61959CV0001_EN
Subject of the case
Grounds
Endorsements
Operative part
Subject of the case
HAVING REGARD TO THE REQUEST FOR THE OPINION OF THE COURT SUBMITTED ON 4 DECEMBER 1959 BY THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS OF THE EUROPEAN COAL AND STEEL COMMUNITY, PURSUANT TO THE THIRD AND FOURTH PARAGRAPHS OF ARTICLE 95 OF THE ECSC TREATY
Grounds
P. 268
ARTICLE 95 OF THE TREATY PROVIDES THAT THE AMENDMENTS REFERRED TO IN THE THIRD PARAGRAPH OF THAT ARTICLE SHALL BE SUBMITTED TO THE COURT FOR ITS OPINION, AND THAT THE COURT SHALL DETERMINE WHETHER THE PROPOSALS ARE COMPATIBLE WITH THE PROVISIONS OF THE SAID PARAGRAPH.
THE THIRD PARAGRAPH PROVIDES
(A) THAT THE PURPOSE OF THESE AMENDMENTS MUST BE TO ADAPT THE RULES FOR THE HIGH AUTHORITY'S EXERCISE OF ITS POWERS;
(B) THAT SUCH AMENDMENTS MAY BE PROPOSED ONLY IF UNFORESEEN DIFFICULTIES EMERGING IN THE LIGHT OF EXPERIENCE, OR FUNDAMENTAL ECONOMIC OR TECHNICAL CHANGES DIRECTLY AFFECTING THE COMMON MARKET IN COAL AND STEEL, MAKE SUCH ADAPTATION NECESSARY; (C) THAT FURTHERMORE, THIS ADAPTATION MUST INVOLVE THE MAKING OF APPROPRIATE AMENDMENTS; AND FINALLY
(D) THAT THESE AMENDMENTS MUST NOT CONFLICT WITH THE PROVISIONS OF ARTICLES 2, 3 AND 4,
(E) OR INTERFERE WITH THE RELATIONSHIP BETWEEN THE POWERS OF THE HIGH AUTHORITY AND THOSE OF THE OTHER INSTITUTIONS OF THE COMMUNITY.
MOREOVER IT FOLLOWS FROM THESE CONDITIONS TAKEN AS A WHOLE THAT DEROGATION FROM THE NORMAL PROCEDURE FOR AMENDMENT OF THE TREATY IS PERMISSIBLE ONLY WHERE IT DOES NOT INTERFERE WITH THE GENERAL STRUCTURE OF THE TREATY OR THE RELATIONSHIP BETWEEN THE COMMUNITY AND THE MEMBER STATES, PARTICULARLY THE RELATIONSHIP BETWEEN THE POWERS TRANSFERRED TO THE COMMUNITY AND THE POWERS RESERVED TO THE MEMBER STATES, AND THAT THE PROCEDURE FOR " MINOR AMENDMENT " OF THE TREATY CAN BE ADOPTED ONLY IN THESE CASES.
IN CONSIDERING THE AMENDMENT, THE COURT MUST THEREFORE EXAMINE WHETHER THE CONDITIONS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 95 SET OUT ABOVE ARE FULFILLED BOTH IN LAW AND IN FACT.
THE NEW ARTICLE, WHICH THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS PROPOSE TO ADD TO THE CURRENT TEXT OF ARTICLE 56, READS AS FOLLOWS:
P. 269
" IF FUNDAMENTAL CHANGES IN MARKETING CONDITIONS FOR THE COAL INDUSTRY SHOULD COMPEL SOME UNDERTAKINGS PERMANENTLY TO DISCONTINUE, CURTAIL OR CHANGE THEIR ACTIVITIES, THE HIGH AUTHORITY, ON APPLICATION BY THE GOVERNMENTS CONCERNED:
(A) MAY FACILITATE, IN THE MANNER LAID DOWN IN ARTICLE 54, EITHER IN THE INDUSTRIES WITHIN ITS JURISDICTION OR, WITH THE ASSENT OF THE COUNCIL, IN ANY OTHER INDUSTRY, THE FINANCING OF SUCH PROGRAMMES AS IT MAY APPROVE FOR THE CREATION OF NEW AND ECONOMICALLY SOUND ACTIVITIES OR FOR THE CONVERSION OF EXISTING UNDERTAKINGS CAPABLE OF REABSORBING THE REDUNDANT WORKERS INTO PRODUCTIVE EMPLOYMENT;
(B) SHALL PROVIDE NON-REPAYABLE AID TOWARDS:
THE PAYMENT OF TIDEOVER ALLOWANCES TO WORKERS;
THE PAYMENT OF ALLOWANCES TO UNDERTAKINGS TO ENABLE THEM TO CONTINUE PAYING SUCH OF THEIR WORKERS AS MAY HAVE TO BE TEMPORARILY LAID OFF AS A RESULT OF THE UNDERTAKINGS'CHANGE OF ACTIVITY;
THE PAYMENT OF RESETTLEMENT ALLOWANCES TO WORKERS;
THE FINANCING OF VOCATIONAL RETRAINING FOR WORKERS HAVING TO CHANGE THEIR EMPLOYMENT.
THE HIGH AUTHORITY SHALL MAKE THE PROVISION OF NON-REPAYABLE AID CONDITIONAL UPON PAYMENT BY THE STATE CONCERNED OF A SPECIAL CONTRIBUTION OF NOT LESS THAN THE AMOUNT OF THAT AID, UNLESS AN EXCEPTION IS AUTHORIZED BY THE COUNCIL, ACTING BY A TWO-THIRDS MAJORITY.
ASSISTANCE UNDER THIS ARTICLE MAY BE PROVIDED ONLY UNTIL 10 FEBRUARY 1963 ".
ACCORDING TO THE MINUTES WHICH THE COURT REQUESTED TO BE PRODUCED BEFORE IT ON 15 DECEMBER 1959, THE SPECIAL COUNCIL OF MINISTERS ADOPTED THE DRAFT AMENDMENT AT ITS MEETING ON 17 NOVEMBER 1959. IT IS APPARENT FROM A LETTER FROM THE SECRETARY-GENERAL OF THE COUNCIL THAT THIS DECISION WAS TAKEN BY A MAJORITY OF AT LEAST FIVE-SIXTHS, A FACT WHICH IS NOT STATED IN THE MINUTES.
(A) THE DRAFT DOES NOT INVOLVE ANY STRUCTURAL AMENDMENT TO THE TREATY, AND ALTHOUGH IT ALTERS THE POWER OF THE HIGH AUTHORITY TO PROVIDE THE SUBSIDIES REFERRED TO IN ARTICLE 56, THAT AMENDMENT DOES NOT IMPLY THE TRANSFER OF POWERS FROM THE MEMBER STATES TO THE COMMUNITY AND DOES NOT LIMIT THE POWERS OF THE MEMBER STATES IN ANY WAY.
P. 270
SINCE THE TREATY PATENTLY INTENDED TO EXCLUDE THE USE OF THE THIRD PARAGRAPH OF ARTICLE 95 AS A MEANS OF CONFERRING NEW POWERS ON THE HIGH AUTHORITY, IT IS NECESSARY TO CONSIDER WHETHER THE PROPOSED AMENDMENT ADAPTS THE RULES FOR THE HIGH AUTHORITY'S EXERCISE OF ITS POWER.
THE PROPOSED ADDITION, ARTICLE 56A, IS DRAFTED, WITH THE EXCEPTION OF A FEW DETAILS, IN TERMS IDENTICAL TO THOSE OF THE LIST OF POWERS LAID DOWN IN THE EXISTING ARTICLE 56.
HOWEVER THE TERMS DIFFER IN SO FAR AS THEY CONCERN THE DETERMINING OF THE BASIC CONDITIONS FOR THE EXERCISE OF THOSE POWERS.
IN PRINCIPLE, NO OBJECTION CAN BE MADE TO AN AMENDMENT TO THE DETAILED RULES FOR THE EXERCISE OF A POWER, BECAUSE FUNDAMENTAL ECONOMIC OR TECHNICAL CHANGES, WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 95, INVOLVE A CHANGE IN THE STRUCTURE OF THE COMMON MARKET IN COAL AND STEEL AND THUS MAKE IT NECESSARY TO ADAPT THE DETAILED RULES FOR THE EXERCISE OF EXISTING POWERS.
IF THIS WERE NOT THE CASE, THE THIRD PARAGRAPH OF ARTICLE 95 WOULD BE MEANINGLESS AND OF NO PRACTICAL EFFECT.
(B) FURTHERMORE THE COURT MUST CONSIDER WHETHER THE ADAPTATION IS NECESSARY BECAUSE:
EITHER OF UNFORESEEN DIFFICULTIES EMERGING IN THE LIGHT OF EXPERIENCE IN THE APPLICATION OF THE TREATY,
OR OF FUNDAMENTAL ECONOMIC OR TECHNICAL CHANGES DIRECTLY AFFECTING THE COMMON MARKET IN COAL AND STEEL.
THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS STATE THAT UNFORESEEN DIFFICULTIES WHICH EXPERIENCE HAS BROUGHT TO LIGHT AND FUNDAMENTAL ECONOMIC CHANGES MAKE THE PROPOSED AMENDMENT NECESSARY.
ACCORDING TO THE STATEMENT OF THE REASONS FOR THIS PROPOSAL, THE REFERENCE TO UNFORESEEN DIFFICULTIES IN THE APPLICATION OF THE TREATY RELATES TO THE DIFFICULTIES ARISING FROM THE EXPIRY OF THE VALIDITY OF THE CONVENTION OF THE TRANSITIONAL PROVISIONS AND IN PARTICULAR FROM THE EXTINGUISHMENT OF THE POWERS CONFERRED BY ARTICLE 23 OF THAT CONVENTION.
THUS SINCE THE PROPOSED AMENDMENT INTENDS, AT LEAST IN PART, TO EXTEND BEYOND THE TRANSITIONAL PERIOD THE POWERS GRANTED TO THE HIGH AUTHORITY BY THE CONVENTION ON THE TRANSITIONAL PROVISIONS, IT IS IMPORTANT TO CONSIDER WHETHER IN THIS CASE SUCH AN EXTENSION FULFILS THE CONDITIONS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 95.
P. 271
WITHOUT DEVELOPING ALL THE ARGUMENTS FOR A NEGATIVE ANSWER, IT IS SUFFICIENT TO STATE THAT ALL AMENDMENTS TO THE PROVISIONS CONCERNING THE TRANSITIONAL PERIOD, AND IN PARTICULAR ANY GENERAL OR PARTIAL EXTENSION OF THAT PERIOD, ARE EXCLUDED BECAUSE THE AMENDMENT IN QUESTION IS PERMISSIBLE ONLY IN RESPECT OF THE PERIOD COMMENCING WITH THE EXPIRY OF THE TRANSITIONAL PERIOD.
SINCE THE DIFFICULTIES INVOKED BY THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS CANNOT BE ACKNOWLEDGED TO BE UNFORESEEABLE DIFFICULTIES, THEY DO NOT OF THEMSELVES JUSTIFY THE PROPOSED AMENDMENTS. IN THIS CASE THESE AMENDMENTS WOULD ONLY BE JUSTIFIED IF THE SECOND OF THE ALTERNATIVE SITUATIONS PUT FORWARD BY THE APPLICANTS WERE TRUE, THAT IS TO SAY, IF FUNDAMENTAL ECONOMIC OR TECHNICAL CHANGES DIRECTLY AFFECTING THE COMMON MARKET IN COAL AND STEEL EXISTED.
IT IS COMMON KNOWLEDGE THAT ON THE ONE HAND THE APPEARANCE ON THE MARKET OF NEW SOURCES OF ENERGY AND ON THE OTHER COMPETITION, INCREASED AS A RESULT OF THE REDUCTION IN INTERNATIONAL FREIGHT CHARGES, FROM NON-COMMUNITY FUELS, ARE CAUSING FUNDAMENTAL ECONOMIC CHANGES AFFECTING THE COMMON MARKET IN COAL AND STEEL.
HOWEVER, IT IS IMPORTANT TO ASK WHETHER THE DIFFICULTIES WHICH THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS HAVE SOUGHT TO SOLVE BY MEANS OF THEIR PROPOSAL ARE CAUSED PARTICULARLY BY THESE FUNDAMENTAL ECONOMIC CHANGES.
THE COURT, WHILST TAKING ACCOUNT OF THE POSSIBILITY THAT THE DIFFICULTIES TO WHICH THE FIRST OF THE ALTERNATIVE REASONS REFERS ARE DUE TO A MULTIPLICITY OF CAUSES, NEVERTHELESS DECLINES TO MAKE A MORE DETAILED EXAMINATION OF THE ORDER OF IMPORTANCE OF THESE CAUSES, ALL THE MORE SO BECAUSE SUCH AN INQUIRY WILL ALWAYS END IN UNCERTAIN RESULTS, SINCE THE CAUSES OF DISTURBANCE IN THE COMMON MARKET ARE CONTINUALLY CHANGING.
THE COURT DECLINES TO EXAMINE IN DETAIL THE CLAIM SOMETIMES PUT FORWARD THAT THE DIFFICULTIES IN QUESTION DERIVE PRINCIPALLY FROM THE ALLEGEDLY STILL INCOMPLETE IMPLEMENTATION OF VARIOUS PROVISIONS OF THE TREATY AND OF THE CONVENTION. IN FACT, SUCH AN INVESTIGATION COULD END IN LEGALLY CONCLUSIVE RESULTS ONLY IF IT FOLLOWED FROM A FULL HEARING OF ALL SIDES, A PROCEDURE WHICH WOULD GO WELL BEYOND THE LIMITS LAID DOWN BY ARTICLE 95.
MOREOVER THE COURT CONSIDERS THAT THE PRESENT SITUATION OF THE MARKET IN COAL AND STEEL CLEARLY SHOWS SUCH A CHANGE IN ECONOMIC CONDITIONS, WHATEVER ITS CAUSE MAY BE, AS TO REQUIRE AN ADAPTATION OF THE TREATY.
(C) IT REMAINS TO EXAMINE WHETHER THE PROPOSED ADAPTATION MAKES " APPROPRIATE " AMENDMENTS.
1. FIRST IT IS NECESSARY TO EXAMINE WHETHER THE BASIC CONDITION LAID DOWN FOR INTERVENTION BY THE HIGH AUTHORITY, NAMELY, " FUNDAMENTAL CHANGES IN MARKETING CONDITIONS ", IS NOT DRAFTED IN TERMS WIDER THAN THOSE NECESSITATED BY DIFFICULTIES CAUSED SOLELY BY THE CHANGE IN ECONOMIC CONDITIONS.
P. 272
INDEED THAT DEFINITION IS DRAFTED IN SUCH WIDE TERMS THAT IT WOULD ENABLE THE POWERS IN QUESTION TO BE APPLIED EVEN TO DEAL WITH DIFFICULTIES CAUSED BY THE ESTABLISHMENT OF THE COMMON MARKET.
THE POSSIBILITY OF SUCH AN APPLICATION, WHICH WOULD OBVIOUSLY EXCEED THE LIMITS PLACED ON THE POWERS OF AMENDMENT BY ARTICLE 95, MUST BE EXCLUDED BY THE TERMS OF THE PROPOSAL THEMSELVES.
2. LIMITATION OF THE VALIDITY OF THE PROPOSED ARTICLE TO A PERIOD EXPIRING ON 10 FEBRUARY 1963 IS SCARCELY COMPATIBLE WITH THE STRUCTURE OF THE TREATY, THE AUTHORS OF WHICH WERE CONCERNED TO DISTINGUISH CAREFULLY BETWEEN THE DEFINITIVE PROVISIONS, WHICH WERE INTENDED TO REMAIN IN FORCE FOR FIFTY YEARS, AND THE TRANSITIONAL PROVISIONS.
IT APPEARS FROM THIS OBJECTION, TOGETHER WITH THE CONSIDERATIONS SET OUT UNDER HEADING (E) INFRA, THAT THE SAID LIMITATION DOES NOT CONFER UPON THE ARTICLE SUBMITTED TO THE COURT, THE ATTRIBUTES OF AN AMENDMENT TO THE TREATY PROPERLY SO-CALLED, AS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 95, BUT RATHER THOSE OF AN EXTENSION OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS.
3. THE COURT HAS CONSIDERED WHETHER THE PROPOSED AMENDMENT IS LIKELY TO CAUSE SERIOUS CONFLICTS BECAUSE THE DUTY OF THE HIGH AUTHORITY CONTAINED IN PARAGRAPH (B) OF THE DRAFT AMENDMENT, CONCERNING THE GRANTING OF NON-REPAYABLE AID, IS OF AN UNLIMITED NATURE.
IN VIEW OF THE TERMS IN WHICH THE BASIC CONDITION IS DRAFTED, TERMS WHICH WOULD STILL BE FAIRLY WIDE EVEN IF THEY WERE RESTRICTED IN THE MANNER INDICATED ABOVE, SUCH AN OBLIGATION MIGHT ENTAIL SUCH HEAVY EXPENDITURE THAT THE RATE OF THE LEVIES LAID DOWN IN ARTICLE 50 (2) OF THE TREATY MIGHT PROVE INSUFFICIENT.
ALTHOUGH IT IS NOT THE COURT'S INTENTION TO DESCRIBE THE AMENDMENT AS " INAPPROPRIATE " ON THAT GROUND ALONE, NONE THE LESS THE COURT JUDGES IT EXPEDIENT TO POINT OUT THIS DIFFICULTY AND TO SUGGEST THAT IT BE AVOIDED BY LEAVING TO THE HIGH AUTHORITY THE DECISION AS TO THE ADVISIBILITY OF THE EXERCISE OF THAT POWER, AS IS THE CASE IN RESPECT OF THE EXERCISE OF THE POWER REFERRED TO UNDER PARAGRAPH (A) OF THE PROPOSED ARTICLE.
(D) ON THE QUESTION WHETHER THE AMENDMENT AFFECTS THE PROVISIONS OF ARTICLES 2, 3 AND 4 OF THE TREATY, THE COURT FINDS THAT THIS AMENDMENT REFERS ONLY TO THE COAL INDUSTRY.
P. 273
ALTHOUGH AT PRESENT THE NEED FOR AN AMENDMENT IS ONLY FELT IN THAT INDUSTRY ALONE, THIS FACT DOES NOT CONSTITUTE A VALID REASON FOR LIMITING THIS AMENDMENT TO THE INDUSTRIES IMMEDIATELY THREATENED WHILST THE RULES FOR THE EXERCISE OF THE POWERS GIVEN BY THE THE NEW ARTICLE 56 ARE AMENDED IN THEIR ENTIRETY.
IT IS CONTRARY TO THE ABOVEMENTIONED ARTICLES AND PARTICULARLY TO ARTICLE 4 TO PROVIDE FOR AN AMENDMENT AT THE PRESENT TIME WITH REGARD TO THE COAL INDUSTRY, WHILE LEAVING THE IRON AND STEEL INDUSTRY IN A STATE OF UNCERTAINTY REGARDING ITS POSITION IN THE EVENT OF ITS FULFILLING THE CONDITIONS UNDER THE NEW ARTICLE 56.
(E) FINALLY, IT REMAINS TO EXAMINE WHETHER THE TEXT OF THE PROPOSAL ALTERS THE DISTRIBUTION OF POWERS BETWEEN THE HIGH AUTHORITY AND THE OTHER INSTITUTIONS OF THE COMMUNITY.
FROM THIS POINT OF VIEW ALSO, IT IS NECESSARY TO RAISE OBJECTIONS TO THE LIMITATION OF THE PERIOD OF VALIDITY OF THE PROPOSED ARTICLE.
SHOULD AN EXTENSION PROVE NECESSARY, THE HIGH AUTHORITY WOULD THEREFORE BE BOUND TO OBTAIN PERIODICALLY, WHEN THE PARTICULAR POWERS CONFERRED BY THE NEW ARTICLE 56 CAME TO BE RENEWED, THE CONSENT OF THE SPECIAL COUNCIL OF MINISTERS AND THE PARLIAMENTARY ASSEMBLY.
THIS FACT IS LIKELY TO IMPAIR THE HIGH AUTHORITY'S FREEDOM OF ACTION AND ASSESSMENT.
THE BALANCE BETWEEN THE INSTITUTIONS OF THE COMMUNITY, PROVIDED FOR BY THE TREATY, WOULD BE JEOPARDIZED BY THE LIMITATION OF THE VALIDITY OF THE PROPOSED ARTICLE
Endorsements
ON THOSE GROUNDS;
HAVING REGARD TO THE THIRD AND FOURTH PARAGRAPHS OF ARTICLE 95 OF THE ECSC TREATY;
HAVING REGARD TO ARTICLE 107 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
Operative part
THE COURT
IS OF THE OPINION THAT:
THE PROPOSED AMENDMENT TO ARTICLE 56 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, AS SUBMITTED TO THE COURT BY THE HIGH AUTHORITY AND THE SPECIAL COUNCIL OF MINISTERS BY A LETTER OF 4 DECEMBER 1959 IS NOT COMPATIBLE WITH THE PROVISIONS OF THE THIRD AND FOURTH PARAGRAPHS OF ARTICLE 95 OF THE TREATY, IN THAT
(A) ITS APPLICATION IS LIMITED TO THE COAL INDUSTRY;
(B) IT IS VALID ONLY UNTIL 10 FEBRUARY 1963;
(C) THE CONDITIONS FOR THE APPLICATION OF THE PROPOSED ARTICLE ARE TOO WIDE IN SCOPE