JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58 CHAMBRE SYNDICALE DE LA SIDÉRURGIE v HIGH AUTHORITY
In Joined Cases 24/58 and 34/58
THE COURT composed of A. M. Donner, President, L. Delvaux, President of Chamber, R. Rossi, President of Chamber (Rapporteur), O. Riese and Ch. L. Hammes, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
First part: Case 24/58
I — Conclusions of the parties
II — Facts
III — Submissions and arguments of the parties
Admissibility
The substance
On the submission that Tariffs AT 3 B 30 (II) and AT 6 B 33 (I) are illegal
The submission that the fifth paragraph of Article 10 of the Convention relating to the Transitional Provisions and Articles 3(b), 4 (b) and(c) and the first and second paragraphs of Article 70 of the Treaty have been infringed
The submission that the time allowed for the alteration of Tariffs AT 6 B 30 (I) and AT 6 B 31 as well as Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal are illegal
(a) Infringement of the second paragraph of Article 70 of the Treaty and of the fifth paragraph of Article 10 of the Convention.
(b) Infringement of the fourth paragraph of Article 70 of the Treaty and of the fifth paragraph of Article 10 of the Convention
Second part: Case 34/58
I — Conclusions of the parties
II — Facts
III — Submissions and arguments of the parties
Admissibility
The substance
IV — Application to intervene
V — Procedure
VI — Grounds of Judgment
Case 24/58
Admissibility
On the substance of the case
The submission that Tariffs AT 6 B 30 (II) and AT 6 B 33 (I) are illegal
The submission that the fifth paragraph of Article 10 of the Convention on the Transitional Provisions and Article 3 (b), Article 4 (b) and (c) and the first and second paragraphs of Article 70 of the Treaty have been infringed
The submission that the time allowed for the modification of Tariffs AT 6 B 30(1) and AT6 B 31 and Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal are illegal
Costs
Case 34/58
Admissibility
On the substance of the case
Costs
I —. Conclusions of the parties
1. The applicants claim that the Court should:
2. The defendant contends that the Court should:
II —. Facts
(a). Acknowledged that Tariffs AT 6 B 30 (II), AT 6 B 32 and AT 6 B 33 (I) comply with the principles of the Treaty; with reference to the last tariff, however, account must be taken of the abolition of Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal by the High Authority as from 1 January 1959;
(b). Decided on the gradual modification of Tariffs AT 6 B 30 (I) and AT 6 B 31;
(c). Reminded the Government of the Federal Republic of Germany that it was in its interest to create a tariff of general application to the carriage of mineral fuels by complete trainloads.
III —. Submissions and arguments of the parties
(a). On the question whether inland waterways are in competition with the railway in the case of Tariff AT 6 B 30 (II) there is competition from inland waterways for consignments to the Osnabrück factory; there is potential competition from inland waterways in the case of consignments to the Georgsmarienhütte factory.
(b). As far as traffic to the Osnabrück factory is concerned Tariff AT 6 B 30 (II)-after taking into account the fact that it was increased on 1 October 1959—is not correctly aligned on the charges for carrying coal by inland waterway. However the expert goes on to say that this finding has ceased to have very much significance since the traffic in question is relatively unimportant and still decreasing.
(c). As far as traffic to the Georgsmarienhütte factory is concerned Tariff AT 6 B 30 (II) is not correctly aligned on the charges for carrying coal by inland waterway. While the expert states that it is difficult to set a precise limit to the alignment which might be held to be correct, he concludes nevertheless that the safety margin which this tariff contains seems to be rather exaggerated.
(d). As far as traffic to the Ilsede-Peine and Salzgitter factories are concerned Tariff AT 6 B 33 (I)—considered in relation to the level of charges for carriage by inland waterway before the abolition of Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal which it was decided should take effect as from 1 January 1959—is correctly aligned on the charges for carrying coal by inland waterway.
(e). With a view to determining the correct parity of the charges considered above in the case also of consignments of coke, the expert concludes that it is advisable to reckon, for consignments of coke by inland water, with an additional charge of DM 0.80 to DM 1.00 per compared with the cost of carrying coal by the same route.
(a). The disputed Tariffs AT 6 B 30 to AT 6 B 33 which secure reductions compared with a system regarded as normal in all probability belong to the category of special internal rates and conditions referred to in the fourth paragraph of Article 70 of the Treaty, and consequently, instead of being examined together, they had to be examined separately as provided for by that provision.
(b). In accordance with the agreement of 21 March 1955 hereinafter mentioned, Tariff AT 6 B 1 had to be taken as the basis for the calculation of the through international tariff applicable to the iron and steel factories in Lorraine and in particular to the applicants whose works are also more than 40 km from the Ruhr mines.
(a). Infringement of the second paragraph of Article 70 of the Treaty and of the fifth paragraph of Article 10 of the Convention.
(b). Infringement of the fourth paragraph of Article 70 of the Treaty and of the fifth paragraph of Article 10 of the Convention
I —. Conclusions of the parties
1. The applicants in Case 34/58 claim that the Court should:
2. The defendant in Case 34/58 contends that the Court should:
II —. Facts
III —. Submissions and arguments of the parties
IV —. Application to intervene
V —. Procedure
VI —. Grounds of Judgment
1. The applicants maintain that Tariff AT 6 B 30 (II) is not justified by competition from another mode of transport. Tariff AT 6 B 33 (I) is not aligned on the competing rates for the carriage by inland waterway of either coal or coke.
2. On the other hand, according to the findings of the expert's report which the Court adopts, Tariff AT 6 B 33 (I), which is applied to the carriage of coal, is correctly aligned on the competing inland waterways rate.
3. For all these reasons the first complaint of the application is well founded in so far as it is directed against that part of the contested decision which acknowledges that
1. The applicants submit in the first place that when the High Authority granted time-limits exceeding the transitional period for the modification of Tariffs AT 6 B 30 (I) and AT 6 B 31 and also of Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal it infringed the second paragraph of Article 70 of the Treaty and the fifth paragraph of Article 10 of the Convention on the Transitional Provisions under which measures to eliminate discriminatory practices contravening the aforementioned second paragraph of Article 70 must enter into force on the date of the establishment of the common market in coal at the latest.
2. The applicants also submit that the seventh paragraph of Article 10 of the Convention does not derogate from the rules laid down in the second part of the fifth paragraph of Article 1 of the Convention which reads Save where this Convention expressly provides otherwise, these derogations and supplementary provisions shall cease to apply, and measures taken to implement them shall cease to have effect, at the end of the transitional period.
1. The applicants submit that an examination of Special Tariffs AT 6 B 30 to AT 6 B 33 applicable to the carriage of mineral fuels for the German iron and steel industry which is in a similar situation to that of the applicant undertakings makes it quite clear that there are tariff arrangements which establish discrimination based on a criterion of nationality.
2. The applicants also submit that the High Authority is under a specific duty to recommend the Government of the Federal Republic of Germany to adopt for the benefit of non-German iron and steel factories of the Community tariff arrangements for the carriage of mineral fuels similar to those applying to German iron and steel factories.
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties and the intervener; Upon hearing the opinion of the Advocate-General; Having regard to Articles 3,4, 33, 35, 70 and 80 of the Treaty and Articles 1 and 10 of the Convention on the Transitional Provisions; 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, especially Articles 35 to 45, 60 (1) and 71, THE COURT hereby:
I - Case 24/58
(a) Annuls the disputed decision to the extent to which it acknowledges that Tariff AT 6 B 33 (I), only in so far as it applies to the carriage of coke, and Tariff AT 6 B 30 (II), in so far as it applies to the carriage of coal and coke coming from the mines of Königsborn and Westphalia, comply with the principles of the Treaty.
(b) The other conclusions in the application are rejected as unfounded.
II - Case 34/58
(a) Dismisses the application as inadmissible in so far as it is directed against the refusal of the High Authority to recommend the Government of the Federal Republic of Germany to introduce a tariff of general application to the carriage of mineral fuels by trainloads.
(b) Dismisses the application as unfounded is so far as it is directed against the implied decision of refusal of the High Authority to recommend the Government of the Federal Republic of Germany to adopt for the benefit of non-German iron and steel factories of the Community tariff arrangements for the carriage of mineral fuels similar to those applying to German iron and steel factories.