JUDGMENT OF 8. 3. 1960 -CASE 3/59 GERMANY v HIGH AUTHORITY

In Case 3/59

THE COURT composed of: A. M. Donner (Rapporteur), President, L. Delvaux and R. Rossi, Presidents of Chambers, 0. Riese and N. Catalano, Jufges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties

II — Facts

III — Submissions and arguments of the parties

1. Admissibility

2. Substance

B

C

IV — Procedure

Grounds of judgment

Substance

Costs

I —. Conclusions of the parties

1. Annul the decision of the High Authority of 1 December 1958, reference No 35172;

2. Order the defendant to bear the costs.

1. Dismiss the application;

2. Order the applicant to bear the costs.

II —. Facts

III —. Submissions and arguments of the parties

1. Admissibility

2. Substance

(a). That the very point which the court, in exercise of its unlimited jurisdiction, should examine is the question whether the decisions of February 1958 imposed on the applicant a duty which it must perform. In support of the proposition that a decision may still be contested in proceedings brought against a later decision, the applicant refers to the case-law of the court of Justice, which allows the objection of illegality to be raised against general decisions when measures implementing them are contested (particularly the judgment in case 9/56, Rec. volume IV, p. 26).

(b). That the contested passages of the decisions of February 1958 must be interpreted as restrictive conditions relating to an authorization given under the fourth paragraph of Article 70. Those passages merely express the idea that the High Authority intends to refuse — whenever appropriate — all other requests for authorization. The question arises whether this express refusal places the applicant under a duty to alter tariff provisions which have not been authorized. This question is not dealt with in the decisions of February 1958. It would indeed have been impossible for them to deal with it, because the answer to the question can only be given by way of the procedure set out in Article 88.

(a). That it matters little whether the applicant, in its Application 19/58, intended to bring proceedings under the second paragraph of Article 88. What matters is whether the two decisions of February 1958 constituted decisions within the meaning of the first paragraph of Article 88. If that is not the position, proceedings based on the second paragraph of that article are inconceivable.

(b). That Application 19/58 — which is primarily based on Article 33 of the Treaty — cannot be considered, since this is of itself a sufficient basis for an action, as an application based on the second paragraph of Article 88 (prohibition of concurrent actions).

(c). That even if it is accepted that the applicant has, in Application 19/58, brought a valid application under the second paragraph of Article 88, this fact does not in any way imply that the said application suspends all the obligations incumbent on the applicant. The third paragraph of Article 88 merely states that the two penalties for which it provides may be imposed only after an action, if any, has been rejected. The decisions of February 1958 and of 1 December 1958 do not contain these penalties and cannot be regarded as being analogous thereto. Therefore those decisions are not contrary to the third paragraph of Article 88.

IV —. Procedure

1. The applicant alleges, in the first place, that the contested passages of Decisions Nos T-10.202 and T-10.203 of the High Authority of 12 February 1958, which are contested in Application 19/58, do not impose any unequivocal duty on the Federal Government because, viewed objectively, they merely constitute a statement of conditions restricting an authorization given under the fourth paragraph of Article 70 of the ECSC Treaty.

2. Secondly, the applicant alleges that even supposing that the decisions of 12 February 1958 did place the Federal Government under an obligation, there has not yet been any failure to fulfil that obligation because the time-limit set for modifying the rates and conditions was suspended by the lodging of Application 19/58, which is based, inter alia, on Article 88 of the Treaty, and must therefore benefit from the suspensory effect provided for by the third paragraph of that article.

3. During its oral arguments, the applicant alleged that, generally, decisions creating rights only produce their full effects after expiry of the period during which an appeal may be brought against them or after judgment has been given in proceedings brought in respect of them, and that therefore the suspensory effect of Application 19/58 must be presumed automatically.

4. The applicant also alleges that there is no legal basis for the contested decision because the decisions of 12 February 1958 are not valid. The applicant is thus raising against that decision the submissions already directed against the decisions of 12 February 1958 in application 19/58, taking the view that Article 88 gives Member States a special right of action, which is distinct from the right given by Article 33 and which entitles then to institute proceedings in which the Court has unlimited jurisdiction and which allows it to examine the legality of the basic decisions.

5. Finally, the applicant alleges that the period set by the contested decision is shorter than the period within which proceedings must be initiated under Article 88.

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 14, 33, 36, 37, 39, 70, 86 and 88 of the Treaty establishing the European Coal and Steel Community, and to Article 10 of the Convention on the Transitional Provisions annexed to the said Treaty; Having regard to the Rules of Procedure of the Court of Justice of the European Coal and Steel Community, and to the rules of the Court concerning costs; Having regard to the decision of the High Authority of 1 December 1958, reference No 35172, THE COURT hereby:

1 Dismisses the application;

2 Orders the applicant to bear the costs.