Case C-180/01 P: Appeal brought on 25 April 2001 by Commission of the European Communities against the judgment delivered on 7 February 2001 by the Second Chamber of the Court of First Instance of the European Communities in case T-89/98 between National Association of Licensed Opencast Operators (NALOO) and Commission of the European Communities, supported by British Coal Corporation, International Power plc (formerly National Power plc) and PowerGen (UK) plc (formerly PowerGen plc)
Date: 2001-07-14
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), coal industry, discriminatory price, electrical energy, infringement of EU law

C 200/46

EN

Official Journal of the European Communities

14.7.2001

Appeal brought on 25 April 2001 by Commission of the
European Communities against the judgment delivered
on 7 February 2001 by the Second Chamber of the Court
of First Instance of the European Communities in case
T-89/98 (1) between National Association of Licensed
Opencast Operators (NALOO) and Commission of the
European Communities, supported by British Coal Cor-
poration, International Power plc (formerly National
Power plc) and PowerGen (UK) plc (formerly PowerGen
plc)

(Case C-180/01 P)

(2001/C 200/82)

An appeal against the judgment delivered on 7 February 2001
by the Second Chamber of the Court of First Instance of the
European Communities in case T-89/98 between National
Association of Licensed Opencast Operators (NALOO) and
Commission of the European Communities, supported by
British Coal Corporation, International Power plc (formerly
National Power plc) and PowerGen (UK) plc (formerly Power-
Gen plc), was brought before the Court of Justice of the
European Communities on 25 April 2001 by Commission of
the European Communities, represented by A. Whelan, acting
as Agent, assisted by J.E. Flynn, Barrister, with an address for
service in Luxembourg.

The Appellant claims that the Court should:

(i)

set aside the judgment;

(ii)

dismiss the application as unfounded; and

(iii) order the applicants to pay the costs.

Pleas in law and main arguments

The Commission submits that the judgment of the Court of
First Instance should be set aside for the following reasons:

1)

2)

The Court of First Instance erred in law in so far as it
held that there was any obligation on the part of the
Commission to examine or investigate the issues raised
in a complaint under the Treaty and/or by failing to
give proper reasons regarding the existence of such an
obligation.

The Court of First Instance misrepresented the Com-
mission’s position in implying that the Commission took
the view that it could only act if infringements were
current at the time a complaint was laid. Having held that
the Commission was indeed made aware of alleged
infringements current at the time the complaint was
made (on the basis that the 1990 and 1994 Complaints

regards

the argument that

Instance then held that

the alleged infringements

were to be treated as a single complaint), the Court of
First
the
infringements were already in the past when referred to
the Commission is unfounded and that the Treaty articles
therefore empower the Commission to investigate the
complaint as
in
1986/1987 to 1989/1990. In so doing the Court of First
Instance mischaracterised the Commission’s arguments.
The Court of First Instance also failed to address the
arguments that were actually put to it, by the applicant
and the interveners as well as the Commission. Moreover,
in so far as the judgment
is to be taken as first
empowering the Commission and then imposing on it
the duty to issue recommendations in respect of past
infringements that have no continuing relevance, it runs
counter to the Court’s ruling in Banks and Hopkins and
cannot stand. In the absence of such a general power, an
essential precondition for the duty to investigate identified
by the Court of First Instance disappears.

3)

4)

The Court of First Instance erred in law in characterising
the 1990 and 1994 Complaints as a single continuing
complaint in so far as they each concerned the pre-1990
situation. The Court of First Instance has also erred by
not addressing the arguments put to it by the Commission
concerning the limitations required by the principle of
legal certainty on the period in respect of which it could
be obliged to take action in respect of past infringements
if its primary arguments as to obligation, discretion and
competence failed.

In so far as the operative part of the Court of First
Instance judgment may be understood as affecting the
Commission’s decision regarding the non-applicability of
Article 65 of the ECSC Treaty in the present case, the
Commission appeals against it for lack of reasoning.

In relation to the level of royalties, the Court of First
Instance has erred in law and/or failed to give reasons for
departing fundamentally from the approach laid down in
NALOO I in holding that the Commission was obliged to
start from the position that royalties higher than the ‘not
abnormally high’ level were prima facie excessively high
and that it could not reject the complaint for lack of
relevant evidence without giving reasons for concluding
that they were not excessive.

(1) OJ C 234, 25.7.98, p. 36.