JUDGMENT OF 15.7.1960 — CASE 25/59 NETHERLANDS 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
1. Lack of competence
2. Infringement of an essential procedural requirement
3. Infringement of the Treaty
A. Lack of legal basis for Decision No 18/59
B. Infringement of the first and second paragraphs of Article 70 of the Treaty
C. Infringement of the first, second and third paragraphs of Article 70 of the Treaty
D. Infringement of the third paragraph of Article 70 of the Treaty
E. Infringement of the fifth paragraph of Article 70 of the Treaty
F. Infringement of the second paragraph of Article 47 of the Treaty
G. Infringement of the fifth paragraph of Article 70, the first paragraph of Article 2, taken together with Article 26, the second paragraph of Article 2, taken together with Article 37, and Article 5 of the Treaty.
H. Infringement of Articles 3 and 5 of the Treaty
IV — Procedure
Grounds of judgment
I —. Facts
(a). The competent authority may publish a transport tariff and ensure that transport undertakings comply with it.
(b). The competent authority may require carriers to publish in a satisfactory form or to communicate to the High Authority the transport tariffs which they have themselves laid down and which they apply in carrying on their business.
(c). In the absence of such tariffs or when they include minimum or maximum rates, the transport rates and conditions may be notified to the High Authority immediately after the conclusion of each contract of carriage.
—. to inform it before 1 December 1958 of the measures which have been adopted at that date relating to carriage by road for hire or reward to fulfil, having regard to the foregoing particulars, the provisions of the Treaty and in particular Articles 2, 3, 4, 5, 60 and 70;
—. or to send it by the same date the comments which the Netherlands Government proposes to submit under the second sentence of the first paragraph of Article 88 of the Treaty.
(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
1. Lack of competence
A. The applicant denies that Article 88 empowers the High Authority to lay down and specify the obligations imposed on the Governments by virtue of the Treaty on the subject of transport, since the article does not provide for directives to be issued to the Governments but only for their failure to fulfil an obligation to be recorded.
B. According to the applicant the High Authority, in the contested decision, anticipates the common policy on transport, which has to be worked out by the Member States within the framework of the European Economic Community.
C. The applicant protests against the interference by the High Authority with the trading policy of undertakings which do not come within its jurisdiction. Transport undertakings do not fall within the definition given by Article 80 to undertakings within the meaning of the Treaty.
2. Infringement of an essential procedural requirement
(a). The applicant and the interveners claim that there has been a failure to fulfil the procedural requirements of Article 88 of the Treaty. They point out that, in its letter of 12 August 1958, the High Authority, in accordance with the procedure laid down in Article .88, gave the Netherlands Government the opportunity to submit its comments in offering it, in common with the other Governments, the choice of three methods whereby it could fulfil its obligations in connexion with road transport.
(b). Secondly, the interveners, arguing on the basis of the infringement of an essential procedural requirement, contend that an individual decision addressed to the six Member States is in fact a general decision but a decision taken pursuant to the first paragraph of Article 88 can only be an individual decision.
3. Infringement of the Treaty
A. Lack of legal basis for Decision No 18/59
(a). The applicant emphasizes that no provision of the Treaty compels transport undertakings, the Governments of the Member States or the High Authority itself to achieve the aims set out in detail in certain provisions of there contested decision.
(b). The interveners maintain that Article 5 of Decision No 18/59 imposes three new obligations on the Governments for the purposes of ensuring that the decision is effectively implemented. Not only is it impossible to find any legal basis for these obligations anywhere in the Treaty but, on the contrary, they conflict with Article 86 which, in the interveners' view, binds the Member States only to take the necessary legislative measures to ensure that the obligations arising from the decisions and recommendations of the institutions of the Community are carried out. The High Authority itself claims that the provisions contained in Article 5 of the contested decision are necessary in order to ensure compliance with the requirements imposed on States in Article 2 of the decision; the effect of this is that, since that part of the decision which the defendant itself regards as vital is null and void, the whole decision must also be null and void.
B. Infringement of the first and second paragraphs of Article 70 of the Treaty
C. Infringement of the first, second and third paragraphs of Article 70 of the Treaty
D. Infringement of the third paragraph of Article 70 of the Treaty
(a). The applicant and the interveners contend that Decision No 18/59 infringes the third paragraph of Article 70 in two respects.
(b). The interveners emphasize the importance of the second point and draw attention to the fundamental difference between publication of prices, as specified in the judgment quoted above, and publication of transport conditions. While Article 60 is peremptory and imposes a strict obligation on the seller, Article 70 does not impose any obligation on carriers and the High Authority gave itself legislative powers in the belief that this is required by the objectives of the Common Market. This is aggravated by the fact that the High Authority used these powers to oblige carriers to lay down fixed tariffs and not to conclude contracts the clauses of which can and usually do differ from each other. Such a requirement is contrary to the third paragraph of Article 70.
E. Infringement of the fifth paragraph of Article 70 of the Treaty
F. Infringement of the second paragraph of Article 47 of the Treaty
G. Infringement of the fifth paragraph of Article 70, the first paragraph of Article 2, taken together with Article 26, the second paragraph of Article 2, taken together with Article 37, and Article 5 of the Treaty.
(a). In the case of road-haulage undertakings:
(b). In the case of the Netherlands:
H. Infringement of Articles 3 and 5 of the Treaty
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 exercise 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 recourse, 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 and the interveners it is right to annul Decision No 18/59 of the High Authority.
IV —. Under Article 69 (2) of the Rules of Procedures the High Authority must bear the costs.
On those grounds, 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: