Case C-448/00 P: Appeal brought on 4 December 2000 by the Commission of the European Communities against that part of the judgment delivered on 27 September 2000 by the Second Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-184/97 between BP Chemicals Ltd and the Commission of the European Communities, supported by the French Republic, which annuls Commission Decision SG (97) D/3266 of 9 April 1997 concerning an aid scheme for biofuels in France in so far as that decision relates to measures applicable to the ethyl-tertiobutyl-ether ("ETBE") sector
Date: 2001-01-27
Institutions: Court of Justice
Subjects: France, General Court (EU), State aid, action for annulment (EU), chemical industry, substitute fuel

C 28/24

EN

Official Journal of the European Communities

27.1.2001

Reference for a preliminary ruling by the Landesgericht
Salzburg (as a commercial court) by order of 27 Novem-
ber 2000 in the application for company registration by
Holto Limited

(Case C-447/00)

(2001/C 28/46)

Reference has been made to the Court of Justice of the
European Communities by the Landesgericht Salzburg (as a
commercial court) by order of 27 November 2000, received
at the Court Registry on 4 December 2000, in the application
for company registration by Holto Limited for a preliminary
ruling on the following questions:

I.

Is the second sentence of the first paragraph of Article 43
of the EC Treaty to be interpreted as meaning that a
branch may exist even if a company does not have a
principal place of business within the meaning of Article
48 of the EC Treaty at any other place, where it carries
out at least an essential part of its business activity?

If so:

II.

If so:

Is the second sentence of the first paragraph of Article 43
of the EC Treaty to be interpreted as meaning that the
requirement of establishment is fulfilled if a company
merely has its seat as declared in its constitution in a
Member State in which it was effectively constituted and
does not carry on any business there?

III. Does the establishment of an Austrian branch of a
company that has been effectively constituted under
English law but merely has its seat as declared in its
constitution in England and does not carry on any
business there belong to the rights under the second
sentence of the first paragraph of Article 43 and by
Article 48 of the EC Treaty?

If any of Questions I, II or III are answered in the negative:

IV. Does the establishment of an Austrian branch and its
entry in the Austrian companies register (commercial
register) by a company effectively constituted under
English law which merely has its seat as declared in its
constitution in England and does not carry on any
business there belong to the rights covered by the first
sentence of the first paragraph of Article 43 and by
Article 48 of the EC Treaty?

If either Question III or Question IV is answered in the
affirmative:

V. Do Articles 43 and 48 of the EC Treaty prohibit the
application of a domestic conflict of laws rule which
determines the legal capacity of a company in accordance
with the law of the State in which the company has the
actual seat of its main administration (the seat theory),
even if, as a result, a company that has been effectively
constituted under English law but merely has its seat as
declared in its constitution in England and does not carry
on any business there is refused recognition as a legal
person and consequently refused entry in the companies
register (commercial register)?

Appeal brought on 4 December 2000 by the Commission
of the European Communities against that part of the
judgment delivered on 27 September 2000 by the Second
Chamber, Extended Composition, of
the Court of
First Instance of the European Communities in Case
T-184/97 (1) between BP Chemicals Ltd and the Com-
mission of the European Communities, supported by the
French Republic, which annuls Commission Decision SG
(97) D/3266 of 9 April 1997 (2) concerning an aid scheme
for biofuels in France in so far as that decision relates to
measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
sector

(Case C-448/00 P)

(2001/C 28/47)

An appeal against that part of the judgment delivered on
27 September 2000 by the Second Chamber, Extended
Composition, of the Court of First Instance of the European
Communities in Case T-184/97 between BP Chemicals Ltd
and the Commission of the European Communities, supported
by the French Republic, which annuls Commission Decision
SG (97) D/3266 of 9 April 1997 concerning an aid scheme
for biofuels in France in so far as that decision relates to
measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
sector, was brought before the Court of Justice of the European
Communities on 4 December 2000 by the Commission of
the European Communities, represented by Xavier Lewis, a
member of the Legal Service, acting as agent, assisted by
Nicholas Khan, Barrister, of the Inner Temple, with an address
for service in Luxembourg at the office of Carlos Go´ mez de la
Cruz, a member of the Legal Service of the Commission,
Centre Wagner.

The Appellant claims that the Court should:

1. Annul that part of the judgment of the Court of First
Instance of 27 September 2000 handed down in Case
T-184/97, BP Chemicals Ltd v Commission, which
annulled Commission Decision SG (97) D/3266 of
9 April 1997 concerning an aid scheme for biofuels in
France in so far as that decision relates to measures
applicable to the ethyl-tertiobutyl-ether (‘ETBE’) sector;

27.1.2001

EN

Official Journal of the European Communities

C 28/25

2. Dismiss

the action for annulment of Commission
Decision SG (97) D/3266 of 9 April 1997 concerning an
aid scheme for biofuels in France in so far as that decision
relates to measures applicable to the ethyl-tertiobutyl-
ether (‘ETBE’) sector as unfounded

the Decision. In particular, it submits that the Court of First
Instance erred in law by adopting an interpretation of a ‘pilot
project’ which is limited to a project at the last stage of research
and development before industrial exploitation on a larger
scale of the results of such research.

3. And, order BP Chemicals Ltd to bear the costs of the

action for annulment in Case T-184/97

The Commission considers that the Court of First Instance so
erred for two reasons:

4. Alternatively, refer the case back to the Court of First
Instance for judgment on the first, third and fourth pleas
rased by the Applicant in the action for annulment,

5. And, order BP Chemicals Ltd to pay the costs of this

appeal.

Pleas in law and main arguments

— The Court of First Instance was wrong to consider that
the Community framework for State aid for Research
and Development could provide decisive assistance in
interpreting Article 8 (2) d) of Directive 92/81, and

— The Court of First Instance failed to examine whether the
interpretation it propounded of Article 8 (2) d) was itself
plausible and failed to examine the plausibility of the
interpretation offered by the Commission in the Decision.

The Commission submits that the Court of First Instance erred
in law in finding that it had exceeded its powers by adopting

(1) OJ C 252, 16.8.1997, p. 36.
(2) Not published in the Official Journal.