Keywords
Summary

Keywords

1. AMENDMENT OF THE ECSC TREATY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 - MODIFICATION OF THE POWERS CONFERRED UPON THE HIGH AUTHORITY BY ARTICLE 65 (2) - LIMITS

2. AMENDMENT OF THE ECSC TREATY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 - SYSTEM OF PRELIMINARY CONTROL PROVIDED FOR BY ARTICLE 65 (2) (C) - REPLACEMENT BY A SYSTEM OF SUBSEQUENT CHECKS - CONFERRING OF A NEW POWER - INADMISSIBILITY

3. AMENDMENT OF THE ECSC TREATY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 - ARTICLE 65 AS AN IMPLEMENTING PROVISION OF ARTICLE 4 (D) - DEROGATION BY AMENDMENT FROM THE LIMITS PRESCRIBED BY ARTICLE 65 (2) (C) - INADMISSIBLE INFRINGEMENT OF A BASIC PROVISIO

Summary

1. IN PRINCIPLE, ARTICLE 95 DOES NOT PREVENT THE RULES RELATING TO THE POWERS CONFERRED BY ARTICLE 65 UPON THE HIGH AUTHORITY FROM BEING ADAPTED BY MEANS OF AN AMENDMENT OF ARTICLE 65 (2) WITH A VIEW TO GIVING THE HIGH AUTHORITY POWER TO AUTHORIZE EITHER AGREEMENTS OF A DIFFERENT NATURE BUT HAVING THE SAME OBJECTIVES AS THOSE PROVIDED FOR IN THE PRESENT PARAGRAPH OR AGREEMENTS OF THE SAME NATURE AS BUT HAVING A DIFFERENT OBJECTIVE FROM THOSE PROVIDED FOR IN THE PARAGRAPH PRESENTLY IN FORCE OR, FINALLY, AGREEMENTS DIFFERING BOTH IN NATURE AND OBJECTIVE.

IT IS HOWEVER ESSENTIAL THAT THE AMENDED WORDING SHOULD STATE THE NATURE OF THE AGREEMENTS WHICH MAY BE AUTHORIZED AND DEFINE CLEARLY THE AIM OF SUCH AGREEMENTS BECAUSE OTHERWISE IT WOULD CONSTITUTE NOT THE ADAPTATION OF THE EXERCISE OF A POWER ALREADY CONFERRED UPON THE HIGH AUTHORITY WITHIN THE LIMITS OF THE DEROGATIONS ALLOWED BY ARTICLE 65 (2) BUT THE GRANT OF A POWER WITHOUT DEFINED LIMITS AND THUS OF SUCH A VAST AND INDEFINITE EXTENSION OF ITS EXISTING POWERS AS TO AMOUNT TO AN ALTERATION NOT ONLY IN THE EXTENT BUT IN THE NATURE OF THOSE POWERS, IN OTHER WORDS, TO A NEW POWER.

2. SINCE ARTICLE 65 (2) (C) PROVIDES FOR A SYSTEM OF PRELIMINARY EXAMINATION WITH REGARD TO THE AUTHORIZATION OF SPECIALIZATION AGREEMENTS OR JOINT-BUYING OR JOINT-SELLING AGREEMENTS THIS SYSTEM CANNOT BE REPLACED IN THE COURSE OF AN AMENDMENT WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95 BY A SYSTEM OF CHECKING THE FACTS AND OF SUBSEQUENT DIRECT INTERVENTION. SUCH AN AMENDMENT DOES NOT CONSTITUTE A MERE ADAPTATION OF THE HIGH AUTHORITY'S POWERS BUT THE GRANT OF A NEW POWER.

3. THE DEROGATING PROVISION OF ARTICLE 65 (2) LAYS DOWN AN OBJECTIVE CRITERION TO THE EFFECT THAT THE AGREEMENT CONCERNS " A SUBSTANTIAL PART OF THE PRODUCTS IN QUESTION WITHIN THE COMMON MARKET ". THIS CRITERION MAKES IT POSSIBLE TO ASSESS THE CASES IN WHICH AN AGREEMENT IS IN ANY CASE INCOMPATIBLE WITH THE PROHIBITION LAID DOWN BY ARTICLE 4 (D) AND BY ARTICLE 65 (1 ), SINCE ARTICLE 4 (D) CONSTITUTES A PRINCIPLE OF STRICT APPLICATION THE IMPLEMENTING PROVISIONS OF WHICH ARE CONTAINED IN ARTICLE 65.

IN THOSE CIRCUMSTANCES TO MAKE PROVISION, BY AN AMENDMENT WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95, FOR DEROGATION FROM THE LIMITS PRESCRIBED IN ARTICLE 65 (2) (C) CONSTITUTES AN INFRINGEMENT OF THE PROHIBITION LAID DOWN BY ARTICLE 4 (D )