JUDGMENT OF 18.5.1962 — CASE 13/60 GEITLING v HIGH AUTHORITY

In Case 13/60

THE COURT composed of: A. M. Donner, President, O. Riese and J. Rueff (Rapporteur) (Presidents of Chambers), Ch. L. Hammes 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— Summary of the submissions and arguments of the parties

On the substance of the case

1. Infringement of essential procedural requirements

(a) Insufficiency of reasons for the finding as to the requirements of Article 65(2) (a) and (b) of the Treaty

(b) Insufficiency of reasons with reference to the requirements of Article 65(2)(c) of the Treaty, especially with regard to a power to determine prices of Ruhr coal

2. Infringement of the Treaty

(a) Infringement of Article 65 (2) (a) and (b)

(b) Infringement of Article 65(2)(c)

(a) General

(b) The four conditions contained in Article 65(2) (c)

(i) The concept of'power to determine prices'

(ii) The concept of marketing control

(iii) The concept of a substantial part of the products in question

(iv) The concept of the Common Market

(c) Manifest failure to observe the Treaty

(d) Exceptional circumstances

3. Misuse of power

IV — Procedure

Grounds of judgment

Admissibility

On the substance

1. The submissions of the parties

2. Respective positions of the High Authority and of the Court with regard to Article 65 of the Treaty

3. Infringement of the Treaty

A — Misinterpretation and misapplication of the Treaty

(a) The concept of the power to determine prices

(b) The concept ofthe control of marketing

(c) The concept of a substantial part of the products in question within the Common market

B — Erroneous findings of fact

C — Manifest failure to observe the provisions of the Treaty

4. Infringement of an essential procedural requirement

Costs

I —. Facts

II —. Conclusions of the parties

1. annul Decision No 16/60 of the High Authority of 22 June 1960 (Official Journal of the European Communities, 3rd Year, No 47, of 23 July 1960, pp. 1014/60 et seq.);

2. order the High Authority to pay the costs.

1. annul Decision No 16/60 of the High Authority of 22 June 1960 (Official Journal of the European Communities, 3rd Year, No 47, of 23 July 1960, pp. 1014/60 et seq.);

2. order the High Authority to pay the costs.’

III—. Summary of the submissions and arguments of the parties

1. Infringement of essential procedural requirements

(a). Insufficiency of reasons for the finding as to the requirements of Article 65(2) (a) and (b) of the Treaty

(b). Insufficiency of reasons with reference to the requirements of Article 65(2)(c) of the Treaty, especially with regard to a power to determine prices of Ruhr coal

(a). According to the applicants the High Authority does not have sufficient regard to the qualitative aspect of the power to determine prices and infers this solely from a few statistics, in particular from the fact that the applicants effect 80 % of their sales in the Federal Republic and fulfil 73.1 % of Germany's coal consumption requirements, and also from the fact that their sales within the Federal Republic represent 59 % and 48.5 % respectively of sales in the Common Market of coal and coke. This shows clearly that the concept of power to determine prices has been misunderstood. This power can never result from mere figures.

(b). According to the applicants the High Authority also failed to appreciate the fact that a power to determine prices can never be ascertained on the basis of the circumstances obtaining during a given year; the High Authority has consistently taken as its basis the year 1959 alone, whereas the market situation and the actual state of competition can only be judged over a longer period of time. Had the High Authority adopted the latter method it would have found that the state of competition in respect of coal production in general, and of Ruhr coal in particular, had been deteriorating steadily for years, notably because of the increasing consumption of fuel-oils within the Federal Republic. The defendant replies that the year 1959, upon which the contested Decision is principally based, was the most unfavourable year for the coal market up to the present time. It is thus in the applicants' interest that it be taken into account. Furthermore, 1959 was the most recent complete year when the decision was taken.

(c). The applicants state that:

(d). The applicants state that the High Authority was mistaken upon certain matters of detail; by arriving at inexact or incomplete findings in respect of isolated facts it was acting contrary to its Eighth General Report on the activities of the Community; it failed to appreciate the following matters, amongst others:

(e). I he applicants express the opinion that the Ruhrkohle Verkaufsgesellschaft mit beschrankter Haftung has no power to determine prices since it cannot make an independent choice as to the level of prices in respect of a substantial proportion of its sales. The influence on prices which would result naturally from the formation of a single joint-selling agency, in that it eliminates competition between the members of the cartel, is not relevant to the question whether the cartel as such has the actual power to determine prices on the market for the goods it sells. The influence upon prices exercised by the practice of joint selling does not amount to domination of the market or to the exercise of a power to determine prices within the meaning of Article 65(2) (c) (cf. the opinion of Mr Advocate-General Lagrange in Joined Cases 36 to 38/59). In the present case, there could only be said to be a prohibited cartel if Ruhrkohle Verkaufsgesellschaft no longer encountered any real competition on the market.

(f). The applicants state that there is clearly no cartellization in respect of a substantial proportion of the products in question in the Common Market.

2. Infringement of the Treaty

(a). Infringement of Article 65 (2) (a) and (b)

(b). Infringement of Article 65(2)(c)

(a). General

(b). The four conditions contained in Article 65(2) (c)

(i). The concept of'power to determine prices'

(ii). The concept of marketing control

(iii). The concept of a substantial part of the products in question

(iv). The concept of the Common Market

(c). Manifest failure to observe the Treaty

(d). Exceptional circumstances

3. Misuse of power

IV —. Procedure

1. The submissions of the parties

2. Respective positions of the High Authority and of the Court with regard to Article 65 of the Treaty

3. Infringement of the Treaty

A —. Misinterpretation and misapplication of the Treaty

(a). the concept of the power to detemine prices;

(b). the concept of the control of marketing;

(c). the concept of a substantial part of the products in question within the Common Market.

(a). The concept of the power to determine prices

(b). The concept ofthe control of marketing

(c). The concept of a substantial part of the products in question within the Common market

B —. Erroneous findings of fact

C —. Manifest failure to observe the provisions of the Treaty

4. Infringement of an essential procedural requirement

Unon 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, 5, 33, 65 and 66 of the Treaty establishing the European Coal and Steel Community, Article 24 of the Protocol on the Statute of the Court annexed to that Treaty, Article 85 of the Treaty establishing the European Economic Community and Articles 69 and 93 of the Rules of Procedure of the Court; THE COURT hereby:

1 Dismisses Application 13/60 as being unfounded;

2 Orders the applicants and the intervener to pay the costs of the action.