CELEX: C2001/200/80
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-176/01 P: Appeal brought on 23 April 2001 by PowerGen (UK) plc (formerly PowerGen 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, International Power plc (formerly National Power plc) and PowerGen (UK) plc (formerly PowerGen plc)

C 200/44               EN                    Official Journal of the European Communities                                       14.7.2001
Appeal brought on 23 April 2001 by PowerGen (UK) plc                    b)    in other proceedings [T-57/91, NALOO v. Com-
(formerly PowerGen plc) against the judgment delivered                        mission (2)], the Court of First Instance has taken the view
on 7 February 2001 by the Second Chamber of the Court                         that the Supplemental Complaint was a fresh complaint
of First Instance of the European Communities in case                         and it follows that the force of res judicata precluded the
T-89/98 (1) between National Association of Licensed                          Court of First Instance from concluding in the present
Opencast Operators (NALOO) and Commission of the                              proceedings that the Supplemental Complaint constituted
European Communities, supported by British Coal Cor-                          a part of the single complaint that was at issue in case
poration, International Power plc (formerly National                          T-57/91;
Power plc) and PowerGen (UK) plc (formerly PowerGen
                               plc)
                                                                        c)    the Commission could not have dealt with the Sup-
                                                                              plemental Complaint otherwise than on the basis that it
                        (Case C-176/01 P)                                     was a fresh complaint.
                         (2001/C 200/80)                                The Court of First Instance also erred in finding that the
                                                                        Supplemental Complaint referred to existing infringements.
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                  Misinterpretation of Article 63(1) of the
Commission of the European Communities, supported by                    ECSC Treaty
British Coal Corporation, International Power plc (formerly
National Power plc) and PowerGen (UK) plc (formerly Power-
Gen plc), was brought before the Court of Justice of the                PowerGen submits that the Court of First Instance erred in the
European Communities on 23 April 2001 by PowerGen (UK)                  following respects:
plc (formerly PowerGen plc), having its registered in London,
represented by K.P.E. Lasok QC, and P. Lomas, solicitor.
                                                                        —     in holding that the question of the Commission’s power
                                                                              to adopt legal measures other than recommendations
The Appellant claims that the Court should:                                   was irrelevant;
(a)   set aside the judgment of the Court of First Instance in          —     in reaching the conclusion that the Commission had
      case T-89/98, NALOO v. Commission, to the extent that                   power to investigate the Supplemental Complaint, with-
      it concerns the application of Article 63(1) of the ECSC                out considering whether or not any legal measures could
      Treaty;                                                                 result from such an investigation;
(b) to that extent dismiss NALOO’s application for the                  —     in implying that it is possible that the Commission has a
      annulment of the decision of the Commission dated                       power to adopt a decision or make a ‘finding’, not
      27 April 1998 in case IV/E-3/NALOO; and                                 contained in any recommendation, that is capable of
                                                                              generating a right of action in damages in respect of
(c)   order the Commission and NALOO to pay PowerGen’s                        systematic discrimination that is alleged to have taken
      costs.                                                                  place in the past; no such power is conferred by
                                                                              Article 63(1).
Pleas in law and main arguments
                                                                        Legal Certainty
The ‘single object’ of NALOO’s Complaint
                                                                        The Appellant puts forward the following grounds in support
                                                                        of its submission that the Court of First Instance has erred:
The Court of First Instance held that ‘the infringements alleged
by NALOO for the years 1986/1987 to 1989/1990’ had been                 —     the Court of First Instance seems to have construed the
the subject of ‘a single complaint’ received by the Commission                principle of legal certainty as operating solely as between
in 1990, the Supplemental Complaint ‘being merely an                          the Commission and NALOO;
expansion of that of 1990’. The Appellant submits that the
Court of First Instance has erred in law because:                       —     the fact that the original complaint referred to the pre-
                                                                              1 April 1990 period supports, instead of undermines, the
a)    the Supplemental Complaint and the 1990 Complaint                       argument that the 1998 Decision was justified on the
      did not constitute ‘a single complaint’;                                ground of legal certainty;
 ---pagebreak--- 14.7.2001               EN                    Official Journal of the European Communities                                          C 200/45
—      the suggestion that it was permissible for NALOO to               Reference for a preliminary ruling by the Consiglio di
       supplement its 1990 complaint because it could not have           Stato, sitting in its judicial capacity, by order of that court
       challenged the May 1991 Decision is incorrect and, even           of 13 February 2001 in the case of Impresa Binda &
       if it was permissible for NALOO to act in that way, it was        C. s.p.a. against Comune di Torino, intervener: ED.ART.
       not permissible for NALOO to wait three years before                                               s.r.l.
       submitting the Supplemental Complaint;
—      the Court of First Instance’s conclusion that the 1998                                      (Case C-179/01)
       Decision did not merely confirm a decision that had
       already been made is misconceived and wrong so far as
       the Article 63 (1) aspect of the Supplemental Complaint                                    (2001/C 200/81)
       is concerned;
                                                                         Reference has been made to the Court of Justice of the
—      the fact that the pre-1 April 1990 situation had been             European Communities by order of the Consiglio di Stato
       regarded as closed by the Commission and NALOO on                 (Council of State), sitting in its judicial capacity, of 13 February
       the basis of a mistake as to the juridiction of domestic          2001, received at the Court Registry on 24 April 2001, for a
       courts is irrelevant;                                             preliminary ruling in the case of Impresa Binda & C. s.p.a.
                                                                         against Comune di Torino, intervener: ED.ART. s.r.l., on the
                                                                         following questions:
—      NALOO’s claim, and the Court of First Instance’s apparent
       acceptance of it, blatantly offend the principles of legal
       certainty and non-retrospectivity because its case is that        1.   In calls for tenders for public works contracts, do clauses
       conduct that was not, at the time of its commission, in                excluding undertakings which have not submitted with
       breach of any legal prohibition or right that the members              their tenders explanations concerning components of the
       of NALOO could at that time invoke before a national                   price indicated, amounting to at least 75 % of the figure
       court, can at any time in the future (and after the conduct            specified in the tender conditions, represent an obstacle
       has ceased) produce for the benefit of the members of                  to the application of Article 30(4) of Directive 93/37 (1)?
       NALOO a right to claim damages.
                                                                         2.   Does the establishment of a mechanism for automatically
                                                                              identifying tenders which overstep a threshold indicative
                                                                              of irregularities and whose validity should therefore be
The Commission’s obligation to investigate                                    checked, based on an ad hoc test and an arithmetical
NALOO’s complaint                                                             mean, which is such that undertakings are unable to
                                                                              ascertain that threshold in advance, represent an obstacle
                                                                              to the application of Article 30(4) of Directive 93/37?
Since NALOO’s Supplemental Complaint did not seek, and
was not directed at seeking, the adoption of a recommendation            3.   Does the fact that provision is made for a prior exchange
under Article 63(1), the Commission lay under no obligation                   of views, without the undertaking which has allegedly
to investigate it and the Court of First Instance erred in holding            submitted an irregular tender having an opportunity to
otherwise.                                                                    state its reasons, after the opening of the envelopes and
                                                                              before the adoption of the measure excluding it, represent
                                                                              an obstacle to the application of Article 30(4) of Direc-
The alleged failure of the Commission to                                      tive 93/37?
take into account the available evidence
                                                                         4.   Does a provision under which the contracting authority
                                                                              may take account of explanations relating solely to the
The reasons on which the Article 63(1) aspect of the 1998                     economy of the construction method or the technical
Decision was based were set out in that decision. Those                       solutions adopted or the exceptionally favourable con-
reasons did not refer to the facts or the evidence because they               ditions available to the tenderer represent an obstacle to
were not relevant to the basis on which the Commission made                   the application of Article 30(4) of Directive 93/37?
its decision. A decision cannot be annulled on the ground that
it fails to state the reasons on which it was not based and it           5.   Does the [exclusion of] explanations relating solely to
follows that the Court of First Instance erred in holding that                items for which minimum values can be inferred from
the 1998 Decision was vitiated by a failure to state reasons.                 official lists represent an obstacle to the application of
                                                                              Article 30(4) of Directive 93/37?
(1) OJ C 234, 25.7.98, p. 36.
(2) [1996] ECR II-705.                                                   (1) Council Directive of 14 June 1993 (OJ 1993 L 199, p. 54).