Union. The application of the European Union customs regime to the municipality of Campione, instead of the Swiss customs regime, implies that, at the entry and exit of Campione (whether by land or by lake) a physical customs barrier has to be established and that the corresponding controls on persons and goods have to be put in place to ensure the application of European and Swiss rules.