CELEX: C1998/358/42
Language: en
Date: 1998-11-21 00:00:00
Title: Action brought on 29 September 1998 by RJB Mining plc against Commission of the European Communities (Case T-156/98)

21.11.98             EN                  Official Journal of the European Communities                                  C 358/23
Instance of the European Communities on 23 September                have been reasonable and equitable for a statement of
1998 by the companies known as Asia Motor                           objections to have been sent thirteen years ago to the
France, established at Livange (Luxembourg), JMC                    members of the cartel and to their trade association. The
Automobiles, established at Livange (Luxembourg),                   cartel was already sufficiently established at that time. It
Monin Automobiles, established at Bourg-de-PeÂage                   would have been for the undertakings involved to
(France), and EAS, established at Livange (Luxembourg),             establish in the course of discussions that the so-called
represented by Jean Claude Fourgoux, of the Paris Bar,              voluntary limitation arrangement, in return for compliance
with an address for service in Luxembourg at the                    with which they derived advantages including the
Chambers of Pierrot Schiltz, 4 rue BeÂatrix de Bourbon.             exclusion of competition from Japan, did not reflect the
                                                                    exercise by them of any commercial choice but was due to
                                                                    irresistible pressure placed on them by the French State
The applicants claim that the Court should:                         involving a threat of substantial loss for them.
Ð annul unconditionally the Commission's Decision of                The applicants also claim that, with the exception of
    15/16 July 1998;                                                Article 115, the Treaty makes no provision for any
                                                                    category of lawful practices which could include a
                                                                    voluntary limitation scheme such as that in issue, since
Ð take formal note that the applicants reserve the right            France has never requested authorisation to take
    to claim compensation for the damage suffered;                  protective measures in the sphere in question. Nor was it
                                                                    open to the Commission to rely on any French rules in
                                                                    order to exempt the members of the cartel from the
                                                                    application of Community competition law, inasmuch as
Ð order the Commission to pay all the costs.
                                                                    such rules simply did not exist.
Pleas in law and main arguments adduced in support:                 (1) Case T-7/92 Asia Motor France and Others v. Commission
                                                                        [1993] ECR II-671.
                                                                    (2) Case T-387/94 Asia Motor France and Others v. Commission
                                                                        [1996] ECR II-965.
The applicants in the present case, importers of Suzuki,
Daihatsu, Isuzu and Subaru vehicles into France who are
currently in judicial liquidation, contest the rejection by
the Commission of the complaint lodged by them thirteen
years ago concerning a system involving the voluntary
limitation of imports into France of various other makes
of Japanese vehicles. According to the decision in issue,
                                                                    Action brought on 29 September 1998 by RJB Mining plc
quota-sharing arrangements, non-compliance with which
could lead to the imposition of administrative penalties,                against Commission of the European Communities
were exclusively a matter for the French administrative                                    (Case T-156/98)
authorities, pressure was placed on each importer
individually, and the complaint did not concern the                                         (98/C 358/42)
Community and had ceased to be relevant.
                                                                                   (Language of the case: English)
The applicants maintain, first of all, that, by adopting the
contested decision, the defendant disregarded the                   An action against the Commission of the European
judgments delivered by the Court of First Instance on               Communities was brought before the Court of First
29 June 1993 (1) and 18 September 1996 (2) in relation to           Instance of the European Communities on 29 September
the same infringements; those judgments imposed a duty              1998 by RJB Mining plc, represented by Mark Brealey
to re-examine the matter in the light of objective, relevant        and Jonathan Lawrence, with an address for service in
and consistent evidence concerning the question whether             Luxembourg at the Chambers of Arendt & Medernach,
the French authorities placed irresistible pressure on the          8Ð10 rue Mathias Hardt.
undertakings concerned to adopt the behaviour impugned
in the complaint, so that the conduct of the accredited
importers and metropolitan France fell outside the ambit            The applicant claims that the Court should:
of the competition rules since those undertakings lacked
the requisite margin of autonomy.
                                                                    Ð annul the Commission Decision of 29 July 1998
                                                                         approving the acquisition of control by RAG
According to the applicants, it is extraordinary for the                 Aktiengesellschaft of Saarbergwerke AG and Preussag
defendant institution now to maintain that the fact that                 Anthrazit GmbH on the grounds set out in the
the matter goes back many years is such as to render                     application; and
the complaint no longer relevant, when it was the
Commission itself which, having failed to conduct the
administrative procedure with due diligence, was directly           Ð order the Commission to pay the costs of the action,
responsible for that delay. In the applicants' view, it would            including those of the applicant.
 ---pagebreak--- C 358/24              EN                Official Journal of the European Communities                                  21.11.98
Pleas in law and main arguments adduced in support:                Action brought on 30 September 1998 by Bernard Bareyt
                                                                   and Others against the Commission of the European
                                                                                             Communities
The applicant in the present case is a public limited                                      (Case T-158/98)
company incorporated in England and Wales, engaged in
the production in the coal industry in England. Its                                         (98/C 358/43)
principal shareholders are institutional investors, private
investors, directors and the applicant's employees. By the
                                                                                   (Language of the case: French)
contested decision, the Commission has purported, in
accordance with Article 66(2) of the ECSC Treaty, to
authorise, subject to conditions, the acquisition of
Saarbergwerke and Preussag by RAG. These three                     An action against the Commission of the European
companies are the only three remaining German hard coal            Communities was brought before the Court of First
producers. The merging entities have apparently agreed to          Instance of the European Communities on 30 September
divest part of the coal importing business to an                   1997 by Berhard Bareyt, Ivone Benfatto, Denis Bessette,
independent third party and structurally to separate the           Giuliano Dalle Carbonare, Enrico Di Pietro, Barry John
remainder of the coal trading business into domestic and           Green, Remmelt Haange, Michel Huguet, Marcus Iseli,
importing arms.                                                    Cornelis Jong, Neil Mitchell, Pier Luigi Mondino, Alfredo
                                                                   Portone, Carlo Sborchia, Alessandro Tesini and Mike
                                                                   Michael Wykes, all residing in Naka (Japan), represented
                                                                   by Nicholas LhoeÈst, of the Brussels Bar, with an address
The applicant submits that the Commission has failed to            for service in Luxembourg at the offices of Fiduciaire
respect the provisions of Article 66 and Article 4(c) of the       Myson SARL, 30 rue de Cessange.
ECSC Treaty and Decision No 3632/93/ECSC (1) (the
Code) in adopting the contested decision. The annulment
of this decision is also sought on the ground of                   The applicants claim that the Court should:
infringement of essential procedural requirements,
including lack of reasoning and misapplication of the
principle of good administration.                                  Ð annul the defendant's decision of 15 May 1998
                                                                       rejecting the applicants' complaint;
According to the applicant, the Commission has failed to
appreciate that the effect of the contested decision is to         Ð annul the applicants' remuneration statements for
enable the merger to proceed, even though German state                 November 1997 and the subsequent months, which
aid forms an intrinsic part of the merger, and such state              apply the weighting adopted by Council Regulation
aid has not been, and could not be, authorised pursuant to             (EC, ECSC, Euratom) No 1785/97, including the
the Code. It is stressed in this regard that the contested             remuneration statements for the months during
decision does not even mention the state aid inherent in               which the administration proceeded to recover the
the merger structure, let alone analyse the effect of the aid          overpayment previously made;
on the market position of the parties. Thus the fact that
the purchase price to be paid by RAG for Saarbergwerke
in the context of the proposed merger is a mere DM 1 is            Ð in so far as may be necessary:
mentioned nowhere in the Decision.
                                                                       Ð declare Regulation (EC, ECSC, Euratom) No
                                                                           1785/97 adopted by the Council on the
The applicant states that the Commission has suggested in                  defendant's proposal to be inapplicable, in so far
the contested decision that it concerns only the application               as it fixes a specific weighting for Naka;
of Article 66 of the ECSC Treaty and not the application
of provisions on the control of state aids. However, the
                                                                       Ð order the defendant to repay to the applicants the
Commission was asked for an assurance by the applicant
                                                                           sums which it withheld from their salaries
that it would apply the state aid rules and would prevent
                                                                           retroactively from the month of May 1997;
the merger from proceeding without prior approval of the
state aid paid to the undertakings to be merged and of the
state aid inherent in and forming a prerequisite for the               Ð order the defendant to repay to the applicants the
merger. Since the Commission has refused to provide the                    curtailment of salary which it imposed on them
assurance requested, the applicant has no doubt, in the                    with effect from November 1997 on the basis of
present circumstances, that the merger authorised by the                   the new weighting;
contested decision can, and now will, proceed without the
Commission performing its obligations.
                                                                       Ð order the defendant to pay default interest on the
                                                                           sums which it is ordered to repay, from the date
(1) OJ L 329, 30.12.1993, p. 12.                                           when those sums were withheld;
                                                                   Ð order the defendant to pay all the costs.