JUDGMENT OF 12. 7. 1962 — CASE 9/61 NETHERLANDS v HIGH AUTHORITY

In Case 9/61

THE COURT composed of: A. M. Donner, President, O. Riese and R. Rossi (Presidents of Chambers), L. Delvaux, Ch. L. Hammes (Rapporteur), A. Trabucchi and R. Lecourt, 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 — The procedure followed

B — The contests of the recommendation

IV — Procedure

Grounds of judgment

I — The procedure followed by the High Authority

A

B

II — The nature of the contested measure

III — The content of the Recommendation

A — General

B — Particular provisions of the Recommendation

Costs

I —. Facts

1. On 12 July 1956, the High Authority sent out to the Governments of Member States the report drawn up on 21 February 1956 by the Committee of Experts on Transport, set up pursuant to Article 10 of the Convention on the Transitional Provisions.

2. On the basis of this report, negotiations took place within the special Council of Ministers, with a view to implementing common measures for the application of the provisions of the Treaty relating to road transport for the account of third parties within the Common Market. These negotiations did not lead to an agreement.

3. By letter of 12 August 1958 the High Authority requested the Governments of the six Member States to take the necessary steps to comply with the obligation to publish transport scales and rates, as provided by the third paragraph of Article 70 of the Treaty, that is to say publication accompanied by conditions which comply with the requirements for the functioning of the Common Market.

4. By letter of 29 November 1958 addressed to the High Authority, the Netherlands Minister of Transport and Waterways stated that he was ready to take the necessary measures for communicating the rates and conditions of carriage to the High Authority after the conclusion of transport agreements.

5. On 18 February 1959, the High Authority took Decision No 18/59 relating to the publication or communication to the High Authority of scales, rates and tariff rules of every kind applied to the carriage by road of coal and steel for the account of third parties within the Community.

6. On 24 April 1959, the Government of the Kingdom of the Netherlands, in conj unction with five Netherlands undertakings, lodged at the Court Registry an Application registered under No 25/59, for the annulment of Decision No 18/59 of the High Authority.

7. On 1 March 1961, the High Authority considered and adopted Recommendation No 1/61 to the Governments of the Member States, concerning the publication or communication of the scales, rates and tariff rules applied to the carriage of coal and steel. This Recommendation covers all types of transport within the Community. It was notified to the Netherlands Government by letter of 4 March 1961 and published in the Official Journal of the European Communities of 9 March 1961 (pp. 469 et seq.).

8. Recommendation No 1/61 is based in particular on the following considerations :

9. On 6 April 1961 the Government of the Kingdom of the Netherlands lodged at the Court Registry an application for the annulment of Recommendation No 1/61 under Article 33 or alternatively, under Article 88 of the Treaty establishing the European Coal and Steel Community.

10. On 19 July 1961, Les Charbonnages de France, Les Houillières du Bassin du Nord et du Pas-de-Calais and Les Houillières du Bassin de Lorraine lodged at the Court Registry an application for leave to intervene with the object of supporting the conclusions of the defendant High Authority; this application for leave to intervene was declared to be admissible by Order of the Court of 26 September 1961.

II —. Conclusions of the parties

1. The applicant claims that Recommendation No 1/61 of 1 March 1961 should be annulled and that the High Authority should be ordered to pay the costs.

2. The defendant contends that the Court should dismiss as unfounded the application of the Government of the Kingdom of the Netherlands and order the applicant to pay the costs.

III —. Submissions and arguments of the parties

A —. The procedure followed

1. The applicant is of the opinion that the High Authority is not entitled to address a recommendation to Member States when, as in the case of transport, the Treaty does not expressly provide for such action.

2. The applicant argues in the second place that a recommendation which is only a simple reminder of existing obligations imposed by the Treaty and does not set any new objectives has no effect and is, moreover, incompatible with Article 88, because it can only be the subject matter of an application based on Article 33, whereas, in the case of a difference of opinion between Member States and the High Authority on the objectives of the Treaty, Article 88 provides for the institution of proceedings in which the Court has unlimited jurisdiction. Further, the applicant considers that it follows clearly from the content and general scheme of the contested recommendation that the High Authority is of the opinion that Member States have failed to fulfil an obligation imposed on them by the Treaty, that it wishes to put this omission on record and to set the Member States a time limit for the fulfilment of their obligations.

3. The applicant, which has no doubt that in this case the procedure of Article 88 must be followed, raises the question whether by the contested Recommendation the High Authority has not in fact, whether it intended to or not, taken a reasoned decision within the meaning of Article 88 of the Treaty. If this view is correct, it asks the Court to treat its application in its entirety as an application instituting proceedings in which the Court has unlimited jurisdiction under Article 88 of the Treaty.

B —. The contests of the recommendation

1. The applicant, relying on the third paragraph of Article 14 of the Treaty, takes the view that a recommendation of the High Authority lays down binding rules, although to a lesser extent than a decision, and that the wording of the specified aims and their definition and the appropriate methods of achieving these aims must therefore be stated clearly.

2. The applicant maintains that the contested Recommendation must be annulled, because it was not really intended to invite Member States to take the necessary measures to implement the third paragraph of Article 70, but, in breach of the Treaty, to determine unilaterally the aims to be achieved by publication or communication of scales, rates and tariff rules.

3. The following arguments concerning the subject matter of the contested Recommendation are put forward by each of the parties in support of these views:

IV —. Procedure

I —. The procedure followed by the High Authority

1. It is appropriate to consider whether the provisions of Article 70 of the Treaty lay down for Member States obligations with which the High Authority has to ensure compliance or whether this Article is only a declaration of principle which does not imply any duty on the part of either the Community institutions or the Member States.

(a). It emerges from the clear wording of Article 70 of the Treaty that the High Contracting Parties recognize in the case of transport:

(b). The fourth indent of the second paragraph of Article 5 imposes on the High Authority the duty to ensure the observance of the rules laid down in the Treaty.

1. Article 14 places at the disposal of the High Authority in order to carry out the tasks assigned to it two courses of action, which it must use in accordance with the provisions of this Treaty.

2. There is therefore no need to dwell any longer on the applicant's submission that, in the absence of an express authorization in the Treaty, the High Authority could only derive power to make regulations in this case under the first paragraph of Article 95 which applies to cases not provided for in this Treaty where it becomes apparent that a decision or recommendation of the High Authority is necessary to attain … one of the objectives of the Community…

II —. The nature of the contested measure

III —. The content of the Recommendation

A —. General

B —. Particular provisions of the Recommendation

1. The applicant makes two different complaints with regard to Article 1 of the Recommendation:

2. The applicant complains that Article 2 of the Recommendation disregards the sovereignty of Member States by obliging them to adopt all appropriate measures by establishing a system of checks and sanctions to ensure compliance with the legislation at present in force or to be enacted for the purpose of achieving the aims set out in Article 1.

3. The applicant maintains that the fixing of the time limit imposed upon governments by Article 4(1) of the Recommendation:

4. The applicant is of the opinion that the fact that Article 4 (2) of the Recommendation requires the governments of the Member States to communicate to the High Authority by 31 October 1961 the content of measures which they propose to adopt in order to implement the contested Recommendation is an infringement of the Treaty.

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 2, 3, 4, 5, 8, 14, 15, 33, 60, 70, 86, 88 and 95 of the Treaty establishing the European Coal and Steel Community; Having regard to Article 10 of the Convention on the Transitional Provisions; 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;

2 Orders the applicant to pay the costs of the action.