Judgment of the Court of 5 December 1963. - Koninklijke Nederlandsche Hoogovens en Staalfabrieken NV v High Authority of the European Coal and Steel Community. - Case 28-63.



European Court reports

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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MEASURES ADOPTED BY INSTITUTIONS OF THE COMMUNITY - DECISIONS OF THE HIGH AUTHORITY - CONSTITUENT ELEMENTS

( ECSC TREATY, ARTICLE 14 )

Summary

1 . SEE SUMMARY IN JOINED CASES 23, 24 AND 52/63 PARA . 1 .

( A ) A MEASURE WHICH SATISFIES THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY RETAINS THE CHARACTER OF A DECISION EVEN THOUGH IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM LAID DOWN BY THE HIGH AUTHORITY FOR THE IDENTIFICATION OF ITS DECISIONS .

( B ) THE DECISION MUST APPEAR AS A MEASURE ADOPTED BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS, CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE LATTER GIVES ITS FINAL RULING IN A FORM WHICH ENABLES THE MEASURE IN QUESTION TO BE IDENTIFIED AS A DECISION .

ANY MEASURE, THEREFORE, WHICH, IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND WHICH IS NOT AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .

*/ EN.663J0023 /*.

Parties

IN CASE 28/63

KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N.V ., HAVING ITS REGISTERED OFFICE AT IJMUIDEN, NETHERLANDS, REPRESENTED BY ITS MANAGER P.R . BENTZ VAN DEN BERG, ASSISTED BY J . MERTENS DE WILMARS, ADVOCATE, ANTWERP, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER B . VAN DER ESCH, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

IN THE MATTER ( AT THE PRESENT STAGE OF THE PROCEEDINGS ) OF THE ADMISSIBILITY OF THE APPLICATION MADE BY THE COMPANY KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N.V . FOR THE ANNULMENT :

- PRIMARILY, OF THE DECISION CONTAINED IN THE LETTER DATED 8 APRIL 1963 OF THE HIGH AUTHORITY REQUESTING THE APPLICANT TO PAY BEFORE 31 MAY 1963 THE SUM OF 8 671 348.34 FL . BY WAY OF CONTRIBUTIONS TO THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH;

- SECONDARILY, OF ARTICLE 6 OF DECISION N . 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 ON THE COMPILATION OF STATEMENTS OF ACCOUNT IN CONNECTION WITH THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH ( OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 6 APRIL 1963, PP . 1091/63 ET SEQ .);

Grounds

IT IS ESTABLISHED THAT ON 8 APRIL 1963 THE RELEVANT DEPARTMENTS OF THE HIGH AUTHORITY SENT TO THE APPLICANT UNDERTAKING A REGISTERED LETTER WITH FORM OF ACKNOWLEDGEMENT OF RECEIPT . THE LETTER STATED THAT THE APPLICANT WAS REQUESTED TO PAY BY 31 MAY 1963 AT THE LATEST THE SUM OF 8 671 348.34 FL . BY WAY OF CONTRIBUTION TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME .

FEARING THAT THE CONTENT OF THESE LETTERS WOULD BE REGARDED AS A DECISION WITHIN THE MEANING OF THE ECSC TREATY, THE RECIPIENT UNDERTAKING MADE AN APPLICATION FOR ANNULMENT OF THE ALLEGED DECISION AND, SECONDARILY, FOR THE ANNULMENT OF ARTICLE 6 OF THE DECISION OF THE HIGH AUTHORITY N . 7/63 . THE HIGH AUTHORITY HAS SUBMITTED THAT THE APPLICATION IS INADMISSIBLE .

I - ON THE ADMISSIBILITY OF THE APPLICATION

IN SUPPORT OF THIS OBJECTION ON THE GROUND OF INADMISSIBILITY THE HIGH AUTHORITY POINTS OUT THAT THE LETTER OF 8 APRIL 1963 DOES NOT CONSTITUTE A DECISION AND CANNOT THEREFORE BE MADE THE SUBJECT OF AN APPLICATION . THE APPLICANT UNDERTAKING HAS LEFT THIS MATTER TO THE DISCRETION OF THE COURT .

IT IS APPROPRIATE TO INQUIRE WHETHER THE LETTER CONSTITUTES A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY . ACCORDING TO THE PROVISIONS OF THIS ARTICLE, THE HIGH AUTHORITY 'SHALL...TAKE' DECISIONS WHICH 'SHALL BE BINDING IN THEIR ENTIRETY '.

THE HIGH AUTHORITY IN ITS DECISION N . 22/60 HAS CONSIDERED IT NECESSARY TO ESTABLISH 'AS A MATTER OF OBLIGATION' THE FORM OF THESE DECISIONS AND HAS LAID DOWN THE CONDITIONS WITH WHICH IT UNDERTAKES TO MAKE SUCH MEASURES COMPLY .

IN A SUBSEQUENT 'COMMUNICATION', ( OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES, PP . 1250/60 ), THE HIGH AUTHORITY HAS PRESCRIBED THAT IF THESE FORMALITIES ARE NOT CARRIED OUT, THEN THE PARTIES CONCERNED MAY 'INFER THAT THE MEASURES IN QUESTION DO NOT ENTAIL ANY LEGAL OBLIGATIONS '.

ALTHOUGH IT IS DESIRABLE TO ENSURE OBSERVANCE OF THE REQUIREMENTS PRESCRIBED IN THE APPROPRIATE MANNER BY THE HIGH AUTHORITY, WHICH ENABLE GOVERNMENTS, INSTITUTIONS AND UNDERTAKINGS TO IDENTIFY DECISIONS FROM THEIR ACTUAL FORM, IT DOES NOT FOLLOW THAT A MEASURE SHOULD NOT BE CONSIDERED A DECISION, MERELY BECAUSE IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM, IF THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY ARE OTHERWISE SATISFIED .

ACCORDING TO ARTICLE 14, DECISIONS SHALL BE TAKEN BY THE HIGH AUTHORITY, THAT IS TO SAY BY ITS MEMBERS SITTING AS A BODY . AS SUCH DECISIONS ARE 'BINDING IN THEIR ENTIRETY', HOWEVER, THEY MUST SHOW THAT THEY ARE INTENDED TO HAVE LEGAL EFFECTS UPON THOSE TO WHOM THEY ARE ADDRESSED .

IT FOLLOWS FROM THE NATURAL MEANING OF THE WORD THAT A DECISION MARKS THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, AND IS THUS THE DEFINITIVE EXPRESSION OF ITS INTENTIONS .

FINALLY, IT IS NECESSARY FOR THE LEGAL PROTECTION OF ALL THOSE AFFECTED THAT THEY SHOULD BE ABLE TO IDENTIFY BY ITS VERY FORM A DECISION WHICH INVOLVES SUCH SERIOUS LEGAL CONSEQUENCES, IN PARTICULAR A COMPULSORY TIME-LIMIT FOR EXERCISING THE RIGHT OF INSTITUTING PROCEEDINGS AGAINST IT . IN PARTICULAR, FOR A MEASURE TO AMOUNT TO A DECISION, THOSE TO WHOM IT IS ADDRESSED MUST BE ENABLED TO RECOGNIZE CLEARLY THAT THEY ARE DEALING WITH SUCH A MEASURE .

IT FOLLOWS THEREFORE FROM ALL THESE CONSIDERATIONS THAT A DECISION MUST APPEAR AS A MEASURE TAKEN BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS AND CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE HIGH AUTHORITY GIVES ITS FINAL RULING IN A FORM FROM WHICH ITS NATURE CAN BE IDENTIFIED .

ANY MEASURE, THEREFORE, WHICH IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .

IN THE PRESENT CASE, IN SPITE OF THE APPARENTLY PEREMPTORY NATURE OF THE LETTER IN DISPUTE, IT CANNOT BE CONSIDERED AS A DECISION WITHIN THE MEANING OF THE TREATY . IN FACT, THERE IS NOTHING TO INDICATE THAT THE HIGH AUTHORITY, SITTING AS A BODY, HAD DISCUSSED AND RESOLVED UPON IT . THE APPLICANT WAS MERELY 'REQUESTED' TO MAKE PAYMENT, AND, ACCORDING TO THE EXPLANATORY NOTE' ENCLOSED WITH THE CONTESTED LETTER, TO SUBMIT ANY OBSERVATIONS IT MIGHT HAVE . CONSEQUENTLY THE APPLICATION IS INADMISSIBLE .

THE SUBSIDIARY APPLICATION MADE BY THE APPLICANT COMPANY AGAINST ARTICLE 6 OF DECISION N . 7/63 OF 3 APRIL 1963 MUST BE TREATED IN THE SAME WAY AS THE PRINCIPAL APPLICATION AND ALSO BE DECLARED INADMISSIBLE .

Decision on costs

UNDER THE FIRST PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS . THE PEREMPTORY TONE OF THE LETTER INVOLVED IN THESE PROCEEDINGS, ACCENTUATED BY THE MODE OF DESPATCH, AND THE SETTING OF A TIME - LIMIT FOR PAYMENT, WERE CAPABLE IN THEMSELVES OF CREATING UNCERTAINTY IN THE APPLICANT'S MIND ABOUT THE NATURE OF THE SAID LETTER . THE HIGH AUTHORITY, HAVING BY ITS OWN CONDUCT INDUCED THE APPLICANT TO INSTITUTE PROCEEDINGS IN ORDER TO SAFEGUARD ITS RIGHTS, MUST BEAR THE GREATER PART OF THE COSTS . IT IS APPROPRIATE THAT THESE SHOULD BE CONSOLIDATED AND THAT THE HIGH AUTHORITY SHOULD BEAR THREE-QUARTERS THEREOF AND THE APPLICANT ONE-QUARTER .

Operative part

THE COURT

HEREBY :

1 . RULES THAT THE APPLICATION SUBMITTED BY KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N.V . IS INADMISSIBLE;

2 . ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO BEAR THREE - QUARTERS OF THE COSTS AND THE APPLICANT TO BEAR ONE-QUARTER .