CELEX: C2001/200/82
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-180/01 P: Appeal brought on 25 April 2001 by Commission of the European Communities 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 PowerGen plc)

C 200/46               EN                    Official Journal of the European Communities                                     14.7.2001
Appeal brought on 25 April 2001 by Commission of the                         were to be treated as a single complaint), the Court of
European Communities against the judgment delivered                          First Instance then held that the argument that the
on 7 February 2001 by the Second Chamber of the Court                        infringements were already in the past when referred to
of First Instance of the European Communities in case                        the Commission is unfounded and that the Treaty articles
T-89/98 (1) between National Association of Licensed                         therefore empower the Commission to investigate the
Opencast Operators (NALOO) and Commission of the                             complaint as regards the alleged infringements in
European Communities, supported by British Coal Cor-                         1986/1987 to 1989/1990. In so doing the Court of First
poration, International Power plc (formerly National                         Instance mischaracterised the Commission’s arguments.
Power plc) and PowerGen (UK) plc (formerly PowerGen                          The Court of First Instance also failed to address the
                               plc)                                          arguments that were actually put to it, by the applicant
                                                                             and the interveners as well as the Commission. Moreover,
                                                                             in so far as the judgment is to be taken as first
                        (Case C-180/01 P)                                    empowering the Commission and then imposing on it
                                                                             the duty to issue recommendations in respect of past
                                                                             infringements that have no continuing relevance, it runs
                         (2001/C 200/82)                                     counter to the Court’s ruling in Banks and Hopkins and
                                                                             cannot stand. In the absence of such a general power, an
                                                                             essential precondition for the duty to investigate identified
                                                                             by the Court of First Instance disappears.
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                  3)   The Court of First Instance erred in law in characterising
Commission of the European Communities, supported by                         the 1990 and 1994 Complaints as a single continuing
British Coal Corporation, International Power plc (formerly                  complaint in so far as they each concerned the pre-1990
National Power plc) and PowerGen (UK) plc (formerly Power-                   situation. The Court of First Instance has also erred by
Gen plc), was brought before the Court of Justice of the                     not addressing the arguments put to it by the Commission
European Communities on 25 April 2001 by Commission of                       concerning the limitations required by the principle of
the European Communities, represented by A. Whelan, acting                   legal certainty on the period in respect of which it could
as Agent, assisted by J.E. Flynn, Barrister, with an address for             be obliged to take action in respect of past infringements
service in Luxembourg.                                                       if its primary arguments as to obligation, discretion and
                                                                             competence failed.
The Appellant claims that the Court should:
                                                                        4)   In so far as the operative part of the Court of First
                                                                             Instance judgment may be understood as affecting the
(i)   set aside the judgment;                                                Commission’s decision regarding the non-applicability of
                                                                             Article 65 of the ECSC Treaty in the present case, the
(ii) dismiss the application as unfounded; and                               Commission appeals against it for lack of reasoning.
(iii) order the applicants to pay the costs.
                                                                             In relation to the level of royalties, the Court of First
                                                                             Instance has erred in law and/or failed to give reasons for
                                                                             departing fundamentally from the approach laid down in
Pleas in law and main arguments                                              NALOO I in holding that the Commission was obliged to
                                                                             start from the position that royalties higher than the ‘not
                                                                             abnormally high’ level were prima facie excessively high
The Commission submits that the judgment of the Court of                     and that it could not reject the complaint for lack of
First Instance should be set aside for the following reasons:                relevant evidence without giving reasons for concluding
                                                                             that they were not excessive.
1)    The Court of First Instance erred in law in so far as it
      held that there was any obligation on the part of the
      Commission to examine or investigate the issues raised
      in a complaint under the Treaty and/or by failing to
      give proper reasons regarding the existence of such an
      obligation.
                                                                        (1) OJ C 234, 25.7.98, p. 36.
2)    The Court of First Instance misrepresented the Com-
      mission’s position in implying that the Commission took
      the view that it could only act if infringements were
      current at the time a complaint was laid. Having held that
      the Commission was indeed made aware of alleged
      infringements current at the time the complaint was
      made (on the basis that the 1990 and 1994 Complaints