61969J0075

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IN CASE 75/69

ERNST HAKE AND COMPANY, DUESSELDORF, REPRESENTED BY JOCHEN HAKE, ASSISTED BY PETER SCHAMBACH, OF OBERSTEDTEN/TAUNUS, ADVOCATE OF THE BARS OF BAD HOMBURG VON DER HOEHE AND FRANKFURT-AM-MAIN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF FELICIEN JANSEN, HUISSIER, 21 RUE ALDRINGEN, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ERICH ZIMMERMANN, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION CONCERNING THE ALLEGED FAILURE OF THE COMMISSION TO TAKE THE APPROPRIATE MEASURES TO GUARANTEE COMPETITION IN THE MARKET IN FERROUS SCRAP,

1 BY AN APPLICATION LODGED AT THE REGISTRY ON 15 DECEMBER 1969 THE APPLICANT HAS BROUGHT BEFORE THE COURT AN ACTION FOR FAILURE TO ACT BASED ON ARTICLE 35 OF THE ECSC TREATY, THE PURPOSE OF WHICH IS TO OBTAIN AN " ORDER " THAT THE DEFENDANT TAKE CERTAIN MEASURES, THE ADOPTION OF WHICH THE APPLICANT HAD REQUESTED IN ITS LETTERS OF 16 SEPTEMBER AND 3 OCTOBER 1969, IN ORDER TO ENSURE NORMAL CONDITIONS OF COMPETITION IN THE MARKET IN STEEL AND FERROUS SCRAP .

I - THE FIRST AND SECOND HEADS OF CLAIM

2 THE PARTIES AGREE IN ACCEPTING THAT BY THE COMMISSION' S DECISION OF 21 JANUARY 1970 ( OJ L 29, P . 30 ) CONCERNING THE AGREEMENT FORMING THE SUBJECT-MATTER OF THE REQUESTS CONTAINED IN THE ABOVEMENTIONED LETTERS THE APPLICANT OBTAINED SATISFACTION AS REGARDS THE FIRST AND SECOND HEADS OF CLAIM IN HIS APPLICATION, WITH THE RESULT THAT IT IS NO LONGER NECESSARY TO GIVE A RULING WITH REGARD TO THEM .

3 THE COURT TAKES NOTE OF THIS FACT .

II - THE THIRD HEAD OF CLAIM

4 IN THE THIRD HEAD OF CLAIM THE APPLICANT REQUESTS THE COURT TO ORDER THE COMMISSION " TO TAKE THE APPROPRIATE MEASURES TO GUARANTEE COMPETITION IN THE MARKET IN FERROUS SCRAP, SUCH AS, IN PARTICULAR, THE FIXING OF A MINIMUM QUOTA OF THE FERROUS SCRAP REQUIREMENTS ( OF THE IRON AND STEEL UNDERTAKINGS ) UP TO WHICH AMOUNT SUPPLIES MUST BE OBTAINED FROM INDEPENDENT DEALERS ( THAT IS, THOSE WHO DO NOT FORM PART OF THE GROUP ) ".

AS, ACCORDING TO ARTICLE 35, THE SOLE OBJECT OF AN ACTION FOR FAILURE TO ACT IS THE IMPLIED DECISION OF REFUSAL WHICH RESULTS FROM THE SILENCE OF THE AUTHORITY, THIS REQUEST CAN ONLY BE ACCEPTED IN SO FAR AS IT RELATES TO THE ANNULMENT OF THE IMPLIED DECISION REJECTING THE REQUEST CONTAINED IN THE LETTERS OF 16 SEPTEMBER AND 3 OCTOBER 1969 OF FIX MINIMUM QUOTAS UNDER THE CONDITIONS DEFINED IN THE PRESENT APPLICATION .

5 THE DEFENDANT CONTENDS THAT THIS HEAD OF THE APPLICATION IS INADMISSIBLE, ON THE GROUND THAT NO SUCH REQUEST APPEARED IN THE LETTERS OF 16 SEPTEMBER AND 3 OCTOBER 1969 .

6 THE LETTER OF 16 SEPTEMBER 1969 CONTAINED NO REFERENCE TO SUCH A FIXING OF QUOTAS, BUT MERELY REQUESTED THE DEFENDANT TO NOTE THE EXISTENCE OF THE AGREEMENT CONCLUDED BETWEEN THE GERMAN IRON AND STEEL PRODUCERS AND TO IMPOSE SANCTIONS UPON THOSE CONCERNED, MEASURES WHICH THE DEFENDANT IN FACT ADOPTED IN ITS DECISION OF 21 JANUARY 1970 .

7 IN ITS LETTER OF 3 OCTOBER 1969 THE APPLICANT REQUESTED THE DEFENDANT " TO TAKE ADEQUATE AND APPROPRIATE MEASURES IN ORDER TO RE-ESTABLISH AND GUARANTEE NORMAL CONDITIONS OF COMPETITION ON THE GERMAN MARKET IN FERROUS SCRAP ", IN PARTICULAR THE MEASURES ALREADY REFERRED TO IN THE LETTER OF 16 SEPTEMBER .

IT CANNOT BE CONCLUDED ON THE BASIS OF THIS WORDING THAT THE APPLICANT REQUESTED THE DEFENDANT TO ADOPT NOT ONLY THE MEASURES DEFINED SPECIFICALLY IN THE LETTERS IN QUESTION, BUT ALSO ADDITIONAL MEASURES .

ON THE CONTRARY, THE LETTER OF 3 OCTOBER 1969 MIGHT AS EASILY BE INTERPRETED TO MEAN THAT AS REGARDS THE POSSIBLE ADOPTION OF SUCH MEASURES THE APPLICANT RELIED ON THE DISCRETION OF THE DEFENDANT .

8 MOREOVER, EVEN IF IT IS ACCEPTED THAT THE APPLICANT FORMALLY REQUESTED THE ADOPTION OF ADDITIONAL MEASURES, IT NEVERTHELESS OMITTED TO GIVE ANY DETAILS AS TO THEIR CONTENT .

IN THESE CIRCUMSTANCES, THE IMPLIED DECISION IMPUTED TO THE DEFENDANT CANNOT BE INTERPRETED AS THE DISMISSAL OF A REQUEST FOR THE FIXING OF MINIMUM QUOTAS IN FAVOUR OF INDEPENDENT FERROUS SCRAP DEALERS .

9 THUS, THE DEFENDANT CANNOT BE REGARDED AS HAVING TAKEN, WITHIN TWO CONSECUTIVE MONTHS FROM BEING REQUESTED TO ACT BY THE APPLICANT, AN IMPLIED DECISION REFUSING TO FIX MINIMUM QUOTAS IN FAVOUR OF INDEPENDENT FERROUS SCRAP DEALERS AS SET OUT IN THE THIRD HEAD OF CLAIM .

10 THIS HEAD OF CLAIM MUST THEREFORE BE DECLARED INADMISSIBLE AS BEING WITHOUT PURPOSE .

11 UNDER THE TERMS OF ARTICLE 69 ( 5 ) OF THE RULES OF PROCEDURE, WHERE A CASE DOES NOT PROCEED TO JUDGMENT THE COSTS SHALL BE IN THE DISCRETION OF THE COURT . IT MUST BE BORNE IN MIND IN FAVOUR OF THE APPLICANT THAT IT WAS ESSENTIALLY UPON ITS INITIATIVE THAT THE DEFENDANT, REALIZING THAT THE APPLICATION WAS JUSTIFIED, ADOPTED THE MEASURES REQUESTED IN THESE HEADS OF CLAIM, ALTHOUGH IT DID SO BOTH AFTER THE EXPIRY OF THE PERIOD OF TWO MONTHS REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 35 OF THE ECSC TREATY AND THE LODGING OF THE ACTION FOR FAILURE TO ACT .

IN THESE CIRCUMSTANCES THE DEFENDANT MUST BE ORDERED TO PAY ALL THE COSTS OF THE ACTION .

THE COURT

HEREBY :

1 . DECLARES THAT NO RULING NEED BE GIVEN ON THE FIRST AND SECOND HEADS OF CLAIM IN THE PRESENT APPLICATION;

2 . DISMISSES THE THIRD HEAD OF CLAIM;

3 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION .