61958CJ0021_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 21/58
1 . FELTEN UND GUILLEAUME CARLSWERK EISEN - UND STAHL AG, A LIMITED COMPANY INCORPORATED UNDER GERMAN LAW, HAVING ITS REGISTERED OFFICE IN KOELN-MUELHEIM, REPRESENTED BY ITS BOARD OF DIRECTORS;
2 . WALZWERKE AG, FORMERLY E . BOECKING AND CO ., A LIMITED COMPANY INCORPORATED UNDER GERMAN LAW, HAVING ITS REGISTERED OFFICE IN KOELN-MUELHEIM, REPRESENTED BY ITS BOARD OF DIRECTORS,
BOTH ASSISTED BY ERNEST ARENDT, ADVOCATE AT THE COUR D'APPEL, LUXEMBOURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT, 27 AVENUE GUILLAUME, APPLICANTS,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, FRANS VAN HOUTEN, ACTING AS AGENT, ASSISTED BY WOLFGANG SCHNEIDER, ADVOCATE OF THE FRANKFURT BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE LETTER SENT BY THE DEFENDANT ON 18 DECEMBER 1957 TO THE OFFICE COMMUN DES CONSOMMATEURS DE FERRAILLE ( OCCF ) ( JOINT BUREAU OF FERROUS SCRAP CONSUMERS ) AND PUBLISHED IN THE JOURNAL OFFICIEL NO 4 OF 1 FEBRUARY 1958, IN SO FAR AS THAT LETTER IS TO BE CONSIDERED AS A DECISION WITHIN THE MEANING OF ARTICLES 14 AND 15 OF THE TREATY,
Grounds
P . 104
ADMISSIBILITY
THE LETTER OF THE HIGH AUTHORITY DATED 18 DECEMBER 1957 SETS OUT A GENERAL PRINCIPLE IN SO FAR AS IT RELATES TO THE DEFINITION OF THE CONCEPT OF " OWN RESOURCES " WITH REGARD TO SCRAP .
THE LETTER WAS PUBLISHED IN THE JOURNAL OFFICIEL OF 1 FEBRUARY 1958 AND THUS BROUGHT TO THE ATTENTION OF ALL THE UNDERTAKINGS IN THE COMMUNITY .
IT WAS DESCRIBED AS A " DECISION " BY THE MARKET DIVISION, IN A LETTER DATED 19 FEBRUARY 1958 IN ANSWER TO A FORMAL REQUEST FROM THE DEUTSCHE SCHROTTVERBRAUCHERGEMEINSCHAFT SENT TO THE HIGH AUTHORITY ON 6 FEBRUARY 1958 .
HOWEVER, CONTRARY TO THE APPLICANT'S ARGUMENTS, THE SAID LETTER OF 18 DECEMBER 1957 CANNOT IN LAW BE CONSIDERED AS A DECISION WITHIN THE MEANING OF THE TREATY .
ALTHOUGH IT IS TRUE THAT THE SAID LETTER OF 18 DECEMBER 1957 FOLLOWED A REQUEST FROM THE OCCF, IN THE ABSENCE OF UNANIMITY AMONG THE MEMBERS OF THAT AGENCY ON THE MEANING OF THE TERM " OWN RESOURCES ", FOR THE HIGH AUTHORITY TO DEFINE THAT CONCEPT IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 15 OF DECISION NO 2/57, THE HIGH AUTHORITY REPLIED THAT THE QUESTION THUS EXPRESSED BY THE OCCF " WAS MISCONCEIVED " IN VIEW OF THE FACT THAT " FROM THE BEGINNING " THAT AGENCY " HAD BY IMPLICATION ADOPTED THE CONCEPT OF OWN RESOURCES IN ACCORDANCE WITH THE SEMANTIC VALUE OF THE EXPRESSION " AND THAT THIS CRITERION HAD TO BE MAINTAINED .
IT FOLLOWS THAT THE HIGH AUTHORITY HAD NO INTENTION OF ADOPTING A DECISION, AS IT HAD BEEN FORMALLY REQUESTED TO DO, BUT MERELY TO REAFFIRM PRINCIPLES WHICH IT CONSIDERED, RIGHTLY OR WRONGLY, TO FOLLOW LOGICALLY FROM THE BASIC DECISION NO 2/57 .
P . 105
THIS FINDING IS CONFIRMED BY THE FACT THAT AN AMENDMENT TO DECISION NO 2/57 WOULD HAVE REQUIRED, UNDER ARTICLE 53 ( B ) OF THE TREATY, THE PRIOR UNANIMOUS ASSENT OF THE COUNCIL OF MINISTERS, A CONDITION WHICH WAS NOT FULFILLED IN THE PRESENT CASE . MOREOVER, THERE IS NO REASON TO SUPPOSE THAT THE HIGH AUTHORITY WOULD KNOWINGLY HAVE INFRINGED THIS IMPERATIVE PROVISION .
THESE CONSIDERATIONS ARE NOT INVALIDATED BY THE FACT THAT, IN ANSWER TO A FORMAL REQUEST FROM THE DEUTSCHE SCHROTTVERBRAUCHERGEMEINSCHAFT, SENT TO THE HIGH AUTHORITY ON 6 FEBRUARY 1958, THE MARKET DIVISION REPLIED BY A LETTER OF 19 FEBRUARY 1958 THAT THE LETTER OF 18 DECEMBER 1957 WAS INDEED A " DECISION ".
IN FACT, BY ITS VERY WORDING, THIS ANSWER FROM THE MARKET DIVISION EXPRESSES THE OPINION OF AN OFFICIAL OF THE HIGH AUTHORITY AND DOES NOT NECESSARILY, IN ITSELF ALONE AND IN THE PRESENT CASE, CONVEY THE INTENTIONS OF THE HIGH AUTHORITY . IT MUST BE NOTED HOWEVER, THAT THAT ANSWER COULD HAVE PROMPTED, OR EVEN DECIDED, THE APPLICANTS TO BRING PROCEEDINGS AGAINST THIS ALLEGED DECISION, WITH THE LEGITIMATE CONCERN OF SAFEGUARDING THEIR INTERESTS .
HOWEVER, THE VARIOUS SUBJECTIVE FACTORS SET OUT ABOVE CANNOT IN THEMSELVES BE DECISIVE FOR THE PURPOSE OF DETERMINING THE NATURE OF THE LETTER OF 18 DECEMBER 1957 IN QUESTION, SINCE THE NATURE OF AN ADMINISTRATIVE MEASURE DEPENDS ABOVE ALL ON ITS SUBJECT-MATTER AND ITS CONTENT .
THE SAID LETTER APPEARS AS BEING A DIRECTIVE OF AN INTERNAL CHARACTER SENT BY A SUPERIOR TO SERVICES COMING UNDER ITS AUTHORITY AND INTENDED TO DIRECT THE ACTIVITY OF THOSE SERVICES .
THEREFORE, IF THAT LETTER COULD GIVE RISE TO IMMEDIATE DUTIES, IT COULD DO SO ONLY ON THE PART OF THE ADDRESSEE ORGANIZATION AND NOT OF UNDERTAKINGS CONSUMING FERROUS SCRAP . FURTHERMORE, THIS SITUATION IS CORROBORATED BY THE FACT THAT THAT LETTER OF 18 DECEMBER 1957 WAS PUBLISHED IN THE JOURNAL OFFICIEL ONLY ON 1 FEBRUARY 1958 .
ACCORDINGLY, THE LETTER OF 18 DECEMBER 1957 IS NOT A DECISION WITHIN THE MEANING OF THE ECSC TREATY .
CONSEQUENTLY, THE APPLICATION IS NOT ADMISSIBLE .
Decision on costs
UNDER ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS; IN THE PRESENT CASE THE APPLICANTS WERE UNSUCCESSFUL ON THE ISSUE OF ADMISSIBILITY .
HOWEVER, SINCE THE DEFENDANT BY ITS LETTER OF 19 DECEMBER 1958 PROMPTED, OR EVEN DECIDED, THE APPLICANTS TO BRING PROCEEDINGS AGAINST THE ALLEGED DECISION CONTAINED IN THE LETTER OF 18 DECEMBER 1957, AN ORDER MUST BE MADE THAT THE PARTIES BEAR THEIR OWN COSTS .
Endorsements
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 14, 15, 33 AND 80 OF THE TREATY ESTABLISHING THE ECSC;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC,
Operative part
THE COURT
HEREBY :
DISMISSES THE APPLICATION AS INADMISSIBLE;
ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .