61955CJ0009_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 9/55
SOCIETE DES CHARBONNAGES DE BEERINGEN,
SOCIETE DES CHARBONNAGES DE HOUTHALEN,
SOCIETE DES CHARBONNAGES DE HELCHTEREN ET ZOLDER,
REPRESENTED BY ROGER JAUMET, PAUL RENDERS, EDOUARD LEBLANC, IVAN ORBAN AND PAUL CULOT, ASSISTED BY HENRI ROLIN, PROFESSOR AT THE UNIVERSITY OF BRUSSELS AND ADVOCATE AT THE COUR D'APPEL, BRUSSELS, AND J . MERTENS DE WILMARS, ADVOCATE AT ANTWERP, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 6, RUE HENRI HEINE, APPLICANTS,
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 AT ITS OFFICES, 2, PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT 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 AND OF DECISION NO 22/55 OF THE HIGH AUTHORITY OF 28 MAY 1955 ( JOURNAL OFFICIEL OF 31 MAY 1955, PP . 753 - 758 ),
Grounds
P . 323
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, NO 12, 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( B ) THE LETTER STATES THAT IN FUTURE EQUALIZATION PAYMENTS WILL BE OR MAY BE WITHDRAWN FROM CERTAIN UNDERTAKINGS ON THE GROUND THAT THEY ARE NOT MAKING THE EFFORT TO RE-EQUIP CONSIDERED POSSIBLE AND NECESSARY OR ARE REFUSING TO CARRY OUT THE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 . 324
AS REGARDS DECISION NO 22/55, THE APPLICANTS CLAIM THAT IT IS INDIVIDUAL IN NATURE . THE DEFENDANT, ON THE OTHER HAND, MAINTAINS THAT IT IS A GENERAL DECISION . IN THE OPINION OF THE APPLICANTS, 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 APPLICANTS'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 IT 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 DOES NOT ACCSEQUENCES WHICH ARE INDIVIDUAL AND VARIED SPECIFIC CONSEQUENCES WHICH ARE INDIVIDUAL AND VARIED DOES NOT AFFECT ITS NATURE AS A GENERAL DECISION .
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 .
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 HAS DECIDED TO TAKE HENCEFORTH SHOULD THE CIRCUMSTANCES MENTIONED UNDER 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 .
P . 325
SINCE THE INDIVIDUAL OR GENERAL NATURE OF EACH OF THE DECISIONS HAS BEEN ESTABLISHED, THE APPLICANTS ARE 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 APPLICANTS CONSIDER THAT THE TWO OTHER DECISIONS INVOLVE A MISUSE OF POWERS AFFECTING THEM, THEY 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 APPLICANTS TO CLAIM FORMALLY THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING THEM, INDICATING CONVINCINGLY THE REASONS WHICH, IN THEIR OPINION, GIVE RISE TO THE PRESUMPTION OF A MISUSE OF POWERS .
AS REGARDS THE FIFTH AND SIXTH COMPLAINTS, THE DEFENDANT RAISED THE QUESTION WHETHER THE APPLICATION BROUGHT BY THE APPLICANTS SATISFIES THE REQUIREMENTS OF ARTICLE 22 OF THE STATUTE OF THE COURT OF JUSTICE AND OF ARTICLE 29 OF THE RULES OF PROCEDURE OF THAT COURT, IN PARTICULAR AS REGARDS THE STATEMENT OF THE GROUNDS RELIED ON AND THE BRIEF DESCRIPTION OF THEM .
THE CONCLUSIONS OF THE PARTIES IN THE APPLICATION INDICATE THE GROUNDS RELIED ON IN SUPPORT OF THOSE COMPLAINTS, WHICH IS SUFFICIENT TO SATISFY THE AFOREMENTIONED PROVISIONS . SIMILARLY, A BRIEF DESCRIPTION OF THOSE GROUNDS MAY BE REGARDED AS INCORPORATED WITHIN THE APPLICATION IN SUPPORT OF THE FIFTH COMPLAINT, BUT NOT AS REGARDS THE FOURTH . IN FACT, THE FOURTH COMPLAINT CONSISTS SOLELY OF A REFERENCE TO " THE STATEMENT CONTAINED IN THE APPLICATION LODGED BY FEDECHAR THAT THE DECISION OF THE HIGH AUTHORITY IS UNLAWFUL IN SO FAR AS IT IMPOSES REDUCED PRICES FOR CERTAIN TYPES OF COAL ". IN SPITE OF THE UNQUESTIONABLE LINK BETWEEN THE TWO APPLICATIONS A GENERAL REFERENCE TO A STATEMENT MADE IN ANOTHER CASE IS NOT SUFFICIENT FOR THE APPLICATION TO BE IN ACCORDANCE WITH THE AFOREMENTIONED PROVISIONS, IN PARTICULAR AS THE REFERENCE - AS IS THE CASE AS REGARDS THE FOURTH COMPLAINT IN THE PRESENT APPLICATION - WAS NOT ACCOMPANIED BY AN APPLICATION FOR THE AFFAIRS TO BE JOINED . THAT APPLICATION WAS MADE ONLY AT THE BEGINNING OF THE ORAL PROCEDURE . THE FOURTH COMPLAINT IS THEREFORE INADMISSIBLE .
P . 326
SIMILARLY, THE GROUNDS UPON WHICH THE PARTIES RELIED FOR THE FIRST TIME IN THEIR REPLY WITHOUT HAVING MENTIONED THEM IN THE APPLICATION MUST ALSO BE DECLARED INADMISSIBLE . THAT APPLIES THEREFORE TO THE RELATIONSHIP BETWEEN SELLING PRICES AND ESTIMATED PRODUCTION COSTS AND TO THE INTERVENTION BY THE BELGIAN GOVERNMENT . SUBJECT TO THE FOREGOING, THE APPLICATION IS 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 APPLICANTS 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 " ACCEPTING 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 .
THE DEFENDANT MAINTAINS IN THE ALTERNATIVE THAT THE APPLICANTS ARE ENTITLED TO PUT FORWARD ONLY THE SUBMISSION OF MISUSE OF POWERS AND THAT ALL THE OTHER SUBMISSIONS MUST BE SET ASIDE . THE APPLICANTS, ON THE OTHER HAND, CONSIDER NOT ONLY THAT THEY ARE ENTITLED TO PUT FORWARD ALL THE GROUNDS FOR ANNULMENT, PROVIDED THAT THEY PLEAD A MISUSE OF POWERS CONVINCINGLY, BUT ALSO THAT THEY MAY BRING PROOF OF THE OTHER DEFECTS IN ORDER TO SUPPORT THE SUBMISSION OF MISUSE OF POWERS . THEY CONSIDER 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 APPLICANTS'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 .
P . 327
THE FOREGOING CONSIDERATIONS CLEARLY CONTRADICT THE APPLICANTS'ILLOGICAL VIEW THAT THE INTERPRETATION 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 APPLICANTS MAY RELY ONLY ON THE SUBMISSION OF MISUSE OF POWERS AFFECTING THEM . AS REGARDS THE INDIVIDUAL DECISION, SINCE THE PARTIES ARE AGREED THAT IT MAY BE SO DESCRIBED, THE APPLICANTS MAY RELY ON ALL THE SUBMISSIONS SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 33 .
B - SUBSTANCE
THE FIRST COMPLAINT - REDUCTION OR WITHDRAWAL OF EQUALIZATION AS REGARDS CERTAIN UNDERTAKINGS
THE APPLICANTS MAINTAIN, FIRST, THAT THE INTRODUCTION INTO THE EQUALIZATION SCHEME OF A SELECTIVE CRITERION, THAT IS, THE ADJUSTMENT OF THE EQUALIZATION PAYMENTS TO THE INDIVIDUAL SITUATION OF THE UNDERTAKINGS, CONSTITUTES DISCRIMINATION WHICH IS PROHIBITED BY THE TREATY .
THAT ARGUMENT MUST BE REJECTED . AS A RESULT OF THE DECISION CONTAINED IN THE LETTER OF 28 MAY 1955 EQUALIZATION PAYMENTS ARE REDUCED OR EVEN ABOLISHED WHERE THE DISADVANTAGES RESULTING FROM LESS FAVOURABLE GEOLOGICAL CONDITIONS, WHICH ARE INDEED ONE OF THE PREMISES OF THE SPECIAL PROVISIONS APPLYING TO THE BELGIAN COAL INDUSTRY, NO LONGER EXIST . IT FOLLOWS THEREFROM THAT THE PAYMENT OF DIFFERING RATES OF EQUALIZATION ON THE BASIS OF PHYSICAL CONDITIONS OF PRODUCTION IS EVIDENCE OF A DESIRE TO ACKNOWLEDGE DIFFERENCES WHICH ACTUALLY EXIST, SO AS TO ENSURE THAT COMPARABLE CASES RECEIVE COMPARABLE BENEFIT AND, THEREFORE, TO AVOID DISCRIMINATION . THE APPLICANTS'ARGUMENT WOULD BE CONVINCING ONLY IF THE HIGH AUTHORITY HAD NOT APPLIED AN OBJECTIVE AND UNIFORM CRITERION IN ORDER TO CHECK WHETHER THE INDIVIDUAL SITUATION OF THE UNDERTAKINGS SATISFIED THE CONDITIONS FIXED FOR THE AWARD OF EQUALIZATION . THE DECISION CONTAINED IN THE LETTER IN FACT LAID DOWN SUCH A CRITERION AND IT HAS NOT BEEN DISPUTED THAT THE SITUATION OF THE THREE COLLIERIES IS IN ACCORDANCE THEREWITH .
P . 328
SECONDLY, THE APPLICANTS CONSIDER THAT AS ARTICLE 26 ( 2 ) ( A ) REFERS TO " BELGIAN COAL " AND THE EQUALIZATION PAYMENTS PROVIDED FOR UNDER SUBPARAGRAPHS ( B ) AND ( C ) ARE GENERAL IN NATURE, THE EQUALIZATION PROVIDED FOR UNDER SUBPARAGRAPH ( A ) MUST ALSO BE GENERAL IN NATURE .
THAT ARGUMENT IS NOT CONCLUSIVE, SINCE THE EQUALIZATION PAYMENTS PROVIDED FOR UNDER SUBPARAGRAPHS ( B ) AND ( C ) ARE CLEARLY INTENDED TO PUT BOTH THE BELGIAN IRON AND STEEL INDUSTRY AND EXPORTERS OF COAL IN A POSITION TO MEET COMPETITION IN THE COMMON MARKET IF THE LIMIT REPRESENTED BY THE ESTIMATED PRODUCTION COSTS IS TOO FAR ABOVE THE LEVEL OF THE RULING COMMON MARKET PRICES . FOR THOSE REASONS THE AIMS PURSUED BY THE EQUALIZATION PAYMENTS UNDER SUBPARAGRAPHS ( B ) AND ( C ) ARE DIFFERENT FROM THAT PURSUED BY EQUALIZATION UNDER SUBPARAGRAPH ( A ). FURTHERMORE, SUBPARAGRAPHS ( B ) AND ( C ) CONTAIN A NUMBER OF PROVISIONS WHICH ARE INTENDED TO GOVERN THE DISTRIBUTION OF THE EQUALIZATION PAYMENTS MADE THEREUNDER, WHILE THERE ARE NO SUCH RULES FOR THE EQUALIZATION PAYMENTS MADE UNDER SUBPARAGRAPH ( A ). IN THE LIGHT OF THOSE DIFFERENCES BETWEEN SUBPARAGRAPHS ( A ), ( B ) AND ( C ) AND OF THE FACT THAT THE PHRASE " BELGIAN COAL " ADMITS OF EITHER INTERPRETATION, IT CANNOT BE CONCLUDED ON THE BASIS OF THE TEXT OF ARTICLE 26 ALONE THAT THE EQUALIZATION PROVIDED FOR UNDER SUBPARAGRAPH ( A ) MUST BE GENERAL IN NATURE .
ON THE ASSUMPTION THAT EQUALIZATION PAYMENTS MADE UNDER SUBPARAGRAPH ( A ) WERE THE SAME FOR ALL UNDERTAKINGS WITHOUT REGARD TO DIFFERENCES IN THEIR CONDITIONS OF PRODUCTION, EQUALIZATION WOULD BECOME DISCRIMINATORY AND ITS EXISTENCE UNJUSTIFIED SINCE, IN SO FAR AS IT WAS AWARDED TO UNDERTAKINGS WHOSE CONDITIONS OF PRODUCTION DO NOT SUFFER THE DISADVANTAGES WHICH ARE THE VERY REQUIREMENTS OF THE AWARD, IT WOULD BECOME A SUBSIDY . IT FOLLOWS THAT EQUALIZATION MUST NECESSARILY TAKE ACCOUNT OF THE INDIVIDUAL POSITION OF THE UNDERTAKINGS AS REGARDS THEIR CONDITIONS OF PRODUCTION .
IN SUPPORT OF THEIR ARGUMENT THE APPLICANTS AGAIN REFER TO THE EXISTENCE OF A GUARANTEE TO MAINTAIN PREVIOUS LEVELS OF RECEIPTS .
DESPITE THE FACT THAT THE CONVENTION DOES NOT REFER TO THE EXISTENCE, WHERE APPROPRIATE, OF A RELATIONSHIP BETWEEN EQUALIZATION AND RECEIPTS, THE LATTER BEING MENTIONED ONLY IN ARTICLE 25 IN RELATION TO THE BASIS OF ASSESSMENT OF THE LEVY, SUCH AN INTERPRETATION WOULD BE ADMISSIBLE ONLY IF EQUALIZATION HAD NECESSARILY AND IN ALL CIRCUMSTANCES TO COVER THE ENTIRE DIFFERENCE BETWEEN THE REDUCED SELLING PRICES AND RECEIPTS AT THE BEGINNING OF THE TRANSITIONAL PERIOD . THAT IS NOT THE CASE, SINCE EQUALIZATION IS ONLY A NECESSARY PROTECTIVE MEASURE TO AVOID HURRIED AND DANGEROUS SHIFTS IN PRODUCTION LEVELS . IN ACCORDANCE WITH ARTICLE 24 OF THE CONVENTION THE SPECIAL SYSTEM ESTABLISHED FOR THAT PURPOSE MUST TAKE ACCOUNT OF SITUATIONS EXISTING WHEN THE COMMON MARKET IS ESTABLISHED . HOWEVER, IT IS NOT POSSIBLE TO INTERPRET THAT PROVISION WIDELY, AS GUARANTEEING THE MAINTENANCE OF THE ORIGINAL LEVEL OF RECEIPTS . THE INTRODUCTION OF A SPECIAL SYSTEM, SUCH AS THE EQUALIZATION SCHEME, IS TO BE EXPLAINED BY THE EXISTENCE IN BELGIUM OF CERTAIN CONDITIONS OF PRODUCTION WHICH ARE INHERENTLY DIFFERENT FROM THOSE IN OTHER COUNTRIES PARTICIPATING IN THE COMMON MARKET . EQUALIZATION MUST, THEREFORE, NOT EXCEED THE LIMITS OF WHAT IS STRICTLY NECESSARY IN ORDER TO NEUTRALIZE TO A CERTAIN EXTENT THE EFFECTS OF THE DISADVANTAGE RESULTING FROM THOSE DIFFERENCES, WHICH DOES NOT IMPLY A GUARANTEE THAT THE ORIGINAL LEVEL OF RECEIPTS WILL BE MAINTAINED . THE QUESTION OF THE EXTENT TO WHICH THE TOTAL OF SELLING PRICES AND EQUALIZATION PAYMENTS - WHICH DETERMINES THE RECEIPTS OF THE UNDERTAKINGS - MUST VARY DURING THE TRANSITIONAL PERIOD IS A QUESTION WHICH THE HIGH AUTHORITY MUST EXAMINE IN THE LIGHT OF THE PROGRESS OF THE PROGRAMMES FOR THE RE-EQUIPMENT AND REORGANIZATION OF THE BELGIAN MINES .
P . 329
FURTHERMORE, IF THE PURPOSE OF EQUALIZATION WAS TO GUARANTEE THE MAINTENANCE OF ORIGINAL LEVELS OF RECEIPTS, IT WOULD BE IN CONTRADICTION WITH THE PRINCIPLE OF THE DECREASE OF THE EQUALIZATION LEVY LAID DOWN IN ARTICLE 25 OF THE CONVENTION . IN ADDITION, ARTICLE 1 OF THE CONVENTION REFERS TO PRODUCTION BEING PROGRESSIVELY ADAPTED TO THE NEW CONDITIONS RESULTING FROM THE ESTABLISHMENT OF THE COMMON MARKET AND NOT TO THE NEW CONDITIONS BEING ADAPTED TO THE MAINTENANCE OF SITUATIONS EXISTING AT THE BEGINNING OF THE TRANSITIONAL PERIOD .
MOREOVER, IF, AS THE APPLICANTS MAINTAIN, EQUALIZATION WAS INTENDED TO ENSURE THAT THE COLLIERIES HAVE THE FINANCIAL RESOURCES AVAILABLE WHICH ARE REGARDED AS INDISPENSABLE TO THE IMPLEMENTATION OF THEIR RE-EQUIPMENT PROGRAMMES, THE AIM OF THE EQUALIZATION SCHEME WOULD GREATLY EXCEED THE REASONS FOR ITS ESTABLISHMENT AND WOULD TRANSFORM IT INTO A MEASURE INTENDED TO CONTRIBUTE ACTIVELY AND DIRECTLY TO THE REORGANIZATION OF THE BELGIAN MINES, WHICH WOULD BE CONTRARY TO THE RATHER PASSIVE NATURE OF A PROTECTIVE MEASURE .
FINALLY, THE APPLICANTS MAINTAIN THAT EQUALIZATION PAYMENTS MUST BE THE SAME FOR ALL COLLIERIES SINCE THE TREATY AND THE CONVENTION PROVIDE, IN PARTICULAR IN THE FOURTH PARAGRAPH OF ARTICLE 5 AND ARTICLE 62 OF THE TREATY AND IN ARTICLES 24 ( B ) AND 26 ( 4 ) OF THE CONVENTION, FOR SPECIAL MEASURES INTENDED TO IRON OUT THE DIFFERENCES EXISTING BETWEEN THE COLLIERIES CONSIDERED INDIVIDUALLY .
THAT ARGUMENT IS NOT VALID, SINCE ALTHOUGH THE AFOREMENTIONED PROVISIONS PROVIDE FOR MEASURES OTHER THAN EQUALIZATION IN ORDER TO BRING TO AN END DIFFERENCES EXISTING BETWEEN THE COLLIERIES, THAT DOES NOT IN ANY WAY PREVENT EQUALIZATION ALSO TAKING INDIVIDUAL DIFFERENCES INTO ACCOUNT IN THE CASE OF BELGIUM, IN SO FAR AS THE EQUALIZATION SCHEME ESTABLISHED FOR THAT COUNTRY PERMITS .
THE PRESENT COMPLAINT IS THEREFORE UNFOUNDED .
THE SECOND COMPLAINT - FIXING OF THE NEW RATES OF EQUALIZATION AT A FLAT RATE
THIS COMPLAINT ALLEGES THAT THE NEW METHOD, WHICH CONSISTS IN FIXING THE NEW RATES OF EQUALIZATION AT A FLAT RATE WITHOUT ANY INDICATION OF THE PRICE LIST " FOR ACCOUNTING PURPOSES ", IS ARBITRARY AND BASED ON REASONS WHICH ARE EXTRANEOUS TO ARTICLE 26 OF THE CONVENTION .
IT SHOULD BE OBSERVED, FIRST, THAT THE SELLING PRICE FIXED FOR EACH TYPE OF COAL TOGETHER WITH THE EQUALIZATION PAYMENTS IS EQUIVALENT TO WHAT WAS PREVIOUSLY CALLED THE PRICE " FOR ACCOUNTING PURPOSES " AND THAT THE TOTAL OF THOSE TWO ELEMENTS IS LOWER IN FOUR CASES AND HIGHER IN FIFTY-TWO CASES THAN THE PRICE " FOR ACCOUNTING PURPOSES " PREVIOUSLY IN FORCE .
BEFORE CONSIDERING WHETHER THE NEW RATES OF EQUALIZATION WHICH ARE ADDED TO THE NEW SELLING PRICES ARE ARBITRARY IN NATURE IT SHOULD BE NOTED THAT THE NATURE OF THE EQUALIZATION ARRANGEMENTS CANNOT BE ASCERTAINED IN TERMS OF THE VARIATIONS RESULTING FROM THE " PRINCIPLE OF SELECTIVITY " WHICH THE HIGH AUTHORITY WAS ENTITLED TO APPLY .
P . 330
AS REGARDS THE FIXING OF RATES OF EQUALIZATION FOR THE VARIOUS TYPES AND CATEGORIES OF COAL, THE COURT CONSIDERS THAT THE VERY NATURE OF THE EQUALIZATION SCHEME OBLIGED THE HIGH AUTHORITY TO ADJUST THE PAYMENTS TO THE NEEDS OF THE UNDERTAKINGS . IT SHOULD BE ADDED THAT THE HIGH AUTHORITY MUST TAKE PARTICULAR ACCOUNT OF THE GRADUAL DECREASE IN THE EQUALIZATION FUNDS AVAILABLE AND THE PROGRESS MADE OR CONSIDERED POSSIBLE AS REGARDS THE EFFORT TO RE-EQUIP AND REORGANIZE THE BELGIAN COLLIERIES .
IT RESULTS FROM THE FOREGOING CONSIDERATIONS THAT THE AMOUNTS OF EQUALIZATION WILL NECESSARILY VARY FROM ONE CASE TO ANOTHER, BUT THAT THE MERE EXISTENCE OF VARIATIONS IS NOT PROOF THAT THE HIGH AUTHORITY FIXED THOSE AMOUNTS ARBITRARILY AND IN A MANNER EXTRANEOUS TO THE AIM OF THE CONVENTION . THE PRESENT COMPLAINT MUST THEREFORE BE DISMISSED .
THE THIRD COMPLAINT - THE THREAT TO WITHDRAW EQUALIZATION
SINCE EQUALIZATION IS A PROTECTIVE MEASURE ENABLING BELGIAN COAL TO BE INTEGRATED INTO THE COMMON MARKET FROM THE BEGINNING OF THE TRANSITIONAL PERIOD DURING WHICH THE PROCESS OF REORGANIZATION AND RE-EQUIPMENT MUST BE IMPLEMENTED, IT IS NOT INTENDED TO MAKE ANY DIRECT AND ACTIVE CONTRIBUTION TO THAT PROCESS . IT IS CLEAR THAT EQUALIZATION IS GRANTED ON THE ASSUMPTION THAT THE REORGANIZATION AND RE-EQUIPMENT OF THE BELGIAN COLLIERIES MAY BE ACHIEVED TO A SUFFICIENT DEGREE TO ENABLE THE FINAL INTEGRATION OF BELGIAN COAL INTO THE COMMON MARKET AT THE END OF THE TRANSITIONAL PERIOD .
THE AIM OF THE EQUALIZATION SCHEME IS NOT TO FINANCE THE RE-EQUIPMENT AND REORGANIZATION OF THE COLLIERIES . FURTHERMORE, IF IT WERE TO APPEAR THAT CERTAIN UNDERTAKINGS WERE NOT CARRYING OUT THE WORK OF REORGANIZATION AND RE-EQUIPMENT, SUCH THAT THEY INCURRED LIABILITY, IT WOULD HAVE TO BE ACKNOWLEDGED THAT THERE WAS NO LONGER ANY BASIS OR JUSTIFICATION FOR EQUALIZATION . THOSE UNDERTAKINGS WOULD THUS HAVE DEPRIVED THEMSELVES BY THEIR OWN FAULT OF THE RIGHT TO BENEFIT FROM EQUALIZATION .
THE HIGH AUTHORITY MUST TAKE SUCH A POSSIBILITY INTO ACCOUNT . IT DID SO CONDITIONALLY AT POINT 2 ( D ) OF ITS LETTER OF 28 MAY 1955, WHEN IT AUTHORIZED THE BELGIAN GOVERNMENT TO WITHDRAW EQUALIZATION WHERE APPROPRIATE, SUBJECT TO THE PRIOR AGREEMENT OF THE HIGH AUTHORITY . IT CANNOT BE CONCLUDED FROM THE WORDING OF THE LETTER THAT THE HIGH AUTHORITY WOULD HAVE MADE ITS AGREEMENTS DEPENDENT UPON NON-OBJECTIVE CRITERIA WHICH ARE NOT JUSTIFIED BY THE FACTS . THE HIGH AUTHORITY IS NOT THEREFORE GUILTY OF A MISUSE OF POWERS AND THE APPLICATION IS WITHOUT FOUNDATION ON THAT POINT .
P . 331
THE FIFTH COMPLAINT - FIXING OF SELLING PRICES IN CERTAIN CASES WITHOUT PROVISION FOR EQUALIZATION
THE DEFENDANT ALLEGES THAT THE EXCLUSION FROM THE BENEFIT OF EQUALIZATION OF UNCLASSIFIED BITUMINOUS COALS FROM THE CAMPINE IN NO WAY IMPLIES THAT THOSE TYPES ARE ALREADY SUFFICIENTLY INTEGRATED INTO THE COMMON MARKET TO BE PLACED OUTSIDE THE SYSTEM OF EQUALIZATION . IT CONSIDERS THAT ACCOUNT MUST BE TAKEN OF THE FACT THAT IT MAY BE NECESSARY TO MAKE A FURTHER REDUCTION IN BELGIAN PRICES AND, WHERE APPROPRIATE, TO RECOMMENCE PAYMENT OF EQUALIZATION TO THE COLLIERIES IN THE CAMPINE AS WELL .
IN FACT, THE LETTER OF 28 MAY 1955 LEAVES UNCHANGED THE TYPES OF COAL IN QUESTION WITHIN THE EQUALIZATION SYSTEM IN SPITE OF THE MODIFICATIONS WHICH IT MAKES TO THE RULES WHICH DETERMINE THE AMOUNT OF THE EQUALIZATION PAYMENTS TO CERTAIN UNDERTAKINGS . THE SYSTEM LAID DOWN IN ARTICLE 26 ( 2 ) ( A ) OF THE CONVENTION IS THEREFORE APPLICABLE TO THOSE TYPES, IN PARTICULAR AS REGARDS THE NEED TO ENSURE THAT THAT SYSTEM TAKES FULL EFFECT THROUGH THE FIXING OF PRICES BY THE HIGH AUTHORITY .
THE FIXING OF PRICES IS A GENERAL MEASURE WHICH IS NECESSARY TO THE APPLICATION OF THE EXCEPTIONAL SYSTEM LAID DOWN IN ARTICLE 26 ( 2 ) FOR THE ENTIRE BELGIAN COAL PRODUCTION .
THE QUESTION WHETHER THAT SYSTEM ENABLES EQUALIZATION TO BE REDUCED OR EVEN WITHDRAWN ON THE BASIS OF THE CONDITIONS OF PRODUCTION OF CERTAIN INDIVIDUAL UNDERTAKINGS FORMS THE SUBJECT OF THE COMPLAINT RELATING TO THE APPLICATION OF THE PRINCIPLE OF SELECTIVITY HAS BEEN ESTABLISHED IN RELATION TO ALL THE PROVISIONS OF THE LETTER OF 28 MAY 1955 FROM THE HIGH AUTHORITY TO THE BELGIAN GOVERNMENT . HOWEVER, IT MAY BE STATED THAT IT IS IMPOSSIBLE TO CONCEIVE EITHER OF THE EXISTENCE OF SEVERAL PRICE LISTS APPLYING TO CONSUMERS OF BELGIAN COAL OR OF THE COEXISTENCE OF BOTH LIBERALIZED AND FIXED PRICES FOR COALS OF THE SAME TYPE .
IT FOLLOWS THAT IN THE FOREGOING CASE THE REDUCTION OR EVEN WITHDRAWAL OF EQUALIZATION IN RESPECT OF CERTAIN TYPES AND IN CERTAIN INDIVIDUAL CASES DOES NOT RESULT IN THOSE TYPES BEING PLACED OUTSIDE THE PRICE LIST, SINCE THERE CAN BE ONLY ONE PRICE LIST RESULTING FROM THE APPLICATION OF ARTICLE 26 ( 2 ) FOR ALL CONSUMERS OF BELGIAN COAL .
DECISION NO 22/55 IS THEREFORE TO BE EXPLAINED BY THE NORMAL APPLICATION OF THE SYSTEM REFERRED TO IN ARTICLE 26 AND THE NORMAL EXERCISE OF A POWER WHICH IS NECESSARY FOR THE IMPLEMENTATION OF THAT SYSTEM . THE SUBMISSION OF MISUSE OF POWERS IS THEREFORE UNFOUNDED .
Decision on costs
UNDER THE TERMS OF ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANTS MUST THEREFORE BE ORDERED TO BEAR THE COSTS OF THE ACTION .
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, 5, 8, 14, 33, 34, 36, 50, 60, 61 AND 62 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 OF JUSTICE;
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 . DISMISSES THE APPLICATION FOR THE ANNULMENT 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 AND OF DECISION NO 22/55 OF THE HIGH AUTHORITY OF 28 MAY 1955;
2 . ORDERS THE APPLICANTS TO BEAR THE COSTS .