Opinion of Mr Advocate-General Lagrange

Mr President,

Members of the Court,

The applicant association, which is an association under Netherlands law and a coal producers' association within the meaning of Article 48 of the Treaty of 18 April 1951, asks you to declare void on the ground both of infringement of the Treaty and of misuse of powers (and here I quote the application) the decision of the High Authority concerning the tax-free bonus granted to underground miners and known as the Bergmannsprämie (miner's bonus) and also as Schichtprämie (shift bonus) which coal-mining undertakings of Western Germany have been paying to their underground miners since 15 February 1956 and which is financed out of public funds by the Federal Republic of Germany. The decision, the application adds, has not been published by the High Authority.

The conclusions of the application claim that, in addition to declaring the contested decision void, the Court should

As the Court will be aware, the High Authority has, in the alternative, set forth its case on the substance but contends on various grounds for the inadmissibility of the application, one of them being that there is no decision. It is this question which first falls for consideration.

This must be done first in the light of Article 33 (positive decisions) and then of Article 35 (proceedings for failure to act).

I —. The first question to be answered is whether a decision was taken by the High Authority within the meaning of Article 14 of the Treaty and which the applicant may impugn by instituting proceedings under Article 33?

II —. But (and this brings us to the second question) was there not refusal to intervene in circumstances which would make it possible to regard the action as one for failure to act under Article 35?

My recommendation is:

1 Recueil, Vol. II, p. 225