Barbara Hopkins and others v National Power plc and Powergen plc.
Date: 1996-05-02
12 In paragraph 9 of its judgment in Case C-128/92 Banks [1994] ECR I-1209 the Court has already held that the extraction of unworked coal falls within the scope of the ECSC Treaty. Annex I to the ECSC Treaty, to which Article 81 of the Treaty refers for the definition of the term "coal", expressly refers to hard coal, the type of coal concerned in the main proceedings.
14 As regards the provisions applicable to the practices in question, the Court has held in paragraph 10 of its judgment in Case 328/85 Deutsche Babcock [1987] ECR 5119 that Article 232 of the EEC Treaty shows that that Treaty can apply to products covered by the ECSC Treaty in so far as the matters arising are not the subject of provisions in the ECSC Treaty.
16 In this regard, it must be recalled that the provisions of Article 4 of the ECSC Treaty and in particular point (b) thereof, which prohibits measures or practices which discriminate between producers, apply by themselves only in the absence of more specific rules; if they have been adopted or are governed by other provisions of the Treaty, texts relating to the same provision must be considered as a whole and applied together (see the judgment in Case C-128/92 Banks, cited above, paragraph 11).
19 In order to ensure the effectiveness of the prohibition laid down in Article 4(b), the powers conferred by Article 63(1) on the Commission must be such as to enable it, not only to oblige the authorities of the Member States to bring to an end for the future any systematic discrimination which the Commission has found to exist, but also, on the basis of that finding, to draw all the consequences as regards the effects which such discrimination may have had in relationships between purchasers and producers within the meaning of Article 4(b) even before the Commission took action. That same finding may be relied on by the persons concerned before the national courts.
28 It is settled case-law that the rules evolved by the Court to determine the effects of a directive which has not been transposed into national law apply equally to recommendations adopted under the ECSC Treaty, which are measures of the same kind, binding upon those to whom they are addressed as to the result to be achieved but leaving to them the choice of form and methods to achieve that result (see the judgment in Case C-221/88 Busseni [1990] ECR I-495, paragraph 21). Whenever the provisions of a recommendation based on Article 63(1) appear, as regards their subject-matter, to be unconditional and sufficiently precise, those provisions may therefore be relied upon directly by individuals before the national court on the same conditions as directives.
29 The reply to the second and fourth questions must therefore be that Articles 4(b) and 63(1) of the ECSC Treaty do not create rights which individuals may rely on directly before national courts. However, wherever the provisions of a recommendation based on Article 63(1) appear, as regards their subject-matter, to be unconditional and sufficiently precise, those provisions may be relied upon directly by individuals before the national court.
The fifth question