ORDER OF THE COURT OF FIRST INSTANCE (THIRD CHAMBER)

18 November 1997 ( *1 )

In Case T-367/94,

British Coal Corporation, a company incorporated under English law, having its registered office in London, represented by David Vaughan QC, David Lloyd Jones, Barrister, and Cyrus Mehta, Solicitor, with an address for service in Luxembourg at the Chambers of Loesch & Wolter, 11 Rue Goethe,

applicant,

ν

Commission of the European Communities, represented by Julian Currall, of its Legal Service, and Rosemary Caudwell, a national official seconded to the Commission under an arrangement for the exchange of officials, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

National Association of Licensed Opencast Operators, a company established under English law, having its registered office in Swindon (United Kingdom), represented by Nicholas Green and Mark Hoskins, Barristers, and Eversheds, Solicitors, with an address for service in Luxembourg at the Chambers of Victor Gillen, 13 Rue Aldringen,

intervener,

APPLICATION for the annulment of the Commission's implied decision refusing to reject a complaint against the applicant lodged on 15 June 1994 by the National Association of Licensed Opencast Operators,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of: V. Tiili, President, C. P. Briët and A. Potocki, Judges,

Registrar: H. Jung,

makes the following

Order

1 Pursuant to Article 23 of the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community (hereinafter ‘the ECSC Statute’), applicable to the Court of First Instance by virtue of Article 46 thereof, and Articles 64(3)(d) and 65(b) of the Rules of Procedure of the Court of First Instance, British Coal requested the Court, by letter received on 7 July 1997, to order the Commission to disclose a document to British Coal.

2 That document is alleged to consist in a letter from the Commission inviting the National Association of Licensed Opencast Operators (hereinafter ‘NALOO’) to comment on a possible decision rejecting a complaint against British Coal which NALOO had lodged with the Commission on 15 June 1994.

3 In that complaint Ν ALO O had essentially contested the legality, under Articles 4(d), 65 and 66(7) of the ECSC Treaty (hereinafter ‘the Treaty’), of the royalties which its members had been required to pay to British Coal from 1 January 1973 to 31 March 1990 for the operation of opencast mines belonging to British Coal.

4 At the Commission's invitation, British Coal submitted its observations on the complaint on 1 August 1994. On that occasion, British Coal called on the Commission, under Article 35 of the Treaty, to rule that it lacked jurisdiction to examine the complaint and, in the alternative, to reject that complaint on grounds of law, without any examination on the merits.

5 By letter of 3 October 1994 the Commission pointed out, essentially, that British Coal was not entitled to require the Commission to take a decision in a particular sense and that the fact that a complaint was not rejected within the period stipulated by the undertaking against which that complaint was directed was not a matter which could give rise to proceedings under Article 35 of the Treaty.

6 By application lodged at the Registry of the Court of First Instance on 10 November 1994, British Coal brought an action under Article 35 of the Treaty for the annulment of the implied decision of refusal to be inferred from the Commission's failure to reject NALOO's complaint immediately without examining whether it was well founded.

7 By order of 24 March 1997 of the President of the Third Chamber NALOO was granted leave to intervene in support of the form of order sought by the Commission.

8 By document registered on 9 June 1997 NALOO lodged its statement in intervention, on which British Coal and the Commission were invited to submit their written observations.

9 After British Coal had lodged the present request for production, the Court invited the Commission and NALOO to submit their written observations on that request.

10 By document lodged on 14 July 1997 the Commission informed the Court that in its view it should not be required to disclose to British Coal the letter which is the subject-matter of the present request, at least at the present stage.

11 By letter of 21 July 1997 NALOO informed the Court that it had no objection to the letter in question being disclosed to British Coal.

12 In support of its request for production British Coal submits, first, that, in so far as it defines a provisional position as to whether to act on or reject NALOO's complaint and sets out the reasons for such a position, the Commission's letter is highly relevant to British Coal's pleadings in its action.

13 Second, for the purpose of drafting its observations on NALOO's statement in intervention it is essential that British Coal should be apprised of the Commission's latest position, so that it may be able to deal with it in its pleadings and inform the Court of the present status of the complaint.

14 Third, the principle of equality of arms requires that the letter should be disclosed to British Coal. If this is not done, British Coal and the Commission might well submit observations on different bases and it is to be expected that the Commission will deal with this letter in its observations. Furthermore, as the Commission has changed its position in these proceedings a number of times, British Coal may, unless shown the letter in question, expend effort in addressing a position which the Commission no longer maintains.

15 Fourth, British Coal considers that the letter in question, like a letter dating from 1995 in which the Commission also envisaged rejecting NALOO's complaint, supports its view that the Commission could and should have rejected NALOO's complaint in limine. If the Commission is permitted not to disclose the letter which is the subject-matter of the present request for production, British Coal would be deprived of a final opportunity to submit written observations on that letter.

16 Fifth and finally, British Coal notes that the Commission will in any event have to produce that letter in the present proceedings and it submits that there is no good reason for which it should not be produced immediately.

17 The Commission argues that it should not be ordered to disclose the letter to British Coal inasmuch as that document does not feature among the ‘documents relating to the case’ before the Court, within the meaning of Article 23 of the ECSC Statute. The purpose of that provision, it claims, is to allow the Community judicature to see documents relating to the act or omission which is the subject-matter of the dispute, that is to say only those documents existing at the time of the contested act or omission.

18 The Commission goes on to state that the faculty available to British Coal of replying to NALOO's statement in intervention extends not to examining the letter in question but to presenting observations on the statement in intervention, the subject-matter of which is defined by that of the dispute. If the Commission were to reject NALOO's complaint, British Coal would be informed and would be able to put forward its arguments at that stage. In such a situation, however, British Coal would no longer have an interest in doing so, since it would then have obtained precisely that result which the present action seeks to bring about.

19 The very fact that British Coal will learn of the Commission's final position, whatever that may be, is not, the Commission contends, a reason for disclosing at this stage a letter written to a third party, where it may not be presumed at present that it will lead to a final decision rejecting the complaint. It is for the complainant alone to seek to influence the decision to be taken if the Commission's initial intention is to reject the complaint.

20 Finally, British Coal knows what NALOO's position is, and knows its own arguments and even those of the undertakings whose applications to intervene were dismissed. In the Commission's view, British Coal is therefore very well placed to submit its observations on the issue raised. The fact that British Coal apparently wishes to use the letter in question in order to submit observations on issues which are not before the Court is a good reason not to disclose that letter to it.

21 The Court points out in limine that, under Article 23 of the ECSC Statute, where proceedings are instituted against a decision of one of the institutions of the Community, that institution is required to transmit to the Court all the documents relating to the case before the Court.

22 Furthermore, Article 64(3)(d) of the Rules of Procedure provides, among the measures of organization of procedure, for the production of documents or any papers relating to a case.

23 Finally, Article 65(b) of the Rules of Procedure refers to production of documents as one of the measures of inquiry which the Court may order.

24 It need merely be stated, however, that the letter which British Coal seeks to have produced in this case cannot be regarded as a paper or document within the meaning of the aforementioned provisions, which cover only documents that are relevant to the actual subject-matter of the dispute.

25 British Coal is in this case contesting the legality solely of the implied refusal by the Commission of its request to reject NALOO's complaint from the outset without first examining whether it is well founded.

26 As is clear from its observations set out above, the Commission envisages adopting a final decision on NALOO's complaint only after having first undertaken an examination of that complaint, of which examination the letter at issue constitutes but one stage. Consequently, the legality of such an express decision rejecting the complaint is, by its nature, necessarily distinct from that of the implied decision of rejection already taken and cannot therefore form part of the subject-matter of the present dispute.

27 It follows that British Coal has in no way demonstrated the relevance, for the purposes of the present dispute, of the letter which it has sought to have produced.

28 It follows that the request submitted by British Coal must be rejected.

On those grounds, THE COURT OF FIRST INSTANCE (Third Chamber) hereby orders:

1. The applicant's request for production of the Commission's letter inviting NALOO to submit its observations on a possible decision rejecting its complaint is dismissed.

2. Costs are reserved.

Luxembourg, 18 November 1997. H. Jung Registrar V. Tiili President

( *1 ) Language of the case: English.