CELEX: C1999/160/49
Language: en
Date: 1999-06-05 00:00:00
Title: Case T-63/99: Action brought on 3 March 1999 by RJB Mining plc against the Commission of the European Communities

C 160/26              EN                      Official Journal of the European Communities                                        5.6.1999
Action brought on 2 March 1999 by Dominique Rafoni,                      Action brought on 3 March 1999 by RJB Mining plc
court-appointed administrator, acting as liquidator of                     against the Commission of the European Communities
Société de distribution mécanique et d’automobiles (Sodi-
ma), against the Commission of the European Communi-
                               ties                                                                (Case T-63/99)
                         (Case T-62/99)                                                           (1999/C 160/49)
                        (1999/C 160/48)
                                                                                           (Language of the case: English)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
An action against the Commission of the European Communi-                ties was brought before the Court of First Instance of the
ties was brought before the Court of First Instance of the               European Communities on 3 March 1999 by RJB Mining plc,
European Communities on 2 March 1999 by Dominique                        represented by Mark Brealey and Jonathan Lawrence, with an
Rafoni, court-appointed administrator, acting as liquidator of           address for service in Luxembourg at the Chambers of Arendt
Société de distribution mécanique et d’automobiles (Sodima),             & Medernach, 8-10, rue Mathias Hardt.
residing at Aix en Provence (France), represented by Jean
Claude Fourgoux, of the Paris Bar, with an address for service           The applicant claims that the Court should:
in Luxembourg at the Chambers of Pierrot Schiltz, 4, rue
Béatrix de Bourbon.                                                      — annul the contested decision on the grounds set out in this
                                                                             application,
The applicant claims that the Court should:
                                                                         — order the Commission to pay the costs of the action,
— annul the Commission’s decision of 5 January 1999,                         including those of the applicant.
— order the Commission to pay the costs.
                                                                         Pleas in law and main arguments
Pleas in law and main arguments
                                                                         The present application is directed against the Commission’s
On 1 July 1994 the applicant submitted to the Commission a               decision of 22 December 1998 [K(1998) 4569 endg.], on
complaint based on articles 85 and 86 of the Treaty and on               subsidies granted by the Federal Republic of Germany (‘Ger-
Commission Regulation (EEC) No 183/85 concerning the                     many’) to the mineral coal industry in 1999, which purports
imposition by the Peugeot company of a dealership system                 to authorise Germany to grant those subsidies.
incompatible with the exemption conditions laid down by that
regulation.
                                                                         According to the applicant, some, but not all, of the issues
In the present case, the applicant, by whom two actions have             raised in this application have been raised in Cases T-110/98 (1)
previously been brought for a declaration that the Commission            and T-12/99 (2), relating to aid paid to the German Coal
has failed to act (1), contests the Commission’s decision of             Industry for 1997 and 1998 respectively.
5 January 1999 definitively rejecting its complaint.
                                                                         The application essentially concerns article 4(c) of the ECSC
In support of its action for annulment, the applicant pleads:            Treaty and Decision 3632/93/ECSC (3), which lays down a
                                                                         code (‘the Code’) under which aid may be approved by the
— failure by the defendant institution to fulfil its obligations         Commission in derogation from article 4(c) aforesaid.
    to maintain and promote competition,
— failure to examine the complaint seriously and objectively,            The applicant submits that
— infringement of essential procedural requirements and                  — The aid in question does not comply with articles 2 to 9 of
    misuse of powers in the conduct of the procedure and the                 the Code, so that the Commission has no competence to
    handling of the evidence,                                                approve it under article 1(1) of the Code.
— infringement of the Treaty and manifest error of assess-               — The contested decision purports to approve aid to under-
    ment of the law,                                                         takings or production units which cannot be considered as
                                                                             viable. Even if, contrary to the applicant’s contention, there
— breach of the obligation to take a definitive decision within              is no obligation on the Commission to demonstrate
    a reasonable time.                                                       long-term viability of undertakings or production units,
                                                                             the defendant has committed a manifest error in failing to
(1) Cases T-190/95 (OJ C 333, 9.12.1995, p. 20) and T-45/96 (OJ              consider whether the reduction of production costs of
    C 145, 18.5.1996, p. 13).                                                recipient undertakings or production units is likely to
                                                                             achieve a degression of aid in the light of falling coal prices
                                                                             on international markets, as required by article 2 (1) of the
                                                                             Code. Finally, the contested decision purports to approve
 ---pagebreak--- 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