Judgment of the Court of 16 December 1960. - Hamborner Bergbau AG, Friedrich Thyssen Bergbau AG v High Authority of the European Coal and Steel Community. - Joined cases 41/59 and 50/59.



European Court reports

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German edition Page 01027

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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PROCEDURE - ACTION FOR FAILURE TO ACT - AMENDMENT OF LEGAL BASIS OF AN APPLICATION - INADMISSIBILITY

( ECSC TREATY, ARTICLE 35 )

Summary

WHEN THE MATTER WAS RAISED WITH THE HIGH AUTHORITY WITHIN THE MEANING OF ARTICLE 35 IT WAS ASKED TO TAKE A DECISION CONCERNING THE APPLICANT'S REQUEST ON THE BASIS OF A SPECIFIC LEGAL GROUND . SINCE THE IMPLIED DECISION OF REFUSAL WAS TAKEN WITHIN THE CONTEXT OF THIS CLAIM AND OF THE LEGAL GROUND PLEADED, AN ACTION BROUGHT AGAINST THE IMPLIED DECISION OF REFUSAL WHICH PUTS FORWARD A DIFFERENT CLAIM BASED ON A DIFFERENT GROUND IS INADMISSIBLE .

Parties

IN JOINED CASES

1 . HAMBORNER BERGBAU AKTIENGESELLSCHAFT AND FRIEDRICH THYSSEN BERGBAU AKTIENGESELLSCHAFT ( CASE 41/59 ),

2 . HAMBORNER BERGBAU AKTIENGESELLSCHAFT ( CASE 50/59 ),

BOTH HAVING THEIR REGISTERED OFFICES AT 277A DUISBURGER STRASSE, DUISBURG, AND REPRESENTED BY THEIR BOARDS OF DIRECTORS, ASSISTED BY KONRAD ZWEIGERT, PROFESSOR OF LAW AT THE UNIVERSITY OF HAMBURG, HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG CARE OF PHILIPP BENNECKE, ECONOMIST, AT THE OFFICE OF THE KOHLENBERGBAULICHE UNTERNEHMENSVERBAENDE, 2 RUE DU FORT-ELISABETH, APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, HEINRICH MATTHIES, ACTING AS AGENT, ASSISTED BY HANS-PETER IPSEN, PROFESSOR OF LAW AT THE UNIVERSITY OF HAMBURG, HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE HIGH AUTHORITY, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATIONS

1 . FOR THE ANNULMENT OF THE DECISION NOTIFIED TO THE APPLICANTS BY THE HIGH AUTHORITY BY LETTER OF 24 JULY 1959 REFUSING THE REQUEST FOR THE REFUND OF THE LEVY FOR THE FINANCIAL YEAR 1959-1960;

2 . FOR THE ANNULMENT OF THE HIGH AUTHORITY'S IMPLIED DECISION OF REFUSAL TO BE INFERRED FROM ITS SILENCE CONCERNING THE APPLICANT'S LETTER OF 6 AUGUST 1959 WHEREBY THE LATTER ASKS TO BE NOTIFIED OF THE DECISION CONTAINED IN THE SAID LETTER OF 24 JULY 1959,

Grounds

P . 503

CASE 41/59

THE APPLICATION WAS LODGED WITHIN THE PRESCRIBED PERIOD .

THE DEFENDANT HAS DISPUTED FIRST THAT THE LETTER OF 24 JULY 1959 CONSTITUTES A DECISION AGAINST WHICH AN APPLICATION MAY BE MADE . THIS LETTER CONTAINS THE REPLY TO THE REQUEST MADE BY THE APPLICANTS ON 17 JULY 1959 FOR A REFUND OF THE PAYMENT OF THE LEVY FOR THE EIGHTH FINANCIAL YEAR ( 1959 TO 1960 ). THE DEFENDANT STATED THAT IT REFUSED THE REQUEST BECAUSE THERE IS NO PROVISION IN THE RULES IN FORCE FOR GRANTING THE INDIVIDUAL REFUND REQUESTED BY THE APPLICANTS .

SINCE THE REFUSAL OF THIS REQUEST WAS DRAFTED IN ITS FINAL FORM IT MUST BE CONSIDERED AS A DECISION AGAINST WHICH AN APPLICATION MAY BE MADE .

FURTHER THE LETTER OF 24 JULY 1959 ENDED IN THIS WAY : " CONSEQUENTLY, YOU SHOULD ADVISE THE RUHRKOHLENTREUHAND GMBH THAT, AS IN THE PAST, IT MUST SETTLE THE LEVIES PAYABLE BY YOU AND BY FRIEDRICH THYSSEN BERGBAU AG ".

THE APPLICANTS ARE WRONG IN INTERPRETING THIS SENTENCE AS A DEMAND NOTE FOR THE LEVY . IT MUST BE READ IN CONJUNCTION WITH THE LETTER OF 17 JULY 1959 IN WHICH IT CONSTITUTES A LOGICAL ANSWER AND IN WHICH THE APPLICANTS GAVE NOTICE THAT THEY WOULD STOP THE PAYMENT OF THE LEVY SINCE THEY ANTICIPATED A FAVOURABLE REPLY . THE COURT INTERPRETS THIS SENTENCE AS THE LOGICAL CONCLUSION WHICH FOLLOWS FROM THE REFUSAL OF THE REQUEST AND WHICH THE APPLICANTS COULD HAVE DRAWN THEMSELVES WHETHER OR NOT THIS SENTENCE HAD APPEARED IN THE LETTER . THUS THE ABOVEMENTIONED SENTENCE, WHICH DOES NOT INTRODUCE ANY NEW ELEMENT INTO THE LEGAL RELATIONS BETWEEN THE HIGH AUTHORITY AND THE APPLICANTS, CANNOT BE REGARDED BY THE LATTER AS A DECISION INDEPENDENT OF THE DECISION OF REFUSAL AND AGAINST WHICH AN APPLICATION MAY BE MADE .

THE APPLICANTS CRITICIZE THE LETTER OF 24 JULY 1959, MAINTAINING THAT IT CONTAINS A DECISION BASED ON A GENERAL DECISION AT VARIANCE WITH THE TREATY, NAMELY DECISION NO 33/59 FIXING THE RATE OF THE LEVY FOR THE YEAR 1959-1960 .

IT MUST FIRST BE CONSIDERED WHETHER THE LETTER OF 24 JULY 1959 IS ACTUALLY BASED ON THE ABOVEMENTIONED DECISION .

THE COURT HOLDS THAT IT IS NOT .

P . 504

IN FACT THE CONTESTED DECISION CONTAINS THE REASON THAT NO PROVISION FOR INDIVIDUAL REFUNDS IS MADE EITHER IN THE TREATY OR IN THE GENERAL DECISIONS OF THE HIGH AUTHORITY ON THE PAYMENT OF THE LEVY .

INASMUCH AS THE CONTESTED DECISION IS BASED ON THE GENERAL DECISIONS OF THE HIGH AUTHORITY, ONLY BASIC DECISIONS ARE INVOLVED ESTABLISHING THE CONDITIONS OF ASSESSMENT AND COLLECTION IN ACCORDANCE WITH ARTICLE 50 ( 2 ) OF THE TREATY AND IN PARTICULAR WITH DECISIONS NOS 2/52 AND 3/52 .

DECISION NO 33/59 DOES NOT FORM PART OF THESE DECISIONS .

WHILST IT IS TRUE THAT ARTICLE 1 OF DECISION NO 33/59 LAYS DOWN THAT " THE LEVIES PROVIDED FOR BY ARTICLES 49 AND 50 OF THE TREATY SHALL BE COLLECTED UNDER THE CONDITIONS FIXED BY THE PROVISIONS AND DECISIONS IN FORCE UNTIL THE EXPIRY OF THE FINANCIAL YEAR ENDING ON 30 JUNE 1960 " , THIS PROVISION DOES NOT ADD ANY NEW LEGISLATIVE FACTOR TO THE ABOVEMENTIONED DECISIONS SINCE IT SIMPLY MAINTAINS THE RATE OF THE LEVY AT THE SAME PERCENTAGE AS THAT FIXED FOR THE PRECEDING YEAR . THE APPLIANT CANNOT CLAIM THAT THE CONTESTED DECISION OF REFUSAL IS BASED ON DECISION NO 33/59 AND THE OBJECTION OF ILLEGALITY WHICH THEY INVOKE AGAINST THIS LATTER DECISION IS INADMISSIBLE .

THE APPLICANTS HAVE FINALLY REQUESTED THE COURT TO HOLD IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 34 OF THE TREATY THAT THE CONTESTED DECISION INVOLVES A WRONGFUL ACT OR OMISSION CAPABLE OF GIVING RISE TO LIABILITY ON THE PART OF THE COMMUNITY .

ARTICLE 34 CLEARLY INDICATES THAT SUCH A FINDING CAN ONLY BE MADE IF THE COURT RULES IN FAVOUR OF THE MAIN APPLICATION FOR ANNULMENT . IN THE PRESENT CASE THERE CAN BE NO QUESTION OF SUCH A RULING SINCE, AS IS CLEAR FROM THE FOREGOING, THE APPLICATION FOR ANNULMENT MUST BE DISMISSED . THIS CLAIM MUST THUS BE REJECTED AS UNFOUNDED .

SINCE THE APPLICANTS HAVE NOT MADE ANY OTHER SUBMISSIONS RELATING TO ANNULMENT THE APPLICATION MUST BE DISMISSED .

APPLICATION NO 50/59

IN ITS LETTER OF 6 AUGUST 1959 THE APPLICANT FIRST EMPHASIZED THAT THE REPLY TO ITS LETTER OF 17 JULY 1959 CAME FROM THE LEVY OFFICE AND REQUESTED THE HIGH AUTHORITY TO NOTIFY IT, IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 15 OF THE TREATY, OF THE DECISION CONCERNING THE REQUEST FOR A REFUND WHICH IT SUBMITTED IN ITS LETTER OF 17 JULY 1959 .

IT IS CLEAR THAT THE APPLICANT DECIDED TO SEND THIS LETTER BECAUSE IT WAS UNCERTAIN AS TO THE STATUS OF THE LETTER OF 24 JULY 1959 AS A FINAL DECISION AND NOT BECAUSE IT WAS IN DOUBT OVER ITS CONTENTS .

P . 505

IN THOSE CIRCUMSTANCES THE OBJECTION RAISED BY THE DEFENDANT THAT THE APPLICATION IS INADMISSIBLE BECAUSE IT IS OUT OF TIME MUST BE REJECTED BECAUSE THE MATTER WAS RAISED WITHIN THE MEANING OF ARTICLE 35 BY THE LETTER OF 6 AUGUST 1959 .

NEVERTHELESS THE DEFENDANT RAISES A SECOND OBJECTION OF INADMISSIBILITY, NAMELY THAT THE APPLICATION DOES NOT CONCERN THE SAME SUBJECT-MATTER AS THE APPLICATION OF 17 JULY 1959 .

WHEN THE MATTER WAS RAISED WITH THE HIGH AUTHORITY WITHIN THE MEANING OF ARTICLE 35 IT WAS ASKED TO TAKE A DECISION CONCERNING THE APPLICANT'S REQUEST ON THE BASIS OF A SPECIFIC LEGAL GROUND .

THE IMPLIED DECISION OF REFUSAL WAS TAKEN WITHIN THE CONTEXT OF THIS CLAIM AND OF THE LEGAL GROUND PLEADED .

AN ACTION BROUGHT AGAINST THE IMPLIED DECISION OF REFUSAL WHICH PUTS FORWARD A DIFFERENT CLAIM, BASED ON A DIFFERENT LEGAL GROUND IS INADMISSIBLE .

IN THE APPLICANT'S LETTER OF 17 JULY 1959 TO WHICH THE LETTER OF 6 AUGUST RELATED EXCLUSIVELY, THE HIGH AUTHORITY WAS ASKED FOR A REFUND OF THE PAYMENT OF THE LEVY FOR THE FINANCIAL YEAR 1959-1960 BECAUSE OF THE DIFFICULT FINANCIAL SITUATION OF THE APPLICANT .

ON THE OTHER HAND, THE APPLICANT, IN ITS APPLICATION INSTITUTING PROCEEDINGS, REALLY REQUESTS THAT THE IMPOSITION OF A LEVY FOR THE CURRENT FINANCIAL YEAR SHOULD BE DECLARED UNLAWFUL BECAUSE DECISION NO 33/59 IS IRREGULAR, ALTHOUGH FORMALLY IT REQUESTS THE ANNULMENT OF THE IMPLIED DECISION OF REFUSAL . THIS CONSTITUTES AN IMPORTANT MODIFICATION BOTH OF THE CLAIM AND OF THE LEGAL GROUND TO WHICH IT RELATES .

FOR THE ABOVEMENTIONED REASONS THE SECOND OBJECTION OF INADMISSIBILITY IS WELL FOUNDED .

THE APPLICANT HAS FINALLY REQUESTED THE COURT TO RECOGNIZE IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 34 OF THE TREATY THAT THE CONTESTED DECISION INVOLVES A WRONGFUL ACT OR OMISSION OF SUCH A NATURE AS TO RENDER THE COMMUNITY LIABLE .

THE SAID ARTICLE 34 CLEARLY INDICATES THAT SUCH A FINDING CAN ONLY BE MADE IF THE COURT RULES IN FAVOUR OF THE MAIN APPLICATION FOR ANNULMENT . IN THIS CASE THERE CAN BE NO QUESTION OF A FINDING OF ANNULMENT SINCE, AS IS CLEAR FROM THE FOREGOING, THE COURT CONSIDERS THAT THE APPLICATION FOR ANNULMENT IS INADMISSIBLE . THIS CLAIM MUST ALSO THUS BE DISMISSED AS UNFOUNDED .

THE APPLICATION MUST ACCORDINGLY BE DISMISSED AS INADMISSIBLE .

Decision on costs

SINCE THE APPLICANTS HAVE FAILED IN ALL THEIR SUBMISSIONS THEY MUST BEAR THE ENTIRE COSTS .

Operative part

THE COURT

HEREBY :

1 . IN CASE NO 41/59

DISMISSES AS UNFOUNDED THE APPLICATION FOR ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY CONTAINED IN THE LETTER ADDRESSED TO THE APPLICANTS ON 24 JULY 1959;

2 . IN CASE NO 50/59

DISMISSES AS INADMISSIBLE THE APPLICATION FOR ANNULMENT OF THE HIGH AUTHORITY'S IMPLIED DECISION OF REFUSAL TO BE INFERRED FROM ITS SILENCE REGARDING THE APPLICANT'S LETTER OF 6 AUGUST 1959;

3 . ORDERS THE APPLICANTS TO BEAR THE COSTS OF THE PROCEEDINGS .