CELEX: C2001/028/47
Language: en
Date: 2001-01-27 00:00:00
Title: Case C-448/00 P: Appeal brought on 4 December 2000 by the Commission of the European Communities against that part of the judgment delivered on 27 September 2000 by the Second Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-184/97 between BP Chemicals Ltd and the Commission of the European Communities, supported by the French Republic, which annuls Commission Decision SG (97) D/3266 of 9 April 1997 concerning an aid scheme for biofuels in France in so far as that decision relates to measures applicable to the ethyl-tertiobutyl-ether ("ETBE") sector

C 28/24                 EN                      Official Journal of the European Communities                                     27.1.2001
Reference for a preliminary ruling by the Landesgericht                    If either Question III or Question IV is answered in the
Salzburg (as a commercial court) by order of 27 Novem-                     affirmative:
ber 2000 in the application for company registration by
                           Holto Limited                                   V.    Do Articles 43 and 48 of the EC Treaty prohibit the
                                                                                 application of a domestic conflict of laws rule which
                                                                                 determines the legal capacity of a company in accordance
                          (Case C-447/00)                                        with the law of the State in which the company has the
                                                                                 actual seat of its main administration (the seat theory),
                                                                                 even if, as a result, a company that has been effectively
                                                                                 constituted under English law but merely has its seat as
                           (2001/C 28/46)
                                                                                 declared in its constitution in England and does not carry
                                                                                 on any business there is refused recognition as a legal
                                                                                 person and consequently refused entry in the companies
Reference has been made to the Court of Justice of the                           register (commercial register)?
European Communities by the Landesgericht Salzburg (as a
commercial court) by order of 27 November 2000, received
at the Court Registry on 4 December 2000, in the application
for company registration by Holto Limited for a preliminary
ruling on the following questions:
                                                                           Appeal brought on 4 December 2000 by the Commission
I.     Is the second sentence of the first paragraph of Article 43         of the European Communities against that part of the
       of the EC Treaty to be interpreted as meaning that a                judgment delivered on 27 September 2000 by the Second
       branch may exist even if a company does not have a                  Chamber, Extended Composition, of the Court of
       principal place of business within the meaning of Article           First Instance of the European Communities in Case
       48 of the EC Treaty at any other place, where it carries            T-184/97 (1) between BP Chemicals Ltd and the Com-
       out at least an essential part of its business activity?            mission of the European Communities, supported by the
                                                                           French Republic, which annuls Commission Decision SG
                                                                           (97) D/3266 of 9 April 1997 (2) concerning an aid scheme
If so:                                                                     for biofuels in France in so far as that decision relates to
                                                                           measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
                                                                                                         sector
II.    Is the second sentence of the first paragraph of Article 43
       of the EC Treaty to be interpreted as meaning that the                                      (Case C-448/00 P)
       requirement of establishment is fulfilled if a company
       merely has its seat as declared in its constitution in a                                      (2001/C 28/47)
       Member State in which it was effectively constituted and
       does not carry on any business there?                               An appeal against that part of the judgment delivered on
                                                                           27 September 2000 by the Second Chamber, Extended
                                                                           Composition, of the Court of First Instance of the European
If so:                                                                     Communities in Case T-184/97 between BP Chemicals Ltd
                                                                           and the Commission of the European Communities, supported
                                                                           by the French Republic, which annuls Commission Decision
III. Does the establishment of an Austrian branch of a                     SG (97) D/3266 of 9 April 1997 concerning an aid scheme
       company that has been effectively constituted under                 for biofuels in France in so far as that decision relates to
       English law but merely has its seat as declared in its              measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
       constitution in England and does not carry on any                   sector, was brought before the Court of Justice of the European
       business there belong to the rights under the second                Communities on 4 December 2000 by the Commission of
       sentence of the first paragraph of Article 43 and by                the European Communities, represented by Xavier Lewis, a
       Article 48 of the EC Treaty?                                        member of the Legal Service, acting as agent, assisted by
                                                                           Nicholas Khan, Barrister, of the Inner Temple, with an address
                                                                           for service in Luxembourg at the office of Carlos Gómez de la
                                                                           Cruz, a member of the Legal Service of the Commission,
If any of Questions I, II or III are answered in the negative:             Centre Wagner.
                                                                           The Appellant claims that the Court should:
IV. Does the establishment of an Austrian branch and its
       entry in the Austrian companies register (commercial                1.    Annul that part of the judgment of the Court of First
       register) by a company effectively constituted under                      Instance of 27 September 2000 handed down in Case
       English law which merely has its seat as declared in its                  T-184/97, BP Chemicals Ltd v Commission, which
       constitution in England and does not carry on any                         annulled Commission Decision SG (97) D/3266 of
       business there belong to the rights covered by the first                  9 April 1997 concerning an aid scheme for biofuels in
       sentence of the first paragraph of Article 43 and by                      France in so far as that decision relates to measures
       Article 48 of the EC Treaty?                                              applicable to the ethyl-tertiobutyl-ether (‘ETBE’) sector;
 ---pagebreak--- 27.1.2001              EN                   Official Journal of the European Communities                                           C 28/25
2.    Dismiss the action for annulment of Commission                   the Decision. In particular, it submits that the Court of First
      Decision SG (97) D/3266 of 9 April 1997 concerning an            Instance erred in law by adopting an interpretation of a ‘pilot
      aid scheme for biofuels in France in so far as that decision     project’ which is limited to a project at the last stage of research
      relates to measures applicable to the ethyl-tertiobutyl-         and development before industrial exploitation on a larger
      ether (‘ETBE’) sector as unfounded                               scale of the results of such research.
3.    And, order BP Chemicals Ltd to bear the costs of the             The Commission considers that the Court of First Instance so
      action for annulment in Case T-184/97                            erred for two reasons:
4.    Alternatively, refer the case back to the Court of First         —     The Court of First Instance was wrong to consider that
      Instance for judgment on the first, third and fourth pleas             the Community framework for State aid for Research
      rased by the Applicant in the action for annulment,                    and Development could provide decisive assistance in
                                                                             interpreting Article 8 (2) d) of Directive 92/81, and
5.    And, order BP Chemicals Ltd to pay the costs of this
      appeal.                                                          —     The Court of First Instance failed to examine whether the
                                                                             interpretation it propounded of Article 8 (2) d) was itself
                                                                             plausible and failed to examine the plausibility of the
Pleas in law and main arguments                                              interpretation offered by the Commission in the Decision.
The Commission submits that the Court of First Instance erred          (1) OJ C 252, 16.8.1997, p. 36.
in law in finding that it had exceeded its powers by adopting          (2) Not published in the Official Journal.