61957J0017

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1 . PROCEDURE - ACTION FOR FAILURE TO ACT - PUTTING THE HIGH AUTHORITY ON NOTICE

2 . PROCEDURE - APPLICATION FOR ANNULMENT - BASIS OF ACTION - CHANGE

3 . OBLIGATIONS OF THE STATES - FAILURE TO FULFIL SUCH OBLIGATIONS - POWERS OF THE HIGH AUTHORITY

1 . PROCEEDINGS MAY BE BROUGHT UNDER ARTICLE 35 ONLY INASMUCH AS THE APPLICANT HAS FIRST RAISED THE MATTER WITH THE HIGH AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF THE FIRST PARAGRAPH OF THAT ARTICLE . THIS INITIAL REQUIREMENT IS NECESSARY NOT ONLY BECAUSE THE TIME-LIMIT SET FOR THE PARTY CONCERNED COMMENCES TO RUN WITH EFFECT FROM THE REQUEST SUBMITTED TO THE HIGH AUTHORITY BUT ALSO BECAUSE OF THE NEED FOR NOTIFICATION WHICH, BY IMPUGNING THE INACTION OF THE HIGH AUTHORITY, FORCES IT TO TAKE A DECISION WITHIN A LIMITED PERIOD REGARDING THE LEGALITY OR OTHERWISE OF ITS INACTION ( ARTICLE 35 OF THE ECSC TREATY ).

2 . THE BASIS OF AN ACTION CANNOT BE CHANGED, EVEN BY WAY OF AN ALTERNATIVE, IN THE REPLY .

3 . IF, AFTER GIVING A STATE THE OPPORTUNITY TO

3 . IF, AFTER GIVING A STATE THE OPPORTUNITY TO SUBMIT ITS COMMENTS, PURSUANT TO ARTICLE 88, THE HIGH AUTHORITY RECEIVES UNDERTAKINGS FROM THE STATE WHICH CONVINCE IT THAT THE STATE HAS NOT FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY, IT HAS NO ALTERNATIVE BUT TO DISCONTINUE THE ACTION TAKEN . ARTICLE 88 OF THE TREATY CONFERS NO POWER ON THE HIGH AUTHORITY TO TAKE, IN RESPECT OF MEMBER STATES, DECISIONS REGISTERING APPROVAL BUT ONLY DECISIONS RECORDING FAILURE TO FULFIL AN OBLIGATION UNDER THE TREATY ( ARTICLE 88 OF THE ECSC TREATY ).

IN CASE 17/57

GEZAMENLIJKE STEENKOLENMIJNEN IN LIMBURG, AN ASSOCIATION OF UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 48 OF THE TREATY, OF 16 DR . POELSTRAAT, HEERLEN ( NETHERLANDS ), REPRESENTED BY H . H . WEMMERS, PRESIDENT, AND P . A . A . WIRTZ, APPOINTED BY THE ANNUAL MEETING OF MEMBERS OF THE ASSOCIATION, ASSISTED BY W . L . HAARDT, ADVOCATE AT THE HOGE RAAD OF THE NETHERLANDS, AND W . C . L . VAN DER GRINTEN, LECTURER AT THE CATHOLIC UNIVERSITY OF NIJMEGEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 83, BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY W . MUCH, SUBSEQUENTLY BY R . BAEYENS, LEGAL ADVISERS TO THE HIGH AUTHORITY, ACTING AS AGENTS, ASSISTED BY C . R . C . WIJKERHELD BISDOM, ADVOCATE AT THE HOGE RAAD OF THE NETHERLANDS, WITH AN ADDRESS FOR SERVICE AT THE OFFICES OF THE HIGH AUTHORITY AT 2, PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY CONCERNING THE FEDERAL GERMAN GOVERNMENT IN RESPECT OF THE TAX-FREE BONUS GRANTED TO MINERS WORKING UNDERGROUND AND KNOWN AS THE " BERGMANNSPRAEMIE ".

P . 6

ADMISSIBILITY

A - APPLICATION FOR ANNULMENT UNDER ARTICLE 33

IN THE APPLICATION INITIATING THE PROCEEDINGS, THE APPLICANT EXPRESSES THE VIEW THAT THE LETTER ADDRESSED TO IT BY THE HIGH AUTHORITY ON 7 AUGUST 1957 IS ONLY A NOTIFICATION OF THE CONTESTED DECISION WITHIN THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 33 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, SINCE THE SUBSTANCE OF THE DECISION WAS BROUGHT TO ITS NOTICE BY THE STATEMENT OF DEFENCE AT A LATER DATE .

P . 7

THE APPLICANT CONSIDERS THAT THE CONTESTED DECISION WAS SET OUT IN THE HIGH AUTHORITY'S LETTER OF 21 JUNE 1957 TO THE FEDERAL GOVERNMENT .

IN CONSEQUENCE, CONSIDERATION MUST BE GIVEN TO THE QUESTION WHETHER THE LETTER IS A DECISION WHICH CAN BE THE SUBJECT OF PROCEEDINGS UNDER ARTICLE 33 OF THE TREATY .

IN ORDER TO CARRY OUT THE TASKS ASSIGNED TO IT, THE HIGH AUTHORITY IS EMPOWERED BY ARTICLE 14 OF THE TREATY TO TAKE DECISIONS IN ACCORDANCE WITH THE PROVISIONS OF THE SAID TREATY . THE DECISION ( IF ANY ) REFERRED TO IN THE APPLICATION COULD HAVE BEEN TAKEN ONLY IN PURSUANCE OF ARTICLE 88 OF THE TREATY .

ARTICLE 88 OF THE TREATY STRICTLY DEFINES THE CONDITIONS IN WHICH THE DECISIONS FOR WHICH IT PROVIDES MAY BE TAKEN, BUT PROVIDES FOR SUCH A DECISION ONLY WHEN " THE HIGH AUTHORITY CONSIDERS THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THIS TREATY ", IN WHICH CASE THE HIGH AUTHORITY IS BOUND TO RECORD THIS FAILURE IN A REASONED DECISION " AFTER GIVING THE STATE CONCERNED THE OPPORTUNITY TO SUBMIT ITS COMMENTS " AND SETTING IT A TIME-LIMIT FOR THE FULFILMENT OF ITS OBLIGATION .

IF, AFTER GIVING A STATE THE OPPORTUNITY TO SUBMIT ITS COMMENTS, PURSUANT TO ARTICLE 88, THE HIGH AUTHORITY RECEIVES UNDERTAKINGS FROM THE STATE WHICH CONVINCE IT THAT THE STATE HAD NOT FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY, IT HAS NO ALTERNATIVE BUT TO DISCONTINUE THE ACTION TAKEN . ARTICLE 88 OF THE TREATY CONFERS NO POWER ON THE HIGH AUTHORITY TO TAKE, IN RESPECT OF MEMBER STATES, DECISIONS REGISTERING APPROVAL, BUT ONLY DECISIONS RECORDING FAILURE TO FULFIL AN OBLIGATION UNDER THE TREATY .

IN ITS LETTER OF 21 JUNE 1957, THE HIGH AUTHORITY CONFINED ITSELF TO INFORMING THE FEDERAL GOVERNMENT THAT, IF CERTAIN CONDITIONS WERE FULFILLED, IT WOULD NO LONGER CONSIDER THAT THE SAID GOVERNMENT HAD FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

IN THESE CIRCUMSTANCES, THE LETTER OF 21 JUNE 1957 CANNOT BE REGARDED AS CONTAINING A DECISION RECORDING A FAILURE WITHIN THE MEANING OF ARTICLE 88 AND IT CANNOT IN CONSEQUENCE, BE THE SUBJECT OF THE ACTION PROVIDED FOR UNDER ARTICLE 33 TO HAVE DECISIONS OR RECOMMENDATIONS OF THE HIGH AUTHORITY DECLARED VOID .

P . 8

B - APPLICATION FOR ANNULMENT UNDER ARTICLE 35

IN THE ABSENCE OF A DECISION OF THE HIGH AUTHORITY TO RECORD A FAILURE WITHIN THE MEANING OF ARTICLE 88 OF THE TREATY, THE ONLY COMPLAINT WHICH THE APPLICANT COULD HAVE MADE AGAINST THE HIGH AUTHORITY WAS OF ABSTENTION WITHIN THE MEANING OF ARTICLE 35 OF THE TREATY .

IN ITS REPLY, THE APPLICANT STATES THAT " IN THE UNLIKELY EVENT OF THE COURT'S RULING THAT, AS CLAIMED BY THE HIGH AUTHORITY, IT TOOK NO DECISION ... THE PROCEEDINGS MUST BE REGARDED AS HAVING BEEN BROUGHT UNDER ARTICLE 35 ".

IN ANY CASE, THE BASIS OF AN ACTION CANNOT BE CHANGED, EVEN BY WAY OF AN ALTERNATIVE, IN THE REPLY .

MOREOVER, PROCEEDINGS MAY BE BROUGHT UNDER ARTICLE 35 ONLY INASMUCH AS THE APPLICANT HAS FIRST RAISED THE MATTER WITH THE HIGH AUTHORITY IN ACCORDANCE WITH THE PROVISIONS OF THE FIRST PARAGRAPH OF THAT ARTICLE .

THIS INITIAL REQUIREMENT IS NECESSARY NOT ONLY BECAUSE THE TIME-LIMIT SET FOR THE PARTY CONCERNED COMMENCES TO RUN WITH EFFECT FROM THE REQUEST SUBMITTED TO THE HIGH AUTHORITY BUT ALSO BECAUSE OF THE NEED FOR NOTIFICATION WHICH, BY IMPUGNING THE INACTION OF THE HIGH AUTHORITY, FORCES IT TO TAKE A DECISION WITHIN A LIMITED PERIOD REGARDING THE LEGALITY OR OTHERWISE OF ITS INACTION .

THE APPLICANT'S LETTER OF 11 JULY 1957 TO THE HIGH AUTHORITY REQUESTING TO BE INFORMED OF THE DECISION WHICH IT HAD TAKEN IN THE MATTER IN QUESTION CANNOT BE REGARDED AS FULFILLING THE REQUIREMENT PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 35 OF THE TREATY, NOR DOES THE LETTER OF 22 AUGUST, IN WHICH THE APPLICANT MERELY STATED THAT IT WAS CONTEMPLATING INSTITUTING PROCEEDINGS AGAINST THE DECISION WHICH IT BELIEVED THE HIGH AUTHORITY TO HAVE TAKEN, CONSTITUTE FULFILMENT OF THAT REQUIREMENT .

IN CONSEQUENCE, THE ACTION OF THE GEZAMENLIJKE STEENKOLENMIJNEN IN LIMBURG IS INADMISSIBLE EITHER UNDER ARTICLE 33 OR UNDER ARTICLE 35 .

UNDER ARTICLE 60 OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT IN THIS ACTION HAS FAILED TO ESTABLISH ADMISSIBILITY .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .