CELEX: C2001/200/78
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-172/01 P: Appeal brought on 20 April 2001 by International Power plc (formerly National Power plc) 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, National Power plc and PowerGen plc

C 200/42               EN                    Official Journal of the European Communities                                      14.7.2001
(Second Chamber) in Case T-186/98 between Compañı́a                    Appeal brought on 20 April 2001 by International Power
Internacional de Pesca y Derivados SA (INPESCA) and the                 plc (formerly National Power plc) against the judgment
Commission of the European Communities was brought                      delivered on 7 February 2001 by the Second Chamber of
before the Court of Justice of the European Communities on              the Court of First Instance of the European Communities
19 April 2001 by Compañı́a Internacional de Pesca y Deriva-            in case T-89/98 (1) between National Association of
dos SA (INPESCA), represented by M.I. Angulo Fuertes and                Licensed Opencast Operators (NALOO) and Commission
M.B. Angulo Fuertes, abogadas, with an address for service in           of the European Communities, supported by British Coal
Luxembourg at the Chambers of Arendt & Medernach, 8-109                    Corporation, National Power plc and PowerGen plc
Mathias Hardt.
The appellant claims that the Court of Justice should:                                           (Case C-172/01 P)
1.    set aside in its entirety the judgment delivered by the
      Court of First Instance on 7 February 2001, and in its
      place:                                                                                      (2001/C 200/78)
      1)    declare that the ‘further observations’ filed by the
            applicant on 21 July 1999 are inadmissible;                 An appeal against the judgment delivered on 7 February 2001
      2)    declare that the plea of inadmissibility raised by the      by the Second Chamber of the Court of First Instance of the
            Commission pursuant to Article 114(1) of the Rules          European Communities in case T-89/98 between National
            of Procedure of the Court of First Instance is              Association of Licensed Opencast Operators (NALOO) and
            inadmissible;                                               Commission of the European Communities, supported by
                                                                        British Coal Corporation, National Power plc and PowerGen
      3)    uphold the application made by ‘INPESCA’ for                plc, was brought before the Court of Justice of the European
            annulment of the Commission’s decision of 16 Sep-           Communities on 20 April 2001 by International Power plc
            tember 1998 refusing to grant it the Community              (formerly National Power plc), having its registered office in
            funding sought pursuant to Regulations (EC)                 London, represented by S. Ramsay, solicitor, D. Anderson QC
            Nos 4028/86 (1) of 18 December 1986 and                     and M. Chamberlain, barrister.
            1263/1999 (2) of 21 June 1999 and the Financial
            Regulation of 21 December 1977;
                                                                        The Appellant claims that the Court should:
2.    uphold all the claims made by the present appellant in its
      application in the proceedings at first instance;
                                                                        (1) set aside the judgment of the Court of First Instance of
3.    order the Commission to pay the costs since it has acted                7 February 2001 in Case T-89/98;
      in breach of Community law.
                                                                        (2) give final judgment dismissing NALOO’s application for
                                                                              the annulment of the 1998 decision; and
Pleas in law and main arguments
—     Procedural irregularities which prejudice the rights of the       (3) order NALOO and/or the Commission to pay IP’s costs
      appellant. Article 58 of the Protocol on the Statute of the             of the proceedings in Case T-89/98 and in this case.
      Court of Justice. Since Articles 5, 7 and 8 of Regulation
      No 1263/1999 and Article 52 of Regulation
      1260/1999 (3) set out new facts and principles of law
      applicable to the action brought, they constituted ‘new
                                                                        Pleas in law and main arguments
      pleas in law’ which should have been taken into account
      by the Court of First Instance (Article 48(2) of the Rules
      of Procedure),
                                                                        The central error in the judgment of the CFI, so far as it
—     Breach of Community law: Article 58 of the Protocol on            concerns IP, is the conclusion that the CFI and the Commission
      the Statute of the Court of Justice. Under the ‘regulatory        had, after 1994, the power to investigate NALOO’s complaint
      framework’ applicable to the action, the Commission is            relating to infringements of Article 63 CS allegedly committed
      not only perfectly well able to reconsider its 1991               during the years 1986-1990.
      decision on the basis of the ‘new and fundamental facts’
      relied upon by the appellant but is also obliged to do
      so under Article 7(7) of the Financial Regulation of              That conclusion is erroneous for two principal reasons, which
      21 December 1977 and Article 5(1) and (2) of Regulation           constitute IP’s first two pleas in law:
      (EC) No 1263/1999.
                                                                        The 1994 complaint in substance repeated a complaint
(1) OJ L 376 of 31.12.1986, p. 7.
(2) OJ L 161 of 26.6.1999, p. 54.                                       which the Commission had already decided, in 1991, not to
(3) OJ L 161 of 26.6.1999, p. 1.                                        investigate. That 1991 decision was reviewable but unre-
                                                                        viewed. In those circumstances, the Commission had no power
                                                                        to revisit its earlier decision, and to do so would have infringed
                                                                        the principle of legal certainty.
 ---pagebreak--- 14.7.2001              EN                     Official Journal of the European Communities                                         C 200/43
There was, in any event, no power under Article 63(1) CS                 Pleas in law and main arguments
either to investigate, in or after 1994, an allegation of
discrimination in the pre-1990 period, or to take action in
respect of it.
                                                                         BCC relies on the following grounds of appeal.
If either or both of those pleas in law is correct, it follows that
the 1998 decision was valid and that the judgment of the CFI             (1) The Court of First Instance erred in law in holding that
must be quashed. In the event that both those pleas in law are                 the 1994 Complaint was an expansion of the 1990
rejected, IP submits, in the alternative to its first two pleas:               Complaint and that therefore the Commission must be
                                                                               treated as having received a single Complaint.
that even if the Commission had the power to investigate the             (2) The Court of First Instance erred in law in holding that
1994 complaint, it was under no obligation to do so; and                       NALOO had not failed to avail itself of the legal remedies
that the 1998 decision was in any event adequately reasoned.                   available to it to ensure protection of its rights.
                                                                         (3) The Court of First Instance erred in law in holding that
(1) OJ C 234, 25.7.98, p. 36.
                                                                               an investigation of NALOO’s complaint with regard
                                                                               to the years 1986/87 to 1989/1990 was in no way
                                                                               incompatible with the principle of legal certainty.
                                                                         (4) Whether or not the 1991 Complaint and the 1994
                                                                               Complaint should be treated as a single Complaint, the
                                                                               Court of First Instance erred in law in holding that the
                                                                               matters complained of were existing infringements for
                                                                               the purposes of Article 66(7) ECSC and that the Com-
                                                                               mission was therefore empowered to act in relation to
Appeal brought on 23 April 2001 by British Coal Corpor-                        the position pre-April 1990.
ation against the judgment delivered on 7 February 2001
by the Second Chamber of the Court of First Instance of
                                                                         (5) The Court of First Instance erred in law in holding that
the European Communities in case T-89/98 (1) between                           the effect of the judgment of the Court of Justice in
National Association of Licenced Opencast Operators
                                                                               Hopkins was to empower the Commission to investigate
(NALOO) and Commission of the European Communities,
                                                                               that part of NALOO’s Complaint which alleged against
supported by British Coal Corporation, International                           BCC that it had applied unreasonable levels of royalty in
Power plc (formerly National Power plc) and PowerGen
                                                                               the years 1986/87 to 1989/90.
               (UK) plc (formerly PowerGen plc)
                                                                         (6) The Court of First Instance erred in law in holding
                        (Case C-175/01 P)                                      that since the Commission had the power to consider
                                                                               NALOO’s complaint relating to infringements alleged to
                                                                               have occurred in the years 1986/87 to 1989/90, the
                         (2001/C 200/79)                                       Commission was bound to undertake that examination.
An appeal against the judgment delivered on 7 February 2001              (7) The Court of First Instance erred in law in holding that the
by the Second Chamber of the Court of First Instance of the                    Commission was empowered to adopt recommendations
European Communities in case T-89/98 between National                          under Article 66(7) in respect of alleged infringements
Association of Licensed Opencast Operators (NALOO) and                         occurring in 1986/87 to 1989/1990 and in failing to
Commission of the European Communities, supported by                           hold that, contrary to the contention of NALOO, the
British Coal Corporation, International Power plc (formerly                    Commission had no power to take a decision under
National Power plc) and PowerGen (UK) plc (formerly Power-                     Article 66(7) ECSC.
Gen plc), was brought before the Court of Justice of the
European Communities on 23 April 2001 by British Coal                    (8) The Court of First Instance erred in laws in failing to hold
Corporation, having its registered office in London, represented               that Article 65 ECSC has no application to the alleged
by D. Vaughan QC, D. Lloyd Jones QC and C. Mehta, solicitor.                   conduct of BCC in relation to the level of royalty.
The Appellant claims that the Court should:                              (9) The Court of First Instance erred in law in holding that
                                                                               the 1998 Decision was vitiated by a failure to give
(1) set aside the judgment of the Court of First Instance in                   reasons.
      Case T-89/98 dated 7 February 2001;
(2) dismiss by way of final judgment NALOO’s Application
      registered with the Court of First Instance on 8 June              (1) OJ C 234, 25.7.98, p. 36.
      1998;
(3) order that NALOO and/or the Commission pay BCC’s
      costs of the proceedings in Case T-89/98 and in this case.