CELEX: C2001/200/72
Language: en
Date: 2001-07-14 00:00:00
Title: Case C-157/01 P: Appeal brought on 12 April 2001 by the Federal Republic of Germany 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

14.7.2001             EN                    Official Journal of the European Communities                                        C 200/39
Reference for a preliminary ruling by the Centrale Raad                Appeal brought on 12 April 2001 by the Federal Republic
van Beroep by order of 21 March 2001 in the disputes                   of Germany against the judgment delivered on 31 January
between R. P. van der Duin and ANOZ Zorgverzekering-                   2001 by the First Chamber of the Court of First Instance
en UA and ANOZ Zorgverzekeringen UA and T.W. van                       of the European Communities in Case T-156/98 between
                   Wegberg-van Brederode                               RJB Mining PLC and Commission of the European Com-
                                                                       munities, supported by RAG Aktiengesellschaft and Fed-
                                                                                          eral Republic of Germany
                        (Case C-156/01)
                                                                                               (Case C-157/01 P)
                        (2001/C 200/71)
                                                                                                (2001/C 200/72)
Reference has been made to the Court of Justice of the
European Communities by order of 21 March 2001 by the
Centrale Raad van Beroep (Higher Social Security Court),               An appeal against the judgment delivered on 31 January 2001
which was received at the Court Registry on 10 April 2001,             by the First Chamber of the Court of First Instance of the
for a preliminary ruling in the disputes between R. P. van der         European Communities in Case T-156/98 RJB Mining PLC and
Duin and ANOZ Zorgverzekeringen UA, a mutual guarantee                 Commission of the European Communities, supported by
society, and ANOZ Zorgverzekeringen UA and T.W. van                    RAG Aktiengesellschaft and Federal Republic of Germany,
Wegberg-van Brederode on the following questions:                      was brought before the Court of Justice of the European
                                                                       Communities on 12 April 2001 by the Federal Republic of
                                                                       Germany, represented by Ministerialrat Wolf-Dieter Plessing,
1.   Does Article 22(1)(c) of Regulation (EEC) No 1408/71 (1)          Oberregierungsrat Dr Thomas Jürgensen, Bundesministerium
     also apply to (a member of the family of) a pensioner who         der Finanzen, and Martina Maier, Haarmann Hemmelrath,
     is entitled under Article 28 of Regulation No 1408/71 to          Paris.
     receive benefits from the institution of the place of
     residence, (in the present cases from the French or the
     Spanish sickness assurance funds respectively), those             The appellant
     benefits being chargeable to the institution competent in
     accordance with Article 28(2)(a) of Regulation                    1.    claims that the Court should set aside the judgment of
     No 1408/71, that is to say the Netherlands sickness                     the Court of First Instance of 31 January 2001
     assurance fund, in a situation in which the pensioner (or               [T-156/98 (1)] in so far as it held that the application was
     a member of his family) travels to the competent Member                 founded;
     State in order to receive medical treatment?
                                                                       2.    continues to seek the form of order sought at First
                                                                             Instance;
2.   If the answer to Question 1 is affirmative, which insti-
     tution is responsible for granting the authorisation
                                                                       3.    claims that the applicant at First Instance should be
     referred to in Article 22(1)(c) of Regulation No 1408/71?
                                                                             ordered to pay the costs of the appeal.
3.   If the answer to Question 1 is negative, do the provisions
     of Article 21 or those of Article 31 of Regulation
     No 1408/71 govern entitlement to benefits of (a member            Pleas in law and main arguments
     of the family) of a pensioner who is entitled under
     Article 28 of Regulation No 1408/71 to receive benefits
     from the institution of the place of residence, (in the           —     The Court of First Instance infringed Community law
     present cases from the French or the Spanish sickness                   because it declared the application admissible even
     assurance funds respectively), those benefits being charge-             though the applicant, not being in an actual or potential
     able to the institution competent in accordance with                    competitive position, cannot be regarded as individually
     Article 28(2)(a) of Regulation No 1408/71, that is to say               concerned by the contested decision and because the
     the Netherlands sickness assurance fund, in a situation                 applicant, inter alia in view of the commitment given by
     where the person concerned is staying in the territory of               RAG in the framework of the merger, had no interest in
     the competent State?                                                    bringing proceedings.
                                                                       —     The CFI misapplied Article 66(2) of the ECSC Treaty in
                                                                             that it incorrectly assumed that the Commission, when
                                                                             carrying out the analysis of competition under
                                                                             Article 66(2) ECSC, could not fail to examine whether,
(1) OJ 1996 L 323, p. 38.
                                                                             and if so to what extent, the financial and thus economic
                                                                             whether, and if so to what extent, the financial and thus
                                                                             economic power of the merged entity was strengthened
                                                                             by all the elements which might constitute State aid,
                                                                             in particular, however, benefits which may have been
                                                                             contained in the DEM 1 purchase price for SBW.
 ---pagebreak--- C 200/40               EN                     Official Journal of the European Communities                                      14.7.2001
—    As regards examination of the merits, the CFI failed to             —     order the European Commission to compensate him for
     comply with its obligation to stay within the limits of                   material and non-material damage;
     the application and exceeded them, thereby infringing
     Community law.                                                      —     order the Commission to pay the costs.
—    The CFI also infringed Article 33(1), second sentence,
     ECSC in that it failed to examine whether there had been
     a manifest failure by the Commission to observe a                   Pleas and main arguments
     relevant provision and failed to appreciate that the
     application did not even satisfy the requirement to show            —     Breach of the right to a fair hearing: Before the decision
     the alleged manifestness of the infringement.                             was taken to transfer him, the appellant was approached
                                                                               in vague and general terms by his line manager for alleged
—    Furthermore, the CFI infringed Article 33(1) ECSC in so
                                                                               lack of care and attention in his work, which was
     far as it annulled the contested decision as a whole and
                                                                               subsequently contradicted in his staff report. It was thus
     not merely with regard to the part of the decision with
                                                                               that, without being heard beforehand and without the
     which the CFI found fault, namely the authorisation of
                                                                               chance to make any comments, a decision to transfer him
     the merger of RAG with SBW, not the merger with
                                                                               was taken by the appointing authority.
     Preussag Anthrazit GmbH.
—    Finally, the CFI infringed its duty to state reasons, because
     it did not adequately deal with the arguments submitted
     by the Commission and the interveners in their pleadings
     and at the hearing, even though they related to main
     grounds of the decision.
(1) Not yet published in the European Court Reports.
                                                                         Reference for a preliminary ruling from the Oberster
                                                                         Gerichtshof (Supreme Court) of the Austrian Republic by
                                                                         decision of that Court of 14 March 2001 in the case of
                                                                         Betriebsrat der Vertretung der Europäischen Kommission
                                                                         in Österreich (Works council of the Representation of
                                                                         the European Commission in Austria) v Commission of
                                                                                            the European Communities
Appeal brought on 12 April 2001 by Franco Campoli
against the judgment delivered on 6 March 2001 by the                                             (Case C-165/01)
Fifth Chamber of the Court of First Instance of the
European Communities in Case T-100/00 between Franco
 Campoli and Commission of the European Communities                                               (2001/C 200/74)
                                                                         Reference has been made to the Court of Justice of the
                        (Case C-161/01 P)
                                                                         European Communities by a decision of the Oberster Gericht-
                                                                         shof of 14 March 2001, which was received at the Court
                         (2001/C 200/73)                                 Registry on 18 April 2001, for a preliminary ruling in the case
                                                                         of Betriebsrat der Vertretung der Europäischen Kommission in
                                                                         Österreich (Works council of the Representation of the
An appeal against the judgment delivered on 6 March 2001                 European Commission in Austria) v Commission of the
by the Fifth Chamber of the Court of First Instance of the               European Communities, on the following questions:
European Communities in Case T-100/00 between Franco
Campoli and the Commission of the European Communities                   1.    Is Article 79 of the Conditions of Employment of Other
was brought before the Court of Justice of the European                        Servants of the European Communities [Article 3 of
Communities on 12 April 2001 by Franco Campoli, represent-                     Council Regulation (EEC, Euratom, ECSC) No 259/68 of
ed by S. Diana, lawyer, with an address for service in Brussels.               29 February 1968 (1)], under which the conditions of
                                                                               employment of local staff, in particular: (a) the manner of
The appellant claims that the Court should:                                    their engagement and termination of their contract, (b)
                                                                               their leave, and (c) their remuneration is to be determined
—    set aside the judgment of the Court of First Instance of                  by each institution in accordance with current rules and
     6 March 2001 in Case T-100/00;                                            practice in the place where they are to perform their
                                                                               duties, to be understood as a reference to the relevant
—    annul the two decisions taken by Mr Lemmel (No 05266                      national law on employment, which, in the case of
     of 11 June 1999 and of 2 December 1999), concerning                       Austria, also requires the application of the law on labour
     the removal of Franco Campoli and the appointment of                      relations in the workplace laid down in Part II of the
     Chantal Bruetschy to the ‘Foodstuffs — Legislation and                    Austrian Arbeitsverfassungsgesetz (Labour Constitution
     scientific and technical aspects’ unit;                                   Act)?