1.

How is Decision No 7/63 to be classified under the ECSC Treaty? Is it a general decision or is it an individual decision, because — in the view of the applicants — it constitutes a mere collection of a number of individual decisions applicable to all undertakings using ferrous scrap? As the High Authority emphasizes, and as we know, the preliminary question of classification is important, because the answer to it determines which grounds can be pleaded, that is to say, if it is a general decision only the ground of ‘a misuse of powers affecting’ the undertaking is admissible, whereas if it is an individual decision all the other grounds are admissible. I had the opportunity on a previous occasion, namely in Cases 53 and 54/63, to deal with the question which has arisen. I then came to the conclusion that Decision No 7/63 must be regarded as a general decision, because its purpose is only to provide a basis for the final preparation of the individual statements of accounts for each of the various undertakings. However I will not this time restrict myself to a reference to my arguments in that case, which moreover are not repeated in the Court's judgment (in passing, it should be said that the Court merely pointed out that the applicants were not affected individually by Decision No 7/63). It is clear that in the present case the question of the classification of Decision No 7/63 has been treated in much greater detail and — it must be freely admitted — with very impressive arguments, which merit without any doubt a more searching examination. It will be seen later whether these arguments make it necessary to revise the view which I expressed before. The essence of the applicant 's argument is that a general decision must be legislative in character, that is to say it must, like a substantive rule of law, aim at the abstract regulation of situations which may arise in the future. Decision No 7/63 departs from this pattern. Its aim is solely to regulate events which have already taken place and which took the form of purchases of ferrous scrap. It has therefore the same function as a document leading to the winding up of a company (and on this point the applicants have not failed to refer to the original equalization scheme, which came into operation in the form of a Belgian commercial partnership). The application of Decision No 7/63 to this particular case resembles a straight-forward accounting operation; its structure does not allow any opportunity for legal reflexion in the sense of an implementing measure, because it directly regulates the legal situation of each undertaking using scrap. This explains the short period of time between the making of the Decision and the despatch of the letters of 8 April 1963, from which it is to be inferred that the Decision was applied before its publication so it is not intended to refer to the future. To begin with, one of the points made in the foregoing argument is certainly true, namely that rules of law, measures having a legislative character, must be regarded as general decisions within the meaning of the Treaty. The previous decisions of the Court offer in this connexion a number of examples. ( 2 ) It is in my view equally certain that Decision No 7/63 is not a legislative measure within the pure meaning of that expression, as repeated in the definition supplied by the applicants, for the very reason that it is concerned with the regulation of past events whose number can be conclusively ascertained and, unlike many legislative measures which have retroactive effect, in addition is of importance as regards the future, that is to say, in relation to matters which may occur in the future. To this extent it is not inappropriate when examining Decision No 7/63 to be reminded of the concept of a general administrative order applicable to a class of persons ascertainable at the date of its issue (“Allgemeinverfügung”) within the meaning of German administrative law, that is to say of a legal measure, which is therefore equivalent to an administrative measure, because its sole purpose is to regulate a fixed number of events in the past (cf. Forsthoff, Lehrbuch des Verwaltungsrechtes, Vol I, 8th Edition, page 184). It appears to me nevertheless wrong to draw firm conclusions for determining this case from this first impression. In my opinion the applicants make a mistake to the extent that they do not correctly understand the function of Decision No 7/63. It is not in fact the task of Decision No 7/63 to regulate directly and exhaustively the legal fate of each undertaking consuming scrap. That the decision to liquidate the scheme could be in this form is indeed conceivable, that is to say, the High Authority could in a single decision corresponding in that case to a winding-up resolution under commercial law, bring the entire equalization scheme to an end by establishing the credits and debits of each undertaking. However it is clear not only from the arguments of the High Authority but also from the contested measures themselves that this stage of the liquidation has not yet been reached. The High Authority has stated that it does not have accurate information of all the equalization cases, and in particular it does not yet know definitely which undertakings and what amounts of scrap have to be considered. As we know, a whole series of cases have been brought to decide whether scrap from certain sources is to be included in equalization; in addition the correctness of the amount of scrap declared is disputed. Therefore in Decision No 7/63 only a further step towards the final statement of account was possible. For this purpose the High Authority had to base itself on the known, and in part disputed, values and at least establish a provisional rate for contributions, which is now to be applied in making out the final statements of account. This is explained in the tables annexed to Decision No 7/63. It would however be wrong to infer from them that the Decision itself is intended to be the last word on the quantities of scrap subject to equalization. According to the High Authority any points in dispute were rather meant to be settled during the administrative procedure when Decision No 7/63 was actually applied. This administrative procedure was initiated with the letters of 8 April 1963. It might happen during the course of this procedure — and there are well known examples of this — that the High Authority does not confirm the figures mentioned in the letters of 8 April 1963, because it finds that the objections of the undertakings concerned are convincing. In any case when undertakings make objections the only legally binding way of applying Decision No 7/63 is an individual enforceable decision made by the High Authority itself acting as a body and not by one of its departments as happened in the case of the letters of 8 April 1963. That this course of procedure not only corresponds with the intention of the High Authority but also with an objective rule laid down beforehand emerges from the various announcements of the High Authority. Article 5 of Decision No 7/63 shows that this Decision does not go so far as to lay down a basis for assessment which is binding, otherwise there would not be in this provision the words: “The basis for the assessment of the contributions shall be the declarations of individual undertakings, which shall be corrected according to the stage for the time being reached in evaluating the results of checking operations”. It is to be inferred from the letters of 8 April 1963 together with the enclosed explanatory notes that they do not disclose a binding statement of the High Authority concerning the basis of assessment and the resulting contributions but only initiate an administrative procedure in which the views of all those concerned may be given. Therefore — and this is important — it is necessary to revise substantially the applicants' conception of the function of Decision No 7/63, which could itself have caused them to assume erroneously that it is a general administrative order (‘Allgemeinverfügung’). In addition the fact remains that Decision No 7/63, like such an order, clearly only refers back to the past; but with regard to these past events it does no more than determine a value equally applicable to all undertakings consuming scrap (the rate of the contributions), whereas all other legal details concerning the situation of undertakings consuming scrap are on the basis of this value to be dealt with by implementing decisions which have unequivocally individual characteristics. Having regard to this I have to ask myself whether Decision No 7/63 does not have a general character merely because it is not a purely legal provision, or whether its practical function in the liquidation of the equalization scheme for ferrous scrap enables it to be treated as the equivalent of a legislative measure. It is only possible to give a sensible answer to this question if we consider what function the difference between general and individual measures performs in the system of legal protection under the Treaty. Looked at in this way it cannot in my opinion be proved that general decisions are only to be discovered in legislative measures. I would like to recall the arguments which my colleague Lagrange and I put forward during the hearing of the first cases under the ECSC Treaty concerning the definition of general decisions. At that time Mr Lagrange ( 3 ) correctly pointed out that Article 33 must be interpreted essentially by applying the concept of ‘interest’. In this connexion I may mention from German administrative law, in which the difficulties of definition referred to are also not unknown, the view of Forsthoff that when the classification of the legal nature of a disputed measure is not free from doubt the requirements of legal protection can provide a guideline. According to Forsthoff it is necessary to ascertain whether a measure immediately impinges upon the rights of an individual or whether this only arises when the implementing measure taken pursuant to the disputed measure is issued. (Forsthoff loc. cit, p. 187.) If this proposition is applied to the ECSC Treaty, the following view appears to me to be correct; a direct right of action against such measures which apply in the same way to a large number of undertakings is denied to coal and steel undertakings. This being the case, whether we are in fact dealing with a legal rule within the strict meaning of the word is not conclusive, if it is clear that the content of a measure consists only of the regulation of common factors without taking into consideration the particular facts of individual cases, and that it is plainly intended to be applied according to the circumstances of individual undertakings by means of individual decisions. I consider such an interpretation to be tenable, because it fully satisfies the requirements of the system of legal protection under the Treaty, even if, from the point of view of strict legal theory, it makes it more difficult to distinguish between general and individual decisions. In particular there is no need to fear any encroachment upon the legal protection of individuals, because all differences can be fully dealt with when the implementing decisions are made, including those which derive directly from the general decision (objection of illegality). I therefore adhere to the opinion which I previously expressed that Decision No 7/63 is a general decision and can only be contested within the restricted limits of Article 33 of the Treaty.