JUDGMENT OF 26. 6. 1958 AUBERT ET DUVAL v HIGH AUTHORITY ECSC
In Case 10/57
THE COURT composed of: M. Pilotti, President, A. van Kleffens and L. Delvaux, Presidents of Chambers, P. J. S. Serrarens, O. Riese, J. Rueff and Ch. L. Hammes, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact
1. Facts
2. Conclusions of the parties
3. Submissions and arguments of the parties
A — Admissibility
B — Substance
First complaint: The establishment of a system of priorities and of allocation, constituting misuse of powers with regard to Articles 53 (b), 59 and Annex II.
Second complaint: Misuse of powers with regard to Article 3 (b) of the Treaty, because Articles 8 and 9 of the contested decision do not differentiate between consumers in the Common Market who are not comparably placed.
Third complaint: Misuse of powers in that through discriminatory measures the High Authority penalizes the expansion of certain undertakings and confers upon itself wide powers concerning the control of investments.
Fourth complaint: Misuse of powers in relation to Article 3 (d) and (g), in that the High Authority is pursuing objectives the effect of which is to prevent the improvement of production and technical progress.
Fifth complaint: Misuse of powers in that the objectives of the contested decision are manifestly contrary to those which the Community is bound to pursue under Articles 2 and 3 (e) of the Treaty and of Article 29 of the Convention on the Transitional Provisions, concerning the continuity of employment of workers and the improvement of working conditions and the standard of living.
Sixth complaint: Under the guise of pursuing an objective in the general interest the High Authority, through the contested provisions of Decision No 2/57, deliberately pursued an objective of its own with regard to the applicant.
4. Procedure
Law
A — Admissibility
B — Substance
1. The complaint of misuse of powers with regard to Article 3 (b), (d) and (g) of the Treaty, that is to say, that Articles 8 and 9 of the contested decision do not differentiate between consumers in the Common Market who are not comparably placed and that the High Authority is pursuing objectives the effect of which is to prevent the improvement of production and technical progress
2. The complaint of misuse of powers with regard to Article 53 (b), Article 59 and Annex II to the Treaty, namely that the High Authority has established a system of priorities and of allocation whilst refraining from observing the formalities prescribed in Article 59 and Annex II
3. The complaint of misuse of powers with regard to Article 54 of the Treaty, namely that the High Authority penalizes through discriminatory measures the expansion of certain undertakings and confers upon itself wide powers concerning the control of investments
4. The complaint of misuse of powers with regard to Articles 2 and 3 (e) of the Treaty and of Paragraph 29 of the Convention on the Transitional Provisions, namely that the objectives of the contested decision are manifestly contrary to those which the Community is bound to pursue concerning continuity of employment for workers and the improvement of working conditions and the standard of living
5. The complaint of misuse of powers in that, through the provisions of Decision No 2/57, the High Authority deliberately pursued an objective of its own with regard to the applicant
Costs
1. Facts
2. Conclusions of the parties
3. Submissions and arguments of the parties
A —. Admissibility
(a). a complaint of misuse of procedure in relation to Article 59;
(b). two groups of complaints of infringement of the Treaty, one relating to the powers of the High Authority with regard to investments, and the other relating to the infringement of various paragraphs of Article 3.
B —. Substance
4. Procedure
A —. Admissibility
B —. Substance
1. The complaint of misuse of powers with regard to Article 3 (b), (d) and (g) of the Treaty, that is to say, that Articles 8 and 9 of the contested decision do not differentiate between consumers in the Common Market who are not comparably placed and that the High Authority is pursuing objectives the effect of which is to prevent the improvement of production and technical progress
(a). Pursuant to Article 53 (b) of the Treaty the High Authority may, with the unanimous assent of the Council, itself make any financial arrangements which it recognizes to be necessary for the performance of the tasks set out in Article 3. The exercise of the powers thus conferred upon the High Authority is subject to the conditions set out in Articles 2 to 5 concerning the establishment, administration and guidance of the Common Market.
(b). The purpose of the provisions contested in the present application was to make the contribution for the equalization of the prices of imported ferrous scrap progressively selective by increasing the rate applicable to the consumption of bought scrap above a given reference level and by graduating the charges thereby imposed in terms of a specific input coefficient for ferrous scrap in the installations and the manufacturing processes requiring scrap.
(c). Nevertheless consideration must be given to the question whether the measures taken are compatible with the rules in Article 3 (b), the beginning of subparagraph (d) and subparagraph (g) and the applicant alleges that the High Authority's adoption of the said measures constitutes serious disregard of these objectives.
(d). Pursuant to Article 3 (d) and (g) of the Treaty the institutions of the Community, and particularly the High Authority in exercising the powers conferred upon it by Article 53 (b), are required to ensure the maintenance of conditions which will encourage undertakings to expand and improve their production potential and promote the orderly expansion and modernization of production and the improvement of quality. The High Authority refers to those legal objectives at the beginning of the disputed decision, the stated aim of which is to ensure regular supplies to the market in ferrous scrap and to encourage undertakings to save ferrous scrap without, however, making it more difficult to increase output capacity.
(e). Furthermore the objectives laid down in Article 3 of the Treaty must be appraised as a whole and pursued exclusively in the common interest. The concept of the common interest referred to in Article 3, far from being restricted to the sum of the individual interests of coal and steel undertakings subject to the jurisdiction of the Community, considerably exceeds the scope of such interests and is defined in relation to the general aims clearly laid down in Article 2.
(f). The indirect means of action in relation to production prescribed in Article 57 are to be distinguished from the direct influence referred to in the third subparagraph of the second paragraph of Article 5 not by the aims pursued but by the methods appropriate to attain them. Indirect means of action, by affecting, especially as a result of the financial arrangements under Article 53, certain of the factors which play a part in forming prices, create conditions which encourage undertakings freely and willingly to choose the behaviour desired by the High Authority for the accomplishment of the tasks with which it is charged under the Treaty. On the other hand direct influence, such as the allocation of resources for which provision is made in Article 59, is not concerned with how producers would behave if they acted freely but directly prescribes, on pain of fines, as is stated in Article 59 (7), the behaviour which the High Authority considers necessary with regard to the situation with which the Treaty requires it to cope.
2. The complaint of misuse of powers with regard to Article 53 (b), Article 59 and Annex II to the Treaty, namely that the High Authority has established a system of priorities and of allocation whilst refraining from observing the formalities prescribed in Article 59 and Annex II
3. The complaint of misuse of powers with regard to Article 54 of the Treaty, namely that the High Authority penalizes through discriminatory measures the expansion of certain undertakings and confers upon itself wide powers concerning the control of investments
4. The complaint of misuse of powers with regard to Articles 2 and 3 (e) of the Treaty and of Paragraph 29 of the Convention on the Transitional Provisions, namely that the objectives of the contested decision are manifestly contrary to those which the Community is bound to pursue concerning continuity of employment for workers and the improvement of working conditions and the standard of living
5. The complaint of misuse of powers in that, through the provisions of Decision No 2/57, the High Authority deliberately pursued an objective of its own with regard to the applicant
Upon reading the pleadings; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 2, 3, 4, 5, 33, 46, 47, 48, 53, 54, 57, 58, 59, 65 and 80 of the Treaty and Annex II thereto; Having regard to the Protocol on the Statute of the Court of Justice; Having regard to the Rules of Procedure of the Court of Justice and the rules of the Court on costs, THE COURT hereby: