Case C-361/03 P: Appeal brought on 21 August 2003 (facsimile received on 16 August 2003) by El Corte Inglés, SA against the order delivered on 8 May 2003 in Case T-63/03 El Corte Inglés SA v OHIM, the other party to the proceedings before the Board of Appeal being: Calzaturificio Yvonne S.r.l.
Date: 2003-10-04
Institutions: Court of Justice
Subjects: EU trade mark, European Union Intellectual Property Office, action for annulment (EU), trade-mark law

C 239/6

EN

Official Journal of the European Union

4.10.2003

— by failing to issue a provisional prohibition of
fishing from fishing vessels flying the Danish flag or
registered in Denmark when the quota allocated was
to be deemed to have been exhausted, and by failing
to inform the Commission when the halt to fishing
was introduced,

the Kingdom of Denmark has failed to fulfil its obligations
both under Article 5(2) of Regulation (EEC) No 170/
83 (1), and under Articles 1 and 11(1) and (2) of
Regulation (EEC) No 2241/87 (2);

The Applicant claims that the Court should:

1)

declare that by failing to implement Council Directive 77/
799/EEC (1) of 19 December 1977 concerning mutual
assistance by the competent authorities of the Member
States in the field of direct and indirect taxation, as
the United
in the territory of Gibraltar,
amended,
Kingdom has failed to fulfil its obligations under the EC
Treaty;

2)

order the United Kingdom to pay the costs.

2.

order the Kingdom of Denmark to pay the costs.

Pleas in law and main arguments

Pleas in law and main arguments

Disregard of Article 5(2) of Council Regulation (EEC) No 170/
83 and of Articles 1 and 11(1) and (2) of Council Regulation
(EEC) No 2241/87.

The Danish Government has acknowledged that for certain
stocks the quotas allocated for the year 1998 were substantially
exceeded. The monitoring carried out of fishery activities and
the measures taken concerning the management and control of
those activities were in the Commission’s opinion inadequate.

The Danish authorities moreover in certain cases omitted to
bring criminal proceedings agains the persons responsible for
non-compliance with the rules on control and conservation.

( 1) Council Regulation (EEC) No 170/83 of 25 January 1983
establishing a Community system for the conservation and
management of fishery resources, OJ L 24 of 27.1.1983, p. 1.
( 2) Council Regulation (EEC) No 2241/87 of 23 July 1987 estab-
lishing certain control measures for fishing activities, OJ L 207 of
29.7.1987, p. 1.

Directive 77/799/EEC, as amended, was to be implemented by
the Member States not later than 1 January 1981 as regards
value added tax (by virtue of Directive 79/1070/EEC (2)) and
1 January 1993 as regards excise duties (by virtue of Directive
92/12/EEC (3)).

Contrary to the view taken by the United Kingdom, the
Commission maintains
as
amended, applies to Gibraltar and that by failing to implement
the directive in this territory the United Kingdom has failed to
fulfil its obligations under the EC Treaty.

that Directive 77/799/EEC,

(1) OJ L 336, 27.12.1977, p. 15.
(2) of 6 December 1979 amending Directive 77/799/EEC (OJ L 331,

27.12.1979, p. 8).

(3) of 25 February 1992 on the general arrangements for products
to excise duty and on the holding, movement and

subject
monitoring of such products (OJ L 76, 23.03.1992, p. 1).

Action brought on 7 August 2003 by the Commission of
the European Communities against the United Kingdom
of Great Britain and Northern Ireland

Appeal brought on 21 August 2003 (facsimile received on
16 August 2003) by El Corte Inglés, SA against the order
delivered on 8 May 2003 in Case T-63/03 El Corte Inglés
SA v OHIM, the other party to the proceedings before
the Board of Appeal being: Calzaturificio Yvonne S.r.l.

(Case C-349/03)

(2003/C 239/08)

(Case C-361/03 P)

(2003/C 239/09)

An action against the United Kingdom of Great Britain and
Northern Ireland was brought before the Court of Justice
of the European Communities on 7 August 2003 by the
Commission of the European Communities, represented by
R. Lyal, acting as agent, with an address for service in
Luxembourg.

An appeal against the order delivered on 8 May 2003 in Case
T-63/03 El Corte Inglés SA v OHIM, the other party to the
proceedings before the Board of Appeal being: Calzaturificio
Yvonne S.r.l., was brought before the Court of Justice of the

4.10.2003

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Official Journal of the European Union

C 239/7

European Communities on 21 August 2003 (facsimile received
on 16 August 2003) by El Corte Inglés, SA, represented by
Juan Luis Rivas Zurdo.

The appellant claims that the Court should:

1.

2.

3.

set aside the order of the Court of First Instance of 8 May
2003 which dismissed the action brought before it by the
appellant on the ground that the application transmitted
by facsimile on 5 February 2003 seeking the annulment
of the decision of 12 November 2002 of the Fourth
Board of Appeal of the OHIM in Case R 0189/2000-4
was inadmissible;

grant the abovementioned application transmitted by
facsimile on 5 February 2003 and declare valid the steps
taken by the appellant in completing formalities following
the aforementioned facsimile transmission of 5 February
2003;

if
place the case at the proper procedural stage or,
appropriate, grant the forms of order sought in the
abovementioned application of 5 February 2003;

In the alternative,

4.

set aside the order of the Court of First Instance of 8 May
2003 dismissing the action brought by the appellant
before it, on the ground that the application transmitted
by facsimile on 20 February 2003 seeking the annulment
of the decision of 12 November 2002 of the Fourth
Board of Appeal of the OHIM in Case R 0189/2000-4
was inadmissible;

5.

6.

grant the abovementioned application transmitted by
facsimile on 20 February 2003 as lodged in accordance
with the abovementioned requirements concerning noti-
fication of documents and time-limits;

place the case at the proper procedural stage or,
appropriate, grant
abovementioned application of 20 February 2003.

if
the forms of order sought in the

Pleas in law and main arguments

— Irregularities in the proceedings before the Court of First
Instance which are detrimental to the interests of the
appellants.

— Failure to comply with Article 102(2) of the Rules of
Procedure of the Court of First Instance with regard to
extension of time-limits on account of distance.

— Disregard for the principle of effective protection of the
principles relating to the present case: rights of the
defence; maintenance of procedural documents; and legal
certainty.

— Improper assessment of unforeseeable circumstances, as
regards the care and good faith demonstrated by the
appellant, and of whether the matters set out in the
appeal could be put right.

— Infringement of

the rules concerning notification of
decisions of the OHIM (Rules 62(3) and 62(5) of Com-
mission Regulation (EC) No 2868/95 implementing
Council Regulation (EC) No 40/94 on the Community
trade mark).