CELEX: C2001/186/11
Language: en
Date: 2001-06-30 00:00:00
Title: Case C-169/01 P: Appeal brought on 19 April 2001 by RAG Aktiengesellschaft 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

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).