C-249/99

the other party to the proceedings being:

Commission of the European Communities, represented by J. Guerra Fernández, of its Legal Service, acting as Agent, with an address for service in

* Language of the case: Spanish.

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ORDER OF 18. 11. 1999 — CASE C-249/99 P

Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

Order

1 By application lodged at the Registry of the Court of Justice on 2 July 1999, Pescados Congelados Jogamar SL (hereinafter 'Jogamar') brought an appeal pursuant to Article 49 of the EC Statute of the Court of Justice against the order of the Court of First Instance of 30 April 1999 in Case T-311/97 Pescados Congelados Jogamar v Commission [1999] ECR II-1407 (hereinafter 'the contested order'), in which the Court of First Instance dismissed its application for a declaration that, on the occasion of the boarding of the vessel Albor Uno by I - 8336

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the Moroccan authorities, the Commission unlawfully failed to act in exercise of its authority in the fisheries sector and, in particular, of its powers under the Agreement on cooperation in the sea fisheries sector between the European Community and the Kingdom of Morocco.

2 Council Regulation (EC) No 150/97 of 12 December 1996 on the conclusion of an Agreement on cooperation in the sea fisheries sector between the European Community and the Kingdom of Morocco and laying down provisions for its implementation (OJ 1997 L 30, p. 1) approved the aforementioned agreement (hereinafter 'the Agreement').

3 The Agreement replaces the agreement approved by Council Regulation (EEC) No 3954/92 of 19 December 1992 on the conclusion of the Agreement on relations in the sea fisheries sector between the European Economic Community and the Kingdom of Morocco and laying down provisions for its implementation (OJ 1992 L 407, p. 1).

8 For a more detailed account of the legal context and facts of the case, reference should be made to paragraphs 1 to 18 of the contested order.

9 Since Jogamar considered that the Commission had displayed gross negligence in the course of the discussions with the Moroccan authorities, resulting in its vessel and the crew being wrongfully held for 45 days, on 10 December 1997 it brought an action before the Court of First Instance for a declaration that the Commission had failed to act by not intervening in connection with the boarding of the Albor Uno, contrary to Article 38 et seq. of the EC Treaty (now, after amendment, Article 32 et seq. EC) and Regulation No 3954/92, and that the Commission should not have delegated its powers in fishery matters to national authorities.

10 After deciding that there was no need to open the oral procedure, the Court of First Instance, dismissed the action as inadmissible. It recalled at paragraph 34 of the contested order that an action brought under Article 175 of the EC Treaty (now Article 232 EC) for failure to act is admissible only in so far as the applicant has duly followed the pre-litigation procedure, satisfying the essential procedural I - 8338

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requirement of calling upon the institution concerned to act, within the meaning of the second paragraph of that provision.

1 1 The Court of First Instance found at paragraph 37 of the contested order that, contrary to the applicant's contentions, the fax of 11 August 1997 did not embody a call upon the Commission to act, but merely a request that it provide certain information so that the applicant could take action itself. Nor did the fax indicate that it constituted a preliminary to legal proceedings.

16 In this plea, Jogamar submits primarily that, by dismissing the action as inadmissible because the Commission was not first called upon to act, the Court of First Instance was excessively formalistic. It decided the case without regard to conditions in the Community today. Article 175 of the Treaty was designed for economic problems, so that it is discriminatory to seek to impose the same degree of compliance with formal requirements in a situation involving public international law.

17 In that regard, it is sufficient to note that the second paragraph of Article 175 of the Treaty provides that an action for failure to act 'shall be admissible only if the institution concerned has first been called upon to act'.

18 As the Court of First Instance correctly pointed out at paragraph 35 of the contested order, such a request must be expressed with sufficient clarity and precision for the Commission to have a clear idea of the content of the decision sought and to realise that the purpose of the request is to compel it to state its position.

19 The Court of First Instance found that that was not true of the fax sent by Jogamar's legal representative to the Commission on 11 August 1997, since it contained no indication to that effect. On the contrary, it merely seeks certain information from the Commission, such as telephone and fax numbers of the officials and bodies dealing with the matter, with whom Jogamar's representative, as he himself stated, wished to make contact. Furthermore, as the Court of First Instance found at paragraph 37 of the contested order, the fax in question did not I - 8340

23 Under Article 69(2) of the Rules of Procedure, applicable to the appeal procedure by virtue of Article 118, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the Commission has applied for costs and Jogamar has been unsuccessful, Jogamar must be ordered to pay the costs. I - 8341

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On those grounds,

THE COURT (First Chamber)

hereby orders:

1. The appeal is dismissed.