Action brought on 3 January 2008 — EMSA v Portugal

(Case T-4/08)

(2008/C 183/44)

Language in which the application has been lodged: English

Parties

Applicant: European Maritime Safety Agency (EMSA) (represented by: Professor E. Pache, and J. Menze, Agent)

Defendant: Republic of Portugal

Form of order sought

The European Maritime Safety Agency applies for a judgment of the Court of First Instance under Article 14, sentence 2, of the Seat Agreement establishing that:

Pleas in law and main arguments

The European Maritime Safety Agency (‘the EMSA’ or ‘the Agency’) was established by Regulation (EC) No 1406/2002 (1) and has its seat in Lisbon. On 28 July 2004 the Protocol between the Government of the Portuguese Republic and the European Maritime Safety Agency (2) (‘the Seat Agreement’) was signed. The Seat Agreement covers the relations between the EMSA and Portugal as its host state and applies to the agency and its staff.

The applicant submits that the Portuguese Government proposed, without prior request or suggestion of the EMSA, to enter into the said Seat Agreement providing for a range of privileges and immunities, exemptions and facilities for the Agency and its staff largely reflecting the provisions of the Protocol on the Privileges and Immunities of the European Communities (‘the Protocol’) but also providing additional facilities. It further claims that the text of the Seat Agreement proposed was similar to the text of the Seat Agreement concluded between Portugal and the European Monitoring Centre for Drugs and Drug Addiction (‘EMCDDA’) on 26 June 1996, in particular concerning vehicle registration.

In September 2005 a working group between the Portuguese Government on the one hand and EMSA and EMCDDA on the other hand was created with a view to draft detailed administrative provisions necessary for the implementation of the two Seat Agreements or Protocols.

The applicant claims that the Portuguese administration, by not processing applications for vehicle registrations submitted by EMSA staff violated its obligations resulting from the Seat Agreement clarifying the obligations resulting from the Protocol applicable to the EMSA according to Article 7 of Regulation (EC) No 1406/2002. Furthermore, the applicant claims that the Portuguese authorities did not apply the relevant Portuguese law in force with regard to EMSA staff and their family members whereas it did for EMCDDA and diplomatic missions. These actions resulted in severe impediments to the functioning of the EMSA, according to the applicant, as vehicles purchased under the legitimate expectation that the existing rules would be implemented remained unregistered. Also, vehicles brought form the place of prior residence or from the state of nationality of staff members remained with number plates of the member state of previous residence in spite of rules of that state as regards the obligation to de-register. In short, the applicant claims that the decision of the Portuguese authorities not to process vehicle registration requests created a series of serious legal and administrative difficulties for staff members who had no choice but operate a vehicle in disrespect to obligations relating to registration, insurance and technical inspection.

With regard to the Court's jurisdiction, it is further submitted that Article 8(2) of Regulation (EC) No 1406/2002 provides that the Court of Justice shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Agency and that Article 14 of the Seat Agreement provides that disputes with effect on the application of this agreement shall be examined by an ad hoc group of four members. Disputes not resolved in this way shall be subject to the judgment of the Court of Justice of the European Communities.

According to the applicant, the dispute resolution procedure provided for in Article 14 of the Seat Agreement was found to be unsuccessful and hence, the Court of Justice has jurisdiction in the current dispute regarding the interpretation of the Seat Agreement, pursuant to Article 238 EC providing that the Court of Justice shall have jurisdiction to give judgment to any arbitration clause contained in a contract concluded by or on behalf of the Community, to Article 5(1) of Regulation (EC) No 1406/2002 providing that the Agency shall be a body of the Community, and to Article 225 EC providing that the Court of Fist Instance shall have jurisdiction to hear and determine at first instance actions or proceedings referred to in Article 238 EC.

Moreover, the applicant submits that it seeks confirmation by the Court that the Seat Agreement is an instrument of international law within the sphere of Community law that binds the Portuguese authorities and that cannot be unilaterally modified. It further applies for a judgment concluding that the processing of applications for motor vehicle registrations by its staff members is in contradiction to the provisions of the Protocol and that the Portuguese authorities are obliged to implement the relevant provisions of the Protocol within a reasonable period of time. Finally, it claims that the Seat Agreement shall not be interpreted in a way that the staff of the EMSA does not enjoy at least the rights, with regards to vehicle registration, of any EU national transferring its residence to Portugal.

(1)  Regulation (EC) No 1406/2002 of the European Parliament and of the Council of 27 June 2002 establishing a European Maritime Safety Agency (OJ 2002 L 208, p. 1).

(2)  Published in the Portuguese Official Journal No 224 of 22 September 2004, p. 6073, available on the EMSA's website http://www.emsa.europa.eu/Docs/legis/protocol%20pt%20government%20and%20emsa.pdf