(b)

measures or practices which discriminate between producers, between purchasers or between consumers, especially in prices and delivery terms or transport rates and conditions…;

(c)

subsidies or aids granted by States, or special charges imposed by States, in any form whatsoever…’

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Contrary to the view which the Netherlands Government appears to hold, I do not consider that I can base my opinion merely upon the latter judgment and can set aside the former: each one deals with a different situation and meets the various arguments put forward at that period. An interpretation of the provision in dispute which may be applied to a consideration of the contested decision must be drawn from all your judgments, given in the light of very different factual situations. Having said that, I shall consider first whether, contrary to the view held by the applicant, the three conditions laid down by the judgment in Joined Cases 27, 28 and 29/58 to which I have referred are satisfied in this instance.

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First, the applicant maintains that the change which took place in the conditions of competition to the detriment of the undertakings of the Saarland as a result of the canalization of the Main, the Neckar and the Moselle cannot be temporary but is necessarily of a permanent nature. It may be replied here that this argument confuses the fact of the canalization with the difficulties which result therefrom for the undertakings of the Saarland, which may themselves be of a temporary nature. The present disadvantages may disappear, either if the Saar-Palatinate canal is actually cut, or if the undertakings succeed in adjusting themselves to the new situation or in finding other markets. Moreover, to interpret the phrase which you used in 1960 too narrowly would no doubt be to strain its meaning. Without putting too much emphasis on this point, it may be added that as regards the agreements given in favour of the undertakings situated close to the interzonal frontier, you took into account a situation which, when judgment was given, had lasted for 15 years and has not changed since.

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The same reply may be made to the second of the applicant's arguments. In order to justify this argument it is insufficient to claim that the improvement in the transport infrastructure carried out by public works is one of the constant preoccupations of public authorities in all the Member States (the Government of the Netherlands is perhaps giving too much credit to the other States when it assumes that they all have this preoccupation to the same degree). Such a statement is too general and places the normal work of development upon which undertakings may count on the same plane as other, more expensive and more important projects which, as long as no formal decision has been taken, may be regarded as unforeseeable. The canalization of the Moselle, for example, appeared for a long time to be incapable of being justified from a purely commercial point of view and it was necessary to draw up an agreement between the three Member States in order to decide on its construction on grounds which were not purely economic.

(a)

First, as is shown in the preamble to the decision, the High Authority has always maintained that the social problem which would arise if production in the coal and steel industry of the Saarland were sharply reduced was one of the fundamental reasons for the decision. It points out that among the objectives set out in the second paragraph of Article 2 of the Treaty are social objectives which are particularly important today by virtue of the difficulties which these sectors of industry are facing throughout the Community.

The applicant Government recalls the terms of the second paragraph of Article 2 of the Treaty which are as follows: ‘The Community shall progressively bring about conditions which will of themselves ensure the most rational distribution of production at the highest possible level of productivity, while safeguarding continuity of employment and taking are not to provoke fundamental and persistent disturbances in the economies of Member States’. At the hearing the applicant referred to your judgments of 1960 and maintained that, as the most important objective was the most rational distribution of production by means of the free play of economic forces, any unfavourable repercussions such as disturbances in the continuity of employment were, in the light of your case-law, a matter of ‘secondary importance’ from a Community point of view, and for this reason clearly could never justify the introduction of special rates and conditions.

Unless I have misread your judgments, the qualification ‘secondary’ is not found therein. It is true — as is shown by the very passage to which I have referred — that the fundamental aim of the Common Market is a rational distribution of production. As is stated in the judgments in Barbara Erzbergbau AG and Givors, the authors of the Treaty envisaged that this policy might render it necessary for certain undertakings to cease their operations, and this is also shown by the Convention on the Transitional Provisions. You added that such closures might even be necessary to enable the Common Market to achieve its objectives, since the disappearance of undertakings which could only continue in existence by means of constant and massive subsidies strengthened its resistance to crises.

These statements must be considered in the context of the actions with which you were dealing at that time and of the arguments developed before you. What did they concern? Undertakings which before the setting up of the Common Market only subsisted with the aid of support tariffs and which expected to continue this system under the Treaty. Such an expectation could clearly not be fulfilled and the purpose of the Convention on the Transitional Provisions to which your judgments refer was to enable a situation which was ex hypothesi desperate to be dealt with without too sudden changes.

This in no way implies, however, that the social objectives referred to in Article 2 are always and in all circumstances of secondary importance and can never be decisive when a decision is to be made. The rule to be applied here is that accepted in those judgments which states that, as the aims of Articles 2 and 3 cannot be all wholly realized at the same time, ‘to ensure the legality of the decision taken by the High Authority in this field, it is sufficient for these objectives to have been reasonably observed in the question and to have been pursued for the purposes of the common interest referred to in the first paragraph of Article 3’. In certain given situations, therefore, I consider the possibility of widespread unemployment to be sufficient to justify the agreement given to special rates and conditions, at least when the other conditions on which its legality depends are satisfied. Such a measure cannot, however, be employed to prolong indefinitely the existence of undertakings which are no longer viable,

(b)

The High Authority is further criticized on the basis of one of the recitals in the preamble to the contested decision, which refers in particular to the industrial structure of the Saarland in which the production of coal and steel plays a predominant role in the economy of the country, the inability of the regional labour force to adapt itself and other factors which, by reason of their structural and therefore permanent nature, might perhaps justify certain aid in other fields, but not recourse to special tariff measures.

If these factors constitute the existing context in which the High Authority was obliged to take action, it is sufficient to re-read the summary of the statement of reasons for the decision to see that these factors do not constitute the fundamental reason for it and that the decision itself does not claim to remove the handicap which these factors may constitute for the undertakings of the Saarland. The change in the conditions of competition which resulted from the canalization of the Moselle worsened a situation which was already causing concern, but, to the extent to which it may be regarded as temporary, it is this worsening situation alone which the High Authority attempts to remedy by means of the contested measure.

It is true that the applicant refuses to regard the canalization of the rivers and waterways as a fundamental cause, or even as an important aspect, of the difficult situation in the Saarland. In support of its argument it referred at great length at the hearing to a recent work by Professor Heinz Müller, entitled ‘Probleme der Wirtschaftsstruktur des Saarlandes’, from which it quoted certain information regarding the unfavourable position of the coal and steel industry of this Land. As regards transport, the applicant quoted the information that present rail tariffs for both coal and steel give the Saarland an advantage over the Ruhr with regard to the market in Southern Germany. I have also read this well-documented work which, although it appears in a collection published under the auspices of the High Authority, was produced by an independent expert and its content is therefore binding only upon him; I did not draw the same conclusions from it as did the applicant. Although this work refers to the advantage of the Saarland as regards rail tariffs for deliveries to Southern Germany, it also mentions the advantage of the Ruhr as regards transport by inland waterways.

(c)

The applicant adds that the structural nature of the factors on the basis of which the High Authority gave its agreement is clearly shown by Article 4(2) of the contested decision which does not fix in advance the duration of the measures of support. At the most it provides for a reservation of the right to amend or withdraw those measures if the factors on which they are based should also change. Thus, contrary to the principle laid down by the Court, according to which the special difficulties which may give rise to the application of the fourth paragraph of Article 70 must be of temporary nature, the High Authority is binding itself for an indefinite period.

However, the conclusions which the applicant draws cannot be deduced from the fact that this decision refers to no time-limit which is already fixed. This type of clause was adopted at the suggestion of the European Parliament. It is of a temporary nature in that it recalls that the decision is based upon a series of specific facts, set out in detail in the recitals, and that it may be called in question either by the High Authority or at the request of certain interested parties should the factors on which it is based disappear. I should add further that the decision taken in 1950 regarding the support tariff in favour of the Maximilianshütte confirmed by your judgment in Joined Cases 3 to 18,25 and 26/58 was drawn up in rather similar terms.

(d)

The final complaint concerns the agreement which was given to the rates and conditions in dispute without any individual consideration of the operating conditions of each of the undertakings of the Saarland which benefit therefrom, as required both by the fourth paragraph of Article 70 and the application which you have made of this Article. This complaint only represents one aspect of the more general problem of the validity of the decision. In the preamble thereto, the High Authority explained its attitude by the fact that the reasons for which the special rates and conditions were introduced concerned all the undertakings of the Saarland governed by the Treaty; as the advantage obtained by the competitors of the undertakings of the Saarland as a result of the improvement in the infrastructure is of a general nature, and did not affect the competitive positions of the undertakings concerned as compared with one another, the same must apply to the advantage obtained by the undertakings of the Saarland.

At this point we are clearly very tar from the principles with which you have to deal and to which the applicant refers, but if, as I have suggested, you accept as the point of departure the change in the competitive position resulting from the artificial modification in the infrastructure, it follows logically that only a general consideration of the advantages and disadvantages of the situation is possible. If, therefore, you accept my opinion you will set aside this complaint.