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C 28/24 EN Official Journal of the European Communities 27.1.

2001

Reference for a preliminary ruling by the Landesgericht If either Question III or Question IV is answered in the
Salzburg (as a commercial court) by order of 27 Novem- affirmative:
ber 2000 in the application for company registration by
Holto Limited V. Do Articles 43 and 48 of the EC Treaty prohibit the
application of a domestic conflict of laws rule which
determines the legal capacity of a company in accordance
(Case C-447/00) with the law of the State in which the company has the
actual seat of its main administration (the seat theory),
even if, as a result, a company that has been effectively
constituted under English law but merely has its seat as
(2001/C 28/46)
declared in its constitution in England and does not carry
on any business there is refused recognition as a legal
person and consequently refused entry in the companies
Reference has been made to the Court of Justice of the register (commercial register)?
European Communities by the Landesgericht Salzburg (as a
commercial court) by order of 27 November 2000, received
at the Court Registry on 4 December 2000, in the application
for company registration by Holto Limited for a preliminary
ruling on the following questions:

Appeal brought on 4 December 2000 by the Commission
I. Is the second sentence of the first paragraph of Article 43 of the European Communities against that part of the
of the EC Treaty to be interpreted as meaning that a judgment delivered on 27 September 2000 by the Second
branch may exist even if a company does not have a Chamber, Extended Composition, of the Court of
principal place of business within the meaning of Article First Instance of the European Communities in Case
48 of the EC Treaty at any other place, where it carries T-184/97 (1) between BP Chemicals Ltd and the Com-
out at least an essential part of its business activity? mission of the European Communities, supported by the
French Republic, which annuls Commission Decision SG
(97) D/3266 of 9 April 1997 (2) concerning an aid scheme
If so: for biofuels in France in so far as that decision relates to
measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
sector
II. Is the second sentence of the first paragraph of Article 43
of the EC Treaty to be interpreted as meaning that the (Case C-448/00 P)
requirement of establishment is fulfilled if a company
merely has its seat as declared in its constitution in a (2001/C 28/47)
Member State in which it was effectively constituted and
does not carry on any business there? An appeal against that part of the judgment delivered on
27 September 2000 by the Second Chamber, Extended
Composition, of the Court of First Instance of the European
If so: Communities in Case T-184/97 between BP Chemicals Ltd
and the Commission of the European Communities, supported
by the French Republic, which annuls Commission Decision
III. Does the establishment of an Austrian branch of a SG (97) D/3266 of 9 April 1997 concerning an aid scheme
company that has been effectively constituted under for biofuels in France in so far as that decision relates to
English law but merely has its seat as declared in its measures applicable to the ethyl-tertiobutyl-ether (‘ETBE’)
constitution in England and does not carry on any sector, was brought before the Court of Justice of the European
business there belong to the rights under the second Communities on 4 December 2000 by the Commission of
sentence of the first paragraph of Article 43 and by the European Communities, represented by Xavier Lewis, a
Article 48 of the EC Treaty? member of the Legal Service, acting as agent, assisted by
Nicholas Khan, Barrister, of the Inner Temple, with an address
for service in Luxembourg at the office of Carlos Gómez de la
Cruz, a member of the Legal Service of the Commission,
If any of Questions I, II or III are answered in the negative: Centre Wagner.

The Appellant claims that the Court should:
IV. Does the establishment of an Austrian branch and its
entry in the Austrian companies register (commercial 1. Annul that part of the judgment of the Court of First
register) by a company effectively constituted under Instance of 27 September 2000 handed down in Case
English law which merely has its seat as declared in its T-184/97, BP Chemicals Ltd v Commission, which
constitution in England and does not carry on any annulled Commission Decision SG (97) D/3266 of
business there belong to the rights covered by the first 9 April 1997 concerning an aid scheme for biofuels in
sentence of the first paragraph of Article 43 and by France in so far as that decision relates to measures
Article 48 of the EC Treaty? applicable to the ethyl-tertiobutyl-ether (‘ETBE’) sector;