JUDGMENT OF 23.4.1956 — JOINED CASES 8 AND 10/54 UTILISATEURS DE CHARBON LUXEMBOURG V HIGH AUTHORITY

In Joined Cases 8 and 10/54

THE COURT composed of: M. Pilotti, President, J. Rueff and O. Riese (Presidents of Chambers), P. J. S. Serrarens, L. Delvaux, Ch. L. Hammes and A. van Kleffens, Judges, Advocate General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

1 — Facts and procedure

2 — Submissions and arguments of the parties

LAW

THE COURT

1. Admissibility of Applications 8/54 and 10/54

A — Capacity of the applicant to raise the matter with the High Authority in application of Article 33 of the Treaty

1 —. Facts and procedure

1. that the activities of the Office Commercial du Ravitaillement, as the sole importer of coal into the Grand Duchy of Luxembourg, should be brought to an end;

2. that the Caisse de Compensation attached to the Office Commercial du Ravitaillement by the Ministerial Order of 8 March 1954 should be prohibited and abolished;

1. A copy, certified by the applicant, of the letter which it had sent to the President of the High Authority on 20 July 1954;

2. A copy of the Decree of the Grand Duke of 30 April 1945 and of the Ministerial Order of 8 March 1954.

1. that the activities of the Office Commercial du Ravitaillement, as sole importer of coal into the Grand Duchy of Luxembourg, should be brought to an end;

2. that the Caisse de Compensation attached to the Office Commercial du Ravitaillement by the Ministerial Order of 8 March 1954 should be prohibited and abolished;

A. Principally:

B. In the alternative:

C. In any case, order the applicant to bear the costs, fees and expenses.

I. A. Declare that the applicant has sufficient capacity to institute proceedings before the Court of Justice on the basis of Article 35 of the Treaty and consequently declare that the application lodged by the applicant Association is admissible; B. Declare that the application containing two heads of claim, which are moreover related, is formally admissible;

II. A. Take note that the applicant, without prejudice to the statement of reasons upon which the decision adopted by the High Authority on 7 January 1955 concerning the Office Commercial du Ravitaillement was based, considers that as a result of that decision its application has become purposeless within the limits settled by the decision; and order the defendant to bear the costs relating thereto; B. (a) Declare that the application originally directed against the implied decision of refusal resulting from the silence of the High Authority stands in spite of the letter of the High Authority of 27 November 1954 which has no relevance to the dispute; take note that the applicant has maintained and maintains without amendment both its original conclusions and the arguments in support thereof; declare that the question of the admissibility of any application lodged by the applicant against an express decision of refusal of the High Authority does not arise in these proceedings; declare therefore that the application is admissible to the extent to which it has not been settled by the above-mentioned decision of the High Authority; (b) Declare that the application is well founded and accordingly; 1. Declare that the Caisse de Compensation established by the Ministerial Order of 8 March 1954 constitutes a special charge contrary to Article 4 (c) of the Treaty; 2. Declare that the Caisse de Compensation established by the Ministerial Order of 8 March 1954 constitutes discrimination contrary to Article 4 (b) of the Treaty; Declare that the operation of the Caisse de Compensation is closely linked to the existence of the monopoly of the Office Commercial du Ravitaillement on imports and that the abolition of the latter must of necessity involve the abolition of the Caisse de Compensation; Declare that the levy, which amounts to an increase in the price of solid fuel for nondomestic use, is in breach of the decisions adopted by the High Authority on the basis of Article 63 (2) (a) of the Treaty, that is, Decisions Nos 4/53 of 12 February 1953, 6/53 of 13 March 1953,15/54 of 19 March 1954, 19/54 of 20 March 1954 and 20/54 of 20 March 1954; 3. Declare in any case that the operation of the Caisse de Compensation established by the Ministerial Order of 8 March 1954 infringes the most fundamental principles of the Common Market as established by the Treaty;

1. The issue of the Decree of the Grand Duke of 2 April 1955 amending the system of import tax and turnover tax on solid mineral fuels;

2. The issue of the Ministerial Order of 12 September 1955 repealing with effect from 2 April 1955 the Ministerial Order of 8 March 1954 concerning the operation, so far as solid fuel is concerned, of the Caisse de Compensation for solid fuels attached to the Office Commercial du Ravitaillement;

3. The issue of the Ministerial Order of 30 September 1955 repealing the Ministerial Order of 8 March 1954 on the importation of solid fuels and declaring the importation thereof to be free, the Government reserving to itself certain rights of intervention. That order was to take effect from 1 October 1955;

4. The lodging, a few hours before the lodging of the rejoinder, of an application to intervene on the part of the Luxembourg Government, claiming that:

2 —. Submissions and arguments of the parties

1. As regards admissibility the High Authority first puts forward the argument that the applicant Association lacks capacity. It considers that the latter is not a producer undertaking under Article 80 or an association of undertakings under Article 48. Even if it were necessary to regard it as an undertaking or a distribution agency within the meaning of Article 80 it would only be able to institute proceedings in special cases concerning the matters laid down in Articles 65 and 66 of the Treaty. An application based on Article 35 (or, moreover, based on Article 33) must be held to be inadmissible for lack of capacity. Finally, the applicant Association could not counter this argument by claiming that the Groupement des Industries Sidérurgiques Luxembourgeoises is one of its members. In fact, the applicant Association has a legal personality distinct from that of its members.

2. As regards the plea of infringement of the Treaty, the applicant states that by maintaining the Office Commercial du Ravitaillement and the Caisse de Compensation the Luxembourg Government has failed to fulfil the obligation on Member States under Article 86 of the Treaty and that the High Authority should have recorded that failure in application of Article 88.

3. So far as the submission alleging the infringement of essential procedural requirements is concerned, the applicant claims in the alternative…that the implied decision of refusal is vitiated by nullity for infringement of essential procedural requirements, inasmuch as it is not based on any express ground. The express refusal of the defendant occurred before the defendant had lodged its statement of defence and the High Authority did not therefore formally give its views on that submission; it merely pointed out that the decision requested by the applicant was now express and states in detail the reasons on which it is based, since the High Authority clearly explained in its letter of 27 November 1954…the legal reasons why it was unable to accept the point of view of the Association.

1. Admissibility of Applications 8/54 and 10/54

A —. Capacity of the applicant to raise the matter with the High Authority in application of Article 33 of the Treaty

(a). To defend and represent the interests of coal consumers within the framework of the objectives pursued by the European Coal and Steel Community;

(b). To give opinions on questions of interest to coal consumers which any organ of the European Coal and Steel Community or any other authority may submit to it.

Upon reading the pleadings; Upon hearing the parties to the main action and the intervener; Upon hearing the opinion of the Advocate General; Having regard to Articles 4, 33, 35, 48, 67, 80, 86 and 88 of the ECSC Treaty; Having regard to the Protocol on the Statute of the Court of Justice of the ECSC; Having regard to the Rules of Procedure of the Court of Justice and the Rules of the Court on costs; Taking note of the applicant's statement that, without prejudice to the statement of the reasons upon which the decision taken by the High Authority on 7 January 1955 concerning the Office Commercial du Ravitaillement was based, it considers that as a result of that decision its application has become purposeless within the limits settled by the decision; THE COURT hereby: