CELEX: C2003/239/09
Language: en
Date: 2003-10-04 00:00:00
Title: 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.

C 239/6                   EN                          Official Journal of the European Union                                          4.10.2003
        —     by failing to issue a provisional prohibition of                The Applicant claims that the Court should:
              fishing from fishing vessels flying the Danish flag or
              registered in Denmark when the quota allocated was              1)     declare that by failing to implement Council Directive 77/
              to be deemed to have been exhausted, and by failing                    799/EEC (1) of 19 December 1977 concerning mutual
              to inform the Commission when the halt to fishing                      assistance by the competent authorities of the Member
              was introduced,                                                        States in the field of direct and indirect taxation, as
                                                                                     amended, in the territory of Gibraltar, the United
        the Kingdom of Denmark has failed to fulfil its obligations                  Kingdom has failed to fulfil its obligations under the EC
        both under Article 5(2) of Regulation (EEC) No 170/                          Treaty;
        83 ( 1), and under Articles 1 and 11(1) and (2) of
        Regulation (EEC) No 2241/87 (2);
                                                                              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
                                                                              Directive 77/799/EEC, as amended, was to be implemented by
Disregard of Article 5(2) of Council Regulation (EEC) No 170/                 the Member States not later than 1 January 1981 as regards
83 and of Articles 1 and 11(1) and (2) of Council Regulation
                                                                              value added tax (by virtue of Directive 79/1070/EEC ( 2)) and
(EEC) No 2241/87.
                                                                              1 January 1993 as regards excise duties (by virtue of Directive
                                                                              92/12/EEC (3)).
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                Contrary to the view taken by the United Kingdom, the
the measures taken concerning the management and control of                   Commission maintains that Directive 77/799/EEC, as
those activities were in the Commission’s opinion inadequate.                 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.
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 ) 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).
( 1) Council Regulation (EEC) No 170/83 of 25 January 1983                    (3 ) of 25 February 1992 on the general arrangements for products
     establishing a Community system for the conservation and                      subject to excise duty and on the holding, movement and
     management of fishery resources, OJ L 24 of 27.1.1983, p. 1.                  monitoring of such products (OJ L 76, 23.03.1992, 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.
                                                                              Appeal brought on 21 August 2003 (facsimile received on
Action brought on 7 August 2003 by the Commission of                          16 August 2003) by El Corte Inglés, SA against the order
the European Communities against the United Kingdom                           delivered on 8 May 2003 in Case T-63/03 El Corte Inglés
               of Great Britain and Northern Ireland                          SA v OHIM, the other party to the proceedings before
                                                                                 the Board of Appeal being: Calzaturificio Yvonne S.r.l.
                           (Case C-349/03)
                                                                                                       (Case C-361/03 P)
                           (2003/C 239/08)
                                                                                                        (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                           An appeal against the order delivered on 8 May 2003 in Case
Commission of the European Communities, represented by                        T-63/03 El Corte Inglés SA v OHIM, the other party to the
R. Lyal, acting as agent, with an address for service in                      proceedings before the Board of Appeal being: Calzaturificio
Luxembourg.                                                                   Yvonne S.r.l., was brought before the Court of Justice of the
 ---pagebreak--- 4.10.2003             EN                         Official Journal of the European Union                                          C 239/7
European Communities on 21 August 2003 (facsimile received               5.    grant the abovementioned application transmitted by
on 16 August 2003) by El Corte Inglés, SA, represented by                      facsimile on 20 February 2003 as lodged in accordance
Juan Luis Rivas Zurdo.                                                         with the abovementioned requirements concerning noti-
                                                                               fication of documents and time-limits;
The appellant claims that the Court should:                              6.    place the case at the proper procedural stage or, if
                                                                               appropriate, grant the forms of order sought in the
1.   set aside the order of the Court of First Instance of 8 May               abovementioned application of 20 February 2003.
     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               Pleas in law and main arguments
     of the decision of 12 November 2002 of the Fourth
     Board of Appeal of the OHIM in Case R 0189/2000-4                   —     Irregularities in the proceedings before the Court of First
     was inadmissible;                                                         Instance which are detrimental to the interests of the
                                                                               appellants.
2.   grant the abovementioned application transmitted by
     facsimile on 5 February 2003 and declare valid the steps            —     Failure to comply with Article 102(2) of the Rules of
     taken by the appellant in completing formalities following                Procedure of the Court of First Instance with regard to
     the aforementioned facsimile transmission of 5 February                   extension of time-limits on account of distance.
     2003;
                                                                         —     Disregard for the principle of effective protection of the
3.   place the case at the proper procedural stage or, if                      principles relating to the present case: rights of the
     appropriate, grant the forms of order sought in the                       defence; maintenance of procedural documents; and legal
     abovementioned application of 5 February 2003;                            certainty.
                                                                         —     Improper assessment of unforeseeable circumstances, as
In the alternative,                                                            regards the care and good faith demonstrated by the
                                                                               appellant, and of whether the matters set out in the
4.   set aside the order of the Court of First Instance of 8 May               appeal could be put right.
     2003 dismissing the action brought by the appellant
     before it, on the ground that the application transmitted           —     Infringement of the rules concerning notification of
     by facsimile on 20 February 2003 seeking the annulment                    decisions of the OHIM (Rules 62(3) and 62(5) of Com-
     of the decision of 12 November 2002 of the Fourth                         mission Regulation (EC) No 2868/95 implementing
     Board of Appeal of the OHIM in Case R 0189/2000-4                         Council Regulation (EC) No 40/94 on the Community
     was inadmissible;                                                         trade mark).