Case C-172/01 P: Appeal brought on 20 April 2001 by International Power plc (formerly National Power plc) 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, National Power plc and 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 200/42

EN

Official Journal of the European Communities

14.7.2001

(Second Chamber)
in Case T-186/98 between Compan˜ ı´a
Internacional de Pesca y Derivados SA (INPESCA) and the
the European Communities was brought
Commission of
before the Court of Justice of the European Communities on
19 April 2001 by Compan˜ ı´a Internacional de Pesca y Deriva-
dos SA (INPESCA), represented by M.I. Angulo Fuertes and
M.B. Angulo Fuertes, abogadas, with an address for service in
Luxembourg at the Chambers of Arendt & Medernach, 8-109
Mathias Hardt.

The appellant claims that the Court of Justice should:

1.

set aside in its entirety the judgment delivered by the
Court of First Instance on 7 February 2001, and in its
place:

1)

2)

3)

declare that the ‘further observations’ filed by the
applicant on 21 July 1999 are inadmissible;

declare that the plea of inadmissibility raised by the
Commission pursuant to Article 114(1) of the Rules
of Procedure of
Instance is
inadmissible;

the Court of First

uphold the application made by ‘INPESCA’
for
annulment of the Commission’s decision of 16 Sep-
tember 1998 refusing to grant it the Community
(EC)
funding sought pursuant
Nos 4028/86 (1) of 18 December 1986 and
1263/1999 (2) of 21 June 1999 and the Financial
Regulation of 21 December 1977;

to Regulations

2.

3.

uphold all the claims made by the present appellant in its
application in the proceedings at first instance;

order the Commission to pay the costs since it has acted
in breach of Community law.

Pleas in law and main arguments

1263/1999

— Procedural irregularities which prejudice the rights of the
appellant. Article 58 of the Protocol on the Statute of the
Court of Justice. Since Articles 5, 7 and 8 of Regulation
No
of Regulation
1260/1999 (3) set out new facts and principles of law
applicable to the action brought, they constituted ‘new
pleas in law’ which should have been taken into account
by the Court of First Instance (Article 48(2) of the Rules
of Procedure),

and Article

52

— Breach of Community law: Article 58 of the Protocol on
the Statute of the Court of Justice. Under the ‘regulatory
framework’ applicable to the action, the Commission is
not only perfectly well able to reconsider its 1991
decision on the basis of the ‘new and fundamental facts’
relied upon by the appellant but is also obliged to do
so under Article 7(7) of the Financial Regulation of
21 December 1977 and Article 5(1) and (2) of Regulation
(EC) No 1263/1999.

(1) OJ L 376 of 31.12.1986, p. 7.
(2) OJ L 161 of 26.6.1999, p. 54.
(3) OJ L 161 of 26.6.1999, p. 1.

Appeal brought on 20 April 2001 by International Power
plc (formerly National Power plc) 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
Corporation, National Power plc and PowerGen plc

(Case C-172/01 P)

(2001/C 200/78)

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, National Power plc and PowerGen
plc, was brought before the Court of Justice of the European
Communities on 20 April 2001 by International Power plc
(formerly National Power plc), having its registered office in
London, represented by S. Ramsay, solicitor, D. Anderson QC
and M. Chamberlain, barrister.

The Appellant claims that the Court should:

(1)

(2)

set aside the judgment of the Court of First Instance of
7 February 2001 in Case T-89/98;

give final judgment dismissing NALOO’s application for
the annulment of the 1998 decision; and

(3) order NALOO and/or the Commission to pay IP’s costs
of the proceedings in Case T-89/98 and in this case.

Pleas in law and main arguments

The central error in the judgment of the CFI, so far as it
concerns IP, is the conclusion that the CFI and the Commission
had, after 1994, the power to investigate NALOO’s complaint
relating to infringements of Article 63 CS allegedly committed
during the years 1986-1990.

That conclusion is erroneous for two principal reasons, which
constitute IP’s first two pleas in law:

The 1994 complaint
in substance repeated a complaint
which the Commission had already decided, in 1991, not to
investigate. That 1991 decision was reviewable but unre-
viewed. In those circumstances, the Commission had no power
to revisit its earlier decision, and to do so would have infringed
the principle of legal certainty.

14.7.2001

EN

Official Journal of the European Communities

C 200/43

There was, in any event, no power under Article 63(1) CS
either to investigate,
in or after 1994, an allegation of
discrimination in the pre-1990 period, or to take action in
respect of it.

If either or both of those pleas in law is correct, it follows that
the 1998 decision was valid and that the judgment of the CFI
must be quashed. In the event that both those pleas in law are
rejected, IP submits, in the alternative to its first two pleas:

that even if the Commission had the power to investigate the
1994 complaint, it was under no obligation to do so; and

that the 1998 decision was in any event adequately reasoned.

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

Appeal brought on 23 April 2001 by British Coal Corpor-
ation 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 Licenced 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)

(Case C-175/01 P)

(2001/C 200/79)

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 23 April 2001 by British Coal
Corporation, having its registered office in London, represented
by D. Vaughan QC, D. Lloyd Jones QC and C. Mehta, solicitor.

The Appellant claims that the Court should:

(1)

set aside the judgment of the Court of First Instance in
Case T-89/98 dated 7 February 2001;

(2) dismiss by way of final judgment NALOO’s Application
registered with the Court of First Instance on 8 June
1998;

(3) order that NALOO and/or the Commission pay BCC’s
costs of the proceedings in Case T-89/98 and in this case.

Pleas in law and main arguments

BCC relies on the following grounds of appeal.

(1) The Court of First Instance erred in law in holding that
the 1994 Complaint was an expansion of the 1990
Complaint and that therefore the Commission must be
treated as having received a single Complaint.

(2) The Court of First Instance erred in law in holding that
NALOO had not failed to avail itself of the legal remedies
available to it to ensure protection of its rights.

(3) The Court of First Instance erred in law in holding that
an investigation of NALOO’s complaint with regard
to the years 1986/87 to 1989/1990 was in no way
incompatible with the principle of legal certainty.

(4) Whether or not the 1991 Complaint and the 1994
Complaint should be treated as a single Complaint, the
Court of First Instance erred in law in holding that the
matters complained of were existing infringements for
the purposes of Article 66(7) ECSC and that the Com-
mission was therefore empowered to act in relation to
the position pre-April 1990.

(5) The Court of First Instance erred in law in holding that
the effect of the judgment of the Court of Justice in
Hopkins was to empower the Commission to investigate
that part of NALOO’s Complaint which alleged against
BCC that it had applied unreasonable levels of royalty in
the years 1986/87 to 1989/90.

(6) The Court of First Instance erred in law in holding
that since the Commission had the power to consider
NALOO’s complaint relating to infringements alleged to
have occurred in the years 1986/87 to 1989/90, the
Commission was bound to undertake that examination.

(7) The Court of First Instance erred in law in holding that the
Commission was empowered to adopt recommendations
under Article 66(7) in respect of alleged infringements
occurring in 1986/87 to 1989/1990 and in failing to
hold that, contrary to the contention of NALOO, the
Commission had no power to take a decision under
Article 66(7) ECSC.

(8) The Court of First Instance erred in laws in failing to hold
that Article 65 ECSC has no application to the alleged
conduct of BCC in relation to the level of royalty.

(9) The Court of First Instance erred in law in holding that
the 1998 Decision was vitiated by a failure to give
reasons.

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