Case C-169/01 P: Appeal brought on 19 April 2001 by RAG Aktiengesellschaft against the judgment delivered on 31 January 2001 by the First Chamber of the Court of First Instance of the European Communities in case T-156/98 between RJB Mining plc and Commission of the European Communities, supported by RAG Aktiengesellschaft and Federal Republic of Germany
Date: 2001-06-30
Institutions: Court of Justice
Subjects: European Commission, Germany, action for annulment (EU), appeal, coal industry, merger

30.6.2001

EN

Official Journal of the European Communities

C 186/7

emanation of State, or can this only be done after one
has decided that the Directive (because, for example, it
fails the tests of justiciability necessary to generate direct
effect) cannot be invoked against the defendant?

(1) Council Directive 72/166/EEC of 24 April 1972 on the approxi-
mation of the laws of member States relating to insurance against
civil liability in respect of the use of motor vehicles, and to the
enforcement of the obligation to insure against such liability (OJ
L 103, 2.5.1972, p. 1).

(2) Second Council Directive 84/5/EEC of 30 December 1983 on the
approximation of the laws of the Member States relating to
insurance against civil liability in respect of the use of motor
vehicles (OJ L 8, 11.1.1984, p. 17).

Appeal brought on 19 April 2001 by RAG Aktienge-
sellschaft against the judgment delivered on 31 January
2001 by the First Chamber of the Court of First Instance
in case T-156/98 (1)
of
between RJB Mining plc and Commission of the European
Communities, supported by RAG Aktiengesellschaft and
Federal Republic of Germany

the European Communities

(Case C-169/01 P)

(2001/C 186/11)

An appeal against the judgment delivered on 31 January 2001
by the First Chamber of the Court of First Instance of the
European Communities in case T-156/98 between RJB Mining
plc and Commission of the European Communities, supported
by RAG Aktiengesellschaft and Federal Republic of Germany,
was brought before the Court of Justice of the European
Communities on 19 April 2001 by RAG Aktiengesellschaft,
established in Essen, Germany, represented by Thomas Sharpe
QC, and Andreas Weitbrecht and Sven Valker, Rechtsanwälte.

The Appellant claims that the Court should:

— quash the judgment in full and order RJB to pay all costs.
Alternatively, the Appellant submits that the judgment
should be quashed to the extent that it relates to the
approval of the partial merger between RAG and Preussag
Anthrazit.

Pleas in law and main arguments

First, the CFI’s findings on admissibility virtually set aside the
requirement that an applicant must show individual concern.
The CFI distorts the relevant facts and applies the wrong legal
test.
in
If this Court were to adopt the CFI’s reasoning,
particular its speculation on and distortion of the facts, hardly
any applicant would be denied standing. Any test which
excludes hardly anyone is not a good legal test, and not
supported by the past jurisprudence of the Court.

Second, on the substance of the case, the CFI held that, in the
context of merger proceedings under Article 66(2) ECSC
(which is concerned principally with the power potentially to
determine prices, control or restrict production and the
hindering of effective competition), the Commission is obliged
to consider the adequacy or sufficiency of the price actually
paid for the acquired undertaking, and to evaluate, in the
course of the process and timetable for merger authorisation,
whether such price constituted State aid.

This constitutes a major change in the evaluation of mergers
and represents an unlawful fusion of two distinct procedures,
with different timetables, rights of representation, consultation,
and remedies. The CFI did not reason why the price paid could
conceivably be State aid. Further, no reason was given
why authorisation of the merger should be annulled as a
consequence of a price constituting State aid, in the absence of
any of the considerations contained in Article 66(2) ECSC.

There is no legal mandate or authority to inject extraneous
considerations such as the adequacy of consideration and the
existence or otherwise of State aid into the evaluation of
mergers under the ECSC Treaty (or, for that matter, under
Regulation 4064/89/EEC (2), as amended). If the judgment
were to stand, the merger procedure would be subject to
matters alien to the analysis of market conditions, and
undertakings would be burdened by legal uncertainty as to the
criteria to be used in the procedure. Moreover, this uncertainty
would not serve to secure the coherent application of compe-
tition and State aid rules.

The CFI committed a further serious error of law in annulling
the Merger Decision in its entirety, rather than annulling only
the part relevant to the approval of the RAG/SBW merger. The
annulment of the approval of the RAG/Preussag Anthrazit
merger cannot be justified and the judgment
lacks any
reasoning to that effect.

The judgment sets wholly new criteria for, first, the evaluation
of mergers by the Commission, and, second, any subsequent
challenge to merger decisions. The CFI’s approach is deeply
flawed.

(1) OJ C 358, 21.11.1998, p. 23.
(2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
the control of concentrations between undertakings (OJ L 395,
30.12.1989, p. 1).