C-172/01

IV — The judgment under appeal I-11431

V — The appeal I-11433

VI — Legal assessment I -11435

A — Admissibility of the appeals I-11435

1. Submissions of the appellants IP, BC and PG I-11435

2. Assessment I-11435

(i) Object of the 1990 complaint I-11442

(ii) Characterisation of the Commission's 1991 Decision and letter . . . I-11442

(iii) Findings relating to the principle of legal certainty I-11446

1 — Original language: German.

I - 11425

OPINION OF MR ALBER — JOINED CASES C-172/01 P, C-175/01 P, C-176/01 P AND C-180/01 P

(a) Arguments of the parties I -11459

(b) Assessment I-11459

5. The lawfulness of the contested decision I-11461

(a) Arguments of the parties I-11461

(b) Assessment I-11462

(i) Discriminatory prices I-11462

(a) Arguments of the parties I -11466

(b) Assessment I-11467

2. Evidence of an infringement of Article 66(7) of the ECSC Treaty I-11468

(a) Arguments of the parties I-11468

(b) Assessment I -11469

VII — Costs I -11470

6. As a result of those rulings, NALOO brought a further complaint on 15 June 1994, which it described as 'supplemental'. By that description, NALOO intended the 1994 complaint to cause the 1990 com- plaint to be regarded as still current. The 3. NALOO and its members considered question whether the complaint brought in themselves discriminated against vis-à-vis 1990 can be regarded, as it was by the BC, because the electricity supply industry Court of First Instance, as still current, or paid them significantly lower prices for supplemented, in 1994, or whether the coal than it paid to BC. In addition, they 1994 complaint constituted a new com- considered the royalty imposed by BC plaint is therefore also essential to the excessive. resolution of the dispute.

I - 11427

OPINION OF MR ALBER — JOINED CASES C-172/01 P, C-175/01 P, C-176/01 P AND C-180/01 P

7. In 1998, the Commission adopted a and prohibited within the Community, as decision on the 1994 complaint, in which provided in this Treaty: it refused to make the finding sought by that complaint in respect of the earlier period from 1986 to 1990.

(a) ...

8. By judgment of 7 February 2001 in Case T-89/98 2 ('the judgment under appeal'), (b) measures or practices which discrimi- the Court of First Instance annulled that nate between producers, between pur- decision. The Commission, and BC, IP and chasers or between consumers, PG who where interveners in support of the especially in prices and delivery terms Commission at first instance, have now or transport rates and conditions, and brought these appeals against that judg- measures or practices which interfere ment. with the purchaser's free choice of supplier;

11. As regards abuse of a dominant pos- 13. In May 1986, CEGB and BC reached ition, Article 66(7) of the ECSC Treaty an arrangement ('the 1986 Understanding') provides: on coal prices, which also produced effects for the members of NALOO.

'If the Commission finds that public or private undertakings which, in law or in 14. From 1987 to 1988, the royalty for fact, hold or acquire in the market for one coal extraction imposed on NALOO of the products within its jurisdiction a members by BC was gradually reduced dominant position shielding them against from £16/t to £11/t. After the reduction to effective competition in a substantial part £11/t, NALOO wrote to BC, by letter of of the common market are using that 13 May 1988, acknowledging that the position for purposes contrary to the objec- royalty was reasonable and agreeing to tives of this Treaty, it shall make to them withdraw the action it had brought in such recommendations as may be appropri- connection with the level of the royalty. ate to prevent the position from being so On 1 April 1990, the royalty was further used. If these recommendations are not reduced to £7/t. implemented satisfactorily within a reason- able time, the Commission shall, by decisions taken in consultation with the government concerned, determine the prices and conditions of sale to be applied by the undertaking in question or draw up 15. In contracts between National Power, production or delivery programmes with PG and BC, covering the period from which it must comply, subject to liability to 1 April 1990 to 31 March 1993, prices of the penalties provided for in Articles 58, 59 170 p/GJ gross (gross calorific value) and and 64.' 177.9 p/GJ net (net calorific value) were fixed for coal supplied by BC, as compared with prices ranging from 122 p/GJ to 139 p/GJ for coal supplied by the licensed producers.

17. For the precise wording of the com- 20. By letter of 24 October 1990, the plaint and the supplementary observations United Kingdom authorities, on behalf of reference should be made to the extracts BC, IP and PG, made an offer to NALOO cited in paragraphs 13 and 14 of the to increase the price for coal extracted judgment under appeal. In paragraph 15 under licence and to reduce the royalty, of that judgment, the Court of First both with retroactive effect to 1 April instance went on to state: 1990. After NALOO rejected that offer, the proposed conditions were applied uni- laterally, whereupon the Commission i n f o r m e d N A L O O , by l e t t e r of 21 December 1990, that it considered that there was no longer any need for further 'In the summary of its arguments of action on its part. 5 September 1990 the complainant alleged that the electricity generating producers had systematically practised discrimination in their capacity as purchasers, within the meaning of Article 63 of the [ECSC] Treaty, and that the conduct of BC com- plained of, including fixing royalties at an 21. On 8 February 1991, declining a arbitrary level..., was contrary to Article 60 request made by NALOO in a letter of and Article 66(7) of the [ECSC] Treaty.' 11 January 1 9 9 1 , the Commission informed NALOO in writing that it was not obliged 'to adopt a formal decision finding that there has been an infringement in the past merely to facilitate a possible claim for damages by a complainant'. It 18. On the basis of paragraphs 16 to 23 of added that the national courts were better the judgment under appeal, the subsequent placed than the Commission to consider developments can be summarised as fol- individual cases of misconduct which might lows: have occurred in the past.

NALOO had once again made clear, by provisions of the ECSC Treaty, namely letter of 14 March 1991, that what it Articles 4(b) and 63, and Articles 4(d), 65 specifically sought were findings by the and 66(7), do not confer rights on individ- Commission with regard to the 1986 uals which are directly enforceable by them Understanding between BC and CEGB. in proceedings before the national courts. 6 Consequently, where the Commission has not made a finding that those provisions have been infringed, the national courts may not entertain an action for damages. 7 On the basis of those rulings, the High 23. NALOO's action for annulment of the Court dismissed the actions for damages. 1991 Decision was dismissed by the Court of First Instance in the judgment in Case T-57/91 5 ('NALOO I'), which is now final. Since in the course of the proceedings the applicant had withdrawn the part of its original application in which it sought compensation for the unreasonable 26. On 15 June 1994, referring to the royalties levied by BC before 1 April 1990, Court of Justice's ruling in Banks, NALOO that judgment concerned only the Commis- lodged a 'supplemental' complaint with the sion's findings in respect of prices and Commission, which, however, rejected that royalties after that date. complaint by Decision IV/E-3/NALOO of 27 April 1998 ('the 1998 Decision').

— The infringements of Articles 63 ( 1 ) and 66(7) of the ECSC Treaty during the (business) years 1986/87 to 1989/90 were brought to the attention of the — It was enough to examine the prices Commission for the first time not in the applied by BC in the light of 1994 complaint, but in the 1991 com- Article 66(7) of the ECSC Treaty. It plaint (paragraphs 46 to 52 of the was not necessary to settle the question judgment under appeal). of the applicability of Article 65 (para- graph 82 of the judgment under appeal).

— The Court of First Instance was wrong to treat the 1990 and 1994 complaints as a single complaint. It failed to V — The appeal recognise that the 1990 complaint had been conclusively dealt with by the definitive 1991 Decision, and thus violated the principle of legal certainty. 29. The Commission (Case C-180/01 P), together with IP (Case C-172/01 P), BC (Case 175/01 P) and PG (Case C-176/01 P), who intervened in the case at first instance in support of the Commission, have — Contrary to what the Court of First appealed against the judgment of the Court Instance held, in 1994 the Commission of First Instance. The appeals brought by IP was not empowered to take action in and PG concern only the findings of the respect of the infringements alleged to Court of First Instance relating to infringe- have taken place in the years 1986/87 ment of Article 63(1) of the ECSC Treaty as to 1989/90. a result of the application of discriminatory prices. NALOO, as the other party to the proceedings, has also submitted observa- tions. — The Court of First Instance incorrectly held that the Commission had an obligation to investigate the complaint in so far as it related to infringements 30. By order of 5 July 2001, the President prior to 1 April 1990. of the Court of Justice joined the cases for the purposes of the written and oral procedure and the judgment.

— The Court of First Instance erred in law in its findings regarding the lawfulness of the decision (inadequate statement 31. By order of 17 July 2001, the President of reasons). of the Court of Justice rejected the Com- mission's application, made by separate document lodged on 22 May 2001, to suspend operation of the judgment under appeal pursuant to Article 39 of the ECSC 33. In addition, BC claims that the Court Treaty. of First Instance made an error of pro-

(1) dismiss the appeals, (1) set aside the judgment of the Court of First Instance of 7 February 2001 in Case T-89/98 in so far as it relates to the application of Article 63(1) of the ECSC Treaty, and in the alternative, annul Commission Decision IV/E-3/NALOO of 27 April 1998,and

(2) dismiss NALOO's action in that (2) in either case, order the appellants to respect. pay the costs incurred by NALOO. I - 11434

INTERNATIONAL POWER AND OTHERS v NALOO

VI — Legal assessment ment of the decision by the Court of First Instance imposes an obligation on the Commission to investigate the allegations, first made in the 1990 complaint and then reiterated in the 1994 complaint, concern- ing both the coal prices applied by IP and PG or their predecessors in title prior to A — Admissibility of the appeals 1 April 1990 and the royalties charged by BC at the time. The undertakings would be directly affected if the new investigation led the Commission to fault their conduct during that earlier period, thus possibly providing grounds for actions for damages by NALOO members. 1. Submissions of the appellants IP, BC and PG

38. IP, BC and PG explain in detail why they are entitled to bring an appeal against the judgment of the Court of First Instance. As interveners in support of the Commis- sion, they are 'parties', within the meaning of the second paragraph of Article 49 of the 2. Assessment ECSC Statute of the Court of Justice, who have been unsuccessful in their sub- missions.

40. Interveners at first instance are also to 39. The judgment under appeal directly be regarded as parties who may bring an affects them (second sentence of the second appeal within the meaning of the first paragraph of Article 49 of the ECSC sentence of the second paragraph of Statute). 9 They were involved in the Com- Article 49 of the ECSC Statute. 10 Since mission procedure at various stages and IP, BC and PG were interveners in support submitted observations in respect of of the Commission in the proceedings NALOO's complaints. In addition, annul- before the Court of First Instance they are

44. That does not mean, however, that the 42. In the contested decision, the Commis- Commission would necessarily uphold the sion stated that Articles 63(1) and 66(7) of complaint. Nor is it at all clear whether the the ECSC Treaty did not empower it to act national court subsequently seised of the on a complaint lodged in 1994 concerning matter would award damages to NALOO infringements alleged to have taken place in members on the basis of any findings that the years between 1973 and 1990. 1 1The might be made by the Commission in Commission also took the view that respect of the period before 1 April 1990. NALOO had not proven its allegations of infringement of Article 66(7). If that decision had been the end of the matter, there would not have been any foundation for damages claims by NALOO members against the appellants: according to the case-law of the Court of Justice, actions in 45. Nevertheless, the appellants are respect of such claims may be brought directly affected by the judgment because before the national courts only where the as a result of the annulment of the Com- Commission has already made a finding of mission decision there is now at least some infringement of the relevant provisions of risk that they could be ordered to make the ECSC Treaty. payments. To cater for that risk, the under- takings concerned might need already to make sufficient financial provision on their balance sheets.

43. The Court of First Instance annulled the contested decision inter alia on the ground that the Commission had an obli-

11 — See points 19 and 32 of the contested decision. 46. The appeals are therefore admissible.

48. On the one hand, it seems that it is now no longer possible for the Commission to make recommendations to a Member State or an undertaking on the basis of the lapsed 51. The Court of First Instance based its provisions of the ECSC Treaty. 12 annulment of the contested decision on a failure to state reasons. By contrast, the findings in paragraphs 44 to 85 of the judgment under appeal are not in fact reasons for the annulment of the decision, but rather, as the Court of First Instance 49. On the other hand, a decision contested stated in paragraph 86, they explain why in an action for annulment is to be assessed the Commission was right to examine the on the basis of the elements of fact and of 1994 complaint in the alternative by the 1998 Decision. 12 — According to settled case-law, in the absence of transi- tional provisions, new rules (in this case the EC Treaty) apply immediately to the future effects of a situation which 13—Joined Cases 15/76 and 16/76 France v Commission arose under the old rules: Case C-512/99 Germany v [1979] ECR 321, paragraph 7; Case 114/83 Société Commission [2003] ECR I-845, paragraph 46, and Case d'initiatives et de cooperation agricoles v Commission C-162/00 Pokrzeptowicz-Meyer [2002] ECR I-1049, para- [1984] ECR 2589, paragraph 22, and Case T-251/97 T. graph 50. Port v Commission [2000] ECR II-1775, paragraph 38.

I - 11437

OPINION OF MR ALBER — JOINED CASES C-172/01 P, C-175/01 P, C-176/01 P AND C-180/01 P

55. IP considers that the Court of First 53. However, it cannot be denied that there Instance was correct to find that the 1990 is a certain relationship between the Court complaint also related to the earlier period of First Instance's finding of a failure to from 1986 onwards. By contrast, BC takes state reasons, which led to annulment of the view that NALOO's complaint con- the decision, and the observations which cerning the level of the royalties related precede that finding. The question whether only to the period from 27 December 1987 Articles 63(1) and 66(7) of the ECSC to 31 March 1990. Treaty in any way empower or oblige the Commission to take action in a case like this is relevant to determining the standards with which the reasons given in the decision must comply. Therefore, in order to provide a comprehensive assessment of 56. NALOO contends that BC's sub- the legal issues raised in this case, all the mission in that regard is inadmissible, since grounds of appeal should be examined. it was first raised in the appeal proceedings. In addition, it is clear from the original 1990 complaint and the supplementary observations of 27 June 1990 that NALOO had complained of the past pricing in 2. Incorrect classification of the 1990 and general and had not limited its complaint 1994 complaints as a single complaint, and to the period after 27 December 1987. violation of the principle of legal certainty

(a) Arguments of the parties 57. IP, BC and PG dispute the Court of First Instance's finding in paragraphs 70 to 72 that the 1991 Decision neither rejected nor refused to examine the part of the 54. All the appellants submit that the Court complaint that related to the period before of First Instance erred in law in considering 1 April 1990 and that there was thus no

challengeable decision relating to that 60. NALOO contends that the appellants' period. In fact, the correspondence argument that the 1990 complaint has exchanged between NALOO and the Com- become devoid of purpose is inadmissible mission after the 1991 Decision had been because it challenges the factual appraisal adopted shows instead that, contrary to made by the Court of First Instance. The NALOO's express request, the Commis- finding by the Court of First Instance that sion refused to carry out such an examin- the 1991 Decision did not contain a ation. 14 rejection of the complaint in so far as it related to the period before 1 April 1990 is an appraisal of evidence which likewise cannot be challenged in appeal proceed- ings. 58. The Commission continues to maintain that in the 1991 Decision it did not itself adopt a position on the allegations relating to the period before 1 April 1990. How- ever, it considers that in its letter of 21 February 1991 or its letter of 61. Consequently, the argument that a 4 September 1991 it did adopt a decision measure had been taken which could have rejecting that part of the complaint. been challenged by NALOO can also not be sustained. Even if in 1991 the Commis- sion had in fact refused to investigate past infringements, that would not preclude their examination by the Commission at a 59. That leads IP, BC, PG and the Com- later date. NALOO can also not be criti- mission to conclude that the refusal to cised for failing to institute proceedings examine that part of the complaint is no against the Commission under Article 35 of longer open to challenge because NALOO the ECSC Treaty, since the Commission failed to institute proceedings pursuant to itself had suggested that NALOO pursue the second paragraph of Article 33 of the actions for damages before the national ECSC Treaty and because it withdrew its courts. action in NALOO I in so far as it related to the alleged infringements in the period before 1 April 1990. If the Commission's refusal did not constitute an express decision, NALOO would in any event have 62. IP, BC and the Commission further had to follow the procedure provided for in submit that complaints relating to the past Article 35 of the ECSC Treaty. A fresh conduct of an undertaking may only be examination by the Commission of the made within a reasonable time, as other- 1990 complaint, which had become devoid wise that undertaking's capacity to mount a of purpose after its rejection by the Com- defence would be adversely affected. 16 In mission, would violate the principle of legal 1994 (and certainly by 2001) IP and BC certainty. 15 were already scarcely in a position to

prepare a reasonable defence in respect of 65. PG and the Commission submit that the allegations relating to the period before the 1994 complaint was a new complaint, 1 April 1990. which was based on the altered situation following Banks, and which contained new information. Even if the complaints relate to the same period of time and the same legal provisions, those complaints, which were lodged four years apart, cannot be regarded as a single complaint. The com- plaints sought different remedies, namely 63. While it was not until 1994 that the the making of a recommendation (the 1990 Court of Justice ruled in Banks that a complaint), and the adoption of a decision Commission decision relating to the alleged or a formal finding (the 1994 complaint). infringements was a precondition for an action for damages before the national courts, that ruling was merely an inter- pretation of the existing law. NALOO cannot rely on an earlier, erroneous inter- pretation of the law (even on the part of the Commission), to justify its failure to insti- tute proceedings against the part of the 1991 Decision in which the Commission refused to examine infringements alleged to 66. PG adds that in NALOO I the Court of have occurred prior to 1 April 1990. First Instance itself regarded the 1994 complaint as a new complaint. Given the definitive nature of that judgment, in the judgment under appeal the Court was bound to classify the 1994 complaint as a new complaint. The fact that the 1991 Decision had become definitive prevented the Commission from regarding the later 64. By contrast, NALOO states that since 1994 complaint as a continuation of the no particular time-limit is prescribed, it lies 1990 complaint. It was only because within the Commission's discretion — just NALOO raised new matters of fact that as is the case for the initiation of proceed- the Commission was empowered to adopt ings for failure to fulfil Treaty obligations any decision at all which went beyond an under Article 226 EC — to decide when to unchallengeable confirmation of the 1991 take action in respect of infringements of Decision. Articles 63(1) and 66(7) of the ECSC Treaty. The principle of protection of legitimate expectations has not been viol- ated. Immediately after the 1991 Decision was adopted, the actions for damages which ultimately led to the judgments in Banks and Hopkins in 1994 were brought before the national courts. It had therefore been clear in the period from 1990 to 1994 67. By contrast, NALOO maintains that it that the contentious issues remained unre- is of no relevance that in the judgment in solved. NALOO I and the order in Case I - 11440

71. In paragraph 51 of the judgment under appeal, the Court of First Instance initially justifies its classification of the 1990 and (b) Assessment 1994 complaints as a single complaint by stating only that they concern the same provisions and allege the same infringe- ments by the same parties during the same 69. The question whether there was a period. single complaint or more than one com- plaint brought in succession is essential to the reasoning subsequently employed in the judgment under appeal. Were it the case that — contrary to what was held by the 72. However, that justification alone is not Court of First Instance — the Commission convincing. A further prerequisite for had already rejected the complaint in 1991 regarding the 1994 complaint as a continu- and, accordingly, received another com- ation of the 1990 complaint is, namely, plaint in 1994, it would be necessary to that at the time the supplemental complaint consider whether the Commission was was lodged in 1994, the first complaint was entitled reexamine the matter, and whether not already devoid of purpose as a result of the 1998 Decision is in fact a challengeable its earlier rejection by the Commission. measure at all and not merely a reiteration of the 1991 Decision. 18 — See point 13 of the contested decision, cited in paragraph 56 of the judgment under appeal. 19 — See paragraph 59 of the judgment under appeal. As a result 17 — Order of the Court of First Instance of 29 April 1998 in of the subsequent reasoning in paragraphs 60 to 64 of that Case T-367/94 British Coal v Commission [1998] ECR judgment, it is not entirely clear to what extent, in the II-705. In that order, the Court of First Instance dismissed opinion of the Court of First Instance, the continued an action brought by BC against the Commission's implied existence of the infringement at the time the complaint was refusal to reject NALOO's 1994 complaint outright, on brought was in fact decisive for the question whether the the ground that it manifestly lacked any foundation. Commission was entitled to exercise its powers.

(i) Object of the 1990 complaint 77. BC has not made any submission pleading that the Court of First Instance 74. In paragraphs 46 and 48 of the judg- made such an error. On the contrary, BC ment under appeal, the Court of First concludes, essentially on the basis of the Instance found, after evaluating NALOO's fact that certain passages of the complaint complaint of 29 March 1990 and the refer to a royalty of £11/t, which was not supplementary letters, that in 1990 alle- applied until 27 December 1987, that gations of infringements in the years from NALOO's complaint did not embrace the 1986/87 to 1989/90 were referred to the levels of royalty imposed prior to that time. Commission. The substance of that finding In that respect, BC has made an assessment has not been challenged by the parties. of the complaint which differs from that of There is merely a submission by BC that the the Commission, and thus also the Court of allegations as to the level of the royalty First Instance, without, however, explain- r e l a t e d only to the p e r i o d after ing why the Court's understanding of the 27 December 1987. complaint is manifestly incorrect and thus constitutes an error of fact. This ground of appeal must therefore be rejected.

75. In that regard, the following should be noted. Assuming that the Commission is in fact empowered and obliged to investigate past infringements — an assumption which still has to be examined — then it (ii) Characterisation of the Commission's 1991 Decision and letter could of its own motion broaden its investigation to include periods of time which were not referred to in NALOO's complaint. For that reason, it is not clear 78. At issue here is whether the Court of what BC could gain from the setting aside First Instance's finding in paragraph 71 of of the Court of First Instance's finding relating to the temporal scope of the 20 — See Case C-8/95 P New Holland Ford v Commission complaint. [1998] ECR I-3175, paragraphs 25 and 72.

the judgment under appeal that in the 1991 81. The introduction to the 1991 Decision Decision, the Commission did not take a states: decision on the part of the 1990 complaint relating to the period before 1 April 1990 is correct in law. It is also necessary to consider whether the Court failed to recog- nise that in so far as that period is concerned, the complaint was rejected by 'This letter which sets out a Commission either the Commission's letter of 8 February decision deals with certain aspects [of the 1991 or its letter of 4 September 1991, as complaint lodged] by [NALOO].... It deals the Commission maintains. with the position in England and Wales, in the light of the new situation arising from the entry into operation of [the supply contracts] between [BC], [NP] and [PG] on 1 April 1990. Other issues, particularly those regarding the situation... before 1 April 1990... are not dealt with.' 79. Those issues can be examined by the Court of Justice in appeal proceedings. While they do indeed concern the assess- ment of the content of the 1991 Decision and the letters referred to above, their main focus is the examination of the legal effects 82. The question arises whether any of of the Commission's actions. 21 those actions was intended to produce legal effects and must therefore be regarded as a decision within the meaning of the second paragraph of Article 14 and the first paragraph of Article 33 of the ECSC Treaty. 22 80. In the letter of 8 February 1991, the Commission stated that it was not obliged to adopt a formal decision finding that there had been infringements in the past in order to facilitate a possible claim for damages by a complainant. It also 83. At the outset it should be noted that the explained that it had not fully investigated characterisation of the passage cited above the effects of the 1986 Understanding and as a decision is not called into question therefore expressed no opinion on it, merely — as the Court of First Instance because, after reaching an agreement with believes — by the alleged circumstance BC's predecessor in title, NALOO had that it appears solely in a covering letter withdrawn an action against the United accompanying the decision. In fact, as the Kingdom Office of Fair Trading which it Commission itself states — see point 81 — had instituted before the national courts. The Commission made similar statements in the letter of 4 September 1991. 22 — In its case-law, the Court of Justice commonly applies this criterion as a precondition for classification of a measure as a decision under the EC Treaty. See Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case C-180/96 United Kingdom v Commission [1998] ECR 21 — SFEI, cited in footnote 14, paragraphs 25 and 26. I-2265, paragraph 27.

84. Considered in isolation, the Commis- sion's statements could be regarded as a simple declaration of its inactivity or as a 87. In that regard, it should first be recalled delimitation of the subject-matter of the that NALOO repeatedly asked the Com- decision by exclusion of the contentious mission to also examine the effects of the earlier period. However, if the factual and 1986 Understanding. By that request, legal context are also taken into consider- which was already contained in the letter ation, the Commission's actions must be of complaint of 29 March 1990, NALOO regarded as constituting a rejection of the made clear that what it sought was in fact complaint. an investigation into the situation since 1986/87. After the Commission confined itself, in its provisional findings of 1 April 1990, to addressing the situation after 1 April 1990, NALOO reiterated, in its letter of 11 January 1991, its request 85. It follows from the case-law of the relating to the 1986 Understanding. Court of Justice 23 that 'an institution Finally, NALOO again brought up the empowered to find that there has been an matter in its letter of 14 March 1991. infringement and to inflict a sanction in respect of it and to which private persons may make complaint, as is the case with the Commission in the field of competition, necessarily adopts a measure producing legal effects when it terminates an investi- gation initiated upon a complaint by such a person'. 88. Even though the Commission stated in its letter of 8 February 1991 that 'we have... not investigated... fully' the situ- ation before 1 April 1990, it had never- theless at least commenced an investigation 86. While that observation relates to cases in response to NALOO's complaint. On the governed by the competition law laid down basis of the knowledge gained from that investigation, the Commission contacted the United Kingdom authorities by letter 23 — SFEI, cited in footnote 14 above, paragraph 27. See, also, Case C-19/93 P Rendo and Others v Commission [19951 of 28 August 1990 and informed them of ECR I-3319, paragraph 28. its (provisional) opinion that the pricing I - 11444

90. The question whether the rejection decision was already contained in the Commission's letter of 8 February 1991, or whether it was contained in the sub- sequent 1991 Decision has, however, not yet been conclusively resolved. Since NALOO did not institute proceedings in respect of either of those measures, that 93. The first ground of appeal should thus question can ultimately remain open. be accepted in so far as it is directed against the finding of the Court of First Instance that the Commission was acting on a single complaint, first lodged in 1990 and supple- mented in 1994, when it adopted the 91. However, there are a number of argu- contested decision. Since the first complaint ments in favour of regarding the letter of had already been rejected by a decision and had thus been dealt with, the second complaint could no longer be regarded as 24 — For the precise wording of the letter, see the extracts cited in paragraph 17 of the judgment under appeal. a continuation of the first one.

I - 11445

OPINION OF MR ALBER — JOINED CASES C-172/01 P, C-175/01 P, C-176/01 P AND C-180/01 P

(iii) Findings relating to the principle of purpose of having time-limits for bringing legal certainty legal proceedings is to ensure legal certainty by preventing Community measures which produce legal effects from being called in question indefinitely. 27 It is common 94. The question arises whether the finding ground that NALOO did not challenge that the adoption of the 1998 Decision was the Commission measures referred to above not contrary to the principle of legal and that in NALOO I it withdrew at least certainty is incorrect in law. It is true that the part of its action of relevance in this the Court of First Instance based its finding regard. on the incorrect premiss that the complaint had not already been rejected in 1991 by a challengeable decision.

99. When applying that test, it is necessary 25 — On the power of the Court of Justice to uphold a judgment to distinguish between two different situ- where it proves to be well founded for reasons other than those given by the Court of First Instance, see Case C-30/91 P Ustelle v Commission [1992] ECR I-3755, paragraph 28, Case C-320/92 P Finsider v Commission [1994] ECR I-5697, paragraph 37, and Case C-210/98 P 27 — AssiDomän, cited in footnote 26, paragraph 61. Sahgitter v Commission and Germany (2000] ECR 28 — Case 26/76 Mefro v Commission [1977] ECR 1875, I-5843, paragraph 58. paragraph 4, Joined Cases 166/86 and 220/86 Irish 26 — Case 20/65 Collotti v Court of Justice [1965] ECR 847, Cement v Commission [1988] ECR 1473, paragraph 16, TWD Textilwerke Deggendorf, cited in footnote 15, and Case C-180/96 United Kingdom v Commission, cited paragraph 13, and Case C-310/97 P Commission v in footnote 22, paragraph 28. AssiDomän Kraft Products and Others [1999] ECR 29 — Case 54/77 Herpels v Commission [1978] ECR 585, I-5363, paragraph 57. paragraph 14.

I - 11446

INTERNATIONAL POWER AND OTHERS v NALOO

101. Where, in response to a further com- plaint alleging the same infringements, the Commission — relying on new legal argu- ments — rejects that complaint, this does 104. For a case such as the one at issue not constitute a mere confirmation of the here, that decision prescribes a limitation first decision. Similarly, there is no viol- period of five years (Article 1(1)(b)) which ation of the principle of legal certainty can be extended, as a result of inter-

30 — On this see Case 232/85 Becker v Commission [1986] ECR 3401. 31 — OJ 1978 L 94, p. 22.

I - 11447

OPINION OF MR ALBER — JOINED CASES C-172/01 P, C-175/01 P, C-176/01 P AND C-180/01 P

(a) Arguments of the parties 107. Accordingly, the principle of legal certainty did not preclude adoption of the contested decision, even though the same infringements had already been the subject- 110. All the appellants submit that matter of an earlier decision. Furthermore, Article 63(1) and the first sentence of I - 11448

INTERNATIONAL POWER AND OTHERS v NALOO

Article 66(7) of the ECSC Treaty empower 114. Conversely, NALOO submits that the the Commission solely to adopt recom- Court's approach was correct. In an action mendations, which by nature have only relating to a refusal to carry out an prospective effect. IP, BC and PG argue investigation, there is no need for the Court that those provisions do not empower the to determine what form of legal measure, if Commission to make findings relating to any, the Commission can adopt at the end past infringements which have now ceased. of the investigation. That must be decided by the Commission itself.

111. The Commission takes the view, unlike the other appellants, that the key issue is not whether an infringement has already ceased but whether it has continu- 115. IP and PG add that under Article 14 of ing effects which are capable of being the ECSC Treaty the power to adopt remedied by the adoption of a recommen- decisions includes the power to make dation. recommendations, since decisions represent the more significant encroachment on national sovereignty. Conversely, however, the power to adopt decisions is not included in the power to make recommen- dations. Where decisions are provided for, they are expressly referred to in the relevant 112. By contrast, NALOO considers that Treaty provisions. the Court of First Instance was right to take the view that the Commission can make findings in respect of past infringements of the provisions in question.

mendations relating to past discrimination Commission to make findings in respect of which had already ceased. It is only by way the past as a prerequisite for bringing an of a recommendation concerning discrimi- action for damages. That principle was nation which is still being practised that the already unsuccessfully relied on in Hopkins Commission can take account of the effects as justification for the contention that which that discrimination had on market Article 63 is directly applicable. actors prior to its involvement. Affected undertakings can then rely on a finding of infringement, contained in a recommen- dation, before the national courts. The Commission is not however empowered to make a finding separately from a recom- mendation, in order to facilitate an action for damages. 120. By contrast, NALOO submits that in Hopkins the Court of Justice referred to the effective judicial protection which the ECSC Treaty provides to victims of price discrimination, and concluded that Article 63(1) provides for the making of 117. NALOO submits that in Hopkins the findings relating to past infringements. 33 Court of Justice was called upon to give a ruling in proceedings concerning an action for damages in respect of past infringe- ments and that its observations relate to precisely such a case as this.

122. Compensation cannot be sought for PG and IP — which do not even have a every case of past loss arising from mal- right to bring actions under that treaty. functioning markets. 34 Therefore, the cir- cumstance that NALOO members could not succeed in actions for damages before the national courts because the Commis- sion had made no finding in respect of 125. Finally, BC and NALOO have dif- events in the past does not constitute a gap fering opinions as regards Article 65 of the in the system of legal remedies. The legal ECSC Treaty. BC considers that the Court systems of the Member States do not in of First Instance incorrectly left open the general recognise a right to damages for question of the applicability of Article 65, breach of competition rules. whereas it should have held that it was not applicable. NALOO submits that if the Court of Justice finds that Article 66(7) does not empower the Commission to make findings relating to past situations, it should in any event hold that Article 65 is applicable. 123. Even if a finding of past discrimi- nation were made, no legal consequences would ensue from Article 63(1). Instead, the Commission would have to make a detailed recommendation stating how the 126. The Commission complains that discrimination should be brought to an end Court of First Instance annulled the for the future. For example, the discrimi- decision in its entirety although it neither nation could be ended by reducing the examined nor rejected the Commission's prices paid to BC or by raising the prices findings as regards the applicability of applicable to NALOO members. The exist- Article 65 of the ECSC Treaty. ing system is thus based only on preventive protection and not on compensation for damage.

128. However, that does not suffice to 130. The starting point for a consideration overturn in their entirety the Court's find- of the Commission's powers is, first, the ings relating to the Commission's powers, wording of Article 63(1) of the ECSC as those findings are not based only on the Treaty. The use of a present indicative assumption that the infringements were still tense ('... that discrimination is being continuing. Instead, the Court of First systematically practised by purchasers...' Instance inferred from Hopkins 35 that the suggests that the infringements complained combined provisions of Articles 4(b) and of must still be taking place at the time the 63(1) of the ECSC Treaty, on the one hand, Commission makes its findings. and of Articles 4(d) and 66(7) of the ECSC Treaty, on the other, in any case empowered the Commission to examine NALOO's complaint in so far as it related to the allegedly discriminatory pricing and unreasonable levels of royalty in the years 1986/87 to 1989/90. 36 The Court of First 131. Moreover, account should be taken of Instance also appears to have reached that the fact that that provision empowers the conclusion independently from the first Commission solely to make recommen- part of the grounds given by it. dations to the governments concerned, a power which does not include the power to adopt decisions. It is clear from the fifth paragraph of Article 14 of the ECSC Treaty that decisions are regarded as a more serious encroachment on the sovereignty of the Member States than recommen- 129. Therefore, it is now necessary to dations, with the consequence that the determine what power each of the provi- power to adopt decisions also includes the sions in question conferred on the Com- power to make recommendations, which mission in respect of infringements which constitute the weaker measures. One can therefore also draw the converse conclusion that in situations where only recommen- 35 — Cited in footnote 6. dations are provided for, the Commission is 36 — Paragraphs 61 to 63 of the judgment under appeal. not ipso facto entitled to adopt a decision.

133. The appellants base their arguments 135. It follows that in a recommendation on the assumption that the sole purpose of the Commission may require the Member recommendations is to set objectives for State not only to put an end to the their addressees, who are to meet those discrimination for the future but also to objectives in the future by methods of their remedy the effects of any past discrimi- choosing. They argue that if the discrimi- nation. Such an order would not be incon- nation practised by the purchasers has sistent with the prospective nature of a already ceased, the Commission plainly recommendation. The Member State would cannot, by way of a recommendation, be given guidelines for future action to be instruct the Member State to put an end taken in order to redress the negative to that abusive conduct. Consequently, effects of an unlawful situation in the past. according to its express terms, the aim of that provision is to empower the Commis- sion only to take action with prospective effect.

136. For example, the Commission could have required the Member State to ensure 134. The question arises whether that that the sellers who were adversely affected interpretation is consistent with the find- by price discrimination were compensated ings of the Court of Justice in Hopkins. In for the economic loss sustained by them. If paragraph 19 of that judgment the Court of the State, or an organ of the State, was Justice observed: responsible for the discrimination, 37 the State could, in certain circumstances, have been required to pay compensation.

137. It is also clear from the subsequent relevant passage of Hopkins, in so far as it observations of the Court of Justice in stated that the Commission may draw Hopkins that the Court was primarily consequences from discrimination which concerned with the situation where the occurred before it took action. However, State itself is either directly or indirectly the Court of Justice in fact held that in a responsible for the discrimination. In that recommendation the Commission can regard, at the end of paragraph 19 it oblige the Member State to draw con- pointed out that the findings made in the sequences from past infringements. recommendation may be relied on by the persons concerned before the national courts. In addition, in paragraph 28 the Court made express reference to the case- law on the direct effect of directives. However, according to settled case-law, directives have direct effect in principle 140. The question remains whether the only between individuals and the State and Court of Justice assumed that an obligation not between private persons. 38 to remedy the effects of discrimination can only be imposed on a Member State in tandem with the obligation to put an end to the discrimination for the future. The passage of Hopkins cited does not provide any support for such an interpretation. On the contrary, the Court of Justice refers to 138. The appellants submit that the refer- both possibilities (putting an end to the ence made by the Court of Justice in discrimination for the future and rem- Hopkins to Commission findings relating edying the effects of past discrimination) to the past must be understood as meaning together. that the Commission can take action in respect of past infringements only by issuing a recommendation in which it also instructs the Member State to remedy discrimination in the future.

142. It should also be borne in mind that 144. This apparent inconsistency can how- the discrimination had already been over ever be resolved if the following consider- for years when a preliminary reference was ations are taken into account. The prohib- sought from the Court of Justice in the ition in Article 63(1) has direct effect Hopkins case. The Court's observation that inasmuch as purchasers are deemed to act the Commission can oblige the Member unlawfully when they apply discriminatory State to draw the necessary consequences prices. The Commission's findings are from past discrimination would therefore therefore not constitutive in nature but have been of no practical relevance to that merely declaratory and can, accordingly, case if that obligation could only be also cover infringements in the past. How- imposed in tandem with an obligation to ever the Commission has discretion to put an end to existing discrimination. It determine the legal consequences arising follows that the Court of Justice must be from the unlawful conduct. Only where, presumed to have considered that the having regard to gravity and the duration abovementioned measures may be taken of the infringement and the situation on the independently of each other. market concerned, the Commission con- siders it appropriate to require the Member State to remedy the effects of the infringe- ment can individuals rely on such a recom- mendation before the national courts.

above. The prohibition on discriminatory 148. The conclusion must therefore be that practices contained in Articles 4(b) and under Article 63(1) the Commission was 63(1) would not have sufficient deterrent empowered to impose an obligation on the effect if the undertakings concerned were Member State, by way of a recommen- only ever required to change their conduct dation, to take measures to remedy the for the future after the Commission had effects of infringements of the prohibition addressed a corresponding recommen- on discrimination committed by pur- dation to the Member State, and past chasers. The Commission was empowered infringements were not punishable. 39 to take such action even where the infringe- ments had ceased at the time the Commis- sion made the relevant recommendation. However, in such a case, the Commission must take account of the protection owed to any legitimate expectations held by the undertakings concerned. The Commis- sion's power also included the right to carry out the relevant investigations relat- 147. Discrimination against certain market ing to past periods of time. Consequently, actors results in a distortion of competition. the ground of appeal relating to the finding The undertaking which receives prefer- by the Court of First Instance in that regard ential treatment acquires an advantage over must be rejected. its competitors, which — where that a d v a n t a g e is f i n a n c e d by S t a t e resources — could also be regarded as State aid. It has long been recognised in the Court's case-law that in order to restore the previously existing (competitive) situ- 149. There is therefore no need to consider ation, the Commission can require the whether the principle of effective judicial recovery of unlawfully granted aid, protection for the sellers who were dis- although there is no express provision for criminated against also confers such a this in Article 88 EC. 40 That is also the case power on the Commission. for aid falling within the scope of the ECSC Treaty. 41 That legal principle can also be applied to the present situation. Accord- ingly, it is in the interests of the effective- ness of Articles 4(b) and 63(1) that, in order to restore competition, the Commission can require Member States to take action in (ii) The Commission's powers under respect of past infringements of the pro- Article 66(7) of the ECSC Treaty hibition on discrimination.

151. The wording of Article 66(7) suggests, in even clearer terms, that that provision is 153. That power would indeed be wider in concerned with the remedying of an unlaw- scope than the Commission's powers to ful situation for the future. The Commis- impose penalties for infringements of sion's recommendation is intended to pre- Article 82 EC. However, Article 66(7) of vent the undertaking concerned from using the ECSC Treaty differs from Article 82 EC its dominant position for purposes contrary in two significant respects, which serve to to the objectives of the treaty. Similarly, the justify those more extensive powers. First, fact that where a recommendation is not individuals cannot directly rely on complied with, the second sentence of Article 66(7) of the ECSC Treaty before Article 66(7) empowers the Commission national courts and, accordingly, cannot itself to intervene directly, by way of a bring actions for damages if no action has decision, in the formulation of business been taken by the Commission. 43 Second, conditions, supports the proposition that the first sentence of Article 66(7) does not the Commission's power is solely as to the provide for any other penalty — such as future. the imposition of a fine — for past infringements which have already ceased. While the second sentence of Article 66(7) refers to Articles 58, 59 and 64 of the ECSC Treaty, which concern the imposition of fines, the Commission can resort to those provisions only where there has been an infringement of a decision within the meaning of the second sentence of Article 66(7). It cannot, however, directly 152. On the other hand, the same con- impose a fine for past infringements, as is siderations apply here as in respect of possible under Article 82 EC in conjunction Article 63(1). The wording of the provision with Article 15(2) of Regulation No 17. does not preclude the Commission from instructing an undertaking, in a recommen- 43 — Banks cited in footnote 6, paragraph 19. By contrast, on the direct applicability of Article 82 EC, see Case 127/73 BRT [1974] ECR 51, paragraphs 15 to 17, and Case 42 — On this, see point 132 et seq. above. C-234/89 Delimita [1991] ECR I-935, paragraph 45.

157. In the contested decision, the Com- mission came to the conclusion that Article 65 of the ECSC Treaty does not apply to the fixing of royalties because that provision, like Article 81 EC, covers only agreements restricting competition, whereas the unilateral abuse of a dominant 155. The fact that recommendations pur- position falls within the scope of suant to Article 66(7) must be made to the Article 66(7) of the ECSC Treaty. The undertakings themselves does not preclude Court of First Instance left open the ques- the Commission from being empowered to tion of the applicability of Article 65 carry out investigations of infringements because, in its view, BC's conduct in any which have already ceased and, where event came w i t h i n the scope of appropriate, to make recommendations. Article 66(7). However, when exercising its discretion in deciding whether to make a recommen- dation and what aims such a recommen- dation should impose on the addressee, the Commission must have regard to the prin- ciples of legal certainty and protection of legitimate expectations. 44

161. The other appellants share the Com- 159. For the Commission, the most import- mission's opinion. In addition, they submit ant ground of appeal is its claim that, in that there is no Community interest in the paragraph 85 of the judgment under Commission's carrying out investigations appeal, the Court of First Instance incor- relating to the distant past and that that rectly, and without providing adequate alone is reason enough for there to be no reasons, found that the Commission had such obligation on the part of the Com- an obligation to investigate the complaint. mission. The Commission submits that such an obligation cannot be inferred from the order in Case T-367/94 British Coal Cor- poration v Commission, 45 the only case cited by the Court of First Instance in 162. According to NALOO, the Commis- support of its observation. Similarly, the sion has an obligation to decide on the fact that because Articles 63(1) and 66(7) complaint. Since it has exclusive jurisdic- of the ECSC Treaty are not directly appli- tion to apply Articles 63(1) and 66(7), cable, the Commission alone is responsible without any action on its part a claim for for ensuring the application of those provi- damages cannot succeed before the sions does not provide grounds for an national courts and effective judicial pro- obligation to take action. tection is, consequently, not ensured.

160. The Commission submits that the Court of First Instance confused the Com- mission's obligation to examine a com- (b) Assessment plaint with care — an obligation which it, the Commission, does not in any way deny — with the supposed obligation to open an investigation where a complaint 163. According to settled case-law, 46 the has been made. It is apparent from the Commission is obliged to examine com- subsequent passages of the judgment that plaints with care, as it itself accepts. By the Court of First Instance did not in fact intend only to refer to the former obli- 46 — Rendo and Others v Commission, cited in footnote 23, paragraph 27, the order in Case C-59/96 P Koelman v Commission [1997] ECR I-4809, paragraph 39, and Case T-24/90 Automec v Commission [1992] ECR II-2223, 45 — Cited in footnote 17. paragraph 79.

contrast, the complainant is not entitled — appeal, the Court of First Instance stated: at any rate so far as complaints alleging 'Since [the Commission] has power... to infringements of the competition rules in consider NALOO's complaint relating to the EC Treaty are concerned — to require the infringements alleged to have occurred the Commission to open an investigation or in the years 1986/87 to 1989/90, the to require it to definitively penalise the Commission was bound to undertake that alleged infringements by way of a examination...'. 49 decision. 47 Instead, it is for the Commis- sion to decide, with due exercise of its discretion, whether and to what extent it is necessary to take action in respect of the complaint, although it must, where appro- priate, state the reasons why it has decided not to take further action in respect of the 166. In that passage, the Court of First complaint. 48 Instance was merely referring to the Com- mission's obligation to examine a com- plaint with care ('to consider [the] com- plaint'/'to undertake that examination'). It did not state that the Commission was obliged to take further action. That is also clear from its citation of the order in Case 164. When evaluating the matter in the T-367/94. The passage of that order cited exercise of its discretion, the Commission by the Court refers only to the obligation to must weigh up various interests. The Com- examine a complaint — backed up by munity interest in taking action against the numerous supporting references to the infringement is of particular significance. In case-law. addition, the Commission can also take into account the interests of the market actors affected by the restriction of compe- tition and, in particular, the interests of the complainant. 167. Whether, in its review of the reasons stated in the decision, the Court may in fact have indirectly imposed more stringent requirements is an issue which must be addressed in the assessment of the fourth ground of appeal. 165. The question arises whether, as the Commission submits, the Court of First Instance misunderstood those principles and instead assumed that the Commission had an obligation to open an investigation. In paragraph 85 of the judgment under 168. NALOO submits that the Commis- sion has an obligation to adopt a decision 47 — Case 125/78 GEMA v Commission [1979] ECR 3173, in respect of the alleged infringements of paragraph 17, Koelman, cited in footnote 46, paragraph 39, Case T-114/92 BEMIM v Commission [1995] ECR II-147, paragraph 62. 48 — On this, see points 179 and 217 below. 49 — ... [not relevant to the English text].

169. Since the Court of First Instance correctly described the Commission's obli- gations, this ground of appeal must accord- 172. As regards the level of royalties, the ingly be rejected. The Commission's addi- Commission and BC contend that the tional obligation to state reasons for its Court of First Instance incorrectly found decision will be considered in more detail in that in the 1991 Decision and the written the assessment of the fourth ground of correspondence that preceded it, the Com- appeal. 50 mission had already found that the royalties were too high. While in the 1991 Decision the Commission did indeed find that the level of royalty which was applied from 1 April 1990 onwards was not excessive, that does not mean that every other level of royalty is unreasonable. The 5. The lawfulness of the contested decision opinion given in the letter of 28 August 1990 that the royalty of £7/t appeared to be unreasonable was, as the Court of First Instance held in NALOO I, merely a tentative statement. N A L O O itself acknowledged in its letter of 13 May 1988 (a) Arguments of the parties that the previous royalty of £11/t was reasonable.

170. IP and PG consider that the decision contains an adequate statement of reasons in so far as the Commission refused to investigate the price discrimination alleg- edly practised in the past because it was not empowered to do so. 173. Similarly, the Commission has never investigated the profitability of licensed opencast operators because NALOO has 50 — See points 179 and 217 et seq. below. never supplied any information on its

178. It is true that the Commission has an obligation to provide an explanation for its rejection of the complaint which is amen- able to review. 51 176. NALOO goes on to state that at the time of the 1991 Decision, the Commission 51 — Case C-119/97 P Ufex and Others v Commission [1999] had been in possession of the relevant ECR I-1341, paragraph 89 et seq.

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181. Accordingly, while the decision does not contain inadequate reasons, as the Court held in the contested decision, it 183. In making its discretionary decision, does contain an error in law. The Commis- the Commission must certainly take into sion would only have been obliged to account the significance of the fact that explain why there had been no price action on its part is a precondition for the discrimination if it had in fact carried out creation of rights in favour of individuals. an investigation of the alleged infringe- ments. The Commission did not carry out such an investigation. The provisional, and 52 — See the rulings cited in footnotes 46 and 47. merely indirect, findings regarding the 53 — Cited in footnote 34, point 51.

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54 — See the case-law cited in footnote 25. 55 — On this, see point 151 et seq. above.

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188. In conclusion, the fourth ground of 191. BC raised the argument concerning appeal must succeed in so far as it relates to the alleged lateness of NALOO's complaint the Court of First Instance's observations in connection with its argument on the concerning the inadequate statement of infringement of the principle of legal cer- reasons relating to the examination of the tainty, which was addressed by the Court royalties. of First Instance.

190. BC submits that the Court of First Instance did not examine its arguments relating to the complainant's obligation to 194. BC's complaint must therefore be bring proceedings, where appropriate, pur- rejected in so far as it is based on the suant to Article 35 of the ECSC Treaty. arguments discussed above. The other However BC did not raise that argument in points raised by BC need not be considered the proceedings at first instance. It merely again here, as they have already been dealt cited a passage from Advocate General with in the examination of the other Fennelly's Opinion in Hopkins, 56which grounds of appeal. 57 refers to the possibility of bringing such proceedings — but not to an obligation to do so. 57 — On the question as to what legal measures the Commission is empowered to take under Article 66 (7), see points 151 and 132 et seq. above (which discuss the same issues in relation to Article 63); as regards the failure to examine the applicability of Article 65 of the ECSC Treaty, see 56 — Point 51 of the Opinion (cited in footnote 34). point 158 et seq. above.

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(a) Arguments of the parties

197. There is therefore no need to set aside 200. NALOO takes the view that the the judgement in that respect. Instead, it agreements between BC and the licensed would be enough for the Court of Justice to mining operators, in which the royalties are replace the grounds of the judgment. fixed, fall within the scope of Article 65 of I - 11466

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the ECSC Treaty. As grounds for that view, (b) Assessment it refers to the Opinion of Advocate General Van Gerven in Banks 58 and to the judgment in that case. 59 As that provision is also applicable to past situ- ations, the Commission erred in law in failing to investigate NALOO's allegations. 203. Like Article 81 EC, Article 65 of the ECSC Treaty prohibits agreements between undertakings that prevent normal compe- tition within the common market. As examples, paragraph 1 of that provision refers to agreements fixing prices, agree- ments relating to production, technical development or investment, and agree- ments to share markets. A common feature of all those types of agreement is that a 201. The Commission counters by stating number of undertakings reach an agree- that although the nature of licensing agree- ment to the detriment of other market ments is such that they may in principle be actors, in particular their customers, and capable of restricting competition and thereby restrict competition. could, as a result, come within the scope of Article 65, an agreement fixing the level of royalties does not constitute an agree- ment restricting competition for the pur- poses of that provision. Nor did the Court of Justice in Banks hold that that was the case. The lawfulness of the level of the 204. Therefore, as Advocate General Van royalty must be determined solely by refer- Gerven pointed out in the passage in his ence to Article 66(7). Opinion in Banks cited by NALOO, a licence agreement can in principle fall within the scope of that provision where, for example, it serves to partition the market or to prevent access by third parties to specific products.

207. In that regard, a clear distinction must be made between the requirements for 210. It considers that the evidence sub- application of Articles 65 and those for mitted was adequate. In its 1991 Decision, application of Article 66(7) of the ECSC the Commission had already found that Treaty, since those two provisions provide there had been royalty discrimination in the for different legal consequences. Only in year 1989/90, a finding from which it could the case of infringements of Article 65 may have drawn conclusions in respect of the the Commission directly impose fines and preceding years. It cannot be inferred from declare the agreements void. the fact that in NALOO I the Court of First Instance rejected a prospective extra- polation that a retrospective calculation, based on the Commission's findings, is inadequate. 208. Where an agreement does not restrict competition for third parties then, while it may constitute abuse of a dominant pos- ition by one of the contract parties, it does 211. The Commission made clear in numerous exchanges that it was not going 60 — Case 66/86 Ahmed Saeed Flugreisen and Others [19891 to examine the substance of the complaint ECR 803, paragraph 37. because it was not empowered to investi- I - 11468

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gate past infringements. It conveyed the sufficiently clear evidence of the existence impression that the opportunity would of a breach of the competition rules. 61 remain open to NALOO to submit further evidence, should the Commission revise its opinion of the legal situation.

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also relied on the fact that in NALOO I, 64 VH — Costs the Court of First Instance pointed out that the onus lay on the members of NALOO, and not the Commission, to provide spe- cific data on the operating costs of its members. The Commission thus provided an adequate explanation for its rejection of 2 2 0 . Under the first p a r a g r a p h of the complaint which was sufficient for the Article 122 of the Rules of Procedure, purposes of review. where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, it shall make a decision as to costs.

INTERNATIONAL POWER AND OTHERS v NALOO

Vul — Conclusion

223. On the basis of the above considerations, I propose that the Court should:

(1) Set aside the judgment of the Court of First Instance of the European Communities of 7 February 2001 in Case T-89/98,

— in so far as in that judgment, the Court of First Instance declines to examine the applicability of Article 65 of the ECSC Treaty to the fixing of royalties for coal extraction, and

— in so far as that judgment annuls the part of Commission Decision IV/E-3/NALOO of 27 April 1998 by which the Commission rejects the complaint relating to the level of royalty charged for coal extraction in the years 1986/87 to 1989/90.

(5) In Case C-175/01 P, order NALOO to pay its own costs in the proceedings before the Court of Justice and those incurred by the British Coal Corporation and the Commission in these proceedings.

(6) In Case C-176/01 P, order PowerGen (UK) pic to pay its own costs in the proceedings before the Court of Justice and those incurred by NALOO in these proceedings. The Commission is to pay its own costs.

(7) In Case C-180/01 P, order each party to pay its own costs in the proceedings before the Court of Justice.

(8) Order the Commission and NALOO each to pay their own costs in the proceedings before the Court of First Instance. International Power pic, PowerGen (UK) pic and the British Coal Corporation are each to pay their own costs as interveners in the proceedings before the Court of First Instance. I - 11472