CELEX: C1998/358/43
Language: en
Date: 1998-11-21 00:00:00
Title: Action brought on 30 September 1998 by Bernard Bareyt and Others against the Commission of the European Communities (Case T-158/98)

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.
 ---pagebreak--- 21.11.98            EN                  Official Journal of the European Communities                                 C 358/25
Pleas in law and main arguments adduced in support:                The applicants maintain that, by proposing to the Council
                                                                   the adoption of a weighting for Naka fixed at 121.25, the
                                                                   defendant has committed a manifest error of assessment.
The applicants all work as temporary members of staff at
                                                                   The defendant has provided them with no clarification
the Iter Eda Centre, Naka Joint Work Site, Naka (Japan).
                                                                   whatever concerning the method used, the weight attached
All except one of them have already brought an action
                                                                   to the various factors and the criteria applied in
(Case T-175/97 (1)) with regard to issues concerning the
                                                                   calculating the economic parities and the new weightings.
fixing of weightings.
                                                                   Consequently, the defendant has failed to fulfil its
                                                                   obligation to provide a statement of reasons in accordance
By their application in the present case, the applicants           with the second paragraph of Article 25 of the Staff
contest:                                                           Regulations.
Ð the weighting applicable to Naka fixed by Article 1 of
    Regulation (ECSC, EC, Euratom) No 1785/97, namely              In fixing a weighting for Naka which is 18 % lower than
    121.52;                                                        that fixed for Tokyo, and in view of the fact that there is
                                                                   no substantial difference between the cost of living in
Ð the recovery of sums from their salaries due to the              Tokyo and in Naka, the defendant has breached the
    reduction in those salaries resulting from the                 principle of equality of treatment.
    application of the said weighting in accordance with
    the third paragraph of Article 2 of that regulation;
                                                                   Lastly, the applicants plead that there has been an
Ð their salary statements for the period from November             unlawful recovery of sums from their salaries. They claim
    1997, in so far as they apply the weighting and effect         that an unjustified reduction in their remuneration such as
    a retroactive recovery of remuneration by way of               that in issue constitutes an impermissible act prejudicing
    adjustment based on that weighting; and                        their most basic right, namely the right to remuneration
                                                                   which is stable and foreseeable.
Ð all connected and/or subsequent decisions relating to
    the adoption or application of weightings for Naka.            (1) OJ C 7, 10.1.1998, p. 16.