61963CJ0067_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 67/63
SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ' SOREMA ', A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE IN STRASBOURG ( REPRESENTED BY ITS MANAGERS, ASSISTED BY ROMAIN GASTON OF THE STRASBOURG BAR ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF NICHOLAS WENNMACHER, HUISSER, 7 BOULEVARD ROYAL,
APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY ( REPRESENTED BY ITS LEGAL ADVISERS, HEINRICH MATTHIES AND GERARD OLIVIER, ACTING AS AGENTS ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS REGISTERED OFFICE, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF DECISION NO 8/63 OF THE HIGH AUTHORITY OF 30 APRIL 1963 CONCERNING MEMBERSHIP ON THE PART OF THE OBERRHEINISCHE KOHLENUNION, BETTAG, PUTTON & CO ., MANNHEIM, OF THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION, STRASBOURG,
Grounds
P.160
I - ADMISSIBILITY
IN SUPPORT OF ITS APPLICATION THE APPLICANT MAINTAINS THAT SINCE IT IS NOT ENGAGED IN PRODUCTION OR, REGULARLY, IN DISTRIBUTION IT DOES NOT FALL WITHIN THE PROVISIONS OF ARTICLE 65 OF THE TREATY, BECAUSE IT IS NOT AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 .
THE DEFENDANT AVAILS ITSELF OF THIS ARGUMENT TO RAISE THE OBJECTION THAT THE APPLICANT HAS NO CAPACITY TO BRING PROCEEDINGS AND THAT ITS APPLICATION FOR ANNULMENT IS THEREFORE INADMISSIBLE UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY .
P.161
THE HIGH AUTHORITY IS HOWEVER UNJUSTIFIED IN RAISING THIS PLEA OF INADMISSIBILITY .
IN FACT, BY TAKING A DECISION CONCERNING THE APPLICANT, IT HAS BY IMPLICATION RECOGNIZED THE APPLICANT EITHER AS AN UNDERTAKING OR AS AN ASSOCIATION OF UNDERTAKINGS .
UNDER ARTICLE 33 THE FOLLOWING MAY BRING AN APPLICATION FOR ANNULMENT AGAINST THE DECISIONS AND RECOMMENDATIONS OF THE HIGH AUTHORITY; ON THE ONE HAND, THE MEMBER STATES AND THE COUNCIL AND, ON THE OTHER, UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 80 AND THE ASSOCIATIONS OF UNDERTAKINGS REFERRED TO IN ARTICLE 48 .
UNDER THE SECOND PARAGRAPH OF ARTICLE 2 OF ITS ARTICLES OF ASSOCIATION THE APPLICANT ' MAY UNDERTAKE DIRECTLY OR INDIRECTLY THE CONTROL OR MANAGEMENT OF ANY BODY, ASSOCIATION OR PART INTEREST SERVING THE ATTAINMENT ' OF ITS OBJECT, NAMELY ' ALL BUSINESS RELATING TO THE HANDLING, STORAGE, TRANSPORT OF AND TRADING IN SOLID FUELS AND OTHER BULK GOODS IN THE AREAS SUPPLIED BY THE UPPER RHINE AND ADJOINING AREAS ... '.
MOREOVER, THE COAL UNDERTAKINGS BELONGING TO SOREMA ARE LEGAL PERSONS WHOSE OBJECTS AS COMPANIES INCLUDE REGULAR ENGAGEMENT IN COAL DISTRIBUTION AND WHO MUST, IN ACCORDANCE WITH ARTICLE 80, BE CONSIDERED AS UNDERTAKINGS FOR THE PURPOSES OF ARTICLE 65 . THEREFORE, SO FAR AS THE APPLICANT REPRESENTS AND GROUPS ITS MEMBERS FOR THE PURPOSES SET OUT ABOVE, IT MUST BE CLASSED AS AN ASSOCIATION OF UNDERTAKINGS FOR THE PURPOSES OF ARTICLE 48 OF THE TREATY .
AS SUCH IT IS QUALIFIED TO TAKE PROCEEDINGS UNDER ARTICLE 33 OF THE TREATY AGAINST THE CONTESTED DECISION .
IN THIS RESPECT THE APPLICATION IS ADMISSIBLE .
NO OTHER OBJECTION HAS BEEN RAISED AGAINST THE ADMISSIBILITY OF THE ACTION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .
II - THE SUBSTANCE
A - THE FIRST COMPLAINT
THE APPLICANT OBJECTS THAT THE CONTESTED DECISION INFRINGES THE TREATY IN APPLYING TO THE APPLICANT THE PROHIBITION ON CERTAIN AGREEMENTS BETWEEN UNDERTAKINGS MENTIONED IN ARTICLE 65, WHEN THIS PROHIBITION CANNOT APPLY TO IT, AS IT DOES NOT QUALIFY AS AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 .
P.162
IT IS ACCEPTED THAT THE APPLICANT IS AN ASSOCIATION OF UNDERTAKINGS AND ITS CONSTITUENT UNDERTAKINGS THEMSELVES FALL WITHIN THE PROVISIONS OF ARTICLE 65 .
THE PURPOSE OF ARTICLE 65 IS GENERALLY TO PROHIBIT ALL AGREEMENTS, DECISIONS, OR PRACTICES TENDING TO PREVENT, RESTRICT OR DISTORT NORMAL COMPETITION . IT THEREFORE APPLIES ALSO TO ASSOCIATIONS TO THE EXTENT THAT THEIR OWN ACTIVITY OR THAT OF THEIR MEMBER UNDERTAKINGS TENDS TO PRODUCE THE EFFECTS REFERRED TO THEREIN . THIS IS CONFIRMED BY ARTICLE 48, WHICH ALLOWS ASSOCIATIONS TO ENGAGE IN ANY ACTIVITY NOT CONTRARY TO THE PROVISIONS OF THE TREATY . TO ADMIT ANY OTHER INTERPRETATION WOULD BE TO DEPRIVE ARTICLE 65 OF ANY PRACTICAL EFFECT .
AS AN ASSOCIATION OF UNDERTAKINGS THE APPLICANT THEREFORE FALLS WITHIN THE PROVISIONS OF ARTICLE 65 .
THE FIRST COMPLAINT IS THEREFORE UNFOUNDED .
B - THE SECOND COMPLAINT
THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION AMOUNTS TO AN ILLEGAL REVOCATION OF AN AUTHORIZATION PREVIOUSLY GRANTED ON THE GROUND THAT IT DOES NOT FULFIL THE REQUIREMENTS OF THE FOURTH SUBPARAGRAPH OF ARTICLE 65(2 ).
IT IS NECESSARY TO EXAMINE WHETHER SUCH AN AUTHORIZATION WAS GRANTED TO THE APPLICANT .
DECISION NO 19/57 OF 26 JULY 1957, AUTHORIZING JOINT BUYING OF FUELD BY WHOLESALE COAL MERCHANTS OPERATING IN SOUTH GERMANY AND LAYING DOWN CONDITIONS FOR MEMBERSHIP OF THE OKU WHICH WAS ENTRUSTED WITH THIS JOINT BUYING, STATED THAT THE FRENCH TRADERS GROUPED IN SOREMA DID NOT SATISFY THESE CONDITIONS . THEIR EXCLUSION IN PRINCIPLE WAS ACCOMPANIED BY THE LAYING DOWN OF A TRANSITIONAL PERIOD INTENDED TO ALLOW THEM TO ESTABLISH THEMSELVES IN SOUTH GERMANY AND GET PERMISSION TO DRAW THEIR SUPPLIES DIRECTLY FROM THE SELLING AGENCIES .
DECISION NO 19/57 CANNOT BE CONSIDERED, WITH REGARD TO THE FRENCH MERCHANTS GROUPED IN SOREMA, AS AN AUTHORIZATION TO TAKE PART IN THE AGREEMENT AUTHORIZED .
BY DECISION NO 31/59 OF 27 MAY 1959 THE HIGH AUTHORITY DECIDED THAT WHOLESALE MERCHANTS ESTABLISHED IN FRANCE, HAVING FAILED TO PROVE THAT THEY SATISFIED THE CONDITIONS LAID DOWN FOR MEMBERSHIP OF THE OKU MUST BE ' EXCLUDED FROM MEMBERSHIP ' OF THAT ORGANIZATION .
P.163
MOREOVER THIS DECISION STATES THAT ' ON THE OTHER HAND THERE IS NO OBJECTION TO A TRANSITIONAL ARRANGEMENT WHEREBY THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ( SOREMA ) S.A.R.L ., STRASBOURG, REPRESENTING THE INTERESTS OF THE FRENCH MERCHANTS WHO ARE ALSO PARTLY SUPPLIED BY THE AREA OF THE UPPER RHINE, IS AUTHORIZED TO JOIN THE ' OBERRHEINISCHE KOHLENUNION ' UNTIL THE END OF THE COAL INDUSTRY'S YEAR 1959/60 '. THE SECOND PARAGRAPH OF ARTICLE 2 OF THE SAID DECISION NO 31/59 PROVIDES THAT ' THE AUTHORIZATION COVERS THE MEMBERSHIP OF THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ( SOREMA ) S.A.R.L ., STRASBOURG, BUT ONLY UNTIL 31 MARCH 1960 '. IT THUS AMOUNTS TO A CHANGE IN THE COMPOSITION OF THE OKU IN THE SENSE THAT THE WHOLESALE MERCHANTS ESTABLISHED IN FRANCE AND LISTED IN ANNEX II TO DECISION NO 19/57 WERE EXCLUDED FROM IT AND THE APPLICANT COMPANY ENTERED IT AS A LIMITED PARTNER .
THIS CHANGE IS CONFIRMED BY THE AMENDMENT MADE ON 29 JULY 1959, THAT IS TO SAY, TWO MONTHS AFTER DECISION NO 31/59 WAS PUBLISHED, TO PARAGRAPH 3 OF THE ARTICLES OF ASSOCIATION OF THE OKU WHEREBY SOREMA WAS SUBSTITUTED AS A LIMITED PARTNER FOR THE FIFTEEN WHOLESALE MERCHANTS ESTABLISHED IN FRANCE .
MOREOVER DECISION NO 31/59, UNLIKE DECISION NO 19/59, NO LONGER SETS A TIME-LIMIT ON THE FRENCH MERCHANTS FOR WITHDRAWAL FROM THE OKU BUT AUTHORIZES SOREMA'S OWN MEMBERSHIP OF THAT BODY FOR A LIMITED PERIOD .
DECISION NO 12/60 OF 18 MAY 1960 AMENDED DECISION NO 31/59 BY REMOVING THE TIME-LIMIT OF 31 MARCH 1960 FROM THE AUTHORIZATION OF SOREMA'S MEMBERSHIP OF OKU .
DECISION NO 12/60 IS BASED ON THE FOLLOWING GROUNDS :
' WHEREAS BY DECISION NO 31/59 OF 27 MAY 1959 THE HIGH AUTHORITY AUTHORIZED THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ( SOREMA ) S.A.R.L . TO BE A MEMBER OF THE OBERRHEINISCHE KOHLENUNION ( OKU ) UNTIL 31 MARCH 1960 AND WHEREAS SOREMA HAS ASKED, IN AGREEMENT WITH THE OBERRHEINISCHE KOHLENUNION, THAT ITS MEMBERSHOP OF THAT BODY BE EXTENDED UNTIL 31 MARCH 1962;
WHEREAS THE LINK PROVIDED FOR IN DECISION NO 31/59 BETWEEN THE OBERRHEINISCHE KOHLENUNION AND THE FRENCH MERCHANTS BELONGING TO SOREMA AND SUPPLIED IN PART BY THE AREA OF THE UPPER RHINE WAS INTENDED TO BE RETAINED UNTIL THE MARKET SITUATION HAD IMPROVED; AND WHEREAS FOR THIS REASON A TRANSITIONAL ARRANGEMENT WAS PROVISIONALLY ADOPTED UNTIL 31 MARCH 1960; AND WHEREAS, HAVING REGARD TO THE DEVELOPMENT OF THE MARKET UP TO THAT DATE, THE REASONS FOR THIS TRANSITIONAL ARRANGEMENT STILL EXIST; AND WHEREAS IT MAY THEREFORE BE EXTENDED UNTIL 31 MARCH 1962, THIS BEING THE DATE OF EXPIRY OF THE AUTHORIZATION GRANTED FOR THE OBERRHEINISCHE KOHLENUNION AND IT IS THEREFORE PERMISSIBLE TO PROCEED TO AN EXAMINATION OF THE MARKET SITUATION AND TO A UNIFORM ADAPTATION OF COMMERCIAL ARRANGEMENTS, AND FOR THIS EXAMINATION SOREMA MUST SUBMIT EVIDENCE, ON THE BASIS OF THE EXPERIENCE GAINED MEANWHILE, SHOWING WHETHER, AND, IF SO, TO WHAT EXTENT, ITS MEMBERSHIP OF THE OKU IS CONTRIBUTING TO A SUBSTANTIAL IMPROVEMENT IN DISTRIBUTION '.
P.164
IT FOLLOWS THAT SO FAR AS SOREMA IS CONCERNED DECISIONS NOS 31/59 AND 12/60 AMOUNT TO AN AMENDMENT OF DECISION NO 19/57 BOTH AS TO ITS INTENT AND ITS JUSTIFICATION .
BY DECISION NO 3/62 OF 28 MARCH 1962 THE AUTHORIZATION OF SOREMA'S MEMBERSHIP OF THE OKU WAS RENEWED ' FOR A TRANSITIONAL PERIOD THE DURATION OF WHICH SHALL BE FIXED BY A SUBSEQUENT DECISION OF THE HIGH AUTHORITY '. THIS DECISION STATES, ON THE ONE HAND, THAT THE GROUNDS PREVENTING THE MERCHANTS GROUPED IN SOREMA FROM DIRECT MEMBERSHIP OF THE OKU, NAMELY THAT ' IT IS IMPOSSIBLE FOR THEM FOR A VARIETY OF REASONS TO DRAW COAL SUPPLIES FROM THE RUHR ', DISAPPEARED DURING 1961 OWING TO THE INSTITUTION OF TRANSITIONAL ARRANGEMENTS FOR DIRECT ACCESS TO THE COAL SELLING AGENCIES OF THE RUHR AND, ON THE OTHER HAND, THAT ' IT IS STILL NOT POSSIBLE AT THE PRESENT TIME TO FORM A CLEAR CONCEPTION OF THE FINAL SHAPE OF THESE TRADING RULES AND THEIR EFFECTS ON FRENCH TRADE ' AND THAT ' FOR THESE REASONS THE HIGH AUTHORITY CONSIDERS THAT FOR THE TIME BEING SOREMA'S CONTINUED MEMBERSHIP OF THE OBERRHEINISCHE KOHLENUNION IS JUSTIFIED IN THE INTERESTS OF AN IMPROVEMENT IN COAL DISTRIBUTION AND MARKET SUPPLIES '.
IT FOLLOWS FROM THE ABOVE THAT DECISION NO 31/59 OF THE HIGH AUTHORITY BEGAN A NEW PHASE IN SOREMA'S RELATIONSHIP WITH THE OKU . BY THIS AND SUBSEQUENT DECISIONS IT NO LONGER RESTRICTED ITSELF TO FIXING OR EXTENDING THE TIME-LIMIT ALLOWED TO THE TRADERS GROUPED IN SOREMA FOR LEAVING THE OKU BUT AUTHORIZED SOREMA ITSELF TO BELONG TO THIS BODY UNDER CERTAIN CONDITIONS AND FOR A LIMITED PERIOD .
THIS IS THE ONLY INTERPRETATION WHICH ACCORDS WITH THE TREATY .
ALTHOUGH DURING THE TRANSITIONAL PERIOD THE HIGH AUTHORITY, APPLYING ARTICLE 12 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS, WAS ABLE BY DECISION NO 19/57 TO FIX A TIME-LIMIT AT THE END OF WHICH THE PROHIBITION OF THE FRENCH MERCHANTS' MEMBERSHIP OF THE OKU WAS TO TAKE EFFECT, IT NO LONGER HAD THIS OPPORTUNITY AFTER THE TRANSITIONAL PERIOD HAD EXPIRED .
AS IT HAD NOT AT THAT TIME PUT AN END TO THAT MEMBERSHIP IT COULD TAKE NO OTHER COURSE BUT TO AUTHORIZE IT UNDER ARTICLE 65 . IN THE PRESENT CASE THEREFORE THERE WAS AN AUTHORIZATION GRANTED SUBJECT TO SPECIFIED CONDITIONS AND FOR A LIMITED PERIOD WITHIN THE MEANING OF THE THIRD SUBPARAGRAPH OF ARTICLE 65(2 ) OF THE TREATY .
P.165
THE CONTESTED DECISION STATES IN ITS PREAMBLE THAT ' AS FROM 1 JULY 1963 THE CONDITIONS FOR GROUP MEMBERSHIP OF THE OBERRHEINISCHE KOHLENUNION ON THE PART OF THE FRENCH WHOLESALE COAL MERCHANTS WILL NO LONGER EXIST ' AND PROVIDES THAT ' THE AUTHORIZATION FOR SOREMA'S MEMBERSHIP OF THE OBERRHEINISCHE KOHLENUNION SHALL CEASE TO HAVE EFFECT ON 30 JUNE 1963 '.
IN THE PRESENT CASE THERE IS NO OCCASION TO CONSIDER WHETHER THE CONTESTED DECISION SHOULD BE CATEGORIZED AS A DECISION REFUSING A RENEWAL OF AN AUTHORIZATION PREVIOUSLY GRANTED UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 65(2 ) OR, AS THE APPLICANT MAINTAINS, AS A DECISION OF REVOCATION FOR WHICH PROVISION IS MADE IN THE FOURTH SUBPARAGRAPH OF ARTICLE 65(2 ). IN EITHER CASE, THE HIGH AUTHORITY HAS NOT SUFFICIENTLY FULFILLED ITS OBLIGATION TO STATE THE REASONS ON WHICH ITS DECISIONS ARE BASED AS REQUIRED BY ARTICLE 15 OF THE TREATY .
UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 65(2 ): ' THE HIGH AUTHORITY SHALL RENEW AN AUTHORIZATION ONCE OR SEVERAL TIMES IF IT FINDS THAT THE REQUIREMENTS OF SUBPARAGRAPHS ( A ) TO ( C ) ARE STILL MET AT THE TIME OF THE RENEWAL '. THE HIGH AUTHORITY, THEREFORE, WHEN IT CONSIDERS ITSELF UNABLE TO RENEW ITS AUTHORIZATION MUST STATE ITS REASONS AND IN PARTICULAR INDICATE IN WHAT RESPECTS THE CONDITIONS SET OUT IN ARTICLE 65(2)(A ) TO ( C ) ARE NO LONGER FULFILLED . THE CONTESTED DECISION CONTAINS NO SUCH STATEMENT OF REASONS AND THE MERE REFERENCE TO DECISION NO 19/57 IS NO SUBSTITUTE FOR SUCH A STATEMENT .
DECISION NO 19/57 AUTHORIZING THE AGREEMENT FOR JOINT BUYING ON THE BASIS OF ARTICLE 12 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS CANNOT JUSTIFY A DECISION TAKEN ON THE BASIS OF ANOTHER PROVISION, NAMELY ARTICLE 65(2 ) OF THE TREATY, HAVING A DIFFERENT PURPOSE AND DIRECTED TO CLEARLY DIFFERENT ENDS .
MOREOVER UNDER THE FOURTH SUBPARAGRAPH OF ARTICLE 65(2 ), THE HIGH AUTHORITY MAY REVOKE AN AUTHORIZATION PREVIOUSLY GRANTED ' IF IT FINDS THAT AS A RESULT OF A CHANGE IN CIRCUMSTANCES THE AGREEMENT NO LONGER MEETS THESE REQUIREMENTS, OR THAT THE ACTUAL RESULT OF THE AGREEMENT OR OF THE APPLICATION THEREOF ARE CONTRARY TO THE REQUIREMENTS FOR ITS AUTHORIZATION '.
THE CONTESTED DECISION DOES NOT ESTABLISH ANY CHANGE IN CIRCUMSTANCES WHICH WOULD RESULT IN THE AGREEMENT'S NO LONGER MEETING THE REQUIREMENTS FOR ITS AUTHORIZATION NOR DOES IT INDICATE WHAT EFFECTS WOULD BE CONTRARY TO THE REQUIREMENTS FOR ITS AUTHORIZATION .
THERE IS NO OCCASION TO EXAMINE THE OTHER GROUNDS OF THE APPLICATION SINCE THESE FINDINGS ARE ALREADY SUFFICIENT FOR THE ANNULMENT OF THE CONTESTED DECISION .
Decision on costs
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS .
IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS IN THE MAIN ACTION .
THE APPLICANT HAS HOWEVER FAILED IN ITS REQUEST FOR SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION .
IT MUST BE ORDERED TO PAY THE COSTS OF THIS ACTION .
Endorsements
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 15, 33, 48, 65 AND 80 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY AND ARTICLE 12 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;
Operative part
THE COURT
HEREBY :
1 . ANNULS DECISION NO 8/63 OF 30 APRIL 1963 OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY CONCERNING MEMBERSHIP OF THE OBERRHEINISCHE KOHLENUNION, BETTAG, PUTON & CO ., MANNHEIM, ON THE PART OF THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION, STRASBOURG;
2 . ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO PAY THE COSTS IN THE MAIN ACTION AND ORDERS THE COSTS OF THE APPLICATION FOR THE ADOPTION OF THE INTERIM MEASURE TO BE BORNE BY THE APPLICANT .