61959J0016

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1 . PROCEDURE - APPLICATION FOR ANNULMENT - DECISION OF THE HIGH AUTHORITY - LEGAL NATURE OF THE GROUNDS - ADMISSIBILITY

( ECSC TREATY, ARTICLES 14 AND 15 )

2 . PROCEDURE - APPLICATION FOR ANNULMENT - DECISION OF THE HIGH AUTHORITY - LEGAL EFFECTS - ADMISSIBILITY

( ECSC TREATY, ARTICLE 14 )

3 . PROCEDURE - APPLICATION FOR ANNULMENT - DECISION OF THE HIGH AUTHORITY - WITHDRAWAL OF CLAIM

( RULES OF PROCEDURE, ARTICLE 78 )

4 . COSTS - COSTS CAUSED UNREASONABLY

( RULES OF PROCEDURE, ARTICLE 69 )

1 . THE GROUNDS OF A DECISION LIMITED TO STRESSING THE OBJECTIVES TO BE ATTAINED BY THE HIGH AUTHORITY TO ENSURE COMPLIANCE WITH THE TREATY BUT EXPRESSLY REFRAINING FROM LAYING DOWN PRECISE RULES WHICH WILL HAVE TO BE SETTLED IN THE FUTURE, DO NOT CONSTITUTE A DECISION BUT SIMPLY A NOTICE NOT BINDING THE HIGH AUTHORITY IN THE FUTURE AND NOT EXCLUDING THE POSSIBILITY OF ITS CHANGING ITS VIEW .

2 . WHERE A DECISION CONTAINS NO PROVISIONS HAVING LEGAL EFFECTS OF A LEGISLATIVE OR INDIVIDUAL NATURE BUT IS SIMPLY AN INTERNAL MEASURE TAKEN BY THE HIGH AUTHORITY, THE APPLICANT CANNOT BE ADVERSELY AFFECTED .

3 . THE CLAIMS OF THE APPLICANT FOR THE ANNULMENT OF A DECISION WHICH HAS NOT BEEN 'REVOKED WITH RETROACTIVE EFFECT' BUT SIMPLY 'REVOKED' ARE VALID IN RESPECT OF THE PERIOD BETWEEN THE ENTRY INTO FORCE OF THE DECISION AND ITS REVOCATION; THEY HAVE NOT 'LOST THEIR PURPOSE'; BUT IF THE APPLICANT SUBSEQUENTLY STATES TO THE COURT THAT HE CONSIDERS THEM TO HAVE DONE SO, THIS STATEMENT IS IN THE NATURE OF A WITHDRAWAL OF CLAIM .

4 . IF THE WORDING OF THE GROUNDS OF A DECISION WRONGLY GIVES THE IMPRESSION THAT A DEFINITE VIEW HAS ALREADY BEEN TAKEN AND ACCORDINGLY THAT THERE IS A TRUE DECISION JUSTIFYING AN ACTION BEING BROUGHT AND UNREASONABLY CAUSING COSTS TO BE INCURRED, THE COSTS ARE TO BE BORNE IN PART BY THE DEFENDANT .

IN JOINED CASES

1 . GEITLING RUHRKOHLEN - VERKAUFSGESELLSCHAFT MBH HAVING ITS REGISTERED OFFICE IN ESSEN ( CASE 16/59 ),

2 . MAUSEGATT RUHRKOHLEN - VERKAUFSGESELLSCHAFT MBH HAVING ITS REGISTERED OFFICE IN ESSEN ( CASE 17/59 )

3 . PRASIDENT RUHRKOHLEN - VERKAUFSGESELLSCHAFT MBH HAVING ITS REGISTERED OFFICE IN ESSEN ( CASE 18/59 ),

EACH REPRESENTED BY ITS MANAGER,

4 . THE MINING COMPANIES OF THE RUHR BASIN, MEMBERS OF THE AFORESAID SELLING AGENCES AND REPRESENTED BY THEM,

ASSISTED BY HANS HENGELER AND DR WERNER VON SIMSON, BOTH ADVOCATES AT THE DUSSELDORF BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF DR WERNER VON SIMSON, AT BERTRANGE, APPLICANT

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY,

REPRESENTED BY ITS LEGAL ADVISER, ERICH ZIMMERMANN, ACTING AS AGENT, ASSISTED BY PROFESSOR KONRAD DUDEN AND HEINZ ROWEDDER, BOTH ADVOCATES AT THE MANNHEIM BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF CERTAIN PROVISIONS OF :

( A ) DECISION N . 17/59 OF THE HIGH AUTHORITY DATED 18 FEBRUARY 1959 ON THE EXTENSION OF THE AUTHORIZATIONS FOR THE SALES ORGANIZATIONS OF THE RUHR BASIN PUBLISHED IN THE JOURNAL OFFICIEL DES COMMUNAUTES EUROPEENNES, N . 14 OF 7 MARCH 1959;

( B ) THE LETTER OF 21 FEBRUARY 1959 FROM THE PRESIDENT OF THE HIGH AUTHORITY ADDRESSED TO THE MANAGEMENT OF THE APPLICANT SELLING AGENCIES ON THE EXTENSION OF THE AUTHORIZATIONS FOR THE MARKETING ORGANIZATIONS OF THE RUHR BASIN,

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ADMISSIBILITY

CLAIMS 1 AND 2 ARE DIRECTED AGAINST THE SEVENTH RECITAL TO DECISION N . 17/59 OF THE HIGH AUTHORITY ( JO OF 7.3.1959, P . 280, SECOND COLUMN, FOURTH PARAGRAPH ) AND POINT 1 OF THE LETTER OF THE HIGH AUTHORITY OF 21 FEBRUARY 1959 . COMPLAINT IS MADE THAT THE DEFENDANT DECIDED IN ADVANCE THAT THE COMMON ESTABLISHMENTS OF THE SELLING AGENCIES OF THE RUHR BASIN COULD NOT BE AUTHORIZED BEYOND 31 MARCH 1960 NOR THE SELLING AGENCIES THEMSELVES BEYOND 31 MARCH 1961, ALTHOUGH IT HAD NOT HAD APPLICATIONS FOR AUTHORIZATION IN RESPECT OF THIS AND AGREEMENT ON THIS SUBJECT HAD NOT BEEN REACHED .

P . 24

CLAIMS 3 TO 6 ARE DIRECTED AGAINST THE FIFTH RECITAL TO DECISION N . 17/59 ( JO OF 7.3.1959, P . 280, FIRST COLUMN, FIFTH AND SIXTH PARAGRAPHS AND SECOND COLUMN, FIRST AND SECOND PARAGRAPHS ) AND POINT 2 ( A ), ( B ) AND ( C ) OF THE LETTER OF THE HIGH AUTHORITY OF 21 FEBRUARY 1959 IN SO FAR AS, WITHOUT ANY AGREEMENT HAVING BEEN NEEDED, CONDITIONS WERE LAID DOWN IN ADVANCE IN RESPECT OF AUTHORIZATIONS OF FUTURE ORGANIZATIONS FOR THE MARKETING OF RUHR COAL .

CLAIM 7 IS FOR THE ANNULMENT OF THE SECOND SENTENCE OF ARTICLE 14 ( 2 ) OF DECISION N . 17/59 WHEREBY THE HIGH AUTHORITY WILL INSTRUCT OFFICIALS TO INFORM IT WHETHER AND TO WHAT EXTENT REVOCATION OR AMENDMENT OF AN AUTHORIZATION PROLONGED BY THE DECISION IS NECESSARY AND ALSO TO MAKE INQUIRIES ABOUT THE DETAILS TO BE TAKEN INTO ACCOUNT IN A RESTRUCTURING OF THE MARKETING OF RUHR COAL .

THE OBJECTIVE OF CLAIM 8 WAS THE ANNULMENT OF ARTICLE 11 OF DECISION N . 17/59 WHEREBY THE MORE EXTENSIVE APPLICATIONS OF THE MINING COMPANIES CONCERNED RELATING TO THE TRADING REGULATIONS WERE REJECTED . THE PARTIES ARE UNANIMOUSLY AGREED HOWEVER THAT THIS CLAIM HAS IN THE MEANTIME LOST ITS PURPOSE AS THE CONTESTED DECISION HAS IN THIS RESPECT BEEN REPLACED BY DECISION N . 36/59 OF 17 JUNE 1959 SINCE THE APPLICATION WAS BROUGHT .

ADMISSIBILITY OF CLAIMS 1 TO 6

ON 11 AND 12 DECEMBER 1958 THE MINING UNDERTAKINGS AFFILIATED TO THE SELLING AGENCIES APPLIED FOR THE PREVIOUS AUTHORIZATION TO BE EXTENDED BY A YEAR, THAT IS UNTIL 31 MARCH 1960 . THE HIGH AUTHORITY DEALT WITH THESE APPLICATIONS BY DECISION N . 17/59 OF 18 FEBRUARY 1959 WHICH WAS PUBLISHED IN THE JOURNAL OFFICIEL OF THE EUROPEAN COMMUNITIES OF 7 MARCH 1959 AND NOTIFIED TO EACH OF THE THREE SELLING AGENCIES BY LETTER OF 21 FEBRUARY 1959 .

ARTICLES 1 AND 12 OF DECISION N . 17/59 GRANT THE PROLONGATION OF THE AUTHORIZATION FOR THE PERIOD REQUESTED . ARTICLES 2 TO 10 HOWEVER AMEND THE CONDITIONS FOR AUTHORIZATION OF LONG-TERM DELIVERY CONTRACTS AND THE TRADING RULES AND PRESCRIBE NEW CONDITIONS, APPLICABLE AT ONCE, WITH WHICH THE AGREEMENTS MUST COMPLY .

IN GIVING THE ABOVEMENTIONED GROUNDS FOR ITS DECISION THE HIGH AUTHORITY HAS SIMPLY SET OUT WHY THE SELLING AGENCIES WERE AUTHORIZED FOR THE PERIOD FOR WHICH APPLICATION WAS MADE, ALTHOUGH IT TAKES THE VIEW THAT THE WORKING METHOD OF THESE ORGANIZATIONS DOES NOT ACCORD WITH THE REQUIREMENTS OF THE TREATY AND IN PARTICULAR WITH ARTICLE 65 .

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THE FIFTH RECITAL IS INTENDED TO EXPLAIN HOW THE PRESENT WORKING OF THE ORGANIZATION FOR THE MARKETING OF RUHR COAL INFRINGES THE PROVISIONS OF THE TREATY AND TO INDICATE WHAT AMENDMENTS ARE REQUIRED TO BRING THESE ORGANIZATIONS WITHIN THE PROVISIONS OF ARTICLE 65 . ON THE OTHER HAND, THE HIGH AUTHORITY OBVIOUSLY HAD NO INTENTION OF LAYING DOWN IN ADVANCE THE CONDITIONS FOR A FUTURE AUTHORIZATION .

THIS INTERPRETATION IS CONFIRMED BY THE WORDING OF THE FIFTH RECITAL WHICH SIMPLY STRESSES THE OBJECTIVES WHICH MUST BE ATTAINED TO COMPLY WITH THE PROVISIONS OF ARTICLE 65, BUT THE DEFENDANT EXPRESSLY RESERVES TO ITSELF THE FORMULATION OF THE PRECISE RULES TO BE ADOPTED IN THE FUTURE 'THE HIGH AUTHORITY WILL SEE TO IT BY APPROPRIATE PROVISIONS ...; MARKETING IS TO BE MADE AS EFFECTIVE AS POSSIBLE ...; THE HIGH AUTHORITY WILL AUTHORIZE...SUCH PROCEDURES AND ARRANGEMENTS AS IT SHALL DEEM APPROPRIATE ').

ALTHOUGH THE SAME CANNOT BE SAID WITH SUCH CERTAINTY OF THE CONCLUDING PART OF THE SEVENTH RECITAL, NEVERTHELESS THIS INTERPRETATION IS JUSTIFIED IF ACCOUNT IS TAKEN OF THE FACT THAT THE HIGH AUTHORITY WAS OBVIOUSLY GUIDED BY THE GENERAL INTENTION TO INDICATE SIMPLY THE DEFECTS OF THE EARLIER SYSTEM AND AT THE SAME TIME TO POINT OUT TO THE PARTIES HOW THE EXISTING MARKETING SYSTEM HAD TO BE RESTRUCTURED .

THE CONDITIONS SET OUT IN THE FIFTH AND AT THE END OF THE SEVENTH RECITALS ARE NOT A DECISION BUT SIMPLY A NOTICE WHICH DOES NOT BIND THE HIGH AUTHORITY FOR THE FUTURE AND IN NO WAY RULES OUT ITS AMENDING ITS VIEWPOINT SET OUT ABOVE AFTER THOROUGH EXAMINATION OF SUBSEQUENT APPLICATIONS BY THE PARTIES; MOREOVER IN SUCH AN EVENT IT WOULD BE UNDER AN OBLIGATION TO MAKE SUCH AN EXAMINATION .

THE APPLICANTS HAVE NOT GONE INTO THE CORRECTNESS OF THE FINDINGS OF FACT CONTAINED IN THE RECITALS OR INTO THE RELEVANCE OF THE INTERPRETATION OF THE TREATY; THEY HAVE SIMPLY CHALLENGED THE ABOVEMENTIONED RECITALS MAINTAINING THAT THEY REPRESENT AN ADMINISTRATIVE ACT WHICH CONTAINS A PREMATURE DECISION SEPARABLE FROM THE AUTHORIZATION .

AS APPEARS FROM THE ABOVE OBSERVATIONS THESE OBJECTIONS ARE UNFOUNDED SINCE THE SAID GROUNDS REPRESENT A MATERIAL PART OF THE GROUNDS FOR THE AUTHORIZATION .

MOREOVER NEITHER THESE GROUNDS THEMSELVES NOR THE CONTESTED PARTS OF THE LETTER OF NOTIFICATION OF 21 FEBRUARY 1959 ARE SUCH AS TO AFFECT THE APPLICANTS ADVERSELY BECAUSE THEY ARE NOT BINDING ON THE ADDRESSES OF THE DECISION AND ON THE OTHER HAND THEY DO NOT BIND THE HIGH AUTHORITY ON EXERCISING IN THE FUTURE ITS POWER OF AUTHORIZATION .

IN VIEW OF THE ABOVE CLAIMS 1 TO 6 ARE INADMISSIBLE .

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ADMISSIBILITY OF CLAIM 7

THE SECOND SENTENCE OF ARTICLE 14 ( 2 ) OF DECISION N . 17/59 CONTAINS NO PROVISIONS GIVING RISE TO LEGAL EFFECTS OF A LEGISLATIVE OR INDIVIDUAL NATURE . IT IS SIMPLY AN INTERNAL MEASURE WHICH THE HIGH AUTHORITY HAS TAKEN ON THE BASIS OF ITS POWER UNDER ARTICLE 47 OF THE TREATY AND OF WHICH IT HAS NOTIFIED THE PARTIES .

IN SO FAR AS THIS INTERNAL DIRECTION DOES NOT LEAD TO IMPLEMENTATION PROVISIONS WHICH CONFLICT WITH ARTICLE 47 IT CANNOT AFFECT THE APPLICANTS ADVERSELY .

CLAIM 7 IS ACCORDINGLY ALSO INADMISSIBLE .

THE POSITION OF THE PARTIES WITH REGARD TO CLAIM 8

IT IS QUESTIONABLE WHETHER FROM THE LEGAL POINT OF VIEW CLAIM 8 HAS IN FACT 'LOST ITS PURPOSE' SINCE THE CONTESTED DECISION HAS NOT BEEN 'REVOKED WITH RETROACTIVE EFFECT' IN RESPECT OF THE TRADING RULES BUT HAS BEEN 'REVOKED' WITH EFFECT ONLY 1 JULY 1959; THUS ARTICLE 11 OF DECISION N . 17/59 REMAINS IN FORCE FOR THE PERIOD FROM 1 APRIL TO 30 JUNE 1959 .

THE DECLARATIONS OF THE APPLICANTS ON THIS MATTER ARE THEREFORE TO BE INTERPRETED AS A WITHDRAWAL OF THE CLAIM OF WHICH THE COURT TAKES NOTE .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . IN THE PRESENT CASE THE APPLICANTS HAVE FAILED IN RESPECT OF ADMISSIBILITY .

NEVERTHELESS THE DRAFTING OF THE SEVENTH RECITAL TO DECISION N . 17/59 IN SUCH IMPERATIVE TERMS COULD WELL GIVE THE IMPRESSION THAT IT WAS ALREADY DEFINITIVE AND THUS A GENUINE DECISION . THIS FACT COULD HAVE LED THE APPLICANTS TO BRING THE PRESENT ACTION THUS INVOLVING THEM IN UNNECESSARY COSTS . AS A RESULT THE COSTS OF THE ACTION SHOULD IN PART BE BORNE BY THE DEFENDANT .

FURTHER THE DEFENDANT STATED IN THE COURSE OF THE ORAL PROCEDURE THAT IT IS PREPARED TO MEET THE COSTS INVOLVED IN CLAIM 8 . THE AGREEMENT ANNOUNCED BY THE PARTIES IN THE COURSE OF THE PROCEEDINGS THAT THE DEFENDANT WOULD MEET THE COSTS ATTRIBUTABLE TO CLAIM 8 SHOULD THEREFORE BE NOTED AND TAKEN INTO ACCOUNT IN APPORTIONING THE COSTS IN THE MANNER MENTIONED BELOW .

THE APPLICANTS FAILED IN AN INTERIM APPLICATION IN THE ACTION; NEVERTHELESS A SIMILAR APPORTIONMENT TO THAT MENTIONED ABOVE OF THE COSTS OF THE INTERIM APPLICATION APPEARS APPROPRIATE .

THE COURT

HEREBY :

1 . DISMISSES CLAIMS 1 TO 7 AS INADMISSIBLE;

2 . TAKES NOTE OF THE WITHDRAWAL OF CLAIM 8;

3 . TAKES NOTE OF THE AGREEMENT OF THE PARTIES THAT THE DEFENDANT SHOULD BEAR THE COSTS ATTRIBUTABLE TO CLAIM 8;

4 . ORDERS THAT COSTS OF THE ACTION INCLUDING THE COSTS OF THE INTERIM APPLICATION SHALL BE BORNE AS TO TWO-THIRDS BY THE APPLICANTS AND AS TO ONE THIRD BY THE DEFENDANT .