Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Although the proceedings brought by the Dutch and Italian Governments are not joined cases, I should nevertheless like to combine my views on both cases and give one single opinion. The identity of the matters in dispute, the similarity of the interests being defended and the large measure of common ground in the arguments put forward permit such a procedure in my view, and indeed make it appear desirable for the purpose of an effective discussion of the problems in dispute. It goes without saying that, having regard in particular to the status of the applicants, I will make it my business to carry out an exhaustive evaluation of all the issues which have arisen, for a neglect of individual arguments as a result of the joint treatment of both applications could naturally not be contemplated.

The proceedings are concerned with the repeated efforts of the High Authority to require Member States of the Community by binding measures to bring about in the field of transport a situation which in its opinion is prescribed by the Treaty. They follow the proceedings in which, pursuant to applications also made by the Dutch and Italian Governments, the attempts of the High Authority to activate Member States by its Decisions of 18 February 1959, which had their legal basis in Article 88, were declared inadmissible.

After publication of the judgments in Cases 20/59 and 25/59 the High Authority issued the now contested Recommendation No 1/61 by which it intended to induce the governments of the Member States to take implementing measures for the publication or communication of scales, rates and tariff rules for the carriage of coal and steel. The Recommendation with a covering letter of the High Authority was addressed to the governments of all Member States — including the Government of the Kingdom of the Netherlands and the Government of the Italian Republic. Inaddition, it was published in the Official Journal of the European Communities of 9 March 1961 at page 469.

The applications are based on Article 33 of the Treaty. The Netherlands Government relies in the alternative on Article 88 of the Treaty. Both Governments seek the complete annulment of the entire Recommendation. The following parties have intervened in the proceedings brought by the Netherlands Government:

They support the conclusions of the High Authority so far as their objective is concerned but put forward some arguments which the High Authority expressly states do not completely correspond with its own views. At this juncture it should be emphasized that naturally when the interpretation of its statements is at issue the opinion of the High Authority prevails over that of the interveners.

The applicants' complaints may be summarized as follows:

In the third group the arguments put forward are principally as follows:

For detailed particulars of these arguments, permit me to refer to the detailed report of the Judge-Rapporteur and to the discussion in the legal examination.

Legal Consideration

I — On admissibility

The question of admissibility does not arise in this case. Therefore the legal examination of the substance of the case can proceed immediately.

II — The individual complaints

1. The procedure followed

(a). The Netherlands Government is of the opinion that the High Authority in fact intended to make a decision under Article 88 without observing the conditions laid down in that Article.

(b). Should the High Authority have issued a recommendation? The Italian Government regards the Recommendation of the High Authority as an abuse of procedure. In its view after delivery of the judgment of 15 July 1960 proceedings under Article 88 should have been continued, for the Italian Government answered on 8 January 1959 the letter of the High Authority of 12 August 1958 and stated that it was prepared to take measures within the framework of the three possibilities specified by the High Authority. The latter should, the Italian Government says, have studied its answer and confirmed that there was no infringement of the Treaty. In my opinion in Cases 20/59 and 25/59 I took the view that the High Authority could resume proceedings under Article 88 provided that it complied with the necessary conditions. Today I hold the same view. But I am equally convinced that the High Authority was not obliged to proceed again under Article 88. For the High Authority the procedure under Article 88 was one attempt to achieve the realization of the aims of the third paragraph of Article 70. As the Court declared its efforts to be unlawful it was obliged under Article 34 of the Treaty to take the necessary steps to comply with the judgment.

2. Defects in the form of the Recommendation

The complaints which have been made concerning the clarity of the subject matter and the accuracy of the wording, the statement of reasons given and related questions are directed to procedural defects in their widest sense of that term.

(a). In the opinion of the Netherlands Government the reference in the Recommendation to the proper functioning of the Common Market, to Articles 2 to 5 of the Treaty, the aims of which, according to the finding of the Court, cannot all be realized at the same time and to the same extent, and the reference both to Article 60 and to the decisions of the High Authority for implementing Article 60 are not sufficiently accurate guide lines for the addressees of the Recommendation. It finds proof of lack of clarity in the request of the High Authority for prior communication of the proposed measures, which is intended to make it possible to guide the national governments in the right direction.

(b). The Italian Government objects that the High Authority addressed one and the same Recommendation to all Member States without taking account of particular circumstances of individual Member States. The proper course would have been to make distinctions accordingly and therefore the issue of an individual measure specially addressed to the Italian Government would have been appropriate.

(c). The complaint of a deficiency in the statement of reasons, of which the Netherlands Government gives particulars, to the extent that it describes the Recommendation as failing to give any indication of the legal basis of the measure taken, of its legal nature and of the procedure adopted by the High Authority, is to some degree identical with the complaint that the content of the Recommendation is stated with insufficient precision.

(d). Finally, I must deal with the objection of the Italian Government that the Recommendation does not give the Member States sufficient room for the exercise of their discretion and therefore disregards the requirements of Article 14. Symptomatic of this is the fact that the governments were called upon to communicate their proposed measures to the High Authority by 31 October 1961. In the event of a difference of opinion the High Authority has therefore reserved the right to itself to prescribe the necessary measures. It is certainly not correct that the wording of the Recommendation gives no latitude in the choice of methods to the governments of the Member States. As I have already mentioned, the preamble to and the operative part of the Recommendation merely designate the obligations of Member States under the Treaty and specify the aims which must be observed when they are being implemented. In contrast to Decision No 18/59, which was annulled, there is no information concerning the procedure to be followed in particular cases. It is even expressly pointed out that States are entitled to adopt the measures to be taken by them by taking into account the individual characteristics of the various modes of transport.

3. Complaints relating to the subject matter of the Recommendation

The applicants raise the general objection that, by stating the aims which are to be achieved under Article 70 with the help of government measures, the High Authority has laid down no obligations which are more far-reaching than those imposed upon Member States by the Treaty. The essence and purpose of the third paragraph of Article 70 is to enable the High Authority to check the observance of the prohibition of discrimination.

(a). Above all the High Authority wrongly requires that the publication or the law concerning prices under the Treaty.

(b). The Netherlands Government finds another complaint concerning the content of the Recommendation in the idea that the High Authority requires a publication of tariffs or a communication of rates in such a manner that it as well as the users and producers can check in advance that the prohibition of discrimination under the first and second paragraphs of Article 70 is being observed; this, in the opinion of the Court (judgment in Case 25/59), is not permissible. Prior checking is only possible, if at all, by means of published tariffs, the compatibility of which with the first and second paragraphs of Article 70 is verified before their application, or where, before the conclusion of a specific transport contract, its conditions are made available to the High Authority or to the public. It must however be stated that the Recommendation of the High Authority is not drafted in this way. It would otherwise in fact vary considerably the alternative provided by the Treaty (publication or communication to the High Authority). As the High Authority confines itself to reproducing the wording of the third paragraph of Article 70 and does not mention prior checking in the enumeration of the aims to be pursued, it must be assumed that it did not intend to exclude the possibility of subsequent checks, which result from the mere communication of applied rates. In fact the applicant's argument does not represent a valid objection but an unfounded fear.

(c). In a third comment on the content of the Recommendation both applicants emphasized that the third paragraph of Article 70 is not intended to facilitate the implementation of measures for establishing through international tariffs and for harmonization of rates and conditions of carriage. We are concerned here with matters which were mentioned exclusively in the Convention on the Transitional Provisions, since expired, and which could only be the subject matter of agreements between governments outside the Treaty.

(d). In the opinion of the Netherlands Government the High Authority wrongly provides for the entry into force of checks and sanctions, which amount to an unwarrantable interference with the sovereignty of the State.

(e). According to the Netherlands Government the time-limit fixed by Article 4 of the Recommendation is also defective, because it is not based on Article 88 of the Treaty and because government measures must only be initiated within the time-limit laid down, which can lead to inequalities among the Member States.

(f). Finally with regard to the content of the Recommendation both applicants object to the instruction to give prior notice of the proposed measures. The Treaty only acknowledges a posteriori checks (Article 88).

III — Conclusion

After careful consideration of all the arguments I come to the following conclusion:

1 Translated from the German.

2 Government of the Italian Republic v High Authority of the European Coal and Steel Community.

3 Rec. 1960.

4 Rec. 1960.