Case C-170/01 P: Appeal brought on 19 April 2001 by Compañía Internacional de Pesca y Derivados SA (INPESCA) against the judgment delivered on 7 February 2001 by the Court of First Instance of the European Communities (Second Chamber) in Case T-186/98 between Compañía Internacional de Pesca y Derivados SA (INPESCA) and the Commission of the European Communities
Date: 2001-07-14
Institutions: Court of Justice
Subjects: General Court (EU), action for annulment (EU), aid to undertakings, aquaculture, fishing industry, infringement of EU law

14.7.2001

EN

Official Journal of the European Communities

C 200/41

2. Are the provisions of Article 9 of the Staff Regulations
of the European Communities (Article 2 of Council
Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-
ary 1968) and those contained in Annex II to the Staff
Regulations concerning the Staff Committee, which also
represents the interests of local staff of the Communities,
to be interpreted as laying down exhaustive rules on
collective employment law and the powers of co-decision
of local staff and thus as precluding the application of the
law on labour relations in the workplace laid down in the
Austrian Labour Constitution Act to local staff serving in
the Vienna representation of the Commission of the
European Communities?

(1) OJ 1968, L 56, p. 1.

Reference for a preliminary ruling by the Kantongerecht
te Amsterdam by order of 5 February 2001 in the case of
Kamer van Koophandel en Fabrieken voor Amsterdam
and Inspire Art Ltd

(Case C-167/01)

(2001/C 200/75)

Reference has been made to the Court of Justice of the
European Communities by order of 5 February 2001 by the
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel
en Fabrieken voor Amsterdam and Inspire Art Ltd on the
following questions:

1.

Is (the new) Article 43 in conjunction with Article 48 of
the Treaty establishing the European Community to be
interpreted as precluding the Netherlands, pursuant to
the Wet op de formeel buitenlandse vennootschappen of
17 December 1997, from attaching additional conditions,
such as those laid down in Articles 2 to 5 of that law, to
the establishment in the Netherlands of a branch of a
company which has been set up in the United Kingdom
with the sole aim of securing the advantages which that
offers compared to incorporation under Netherlands law,
given that Netherlands law imposes stricter rules than
those applying in the United Kingdom with regard to the
setting-up of companies and payment for shares, and
given that the Netherlands law infers that aim from the
fact that the company carries on its activities entirely or
almost entirely in the Netherlands and, furthermore, does
not have any real connection with the State in which the
law under which it was formed applies?

2.

If, on a proper construction of those articles of the Treaty,
it is held that the provisions of the Wet op de formeel
buitenlandse vennootschappen are incompatible with
them, must Article 46 of the Treaty be interpreted as

meaning that the said Articles 43 and 48 do not affect
the applicability of the Netherlands rules laid down in
that law, on the ground that the provisions in question
are justified for the reasons stated by the Netherlands
legislature?

Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by decision of 11 April 2001 in the case of
Bosal Holding BV and Staatssecretaris van Financiën

(Case C-168/01)

(2001/C 200/76)

Reference has been made to the Court of Justice of the
European Communities by decision of 11 April 2001 by
the Hoge Raad der Nederlanden (Supreme Court of
the
Netherlands), which was received at the Court Registry on
19 April 2001, for a preliminary ruling in the case of Bosal
Holding BV and Staatssecretaris van Financiën on the following
questions:

1. Does Article 52 of the EC Treaty, read in conjunction
with Article 58 thereof (now, following amendment,
Article 43 EC, read in conjunction with Article 48
thereof), or any other rule of EC law, preclude a Member
State from granting a parent company subject to tax in
that Member State a deduction on costs relating to a
holding owned by it only if the relevant subsidiary
company makes profits which are subject to tax in
the Member State in which the parent company is
established?

2. Does it make any difference to the answer to Question 1
if, where the subsidiary company is subject to tax based
on its profits in the Member State concerned but the
parent company is not, the relevant Member State takes
no account of the abovementioned costs in levying tax
on the subsidiary company?

Appeal brought on 19 April 2001 by Compan˜ ı´a Interna-
cional de Pesca y Derivados SA (INPESCA) against the
judgment delivered on 7 February 2001 by the Court of
First Instance of the European Communities (Second
Chamber) in Case T-186/98 between Compan˜ ı´a Interna-
cional de Pesca y Derivados SA (INPESCA) and the
Commission of the European Communities

(Case C-170/01 P)

(2001/C 200/77)

An appeal against the judgment delivered on 7 February 2001
by the Court of First Instance of the European Communities

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.