OPINION OF MR ADVOCATE-GENERAL LAGRANGE ( 1 )

Mr President,

Members of the Court,

The two parties are agreed at least upon one point, the importance of the judgment which you are called upon to deliver in the present case regarding the legal effect of the opinions of the High Authority on the subject of investments as provided for under the fourth paragraph of Article 54 of the Treaty. Although this view of the importance of the case (or rather this opinion), does not bind the Court, I myself fully concur with it.

The arguments developed by the parties both in the written procedure and in the very remarkable submissions which you have heard are a measure of this importance. But their breadth and quality have considerably simplified my own task because it really does seem that everything has been said.

First of all I think I can dispense with any statement of the facts, which were admirably set out in the report of the Judge-Rapporteur, were the subject of detailed consideration in the pleadings, and will be fresh in your minds.

I need only recall that Application 1/57 is brought against a letter of 19 December 1956 which the applicant company regards as the opinion delivered by the High Authority pursuant to the fourth paragraph of Article 54 of the Treaty concerning the statement of investments submitted on 28 July 1956 and that, since the High Authority refused to recognize this letter of 19 December 1956 as being in the nature of an opinion given under Article 54 and, in consequence, on 27 February 1957, delivered a

second opinion which, in its view, alone is in the nature of an opinion, the company, in order to cover all eventualities, brought a second application against this opinion: this was Application 14/57.

These two applications taken together (for that is obviously how they must be dealt with) give rise to a number of alternative conclusions.

In the first place, the two parties are by implication agreed that only one of the two letters really constitutes an opinion delivered under the fourth paragraph of Article 54, so, if one of these applications is entertained, the inadmissibility of the other follows as a matter of course. This is certainly the view of the applicant which regards the conclusions in the second application as being merely an alternative to the conclusions in the first.

The conclusions in the first application are themselves alternatives, for the applicant claims

‘that the Court should:

either rule that the application for annulment is inadmissible on the ground that the contested opinion is incapable, directly or indirectly, of having any legal effect;

or, alternatively, annul the contested opinion because it infringes Articles 2, 3, 4, 5, 14, 15 and 54 of the Treaty.’

The basic issue raised in this case is a question of principle, which is whether opinions delivered by the High Authority pursuant to the fourth paragraph of Article 54 of the Treaty can or cannot be the subject of an application for annulment. I propose to deal with this question first since all the others depend on it. It is at once obvious that if the question is eventually answered in the negative, each of the two applications must in any event be dismissed as inadmissible. Furthermore, it is in my view difficult to arrive at a conclusion on the other questions raised until one has been reached on the question of principle.

Accordingly, in ascertaining whether Article 4 of Decision No 27/55 is to be interpreted as imposing an obligation on the High Authority to give its opinion within the period of three months provided for in the article, which I rather doubt, an important factor is how the opinion must be regarded: if the opinion is treated as a genuine decision which can be the subject of proceedings, I am inclined to be more strict in order to avoid leaving the undertakings in a state of uncertainty and unable to exercise their rights once work has been begun or undertaken. Similarly, the requirement of a statement of reasons may be viewed in a different light according to whether the opinion is merely a piece of advice, or at most a warning, which in itself has no legal effect, or whether it is a decision which can be the subject of proceedings; in any case this is relevant in respect only of the second opinion (if it is held to be such) because the first is certainly not a reasoned one. Even the question which of the two letters is the one which constitutes an opinion delivered pursuant to the fourth paragraph of Article 54 is, at least to a certain extent, dependent on the resolution of the issue of principle. If the contention that the opinion is tantamount to a decision is accepted it is tempting to go further and treat the first letter, which is not reasoned and has not been published, as having no legal effect whatever; if, on the other hand, the view is taken that opinions under Article 54 have no real legal effect, the temptation is stronger to regard the letter of 19 December as having the force of such an opinion at least it has the appearance of being one.

This brings us at once to the question of principle: are opinions, delivered pursuant to the fourth paragraph of Article 54, or can such opinions legally be, decisions which can be the subject of an application for annulment?

In my opinion this question is an easy one and I shall not discuss it at any great length. The machinery of proceedings for annulment in relation to the nature of acts of the High Authority which can be the subject of proceedings is clearly defined by the Treaty.

As the Court will recall, Article 14 of the Treaty distinguishes three categories of acts: decisions, recommendations and opinions. Each of these is the subject of a definition the basis of which is that (in case of a decision) it is binding in its entirety, that (in the case of a recommendation) it is binding in respect of its aims, and that (in the case of opinions) they have no binding force — on those to whom they are addressed. This means that only acts in the first two categories (decisions and recommendations) have in themselves a legal effect. This is why Article 33 and, here and there, certain other provisions relating to actions for annulment provide for them to be brought only against decisions and recommendations and not against opinions and this is why, in providing by way of exception for certain opinions which the High Authority may be called upon to deliver on investments to have a legal force of their own, the fifth paragraph of Article 54 lays down that, in those circumstances, an adverse opinion ‘shall have the force of a decision within the meaning of Article 14’ and may therefore be the subject of proceedings. Although, as a general rule, a converse argument can, in the construction of instruments, be used only with great circumspection, it is to my mind conclusive in the present case. The reason for the absence of any provision for proceedings in the fourth paragraph of Article 54 is that an opinion issued under this provision is subject to the general rule laid down in Article 14 (‘Opinions shall have no binding force’) and in consequence has no legal effect of itself. If therefore the High Authority were one day to deliver, pursuant to the fourth paragraph, an opinion which per se had legal effect and which, accordingly, was in fact a decision (having, according to the case-law of this Court, acquired this character from the contents of the act and not from its form) it would follow that the action was both admissible (since it impugned a genuine decision) and well founded (since the decision was of necessity illegal). This would also apply in the more easily imaginable case in which, after having delivered an adverse opinion under the fourth paragraph, the High Authority proceeded to attribute legal effect to such an opinion in a subsequent decision; but obviously in that case only proceedings brought against this decision would provide the opportunity for its illegality to be contended for. Such an application would, of course, have to be brought under Article 33 but this would be done under conditions in which, so far as I can see, the limitations contained in that article would not represent a serious obstacle for undertakings either because the individual character of the opinion makes it possible, so far as the undertaking in question is concerned, to regard the decision as having the same character or because the decision could be regarded as vitiated by misuse of powers in respect of the said undertaking merely on account of the circumstances in which the decision was given.

Of course, as the defendant admits, proceedings can be brought at any time against the Community under Article 40 of the Treaty for reparation for a wrongful act or omission.

Is this tantamount to saying that the opinion delivered by the High Authority pursuant to the fourth paragraph are without effect? Of course not. They are one of the means placed at the disposal of the High Authority in order to enable it to carry out the general task of information, coordination and guidance entrusted to it under Articles 46 and 54 of the Treaty. Thus, opinions passed on programmes assume the character of advice given to undertakings.

Through these opinions, the latter receive warning that their proposals are or are not or are only in part consistent with the general objectives and, clearly, they are placed in a better position to foresee the consequences, good or bad, for their business which they may have to suffer if they go on with their proposals. The explanations thus supplied to those concerned relate both to the economic forecasts which, because of its ability to see the whole picture, the High Authority is better able to make and to the actual measures which it decides to adopt under the

powers conferred upon it by the Treaty. The extent of those powers is another question which this Court will shortly be called upon to decide in other cases. I have no intention of prejudging the issue today but, for the moment, my general view is that opinions given on programmes may have the effect of drawing the attention of undertakings to the possibility of a particular use by the authority of its powers in a particular field. But this is the extent of the part played by opinions given under the fourth paragraph of Article 54 and, as was very ably argued by the High Authority in its rejoinder, each subsequently bears its own responsibility: the undertakings are free to act contrary to an adverse opinion and to carry their programme into effect, whilst the High Authority, for its part, is not bound by the opinion when, later, it comes to take a particular decision on prices, production or financial aids.

Accordingly, to take an example, if the High Authority were to lay down or amend regulations on the subject of ferrous scrap, it could not lawfully include in such regulations, as a consideration which had a legal effect, the fact that an undertaking had received an adverse opinion. On the other hand there is nothing to prevent those regulations, so far as their principle or method of application are concerned, from being based on a situation which could have already given rise to an adverse opinion. What I have just said about regulations is equally applicable to decisions, whether general or individual, taken on the basis of any provision whatever of the Treaty under which powers are granted to the High Authority.

This is exactly what happened in the present case: there is a clear factual connexion between the reasons for the adverse opinion given by the High Authority on the execution of the applicant company's programme and the effect which, in laying down penalties for increases in the consumption of ferrous scrap Decision No 2/57 has on the company. But only this latter decision is one which has legal effect and can be the subject of an application for annulment.

The applications are, in consequence, inadmissible and there in my view no need to go into the other questions raised.

In my opinion, the Court should:

— dismiss the two applications as inadmissible;

— order the Societe des Usines à Tubes de la Sarre to pay the costs.

( 1 ) Translated from the French.