I —

The first question to be answered is whether a decision was taken by the High Authority within the meaning of Article 14 of the Treaty and which the applicant may impugn by instituting proceedings under Article 33? No such decision was put in. As we have seen it was, according to the applicant Association, an unpublished decision. Its existence was, according to the applicant, in any case established by the letter addressed by the Vice-President of the High Authority to the Association on 7 August 1957 in reply to a request of the preceding 11 July which must be regarded as a notification enabling proceedings to be instituted before the Court in pursuance of the third paragraph of Article 33. The text of the decision itself was never made known to the applicant, despite the request made to this end to the High Authority on 22 August 1957 and which has remained unanswered. Incidentally, this proves that, contrary to the applicant's assertions, there has been no notification, but this is of little importance since it has a bearing only on the period for instituting proceedings. As tar as the applicant is concerned, therefore, there is in existence a decision the substance of which is known but the wording and date of which the applicant did not know when it lodged its application. In its reply, however, the applicant, having become aware of the correspondence exchanged between the German Government and the High Authority, which was put in by the latter, considers the decision to be contained in a letter of 21 June 1957 addressed by the President of the High Authority to the Minister for Economic Affairs of the Federal Republic and in which the High Authority's views concerning the legality of the shift bonus are expressed in clear terms. As far as the High Authority is concerned, no decision was ever taken. This view is confirmed by a letter which it sent on 7 October 1957 to the Netherlands Government which, too, had requested the High Authority ‘for a copy of the final decision’ taken regarding the underground miners' shift bonus paid by the Federal Government. The letter states … ‘Since no decision has been taken, it is impossible to provide the Netherlands Government with a copy of it’. I do not propose to go over the facts, of which you are very well aware and on which the parties are agreed. They have been established beyond any possible dispute by the exchange of correspondence on the file between the Federal Government and the High Authority and between the latter and the applicant. In this connexion it is important to differentiate between, on the one hand, the legal attitude of each of the parties concerned and, on the other, the procedure which each of these attitudes must, under the provisions of the Treaty, involve. The position in law as regards the legality of the shift bonus is threefold. In the case of the Federal Government, which is not a party, or even an intervener, in the present dispute, the question must be considered only in the light of Article 67 of the Treaty (adverse effect on conditions of competition) and not of Article 4. There is in fact no question of an aid prohibited under Article 4 and the conditions laid down in Article 67 for action by the High Authority are not satisfied. It was in a conciliatory spirit that, after 18 June 1957, the German Government, without abandoning its legal standpoint, adopted the idea of imposing a charge on the mining industry which offset the advantage which it obtained through the financing of the shift bonus out of public funds. As far as the High Authority is concerned, the shift bonus constitutes an aid prohibited under Article 4 of the Treaty unless it is offset by an equivalent and appropriate charge, borne by the mining industry, in which case there is no longer any infringement of the Treaty. Finally, in the applicant's view, the shift bonus is per se illegal and no offsetting can make it compatible with the Treaty. On the question of procedure the parties appear to be agreed: if, in the High Authority's view, the measures adopted by the German Government create a situation which conflicts with the Treaty, the High Authority can only avail itself of the procedure in Article 88. This is in fact the procedure which it set in motion. Article 88 provides as follows: ‘If the High Authority considers that a State has failed to fulfil an obligation under this Treaty, it shall record this failure in a reasoned decision after giving the State concerned the opportunity to submit its comment.’ This formal requirement was fulfilled on 2 May 1956. The time-limit set for the Federal Government to submit its comments, originally fixed as being the end of June 1956, was extended on several occasions; the question then ceased to arise while letters were exchanged with a view to reaching a mutually acceptable settlement. This brings us to the two essential documents: 1. The letter of 18 June 1957 from the Federal Minister for Economic Affairs in which, without abandoning his Government's legal standpoint concerning the validity of the shift bonus, he, as we have seen, for the first time adumbrates a solution in the form of the imposition of a countervailing charge on the mining industry, such as the discontinuance of the repayment of the employer's contributions to the miners' old-age insurance used by the mining undertakings. 2. The High Authority's letter of 21 June 1957 which confirmed this position and declared that, in its view, the contemplated discontinuance constituted an offsetting which made it possible for the shift bonus to be maintained, subject, however, to a statement listing the circumstances in which the shift bonus must continue to be regarded as illegal. Subsequently, as the Court will be aware, the exchange of correspondence continued and we do not know whether it has been concluded. There can therefore be no doubt, and the applicant recognizes this, that the procedure under Article 88 has not gone further than the first stage, which consists in giving the State concerned the opportunity to submit its comments and which, at the time when proceedings were instituted, had not resulted in a decision recording a failure; in fact no such decision has at this moment been taken. In consequence, the only remaining question is whether the High Authority's letter of 21 June 1957 constitutes a ‘decision’ within the meaning of Article 14 of the Treaty, which can be the subject of proceedings instituted under Article 33. The answer must, in my opinion, be in the negative. Not, of course, on the basis of procedural requirements. I should regard too great an insistence on formality in this case as undesirable and I generally share the opinion expressed by several authorities who have written on this subject, in particular Steindorff in ‘Die Nichtigkeitsklage im Recht der EGKS’, 1952, page 20 et seq., and Heinrich Matthies in ‘La decision de la Haute Autorité en tant qu'objet du recours en annulation’, a paper submitted to the Stresa Congress. Measures adopted by the High Authority can take a number of forms: regulation of general decisions, adopted by the Board of the High Authority and published in the Official Journal of the Community over the signature of the President stating that he is acting ‘for the High Authority’; ordinary letters addressed by the President of the High Authority in its name to their addresses, which are also published in the Journal Officiel of the Community and the contents, if not the drafting, of which must also be the subject of decision by the Board; and individual authorizations which are merely notified, etc. The terminology of the Treaty is itself not always consistent; for example, the word ‘delibération’ appears alongside the word ‘décision’. Finally, there is the delicate subject of decisions adopted by proxy or by virtue of grant of regulatory powers, for example in connexion with the Staff Regulations of Officials. I am myself inclined to share the view of Steindorff (op. cit. page 25), according to whom: ‘Apart from purely material acts which fall into the category of contestable measures it would appear that any measure taken by the High Authority which has widespread legal repercussions in the world at large and involves the exercise of power by a public authority can be the subject of proceedings for annulment. Such a measure must rank as a decision or recommendation within the meaning of the Treaty.’ The decision or recommendation must be seen to constitute the legal method laid down by the Treaty to enable the High Authority to exercise the powers conferred upon it by the Treaty. These powers must be exercised in accordance with certain procedural requirements, which act as a safeguard for those concerned and for third parties (prior notice by the Consultative Committee or by the Council, publication in certain circumstances, etc.) and they must also be exercised in accordance with the basic conditions, namely in the circumstances and within the limits laid down by the provisions of the Treaty. This applies in particular when a case, like the present one, involves a measure of intervention by the High Authority. One of its tasks is to keep a constant watch on the observance of the prohibitions laid down by the Treaty, such as those in Article 4. Another is the power conferred upon it to take economic action to change the condition of the market: it then enjoys a power of appraisal, often discretionary, which however is kept within set limits. The pre-sent case provides an example of the first of these tasks: does the situation created by the measures of the Federal Government conflict with the Treaty, particularly in the light of the prohibitions in Article 4? That is the question which should occupy the minds of the High Authority. If it considers that the outcome of this investigation is in the negative, it does nothing; perhaps it is wrong, and then the machinery of proceedings for failure to act comes into play. I shall come back to this point in a minute. If the opposite is true, it takes action with a view to bringing to an end the situation which it judges to be illegal, but it can do so only on the conditions laid down in the Treaty, namely by means of a decision or a recommendation based on an expressly conferred power and in accordance with the formal requirements laid down in a provision of the Treaty, and if this power did not exist it would be necessary to create it on the basis of the procedure laid down in the first paragraph of Article 95. Accordingly, there are really only two alternatives in such circumstances: to do nothing or to take action. From this it is clear that a mere expression of view, whether communicated by a letter, a declaration to the Common Assembly or in any other way and in which the High Authority tries to explain the reasons why such and such a situation under such and such conditions does not, in its view, conflict with the Treaty is not a ‘measure which has widespread legal repercussions in the world at large and involves the exercise of power by a public authority’ to use Steindorff's phrase; it is not a decision within the meaning of Articles 14 and 33. I cite by way of comparison with national law the two judgments of the French Conseil d'État in Merveilleux,26 May 1944, Recueil page 155, and Cerciat of 27 April 1953, Recueil page 195. Apart from this, no one can fail to appreciate the complications which a wider concept would involve. The issues which arise from the application of the Treaty are often of extreme delicacy and, as we have seen in the present case, the repercussions of any intervention measure may be grave indeed. It would be disastrous if any expression of a legal point of view by the High Authority made it possible for the question to be placed before the Court at any moment in time simply because of an unpublished letter and in respect of which, therefore, time does not begin to run. Such a threat that, at any moment, proceedings might be brought would seriously handicap negotiations, which are often delicate, nor is it necessary for the legal protection which must be given to those concerned. Before leaving this point, I should like to answer the argument which the applicant based on a passage in the judgment of the Court of Justice of the ECSC of 16 July 1956 in Case 8/55, Fédération Charbonnière de Belgique ( 1 ) in which a statement contained in a letter from the High Authority to the Belgian Government and threatening to withdraw the privilege of equalization if certain conditions were not fulfilled was held to be a decision which could be the subject of proceedings. The essential difference between that case and the present one is that, in Fedechar there was an intervention by the High Authority, which was clear both from a formal decision and from a number of passages in a letter which were in fact part and parcel of the decision and which the Court held to be also a decision, despite its informality and the legal disadvantages of such a finding. The passage in question referred to one of the methods of intervention adopted by the High Authority in exercise of the powers conferred on it by the Convention for the purposes of adjusting the equalization of Belgian coal. In the present case, on the other hand, there was, as we have seen, no intervention and therefore no positive decision.