61958J0020

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APPLICATION FOR ANNULMENT - DEFINITION OF A DECISION - CRITERIA APPLICABLE IN THE LEGAL ASSESSMENT OF A MEASURE BY THE HIGH AUTHORITY - EFFECT OF DECLARATION BY SERVANTS OF THE HIGH AUTHORITY - DISTINCTION BETWEEN A DECISION AND AN INTERNAL OFFICE DIRECTIVE .

( A ) THE LEGAL ASSESSMENT OF A MEASURE BY THE HIGH AUTHORITY DEPENDS ABOVE ALL ON ITS SUBJECT-MATTER AND ON ITS CONTENT .

( B ) WHEN THE HIGH AUTHORITY SENDS A LETTER TO AN AUXILIARY AGENCY ENTRUSTED BY IT WITH THE EXECUTION OF CERTAIN PRECISE FUNCTIONS, INFORMING IT OF CERTAIN GENERAL PRINCIPLES AND IN PARTICULAR INSTRUCTING IT TO CONTINUE A CERTAIN PRACTICE FOLLOWED UP TILL THEN, THAT LETTER MAY CONSTITUTE A MERE INTERNAL OFFICE DIRECTIVE, EVEN IF IT WAS PUBLISHED IN THE JOURNAL OFFICIEL AND IF IT REFERS TO MEASURES WHICH THE AGENCY MUST TAKE IN REGARD TO UNDERTAKINGS IN THE COMMUNITY . IN ANY EVENT, THIS IS TRUE IF IT EMERGES FROM THE LETTER THAT THE HIGH AUTHORITY DID NOT INTEND TO TAKE A DECISION, BUT INTENDED MERELY TO CONFIRM PRINCIPLES WHICH IT BELIEVED, RIGHTLY OR WRONGLY, TO BE LOGICALLY TO INFER FROM ITS PREVIOUS DECISIONS . THE FACT THAT A SERVANT OF THE HIGH AUTHORITY HAS DESCRIBED SUCH A LETTER TO A THIRD PARTY AS A " DECISION " DOES NOT INVALIDATE THE ABOVE STATEMENT ( TREATY ESTABLISHING THE ECSC, ARTICLE 33 ).

IN CASE 20/58

PHOENIX-RHEINROHR AG VEREINIGTE HUETTEN - UND ROEHRENWERKE, A LIMITED COMPANY INCORPORATED UNDER GERMAN LAW, HAVING ITS REGISTERED OFFICE IN DUESSELDORF, REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY HEINRICH LIETZMANN, ADVOCATE OF THE ESSEN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG, AT THE CHAMBERS OF WILLI SCHEIDER, 2 RUE DU FORT-ELISABETH, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, FRANS VAN HOUTEN, ACTING AS AGENT, ASSISTED BY WOLFGANG SCHNEIDER, ADVOCATE OF THE FRANKFURT BAR, WITH AN ADDRESS FOR SERVICE AT ITS OFFICES, 2 PLACE DE METZ, LUXEMBOURG, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISIONS CONTAINED IN THE LETTER SENT BY THE HIGH AUTHORITY ON 18 DECEMBER 1957 TO THE OFFICE COMMUN DE CONSOMMATEURS DE FERRAILLE ( OCCF ) ( JOINT BUREAU OF FERROUS SCRAP CONSUMERS ), RELATING TO THE DEFINITION OF THE CONCEPT OF " OWN RESOURCES SCRAP " WITHIN THE MEANING OF DECISIONS NOS 22/54, 14/55 AND 2/57, AND PUBLISHED IN THE JOURNAL OFFICIEL NO 4 OF 1 FEBRUARY 1958,

P . 81

ADMISSIBILITY

THE LETTER OF THE HIGH AUTHORITY DATED 18 DECEMBER 1957 SETS OUT A GENERAL PRINCIPLE IN SO FAR AS IT RELATES TO THE DEFINITION OF THE CONCEPT OF " OWN RESOURCES " WITH REGARD TO SCRAP .

THAT LETTER WAS PUBLISHED IN THE JOURNAL OFFICIEL OF 1 FEBRUARY 1958 AND THUS BROUGHT TO THE ATTENTION OF ALL THE UNDERTAKINGS IN THE COMMUNITY .

IT WAS DESCRIBED AS A " DECISION " BY THE MARKET DIVISION, IN A LETTER DATED 19 FEBRUARY 1958 IN ANSWER TO A FORMAL REQUEST FROM THE DEUTSCHE SCHROTTVERBRAUCHERGEMEINSCHAFT SENT TO THE HIGH AUTHORITY ON 6 FEBRUARY 1958 .

HOWEVER, CONTRARY TO THE APPLICANT'S ARGUMENTS, THE SAID LETTER OF 18 DECEMBER CANNOT IN LAW BE CONSIDERED AS A DECISION WITHIN THE MEANING OF THE TREATY .

ALTHOUGH IT IS TRUE THAT THE SAID LETTER OF 18 DECEMBER 1957 FOLLOWED A REQUEST FROM THE OCCF, IN THE ABSENCE OF UNANIMITY AMONG THE MEMBERS OF THAT AGENCY ON THE MEANING OF THE TERM " OWN RESOURCES ", FOR THE HIGH AUTHORITY TO DEFINE THAT CONCEPT IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 15 OF DECISION NO 2/57, THE HIGH AUTHORITY REPLIED THAT THE QUESTION THUS EXPRESSED BY THE OCCF " WAS MISCONCEIVED ", IN VIEW OF THE FACT THAT " FROM THE BEGINNING " THAT AGENCY " HAD BY IMPLICATION ADOPTED THE CONCEPT OF OWN RESOURCES IN ACCORDANCE WITH THE SEMANTIC VALUE OF THE EXPRESSION " AND THAT THIS CRITERION HAD TO BE MAINTAINED .

IT FOLLOWS THAT THE HIGH AUTHORITY HAD NO INTENTION OF ADOPTING A DECISION, AS IT HAD BEEN FORMALLY REQUESTED TO DO, BUT MERELY TO REAFFIRM PRINCIPLES WHICH IT CONSIDERED, RIGHTLY OR WRONGLY, TO FOLLOW LOGICALLY FROM THE BASIC DECISION NO 2/57 .

P . 82

THIS FINDING IS CONFIRMED BY THE FACT THAT AN AMENDMENT TO DECISION NO 2/57 WOULD HAVE REQUIRED, UNDER ARTICLE 53 ( B ) OF THE TREATY, THE PRIOR UNANIMOUS ASSENT OF THE COUNCIL OF MINISTERS, A CONDITION WHICH WAS NOT FULFILLED IN THE PRESENT CASE . MOREOVER, THERE IS NO REASON TO SUPPOSE THAT THE HIGH AUTHORITY WOULD KNOWINGLY HAVE INFRINGED THIS IMPERATIVE PROVISION .

THESE CONSIDERATIONS ARE NOT INVALIDATED BY THE FACT THAT, IN ANSWER TO A FORMAL REQUEST FROM THE DEUTSCHE SCHROTTVERBRACHERGEMEINSCHAFT, SENT TO THE HIGH AUTHORITY ON 6 FEBRUARY 1958, THE MARKET DIVISION REPLIED BY A LETTER OF 19 FEBRUARY 1958 THAT THE LETTER OF 18 DECEMBER 1957 WAS INDEED A " DECISION ".

IN FACT, BY ITS VERY WORDING, THIS ANSWER FROM THE MARKET DIVISION EXPRESSES THE OPINION OF AN OFFICIAL OF THE HIGH AUTHORITY AND DOES NOT NECESSARILY, IN ITSELF ALONE AND IN THE PRESENT CASE, CONVEY THE INTENTIONS OF THE HIGH AUTHORITY . IT MUST BE NOTED, HOWEVER, THAT THAT ANSWER COULD HAVE PROMPTED, OR EVEN DECIDED, THE APPLICANT TO BRING PROCEEDINGS AGAINST THIS ALLEGED DECISION, WITH THE LEGITIMATE CONCERN OF SAFEGUARDING ITS INTERESTS .

HOWEVER, THE VARIOUS SUBJECTIVE FACTORS SET OUT ABOVE CANNOT IN THEMSELVES BE DECISIVE FOR THE PURPOSE OF DETERMINING THE NATURE OF THE LETTER OF 18 DECEMBER 1957 IN QUESTION, SINCE THE NATURE OF AN ADMINISTRATIVE MEASURE DEPENDS ABOVE ALL ON ITS SUBJECT-MATTER AND ITS CONTENT .

THE SAID LETTER APPEARS AS BEING A DIRECTIVE OF AN INTERNAL CHARACTER SENT BY A SUPERIOR TO SERVICES COMING UNDER ITS AUTHORITY AND INTENDED TO DIRECT THE ACTIVITY OF THOSE SERVICES .

THEREFORE, IF THAT LETTER COULD GIVE RISE TO IMMEDIATE DUTIES, IT COULD DO SO ONLY ON THE PART OF THE ADDRESSEE ORGANIZATION AND NOT OF UNDERTAKINGS CONSUMING FERROUS SCRAP . FURTHERMORE, THIS SITUATION IS CORROBORATED BY THE FACT THAT THAT LETTER OF 18 DECEMBER 1957 WAS PUBLISHED IN THE JOURNAL OFFICIEL ONLY ON 1 FEBRUARY 1958 .

ACCORDINGLY, THE LETTER OF 18 DECEMBER 1957 IS NOT A DECISION WITHIN THE MEANING OF THE ECSC TREATY .

CONSEQUENTLY, THE APPLICATION IS NOT ADMISSIBLE .

UNDER ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS; IN THE PRESENT CASE THE APPLICANT WAS UNSUCCESSFUL ON THE ISSUE OF ADMISSIBILITY .

HOWEVER, SINCE, AS THE APPLICANT HAS POINTED OUT, THE DEFENDANT BY ITS LETTER OF 19 FEBRUARY 1958 PROMPTED, OR EVEN DECIDED, THE APPLICANT TO BRING PROCEEDINGS AGAINST THE ALLEGED DECISION CONTAINED IN THE LETTER OF 18 DECEMBER 1957, AN ORDER MUST BE MADE THAT THE PARTIES BEAR THEIR OWN COSTS .

THE COURT

HEREBY :

DISMISSES THE APPLICATION AS INADMISSIBLE;

ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .