CELEX: 61963CC0012
Language: en
Date: 1963-05-29
Title: Opinion of Mr Advocate General Roemer delivered on 29 May 1963. # Mrs Marga Schlieker, née Diepenbruck v High Authority of the European Coal and Steel Community. # Case 12-63.

OPINION OF MR ADVOCATE-GENERAL ROEMER
   DELIVERED ON 29 MAY 1963 (
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      Mr President,
   
      Members of the Court,
   Today's hearing is to clarify the question whether the action brought by Mrs Marga Schlieker against the High Authority is admissible. My opinion will accordingly deal only with this aspect of the proceedings.
   The facts seem perfectly simple. The applicant has a minority interest in two firms belonging to the so-called Schlieker group. She has an interest in Schlieker-Eisenhandel GmbH, which has reverted to its former name of Otto R. Krause, Eisengrosshaus GmbH, and in Schlieker GmbH which in turn is a limited partner in Neviges Walzwerke Willy H. Schlieker & Co., an undertaking manufacturing electric plating. Before and after ancillary bankruptcy proceedings concerning the assets of Mr Willy Schlieker and of the firm of Willy H. Schlieker KG, of Hamburg, legal agreements within the Schlieker group were made with firms outside the group. Walzwerke Neviges and Schlieker-Eisenhandel were parties to these agreements (plate insurance contract, contract for rolling materials supplied, contract for the assignment of exploitation facilities, amendment of the articles of association of Schlieker-Eisenhandel GmbH). Mrs Marga Schlieker considers that these agreements infringe the ECSC Treaty. Her representatives accordingly addressed requests to the High Authority on 7 and 9 November 1962 asking it to declare these contracts void or, alternatively, to order restoration of the position existing before the contracts were entered into. The Directorate of Agreements and Concentrations of the High Authority replied on 21 December 1962 in writing: ‘The High Authority is already officially looking into the facts relating to the proceedings in question. Until now it has had no occasion to take action and will watch further developments’.
   There followed on 12 February 1963 an application made on the grounds of ‘failure to act on the part of the High Authority’ in which the conclusions sought an order directing the High Authority to declare void the agreements mentioned in the request of 7 November 1962 or, alternatively, to order the restoration of the position existing before the contracts were entered into. The High Authority by memorandum of 22 February 1962 requested a preliminary ruling on the admissibility of the application under Article 91 (1) of the Rules of Procedure of the Court. It considers that the application, so far as it can be regarded as being properly brought at all, should be dismissed as inadmissible by reason of inadmissibility of the conclusions, their inadequacy, lack of competence on the part of the applicant and lack of any interest requiring protection in law.
   In my opinion the legal evaluation or the conclusions of the parties presents no special difficulties.
   The action is described as brought on the ground of failure to act. Moreover in the applicant's observations of 21 March 1963 the application is stated to be based on the third paragraph of Article 35 of the ECSC Treaty although in these observations too there is a request for annulment of the decision of refusal to act contained in the High Authority's letter of 21 December 1962.
   It is obvious that the action, as an action for annulment directed against the said letter of 21 December 1962, cannot succeed. This letter reached the applicant's representatives on 24 December 1962. The time-limit of one month laid down in Article 33 had thus expired before the action was brought (12 February 1963) even when account is taken of the six days' distance allowance for German litigants. Moreover it can be regarded as certain that the notice of 21 December 1962 is not a decision of the High Authority which can be contested by legal action but merely information given by the competent department.
   Under Article 35 of the Treaty proceedings may be instituted against the High Authority if it fails to take a decision or make a recommendation. Even if the third paragraph of Article 35 does not expressly state who is entitled to institute proceedings, no difficulties of interpretation can arise from this provision looked at in its whole context. The right to institute proceedings can lie only with a person having the right formally to apply to the High Authority, since a valid application is a precondition for a valid institution of proceedings. So those entitled to bring proceedings under Article 35 are in principle only Member States, the Council, undertakings and associations of undertakings. This is in line with the often repeated statement that proceedings under Article 35 must be regarded within the scheme of the Treaty as a special case of actions for annulment.
   The meaning of undertaking in the Treaty is defined in Article 80. In general anyone engaged in production in the coal or the steel industry is an undertaking. For the special cases of Articles 65 and 66, persons or agencies regularly engaged in distribution are also considered to be undertakings. So it is clear that the applicant cannot be regarded as an undertaking for the purposes of the ECSC Treaty, because she neither produces nor distributes coal and steel. She has only a relatively small interest in undertakings and in one of the two cases which concern us only indirectly through another legal person. The only activity by an undertaking relevant for the purpose of the Treaty is therefore exercised by a legal person, separate and distinct from her, and can be attributed only to that person. So it is proved that the applicant has no right in principle to apply for annulment. When the applicant objects that she was directly affected by the refusal of the High Authority to act, and that to meet the basic concepts of the Treaty legal protection must be afforded to the same extent, this line of argument cannot prevail over the words and plain meaning of the Treaty. The system of law under the Treaty is to be distinguished from national law precisely because it does not guarantee complete legal protection in a general clause. The reference to Article 19 (IV) of the Basic Law (Grundgesetz) of the Federal Republic of Germany can lead to no different answer because the Court has to determine the limits of supranational legal protection only in accordance with the wording of the Treaty and not in accordance with national law.
   We can perhaps ask whether further special provisions of the ECSC Treaty can be discerned upon which the applicant could base a right to bring an action. That does not seem to me to be the case.
   Her reference to the second subparagraph of Article 65 (4) which reads: ‘The High Authority shall have sole jurisdiction, subject to the right to bring actions before the Court, to rule whether any such agreement or decision is compatible with this Article’ carries no weight. These words establish the exclusive competence of the High Authority as the body to deal with agreements, and subject the administrative acts of the High Authority in this sphere to examination by the Court within the framework of the right of action which is limited by Articles 33 and 35 both in a personal respect and as affects the substance, without extending the right in either direction.
   This becomes especially clear if one remembers Article 80, which as regards Articles 65 and 66 clearly provides a basis for an extension in another form of the right to institute proceedings to undertakings engaged in distribution. Moreover this becomes plain by a comparison with the second subparagraph of Article 63 (2) which gives a right of action to purchasers of Community coal and steel products by way of exception to the general provisions and this finally becomes clear by a comparison with the second subparagraph of Article 66 (5) which likewise expressly contains an extension of the right of action.
   It seems obvious, however, that the last-mentioned provision is not applicable to the present case, especially since the applicant has herself been a party to the agreements she is asking the High Authority to annul. (We are concerned only with an agreement for amendment of the articles of association of the company dealing in iron because the companies in which the applicant has only an interest have been parties to the other agreements). The following appears in the second subparagraph of Article 66 (5): ‘Any person directly concerned may institute proceedings against (“wegen”) such decisions, as provided in Article 33’. The French text, which alone is authentic, is clearer than the German: ‘Toute personne directement intéressée peut former contre ces decisions un recours dans les conditions prévues a l'article 33’.
   It follows that a right to bring an action outside the general right to do so is available to persons directly concerned only if the High Authority affects their rights or interests by certain decisions (declaration that a concentration is unlawful, order for the separation of undertakings or assets, order for cessation of joint control, etc.). As undertakings outside the Community can be parties to such operations and be directly affected by the orders of the High Authority, it is reasonable to guarantee them legal protection against such measures.
   On the other hand Article 66 (5) does not cover the clearly different case, from the point of view of interests of the parties, in which the High Authority must be called upon to take such decisions. Here it is a case of creating competitive conditions in accordance with the Treaty which can only be enforced by individuals through Community coal and steel undertakings. Other interested parties are directed into other channels for the pursuit of interests which need protection — such as actions before national courts which, for their part, have to apply to the Court for preliminary rulings on questions of Community law.
   To sum up, I come to the conclusion that the applicant has no right to bring an action under the ECSC Treaty. Without going into the other objections raised by the High Authority as to the proper form of the application, the inadequacy of the conclusions and the question of an interest in obtaining legal protection, the application must be dismissed as inadmissible with the result that the applicant, as the High Authority has contended, must bear the costs of the proceedings.
   (
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      )	Translated from the German.