61957J0001

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1 . INVESTMENTS - INDIVIDUAL PROGRAMMES - OPINION OF THE HIGH AUTHORITY - ABSENCE OF STATEMENT OF REASONS - LEGAL NON-EXISTENCE OF OPINION

2 . INVESTMENTS - INDIVIDUAL PROGRAMMES - OPINION OF THE HIGH AUTHORITY - STATEMENT OF REASONS - REFERENCE INSTEAD OF STATEMENT OF REASONS

3 . INVESTMENTS - INDIVIDUAL PROGRAMMES - OPINION OF THE HIGH AUTHORITY - TIME-LIMIT FOR DELIVERY

4 . INVESTMENTS - INDIVIDUAL PROGRAMMES - OPINION OF THE HIGH AUTHORITY - DELIVERY OUT OF TIME

5 . PROCEDURE - OPINION OF THE HIGH AUTHORITY - OPINION AMOUNTING TO A DECISION - APPLICATION FOR ANNULMENT - ADMISSIBILITY

6 . OPINION OF THE HIGH AUTHORITY - LEGAL NATURE

UNDER THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY THE DELIVERY OF AN OPINION ON INVESTMENT PROGRAMMES IS SUBJECT TO CERTAIN REQUIREMENTS . AMONG THE CONDITIONS LAID DOWN BY THE TREATY, SOME ARE MERELY FORMAL REQUIREMENTS; HOWEVER, THE STATEMENT OF REASONS IS AN ESSENTIAL, INDEED CONSTITUENT, PART OF THE OPINION . THE ABSENCE OF A STATEMENT OF REASONS MEANS THAT THE OPINION IS LEGALLY NON-EXISTENT .

( TREATY, ARTICLES 5, 15 AND FOURTH PARAGRAPH OF ARTICLE 54 )

2 . REFERENCE TO THE GENERAL RULES PREVIOUSLY LAID DOWN AND A DECLARATION THAT THEY APPLY TO THE CASE IN QUESTION CONSTITUTES AN ADEQUATE STATEMENT OF REASONS FOR THE OPINION .

( TREATY, ARTICLES 5, 15 AND FOURTH PARAGRAPH OF ARTICLE 54 )

3 . ARTICLE 4 OF DECISION NO 27/55 OF THE HIGH AUTHORITY OF 20 JULY 1955 PROVIDES A TIME - LIMIT ONLY FOR THE SUBMISSION OF INVESTMENT PROPOSALS . THE PRINCIPLES OF SOUND ADMINISTRATION REQUIRE THE OPINION OF THE HIGH AUTHORITY TO BE DELIVERED WITHIN A REASONABLE TIME, NAMELY, BEFORE THE EXPIRY OF THE THREE MONTHS LAID DOWN IN ARTICLE 4 OF DECISION NO 27/55 . A TIME-LIMIT EXPRESSLY RECOGNIZED BY A PUBLIC AUTHORITY MAY NOT BE DISREGARDED .

( TREATY, THIRD AND FOURTH PARAGRAPHS OF ARTICLE 54; DECISION NO 27/55 OF THE HIGH AUTHORITY, ARTICLE 4 )

4 . DELIVERY OF AN OPINION OUT OF TIME DOES NOT AFFECT THE NATURE OF THE ACT .

( TREATY, FOURTH PARAGRAPH OF ARTICLE 54 )

5 . ONLY ACTS OF THE HIGH AUTHORITY WHICH, REGARDLESS OF THEIR FORM, CONSTITUTE DECISIONS OR RECOMMENDATIONS WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY MAY BE THE SUBJECT OF AN APPLICATION FOR ANNULMENT . AN OPINION CONSTITUTES A DISGUISED DECISION WHEN IT LAYS DOWN A RULE CAPABLE OF BEING APPLIED, NAMELY, WHEN THE HIGH AUTHORITY DETERMINES UNEQUIVOCALLY THE POSITION WHICH IT DECIDES TO ADOPT IF CERTAIN CONDITIONS ARE FULFILLED .

6 . AN OPINION CANNOT INVOLVE THE PERSON TO WHOM IT IS ADDRESSED IN ANY LEGAL OBLIGATION; IT IS A MEASURE BY MEANS OF WHICH THE HIGH AUTHORITY EXERCISES ITS FUNCTION OF GIVING GUIDANCE AND CONSTITUTES ADVICE GIVEN TO UNDERTAKINGS . AN OPINION DOES NOT AFFECT THE FREEDOM OF DECISION AND THE RESPONSIBILITY OF UNDERTAKINGS ANY MORE THAN THOSE OF THE HIGH AUTHORITY .

IN JOINED CASES 1 AND 14/57

SOCIETE DES USINES A TUBES DE LA SARRE, HAVING ITS REGISTERED OFFICE IN PARIS, REPRESENTED BY ITS PRESIDENT AND DIRECTOR-GENERAL, JEAN LEVEQUE, ASSISTED BY HENRI LEVEQUE, ADVOCATE AT THE COUR D'APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER, 1 AVENUE DE L'ARSENAL, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, GERARD OLIVIER, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT AND THE COUR DE CASSATION, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATIONS LODGED ON 23 JANUARY 1957 FOR ANNULMENT OF THE HIGH AUTHORITY'S LETTER OF 19 DECEMBER 1956 AND ON 25 MARCH 1957 FOR ANNULMENT OF THE HIGH AUTHORITY'S LETTER OF 27 FEBRUARY 1957,

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A - ADMISSIBILITY OF APPLICATIONS 1/57 AND 14/57

SINCE THE PARTIES HAVE IMPUGNED THE VERY NATURE OF THE ACTS WHICH ARE THE SUBJECT OF THE PRESENT APPLICATIONS THE COURT MUST FIRST OF ALL ASCERTAIN WHETHER THE CONTESTED LETTERS REALLY CONSTITUTE OPINIONS WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY .

THE DEFENDANT CONSIDERS APPLICATION 1/57 TO BE INADMISSIBLE BECAUSE IT IMPUGNS A LETTER INTRODUCING AN OPINION WHILST THE APPLICANT SEEKS A DECLARATION FROM THE COURT THAT APPLICATION 14/57 IS INADMISSIBLE BECAUSE THE LETTER OF 27 FEBRUARY 1957 DID NOT CONSTITUTE AN OPINION AND WAS DELIVERED ON 19 DECEMBER 1956 .

I - DOES THE LETTER OF 19 DECEMBER 1956 CONSTITUTE AN OPINION WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY?

THE UNEQUIVOCAL TERMS AND THE FORM OF THE LETTER OF 19 DECEMBER 1956, TOGETHER WITH THE CORRESPONDENCE AND DISCUSSIONS WHICH PRECEDED ITS COMMUNICATION, CLEARLY DEMONSTRATE THAT, IN SENDING THIS LETTER, THE HIGH AUTHORITY UNDOUBTEDLY INTENDED TO DELIVER AN " OPINION " WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY ON THE INVESTMENT PROPOSAL SUBMITTED BY THE APPLICANT ON 28 JULY 1956 . HOWEVER, THE COURT FINDS THAT, UNDER THE SAID PROVISION, THE DELIVERY OF AN OPINION ON INVESTMENT PROGRAMMES IS SUBJECT TO CERTAIN REQUIREMENTS : THE OPINION MUST BE A REASONED ONE, IT MUST BE COMMUNICATED TO THE UNDERTAKING AND NOTIFIED TO THE GOVERNMENT CONCERNED, AND THE FACT THAT IT HAS BEEN DELIVERED MUST BE PUBLISHED .

IT IS CLEAR FROM THE FILE THAT, ALTHOUGH THE LETTER OF 19 DECEMBER 1956 WAS IN FACT COMMUNICATED TO THE APPLICANT, IT DID NOT FORM THE SUBJECT OF A NOTIFICATION TO THE GOVERNMENT CONCERNED OR OF ANY REFERENCE IN THE JOURNAL OFFICIEL . THE COURT CONCURS WITH THE OPINION OF THE ADVOCATE-GENERAL THAT THE STATEMENT OF REASONS IS NON-EXISTENT . THE WORDS " IN THE PRESENT CIRCUMSTANCES " CANNOT IN FACT BE REGARDED AS A STATEMENT OF THE ESSENTIAL FINDINGS OF THE FACT UPON WHICH THE LEGAL JUSTIFICATION OF THE MEASURE DEPENDS .

SEVERAL OF THE CONDITIONS LAID DOWN BY THE TREATY HAVE NOT BEEN FULFILLED; ALTHOUGH SOME OF THEM ARE FORMAL REQUIREMENTS WHICH CANNOT AFFECT THE CHARACTER OR THE EXISTENCE OF AN ACT, IT IS CLEAR THAT A STATEMENT OF REASONS FOR AN OPINION IS NOT ONLY REQUIRED BY ARTICLES 5 AND 15 AND THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY BUT THAT IT IS AN ESSENTIAL, INDEED CONSTITUENT ELEMENT OF SUCH AN ACT, WITH THE RESULT THAT IN THE ABSENCE OF A STATEMENT OF REASONS THE ACT CANNOT EXIST . IN CONSEQUENCE, THE LETTER OF 19 DECEMBER 1956 DOES NOT CONSTITUTE AN OPINION WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY AND APPLICATION 1/57 IS INADMISSIBLE FOR WANT OF SUBJECT-MATTER SINCE THE ACT WHICH IT IMPUGNS IS, IN LAW, NON-EXISTENT .

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II - DOES THE LETTER OF 27 FEBRUARY 1957 CONSTITUTE AN OPINION WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY?

IT IS CLEAR FROM THE FILE THAT THIS SECOND LETTER WAS COMMUNICATED TO THE APPLICANT AND NOTIFIED TO THE GOVERNMENTS CONCERNED AND THAT ITS ISSUE WAS THE SUBJECT OF AN ENTRY IN THE JOURNAL OFFICIEL . MOREOVER, THE COURT CONSIDERS THAT, ALTHOUGH THE STATEMENT OF REASONS IS BRIEF, THE LETTER OF 27 FEBRUARY 1957 IS SUFFICIENTLY REASONED . IN THE FIRST PLACE THE HIGH AUTHORITY REFERS TO THE MEMORANDUM OF 19 JULY 1955 CONCERNING THE GENERAL OBJECTS AND TO THE GENERAL OPINION OF 19 JULY 1956 GIVING GUIDANCE ON INVESTMENT PROGRAMMES IN THE IRON AND STEEL INDUSTRY AND, SECONDLY, IT CLAIMS THAT THE INVESTMENT CONTEMPLATED WILL RESULT IN THE PURCHASE OF SUBSTANTIAL QUANTITIES OF FERROUS SCRAP ON THE MARKET . THE ACT CONSEQUENTLY FULFILS THE CONDITIONS LAID DOWN IN THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY AND, ON THIS ACCOUNT, CONSTITUTES AN OPINION WITHIN THE MEANING OF THAT PROVISION .

THE APPLICANT CLAIMS THAT THE OPINION OF 27 FEBRUARY 1957 WAS DELIVERED OUT OF TIME BECAUSE ARTICLE 4 OF DECISION NO 27/55 OF THE HIGH AUTHORITY OF 20 JULY 1955 REQUIRES THE HIGH AUTHORITY TO DELIVER ITS OPINION WITHIN A PERIOD OF THREE MONTHS FOLLOWING THE SUBMISSION OF THE INVESTMENT PROGRAMME . ALLOWING FOR A DEFERMENT AGREED BETWEEN THE PARTIES THIS TIME-LIMIT EXPIRED ON 19 DECEMBER 1956 .

WITHOUT WISHING TO CONSTRUE THE WORDING OF ARTICLE 4 OF DECISION NO 27/55 OF THE HIGH AUTHORITY AS, BY IMPLICATION, IMPOSING ON THE AUTHORITY AN OBLIGATION TO DELIVER ITS OPINION WITHIN A PERIOD OF THREE MONTHS FROM THE SUBMISSION OF PROGRAMMES AND THE COMMENCEMENT OF WORK ON THEM, THE COURT CONSIDERS THAT THE PRINCIPLES OF SOUND ADMINISTRATION REQUIRE THAT THE DELIVERY OF AN OPINION WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY SHOULD TAKE PLACE WITHIN A REASONABLE TIME .

IN REQUIRING UNDERTAKINGS TO LODGE THEIR INVESTMENT PROPOSALS NOT LESS THAN THREE MONTHS BEFORE THE SIGNATURE OF CONTRACTS, THE HIGH AUTHORITY HOPES TO ACT IN SUCH A WAY AS TO PREVENT WORK OF WHICH IT DISAPPROVES FROM BEING UNDERTAKEN . FROM THIS IT FOLLOWS THAT THE UNDERTAKINGS CONCERNED MUST OF NECESSITY KNOW THE OPINION PRIOR TO THE DATE FIXED FOR WORK TO BEGIN .

ON A REASONABLE VIEW, THESE ARRANGEMENTS THEREFORE REQUIRE THE HIGH AUTHORITY TO DELIVER ITS OPINION, IN NORMAL CIRCUMSTANCES, BEFORE THE EXPIRY OF THE THREE MONTHS LAID DOWN IN ARTICLE 4 OF DECISION NO 27/55 .

FURTHERMORE, A TIME-LIMIT EXPRESSLY RECOGNIZED BY A PUBLIC AUTHORITY MAY NOT BE DISREGARDED . IT IS CLEAR FROM THE FILE THAT, IN THE CORRESPONDENCE WHICH PRECEDED THE DELIVERY OF THE OPINION, THE HIGH AUTHORITY ON SEVERAL OCCASIONS RECOGNIZED THAT IT WAS BOUND BY A TIME-LIMIT IN DELIVERING ITS OPINION .

P . 114

THE LETTER OF 27 FEBRUARY 1957 WAS THEREFORE DESPATCHED OUT OF TIME . THIS IRREGULARITY DOES NOT, HOWEVER, AFFECT THE NATURE OF THE ACT WHICH, IN FACT, CONSTITUTES AN OPINION WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY .

B - ADMISSIBILITY OF AN APPLICATION FOR ANNULMENT OF AN OPINION DELIVERED PURSUANT TO THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY

SINCE THE PARTIES HAVE, ALTHOUGH FOR DIFFERENT REASONS, CONTESTED THE ADMISSIBILITY OF AN APPLICATION FOR ANNULMENT OF AN OPINION DELIVERED PURSUANT TO THE FOURTH PARAGRAPH OF ARTICLE 54 OF THE TREATY, CONSIDERATION MUST BE GIVEN TO THIS QUESTION AFTER FIRST ESTABLISHING THE NATURE OF THE LETTERS OF 19 DECEMBER 1956 AND OF 27 FEBRUARY 1957 .

UNDER ARTICLE 33 OF THE TREATY AND THE PRECEDENTS ESTABLISHED BY THE COURT ONLY ACTS OF THE HIGH AUTHORITY WHICH, REGARDLESS OF THEIR FORM, CONSTITUTE DECISIONS OR RECOMMENDATIONS WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY MAY BE THE SUBJECT OF AN APPLICATION FOR ANNULMENT .

SUBJECT TO THE EXCEPTION PROVIDED FOR UNDER PARAGRAPH 5 OF ARTICLE 54 OF THE TREATY AN OPINION CANNOT, IN PRINCIPLE, BE THE SUBJECT OF SUCH AN APPLICATION .

NEVERTHELESS THE COURT MUST CONSIDER WHETHER THE CONTESTED ACT DOES NOT CONSTITUTE A DISGUISED DECISION, AS THE APPLICANT CONSIDERS IT TO BE . AS THE COURT RULES IN ITS JUDGMENT OF 16 JULY 1956 IN CASE 8/55, AN ACT OF THE HIGH AUTHORITY CONSTITUTES A DECISION WHEN IT LAYS DOWN A RULE CAPABLE OF BEING APPLIED, IN OTHER WORDS, WHEN BY THE SAID ACT THE HIGH AUTHORITY UNEQUIVOCALLY DETERMINES THE POSITION WHICH IT DECIDES TO ADOPT IF CERTAIN CONDITIONS ARE FULFILLED . THERE CAN BE NO DOUBT THAT, FIRST, THERE IS, IN THE OPINION OF 27 FEBRUARY, NO RULE CAPABLE OF BEING APPLIED SINCE IT IMPOSES NO LEGAL OBLIGATION ON THE APPLICANT AND, SECONDLY, THERE IS NOTHING IN THE FILE ON THE CASE JUSTIFYING THE CONCLUSION THAT, IN ISSUING THE SAID OPINION, THE HIGH AUTHORITY HAD CLEARLY LAID DOWN WHAT ATTITUDE IT HAD FORTHWITH DECIDED TO ADOPT TOWARDS THE UNDERTAKING IN THE EVENT OF ITS IGNORING THE ADVERSE OPINION . THE WARNINGS GIVEN BY CERTAIN OFFICIALS ARE NO PROOF THAT THE HIGH AUTHORITY HAD ALREADY REACHED A CONCLUSION IN THE MATTER .

THE OPINION OF THE HIGH AUTHORITY OF 27 FEBRUARY 1957 CANNOT, THEREFORE BE REGARDED AS A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY WITH THE RESULT THAT THE APPLICATION FOR ANNULMENT OF THAT OPINION IS INADMISSIBLE SINCE IT IMPUGNS AN ACT WHICH CANNOT BE REVIEWED BY THE COURT .

C - EFFECT OF A RULING THAT THE APPLICATION IS INADMISSIBLE

THE APPLICANT SEEKS A DECLARATION FROM THE COURT THAT, INTER ALIA, APPLICATION 14/57 IS INADMISSIBLE BECAUSE THE ACT IS CAPABLE, NEITHER DIRECTLY NOR INDIRECTLY, OF HAVING ANY LEGAL EFFECT . IT CONSIDERS THAT A RULING THAT IT IS INADMISSIBLE WOULD PROVIDE IT WITH AN ASSURANCE THAT NO CONCLUSIONS WILL LATER BE DRAWN FROM THE OPINION WHICH ARE INCONSISTENT WITH THE TRUE NATURE OF THAT ACT .

P . 115

BUT ALTHOUGH ARTICLE 14 OF THE TREATY MAKES IT CLEAR THAT AN OPINION CANNOT DIRECTLY INVOLVE THE PERSON TO WHOM IT IS ADDRESSED IN ANY LEGAL OBLIGATION, AN OPINION IS, ON THE OTHER HAND, DISTINGUISHED FROM A DECISION AND FROM A RECOMMENDATION BOTH BY ITS NATURE AND BY ITS FUNCTION WITHIN THE GENERAL FRAMEWORK OF THE TREATY . IN ADDITION TO THE HIGH AUTHORITY'S POWERS OF DIRECTION, WHICH ENABLE IT, BY MEANS OF ITS DECISIONS AND RECOMMENDATIONS, TO INTERVENE POSITIVELY AND DIRECTLY IN THE ORGANIZATION OF THE COMMON MARKET, THE TREATY HAS INVESTED THE HIGH AUTHORITY WITH RESPONSIBILITY FOR GIVING GUIDANCE, WHICH IT DISCHARGES BY MEANS OF, INTER ALIA, OPINIONS . THESE OPINIONS ARE, THEREFORE, MERELY ADVICE GIVEN TO UNDERTAKINGS . THE LATTER THUS REMAIN FREE TO PAY REGARD TO OR IGNORE IT BUT THEY MUST UNDERSTAND THAT IN IGNORING AN ADVERSE OPINION THEY ACCEPT THE RISKS WITH WHICH THEY MAY BE FACED AS THE RESULT OF A SITUATION WHICH THEY THEMSELVES HAVE HELPED TO CREATE . IN OTHER WORDS, THE FREEDOM OF DECISION AND THE RESPONSIBILITY OF THE UNDERTAKINGS REMAIN, LIKE THOSE OF THE HIGH AUTHORITY, UNCHANGED . THERE IS THEREFORE NO NEED FOR THE COURT TO GIVE A RULING ON POSSIBILITIES THE NATURE AND FORM OF WHICH IT HAS NO MEANS OF FORETELLING .

THE APPLICANT HAS BEEN UNSUCCESSFUL IN APPLICATIONS 1/57 AND 14/57 AND ACCORDINGLY, UNDER ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT, MUST BE ORDERED TO BEAR THE COSTS OF THE DEFENDANT .

THE APPLICANT MUST BEAR ITS OWN COSTS .

THE COURT

HEREBY :

1 . DECLARES APPLICATIONS 1/57 AND 14/57 TO BE INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE PROCEEDINGS .