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transport rates and conditions, and No 3632/93/ECSC of 28 December 1993 measures or practices which interfere establishing Community rules for State aid with the purchaser's free choice of to the coal industry 2(hereinafter 'the Coal supplier; Aid Code'). Article 1 of the Coal Aid Code states that aid to the coal industry may be considered Community aid and hence compatible with the proper functioning of the common market only if it complies with the terms of Articles 2 to 9 of the Code. (c) subsidies or aids granted by States, or Articles 2 to 7 set out substantive criteria special charges imposed by States, in for assessment by the Commission of any form whatsoever; different types of aid. Article 9(1) requires Member States to send, by 30 September each year (or three months before the measures enter into force) at the latest, 'notification of all the financial support which they intend to grant to the coal industry in the following year'. Article 9(4) (d) restrictive practices which tend of the Coal Aid Code states, in part: towards the sharing or exploiting of markets.'

3. Article 88 of the ECSC Treaty provides, in part:

'If the High Authority considers that a State 'Member States may not put into effect has failed to fulfil an obligation under this planned aid until it has been approved by Treaty, it shall record this failure in a the Commission on the basis, in particular, reasoned decision after giving the State of the general criteria and objectives laid concerned the opportunity to submit its down in Article 2 and of the specific comments. It shall set the State a time-limit criteria established by Articles 3 to 7. If for the fulfilment of its obligation.' the Commission has taken no decision within three months of receipt of notifica- tion of the measures planned, the measures may be implemented 15 working days after transmission to the Commission of notice of intent to implement them ... .'

6. The Coal Industry Act, 1994 (hereinafter 7. The Secretary of State was authorised by 'the 1994 Act') was enacted with a view to the 1994 Act to restructure BCC. Upon the privatising BCC's coal-mining operations. transfer of its coal deposits to the Coal It created a new regulatory body, the Coal Authority, he granted licences to BCC in Authority, to which title to all mines and the name of the Coal Authority and coal deposits vested in BCC was transferred required the Coal Authority to grant leases on 31 October 1994. Under section 26 of of coal to BCC, for no consideration, to the 1994 Act, the Coal Authority grants enable it to continue its existing mining operating licences and leases in return for activity. The Coal Authority held back royalties; unlike BCC before it, it does not substantial coal reserves, formerly vested itself have the right to engage in mining in BCC, for allocation to producer under- activities, as the Act is intended to separate the former producing and licensing func- tions of BCC. In respect of licences, the 3 — See further the discussion at paragraphs 24 and 25 below.

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9. On 19 August 1994, Naloo lodged a complaint with the Commission (herein­ (c) Factual background after 'the complaint') about State aid enjoyed by BCC since 1973 and the exces­ sively burdensome conditions and charges imposed by BCC on its competitors. It also referred to the impending privatisation of BCC, alleging that BCC's successor com­ panies would derive an improper advantage 8. H.J. Banks and Company Limited (here­ from the continuing effects of unlawful aid inafter 'the defendant') is a company estab­ paid to BCC in the past. The summary at lished in the United Kingdom which the beginning of the complaint refers to, extracts coal by the opencast method. It is inter alia, 'asset sales below cost'. In the a member of the National Association of section entitled 'Background', Naloo states Licensed Opencast Operators (hereinafter that 'any opencast royalty over [GBP 0.40] 'Naloo'). Mr H. Banks is the chairman of per tonne is discriminatory and unreason­ both Naloo and of the defendant. The ably high'. Section 5 of the complaint states defendant has obtained 19 licences and that 'whilst Naloo recognises BCC's right leases under the 1994 Act, of which one is a to recoup the cost of administration the royalty level clearly goes beyond this... . Royalty income per tonne from opencast 4 — This decision was not published in the Official Journal. has at some times in the past exceeded

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BCC's own profits per tonne on its open- ing regard to the historical context of past cast coal extraction'. aid to BCC and to 'the aid which consti- tutes an inherent part of the privatisation package'.

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their market value, in an open and compe- ity, without examining the substance of the titive tendering process, and so did not case, on the basis that the defendant's benefit from any State aid. The Director- defence and counter-claim were an abuse General stated expressly in his letter of of process: it had failed to bring an action 4 May 1995 that other issues, 'such as the for annulment against the Commission's licensing activities of British Coal', were decisions of 4 May 1995 and 14 July 1995 part of a separate investigation by other rejecting the similar complaints of Naloo, Commission services. In his letter of of which it was a member. 14 July 1995, the acting Director-General stated that 'the subjects of royalty and coal supply contracts' were still under investiga- tion by the Directorate-General for Com- petition.

14. The defendant appealed to the Court of Appeal. It submitted that Naloo's com- plaint had concerned the transitional per- iod of BCC's activity under the 1994 Act, and not the post-privatisation period which was the subject of the national proceedings. Furthermore, the Commission's correspon- dence to date had not addressed any such (d) The main proceedings aspect of the complaint.

— "discrimination between produ- cers" within Article 4(b) of the ECSC Treaty; 3. If so, may a national court determine that there is "discrimination" within the meaning of paragraph (b) of Arti- cle 4 of the ECSC Treaty or a "special charge" within the meaning of para- graph (c) thereof or "aid" within the meaning of paragraph (c) thereof or of — a "special charge" within Arti- Article 1 of Commission Decision cle 4(c) of the same Treaty; and/or No 3632/93/ECSC notwithstanding:

— "aid" within Article 4(c) of the same Treaty or within Article 1 of Commission Decision No 3632/93/ ECSC (OJ 1993 L 329, p. 12)? — Commission Decision No 94/995/ ECSC (OJ 1994 L 379, p. 6);

2. Do paragraphs (b) or (c) of Article 4 of the ECSC Treaty or paragraphs (1) or (4) of Article 9 of Commission Deci- sion No 3632/93/ECSC (OJ 1993 L 329, p. 12) produce direct effects — the Commission Decision of and confer on private undertakings the 21 December 1994 authorising right, enforceable in national courts, to the acquisition of Central and defend a claim for mining royalties Northern Mining Limited by RJB made by a public body and to claim Mining pic;

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— the Communications sent by DG ECSC Treaty, or of Commission Deci- XVII of the Commission to Naloo sion No 3632/93/ECSC in proceedings dated 4 May and 13 July 1995? in the national courts?'

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EC Treaty does not necessarily turn on the v High Authority, 12 the Court stated that 'a question whether the specifically favoured charge may be presumed to be special and economic actors are in a minority relative therefore abolished and prohibited by the to those subjected to the 'normal' or Treaty if, by affecting unequally the pro- general regime; any distinction between duction costs of comparably placed produ- undertakings or sectors to the benefit of cers, it introduces into the distribution of certain among them may be construed as production distortions which do not result an aid to those treated more favourably. 10 from changes in productivity', but observed that it was not possible to consider this criterion as being decisive. A charge which affected equally all consumers of solid fuels in a particular context was obviously not a special charge according to this criterion. In Pont-à-Mousson v High Authority, the Court held that a disputed charge could not be regarded as 'special' because it was of a general nature, applicable to all 20. In the case of State commercial activity, Community undertakings consuming fer- in fields such as public investment and rous scrap. 13 At a minimum, it appears to public disposal of assets, Community law me that charges covered by Article 4(c) of does prescribe a standard (although it is the ECSC Treaty should be 'special' in the one whose concrete application will be sense of not being of general application determined by the circumstances of any and that they treat 'comparably placed given case): that of the Ordinary economic producers' differently. agent' or the private commercial actor in a market economy. 11 Thus, a dichotomy can be identified between, essentially, descrip- tive and prescriptive approaches to identi- fying 'normality' according to the type of alleged aid being scrutinised.

not normally have to bear. 14 This proposal tice, affect how aid is identified in cases seems to me to be consistent both with the where public authorities act in their sover- terms and scheme of Article 4(c) of the eign or public capacity. Unlike the situation ECSC Treaty and with the case-law. I under the EC Treaty, the ECSC envisages would also take the view that the prohibi- two possible types of departure from the tion in Article 4(c) should relate to charges 'normal' regulatory regime, namely, on the which are essentially of a public nature. one hand, the imposition of higher (special) This is prompted by the reference to charges on certain undertakings and, on the charges 'imposed by States' and would other, the alleviation of charges to which provide, by reference to the public, non- their competitors would otherwise be sub- market character of the interventions ject or the grant of direct subsidies or addressed, a logical unifying theme for the material benefits (aid).

paid them. Furthermore, whereas the Coal Treaty but the charging of excessive or Aid Code (and similar measures affecting discriminatory prices would not constitute the steel sector) provides for certain forms a special charge but rather prohibited discrimination or the exploitation of the of aid to be ruled compatible with the public undertaking's dominant market common market, no such regime yet exists position. as regards special charges. Thus, when applying Article 4(c) of the ECSC Treaty to a scheme of public charges which are alleged to be imposed unequally, it is not sufficient simply to establish such inequal- ity of application to comparable undertak- ings, as it would be under the EC Treaty.

Temporal aspects, such as the creation of an excep- tion to a pre-existing regime of general 14 — It may also be possible to classify as 'special' charges of a application, may also be relevant. public character which are deemed, without comparing them to a general regime, to be objectively 'excessive' in character. However, as this is not the case made in the main proceedings, I do not address that possibility here; see further paragraph 31 below.

24. I now turn to the facts of the present disposal functions, the Coal Authority is case. One important preliminary matter is also subject to a number of duties, includ- to assess whether the payments which are ing that of coordinating its practice with the subject of litigation before the national the carrying out of its licensing functions. court are public or commercial in character. This may have an effect in practice on the Payments of a public nature may be otherwise private, commercial character of analysed, as appropriate, in the light of the Coal Authority's leasing functions. the definitions of aid and of special charges set out above; payments of a purely private and commercial character for the enjoy- ment of property rights cannot constitute special charges, although exoneration of a competitor from payment of such royalties could constitute an aid. 15The position is not, in fact, very clear.

character. On the other hand, under Arti- about the criteria determining the grant of cle 26(2) of the 1994 Act, an applicant for licences and the calculation of royalties a licence must also acquire rights in relation under that legislative regime. It appears to the coal to be mined. Since the property that section 36 licences combined the licen- rights in unworked coal and coal mines are sing and leasing functions governed sepa- vested in the Coal Authority, an applicant rately by the 1994 Act. In the event that the will normally need to obtain property case must ultimately be resolved by refer- rights through the grant of a lease by the ence to the prohibition of special charges, it Coal Authority. Section 3(4) of the 1994 will be for the national court to determine Act requires the Coal Authority to seek the whether, and in what degree, these pay- best terms reasonably available for the ments are, in fact, public or private in disposal of any such interests.

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27. The defendant claims that it is subject suggest that such processes are not normal to a special charge and/or discrimination in the prescriptive sense, that is, that they because the Coal Authority continued, after are not an appropriate way for public privatisation, to require it to pay royalties, authorities to award such rights of a public lease payments and licence fees (some of character, or that such public charges which, at least, are charged at a standard, should automatically vary in accordance apparently non-negotiable rate) which took with their market value to undertakings no account of the discount at which which, in other circumstances, are in a licences and leasehold rights were disposed position to bid for them. 21 Thus, it cannot of in the privatisation process. It does not be said that one price (that paid for seem to me that this can be easily under- CNML's rights) was normal and the other stood as a case of the application of a abnormal. The situations are not compar- special charge, even in so far as it relates to able. RJB paid, as part of a wider transac- those elements in the payments which have tion, a price which must be assumed to take a public character. Although I concluded into account the absence of a future above that the hypothetically discounted obligation to pay royalties on existing price obtained for such rights upon the sale coal-producing assets.

I examine further below (at point (iiii Discrimination) the manner m which private property rights in coal reserves are disposed of, to the extent that they are separable from the award of mining licences of a public character. 18 — lì would simply have increased the aid payahle hy the United Kingdom to make up the difference hetween the 20 — The situation of BCC before privatisation was not loans on BCC's halance sheet at the end of the 1994/95 comparable as it was entrusted by the 1946 Act with the

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simply to waive licence fees in some cases, effectively equivalent to that offered and or to charge a lower or higher fee in some accepted under the other. The grant of a cases than in others, where comparable leasehold interest in coal reserves by nego- applications were made to it. What is tiation regarding specific sites and the sale missing in the present case is the element of such an interest through disposal of the of comparability between the two means of entire assets of a coal-mining undertaking acquiring such rights — the normal appli- are not so readily comparable as to give rise cation process and the CNML privatisa- to any immediate suspicion of discrimina- tion — which would lead one to conclude tion if the effective price paid differs as that those who avail of the more expensive between the two cases. means of acquisition are subjected to abnormally high charges which can be characterised as special for the purposes of the ECSC Treaty. In the circumstances, it is not, therefore, necessary to address the possible significance of facts such as the much greater scale of the operations of the regional companies spun off from BCC relative to that of the defendant and the 30. It might be possible to argue that the other members of Naloo. sale of CNML was organised in such a way as effectively, and without justification, to exclude smaller mining companies such as the defendant from the bidding process. This argument would not necessarily be defeated by the fact that the defendant pre- qualified for part of the privatisation pro- cess. However, the defendant does not seem to make any such case in these proceedings (iii) Discrimination and no such question has been referred by the Court of Appeal.

32. I conclude, therefore, in the light of the foregoing discussion, of the contentions of the parties in the main proceedings and of the factual evidence before the Court, that the difference alleged by the defendant in the amounts effectively charged for coal- mining licences and coal-reserve leases is 34. The Court stated in Banks I24 that, in not capable of constituting discrimination order to respond to the question whether between producers within Article 4(b) of certain provisions of the ECSC Treaty — the ECSC Treaty, a special charge within Articles 4(d), 60, 65 and/or 66(7) — were Article 4(c) of that Treaty, or aid with- 'directly effective and such as to give rise to in Article 4(c) of the same Treaty or within rights enforceable by private parties which Article 1 of the Coal Aid Code. must be protected by national courts', it was necessary to see whether those provi- sions 'are clear and unconditional provi- sions which confer directly on individuals rights which the national courts must protect'. The Court observed that 'Article 4 [of the ECSC Treaty] applies by itself only in the absence of more specific rules; if they The second question 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'. 2 5Article 60 of the ECSC Treaty was not relevant in that 33. The answer I propose to the first case, but the Court concluded that Arti- question would, if accepted by the Court,

24 — Op. cit., paragraphs 7 and 15. 22 — See footnote 14 above. 25 — Banks I, op. cit., paragraph 11; the Court cited in this 23 — Article 4(d) would not, in that case, he directiv effective; regard Industries Sidérurgiques Luxembourgeoises, see the discussion of Case C-128/92 Batiks [1994] op. cit., and Case 13/57 Eisen- und Stahlindustrie v High ECR 1-1209 (hereinafter 'Banks V) in paragraph 34. Authority [1957/58] ECR 265.

35. It is clear from the judgment in Banks I that provisions of the ECSC Treaty shall be directly effective and enforceable before national courts if they comply with the criteria already identified by the Court 37. It is necessary, therefore, to determine when addressing the same issue in respect whether whichever (if any) of those provi- of provisions of the EC Treaty and that, no sions may apply to the facts of the present matter how clear and unconditional their case is applicable on its own, or is supple- terms may appear to be when read on their mented by more specific rules with which it own, the provisions of Article 4 of the must be considered and applied as a whole. ECSC Treaty will not be deemed to have I start by referring to the power of the direct effect where their application is Commission under Article 88 of that dependent upon the exercise of decision- Treaty to record in a reasoned decision making powers conferred exclusively upon the failure of a Member State to fulfil an the Commission by more specific provi- obligation and to set a time-limit for its sions governing the same field. On the fulfilment. This provision cannot, in my other hand, it cannot, in my view, be stated view, be considered to be a 'more specific with any certainty, on the basis of an a rule' which prevents the application by contrario reading of the judgment in Banks itself of any other rule of the Treaty, such as I, that the Court would have held Arti- Article 4. Firstly, it is of general application cle 4(d) to be directly effective in the to the whole range of obligations created by or under the ECSC Treaty, without any specific connection with any obligation in 26 — Ibid., paragraphs 12 and 13. 27 — Ibid., paragraph 16. 28 — Ibid., paragraphs 17 and 18. 29 — Ibid., paragraph 19. 30 — Cited in footnote 7 above, paragraph 17 of the Opinion.

38. There does not seem to be any serious dispute about the fact that the ECSC Treaty does not contain any provisions more specific than Article 4(b) regarding the type of discrimination alleged in the present 40. The Court stated in Steenkolenmij- case, viz. price-discrimination between pro- nen 32 that Articles 4 and 67 of the ECSC ducers by the Coal Authority. Articles 60 Treaty have basically the same objective of and 63 of the ECSC Treaty relate, respec- ensuring normal competitive conditions, tively, to discriminatory pricing by sellers but that they make different fields subject and discrimination by purchasers. Arti- to different procedures. Because of the cle 65 of the ECSC Treaty, which prohibits discretion entrusted to the Commission agreements which distort normal competi- and the Member States by Article 67(2) tion, may apply concurrently with Arti- and (3) to seek to counteract Member State cle 4(b) to the same facts and the two action which is liable to have serious provisions are, to that extent, complemen- repercussions on conditions of competition tary. 31 However, the facts of the present in the coal or steel industries through case do not relate to an agreement between counterbalancing aid or other mitigating undertakings. Article 66(2) of the ECSC measures, the Court concluded that it could Treaty requires the Commission to observe not relate to the same measures which 'the principle of non-discrimination laid Article 4 declares to be abolished and down in Article 4(b)' when assessing pro- prohibited. It interpreted Article 67 as posed mergers. However, this entails taking relating to residual aspects of national into account the size of like undertakings in economic policy which were not directly the Community for the purposes of deter- affected by the partial integration achieved under the ECSC Treaty but which might,

none the less, have repercussions on com- facts of that case could not be said to fall petitive conditions in the sectors governed within the scope of application of Arti- by that Treaty. The different means made cle 67(2) or (3) and that the obligation available to the Commission under Arti- under Article 67(1) to keep the Commis- cle 67 were consistent with this approach, sion informed of national measures liable as it could not dictate Member State policy to affect competition could not, on its own, in fields outside the Community's jurisdic- affect the application of the prohibition in tion. 33 Article 4(c). Thus, on any view, the direct effect of Article 4(c) in that case could not be affected by any obligation to read it together with Article 67. 3 S It was not, therefore, necessary to examine afresh the ruling in Steenkolenmijnen summarised above regarding the relationship between 41. The Commission has submitted that Articles 67 and 4(c) of the ECSC Treaty, this approach should be reconsidered by nor should my remarks be understood as the Court in the light of developments in necessarily casting doubt upon it. Community law since 1961. These have led to a definition of aid under the ECSC Treaty which would also encompass, for example, national measures which favour ECSC undertakings relative to undertak- ings in other sectors of the economy; adherence to the existing approach would thus reduce Article 67 to a dead letter. The Commission also adverts to my own brief discussion of the direct effect of Article 4(c) of the ECSC Treaty in Ecotrade 34 to suggest that the same measure might fall to be considered under either Article 4(c) or Article 67, depending on the circum- stances, without this excluding the direct 43. As for the more general case made by effect of Article 4(c). the Commission, it does not convince me. Even if the conception of aid has widened in the years since the ruling in Steenkolen- mijnen, with the result that the two provi- sions' perceived fields of application have changed in relative importance, the distinc- tion drawn by the Court between the 42. Regarding my comments in Ecotrade, I absolute prohibition of aid and special would note that I simply observed that the charges in Article 4(c) and the implicit presumption of the lawfulness of the State 33 — Ibid., pages 23 to 25. For a recent application of this dictum, see Case T-37/97 Forges de Clabecq v Commission [1999] ECR 11-859, paragraph 141. The Court took a 35 — The situation was, thus, different from that in Banks I, different view of the relationship between these two op. cit., in which Articles 4(d), 65 and 66(7) were applied provisions in Industries Sidérurgiques Luxembourgeoises, together, and in Case C-18/94 Hopkins and Others v op. cit., page 195, treating Article 67(3) as a particular National Power and Poivergen [1996] ECR I-2281, which application of Article 4(c). concerned the interpretation of Articles 4(b) and 63(1) of 34 — Op. cit., paragraph 17 of my Opinion. the ECSC Treaty.

measures with which Article 67 is con- Netherlands v High Authority, 37 that, by cerned remains compelling. virtue of its residual character, Article 95 of the ECSC Treaty was not a permissible legal base for a mere restatement of the Member States' existing obligations under the Treaty. 38 Thus, the aid code at issue 'could not lawfully contain and should not, therefore, in case of ambiguity, be con- strued as containing a general prohibition of types of State aid other than those which it expressly permits'; 39 such an aid code could only be interpreted 'as establishing a "positive" list of types of aid which, when 44. Turning now to the Coal Aid Code, its they comply with the conditions set out provisions cannot, in my view, be consid- therein, may be deemed compatible with ered, in the circumstances of the present the common market by the Commission case, to create more specific rules with without further recourse to the Council'. 40 which the prohibition of aid in Article 4(c) of the ECSC Treaty must be read, requiring the two to be construed as a whole and applied together. The Coal Aid Code was adopted on the basis of Article 95 of the ECSC Treaty, which confers upon the Commission, in all cases not provided for in that Treaty, power to adopt, with the unanimous assent of the Council, measures necessary to attain one of the objectives of 45. If the Court accepts this approach to the Community set out in Articles 2, 3 and those cases, then, by the same reasoning, 4 of that Treaty. I do not think that the the requirements in Article 9(1) and (4) of mere fact that Article 95 of the ECSC the Coal Aid Code that Member States Treaty could potentially be used in the notify to the Commission by a certain date future to circumscribe further the field of all the financial support which they intend application of the prohibitions in Arti- to grant to the coal industry in the follow- cle 4(b) and (c) is relevant to the question ing year and refrain from putting into effect whether the latter provisions are directly planned aid until it has been approved by effective. On the other hand, measures the Commission cannot be understood as already adopted on that basis in the fields imposing, by virtue of those provisions, a governed by Article 4 may be relevant. I prohibition on the grant of non-notified have already had occasion to consider the aid. Article 9 can, in my view, lawfully lay scope of an aid code adopted for the steel down procedures for the exercise by the industry on the basis of Article 95 in my Commission of the power conferred by the joint Opinion in Wirtschaftsvereinigung Coal Aid Code to rule that certain types of Stahl v Commission and British Steel v aid are compatible with the common Commission.36 I concluded, having regard, in particular, to the Court's judgment in 37 — Case 9/61 |1962| LCR 213. 38 — Opinion in Wirtsclhiftsrereimgimg Stilbi v Commission and British Steel v Commission, op. en., paragraph 45. 36 — Case C-441/97 P and Case C-l/98 I', respectively. Opinion 19 — Ibid., paragraph 47. of 27 January 2000. 40 — Ibid., paragraph 46.

market and Member States may be required is compatible with the common market. 42 to comply with those procedures in order to In the absence of a Commission decision to benefit from such exceptional approval of this effect, national courts must draw the aid schemes which would otherwise be necessary consequences regarding the sta- prohibited by Article 4(c) of the ECSC tus of non-notified aid directly from Arti- Treaty. Furthermore, the provision made cle 4(c) of the ECSC Treaty. in Article 9(4) for Member States lawfully to implement an aid scheme in the absence of a Commission decision within three months of receipt of notification, combined with the wide terms in which the types of aid eligible for approval are defined in Articles 2 to 7 of the Coal Aid Code, make it seem unlikely that a national court could determine, on the basis of the underlying The third question prohibition in Article 4(c) of the ECSC Treaty, that a particular notified scheme on which the Commission had not pro- nounced its view was, in reality, unlawful. The position is different, however, as regards non-notified aid. The Court has 46. In my view, there is nothing in Com- recently confirmed that the Commission is mission Decision 94/995 or in the Commis- not competent under such an aid code even sion decision of 21 December 1994 author- to approve aid which is notified after the ising the acquisition of CNML by RJB expiry of the relevant deadline without which is pertinent to the defendant's con- returning to the Council for its assent in tentions in the present case. accordance with Article 95 of the ECSC Treaty.41 An aid scheme which has been notified late or, as in the present case, has not been notified at all falls outside the scope of the relevant aid code. In these circumstances, the prohibition of such aid flows directly from Article 4(c) of the 47. Thus, the decision authorising the pri- ECSC Treaty, which does not require any vatisation of CNML in accordance with further measures adopted on the basis of Article 66(2) of the ECSC Treaty does not Article 95 of the ECSC Treaty in order to advert, either directly or by implication, to have effect. In fact, this would be so even if the price paid for CNML and so cannot be the Commission has the power lawfully to understood as affecting the question of the rule that aid notified either late or not at all grant of State aid to RJB. It is silent as to the general question of charges for licences and leases. Reference is made to other licensed mining undertakings only in order to establish that they offer intense competi- tion as regards supplies to the electricity 41 — Case C-210/98 P Salzgitter v Commission [2000] ECR I-5843 (judgment of 13 July 2000), paragraphs 49, 54 and 55; see also Case 214/83 Germany v Commission [1985] ECR 3053, paragraphs 45 to 47 and Falck, 42 — See Case T-110/98 RJB Mining v Commission [1999] ECR op. cit., paragraph 16. II-2585.

supply industry and could quickly make up eral, respectively, of the Commission's any shortfall, to determine that RJB would Energy Directorate on 4 May 1995 and not be in a position to dominate the 14 July 1995 are of more direct interest. domestic market and to indicate that suffi- The former letter states the author's view, cient reserves had been held back by the to which I have already referred above, that Coal Authority for RJB's competitors. the sale by an open and competitive tendering process of BCC's regional mining undertakings obtained market value for these assets 'with no State aid to the regional coal companies and their respec- tive purchasers'. It is not necessary to determine whether this letter can be treated either as a decision of the Commission or as an annullable act sui generis, because its 48. Commission Decision 94/995 is not content is entirely consistent with my view, directly relevant to this case either, as it stated above, of the law on aid as it must be relates to various forms of aid to be granted applied, if the need arises, by the national to BCC, to pensions schemes for its former court. A conflict could only arise if the workers, or to its workers and former Commission's premiss — regarding the workers themselves, rather than to aid to open and competitive character of the sale either CNML or RJB in the form of the process — were questioned in the national grant of licences and leases either gratui- proceedings; this does not appear to be the tously (in the former case) or for less than case. Finally, the last sentence indicates that the normal lump-sum charge (as alleged in questions regarding licensing were being the latter case). It is stated in Part IX of the investigated by other Commission services. Decision that the sale of BCC's mining operations by competitive tender guaran- tees that the assets will be sold at their market value. However, this observation is made in the context of the grant of aid to BCC, the seller, amounting to the difference between the sale proceeds and its debts. Furthermore, it is not disputed in the present case on any side that the price paid for CNML represented its market value; the dispute, rather, concerns the conse- quences to be drawn from its sale at the market price as regards the treatment of other licensed mining undertakings. 50. In so far as the defendant's current contentions regarding licence and lease payments are reflected in the complaint submitted by Naloo to the Commission on 19 August 1994 — a question to which I return below — the Commission's letter of 14 July 1995 confirmed that its services 49. The letters sent to Naloo by the Direc- had not yet taken a stand on this aspect of tor-General and the acting Director-Gen- the complaint.

51. As a result, I conclude that the national Commission under Article 35 of the ECSC court's analysis of the possible application Treaty for failure to act in response to those of Article 4(b) and (c) of the ECSC Treaty aspects of Naloo's complaint which corre- and of the Coal Aid Code in the present spond to the issues now raised in the main case is not affected by the measures or proceedings. This question seems to have documents referred to in the third question. been referred on the basis (agreed by a majority in the Court of Appeal) that the complaint referred, if only to some limited extent, to the subject-matter of the present case. As in cases such as TWD, this question relates to the possible influence on national proceedings, in which the national courts make the material findings The fourth question of fact, of a party's omission to commence proceedings before the Court of First Instance, in the framework of which the latter court makes the factual findings necessary to determine its own jurisdiction. 52. It follows from my conclusion regard- It is necessary to avoid a situation where ing the third question that the defendant is the competent national court declines to not precluded, as a matter of Community grant a remedy on the basis of a party's law, from raising its present contentions failure to commence alternative judicial before the national court because it did not proceedings about whose admissibility seek the annulment of any of the measures legitimate doubts subsist. Thus, the Court or documents discussed immediately above. attached importance in TWD to the fact It is not, therefore, necessary to examine that the applicant in the main proceedings whether, or to what extent, the Court's in that case 'could without any doubt have reasoning in cases like TWD Textilwerke challenged [the contested decision] under Deggendorf, 43 which concerned Arti- Article 173 of the [EC] Treaty'. 44 cle 173 of the EC Treaty (now, after amendment, Article 230 EC) and Arti- cle 177 of the EC Treaty (now Article 234 EC), apply to the somewhat different terms of Articles 33 and 41 of the ECSC Treaty, or whether the facts of the present case satisfy the conditions laid down in that case-law. 54. In the circumstances of the present case, and in spite of the (less than unan- imous) findings of the Court of Appeal, I do not think it possible to say without any doubt that the Commission was seised of a 53. The second part of this question refers complaint corresponding, in part, to the to the fact that neither the defendant nor subject-matter of the present proceedings Naloo instigated proceedings against the and that its failure to act thereon could

— The difference in the amounts effectively charged for coal-mining licences and coal-reserve leases complained of in the defence and counter-claim in the main proceedings is not capable of constituting discrimination between producers within Article 4(b) of the ECSC Treaty, a special charge within Article 4(c) of that Treaty, or aid within Article 4(c) of the same Treaty or within Article 1 of Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the coal industry.

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OPINION OF MR FENNELLY — CASE C-390/98

56. In the alternative, should the Court take the view that the difference in treatment complained of is capable of coming within one of the abovementioned provisions, I would propose that the Court rule that, in the circumstances of the present case, Article 4(b) or, as the case may be, Article 4(c) of the ECSC Treaty is directly effective and enforceable before national courts. In such circumstances, I would also recommend that the Court give a positive response to the third question referred by the Court of Appeal and reply in the negative to the fourth question, in so far as those questions relate to discrimination or to special charges.

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