61965O0009

++++

IN CASE 9/65

ACCIAIERIE SAN MICHELE SPA, HAVING ITS REGISTERED OFFICE IN TURIN, REPRESENTED BY ITS SOLE DIRECTOR, ADRIANO VIGNA, ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND OF THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS AGENT, ITALO TELCHINI, ASSISTED BY PROFESSOR ORI GIACCHI OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

P . 29

WHEREAS IN CASE 9/65, PENDING BEFORE THE COURT, ON THE APPLICATION OF THE SAN MICHELE UNDERTAKING AGAINST THE DECISION OF THE HIGH AUTHORITY OF 13 NOVEMBER 1964, THE SAID UNDERTAKING APPLIED FOR THE ADOPTION OF AN INTERIM MEASURE SUSPENDING JUDGMENT UNTIL A DECISION HAS BEEN GIVEN BY THE CORTE COSTITUZIONALE ITALIANA, WHICH HAS BEEN REQUESTED TO GIVE A RULING ON WHETHER VARIOUS PROVISIONS OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY ARE UNCONSTITUTIONAL .

WHEREAS THE FILE INDICATES THAT IT IS APPROPRIATE THAT A RULING BE GIVEN IMMEDIATELY, ON THE SOLE BASIS OF THE PARTIES' STATEMENTS, AS TO WHETHER THE SAID APPLICATION IS WELL FOUNDED;

WHEREAS AFTER A FINE WAS IMPOSED UPON THE SAN MICHELE UNDERTAKING BY THE HIGH AUTHORITY ON 18 DECEMBER 1962, AS A RESULT OF A JUDGMENT OF THE COURT OF JUSTICE OF 14 DECEMBER 1962, FOR FAILURE TO SUBMIT ELECTRICITY INVOICES REQUIRED FOR THE EQUALIZATION CALCULATION, THE SAID UNDERTAKING OBJECTED TO THE IMPLEMENTATION OF THAT DECISION AND BROUGHT THE MATTER BEFORE THE TRIBUNALE DI TORINO, ON THE GROUND THAT THE INTRODUCTION INTO THE ITALIAN LEGAL SYSTEM BY AN ORDINARY LAW OF CERTAIN PROVISIONS OF THE TREATY MEANT THAT THEY COULD NOT BE PLEADED AGAINST THE SAN MICHELE UNDERTAKING;

WHEREAS THE SAID TRIBUNALE, DOUBTING THE ' PRIVILEGED STATUS ' OF THE LAW ARISING FROM THE TREATY AND THE CONSTITUTIONALITY OF THE INSTITUTIONS AND LEGAL PROCEDURES OF THE COMMUNITY, DECLARED BY ORDER OF 19 DECEMBER 1964 THAT THE OBJECTION OF UNCONSTITUTIONALITY IN QUESTION WAS ' NOT CLEARLY UNFOUNDED ' AND BROUGHT THE QUESTION OF THE VALIDITY OF ARTICLES 33, 41 AND 92 OF THE ECSC TREATY BEFORE THE CORTE CONSTITUZIONALE;

WHEREAS, IN SUPPORT OF ITS APPLICATION BASED ON THOSE FACTORS FOR THE ADOPTION OF THE ABOVE-MENTIONED INTERIM MEASURE, THE APPLICANT THUS ALLEGED THAT THE JUDGMENT TO BE GIVEN BY THE CORTE CONSTITUZIONALE CARRIED ' ABSOLUTE ' AUTHORITY AND THAT ' ANY COURT HAVING JURISDICTION OVER ITALIAN CITIZENS ' WAS OBLIGED TO SUSPEND JUDGMENT;

WHEREAS, HOWEVER, THE COURT OF JUSTICE, AS THE INSTITUTION ENTRUSTED WITH ENSURING THAT IN THE INTERPRETATION AND APPLICATION OF THE TREATY THE LAW IS OBSERVED, CAN ONLY TAKE INTO CONSIDERATION THE INSTRUMENT OF RATIFICATION, WHICH ITSELF WAS DEPOSITED ON BEHALF OF ITALY ON 22 JULY 1952 AND WHICH, TOGETHER WITH THE OTHER INSTRUMENTS OF RATIFICATION, BROUGHT THE TREATY INTO FORCE;

P . 30

WHEREAS IT IS CLEAR FROM THE INSTRUMENTS OF RATIFICATION, WHEREBY THE MEMBER STATES BOUND THEMSELVES IN AN IDENTICAL MANNER, THAT ALL STATES HAVE ADHERED TO THE TREATY ON THE SAME CONDITIONS, DEFINITIVELY AND WITHOUT ANY RESERVATIONS OTHER THAN THOSE SET OUT IN THE SUPPLEMENTARY PROTOCOLS, AND THAT THEREFORE ANY CLAIM BY A NATIONAL OF A MEMBER STATE QUESTIONING SUCH ADHERENCE WOULD BE CONTRARY TO THE SYSTEM OF COMMUNITY LAW;

WHEREAS SUCH A CLAIM IS ALL THE MORE INADMISSIBLE IN THAT, IN THIS CASE, ANY DECISION TO SUSPEND JUDGMENT WOULD BE TANTAMOUNT TO REDUCING THE COMMUNITY TO A CIPHER BY REGARDING THE INSTRUMENT OF RATIFICATION EITHER AS ONLY PARTIALLY ACCEPTING THE TREATY, OR AS THE MEANS OF ACCORDING TO IT DIFFERENT LEGAL CONSEQUENCES, VARYING WITH THE MEMBER STATE CONCERNED, OR AS THE MEANS WHEREBY SOME NATIONALS MIGHT EVADE ITS RULES;

WHEREAS THE PARTICIPATION OF THE ITALIAN REPUBLIC IN THE COMMON INSTITUTIONS AND IN THE RIGHTS AND OBLIGATIONS ARISING FROM THE TREATY IN FACT PRECLUDE ITS NATIONALS FROM AVOIDING THE COMPLETE AND UNIFORM APPLICATION OF THE SAID TREATY AND FROM THUS OBTAINING DIFFERENT TREATMENT FROM THAT OF OTHER NATIONALS IN THE COMMUNITY;

WHEREAS, THEREFORE, THERE MUST BE DISMISSED AS CONTRARY TO COMMUNITY POLICY ANY APPLICATION THE PURPOSE OF WHICH IS TO ESTABLISH DISCRIMINATION OF THIS NATURE WHICH NO LAW OF RATIFICATION COULD INTRODUCE INTO A TREATY PROHIBITING SUCH DISCRIMINATION;

WHEREAS THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE MUST THEREFORE BE DISMISSED;

WHEREAS UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS;

THE COURT

COMPOSED OF : CH . L . HAMMES, PRESIDENT, A.M . DONNER AND R . LECOURT ( RAPPORTEUR ), PRESIDENTS OF CHAMBERS, L . DELVAUX, A . TRABUCCHI, W . STRAUSS AND R . MONACO, JUDGES,

ADVOCATE-GENERAL : K . ROEMER

REGISTRAR : A . VAN HOUTTE

RULING ON THE BASIS OF THE PARTIES' STATEMENTS, HAVING REGARD TO THE URGENCY OF THE CASE,

HEREBY ORDERS :

1 . THE APPLICATION MADE ON 24 APRIL 1965 BY THE SAN MICHELE COMPANY FOR THE ADOPTION OF AN INTERIM MEASURE SUSPENDING JUDGMENT IN CASE 9/65 IS DISMISSED;

2 . A NEW PERIOD SHALL BE GRANTED TO THE APPLICANT FOR THE SUBMISSION OF ITS REPLY;

3 . THE APPLICANT SHALL BEAR THE COSTS OF THE PRESENT APPLICATION .