61963J0066

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1 . AGREEMENTS - AUTHORIZATION - REASONS THEREFORE

( ECSC TREATY, ARTICLE 65 )

2 . AGREEMENTS - AUTHORIZATION - CONSIDERATION OF CONFORMITY OF SUCH AGREEMENTS WITH THE ECSC TREATY - CRITERIA

( ECSC TREATY, ARTICLE 65 )

3 . AGREEMENTS - CONDITIONAL AUTHORIZATION - CONCEPT AND LIMITS

( ECSC TREATY, ARTICLE 65 )

4 . COMMUNITY INSTITUTIONS - ADMINISTRATIVE DEPARTMENTS - ABSENCE OF POWER TO TAKE DECISIONS

5 . AGREEMENTS - AUTHORIZATION - SCOPE OF THE AGREEMENTS TO BE AUTHORIZED AS A CRITERION ( ECSC TREATY, ARTICLE 65 )

1 . IN THE AUTHORIZATION OF AGREEMENTS, THE REASONS GIVEN FOR THE DECISIONS MUST ENABLE THE NATURE OF THE AGREEMENTS AUTHORIZED TO BE ASSESSED HAVING REGARD TO THE REQUIREMENTS OF THE TREATY . TO THIS END, IT IS SUFFICIENT THAT THE AUTHORIZATION DECISIONS SET OUT THE ESSENTIAL FEATURES OF THE AGREEMENTS TO WHICH THEY REFER .

2 . THE HIGH AUTHORITY'S CONSIDERATION WITH REGARD TO THE CONFORMITY OF SUCH AN AGREEMENT WITH THE ECSC TREATY WHICH IS NECESSARY BEFORE ANY AUTHORIZATION BE MADE, CONSISTS ABOVE ALL OF A COMPARISON OF THE CONTENT OF THE AGREEMENTS WITH THE AUTHORIZED OBJECTIVES . IN THIS RESPECT, THE SIGNIFICANCE AND SCOPE OF THE VARIOUS CLAUSES OF THE AGREEMENT MAY BE DETERMINED, NOT BY CONSIDERING EACH CLAUSE IN ISOLATION, BUT BY A GENERAL CONSIDERATION OF THE AGREEMENT AS A WHOLE, SINCE THE HIGH AUTHORITY IS NOT OBLIGED TO GIVE THE REASONS FOR WHICH THE PROVISIONS OF ARTICLE 65 ( 2 ) ARE NOT INFRINGED BY EACH INDIVIDUAL CLAUSE .

3 . THE HIGH AUTHORITY CANNOT BE DENIED THE RIGHT TO APPROVE AN AGREEMENT IF IT FINDS THAT, AS A RESULT OF CERTAIN CONDITIONS IMPOSED ON THE PARTIES CONCERNED, THE CONSEQUENCES OF THAT AGREEMENT ARE NOT PROHIBITED BY ARTICLE 65 . IN GRANTING SUCH AN AUTHORIZATION THE HIGH AUTHORITY MAY IMPOSE ANY CONDITIONS WHICH IT CONSIDERS NECESSARY HAVING REGARD TO THE NATURE AND IMPORTANCE OF THE AGREEMENTS AUTHORIZED, IN ORDER TO ENSURE OBSERVANCE OF THE REQUIREMENTS OF ARTICLE 65 ( 2 ) FOR THE WHOLE PERIOD OF THE AUTHORIZATION . HERE THE HIGH AUTHORITY HAS THE RIGHT TO EXERCISE SUPERVISION IN THE FORM OF SUPPLEMENTARY STATEMENTS AND AUTHORIZATIONS, WHICH MAY, IF NECESSARY, TAKE THE FORM OF THE ADOPTION OF POLICIES AS A PRELIMINARY TO CERTAIN MEASURES AMENDING THE CONTENT OF THE AGREEMENTS AUTHORIZED . THE LIMITS OF THE HIGH AUTHORITY'S POWER ARE TO BE FOUND BOTH IN THE PURPOSE FOR WHICH IT MUST BE EXERCISED AND IN THE GENERAL PRINCIPLES OF THE TREATY .

4 . THE DEPARTMENTS OF THE HIGH AUTHORITY HAVE NO SEPARATE CAPACITY AND MAY ONLY ACT UNDER ITS RESPONSIBILITY .

5 . THE SCOPE OF AN AGREEMENT ONLY ACQUIRES SIGNIFICANCE IN RELATION TO THE REQUIREMENTS OF ARTICLE 65 ( 2 ) IF IT IS CONSIDERED BOTH IN RELATION TO THE SIZE OF THE MARKET AND TO THE SIZE OF THOSE ECONOMIC BODIES OPERATING IN THIS MARKET WHICH ARE THE ACTUAL OR POTENTIAL COMPETITORS OF THE PARTIES TO THE AGREEMENT .

IN CASE 66/63

GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS, REPRESENTED BY PROFESSOR W . RIPHAGEN, LEGAL ADVISER TO THE MINISTRY OF FOREIGN AFFAIRS AT THE HAGUE, ASSISTED BY D . J . VEEGENS OF THE HAGUE, 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, ERICH ZIEMERMANN, ACTING AS AGENT, ASSISTED BY C . R . C . WIJCKERHELD BISDOM OF THE HAGUE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANULMENT OF DECISIONS N . 5/63 AND 6/63 OF 20 MARCH 1963 CONCERNING THE AUTHORIZATION OF THE JOINT SELLING OF FUELS BY THE MINING COMPANIES OF THE RUHR BASIN ASSOCIATED WITHIN THE RUHR COAL SELLING AGENCIES ' GEITLING ' AND ' PRASIDENT ';

A - ON ADMISSIBILITY

THE DEFENDANT HAS RAISED NO OBJECTION TO THE ADMISSIBILITY OF THE APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

THE APPLICATION IS THEREFORE ADMISSIBLE .

B - ON THE SUBSTANCE OF THE CASE

1 . ON THE SUBMISSION OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT

THE APPLICANT MAINTAINS THAT AS THE CONTRACTS AND RESOLUTIONS AUTHORIZED WERE NOT PUBLISHED IN EXTENSO, THE STATEMENTS OF REASONS ON WHICH THE CONTESTED DECISIONS ARE BASED GIVE ONLY AN INCOMPLETE PICTURE OF THE SYSTEM APPROVED BY THE HIGH AUTHORITY .

HOWEVER, THE REASONS GIVEN FOR THE DECISIONS IN QUESTION MUST ENABLE THE NATURE OF THE AGREEMENTS AUTHORIZED TO BE ASSESSED HAVING REGARD TO THE REQUIREMENTS OF THE TREATY .

TO THIS END, IT IS SUFFICIENT THAT THE AUTHORIZATION DECISIONS ADOPTED UNDER ARTICLE 65 SET OUT, AS IN THIS CASE, THE ESSENTIAL FEATURES OF THE AGREEMENTS TO WHICH THEY REFER .

MOREOVER, THE DEFENDANT HAS PRODUCED THE COMPLETE TEXT OF THE CONTRACTS AND RESOLUTIONS AUTHORIZED IN A SCHEDULE TO ITS STATEMENT OF DEFENCE .

THE APPLICANT, BEING THUS ENABLED TO SET OUT ANY OMISSIONS IN THE STATEMENT OF THE ESSENTIAL FEATURES OF THE AGREEMENTS AUTHORIZED, DID SO NEITHER IN ITS REPLY NOR DURING THE ORAL PROCEDURE .

AN EXAMINATION OF THE DOCUMENTS PRODUCED DOES NOT SHOW ANY SUCH OMISSIONS .

THIS GROUND OF COMPLAINT IS THEREFORE UNJUSTIFIED .

MOREOVER, THE APPLICANT MAINTAINS THAT THE CONTESTED DECISIONS DO NOT SUFFICIENTLY SHOW HOW, UNDER ARTICLE 65 ( 2 ) ( A ), JOINT SELLING CONTRIBUTES TO A SUBSTANTIAL IMPROVEMENT IN THE DISTRIBUTION OF THE PRODUCTS CONCERNED, NOR HOW, UNDER ARTICLE 65 ( 2 ) ( B ), THE AGREEMENTS IN QUESTION ARE ESSENTIAL IN ORDER TO ACHIEVE THESE RESULTS; IN PARTICULAR, THESE DECISIONS ASSERT THAT THE AGREEMENTS AUTHORIZED ARE OF GREAT IMPORTANCE (' VAN GROOT BELANG ') IN ACHIEVING AN IMPROVED DISTRIBUTION OF THE PRODUCTS, WHILE THE TREATY REQUIRES THAT THEY BE ESSENTIAL (' ONMISBAAR ').

THE REASONS SET OUT IN THIS RESPECT IN RECITAL 26 OF THE CONTESTED DECISIONS INDICATE BRIEFLY BUT CLEARLY THE ADVANTAGES OF JOINT SELLING BY THE AUTHORIZED AGENCIES IN RELATION TO THE AIM OF THIS PROVISION OF THE TREATY .

THE APPLICANT DOES NOT DISPUTE THE EXISTENCE OF THESE ADVANTAGES .

A COMPARISON OF THE TEXT OF THE CONTESTED DECISIONS AS DRAFTED IN THE VARIOUS OFFICIAL LANGUAGES OF THE COMMUNITY SHOWS THAT THE DIFFERENCE IN VOCABULARY REFERRED TO BY THE APPLICANT IS NOT DECISIVE .

THIS GROUND OF COMPLAINT IS THEREFORE UNFOUNDED .

FURTHERMORE THE APPLICANT CLAIMS THAT THE HIGH AUTHORITY GAVE INSUFFICIENT REASONS FOR ITS OPINION THAT THE AGREEMENTS WERE ESSENTIAL IN ORDER TO ACHIEVE THE REQUIRED RESULTS AND WERE NOT MORE RESTRICTIVE THAN WAS NECESSARY FOR THAT PURPOSE .

IN SUMMARIZING THE ESSENTIAL FEATURES OF THE AGREEMENTS AND RESOLUTIONS SUBMITTED AND IN STATING THE ADVANTAGES OF JOINT SELLING, THE CONTESTED DECISIONS SET OUT THE FACTS NECESSARY TO EXAMINE WHETHER THEY MEET THE REQUIREMENT OF ARTICLE 65 ( 2 ) ( B ), SINCE THIS EXAMINATION CONSISTS ABOVE ALL OF A COMPARISON OF THE CONTENT OF THE AGREEMENTS WITH THE AUTHORIZED OBJECTIVES .

IN THIS RESPECT THE SIGNIFICANCE AND THE SCOPE OF THE VARIOUS CLAUSES OF THE AGREEMENTS MAY BE DETERMINED, NOT BY CONSIDERING EACH CLAUSE IN ISOLATION, BUT BY A GENERAL CONSIDERATION OF THE AGREEMENTS AS A WHOLE .

ALTHOUGH, THEREFORE, THE HIGH AUTHORITY, IN EXERCISING ITS SPECIFIC POWERS TO MAKE AN ECONOMIC EVALUATION, IS BOUND TO EXAMINE THE AGREEMENTS SUBMITTED FOR AUTHORIZATION IN EVERY DETAIL AND TO REFUSE TO APPROVE THOSE CLAUSES WHICH APPEAR ' MORE RESTRICTIVE THAN IS NECESSARY FOR THAT PURPOSE ', OR TO MODIFY THEIR TOO RESTRICTIVE EFFECTS BY IMPOSING CONDITIONS ON THEM, IT IS NOT OBLIGED TO GIVE THE REASONS FOR WHICH THE PROVISIONS OF ARTICLE 65 ( 2 ) ( B ) ARE NOT INFRINGED BY EACH INDIVIDUAL CLAUSE .

THESE GROUNDS OF COMPLAINT CANNOT THEREFORE BE MAINTAINED .

2 . ON THE SUBMISSION OF INFRINGEMENT OF THE TREATY, OF LACK OF COMPETENCE AND MISUSE OF POWERS

( A ) THE SYSTEM OF SUPERVISION

THE APPLICANT CONTENDS THAT THE CONTESTED DECISIONS INFRINGE THE TREATY AND EXCEED THE POWERS OF THE HIGH AUTHORITY IN THAT THE EFFECT OF THEIR ARTICLES 15 TO 17, WHICH PROVIDE FOR THE RIGHT OF THE HIGH AUTHORITY OR ITS DEPARTMENTS TO APPROVE CERTAIN MEASURES TAKEN BY THE AGENCIES, IS TO SUBSTITUTE FOR THE POWERS OF AUTHORIZATION GRANTED TO THE HIGH AUTHORITY ITSELF WITHIN WELL - DEFINED LIMITS BY ARTICLE 65 ( 2 ) A DISCRETIONARY POWER EXERCISED BY MERE SERVANTS, WITHOUT EITHER SUPERVISION OR GUARANTEES OF THE PROTECTION OF THE COURT FOR THIRD PARTIES WHO MAY BE CONCERNED .

UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 65 ( 2 ) THE HIGH AUTHORITY MAY IN ITS AUTHORIZATIONS IMPOSE ANY CONDITIONS WHICH IT CONSIDERS NECESSARY HAVING REGARD TO THE NATURE AND IMPORTANCE OF THE AGREEMENTS AUTHORIZED IN ORDER TO ENSURE OBSERVANCE OF THE REQUIREMENTS OF THE FIRST SUBPARAGRAPH OF ARTICLE 65 ( 2 ) FOR THE WHOLE PERIOD OF THE AUTHORIZATION .

THE LIMITS OF THE POWER OF THE HIGH AUTHORITY ARE FOUND IN THE PURPOSE FOR WHICH IT MUST BE EXERCISED, AS WELL AS IN THE GENERAL PRINCIPLES OF THE TREATY .

THE SUPERVISION PROVIDED FOR BY THE PROVISIONS COMPLAINED OF IS CLEARLY SUCH AS TO FACILITATE THE TASK OF THE HIGH AUTHORITY IN PREVENTING THE AUTHORIZED AGENCIES FROM ABUSING THOSE AGREEMENTS CONSIDERED COMPATIBLE WITH THE TREATY AND FROM BEHAVING IN A MANNER CONTRARY TO THE AUTHORIZATIONS GIVEN AND, MORE GENERALLY, TO THE PROVISIONS OF THE TREATY .

MOREOVER, WHERE THE EXERCISE OF THIS SUPERVISION INVOLVES THE HIGH AUTHORITY IN THE ADOPTION OF POLICIES LIKELY TO AFFECT THE INTERESTS OF THIRD PARTIES, SUCH A MEASURE MUST BE ADOPTED IN THE MANNER PROVIDED FOR IN ARTICLE 15 OF THE TREATY .

ARTICLE 15 ( 3 ) OF THE CONTESTED DECISIONS PROVIDE FOR THE ADOPTION OF SUCH POLICIES PARTICULARLY IN THE FORM OF SUPPLEMENTARY STATEMENTS OR AUTHORIZATIONS . THE APPLICANT MAINTAINS THAT THE GRANT OF THESE POWERS TO MAKE STATEMENTS OF GRANT AUTHORIZATIONS IS CONTRARY TO THE TREATY . THE POWERS VESTED IN THE HIGH AUTHORITY ITSELF PERMIT THE NORMAL ADOPTION OF POLICIES EVEN WHERE NO SPECIAL PROVISION EXISTS TO THIS EFFECT .

THEREFORE, THE FACT THAT ARTICLE 15 OF THE CONTESTED DECISIONS PROVIDES FOR THE ADOPTION OF POLICIES AS A PRELIMINARY TO CERTAIN MEASURES AMENDING THE CONTENT OF THE AGREEMENTS AUTHORIZED IS NOT INCOMPATIBLE WITH THE TREATY .

MOREOVER, SUCH STATEMENTS AND AUTHORIZATIONS AMOUNT TO DECISIONS WITHIN THE MEANING OF ARTICLES 15, 33 AND 35 OF THE TREATY AND ARE THEREBY SUBJECT TO ALL THE RULES LAID DOWN IN THOSE PROVISIONS .

ON THE OTHER HAND, IN ARTICLE 15 ( 3 ) OF THE CONTESTED DECISIONS THE DEPARTMENTS OF THE HIGH AUTHORITY WERE WRONGLY REFERRED TO AS DISTINCT FROM THE AUTHORITY ITSELF . THE DEPARTMENTS OF THE HIGH AUTHORITY HAVE NO SEPARATE CAPACITY AND MAY ACT ONLY UNDER ITS RESPONSIBILITY . THE CONTESTED DECISIONS WERE THUS REQUIRED TO RESERVE THE POWER OF DECISION TO THE HIGH AUTHORITY ALONE WHICH MUST ARRANGE FOR SUCH POWER TO BE EXERCISED ON ITS OWN RESPONSIBILITY AND WITH DUE REGARD TO THE RULES OF THE TREATY . SINCE THE REFERENCE TO THE DEPARTMENTS AS SEPARATE ENTITIES IS WITHOUT LEGAL FOUNDATION, IT CANNOT PROPERLY APPEAR IN THE CONTESTED DECISIONS . THE SAID REFERENCE IS SEVERABLE FROM THE REST OF THE CONTESTED DECISIONS WITH THE RESULT THAT THEIR ARTICLES 15 ( 3 ) MAY BE ANNULLED TO THE EXTENT THAT THEY CONTAIN THE WORDS ' OR ITS DEPARTMENTS '.

THE APPLICANT FURTHER MAINTAINS THAT THE EXTENT OF THE SUPERVISION TO WHICH THE SELLING AGENCIES WERE SUBJECTED BY THE HIGH AUTHORITY SHOWS THAT THE DEFENDANT ITSELF WAS NOT CONVINCED THAT THE AGREEMENTS WERE IN ACCORDANCE WITH ARTICLE 65 ( 2 ).

THIS GROUND OF COMPLAINT IMPLIES THAT, IN FIXING THE CONDITIONS IN QUESTION, THE HIGH AUTHORITY CONSIDERED THAT THE AGREEMENTS SUBMITTED FOR ITS AUTHORIZATION ONLY SATISFIED THE REQUIREMENTS OF ARTICLE 65 ( 2 ) OF THE TREATY IF SUBJECTED TO SUCH SUPERVISION, AND THAT THEREFORE, BY USING ITS POWER OF AUTHORIZATION TO AN END OTHER THAN THAT FOR WHICH IT WAS CONFERRED, IT MISUSED ITS POWERS .

THE HIGH AUTHORITY CANNOT BE DENIED THE RIGHT TO APPROVE AN AGREEMENT IF IT FINDS THAT, AS A RESULT OF CERTAIN CONDITIONS IMPOSED ON THE PARTIES CONCERNED, THE CONSEQUENCES OF THAT AGREEMENT ARE NOT PROHIBITED BY ARTICLE 65 .

MOREOVER, THE TENDENCY OF THE SELLING AGENCIES OF RUHR COAL EARLIER AUTHORIZED TO KEEP WITHIN THE LIMITS OF THE AUTHORIZATIONS AS STATED IN RECITAL 38 OF THE CONTESTED DECISIONS, IS CAPABLE BY ITSELF OF JUSTIFYING THE SUPERVISION INTRODUCED .

SUBJECT, THEREFORE, TO THE ABOVE REMARKS CONCERNING THE WORDS ' OR ITS DEPARTMENTS ' CONTAINED IN ARTICLE 15 ( 3 ) OF THE CONTESTED DECISIONS, THE PRESENT GROUND OF COMPLAINT MUST BE REJECTED .

( B ) THE REQUIREMENTS OF ARTICLE 65 ( 2 ) ( B ) AND ( C )

THE APPLICANT MAINTAINS THAT THE AGREEMENTS AUTHORIZED DO NOT MEET THE REQUIREMENT OF ARTICLE 65 ( 2 ) ( B ) OF THE TREATY IN THAT THE LIMITATION OF THE NUMBER OF SELLING AGENCIES FOR RUHR COAL TO ONLY TWO IS NOT ESSENTIAL IN ORDER TO ACHIEVE THE RESULTS ENVISAGED AND IS MORE RESTRICTIVE THAN NECESSARY HAVING REGARD TO THE PURPOSE OF THE AGREEMENTS .

THE APPLICANT, WHILE CONTENDING THAT IN THIS RESPECT INSUFFICIENT REASONS ARE GIVEN FOR THE CONTESTED DECISIONS, DOES NOT MAINTAIN THAT OTHER ASPECTS OF THE AGREEMENTS DO NOT FULFIL THIS REQUIREMENT .

ONE MUST, THEREFORE, CONSIDER THE GROUND OF COMPLAINT BASED ON SUBPARAGRAPH ( B ) OF THE ABOVE-QUOTED PROVISION TOGETHER WITH THE ALLIED GROUNDS OF COMPLAINT BASED ON SUBPARAGRAPH ( C ). IN FACT, THE QUESTION WHETHER AND TO WHAT EXTENT THE LIMITATION COMPLAINED OF IS IN ITSELF RESTRICTIVE IS IDENTICAL TO THE QUESTION WHETHER AND TO WHAT EXTENT A LIMITED NUMBER OF SELLING AGENCIES IS LIKELY TO GIVE THE UNDERTAKINGS CONCERNED THE POWER TO DETERMINE THE PRICES, OR TO CONTROL OR RESTRICT THE PRODUCTION OR MARKETING OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION WITHIN THE COMMON MARKET .

THE APPLICANT HERE MAINTAINS THAT THE AUTHORIZED AGREEMENTS DO NOT MEET THE REQUIREMENTS OF ARTICLE 65 ( 2 ) ( C ), NOT ONLY BECAUSE OF THE IDENTICAL STRUCTURE OF THE TWO SALES ORGANIZATIONS, WHICH IN ITSELF REVEALS THAT THEY ARE NOT MUTUALLY INDEPENDENT, BUT ALSO AS A RESULT OF THE ECONOMIC PRINCIPLES APPLICABLE TO OLIGOPOLIES .

A CONSIDERATION OF THE COMPATIBILITY OF THE TWO SELLING AGENCIES OF THE RUHR BASIN WITH THOSE PROVISIONS OF THE TREATY WHICH ARE IN QUESTION INVOLVES AN EVALUATION OF THE SITUATION IN THE COMMON MARKET RESULTING AT A GIVEN MOMENT, FROM ECONOMIC FACTS AND CIRCUMSTANCES AND AN EVALUATION OF THE SITUATION IN THE COAL-FIELDS OF THE RUHR BASIN BOTH IN THEIR RELATIONS INTER SE AND WITH OTHER UNDERTAKINGS OR ALLIED BODIES .

IT FOLLOWS FROM THE CONTESTED DECISIONS, IN PARTICULAR FROM THEIR RECITALS 20 TO 25, THAT THE HIGH AUTHORITY BASED ITS ACTION ON SUCH EVALUATIONS .

THE COURT, ACTING UNDER ARTICLE 33 OF THE TREATY TO REVIEW THE LEGALITY OF MEASURES ADOPTED BY THE HIGH AUTHORITY, CANNOT, EXCEPT IN CASES OF FLAGRANT ERROR OR OMISSION BY THAT AUTHORITY, INTERFERE IN THE EVALUATION OF THE ECONOMIC FACTS OR CIRCUMSTANCES IN THE LIGHT OF WHICH THE CONTESTED MEASURES WERE ADOPTED .

IT IS TRUE THAT THE STRUCTURE OF THE TWO AGENCIES SHOWS SUBSTANTIAL UNIFORMITY BOTH AS REGARDS THE VOLUME OF PRODUCTION AND SALES OF THE VARIOUS TYPES OF PRODUCT MANUFACTURED IN EACH GROUP AND THEIR INTERNAL ORGANIZATION AND CONTROL OF SALES . AS A RESULT OF THIS UNIFORMITY, THE TWO NEW AGENCIES ARE PLACED ON AN EQUAL FOOTING . IN AN OLIGOPOLISTIC MARKET THE BALANCE AND INDEPENDENCE OF THE LARGE ECONOMIC UNITS WHICH OPERATE IN IT MAY BENEFIT IF THEY ALL HAVE COMPARABLE ECONOMIC STRENGTH . THAT IS PARTICULARLY TRUE IN THE CASE OF TWO AGENCIES BASED IN THE SAME BASIN WHICH MUST THEREFORE COMPETE DIRECTLY AND CONTINUOUSLY WITH EACH OTHER .

THE APPLICANT MAINTAINS THAT IN THESE CIRCUMSTANCES, A SYSTEM, WHICH IT REFERS TO AS A ' DUOPOLY ', IN THE RUHR IS LIKELY ALMOST TO ELIMINATE THE MEASURE OF COMPETITION, WHICH ACCORDING TO THE JUDGMENT IN CASE 13/60 SHOULD BE MAINTAINED IN THE RUHR COAL BASIN .

HOWEVER, IN AN OLIGOPOLISTIC MARKET, CHARACTERIZED BY A SYSTEM WHICH ENSURES, THROUGH THE COMPULSORY PUBLICATION OF SCALES OF PRICES AND TRANSPORTATION CHARGES, PUBLICITY FOR THE PRICES CHARGED BY THE VARIOUS UNDERTAKINGS, IT IS ALMOST INEVITABLE THAT THE PRICES CHARGED BY UNITS HAVING COMPARABLE ECONOMIC STRENGTH SHOULD BE LARGELY STABLE, EVEN WHEN THEY ARE ACTUALLY COMPETING, SINCE PUBLICATION TO OTHER VENDORS AS WELL AS TO PURCHASERS DISCOURAGES ANY ISOLATED EFFORT BY EITHER ECONOMIC UNIT TO USE PRICES IN ORDER TO CONQUER A LARGER PORTION OF THE MARKET . THIS APPLIES TO THE COMMON MARKET IN COAL TODAY .

HOWEVER, THIS IMMOBILITY OF PRICES IN THE MARKET DOES NOT, IN ITSELF, CONTRAVENE THE TREATY IF IT RESULTS NOT FROM AN AGREEMENT, EVEN TACIT, BETWEEN THE PARTIES CONCERNED, BUT FROM THE INTERPLAY OF THE STRENGTHS AND STRATEGIES OF INDEPENDENT AND OPPOSED ECONOMIC UNITS ON THE MARKET .

ON THE OTHER HAND, THE DEGREE OF COMPETITION ENVISAGED BY THE TREATY MAY VARY, ESPECIALLY AS REGARDS CONDITIONS IN THE MARKET AND THE RELATIVE IMPORTANCE OF THE VARIOUS REQUIREMENTS ARISING FROM THEM .

IT IS CONCEIVABLE THAT IN A PERIOD CHARACTERIZED BY STRONGLY INCREASED COMPETITION FROM COAL SUBSTITUTES THE RATIONALIZATION REQUIREMENTS OF THE PRODUCTION AND SALE OF THE PRODUCT WHICH IS THUS PLACED AT A DISADVANTAGE ARE OF PRIMARY IMPORTANCE IN THE MARKET ECONOMY AND PREVAIL OVER THE MAINTENANCE OF A HIGH DEGREE OF COMPETITION BETWEEN THE UNDERTAKINGS IN DIFFICULTY, ALTHOUGH THIS DOES NOT INVOLVE THE ELIMINATION OF ALL COMPETITION IN THE COAL MARKET .

IN THIS CASE IT SHOULD BE OBSERVED THAT AS THE RUHR BASIN IS AN INTEGRAL PART OF THE COMMON MARKET IN COAL AND STEEL THE SELLING AGENCIES, WITH THE MODERN DEVELOPMENT OF TRADE, WILL BE MORE AND MORE EXPOSED TO COMPETITION FROM THE VARIOUS UNITS SELLING COAL IN THE MARKET .

MOREOVER, ONE PARTICULAR FACTOR CONTINUES TO INCREASE IN IMPORTANCE, NAMELY THE COMPETITION OF OTHER PRODUCTS AGAINST COAL .

IN SUCH A SITUATION, THE INTERESTS OF COAL CONSUMERS ARE SAFEGUARDED BY THE AVAILABILITY IF NECESSARY, OF SUBSTITUTE PRODUCTS; THIS MAKES IT NECESSARY TO CONSIDER THE GROWING IMPORTANCE OF THIS FACTOR IN ASSESSING COMPETITION AND DEMONSTRATES THE DESIRABILITY OF TAKING INTO ACCOUNT THE GENERAL AIMS OF ARTICLE 3 .

IT MUST ALSO BE OBSERVED THAT, UNLIKE THE EARLIER AUTHORIZATIONS CONCERNING ORGANIZATIONS FOR THE JOINT SELLING OF RUHR COAL, THE AUTHORIZATIONS IN QUESTION IN THIS CASE ARE CHARACTERIZED BY SUCH IMPORTANT CHANGES AS THE ELIMINATION OF THE ' JOINT OFFICE ' WHICH ALLOCATED ORDERS BETWEEN THE AGENCIES, OF THE ' STANDARDS BOARD ', OF THE JOINT FINANCIAL ARRANGEMENTS FOR COMPENSATION AND OF THE JOINT EXPORT ORGANIZATION AS WELL AS THE SUBSTANTIAL LIMITATION ON THE ROLES OF ' RUHRKOHLE-TREUHAND ' AND OF ' RUHRKOHLEN -BERATUNG '.

THEREFORE, TAKING INTO ACCOUNT THE SUPERVISION ESTABLISHED BY THE HIGH AUTHORITY OF EACH AGENCY, THE POINTS OF CONTACT EXISTING BETWEEN THE TWO AGENCIES ARE NOT LIKELY TO LEAD, WITH A SUFFICIENT DEGREE OF PROBABILITY, TO THE BELIEF THAT THEY ARE CAPABLE OF CREATING BETWEEN THEM AN EFFECTIVE UNIT OR TO CONFER ON THEM POWERS TO DETERMINE THE PRICES AND TO CONTROL OR LIMIT THE PRODUCTION OR MARKETING OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION IN THE COMMON MARKET .

IN ANY CASE, IF EXPERIENCE SHOWED THAT THIS IS THE CASE, THE HIGH AUTHORITY WOULD HAVE THE DUTY TO REVOKE THE AUTHORIZATIONS OR TO AMEND THEIR TERMS UNDER THE FOURTH SUBPARAGRAPH OF ARTICLE 65 ( 2 ).

HAVING REGARD TO THE ABOVE CONSIDERATIONS THERE IS NO REASON TO ASSERT THAT IN THE PRESENT SITUATION THE EXISTENCE OF TWO AGENCIES IN THE RUHR COAL BASIN IS, AS SUCH, MANIFESTLY CONTRARY TO THE PROVISIONS OF ARTICLE 65 ( 2 ) ( C ).

THE REASONS GIVEN IN THIS RESPECT IN THE RECITALS OF THE CONTESTED DECISIONS APPEAR SUCH AS TO JUSTIFY SUFFICIENTLY THE EXERCISE IN THIS CASE OF THE POWER RESERVED TO THE HIGH AUTHORITY IN THIS FIELD TO CARRY OUT A TECHNICAL ASSESSMENT .

THE APPLICANT MAINTAINS THAT BECAUSE OF THE SIZE OF EACH OF THE TWO AGENCIES AUTHORIZED THE EXISTENCE OF EACH ONE, EVEN IF CONSIDERED IN ISOLATION AND IRRESPECTIVE OF THE EXISTENCE OF THE OTHER, IS INCOMPATIBLE WITH ARTICLE 65 ( 2 ) ( C ).

THE SCOPE OF AN AGREEMENT ONLY ACQUIRES SIGNIFICANCE IN RELATION TO THE REQUIREMENTS OF THIS PROVISION IF IT IS CONSIDERED BOTH IN RELATION TO THE SIZE OF THE MARKET AND TO THE SIZE OF THOSE OTHER ECONOMIC UNITS OPERATING IN THIS MARKET WHICH ARE THE ACTUAL OR POTENTIAL COMPETITORS OF THE PARTIES TO THE AGREEMENT .

IN THIS INSTANCE EACH OF THE AGENCIES AUTHORIZED, WHILE SUPPLYING THE MARKET WITH A NOT INCONSIDERABLE PORTION OF THE TOTAL VOLUME OF COAL SOLD WITHIN THE COMMUNITY, IS FACED WITH OTHER ECONOMIC UNITS OF COMPARABLE STRENGTH OPERATING EITHER IN THE SAME COAL BASIN OR IN OTHER AREAS OF THE COMMON MARKET .

THUS, IT CANNOT BE ASSERTED, AFTER CONSIDERING THE SIZE OF EACH OF THE SELLING AGENCIES OF THE RUHR, THAT THE AUTHORIZED AGREEMENTS ARE CAPABLE OF GIVING TO EACH OF THE TWO GROUPS OF UNDERTAKINGS CONCERNED ' THE POWER TO DETERMINE THE PRICES, OR TO CONTROL OR RESTRICT THE PRODUCTION OR MARKETING, OF A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION WITHIN THE COMMON MARKET, OR TO SHIELD THEM AGAINST EFFECTIVE COMPETITION FROM OTHER UNDERTAKINGS WITHIN THE COMMON MARKET '.

THUS, THE GROUNDS OF COMPLAINT BASED ON ARTICLE 65 ( 2 ) ( C ) CONCERNING BOTH THE SUBMISSION OF INFRINGEMENT OF THE TREATY AND THE INSUFFICIENCY OF THE REASONS FOR THE DECISION, CANNOT BE MAINTAINED .

( C ) MISUSE OF POWERS

THE APPLICANT CONTENDS FURTHERMORE THAT THE ECONOMIC EVALUATIONS ON WHICH THE CONTESTED DECISIONS ARE BASED, ARE VITIATED BY MISUSE OF POWERS .

IT HAS, HOWEVER, FAILED TO DEVELOP THIS GROUND OF COMPLAINT AND TO PROVIDE EVIDENCE OF SUCH A MISUSE OF POWERS .

ON THE CONTRARY, IT APPEARS FROM ITS STATEMENT THAT IT HAS NOT DISTINGUISHED THE SUBMISSIONS OF MANIFEST FAILURE TO OBSERVE THE TREATY AND OF MISUSE OF POWERS, WITH THE RESULT THAT THESE TWO SUBMISSIONS OVERLAP AND IT SUFFICES TO STATE THAT DURING ITS CONSIDERATION OF THE GROUNDS OF COMPLAINT THE COURT FOUND NO EVIDENCE OF THE EXISTENCE OF ANY MISUSE OF POWERS BY THE HIGH AUTHORITY .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE PLEADINGS .

THE DEFENDANT HAS CONTENDED THAT THE APPLICANT SHOULD BE ORDERED TO PAY THE COSTS .

AS THE APPLICANT HAS FAILED IN ALL ITS MAIN SUBMISSIONS, IT IS RIGHT FOR IT TO BEAR ALL THE COSTS OF THE ACTION .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED SAVE AS HEREINAFTER MENTIONED;

2 . ANNULS THE WORDS ' OR ITS DEPARTMENTS ' IN ARTICLE 15 ( 3 ) OF THE CONTESTED DECISIONS;

3 . ORDERS THE APPLICANT TO PAY THE COSTS .