Brussels, 10/05/2002 (Agence Europe) - As previously indicated, the Commission took two separate decisions concerning the 1998 acquisition by RAG Aktiengesellschaft of Saarbergwerke AG and Preussag Anthrazit GmbH, companies active in the production of coal.
In the first, the Commission authorises the merger between the three producers, following the cancellation by the Court of First Instance of an initial positive decision in 1998. This decision had been challenged by the British coal producer RJB Mining and annulled in January 2001 by the Court of First Instance. The Court felt that the Commission should also have taken into account, in its analysis of the merger in the light of Article 66 of the ECSC Treaty, to what extent the financial and commercial power of the merged entity could be enhanced by State aid (article 88 of the ECSC Treaty), which it did not do. In particular, the Commission should have examined whether the 2 DM price paid by RAG to the State authorities, former owners of Saarbergwerke, had enhanced the financial and thus commercial power of RAG, and affected competition in the German coal market (see Europe of 1 February 2001).
The Commission took this aspect into account and found, in a separate decision, that the merger did not contain any element of State aid, after having examined what would have been the attitude of a private operator in a market economy, as foreseen by the relevant procedure. It felt that the sale of the company "in the state it was", that it so say without any preliminary financial restructuring measures, was an operation in which, given the considerable economic risks it contained, the State authorities did act like a private operator in a market economy.
The Commission underlines, that if these two decisions have been adopted simultaneously, each is autonomous and is based on a different legal premise. The first having been taken in the light of the rules that govern merger control (operations cannot create companies capable of acting independently from their clients, suppliers and competitors). The second having been adopted according to the Community framework Controlling State Aid (avoid distortions to competition caused by the granting of illegal State aid to companies).