JUDGMENT OF 20. 3. 1959 — CASE 18/57 NOLD v HIGH AUTHORITY

In Case 18/57

THE COURT composed of: A. M. Donner, President, O. Reise, President of Chamber, L. Delvaux, Ch. L. Hammes (Rapporteur) and R. Rossi, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGEMENT

Issues of fact and of law

I — Conclusions of the parties

II — Facts

III — Procedure

IV — Submissions of the parties

A. Capacity of the applicant

B. Formal validity of the application

C. Substance

(a) Submission of discrimination

1. Admissibility of the submission

2. Merits of the submission

(a) Decisions Nos 16 to 18/57

(b) Decision No 19/57

(b) Submission that the provisions of the Basic Law of the Federal Republic of Germany and the constitution of the Land Hesse are infringed.

(c) Submission of misuse of powers

1. Admissibility of the submission

2. Merits of the submission

(d) Submission of infringement of an essential procedural requirement

1. Admissibility of the submission

2. Merits of the submission

Grounds of Judgment

A — Capacity of the applicant

B — The formal validity of the application

C — The legal nature of the contested decisions

D — The individual submissions

E — Submission of infringement of an essential procedural requirement

Costs

I —. Conclusions of the parties

1. In its application the applicant claims that the Court should:

2. The defendant contends in its statement of defence that the Court should:

II —. Facts

1. The plaintiff, a limited partnership, carries on business as a coal wholesaler in Darmstadt.

2. Until 15 February 1956 the applicant was a first-hand wholesaler.

3. On this date Decisions Nos 5/56, 6/56 and 7/56 were adopted by which the High Authority authorized under Article 65 of the ECSC Treaty the agreements of the mining companies associated in the Ruhr coal-selling agencies Geitling, Präsident and Mausegatt which contained inter alia commercial rules and in particular laid down conditions relating to qualification as firsthand wholesalers.

4. On 8 January 1957 the applicant company went into liquidation as a result of the retirement of the sole personally liable shareholder Mrs Use Nold, nee Behne.

5. The transitional rules expiring on 31 March 1957 benefiting the applicant were extended to 30 June 1957 by Decisions Nos 10/57, 11/57 and 12/57 of the High Authority of 1 April 1957.

6. On 26 July 1957 the High Authority adopted Decisions Nos 16 to 19/57 at the request of the mining companies associated in the joint selling agencies.

7. Decisions Nos 16/57, 17/57 and 18/57 in particular reduced the quantities required for qualification as first-hand wholesalers from 75000 to 60000 metric tons, from 40000 to 30000 metric tons and from 12500 to 9000 metric tons.

8. Decision No 19/57 gave approval to the Oberrheinische Kohlenunion, for the benefit of its members who according to the sales conditions of the mining companies or their marketing organizations were entitled to purchase directly from these organizations, to purchase jointly from the districts of Aachen, Ruhr, Saar and Lorraine.

9. The joint selling agencies, Präsident and Mausegatt, wrote to the applicant on 19 September 1957, as did Geitling on 21 September 1957 in similar terms, that as from 1 October 1957 they could no longer treat the applicant as a first-hand wholesaler for sales area IV since it no longer fulfilled the required conditions, and that August and September would be regarded as transitional months.

10. On September 1957 the applicant lodged at the Registry of the Court the present application which is signed only by Mr Klibansky who during his lifetime was a Rechtsanwalt of the Landgericht Frankfurt am Main.

11. Mr Erich Nold, who signed the authority to act in favour of Rechtsanwälte Klibansky, Müller and Thomas, entered the applicant undertaking as a personally liable member on 16 October 1957.

III —. Procedure

1. The application cited:

2. By agreement the applicant withdrew the action against the joint selling agencies; the Court took note of the withdrawal by Order dated 17 January 1958 and ordered the withdrawal of the case in so far as it related to the said defendants.

3. On application of the applicant the Court by Order dated 4 December 1957 recognized the applicant's capacity to institute proceedings which the High Authority had contested in its pleadings dated 23 October 1957 on the basis of the second paragraph of Article 33 and Article 80 in conjunction with Articles 65 and 66 of the ECSC Treaty and suspended operation of Decisions Nos 16/57, 17/57 and 18/57 until final judgment in the action in so far as the commercial rules provided for in these decisions disqualified the applicant from recognition as a first-hand wholesaler.

4. The procedure followed the normal course; the Advocate-General concluded that the application should be dismissed.

5. As the President of Chamber J. Reuff and Judge N. Catalano have been prevented from attending, the Court composed of five Judges gives judgment in accordance with Article 18 of the Statute of the Court of Justice of the ECSC.

IV —. Submissions of the parties

A. Capacity of the applicant

1. The defendant objects to the admissibility of the action. It bases its submission on the uncontested fact that the applicant, a limited partnership, was in liquidation when the action was brought since it had no personally liable member and therefore no one entitled to represent it. It maintains that the partners acting as liquidators were not entitled to bring the action in the name of the company nor was Mr Erich Nold, who at the time was not a member of the firm, entitled to give an authority to act.

2. The applicant cites Article 12 of the partnership deed and the statements of the retiring members in support of the claim that after the undertaking went into liquidation the members jointly entitled to represent the undertaking had transferred the further conduct of the business and the representation of the undertaking to Mrs Sophia Nold who in turn was entitled to grant a general power of attorney to a third person. It alleges that Mrs Sophia Nold transferred to Mr Erich Nold not only the conduct of the business but also the right to represent the other members of the undertaking in liquidation. The power of attorney in favour of Mr Erich Nold accordingly extended to conduct of the action.

B. Formal validity of the application

1. The defendant alleges that the application is invalid ab initio since it is signed only by Mr Klibansky who, although during his lifetime he was called to the Frankfurt am Main Bar, was nevertheless subject to disciplinary measures and suspension from practice at the time the application was brought and during the period of one month for bringing it.

2. The applicant in reply states that the validity of Mr Klibansky's signature to the pleading as Rechtsanwalt is not affected by the previous suspension from practice since this is only a professional disciplinary measure. In this it refers to Article 107(2) of the Rechtsanwaltsordnung of Hesse and a letter in the file from the President of the Anwaltskammer Frankfurt am Main.

C. Substance

(a). Submission of discrimination

1. Admissibility of the submission

2. Merits of the submission

(a). Decisions Nos 16 to 18/57

(b). Decision No 19/57

(b). Submission that the provisions of the Basic Law of the Federal Republic of Germany and the constitution of the Land Hesse are infringed.

(c). Submission of misuse of powers

1. Admissibility of the submission

2. Merits of the submission

(d). Submission of infringement of an essential procedural requirement

1. Admissibility of the submission

2. Merits of the submission

A —. Capacity of the applicant

B —. The formal validity of the application

C —. The legal nature of the contested decisions

D —. The individual submissions

1. Infringement of the Treaty;

2. Infringement of the Basic Law of the Federal Republic of Germany and the constitution of the Land Hesse;

3. Misuse of powers;

4. Infringement of an essential procedural requirement.

E —. Submission of infringement of an essential procedural requirement

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 4, 5, 14, 15, 31, 33, 65, 66 and 80 of the Treaty establishing the European Coal and Steel Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice and the rules on costs of the Court, THE COURT hereby:

1 Declares the application admissible;

2 Annuls Article 2(1), (2) and (3) of Decisions Nos 16/57, 17/57 and 18/57 of the High Authority of 26 July 1957;

3 Annuls Decision No 19/57 of the High Authority of 26 July 1957 in so far as it restricts the admission of wholesalers to the Oberrheinische Kohlenunion to those wholesalers operating in southern Germany who fulfil the conditions for obtaining supplies direct under Decisions Nos 16/57, 17/57 and 18/57;

4 Orders the defendant to pay the costs of the action including the costs of the application for an interim measure.