Opinion of Mr advocate-general Lagrange

Mr President, Members of the Court,

The very complete written procedure and the very clear oral observations which you heard last week facilitate what I have to say in this case. I think I can omit even a summary history of the joint marketing organizations of the Ruhr which we are all beginning to know quite well.

Let us recall only that the present organization is to be traced to the agreements concluded between mining companies, agreements which were authorized by four decisions of the High Authority, Nos 5 to 8/56 published in the Journal Officiel of 13 March 1956, the first three relating to the joint selling by three separate agencies each embracing a certain number of undertakings and the last relating to certain establishments common to these three agencies. The period of validity of the agreements and authorization decisions was for the three years from 1 April 1956 to 31 March 1959. During this period certain amendments were made to the conditions of authorization: the main ones relate to the trading rules and long-term delivery contracts.

On 11 and 12 December 1958, the mining companies grouped together in the agencies requested that the authorization previously granted be extended for a year, that is to say until 31 March 1960. The High Authority ruled on these requests by Decison No 17/59 of 18 February 1959, which was published in the Journal Officiel of 7 March and was notified in a letter to each of the three agencies on 21 February. Since it was an individual decision, the publication, necessary for third parties did not suffice in respect of those to whom the decision was addressed; it still had to be notified in accordance with the provisions of the second paragraph of Article 15 of the Treaty.

This decision was in part attacked by the three agencies and by the undertakings of which they were formed. The claims are directed, as you know, on the one hand against certain provisions of the decision and on the other hand against certain assertions (Feststellungen) contained either in the recitals to the decision or in the letters of notification of 21 February 1959.

What does this decision look like? It is very much in standard form and contains a title and three parts: citations, recitals and operative part. The title is as follows: Decision on the extension of the authorizations for the marketing organizations of the Ruhr basin. The citations relate to the previous decisions and to the requests for extension dated 11 and 12 December 1958.

In the recitals the High Authority begins by referring to the objective of the request for authorization. Then comes an all-important recital:

Then the High Authority indicates the principles with which future rules for the sale of coal from the Ruhr must conform:

First principle:

Second principle:

Third principle:

Then come two recitals justifying the necessity of not immediately terminating the system in force:

Then come the quite full recitals explaining the necessity of amending the authorizations/or the transitional period, in particular as regard the long-term contracts and the trading rules. Lastly, two recitals on checking end as follows: It is finally necessary to study the implementing conditions of the abovementioned principles for the purpose of reorganizing the marketing of Ruhr coal.

The operative part of the decision corresponds exactly to the recitals: Articles 1 and 12 extend the provisions of the previous decisions on joint selling and common establishments until 31 March 1960. Articles 2 to 11 contain new conditions immediately applicable to which long-term agreements and trading rules are subjected. Article 14 relates to checking and the study of the future system. Lastly, Article 15 provides that The present decision shall enter into force on 1 April 1959 and expire on 31 March 1960.

Such is the structure of this decision and I apologize for having analysed it in such detail: this appeared to me necessary by reason of the subject of the proceedings which relate basically to the legal nature of certain provisons contained either in the recitals or in certain articles of the operative part.

Let me place to one side the claims directed against Article 11 relating to the trading rules for the parties agree that these claims have lost their purpose by reasons of the fact that since the application was brought a new decision (36/59 of 17 June 1959) has taken the place of the contested decision on this point.

In fact it may be questioned whether legally the claims have lost their purpose, since the contested decision in so far as it relates to trading rules has not been revoked with retroactive effect but simply revoked as Article 3 confirms: The present decision shall enter into force on 1 July 1959 and shall expire on 31 March 1960. Thus the contested decision remains in force for the period from 1 April to 30 June 1959. It would be more correct in my opinion to interpret the claims of the applicants in this respect as being in the nature of a withdrawal to which it is proper to agree.

I must now consider the two other series of claims in the applications: (1) those which are directed against certain passages in the recitals to Decision 17/59 and the letter of 21 February 1959 (claims 1 to 6); and (2) those which are directed against the second sentence of Article 14 (2) of Decision 17/59 (claim 7).

I

Claims 1 to 6. Claims 1 and 2 need to be distinguished from claims 3 to 6. The first complain that the High Authority has decided in advance without having a request for an authorization and without any agreement having been concluded on this subject that the common establishments of the agencies cannot be authorized after 31 March 1960 nor the selling agencies themselves after 31 March 1961. Claims 3 to 6 object to the provisions which lay down, likewise in advance and in the absence of any agreement, the conditions which the future organization of the Ruhr coal marketing must satisfy to qualify for an authorization: this is dealt with in the fifth recital to decision 17/59 which begins at the foot of page 280 and by point 2 (a), (b), (c) of the letter of 21 February 1959

The whole question is whether the contested provisions must be recognized as being in the nature of a decision (or a recommendation) capable of being the subject of an application for annulment under Article 33. Let me observe first of all that the parties seem to agree on the legal position. This position is as follows: the High Authority can express itself by a decision involving legal effects only on the basis of the powers which Article 65 (2) of the Treaty confers on it and according to the procedure provided for therein. It is quite apparent, and the High Authority admits as much, that it can give a ruling in the context of these provisions only if a request for an authorization is made to it relating to one or several agreements which may be submitted to it to this end. It likewise recognizes that it can express itself on the matter only after taking account of the circumstances and the position existing at the time when the agreements must enter into force and not a year in advance.

This considerably restricts the scope of the action. It follows from this that if a decision is found to exist in the contested provisions it is obviously unlawful.

(1). First of all it is illegal and mainly so for lack of competence: the High Authority cannot give a ruling on a request which has not been made to it or, what amounts to the same thing, it cannot, when a request is made relating to an agreement concluded for a certain period, rule in advance on the conditions of the possible authorization of agreements not yet concluded and relating to a subsequent period. Nor can it be a decision involving legal effect and binding on itself, establish in the guise of announcement of principle the scope of future authorizations. The only regulatory power which it has in the sphere of authorizations is that which is contained in Article 65 (3) concerning the kind of agreements, decisions or practices which have to be communicated to it: it is purely a formal power which does not allow the establishment of a kind of secondary legislation relating to the material conditions of the authorizations.

(2). The decision, if such there be, is further alleged to be unlawful for insufficient statement of grounds. The true ground of this anticipated refusal to accept in the future the continuance of the present organization is contained in the recital which I have just cited (the fourth recital on page 280, first column) where it is stated that the organizations have in practice, frequently not complied with the authorizations granted; the authorizations have not led to the expected results, for the three selling agencies have in particular not developed an independent marketing policy; on the contrary a uniform marketing system which is not in accordance with the provisions of the Treaty has been applied.

(3). Is the decision, subject always to the assumption that there is one, vitiated for infringement of the Treaty? The claim has formally been made.

II

My observations will be much more brief with regard to claim 7 in respect of the second sentence of Article 14 (12) of the decision.

In spite of all that has been written on this subject in the pleadings and said at the bar, I cannot see how the contested provision can adversely affect the applicants.

Let me remind you of the wording:

This sentence is not criticized in the applications. Thus the applicants themselves admit that the High Authority is entitled to consider the question of a revocation or an amendment of the existing to consider authorizations, which comes well within the limits of its powers. And how will it go about this consideration? We are informed by the second sentence that:

What unlawfulness is there in instructing these officials to study particular aspects of the reorganization envisaged? Do not the applicants themselves (rightly) allege that the High Authority must take account of all the circumstances and not confine itself to abstract opinions?

It does not appear to me necessary in this case to consider the limits and the conditions for the exercise of the powers which the High Authority has under Articles 47 and 86 in particular. It is sufficient to observe, as appears obvious, that the contested provision does not enunciate any rule involving any legal effect either from a legislative or individual point of view: it is simply an internal measure which is brought to the knowledge of the public.

My opinion is:

1 Translated from the French.

2 With regard to (a) I think I should draw your attention to a certain obscurity in the French translation of the original German, which itself is not very clearly drafted. I submit, in a personal capacity, of course, and as a working document the following, intentionally literal translation: The High Authority believes that a uniform and overlapping marketing system (implicity contrary to the Treaty in the opinion of the High Authority) is unavoidable where certain large undertakings do not decide to sell their production independently. This means not that this uniform system is necessary but on the contrary that it is to be condemned, and that the only means of avoiding it is for certain large undertakings to agree to resume their independence in the marketing of coal; this may lead to the belief that the High Authority will make the resumption of independence a condition of future authorization.