Judgment of the Court of 20 September 2001 in Case C-390/98 (reference for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division)): H.J. Banks & Co. Ltd v The Coal Authority, Secretary of State for Trade and Industry (ECSC Treaty — Licences to extract raw coal — Discrimination between producers — Special charges — State aid — Article 4(b) and (c) of the Treaty — Decision No 3632/93/ECSC — Code on aid to the coal industry — Direct effect — Respective powers of the Commission and the national courts)
Date: 2002-01-19
Institutions: Court of Justice
Subjects: corporation tax, economic discrimination, interpretation of the law, jurisdiction, mining production, production aid

C 17/2

EN

Official Journal of the European Communities

19.1.2002

supported by Kingdom of Spain (Agent: N. Dı´az Abad), French
Republic (Agents: K. Rispal-Bellanger and C. Chavance), Italian
Republic (Agents: U. Leanza, assisted by F. Quadri) and the
Commission of the European Communities (Agents P.J. Kuijper
and T. van Rijn) — application for the annulment of Council
Regulation (EC) No 1036/97 of 2 June 1997 introducing
safeguard measures in respect of imports of rice originating in
the overseas countries and territories (OJ 1997 L 151, p. 8) —
the Court, composed of: G.C. Rodrı´guez Iglesias, President,
P. Jann, F. Macken (Rapporteur) (Presidents of Chambers),
C. Gulmann, D.A.O. Edward, A. La Pergola, J.P. Puissochet,
L. Sevo´ n, M. Wathelet, R. Schintgen and V. Skouris, Judges;
P. Léger, Advocate General; H. von Holstein, Deputy Registrar,
for the Registrar, has given a judgment on 22 November 2001,
in which it:

1. Dismisses the action as unfounded.

2. Orders the Kingdom of the Netherlands to pay the costs.

3. Orders the Kingdom of Spain, the French Republic, the Italian
Republic and the Commission of the European Communities to
bear their own costs.

(1) OJ C 318 of 18.10.1997.

of

and

ECSC

Treaty

(Civil Division) (United Kingdom), for a preliminary ruling in
the proceedings pending before that court between H.J. Banks
& Co. Ltd v The Coal Authority, Secretary of State for Trade
and Industry — on the interpretation of Article 4(b) and (c) of
the
Commission Decision
No 3632/93/ECSC of 28 December 1993 establishing Com-
munity rules for State aid to the coal industry (OJ 1993 L 329,
p. 12) — the Court, composed of: G.C. Rodriguez Iglesias,
President, C. Gulmann, A. La Pergola, M. Wathelet and
V. Skouris
(Presidents of Chambers), D.A.O. Edward,
J.-P. Puissochet (Rapporteur), P. Jann, L. Sevo´ n, R. Schintgen
and F. Macken, Judges; N. Fennelly, Advocate General; L. Hew-
lett, Administrator, for the Registrar, has given a judgment on
20 September 2001, in which it has ruled:

1. A situation such as that at issue in the main proceedings from
the restructuring date until the transfer to the successful private
tendering undertakings of
the shares of the Crown-owned
companies which succeeded British Coal Corporation as operator
implies the existence of aid, within the meaning of Article 4(c)
of the ECSC Treaty, but not of special charges within the
meaning of that provision. The same situation may constitute
discrimination between producers, within the meaning of
Article 4(b) of the same Treaty. That would be the case if
significant objective differences in situation between, on the one
hand, British Coal Corporation and the Crown companies
which succeeded it as operator, and, on the other hand, the
other operators, did not justify the differentiated treatment
applied to the two categories of producers.

JUDGMENT OF THE COURT

of 20 September 2001

in Case C-390/98 (reference for a preliminary ruling from
the Court of Appeal (England & Wales) (Civil Division)):
H.J. Banks & Co. Ltd v The Coal Authority, Secretary of
State for Trade and Industry (1)

A situation such as that at issue in the main proceedings, as
from the time of the transfer of the shares of the Crown-owned
companies which succeeded British Coal Corporation as operator
to the successful private tendering undertakings, does not reveal
the existence of aid or special charges within the meaning of
Article 4(c) of the Treaty, or discrimination between producers,
within the meaning of Article 4(b) of the Treaty, since access to
the various means of acquiring the lease and licence rights was
not, and is not, discriminatory.

(ECSC Treaty — Licences to extract raw coal — Discrimi-
nation between producers — Special charges — State aid —
Article 4(b)
the Treaty — Decision
No 3632/93/ECSC — Code on aid to the coal industry —
Direct effect — Respective powers of the Commission and
the national courts)

and

(c)

of

(2002/C 17/03)

(Language of the case: English)

In Case C-390/98: reference to the Court under Article 41 of
the ECSC Treaty from the Court of Appeal (England & Wales)

2. Article 4(b) of the Treaty, in so far as it concerns discrimination
between producers, and the first sentence of Article 9(4) of
Commission Decision No 3632/93/ECSC of 28 December
1993 establishing Community rules for State aid to the coal
industry directly confer rights upon individuals which the
national courts must protect. On the other hand, Article 4(c) of
the Treaty, in so far as it concerns the compatibility of aid with
the common market, does not itself create such rights. However,
the national courts have jurisdiction to interpret the concept of
aid for the purposes of Article 4(c) of the Treaty and Article 1
of Decision No 3632/93, with a view to drawing the
consequences from any infringement of the first sentence of
Article 9(4) of that decision.

19.1.2002

EN

Official Journal of the European Communities

C 17/3

In a situation such as that in the main proceedings, the finding
of the existence of unlawful aid, on the ground that it was not
authorised by the Commission at the time when it was granted,
and, as the case may be, of discrimination between producers
within the meaning of Article 4(b) of the Treaty, in that some
producers were subject to the payment of royalties whereas
others were exempt, cannot lead to producers who have been
made subject to those royalties being retrospectively exonerated
from them.

3. A national court is entitled to make a finding of the existence
of discrimination between producers, within the meaning of
Article 4(b) of the Treaty, or of aid, within the meaning of
Article 4(c) of
the Treaty and Article 1 of Decision
No 3632/93, by reason of the royalty system at issue in the
main proceedings, and it may do so despite the adoption by the
Commission

— of Decision 94/995/ECSC of 3 November 1994 ruling
on financial measures by the United Kingdom in respect
of the coal
industry in the 1994/95 and 1995/96
financial years,

— of the Decision of 21 December 1994 authorising the
acquisition of Central and Northern Mining Ltd by RJB
Mining (UK) plc, and

— of the decisions contained in the letters of 4 May and
14 July 1995 sent
to the National Association of
Licensed Opencast Operators in reply to the complaint by
that association of 19 August 1994.

4.

The fact that H.J. Banks & Co. Ltd or the National Association
of Licensed Opencast Operators

— did not bring an action for annulment under Article 33
of
the
the ECSC Treaty against Decision 94/995,
Decision of 21 December 1994 authorising the acqui-
sition of Central and Northern Mining Ltd by RJB
Mining (UK) plc or the decisions contained in the letters
of 4 May and 14 July 1995 sent to the National
Association of Licensed Opencast Operators,

— did not bring an action under Article 35 of the ECSC
Treaty to compel the Commission to adopt a position on
alleged infringements of Article 4(b) of the Treaty, in so
far as it concerns discrimination between producers, or of
the first sentence of Article 9(4) of Decision No 3632/93,

does not preclude H.J. Banks & Co. Ltd. from pleading those
infringements before the national courts.

(1) OJ C 20 of 23.1.1999.

JUDGMENT OF THE COURT

of 27 September 2001

in Case C-63/99 (reference for a preliminary ruling from
the High Court of Justice of England and Wales, Queen’s
Bench Division (Crown Office)): The Queen v Secretary
of State for the Home Department, ex parte: Wieslaw
Gloszczuk and Elzbieta Gloszczuk (1)

(External relations — Association Agreement between the
Communities and Poland — Freedom of establishment —
Leave to enter obtained fraudulently)

(2002/C 17/04)

(Language of the case: English)

In Case C-63/99: reference to the Court under Article 234 EC
from the High Court of Justice of England and Wales, Queen’s
Bench Division (Crown Office), for a preliminary ruling in the
proceedings pending before that court between The Queen
and Secretary of State for the Home Department, ex parte:
Wieslaw Gloszczuk et Elzbieta Gloszczuk — on the interpret-
the Europe Agreement
ation of Articles 44 and 58 of
establishing an association between the European Communi-
ties and their Member States, of the one part, and the Republic
of Poland, of the other part, concluded and approved on behalf
of the Community by Decision 93/743/Euratom, ECSC, EC of
the Council and the Commission of 13 December 1993 (OJ
1993 L 348, p. 1) — the Court, composed of: G.C. Rodrı´guez
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),
M. Wathelet and V. Skouris
(Presidents of Chambers),
D.A.O. Edward, J.- P. Puissochet, P. Jann, L. Sevo´ n, R. Schintgen
and F. Macken, Judges; S. Alber, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 27 Sep-
tember 2001, the operative part of which is as follows:

1. Article 44(3) of the Europe Agreement establishing an associ-
ation between the European Communities and their Member
States, of the one part, and the Republic of Poland, of the other
part, concluded and approved on behalf of the Community by
Decision 93/743/Euratom, ECSC, EC of the Council and the
Commission of 13 December 1993 is to be construed as
establishing, within the scope of application of that Agreement,
a precise and unconditional principle which is sufficiently
operational to be applied by a national court and which is
therefore capable of governing the legal position of individuals.