JUDGMENT OF 10. 12. 1957 — JOINED CASES 1 AND 14/57 USINES À TUBES DE LA SARRE v HIGH AUTHORITY

In Joined Cases 1 and 14/57

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

gives the following

JUDGMENT

Facts

1. Procedure

2. Facts

3. Conclusions of the parties

4. Submissions and arguments of the parties

A — Admissibility

I — Admissibility of Application 1/57

II — Time-limit for delivery of the opinion provided for in the fourth paragraph of Article 54

III — Admissibility of Application 14/57

IV — Admissibility of an application for annulment of an opinion

V — Consequences of a declaration of inadmissibility

B — Substance

I. The claim that the opinion of 27 February 1957 was delivered out of time

II — Statement of reasons

(a) The letter of 19 December 1956 (Application 1/57)

(b) Letter of 27 February 1957 (Application 14/57)

III — Investment programme and adverse opinion

IV — Treatment meted out to the applicant

Law

A — Admissibility of Applications 1/57 and 14/57

I — Does the letter of 19 December 1956 constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty?

II — Does the letter of 27 February 1957 constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty?

B — Admissibility of an application for annulment of an opinion delivered pursuant to the fourth paragraph of Article 54 of the Treaty

C — Effect of a ruling that the application is inadmissible

D — Costs

1. Procedure

2. Facts

1. By Decision No 27/55 of 20 July 1955 (JO No 18 of 26.7.1955, p. 873), the High Authority, under the powers conferred on it by the third paragraph of Article 54, required advance notification of the investment programmes concerning:

2. Decision No 26/56 of 11 July 1956 (JO No 17 of 19.7.1956, p. 209J) completed the abovementioned decision by providing that, regardless of the amount of foreseeable expenditure, investment programmes relating to blast furnaces and converters used in steel production must be the subject of advance notification. On the same date the High Authority published an opinion giving guidance on investment programmes for the iron and steel industry.

3. On 28 July 1956, in accordance with the said decisions, the applicant company submitted an investment proposal to the High Authority for the installation of an electric steel mill with a capacity of 80000 metric tons of liquid steel.

4. On 19 December 1956, the High Authority wrote as follows to the applicant company:

5. This letter was considered by the applicant company to be the opinion provided for in the fourth paragraph of Article 54 of the Treaty and on 23 January 1957 it submitted Application 1/57 to the Court.

6. On 5 February 1957 the High Authority informed the applicant company that the letter of 19 December 1956 did not constitute the conclusion of the procedure provided for in the fourth paragraph of Article 54 of the Treaty and asked the company if it was in a position to submit to it fresh facts which might smooth out the difficulties….

7. By letter of 15 February 1957 the applicant expressed its disagreement with the interpretation placed by the High Authority on the letter of 19 December 1956 and stated that it was unable to put forward fresh facts.

8. On 27 February 1957, the High Authority sent the following letter to the applicant:

9. It was against this opinion that, on 25 March 1957, the applicant company submitted Application 14/57.

3. Conclusions of the parties

4. Submissions and arguments of the parties

A —. Admissibility

I —. Admissibility of Application 1/57

A. The defendant contends that the application is inadmissible because the letter of 19 December 1956 does not constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty. This is demonstrated by the fact that the purported opinion was not a reasoned one and was not brought to the attention of the government concerned or published as required by the said article. Application 1/57 in fact impugns a decision which led to the adverse opinion of 27 February 1957.

B. The applicant on the other hand is of the opinion that only the letter of 19 December 1956 can be regarded as an opinion notified pursuant to the fourth paragraph of Article 54 of the Treaty. This is clear from the terms of the letter, the form in which the letter was sent, the discussions before and after the letter was sent and the fact that the period within which the High Authority had to deliver its opinion expired on 19 December 1956.

II —. Time-limit for delivery of the opinion provided for in the fourth paragraph of Article 54

A. The applicant considers that Article 4 of Decision No 27/55, which prescribes a period of 3 months for the lodging of investment programmes, implies an obligation on the High Authority to give its opinion within the same period. This time-limit was moreover recognized by the High Authority in the correspondence which it exchanged with the applicant before 19 December 1956.

B. In reply to this, the defendant states that neither the Treaty nor Decision No 27/55 obliges the High Authority to give its opinion on an investment programme within a period which commences to run from the time when the programme has been notified and in the absence of any indication in the legal provisions there is nothing to justify the applicant's assumption.

III —. Admissibility of Application 14/57

A. In the applicant's view, this application is inadmissible since it impugns a non-existent act which is devoid of any basis in law or regulations. The letter of 27 February 1957 cannot be regarded as a true opinion since it constitutes no more than a communication consequent upon the opinion of 19 December 1956.

B. The defendant takes the contrary view that the letter of 27 February 1957 certainly constitutes the opinion provided for in the fourth paragraph of Article 54 of the Treaty.

IV —. Admissibility of an application for annulment of an opinion

A. The applicant takes the view that if the adverse opinion delivered pursuant to the fourth paragraph of Article 54 is incapable of having any legal effect, either directly on its own account or by means of a subsequent decision or recommendation (a conclusion which appears to accord with Article 54, literally interpreted), the application for annulment must be declared inadmissible. There remains however the possibility that the said opinion may have an effect in particular on the levies relating to equalization of ferrous scrap in which case the opinion has, by implication, the force of a decision, to use the words of the fifth paragraph of Article 54. In effect, the High Authority informed the representatives of the applicant company that undertakings whose investments were the subject of an adverse opinion would receive treatment which compared unfavourably with that extended to other undertakings as regards the detailed rules for the equalization of ferrous scrap.

B. In the defendant's view, the dilemma described by the applicant arises from an erroneous interpretation of the provisions of the Treaty and ignores the real meaning of the letter of 19 December 1956. Article 14 differentiates very clearly between decisions, recommendations and opinions, whereas Articles 33 and 35 provide for annulment proceedings only in the case of decisions and recommendations. The Treaty rules out any possibility of proceedings for annulment of an opinion and this is the reason for the exception expressly provided for in the fifth paragraph of Article 54.

V —. Consequences of a declaration of inadmissibility

A. In the view of the applicant, a declaration of inadmissibility would give it an assurance that conclusions would not subsequently be drawn from the opinion which were incompatible with the true character of that act. It would be wrong for the High Authority to have the right to attach penalties to the opinion as the result of a general decision of later date.

B. On the other hand, the defendant contends that no indication of the subsequent consequences of an opinion can be attached to inadmissibility. There can be no question of the High Authority being prohibited from taking subsequent action in accordance with an opinion which it has previously delivered.

B —. Substance

I. The claim that the opinion of 27 February 1957 was delivered out of time

II —. Statement of reasons

(a). The letter of 19 December 1956 (Application 1/57)

A. The applicant submits that the words in the present circumstances are insufficient, by themselves, to satisfy the requirements of Article 15 and the fourth paragraph of Article 54 of the Treaty. The High Authority ought to have referred to the essential considerations among the findings of fact on which the measure depends for its legal justification. The opinion of 19 December 1956 should therefore be annulled because it is on no account a reasoned one.

B. The defendant comments that the High Authority did not feel obliged to give more explicit reasons for its letter of 19 December 1956 because, in the interests of the undertaking itself, it had no wish to place a time-limit on the procedure provided for under the fourth paragraph of Article 54 of the Treaty. In any case the applicant company was perfectly well aware of the reasons why the High Authority had no alternative but to give an adverse opinion.

(b). Letter of 27 February 1957 (Application 14/57)

A. The applicant claims that this opinion was not only issued out of time but did not contain an adequate statement of reasons since the High Authority makes no reference to the special considerations advanced by the applicant company. Moreover, the grounds indicated by the High Authority are of too general a character to justify the decision adopted.

B. The defendant draws attention to the case-law of the Court on the question of statement of reasons (judgments in Cases 6/54 and 2/56) and considers that it has fulfilled all requirements.

III —. Investment programme and adverse opinion

A. The applicant claims that it based its investment programme on the information contained in the general opinion of 19 July 1956 on guidance for investment programmes in the coal and steel industry.

B. The defendant rejects the applicant's argument on the basis of the following considerations: the letter of the Mannesmann company contains no guarantee that the investment contemplated would not involve any additional purchase of ferrous scrap, nor does it demonstrate that the Mannesmann company and the applicant company form a single economic unit such as to make it possible to produce a unified statement on the pig-iron/ferrous scrap relationship as a whole.

IV —. Treatment meted out to the applicant

A. The applicant submits that the treatment meted out to it places it in a position which is, in the first place, flatly discriminatory compared with other undertakings and, in the second place, inconsistent with a system of economic freedom and development. This is clear from various justifications supplied to or suggested to the High Authority and is contrary to Articles 2, 3, 4 and 5 of the Treaty.

B. The defendant is unable to understand on what grounds the applicant company is relying in alleging that the treatment which was meted out to it is flatly discriminatory and inconsistent with a system of economic freedom and development. This line of argument apears to the defendant all the more astonishing in view of the fact that the High Authority has, in a way which does not prevent the undertaking from realizing its investment programme, done no more than apply a policy the validity of which is not even questioned by the undertaking.

A —. Admissibility of Applications 1/57 and 14/57

I —. Does the letter of 19 December 1956 constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty?

II —. Does the letter of 27 February 1957 constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty?

B —. Admissibility of an application for annulment of an opinion delivered pursuant to the fourth paragraph of Article 54 of the Treaty

C —. Effect of a ruling that the application is inadmissible

D —. Costs

Upon reading the pleadings; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 5, 14, 15, 33 and 54 of the Treaty; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court and as well as the Rules of the Court concerning costs, THE COURT hereby:

1 Declares Applications 1/57 and 14/57 to be inadmissible;

2 Orders the applicant to pay the costs of the proceedings.