CELEX: C2002/017/03
Language: en
Date: 2002-01-19 00:00:00
Title: 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)

C 17/2                  EN                     Official Journal of the European Communities                                             19.1.2002
supported by Kingdom of Spain (Agent: N. Dı́az Abad), French              (Civil Division) (United Kingdom), for a preliminary ruling in
Republic (Agents: K. Rispal-Bellanger and C. Chavance), Italian           the proceedings pending before that court between H.J. Banks
Republic (Agents: U. Leanza, assisted by F. Quadri) and the               & Co. Ltd v The Coal Authority, Secretary of State for Trade
Commission of the European Communities (Agents P.J. Kuijper               and Industry — on the interpretation of Article 4(b) and (c) of
and T. van Rijn) — application for the annulment of Council               the ECSC Treaty and of Commission Decision
Regulation (EC) No 1036/97 of 2 June 1997 introducing                     No 3632/93/ECSC of 28 December 1993 establishing Com-
safeguard measures in respect of imports of rice originating in           munity rules for State aid to the coal industry (OJ 1993 L 329,
the overseas countries and territories (OJ 1997 L 151, p. 8) —            p. 12) — the Court, composed of: G.C. Rodriguez Iglesias,
the Court, composed of: G.C. Rodrı́guez Iglesias, President,              President, C. Gulmann, A. La Pergola, M. Wathelet and
P. Jann, F. Macken (Rapporteur) (Presidents of Chambers),                 V. Skouris (Presidents of Chambers), D.A.O. Edward,
C. Gulmann, D.A.O. Edward, A. La Pergola, J.P. Puissochet,                J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen
L. Sevón, M. Wathelet, R. Schintgen and V. Skouris, Judges;              and F. Macken, Judges; N. Fennelly, Advocate General; L. Hew-
P. Léger, Advocate General; H. von Holstein, Deputy Registrar,            lett, Administrator, for the Registrar, has given a judgment on
for the Registrar, has given a judgment on 22 November 2001,              20 September 2001, in which it has ruled:
in which it:
1.    Dismisses the action as unfounded.
2.    Orders the Kingdom of the Netherlands to pay the costs.
                                                                          1.    A situation such as that at issue in the main proceedings from
                                                                                the restructuring date until the transfer to the successful private
3.    Orders the Kingdom of Spain, the French Republic, the Italian             tendering undertakings of the shares of the Crown-owned
      Republic and the Commission of the European Communities to                companies which succeeded British Coal Corporation as operator
      bear their own costs.                                                     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
(1) OJ C 318 of 18.10.1997.                                                     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
                                                                                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
                      of 20 September 2001                                      companies which succeeded British Coal Corporation as operator
                                                                                to the successful private tendering undertakings, does not reveal
in Case C-390/98 (reference for a preliminary ruling from                       the existence of aid or special charges within the meaning of
the Court of Appeal (England & Wales) (Civil Division)):                        Article 4(c) of the Treaty, or discrimination between producers,
H.J. Banks & Co. Ltd v The Coal Authority, Secretary of                         within the meaning of Article 4(b) of the Treaty, since access to
                 State for Trade and Industry (1)                               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) 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                   2.    Article 4(b) of the Treaty, in so far as it concerns discrimination
                        the national courts)                                    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
                          (2002/C 17/03)                                        industry directly confer rights upon individuals which the
                                                                                national courts must protect. On the other hand, Article 4(c) of
                    (Language of the case: English)                             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
In Case C-390/98: reference to the Court under Article 41 of                    consequences from any infringement of the first sentence of
the ECSC Treaty from the Court of Appeal (England & Wales)                      Article 9(4) of that decision.
 ---pagebreak--- 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                          JUDGMENT OF THE COURT
     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                                of 27 September 2001
     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.                                                              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
3.   A national court is entitled to make a finding of the existence         of State for the Home Department, ex parte: Wieslaw
     of discrimination between producers, within the meaning of                           Gloszczuk and Elzbieta Gloszczuk (1)
     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          (External relations — Association Agreement between the
     Commission                                                              Communities and Poland — Freedom of establishment —
                                                                                           Leave to enter obtained fraudulently)
     —     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                                              (2002/C 17/04)
           financial years,
     —     of the Decision of 21 December 1994 authorising the
                                                                                                 (Language of the case: English)
           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.                               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
4.   The fact that H.J. Banks & Co. Ltd or the National Association          proceedings pending before that court between The Queen
     of Licensed Opencast Operators                                          and Secretary of State for the Home Department, ex parte:
                                                                             Wieslaw Gloszczuk et Elzbieta Gloszczuk — on the interpret-
                                                                             ation of Articles 44 and 58 of the Europe Agreement
     —     did not bring an action for annulment under Article 33            establishing an association between the European Communi-
           of the ECSC Treaty against Decision 94/995, the                   ties and their Member States, of the one part, and the Republic
           Decision of 21 December 1994 authorising the acqui-               of Poland, of the other part, concluded and approved on behalf
           sition of Central and Northern Mining Ltd by RJB                  of the Community by Decision 93/743/Euratom, ECSC, EC of
           Mining (UK) plc or the decisions contained in the letters         the Council and the Commission of 13 December 1993 (OJ
           of 4 May and 14 July 1995 sent to the National                    1993 L 348, p. 1) — the Court, composed of: G.C. Rodrı́guez
           Association of Licensed Opencast Operators,                       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. Sevón, R. Schintgen
     —     did not bring an action under Article 35 of the ECSC              and F. Macken, Judges; S. Alber, Advocate General; H. von
           Treaty to compel the Commission to adopt a position on            Holstein, Deputy Registrar, has given a judgment on 27 Sep-
           alleged infringements of Article 4(b) of the Treaty, in so        tember 2001, the operative part of which is as follows:
           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             1.    Article 44(3) of the Europe Agreement establishing an associ-
     infringements before the national courts.                                     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
(1) OJ C 20 of 23.1.1999.                                                          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.