61961J0009

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1 . TRANSPORT - OBLIGATIONS OF MEMBER STATES - IMPLEMENTATION - THE HIGH AUTHORITY'S POWERS - EXTENT

( ECSC TREATY, ARTICLES 5, 8, 70 )

2 . TRANSPORT - OBLIGATIONS OF MEMBER STATES - IMPLEMENTATION - THE HIGH AUTHORITY'S POWERS - MANNER OF EXERCISING POWERS - RECOMMENDATION

( ECSC TREATY, ARTICLE 70 )

3 . TRANSPORT - DISCRIMINATION - ECSC TREATY, ARTICLE 4 ( B ) - BASIC PRINCIPLE - REFERENCE TO THIS PROVISION

( ECSC TREATY, ARTICLES 4 ( B ), 70 )

4 . TRANSPORT - CONVENTION ON THE TRANSITIONAL PROVISIONS - PERMANENT VALIDITY OF PRINCIPLES

( CONVENTION ON THE TRANSITIONAL PROVISIONS, THIRD PARAGRAPH OF ARTICLE 10 )

5 . TRANSPORT - PUBLICITY - PROVISIONS OF THE ECSC TREATY - PLACE IN THE SYSTEM OF THE TREATY

( ECSC TREATY, ARTICLES 2 TO 5, 70 )

6 . TRANSPORT - PUBLICITY - PUBLICITY FOR TRANSPORT COSTS AND PRICES - RECOMMENDATION OF THE HIGH AUTHORITY - REQUEST TO MEMBER STATES TO ATTAIN THE OBJECTIVES OF ECSC TREATY, ARTICLE 60 - LEGALITY

( ECSC TREATY, ARTICLE 60 ( 2 ), ARTICLE 70 )

1 . THE EFFECT OF THE CONCRETE AND BINDING NATURE OF THE PROVISIONS OF ARTICLE 70 AND THE OBLIGATION IMPOSED UPON THE HIGH AUTHORITY BY THE SIXTH PARAGRAPH OF ARTICLE 5 AND BY ARTICLE 8 OF THE TREATY IS THAT THE HIGH AUTHORITY HAS THE POWER TO REQUIRE MEMBER STATES TO FULFIL THEIR OBLIGATIONS IN THE FIELD OF TRANSPORT .

WHEN THE HIGH AUTHORITY PROVIDES FOR MEASURES INVOLVING CHECKS AND SANCTIONS TO BE ADOPTED BY MEMBER STATES IN ORDER TO ENSURE COMPLIANCE WITH THEIR OBLIGATIONS UNDER ARTICLE 70, THIS IS THE OBVIOUS AND INEVITABLE COMPLEMENT OF THE OBLIGATIONS IMPOSED ON GOVERNMENTS . THE LATTER ARE ENTIRELY RESPONSIBLE NOT ONLY FOR THE ATTAINMENT OF THE AIMS OF ARTICLE 70 BUT ALSO FOR ENSURING THEIR IMPLEMENTATION .

2 . THE HIGH AUTHORITY IS NOT EMPOWERED TO ENSURE THAT THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 70 ARE OBSERVED SAVE BY WAY OF A RECOMMENDATION ADDRESSED TO MEMBER STATES, SPECIFYING THEIR OBLIGATIONS UNDER THE TREATY; SUCH RECOMMENDATION CANNOT HOWEVER IMPOSE UPON THEM NEW OBLIGATIONS WHICH HAVE NO BASIS IN THE TREATY .

3 . ARTICLE 4 OF THE ECSC TREATY, WHICH PROHIBITS ALL DISCRIMINATION IN GENERAL AND EXPRESSLY MENTIONS TRANSPORT, IS THE BASIC PRINCIPLE FOR THE PURPOSES OF THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 70 . THE REFERENCE TO THIS PRINCIPLE IS THEREFORE ENTIRELY JUSTIFIED .

4 . THE THIRD PARAGRAPH OF ARTICLE 10 OF THE CONVENTION ON TRANSITIONAL PROVISIONS IS PROVISIONAL ONLY AS REGARDS THE PROCEDURE FOR ITS IMPLEMENTATION . THE PRINCIPLES WHICH IT ESTABLISHES HAVE PERMANENT EFFECT .

5 . THE THIRD PARAGRAPH OF ARTICLE 70, FAR FROM BEING OF RESTRICTED AND LIMITED APPLICATION, MUST BE APPLIED TO TRANSPORT WITHIN THE FRAMEWORK OF THE GENERAL SCHEME OF THE TREATY AND OF THE FUNCTIONING OF THE COMMON MARKET FOR COAL AND STEEL AS SET FORTH IN PARTICULAR IN ARTICLES 2 TO 5 OF THE TREATY .

6 . THE HIGH AUTHORITY IS ENTITLED TO MAKE THE ATTAINMENT OF THE OBJECTIVES OF ARTICLE 60 OF THE ECSC TREATY THE AIM OF A RECOMMENDATION ADDRESSED TO MEMBER STATES RELATING TO PUBLICITY FOR TRANSPORT COSTS . IT IS IN FACT ENTITLED TO GUARANTEE APPROPRIATE PUBLICITY FOR TRANSPORT RATES IS PART OF ITS GENERAL TASK TO ENSURE THE ATTAINMENT OF THE OBJECTS LAID DOWN BY THE TREATY AND IT HAS THE RIGHT TO REQUIRE MEMBER STATES TO FACILITATE THE ACCOMPLISHMENT OF THIS TASK .

IN CASE 9/61

GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, REPRESENTED BY PROFESSOR W . BIPHAGEN, LEGAL ADVISER TO THE MINISTRY OF FOREIGN AFFAIRS, ASSISTED BY PROFESSOR W . L . HAARDT, ADVOCATE AT THE HOGE RAAD OF THE NETHERLANDS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE NETHERLANDS EMBASSY, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER R . BAEYENS, ACTING AS AGENT, ASSISTED BY C . R . C . WIJCKERHELD BISDOM, ADVOCATE AT THE HOGE RAAD OF THE NETHERLANDS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2 PLACE DE METZ, DEFENDANT,

SUPPORTED BY :

- LES CHARBONNAGES DE FRANCE, A PUBLIC INDUSTRIAL AND COMMERCIAL BODY HAVING ITS OFFICE IN PARIS, REPRESENTED BY ITS GENERAL MANAGER, P . BASEILHAC,

- LES HOUILLIERES DU BASSIN DU NORD ET DU PAS-DE-CALAIS, A PUBLIC INDUSTRIAL AND COMMERCIAL BODY HAVING ITS OFFICE AT DOUAI ( FRANCE ), REPRESENTED BY ITS GENERAL MANAGER, J . AUREL,

- LES HOUILLIERES DU BASSIN DE LORRAINE, A PUBLIC INDUSTRIAL AND COMMERCIAL BODY HAVING ITS OFFICE AT MERLEBACH ( FRANCE ), REPRESENTED BY ITS GENERAL MANAGER, P . SIGNARD, ASSISTED BY ROGER L'ELEU, ADVOCATE AT THE COUR D'APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF LES CHARBONNAGES DE FRANCE, 103 GRAND' RUE, INTERVENERS,

APPLICATION FOR THE ANNULMENT OF RECOMMENDATION N . 1/61 OF THE HIGH AUTHORITY OF 1 MARCH 1961 TO THE GOVERNMENTS OF THE MEMBER STATES RELATING TO THE PUBLICATION OR COMMUNICATION OF THE SCALES, RATES AND TARIFF RULES APPLIED TO THE CARRIAGE OF COAL AND STEEL, PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 9 MARCH 1961 ( PP . 469 ET SEQ .) AND NOTIFIED TO THE KINGDOM OF THE NETHERLANDS BY LETTER DATED 4 MARCH 1961;

P . 231

THE ADMISSIBILITY OF THE APPLICATION BY THE NETHERLANDS GOVERNMENT AND THE INTERVENTION BY LES CHARBONNAGES DE FRANCE AND OTHERS HAS NOT BEEN CHALLENGED BY THE PARTIES AND THERE ARE NO REASONS FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THE ORIGINAL APPLICATION AND THE APPLICATION TO INTERVENE ARE THEREFORE ADMISSIBLE .

I - THE PROCEDURE FOLLOWED BY THE HIGH AUTHORITY

1 . IT IS APPROPRIATE TO CONSIDER WHETHER THE PROVISIONS OF ARTICLE 70 OF THE TREATY LAY DOWN FOR MEMBER STATES OBLIGATIONS WITH WHICH THE HIGH AUTHORITY HAS TO ENSURE COMPLIANCE OR WHETHER THIS ARTICLE IS ONLY A DECLARATION OF PRINCIPLE WHICH DOES NOT IMPLY ANY DUTY ON THE PART OF EITHER THE COMMUNITY INSTITUTIONS OR THE MEMBER STATES .

A

( A ) IT EMERGES FROM THE CLEAR WORDING OF ARTICLE 70 OF THE TREATY THAT THE HIGH CONTRACTING PARTIES RECOGNIZE IN THE CASE OF TRANSPORT :

( 1 ) THAT 'THE ESTABLISHMENT OF THE COMMON MARKET NECESSITATES THE APPLICATION OF SUCH RATES AND CONDITIONS FOR THE CARRIAGE OF COAL AND STEEL AS WILL AFFORD COMPARABLE PRICE CONDITIONS TO COMPARABLY PLACED CONSUMERS';

( 2 ) THAT THIS NECESSITY IMPLIES MORE PARTICULARLY THE PROHIBITION OF THE TYPES OF DISCRIMINATION WHICH ARE MORE FULLY SET OUT IN THE SECOND PARAGRAPH, A PROHIBITION MOREOVER WHICH IS STRENGTHENED BY THE EXCEPTION IN THE FOURTH PARAGRAPH;

( 3 ) THAT 'THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE OF COAL AND STEEL WITHIN EACH MEMBER STATE AND BETWEEN MEMBER STATES SHALL BE PUBLISHED OR BROUGHT TO THE KNOWLEDGE OF THE HIGH AUTHORITY';

THIS PARAGRAPH IS A CONCRETE AND BINDING PROVISION .

( B ) THE FOURTH INDENT OF THE SECOND PARAGRAPH OF ARTICLE 5 IMPOSES ON THE HIGH AUTHORITY THE DUTY TO ENSURE THE OBSERVANCE OF THE RULES LAID DOWN IN THE TREATY .

THIS OBLIGATION MOREOVER IS CONFIRMED BY ARTICLE 8 OF THE TREATY .

THE HIGH AUTHORITY HAS THEREFORE THE POWER TO REQUIRE STATES TO FULFIL THEIR OBLIGATIONS UNDER ARTICLE 70 .

B

1 . ARTICLE 14 PLACES AT THE DISPOSAL OF THE HIGH AUTHORITY 'IN ORDER TO CARRY OUT THE TASKS ASSIGNED TO IT' TWO COURSES OF ACTION, WHICH IT MUST USE 'IN ACCORDANCE WITH THE PROVISIONS OF THIS TREATY '.

THE QUESTION THEREFORE IS WHETHER THE HIGH AUTHORITY, WHICH HAS TO ENSURE THAT ARTICLE 70 IS OBSERVED, COULD 'IN ACCORDANCE WITH PROVISIONS OF THE TREATY' TAKE ACTION BY WAY OF A RECOMMENDATION .

THE PROVISIONS OF ARTICLE 70, AND IN PARTICULAR THE FIRST AND SECOND PARAGRAPHS THEREOF, ARE ADDRESSED FIRST TO THE MEMBER STATES WHO HOLD THE POWER TO MAKE REGULATIONS IN THIS FIELD . THIS VIEW IS CONFIRMED BY THE FIFTH PARAGRAPH OF THE SAID ARTICLE 70, ACCORDING TO WHICH TRANSPORT POLICY SHALL CONTINUE TO BE GOVERNED BY THE LAWS OR REGULATIONS OF THE INDIVIDUAL MEMBER STATES, SUBJECT TO THE PROVISIONS OF THAT ARTICLE AND TO THE OTHER PROVISIONS OF THE TREATY . WITH THIS RESERVATION, TRANSPORT UNDERTAKINGS ARE NOT SUBJECT TO THE POWER TO MAKE REGULATIONS VESTED IN THE HIGH AUTHORITY, WHICH IS ONLY EMPOWERED TO REQUIRE OF MEMBER STATES THAT THEY ENSURE THE OBSERVANCE OF COMMUNITY RULES BY MEANS OF THEIR NATIONAL POWERS . FURTHERMORE, THIS VIEW IS CONFIRMED BY THE FACT THAT THE THIRD PARAGRAPH OF ARTICLE 70 DOES NOT PROVIDE EITHER EXPRESSLY OR BY IMPLICATION FOR A POWER ON THE PART OF THE HIGH AUTHORITY TO APPLY SANCTIONS AGAINST TRANSPORT UNDERTAKINGS .

FROM THESE PREMISES THE CONCLUSION TO BE DRAWN IS THAT THE ABSENCE IN ARTICLE 70 OF ANY PROVISION FOR THE HIGH AUTHORITY TO LEGISLATE DIRECTLY SHOWS THAT, SUBJECT TO THE RESERVATION EXPRESSED AT THE BEGINNING OF THE FIFTH PARAGRAPH OF THE SAID ARTICLE, THE TREATY DOES NOT CONFER UPON IT IN THE FIELD OF TRANSPORT ANY DIRECT EXECUTIVE POWER .

IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THE ONLY MANNER IN WHICH THE HIGH AUTHORITY IS EMPOWERED TO ENSURE THAT THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 70 ARE OBSERVED IS BY WAY OF A RECOMMENDATION ADDRESSED TO THE MEMBER STATES, A RECOMMENDATION WHICH SPECIFIES THEIR OBLIGATIONS UNDER THE TREATY BUT WHICH CANNOT IMPOSE ON THE SAID MEMBER STATES NEW OBLIGATIONS WHICH HAVE NO BASIS IN THE TREATY .

P . 233

THIS MEANS THAT THE DISPUTED RECOMMENDATION HAS BEEN MADE AND ADDRESSED TO MEMBER STATES BY VIRTUE OF A POWER DULY VESTED IN THE HIGH AUTHORITY .

2 . THERE IS THEREFORE NO NEED TO DWELL ANY LONGER ON THE APPLICANT'S SUBMISSION THAT, IN THE ABSENCE OF AN EXPRESS AUTHORIZATION IN THE TREATY, THE HIGH AUTHORITY COULD ONLY DERIVE POWER TO MAKE REGULATIONS IN THIS CASE UNDER THE FIRST PARAGRAPH OF ARTICLE 95 WHICH APPLIES TO 'CASES NOT PROVIDED FOR IN THIS TREATY WHERE IT BECOMES APPARENT THAT A DECISION OR RECOMMENDATION OF THE HIGH AUTHORITY IS NECESSARY TO ATTAIN...ONE OF THE OBJECTIVES OF THE COMMUNITY ...'

THE ONLY OBJECT OF THE FIRST PARAGRAPH OF ARTICLE 95 IS TO INSTITUTE SPECIAL RULES FOR DEPARTING FROM THE TREATY WITH THE OBJECT OF EMPOWERING THE HIGH AUTHORITY TO MEET AN UNFORESEEN SITUATION .

THE CIRCUMSTANCES IN THIS CASE ARE DIFFERENT BECAUSE, AS HAS JUST BEEN SHOWN, NO SUCH DEPARTURE FROM THE TREATY IS INVOLVED SINCE THE HIGH AUTHORITY HAS APPLIED THE TREATY IN CIRCUMSTANCES COVERED BY ITS PROVISIONS .

II - THE NATURE OF THE CONTESTED MEASURE

THE CONTESTED RECOMMENDATION DOES NOT IMPLY AS THE APPLICANT CLAIMS, A FINDING THAT THE NETHERLANDS GOVERNMENT HAS FAILED TO COMPLY WITH AN OBLIGATION DIRECTLY ARISING UNDER THE TREATY, BUT REPRESENTS ONLY AN INSTRUCTION DEFINING AND CLARIFYING THE EXTENT OF THE DUTY OF MEMBER STATES UNDER THE THIRD PARAGRAPH OF ARTICLE 70 .

IN ENSURING COMPLIANCE WITH ARTICLE 70 WITHIN THE LIMITS OF ITS POWERS BY SPECIFYING THE AIMS IMPLIED BY THAT ARTICLE AND THE DUTY OF MEMBER STATES TO PROVIDE FOR ITS IMPLEMENTATION, THE HIGH AUTHORITY DID NOT MAKE ANY FINDING OF A FAILURE TO ACT CAPABLE OF SETTING IN MOTION THE PROCEDURE UNDER ARTICLE 88 .

CONSEQUENTLY THE METHOD OF A RECOMMENDATION ADOPTED IN THIS CASE BY THE HIGH AUTHORITY CANNOT DEPRIVE THE APPLICANT OF THE RIGHT TO INSTITUTE PROCEEDINGS, FOR WHICH PROVISION IS MADE UNDER THAT ARTICLE AND IN WHICH THE COURT HAS UNLIMITED JURISDICTION NOR CAN ITS ACTIONS AMOUNT TO AN ABUSE OF PROCEDURE .

THE CRITICISMS MADE OF THE RECOMMENDATION IN THIS RESPECT ARE THEREFORE UNFOUNDED .

P . 234

III - THE CONTENT OF THE RECOMMENDATION

A - GENERAL

AS FAR AS THE CONTENT OF THE REGULATION IS CONCERNED, THE APPLICANT COMPLAINS THAT BOTH THE STATEMENT OF REASONS AND THE OPERATIVE PART ARE NOT SUFFICIENTLY CLEAR; THAT THE HIGH AUTHORITY DID NOT CONFINE ITSELF TO DEALING WITH THE AIMS BUT BY IMPLICATION FIXED THE METHODS IN THE RECOMMENDATION, THUS DEPRIVING THE APPLICANT OF THE POSSIBILITY OF CHOOSING THEM, AND THAT AS A RESULT IN THE PRESENT CASE THERE IS NOT A RECOMMENDATION BUT AN ACTUAL DECISION .

THE CONTESTED RECOMMENDATION DOES NOT IMPLY ANY OBLIGATION WITH REGARD TO THE METHODS TO BE ADOPTED IN CONNEXION WITH THE AIMS OF THE TREATY . IT ONLY MENTIONS THE OBLIGATION TO ACHIEVE CERTAIN AIMS BY REQUIRING MEMBER STATES TO ENSURE THAT THE THIRD PARAGRAPH OF ARTICLE 70 IS APPROPRIATELY IMPLEMENTED .

THE STATES ARE COMPLETELY FREE IN THE CHOICE OF MEASURES LEFT TO THEIR DISCRETION PROVIDED THAT SUCH MEASURES CONFORM TO THE STATED AIMS .

FURTHER, THE APPLICANT HAS FAILED TO DEFINE IN WHAT RESPECTS THE HIGH AUTHORITY HAS LIMITED THE CHOICE OF METHODS . AS A RESULT THE CONTESTED RECOMMENDATION, FAR FROM AMOUNTING TO A DECISION, SATISFIES THE PRINCIPLES OF THE THIRD PARAGRAPH OF ARTICLE 14 OF THE TREATY AND DOES NOT JUSTIFY THE COMPLAINT OF MISUSE OF POWERS .

B - PARTICULAR PROVISIONS OF THE RECOMMENDATION

1 . THE APPLICANT MAKES TWO DIFFERENT COMPLAINTS WITH REGARD TO ARTICLE 1 OF THE RECOMMENDATION :

( A ) FIRST, IT RAISES THE OBJECTION THAT PARAGRAPH ( 1 ), CONTRARY TO THE TREATY, TRANSFERRED TO GOVERNMENTS ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 70 THE DUTY OF ADOPTING ALL GENERAL OR SPECIAL MEASURES TO ENABLE PRODUCERS AND CONSUMERS OF COAL AND STEEL TO CARRY OUT 'CHECKS IN ADVANCE' IN ORDER TO DETERMINE WHETHER THE PROVISIONS OF THE FIRST AND SECOND PARAGRAPHS OF THE SAME ARTICLE ARE OBSERVED IN THE CASE OF THE CARRIAGE OF COAL AND STEEL .

THIS SUBMISSION IS MISCONCEIVED, AS THE RECOMMENDATION CONFINES ITSELF TO REQUIRING MEMBER STATES TO PROVIDE WITHIN THE MEANING OF THE THIRD PARAGRAPH REFERRED TO ABOVE THAT 'THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE OF COAL AND STEEL WITHIN EACH MEMBER STATE AND BETWEEN MEMBER STATES SHALL BE PUBLISHED OR BROUGHT TO THE KNOWLEDGE OF THE HIGH AUTHORITY '.

P . 235

( B ) SECONDLY, THE APPLICANT MAINTAINS THAT THE AIMS ATTRIBUTED BY THE CONTESTED RECOMMENDATION TO THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 70 OF THE TREATY GO FURTHER THAN THE OBJECTIVES EXPRESSLY AND, IN ITS VIEW, DEFINITIVELY SET FORTH IN THE FIRST AND SECOND PARAGRAPHS OF THIS ARTICLE .

IN PARTICULAR, BY INCLUDING THE AIMS STATED IN THE THIRD PARAGRAPH OF ARTICLE 10 OF THE CONVENTION OF THE TRANSITIONAL PROVISIONS AND THOSE AIMS SPECIFIED IN ARTICLES 2 TO 5 AND ARTICLE 60 OF THE TREATY, THE RECOMMENDATION, BY VIRTUE OF ITS NATURE AND SCOPE, GOES BEYOND THE AREA OF APPLICATION OF ARTICLE 70 .

IT IS APPROPRIATE TO EXAMINE SEPARATELY THE COMPLAINTS CONCERNING ARTICLE 1 ( 1 ) AND ( 2 ) RESPECTIVELY OF THE RECOMMENDATION :

( I ) SO FAR AS ARTICLE 1 ( 1 ) OF THE RECOMMENDATION AND MORE PARTICULARLY SUBPARAGRAPH ( A ) OF THIS PROVISION IS CONCERNED, ARTICLE 4 ( B ) OF THE TREATY, WHICH PROHIBITS ALL DISCRIMINATION IN GENERAL AND EXPRESSLY MENTIONS TRANSPORT, IS THE BASIC PRINCIPLE FOR THE PURPOSE OF THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 70 . THE REFERENCE TO THIS PROVISION OF PRINCIPLE IS THEREFORE ENTIRELY JUSTIFIED .

IT WAS PROPER FOR THE RECOMMENDATION TO MENTION THE AIMS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS . THIS CONVENTION IS PROVISIONAL ONLY AS REGARDS THE PROCEDURE FOR ITS IMPLEMENTATION BUT THE PRINCIPLES WHICH IT ESTABLISHES HAVE PERMANENT EFFECT .

( II ) SO FAR AS CONCERNS THE REFERENCE IN ARTICLE 1 ( 2 ) OF THE RECOMMENDATION TO ARTICLES 2 TO 5 OF THE TREATY, THERE IS NO JUSTIFICATION FOR FINDING IN THE THIRD PARAGRAPH OF ARTICLE 70 A SELF-CONTAINED SYSTEM SERVING SOLELY THE AIMS REFERRED TO IN THE FIRST AND SECOND PARAGRAPHS, THAT IS TO SAY THE APPLICATION TO THE CARRIAGE OF COAL AND STEEL OF COMPARABLE PRICES FOR COMPARABLY PLACED CONSUMERS IN ORDER TO PREVENT DISCRIMINATION IN THIS FIELD .

THERE IS NOTHING IN THE WORDING OF THE THIRD PARAGRAPH OF ARTICLE 70 TO SHOW THAT THIS PROVISION ONLY REFERS TO THE SUPERVISION OF THE FULFILMENT OF OBLIGATIONS IMPOSED BY THE FIRST AND SECOND PARAGRAPHS OF THIS ARTICLE . THE FIRST THREE PARAGRAPHS OF THIS ARTICLE LAY DOWN THREE COMPLEMENTARY OBLIGATIONS WHICH ARE INTENDED, EACH DEALING WITH A DIFFERENT ASPECT, TO ELIMINATE CERTAIN OBSTACLES TO THE COMMON MARKET AND TO GUARANTEE ITS FUNCTIONING ACCORDING TO THE PRINCIPLES ESTABLISHED BY THE TREATY . IT IS A RECOGNIZED PRINCIPLE OF LAW AND ONE WHICH HAS BEEN CONFIRMED IN THE PREVIOUS DECISIONS OF THE COURT THAT THE PROVISIONS OF THE TREATY MUST BE READ TOGETHER . THEY COMPLEMENT AND SUPPLEMENT EACH OTHER .

P . 236

IT MUST BE INFERRED FROM THESE FINDINGS THAT THE THIRD PARAGRAPH OF ARTICLE 70, FAR FROM BEING OF RESTRICTED AND LIMITED APPLICATION, MUST BE APPLIED TO TRANSPORT WITHIN THE FRAMEWORK OF THE GENERAL SCHEME OF THE TREATY AND OF THE FUNCTIONING OF THE COMMON MARKET FOR COAL AND STEEL AS SET FORTH IN PARTICULAR IN ARTICLE 2 TO 5 OF THE TREATY .

THE APPLICANT COMPLAINS IN PARTICULAR THAT ARTICLE 1 ( 2 ) OF THE RECOMMENDATION ASSIGNED TO IT A TASK IN CONNEXION WITH IMPLEMENTING, IN PARTICULAR, ARTICLE 60 OF THE TREATY AND THEREBY IMPOSED UPON IT AN OBLIGATION TO COOPERATE, WHICH HAS NO JUSTIFICATION IN THE TEXT OF THE TREATY . THIS COMPLAINT CANNOT BE UPHELD .

IN FACT THE CONTESTED PROVISION IS BASED ON THE FIRST PARAGRAPH OF ARTICLE 86 OF THE TREATY WHICH REQUIRES MEMBER STATES TO FACILITATE THE PERFORMANCE OF THE COMMUNITY'S TASKS . FAR FROM IMPOSING NEW DUTIES ON MEMBER STATES ARTICLE 1 ( 2 ) OF THE RECOMMENDATION IS THEREFORE ONLY INTENDED TO FACILITATE THE PERFORMANCE OF THE HIGH AUTHORITY'S TASKS, IN PARTICULAR WITHIN THE FRAMEWORK OF ARTICLE 60 OF THE TREATY . MEMBER STATES CANNOT OBSTRUCT THE PERFORMANCE OF THIS TASK BY THE MANNER IN WHICH THEY ADOPT THE MEASURES REFERRED TO IN ARTICLE 1 ( 1 ) OF THE RECOMMENDATION .

FURTHERMORE, IT FOLLOWS FROM THE FIFTH PARAGRAPH OF ARTICLE 70 THAT, ALTHOUGH TRANSPORT POLICY CONTINUES TO BE GOVERNED BY THE POWER OF INDIVIDUAL MEMBER STATES TO MAKE LAWS AND REGULATIONS, THIS GENERAL JURISDICTION IS SUBJECT TO THE RESTRICTIONS WHICH ARISE NOT ONLY FROM THE OBLIGATIONS SPECIFIED IN ARTICLE 70 BUT ALSO FROM THE 'OTHER PROVISIONS' OF THE TREATY . ALTHOUGH IT IS TRUE THAT THE PRICE LISTS WHICH MUST BE PUBLISHED ACCORDING TO ARTICLE 60 ( 2 ) ( A ) OF THE TREATY DO NOT INCLUDE TRANSPORT COSTS AS A CONSTITUENT ELEMENT IN FIXING PRICES, A KNOWLEDGE OF SUCH COSTS IS NECESSARY IN ORDER TO EXERCISE THE RIGHT, RESERVED TO UNDERTAKINGS BY ARTICLE 60 ( 2 ) ( B ), TO ALIGN THEIR DELIVERED PRICES ON THE LOWER DELIVERED PRICES OF OTHER UNDERTAKINGS .

IN FACT THE SECRET NATURE OF EXCEPTIONS FROM PUBLISHED TARIFFS WHICH HAVE BEEN GRANTED TO CERTAIN UNDERTAKINGS DIVESTS THESE TARIFFS OF ANY PRACTICAL VALUE AND MAY FALSIFY CALCULATIONS MADE BY COMPETITORS BASED ON TARIFFS WHICH THEY COULD NORMALLY ASSUME ARE EFFECTIVE AND APPLIED IN PRACTICE . THE HIGH AUTHORITY IS THEREFORE ENTITLED TO TAKE THE VIEW THAT THE OBLIGATION TO GUARANTEE APPROPRIATE PUBLICITY FOR TRANSPORT RATES IS PART OF ITS GENERAL TASK TO ENSURE THE ATTAINMENT OF THE OBJECTS LAID DOWN BY THE TREATY AND IT HAS THE RIGHT TO REQUIRE MEMBER STATES TO HAVE REGARD TO THIS TASK BY TAKING THE MEASURES REFERRED TO IN ARTICLE 1 ( 1 ) OF THE RECOMMENDATION .

P . 237

THE HIGH AUTHORITY WAS THUS ENTITLED TO MAKE THE ATTAINMENT OF THE OBJECTIVES OF ARTICLE 60 THE AIM OF THE CONTESTED RECOMMENDATION .

IT FOLLOWS FROM THIS THAT THE SAME CONSIDERATIONS APPLY TO THE IMPLEMENTING DECISIONS TAKEN BY THE HIGH AUTHORITY ON THE BASIS OF THIS ARTICLE .

2 . THE APPLICANT COMPLAINS THAT ARTICLE 2 OF THE RECOMMENDATION DISREGARDS THE SOVEREIGNTY OF MEMBER STATES BY OBLIGING THEM TO ADOPT ALL APPROPRIATE MEASURES BY ESTABLISHING A SYSTEM OF CHECKS AND SANCTIONS TO ENSURE COMPLIANCE WITH THE LEGISLATION AT PRESENT IN FORCE OR TO BE ENACTED FOR THE PURPOSE OF ACHIEVING THE AIMS SET OUT IN ARTICLE 1 .

HOWEVER THERE IS THE RISK THAT THE MEASURES TO BE ADOPTED BY MEMBER STATES IN ORDER TO FULFIL THEIR OBLIGATIONS UNDER ARTICLE 70 OF THE TREATY AND REFERRED TO IN ARTICLE 1 OF THE RECOMMENDATION MIGHT HAVE NO EFFECT IN THE ABSENCE OF ANY CHECKS ON THEIR IMPLEMENTATION OR COMPULSORY POWERS . THE TAKING OF THESE MEASURES IS THEREFORE THE OBVIOUS AND INEVITABLE COMPLEMENT OF THE OBLIGATIONS IMPOSED UPON GOVERNMENTS WHICH ARE ENTIRELY RESPONSIBLE NOT ONLY FOR PROVIDING FOR THE ATTAINMENT OF THE AIMS OF ARTICLE 70 BUT ALSO FOR ENSURING THEIR IMPLEMENTATION .

3 . THE APPLICANT MAINTAINS THAT THE FIXING OF THE TIME LIMIT IMPOSED UPON GOVERNMENTS BY ARTICLE 4 ( 1 ) OF THE RECOMMENDATION :

( A ) EITHER IMPLIES THAT ARTICLES 1 AND 2 OF THE RECOMMENDATION IMPOSE UPON MEMBER STATES NEW OBLIGATIONS, WHICH ARE VOID BECAUSE THEY HAVE NO LEGAL FOUNDATION AND WOULD THEREFORE ENTAIL THE NULLITY OF ARTICLE 4 ( 1 );

( B ) OR ARE ONLY INTENDED TO REFER TO THE CARRYING OUT OF PRE-EXISTING OBLIGATIONS, NON-COMPLIANCE WITH WHICH COULD ONLY BE DETERMINED UNDER ARTICLE 88 .

WITH REGARD TO ( A ), THIS ARGUMENT CONFUSES THE CREATION OF A NEW OBLIGATION WITH GIVING CONCRETE FORM TO A PRE-EXISTING OBLIGATION . THE LATTER APPLIES IN THIS CASE, AND IT IS LOGICAL THAT IT SHOULD INVOLVE ALSO THE FIXING OF A TIME LIMIT .

WITH REGARD TO ( B ), THE FIXING OF A TIME LIMIT DOES NOT PUT THE CONTESTED RECOMMENDATION ON THE SAME FOOTING AS THE PHASE INITIATING THE PROCEDURE UNDER ARTICLE 88 . THE PROCEDURE SET OUT IN THIS ARTICLE IS NOT INITIATED AUTOMATICALLY BY THE EXPIRATION OF A TIME LIMIT BUT PRESUPPOSES THAT AN EXAMINATION OF THE SITUATION HAS LED THE HIGH AUTHORITY TO 'CONSIDER' THAT THERE HAS BEEN A FAILURE TO FULFIL AN OBLIGATION UNDER THE TREATY . ANY FINDING THAT SUCH A FAILURE EXISTS IS PRECLUDED IN THIS CASE, TO THE BENEFIT OF GOVERNMENTS, SO LONG AS THE PERIOD FIXED FOR THE FULFILMENT OF THIS OBLIGATION HAS NOT EXPIRED .

P . 238

4 . THE APPLICANT IS OF THE OPINION THAT THE FACT THAT ARTICLE 4 ( 2 ) OF THE RECOMMENDATION REQUIRES THE GOVERNMENTS OF THE MEMBER STATES TO COMMUNICATE TO THE HIGH AUTHORITY BY 31 OCTOBER 1961 THE CONTENT OF MEASURES WHICH THEY PROPOSE TO ADOPT IN ORDER TO IMPLEMENT THE CONTESTED RECOMMENDATION IS AN INFRINGEMENT OF THE TREATY .

THIS PROVISION IS ONLY INTENDED TO ENABLE THE HIGH AUTHORITY AND THE MEMBER STATES TO PRESENT THEIR VIEWS ONE TO ANOTHER ON A NON-CONTENTIOUS BASIS . AS THE INTENTION OF THIS PROCEDURE IS TO SECURE COOPERATION BETWEEN THE PARTIES, IT CANNOT PROVIDE THE APPLICANT WITH ANY GROUNDS FOR COMPLAINT AND THEREFORE DOES NOT GIVE THE COURT ANY GROUNDS FOR CRITICISM .

THE SUBMISSIONS CONCERNING ARTICLE 4 ARE NOT JUSTIFIED .

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

THE GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS HAS FAILED IN ALL ITS SUBMISSIONS AND MUST THEREFORE BEAR THE COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION;

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