61959CJ0003_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 3/59
GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY, REPRESENTED BY WERNER VON SIMSON AND PROFESSOR PHILIPP MOHRING, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF WERNER VON SIMSON, BERTRANGE, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, WALTER MUCH, ACTING AS AGENT, ASSISTED BY PROFESSOR HANS PETER IPSEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY OF 1 DECEMBER 1958, NOTIFIED TO THE APPLICANT ON 5 DECEMBER 1958, REFERENCE N . 35172,
Grounds
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SUBSTANCE
1 . THE APPLICANT ALLEGES, IN THE FIRST PLACE, THAT THE CONTESTED PASSAGES OF DECISIONS N.S T-10.202 AND T-10.203 OF THE HIGH AUTHORITY OF 12 FEBRUARY 1958, WHICH ARE CONTESTED IN APPLICATION 19/58, DO NOT IMPOSE ANY UNEQUIVOCAL DUTY ON THE FEDERAL GOVERNMENT BECAUSE, VIEWED OBJECTIVELY, THEY MERELY CONSTITUTE A STATEMENT OF CONDITIONS RESTRICTING AN AUTHORIZATION GIVEN UNDER THE FOURTH PARAGRAPH OF ARTICLE 70 OF THE ECSC TREATY .
THIS ARGUMENT MUST BE REJECTED .
IN FACT, PURSUANT TO THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS, THE SAID CONTESTED PASSAGES OF THOSE DECISIONS EXPRESSLY SET TIME-LIMITS FOR THE MODIFICATION OF A CERTAIN NUMBER OF SPECIAL RATES AND CONDITIONS NOTIFIED TO THE HIGH AUTHORITY IN ACCORDANCE WITH THAT PROVISION . IT FOLLOWS THAT THE ABOVEMENTIONED DECISIONS PLACED THE APPLICANT UNDER A DUTY TO MODIFY THE RATES IN QUESTION WITHIN THE PRESCRIBED PERIOD .
2 . SECONDLY, THE APPLICANT ALLEGES THAT EVEN SUPPOSING THAT THE DECISIONS OF 12 FEBRUARY 1958 DID PLACE THE FEDERAL GOVERNMENT UNDER AN OBLIGATION, THERE HAS NOT YET BEEN ANY FAILURE TO FULFIL THAT OBLIGATION BECAUSE THE TIME-LIMIT SET FOR MODIFYING THE RATES AND CONDITIONS WAS SUSPENDED BY THE LODGING OF APPLICATION 19/58, WHICH IS BASED, INTER ALIA, ON ARTICLE 88 OF THE TREATY, AND MUST THEREFORE BENEFIT FROM THE SUSPENSORY EFFECT PROVIDED FOR BY THE THIRD PARAGRAPH OF THAT ARTICLE .
THIS ARGUMENT CANNOT BE ACCEPTED, QUITE APART FROM THE QUESTION WHETHER APPLICATION 19/58 MAY OR MUST BE CONSIDERED AS AN APPLICATION UNDER ARTICLE 88, WHICH QUESTION THE COURT DOES NOT INTEND TO EXAMINE AT PRESENT .
THE REALITY, CONTRARY TO THE OPINION OF THE APPLICANT, IS THAT THE THIRD PARAGRAPH OF ARTICLE 88 MERELY STATES THAT THE MEASURES SET OUT UNDER ( A ) AND ( B ) CANNOT BE TAKEN WHILE THE ACTION IS SUB JUDICE .
IT CANNOT BE ARGUED THAT THE AUTHORS OF THE TREATY INTENDED TO GIVE A SUSPENSORY EFFECT TO ACTIONS UNDER ARTICLE 88, FOR SUCH A DEROGATION FROM THE GENERAL PRINCIPLE OF ARTICLE 39 CANNOT BE PRESUMED FROM THE SILENCE OF THE TEXT .
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MOREOVER, THE PARTICULAR SCOPE OF ARTICLE 88 RUNS COUNTER TO THE PROPOSITION THAT AN ACTION UNDER THE SECOND PARAGRAPH OF THAT ARTICLE CAN HAVE SUSPENSORY EFFECT . SINCE THE DECISION TAKEN BY THE HIGH AUTHORITY UNDER THE FIRST PARAGRAPH OF THAT ARTICLE WAS DECLARATORY IN NATURE, TO ACCEPT THAT APPLICATION 19/58 HAS SUCH EFFECT WOULD MEAN SUSPENDING NOT THE EXECUTION OF THE SAID DECISION, BUT THE BINDING EFFECT EITHER OF THE RELEVANT PROVISIONS OF THE TREATY OR OF PREVIOUS DECISIONS OF THE HIGH AUTHORITY, EXECUTION OF WHICH IS CONCERNED IN THE PRESENT CASE .
3 . DURING ITS ORAL ARGUMENTS, THE APPLICANT ALLEGED THAT, GENERALLY, DECISIONS CREATING RIGHTS ONLY PRODUCE THEIR FULL EFFECTS AFTER EXPIRY OF THE PERIOD DURING WHICH AN APPEAL MAY BE BROUGHT AGAINST THEM OR AFTER JUDGMENT HAS BEEN GIVEN IN PROCEEDINGS BROUGHT IN RESPECT OF THEM, AND THAT THEREFORE THE SUSPENSORY EFFECT OF APPLICATION 19/58 MUST BE PRESUMED AUTOMATICALLY .
THIS ARGUMENT, WHICH IS VALID AS REGARDS CERTAIN AREAS OF PRIVATE LAW, CANNOT BE ACCEPTED AS REGARDS ADMINISTRATIVE MATTERS, WHERE THE RULE IS THAT DECISIONS BECOME EFFECTIVE EITHER AT THE TIME WHEN THEY ARE ADOPTED, OR ON THE DATE OF THEIR NOTIFICATION OR PUBLICATION .
ARTICLE 14 OF THE TREATY PROVIDES THAT DECISIONS OF THE HIGH AUTHORITY SHALL BE BINDING IN THEIR ENTIRETY, AND UNDER ARTICLE 39 OF THE TREATY AND ARTICLE 33 OF THE STATUTE ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT EXCEPT WHERE THE COURT, OR THE PRESIDENT THEREOF, ORDERS OTHERWISE . SINCE THE APPLICANT HAS NOT SUBMITTED A REQUEST THAT EXECUTION OF THE SAID DECISIONS BE SUSPENDED, THE LATTER HAVE REMAINED IN FORCE WHATEVER THE NATURE AND EFFECT OF APPLICATION 19/58 .
4 . THE APPLICANT ALSO ALLEGES THAT THERE IS NO LEGAL BASIS FOR THE CONTESTED DECISION BECAUSE THE DECISIONS OF 12 FEBRUARY 1958 ARE NOT VALID . THE APPLICANT IS THUS RAISING AGAINST THAT DECISION THE SUBMISSIONS ALREADY DIRECTED AGAINST THE DECISIONS OF 12 FEBRUARY 1958 IN APPLICATION 19/58, TAKING THE VIEW THAT ARTICLE 88 GIVES MEMBER STATES A SPECIAL RIGHT OF ACTION, WHICH IS DISTINCT FROM THE RIGHT GIVEN BY ARTICLE 33 AND WHICH ENTITLES THEN TO INSTITUTE PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION AND WHICH ALLOWS IT TO EXAMINE THE LEGALITY OF THE BASIC DECISIONS .
THIS LINE OF REASONING CANNOT BE ACCEPTED .
IT CANNOT BE ARGUED THAT THE STATES HAVE A RIGHT TO CONTEST, AS A MATTER FOR THE UNLIMITED JURISDICTION OF THE COURT, NOT ONLY DECISIONS ADOPTED BY THE HIGH AUTHORITY PURSUANT TO ARTICLE 88, BUT ALSO DECISIONS ADOPTED BY IT IN THE EXERCISE OF THE GENERAL POWERS CONFERRED ON IT BY THE TREATY .
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ARTICLE 33, WHICH GIVES MEMBER STATES AND UNDERTAKINGS A RIGHT TO BRING AN ACTION FOR ANNULMENT, AND NOT AN ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION, DOES NOT ADMIT OF THE INTERPRETATION PUT FORWARD BY THE APPLICANT . IF A MEMBER STATE, WITHOUT HAVING OBTAINED THE ANNULMENT OF A DECISION OF THE HIGH AUTHORITY, OR A SUSPENSION OF THE TIME-LIMIT FOR THE EXECUTION OF THAT DECISION, DOES NOT COMPLY WITH THE SAME, IT IS THEREBY GUILTY, AS APPEARS FROM THE FIRST PARAGRAPH OF ARTICLE 86, OF A FAILURE TO FULFIL ITS OBLIGATIONS, AND THE HIGH AUTHORITY IS REQUIRED TO RECORD SUCH FAILURE PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 88 .
IN THE PRESENT CASE, THE HIGH AUTHORITY HAS COMPLIED WITH THAT REQUIREMENT BY MEANS OF THE CONTESTED DECISION . THEREFORE THE TRUE CONSTRUCTION TO BE PUT ON THE SAID DECISION IS THAT IT LIMITS ITSELF TO RECORDING THAT THERE HAS BEEN A FAILURE AS TO FORM, WITHOUT REOPENING THE QUESTIONS OF SUBSTANCE DEALT WITH BY THE DECISIONS OF FEBRUARY 1958 .
THE APPLICANT CLAIMS THAT SUCH AN INTERPRETATION NEGATES THE PURPOSE OF PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION, AND FOR WHICH ARTICLE 88 MAKES PROVISION, BUT THIS IS AN ARGUMENT WHICH CANNOT BE ACCEPTED .
THE PURPOSE OF THE ACTION WHICH MAY BE BROUGHT UNDER THE SECOND PARAGRAPH OF ARTICLE 88 IS TO SUBJECT THE HIGH AUTHORITY'S FINDING THAT A MEMBER STATE HAS TO FULFIL AN OBLIGATION, AND THE MEASURES CONSEQUENT UPON THAT FINDING, TO REVIEW BY THE COURT .
IT IS OTHERWISE WITH DECISIONS TAKEN BY THE HIGH AUTHORITY IN THE EXERCISE OF ITS POWERS AND IN CASES OTHER THAN THOSE WHERE ARTICLE 88 IS APPLICABLE . AN ACTION UNDER ARTICLE 33 MAY - AS A GENERAL RULE - BE BROUGHT AGAINST SUCH DECISIONS .
THE HIGH AUTHORITY CAN ESTABLISH A FAILURE BY A MEMBER STATE TO FULFIL AN OBLIGATION BOTH IN RELATION TO A PROVISION OF THE TREATY AND TO A DECISION WHICH IT HAS TAKEN .
IT IS THUS NECESSARY TO DISTINGUISH ON THE ONE HAND POSSIBLE PROCEEDINGS UNDER ARTICLE 33 AGAINST A DECISION, OF THE NON-OBSERVANCE OF WHICH THE HIGH AUTHORITY HAS SUBSEQUENTLY COMPLAINED, AND ON THE OTHER HAND PROCEEDINGS BASED IN THE SECOND PARAGRAPH OF ARTICLE 88 AGAINST THE RECORDING OF A FAILURE TO FULFIL AN OBLIGATION IN RELATION TO THAT DECISION .
IN FACT THE OBJECT OF THE TWO ACTIONS IS QUITE DIFFERENT . THE OBJECT OF THE FIRST IS TO ESTABLISH THE ILLEGALITY OF A DECISION TAKEN OUTSIDE THE SCOPE OF ARTICLE 88, WHEREAS THE OBJECT OF THE SECOND ACTION CAN ONLY BE :
( A ) TO OBTAIN THE ANNULMENT OF THE RECORDING OF THE FAILURE TO FULFIL THE OBLIGATION BY ADDUCING EVIDENCE TO THE EFFECT THAT THE MEMBER STATE CONCERNED HAS FULFILLED ITS OBLIGATIONS UNDER THE DECISION WHICH IT IS ACCUSED OF FAILING TO OBSERVE . THIS PRECLUDES THE POSSIBILITY OF CHALLENGING, AT THE SAME TIME, THE LEGALITY OF SUCH A DECISION;
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( B ) TO OBTAIN THE ANNULMENT OR THE MODIFICATION OF MEASURES CONSEQUENT UPON THE RECORDING OF THE FAILURE TO FULFIL AN OBLIGATION .
IT IS APPROPRIATE TO NOTE THAT IF THE APPLICANT'S INTERPRETATION WERE TO BE ADOPTED, IT WOULD FOLLOW THAT MEMBER STATES COULD IGNORE DECISIONS TAKEN AGAINST THEM BY THE HIGH AUTHORITY AND WAIT UNTIL PROCEEDINGS UNDER ARTICLE 88 WERE INITIATED AGAINST THEM, AND THEN IN THEIR TURN BRING PROCEEDINGS AGAINST THE SAID DECISIONS EVERY TIME IT APPEARED TO THEM EXPEDIENT TO DO SO .
MOREOVER, WHILE ARTICLE 88 DOES NOT PERMIT DISPUTES CONCERNING PREVIOUS DECISIONS, AS IS STATED ABOVE, NEVERTHELESS ARTICLE 37 OFFERS MEMBER STATES THE POSSIBILITY OF DISPUTING DECISIONS IN THE SPECIAL CIRCUMSTANCES MENTIONED THEREIN .
THE APPLICANT BASES ITS INTERPRETATION ON THE JUDGMENT OF THE COURT IN CASE 9/56, BUT IN DOING SO FAILS TO UNDERSTAND THE MEANING AND SCOPE OF IT . THAT JUDGMENT DID NOT INTERPRET THE THIRD PARAGRAPH OF ARTICLE 36 AS MEANING THAT APPLICANTS MAY CONTEST NOT ONLY THE LEGALITY OF GENERAL DECISIONS AND RECOMMENDATIONS, BUT ALSO THE LEGALITY OF DECISIONS AND RECOMMENDATIONS ADDRESSED TO THEM AND WHICH THEY ARE ALLEGED NOT TO HAVE OBSERVED .
MOREOVER, SUCH AN INTERPRETATION WOULD BE IN MANIFEST CONTRADICTION WITH A FUNDAMENTAL PRINCIPLE OF LAW, CONFIRMED BY THE LAST PARAGRAPH OF ARTICLE 33 . THE LIMITATION PERIOD FOR BRINGING AN ACTION FULFILS A GENERALLY RECOGNIZED NEED, NAMELY THE NEED TO PREVENT THE LEGALITY OF ADMINISTRATIVE DECISIONS FROM BEING CALLED IN QUESTION INDEFINITELY, AND THIS MEANS THAT THERE IS A PROHIBITION ON REOPENING A QUESTION AFTER THE LIMITATION PERIOD HAS EXPIRED .
SINCE EVEN ARTICLE 36 DOES NOT PERMIT THE LEGALITY OF AN INDIVIDUAL DECISION OF THE HIGH AUTHORITY TO BE DISCUSSED AFRESH AFTER THE LIMITATION PERIOD HAS EXPIRED, THERE IS STILL LESS REASON TO ACCEPT THE PROPOSITION THAT IT IS PERMITTED BY ARTICLE 88 IN THE ABSENCE OF ANY PROVISION ON THE SUBJECT .
IN THE PRESENT CASE THE COURT HAS NO JURISDICTION TO EXAMINE THE COMPLAINTS PUT FORWARD BY THE APPLICANT AGAINST THE DECISIONS OF 12 FEBRUARY 1958, SINCE PROCEEDINGS MAY BE INITIATED AGAINST THOSE DECISIONS UNDER ARTICLE 33, AND SINCE, MOREOVER, AS THE PARTIES ACCEPT, THE APPLICANT HAS INITIATED SUCH PROCEEDINGS WITHIN DUE TIME .
5 . FINALLY, THE APPLICANT ALLEGES THAT THE PERIOD SET BY THE CONTESTED DECISION IS SHORTER THAN THE PERIOD WITHIN WHICH PROCEEDINGS MUST BE INITIATED UNDER ARTICLE 88 .
THIS SUBMISSION IS UNFOUNDED . IT DOES NOT APPEAR FROM THE WORDING OF ARTICLE 88 THAT THE PERIOD SET FOR FULFILLING AN OBLIGATION MUST BE AT LEAST AS LONG AS THE PERIOD WITHIN WHICH PROCEEDINGS MUST BE INITIATED . SUCH A REQUIREMENT COULD NOT BE IN THE INTEREST OF THE MEMBER STATES, FOR IT CLEARLY APPEARS FROM THE THIRD PARAGRAPH OF ARTICLE 88 THAT, EVEN SUPPOSING THAT THE HIGH AUTHORITY WERE TO TAKE THE MEASURES SET OUT AT ( A ) AND ( B ) OF THE SAID THIRD PARAGRAPH PRIOR TO THE EXPIRY OF THE PERIOD WITHIN WHICH PROCEEDINGS MUST BE INITIATED, SUCH ACTION WOULD BE RENDERED NUGATORY BY A SUBSEQUENT ACTION BROUGHT WITHIN THE PRESCRIBED PERIOD .
THEREFORE THE APPLICATION AGAINST THE DECISION OF 1 DECEMBER 1958 MUST BE DISMISSED .
Decision on costs
THE APPLICANT HAS FAILED IN ITS SUBMISSIONS AND MUST, THEREFORE, BEAR THE COSTS IN THEIR ENTIRETY .
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, 33, 36, 37, 39, 70, 86 AND 88 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, AND TO ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS ANNEXED TO THE SAID TREATY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY, AND TO THE RULES OF THE COURT CONCERNING COSTS;
HAVING REGARD TO THE DECISION OF THE HIGH AUTHORITY OF 1 DECEMBER 1958, REFERENCE N . 35172,
Operative part
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION;
2 . ORDERS THE APPLICANT TO BEAR THE COSTS .