L 12/20 Official Journal of the European Communities 17.1.2003 (Acts whose publication is not obligatory) COMMISSION COMMISSION DECISION of 7 May 2002 authorising RAG Aktiengesellschaft to acquire control of Saarbergwerke AG and Preussag Anthrazit GmbH (Case COMP/ECSC.1350 — RAG/Saarbergwerke/Preussag Anthrazit II) (notified under document number C(2002) 1436) (Only the German text is authentic) (Text with EEA relevance) (2003/36/ECSC) THE COMMISSION OF THE EUROPEAN COMMUNITIES, Having regard to the Treaty establishing the European Coal and Steel Community, and in particular Article 66(2) thereof, Having regard to the notification submitted by the parties by letter dated 13 November 1997, Whereas: By letter dated 13 November 1997, RAG Aktienge- sellschaft, Essen, (RAG’) notified the Commission under Article 66(1) of the ECSC Treaty that it intended to acquire the entire share capital of Saarbergwerke AG, Saarbriicken, (SBW’) and Preussag Anthrazit GmbH, Ibbenbiiren, (Preussag). The purpose of the transaction was to bring about a merger between the last three remaining German hard coal mining companies. The purchase price for SBW was DEM 2, of which DEM 1 was to be paid to Germany and DEM 1 to the Saarland in their capacity as previous owners. By decision of 29 July 1998 (Case COMP/ECSC.1252 — RAG/Saarbergwerke/Preussag Anthrazit) (‘decision of 29 July 1998), the Commission authorised under Article 66 of the ECSC Treaty RAG's takeover of SBW and Preussag after RAG gave a commitment to sell SBW's coal import business, Saarberg Coal International GmbH ('SCT), and () to separate the sale of coal mined in Germany from the sale of imported coal. In the meantime, the merger had been completed. In fulfilment of the commitments, SCI had been sold to an independent French buyer. On 31 January 2001, in RJB Mining v Commission ('), the Court of First Instance annulled the Commission deci- sion of 29 July 1998 in its entirety. The Court found that the Commission had not assessed whether the total assets of SBW transferred to RAG corresponded to the price paid of DEM 2 or whether State resources had been implicitly transferred to RAG. In the present case, although the Commission was not required to assess the legality of the supposed aid, namely the aid inherent in the merger, in a formal preliminary decision, it could not — according to the Court's judgment — in its analysis of the competitive situation under Article 66(2) of the ECSC Treaty, refrain from assessing whether, and if so to what extent, the financial and thus the commer- cial strength of the merged entity was strengthened by the financial support provided by that supposed aid in the form of the low purchase price (3). On 8 November 2001, the parties submitted all relevant information for a renewed assessment of the notified merger. (1) Case T-156/98 [2001] ECR II-337. (*) Germany and RAG have lodged an appeal against this judgment before the Court of Justice.