CELEX: C2001/200/77
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-170/01 P: Appeal brought on 19 April 2001 by Compañía Internacional de Pesca y Derivados SA (INPESCA) against the judgment delivered on 7 February 2001 by the Court of First Instance of the European Communities (Second Chamber) in Case T-186/98 between Compañía Internacional de Pesca y Derivados SA (INPESCA) and the Commission of the European Communities

14.7.2001              EN                     Official Journal of the European Communities                                    C 200/41
2.    Are the provisions of Article 9 of the Staff Regulations                meaning that the said Articles 43 and 48 do not affect
      of the European Communities (Article 2 of Council                       the applicability of the Netherlands rules laid down in
      Regulation (EEC, Euratom, ECSC) No 259/68 of 29 Febru-                  that law, on the ground that the provisions in question
      ary 1968) and those contained in Annex II to the Staff                  are justified for the reasons stated by the Netherlands
      Regulations concerning the Staff Committee, which also                  legislature?
      represents the interests of local staff of the Communities,
      to be interpreted as laying down exhaustive rules on
      collective employment law and the powers of co-decision
      of local staff and thus as precluding the application of the
      law on labour relations in the workplace laid down in the
      Austrian Labour Constitution Act to local staff serving in
      the Vienna representation of the Commission of the                 Reference for a preliminary ruling by the Hoge Raad der
      European Communities?                                              Nederlanden by decision of 11 April 2001 in the case of
                                                                            Bosal Holding BV and Staatssecretaris van Financiën
(1) OJ 1968, L 56, p. 1.
                                                                                                (Case C-168/01)
                                                                                                (2001/C 200/76)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by decision of 11 April 2001 by
                                                                         the Hoge Raad der Nederlanden (Supreme Court of the
                                                                         Netherlands), which was received at the Court Registry on
Reference for a preliminary ruling by the Kantongerecht                  19 April 2001, for a preliminary ruling in the case of Bosal
te Amsterdam by order of 5 February 2001 in the case of                  Holding BV and Staatssecretaris van Financiën on the following
Kamer van Koophandel en Fabrieken voor Amsterdam                         questions:
                       and Inspire Art Ltd                               1.   Does Article 52 of the EC Treaty, read in conjunction
                                                                              with Article 58 thereof (now, following amendment,
                          (Case C-167/01)                                     Article 43 EC, read in conjunction with Article 48
                                                                              thereof), or any other rule of EC law, preclude a Member
                                                                              State from granting a parent company subject to tax in
                         (2001/C 200/75)                                      that Member State a deduction on costs relating to a
                                                                              holding owned by it only if the relevant subsidiary
Reference has been made to the Court of Justice of the                        company makes profits which are subject to tax in
European Communities by order of 5 February 2001 by the                       the Member State in which the parent company is
Kantongerecht te Amsterdam (Amsterdam Cantonal Court),                        established?
which was received at the Court Registry on 19 April 2001,
for a preliminary ruling in the case of Kamer van Koophandel             2.   Does it make any difference to the answer to Question 1
en Fabrieken voor Amsterdam and Inspire Art Ltd on the                        if, where the subsidiary company is subject to tax based
following questions:                                                          on its profits in the Member State concerned but the
                                                                              parent company is not, the relevant Member State takes
1.    Is (the new) Article 43 in conjunction with Article 48 of               no account of the abovementioned costs in levying tax
      the Treaty establishing the European Community to be                    on the subsidiary company?
      interpreted as precluding the Netherlands, pursuant to
      the Wet op de formeel buitenlandse vennootschappen of
      17 December 1997, from attaching additional conditions,
      such as those laid down in Articles 2 to 5 of that law, to
      the establishment in the Netherlands of a branch of a
      company which has been set up in the United Kingdom
      with the sole aim of securing the advantages which that            Appeal brought on 19 April 2001 by Compañı́a Interna-
      offers compared to incorporation under Netherlands law,            cional de Pesca y Derivados SA (INPESCA) against the
      given that Netherlands law imposes stricter rules than             judgment delivered on 7 February 2001 by the Court of
      those applying in the United Kingdom with regard to the            First Instance of the European Communities (Second
      setting-up of companies and payment for shares, and                Chamber) in Case T-186/98 between Compañı́a Interna-
      given that the Netherlands law infers that aim from the            cional de Pesca y Derivados SA (INPESCA) and the
      fact that the company carries on its activities entirely or                 Commission of the European Communities
      almost entirely in the Netherlands and, furthermore, does
      not have any real connection with the State in which the                                 (Case C-170/01 P)
      law under which it was formed applies?
2.    If, on a proper construction of those articles of the Treaty,                             (2001/C 200/77)
      it is held that the provisions of the Wet op de formeel
      buitenlandse vennootschappen are incompatible with                 An appeal against the judgment delivered on 7 February 2001
      them, must Article 46 of the Treaty be interpreted as              by the Court of First Instance of the European Communities
 ---pagebreak--- 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.