Case C-176/01 P: Appeal brought on 23 April 2001 by PowerGen (UK) plc (formerly PowerGen 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, 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 200/44

EN

Official Journal of the European Communities

14.7.2001

Appeal brought on 23 April 2001 by PowerGen (UK) plc
(formerly PowerGen 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 Cor-
poration, International Power plc (formerly National
Power plc) and PowerGen (UK) plc (formerly PowerGen
plc)

(Case C-176/01 P)

(2001/C 200/80)

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 PowerGen (UK)
plc (formerly PowerGen plc), having its registered in London,
represented by K.P.E. Lasok QC, and P. Lomas, solicitor.

The Appellant claims that the Court should:

b)

in other proceedings
[T-57/91, NALOO v. Com-
mission (2)], the Court of First Instance has taken the view
that the Supplemental Complaint was a fresh complaint
and it follows that the force of res judicata precluded the
Court of First Instance from concluding in the present
proceedings that the Supplemental Complaint constituted
a part of the single complaint that was at issue in case
T-57/91;

c)

the Commission could not have dealt with the Sup-
plemental Complaint otherwise than on the basis that it
was a fresh complaint.

The Court of First Instance also erred in finding that the
Supplemental Complaint referred to existing infringements.

M i s i n t e r p r e t a t i o n o f A r t i c l e 6 3 ( 1 ) o f
E C S C T r e a t y

t h e

PowerGen submits that the Court of First Instance erred in the
following respects:

— in holding that the question of the Commission’s power
to adopt legal measures other than recommendations
was irrelevant;

set aside the judgment of the Court of First Instance in
case T-89/98, NALOO v. Commission, to the extent that
it concerns the application of Article 63(1) of the ECSC
Treaty;

— in reaching the conclusion that the Commission had
power to investigate the Supplemental Complaint, with-
out considering whether or not any legal measures could
result from such an investigation;

to that extent dismiss NALOO’s application for the
annulment of the decision of the Commission dated
27 April 1998 in case IV/E-3/NALOO; and

(c)

order the Commission and NALOO to pay PowerGen’s
costs.

— in implying that it is possible that the Commission has a
power to adopt a decision or make a ‘finding’, not
contained in any recommendation, that is capable of
generating a right of action in damages in respect of
systematic discrimination that is alleged to have taken
place in the past; no such power is conferred by
Article 63(1).

(a)

(b)

Pleas in law and main arguments

L e g a l C e r t a i n t y

T h e ‘ s i n g l e o b j e c t ’ o f N A L O O ’ s C o m p l a i n t

The Court of First Instance held that ‘the infringements alleged
by NALOO for the years 1986/1987 to 1989/1990’ had been
the subject of ‘a single complaint’ received by the Commission
in 1990,
‘being merely an
expansion of that of 1990’. The Appellant submits that the
Court of First Instance has erred in law because:

the Supplemental Complaint

a)

the Supplemental Complaint and the 1990 Complaint
did not constitute ‘a single complaint’;

The Appellant puts forward the following grounds in support
of its submission that the Court of First Instance has erred:

— the Court of First Instance seems to have construed the
principle of legal certainty as operating solely as between
the Commission and NALOO;

— the fact that the original complaint referred to the pre-
1 April 1990 period supports, instead of undermines, the
argument that the 1998 Decision was justified on the
ground of legal certainty;

14.7.2001

EN

Official Journal of the European Communities

C 200/45

— the suggestion that it was permissible for NALOO to
supplement its 1990 complaint because it could not have
challenged the May 1991 Decision is incorrect and, even
if it was permissible for NALOO to act in that way, it was
not permissible for NALOO to wait three years before
submitting the Supplemental Complaint;

— the Court of First Instance’s conclusion that the 1998
Decision did not merely confirm a decision that had
already been made is misconceived and wrong so far as
the Article 63 (1) aspect of the Supplemental Complaint
is concerned;

— the fact that the pre-1 April 1990 situation had been
regarded as closed by the Commission and NALOO on
the basis of a mistake as to the juridiction of domestic
courts is irrelevant;

— NALOO’s claim, and the Court of First Instance’s apparent
acceptance of it, blatantly offend the principles of legal
certainty and non-retrospectivity because its case is that
conduct that was not, at the time of its commission, in
breach of any legal prohibition or right that the members
of NALOO could at that time invoke before a national
court, can at any time in the future (and after the conduct
has ceased) produce for the benefit of the members of
NALOO a right to claim damages.

T h e C o m m i s s i o n ’ s o b l i g a t i o n t o i n v e s t i g a t e
N A L O O ’ s c o m p l a i n t

Since NALOO’s Supplemental Complaint did not seek, and
was not directed at seeking, the adoption of a recommendation
under Article 63(1), the Commission lay under no obligation
to investigate it and the Court of First Instance erred in holding
otherwise.

T h e a l l e g e d f a i l u r e o f
t a k e i n t o a c c o u n t t h e a v a i l a b l e e v i d e n c e

t h e C o m m i s s i o n t o

The reasons on which the Article 63(1) aspect of the 1998
Decision was based were set out in that decision. Those
reasons did not refer to the facts or the evidence because they
were not relevant to the basis on which the Commission made
its decision. A decision cannot be annulled on the ground that
it fails to state the reasons on which it was not based and it
follows that the Court of First Instance erred in holding that
the 1998 Decision was vitiated by a failure to state reasons.

Reference for a preliminary ruling by the Consiglio di
Stato, sitting in its judicial capacity, by order of that court
of 13 February 2001 in the case of Impresa Binda &
C. s.p.a. against Comune di Torino, intervener: ED.ART.
s.r.l.

(Case C-179/01)

(2001/C 200/81)

Reference has been made to the Court of Justice of the
European Communities by order of the Consiglio di Stato
(Council of State), sitting in its judicial capacity, of 13 February
2001, received at the Court Registry on 24 April 2001, for a
preliminary ruling in the case of Impresa Binda & C. s.p.a.
against Comune di Torino, intervener: ED.ART. s.r.l., on the
following questions:

1.

In calls for tenders for public works contracts, do clauses
excluding undertakings which have not submitted with
their tenders explanations concerning components of the
price indicated, amounting to at least 75 % of the figure
specified in the tender conditions, represent an obstacle
to the application of Article 30(4) of Directive 93/37 (1)?

2. Does the establishment of a mechanism for automatically
identifying tenders which overstep a threshold indicative
of irregularities and whose validity should therefore be
checked, based on an ad hoc test and an arithmetical
mean, which is such that undertakings are unable to
ascertain that threshold in advance, represent an obstacle
to the application of Article 30(4) of Directive 93/37?

3. Does the fact that provision is made for a prior exchange
of views, without the undertaking which has allegedly
submitted an irregular tender having an opportunity to
state its reasons, after the opening of the envelopes and
before the adoption of the measure excluding it, represent
an obstacle to the application of Article 30(4) of Direc-
tive 93/37?

4. Does a provision under which the contracting authority
may take account of explanations relating solely to the
economy of the construction method or the technical
solutions adopted or the exceptionally favourable con-
ditions available to the tenderer represent an obstacle to
the application of Article 30(4) of Directive 93/37?

5. Does the [exclusion of] explanations relating solely to
items for which minimum values can be inferred from
official lists represent an obstacle to the application of
Article 30(4) of Directive 93/37?

(1) OJ C 234, 25.7.98, p. 36.
(2) [1996] ECR II-705.

(1) Council Directive of 14 June 1993 (OJ 1993 L 199, p. 54).