Case C-158/01: Reference for a preliminary ruling by the Circuit Court, County of Cork (Ireland), by judgment of that court of 9 March 2001, in the case of Catherine Withers against Samantha Delaney
Date: 2001-06-30
Institutions: Court of Justice
Subjects: Ireland, indemnification, interpretation of the law, motor vehicle insurance, third-party insurance, transport accident

C 186/6

EN

Official Journal of the European Communities

30.6.2001

(Aid for the production of olive oil)

— Spain refers to the position adopted in Cases C-349/97 (4)

and C-130/99 (5).

— In addition, the failings which the Commission detects in
the system do not in any way prejudice the Community
budget, given that the total quantity of olive oil produced
in Spain in the marketing years in question is equal to, or
greater than, that in respect of which aid has been
received.

— (In the alternative) The Commission must reduce the
the financial adjustment, since it has

percentage of
acknowledged that the situation has improved.

(Aid for the consumption of olive oil)

— Spain refers to the position adopted in Case C-374/99.

in respect of

— (In the alternative) Prior to the letter dated 17 August
1998, the Spanish authorities were not informed in
writing that,
the 1996 financial year,
pursuant to Article 8 of Regulation (EC) No 1663/95 (6),
the intention was to exclude a part of the expenditure
from financing in accordance with the applicable pro-
visions, as provided for in Article 5(2)(c) of Council
Regulation (EEC) No 729/70 as amended (7).

(Additional levy on milk)

— The action is directed against an adjustment of
ESP 2 426 259 870 representing default interest, made
on the basis that Spain did not put into effect before
1 September 1996 the additional
levy on milk for
the period 1995/1996 in relation to the purchasers
concerned. The Commission requires the Member State
concerned to pay default interest in respect of amounts
not collected from the milk purchasers responsible for the
excess produced. Spain contends that its only obligation is
to exercise due diligence in collecting the additional
levy and to pay the amounts actually received to the
Commission. Payment of the amounts still due from the
producers has been required by the Spanish authorities
from the persons concerned but the latter have brought
legal proceedings and the national courts have stayed
execution (requiring by way of security payment of the
principal amount plus interest until the date of payment).
Therefore, the national authorities have not been negli-
gent since they cannot prevent the debtors from having
recourse to the judicial remedies available at national
level in respect of administrative demands for payment.
Furthermore, the delay in the judicial proceedings does
not prejudice the Commission, since Spanish legislation
provides in such cases that suspension of the administrat-
ive decision requiring payment is to be granted only
where a bank guarantee or equivalent security is provided,
covering the principal amount together with interest up
to the date of the final decision.

— (In the alternative) The Commission is not entitled to
demand from the Member State concerned default interest
on amounts which the State has already paid to the

EAGGF (wrongfully, by way of reductions in the monthly
advances) but which have still not been collected from
the milk purchasers responsible for the excess produced.

(1) 2001/137/EC – OJ L 50 of 21.2.2001, p. 9.
(2) OJ L 196 of 24.7.1997, p. 18.
(3) OJ L 106 of 11.5.1995, p. 4.
(4) OJ C 370 of 6.12.1997, p. 1.
(5) OJ C 204 of 17.7.1999, p. 23.
(6) Commission Regulation (EC) No 1663/95 laying down detailed
rules for the application of Council Regulation (EEC) No 729/70
regarding the procedure for the clearance of the accounts of the
EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).

(7) OJ, English Special Edition, 1970(I), p. 21.

Reference for a preliminary ruling by the Circuit Court,
County of Cork (Ireland), by judgment of that court of
9 March 2001, in the case of Catherine Withers against
Samantha Delaney

(Case C-158/01)

(2001/C 186/10)

Reference has been made to the Court of Justice of the
European Communities by a judgment of the Circuit Court,
Cork (Ireland), of 9 March 2001, which was received at the
Court Registry on 17 April 2001, for a preliminary ruling in
the case of Catherine Withers against Samantha Delaney, on
the following questions:

I. Whether on the true interpretation of the provisions of
Directives of 24th April 1972 (72/166/EEC) (1) and of
30th December 1983 (84/5/EEC) (2), Ireland was entitled
on the 23rd of July 1995 to maintain legislation (Sec-
tion 65 of the Road Traffic Act 1961 and the Road Traffic
(Compulsory Insurance) Regulations 1962) which did not
make compulsory insurance mandatory for passengers
injured in a ‘part of a vehicle, other than a large public
service vehicle, unless that part of the vehicle is designed
and constructed with seating accommodation for passen-
gers’?

II.

If the answer to Question I is that Ireland was not so
entitled and was in breach of its obligations in this regard,
is Ireland liable in damages to the plaintiff if the plaintiff
fails to get compensation from the MIBI, that is the body
authorised by Ireland under Article 1, para 4 of Council
Directive 84/5/EEC,
the
in respect of
deceased?

the death of

III.

If the answer to Question I is that Ireland was in breach
of its obligations, can the Cork Circuit Court proceed
directly to an award of Frankovich damages against the
State without applying the Directive against the defaulting

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).