1 . THE MEANING OF THE FIRST PARAGRAPH OF ARTICLE 40 THE FIRST PARAGRAPH OF ARTICLE 40 DEALS WITH DISPUTES CONCERNING THE LIABILITY OF THE COMMUNITY FOR WRONGFUL ACTS OR OMISSIONS . THE ACTION FOR REPARATION REFERRED TO IN ARTICLE 40 DIFFERS FROM AN APPLICATION FOR ANNULMENT BOTH IN ITS SUBJECT-MATTER AND IN THE NATURE OF THE GROUNDS WHICH MAY BE PLEADED . AS REGARDS ITS SUBJECT-MATTER, AN ACTION FOR REPARATION IS DIRECTED NOT TO THE ABOLITION OF A PARTICULAR MEASURE BUT ONLY TO REPARATION OF DAMAGE CAUSED BY AN ACT OR FAILURE TO ACT AMOUNTING TO A WRONGFUL ACT OR OMISSION . AS REGARDS THE GROUNDS ON WHICH AN ACTION FOR REPARATION MAY BE BASED ONLY THE EXISTENCE OF A WRONGFUL ACT OR OMISSION CAN LEAD TO A FINDING AGAINST THE HIGH AUTHORITY WHEREAS AN APPLICATION FOR ANNULMENT ENABLES THE FOUR GROUNDS MENTIONED IN ARTICLE 33 TO BE PLEADED . ARTICLE 40 CONSEQUENTLY CONFERS ON THE COURT A JURISDICTION WHICH IS CLEARLY DIFFERENT FROM THAT WHICH IT EXERCISES IN DISPUTES CONCERNING LEGALITY . IN THE PRESENT CASE THE COURT IS NOT ASKED TO RULE ON THE QUESTION WHETHER IT MAY BE PLEADED THAT THE ALLEGED ILLEGALITY OF A MEASURE WHICH HAS NOT BEEN ANNULLED CONSTITUTES IN ITSELF A WRONG CAPABLE OF GIVING RISE TO A RIGHT TO REPARATION UNDER ARTICLE 40 . ON THE OTHER HAND IN THE PRESENT CASE THERE WAS NO DECISION OF THE HIGH AUTHORITY CREATING RIGHTS OR HAVING LEGAL EFFECTS . IN THESE CIRCUMSTANCES THE INFRINGEMENT OF THE TREATY OF WHICH THE HIGH AUTHORITY IS ACCUSED, ON THE GROUND THAT THIS IS INHERENT IN ITS INACTION, MAY UNQUESTIONABLY BE PLEADED IN SUPPORT OF AN ACTION BASED ON ARTICLE 40 AND THERE IS NO NEED, IN CONSIDERING THE PRESENT CASE, TO RULE UPON THE QUESTION OF THE ADMISSIBILITY OF AN ACTION FOR REPARATION BASED ON THE ILLEGALITY OF A POSITIVE ACT THE ANNULMENT OF WHICH HAS NOT BEEN SOUGHT . THE DIFFERENCE WHICH EXISTS BETWEEN THE JURISDICTION CONFERRED ON THE COURT BY ARTICLES 33 AND 35, AND THAT WHICH IS CONFERRED ON IT BY ARTICLE 40, IS CONFIRMED BY THE RESERVATION CONTAINED IN THE FIRST PARAGRAPH OF THE LATTER ARTICLE : 'WITHOUT PREJUDICE TO THE FIRST PARAGRAPH OF ARTICLE 34 '. THAT PHRASE EXCLUDES ANY POSSIBILITY OF A REFERENCE TO ARTICLE 34 AND REFERS ON THE CONTRARY TO SITUATIONS WHERE ARTICLE 34 IS NOT APPLICABLE, AS IN THE PRESENT CASE . P . 214
2 . THE CAPACITY TO BRING AN ACTION UNDER ARTICLE 40 . SINCE, AS HAS ALREADY BEEN SHOWN, THE APPLICANT DOES NOT HAVE THE STATUS OF AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 OF THE TREATY, IT IS NECESSARY TO CONSIDER WHETHER IT HAS THE CAPACITY TO INSTITUTE PROCEEDINGS FOR REPARATION UNDER THE FIRST PARAGRAPH OF ARTICLE 40 . ARTICLE 40 DOES NOT CONTAIN THE LIMITS LAID DOWN BY ARTICLES 33 AND 35 AS REGARDS THE CAPACITY OF APPLICANTS . BECAUSE OF THE DISTINCTION BETWEEN ACTIONS FOR ANNULMENT AND ACTIONS CONCERNING LIABILITY, THAT DIFFERENCE IN WORDING MUST BE REGARDED IN ITSELF AS A FACTOR SUFFICIENT TO EXCLUDE THE POSSIBILITY THAT THE AUTHORS OF THE TREATY INTENDED TO LAY DOWN, AS REGARDS THE RIGHT TO TAKE PROCEEDINGS FOR REPARATION, LIMITS SIMILAR TO THOSE WHICH THEY HAD LAID DOWN AS REGARDS ACTIONS FOR ANNULMENT . THAT LITERAL INTERPRETATION IS CONFIRMED BY THE FOLLOWING CONSIDERATIONS . AN APPLICATION FOR ANNULMENT MAKES POSSIBLE A DIRECT REVIEW OF THE ACTIVITIES OF THE HIGH AUTHORITY LEADING, WHERE APPROPRIATE, TO THE ANNULMENT OF ILLEGAL ACTS, WHEREAS AN APPLICATION FOR REPARATION CAN GIVE RISE ONLY TO AN ORDER DIRECTED TO THE HIGH AUTHORITY TO MAKE GOOD THE INJURY CAUSED BY ITS CONDUCT . AN APPLICATION FOR ANNULMENT HAS A MUCH MORE MARKED IMPACT ON THE HIGH AUTHORITY'S FIELD OF ACTIVITY WHILST AN APPLICATION FOR REPARATION CAN DEAL ONLY WITH THE CONSEQUENCES OF THAT ACTIVITY . ON THE OTHER HAND THE PROBLEM ARISES IN A DIFFERENT MANNER IN THE CASE OF AN ACTION FOR REPARATION, ON THE ONE HAND BECAUSE THE SUBJECT-MATTER OF THE APPLICATION FOR REPARATION IS MUCH MORE LIMITED THAN THAT OF AN APPLICATION FOR ANNULMENT, AND BECAUSE THE BASIS OF THE ACTION IS SUBJECT TO PROOF OF THE EXISTENCE OF A WRONGFUL ACT OR OMISSION; ON THE OTHER HAND BECAUSE NO REASON CAN JUSTIFY THE REFUSAL OF ANY LEGAL PROTECTION TO NATURAL OR LEGAL PERSONS WHO ARE NOT SUBJECT TO THE JURISDICTION OF THE COMMUNITY, WHEN SUCH DAMAGE IS CAUSED BY A WRONGFUL ACT OR OMISSION COMMITTED IN THE IMPLEMENTATION OF THE TREATY, A MATTER IN WHICH THE COURT HAS EXCLUSIVE JURISDICTION, WHILST ANY NATURAL OR LEGAL PERSON MAY BY APPLICATION TO THE COMPETENT NATIONAL COURTS OBTAIN REPARATION FOR DAMAGE CAUSED BY COMMUNITY INSTITUTIONS OUTSIDE THE APPLICATION OF THE TREATY ( THIRD PARAGRAPH OF ARTICLE 40 ). FOR THE REASONS SET OUT ABOVE, THE OBJECTION OF INADMISSIBILITY RAISED BY THE DEFENDANT MUST BE DISMISSED . P . 215
3 . SUBJECT-MATTER OF THE APPLICATION THE DEFENDANT FURTHER MAINTAINED THAT THE APPLICANT CONFINED ITSELF IN ITS APPLICATION TO COMPLAINING OF THE HIGH AUTHORITY'S CONDUCT AS FROM 1957 AND THAT IT EXTENDED ITS CLAIM IN THE REPLY, IN WHICH IT BELATEDLY CRITICIZED THE PREVIOUS CONDUCT OF THE HIGH AUTHORITY . IT IS IN THE CONTEXT OF THE EXAMINATION OF THE SUBSTANCE OF THE CASE THAT A DECISION MAY BE CALLED FOR ON WHETHER A FAILURE TO ACT BY THE HIGH AUTHORITY MAY CONSTITUTE A WRONGFUL OMISSION INDEPENDENTLY OF ANY REQUEST FROM THOSE CONCERNED . WITHIN THE CONTEXT OF ADMISSIBILITY IT IS ENOUGH TO SAY THAT THE SUBJECT MATTER OF THE CLAIM WAS SET OUT IN THE APPLICATION WITH SUFFICIENT CLARITY IN THE ARGUMENTS RELIED UPON BY THE APPLICANT, WHICH COMPLAINS THAT THE HIGH AUTHORITY NEVER ACTED, AS IT WAS ITS DUTY TO DO, IN ORDER TO ENSURE RESPECT BY THE FRENCH GOVERNMENT FOR THE RULE OF FREE MOVEMENT OF PRODUCTS IMPORTED FROM THIRD COUNTRIES . ON THE OTHER HAND, THERE MUST BE NO CONFUSION BETWEEN THE SUBJECT-MATTER OF THE APPLICATION, WHICH IS REPARATION FOR DAMAGE CAUSED AS FROM A PARTICULAR TIME, WITH THE LEGAL ARGUMENTS RELIED ON TO SHOW THE EXISTENCE OF A WRONGFUL ACT OR OMISSION, SINCE THESE ARGUMENTS MAY BE SUPPLEMENTED AND EXPOUNDED IN GREATER DETAIL DURING THE COURSE OF THE PROCEEDINGS . THIS SECOND OBJECTION MUST THEREFORE ALSO BE DISMISSED . C -ON THE SUBSTANCE OF THE CASE ( A ) THE APPLICANT MAINTAINS THAT WHEN THE TREATY PRESCRIBES THE FREE MOVEMENT OF PRODUCTS OF THE MEMBER STATES, THIS IMPLIES ALSO THE FREE MOVEMENT OF PRODUCTS ORIGINATING IN THIRD COUNTRIES, WHICH ARE LAWFULLY GRANTED BY ONE OF THE MEMBER STATES THE RIGHT OF ENTRY INTO ITS OWN TERRITORY . THE DEFENDANT DOES NOT CONTEST THIS VIEW, WHICH WAS ADOPTED OFFICIALLY BY THE HIGH AUTHORITY AS FROM 1955 AND FORMULATED BY IT IN ITS LETTER SENT ON 28 MAY 1955 TO THE GOVERNMENTS OF THE MEMBER STATES IN THE FOLLOWING TERMS : 'THE COMMUNITY IS BASED, IN ITS OWN SPHERE, ON THE PRINCIPLE OF UNITY, THAT IS TO SAY ON THAT OF THE COMMON MARKET WHICH ASSUMES UNRESTRICTED MOVEMENT OF ALL COAL AND STEEL PRODUCTS COMING WITHIN THE JURISDICTION OF THE COMMUNITY . THIS PRINCIPLE OF THE FREE MOVEMENT OF PRODUCTS LAID DOWN IN ARTICLE 4 ( A ) OF THE TREATY APPLIES NOT ONLY TO PRODUCTS ORIGINATING FROM A COMMUNITY COUNTRY BUT ALSO TO COAL AND STEEL PRODUCTS OF THIRD COUNTRIES, ON CONDITION HOWEVER THAT THEY HAVE BEEN IMPORTED PROPERLY INTO ANY COUNTRY OF THE COMMUNITY' ( DOCUMENT N . 12 ANNEXED TO THE APPLICATION IN CASE 9/60 ). P . 216 THE COURT ACCEPTS THE PRINCIPLE ( WHICH IS NOT DISPUTED BY THE PARTIES ) OF THE FREE MOVEMENT OF PRODUCTS FROM THIRD COUNTRIES AND CONSIDERS THAT IT IS NOT NECESSARY IN THE PRESENT CASE TO EXAMINE IT IN GREATER DETAIL . ( B ) THE APPLICANT MAINTAINS THAT THE HIGH AUTHORITY WAS GUILTY OF A WRONGFUL OMISSION BY ABSTAINING FROM ENSURING RESPECT, BY APPLYING THE PROCEDURE LAID DOWN IN ARTICLE 88, FOR THE ABOVEMENTIONED RULE OF FREE MOVEMENT, AND THAT BECAUSE OF THIS WRONGFUL OMISSION THE APPLICANT WAS NOT IN A POSITION TO MAKE REGULAR SALES IN FRANCE OF THE COAL WHICH IT HAD IMPORTED INTO BELGIUM, AND THAT CONSEQUENTLY THE HIGH AUTHORITY IS OBLIGED TO COMPENSATE IT FOR THE DAMAGE CAUSED TO IT BY THIS INFRINGEMENT OF ITS RIGHTS . THE COURT, BEFORE CONSIDERING WHETHER THE ABSTENTION OF THE HIGH AUTHORITY MUST BE REGARDED AS WRONGFUL OMISSION, PROPOSES FIRST OF ALL TO EXAMINE WHETHER SUCH ABSTENTION ( EVEN ASSUMING THAT IT AMOUNTED TO A WRONGFUL OMISSION ) DAMAGED THE INTERESTS OF THE APPLICANT IN SUCH A WAY THAT A RIGHT TO REPARATION ACCRUED TO IT . ARTICLE 4 ( A ) MUST BE INTERPRETED IN THE LIGHT OF ARTICLES 2 AND 3 ( B ), AND ESPECIALLY OF THEIR RESPECTIVE OBJECTIVES, THAT IS TO SAY 'PROGRESSIVELY BRING ABOUT CONDITIONS WHICH WILL OF THEMSELVES ENSURE THE MOST RATIONAL DISTRIBUTION OF PRODUCTION' AND 'ENSURE THAT ALL...CONSUMERS IN THE COMMON MARKET HAVE EQUAL ACCESS TO THE SOURCES OF PRODUCTION '. THE PRINCIPLE OF FREE MOVEMENT OF GOODS IMPLIED BY ARTICLE 4 ( A ) WAS ESTABLISHED ESPECIALLY IN THE INTERESTS OF COMMUNITY PRODUCTION . THE EXTENSION OF THAT RULE TO PRODUCTS COMING FROM THIRD COUNTRIES AND PROPERLY IMPORTED WAS NOT ADOPTED FOR THE PROTECTION OF THOSE PRODUCTS OR THEIR PRODUCERS, BUT IN ORDER TO PREVENT THE FREE MOVEMENT OF COMMUNITY PRODUCTS BEING ITSELF DIMINISHED OR IMPAIRED BY THE ESTABLISHMENT OF OBSTACLES TO THE FREE MOVEMENT OF THE SAID PRODUCTS . CONSEQUENTLY IF THE HIGH AUTHORITY, WHICH IS REQUIRED TO HAVE ARTICLE 4 ( A ) RESPECTED BY THE MEMBER STATES AND COMMUNITY UNDERTAKINGS, DOES NOT CARRY OUT THAT DUTY, THOSE WHO ARE SUBJECT TO IT ARE ENTITLED TO CONSIDER THEMSELVES TO HAVE SUFFERED DAMAGE TO THEIR LEGITIMATE EXPECTATIONS OR TO THEIR RIGHTS AND TO ASK FOR REPARATION OF THE DAMAGE WHICH HAS THUS BEEN DONE TO THEM . IT IS OTHERWISE WHEN PRODUCTS ORIGINATING IN THIRD COUNTRIES ARE CONCERNED BECAUSE ALTHOUGH IN CERTAIN CIRCUMSTANCES THESE PRODUCTS ARE ALLOWED TO BENEFIT FROM THE APPLICATION OF ARTICLE 4 ( A ) THAT ADVANTAGE IS ONLY A REFLECTION OF THE GUARANTEE WHICH THE TREATY INTENDED TO GRANT TO COMMUNITY PRODUCTS, SO THAT PRODUCERS IN THIRD COUNTRIES AND TRADERS DEALING IN THEIR PRODUCTS ARE THEREFORE NOT ENTITLED TO PUT FORWARD CLAIMS FOR REPARATION ON THE BASIS OF THE INFRINGEMENT OF SOME ALLEGED PERSONAL RIGHT VESTED IN THEM IF IT SHOULD HAPPEN THAT THE ABOVE RULE IS NOT APPLIED AND THEY SUFFER DAMAGE AS A RESULT . P . 217 ARTICLE 73 ASSIGNS THE ADMINISTRATION OF IMPORT LICENCES FOR TRADE WITH THIRD COUNTRIES TO THE GOVERNMENT IN WHOSE TERRITORY THE PLACE OF DESTINATION FOR IMPORTS IS SITUATED . IT EMERGES FROM THE ALLEGATIONS OF THE APPLICANT ITSELF, AND ESPECIALLY FROM THE DOCUMENT ANNEXED TO THE APPLICATION IN CASE 9/60, THAT THE COAL IN QUESTION WAS NEVER INTENDED FOR MOVEMENT WITHIN BELGIUM OR THE COMMUNITY IN GENERAL, BUT ONLY FOR FRANCE . THE FACT OF HAVING SUBJECTED THE COAL TO WASHING, SCREENING AND CRUSHING IN BELGIUM IN NO WAY CHANGES THIS FIRST AND FINAL DESTINATION OF THE COAL . THE ADMISSION OF THIS COAL TO FREE CIRCULATION IN BELGIUM COULD BE EFFECTED WITHOUT DIFFICULTIES OR CHARGES OF ANY KIND . IN THESE CIRCUMSTANCES THE APPLICANT CANNOT RELY ON A POSSIBLE BREACH OF DUTY BY THE HIGH AUTHORITY IN ORDER TO CLAIM COMPENSATION FOR THE DAMAGE THEREBY SAID TO BE CAUSED TO IT . ALTHOUGH THE PRINCIPLE OF FREE MOVEMENT, ACCEPTED BY THE COURT, PROHIBITS THE MEMBER STATES FROM REFUSING ENTRY INTO THEIR TERRITORY OF PRODUCTS ORIGINATING IN THIRD COUNTRIES AND LAWFULLY IMPORTED INTO ANOTHER MEMBER STATE, ARTICLE 73 OF THE TREATY ON THE OTHER HAND ASSIGNS THE ADMINISTRATION OF IMPORT LICENCES FOR TRADE WITH THIRD COUNTRIES TO THE GOVERNMENT IN WHOSE TERRITORY THE PLACE OF DESTINATION FOR IMPORTS IS SITUATED . IN THE PRESENT CASE, AS HAS BEEN SAID ALREADY, WHAT IS AT ISSUE IS AN ATTEMPT AT DIRECT IMPORTATION INTO FRANCE HAVING THE MERE SEMBLANCE OF AN IMPORT INTO BELGIUM . EVEN IF IT IS ACCEPTED THAT THE MEMBER STATES MAY DEFEND THEMSELVES AGAINST SUCH PRACTICES BY THE APPLICATION OF THE MUTUAL ASSISTANCE PROVIDED FOR IN ARTICLE 71, THE DUTY TO HAVE RECOURSE TO THE SAID MUTUAL ASSISTANCE IS NOT INTENDED TO SAFEGUARD THE INTERESTS OF ANY THIRD PARTIES, BUT ONLY THE INTERESTS OF THE COMMUNITY . IN MAKING AN APPLICATION UNDER ARTICLE 40 OF THE TREATY, THESE THIRD PARTIES CANNOT RELY ON THE FAILURE OF MUTUAL ASSISTANCE FOR THE DEFENCE AND LEGAL PROTECTION OF PRACTICES WHICH MUTUAL ASSISTANCE HAS PRECISELY THE OBJECT OF PREVENTING . IN THESE CIRCUMSTANCES THE APPLICANT CANNOT RELY ON A POSSIBLE BREACH OF DUTY BY THE HIGH AUTHORITY IN ORDER TO CLAIM COMPENSATION FOR THE DAMAGE THEREBY CAUSED TO IT . BECAUSE OF THESE CONSIDERATIONS AND WITHOUT ITS BEING NECESSARY TO CONSIDER THE APPLICANT'S OTHER ARGUMENTS THE APPLICATION MUST BE DISMISSED .