61955CJ0008_EN
Parties
Subject of the case
Grounds
Endorsements
Operative part
Parties
IN CASE 8/55
FEDERATION CHARBONNIERE DE BELGIQUE, REPRESENTED BY LOUIS DEHASSE AND LEON CANIVET, ASSISTED BY PAUL TSCHOFFEN, ADVOCATE AT THE COUR D'APPEL, LIEGE, AND BY HENRI SIMONT, ADVOCATE AT THE COUR DE CASSATION OF BELGIUM, PROFESSOR AT THE FREE UNIVERSITY OF BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 6, RUE HENRI HEINE, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, WALTER MUCH, ACTING AS AGENT, ASSISTED BY G . VAN HECKE, ADVOCATE AT THE COUR D'APPEL, BRUSSELS, PROFESSOR AT THE UNIVERSITY OF LOUVAIN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2, PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF DECISION NO 22/55 OF THE HIGH AUTHORITY OF 28 MAY 1955 AND OF CERTAIN DECISIONS OF THE HIGH AUTHORITY RESULTING FROM ITS LETTER OF 28 MAY 1955 TO THE GOVERNMENT OF THE KINGDOM OF BELGIUM CONCERNING THE ADJUSTMENT OF THE EQUALIZATION SYSTEM ( JOURNAL OFFICIEL OF 31 MAY 1955, PP . 753-758 ),
Grounds
P . 255
A - THE ADMISSIBILITY OF THE APPLICATION
THE APPLICATION SEEKS THE ANNULMENT OF :
1 . DECISION NO 22/55 OF THE HIGH AUTHORITY OF 28 MAY 1955 AND THE PRICE LIST ANNEXED THERETO, PUBLISHED IN THE JOURNAL OFFICIEL OF 31 MAY 1955, IN SO FAR AS THEY FIX REDUCED PRICES FOR CERTAIN TYPES OF COAL;
2 . THE DECISIONS CONTAINED IN THE LETTER ADDRESSED BY THE HIGH AUTHORITY TO THE BELGIAN GOVERNMENT ON 28 MAY 1955 AND IN THE TABLE OF RATES OF EQUALIZATION ANNEXED THERETO IN SO FAR AS :
( A ) THE WITHDRAWAL OR REDUCTION OF EQUALIZATION PAYMENTS IN THE CASE OF CERTAIN COLLIERIES LEADS TO DISCRIMINATION BETWEEN PRODUCERS OF IDENTICAL TYPES OF COAL;
( B ) THE LETTER STATES THAT IN FUTURE EQUALIZATION PAYMENTS WILL BE OR MAY BE WITHDRAWN FROM CERTAIN UNDERTAKINGS ON THE GROUND THAT THEY ARE NOT MAKING THE EFFORT TO RE-EQUIP CONSIDERED POSSIBLE AND NECESSARY OR ARE REFUSING TO CARRY OUT THE TRANSFERS OR EXCHANGES OF DEPOSITS WHICH ARE REGARDED AS INDISPENSABLE FOR A BETTER DEVELOPMENT OF THE MINING AREAS .
P . 256
AS REGARDS DECISION NO 22/55, THE APPLICANT CLAIMS THAT IT IS INDIVIDUAL IN NATURE . THE DEFENDANT, ON THE OTHER HAND, MAINTAINS THAT IT IS A GENERAL DECISION . IN THE OPINION OF THE APPLICANT, THE INDIVIDUAL NATURE OF THE DECISION MAY BE DEDUCED FROM THE FACT THAT, BY REASON OF THE INDISSOLUBLE LINK BETWEEN EQUALIZATION AND THE FIXING OF PRICES, THE EFFECTS OF THE PRICE LIST ON THE THREE COLLIERIES OF THE CAMPINE ARE DIFFERENT FROM ITS EFFECTS ON THE OTHER BELGIAN MINES, IN SO FAR AS THE EQUALIZATION GRANTED TO THE THREE CAMPINE COLLIERIES IS NOT THE SAME AS THAT RECEIVED BY THE OTHER MINES .
WITHOUT DENYING THAT THE EFFECTS OF THE PRICE LIST WILL VARY TO THE EXTENT TO WHICH EQUALIZATION ITSELF VARIES, THE COURT REJECTS THE APPLICANT'S ARGUMENT THAT THE VARIATIONS IN THE EFFECTS OF THE PRICE LIST DETERMINE THE NATURE OF DECISION NO 22/55 . THAT DECISION WAS ADOPTED WITHIN THE CONTEXT OF A SPECIAL SYSTEM PROVIDED FOR IN RELATION TO BELGIUM FOR THE DURATION OF THE TRANSITIONAL PERIOD BY ARTICLE 26 OF THE CONVENTION WHICH APPLIES IN ACCORDANCE WITH SPECIFIC RULES, HOWEVER DETAILED AND VARIED THEY MAY BE, TO ALL UNDERTAKINGS AND TRANSACTIONS GOVERNED BY THAT SYSTEM .
WITHIN THE CONTEXT OF THAT SYSTEM THE DECISION CONCERNS THE UNDERTAKINGS ONLY IN SO FAR AS THEY ARE PRODUCERS OF COAL AND IT IN NO WAY IDENTIFIES THEM . IF NEW DEPOSITS WERE DISCOVERED IN BELGIUM THE COMPANY WORKING THEM WOULD BE BOUND TO SELL AT THE PRICES FIXED BY THE DECISION . FURTHERMORE, THE TERRITORIAL LIMITATION DOES NOT IMPLY INDIVIDUAL IDENTIFICATION AND IS JUSTIFIED BY THE FACT THAT THE BELGIAN INDUSTRY IS IN NEED OF EQUALIZATION .
THE FACT THAT DECISION NO 22/55 LAYS DOWN SPECIFIC AND DETAILED RULES WHICH ARE APPLICABLE IN DIFFERENT SITUATIONS DOES NOT CONFLICT WITH THE GENERAL NATURE OF THE DECISION . ARTICLE 50 ( 2 ) OF THE TREATY IN FACT PROVIDES THAT THE MODE OF ASSESSMENT AND COLLECTION SHALL BE DETERMINED BY A GENERAL DECISION OF THE HIGH AUTHORITY, WHICH SHOWS THAT THE FACT THAT SUCH A DECISION HAS SPECIFIC CONSEQUENCES WHICH ARE INDIVIDUAL AND VARIED DOES NOT AFFECT ITS NATURE AS A GENERAL DECISION .
THE FACT THAT ALL THE UNDERTAKINGS REFERRED TO BY THE DECISION - AND ONLY THEY - ARE GROUPED WITHIN THE APPLICANT ASSOCIATION DOES NOT LEAD TO A DIFFERENT RESULT . IF IT WERE OTHERWISE NOT EVEN A DECISION APPLYING TO ALL THE UNDERTAKINGS OF THE COMMUNITY COULD BE HELD TO BE GENERAL IN NATURE IF THOSE UNDERTAKINGS WERE GROUPED WITHIN ONE SINGLE ASSOCIATION . THE QUESTION WHETHER A DECISION IS INDIVIDUAL OR GENERAL IN NATURE MUST BE DECIDED ON THE BASIS OF OBJECTIVE CRITERIA, WITH THE RESULT THAT IT IS IMPOSSIBLE TO DRAW DISTINCTIONS ACCORDING TO WHETHER THE APPLICANT IS AN ASSOCIATION OR AN UNDERTAKING .
AS REGARDS THE DECISIONS CONTAINED IN THE LETTER OF 28 MAY 1955, THE PARTIES CONSIDER THAT THE FIRST, WHICH RELATES TO THE REDUCTION AND WITHDRAWAL OF EQUALIZATION, IS INDIVIDUAL IN NATURE AND THAT THE SECOND, WHICH RELATES TO THE THREAT TO WITHDRAW THE EQUALIZATION, IS GENERAL IN NATURE . ON THAT POINT THE COURT ACCEPTS THE POSITION ADOPTED BY THE PARTIES .
P . 257
DURING THE ORAL PROCEDURE THE DEFENDANT RAISED THE QUESTION WHETHER IT IS POSSIBLE TO REGARD THE LATTER MEASURE AS A DECISION CAPABLE OF FORMING THE SUBJECT-MATTER OF AN APPLICATION FOR ANNULMENT IN ACCORDANCE WITH ARTICLE 33 OF THE TREATY . IN ITS LETTER OF 28 MAY 1955 THE HIGH AUTHORITY ACCEPTED THAT EQUALIZATION AID MUST BE ACCOMPANIED BY A SERIES OF MEASURES TO BE ADOPTED BY THE BELGIAN GOVERNMENT . FURTHERMORE, IT CONSIDERS THAT THE BELGIAN GOVERNMENT OUGHT TO APPLY FOUR MEASURES, INDICATED AT POINTS ( A ), ( B ), ( C ) AND ( D ). THE ACTION REFERRED TO UNDER ( D ) IS, THEREFORE, ONE OF THE SERIES OF MEASURES WHICH THE BELGIAN GOVERNMENT WOULD BE OBLIGED TO TAKE IF THE CIRCUMSTANCES SO REQUIRED . THE HIGH AUTHORITY HAS THUS UNEQUIVOCALLY DETERMINED THE ATTITUDE WHICH IT HAD DECIDED TO TAKE HENCEFORTH SHOULD THE CIRCUMSTANCES MENTIONED UNDER POINT 2 ( D ) OF THE LETTER ARISE . IN OTHER WORDS, IT HAS LAID DOWN A RULE TO BE APPLIED IF NECESSARY . IT MUST THEREFORE BE SEEN AS A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY .
SINCE THE INDIVIDUAL OR GENERAL NATURE OF EACH OF THE DECISIONS HAS BEEN ESTABLISHED, THE APPLICANT IS ENTITLED TO SEEK THE ANNULMENT OF THE REDUCTION OR WITHDRAWAL OF THE EQUALIZATION - THE INDIVIDUAL DECISION CONTAINED IN THE LETTER OF 28 MAY 1955 - BY PUTTING FORWARD ALL THE SUBMISSIONS REFERRED TO IN ARTICLE 33 OF THE TREATY .
IN SO FAR AS THE APPLICANT CONSIDERS THAT THE TWO OTHER DECISIONS INVOLVE A MISUSE OF POWERS AFFECTING IT, IT MAY LODGE AN APPLICATION FOR THEIR ANNULMENT, SINCE THEY ARE GENERAL IN NATURE .
IN ORDER FOR AN APPLICATION FOR THE ANNULMENT OF A GENERAL DECISION TO BE ADMISSIBLE IT IS SUFFICIENT FOR THE APPLICANT TO CLAIM FORMALLY THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING IT, INDICATING CONVINCINGLY THE REASONS WHICH, IN ITS OPINION, GIVE RISE TO THE PRESUMPTION OF A MISUSE OF POWERS .
THE APPLICATION SATISFIES THE AFOREMENTIONED CONDITIONS AND IS, THEREFORE, ADMISSIBLE .
HOWEVER, THE PARTIES DISAGREE OVER THE EXACT SCOPE OF ARTICLE 33 OF THE TREATY IN RELATION TO THE ADMISSIBILITY OF CERTAIN SUBMISSIONS MADE BY THE APPLICANT AGAINST THE GENERAL DECISIONS .
THE DEFENDANT MAINTAINS THAT AN UNDERTAKING CANNOT PUT FORWARD A SUBMISSION OF MISUSE OF POWERS AFFECTING IT UNLESS THE HIGH AUTHORITY HAS CAMOUFLAGED AN INDIVIDUAL DECISION " AFFECTING " THAT UNDERTAKING BENEATH THE EXTERNAL APPEARANCE OF A MEASURE LAYING DOWN GENERAL RULES .
THAT ARGUMENT MUST BE REJECTED . A DISGUISED INDIVIDUAL DECISION REMAINS AN INDIVIDUAL DECISION, SINCE ITS NATURE DEPENDS ON ITS SCOPE RATHER THAN ON ITS FORM . FURTHERMORE, SUCH AN INTERPRETATION OF ARTICLE 33 AND ESPECIALLY OF THE WORDS " AFFECTING THEM " CANNOT BE ACCEPTED, SINCE THE PHRASE " AFFECTING THEM " CAN BE UNDERSTOOD ONLY IN THE SENSE OF THE WORDS WHICH EXPRESS IT, THAT IS, WHERE IT CONCERNS AN UNDERTAKING WHICH IS THE SUBJECT OR AT ANY RATE THE VICTIM OF THE MISUSE OF POWERS ALLEGED BY THAT UNDERTAKING . THE COURT CONSIDERS THAT ARTICLE 33 CLEARLY STATES THAT ASSOCIATIONS AND UNDERTAKINGS MAY CONTEST NOT ONLY INDIVIDUAL DECISIONS BUT ALSO GENERAL DECISIONS IN THE TRUE SENSE OF THE TERM .
P . 258
THE DEFENDANT MAINTAINS IN THE ALTERNATIVE THAT THE APPLICANT IS ENTITLED TO PUT FORWARD ONLY THE SUBMISSION OF MISUSE OF POWERS AND THAT ALL THE OTHER SUBMISSIONS MUST BE SET ASIDE . THE APPLICANT, ON THE OTHER HAND, CONSIDERS NOT ONLY THAT IT IS ENTITLED TO PUT FORWARD ALL THE GROUNDS FOR ANNULMENT, PROVIDED THAT IT PLEADS A MISUSE OF POWERS CONVINCINGLY, BUT ALSO THAT IT MAY BRING PROOF OF THE OTHER DEFECTS IN ORDER TO SUPPORT THE SUBMISSION OF MISUSE OF POWERS . IT CONSIDERS THAT THE TREATY HAS ESTABLISHED A LEGAL SYSTEM IN WHICH, IN ORDER FOR THEIR ACTIONS TO BE ADMISSIBLE, PRIVATE UNDERTAKINGS MAY ONLY PLEAD A MISUSE OF POWERS AFFECTING THEM; IT WOULD THEREFORE BE ILLOGICAL TO REGARD THAT SUBMISSION AS BEING MERELY EXCEPTIONAL AND SECONDARY IN NATURE .
THAT ARGUMENT MUST BE DISMISSED . IF THE TREATY PROVIDES THAT PRIVATE UNDERTAKINGS ARE ENTITLED TO SEEK THE ANNULMENT OF A GENERAL DECISION ON THE GROUND OF MISUSE OF POWERS AFFECTING THEM, THAT IS BECAUSE THEY HAVE NO RIGHT OF ACTION ON ANY OTHER GROUND .
IF THE APPLICANT'S ARGUMENT WERE CORRECT, UNDERTAKINGS WOULD HAVE A RIGHT OF ACTION AS EXTENSIVE AS THAT OF THE STATES AND THE COUNCIL AND IT WOULD BE DIFFICULT TO EXPLAIN WHY, INSTEAD OF SIMPLY TREATING ACTIONS BROUGHT BY UNDERTAKINGS IN THE SAME WAY AS THOSE BROUGHT BY STATES OR THE COUNCIL, ARTICLE 33 INTRODUCED A CLEAR DISTINCTION BETWEEN INDIVIDUAL DECISIONS AND GENERAL DECISIONS, WHILE RESTRICTING THE ANNULMENT OF GENERAL DECISIONS IN THE CASE OF UNDERTAKINGS TO THE SUBMISSION OF MISUSE OF POWERS AFFECTING THEM . THE PHRASE " UNDER THE SAME CONDITIONS " CANNOT BE INTERPRETED AS MEANING THAT, AFTER ESTABLISHING A CASE OF MISUSE OF POWERS AFFECTING THEM, UNDERTAKINGS ARE ENTITLED TO PUT FORWARD IN ADDITION THE OTHER GROUNDS FOR ANNULMENT, SINCE ONCE THE MISUSE OF POWERS AFFECTING THEM IS ESTABLISHED THE DECISION IN QUESTION IS ANNULLED, AND THAT ANNULMENT DOES NOT HAVE TO BE PRONOUNCED AGAIN ON OTHER GROUNDS .
THE FOREGOING CONSIDERATIONS CLEARLY CONTRADICT THE APPLICANT'S ILLOGICAL VIEW THAT THE INTERPRETION OF THE TREATY MUST BE SUBORDINATED TO THE DESIRE TO GRANT TO PRIVATE UNDERTAKINGS A RIGHT OF ACTION WHICH IS ALMOST IDENTICAL TO THAT AVAILABLE TO THE STATES AND TO THE COUNCIL . ALTHOUGH SUCH A WISH IS UNDERSTANDABLE, THERE IS NOTHING IN THE TREATY FROM WHICH IT MAY BE CONCLUDED THAT PRIVATE UNDERTAKINGS HAVE BEEN GRANTED SUCH A RIGHT TO REVIEW THE " CONSTITUTIONALITY " OF GENERAL DECISIONS, THAT IS, THEIR CONFORMITY WITH THE TREATY, SINCE THEY ARE QUASI-LEGISLATIVE MEASURES ADOPTED BY A PUBLIC AUTHORITY WITH LEGISLATIVE EFFECT " ERGA OMNES ".
ALTHOUGH IT IS TRUE THAT ARTICLE 33 ACCEPTS THE EXISTENCE OF A RIGHT TO BRING AN APPLICATION FOR THE ANNULMENT OF A GENERAL DECISION ON THE GROUND OF MISUSE OF POWERS AFFECTING AN UNDERTAKING, THAT IS AN EXCEPTION WHICH IS EXPLAINED BY THE FACT THAT, IN THIS CASE, IT IS STILL THE INDIVIDUAL FACTOR WHICH PREVAILS .
AS AGAINST THE GENERAL DECISIONS, THEREFORE, THE APPLICANT MAY RELY ONLY ON THE SUBMISSION OF MISUSE OF POWERS AFFECTING IT . AS REGARDS THE INDIVIDUAL DECISION, SINCE THE PARTIES ARE AGREED THAT IT MAY BE SO DESCRIBED, THE APPLICANT MAY RELY ON ALL THE SUBMISSIONS SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 33 .
P . 259
B - SUBSTANCE
BEFORE CONSIDERING THE QUESTIONS RELATING TO DECISION NO 22/55 IN PARTICULAR THOSE WHICH ASK WHETHER THE HIGH AUTHORITY IS EMPOWERED TO FIX SELLING PRICES, AND THE GROUNDS OF COMPLAINT RELATING TO THE LETTER OF 28 MAY 1955, IT IS APPROPRIATE, FIRST, TO CONSIDER THE METHOD OF FIXING OF THE LEVEL OF ESTIMATED PRODUCTION COSTS .
AS REGARDS THE ASSESSMENT OF THAT LEVEL THE APPLICANT HAS MAINTAINED, FIRST, THAT THE HIGH AUTHORITY IS NOT ENTITLED TO MODIFY THE INITIAL ASSESSMENT OF ESTIMATED PRODUCTION COSTS, SINCE IT CONSTITUTES A " STANDSTILL LEVEL " WHICH WAS TO BE DETERMINED AT THE BEGINNING OF THE TRANSITIONAL PERIOD AND WAS TO REMAIN UNALTERABLE UNLESS MODIFIED BY COMMON AGREEMENT .
THAT ARGUMENT OF THE APPLICANT MUST BE REJECTED, SINCE ARTICLE 26 OF THE CONVENTION PROVIDES THAT THE INEVITABLE REDUCTION IN BELGIAN PRICES SHALL BE DETERMINED BY THE LEVEL OF ESTIMATED PRODUCTION COSTS AT THE END OF THE TRANSITIONAL PERIOD . IT FOLLOWS THAT WHEN THERE IS A CHANGE IN THE ESTIMATED LEVEL OF PRODUCTION COSTS A NEW ASSESSMENT MUST BE MADE WHICH TAKES THAT FACTOR INTO ACCOUNT .
SECONDLY, THE PARTIES DIFFER IN LAW AS TO THE METHOD TO BE FOLLOWED IN ASSESSING THE LEVEL OF ESTIMATED PRODUCTION COSTS . THE COURT CONSIDERS THAT, BEFORE GIVING A RULING, IT IS NECESSARY TO ESTABLISH WHAT MIGHT REASONABLE BE REGARDED AS " THE APPROXIMATE FIGURE OF PRODUCTION COSTS AT THE END OF THE TRANSITIONAL PERIOD " ON THE BASIS OF ESTIMATES FOR EACH TYPE AND CATEGORY OF COAL PREPARED IN THE LIGHT OF THE FACTS AND CIRCUMSTANCES KNOWN WHEN THAT ASSESSMENT IS MADE .
TO THAT END, THE REPLIES GIVEN BY THE PARTIES TO THE QUESTIONS RAISED BY THE JUDGE-RAPPORTEUR ARE NOT SUFFICIENT .
AS THE PARTIES HAVE STATED IN THEIR JOINT REPLY THAT SUCH FURTHER DETAILS CANNOT BE SUBMITTED TO THE COURT WITHIN THE TIME LIMITS PROVIDED, IT IS APPROPRIATE TO FIX A NEW TIME LIMIT FOR THAT PURPOSE .
Endorsements
UPON READING THE PLEADINGS;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE GENERAL;
HAVING REGARD TO ARTICLES 2, 3 ( C ), 4, 8, 14, 33, 34, 36, 50, 60 AND 61 OF THE TREATY AND ARTICLES 1, 8, 24, 25 AND 26 OF THE CONVENTION;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT AND TO THE RULES OF THE COURT CONCERNING COSTS,
Operative part
THE COURT
HEREBY :
1 . DECLARES THAT THE APPLICATION IS ADMISSIBLE;
2 . REOPENS THE ORAL PROCEDURE . IT WILL BE EXCLUSIVELY CONCERNED WITH THE LEVEL OF ESTIMATED PRODUCTION COSTS FOR EACH TYPE AND CATEGORY OF BELGIAN COAL AT THE END OF THE TRANSITIONAL PERIOD AND THEIR SIGNIFICANCE IN RELATION TO THE PRICES FIXED BY DECISION NO 22/55;
3 . FIXES THE DATE ON WHICH THE PARTIES MUST LODGE AT THE COURT REGISTRY THE ADDITIONAL INFORMATION AND SPECIFICATIONS INDICATED IN THE PRESENT JUDGMENT AT 1 SEPTEMBER 1956 AND THAT OF THE ORAL PROCEDURE AT 20 SEPTEMBER 1956 AT 10.30 A.M .;
4 . RESERVES THE COSTS .