CELEX: C2003/275/18
Language: en
Date: 2003-11-15 00:00:00
Title: 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)

15.11.2003              EN                              Official Journal of the European Union                                                 C 275/11
1.   It is contrary to Article 2 of the Eleventh Council Directive              plc, established in London (United Kingdom) (represented by
     89/666/EEC of 21 December 1989 concerning disclosure                       D. Anderson, QC, and M. Chamberlain, barrister, instructed by
     requirements in respect of branches opened in a Member State               S. Ramsay, solicitor), British Coal Corporation, established in
     by certain types of company governed by the law of another                 London (represented by D. Vaughan and D. Lloyd Jones, QC,
     State for national legislation such as the Wet op de Formeel               instructed by C. Mehta, solicitor), PowerGen (UK) plc, formerly
     Buitenlandse Vennootschappen (Law on Formally Foreign                      PowerGen plc, established in London (K.P.E. Lasok, QC,
     Companies) of 17 December 1997 to impose on the branch of                  instructed by P. Lomas, solicitor) and Commission of the
     a company formed in accordance with the laws of another                    European Communities (Agent: A. Whelan, assisted by
     Member State disclosure obligations not provided for by that               J.E. Flynn, barrister): Appeals against the judgment of the Court
     directive.                                                                 of First Instance of the European Communities (Second
                                                                                Chamber) of 7 February 2001 in Case T-89/98 NALOO v
2.   It is contrary to Articles 43 EC and 48 EC for national                    Commission [2001] ECR II-515, seeking to have that judgment
     legislation such as the Wet op de Formeel Buitenlandse                     set aside, the other party to the proceedings being: National
     Vennootschappen to impose on the exercise of freedom of                    Association of Licensed Opencast Operators (NALOO), estab-
     secondary establishment in that State by a company formed in               lished in Newcastle upon Tyne (United Kingdom) represented
     accordance with the law of another Member State certain                    by M. Hoskins, barrister, instructed by A. Dowie, solicitor,
     conditions provided for in domestic company law in respect of              with an address for service in Luxembourg, the Court (Fifth
     company formation relating to minimum capital and directors’               Chamber), composed of: M. Wathelet, President of the Chamb-
     liability. The reasons for which the company was formed in that            er, D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur) and
     other State, and the fact that it carries on its activities exclusively    A. Rosas, Judges; S. Alber, Advocate General; L. Hewlett,
     or almost exclusively in the Member State of establishment, do             Principal Administrator, for the Registrar, has given a judgment
     not deprive it of the right to invoke the freedom of establishment         on 2 October 2003, in which it:
     guaranteed by the Treaty, save where the existence of an abuse
     is established on a case-by-case basis.
                                                                                1.     Sets aside the judgment of the Court of First Instance of
(1) OJ C 200 of 14.7.2001.                                                             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
                                                                                             held that Article 65 of the ECSC Treaty was not
                                                                                             applicable to the setting of royalties for coal extraction;
                 JUDGMENT OF THE COURT
                          (Fifth Chamber)                                              —     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
                         of 2 October 2003                                                   1 April 1990.
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                           2.     For the rest, dismisses the appeals.
Corporation, PowerGen (UK) plc, Commission of the
European Communities v National Association of
         Licensed Opencast Operators (NALOO) (1)
                                                                                3.     Dismisses the application of the National Association of
                                                                                       Licensed Opencast Operators (NALOO) in so far as it seeks:
(Appeal — ECSC Treaty — Rejection of a complaint alleging
discriminatory pricing and unreasonable royalties — Powers
                         of the Commission)
                                                                                       —     annulment of the part of Decision IV/E-3/NALOO in
                                                                                             which the Commission of the European Communities held
                          (2003/C 275/18)
                                                                                             that Article 65 of the ECSC Treaty was not applicable to
                                                                                             the setting of royalties for coal extraction.
                    (Language of the case: English)
                                                                                       —     annulment of the part of that decision in which the
                                                                                             Commission of the European Communities rejected the
In Joined Cases C-172/01 P, C-175/01 P, C-176/01 P and                                       complaint relating to the level of the royalties charged for
C-180/01 P, International Power plc, formerly National Power                                 coal extraction before 1 April 1990.
 ---pagebreak--- C 275/12                EN                           Official Journal of the European Union                                            15.11.2003
4.   In Case C-172/01 P, orders International Power plc to pay its           marketed in Denmark only if it is shown that such enrichment
     own costs in the proceedings before the Court of Justice                with nutrients meets a need in the Danish population, the
     and those incurred by NALOO in these proceedings. The                   Kingdom of Denmark has failed to fulfil its obligations under
     Commission of the European Communities is to pay its own                Article 28 EC, the Court, composed of: J.-P. Puissochet,
     costs.                                                                  President of the Sixth Chamber, acting for the President,
                                                                             M. Wathelet, R. Schintgen and C.W.A. Timmermans (Presi-
5.   In Case C-175/01 P, orders NALOO to pay its own costs in                dents of Chambers), C. Gulmann, A. La Pergola, F. Macken
     the proceedings before the Court of Justice and those incurred by       (Rapporteur), N. Colneric, S. von Bahr, J.N. Cunha Rodrigues
     British Coal Corporation and the Commission of the European             and A. Rosas, Judges; J. Mischo, Advocate General; H. von
     Communities in these proceedings.                                       Holstein, Deputy Registrar, has given a judgment on 23 Sep-
                                                                             tember 2003, in which it:
6.   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
                                                                             1.    Declares that by applying an administrative practice which
     incurred by NALOO in these proceedings. The Commission of
                                                                                   entails that enriched foodstuffs lawfully produced or marketed
     the European Communities is to pay its own costs.                             in other Member States can be marketed in Denmark only if it
                                                                                   is shown that such enrichment with nutrients meets a need in
7.   In Case C-180/01 P, orders each party to pay its own costs in                 the Danish population, the Kingdom of Denmark has failed to
     the proceedings before the Court of Justice.                                  fulfil its obligations under Article 28 EC.
8.   Orders the Commission of the European Communities and
                                                                             2.    Orders the Kingdom of Denmark to pay the costs.
     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
                                                                             (1) OJ C 200 of 14.7.2001.
     own costs as interveners in the proceedings before the Court of
     First Instance.
(1) OJ C 200 of 14.07.2001.
                                                                                                JUDGMENT OF THE COURT
                                                                                                         (Sixth Chamber)
                 JUDGMENT OF THE COURT
                      of 23 September 2003                                                            of 11 September 2003
in Case C-192/01: Commission of the European Communi-                        in Case C-201/01 (Reference for a preliminary ruling from
                ties v Kingdom of Denmark (1)                                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                     (Protection of workers — Insolvency of the employer —
which vitamins and minerals have been added — Justifi-                       Scope of Directive 80/987/EEC — National case-law on
         cation — Public health — Nutritional need)                          shareholder loans in lieu of capital contributions — Total
                                                                                                        loss of entitlement)
                         (2003/C 275/19)
                                                                                                          (2003/C 275/20)
                   (Language of the case: Danish)
                                                                                                  (Language of the case: German)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             (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                In Case C-201/01: Reference to the Court under Article 234
administrative practice which entails that enriched foodstuffs               EC by the Oberster Gerichtshof (Austria) for a preliminary
lawfully produced or marketed in other Member States may be                  ruling in the proceedings pending before that court between