2.

On the other hand, the question who may bring proceedings in the case of a positive decision is much more difficult and here the parties do not agree. In this respect, a further distinction must be made as to whether the action relates to the recognition of the situation set out in the first paragaph, that is, the existence of disturbances and the causal link between these disturbances and action or failure to act on the part of the High Authority or whether it relates to measures adopted by the High Authority to put an end to the situation. (a) In the first situation I believe that the right to institute proceedings is open to all Member States of the Community, not only the State suffering the disturbances, but not to undertakings or associations of undertakings. As we have seen, it is a question of arbitration between the fundamental economic interests of a Member State and the essential interests of the Community. It is my opinion that each Member State has the capacity to defend the general interests of the Community which it helped to create and of which it forms part under Article 1 of the Treaty. It may be recalled that no special condition, not even evidence of an interest, is required of the Member States for applications for annulment under Article 33: they may contest any decision of the High Authority under this provision. It would be quite strange to deny them a right of action against a decision which may imperil ‘the essential interests of the Community’, which interests some may confuse with their own interests. The Council must, of course, be recognized as having the same right. On the other hand, it does not seem possible to allow undertakings and associations to defend these ‘essential interests of the Community’ in proceedings of such a nature which are at the level of constitutional relations between Member States and the Community. It is quite natural that undertakings of the Member State affected by the disturbance are not able to substitute their own judgment for that of the Government of their country as to the existence of fundamental disturbances in the national economy or for the right to request the ap plication of the safeguard clause. However, it is incomprehensible that other undertakings carrying out activities in the same country or in other countries of the Community should have the right to defend the Community if no Member State felt it necessary to do so. It also appears abnormal, if not even frankly rather shocking, to find a private undertaking setting itself up as the judge of the existence of disturbances affecting the general economy of a foreign State, of the degree of gravity of those disturbances and of their causes. On the other hand, the suspension of the normal application of the Treaty with regard to the rules of the common market cannot assume the nature of infringement of the ‘fundamental rights’ of persons as protected, for example, by the constitution of the Federal Republic of Germany. In respect of undertakings this suspension takes the form of certain measures in the context of economic interventionism as may be found in any country. It is only with regard to States that the question assumes a constitutional nature. It is for this reason that such a case cannot be heard without the Member State suffering disturbances being involved as it is in fact the true defendant. The proceedings under Article 37 may only be instituted by that State and in these particular circumstances, although it is not a court, the High Authority in fact assumes to a certain degree the role of a court of first instance. Of course, the Rules of Procedure of this Court do not provide expressly for such automatic involvement but the general principles seem to require it especially before a court working on the basis of inquiry such as this Court does. If the application were granted, this would be the sole way of avoiding third party proceedings the admissibility of which would not be in doubt and which would require the process to be recommenced: the consequence would be all the more serious in that the judgment of the Court would be executory in the meantime and consequently any measures already taken or in the course of being taken to put an end to the disturbances would be annulled or modified and troubles of judicial origin would be added to the troubles of economic origin . .. (b) We may now examine the second case of proceedings against a positive decision, that is to say, against measures adopted to put an end to the situation. Seen in the light of the aims of Article 37 and the objective of such measures, the solution must be the same: the measures to be adopted must be such as to put an end to the situation while safeguarding the essential interests of the Community. It is therefore the same exercise of the power of arbitration established by Article 37 requiring a comparative assessment of the opposing interests and a value judgment of all measures which may produce an equitable solution to the dispute. In the same way as the first, such an assessment falls outside the scope of proceedings as to the legality of measures and, furthermore, for reasons which I have set out above, only other Member States are able to defend the interests of the Community in such a dispute. One difficulty remains however; the most problematical of all relating to the phrase ‘in accordance with the provisions of this Treaty’ in the second paragraph of Article 37. It is possible that this is a precise restriction on the exercise of the power of arbitration established by Article 37 with the force of a rule of law the infringement of which may give rise to an application for annulment on the basis of Article 33. On the one hand, proceedings concerning legality would then appear to be admissible because of the existence of the rule of law and, on the other hand, the right of action of undertakings would be more easily acceptable, in so far as they are authorized by the Treaty to challenge illegal decisions affecting them. This raises the delicate problem, not uncommon in national law, of the overlapping of different legal remedies and, more particularly in administrative law, of the extent to which an action for annulment may be relied on in a case which is within the scope of proceedings under unlimited jurisdiction. Thus in French law the decided cases distinguish in the context of administrative contracts (for example, concessionary con tracts of public services) between the concessionaire, the co-contractor, who may only rely on the provisions of the contract against the public body before the court with jurisdiction over the contract and the users of the service who may, on the contrary, by means of an action for annulment, challenge an administrative decision refusing to apply to their benefit a clause of the contract (Conseil d'Etat, Syndicat des Proprietaires et Contribuables du Quartier Croix de Seguey-Tivoli à Bordeaux, 21 December 1906, Rec. p. 961, including the opinion of Mr Romieu). With regard to Article 37, the question of the overlapping of applications for annulment under Article 33 has been raised on several occasions by various writers (many references were made to this in both the written and oral procedures) but without clearly convincing arguments either way. In my opinion, the whole question depends on the interpretation given to the phrase ‘in accordance with the provisions of this Treaty’. If it is held that the provisions must be interpreted literally it follows as we have just seen that proceedings concerning legality would be possible in the context of Article 33 on the part of ‘third parties’, that is, the undertakings affected by the measures. If, on the other hand, the provision is interpreted in a more flexible manner and so that the application of the provision in question is more or less closely linked with the assessment of the whole undertaken by the High Authority and the Court in their role as arbitrators, then proceedings for annulment ‘in isolation’ would no longer be possible. I myself believe that the literal interpretation cannot reasonably be applied in this case. Indeed, as we have seen, the safeguard clause set out in Article 37 is intended to bend temporarily the normal rules of the common market in order to avoid the occurrence of serious disturbances in the economy of a Member State and to allow the removal of the threat of disturbances as quickly as possible. It is clear that the safeguard clause contained in Article 37 loses all meaning if no divergence is possible from the rules of the Treaty defining the market, that is to say, essentially the second paragraph of Article 2 and Article 4. In particular, the temporary provision of import or export quotas may be indispensable. It is self-evident that if the normal application of the Treaty with the whole range of measures permissible is sufficient to avoid the risk of disturbances, these provisions alone should be applied and if they are insufficient the Member State concerned has only to set in motion the ad hoc procedure under Article 35. Certainly in Article 33 there are further restrictions as to the Court's power of assessment but in a case such as the risk of grave disturbances in the economy of a Member State they would undoubtedly carry little weight. In any case it is inconceivable that the authors of the Treaty decided to establish such an imposing provision as Article 37 to cover such a minor eventuality: this really would be using a hammer to crack a nut. I therefore believe that the phrase ‘in accordance with the provisions of this Treaty’ in Article 37 must be understood to mean that the measures to be taken must comply with the rules of the Treaty, in so far as this is compatible with their purpose, by using, for example, the proceedings made available therein in the prescribed form, to avoid discrimination within the scope of the measures taken, etc. It has been pointed out that the Treaty contains a revision clause, namely the third and fourth paragraphs of Article 95 providing a procedure for a new power to be created (first paragraph of Article 95). In both these cases the unanimous assent of the Council is required; even in a less serious case, Article 58 concerning a declaration of a state of crisis, the assent of the Council is required. In addition, in any of these cases it is impossible to diverge from the fundamental provisions of Articles 2, 3 and 4. How can it therefore be accepted that Article 37 authorizes the bypassing of the prohibitions contained in Article 4 by mere consultation with the Council? The answer is quite simple: on the one hand, in the case of Article 95 we are concerned with amending or altering per manently the rules for the functioning of the common market. Here, on the other hand, we are concerned with the temporary suspension of these rules, quite a different matter. Further, it is clear that the requirement of the assent of the Council, even by simple majority (the votes being, of course, weighted), would have denied any guarantee to a State complaining of disturbances in its economy and quite possibly in conflict with the majority of the other Member States. The problem is nevertheless very difficult as it is only too apparent that there exists here a conflict between the letter of the provision and its purpose and if a literal interpretation is thought necessary it would, as we have seen, be fairly difficult to justify the exclusion of any proceedings as to legality on the basis of Article 33. The principle of the autonomy of Article 37 certainly admits of an exception with regard to the present point, that is to say, whether the measures adopted are in conformity with the provisions of the Treaty. For reasons which I have already given I believe that we must attempt to make an interpretation. Perhaps, in addition, it is possible to take account of a supplementary argument put forward by the High Authority in support of ‘flexible’ interpretation of the phrase ‘in accordance with the provisions of this Treaty’ (‘dans les conditions prevues au present traite’): the German version translates this phrase as ‘im Rahmen dieses Vertrages’, that is to say, literally ‘in the framework of this Treaty’, while in other provisions (Articles 4, 5 and 8) where the same expression ‘in accordance with the provisions of this Treaty’ is used it has been translated differently in each case. Therefore each time the German translation introduces very interesting nuances varying according to the nature or the purpose of the particular provision. It is clear that as regards Article 37 the formula ‘in the framework of this Treaty’ corresponds perfectly to the only interpretation which appears reasonable to me and which I have for this reason supported. Clearly this argument has little legal force since the French version alone is authentic, but perhaps it may be recognized to have a certain indicative value as to the intentions of the authors of the Treaty at the time when it was approved. If the ‘flexible’ interpretation is allowed, I believe that here again there is no possibility of special proceedings concerning legality under Article 33. Compliance with the conditions in the Treaty comes to depend essentially on the nature and the purpose of the measures adopted and their necessity for the purposes of the provision in question, that is, for obtaining as quickly as possible the removal of the threat of disturbances while safeguarding the essential interests of the Community. The limits imposed on the action of the High Authority by the provision in question no longer has the nature of a condition of objective legality but now falls within and is one factor in the subjective assessment of the whole which must be undertaken by the High Authority and possibly by the Court. Finally, I believe that the actions are also inadmissible on the basis of Article 33 as in the present case there is no room for proceedings concerning legality on the basis of Article 37 since the proceedings were not instituted by one of the Member States or by the Council. If, however, this view is not accepted, particularly with regard to the conclusions as to the annulment of the ‘measures adopted’ (Articles 3 and 5 of the contested decision), in so far as those conclusions are based on the infringement of ‘the provisions of this Treaty’, it would then be necessary to examine whether and to what extent the actions comply with the conditions for admissibility set out in Article 33. Can the contested decision be regarded as an ‘individual decision affecting’ the applicants? In view of the particularly liberal case-law of the Court on this subject (Judgment of 23 April 1956 in Joined Cases 7 and 9/54, Groupement des Industries Sidérurgiques Luxembourgeoises v High Authority of the ECSC, Rec. 1955-1956, p. 53; Judgment of 20 March 1959 in Case 18/57, Firma I. Nold KG v High Authority of the ECSC, Rec. 1958-1959, p. 89; Judgment of 15 July 1960 in Joined Cases 24 and 34/58, Chambre Syndical de la Sidérurgie de l'Est de la France and Others v High Authority of the ECSC, Rec. 1960, p. 573; Judgment of 23 February 1961 in Cases 30/59, De Gezamenlijke Steenkolenmijnen in Limburg v High Authority of the ECSC, Rec. 1961, p. 1) the Court would perhaps be led to recognize that the contested decision, which is addressed solely to the Belgian Government, is of an individual nature and would admit that the decision ‘affects’ the applicants since it interests them. Nevertheless some doubt is possible. The present case concerns a measure which establishes the conditions for general rules valid for Belgium establishing a system of import and export quotas and for the fixing of maximum tonnages. It is characteristic of a general and impersonal measure. Indisputably the decision has no direct effect in respect of those at whom it is aimed: however, it obliges the Belgian Government to adopt implementing measures which, although of a secondary nature, are measures in the nature of a regulation. The situation is therefore quite different from that in the Nold case in particular where the decisions at issue had (as the Court ruled) ‘authorized, subject to certain conditions and restrictions, these rules and this contract (it involved commercial rules and a contract of association established by the sales agency of the Ruhr coal industries) and therefore ruled as to the legal validity of actual decisions taken by clearly identified undertakings’. In the present case the situation is very analogous to that produced in an internal situation if a law were adopted setting out the broad outline and essential rules of a quota scheme while leaving the task of fixing the implementing details to regulations. Some doubts at least would be justified if a direct action by private individuals were admitted against a measure which in a Member State would normally be part of the legislative power and if the same act in a community context were regarded as an individual decision affecting a particular undertaking. - With regard to the existence of a ‘misuse of powers affecting’ the applicants which would be brought into question if the decision were regarded as a general one, I shall go on to examine this shortly in conjunction with the substance of the case since, according to the case-law of the Court, it is a question of substance and it is admissible simply because the argument has been raised (Judgment in Case 3/54, Assider v High Authority, Rec. 1954-1955, p. 123).