1 . THE APPLICANTS MAINTAIN THAT TARIFF AT 6 B 30 ( II ) IS NOT JUSTIFIED BY COMPETITION FROM ANOTHER MODE OF TRANSPORT . TARIFF AT 6 B 33 ( I ) IS NOT ALIGNED ON THE COMPETING RATES FOR THE CARRIAGE BY INLAND WATERWAY OF EITHER COAL OR COKE . P . 293 ON THE BASIS OF THE FINDINGS OF THE EXPERT'S REPORT WHICH IT ADOPTS AND ACCEPTS AS ITS OWN, THE COURT FINDS THAT THE INLAND WATERWAYS ARE IN GENUINE COMPETITION WITH THE RAILWAY FOR CONSIGNMENTS TO THE OSNABRUECK FACTORY AND OFFER POTENTIAL COMPETITION FOR CONSIGNMENTS TO THE GEORGSMARIENHUETTE FACTORY . SINCE THE TWO TARIFFS ARE THUS JUSTIFIED IN GENERAL ON THE GROUND OF COMPETITION, IT IS SUFFICIENT IN THIS CASE TO ASCERTAIN WHETHER THE PARITY OF THE RATES BETWEEN THE TWO COMPETING MODES OF TRANSPORT HAS BEEN CORRECTLY CALCULATED, THAT IS TO SAY, WHETHER THE RATES UPON WHICH THE DISPUTED TARIFFS ARE BASED ARE CORRECTLY ALIGNED ON THE COMPETING INLAND WATERWAY RATES . AS THE EXPERT HAS CONVINCINGLY SHOWN THIS ALIGNMENT CAN ONLY BE CONSIDERED TO BE CORRECT IF THE RAILWAY RATE EXCEEDS THE INLAND WATERWAYS RATE BY DM 0.60 TO DM 0.70 PER METRIC TON AND PROVIDED THAT THE RATE FOR CARRYING COKE BY INLAND WATERWAYS IS INCREASED BY AN EXTRA CHARGE OF DM 0.80 TO DM 1.00 PER METRIC TON COMPARED WITH THE RATE FOR CARRYING COAL BY THE SAME MEANS . IT EMERGES FROM THE EXPERT'S REPORT THAT, SO FAR AS THIS TRAFFIC FROM THE KOENIGSBORN MINES TO THE OSNABRUECK FACTORY IS CONCERNED, TARIFF AT 6 B 30 ( II ) IS IN NO WAY ALIGNED ON THE INLAND WATERWAYS RATE . FURTHER, SO FAR AS TRAFFIC FROM THE MINES OF WESTPHALIA AND KOENIGSBORN IS CONCERNED, TARIFF AT 6 B 30 ( II ) IS NOT IS NOT CORRECTLY ALIGNED ON THE INLAND WATERWAYS RATE FOR COAL . EVEN IF CERTAIN CORRECTIONS ARE TAKEN INTO ACCOUNT, NAMELY THAT UNLOADING CHARGES SHOULD IN THE CASE OF THE RAILWAYS BE PUT AT A HIGHER FIGURE THAN THE ONE CALCULATED BY THE EXPERT, THE COURT FINDS THAT THE TARIFF IN QUESTION, IN THE CASE OF TRAFFIC STARTING FROM THE MINES OF WESTPHALIA, IS BASED ON A RATE WHICH IS LOWER THAN THE INLAND WATERWAYS RATE, OR IN THE CASE OF TRAFFIC STARTING FROM THE KOENIGSBORN MINES, ON A RATE WHICH EXCEEDS THE INLAND WATERWAYS RATE BY SUCH A SMALL AMOUNT THAT IT CANNOT BE REGARDED AS A TARIFF WHICH IS CORRECTLY ALIGNED AND COMPETITIVE . ON THE OTHER HAND THIS TARIFF IS CORRECTLY ALIGNED ON THE INLAND WATERWAYS RATE SO FAR AS TRAFFIC FROM THE VIKTOR-ICKERN MINES IS CONCERNED .. THE DEFENDANT SUBMITS THAT THE DETERMINATION OF THE LEGALITY OF THE TARIFFS IN QUESTION MUST BE BASED ON THE RATE APPLICABLE TO TRAFFIC FROM THE VIKTOR-ICKERN MINES, BECAUSE, TAKING INTO ACCOUNT TARGETS THE QUALITY OF THE COAL FROM AND THE PRODUCTION TARGETS FIXED BY THE MINES, THE GEORGSMARIENHUETTE FACTORY WOULD HAVE NO DIFFICULTY IN OBTAINING ITS SUPPLIES FROM ITS OWN MINES AT VIKTOR-ICKERN RATHER THAN FROM THOSE IN WESTPHALIA AND KOENIGSBORN . THE POSSIBILITY OF SUPPLYING THIS FACTORY FROM THE VIKTOR-ICKERN MINES CANNOT JUSTIFY RETENTION OF TARIFF AT 6 B 30 ( II ) FROM CONSIGNMENTS FROM THE MINES OF WESTPHALIA AND KOENIGSBORN, SINCE, IN THE CASE OF THESE CONSIGNMENTS, IT IS NOT CORRECTLY ALIGNED ON THE COMPETING INLAND WATERWAYS RATES . THE ABOVEMENTIONED FINDINGS APPLY A FORTIORI TO THE CARRIAGE OF COKE, SINCE THE RAILWAY RATE HAS IN THIS CASE TO TAKE ACCOUNT OF THE SURCHARGE BY WHICH THE INLAND WATERWAYS RATE FOR THE CARRIAGE OF COKE HAS TO BE INCREASED COMPARED WITH THE CARRIAGE OF COAL BY THE SAME ROUTE . P . 294 CONSEQUENTLY, IN SO FAR AS TARIFF AT 6 B 30 ( II ) IS A SPECIAL INTERNAL RATE AND CONDITION APPLIED TO CONSIGNMENTS FROM THE MINES OF KOENIGSBORN AND WESTPHALIA IT CONSISTS PARTIAL OF AN AID OR A SUBSIDY AND FOR THIS REASON DOES NOT COMPLY WITH THE PRINCIPLES OF THE TREATY AS LAID DOWN IN THE FOURTH PARAGRAPH OF ARTICLE 70 TO THE EXTENT TO WHICH IT IS NOT CORRECTLY ALIGNED .
2 . THE APPLICANTS ALSO SUBMIT THAT THE HIGH AUTHORITY IS UNDER A SPECIFIC DUTY TO RECOMMEND THE GOVERNMENT OF THE FEDERAL REPUBLIC OF GERMANY TO ADOPT FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY TARIFF ARRANGEMENTS FOR THE CARRIAGE OF MINERAL FUELS SIMILAR TO THOSE APPLYING TO GERMAN IRON AND STEEL FACTORIES . THE REFUSAL BY THE HIGH AUTHORITY IN ITS LETTER OF 7 JUNE 1958 TO ACKNOWLEDGE THAT IT IS UNDER SUCH A DUTY CONTRAVENES THE FIRST AND SECOND PARAGRAPHS OF ARTICLE 40 OF THE TREATY . THEREFORE THIS ARGUMENT IS NOT WELL FOUNDED . THE HIGH AUTHORITY ONLY HAS POWER UNDER ARTICLE 4 ( B ) AND THE FIRST, SECOND AND THIRD PARAGRAPHS OF ARTICLE 70 OF THE TREATY TO BRING TO AN END TARIFF MEASURES WHICH ENTAIL DISCRIMINATION BASED ON A CRITERION OF NATIONALITY OR WHICH DO NOT COMPLY WITH THE PRINCIPLES OF THE TREATY . EXCEPT IN THE CASES COVERED BY THIS PROHIBITION THE FIFTH PARAGRAPH OF ARTICLE 70 OF THE TREATY PROVIDES THAT ALL OTHER TRANSPORT MEASURES FALL WITHIN THE JURISDICTION OF THE MEMBER STATE CONCERNED, WITH THE RESULT THAT IN THIS FIELD THE HIGH AUTHORITY CAN MERELY MAKE SUGGESTIONS . IT IS ONLY POSSIBLE TO IMAGINE THE HIGH AUTHORITY BEING UNDER A DUTY TO RECOMMEND THE ADOPTION FOR THE BENEFIT OF NON-GERMAN IRON AND STEEL FACTORIES OF THE COMMUNITY OF TARIFF ARRANGEMENTS SIMILAR TO THOSE APPLYING TO GERMAN IRON AND STEEL FACTORIES, IF THE GERMAN AND NON-GERMAN IRON AND STEEL UNDERTAKINGS ARE IN COMPARABLE SITUATIONS . THE APPLICANTS HAVE NEITHER SUBMITTED NOR PROVED THAT THEY ARE IN SUCH A COMPARABLE SITUATION, BECAUSE THEY HAVE A MODE OF TRANSPORT COMPETING WITH THE RAILWAYS OR BECAUSE THEY ARE EXPOSED TO SPECIAL DIFFICULTIES SIMILAR TO THOSE TO WHICH THE GERMAN UNDERTAKINGS IN QUESTION ARE LAID OPEN . AS WAS FOUND IN CASE 24/58, THE DISPUTED TARIFF ARRANGEMENTS, EVEN IF THEY ARE CONSIDERED AS A WHOLE, DO NOT INCLUDE ANY DISCRIMINATION BASED ON A CRITERION OF NATIONALITY AND THEREFORE COMPLY WITH THE PRINCIPLES OF THE TREATY . IN THESE CIRCUMSTANCES THE APPLICATION TO THE APPLICANTS OF THE TARIFF ARRANGEMENTS APPLICABLE TO GERMAN IRON AND STEEL FACTORIES WOULD INFRINGE ARTICLES 4 ( B ) AND 70 OF THE TREATY . THE APPLICATION IS UNFOUNDED .