JUDGMENT OF 14. 7. 1961—JOINED CASES 9 AND 12/60 VLOEBERGHS v HIGH AUTHORITY

In Joined Cases 9/60 and 12/60

THE COURT composed of: A. M. Dormer, President, Ch. L. Hammes and N. Catalano (Judge-Rapporteur), Presidents of Chambers, O. Riese, L. Delvaux, J. Rueff and R. Rossi, 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. Admissibility

A — The application in Case 9/60

B — The application in Case 12/60

2. On the substance of the case

A - As regards the application in Case 9/60

The High Authority's failure to act

The damage

B — As regards Case 12/60

Infringement of the Treaty

Misuse of powers

IV — Procedure

Grounds of judgment

A — The admissibility of the application for failure to act (Case 12/60)

B — The admissibility of the application for compensation (Case 9/60)

1. The meaning of the first paragraph of Article 40

2. The capacity to bring an action under Article 40

3. Subject-matter of the application

C— On the substance of the case

D — Costs

I —. Facts

1. The applicant is established in Antwerp as an importer of solid and liquid fuels. It also runs a factory in the port of Antwerp containing plant similar to the pit-head plant at a mine, especially a modern dense-liquid washing plant, enabling it to treat imported solid fuels (crushing, sizing, screening and washing). It has in addition a factory for the manufacture of compressed fuels.

2. On 3 May 1960, that company sent to the High Authority a letter in which, basing itself on Article 35 of the Treaty, it asked itto take a decision in respect of the French Government requiring the latter to authorize French importers and/or dealers to buy freely the anthracite which it imported from third countries and treated in its plant provided that this anthracite was put into free circulation in Belgium. Further, it asked that emergency measures should be taken in respect especially of certain stocks frozen since 1957.

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

1. Admissibility

A —. The application in Case 9/60

(a). After having emphasized the various objective conditions to which Article 34 subjects the financial liability of the High Authority, it deduces from them that the authors of the Treaty clearly had here a particularly restrictive intention. From that consideration and from the reference made by Article 40 to the application of Article 34, it deduces that where a decision of the High Authority is annulled persons not mentioned in Article 34 cannot put in issue by means of Article 40 the financial liability of the High Authority for a wrongful act or omission following from the irregularity of the annulled decision.

(b). If the possibility of applying Article 40 when there has not been a prior application for annulment is accepted, it is necessary to accept the co-existence of two different systems of liability dependent upon whether there has or has not been a prior application for annulment.

(c). If the financial liability following from non-compliance with the Treaty of the acts or failures to act of the High Authority could be put in issue by means of Article 40 of the Treaty, those concerned would have a means of setting in motion the judicial review of legality. The High Authority, once found liable under Article 40, cannot of course refuse to draw the consequences from the findings of the Court on the non-conformity with the Treaty of its act or failure to act. Thus the limit imposed by the Treaty as regards those entitled to call for a judicial review of legality would in fact lose all practical significance.

(a). In the first place it denies that the legality of an act or omission of the High Authority can be reviewed only through proceedings for annulment. This contention finds no support in the positive law of the Member States and it is contradicted by the Treaty itself which provides, in addition to proceedings for annulment (Articles 33 to 35), for other forms of action, including those mentioned in Article 40.

(b). In the second place, the applicant disputes the meaning attributed to Article 34 by the defendant which considers that this provision is applicable where an application for damages calls in issue the legality not only of a decision but, more widely, of any act or omission of the High Authority. Article 34 on the contrary refers only to an action based on liability derived from a wrongful decision or recommendation of the High Authority. The applicant denies that Article 34 would be applicable in case of an implied decision capable of giving rise to an application for failure to act since, on the one hand, the cause of the damage is not to be found exclusively in such refusal, but also and mainly in an omission which may, at the time of the implied decision of refusal, already have lasted for a long time.

B —. The application in Case 12/60

(a). That the operations of processing coal carried out by the Vloeberghs firm comes within the normal activity of a dealer and cannot confer upon it the status of an undertaking within the meaning of Article 80 of the Treaty.

(b). Furthermore the applicant based its action on its status as a dealer, relying on the right to free movement within the Community for coal from third countries which has been properly cleared through customs in one of the countries of the Community, which shows that the rejection already given to the notice submitted by Vloeberghs under Article 35 is well founded. According to the case-law of the Court in Cases 7/54 and 9/54 on the one hand and 18/57 on the other, undertakings carrying out distribution activities have not the capacity to make an application on the basis of Article 35.

2. On the substance of the case

A -. As regards the application in Case 9/60

B —. As regards Case 12/60

IV —. Procedure

A —. The admissibility of the application for failure to act (Case 12/60)

B —. The admissibility of the application for compensation (Case 9/60)

1. The meaning of the first paragraph of Article 40

2. The capacity to bring an action under Article 40

3. Subject-matter of the application

C—. On the substance of the case

(a). The applicant maintains that when the Treaty prescribes the free movement of products of the Member States, this implies also the free movement of products originating in third countries, which are lawfully granted by one of the Member States the right of entry into its own territory.

(b). The applicant maintains that the High Authority was guilty of a wrongful omission by abstaining from ensuring respect, by applying the procedure laid down in Article 88, for the abovementioned rule of free movement, and that because of this wrongful omission the applicant was not in a position to make regular sales in France of the coal which it had imported into Belgium, and that consequently the High Authority is obliged to compensate it for the damage caused to it by this infringement of its rights.

D —. 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 2, 3, 4, 33, 35, 40, 71 and 73 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:

1 Dismisses the application in Case 9/60 as unfounded;

2 Dismisses the application in Case 12/60 as inadmissible;

3 Orders the applicant to pay the costs.