JUDGMENT OF 10.5.1960 — CASE 19/58 GERMANY v HIGH AUTHORITY
In Case 19/58
THE COURT composed of: A. M. Donner, President (Rapporteur), L. Delvaux and R. Rossi, Presidents of Chambers, 0. Riese and Ch. L. Hammes, Judges, Advocate-General: M. Lagrange Registrar A. Van Houtte
gives the following
JUDGMENT
I — Conclusions of the parties
II — Facts
III — Submissions and arguments of the parties
1. The submission as to lack of jurisdiction
2. The submission as to infringement of the Treaty
A — The interpretation of Article 70 of the Treaty
B — Infringement of other provisions of the Treaty
3. The submission as to infringement of essential procedural requirements
4. The submissions as to misuse of powers and manifest failure to observe the Treaty
5. Basis of the application; possibility of concurrent applications
IV — Procedure
Grounds of judgment
The nature of the application
Jurisdiction
The submission as to infringement of the Treaty
The submission as to infringement of essential procedural requirements
The submission as to misuse of powers
Costs
I —. Conclusions of the parties
(a). Annul Sections III, IV and V of the defendant's Decision T/10.202 of 12 February 1958, and Sections III and IV of the defendant's Decision T/10.203 of 12 February 1958, in so far as they state that the special rates and conditions in force are not in accordance with the ECSC Treaty and in so far as they re-quire that measures be taken so as to abolish them;
(b). Order the defendant to bear the costs of the proceedings.
II —. Facts
(a). The special rates and conditions constitute a discriminatory measure in favour of the undertakings compared with undertakings placed in comparable situations from the point of view of transport;
(b). The maintenance of the rates and conditions is not necessary for achieving the objectives set out in Articles 2 and 3 of the Treaty.
III —. Submissions and arguments of the parties
1. The submission as to lack of jurisdiction
(a). The applicant points out that the transitional period laid down by the Convention on the Transitional Provisions expired on 10 February 1958, and it raises the question whether a decision allegedly taken by the High Authority at its meeting on 9 February but which was brought to its attention only by letter dated 12 February and which it received only on 14 February, can be considered as having been taken within that transitional period.
(b). In its application, the applicant alleges, moreover, that the High Authority's action within the applicant's territory exceeds the limits of its jurisdiction under the Treaty.
2. The submission as to infringement of the Treaty
A —. The interpretation of Article 70 of the Treaty
(a). By virtue of the first paragraph of the above-mentioned article comparably placed consumers must be offered comparable rates for the carriage of coal and steel. The applicant says that it appears from the contested decisions that, in dealing with the question whether consumers are comparably placed, the High Authority has considered the matter exclusively with reference to comparable conditions from the point of view of transport (cf Decision T/10.203 on the carriage of coal: III, A, 1, (b), second paragraph; II, second paragraph; III, second paragraph; IV, second paragraph; V, second paragraph; B, first paragraph; C, II, second paragraph; decision T/10.202 on the carriage of ore: HI, 1, (a), first paragraph; 2, first paragraph; (b) second paragraph).
(b). Furthermore, the applicant complains that in the contested decisions the High Authority interpreted the words special internal rates and conditions in the interest of one or more coal-or steelproducing undertakings in the fourth paragraph of Article 70 in such a way that the only reason which it has accepted as justifying the authorization of special rates is the particular situation of each undertaking concerned. It has refused also to take into consideration conditions of a general character which could justify a special rate, such as the fact that it appears desirable to aid undertakings situated in depressed areas, and to do so not so much in the interest of the said undertakings as in the interest of those regions themselves.
(c). According to the applicant Article 70 cannot be considered in isolation. In order to apply it one must also look at the general objectives of the Treaty. On this point, the applicant refers in particular to the second paragraph of Article 2 and to Article 3 (d) of the Treaty.
(d). There is further argument between the parties on the question whether the High Authority has sufficiently taken into account the particular needs of undertakings in the region near the Soviet zone. This involves in particular the undertakings Maximilianshütte at Sulzbach-Rosenberg and Luitpoldhütte at Amberg in Bavaria.
(e). Since the present case relates to the application not only of Article 70 of the Treaty but also of the seventh paragraph of Article 10 of the Convention, the applicant complains that the High Authority has not sufficiently observed the duty which the latter provision imposes on it to allow such time for the modification of the rates in force when the High Authority is set up as may be necessary to avoid any serious economic disturbances. The applicant interprets this provision as meaning that special rates must be authorized when such disturbances would be inevitable notwithstanding the grant of such periods.
(f). Finally, the applicant complains that the High Authority has not sufficiently observed the fifth paragraph of Article 70. In its opinion, the effect of that provision, which says that transport policy … shall continue to be governed by the laws or regulations of the individual Member States, is that the institutions of the Community, and in particular the High Authority, must in principle respect the policy of the Federal Railways as regards transport rates.
B —. Infringement of other provisions of the Treaty
3. The submission as to infringement of essential procedural requirements
4. The submissions as to misuse of powers and manifest failure to observe the Treaty
5. Basis of the application; possibility of concurrent applications
IV —. Procedure
1. The applicant alleges that the High Authority, in applying the seventh paragraph of Article 10 of the Convention, has mis-interpreted Article 70 of the Treaty to which Article 10 refers.
2. The fourth paragraph of Article 70 provides that the application of special internal rates and conditions in the interest of one or more coal- or steel-producing undertakings shall require the prior agreement of the High Authority.
3. The applicant complains that the High Authority did not also take into account considerations of general economic policy such as whether it was expedient to approve protective measures which might appear desirable in favour of critical areas and under-privileged regions. In support of its arguments it points to the provisions of the second paragraph of Article 2 and Article 3 (a), (d), (e) and (g).
4. On the contrary, when economic conditions in the transport sector do not require or justify special rates (which is the case notably when competition from another means of transport must be counteracted), it is only in exceptional cases that a special rate can be considered to be in accordance with the principles of the Treaty.
On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the oral observations of the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 2 ,3, 4, 15, 33, 37, 67, 70 and 88 of the Treaty establishing the European Coal and Steel Community, and to Articles 1, 10 and 23 of the Convention on the Transitional Provisions annexed to that Treaty; 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 of the European Coal and Steel Community, and to the rules of that Court on costs, THE COURT hereby:
1 Dismisses the application as unfounded;
2 Orders the applicant to bear the costs.