Keywords

Summary



Keywords

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1 . LEGAL PROCEDURE - APPLICATION FOR ANNULMENT - TIME-LIMIT FOR BRINGING PROCEEDINGS - UNCERTAINTY OF THE DATE OF NOTIFICATION

2 . APPLICATION FOR ANNULMENT - DEFINITION OF THE DECISION - FINANCIAL ARRANGEMENTS - DEMAND FOR PAYMENT OF A CERTAIN SUM BY WAY OF EQUALIZATION ADDRESSED TO AN UNDERTAKING BY A BODY TO WHICH THE HIGH AUTHORITY HAS DELEGATED SUCH POWER

3 . APPLICATION FOR ANNULMENT - DEFINITION OF THE DECISION - CRITERIA APPLICABLE IN THE LEGAL CLASSIFICATION OF A MEASURE OF THE HIGH AUTHORITY - EFFECT OF DECLARATIONS MADE BY SERVANTS OF THE HIGH AUTHORITY - DISTINCTION BETWEEN A DECISION AND AN INTERNAL OFFICE DIRECTIVE

4 . APPLICATION FOR ANNULMENT - OBJECTION OF ILLEGALITY - REVIEW OF THE PRINCIPLES ESTABLISHED BY AN INTERNAL STAFF NOTICE

5 . ACTION FOR FAILURE TO ACT - COMMENCEMENT OF THE LIMITATION PERIOD BY THE NOTICE TO ACT - DATE OF THE IMPLIED DECISION OF REFUSAL

6 . FINANCIAL ARRANGEMENTS - EQUALIZATION LEVY ON BOUGHT FERROUS SCRAP - DEFINITION OF THE EXPRESSIONS " OWN RESOURCES " AND " BOUGHT FERROUS SCRAP " - SUPPLY OF FERROUS SCRAP WITHIN A GROUP OF UNDERTAKINGS ( CONCENTRATION ) - LEGALITY OF ASSESSING SUCH SUPPLY OF SCRAP TO THE EQUALIZATION LEVY - LEGALITY OF THE EXEMPTION OF OWN RESOURCES

7 . DISCRIMINATION - DEFINITION - MEASURES AND INTERVENTIONS LIABLE TO DISTORT COMPETITION

8 . PRODUCTIVITY - DEFINITION - INTERVENTIONS OF THE HIGH AUTHORITY - CARTELS AND CONCENTRATIONS - COMPETITION

Summary

1 . WHERE THE HIGH AUTHORITY FAILS TO NOTIFY A DECISION BY REGISTERED LETTER AND, IN ADDITION, IT CANNOT GIVE ANY INDICATION AS TO THE DATE ON WHICH THE LETTER OF NOTIFICATION WAS SENT AND, THEREFORE, THE DATE OF NOTIFICATION CANNOT BE ESTABLISHED WITH CERTAINTY DURING AN APPLICATION FOR ANNULMENT AT A LATER STAGE, THE APPLICANT HAS THE BENEFIT OF THE DOUBT WHICH THUS ARISES, AND HIS APPLICATION IS CONSIDERED AS HAVING BEEN LODGED WITHIN THE PRESCRIBED PERIOD IF, IN THE LIGHT OF THE FACTS, IT DOES NOT APPEAR AS TOTALLY EXCLUDED THAT THE LETTER MAY HAVE ARRIVED LATE ENOUGH FOR THE TIME-LIMIT TO HAVE BEEN OBSERVED .

( THIRD PARAGRAPH OF ARTICLE 33 OF THE TREATY ESTABLISHING THE ECSC; RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE ECSC, ARTICLE 85 ( 1 ) AND ( 2 )

2 . WHERE AN AUXILIARY AGENCY TO WHICH THE HIGH AUTHORITY HAS ENTRUSTED THE TASK OF IMPLEMENTING THE FINANCIAL ARRANGEMENTS WHICH IT HAS CREATED USES THAT POWER BY ISSUING A DEMAND TO AN UNDERTAKING TO PAY A SUM BY WAY OF LEVY, THAT DECISION MUST BE CONSIDERED AS A DECISION OF THE HIGH AUTHORITY IF IT FOLLOWS FROM THE LEGAL SITUATION AND THE PRACTICE FOLLOWED BY THE HIGH AUTHORITY THAT SUCH MEASURES GIVE RISE TO AN OBLIGATION TO PAY THE SUM STATED, AND THAT THEY CONSTITUTE THE LAST WORD OF THE ADMINISTRATION, WHERE IT APPEARS THAT THE HIGH AUTHORITY HAS NOT LAID DOWN ANY PROCEDURE ON THE MATTER GOVERNED BY PRECISE RULES, BUT WHERE, UPON THE OCCASION ARISING, IT USUALLY DOES NO MORE THAN CONVERT THE MEASURES INTO BINDING DECISIONS WITHOUT FURTHER INQUIRY .

( TREATY ESTABLISHING THE ECSC, ARTICLES 33, 53; DECISION NO 2/57 OF THE HIGH AUTHORITY, ARTICLE 12, NOS 2 AND 3 )

3 . CF . SUMMARY, JUDGMENT OF 6 JULY 1959 IN CASE 20/58 :

( A ) THE LEGAL ASSESSMENT OF A MEASURE BY THE HIGH AUTHORITY DEPENDS ABOVE ALL ON ITS SUBJECT-MATTER AND ON ITS CONTENT .

( B ) WHEN THE HIGH AUTHORITY SENDS A LETTER TO AN AUXILIARY AGENCY ENTRUSTED BY IT WITH THE EXECUTION OF CERTAIN PRECISE FUNCTIONS, INFORMING IT OF CERTAIN GENERAL PRINCIPLES AND IN PARTICULAR INSTRUCTING IT TO CONTINUE A CERTAIN PRACTICE FOLLOWED UP TILL THEN, THAT LETTER MAY CONSTITUTE A MERE INTERNAL OFFICE DIRECTIVE, EVEN IF IT WAS PUBLISHED IN THE JOURNAL OFFICIEL AND IF IT REFERS TO MEASURES WHICH THE AGENCY MUST TAKE IN REGARD TO UNDERTAKINGS IN THE COMMUNITY . IN ANY EVENT, THIS IS TRUE IF IT EMERGES FROM THE LETTER THAT THE HIGH AUTHORITY DID NOT INTEND TO TAKE A DECISION, BUT INTENDED MERELY TO CONFIRM PRINCIPLES WHICH IT BELIEVED, RIGHTLY OR WRONGLY, TO BE LOGICALLY TO INFER FROM ITS PREVIOUS DECISIONS . THE FACT THAT A SERVANT OF THE HIGH AUTHORITY HAS DESCRIBED SUCH A LETTER TO A THIRD PARTY AS A " DECISION " DOES NOT INVALIDATE THE ABOVE STATEMENT ( TREATY ESTABLISHING THE ECSC, ARTICLE 33 ).

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4 . WHERE THE HIGH AUTHORITY APPLIES PRINCIPLES WHICH IT HAS ESTABLISHED BY AN INTERNAL STAFF NOTICE AND WHICH DEAL WITH THE INTERPRETATION OF A GENERAL DECISION, THE SOUNDNESS OF THAT INTERPRETATION MAY BE REVIEWED IN AN APPLICATION FOR ANNULMENT BROUGHT AGAINST AN INDIVIDUAL DECISION .

( TREATY ESTABLISHING THE ECSC, ARTICLE 33 )

5 . THE PERIOD OF TWO MONTHS, UPON THE EXPIRY OF WHICH, BY VIRTUE OF THE THIRD PARAGRAPH OF ARTICLE 35 OF THE TREATY ESTABLISHING THE ECSC, A DECISION OF REFUSAL ON THE PART OF THE HIGH AUTHORITY IS IMPLIED, STARTS TO RUN ON THE DATE FOLLOWING THE DAY ON WHICH THE LETTER GIVING THE HIGH AUTHORITY NOTICE TO ACT IS RECEIVED BY IT . ACCORDINGLY, IF THE LETTER IS RECEIVED ON 1 APRIL, THE PERIOD STARTS TO RUN ON 2 APRIL AND IF, IN THAT CASE, THE HIGH AUTHORITY DOES NOT TAKE A DECISION BY 1 JUNE AT THE LATEST IT IS DEEMED TO HAVE REJECTED THE NOTICE TO ACT ON THAT DAY .

( TREATY ESTABLISHING THE ECSC, ARTICLE 35 )

6 . ( A ) WHERE THE HIGH AUTHORITY ESTABLISHES FINANCIAL ARRANGEMENTS IN ORDER TO ENSURE AN ORDERLY SUPPLY OF FERROUS SCRAP IN THE COMMON MARKET, AND WHERE, IN SO DOING, IT PROVIDES THAT THE UNDERTAKINGS SHALL BE SUBJECT TO A LEVY FOR BOUGHT FERROUS SCRAP, WHEREAS OWN RESOURCES ARE EXEMPT, DELIVERIES OF SCRAP TO AN UNDERTAKING OPERATING UNDER ANOTHER COMPANY NAME ARE NOT TO BE REGARDED AS OWN RESOURCES, EVEN IF THE TWO UNDERTAKINGS ARE CLOSELY LINKED AS REGARDS THEIR ADMINISTRATION, ORGANIZATION OR FINANCES ( " GROUP FERROUS SCRAP " ).

( B ) THE EXONERATION OF GROUP FERROUS SCRAP WOULD BE DISCRIMINATORY, BECAUSE IT WOULD LEAD TO A SITUATION IN WHICH THE PRODUCTION OF STEEL, WHICH IS WHOLLY OR PARTLY BASED ON SCRAP, WOULD DEPEND ON THE LEGAL, FINANCIAL OR ORGANIZATIONAL STRUCTURE OF INDUSTRIAL GROUPS, AND SUCH STRUCTURES ARE OFTEN SUBJECT TO CHANGE .

( C ) HOWEVER, THE EXONERATION OF OWN RESOURCES IS LEGAL, IN PARTICULAR BECAUSE IT FAVOURS AN INCREASE IN PRODUCTION WHICH IS EXCLUSIVELY THE RESULT OF THE PARTICULAR EFFORTS OF VARIOUS UNDERTAKINGS AND WHICH IS, THEREFORE, IN ACCORD WITH THE PRINCIPLE OF COMPETITION, AND ALSO BECAUSE IT RESULTS, FROM A REASONING A MAJORE AD MINUS BASED ON THE SECOND PARAGRAPH OF ANNEX II ( B ) TO THE TREATY ESTABLISHING THE ECSC, THAT " UNDERTAKINGS ' OWN ARISINGS " MUST BE FAVOURED A FORTIORI IN THE CASE OF INDIRECT INTERVENTIONS ON THE PART OF THE HIGH AUTHORITY .

( TREATY ESTABLISHING THE ECSC, SECOND PARAGRAPH OF ARTICLE 2, ARTICLES 3 ( B ), 4 ( B ), 53, 59, 60 ( 1 ), 67 AND 80 AND ANNEX II ( B ), SECOND PARAGRAPH; DECISION NO 2/57 OF THE HIGH AUTHORITY, ARTICLES 2 AND 4; LETTER OF THE HIGH AUTHORITY OF 18.12.1957 TO THE OCCF, JO OF 1.2.1958, P . 45 ET SEQ .)

7 . THE FOLLOWING MEASURES MUST BE CONSIDERED AS DISCRIMINATORY IN PRINCIPLE AND, ACCORDINGLY, PROHIBITED BY THE TREATY, INTER ALIA, MEASURES OR INTERVENTIONS, INCLUDING THOSE OF THE HIGH AUTHORITY, WHICH ARE CALCULATED SUBSTANTIALLY TO INCREASE DIFFERENCES IN PRODUCTION COSTS OTHERWISE THAN THROUGH CHANGES IN PRODUCTIVITY, AND WHICH, BY REASON OF THAT FACT, PROVOKE APPRECIABLE DISTURBANCES IN THE COMPETITIVE EQUILIBRIUM OF THE UNDERTAKINGS CONCERNED, THAT IS TO SAY, WHICH CREATE OR RESULT IN AN ARTIFICIAL AND SIGNIFICANT DISTORTION OF COMPETITION .

( TREATY ESTABLISHING THE ECSC, SECOND PARAGRAPH OF ARTICLE 2, ARTICLES 3 ( B ), 4 ( B ), 60 AND 67 )

8 . THE GENERAL STRUCTURE OF THE TREATY AND ITS FUNDAMENTAL PRINCIPLES GIVE RISE TO THE SUPPOSITION THAT THE EXPRESSION " PRODUCTIVITY " IN ARTICLE 67 REFERS ONLY TO THE RESULTS OF THE EFFORTS OF A PARTICULAR UNDERTAKING . IN PARTICULAR, THE TREATY MUST BE UNDERSTOOD AS BEING CONTRARY TO AN IMPROVEMENT IN THE COMPETITIVE POSITION OF AN UNDERTAKING WHICH IS DUE TO INTERVENTIONS OF PUBLIC AUTHORITIES OR TO THE CREATION OF A CARTEL OR A CONCENTRATION . ALL THESE OPERATIONS ARE TO BE REGARDED AS ARTIFICIAL EFFECTS ON COMPETITION EVEN WHEN THEY ARE AUTHORIZED OR CAPABLE OF BEING AUTHORIZED .

( TREATY ESTABLISHING THE ECSC, ARTICLE 67 )