CELEX: C2001/186/10
Language: en
Date: 2001-06-30 00:00:00
Title: 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

C 186/6               EN                    Official Journal of the European Communities                                         30.6.2001
(Aid for the production of olive oil)                                         EAGGF (wrongfully, by way of reductions in the monthly
                                                                              advances) but which have still not been collected from
—    Spain refers to the position adopted in Cases C-349/97 (4)               the milk purchasers responsible for the excess produced.
     and C-130/99 (5).
—    In addition, the failings which the Commission detects in         ( 1) 2001/137/EC – OJ L 50 of 21.2.2001, p. 9.
     the system do not in any way prejudice the Community              ( 2) OJ L 196 of 24.7.1997, p. 18.
     budget, given that the total quantity of olive oil produced       ( 3) OJ L 106 of 11.5.1995, p. 4.
     in Spain in the marketing years in question is equal to, or       ( 4) OJ C 370 of 6.12.1997, p. 1.
     greater than, that in respect of which aid has been               ( 5) OJ C 204 of 17.7.1999, p. 23.
     received.                                                         ( 6) Commission Regulation (EC) No 1663/95 laying down detailed
                                                                            rules for the application of Council Regulation (EEC) No 729/70
—    (In the alternative) The Commission must reduce the                    regarding the procedure for the clearance of the accounts of the
     percentage of the financial adjustment, since it has                   EAGGF Guarantee Section (OJ L 158, 8.7.1995, p. 6).
     acknowledged that the situation has improved.                     (7) OJ, English Special Edition, 1970(I), p. 21.
(Aid for the consumption of olive oil)
—    Spain refers to the position adopted in Case C-374/99.
—    (In the alternative) Prior to the letter dated 17 August
     1998, the Spanish authorities were not informed in
     writing that, in respect of the 1996 financial year,
     pursuant to Article 8 of Regulation (EC) No 1663/95 (6),          Reference for a preliminary ruling by the Circuit Court,
     the intention was to exclude a part of the expenditure            County of Cork (Ireland), by judgment of that court of
     from financing in accordance with the applicable pro-             9 March 2001, in the case of Catherine Withers against
     visions, as provided for in Article 5(2)(c) of Council                                      Samantha Delaney
     Regulation (EEC) No 729/70 as amended (7).
                                                                                                   (Case C-158/01)
(Additional levy on milk)
                                                                                                   (2001/C 186/10)
—    The action is directed against an adjustment of
     ESP 2 426 259 870 representing default interest, made             Reference has been made to the Court of Justice of the
     on the basis that Spain did not put into effect before            European Communities by a judgment of the Circuit Court,
     1 September 1996 the additional levy on milk for                  Cork (Ireland), of 9 March 2001, which was received at the
     the period 1995/1996 in relation to the purchasers                Court Registry on 17 April 2001, for a preliminary ruling in
     concerned. The Commission requires the Member State               the case of Catherine Withers against Samantha Delaney, on
     concerned to pay default interest in respect of amounts           the following questions:
     not collected from the milk purchasers responsible for the
     excess produced. Spain contends that its only obligation is       I.     Whether on the true interpretation of the provisions of
     to exercise due diligence in collecting the additional                   Directives of 24th April 1972 (72/166/EEC) (1) and of
     levy and to pay the amounts actually received to the                     30th December 1983 (84/5/EEC) (2), Ireland was entitled
     Commission. Payment of the amounts still due from the                    on the 23rd of July 1995 to maintain legislation (Sec-
     producers has been required by the Spanish authorities                   tion 65 of the Road Traffic Act 1961 and the Road Traffic
     from the persons concerned but the latter have brought                   (Compulsory Insurance) Regulations 1962) which did not
     legal proceedings and the national courts have stayed                    make compulsory insurance mandatory for passengers
     execution (requiring by way of security payment of the                   injured in a ‘part of a vehicle, other than a large public
     principal amount plus interest until the date of payment).               service vehicle, unless that part of the vehicle is designed
     Therefore, the national authorities have not been negli-                 and constructed with seating accommodation for passen-
     gent since they cannot prevent the debtors from having                   gers’?
     recourse to the judicial remedies available at national
     level in respect of administrative demands for payment.           II.    If the answer to Question I is that Ireland was not so
     Furthermore, the delay in the judicial proceedings does                  entitled and was in breach of its obligations in this regard,
     not prejudice the Commission, since Spanish legislation                  is Ireland liable in damages to the plaintiff if the plaintiff
     provides in such cases that suspension of the administrat-               fails to get compensation from the MIBI, that is the body
     ive decision requiring payment is to be granted only                     authorised by Ireland under Article 1, para 4 of Council
     where a bank guarantee or equivalent security is provided,               Directive 84/5/EEC, in respect of the death of the
     covering the principal amount together with interest up                  deceased?
     to the date of the final decision.
                                                                       III. If the answer to Question I is that Ireland was in breach
—    (In the alternative) The Commission is not entitled to                   of its obligations, can the Cork Circuit Court proceed
     demand from the Member State concerned default interest                  directly to an award of Frankovich damages against the
     on amounts which the State has already paid to the                       State without applying the Directive against the defaulting
 ---pagebreak--- 30.6.2001                 EN                     Official Journal of the European Communities                                        C 186/7
      emanation of State, or can this only be done after one                First, the CFI’s findings on admissibility virtually set aside the
      has decided that the Directive (because, for example, it              requirement that an applicant must show individual concern.
      fails the tests of justiciability necessary to generate direct        The CFI distorts the relevant facts and applies the wrong legal
      effect) cannot be invoked against the defendant?                      test. If this Court were to adopt the CFI’s reasoning, in
                                                                            particular its speculation on and distortion of the facts, hardly
(1) Council Directive 72/166/EEC of 24 April 1972 on the approxi-           any applicant would be denied standing. Any test which
    mation of the laws of member States relating to insurance against       excludes hardly anyone is not a good legal test, and not
    civil liability in respect of the use of motor vehicles, and to the     supported by the past jurisprudence of the Court.
    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            Second, on the substance of the case, the CFI held that, in the
    approximation of the laws of the Member States relating to              context of merger proceedings under Article 66(2) ECSC
    insurance against civil liability in respect of the use of motor        (which is concerned principally with the power potentially to
    vehicles (OJ L 8, 11.1.1984, p. 17).                                    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.
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                    This constitutes a major change in the evaluation of mergers
of the European Communities in case T-156/98 (1)                            and represents an unlawful fusion of two distinct procedures,
between RJB Mining plc and Commission of the European                       with different timetables, rights of representation, consultation,
Communities, supported by RAG Aktiengesellschaft and                        and remedies. The CFI did not reason why the price paid could
                    Federal Republic of Germany                             conceivably be State aid. Further, no reason was given
                                                                            why authorisation of the merger should be annulled as a
                           (Case C-169/01 P)                                consequence of a price constituting State aid, in the absence of
                                                                            any of the considerations contained in Article 66(2) ECSC.
                            (2001/C 186/11)
                                                                            There is no legal mandate or authority to inject extraneous
An appeal against the judgment delivered on 31 January 2001                 considerations such as the adequacy of consideration and the
by the First Chamber of the Court of First Instance of the                  existence or otherwise of State aid into the evaluation of
European Communities in case T-156/98 between RJB Mining                    mergers under the ECSC Treaty (or, for that matter, under
plc and Commission of the European Communities, supported                   Regulation 4064/89/EEC (2), as amended). If the judgment
by RAG Aktiengesellschaft and Federal Republic of Germany,                  were to stand, the merger procedure would be subject to
was brought before the Court of Justice of the European                     matters alien to the analysis of market conditions, and
Communities on 19 April 2001 by RAG Aktiengesellschaft,                     undertakings would be burdened by legal uncertainty as to the
established in Essen, Germany, represented by Thomas Sharpe                 criteria to be used in the procedure. Moreover, this uncertainty
QC, and Andreas Weitbrecht and Sven Valker, Rechtsanwälte.                  would not serve to secure the coherent application of compe-
The Appellant claims that the Court should:                                 tition and State aid rules.
—     quash the judgment in full and order RJB to pay all costs.
      Alternatively, the Appellant submits that the judgment                The CFI committed a further serious error of law in annulling
      should be quashed to the extent that it relates to the                the Merger Decision in its entirety, rather than annulling only
      approval of the partial merger between RAG and Preussag               the part relevant to the approval of the RAG/SBW merger. The
      Anthrazit.                                                            annulment of the approval of the RAG/Preussag Anthrazit
                                                                            merger cannot be justified and the judgment lacks any
                                                                            reasoning to that effect.
Pleas in law and main arguments
The judgment sets wholly new criteria for, first, the evaluation            (1) OJ C 358, 21.11.1998, p. 23.
of mergers by the Commission, and, second, any subsequent                   (2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
challenge to merger decisions. The CFI’s approach is deeply                     the control of concentrations between undertakings (OJ L 395,
flawed.                                                                         30.12.1989, p. 1).