Judgment of the Court (Fifth Chamber) of 2 October 2003 in Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and C-180/01 P: International Power plc, British Coal Corporation, PowerGen (UK) plc, Commission of the European Communities v National Association of Licensed Opencast Operators (NALOO) (Appeal — ECSC Treaty — Rejection of a complaint alleging discriminatory pricing and unreasonable royalties — Powers of the Commission)
Date: 2003-11-15
Institutions: Court of Justice
Subjects: European Commission, action for annulment (EU), coal industry, complaint to the Commission, discriminatory price, electrical energy

15.11.2003

EN

Official Journal of the European Union

C 275/11

1.

2.

It is contrary to Article 2 of the Eleventh Council Directive
89/666/EEC of 21 December 1989 concerning disclosure
requirements in respect of branches opened in a Member State
by certain types of company governed by the law of another
State for national legislation such as the Wet op de Formeel
Buitenlandse Vennootschappen (Law on Formally Foreign
Companies) of 17 December 1997 to impose on the branch of
a company formed in accordance with the laws of another
Member State disclosure obligations not provided for by that
directive.

It is contrary to Articles 43 EC and 48 EC for national
the Wet op de Formeel Buitenlandse
legislation such as
Vennootschappen to impose on the exercise of
freedom of
secondary establishment in that State by a company formed in
accordance with the law of another Member State certain
conditions provided for in domestic company law in respect of
company formation relating to minimum capital and directors’
liability. The reasons for which the company was formed in that
other State, and the fact that it carries on its activities exclusively
or almost exclusively in the Member State of establishment, do
not deprive it of the right to invoke the freedom of establishment
guaranteed by the Treaty, save where the existence of an abuse
is established on a case-by-case basis.

(1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

(Fifth Chamber)

of 2 October 2003

in Joined Cases C-172/01 P, C-175/01 P, C-176/01 P
and C-180/01 P: International Power plc, British Coal
Corporation, PowerGen (UK) plc, Commission of the
European Communities v National Association of
Licensed Opencast Operators (NALOO) (1)

(Appeal — ECSC Treaty — Rejection of a complaint alleging
discriminatory pricing and unreasonable royalties — Powers
of the Commission)

(2003/C 275/18)

(Language of the case: English)

In Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and
C-180/01 P, International Power plc, formerly National Power

Instance of

plc, established in London (United Kingdom) (represented by
D. Anderson, QC, and M. Chamberlain, barrister, instructed by
S. Ramsay, solicitor), British Coal Corporation, established in
London (represented by D. Vaughan and D. Lloyd Jones, QC,
instructed by C. Mehta, solicitor), PowerGen (UK) plc, formerly
PowerGen plc, established in London (K.P.E. Lasok, QC,
instructed by P. Lomas, solicitor) and Commission of the
European Communities (Agent: A. Whelan, assisted by
J.E. Flynn, barrister): Appeals against the judgment of the Court
of First
the European Communities (Second
Chamber) of 7 February 2001 in Case T-89/98 NALOO v
Commission [2001] ECR II-515, seeking to have that judgment
set aside, the other party to the proceedings being: National
Association of Licensed Opencast Operators (NALOO), estab-
lished in Newcastle upon Tyne (United Kingdom) represented
by M. Hoskins, barrister, instructed by A. Dowie, solicitor,
with an address for service in Luxembourg, the Court (Fifth
Chamber), composed of: M. Wathelet, President of the Chamb-
er, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and
A. Rosas,
Judges; S. Alber, Advocate General; L. Hewlett,
Principal Administrator, for the Registrar, has given a judgment
on 2 October 2003, in which it:

1.

Sets aside the judgment of
the Court of First Instance of
7 February 2001 in Case T-89/98 NALOO v Commission in
so far as it annuls:

— the part of Decision IV/E-3/NALOO of 27 April 1998
in which the Commission of the European Communities
the ECSC Treaty was not
held that Article 65 of
applicable to the setting of royalties for coal extraction;

— the part of that decision in which the Commission of the
European Communities rejected the complaint relating to
the level of the royalties charged for coal extraction before
1 April 1990.

2.

For the rest, dismisses the appeals.

3. Dismisses the application of

the National Association of

Licensed Opencast Operators (NALOO) in so far as it seeks:

— annulment of the part of Decision IV/E-3/NALOO in
which the Commission of the European Communities held
that Article 65 of the ECSC Treaty was not applicable to
the setting of royalties for coal extraction.

— annulment of the part of that decision in which the
Commission of the European Communities rejected the
complaint relating to the level of the royalties charged for
coal extraction before 1 April 1990.

C 275/12

EN

Official Journal of the European Union

15.11.2003

4.

5.

6.

In Case C-172/01 P, orders International Power plc to pay its
own costs in the proceedings before the Court of
Justice
and those incurred by NALOO in these proceedings. The
Commission of the European Communities is to pay its own
costs.

In Case C-175/01 P, orders NALOO to pay its own costs in
the proceedings before the Court of Justice and those incurred by
British Coal Corporation and the Commission of the European
Communities in these proceedings.

In Case C-176/01 P, orders PowerGen (UK) plc to pay its own
costs in the proceedings before the Court of Justice and those
incurred by NALOO in these proceedings. The Commission of
the European Communities is to pay its own costs.

7.

In Case C-180/01 P, orders each party to pay its own costs in
the proceedings before the Court of Justice.

8. Orders the Commission of the European Communities and
NALOO each to pay their own costs in the proceedings before
the Court of First Instance. International Power plc, British
Coal Corporation and PowerGen (UK) plc are each to pay their
own costs as interveners in the proceedings before the Court of
First Instance.

(1) OJ C 200 of 14.07.2001.

marketed in Denmark only if it is shown that such enrichment
with nutrients meets a need in the Danish population, the
Kingdom of Denmark has failed to fulfil its obligations under
Article 28 EC,
J.-P. Puissochet,
the Court, composed of:
President of the Sixth Chamber, acting for the President,
M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presi-
dents of Chambers), C. Gulmann, A. La Pergola, F. Macken
(Rapporteur), N. Colneric, S. von Bahr, J.N. Cunha Rodrigues
and A. Rosas, Judges; J. Mischo, Advocate General; H. von
Holstein, Deputy Registrar, has given a judgment on 23 Sep-
tember 2003, in which it:

1. Declares that by applying an administrative practice which
entails that enriched foodstuffs lawfully produced or marketed
in other Member States can be marketed in Denmark only if it
is shown that such enrichment with nutrients meets a need in
the Danish population, the Kingdom of Denmark has failed to
fulfil its obligations under Article 28 EC.

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

(1) OJ C 200 of 14.7.2001.

JUDGMENT OF THE COURT

of 23 September 2003

JUDGMENT OF THE COURT

(Sixth Chamber)

of 11 September 2003

in Case C-192/01: Commission of the European Communi-
ties v Kingdom of Denmark (1)

in Case C-201/01 (Reference for a preliminary ruling from
the Oberster Gerichtshof): Maria Walcher v Bundesamt
für Soziales und Behindertenwesen Steiermark (1)

(Failure of a Member State to fulfil obligations — Articles 28
EC and 30 EC — Prohibition on marketing of foodstuffs to
which vitamins and minerals have been added — Justifi-
cation — Public health — Nutritional need)

(Protection of workers — Insolvency of the employer —
Scope of Directive 80/987/EEC — National case-law on
shareholder loans in lieu of capital contributions — Total
loss of entitlement)

(2003/C 275/19)

(Language of the case: Danish)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

(2003/C 275/20)

(Language of the case: German)

(Provisional translation; the definitive translation will be published
in the European Court Reports)

In Case C-192/01, Commission of the European Communities
(Agent: H. C. Støvlbæk) v Kingdom of Denmark (Agent:
J. Molde): Application for a declaration that, by applying an
administrative practice which entails that enriched foodstuffs
lawfully produced or marketed in other Member States may be

In Case C-201/01: Reference to the Court under Article 234
EC by the Oberster Gerichtshof (Austria) for a preliminary
ruling in the proceedings pending before that court between