Judgment of the Court of 10 May 1960. - Barbara Erzbergbau AG and others v High Authority of the European Coal and Steel Community. - Joined cases 3-58 to 18-58, 25-58 and 26-58.



European Court reports

French edition Page 00369

Dutch edition Page 00377

German edition Page 00375

Italian edition Page 00359

English special edition Page 00173

Danish special edition Page 00179

Greek special edition Page 00391

Portuguese special edition Page 00397



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . TRANSPORT - PRINCIPLE OF NON-DISCRIMINATION - DIRECT APPLICABILITY

( ECSC TREATY, ARTICLE 70 )

2 . TRANSPORT - PRINCIPLE OF NON-DISCRIMINATION - CONCEPT OF COMPARABILITY

( ECSC TREATY, ARTICLE 70 )

3 . DISCRIMINATION - CONCEPT - EXISTENCE OF DAMAGE NOT PART OF THE CONCEPT - MERE INDICATION

4 . TRANSPORT - SPECIAL INTERNAL RATES AND CONDITIONS - CRITERIA

( ECSC TREATY, ARTICLE 70 )

5 . TRANSPORT - SPECIAL INTERNAL RATES AND CONDITIONS - ADVERSE EFFECT - ABSENCE - AUTHORIZATION NOT JUSTIFIED

( ECSC TREATY, ARTICLES 2, 3, 70 )

6 . TRANSPORT - SPECIAL INTERNAL RATES AND CONDITIONS - EXCEPTIONAL NATURE - CIRCUMSTANCES JUSTIFYING APPROVAL

( ECSC TREATY, ARTICLE 70 )

7 . DECISIONS - STATEMENT OF REASONS

( ECSC TREATY, ARTICLE 15 )

Summary

1 . IT APPEARS DIRECTLY FROM ARTICLE 4 AND FROM THE CONTEXT OF ARTICLE 70 THAT THE FIRST PARAGRAPH OF THE LATTER PROVISION IMPOSES - BOTH ON THE STATES AND ON THE HIGH AUTHORITY - A SUBSTANTIVE AND BINDING RULE REQUIRING THE APPLICATION OF ITS PROVISIONS .

2 . THE CASE OF DISCRIMINATION COVERED BY THE FIRST PARAGRAPH OF ARTICLE 70 REFERS EXCLUSIVELY TO CONDITIONS OF TRANSPORT AND THEREFORE TO THE COMPARABILITY OF DIFFERENT ROUTES AND LOCATIONS FROM THE POINT OF VIEW OF TRANSPORT .

3 . DAMAGE CAUSED BY DISCRIMINATION MAY BE CONSIDERED AS A CONSEQUENCE BY WHICH THAT DISCRIMINATION MAY BE DETECTED . IT IS NOT HOWEVER IMPLIED BY DEFINITION IN THE CONCEPT OF DISCRIMINATION, THE MEANING OF THAT CONCEPT BEING PRIMARILY THAT UNEQUAL CONDITIONS ARE LAID DOWN FOR COMPARABLE CASES .

4 . SPECIAL RATES AND CONDITIONS WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 70 ARE NOT ONLY THOSE ADOPTED IN THE INTEREST OF UNDERTAKINGS, BUT ALSO THOSE WHICH ARE ADVANTAGEOUS TO THEM . THEREFORE EVEN REASONS FOR THE ADOPTION OF SPECIAL RATES AND CONDITIONS WHICH ARE ENTIRELY FOREIGN TO THE INTERESTS OF AN UNDERTAKING DERIVING AN ADVANTAGE CANNOT EXCLUDE OR RESTRICT THE APPLICATION OF THE ABOVEMENTIONED PROVISION .

5 . THE ADVERSE EFFECT ON THE PROFITABILITY OF AN UNDERTAKING OF THE LACK OF SPECIAL RATES AND CONDITIONS DOES NOT RENDER THOSE RATES AND CONDITIONS CONSONANT WITH THE PRINCIPLES OF THE TREATY AND THEREFORE DOES NOT, IN CASES WHERE THE FOURTH PARAGRAPH OF ARTICLE 70 APPLIES, PUT THE HIGH AUTHORITY UNDER AN OBLIGATION BASED ON ARTICLES 2 AND 3 .

6 . A PROTECTIVE RATE IS COMPATIBLE WITH THE TREATY ONLY IN EXCEPTIONAL CASES, NOTABLY WHERE THE UNDERTAKING RECEIVING ASSISTANCE IS EXPERIENCING DISADVANTAGES CREATED BY FACTORS OTHER THAN THOSE OF AN ECONOMIC NATURE; SUCH A RATE IS LEGITIMATE ONLY IN SO FAR AS IT IS NECESSARY IN ORDER TO ENABLE THE UNDERTAKING TO ADAPT ITSELF TO NEW CONDITIONS OR TO SURVIVE AN ACCIDENTAL DISADVANTAGE .

7 . IN GIVING REASONS FOR ITS DECISIONS, THE HIGH AUTHORITY MAY CONFINE ITSELF TO CONSIDERING THE CONCRETE CASES WHICH ARE SUBMITTED TO IT AND TO EXPLAINING ITS INTERPRETATION OF THE TREATY IN A POSITIVE MANNER . IN NO WAY IS IT REQUIRED TO REJECT OR TO CRITICIZE OTHER POSSIBLE INTERPRETATIONS, AND ITS FUNCTIONS DO NOT INCLUDE THE ELABORATION OF GENERAL THEORIES ON THE MATTERS COVERED BY THE TREATY .

Parties

IN JOINED CASES

3/58, BARBARA ERZBERGBAU AG, DUSSELDORF, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF LOWER SAXONY, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

4/58, GEWERKSCHAFT LOUISE, MERLAU, REPRESENTED BY ITS BOARD OF DIRECTORS,

5/58, HARZ-LAHN-ERZBERGBAU AG, MATHILDENHUTTE, BAD HARZBURG, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF LOWER SAXONY, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

6/58, MANNESMANN AG ( FORMERLY GEWERKSCHAFT MANNESMANN ), DUSSELDORF, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF LOWER SAXONY, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

7/58, ERZBERGBAU SIEGERLAND AG, BETZDORF, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENERS : 1 . LAND OF RHINE-PALATINATE, REPRESENTED BY THE MINISTER-PRESIDENT,

2 . LAND OF NORTH RHINE-WESTPHALIA, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

8/58, ERZBERGBAU STAUFENSTOLLN GMBH, OBERHAUSEN, REPRESENTED BY ITS MANAGERS,

INTERVENER : LAND OF BADEN-WURTTEMBERG, REPRESENTED BY THE ASSISTANT MINISTER - PRESIDENT, MINISTER FOR ECONOMIC AFFAIRS,

9/58, HESSISCHE BERG - UND HUTTENWERKE AG, WETZLAR, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF HESSE, REPRESENTED BY THE MINISTER-PRESIDENT,

10/58, STAHLWERKE SUDWESTFALEN AG, GEISWEID, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF NORTH RHINE-WESTPHALIA, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

11/58, HUTTENWERKE SIEGERLAND AG, SIEGEN, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF NORTH RHINE-WESTPHALIA, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

12/58, FRIEDRICHSHUTTE AG, HERDORF/SIEG REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF RHINE-PALATINATE, REPRESENTED BY THE MINISTER-PRESIDENT,

13/58, EISERFELDERHUTTE GMBH, SIEGEN, REPRESENTED BY ITS MANAGER,

INTERVENER : LAND OF NORTH RHINE-WESTPHALIA, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

14/58, NIEDERDREISBACHERHUTTE GMBH, NIEDERDREISBACH, REPRESENTED BY ITS MANAGERS,

INTERVENER : LAND OF RHINE-PALATINATE, REPRESENTED BY THE MINISTER-PRESIDENT,

15/58, GEWERKSCHAFT GRUNEBACHER HUTTE, GRUNEBACH, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF RHINE-PALATINATE, REPRESENTED BY THE MINISTER-PRESIDENT,

16/58, BIRLENBACHER HUTTE SCHLEIFENBAUM & CO . KG, GEISWEID, REPRESENTED BY ITS RESPONSIBLE PARTNER,

INTERVENER : LAND OF NORTH RHINE-WESTPHALIA, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

17/58, EISENWERK-GESELLSCHAFT MAXIMILIANSHUTTE AG, SULZBACH-ROSENBERG-HUTTE, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF BAVARIA, REPRESENTED BY THE MINISTER-PRESIDENT,

18/58, HUTTENWERKE ILSEDE-PEINE AG, PEINE, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF LOWER SAXONY, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

25/58, HUTTENWERK SALZGITTER AG, SALZGITTER, REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF LOWER SAXONY, REPRESENTED BY THE MINISTER FOR ECONOMIC AFFAIRS AND TRANSPORT,

26/58, LUITPOLDHUTTE AG, AMBERG/OPF ., REPRESENTED BY ITS BOARD OF DIRECTORS,

INTERVENER : LAND OF BAVARIA, REPRESENTED BY THE MINISTER-PRESIDENT, APPLICANTS,

THE APPLICANTS IN CASES 3 TO 8/58, 10/58, 13 TO 16/58, 25 AND 26/58 BEING ASSISTED BY HEINRICH LIETZMANN, ADVOCATE AT ESSEN;

THE APPLICANT IN CASE 9/58 BY MR LIETZMANN AND BY WILHELM WENGLER, PROFESSOR AT THE FREE UNIVERSITY OF BERLIN;

THE APPLICANTS IN CASES 11 AND 12/58 BY MR LIETZMANN AND BY WOLFGANG KUSTER, ADVOCATE AT DUSSELDORF;

THE APPLICANT IN CASE 17/58 BY HEINZ KUHNE, ADVOCATE AT MUNICH, AND BY M . B . AUBIN, PROFESSOR AT THE UNIVERSITY OF SAARBRUCKEN;

THE APPLICANT IN CASE 18/58 BY LUDWIG RAISER, PROFESSOR AT THE UNIVERSITY OF TUBINGEN;

THE INTERVENERS BEING ASSISTED AS FOLLOWS :

LAND OF BADEN-WURTTEMBERG, LAND OF NORTH RHINE-WESTPHALIA AND LAND OF LOWER SAXONY BY JOSEPH H . KAISER, PROFESSOR AT THE FACULTY OF LAW AT FREIBURG;

LAND OF RHINE-PALATINATE BY KARL WEBER, ADVOCATE AT KOBLENZ;

LAND OF HESSE BY ERNST-JOACHIM MESTMACKER, PROFESSOR AT THE FACULTY OF LAW AT SAARBRUCKEN;

LAND OF BAVARIA BY HANS ZIEGELHOEFER, ADVOCATE AT MUNICH;

THE APPLICANTS AND INTERVENERS ADOPTED AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF WILLI SCHEIDER, 2 RUE DU FORT-ELIZABETH,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, WALTER MUCH, ACTING AS AGENT, ASSISTED BY HANS PETER IPSEN, PROFESSOR AT THE UNIVERSITY OF HAMBURG AND WOLFGANG SCHNEIDER, ADVOCATE AT FRANKFURT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS SEAT, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF CERTAIN PROVISIONS OF THE DECISIONS OF THE HIGH AUTHORITY OF 9 FEBRUARY 1958 CONCERNING SPECIAL RATES AND CONDITIONS APPLICABLE TO THE CARRIAGE BY RAIL :

1 . OF MINERAL FUELS DESTINED FOR THE IRON AND STEEL INDUSTRY ( T/10.203 ),

2 . OF ORES ( T/10.202 ) JO OF 3.3.1958, P . 105/58 AND P . 122/58 ),

Grounds

P . 188

JURISDICTION

1 . THE APPLICANTS, POINTING OUT THAT THE POWER CONFERRED ON THE HIGH AUTHORITY BY THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION EXPIRED ON 9 FEBRUARY 1958 DENY THAT THE HIGH AUTHORITY HAD THE POWER TO TAKE THE DECISIONS NOTIFIED BY LETTER OF 12 FEBRUARY 1958 .

IT APPEARS FROM THE ORAL ARGUMENTS AND FROM THE EXPLANATIONS FURNISHED AT THE HEARING THAT THOSE DECISIONS ( COMMUNICATED BY LETTER OF 12 FEBRUARY ) WERE ADOPTED ON THE EVENING OF 9 FEBRUARY 1958 AND THAT ALL THE DETAILS OF THOSE DECISIONS WERE FIXED ON THAT DATE, AS IS PROVED BY THE PRODUCTION OF THE DRAFTS DISCUSSED AT THAT MEETING AND BY THE MINUTES THEREOF .

IT ALSO APPEARS FROM INFORMATION PRODUCED BY THE PARTIES THAT THE FACT THAT THOSE DECISIONS WERE ADOPTED ONLY ON THE LAST POSSIBLE DATE OF 9 FEBRUARY IS TO BE EXPLAINED BY A LAST - MINUTE APPROACH BY THE FEDERAL GOVERNMENT ASKING THE HIGH AUTHORITY TO RECONSIDER ITS POSITION, WHICH WAS ALREADY WELL KNOWN, AND BY THE DESIRE ON THE PART OF THE HIGH AUTHORITY NOT TO FAIL IN ITS DUTIES IN RESPECT OF THAT GOVERNMENT, WHICH LED IT TO POSTPONE THE FORMAL ADOPTION OF THOSE DECISIONS SO AS TO BE ABLE TO DELIBERATE UPON THEM AFRESH .

IN ORDER TO ENTER INTO FORCE, THOSE DECISIONS HAD TO BE NOTIFIED TO THE FEDERAL GOVERNMENT AND, IN ACCORDANCE WITH THE RULES OF GOOD ADMINISTRATION, NOTIFIED AS QUICKLY AS POSSIBLE - WHICH WAS DONE . NEVERTHELESS, THAT DOES NOT IN ANY WAY ALTER THE FACT THAT IN THIS CASE THE DECISIONS WERE ADOPTED DURING THE TRANSITIONAL PERIOD .

THUS THERE IS NO DOUBT THAT THE CONTESTED DECISIONS WERE TAKEN WITHIN DUE TIME .

P . 189

2 . IN CASE 18/58 THE APPLICANT HAS ALSO ARGUED THAT THE HIGH AUTHORITY HAD NO POWER TO TAKE A DECISION CONCERNING ARTICLE 71 ( B ) OF THE SCALE OF DUES FOR NAVIGATION ON THE MITTELLANDKANAL BECAUSE THAT SCALE LAYS DOWN TOLL CHARGES GOVERNED BY PUBLIC LAW AND, THEREFORE, COVERS A MATTER ATTRIBUTABLE TO THE FISCAL SOVEREIGNTY OF THE MEMBER STATES .

THIS ARGUMENT MUST BE REJECTED IN VIEW OF THE FACT THAT WHAT IS INVOLVED IS PAYMENT FOR THE USE OF PUBLIC MEANS OF TRANSPORT AND THAT THE PAYMENT CONSTITUTES ONE OF THE COMPONENTS OF THE COST OF TRANSPORT BY WATERWAY . THUS THE HIGH AUTHORITY DID NOT EXCEED ITS POWERS WHEN IT TOOK THE VIEW THAT THE REDUCTION OF THAT PAYMENT CONSTITUTED THE ESTABLISHMENT OF A SPECIAL RATE FOR TRANSPORT WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 60 .

THE SAME APPLICANT ALSO ALLEGES THAT THE HIGH AUTHORITY OUGHT NOT TO HAVE DECIDED A QUESTION RELATING TO TRANSPORT BY WATERWAY INCIDENTALLY IN A DECISION WHICH OTHERWISE ONLY COVERS RATES AND CONDITIONS OF CARRIAGE BY RAIL . BEFORE ADOPTING ANY DECISION, THE HIGH AUTHORITY OUGHT, IT IS ARGUED, TO HAVE EXAMINED ALL THE FISCAL SYSTEMS OF THE MEMBER STATES IN SO FAR AS THEY CONCERN TRANSPORT BY INLAND WATERWAY .

THIS ARGUMENT MUST ALSO BE REJECTED .

IN VIEW OF THE DIRECT INFLUENCE OF THE AFOREMENTIONED ARTICLE 71 ( B ) ON SPECIAL RATE 6 B 33 THE HIGH AUTHORITY RIGHTLY EXAMINED THE LEGALITY OF THE SAID ARTICLE . IT WAS PARTICULARLY JUSTIFIED IN SO DOING BECAUSE IT APPEARED FROM ITS INVESTIGATIONS ON THIS POINT THAT NO SIMILAR CASE EXISTED .

FINALLY, AS REGARDS THE NECESSITY FOR A PRELIMINARY EXAMINATION SUGGESTED BY THE APPLICANT, IT SHOULD BE NOTED THAT THE TREATY NOWHERE LAYS DOWN ANY SUCH REQUIREMENT .

THE SUBMISSION AS TO INFRINGEMENT OF THE TREATY

1 . THE APPLICANTS ALLEGE THAT BY REASON OF THE ECONOMIC AND SOCIAL CONSEQUENCES WHICH MAY FOLLOW FROM THE ABOLITION OF THE SPECIAL INTERNAL RATES AND CONDITIONS, THE INTERESTED PARTIES ARE ENTITLED TO CLAIM THE GRANT OF THE AIDS PROVIDED FOR IN ARTICLE 23 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS .

SINCE THE ABOLITION OF THE RATES AT ISSUE WAS DECIDED UPON AFTER EXPIRY OF THE TRANSITIONAL PERIOD OR ON THE EVE OF THE EXPIRY THEREOF, THE HIGH AUTHORITY IS SAID TO HAVE DEPRIVED THE APPLICANTS OF THE POSSIBILITY OF CLAIMING THOSE AIDS .

THE APPLICANTS' COMPLAINT CANNOT BE ACCEPTED BECAUSE AT THE TIME WHEN THE ABOLITION OF THE RATES AT ISSUE WAS DECIDED UPON THE APPLICANTS WERE NOT DEPRIVED OF THE RIGHT OR OF THE MEANS OF CLAIMING THE GRANT OF THE ABOVEMENTIONED AIDS .

P . 190

IN FACT THE LAST PARAGRAPH OF ARTICLE 23 OF THE CONVENTION PROVIDES THAT AID MAY BE GRANTED BY DECISION OF THE HIGH AUTHORITY WITH THE ASSENT OF THE COUNCIL DURING THE TWO YEARS FOLLOWING THE END OF THE TRANSITIONAL PERIOD .

IF NO LOSS HAS BEEN INCURRED DURING THOSE TWO YEARS, THIS SITUATION IS PARTLY DUE TO THE FACT THAT THE FEDERAL GOVERNMENT HAS NOT CARRIED OUT THE CONTESTED DECISIONS .

THEREFORE THE COMPLAINT CAN HARDLY BE LEVELLED AGAINST THE HIGH AUTHORITY THAT THIS FAILURE TO CARRY OUT THE DECISIONS PREVENTED THE UNDERTAKINGS FROM CLAIMING THE AID PROVIDED FOR BY ARTICLE 23 OF THE CONVENTION WITHIN DUE TIME .

2 . THE APPLICANTS ALLEGE THAT THE HIGH AUTHORITY, IN APPLYING THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION, HAS MISINTERPRETED ARTICLE 70 OF THE TREATY TO WHICH THAT ARTICLE REFERS .

( A ) AS REGARDS THIS MATTER, THE COURT INTENDS TO EXAMINE FIRST AN ARGUMENT PUT FORWARD SEPARATELY BY THE APPLICANT IN CASE 9/58 .

THE LATTER HAS ALLEGED THAT THE FIRST PARAGRAPH OF ARTICLE 70 DOES NOT CONTAIN LAW WHICH IS DIRECTLY APPLICABLE AND ONLY ESTABLISHES A PROGRAMME .

THIS INTERPRETATION DOES NOT ACCORD WITH THE EXPRESSIONS EMPLOYED IN THAT ARTICLE, WHICH STATES IN THE SECOND PARAGRAPH THAT 'ANY DISCRIMINATION...SHALL BE PROHIBITED', IN THE THIRD PARAGRAPH THAT 'THE SCALES ETC . SHALL BE PUBLISHED OR BROUGHT TO THE KNOWLEDGE OF THE HIGH AUTHORITY' AND ESPECIALLY IN THE FOURTH PARAGRAPH OF THAT ARTICLE WHICH STATES THAT 'THE APPLICATION OF SPECIAL INTERNAL RATES AND CONDITIONS...SHALL REQUIRE THE PRIOR AGREEMENT OF THE HIGH AUTHORITY, WHICH SHALL VERIFY ETC .', WHICH AGREEMENT MAY BE TEMPORARY OR CONDITIONAL .

IT APPEARS FROM THE CONTEXT SET OUT ABOVE THAT THE FIRST PARAGRAPH IMPOSES - BOTH ON THE STATES AND ON THE HIGH AUTHORITY - A SUBSTANTIVE AND BINDING RULE REQUIRING THE APPLICATION OF THE PROVISIONS OF ARTICLE 70 .

MOREOVER, THAT RULE FOLLOWS DIRECTLY FROM ARTICLE 4 WHICH FORMALLY PROVIDES THAT 'THE FOLLOWING....SHALL...BE ABOLISHED AND PROHIBITED...(B ) MEASURES OR PRACTICES WHICH DISCRIMINATE...IN...TRANSPORT RATES '.

( B ) SECONDLY, THE APPLICANTS CHALLENGE THE INTERPRETATION PUT BY THE HIGH AUTHORITY UPON THE FIRST PARAGRAPH OF ARTICLE 70, WHICH PROVIDES THAT COMPARABLE RATES AND CONDITIONS ARE TO BE OFFERED TO COMPARABLY PLACED CONSUMERS . THEY ALLEGE - CONTRARY TO THE POINT OF VIEW OF THE HIGH AUTHORITY, WHICH ONLY CONSIDERED THE CRITERION OF COMPARABILITY 'FROM THE POINT OF VIEW OF TRANSPORT' - THAT COMPARISON BETWEEN UNDERTAKINGS MUST TAKE INTO ACCOUNT ALL THE CIRCUMSTANCES IN WHICH THEY ARE PLACED, IN PARTICULAR THE PLACE OF PRODUCTION, THE PROFITABILITY OF THE DEPOSITS WORKED AND THE FACT OF BEING LOCATED IN A LESS FAVOURED REGION .

P . 191

HOWEVER, THIS ARGUMENT MUST BE REJECTED .

FIRST OF ALL, THE ABOVEMENTIONED PROVISION APPEARS IN THE CHAPTER HEADED 'TRANSPORT '. IT IS THEREFORE NECESSARY TO INTERPRET THE PHRASE 'COMPARABLY PLACED' AS REFERRING, AT LEAST IN PRINCIPLE, TO THE COMPARABILITY OF SITUATIONS FROM THE POINT OF VIEW OF TRANSPORT .

MOREOVER, THE OPINION THAT ANY COMPARISON BETWEEN SEVERAL UNDERTAKINGS MUST TAKE INTO ACCOUNT ALL THE CIRCUMSTANCES IN WHICH THEY ARE PLACED WOULD LEAD TO THE RESULT THAT AN UNDERTAKING IS ONLY COMPARABLE WITH ITSELF, AND THUS THE CONCEPT 'COMPARABLY PLACED' AND, THEREFORE, THAT OF 'DISCRIMINATION' WOULD BECOME DEVOID OF ALL MEANING .

IT APPEARS FROM ARTICLE 4 OF THE TREATY THAT IN ARTICLE 70 THE INTENTION OF THE AUTHORS OF THE TREATY WAS TO ELIMINATE DISTORTIONS IN THE COMMON MARKET BY THE HARMONIZATION OF TRANSPORT RATES AND CONDITIONS AND THUS TO ENSURE THAT THE COMMON MARKET WOULD FUNCTION ACCORDING TO THE PRINCIPLES ESTABLISHED BY THE TREATY .

IN GIVING EXPRESSION TO THAT INTENTION, THEY CANNOT HAVE BEEN UNAWARE THAT THE TRANSPORT INDUSTRY CONSTITUTES A BRANCH OF INDUSTRY WHICH IS INDEPENDENT OF THAT OF THE PRODUCTION OF COAL AND STEEL AND THAT IT HAS ITS OWN PROBLEMS, NEEDS AND PROCEDURES . NOR CAN THEY HAVE FAILED TO UNDERSTAND THAT SO LONG AS THAT INDUSTRY HAS NOT BEEN INTEGRATED INTO THE COMMON MARKET ITS DISTINCT NATURE MUST BE RESPECTED AND THAT MEASURES TAKEN MUST BE CONFINED TO THOSE NECESSARY TO PREVENT IT FROM JEOPARDIZING THE OBJECTIVES OF THE TREATY BY ITS ACTIONS .

THEREFORE, AS REGARDS INTERNATIONAL TRANSPORT, ARTICLE 70, WHILST ENVISAGING THE FUTURE HARMONIZATION OF NATIONAL RATES AND CONDITIONS, LEAVES TARIFF POLICY UNCONTROLLED AND CONFINES ITSELF TO THE REQUIREMENT THAT WITHIN EACH NATIONAL SYSTEM ANY DISCRIMINATION BASED ON THE POINT OF DEPARTURE OR DESTINATION MUST BE ABOLISHED .

SIMILARLY - AS IS SHOWN BY THE FIFTH PARAGRAPH - IN RESPECT OF INTERNAL TRANSPORT, MEMBER STATES ARE FREE TO PRACTISE THEIR OWN COMMERCIAL POLICY, SUBJECT TO THE PROVISIONS OF THE TREATY .

THERE CAN BE NO DOUBT THAT THE STATES OR TRANSPORT UNDERTAKINGS WOULD COME INTO CONFLICT WITH THOSE PROVISIONS IF, IN SETTING THEIR RATES AND CONDITIONS, THEY TOOK INTO ACCOUNT THE ADVANTAGES AND DISADVANTAGES OF THE LOCATION OF UNDERTAKINGS PRODUCING COAL AND STEEL OR THE QUALITY OF THE DEPOSITS WORKED .

THE TREATY REQUIRES RATHER THAT IN DRAWING UP THEIR TARIFF PROVISIONS THE STATES SHOULD CONSIDER TRANSPORT CONDITIONS ALONE AND, THEREFORE, THE COMPARABILITY OF THE DIFFERENT ROUTES AND LOCATIONS FROM THE POINT OF VIEW OF TRANSPORT .

( C ) THE INTERVENER, THE LAND OF HESSE, HAS ALSO DEFENDED THE ARGUMENT THAT ARTICLE 70, IN SPEAKING OF COMPARABLE CONDITIONS, DOES NOT MEAN COMPARABILITY FROM THE POINT OF VIEW OF TRANSPORT, BUT THE CREATION OF COMPARABLE SITUATIONS IN THE COMMON MARKET, SUCH THAT DIFFERENCES IN SITUATION BETWEEN THE UNDERTAKINGS ARE TO BE COMPENSATED BY THE RATES SET .

P . 192

THIS INTERPRETATION MUST BE REJECTED SIMPLY BECAUSE THE TREATY ONLY PROVIDES FOR A VERY PARTIAL INTEGRATION OF TRANSPORT .

THIS ARGUMENT PRESUPPOSES A MUCH MORE COMPLETE INTEGRATION OF THE TRANSPORT MARKETS OF THE DIFFERENT MEMBER STATES AND A MORE ACTIVE INTERVENTION ON THE PART OF THE HIGH AUTHORITY THAN IS PROVIDED FOR BY THE FOURTH AND FIFTH PARAGRAPHS OF ARTICLE 70 .

FOR THOSE SAME REASONS, ANY ATTEMPT TO TREAT THE APPLICATION OF ARTICLE 70 AS ANALOGOUS TO THE PRACTICE OF THE UNITED STATES INTERSTATE COMMERCE ACT IS CLEARLY INADEQUATE . THE INTERSTATE COMMERCE ACT IS DIRECTED, FIRST, AT A TOTAL AND MUCH MORE WIDE - RANGING CONTROL OF TRANSPORT RATES AND, SECONDLY, AT A TRUE FEDERAL TRANSPORT POLICY .

3 . THE APPLICANTS HAVE ALSO ARGUED THAT THE HIGH AUTHORITY IS MISTAKEN IN SEEING DISCRIMINATION IN EVERY SPECIAL RATE .

ON THE CONTRARY, THEY SAY, DISCRIMINATION ONLY EXISTS WHERE THE APPLICATION OF SPECIAL RATES DIRECTLY CAUSES THIRD PARTIES TO SUFFER LOSS .

THE CONCEPT OF DISCRIMINATION DOES NOT IMPLY, BY DEFINITION, THE FACT THAT DIRECT DAMAGE IS CAUSED . THE MEANING OF THIS CONCEPT IS PRIMARILY THAT UNEQUAL CONDITIONS ARE LAID DOWN FOR COMPARABLE CASES .

THE APPLICATION OF SUCH UNEQUAL CONDITIONS MAY, IT IS TRUE, BRING ABOUT DAMAGE, WHICH CAN THEN BE CONSIDERED AS THE CONSEQUENCE BY WHICH THAT DISCRIMINATION MAY BE DETECTED .

HOWEVER IT WOULD BE ARBITRARY TO REDUCE THE CONCEPT OF DISCRIMINATION SOLELY TO THOSE CASES OF UNEQUAL TREATMENT IN WHICH THE INTERESTED PARTIES IN FACT SUFFER DAMAGE .

THUS PROOF THAT A SPECIAL INTERNAL RATE DOES OR DOES NOT SET OTHER UNDERTAKINGS AT A DISADVANTAGE CANNOT BE DECISIVE, FOR AN EXACT COMPARISON IS ONLY POSSIBLE BETWEEN TRANSPORT CARRIED OUT ON THE TERRITORY OF ONE AND THE SAME STATE .

ACCORDINGLY, IT IS APPROPRIATE TO REJECT THE APPLICANT'S PROPOSITION ACCORDING TO WHICH THE SAID RATES ARE COVERED BY THE FOURTH PARAGRAPH OF ARTICLE 70 ONLY WHEN IT HAS BEEN PROVED THAT THEY CAUSE IMMEDIATE AND DIRECT LOSS TO THIRD PARTIES .

P . 193

4 . THE FOURTH PARAGRAPH OF ARTICLE 70 PROVIDES THAT THE APPLICATION OF SPECIAL INTERNAL RATES AND CONDITIONS IN THE INTEREST OF ONE OR MORE COAL - OR STEEL-PRODUCING UNDERTAKINGS SHALL REQUIRE THE PRIOR AGREEMENT OF THE HIGH AUTHORITY .

CONTRARY TO VARIOUS OPINIONS PUT FORWARD DURING THE COURSE OF THE PROCEDURE, IT IS TO BE NOTED THAT THE WORDING OF THE ABOVEMENTIONED PROVISION COVERS NOT ONLY RATES SPECIALLY ADOPTED IN THE INTEREST OF CERTAIN UNDERTAKINGS ( A SUBJECTIVE CRITERION ), BUT ALSO ALL SPECIAL RATES WHICH, WHATEVER THE REASON FOR THEIR INTRODUCTION, ARE ADVANTAGEOUS TO ONE OR MORE UNDERTAKINGS ( AN OBJECTIVE CRITERION ). THUS THE FACT THAT A SPECIAL RATE HAS BEEN ADOPTED FOR REASONS WHICH ARE ENTIRELY FOREIGN TO THE INTERESTS OF THE UNDERTAKING DERIVING AN ADVANTAGE CANNOT IN ANY WAY EXCLUDE OR RESTRICT THE APPLICATION OF THE FOURTH PARAGRAPH .

WHERE THE SPECIAL RATES AND CONDITIONS ARE IN ACCORDANCE WITH THE PRINCIPLES OF THE TREATY THE HIGH AUTHORITY CANNOT WITHHOLD ITS AGREEMENT .

SUCH CONFORMITY MUST, AS THE HIGH AUTHORITY HAS CORRECTLY UNDERSTOOD, BE PRESUMED IN EACH CASE IN SO FAR AS THE SPECIAL RATE IS JUSTIFIED BY SPECIFIC CONDITIONS RELATING TO THE TRANSPORT MARKET .

5 . THE APPLICANTS COMPLAIN THAT THE HIGH AUTHORITY DID NOT ALSO TAKE INTO ACCOUNT CONSIDERATIONS OF GENERAL ECONOMIC POLICY SUCH AS WHETHER IT WAS EXPEDIENT TO APPROVE PROTECTIVE MEASURES WHICH MIGHT APPEAR DESIRABLE IN FAVOUR OF CRITICAL AREAS AND UNDERPRIVILEGED REGIONS . IN SUPPORT OF THEIR ARGUMENT THEY POINT TO THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 2 AND ARTICLE 3 ( A ), ( D ), ( E ) AND ( G ).

THE FIFTH PARAGRAPH OF ARTICLE 70 DOES INDEED ENSURE RESPECT FOR THE SOVEREIGNTY OF THE MEMBER STATES AS REGARDS THEIR GENERAL POLICY ON TRANSPORT . HOWEVER, THE PROVISIONS OF ARTICLE 4 AND ALSO THE OTHER PARAGRAPHS OF ARTICLE 70 RUN DIRECTLY COUNTER TO THE IDEA THAT THE MEMBER STATES ARE FREE TO INCLUDE THE COAL AND STEEL INDUSTRY IN ANY POLICY FOR THE SITING OF INDUSTRIES, OR TO CONTINUE THE PRACTICE OF SUBSIDIES IN THE FORM OF THE GRANT OF SPECIAL RATES AND CONDITIONS TO UNDERTAKINGS PRODUCING COAL AND STEEL . FOR IF THIS POWER REMAINED AVAILABLE TO THE SIX MEMBER STATES IT COULD PREVENT THE ESTABLISHMENT OF THE COMMON MARKET, PARTICULARLY SINCE THE PRINCIPLES OF GENERAL TRANSPORT POLICY ADOPTED IN THE SIX COUNTRIES ARE DIFFERENT .

THE APPLICANTS HAVE ALSO REFERRED TO ARTICLE 2 OF THE TREATY WHICH PROVIDES THAT 'THE COMMUNITY SHALL PROGRESSIVELY BRING ABOUT CONDITIONS WHICH WILL OF THEMSELVES ENSURE THE MOST RATIONAL DISTRIBUTION OF PRODUCTION AT THE HIGHEST POSSIBLE LEVEL OF PRODUCTIVITY, WHILE SAFEGUARDING CONTINUITY OF EMPLOYMENT AND TAKING CARE NOT TO PROVOKE FUNDAMENTAL AND PERSISTENT DISTURBANCES IN THE ECONOMIES OF MEMBER STATES '.

P . 194

THIS PROVISION, WHILE EXPRESSING TWO RESERVATIONS, CLEARLY STATES THE ESSENTIAL OBJECTIVE OF THE COMMON MARKET, ACCORDING TO WHICH THE GENERAL POLICY OF THE HIGH AUTHORITY MUST BE TO PROMOTE - AND THIS ALSO APPLIES IN THE APPLICATION OF ARTICLE 70 - THE PROGRESSIVE ESTABLISHMENT OF CONDITIONS WHICH WILL OF THEMSELVES ENSURE THE MOST RATIONAL DISTRIBUTION OF PRODUCTION .

THE AUTHORS OF THE TREATY REALIZED THAT THIS POLICY COULD HAVE THE RESULT THAT CERTAIN UNDERTAKINGS MIGHT BE FORCED TO CEASE OR CHANGE THEIR ACTIVITY . THIS APPEARS IN PARTICULAR FROM THE CONVENTION ON THE TRANSITIONAL PROVISIONS, OF WHICH THE SEVENTH PARAGRAPH OF ARTICLE 10 HAS BEEN APPLIED IN THE PRESENT CASE .

THE CONVENTION MAKES PROVISION BOTH FOR ESTABLISHING THE COMMON MARKET BY PUTTING AN END TO SITUATIONS WHICH ARE INCOMPATIBLE WITH THE PRINCIPLES OF THAT MARKET AND ARE OF SUCH A NATURE AS TO JEOPARDIZE THE ACHIEVEMENT OF THE OBJECTIVES DEFINED NOTABLY IN ARTICLES 2 AND 3, AND FOR REMEDYING THE DISADVANTAGEOUS CONSEQUENCES WHICH THE ESTABLISHMENT OF THE COMMON MARKET COULD HAVE IN CERTAIN CASES .

IT EXPRESSLY PROVIDES, IN ARTICLE 23 IN PARTICULAR, FOR MEASURES OF READAPTATION, WHICH CAN EVEN TAKE THE FORM OF THE SETTING UP OF NEW UNDERTAKINGS NOT SUBJECT TO THE TREATY, AND FOR ASSISTANCE BOTH TO UNDERTAKINGS AND TO WORKERS .

THE FACT THAT THE CONTESTED DECISIONS MIGHT RESULT IN A TEMPORARY REDUCTION IN EMPLOYMENT AND IN THE CLOSURE OF SOME UNDERTAKINGS CANNOT RENDER THESE DECISIONS ILLEGAL ON GROUNDS OF INFRINGEMENT OF ARTICLES 2 AND 3 . IT COULD EVEN BE ARGUED THAT, ON THE CONTRARY, SUCH MEASURES ARE NECESSARY IN ORDER TO ENABLE THE COMMON MARKET TO ACHIEVE ITS STATED OBJECTIVES, SINCE THE DISAPPEARANCE OF UNDERTAKINGS WHICH COULD NOT CONTINUE TO EXIST BY THEIR OWN UNAIDED EFFORTS, BUT ONLY WITH THE HELP OF CONSTANT AND MASSIVE SUBSIDIES, WOULD STRENGTHEN ITS RESISTANCE TO CRISES .

HOWEVER, THE FIGURES AND CALCULATIONS SUBMITTED TO THE COURT DO NOT PROVIDE SUFFICIENT EVIDENCE AT LAW FOR THE PROPOSITION THAT FULL EMPLOYMENT AND THE PROFITABILITY OF THE UNDERTAKINGS ARE SERIOUSLY THREATENED BY THE CONTESTED DECISIONS . MOREOVER, NOTHING IN THOSE DECISIONS STANDS IN THE WAY OF A NEW REQUEST BASED DIRECTLY ON THE FOURTH PARAGRAPH OF ARTICLE 70 IF, BEFORE THE EXPIRY OF THE PERIODS LAID DOWN, THE CIRCUMSTANCES JUSTIFY A NEW SPECIAL RATE .

IT WOULD IN ANY CASE BE CONTRARY TO THE MEANING OF THE TREATY TO AUTHORIZE EXISTING SPECIAL RATES ON THE SOLE GROUND THAT IT WOULD BE DIFFICULT OR IMPOSSIBLE FOR THE UNDERTAKINGS CONCERNED TO ADAPT THEMSELVES TO THE COMMON MARKET .

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IF SUCH WERE INDEED THE POSITION, IT WOULD AT THE MOST HAVE BEEN OPEN TO THE HIGH AUTHORITY TO LAY DOWN LONGER PERIODS, BUT THE APPLICANTS DO NOT EVEN SET OUT ANY REASONS FOR A COMPLAINT THAT THE CONTESTED DECISIONS SET PERIODS WHICH WERE TOO SHORT .

THEREFORE, NEITHER ARTICLE 2 NOR ARTICLE 3 OF THE TREATY MAY BE RELIED ON IN SUPPORT OF THE PROPOSITION THAT, IN APPLYING THE FOURTH PARAGRAPH OF ARTICLE 70, THE HIGH AUTHORITY IS REQUIRED, AS A GENERAL RULE, TO AUTHORIZE SPECIAL RATES WHEN THE PROFITABILITY OF AN UNDERTAKING MIGHT BE ADVERSELY AFFECTED IF SUCH RATES DID NOT EXIST .

6 . ON THE CONTRARY, WHEN ECONOMIC CONDITIONS IN THE TRANSPORT SECTOR DO NOT REQUIRE OR JUSTIFY SPECIAL RATES ( WHICH IS THE CASE NOTABLY WHEN COMPETITION FROM ANOTHER MEANS OF TRANSPORT MUST BE COUNTERACTED ), IT IS ONLY IN EXCEPTIONAL CASES THAT A SPECIAL RATE CAN BE CONSIDERED TO BE IN ACCORDANCE WITH THE PRINCIPLES OF THE TREATY .

THE HIGH AUTHORITY HAS RECOGNIZED THE EXISTENCE OF SUCH AN EXCEPTIONAL CASE AS REGARDS CERTAIN UNDERTAKINGS SITUATED NEAR THE INTERZONAL FRONTIER .

IN THAT CASE, THE DISADVANTAGES ARE CREATED BY FACTORS WHICH ARE NOT OF AN ECONOMIC NATURE AND IN PARTICULAR BY POLITICAL CONTINGENCIES WHICH HAVE SEPARATED THESE UNDERTAKINGS FROM THEIR NATURAL MARKET, WITH THE RESULT THAT THEY REQUIRE SUPPORT EITHER TO BE ABLE TO ADJUST THEMSELVES TO THE NEW CONDITIONS OR TO BE ABLE TO OVERCOME THIS ACCIDENTAL DISADVANTAGE .

HOWEVER, THE HIGH AUTHORITY WAS RIGHT, IN VIEW OF THE EXCEPTIONAL NATURE OF THAT ASSISTANCE, TO HAVE EXAMINED CLOSELY, PRIOR TO GIVING ITS APPROVAL TO THOSE SPECIAL RATES, THE QUESTION WHETHER IN THAT CASE THE UNDERTAKINGS CONCERNED DID OR DID NOT NEED SUPPORT AND TO HAVE BASED ITS DECISIONS ON THE RESULTS OF THAT EXAMINATION .

THEREFORE IT IS NECESSARY TO REJECT THE OFFER MADE BY THE APPLICANTS TO PRODUCE EVIDENCE ESTABLISHING THAT THE DAMAGE SUFFERED IN PARTICULAR BY THE MAXIMILIANSHUTTE AND LUITPOLDHUTTE UNDERTAKINGS SINCE THE ESTABLISHMENT OF THE INTERZONAL FRONTIER GREATLY OUTWEIGHS THE ADVANTAGE RECEIVED FROM THE REDUCTIONS IN RATES GRANTED UNTIL THE PRESENT AND THEREFORE EXCEEDS BY AN EVEN GREATER MARGIN THE ADVANTAGE OF THE REDUCTION GRANTED TO THOSE UNDERTAKINGS BY THE CONTESTED DECISION .

FOR THAT OFFER TO PRODUCE EVIDENCE IS BASED ON THE BELIEF THAT COMPENSATION SHOULD BE FORTHCOMING FOR THE WHOLE OF THE LOSS OCCASIONED BY THE ESTABLISHMENT OF THE INTERZONAL FRONTIER .

AS HAS BEEN EXPLAINED ABOVE, THAT BELIEF IS ERRONEOUS BECAUSE IT FAILS TO UNDERSTAND THE EXCEPTIONAL CHARACTER OF THE ASSISTANCE WHICH MAY BE GRANTED UNDER THE FOURTH PARAGRAPH OF ARTICLE 70 .

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THE APPLICANTS ALSO ALLEGE THAT THE DECISIONS TAKEN IN RESPECT OF THE TWO UNDERTAKINGS MENTIONED ABOVE CONSTITUTE AN ARBITRARY MEASURE IN THAT THE HIGH AUTHORITY DEDUCTED FROM THE 21% REDUCTION PREVIOUSLY GRANTED THE 13% REDUCTION ALREADY IN FORCE BEFORE THE LAST WORLD WAR, WHICH UNDENIABLY CONSTITUTED A PROTECTIVE MEASURE .

THE COURT IS NOT OF THE OPINION THAT THIS APPROACH IS IRREGULAR, IN VIEW OF THE FACTS, FIRST, THAT OTHER UNDERTAKINGS LOCATED IN THE SAME REGIONS ENJOY A REDUCTION OF ABOUT 8% AND, SECONDLY, THAT IN ITS DECISIONS THE HIGH AUTHORITY HAS MADE PROVISION FOR A CORRECTIVE MARGIN OF 4 %.

THE COURT MUST ALSO REJECT AN ARGUMENT PUT FORWARD BY THE APPLICANT ILSEDE PEINE ( CASE 18/58 ) THAT SPECIAL TRANSPORT RATES MAY BE AUTHORIZED ONCE IT IS ESTABLISHED THAT THE UNDERTAKING CONCERNED IS PLACED IN CONDITIONS WHICH JUSTIFY A SUBSIDY .

ACCORDING TO THAT ARGUMENT, SINCE IT HAS BEEN RECOGNIZED THAT SUCH CONDITIONS EXIST IN THE REGION SITUATED NEAR TO THE INTERZONAL FRONTIER, THE APPLICANT IS ENTITLED TO CLAIM THE GRANT OF A PROTECTIVE RATE, EVEN INDEPENDENTLY OF THE QUESTION WHETHER IT DOES OR DOES NOT NEED A SUBSIDY .

SINCE, IN PRINCIPLE, THE FUNDAMENTAL RULES OF THE TREATY PROHIBIT ALL SUBSIDIES AND ALL PROTECTIVE RATES, A SPECIAL RATE FOR TRANSPORT COULD BE GRANTED TO AN UNDERTAKING SITUATED NEAR THE AFORESAID FRONTIER ONLY WHERE THE SURVIVAL OF THE SAID UNDERTAKING DEPENDED ON IT .

THE APPLICANT HAS NOT ALLEGED THAT IT IS IN SUCH A POSITION .

THE SUBMISSION CONCERNING INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS

1 . THE APPLICANTS ALLEGE THAT INSUFFICIENT REASONS ARE GIVEN FOR THE DECISIONS BECAUSE THEY DO NOT STATE THE REASONS FOR WHICH, IN APPLYING THE PRINCIPLE OF COMPARABILITY WITHIN THE MEANING OF ARTICLE 70, THE CRITERION OF COMPARABILITY 'FROM THE POINT OF VIEW OF TRANSPORT' WAS ALONE TAKEN INTO ACCOUNT, AND ALSO BECAUSE THOSE DECISIONS DO NOT SET OUT IN DETAIL THE REASONS WHICH, IN THE OPINION OF THE HIGH AUTHORITY, WOULD HAVE JUSTIFIED THE RETENTION OF THE SPECIAL RATES .

THE COURT ACCEPTS THE DEFENDANT'S ARGUMENT ACCORDING TO WHICH THE HIGH AUTHORITY WAS ENTITLED TO CONFINE ITSELF TO SETTING OUT ITS INTERPRETATION OF THE FIRST PARAGRAPH OF ARTICLE 70 IN A POSITIVE MANNER AND THAT IT WAS NOT IN ANY WAY REQUIRED TO REJECT OR TO CRITICIZE OTHER POSSIBLE INTERPRETATIONS .

THE COURT REJECTS THE APPLICANTS' ALLEGATION THAT THE HIGH AUTHORITY WAS OBLIGED TO ENUMERATE EXHAUSTIVELY THE REASONS WHICH, IN APPLICATION OF THE FOURTH PARAGRAPH OF ARTICLE 70, COULD HAVE JUSTIFIED THE RETENTION OF SPECIAL RATES . ON THE CONTRARY, IT MUST BE ACCEPTED THAT THE HIGH AUTHORITY COULD CONFINE ITSELF TO ASSESSING THE CONCRETE CASES WHICH WERE SUBMITTED TO IT .

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IT SHOULD ALSO BE NOTED THAT THE HIGH AUTHORITY WAS SCARCELY JUSTIFIED IN UNDERTAKING THE DEVELOPMENT OF A GENERAL THEORY ON THE SUBJECT-MATTER OF THE FOURTH PARAGRAPH OF ARTICLE 70 .

2 . THE APPLICANTS IN CASES 17/58 AND 26/58 ALLEGE THAT THE HIGH AUTHORITY HAS NOT GIVEN SUFFICIENT REASONS FOR THAT PART OF THE CONTESTED DECISION WHICH INVOLVES THE INCREASE OF TARIFF 6 B 31 - IN SO FAR AS IT AFFECTS THE CARRIAGE OF COAL - AS THE RESULT OF THE CUTTING OF THE PREVIOUS 21% REDUCTION TO 8 %.

THE COURT TAKES THE VIEW THAT SUFFICIENT REASONS ARE GIVEN FOR THE DECISION ON THIS POINT IN THAT REFERENCE IS MADE TO A COMPARISON ESTABLISHED BETWEEN THE RATES IN FORCE BEFORE AND AFTER THE WAR .

3 . THE APPLICANT IN CASE 18/58 ALSO COMPLAINS THAT THE HIGH AUTHORITY DID NOT STATE THE REASONS FOR WHICH IT CONSIDERED THAT ARTICLE 71 ( B ) OF THE SCALE OF DUES FOR NAVIGATION ON THE MITTELLANDKANAL IS DISCRIMINATORY .

IN REALITY THIS COMPLAINT MERELY EXPRESSES THE FACT, ALREADY EXAMINED, THAT SPECIAL TRANSPORT RATES ARE NOT DISCRIMINATORY BY DEFINITION .

AS HAS ALREADY BEEN SAID, THIS COMPLAINT, IN SO FAR AS IT IS PUT FORWARD IN SUPPORT OF THE SUBMISSION THAT THE TREATY HAS BEEN INFRINGED, MUST BE REJECTED .

ESSENTIALLY, THE SAID COMPLAINT DOES NOT CONCERN THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AND THEREFORE IT CANNOT BE ACCEPTED UNDER THIS HEAD .

THE SUBMISSION AS TO MISUSE OF POWERS

FINALLY, THE APPLICANTS ARGUE THAT THE HIGH AUTHORITY HAS USED THE POWERS VESTED IN IT UNDER THE FOURTH PARAGRAPH OF ARTICLE 70 AND ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS TO ENDS FOR WHICH THE TREATY DOES NOT PROVIDE OR FOR WHICH IT NO LONGER MAKES PROVISION, AND ON THIS ACCOUNT THEY ASSERT THAT THERE HAS BEEN A MISUSE OF POWERS .

IN PUTTING FORWARD THIS ASSERTION, THE APPLICANTS RELY ON FACTS ALREADY ADVANCED IN SUPPORT OF THE SUBMISSION AS TO THE INFRINGEMENT OF THE TREATY .

THIS SUBMISSION HAS BEEN PUT FORWARD IN A VAGUE AND IMPRECISE MANNER . THE COURT MUST THEREFORE CONFINE ITSELF TO A FINDING THAT THE EXISTENCE OF A MISUSE OF POWERS IN RELATION TO THE APPLICANTS DOES NOT APPEAR TO IT TO BE ESTABLISHED BY THE FACTS SUCH AS THEY HAVE BEEN PRESENTED .

THE SUBMISSION CONCERNING A MISUSE OF POWERS MUST BE REJECTED .

Decision on costs

THE APPLICANTS AND THE INTERVENERS HAVE FAILED IN ALL THEIR SUBMISSIONS AND MUST THEREFORE BEAR ALL THE COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS AS UNFOUNDED;

2 . ORDERS THE APPLICANTS AND THE INTERVENERS TO BEAR THE COSTS .