(3)

Is the decision, subject always to the assumption that there is one, vitiated for infringement of the Treaty? The claim has formally been made. On this point some arguments or rather some allegations have been made in the application. The High Authority has replied thereto, summarily, but nevertheless quite clearly, setting out the reasons why it considered that the present organizations of the Ruhr did not meet the conditions of the authorizations previously granted and did not meet the legal requirements of Article 65. The applicants no longer insist on this point in the reply and there was no mention of it in the oral procedure; it may be said that they refused to discuss the matter. Should this be regarded as an admission? I rather think that the applicants wish to reserve themselves in this respect for applications which they may bring in the future against new decisions not affording them satisfaction, which confirms that the present case is purely procedural, since the two parties agree on the legal issue, that is the limits and the conditions under which the High Authority may exercise its power of decision under Article 65 (2). The conclusion is that the decision, if it is recognized as such, must be annulled for lack of competence and in addition, if this be thought necessary, for insufficient grounds, but not for infringement of the Treaty, since the Court, on the information at present on the file, does not have the necessary facts to give a ruling on a problem which is obviously very difficult as the High Authority has not yet succeeded in resolving it after trying for seven years. Thus either, as the High Authority maintains, the contested passages in the recitals to the decision and in the letter of 21 February are not in the nature of a ‘decision’, do not have any legal effect and do not adversely affect the applicants, in which case the latter have no interest and cannot ask for annulment, or, as the applicants' claim, the provisions in question are in the nature of a decision adversely affecting then and therefore needing to be annulled. But in both cases the legal position will be the same: the future decisions of the High Authority are unfettered and may run counter to the views expressed in the recitals and the letter and for their part the applicants retain the unrestricted right to bring any future decisions before the Court if necessary even though such decisions may be in accord with the present views of the High Authority, which would then be readopted and no doubt developed and the parties would have unrestricted scope for discussion. Having said this it is necessary nevertheless to offer one or other of the views. For my part I think that there is no decisive reason for regarding the contested passages as being in the nature of a decision (or recommendation) within the meaning of Article 14 of the Treaty. There would have to be such a reason, for the formal structure appears to support the view of the High Authority: Decision 17/59 is perfectly correct in form, containing, as we have seen, a title, citations, recitals and an operative part in articles. The recitals undoubtedly constitute a statement of the grounds. The letter of 21 February 1959 is, as I have said, a notification of the decision. What is the objective of this decision? To give a ruling under Article 65 (2) on the requests for extension made by the applicants. How is the High Authority giving the ruling? The answer is contained in Articles 1 and 12: the provisions of previous authorizations relating to joint selling (Article 1) and common establishments (Article 12) shall be extended until 31 March 1960, which strictly means: the requests for extension are granted for the period requested. Nevertheless the conditions of the authorization are amended in certain respects: long-term contracts and trading rules. In this respect Articles 2 to 10 lay down in detail the new conditions which are to be applied immediately and to which the agreements must immediately conform. The recitals may be divided into two distinct parts: the objective of the first is to justify the extension granted for a year in accordance with the requests, and of the second to justify the amendments made to the conditions of authorization. It is the first part which concerns us in the present case. What is the line of reasoning of the High Authority in this respect? It begins by criticizing the present system and it does so, as we have seen, in terms which would normally call for a simple refusal of authorization. Then after having pointed out in very general terms the principles to which, in its view, future rules should conform (the complete abolition of which it does not seem to contemplate), it adds that since the present difficulties of marketing in the coal industry do not allow the present system of marketing to be terminated immediately, ‘an appropriate transitional period’ during which this system must continue to be applied, is necessary. Of what duration must this period be? A year, with possible extension, for the selling agencies; a year, but no longer, for common establishments. Conclusion: it is right to grant the requests for extension such as have been made: this is done, and done exclusively, in the operative part in Articles 1 and 12. No doubt it may be observed that although the requests of the companies and their agencies have been granted, it is for very different reasons from those which the latter must have had in mind when they concluded their agreements and made their requests for authorization. The unlawfulness of grounds may be alleged in an application for annulment brought against an administrative act. But in the present case the applicants are not asking for the annulment of Articles 1 and 12 of Decision 17/59, which in my opinion they would have been entitled to, for it may well have been in their interests to have an immediate judgment on the grounds relied on by the High Authority without waiting a year when the grounds would fall for readoption in a decision which might take effect immediately. If this course had been followed the High Authority would have been bound to take a new decision of authorization with retroactive effect in accordance with the judgment of the Court. But once again the applicants have not made such claims and they have, as we have seen, declined to enter into discussion of the unlawfulness of the grounds relied on: this is not a reason artificially to treat the grounds as being of the nature of a ‘decision’ which, on this ground alone, would be obviously unlawful. The precedents relied on by the applicants, and in particular Case 8/55, are in no way relevant. No doubt the Court has on several occasions recognized the ‘decision’ within the meaning of Article 14 must not be judged only in formal terms, but an act qualified as a decision must appear as having or as being capable of having legal effects. In Case 8/55 the Court of the ECSC recognized a passage in a letter from the High Authority as being in the nature of a decision because in that passage the High Authority laid down a rule capable of being applied where appropriate: this provision was incorporated in a comprehensive decision which the Court recognized as having the character of a general decision having true legal effects and capable as a result of forming the basis of implementing measures. This is not so in the present case as we have seen: Decision 17/59 is simply an individual decision of authorization. The truth is that the High Authority has exercised two different powers concurrently in the present case: on the one hand it has exercised, as it should, the power of decision which is conferred on it by Article 65 (2) by ruling on the requests for authorization which were made to it and giving grounds, as it was legally obliged to do, for its decision which was favourable on the point with which we are concerned. But on the other hand it has sought at the same time to fulfil another task, which is not of a legal nature and in respect of which it has a duty to act ‘in close cooperation with the parties concerned’ according to the final words of Article 5 of the Treaty or to provide ‘guidance and assistance for the parties concerned’ as the second paragraph of the same article lays down. Such an attitude appears particularly desirable in the present case. It is not by simply considering on an administrative or legal basis the requests which are periodically submitted to it that the High Authority can claim to resolve this difficult problem of the marketing organizations of the Ruhr of which I have spoken. There is a need, which has existed from the beginning, for constant activity and close relations both with those concerned and with the governments. It is therefore proper that, having considered the situation and come to the conclusion that the system authorized until then appeared to need restructuring completely, it should warn those concerned sufficiently in advance. If it had not done so at the time and a year later had decided simply to refuse any extension, it would rightly have laid itself open to the most severe criticism. On the contrary the effect of the attitude adopted was to make those concerned face their responsibilities. In view of Decision 17/59 they could either agree and begin to prepare new agreements in accordance with the principles laid down or run the risk of being refused any further extension unless they then brought the issue before the Court or on the other hand immediately entered into discussion with the High Authority with regard to the future conditions of the organization: for the High Authority the period of one year had no other objective. No doubt it would have been more satisfactory for legal minds had these two very different prerogatives been exercised in their practical application in a more distinct manner. But I think it is the duty of the Court to clarify matters and to distinguish in the recitals to Decision 17/59 between what constitutes the statement of grounds of a decision taken by the High Authority in the exercise of a particular power and that which relates to the statement of policy, knowledge of which is moreover particularly useful for those concerned. This is why, while recognizing that the contrary opinion is perfectly tenable, I propose that you should consider none of the passages cited in the recitals to Decision 17/59 as being in the nature of an actionable decision and that the claims made against these passaged are not admissible. All that I have said with regard to the recitals applies in the same way to the letter of 21 February 1959.