Case C-175/01 P: Appeal brought on 23 April 2001 by British Coal Corporation 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 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)
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

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.