61958CJ0024_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES 24/58 AND 34/58
1 . CHAMBRE SYNDICALE DE LA SIDERURGIE DE L'EST DE LA FRANCE,
2 . CHAMBRE SYNDICALE DE LA SIDERURGIE DE MOSELLE,
3 . SOCIETE ANONYME LORRAINE ESCAUT,
4 . SOCIETE ANONYME FORGES ET ACIERIES DE NORD ET LORRAINE,
5 . SOCIETE ANONYME UNION SIDERURGIQUE LORRAINE ( SIDELOR ),
6 . SOCIETE ANONYME SOCIETE LORRAINE DE LAMINAGE CONTINU ( SOLLAC ),
7 . SOCIETE ANONYME UNION DE CONSOMMATEURS DE PRODUITS METALLURGIQUES ET INDUSTRIELS ( UCPMI ),
8 . SOCIETE DE WENDEL AND CIE ., SA,
ALL OF WHICH HAVE AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF LA CHAMBRE SYNDICALE DE LA SIDERURGIE FRANCAISE, 49 BOULEVARD JOSEPH-I, APPLICANTS,
REPRESENTED AND ASSISTED BY ANDRE GARNAULT, ADVOCATE AT THE COUR D'APPEL, PARIS,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
REPRESENTED BY ITS LEGAL ADVISER, RAYMOND BAEYENS, ACTING AS AGENT, AND ASSISTED BY GEORGES VAN HECKE, PROFESSOR AT THE UNIVERSITY OF LOUVAIN, ADVOCATE AT THE COUR D'APPEL, BRUSSELS,
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY OF 9 FEBRUARY 1958, NOTIFIED BY LETTER OF 12 FEBRUARY 1958 TO THE FEDERAL GERMAN GOVERNMENT RELATING TO RATES AND CONDITIONS APPLICABLE TO THE CARRIAGE BY RAIL OF MINERAL FUELS FOR THE IRON AND STEEL INDUSTRY AND PUBLISHED IN THE JOURNAL OFFICIEL OF THE ECSC OF 3 MARCH 1958,
AND 34/58 BROUGHT BY THE SAME APPLICANTS AS THOSE IN CASE 24/58, APPLICANTS,
REPRESENTED AND ASSISTED AS ABOVE,
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, DEFENDANT,
REPRESENTED AND ASSISTED AS ABOVE,
Subject of the case
APPLICATION FOR FAILURE TO ACT ASKING FOR THE ANNULMENT OF THE LETTER OF 7 JUNE 1958 OF THE HIGH AUTHORITY SENT TO THE APPLICANTS,
INTERVENER :
GOVERNMENT OF THE FRENCH REPUBLIC, REPRESENTED BY PAUL REUTER, PROFESSOR AT THE UNIVERSITY OF PARIS, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE FRENCH EMBASSY, 19-21 RUE NOTRE-DAME,
Grounds
P . 292
THE ORDER OF 30 JANUARY 1959 THAT CASES 24/58 AND 34/58 SHALL BE DEALT WITH JOINTLY DOES NOT PRECLUDE SEPARATE CONSIDERATION OF THEM IN THIS JUDGMENT .
CASE 24/58
ADMISSIBILITY
THE DEFENDANT SUBMITS THAT THE FIRST AND THIRD COMPLAINTS OF THE APPLICATION ARE INADMISSIBLE AS THE APPLICANTS HAVE NO LEGAL INTEREST IN THEM .
IT IS IN THE INTERESTS OF ALL UNDERTAKINGS IN THE COMMUNITY TO BRING TO AN END AS EXPEDITIOUSLY AS POSSIBLE SPECIAL INTERNAL RATES AND CONDITIONS WHICH ARE DISCRIMINATORY, BUT THE APPLICANTS HAVE NOT SHOWN THAT THEIR INDIVIDUAL SITUATION DIFFERS FROM THAT OF THE MAJORITY OF IRON AND STEEL UNDERTAKINGS OF THE COMMUNITY .
THE APPLICANTS AND THE GERMAN UNDERTAKINGS BENEFITING FROM THE CONTESTED TARIFF RATES ARE IN COMPETITION WITH EACH OTHER, SINCE THEY CARRY ON THE SAME PRODUCTIVE
ACTIVITY IN THE COMMON MARKET, SELL THE SAME PRODUCTS AND OBTAIN THEIR SUPPLIES OF MINERAL FUELS FROM THE SAME MINES .
CONSEQUENTLY, THE CONTESTED DECISION, WHICH PERMITS THE RETENTION OF REDUCED TARIFF RATES WHICH MIGHT AFFECT THIS COMPETITION IS OF CONCERN TO THE APPLICANT UNDERTAKINGS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY .
THEREFORE THE FIRST AND THIRD COMPLAINTS OF THE APPLICATION ARE ADMISSIBLE .
ON THE SUBSTANCE OF THE CASE
THE SUBMISSION THAT TARIFFS AT 6 B 30 ( II ) AND AT 6 B 33 ( I ) ARE ILLEGAL
1 . THE APPLICANTS MAINTAIN THAT TARIFF AT 6 B 30 ( II ) IS NOT JUSTIFIED BY COMPETITION FROM ANOTHER MODE OF TRANSPORT . TARIFF AT 6 B 33 ( I ) IS NOT ALIGNED ON THE COMPETING RATES FOR THE CARRIAGE BY INLAND WATERWAY OF EITHER COAL OR COKE .
P . 293
ON THE BASIS OF THE FINDINGS OF THE EXPERT'S REPORT WHICH IT ADOPTS AND ACCEPTS AS ITS OWN, THE COURT FINDS THAT THE INLAND WATERWAYS ARE IN GENUINE COMPETITION WITH THE RAILWAY FOR CONSIGNMENTS TO THE OSNABRUECK FACTORY AND OFFER POTENTIAL COMPETITION FOR CONSIGNMENTS TO THE GEORGSMARIENHUETTE FACTORY .
SINCE THE TWO TARIFFS ARE THUS JUSTIFIED IN GENERAL ON THE GROUND OF COMPETITION, IT IS SUFFICIENT IN THIS CASE TO ASCERTAIN WHETHER THE PARITY OF THE RATES BETWEEN THE TWO COMPETING MODES OF TRANSPORT HAS BEEN CORRECTLY CALCULATED, THAT IS TO SAY, WHETHER THE RATES UPON WHICH THE DISPUTED TARIFFS ARE BASED ARE CORRECTLY ALIGNED ON THE COMPETING INLAND WATERWAY RATES .
AS THE EXPERT HAS CONVINCINGLY SHOWN THIS ALIGNMENT CAN ONLY BE CONSIDERED TO BE CORRECT IF THE RAILWAY RATE EXCEEDS THE INLAND WATERWAYS RATE BY DM 0.60 TO DM 0.70 PER METRIC TON AND PROVIDED THAT THE RATE FOR CARRYING COKE BY INLAND WATERWAYS IS INCREASED BY AN EXTRA CHARGE OF DM 0.80 TO DM 1.00 PER METRIC TON COMPARED WITH THE RATE FOR CARRYING COAL BY THE SAME MEANS .
IT EMERGES FROM THE EXPERT'S REPORT THAT, SO FAR AS THIS TRAFFIC FROM THE KOENIGSBORN MINES TO THE OSNABRUECK FACTORY IS CONCERNED, TARIFF AT 6 B 30 ( II ) IS IN NO WAY ALIGNED ON THE INLAND WATERWAYS RATE .
FURTHER, SO FAR AS TRAFFIC FROM THE MINES OF WESTPHALIA AND KOENIGSBORN IS CONCERNED, TARIFF AT 6 B 30 ( II ) IS NOT IS NOT CORRECTLY ALIGNED ON THE INLAND WATERWAYS RATE FOR COAL .
EVEN IF CERTAIN CORRECTIONS ARE TAKEN INTO ACCOUNT, NAMELY THAT UNLOADING CHARGES SHOULD IN THE CASE OF THE RAILWAYS BE PUT AT A HIGHER FIGURE THAN THE ONE CALCULATED BY THE EXPERT, THE COURT FINDS THAT THE TARIFF IN QUESTION, IN THE CASE OF TRAFFIC STARTING FROM THE MINES OF WESTPHALIA, IS BASED ON A RATE WHICH IS LOWER THAN THE INLAND WATERWAYS RATE, OR IN THE CASE OF TRAFFIC STARTING FROM THE KOENIGSBORN MINES, ON A RATE WHICH EXCEEDS THE INLAND WATERWAYS RATE BY SUCH A SMALL AMOUNT THAT IT CANNOT BE REGARDED AS A TARIFF WHICH IS CORRECTLY ALIGNED AND COMPETITIVE .
ON THE OTHER HAND THIS TARIFF IS CORRECTLY ALIGNED ON THE INLAND WATERWAYS RATE SO FAR AS TRAFFIC FROM THE VIKTOR-ICKERN MINES IS CONCERNED ..
THE DEFENDANT SUBMITS THAT THE DETERMINATION OF THE LEGALITY OF THE TARIFFS IN QUESTION MUST BE BASED ON THE RATE APPLICABLE TO TRAFFIC FROM THE VIKTOR-ICKERN MINES, BECAUSE, TAKING INTO ACCOUNT TARGETS THE QUALITY OF THE COAL FROM AND THE PRODUCTION TARGETS FIXED BY THE MINES, THE GEORGSMARIENHUETTE FACTORY WOULD HAVE NO DIFFICULTY IN OBTAINING ITS SUPPLIES FROM ITS OWN MINES AT VIKTOR-ICKERN RATHER THAN FROM THOSE IN WESTPHALIA AND KOENIGSBORN .
THE POSSIBILITY OF SUPPLYING THIS FACTORY FROM THE VIKTOR-ICKERN MINES CANNOT JUSTIFY RETENTION OF TARIFF AT 6 B 30 ( II ) FROM CONSIGNMENTS FROM THE MINES OF WESTPHALIA AND KOENIGSBORN, SINCE, IN THE CASE OF THESE CONSIGNMENTS, IT IS NOT CORRECTLY ALIGNED ON THE COMPETING INLAND WATERWAYS RATES .
THE ABOVEMENTIONED FINDINGS APPLY A FORTIORI TO THE CARRIAGE OF COKE, SINCE THE RAILWAY RATE HAS IN THIS CASE TO TAKE ACCOUNT OF THE SURCHARGE BY WHICH THE INLAND WATERWAYS RATE FOR THE CARRIAGE OF COKE HAS TO BE INCREASED COMPARED WITH THE CARRIAGE OF COAL BY THE SAME ROUTE .
P . 294
CONSEQUENTLY, IN SO FAR AS TARIFF AT 6 B 30 ( II ) IS A SPECIAL INTERNAL RATE AND CONDITION APPLIED TO CONSIGNMENTS FROM THE MINES OF KOENIGSBORN AND WESTPHALIA IT CONSISTS PARTIAL OF AN AID OR A SUBSIDY AND FOR THIS REASON DOES NOT COMPLY WITH THE PRINCIPLES OF THE TREATY AS LAID DOWN IN THE FOURTH PARAGRAPH OF ARTICLE 70 TO THE EXTENT TO WHICH IT IS NOT CORRECTLY ALIGNED .
2 . ON THE OTHER HAND, ACCORDING TO THE FINDINGS OF THE EXPERT'S REPORT WHICH THE COURT ADOPTS, TARIFF AT 6 B 33 ( I ), WHICH IS APPLIED TO THE CARRIAGE OF COAL, IS CORRECTLY ALIGNED ON THE COMPETING INLAND WATERWAYS RATE .
CONSEQUENTLY, THIS TARIFF FULFILLS THE CONDITIONS PECULIAR TO TARIFFS FIXED TO MEET COMPETITION IN THAT IT ENABLES THE CARRIER TO MAINTAIN HIS OWN TARIFF WHEN FACED WITH COMPETITION FROM ANOTHER MODE OF TRANSPORTATION .
THEREFORE THIS TARIFF IS A SPECIAL INTERNAL RATE AND CONDITION WHICH COMPLIES WITH THE PRINCIPLES OF THE TREATY AND FOR THIS REASON CANNOT BE PROHIBITED .
NEVERTHELESS, TAKING INTO ACCOUNT THE SURCHARGE OF DM 0.80 TO DM 1.00 PER METRIC TON WHICH HAS TO BE ADDED TO THE INLAND WATERWAYS RATE FOR COAL, AS HAS BEEN MENTIONED ABOVE, SO THAT THIS RATE MAY BE TAKEN AS THE BASIS OF CALCULATING THE RAILWAY RATE FOR COKE, THE COURT FINDS THAT TARIFF AT 6 B 33 ( I ) IS NOT CORRECTLY ALIGNED ON THE INLAND WATERWAYS RATE FOR COKE, SINCE IT IS LOWER .
FOR THIS REASON, ALTHOUGH THE SCHEDULED CHARGE IN QUESTION IS CORRECTLY ALIGNED AS FAR AS THE CARRIAGE OF COAL IS CONCERNED, PART OF IT CONSISTS, ON THE OTHER HAND, OF AN AID OR SUBSIDY SO FAR AS THE CARRIAGE OF COKE IS CONCERNED .
THEREFORE IN SO FAR AS TARIFF AT 6 B 33 ( I ) IS A SPECIAL INTERNAL RATE AND CONDITION APPLICABLE TO THE CARRIAGE OF COKE, IT CANNOT BE REGARDED AS COMPLYING WITH THE PRINCIPLES OF THE TREATY AS LAID DOWN BY THE FOURTH PARAGRAPH OF ARTICLE 70 TO THE EXTENT TO WHICH IT IS NOT CORRECTLY ALIGNED .
3 . FOR ALL THESE REASONS THE FIRST COMPLAINT OF THE APPLICATION IS WELL FOUNDED IN SO FAR AS IT IS DIRECTED AGAINST THAT PART OF THE CONTESTED DECISION WHICH ACKNOWLEDGES THAT
( A ) TARIFF AT 6 B 30 ( II ) APPLIED TO THE CARRIAGE OF COAL AND COKE COMING FROM THE MINES OF KOENIGSBORN TO THE OSNABRUECK FACTORY AND FROM THE MINES OF KOENIGSBORN AND WESTPHALIA TO THE GEORGSMARIENHUETTE, AND
( B ) TARIFF AT 6 B 33 ( I ) APPLIED TO THE CARRIAGE OF COKE
COMPLY WITH THE PRINCIPLES OF THE TREATY .
THE SUBMISSION THAT THE FIFTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS AND ARTICLE 3 ( B ), ARTICLE 4 ( B ) AND ( C ) AND THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 70 OF THE TREATY HAVE BEEN INFRINGED
THE APPLICANTS SUBMIT IN THE FIRST PLACE THAT THE HIGH AUTHORITY WAS WRONG TO ACKNOWLEDGE SPECIAL TARIFFS AT 6 B 30 TO AT 6 B 33 AS BEING SPECIAL INTERNAL RATES AND CONDITIONS AND THEREFORE BELIEVED THAT IT HAD TO COMPARE THEM WITH THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION .
P . 295
TARIFF AT 6 B 1, COMPARED WITH WHICH THE DISPUTED TARIFFS HAVE BEEN REGARDED AS SPECIAL INTERNAL RATES AND CONDITIONS, IS NEVER APPLIED TO THE CARRIAGE OF MINERAL FUELS IN BULK TO THE GERMAN IRON AND STEEL INDUSTRY WHICH IS IN A SITUATION SIMILAR TO THAT OF THE APPLICANT UNDERTAKINGS .
THEREFORE THE TARIFFS AT ISSUE, FAR FROM BEING RATES AND CONDITIONS APPLICABLE TO CERTAIN TRANSPORT LINKS IN WHICH THE GERMAN IRON AND STEEL INDUSTRY IS INTERESTED, CONSTITUTE, AS A WHOLE, TARIFF ARRANGEMENTS WHICH APPLY TO THE ENTIRE CARRIAGE OF MINERAL FUELS IN BULK TO THAT PART OF THE GERMAN IRON AND STEEL INDUSTRY WHICH IS IN A SIMILAR SITUATION TO THAT OF THE APPLIANT UNDERTAKINGS .
THE APPLICANTS ALSO ARGUE THAT THE ECSC THROUGH INTERNATIONAL TARIFF APPLIES TO THEM AND THAT, SINCE IT IS CALCULATED ON THE BASIS OF TARIFF AT 6 B ( I ), IT INCLUDES RATES WHICH ARE HIGHER THAN THOSE OF SPECIAL TARIFFS AT 6 B 30 TO AT 6 B 33 .
IN SUCH CIRCUMSTANCES GERMAN IRON AND STEEL UNDERTAKINGS WOULD ENJOY THE BENEFIT OF TARIFF ARRANGEMENTS AT REDUCED RATES COMPARED WITH THOSE APPLICANT UNDERTAKINGS WHICH ARE IN A SIMILAR SITUATION; IN THIS WAY RATES AND CONDITIONS WOULD BE OFFERED TO USERS IN A SIMILAR SITUATION WHICH WERE SO DIFFERENT THAT THEY COULD NOT GUARANTEE FOR THE APPLICANTS EQUAL ACCESS TO SOURCES OF PRODUCTION .
CONSEQUENTLY THE HIGH AUTHORITY, INSTEAD OF CONSIDERING IN ACCORDANCE WITH THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION WHETHER TARIFFS AT 6 B 30 TO AT 6 B 33 COMPLY WITH THE PRINCIPLES OF THE TREATY SHOULD HAVE FOUND THAT THE SAID TARIFFS AS A WHOLE ESTABLISH, TO THE DETRIMENT OF THE APPLICANTS, DISCRIMINATION BASED ON A CRITERION OF NATIONALITY .
THEREFORE IN SO FAR AS THE CONTESTED DECISION KEEPS IN FORCE SOME OF THE RATES AND CONDITIONS OF THESE TARIFFS ARRANGEMENTS IT INFRINGES THE FIFTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION AND ARTICLES 3 ( B ), 4 ( B ) AND ( C ) AND THE FIRST AND SECOND PARAGRAPHS OF THE TREATY .
THIS ARGUMENT IS BASED ON A FALSE APPRAISAL OF THE FACTS AND FAILS TO APPRECIATE THE LIMITS IMPOSED UPON THE POWERS WHICH THE HIGH AUTHORITY CAN EXERCISE IN TRANSPORT MATTERS .
WHEN THE COURT CONSIDERED FIRST OF ALL WHETHER TARIFF AT 6 B 1 IS IN FACT AN INTERNAL TARIFF OF GENERAL APPLICATION, IT ADOPTED, FOR THE PURPOSE OF DETERMINING THE LIMITS OF THIS CONCEPT, THE DEFINITION IN ARTICLE 1 OF THE AGREEMENT OF 21 MARCH 1955 ENTERED INTO BY THE MEMBER STATES OF THE COMMUNITY, WHICH TREATS INTERNAL TARIFFS APPLICABLE EQUALLY TO ALL USERS OF A PARTICULAR CATEGORY IN ONE OF THE TERRITORIES REFERRED TO IN THE FIRST PARAGRAPH OF THE TREATY AS INTERNAL TARIFFS OF GENERAL APPLICATION .
TARIFF AT 6 B 1 APPLIES TO THE CARRIAGE OF MINERAL FUELS FOR THE IRON AND STEEL INDUSTRY TO ALL STATIONS AND FRONTIER-CROSSING POINTS .
THIS TARIFF IS IN FACT APPLIED TO TRANSPORT, TO WHICH SPECIAL TARIFF AT 6 B 30 ( I ) WAS APPLIED BEFORE THE CONTESTED DECISION ENTERED INTO FORCE THE CONTESTED DECISION ENTERED INTO FORCE .
P . 296
IN THE CASES OF TRANSPORT COVERED BY SPECIAL TARIFFS WHICH WERE FOUND TO COMPLY WITH THE PRINCIPLES OF THE TREATY THE APPLICATION OF SPECIAL TARIFF AT 6 B 1 IS RULED OUT EITHER BY THE COMPETITION OFFERED TO THE RAILWAYS BY THE WATERWAYS OR BY THE EXISTENCE OF SPECIAL DIFFICULTIES WHICH DO NOT ORIGINATE IN ECONOMICS AND TO WHICH THE UNDERTAKINGS BENEFITING FROM THESE SPECIAL TARIFFS ARE EXPOSED; IF THIS COMPETITION OR THESE DIFFICULTIES CEASED TO EXIST, TARIFF AT 6 B 1 WOULD APPLY TO THE USERS, WHO ACTUALLY ENJOY THE BENEFIT OF REDUCED SPECIAL TARIFFS .
THERE IS NO DOUBT THAT TARIFF AT 6 B 1 IS AN INTERNAL TARIFF OF " GENERAL APPLICATION " WITHIN THE MEANING OF ARTICLE 1 OF THE AFOREMENTIONED AGREEMENT OF 21 MARCH .
THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY USED THIS PARTICULAR TARIFF AS THE BASIS FOR THE CALCULATION OF THE ECSC INTERNATIONAL TARIFF APPLIABLE TO THE CARRIAGE OF MINERAL FUELS IN BULK TO THE APPLICANT UNDERTAKINGS; THIS CIRCUMSTANCE HAS NEVER BEEN CHALLENGED IN THE MANNER PRESCRIBED BY ARTICLE 16 OF THE SAID AGREEMENT .
EVEN THOUGH BEFORE 1958 TARIFFS AT 6 B 30 TO AT 6 B 33 AS A WHOLE COVERED A LARGE PART OF THE LONG-DISTANCE INTERNAL CARRIAGE OF COAL IN THE FEDERAL REPUBLIC THE POSITION HAS, HOWEVER, CHANGED SINCE THE ENTRY INTO FORCE OF THE DECISION OF THE HIGH AUTHORITY OF 9 FEBRUARY 1958 WHICH ABOLISHED A LARGE NUMBER OF THESE SPECIAL TARIFFS; THE APPEAL OF THE GERMAN GOVERNMENT AGAINST THIS DECISION AND THE APPLICATIONS FOR ANNULMENT BROUGHT BY A LARGE NUMBER OF GERMAN UNDERTAKINGS WERE DISMISSED BY THE JUDGMENTS OF THE COURT OF 10 MAY 1960 ( CASES 19/58, 3 TO 18, 25 AND 26/58 ). CONSEQUENTLY, FOR ALL THESE REASONS TARIFF AT 6 B 1 IS BOTH IN FORM AND IN SUBSTANCE AN INTERNAL TARIFF OF GENERAL APPLICATION .
THIS FINDING IS ALSO CONFIRMED BY THE FACT THAT TARIFF AT 6 B 1 HAS ALSO BEEN APPLIED TO TRANSPORT
TO THE SAAR EVER SINCE IT BECAME PART OF THE TERRITORY OF THE FEDERAL REPUBLIC .
UNDER THE FOURTH PARAGRAPH OF ARTICLE 70 OF THE TREATY AND THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION THE HIGH AUTHORITY HAS TO AUTHORIZE THE RETENTION OF SPECIAL INTERNAL RATES AND CONDITIONS WHICH COMPLY WITH THE PROVISIONS OF THE TREATY .
IT IS COMMON GROUND THAT TARIFFS AT 6 B 30 TO AT 6 B 33, CONSIDERED SEPARATELY, ARE SPECIAL INTERNAL RATES AND CONDITIONS .
ACCORDINGLY, THE HIGH AUTHORITY EXAMINED THESE SPECIAL TARIFFS SEPARATELY AND, AFTER DOING SO, DECIDED UPON THE TOTAL OR PARTIAL ABOLITION OF SOME OF THESE TARIFFS, AS HAS BEEN STATED ABOVE . AS INDICATED EARLIER SOME OF THE RATES AND CONDITIONS WHICH HAVE BEEN HELD TO BE LAWFUL BY THE HIGH AUTHORITY COMPLY WITH THE PRINCIPLES OF THE TREATY; IF THESE RATES AND CONDITIONS, CONSIDERED SEPARATELY, ARE LAWFUL, THEIR APPLICATION COMPLIES WITH THE TREATY SO THAT THEY CANNOT AMOUNT TO PROHIBITED DISCRIMINATION WITHIN THE MEANING OF ARTICLE 4 OF THE TREATY; WHAT IS TRUE OF THE TARIFFS CONSIDERED SEPARATELY MUST ALSO HOLD GOOD FOR THE DISPUTED TARIFF ARRANGEMENT AS A WHOLE .
FURTHER, TARIFF AT 6 B 1 IS IN FACT OF GENERAL APPLICATION; IT IS THEREFORE CORRECT TO DEFINE THE DISPUTED TARIFFS WHEN THEY ARE COMPARED WITH TARIFF AT 6 B 1 AS " SPECIAL INTERNAL RATES AND CONDITIONS " ; THE DISPUTED TARIFFS DO NOT INCLUDE ANY REDUCTION OF RATES WHICH WOULD BE DISCRIMINATORY COMPARED WITH THE RATES OF THE THROUGH INTERNATIONAL ECSC TARIFF WHICH APPLIES TO THE APPLICANTS, SINCE THIS LATTER TARIFF IS CORRECTLY CALCULATED ON THE BASIS OF AN INTERNAL TARIFF WHICH IS IN FACT OF GENERAL APPLICATION .
P . 297
IT IS TRUE THAT THE EFFECTS OF THE INTERVENTION OF THE HIGH AUTHORITY, TAKING INTO ACCOUNT WHAT HAS BEEN STATED ABOVE IN CONNEXION WITH THE FIRST COMPLAINT, DO NOT CORRESPOND TO THE WISHES, WHICH ARE MOREOVER UNDERSTANDABLE, OF THE APPLICANTS BUT IT MUST BE NOTED THAT THESE EFFECTS ARE CAUSED, ON THE ONE HAND, BY THE FACT THAT THE TREATY ESTABLISHING A COMMUNITY RESTRICTED TO COAL AND STEEL ONLY COVERED TRANSPORT INDIRECTLY AND TO A LIMITED EXTENT AND, ON THE OTHER HAND, BY THE FACT THAT THE NETWORK OF WATERWAYS COMPETING WITH THE RAILWAYS WAS IN THE PAST DEVELOPED MUCH MORE WITHIN THE VARIOUS COUNTRIES THAN FOR TRAFFIC WITH COUNTRIES ABROAD .
FOR THESE REASONS THIS COMPLAINT IS UNFOUNDED .
THE SUBMISSION THAT THE TIME ALLOWED FOR THE MODIFICATION OF TARIFFS AT 6 B 30 ( I ) AND AT 6 B 31 AND ARTICLE 71 ( B ) OF THE SCALE OF INLAND WATERWAY CHARGES ON THE MITTELLANDKANAL ARE ILLEGAL
1 . THE APPLICANTS SUBMIT IN THE FIRST PLACE THAT WHEN THE HIGH AUTHORITY GRANTED TIME-LIMITS EXCEEDING THE TRANSITIONAL PERIOD FOR THE MODIFICATION OF TARIFFS AT 6 B 30 ( I ) AND AT 6 B 31 AND ALSO OF ARTICLE 71 ( B ) OF THE SCALE OF INLAND WATERWAY CHARGES ON THE MITTELLANDKANAL IT INFRINGED THE SECOND PARAGRAPH OF ARTICLE 70 OF THE TREATY AND THE FIFTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS UNDER WHICH MEASURES TO ELIMINATE DISCRIMINATORY PRACTICES CONTRAVENING THE AFOREMENTIONED SECOND PARAGRAPH OF ARTICLE 70 MUST ENTER INTO FORCE ON THE DATE OF THE ESTABLISHMENT OF THE COMMON MARKET IN COAL AT THE LATEST .
EVEN IF THE QUESTION WHETHER ANY NATIONAL DISCRIMINATION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 70 MAY BE DETERMINED BY COMPARING INTERNAL TARIFFS AND TARIFFS APPLIED BETWEEN MEMBER STATES IS DISREGARDED, IT IS COMMON GROUND THAT THE TARIFFS AT ISSUE ARE NOT " BASED ON THE COUNTRY OF ORIGIN OR DESTINATION OF THE PRODUCTS " BUT WERE INTRODUCED OR RETAINED FOR REASONS BASED, ALTHOUGH WRONGLY, ON THE SPECIAL SITUATION OF THOSE UNDERTAKINGS WHICH BENEFITED FROM THEM .
THEREFORE THE TARIFFS AT ISSUE DO NOT COME WITHIN THE SECOND BUT THE FOURTH PARAGRAPH OF THE SAID ARTICLE AND ALSO WITHIN THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION .
2 . THE APPLICANTS ALSO SUBMIT THAT THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION DOES NOT DEROGATE FROM THE RULES LAID DOWN IN THE SECOND PART OF THE FIFTH PARAGRAPH OF ARTICLE 1 OF THE CONVENTION WHICH READS " SAVE WHERE THIS CONVENTION EXPRESSLY PROVIDES OTHERWISE, THESE DEROGATIONS AND SUPPLEMENTARY PROVISIONS SHALL CEASE TO APPLY, AND MEASURES TAKEN TO IMPLEMENT THEM SHALL CEASE TO HAVE EFFECT, AT THE END OF THE TRANSITIONAL PERIOD ".
P . 298
THEREFORE THE TIME ALLOWED BY THE HIGH AUTHORITY FOR THE MODIFICATION OF THE TARIFFS AT ISSUE SHOULD NOT HAVE EXCEEDED THE TRANSITIONAL PERIOD AND SHOULD HAVE ENDED AT THE EXPIRATION OF THAT PERIOD .
THIS ARGUMENT MUST BE REJECTED .
THE TWO PREROGATIVES OF THE HIGH AUTHORITY IN THIS CONNEXION MUST BE DISTINGUISHED . ON THE ONE HAND, IT IS UNDER A DUTY, FOR THE PURPOSE OF PERMITTING SPECIAL INTERNAL RATES AND CONDITIONS TO BE MODIFIED, TO ALLOW SUCH TIME AS MAY BE NECESSARY TO AVOID ANY SERIOUS ECONOMIC DISTURBANCE AND, ON THE OTHER HAND, IT HAS THE RIGHT TO FIX THE DURATION OF THE TIME ALLOWED .
ALTHOUGH THIS DUTY MUST BE CARRIED OUT SUBJECT TO A STRICT TIME-LIMIT PRESCRIBED BY THE TREATY, THE DURATION OF THE PERIODS IN QUESTION ALLOWED CANNOT, ON THE OTHER HAND, BE IN GENERAL RESTRICTED TO A FIXED PERIOD SUCH AS THE TRANSITIONAL PERIOD .
IN FACT, SINCE THE SPECIAL INTERNAL RATES AND CONDITIONS MAY EVEN, FOR JUSTIFIABLE REASONS, BE EXAMINED JUST BEFORE THE EXPIRATION OF THE TRANSITIONAL PERIOD, THE HIGH AUTHORITY COULD NOT PERFORM ITS DUTY TO ALLOW THE TIME PROVIDED FOR BY THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION IF THE PERIODS OF TIME GRANTED WERE IN NO CIRCUMSTANCES TO EXCEED THE EXPIRATION OF THE TRANSITIONAL PERIOD .
THERE IS NO DOUBT THAT THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION, AS FAR AS THE DURATION OF THE TIME WHICH THE HIGH AUTHORITY HAS TO ALLOW FOR THE MODIFICATION OF SPECIAL INTERNAL RATES AND CONDITIONS CONTRAVENING THE TREATY IS CONCERNED, IS NOT SUBJECT TO THE RULE LAID DOWN IN THE SECOND PART OF THE FIFTH PARAGRAPH OF ARTICLE 1 OF THE CONVENTION; THEREFORE THE HIGH AUTHORITY IS NOT ONLY ENTITLED BUT FORCED TO GRANT PERIODS OF TIME WHICH EXCEED THE EXPIRATION OF THE TRANSITIONAL PERIOD, IF IT CONSIDERS THIS TO BE NECESSARY IN ORDER TO AVOID ANY SERIOUS ECONOMIC DISTURBANCE .
THE APPLICANTS COULD ONLY CHALLENGE THE LEGALITY OF THE TIME ALLOWED BY THE HIGH AUTHORITY BY ARGUING THAT ITS DURATION IS NOT IN THIS CASE JUSTIFIED BY THE NEED TO AVOID SUCH SERIOUS ECONOMIC DISTURBANCES .
HOWEVER THE APPLICANTS DID NOT ADVANCE THIS ARGUMENT .
THEREFORE THE SECOND COMPLAINT OF THE APPLICATION IS UNFOUNDED .
UNDER ARTICLE 60 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHEN EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS .
UNDER ARTICLE 4 OF THESE RULES CONCERNING LEGAL COSTS, FEES AND OTHER SUMS PAYABLE TO EXPERTS ARE REGARDED AS RECOVERABLE COSTS .
THE DEFENDANT IN THIS CASE HAS PARTIALLY FAILED ON THE FIRST HEAD OF THE SUBMISSIONS OF THE APPLICATION; THE EXPERT'S REPORT CALLED FOR BY THE ORDER OF THE SECOND CHAMBER OF 26 JUNE 1959 COVERED THE FACTS REFERRED TO UNDER THIS HEAD .
P . 299
IT IS APPROPRIATE TO ORDER THAT THE APPLICANTS AND THE DEFENDANT EACH PAY ONE HALF OF THE COSTS OF THE EXPERT'S REPORT AND THAT, AS FAR AS THE REMAINDER OF THE COSTS ARE CONCERNED, EACH PARTY BEARS ITS OWN COSTS .
CASE 34/58
ADMISSIBILITY
THE APPLICANTS MAINTAIN THAT, IN ORDER TO REMOVE THE DISCRIMINATION BASED ON A CRITERION OF NATIONALITY ARISING OUT OF THE DISPUTED TARIFF ARRANGEMENTS AS A WHOLE, THE HIGH AUTHORITY WAS UNDER A DUTY TO RECOMMEND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY EITHER TO FIX A GENERAL TARIFF FOR THE CARRIAGE OF MINERAL FUELS BY TRAINLOADS OR TO ADOPT FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY TARIFF ARRANGEMENTS FOR THE CARRIAGE OF MINERAL FUELS SIMILAR TO THOSE WHICH APPLY TO GERMAN IRON AND STEEL FACTORIES .
THE ALLEGED DUTY OF THE HIGH AUTHORITY TO SUBMIT THE FIRST OF THESE TWO RECOMMENDATIONS MENTIONED ABOVE TO THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY IS NOT MENTIONED IN THE LETTER OF 26 MARCH 1958 IN WHICH THE APPLICANTS RAISED WITH THE HIGH AUTHORITY THE QUESTION OF ITS FAILURE TO ACT .
UNDER ARTICLE 35 OF THE TREATY PROCEEDINGS AGAINST THE HIGH AUTHORITY FOR FAILURE TO ACT CAN ONLY BE BROUGHT IF THE MATTER HAS BEEN RAISED PREVIOUSLY WITH THE HIGH AUTHORITY AND THE GROUNDS UPON WHICH SUCH PROCEEDINGS ARE BASED CAN ONLY BE THE REFUSAL OF THE HIGH AUTHORITY TO TAKE THE DECISION WHICH IT WAS CALLED UPON TO ADOPT .
SINCE THE HIGH AUTHORITY HAS NOT BEEN FORMALLY REQUIRED TO TAKE SUCH A DECISION IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 35 OF THE TREATY, IT CANNOT BE SAID TO HAVE TAKEN AN IMPLIED DECISION OF REFUSAL ACCORDING TO THE THIRD PARAGRAPH OF THE SAID ARTICLE .
FOR THIS REASON, AS FAR AS THIS POINT IS CONCERNED, THE APPLICATION IS INADMISSIBLE SINCE IT HAS NO PURPOSE .
ON THE SUBSTANCE OF THE CASE
1 . THE APPLICANTS SUBMIT THAT AN EXAMINATION OF SPECIAL TARIFFS AT 6 B 30 TO AT 6 B 33 APPLICABLE TO THE CARRIAGE OF MINERAL FUELS FOR THE GERMAN IRON AND STEEL INDUSTRY WHICH IS IN A SIMILAR SITUATION TO THAT OF THE APPLICANT UNDERTAKINGS MAKES IT QUITE CLEAR THAT THERE ARE TARIFF ARRANGEMENTS WHICH ESTABLISH DISCRIMINATION BASED ON A CRITERION OF NATIONALITY .
THE REFUSAL OF THE HIGH AUTHORITY IN ITS LETTER OF 7 JUNE 1958 TO CONFIRM THE EXISTENCE OF SUCH DISCRIMINATION INFRINGES THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 70 OF THE TREATY .
THIS ARGUMENT IS THE SAME AS THE ONE USED IN SUPPORT OF THE SECOND COMPLAINT OF APPLICATION 24/58 WHICH THE COURT REJECTED WHEN HEARING THAT APPLICATION .
IT IS THEREFORE UNNECESSARY FOR THE COURT TO CONSIDER THIS ARGUMENT AGAIN .
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2 . THE APPLICANTS ALSO SUBMIT THAT THE HIGH AUTHORITY IS UNDER A SPECIFIC DUTY TO RECOMMEND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO ADOPT FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY TARIFF ARRANGEMENTS FOR THE CARRIAGE OF MINERAL FUELS SIMILAR TO THOSE APPLYING TO GERMAN IRON AND STEEL FACTORIES .
THE REFUSAL BY THE HIGH AUTHORITY IN ITS LETTER OF 7 JUNE 1958 TO ACKNOWLEDGE THAT IT IS UNDER SUCH A DUTY CONTRAVENES THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 40 OF THE TREATY .
THEREFORE THIS ARGUMENT IS NOT WELL FOUNDED .
THE HIGH AUTHORITY ONLY HAS POWER UNDER ARTICLE 4 ( B ) AND THE FIRST, SECOND AND THIRD PARAGRAPHS OF ARTICLE 70 OF THE TREATY TO BRING TO AN END TARIFF MEASURES WHICH ENTAIL DISCRIMINATION BASED ON A CRITERION OF NATIONALITY OR WHICH DO NOT COMPLY WITH THE PRINCIPLES OF THE TREATY .
EXCEPT IN THE CASES COVERED BY THIS PROHIBITION THE FIFTH PARAGRAPH OF ARTICLE 70 OF THE TREATY PROVIDES THAT ALL OTHER TRANSPORT MEASURES FALL WITHIN THE JURISDICTION OF THE MEMBER STATE CONCERNED, WITH THE RESULT THAT IN THIS FIELD THE HIGH AUTHORITY CAN MERELY MAKE SUGGESTIONS .
IT IS ONLY POSSIBLE TO IMAGINE THE HIGH AUTHORITY BEING UNDER A DUTY TO RECOMMEND THE ADOPTION FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY OF TARIFF ARRANGEMENTS SIMILAR TO THOSE APPLYING TO GERMAN IRON AND STEEL FACTORIES, IF THE GERMAN AND NON-GERMAN IRON AND STEEL UNDERTAKINGS ARE IN COMPARABLE SITUATIONS .
THE APPLICANTS HAVE NEITHER SUBMITTED NOR PROVED THAT THEY ARE IN SUCH A COMPARABLE SITUATION, BECAUSE THEY HAVE A MODE OF TRANSPORT COMPETING WITH THE RAILWAYS OR BECAUSE THEY ARE EXPOSED TO SPECIAL DIFFICULTIES SIMILAR TO THOSE TO WHICH THE GERMAN UNDERTAKINGS IN QUESTION ARE LAID OPEN .
AS WAS FOUND IN CASE 24/58, THE DISPUTED TARIFF ARRANGEMENTS, EVEN IF THEY ARE CONSIDERED AS A WHOLE, DO NOT INCLUDE ANY DISCRIMINATION BASED ON A CRITERION OF NATIONALITY AND THEREFORE COMPLY WITH THE PRINCIPLES OF THE TREATY .
IN THESE CIRCUMSTANCES THE APPLICATION TO THE APPLICANTS OF THE TARIFF ARRANGEMENTS APPLICABLE TO GERMAN IRON AND STEEL FACTORIES WOULD INFRINGE ARTICLES 4 ( B ) AND 70 OF THE TREATY .
THE APPLICATION IS UNFOUNDED .
Decision on costs
UNDER ARTICLE 60 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS .
IN THIS CASE THE APPLICANTS AND THE INTERVENER HAVE FAILED ON ALL THE HEADS IN THEIR APPLICATIONS .
THE APPLICANTS MUST THEREFORE BEAR THE COSTS OF THE PROCEEDINGS, THE COSTS OF THE INTERVENTION TO BE BORNE BY THE INTERVENER .
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Endorsements
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE-RAPPORTEUR;
UPON HEARING THE PARTIES AND THE INTERVENER;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO ARTICLES 3, 4, 33, 35, 70 AND 80 OF THE TREATY AND ARTICLES 1 AND 10 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 COAL AND STEEL COMMUNITY, ESPECIALLY ARTICLES 35 TO 45, 60 ( 1 ) AND 71,
Operative part
THE COURT
HEREBY :
I - CASE 24/58
( A ) ANNULS THE DISPUTED DECISION TO THE EXTENT TO WHICH IT ACKNOWLEDGES THAT TARIFF AT 6 B 33 ( I ), ONLY IN SO FAR AS IT APPLIES TO THE CARRIAGE OF COKE, AND TARIFF AT 6 B 30 ( II ), IN SO FAR AS IT APPLIES TO THE CARRIAGE OF COAL AND COKE COMING FROM THE MINES OF KOENIGSBORN AND WESTPHALIA, COMPLY WITH THE PRINCIPLES OF THE TREATY .
( B ) THE OTHER CONCLUSIONS IN THE APPLICATION ARE REJECTED AS UNFOUNDED .
THE APPLICANTS AND THE DEFENDANT SHALL EACH BEAR ONE HALF OF THE COSTS OF AND INCIDENTAL TO THE EXPERT'S REPORT .
SO FAR AS THE REMAINDER OF THE COSTS ARE CONCERNED EACH PARTY SHALL BEAR ITS OWN COSTS .
II - CASE 34/58
( A ) DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST THE REFUSAL OF THE HIGH AUTHORITY TO RECOMMEND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO INTRODUCE A TARIFF OF GENERAL APPLICATION TO THE CARRIAGE OF MINERAL FUELS BY TRAINLOADS .
( B ) DISMISSES THE APPLICATION AS UNFOUNDED IN SO FAR AS IT IS DIRECTED AGAINST THE IMPLIED DECISION OF REFUSAL OF THE HIGH AUTHORITY TO RECOMMEND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO ADOPT FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY TARIFF ARRANGEMENTS FOR THE CARRIAGE OF MINERAL FUELS SIMILAR TO THOSE APPLYING TO GERMAN IRON AND STEEL FACTORIES .
THE APPLICANTS ARE ORDERED TO PAY THE COSTS OF THE PROCEEDINGS .
THE COSTS OF THE INTERVENTION SHALL BE BORNE BY THE INTERVENER .