JUDGMENT OF 15.7.1960 - CASE 20/59 ITALY v HIGH AUTHORITY
In Case 20/59
THE COURT composed of: A. M. Donner, President, L. Delvaux and R. Rossi, Presidents of Chambers, O. Riese and Ch. L. Hammes (Rapporteur), Judges, Advocate-General: K. Roemer 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
A — Infringement of the Treaty
1. Infringement of the last paragraph of Article 70 of the Treaty
2. Infringement of the third paragraph of Article 70 of the Treaty
3. Infringement of Article 5 of the Treaty
4. Infringement of Article 88 of the Treaty
5. Infringement of Article 47 of the Treaty
6. Infringement of the provisions of the Treaty in relation to the prices of coal and steel and in particular Articles 3, 4, 5 and 60
(a) Infringement of Article 3 (c)
(b) Infringement of Article 4 (b)
(c) Infringement of Article 5
(d) Infringement of Article 60
B — Patent disregard of the facts (Manifesto ingiustizia del merito della decisione impugnata)
C — Misuse of powers
IV — Procedure
Grounds off judgment
I —. Facts
3. The High Authority leaves it to the government … to determine the appropriate means for achieving the abovementioned objectives. There are three ways in which this can be done:
5. Where the Government … does no more than require the immediate notification of contracts of carriage already concluded (paragraph) 3 (c) above), the High Authority will follow the application of this method closely in order to determine whether it enables the above-mentioned objectives of the Treaty to be satisfactorily attained. If it should appear after a period not exceeding four months that this is not the case, the High Authority will consider whether and, if so, what other measures appear to be necessary.
(a). that there should be control over any discriminatory scales, rates and other tariff rules applied to transport within the Common Market;
(b). that producers should be able to draw up their price-lists with full knowledge of the delivery prices of their own products even in cases where the contract of carriage is concluded with the consignee;
(c). that producers should be able to draw up their price-lists with full knowledge of the delivery prices of the products of producers in competition with them;
(d). that producers should be able to align their delivery prices on those of other producers.
II —. Conclusions of the parties
III —. Submissions and arguments of the parties
A —. Infringement of the Treaty
1. Infringement of the last paragraph of Article 70 of the Treaty
2. Infringement of the third paragraph of Article 70 of the Treaty
3. Infringement of Article 5 of the Treaty
4. Infringement of Article 88 of the Treaty
5. Infringement of Article 47 of the Treaty
6. Infringement of the provisions of the Treaty in relation to the prices of coal and steel and in particular Articles 3, 4, 5 and 60
(a). Infringement of Article 3 (c)
(b). Infringement of Article 4 (b)
(c). Infringement of Article 5
(d). Infringement of Article 60
1. The road transport rate is not the only or the most important factor in transport cost;
2. The rates of competing means of transport are not known in advance in spite of the relatively greater volume of trade done by them;
3. The rule relating to publication in advance of transport rates cannot be imposed on carriers from third countries nor can it apply to carriage over the territory of such countries;
4. Prior publication of road transport rates is not necessary, for consignors are in a position to know the rates ruling on the routes which concern them;
5. A tariff in respect of carriage for hire or reward provides only a very indirect accounting factor in the transport costs of a consignor using his own vehicles.
B —. Patent disregard of the facts (Manifesto ingiustizia del merito della decisione impugnata)
C —. Misuse of powers
1. The applicant states that the facts cited in the submission that the last paragraph of Article 70 of the Treaty has been infringed show that, in following an unlawful objective, the High Authority is misusing the powers which have been given to it when it imposes obligations on the Italian government in a sphere which is within the Government's own jurisdiction.
2. The applicant maintains that the facts cited in the submission that Article 88 of the Treaty has been infringed likewise constitute a misuse of powers. In claiming to rely on Article 88 the High Authority is attempting to attain an unlawful objective by interfering in a sphere of powers which obviously come exclusively within the internal jurisdiction of the State concerned.
3. The applicant considers, and again takes up the submission that Article 60 of the Treaty is infringed, that the fact of considering advance publication of road transport rates as a necessary condition of correctly applying Article 60 of the Treaty constitutes a misuse of powers in so far as this article is relied on to attain an objective — the advance publication of road transport rates — which is not one which the Treaty ascribes to it.
IV —. Procedure
I. Before proceeding with the matter consideration must be given to (1) the legal basis of the decision and (2) the procedure which led to its being taken.
(1). The legal basis of the decision appears from its title which states that it is on the publication or notification to the High Authority of scales, rates and all other tariff rules of every kind applied to the carriage of coal and steel within the Community for hire or reward thus reproducing the wording of the third paragraph of Article 70 of the Treaty establishing the European Coal and Steel Community for which the intention is to lay down implementing rules.
(2). The decision takes the form of an application of the first paragraph of Article 88, and states that it is a reasoned decision by which the High Authority in accordance with this provision is empowered to record that a State has failed to fulfil an obligation under the Treaty.
II. Stripped, however, of ancillary submissions made variously by the parties, the central question raised by the action for annulment of Decision No 18/59 is: (A) with regard to substance, what are the legislative powers which the High Authority can claim on the basis of the third paragraph of Article 70 with regard to transport; (B) with regard to form, whether Article 88 chosen by the High Authority for the excercise of such powers may be legally used for such purposes and (C) if appropriate, whether this article has been applied according to the rules laid down.
A. Although the Treaty establishing the European Coal and Steel Community contains rules capable, like rules laid down by the national legislature, of being directly implemented in the Member States such implementation taking place ipso iure as a result of their acceptance into the law of the Member States by the ratification of the Treaty, other provisions of the Treaty on the other hand require implementing measures before they are applied.
1. The third paragraph of Article 70 provides that The scales, rates and all other tariff rules of every kind applied to the carriage of coal and steel within each Member State and between Member States shall be published or brought to the knowledge of the High Authority.
2. Having regard to the different attitude adopted by the Treaty in respect of two similar situations it is proper to inquire whether a legislative power on the part of the High Authority does not arise by implication from (a) other provisions of the Treaty or (b) its general structure.
B. Although the third paragraph of Article 70 does not give the High Authority a power of decision to implement its provisions either expressly or by implication it is necessary to inquire whether Article 88 of the Treaty, to which it has had resource, could legally do so.
C. Although the wording of Article 70 and the wording and general structure of Article 88 give the High Authority no direct power to make regulations implementing the provisions of the third paragraph of Article 70, it is necessary to inquire whether the contested decision may, as the High Authority maintains, be regarded not as an independent regulation, but as a reasoned decision recording a failure.
III. In these circumstances and without its being necessary to consider the other arguments presented by the applicant it is right to annul Decision No 18/59 of the High Authority.
IV. Under Article 69 (2) of the Rules of Procedure the High Authority must bear the costs.
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 4, 14, 60, 70 and 88 of the Treaty establishing the European Coal and Steel Community; 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 Communities, THE COURT hereby: