Judgment of the Court of 2 June 1965. - Société rhénane d'exploitation et de manutention (Sorema) v High Authority of the ECSC. - Case 36-64.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . MEASURES ADOPTED BY AN INSTITUTION - DECISIONS OF THE HIGH AUTHORITY - STATEMENT OF REASONS - CRITERIA

( ECSC TREATY, ARTICLE 15 )

2 . CARTELS - AUTHORIZATION - NON-RENEWAL - POWERS OF THE HIGH AUTHORITY

( ECSC TREATY, ARTICLE 65 )

3 . CARTELS - AUTHORIZATION - REVOCATION

( ECSC TREATY, ARTICLE 65 )

Summary

1 . THE STATEMENT OF REASONS FOR A DECISION, AS IT EMERGES FROM THE DECISION ITSELF AND FROM THE STATEMENTS OF REASONS, WITH WHICH IT IS CLOSELY CONNECTED, IN PREVIOUS DECISIONS, IS SUFFICIENT WHERE ON THE ONE HAND IT ENABLES THOSE CONCERNED TO KNOW THE ESSENTIAL CONSIDERATIONS OF FACT AND OF LAW UPON WHICH THE HIGH AUTHORITY RELIES, AND ON THE OTHER HAND TO ENABLE THE COURT TO EXERCISE THE JUDICIAL REVIEW ENTRUSTED TO IT BY THE TREATY .

CF . PARA . 1 OF SUMMARY IN CASE 1/63, ( 1963 ) ECR 303 .

2 . THE HIGH AUTHORITY MAY REFUSE TO RENEW THE AUTHORIZATION OF AN AGREEMENT IF IT FINDS THAT THE REQUIREMENTS OF SUBPARAGRAPHS ( A ) TO ( C ) OF ARTICLE 65(2 ) ARE NO LONGER MET .

CF . PARA . 3 OF SUMMARY IN CASE 67/63, ( 1964 ) ECR 297 .

3 . THE HIGH AUTHORITY MUST REVOKE THE AUTHORIZATION OF AN AGREEMENT IN PARTICULAR IF IT FINDS THAT THE ACTUAL RESULTS OF THE AGREEMENT OR OF ITS APPLICATION ARE CONTRARY TO THE REQUIREMENTS FOR ITS AUTHORIZATION .

CF . PARA . 4 OF SUMMARY IN CASE 67/63, ( 1964 ) ECR 297 .

Parties

IN CASE 36/64

SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ( SOREMA ), A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE IN STRASBOURG, REPRESENTED BY ITS MANAGERS, ASSISTED BY ROMAIN GARNON OF THE STRASBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CHARLES TURK, ADVOCATE, 6 RUE BRASSEUR,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISERS, HEINRICH MATTHIES AND GERARD OLIVIER, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR ANNULMENT OF DECISION NO 15/64 OF THE HIGH AUTHORITY OF 15 JULY 1964, CONCERNING THE PARTICIPATION OF THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION, STRASBOURG, IN THE JOINT FUEL-BUYING AGREEMENTS BETWEEN THE WHOLESALE COAL MERCHANTS OPERATING IN SOUTH GERMANY THROUGH THE AGENCY OF THE OBERRHEINISCHE KOHLEUNION, BETTAG, PUTTON AND CO ., MANNHEIM;

Grounds

P.336

I - AS TO ADMISSIBILITY

THE DEFENDANT DOES NOT DISPUTE THE ADMISSIBILITY OF THE PRESENT APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THE APPLICATION IS THEREFORE ADMISSIBLE .

II - ON THE SUBSTANCE OF THE CASE

1 . AS TO THE FIRST SUBMISSION

THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION IS VITIATED BY MISUSE OF POWERS AND CONTRAVENES ARTICLE 65(2 ) OF THE TREATY IN THAT THE HIGH AUTHORITY, EXERCISING A PREROGATIVE WHICH IT CONFERRED ILLEGALLY UPON ITSELF BY A PREVIOUS DECISION, DECIDED WITHIN THE CONTESTED DECISION A POSTERIORI THE DURATION AND THE CONDITIONS OF THE AUTHORIZATION OF THE APPLICANT'S PARTICIPATION IN OKU .

ARTICLE 2(2 ) OF DECISION NO 31/59 OF 27 MAY 1959 LAID DOWN THAT THE AUTHORIZATION FOR THE PARTICIPATION OF SOREMA IN OKU SHOULD BE VALID UNTIL 31 MARCH 1960 . THE APPLICANT IS THUS WRONG IN MAINTANING THAT THE HIGH AUTHORITY RESERVED TO ITSELF IN THAT DECISION THE RIGHT TO DECIDE BY A LATER DECISION THE DATE ON WHICH IT SHOULD LEAVE OKU .

ON THE OTHER HAND DECISION NO 3/62 OF 28 MARCH 1962 AUTHORIZED THE PARTICIPATION OF SOREMA IN OKU FOR A TRANSITIONAL PERIOD THE TIME-LIMIT FOR WHICH WAS TO BE FIXED BY A LATER DECISION OF THE HIGH AUTHORITY . HOWEVER, DECISION NO 3/62 WAS NOT CONTESTED IN GOOD TIME AND, AS IT IS AN INDIVIDUAL DECISION, IT CANNOT BE DISPUTED BY MEANS OF AN OBJECTION EITHER .

P.337

FURTHER, THE COURT IN ITS JUDGMENT OF 19 MARCH 1964 IN CASE 67/63 BETWEEN THE SAME PARTIES HELD THAT BY DECISION NO 31/59 AND BY SUBSEQUENT DECISIONS THE HIGH AUTHORITY HAD PURSUANT TO THE THIRD SUBPARAGRAPH OF ARTICLE 65(2 ) OF THE TREATY AUTHORIZED THE PARTICIPATION OF SOREMA IN OKU ON SPECIFIED CONDITIONS AND FOR A LIMITED PERIOD . THE DECISION CONTESTED IN THE PRESENT APPLICATION AMOUNTS EITHER TO A DECISION UNDER THE THIRD SUBPARAGRAPH OF ARTICLE 65(2 ) TO REFUSE TO RENEW THE AUTHORIZATION PREVIOUSLY GRANTED OR TO A DECISION UNDER THE FOURTH SUBPARAGRAPH TO REVOKE IT . IT IS NOT CONFINED TO EXERCISING THE POWER WHICH THE HIGH AUTHORITY HAD RESERVED TO ITSELF BY DECISION NO 3/62 TO FIX THE END OF THE TRANSITIONAL PERIOD, BUT APPLIES ARTICLE 65(2 ) OF THE TREATY .

THE FIRST SUBMISSION IS UNFOUNDED .

2 . AS TO THE SECOND SUBMISSION

THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION WRONGLY ASSUMES THAT ITS CONTINUATION IN OKU WOULD CONSTITUTE A DISCRIMINATION IN RESPECT OF MERCHANTS OR ASSOCIATIONS WHICH, BECAUSE OF THE FACT THAT THEY ARE NOT CARRYING OUT SALES ACTIVITIES IN SOUTHERN GERMANY EITHER, ARE EXCLUDED FROM IT .

THE AGREEMENT MADE IN APRIL 1956 BY THE MEMBERS OF OKU HAD AS ITS OBJECT THE JOINT BUYING, IN THE COALFIELDS OF AACHEN, THE RUHR, THE SAAR AND LORRAINE OR THROUGH THEIR SELLING AGENCIES, OF FUEL INTENDED FOR RESALE IN SOUTHERN GERMANY . IT WAS WITH THIS OBJECT THAT THE AGREEMENT WAS AUTHORIZED BY DECISION NO 19/57 AND SUBSEQUENT DECISIONS OF THE HIGH AUTHORITY .

ALTHOUGH BY ITS DECISION NO 31/59 THE HIGH AUTHORITY AS A TRANSITIONAL MEASURE AUTHORIZED PARTICIPATION IN THE SAID AGREEMENT BY SOREMA ITSELF AS AN ASSOCIATION OF UNDERTAKINGS, IT DID NOT HOWEVER INTEND TO EXEMPT THE MERCHANTS REPRESENTED BY THE APPLICANT FROM THE FUNDAMENTAL CONDITIONS WHICH RESULTS FROM THE VERY OBJECT OF THE AGREEMENT, NAMELY THAT OF CARRYING ON SALES ACTIVITIES IN SOUTHERN GERMANY . THE APPLICANT DID NOT CONTEST THE LEGALITY OF THIS CONDITION IN GOOD TIME . IT IS NOT DISPUTED THAT THE APPLICANT CARRIES OUT NO SALES ACTIVITY IN SOUTHERN GERMANY . IN THIS SITUATION ITS CONTINUANCE IN OKU WOULD HAVE THE CONSEQUENCE OF FAVOURING IT AS COMPARED WITH MERCHANTS WHO, THOUGH NOT HAVING ANY SALES ACTIVITY IN SOUTHERN GERMANY, ARE IN AN IDENTICAL SITUATION AND ARE HOWEVER EXCLUDED FROM OKU .

THE APPLICANT MAINTAINS FURTHER THAT, EVEN IF ITS PARTICIPATION IN OKU CONSTITUTES DISCRIMINATION, THE CONTESTED DECISION WRONGLY ASSUMED THAT IN THE PRESENT CASE IT WAS A MATTER OF DISCRIMINATION PROHIBITED BY THE TREATY, IN PARTICULAR BY ARTICLE 4(B ).

P.338

AN EXAMINATION OF THE BASIS OF THESE COMPLAINTS APPEARS UNNECESSARY, SINCE THEY ARE NOT CAPABLE OF INVALIDATING THE CONTESTED DECISION . IN FACT BY THE WORDS ' PAR AILLEURS ' (' FURTHERMORE '), THE FOURTEENTH RECITAL OF THE SAID DECISION, IN RESPECT OF WHICH THESE COMPLAINTS ARE MADE, CLEARLY INDICATES THAT IT MERELY SUPPLEMENTS THE PRECEDING RECITAL . FURTHER; THERE IS NOTHING TO SHOW THAT THE HIGH AUTHORITY REGARDED THE DISCRIMINATION REFERRED TO AS FALLING UNDER THE PROHIBITION OF ARTICLE 4(B ) OF THE TREATY AND THAT IT WOULD HAVE TAKEN A DIFFERENT DECISION IF SUCH HAD NOT BEEN THE CASE .

THE SECOND SUBMISSION IS THUS UNFOUNDED .

3 . AS TO THE THIRD SUBMISSION

ACCORDING TO THE APPLICANT THE CONTESTED DECISION DOES NOT GIVE SUFFICIENT REASONS TO EXPLAIN HOW ITS PARTICIPATION IN THE OKU JOINT-BUYING AGREEMENT RESTRICTS OR DISTORTS NORMAL COMPETITION .

THE CONTESTED DECISION IN THIS RESPECT CONTAINS THE FOLLOWING REASONS :

' WHEREAS THE AGREEMENTS CONCERNING JOINT BUYING, MADE BY THE WHOLESALE COAL MERCHANTS OF SOUTHERN GERMANY BELONGING TO OKU FALL UNDER THE BASIC PROHIBITION OF ARTICLE 65(1 ) AS RESTRICTING COMPETITION BETWEEN THESE WHOLESALE MERCHANTS IN THE PURCHASE OF THEIR PRODUCTS; AND WHEREAS THIS PROHIBITION IS EQUALLY VALID IN RESPECT OF SOREMA WHICH IN ACCORDANCE WITH THE FINDINGS OF THE COURT OF JUSTICE GROUPS TOGETHER AS AN ASSOCIATION WITHIN THE MEANING OF ARTICLE 48 OF THE TREATY UNDERTAKINGS WHICH, BEING WHOLESALE COAL MERCHANTS, COME WITHIN THE PROVISIONS OF ARTICLE 65(1 ) '.

FURTHER, IT IS NECESSARY IN THE PRESENT CASE TO READ THIS STATEMENT OF REASONS IN THE LIGHT OF THE STATEMENTS OF REASONS, WITH WHICH IT IS CLEARLY CONNECTED, IN PREVIOUS DECISIONS ADOPTED IN RESPECT OF OKU AND IN PARTICULAR OF THE APPLICANT . ALL OF THESE REASONS ARE SUFFICIENT ON THE ONE HAND TO ENABLE THE APPLICANT TO KNOW THE ESSENTIAL CONSIDERATIONS OF FACT AND OF LAW ON WHICH THE HIGH AUTHORITY RELIES AND ON THE OTHER HAND TO ENABLE THE COURT, ON THIS POINT OF THE CONTESTED DECISION, TO EXERCISE THE JUDICIAL REVIEW ENTRUSTED TO IT BY THE TREATY .

THE APPLICANT MAINTAINS FURTHER THAT THE OKU JOINT - BUYING AGREEMENT WAS MADE PRIOR TO THE TREATY AND CANNOT THUS BE CONTRARY TO IT .

IT IS SUFFICIENT IN THIS RESPECT TO SAY THAT IN APRIL 1956, BY A DECISION OF ITS MEMBERS, OKU WAS CONVERTED FROM A SELLING ORGANIZATION INTO A JOINT - BUYING ORGANIZATION AND WAS, AS SUCH, AUTHORIZED BY DECISION NO 19/57 OF THE HIGH AUTHORITY . THE JOINT-BUYING AGREEMENT IN QUESTION IN THE PRESENT CASE WAS THUS NOT MADE PRIOR TO THE ENTRY INTO FORCE OF THE TREATY .

P.339

THE THIRD SUBMISSION IS THUS UNFOUNDED .

4 . AS TO THE FOURTH AND FIFTH SUBMISSIONS

THE CONTESTED DECISION BY WHICH THE HIGH AUTHORITY TERMINATED THE AUTHORIZATION FOR THE APPLICANT TO PARTICIPATE IN THE OKU JOINT-BUYING AGREEMENT MUST BE REGARDED EITHER AS A DECISION TO REFUSE A RENEWAL OR AS A DECISION OF REVOCATION . IN EITHER CASE THE APPLICANT COMPLAINS THAT IT CONTAINS AN INSUFFICIENT STATEMENT OF REASONS .

THE HIGH AUTHORITY MAY REFUSE TO RENEW THE AUTHORIZATION IF IT FINDS THAT THE REQUIREMENTS OF SUBPARAGRAPH ( A ) TO ( C ) OF ARTICLE 65(2 ) ARE NO LONGER MET . THE CONTESTED DECISION, IN ITS RECITALS, STATES IN THIS RESPECT THAT THE OBJECT AND AIM OF THE AGREEMENT ARE THE JOINT BUYING IN CERTAIN COAL - FIELDS OF FUELS INTENDED FOR RE-SALE IN SOUTHERN GERMANY AND THAT THE PARTICIPATION OF THE APPLICANT, WHICH IS NOT CAPABLE OF CONTRIBUTING NOTICEABLY TO IMPROVING THE DISTRIBUTION OF THESE FUELS, EITHER BY ITSELF OR BY THE WHOLESALE COAL MERCHANTS WHICH BELONG TO IT, IS THUS NOT JUSTIFIED . IT POINTS OUT FURTHER THAT THE PARTICIPATION OF THE APPLICANT AS A MEMBER OF OKU IN THE DISCUSSIONS AND DECISIONS OF THE WHOLESALE COAL MERCHANTS OF SOUTHERN GERMANY CONCERNING THE BUYING OF FUELS INTENDED FOR THE MARKETS OF SOUTHERN GERMANY IS NOT ESSENTIAL FOR THE IMPROVEMENT OF DISTRIBUTION IN THIS AREA AND HAS MORE RESTRICTIVE EFFECTS THAN THE OBJECT OF THE AGREEMENT REQUIRES .

THE HIGH AUTHORITY MUST REVOKE THE AUTHORIZATION IN PARTICULAR IF IT FINDS THAT THE ACTUAL RESULTS OF THE AGREEMENT OR OF ITS APPLICATION ARE CONTRARY TO THE REQUIREMENTS FOR ITS AUTHORIZATION . DECISION NO 31/59 WHICH AUTHORIZED THE COLLECTIVE PARTICIPATION OF SOREMA AS AN ASSOCIATION OF UNDERTAKINGS IN THE JOINT-BUYING AGREEMENT OF OKU DID NOT ALTER THE ACTUAL OBJECT OF THE AUTHORIZED AGREEMENT . THE CONTESTED DECISION IS THEREFORE RIGHT IN FINDING, BY REFERENCE TO DECISION NO 3/62, THAT THE CONDITIONS MENTIONED IN PARTICULAR IN FAVOUR OF THE FRENCH WHOLESALE COAL TRADE IN RESPECT OF SUPPLIES FROM THE RUHR COAL-SELLING AGENCIES HAVE HAD FAVOURABLE EFFECTS ON THE FRENCH WHOLESALE COAL TRADE AS A WHOLE IN THE COMMON MARKET, BUT THAT THE MEMBERS OF SOREMA HAVE REMAINED INACTIVE IN SOUTHERN GERMANY AND THAT CONSEQUENTLY THE ACTUAL EFFECTS OF THE AGREEMENTS ARE CONTRARY TO THE REQUIREMENTS FOR THEIR AUTHORIZATION .

THE FOURTH AND FIFTH SUBMISSIONS ARE THUS UNFOUNDED .

Decision on costs

UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE OF THE COURT, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . IN THE PRESENT CASE THE APPLICANT, HAVING FAILED IN ITS SUBMISSIONS, MUST BEAR THE COSTS OF THE PROCEEDINGS .

THE ORDER OF THE PRESIDENT OF THE COURT DATED 17 SEPTEMBER 1964 RESERVED THE COSTS OF THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE . THE APPLICANT HAVING FAILED IN THAT APPLICATION MUST BEAR THE COSTS OF THOSE PROCEEDINGS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE SOCIETE RHENANE D' EXPLOITATION ET DE MANUTENTION ( SOREMA ) TO BEAR THE COSTS OF THE PROCEEDINGS INCLUDING THOSE OF THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE .