CELEX: C2003/239/07
Language: en
Date: 2003-10-04 00:00:00
Title: Case C-343/03: Action brought on 4 August 2003 by the Commission of the European Communities against the Kingdom of Denmark

4.10.2003             EN                        Official Journal of the European Union                                          C 239/5
     —    Article 6(5) of Regulation (EEC) No 3887/92, in its           —     Breach of the obligation to provide reasons enshrined in
          wording in force at the material time, did not                      Article 253 of the EC Treaty: the Commission’s decision
          distinguish between the various aid schemes so far                  does not indicate what aspect of the conduct of the
          as concerned the obligation to check 5 % of the                     Portuguese authorities was contrary to Community law
          ‘animal’ aid applications during the retention period,              nor which Community legislation was infringed thereby.
          so that, contrary to the Commission’s contention,                   The decision therefore does not fulfil the obligation to
          the Portuguese authorities acted in conformity with                 provide reasons. That requirement is stricter where at
          the provision in issue.                                             issue is the adoption of measures which impose sanctions
                                                                              on or entail adverse consequences, in particular in
                                                                              financial terms, for those to whom it is addressed, as in
                                                                              the present case. In those circumstances, fulfilment of the
                                                                              obligation to provide reasons is essential in order to
                                                                              protect the rights of defence of the person or body
                                                                              affected by the adverse consequences flowing from the
     —    by applying in this case Article 6(5) of Regulation                 measure.
          No 3887/92 as amended by Regulation (EC)
          No 2801/99, rather than the version in force at
          the material time, the Commission is applying
          retrospectively a new provision, which is contrary            (1 ) OJ 2003 L 124, p. 45.
          to the general principles of law common to the
          Member States.
—    Error of assessment of the facts with regard to the
     expenditure declared by the Portuguese authorities for
     1999 concerning the premium for the maintenance of                 Action brought on 4 August 2003 by the Commission
     the suckler cow herd:                                              of the European Communities against the Kingdom of
                                                                                                    Denmark
                                                                                                 (Case C-343/03)
     —    The alleged irregularities regarding the identification
          of the animals, which the Commission claims to                                         (2003/C 239/07)
          have detected in checks carried out in holdings in
          the Alentejo region in September 2000, are of
          no relevance to the application of the flat-rate
          corrections applied to expenditure in respect of
          the 1999 financial year. In the alternative, the              An action against the Kingdom of Denmark was brought
          Portuguese Government takes the view that the                 before the Court of Justice of the European Communities
          irregularities alleged by the Commission are irrel-           on 4 August 2003 by the Commission of the European
          evant, since Portugal has complied and continues to           Communities, represented by H.P. Hartvig, acting as Agent,
          comply with the rules relating to the identification          with an address for service in Luxembourg.
          of bovine animals.
                                                                        The applicant claims that the Court should:
                                                                        1.    declare that
     —    The Commission further alleges, as the basis for
          applying the financial correction, that some animals                —    by failing to adopt detailed rules for the utilisation
          bore producer markings bearing an identification                         of the quotas allocated to Denmark,
          number which was not that accorded by the com-
          petent authorities, and considers that the practice
          increases the risk that a premium might be paid                     —    by failing to ensure compliance with the EC pro-
          more than once in respect of the same animal.                            visions on the conservation of fishery resources by
          Again in that respect the Commission erred in its                        means of monitoring of fishing activity, appropriate
          assessment of the relevant facts by failing to take                      inspections of landings and registration of catches,
          account of the actual circumstances in which the                         and criminal or administrative proceedings against
          said practice occurred.                                                  those responsible for overfishing,
 ---pagebreak--- 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