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SOREMA is not an undertaking engaged in distribution within the meaning of the Treaty and is therefore not caught by Article 65;

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the contested Decision No 8/63 is a decision revoking an authorization under the fourth subparagraph of Article 65 (2) but does not fulfil the conditions for revocation therein prescribed;

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in its Decision to revoke, the High Authority refers to a condition not previously imposed;

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before issuing the revocation the High Authority failed to fix the period during which the authorization granted in Decision No 3/62 was to remain in force;

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the High Authority has not shown in Decision No 8/63 in what way SOREMA's membership of the OKU tends to distort competition; no such distortion can in fact be proved.

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first, the determining factor governing the right of action is an acceptance by the High Authority that a person qualifies as an undertaking, even if this does not accord with fact.

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secondly, SOREMA might be considered as an association of undertakings.

(a)

As to the first argument, I cannot accept it. It finds no support in the wording of the Treaty, which starts quite clearly from the objective criterion of the activity tarried out. Nor is there, in my opinion, any reason to admit it in the interest of ensuring legal protection for undertakings outside the Community which might be named by the High Authority in a decision which exceeds its competence — a case more theoretical than practical. Even without admitting that such undertakings have a right to institute proceedings, their interests, as the High Authority has shown, are sufficiently protected. Were they to make an application for annulment, the High Authority would also have to submit to the consequences, arising under Article 34 of the Treaty, of a judgment declaring the application to be inadmissible because of the failure of the applicant to qualify as an undertaking, and amend its decision to accord with the limits of its competence. In addition, there is the possibility open to each party concerned of applying for damages under Article 40 of the Treaty and if occasion arises of seeking clarification in proceedings brought before its national courts which can lead to a reference to the Court under Article 41 of the ECSC Treaty.

(b)

On the other hand, the admissibility of the application must be considered from the point of view of SOREMA's qualifying as an association of undertakings; as we have seen, SOREMA is in fact made up principally of wholesale coal merchants, which are themselves undertakings within the meaning of Articles 80 and 65 of the Treaty.

The Treaty nowhere defines what should be considered as an association of undertakings. But, bearing in mind the functions which the Treaty assigns to associations (Article 48 — consultations with the High Authority, submitting suggestions to the institutions of the Community, in general protecting the interests of Community undertakings), one might think the Treaty starts with a concept long known to the economic law of Member States. On this point, I quote Huber, Wirtschaftsverwaltungsrecht, 1953, who defines in Volume I on page 243 the concept of an association of undertakings as follows:

‘An association of undertakings is an association of entrepreneurs, (and undertakings) in the same business sector of the economy which promotes the economic interests of its members, and represents them especially vis-a-vis the public, government, administrative and legislative bodies and other sectors of the economy’.

The observations in Reuter's ‘La Communaute Européenne du Charbon et de L'Acier’, page 111, would lead to a similar definition as would those in ‘La Communauté Européenne du Charbon et de l'Acier par un groupe d'étude de l'lnstitut des Relations internationales’, page 34.

It appears to me that SOREMA too can act in this way by virtue of Article 2 (2) of its articles of association which states (inter alia)‘Elle peut assurer directement ou indirectment la contrôle ou la gérance do tout organisme, association ou part d'interets concourant a la realisation de l'objet précité’ (‘It may directly or indirectly control or manage any body, association or share in a business having the aforementioned objects’).

In this case it has without doubt acted as representing the interests of the wholesale coal merchants who are its members and for whom it seeks to obtain certain advantages arising out of membership of a powerful sales and transport organization.

When, on the other hand, the High Authority suggests that SOREMA is, according to its articles, a company having among its objects the making of profits, this should not take away its character as an association, for nowhere is it laid down that an association cannot pursue an economic activity whilst at the same time watching over the general economic interests of its members.

Consequently, I incline to the view that the exercise by SOREMA of a function, justified by its articles, which is typically that of an association, is sufficient to give the right to bring an application which should be declared admissible.

1.

Before beginning an examination of the substance of the objections raised, I must make quite clear what is the one purpose of the contested Decision and so of the judicial proceedings. I do this in the context of the question, discussed at length during the oral proceedings, whether SOREMA's membership of the OKU is caught by Article 65, and whether as a restriction on competition it requires authorization. This is a question which in the applicant's view has to be examined as much from the point of the lack of a statement of reasons as from that of infringement of the Treaty.

But to do that, it is essential to look once again briefly at the series of decisions which have already been mentioned in the recital of facts to see, when viewed as a whole, what light they throw on the question posed.

In the preamble to Decision No 19/57, the first decision dealing with the OKU, the following sentences are to be found, which, because of their importance I am repeating verbatim.

‘Nevertheless, these new agreements’ (meaning agreements including the establishment and the objects of the OKU) ‘having as their object joint buying by wholesale merchants must in accordance with Article 80 of the Treaty be regarded as falling within the provisions of Article 65 thereof’… “Joint buying ensures for the wholesale merchant members a considerable influence over the market which in turn opens up the possibilitity of practices being applied which are contrary to the provisions of Article 4 (b) or (d) of the Treaty, particularly the prohibition on discrimination and sharing or exploiting of markets.”

The passages quoted apply without distinction to the German and the French wholesale merchants participating in the OKU and make clear that the High Authority thought itself bound to consider the concentration from the point of view of Article 65 and concluded that under that Article it was subject to authorization.

It does not seem that this basic assessment had changed when SOREMA was substituted for the French wholesale coal merchants as a member of the OKU (Decision No 31/59), or that therefore, as the applicant assumes, there was at this time any change of view on the position as to membership. SOREMA's membership of the OKU, likewise authorized under Article 65, simply meant that the French wholesale coal merchants, who had previously been able to participate in the OKU decisions individually (but who in fact, as we have learned, were already represented by SOREMA), were in future necessarily represented as a group. That is why Decision No 31/59 is expressly designated as an extension of Decision No 19/57, and why one finds it stated there that SOREMA looks after the interests of the French merchants in the OKU.

Nor do the later decisions of the High Authority reveal any change of treatment of SOREMA's legal position. When Decision No 12/60 approved SOREMA's membership of the OKU, this can only mean that authorization under Article 65 of the Treaty was given. Besides, it clearly emerges from the preamble to Decision No 12/60 that the High Authority made no difference of principle between individual French merchants’ membership of the OKU and their collective representation through SOREMA, for the Decision speaks expressly of the link between the Oberrheinische Kohlenunion, and the French merchants grouped together in SOREMA.

Finally the last of the authorizing decisions (No 3/62) does not depart from this view; this can be seen, for example, by the reproduction of SOREMA's request in the grounds of which reference is made to the usefulness of cooperation with the OKU because of growing competition and the necessity for an accurate survey of the market. The fact that the High Authority reproduced precisely this part of the request in the preamble to its Decision shows in what context the High Authority was prepared to view SOREMA's membership. Thus there seems no doubt that in all its authorizing decisions the High Authority treated the link between SOREMA and the OKU as falling within Article 65 of the Treaty and regarded it as subject to authorization under Article 65.

This treatment for legal purposes has not been challenged in any way. It could only have been made a subject for argument in the present case if Decision No 8/63, now being contested, had proceeded to a reassessment of the concentration or confirmed it for it is not possible to attack previous individual decisions by raising an objection of illegality.

But that is clearly not the case. as the short operative part of Decision No 8/63 clearly shows, the sole object of the Decision was to fix a final time-limit for the authorization given to SOREMA for membership of the OKU, and thus to put an end to the development. Nothing in the Decision, either in the operative part or in the preamble, indicates that the High Authority had made any fresh approach to the question of the necessity for authorization, in the way of reconsideration, reexamination and redetermination. It regarded the necessity for authorization rather as a definitively established fact and based the contested Decision on it.

Consequently, our case turns solely on the question whether fault can be found in the fixing of a period of validity of the earlier authorization, and all arguments not bearing on this issue can be disregarded as irrelevant to the subject matter of the proceedings.

2.

After this necessary delimitation of the subject matter which is open to discussion, I turn to the few remaining submissions.

3.

All the arguments submitted do not therefore warrant the annulment of Decision No 8/63, whilst those which one might have expected to hear based on the meaning of the transitional rules made for SOREMA's benefit, for example that the transitional period did not give enough time to fulfil the ordinary conditions for admission, have not been raised at all.

III —

Consequently, my opinion is that the application by SOREMA is admissible but that it should be dismissed as unfounded, with the consequences in the matter of costs as stated in Article 69 of the Rules of Procedure.