61959J0025

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1 . TRANSPORT - RATES AND CONDITIONS - PUBLICATION - EXPRESS LEGISLATIVE POWER OF THE HIGH AUTHORITY - ABSENCE

( ECSC TREATY, ARTICLE 70 )

2 . TRANSPORT - RATES AND CONDITIONS - PUBLICATION - IMPLIED LEGISLATIVE POWER OF THE HIGH AUTHORITY - ABSENCE

3 . OBLIGATIONS OF MEMBER STATES - FAILURE TO FULFIL AN OBLIGATION - POWER OF THE HIGH AUTHORITY - RECORDING OF SUCH FAILURE

( ECSC TREATY, ARTICLE 88 )

4 . OBLIGATIONS OF MEMBER STATES - FAILURE TO FULFIL AN OBLIGATION - STRICT INTERPRETATION OF ARTICLE 88

5 . OBLIGATIONS OF MEMBER STATES - FAILURE TO FULFIL AN OBLIGATION - CONCEPT

( ECSC TREATY, ARTICLE 88 )

1 . CF . PARAGRAPH 1, SUMMARY OF THE JUDGMENT IN CASE 20/59 .

ALTHOUGH FOR THE PUBLICATION OF PRICE-LISTS AND CONDITIONS OF SALE APPLIED WITHIN THE COMMON MARKET THE TREATY HAS EXPRESSLY GIVEN THE HIGH AUTHORITY A LEGISLATIVE POWER, PROVIDING EVEN FOR REVIEW BY THE CONSULTATIVE COMMITTEE, THE ABSENCE OF ANY PROVISION IN THIS RESPECT IN ARTICLE 70 SHOWS THAT IN THE TRANSPORT SECTOR THE TREATY DENIES THE HIGH AUTHORITY ANY EXPRESS POWER TO TAKE IMPLEMENTING DECISIONS .

*/ 659J0020 /*.

2 . CF . PARAGRAPH 2, SUMMARY OF THE JUDGMENT IN CASE 20/59 .

NEITHER THE WORDING NOR THE GENERAL STRUCTURE OF THE TREATY GIVES THE HIGH AUTHORITY IMPLIED LEGISLATIVE POWER WITH REGARD TO THE PUBLICATION OF TRANSPORT TARIFFS .

THE OBLIGATORY PUBLISHING OF PRICES DOES NOT MEAN THAT TRANSPORT TARIFFS HAVE TO BE PUBLISHED . THE EXPRESSIONS " PRICE-LISTS AND CONDITIONS OF SALE " IN ARTICLE 60 REFER ONLY TO PRICE-LISTS AND CONDITIONS OF SALE OF GOODS AND NOT TO THOSE OF TRANSPORT FOR CHARGES ARE ONLY ONE ELEMENT OF THE SELLER'S COST PRICE, WHICH HE IS NOT REQUIRED TO PUBLISH .

NOR IS IT POSSIBLE TO INFER GENERAL POWERS FOR THE HIGH AUTHORITY WITH REGARD TO CHECKING DISCRIMINATION FROM A STRUCTURAL AND FUNCTIONAL CORRELATION BETWEEN THE OBLIGATION TO PUBLISH THE PRICES OF PRODUCTS AND THE OBLIGATION TO PUBLISH TRANSPORT COSTS . THE HIGH AUTHORITY CANNOT UNDER THESE POWERS INTRODUCE PREVENTIVE MEASURES BY WAY OF DECISION AND IN THIS CONNEXION LAY DOWN THAT SCALES OR RATES MUST BE PUBLISHED, SINCE ITS LEGISLATIVE POWER IN THE MATTER IS EXCEPTIONAL AND SUBJECT TO RENUNCIATION BY THE MEMBER STATES WHICH THE TREATY DOES NOT PROVIDE FOR EITHER EXPRESSLY OR BY IMPLICATION IN THE SPHERE OF THE PUBLICATION OF TRANSPORT TARIFFS .

*/ 659J0020 /*.

3 . CF . PARAGRAPH 3, SUMMARY OF THE JUDGMENT IN CASE 20/59 .

ARTICLE 88 DOES NOT GIVE THE HIGH AUTHORITY LEGISLATIVE POWER SIMILAR TO THE POWER WITH REGARD TO THE GENERAL LAW OF THE TREATY . THE HIGH AUTHORITY CANNOT THEREFORE RELY ON THIS PROVISION TO TAKE DECISIONS CREATING OBLIGATIONS ON THE PART OF THE MEMBER STATES . THE ONLY OBJECT OF THE REASONED DECISION REFERRED TO IN ARTICLE 88 IS THE RECORDING OF FAILURE TO FULFIL OBLIGATIONS ARISING EITHER FROM AN IMPERATIVE PROVISION OF THE TREATY OR A DECISION OR RECOMMENDATION PRIOR TO THE APPLICATION OF THIS ARTICLE .

*/ 659J0020 /*.

4 . CF . PARAGRAPH 4, SUMMARY OF THE JUDGMENT IN CASE 20/59 .

ARTICLE 88 OPENS MEANS OF IMPLEMENTATION AND IS THE ULTIMA RATIO ENABLING THE COMMUNITY INTERESTS ENSHRINED IN THE TREATY TO PREVAIL OVER THE INERTIA AND RESISTANCE OF MEMBER STATES . NEVERTHELESS ARTICLE 88 MUST BE STRICTLY INTERPRETED .

*/ 659J0020 /*.

5 . CF . PARAGRAPH 5, SUMMARY OF THE JUDGMENT IN CASE 20/59 .

THE RECORDING OF A FAILURE ON THE PART OF A MEMBER STATE TO FULFIL AN OBLIGATION IMPOSED BY THE TREATY CANNOT, IN A MATTER SUCH AS THE PUBLICATION OF TRANSPORT CHARGES WHERE THE HIGH AUTHORITY HAS NO LEGISLATIVE POWER, RELATE TO THE MEANS INDICATED BY THE HIGH AUTHORITY TO ATTAIN THE PROPOSED OBJECTIVE BUT ONLY TO THE FAILURE TO ATTAIN THIS OBJECTIVE .

*/ 659J0020 /*.

IN CASE 20/59

GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, REPRESENTED BY W . RIPHAGEN, LEGAL ADVISER TO THE MINISTRY OF FOREIGN AFFAIRS, ASSISTED BY PROFESSOR P . SANDERS, ADVOCATE OF ROTTERDAM, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE NETHERLANDS EMBASSY APPLICANT,

SUPPORTED BY

1 . COOPERATIEVE VERVOERSONDERNEMING INTERLIMBURG CA, VENLO, REPRESENTED BY ITS MANAGING BOARD, COMPOSED OF F . G . VAN DER VEN ( PRESIDENT ), G . W . HELMES ( VICE-PRESIDENT ) AND F . FAESSEN ( MEMBER ),

2 . REINHOLD COUMANS, PROPRIETOR OF

THE R . COUMANS TRANSPORT UNDERTAKING, GELEEN,

3 . VENNOOTSCHAP ONDER FIRMA M . OVERDORP EN ZOON, VELSEN-IJMUIDEN O ., REPRESENTED BY ITS MANAGING PARTNERS, MACHIEL OVERDORP AND LEENDERT OVERDORP,

4 . ROTTERDAMSCHE DROOGDOKMAATSCHAPPIJ NV, ROTTERDAM, REPRESENTED BY ITS DIRECTOR, KORNELIS VAN DER POLS,

5 . VERENIGING VAN METAAL-INDUSTRIEEN, THE HAGUE, HAVING LEGAL PERSONALITY, REPRESENTED IN ACCORDANCE WITH ITS ARTICLES OF ASSOCIATION BY DR J . C . HOOYKAAS, GENERAL PRESIDENT, AND M.M . HEINSIUS, SECRETARY, AND ASSISTED BY G . DE GROOTH, BUITENGEWOON HOOGLERAAR AT THE STATE UNIVERSITY OF LEYDEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, INTERVENERS,

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 NETHERLANDS COUR DE CASSATION, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF DECISION NO 18/59 OF 18 FEBRUARY 1959 PUBLISHED IN THE JOURNAL OFFICIEL OF 7 MARCH 1959 ( P . 287 ET SEQ .) ON THE PUBLICATION OR NOTIFICATION TO THE HIGH AUTHORITY OF THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE BY ROAD OF COAL AND STEEL WITHIN THE COMMUNITY FOR HIRE OR REWARD .

P . 370

I - BEFORE PROCEEDING WITH THE MATTER CONSIDERATION MUST BE GIVEN TO ( 1 ) THE LEGAL BASIS OF THE DECISION AND ( 2 ) THE PROCEDURE WHICH LED TO ITS BEING TAKEN .

THE LEGAL BASIS OF THE DECISION APPEARS FROM ITS TITLE WHICH STATES THAT IT IS " ON THE PUBLICATION OR NOTIFICATION TO THE HIGH AUTHORITY OF SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE OF COAL AND STEEL WITHIN THE COMMUNITY FOR HIRE OR REWARD " THUS REPRODUCING THE WORDING OF THE THIRD PARAGRAPH OF ARTICLE 70 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY FOR WHICH THE INTENTION IS TO LAY DOWN IMPLEMENTING RULES .

THE GROUNDS LIKEWISE STATE THAT THE OBJECTIVE OF THE DECISION IS TO IMPLEMENT THAT ARTICLE . ( 2 ) THE DECISION TAKES THE FORM OF AN APPLICATION OF THE FIRST PARAGRAPH OF ARTICLE 88, AND STATES THAT IT IS A REASONED DECISION BY WHICH THE HIGH AUTHORITY IN ACCORDANCE WITH THIS PROVISION IS EMPOWERED TO RECORD THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY .

II - STRIPPED, HOWEVER, OF ANCILLARY SUBMISSIONS MADE VARIOUSLY BY THE PARTIES, THE CENTRAL QUESTION RAISED BY THE ACTION FOR ANNULMENT OF DECISION NO 18/59 IS : ( A ) WITH REGARD TO SUBSTANCE, WHAT ARE THE LEGISLATIVE POWERS WHICH THE HIGH AUTHORITY CAN CLAIM ON THE BASIS OF THE THIRD PARAGRAPH OF ARTICLE 70 WITH REGARD TO TRANSPORT; ( B ) WITH REGARD TO FORM, WHETHER ARTICLE 88 CHOSEN BY THE HIGH AUTHORITY FOR THE EXERCISE OF SUCH POWERS MAY BE LEGALLY USED FOR SUCH PURPOSES, AND ( C ) IF APPROPRIATE, WHETHER THIS ARTICLE HAS BEEN APPLIED ACCORDING TO THE RULES LAID DOWN .

P . 371

A . ALTHOUGH THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY CONTAINS RULES CAPABLE, LIKE RULES LAID DOWN BY THE NATIONAL LEGISLATURE, OF BEING DIRECTLY IMPLEMENTED IN THE MEMBER STATES, SUCH IMPLEMENTATION TAKING PLACE IPSO IURE AS A RESULT OF THEIR ACCEPTANCE INTO THE LAW OF THE MEMBER STATES BY THE RATIFICATION OF THE TREATY, OTHER PROVISIONS OF THE TREATY ON THE OTHER HAND REQUIRE IMPLEMENTING MEASURES BEFORE THEY ARE APPLIED .

THIS IS THE CASE WITH REGARD TO THE THIRD PARAGRAPH OF ARTICLE 70 OF THE TREATY WHICH, ALTHOUGH IT ESTABLISHES A CONCRETE RULE WITH REGARD TO TRANSPORT VALID BOTH FOR THE MEMBER STATES AND FOR THE HIGH AUTHORITY, REQUIRES IMPLEMENTING MEASURES FOR IT TO BE APPLIED TO THE SUBJECTS OF THE EUROPEAN COAL AND STEEL COMMUNITY .

WITH REGARD TO SUCH IMPLEMENTING MEASURES IT IS NECESSARY TO INQUIRE WHETHER THE TREATY GIVES THE HIGH AUTHORITY POWER TO MAKE REGULATIONS EITHER ( 1 ) EXPRESSLY OR ( 2 ) BY IMPLICATION .

1 . THE THIRD PARAGRAPH OF ARTICLE 70 PROVIDES 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 ". IT MUST BE OBSERVED THAT THESE PROVISIONS ARE SILENT WITH REGARD TO THE CONDITIONS OF THEIR APPLICATION AND THE IMPLEMENTATION MEASURES WHICH THEY ASSUME AND CERTAINLY THEY DO NOT GIVE THE HIGH AUTHORITY ANY POWER TO TAKE DECISIONS IN THIS RESPECT .

MOREOVER, A COMPARISON BETWEEN THE THIRD PARAGRAPH OF ARTICLE 70 AND THE PROVISIONS OF ARTICLE 60 ( 2 ) ( A ) SHOWS THAT IN A SIMILAR MATTER THE TREATY HAS MADE THE OBLIGATIONS TO PUBLISH PROVIDED FOR IN ARTICLE 60 SUBJECT TO THE POWER OF THE HIGH AUTHORITY TO PROVIDE FOR ITS APPLICATION BY PROVIDING THAT THIS PUBLICATION MUST TAKE PLACE " TO THE EXTENT AND IN THE MANNER PRESCRIBED BY THE HIGH AUTHORITY AFTER CONSULTING THE CONSULTATIVE COMMITTEE ".

THE FACT THAT FOR THE PUBLICATION OF THE PRICE-LISTS AND CONDITIONS OF SALE APPLIED WITHIN THE COMMON MARKET THE TREATY HAS EXPRESSLY GIVEN THE HIGH AUTHORITY A LEGISLATIVE POWER, PROVIDING EVEN FOR REVIEW BY THE CONSULTATIVE COMMITTEE, SHOWS THE IMPORTANCE WHICH IT ATTRIBUTES IN THIS MATTER TO ITS REGULATION BY THE HIGH AUTHORITY .

THE ABSENCE OF ANY PROVISION IN THIS RESPECT IN ARTICLE 70 SHOWS ON THE OTHER HAND THAT IN THE TRANSPORT SECTOR THE WORDING OF THE TREATY DENIES THE HIGH AUTHORITY ANY POWER TO TAKE IMPLEMENTING DECISIONS .

P . 372

2 . HAVING REGARD TO THE DIFFERENT ATTITUDE ADOPTED BY THE TREATY IN RESPECT OF TWO SIMILAR SITUATIONS IT IS PROPER TO INQUIRE WHETHER A LEGISLATIVE POWER ON THE PART OF THE HIGH AUTHORITY DOES NOT ARISE BY IMPLICATION FROM ( A ) OTHER PROVISIONS OF THE TREATY OR ( B ) ITS GENERAL STRUCTURE .

WRITERS AND CASE-LAW AGREE IN RECOGNIZING THAT THE RULES ESTABLISHED BY A TREATY IMPLY THE PRINCIPLES WITHOUT WHICH THESE RULES CANNOT EFFECTIVELY OR REASONABLY BE APPLIED .

( A ) IN THE PRESENT CASE THE HIGH AUTHORITY MAINTAINS FIRST THAT SINCE THE PROVISIONS OF ARTICLE 60 ( 2 ) ( A ) REQUIRE THE PUBLICATION OF THE PRICE-LISTS AND CONDITIONS OF PRODUCTS COMING WITHIN THE EUROPEAN COAL AND STEEL COMMUNITY, THEY REQUIRE BY IMPLICATION THE PUBLICATION OF THE SCALES, RATES AND OTHER TARIFF RULES APPLIED TO THE CARRIAGE OF THE SAME PRODUCTS .

ACCORDING TO THE HIGH AUTHORITY IF THE LATTER ARE NOT PUBLISHED THE PUBLICATION OF THE PRICES WOULD LOSE THEIR PURPOSE AND BE OF NO USE TO THOSE CONCERNED .

IN ORDER FOR THOSE CONCERNED TO BE ABLE TO ALIGN THEIR PRICES AND MAINTAIN HEALTHY COMPETITION THEY CANNOT REMAIN IGNORANT OF THE IMPORTANT FACTOR CONSTITUTED BY THE TRANSPORT RATES IN THE FORMATION OF THEIR QUOTATIONS ON THE COMMON MARKET .

ACCORDING TO THIS ARGUMENT, THE COROLLARY OF THE OBLIGATION TO PUBLISH PRICES IS THE PUBLICATION OF TRANSPORT TARIFFS AND THIS OBLIGATION FOLLOWS BY IMPLICATION FROM THE CONCEPTS OF " PRICE-LISTS " AND " CONDITIONS OF SALE " REFERRED TO IN ARTICLE 60 .

IT IS WRONG BOTH IN LAW AND IN FACT TO SAY THAT THE EXPRESSIONS " PRICE-LISTS " AND " CONDITIONS OF SALE " COVER BOTH THOSE IN RESPECT OF GOODS AND THOSE IN RESPECT OF TRANSPORT .

THE SELLER CAN BE REQUIRED TO PUBLISH ONLY HIS OWN PRICES AND NOT THE RATES APPLIED BY A TRANSPORT UNDERTAKING .

IN SO FAR AS THE SELLER IS REQUIRED TO PAY THE CARRIER'S CHARGES THEY REPRESENT AN ELEMENT OF THE SELLER'S COST PRICE .

THE SELLER IS NOT REQUIRED TO PUBLISH THE DETAILS OF HIS COST PRICE .

THE HIGH AUTHORITY'S ARGUMENT THAT IT IS NECESSARY TO PUBLISH THE TRANSPORT RATES IN ORDER TO KNOW THE PRICES IS CONTRADICTED BY ITS OWN ATTITUDE WITH REGARD TO ARTICLE 60 ( 2 ) ( A ).

P . 373

IF THE VIEW WHICH IT IS NOW ADVOCATING WERE CORRECT, THAT IS TO SAY, IF THE SALE PRICES INCLUDED TRANSPORT RATES, ON LAYING DOWN THE RULES FOR THE SCOPE AND FORMS FOR THE PUBLICATION OF THE PRICE-LISTS AND CONDITIONS OF SALE IT COULD HAVE PROVIDED IN THE RELEVANT DECISIONS ( NO 3/53, 30/53, 31/53 AND 1 TO 3/54 ) FOR THE TRANSPORT COSTS AS A PRICE FACTOR .

IT DID NOT, HOWEVER, DO SO .

ALTHOUGH IT IS TRUE THAT IN THE " INFORMATION " WHICH IT SENT OUT AFTER CERTAIN OF THE ABOVEMENTIONED DECISIONS ON THE PUBLICATION OF PRICES THE HIGH AUTHORITY REFERS TO TRANSPORT COSTS, IT DOES SO HOWEVER ONLY TO ALIGN THE STEEL PRICES ON THE DELIVERY PRICE OF ANOTHER UNDERTAKING AND EVEN IN THIS CASE IT TAKES INTO ACCOUNT THE PRICE ACTUALLY PAID WHICH DOES NOT REQUIRE ANY PREVIOUS PUBLICATION BUT IS SUBJECT ONLY TO CHECKING AFTERWARDS .

( B ) FROM ANOTHER POINT OF VIEW IT IS NOT POSSIBLE TO INFER A STRUCTURAL AND FUNCTIONAL CORRELATION BETWEEN THE OBLIGATION TO PUBLISH THE PRICES OF PRODUCTS AND THE OBLIGATION TO PUBLISH TRANSPORT COSTS FROM THE BASIC PRINCIPLE OF THE TREATY WHICH ALTHOUGH GUARANTEEING ECONOMIC FREEDOM IN THE SPHERE OF COMPETITION IS NEVERTHELESS AIMED AT RESTRAINING ABUSE BY PROHIBITING ANY DISCRIMINATION, THE CHECKING OF WHICH IS FOR THE HIGH AUTHORITY .

ALTHOUGH IT IS TRUE THAT BY VIRTUE OF THE GENERAL PRINCIPLE, APPLIED TO TRANSPORT BY ARTICLE 70, CHECKING DISCRIMINATION AND TAKING ACTION AGAINST IT IS FOR THE HIGH AUTHORITY, IT IS NOT HOWEVER POSSIBLE TO INFER FROM THIS PRINCIPLE A POWER FOR THE HIGH AUTHORITY TO TAKE DECISIONS CONCERNED WITH PRIOR CONTROL BY LAYING DOWN THE PUBLICATION OF SCALES OR RATES, SINCE SUCH A POWER IS EXCEPTIONAL AND SUBJECT TO RENUNCIATION BY THE MEMBER STATES WHICH IN THE PRESENT CASE THE TREATY DOES NOT PROVIDE FOR EITHER EXPRESSLY OR BY IMPLICATION .

THE HIGH AUTHORITY THUS HAS NO POWER TO IMPLEMENT THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 70 BY MEANS OF DECISIONS .

B . ALTHOUGH THE THIRD PARAGRAPH OF ARTICLE 70 DOES NOT GIVE THE HIGH AUTHORITY A POWER OF DECISION TO IMPLEMENT ITS PROVISIONS EITHER EXPRESSLY OR BY IMPLICATION IT IS NECESSARY TO INQUIRE WHETHER ARTICLE 88 OF THE TREATY, TO WHICH IT HAS RECOURSE, COULD LEGALLY DO SO .

ARTICLE 14 OF THE TREATY PROVIDES " IN ORDER TO CARRY OUT THE TASKS ASSIGNED TO IT THE HIGH AUTHORITY SHALL ... TAKE DECISIONS, MAKE RECOMMENDATIONS ...".

P . 374

THE FORMS OF EXERCISE OF ITS EXECUTIVE POWER ARE THUS DEFINED AND CIRCUMSCRIBED BY THIS PROVISION IN THAT THE EXERCISE OF THE POWER TO MAKE REGULATIONS, WHERE THE HIGH AUTHORITY HAS ANY SUCH, IS DONE BY DECISIONS WHICH ARE " BINDING IN THEIR ENTIRETY ", BUT IN CASES WHERE SUCH A POWER TO MAKE REGULATIONS IS NOT CONFERRED UPON IT BUT IS RESERVED TO THE MEMBER STATES THE HIGH AUTHORITY, IF IT WISHES TO REMIND STATES OF THEIR DUTIES, CAN ONLY RESORT TO A RECOMMENDATION AND CANNOT SIMPLY PROCEED TO IMPOSE UPON THEM ITS OWN CHOICE WITH REGARD TO METHODS .

NEITHER THE WORDING NOR THE GENERAL STRUCTURE OF ARTICLE 88 ALLOW THE HIGH AUTHORITY TO RELY ON ITS PROVISIONS TO EXERCISE A POWER TO MAKE REGULATIONS SIMILAR TO THE GENERAL POWERS ARISING FROM THE TREATY WHICH HAVE TO EXERCISED IN THE FORMS PROVIDED BY ARTICLE 14 .

( A ) ARTICLE 88 GIVES THE HIGH AUTHORITY ONLY A POWER TO RECORD THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THE TREATY . THIS OBLIGATION MUST ARISE EITHER FROM AN IMPERATIVE PROVISION OR A DECISION OR RECOMMENDATION PRIOR TO THE APPLICATION OF THIS ARTICLE .

THE " REASONED DECISION " REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 88 MAY SIMPLY RECORD A FAILURE AND MAY NOT HAVE A LEGISLATIVE CONTENT . TO MAINTAIN THE CONTRARY WOULD AMOUNT TO RECOGNIZING THAT THE HIGH AUTHORITY HAS AN EXCESSIVE LEGISLATIVE POWER AS AGAINST MEMBER STATES ARISING FROM THE GENERAL LAW .

THE REASONS REQUIRED BY THE FIRST PARAGRAPH OF ARTICLE 88 MUST JUSTIFY THE RECORDING OF THE FAILURE AND THE TIME-LIMIT REFERRED TO THEREIN DEFINES THE PERIOD IN WHICH A PRE-EXISTING OBLIGATION MUST BE FULFILLED AND NOT ONE CREATED BY THE DECISION TAKEN UNDER THIS ARTICLE .

IF IT WERE POSSIBLE TO EQUATE THE " DECISION " REFERRED TO IN ARTICLE 88 WITH A DECISION WITHIN THE MEANING OF ARTICLE 14 BY WHICH THE HIGH AUTHORITY CARRIES OUT THE TASKS ASSIGNED TO IT, IT WOULD BE DIFFICULT TO EXPLAIN WHY A RULE LAID DOWN UNDER ARTICLE 88 WOULD BE SUBJECT TO AN ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION ALLOWING ANY SUBMISSION TO BE MADE BASED NOT ONLY ON LEGALITY BUT ON ANY REASONS JUSTIFYING FAILURE TO ACT, WHEREAS DECISIONS TAKEN IN THE FORM PROVIDED FOR BY ARTICLE 14 ARE SUBJECT TO THE RULES AND TIME-LIMITS FOR BRINGING ACTIONS UNDER ARTICLE 33 .

( B ) ARTICLE 88 OPENS MEANS OF IMPLEMENTATION AND IS THE ULTIMA RATIO ENABLING THE COMMUNITY INTERESTS ENSHRINED IN THE TREATY TO PREVAIL OVER THE INERTIA AND RESISTANCE OF MEMBER STATES .

IT IS A PROCEDURE FAR EXCEEDING THE RULES HERETOFORE RECOGNIZED IN CLASSICAL INTERNATIONAL LAW TO ENSURE THAT OBLIGATIONS OF STATES ARE FULFILLED .

P . 375

HOWEVER, ARTICLE 88 MUST BE STRICTLY INTERPRETED .

ALTHOUGH WITH REGARD TO DECISIONS AND RECOMMENDATIONS OF THE HIGH AUTHORITY THE GOVERNMENTS MUST FOLLOW THE MEANS OF REDRESS LAID DOWN BY THE TREATY ACCORDING TO THE FORMS AND WITHIN THE TIME-LIMITS PRESCRIBED AND CANNOT SUBSEQUENTLY ALLEGE THAT THESE MEASURES ARE IRREGULAR OR NULL AND VOID WHEN THE HIGH AUTHORITY TAKES STEPS UNDER ARTICLE 88, THE HIGH AUTHORITY FOR ITS PART MUST ADHERE TO THE FORMS AVAILABLE TO IT UNDER ARTICLE 14 OF THE TREATY IN THE EXERCISE OF ITS " LEGISLATIVE " POWER .

IT NEVER HAS THE CHOICE BETWEEN THIS " LEGISLATIVE " POWER AND THE PROCEDURE FOR RECORDING AND DECLARING A FAILURE FOR WHICH ARTICLE 88 HAS BEEN ENACTED .

IN NO WAY CAN IT USE THIS ARTICLE FOR PURPOSES THE DIRECT ACHIEVEMENT OF WHICH BY MEANS OF DECISION THE TREATY DENIES IT .

( C ) THE HIGH AUTHORITY CANNOT, MOREOVER, CLAIM THAT THE CONTESTED DECISION ONLY RECORDS A FAILURE ON THE PART OF THE NETHERLANDS STATE UNDER ARTICLE 88, SINCE THE OBLIGATIONS WHICH THE CONTESTED DECISION MAINTAINS HAVE NOT BEEN FULFILLED ARE ALREADY SPECIFIED IN THE LETTER OF 12 AUGUST 1958 ADDRESSED TO THAT STATE .

THE TITLE OF THE CONTESTED DECISION CONTRADICTS THIS ASSERTION AND CLEARLY ESTABLISHES THAT ITS OBJECTIVE IS THE ISSUE OF A REGULATION FOR WHICH THE THIRD PARAGRAPH OF ARTICLE 70 PROVIDES NO BASIS .

A COMPARISON BETWEEN ARTICLE 1 AND THE FOLLOWING ARTICLES OF THE CONTESTED DECISION LIKEWISE SHOW THAT THE PRESENT CASE COULD NOT BE ONLY THE RECORDING OF A FAILURE TO FULFIL AN OBLIGATION .

THE CONTESTED DECISION COULD NOT REGARD THE OBLIGATION FORMULATED IN THE LETTER OF 12 AUGUST 1958 AS DISREGARDED SINCE THEY ARE NOT THE SAME AS THOSE CONTAINED IN THE DECISION ITSELF .

THUS THE HIGH AUTHORITY WRONGLY RELIED ON ARTICLE 88 TO LAY DOWN PROVISIONS FOR THE IMPLEMENTATION OF THE THIRD PARAGRAPH OF ARTICLE 70, THEREBY NOT ONLY MISCONTRUING ARTICLE 88 BUT ALSO MISUSING THE PROCEDURE PROVIDED FOR THERE AS A MEANS OF IMPLEMENTATION TO ACCOMPLISH A TASK OF DRAWING UP REGULATIONS WHICH IT DID NOT HAVE .

C . ALTHOUGH THE WORDING OF ARTICLE 70 AND THE WORDING AND GENERAL STRUCTURE OF ARTICLE 88 GIVE THE HIGH AUTHORITY NO DIRECT POWER TO MAKE REGULATIONS IMPLEMENTING THE PROVISIONS OF THE THIRD PARAGRAPH OF ARTICLE 70, IT IS NECESSARY TO INQUIRE WHETHER THE CONTESTED DECISION MAY, AS THE HIGH AUTHORITY MAINTAINS, BE REGARDED NOT AS AN INDEPENDENT REGULATION, BUT AS A " REASONED DECISION " RECORDING A FAILURE .

P . 376

ON THIS BASIS IT WAS THE LETTER OF 12 AUGUST 1958 WHICH REQUIRED THE MEMBER STATES IN GENERAL AND THE APPLICANT IN PARTICULAR TO SUBMIT THEIR OBSERVATIONS WITH REGARD TO THE OBLIGATION WHICH THE CONTESTED DECISION RECORDED AS NOT BEING FULFILLED .

CONSIDERATION OF THE LETTER SENT ON 12 AUGUST 1958 BY THE HIGH AUTHORITY TO THE NETHERLANDS GOVERNMENT SHOWS THAT THE HIGH AUTHORITY IS LAYING DOWN REQUIREMENTS WITH REGARD TO REGULATIONS WHICH HAVE TO BE ADOPTED BY THE GOVERNMENTS IN RESPECT OF ROAD TRANSPORT . THESE REQUIREMENTS WERE INTENDED TO BE BINDING WITH REGARD TO THE OBJECTIVE WHICH THEY LAY DOWN, NAMELY THE OBLIGATION ARISING, ACCORDING TO THE HIGH AUTHORITY, FROM THE THIRD PARAGRAPH OF ARTICLE 70 TO PUBLISH THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO ROAD TRANSPORT .

IN THE LETTER OF 29 NOVEMBER 1958 THE NETHERLANDS MINISTER FOR TRANSPORT AND WATERWAYS DESCRIBED THE MEASURES WHICH HE CONSIDERED TO BE APPROPRIATE FOR THE ATTAINMENT OF THE OBJECTIVES REFERRED TO, NAMELY TO MEET THE REQUIREMENTS OF ARTICLE 70 OF THE TREATY IN RESPECT OF ROAD TRANSPORT .

THESE MEASURES WERE, MOREOVER, PUT INTO EFFECT BY ROYAL DECREE OF 24 DECEMBER 1958 .

SINCE THE HIGH AUTHORITY'S LETTER OF 12 AUGUST 1958 CONTAINED AN ADMONITORY REFERENCE TO THE FIRST PARAGRAPH OF ARTICLE 88 OF THE TREATY AND THE HIGH AUTHORITY DID NOT CONSIDER THAT THE ROYAL DECREE OF 24 DECEMBER 1958 SATISFIED THE REQUIREMENTS OF THE THIRD PARAGRAPH OF ARTICLE 70 OF THE TREATY, IT REACTED TO THE OBSERVATIONS MADE BY THE NETHERLANDS MINISTER FOR TRANSPORT AND WATERWAYS BY TAKING DECISION NO 18/59 OF 18 FEBRUARY 1959 " ON THE PUBLICATION OR NOTIFICATION TO THE HIGH AUTHORITY OF THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE BY ROAD OF COAL AND STEEL WITHIN THE COMMUNITY ON BEHALF OF THIRD PARTIES " ON THE BASIS OF THE FIRST PARAGRAPH OF ARTICLE 88 .

IN THE DECISION IT RECORDS THAT ALL THE MEMBER STATES ARE FAILING TO FULFIL THEIR OBLIGATIONS TOWARDS THE COMMUNITY BY NOT UNCONDITIONALLY ACCEPTING ONE OF THE THREE " POSSIBILITIES " WHICH IT HAD ALLOWED .

( A ) FOR THE FORM OF THIS RECORDING TO BE VALID THE HIGH AUTHORITY OUGHT AS A PRELIMINARY STEP TO HAVE GIVEN THE NETHERLANDS GOVERNMENT AN OPPORTUNITY TO SUBMIT ITS " COMMENTS " IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 88 .

IT CONSIDERS THAT IT HAS SATISFIED THIS CONDITION BY TREATING THE LETTER OF 29 NOVEMBER 1958 FROM THE NETHERLANDS MINISTER FOR TRANSPORT AND WATERWAYS AS REPRESENTING SUCH " COMMENTS " ON THE GROUND THAT THE RECOMMENDATION OF 12 AUGUST 1958 CONTAINED A REFERENCE AT THE END TO THE SECOND SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 88 OF THE TREATY .

P . 377

THE COURT CANNOT, HOWEVER, REGARD THIS EXCHANGE OF LETTERS AS CONSTITUTING THE FINAL COMMENTS PRIOR TO THE SERIOUS MEASURE OF RECORDING A FAILURE TO FULFIL AGREED OBLIGATIONS ON THE PART OF A STATE, ESPECIALLY SINCE THE POSITION ADOPTED BY THE NETHERLANDS GOVERNMENT WAS IN FURTHERANCE OF THE OBJECTIVES LAID DOWN IN ARTICLE 70 REFERRED TO BY THE HIGH AUTHORITY .

IT IS NOT SUFFICIENT THAT AN IMPERATIVE PROPOSITION CONTAINS A REFERENCE TO THE FIRST PARAGRAPH OF ARTICLE 88 FOR IT TO BE SAID THAT ANY CONTRARY OPINION EXPRESSED BY A GOVERNMENT WHICH TAKES A VIEW DIFFERENT FROM THAT OF THE HIGH AUTHORITY ON THE PROPER MEANS TO ATTAIN THE OBJECTIVES WHICH THE LATTER IS PURSUING MUST BE IMMEDIATELY REGARDED AS CONSTITUTING THE COMMENTS REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 88 AND AS EXHAUSTING THAT GOVERNMENT'S ARGUMENTS ON THE DETERMINATION OF THE OBLIGATIONS WHICH IT HAS IN FACT OR IS ALLEGED TO HAVE UNDER THE TREATY .

THIS APPLIES PARTICULARLY IN THE PRESENT CASE WHERE FUNDAMENTALLY THE HIGH AUTHORITY COULD REFER ONLY TO THE OBJECTIVE ASSIGNED TO THE STATE AND HAD TO LEAVE THE CHOICE OF MEANS TO THE DISCRETION OF THE NETHERLANDS GOVERNMENT .

IT WOULD INDEED BE INCONCEIVABLE THAT THE DIFFERENT ATTITUDE, WHICH WAS, NEVERTHELESS, A VERY COMPREHENSIVE ONE AND WAS FOLLOWED BY THE INITIATION OF LEGISLATIVE ACTION BY THE NETHERLANDS GOVERNMENT IN THE FORM OF THE ROYAL DECREE OF 24 DECEMBER 1958 RELATING TO THE " POSSIBILITIES " SUBMITTED BY THE HIGH AUTHORITY COULD HAVE BEEN IN THE NATURE OF COMMENTS ON A PRECISE FAILURE, OR ONE AT LEAST SUFFICIENTLY SPECIFIED IN LAW . IT IS EVEN LESS CONCEIVABLE INASMUCH AS ARGUMENT BEFORE THE COURT HAS DISCLOSED THAT THE PARTIES SHARE THE SAME VIEW .

SINCE THE HIGH AUTHORITY HAS NOT GIVEN THE NETHERLANDS GOVERNMENT AN OPPORTUNITY TO SUBMIT ITS COMMENTS AS REQUIRED BY ARTICLE 88, THE APPLICANT RIGHTLY ARGUES THAT THE DECISION IS NULL AND VOID AS BEING DEFECTIVE IN FORM IN SO FAR AS IT PURPORTS TO RECORD A FAILURE BY THE NETHERLANDS STATE TO FULFIL AN OBLIGATION WHICH IT HAS UNDER THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY .

( B ) THE CONTESTED DECISION FURTHER INFRINGES THE TREATY BY ITS ERRONEOUS APPLICATION IN LAW OF ARTICLE 88 .

THE RECORDING OF THE FAILURE ON THE PART OF THE APPLICANT STATE TO FULFIL AN OBLIGATION COULD RELATE ONLY TO ITS OBLIGATION TO PURSUE THE OBJECTIVE REFERRED TO IN THE THIRD PARAGRAPH OF ARTICLE 70 .

THE DECISION HOWEVER INFERS THE ALLEGED FAILURE FROM THE FINDING THAT THE MEASURES TAKEN BY THE NETHERLANDS GOVERNMENT WERE NOT CAPABLE OF ACHIEVING THE OBJECTIVE OF THE THIRD PARAGRAPH OF ARTICLE 70 ON THE SOLE GROUND THAT THEY DID NOT UNCONDITIONALLY ADOPT ONE OF THE THREE " POSSIBILITIES " REGARDED AS ALONE BEING SUITABLE BY THE HIGH AUTHORITY .

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IN DOING THIS THE HIGH AUTHORITY ONLY RECORDED THE FAILURE TO EMPLOY THE MEANS WHICH IT SUGGESTED WHEREAS LEGALLY IT SHOULD HAVE RECORDED WHETHER IN THE CIRCUMSTANCES THERE WAS A FAILURE TO ATTAIN THE PROPOSED OBJECTIVE . THUS IT INFRINGED BOTH ARTICLE 88 AND ARTICLE 70 OF THE TREATY .

III - IN THESE CIRCUMSTANCES AND WITHOUT ITS BEING NECESSARY TO CONSIDER THE OTHER ARGUMENTS PRESENTED BY THE APPLICANT AND THE INTERVENERS IT IS RIGHT TO ANNUL DECISION NO 18/59 OF THE HIGH AUTHORITY .

IV - UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURES THE HIGH AUTHORITY MUST BEAR THE COSTS .

THE COURT

HEREBY :

ANNULS DECISION NO 18/59 OF THE HIGH AUTHORITY OF 18 FEBRUARY 1959 PUBLISHED IN THE JOURNAL OFFICIEL OF 7 MARCH 1959 ON THE PUBLICATION OR NOTIFICATION TO THE HIGH AUTHORITY OF THE SCALES, RATES AND ALL OTHER TARIFF RULES OF EVERY KIND APPLIED TO THE CARRIAGE BY ROAD OF COAL AND STEEL WITHIN THE COMMUNITY FOR HIRE OR REWARD .

ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO BEAR THE COSTS .