JUDGMENT OF 17. 12. 1959 — CASE 14/59 PONT-À-MOUSSON v HIGH AUTHORITY

In Case 14/59

THE COURT composed of: A. M. Donner, President, L. Delvaux and R. Rossi, Presidents of Chambers, O. Riese (Rapporteur), J. Rueff, Ch. L. Hammes and N. Catalano, Judges Advocate General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. Admissibility

2. The substance

A — Arguments put forward by the applicant

1. Is molten pig iron an ECSC product?

2. Does the applicant undertaking fall outside the jurisdiction of the ECSC by reason of the technical and economic structure of its works?

(a) The situation of a foundry engaged in pre-melt, such as the factory at Pont-a-Mousson, must be compared rather to that of an independent steel foundry than to that of an integrated steel foundry.

(b) Is the fact that the applicant prepares its molten pig iron in blast furnaces — instead of utilizing the usual cupola furnaces — sufficient to classify the product as an iron and steel product?

(c) Comparison between foundries engaged in pre-melt and those engaged in melt [fonderies de premiere et de deuxième fusion]

B — Arguments put forward by the defendant

2 (a) (The position of foundries engaged in pre-melt in the system of Annex I)

2 (b) (Classification of the products in question as iron and steel products)

2 (c) (Comparison between foundries engaged in pre-melt and those engaged in melt)

A — The applicant's arguments

1. General arguments

2. Specific arguments

(a) Competition of foundries engaged in melt

(b) Competition from manufacturers of tubes of asbestos cement, concrete and plastic

(c) Competition from steel foundries

B — The defendant's arguments

2 (a) (Competition from foundries engaged in melt)

2 (b) (Competition from manufacturers of tubes of asbestos cement etc.)

2 (c) (Competition from steel foundries)

IV — Procedure

Grounds of judgment

Admissibility

Substance

First complaint: infringement of Articles 53, 80 and 81 and also of Annexes I and II to the ECSC Treaty.

Second complaint: infringement of Articles 2, 3, 4 and 5 of the Treaty and of the general principles of Community law.

1. The complaints as to discrimination and infringement of the right of all consumers to equal access to sources of production

2. The complaint as to the adverse effect on competition

3. The complaint as to a special charge

Costs

I —. Facts

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. Admissibility

2. The substance

1. The foundry pig iron which it produces is not one of the products referred to in the Treaty.

2. The applicant is not engaged in an iron and steel activity. Moreover, the Treaty only covers activities of the iron and steel industry proper and does not include those of foundries.

A —. Arguments put forward by the applicant

1. Is molten pig iron an ECSC product?

(a). It is clear from an analysis of the wording that the expression Foundry and other pig iron found under reference No 4200 of Annex I only covers foundry pig iron.

(b). In administrative and technical terminology the expression pig iron [fonte brute] refers only to solid pig iron.

2. Does the applicant undertaking fall outside the jurisdiction of the ECSC by reason of the technical and economic structure of its works?

(a). The situation of a foundry engaged in pre-melt, such as the factory at Pont-a-Mousson, must be compared rather to that of an independent steel foundry than to that of an integrated steel foundry.

(b). Is the fact that the applicant prepares its molten pig iron in blast furnaces — instead of utilizing the usual cupola furnaces — sufficient to classify the product as an iron and steel product?

(c). Comparison between foundries engaged in pre-melt and those engaged in melt [fonderies de premiere et de deuxième fusion]

B —. Arguments put forward by the defendant

2 (a). (The position of foundries engaged in pre-melt in the system of Annex I)

2 (b). (Classification of the products in question as iron and steel products)

2 (c). (Comparison between foundries engaged in pre-melt and those engaged in melt)

A —. The applicant's arguments

1. General arguments

2. Specific arguments

(a). Competition of foundries engaged in melt

(b). Competition from manufacturers of tubes of asbestos cement, concrete and plastic

(c). Competition from steel foundries

B —. The defendant's arguments

2 (a). (Competition from foundries engaged in melt)

2 (b). (Competition from manufacturers of tubes of asbestos cement etc.)

2 (c). (Competition from steel foundries)

IV —. Procedure

(a). In this connexion it is appropriate to consider in the first place whether the pig iron in question is one of the products included within the concept Fonte de fonderie et autres fontes brutes (Foundry and other pig iron) under reference No 4200 of Annex I.

(b). However, it is still necessary to determine the question whether, in relation to the pig iron at issue, the applicant is an undertaking engaged in production within the meaning of Article 80 of the ECSC Treaty, in other words, therefore, whether this pig iron is a product within the meaning of paragraph (1) of Annex I.

1. Such a limitation could first of all stem from the argument that under the system of the Treaty production within the meaning of the Treaty and in particular of Article 80 consists solely in the manufacture of goods for marketing.

2. It is nevertheless appropriate to consider whether there is not another reason why the concept engaged in production contained in Article 80 does not exclude the production of the pig iron in question, namely that the said pig iron is not sent to factories other than that where it is produced, but is produced and transformed in works which together make up an integrated technical unit.

1. The complaints as to discrimination and infringement of the right of all consumers to equal access to sources of production

2. The complaint as to the adverse effect on competition

(a). Having regard to the abovementioned principles it is appropriate to consider first of all whether, as a result of the decision at issue and the general decisions upon which it is based, the applicant's competitive position has been adversely affected to a substantial degree. This would only be the case if it were established that by reason of these decisions, the effects of which the applicant has been in a position to assess for several years, the competitive position of the applicant had in fact substantially worsened, for example, if the total volume of its sales had noticeably fallen; but, on the other hand, it is not sufficient that, following the intervention of the High Authority, certain distortions of the respective cost prices of the applicant and its competitors had occurred.

(b). It is also appropriate to consider whether the measures at issue do not nevertheless infringe the Treaty because they in fact had a more serious effect on the competitive position of the applicant than necessary having regard to the aim and purpose of the said measures.

3. The complaint as to a special charge

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 3, 4, 5, 15, 31, 33, 53, 80 and 81 of the Treaty establishing the European Coal and Steel Community and also to Annex I to the said 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, especially Articles 29(3) and 60(1), THE COURT hereby:

1 Dismisses the application as unfounded.

2 Orders the applicant to bear the costs.

1 Translator's note: The French for this expression is fontes de fonderie brutes, literally crude foundry pig iron.