CELEX: C1999/160/50
Language: en
Date: 1999-06-05 00:00:00
Title: Case T-64/99: Action brought on 3 March 1999 by RJB Mining plc against the Commission of the European Communities

5.6.1999               EN                     Official Journal of the European Communities                                     C 160/27
    extra payments to miners as operating aid under article 3            — order the Commission to pay the costs of the action,
    (2) of the Code, although these payments are not a                        including those of the applicant.
    component of the production costs of the mining under-
    takings.
                                                                         Pleas in law and main arguments
— The contested decision contains no facts which would
    enable the applicant to verify the viability of any undertak-
    ing or production unit. Furthermore, the contested decision          The application concerns the alleged failure of the Commission
    contains no facts or statements that would enable the                to act in accordance with its obligations under article 4(c)
    applicant to establish whether the reduction in production           ECSC and Commission Decision 3632/93 (‘the Code’) (1) in
    costs was likely to lead to a degression of aid in the light         relation to a state aid inherent in, and conditional on, the
    of falling world coal prices, as required by article 2 of the        merger between Ruhrkohle AG (RAG), Saarbergwerke AG and
    Code.                                                                Preussag Anthrazit GmbH (‘the merger’).
                                                                         The applicant points out that, since March 1998, it has drawn
(1) RJB Mining v. Commission (OJ C 299, 26.9.1998, p. 38).               the Commission’s attention to its serious concern that the
(2) RJB Mining v. Commission, not yet published in the OJ.               merger should not be approved without, inter alia, careful
(3) OJ L 329, 30.12.1993, p. 12.                                         examination of certain elements of State aid, which were
                                                                         understood to include:
                                                                         — the symbolic DEM 1 paid for Saarbergwerke,
                                                                         — the agreement by the German Government to make up
                                                                              50 % of the shortfall of an annual DEM 200 million
                                                                              cross-subsidy from RAG’s non-coal activities,
Action brought on 3 March 1999 by RJB Mining plc                         — the waiver by the German Government of aid repayment
  against the Commission of the European Communities                          in the amount of DEM 4 billion, and
                                                                         — an additional subsidy of DEM 1,65 billion if RAG acquired
                         (Case T-64/99)                                       the German Government’s share in Saarbergwerke.
                        (1999/C 160/50)                                  By decision dated 29 July 1998, the Commission approved the
                                                                         merger. However, on 2 December 1998, the Commission
                                                                         adopted a decision, with regard to the German coal industry
                   (Language of the case: English)                       for 1998, which did not contain any reference to the merger,
                                                                         let alone the State aid issues relating to the merger, and even
                                                                         treated the three merged entities as separate undertakings.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 3 March 1999 by RJB Mining plc,                  The applicant submits that the Commission is under a duty:
represented by Mr Mark Brealey and Mr Jonathan Lawrence,
with an address for service in Luxembourg at the Chambers of             — to examine the grant of State aid to the merged companies,
Arendt & Medernach, 8-10, rue Mathias Hardt.
                                                                         — to examine the complaint made on March 1998 that the
                                                                              aid inherent in, and conditional on, the merger was
The applicant claims that the Court should:
                                                                              unlawful, and
— annul the implied decision by which the Commission has                 — to record the failure by Germany to comply with article
    refused to examine whether Germany has complied with                      4(c) ECSC and the Code.
    article 4(c) ECSC and the Code in respect of state aid
    inherent in, and conditional on, the merger,
                                                                         The first two of those duties are imposed by virtue of article 8
— annul the implied decision by which the Commission                     ECSC and the Code and the third by article 88 ECSC. Further
    has refused to examine the applicant’s complaint dated               or alternatively, if the Commission is under no such duties and
    16 March 1998 that the aid inherent in, and conditional              is merely empowered to examine the grant of State aid, the
    on, the merger is incompatible with article 4(c) ECSC and            continued refusal to act constitutes a misuse of those powers.
    the Code,
                                                                         (1) OJ L 329, 30.12.1993, p. 12.
— annul the implied decision by which the Commission has
    refused to record the failure of Germany to comply with
    article 4(c) ECSC and the Code in respect of state aid
    inherent in, and conditional on, the merger, and