(a)

Above all the High Authority wrongly requires that the publication or the law concerning prices under the Treaty. It is clear that the Treaty narrowly defines the area for integration of national economies. But it is also recognized that it is necessary in the case of certain matters to encroach upon the sphere of that the judgments in Cases 20/59 and 25/59 in my view have not expressed an opinion on this question, contrary to the assumption of the applicants. We must take care not to draw far-reaching conclusions from certain passages in the judgments taken out of their context. Indeed the problem is touched upon in the grounds of the judgment, which state the High Authority's argument that the provisions of Article 60 presuppose a publication of scales, rates and all other tariff rules of every kind applied to the carriage of coal and steel. In its subsequent reasoning the Court restricts itself to finding that a seller can be under no duty to publish transport costs as an element of his delivered price. Further, it is not the practice of the High Authority when making decisions with regard to Article 60, to provide for publication of transport costs by producers. When in conclusion the judgment states that there does not exist any organic and functional connexion between the duty to publish prices and the duty to publish transport costs, the only conclusion it draws is that: ‘Nevertheless it cannot be inferred from this (principle of discrimination) that the latter (the High Authority) is entitled to exercise a power to make decisions authorizing checks in advance.’ ( 4 ) As the judgment was given exclusively in the context of the question whether it is possible to infer from the Treaty that the High Authority has a power to make regulations in the field covered by the third paragraph of Article 70, the Court had no cause to consider the question whether the obligations concerning transport imposed upon States are to be defined by reference to communication of rates under the third paragraph of Article 70 be made available for the purposes of Community law on prices (Article 60). This objection relates to the fundamental issue in this action. To begin with I would like to emphasize sovereignty still vested in the Member States in order to safeguard partial integration, with its special rules, from external influences, with the help of exceptional powers of intervention possessed by the Community and of particular obligations imposed on Member States by the Treaty. So it was clear to all the parties concerned that the transport sector in particular is of great importance to the coal and steel market. The special provisions of Article 70, including its third paragraph which has to be interpreted in this case, are due to a recognition of this fact. If a definition of the significance of the third paragraph of Article 70 must be attempted, it is naturally in theory possible to consider it only in its immediate context, that is to say Article 70, which forms a Chapter of the Treaty on its own. It is possible to base this interpretation on the principle that in fields reserved for national jurisdictions a narrow construction of each exceptional provision is appropriate. Whether it is mandatory and correct must however be judged by its repercussions on the whole scheme of the Treaty. As regards the wording of Article 70, the High Authority and the interveners refer to the fifth paragraph, which with regard to national transport policies is not only subject to the provisions of Article 70 but generally to ‘the other provisions of the Treaty’. If Article 70 were self-sufficient, and therefore the third paragraph only operated in the framework of the prohibition of discrimination, the reservation of powers which has been mentioned would be incomprehensible. The fifth paragraph of Article 70 accordingly exposes a serious flaw in the argument of the applicants. As a result of this there can be no doubt that, in interpreting the third paragraph of Article 70, at least the fundamental principles of the Treaty which characterize the Community and its functions must be observed for it is impossible to accept that the parties to the Treaty are committed to principles and at the same time to permit government measures which can call them in question. The principles of the Treaty are set forth in Articles 2 to 5, of which the second paragraph of Article 2, Article 3 (a) (b) and (c), Article 4 (b) and (c) as well as Article 5 claim special interest in this case. Article 5, which imposes a duty on the Community to ensure the establishment, maintenance and observance of normal competitive conditions, calls for special attention. Article 60 is the vital cornerstone of the system of competition under the Treaty. In the case of prices it prohibits practices contrary to Articles 2, 3 and 4, in particular the practices of unfair competition and discrimination. In the interests of this prohibition, it provides, further, for the exact publication and observance of the price lists and conditions of sale applied within the Common Market, undertakings being to some extent free to choose the basing point and it permits departures from the published prices only if the conditions of alignment are fulfilled. It cannot be denied that this system presupposes a certain knowledge of transport costs for the calculation of individual delivered prices at the basing point and at the place of delivery and also for the calculation of the delivered prices of competing undertakings. Without such knowledge Article 60 is impracticable and the price system of the Treaty cannot function. In particular the alignment of prices which according to the judgment of the Court in Case 1/54 (Rec. 1954-55) is ‘a right granted to undertakings by the Treaty, not a mere possibility’, can only be accurately and therefore correctly carried out if the transport costs are known. However if it is shown that publicity for rates is necessary for the efficient functioning of the Common Market, it must also be assumed that the authors of the Treaty had this aim in mind when they incorporated into the third paragraph of Article 70 the following obligation on the part of States: ‘The scales, rates and all other tariff rules applied to the carriage of coal and steel within each Member State and between Member States shall be published or brought to the knowledge of the High Authority’. It was their intention to ensure the transparency of the transport market by imposing legal duties on States. The concealment of special tariffs advocated by the Netherlands Government is in any case incompatible with this interpretation. How publicity for rates is to be guaranteed in individual cases cannot be inferred from the Recommendation of the High Authority which merely specifies the aims. Neither does the Court have to deal with this problem. In particular the question whether the Treaty provides for the individual communication of each contract of carriage and the communication of its terms to the interested parties, that is transport users, can remain open. It cannot be denied that such a procedure could confront the governments and the High Authority with insoluble difficulties and, what is more, it would be of only slight value to transport users. A summary of individual data in the form of market price lists either by the governments or by the High Authority could therefore well be considered for the effecting in practical terms of publicity for transport rates. In any case the assumption that the High Authority is endeavouring to impose a general tariff classification is incorrect. Even if the interveners consider that it is useful or even necessary, it must nevertheless be stated that no such aim can be inferred from the Recommendation. To this extent the arguments of the Italian Government, based on certain publications of an adviser to the High Authority which are unrelated to the contested Recommendation, are misconceived. After these comments on questions of principle some of the special arguments must be considered. There is the question whether there can be sufficient publication of prices without the cooperation of the state. We have been credibly informed during the proceedings by the interveners that this is not the case at least in certain parts of the Common Market, because the information is only supplied when there is a demand for precisely specified transport services in individual cases. And even if such objective difficulties are disregarded and it is assumed that, with the aid of an effective information service, certain knowledge concerning rates and conditions of carriage could be obtained from reliable sources even in private undertakings, which certainly could not be achieved without effort and considerable expense, this possibility certainly does not exist for small and medium-sized undertakings. A decision not to call for cooperation from the States to ensure transparency of the market would thus of necessity entail discrimination in the market on the one hand between undertakings which have their registered offices in Member States which favour publicity and undertakings which operate in Member States having no publicity for rates and, on the other hand, according to the possibility of obtaining the information mentioned above, between large and small undertakings. That is however a result which is incompatible with the principles of the Treaty. However, the legal discussion, with which we are alone concerned in this case, the contention that hitherto, even though there has not been complete publicity in the transport market, the functioning of the Common Market has scarcely been adversely affected to any extent worth mentioning, must not lead to a false conclusion. The representative of the interveners emphasized in striking terms that the existence of a legal duty could not be made dependent upon the extent to which it is observed. If it is denied that Member States have a duty to ensure publicity for transport charges a development must be expected, the end result of which will be the domination of the transport market by secrecy. Apart from the fact that this development would be diametrically opposed to the efforts made within the framework of the transport policy of the EEC, no one can deny that it would make the implementation of the essential principles of the ECSC unattainable. It thus seems to be proved that the national cooperation required by the High Authority in the transport sector is indispensable for carrying out the provisions of Articles 5 and 60 which are so fundamental and significant for the Common Market. It is one of the functions of the third paragraph of Article 70 to ensure this cooperation. After all this, there remain for consideration two objections of the Netherlands Government. It is of the opinion that the interpretation put forward by the High Authority eliminates in reality the alternative provided in the third paragraph of Article 70, because in each case provision is made for a communication of rates to the undertakings. The third paragraph of Article 70 leaves Member States the choice between publication of tariffs and communication of rates for exclusive use by the High Authority. In my opinion this is not a valid conclusion. There is only a genuine alternative when the available possibilities are approximately equal in their effects, and not on the other hand when there is a confrontation between such extreme cases as the publication of tariffs and concealment of communicated rates. In the view of the High Authority there is such a genuine alternative, because for those concerned and interested (transport undertakings and transport users) there is all the difference between a governmental or private fixing of tariffs on the one hand and on the other hand the possibility of negotiating rates in individual cases subject to the obligation to communicate them to the High Authority. The second objection of the Netherlands Government is a submission that the measures requested by the High Authority lead to a fundamental transformation of the Netherlands transport economy, the distinguishing characteristic of which is the principle of competition. This objection is also misconceived. It is in principle a criticism of the Treaty and of the spirit of the Treaty. Apart from the fifth paragraph of Article 70, according to which national transport policy must accept restrictions in the interest of the Community, it is not understood to what extent competition in the transport sector would be eliminated by publication of rates. Competition is also an essential necessity for the Treaty and the Community. As is shown by Article 60 the obligation to create transparency of the market does not exclude the achievement of genuine competition.