ALLEGATIONS WHICH had previously been the subject of decisions of the Commission of the European Communities could be raised in court proceedings notwithstanding that the climant had not sought to have the decisions annulled.
After a reference to the European Court of Justice, the Court of Appeal dismissed the defendant's appeal against a decision to strike out its defence and counterclaim to a claim arising out of licences granted to it under section 36 of the Coal Industry Nationalisation Act 1946.
The defendant carried on opencast mining pursuant to licences issued under section 36 of the Coal Industry Nationalisation Act 1946. It belonged to a trade association, the National Association of Licensed Opencast Operators (Naloo).
In 1994, following the privatisation of the industry, Naloo complained to the Commission of the European Communities of preferential treatment given to the British Coal Corporation by the British authorities, to the detriment of small private opencast mine operators. In 1995 the commission informed Naloo of its decision that there were insufficient grounds for its intervention.
The defendant refused to pay royalties due under the section 36 licences, and the first claimant commenced proceedings to recover the unpaid royalties. The defendant's defence was that the sums claimed were unlawful and therefore unenforceable because the levying of the royalties on the defendant was a measure or practice which discriminated between producers contrary to article 4(b) of the ECSC Treaty, claiming disparity between the payments it was required to make and those made by the "successor companies" amongst whom the operating business of the British Coal Corporation had been distributed after privatisation in 1994; and because the section 36 royalties constituted special charges imposed by an emanation of the state contrary to article 4(c) of the ECSC Treaty. …