1 . THE APPLICANTS, POINTING OUT THAT THE POWER CONFERRED ON THE HIGH AUTHORITY BY THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION EXPIRED ON 9 FEBRUARY 1958 DENY THAT THE HIGH AUTHORITY HAD THE POWER TO TAKE THE DECISIONS NOTIFIED BY LETTER OF 12 FEBRUARY 1958 . IT APPEARS FROM THE ORAL ARGUMENTS AND FROM THE EXPLANATIONS FURNISHED AT THE HEARING THAT THOSE DECISIONS ( COMMUNICATED BY LETTER OF 12 FEBRUARY ) WERE ADOPTED ON THE EVENING OF 9 FEBRUARY 1958 AND THAT ALL THE DETAILS OF THOSE DECISIONS WERE FIXED ON THAT DATE, AS IS PROVED BY THE PRODUCTION OF THE DRAFTS DISCUSSED AT THAT MEETING AND BY THE MINUTES THEREOF . IT ALSO APPEARS FROM INFORMATION PRODUCED BY THE PARTIES THAT THE FACT THAT THOSE DECISIONS WERE ADOPTED ONLY ON THE LAST POSSIBLE DATE OF 9 FEBRUARY IS TO BE EXPLAINED BY A LAST - MINUTE APPROACH BY THE FEDERAL GOVERNMENT ASKING THE HIGH AUTHORITY TO RECONSIDER ITS POSITION, WHICH WAS ALREADY WELL KNOWN, AND BY THE DESIRE ON THE PART OF THE HIGH AUTHORITY NOT TO FAIL IN ITS DUTIES IN RESPECT OF THAT GOVERNMENT, WHICH LED IT TO POSTPONE THE FORMAL ADOPTION OF THOSE DECISIONS SO AS TO BE ABLE TO DELIBERATE UPON THEM AFRESH . IN ORDER TO ENTER INTO FORCE, THOSE DECISIONS HAD TO BE NOTIFIED TO THE FEDERAL GOVERNMENT AND, IN ACCORDANCE WITH THE RULES OF GOOD ADMINISTRATION, NOTIFIED AS QUICKLY AS POSSIBLE - WHICH WAS DONE . NEVERTHELESS, THAT DOES NOT IN ANY WAY ALTER THE FACT THAT IN THIS CASE THE DECISIONS WERE ADOPTED DURING THE TRANSITIONAL PERIOD . THUS THERE IS NO DOUBT THAT THE CONTESTED DECISIONS WERE TAKEN WITHIN DUE TIME . P . 189
2 . IN CASE 18/58 THE APPLICANT HAS ALSO ARGUED THAT THE HIGH AUTHORITY HAD NO POWER TO TAKE A DECISION CONCERNING ARTICLE 71 ( B ) OF THE SCALE OF DUES FOR NAVIGATION ON THE MITTELLANDKANAL BECAUSE THAT SCALE LAYS DOWN TOLL CHARGES GOVERNED BY PUBLIC LAW AND, THEREFORE, COVERS A MATTER ATTRIBUTABLE TO THE FISCAL SOVEREIGNTY OF THE MEMBER STATES . THIS ARGUMENT MUST BE REJECTED IN VIEW OF THE FACT THAT WHAT IS INVOLVED IS PAYMENT FOR THE USE OF PUBLIC MEANS OF TRANSPORT AND THAT THE PAYMENT CONSTITUTES ONE OF THE COMPONENTS OF THE COST OF TRANSPORT BY WATERWAY . THUS THE HIGH AUTHORITY DID NOT EXCEED ITS POWERS WHEN IT TOOK THE VIEW THAT THE REDUCTION OF THAT PAYMENT CONSTITUTED THE ESTABLISHMENT OF A SPECIAL RATE FOR TRANSPORT WITHIN THE MEANING OF THE FOURTH PARAGRAPH OF ARTICLE 60 . THE SAME APPLICANT ALSO ALLEGES THAT THE HIGH AUTHORITY OUGHT NOT TO HAVE DECIDED A QUESTION RELATING TO TRANSPORT BY WATERWAY INCIDENTALLY IN A DECISION WHICH OTHERWISE ONLY COVERS RATES AND CONDITIONS OF CARRIAGE BY RAIL . BEFORE ADOPTING ANY DECISION, THE HIGH AUTHORITY OUGHT, IT IS ARGUED, TO HAVE EXAMINED ALL THE FISCAL SYSTEMS OF THE MEMBER STATES IN SO FAR AS THEY CONCERN TRANSPORT BY INLAND WATERWAY . THIS ARGUMENT MUST ALSO BE REJECTED . IN VIEW OF THE DIRECT INFLUENCE OF THE AFOREMENTIONED ARTICLE 71 ( B ) ON SPECIAL RATE 6 B 33 THE HIGH AUTHORITY RIGHTLY EXAMINED THE LEGALITY OF THE SAID ARTICLE . IT WAS PARTICULARLY JUSTIFIED IN SO DOING BECAUSE IT APPEARED FROM ITS INVESTIGATIONS ON THIS POINT THAT NO SIMILAR CASE EXISTED . FINALLY, AS REGARDS THE NECESSITY FOR A PRELIMINARY EXAMINATION SUGGESTED BY THE APPLICANT, IT SHOULD BE NOTED THAT THE TREATY NOWHERE LAYS DOWN ANY SUCH REQUIREMENT . THE SUBMISSION AS TO INFRINGEMENT OF THE TREATY 1 . THE APPLICANTS ALLEGE THAT BY REASON OF THE ECONOMIC AND SOCIAL CONSEQUENCES WHICH MAY FOLLOW FROM THE ABOLITION OF THE SPECIAL INTERNAL RATES AND CONDITIONS, THE INTERESTED PARTIES ARE ENTITLED TO CLAIM THE GRANT OF THE AIDS PROVIDED FOR IN ARTICLE 23 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS . SINCE THE ABOLITION OF THE RATES AT ISSUE WAS DECIDED UPON AFTER EXPIRY OF THE TRANSITIONAL PERIOD OR ON THE EVE OF THE EXPIRY THEREOF, THE HIGH AUTHORITY IS SAID TO HAVE DEPRIVED THE APPLICANTS OF THE POSSIBILITY OF CLAIMING THOSE AIDS . THE APPLICANTS' COMPLAINT CANNOT BE ACCEPTED BECAUSE AT THE TIME WHEN THE ABOLITION OF THE RATES AT ISSUE WAS DECIDED UPON THE APPLICANTS WERE NOT DEPRIVED OF THE RIGHT OR OF THE MEANS OF CLAIMING THE GRANT OF THE ABOVEMENTIONED AIDS . P . 190 IN FACT THE LAST PARAGRAPH OF ARTICLE 23 OF THE CONVENTION PROVIDES THAT AID MAY BE GRANTED BY DECISION OF THE HIGH AUTHORITY WITH THE ASSENT OF THE COUNCIL DURING THE TWO YEARS FOLLOWING THE END OF THE TRANSITIONAL PERIOD . IF NO LOSS HAS BEEN INCURRED DURING THOSE TWO YEARS, THIS SITUATION IS PARTLY DUE TO THE FACT THAT THE FEDERAL GOVERNMENT HAS NOT CARRIED OUT THE CONTESTED DECISIONS . THEREFORE THE COMPLAINT CAN HARDLY BE LEVELLED AGAINST THE HIGH AUTHORITY THAT THIS FAILURE TO CARRY OUT THE DECISIONS PREVENTED THE UNDERTAKINGS FROM CLAIMING THE AID PROVIDED FOR BY ARTICLE 23 OF THE CONVENTION WITHIN DUE TIME . 2 . THE APPLICANTS ALLEGE THAT THE HIGH AUTHORITY, IN APPLYING THE SEVENTH PARAGRAPH OF ARTICLE 10 OF THE CONVENTION, HAS MISINTERPRETED ARTICLE 70 OF THE TREATY TO WHICH THAT ARTICLE REFERS . ( A ) AS REGARDS THIS MATTER, THE COURT INTENDS TO EXAMINE FIRST AN ARGUMENT PUT FORWARD SEPARATELY BY THE APPLICANT IN CASE 9/58 . THE LATTER HAS ALLEGED THAT THE FIRST PARAGRAPH OF ARTICLE 70 DOES NOT CONTAIN LAW WHICH IS DIRECTLY APPLICABLE AND ONLY ESTABLISHES A PROGRAMME . THIS INTERPRETATION DOES NOT ACCORD WITH THE EXPRESSIONS EMPLOYED IN THAT ARTICLE, WHICH STATES IN THE SECOND PARAGRAPH THAT 'ANY DISCRIMINATION...SHALL BE PROHIBITED', IN THE THIRD PARAGRAPH THAT 'THE SCALES ETC . SHALL BE PUBLISHED OR BROUGHT TO THE KNOWLEDGE OF THE HIGH AUTHORITY' AND ESPECIALLY IN THE FOURTH PARAGRAPH OF THAT ARTICLE WHICH STATES THAT 'THE APPLICATION OF SPECIAL INTERNAL RATES AND CONDITIONS...SHALL REQUIRE THE PRIOR AGREEMENT OF THE HIGH AUTHORITY, WHICH SHALL VERIFY ETC .', WHICH AGREEMENT MAY BE TEMPORARY OR CONDITIONAL . IT APPEARS FROM THE CONTEXT SET OUT ABOVE THAT THE FIRST PARAGRAPH IMPOSES - BOTH ON THE STATES AND ON THE HIGH AUTHORITY - A SUBSTANTIVE AND BINDING RULE REQUIRING THE APPLICATION OF THE PROVISIONS OF ARTICLE 70 . MOREOVER, THAT RULE FOLLOWS DIRECTLY FROM ARTICLE 4 WHICH FORMALLY PROVIDES THAT 'THE FOLLOWING....SHALL...BE ABOLISHED AND PROHIBITED...(B ) MEASURES OR PRACTICES WHICH DISCRIMINATE...IN...TRANSPORT RATES '. ( B ) SECONDLY, THE APPLICANTS CHALLENGE THE INTERPRETATION PUT BY THE HIGH AUTHORITY UPON THE FIRST PARAGRAPH OF ARTICLE 70, WHICH PROVIDES THAT COMPARABLE RATES AND CONDITIONS ARE TO BE OFFERED TO COMPARABLY PLACED CONSUMERS . THEY ALLEGE - CONTRARY TO THE POINT OF VIEW OF THE HIGH AUTHORITY, WHICH ONLY CONSIDERED THE CRITERION OF COMPARABILITY 'FROM THE POINT OF VIEW OF TRANSPORT' - THAT COMPARISON BETWEEN UNDERTAKINGS MUST TAKE INTO ACCOUNT ALL THE CIRCUMSTANCES IN WHICH THEY ARE PLACED, IN PARTICULAR THE PLACE OF PRODUCTION, THE PROFITABILITY OF THE DEPOSITS WORKED AND THE FACT OF BEING LOCATED IN A LESS FAVOURED REGION . P . 191 HOWEVER, THIS ARGUMENT MUST BE REJECTED . FIRST OF ALL, THE ABOVEMENTIONED PROVISION APPEARS IN THE CHAPTER HEADED 'TRANSPORT '. IT IS THEREFORE NECESSARY TO INTERPRET THE PHRASE 'COMPARABLY PLACED' AS REFERRING, AT LEAST IN PRINCIPLE, TO THE COMPARABILITY OF SITUATIONS FROM THE POINT OF VIEW OF TRANSPORT . MOREOVER, THE OPINION THAT ANY COMPARISON BETWEEN SEVERAL UNDERTAKINGS MUST TAKE INTO ACCOUNT ALL THE CIRCUMSTANCES IN WHICH THEY ARE PLACED WOULD LEAD TO THE RESULT THAT AN UNDERTAKING IS ONLY COMPARABLE WITH ITSELF, AND THUS THE CONCEPT 'COMPARABLY PLACED' AND, THEREFORE, THAT OF 'DISCRIMINATION' WOULD BECOME DEVOID OF ALL MEANING . IT APPEARS FROM ARTICLE 4 OF THE TREATY THAT IN ARTICLE 70 THE INTENTION OF THE AUTHORS OF THE TREATY WAS TO ELIMINATE DISTORTIONS IN THE COMMON MARKET BY THE HARMONIZATION OF TRANSPORT RATES AND CONDITIONS AND THUS TO ENSURE THAT THE COMMON MARKET WOULD FUNCTION ACCORDING TO THE PRINCIPLES ESTABLISHED BY THE TREATY . IN GIVING EXPRESSION TO THAT INTENTION, THEY CANNOT HAVE BEEN UNAWARE THAT THE TRANSPORT INDUSTRY CONSTITUTES A BRANCH OF INDUSTRY WHICH IS INDEPENDENT OF THAT OF THE PRODUCTION OF COAL AND STEEL AND THAT IT HAS ITS OWN PROBLEMS, NEEDS AND PROCEDURES . NOR CAN THEY HAVE FAILED TO UNDERSTAND THAT SO LONG AS THAT INDUSTRY HAS NOT BEEN INTEGRATED INTO THE COMMON MARKET ITS DISTINCT NATURE MUST BE RESPECTED AND THAT MEASURES TAKEN MUST BE CONFINED TO THOSE NECESSARY TO PREVENT IT FROM JEOPARDIZING THE OBJECTIVES OF THE TREATY BY ITS ACTIONS . THEREFORE, AS REGARDS INTERNATIONAL TRANSPORT, ARTICLE 70, WHILST ENVISAGING THE FUTURE HARMONIZATION OF NATIONAL RATES AND CONDITIONS, LEAVES TARIFF POLICY UNCONTROLLED AND CONFINES ITSELF TO THE REQUIREMENT THAT WITHIN EACH NATIONAL SYSTEM ANY DISCRIMINATION BASED ON THE POINT OF DEPARTURE OR DESTINATION MUST BE ABOLISHED . SIMILARLY - AS IS SHOWN BY THE FIFTH PARAGRAPH - IN RESPECT OF INTERNAL TRANSPORT, MEMBER STATES ARE FREE TO PRACTISE THEIR OWN COMMERCIAL POLICY, SUBJECT TO THE PROVISIONS OF THE TREATY . THERE CAN BE NO DOUBT THAT THE STATES OR TRANSPORT UNDERTAKINGS WOULD COME INTO CONFLICT WITH THOSE PROVISIONS IF, IN SETTING THEIR RATES AND CONDITIONS, THEY TOOK INTO ACCOUNT THE ADVANTAGES AND DISADVANTAGES OF THE LOCATION OF UNDERTAKINGS PRODUCING COAL AND STEEL OR THE QUALITY OF THE DEPOSITS WORKED . THE TREATY REQUIRES RATHER THAT IN DRAWING UP THEIR TARIFF PROVISIONS THE STATES SHOULD CONSIDER TRANSPORT CONDITIONS ALONE AND, THEREFORE, THE COMPARABILITY OF THE DIFFERENT ROUTES AND LOCATIONS FROM THE POINT OF VIEW OF TRANSPORT . ( C ) THE INTERVENER, THE LAND OF HESSE, HAS ALSO DEFENDED THE ARGUMENT THAT ARTICLE 70, IN SPEAKING OF COMPARABLE CONDITIONS, DOES NOT MEAN COMPARABILITY FROM THE POINT OF VIEW OF TRANSPORT, BUT THE CREATION OF COMPARABLE SITUATIONS IN THE COMMON MARKET, SUCH THAT DIFFERENCES IN SITUATION BETWEEN THE UNDERTAKINGS ARE TO BE COMPENSATED BY THE RATES SET . P . 192 THIS INTERPRETATION MUST BE REJECTED SIMPLY BECAUSE THE TREATY ONLY PROVIDES FOR A VERY PARTIAL INTEGRATION OF TRANSPORT . THIS ARGUMENT PRESUPPOSES A MUCH MORE COMPLETE INTEGRATION OF THE TRANSPORT MARKETS OF THE DIFFERENT MEMBER STATES AND A MORE ACTIVE INTERVENTION ON THE PART OF THE HIGH AUTHORITY THAN IS PROVIDED FOR BY THE FOURTH AND FIFTH PARAGRAPHS OF ARTICLE 70 . FOR THOSE SAME REASONS, ANY ATTEMPT TO TREAT THE APPLICATION OF ARTICLE 70 AS ANALOGOUS TO THE PRACTICE OF THE UNITED STATES INTERSTATE COMMERCE ACT IS CLEARLY INADEQUATE . THE INTERSTATE COMMERCE ACT IS DIRECTED, FIRST, AT A TOTAL AND MUCH MORE WIDE - RANGING CONTROL OF TRANSPORT RATES AND, SECONDLY, AT A TRUE FEDERAL TRANSPORT POLICY .
3 . THE APPLICANT IN CASE 18/58 ALSO COMPLAINS THAT THE HIGH AUTHORITY DID NOT STATE THE REASONS FOR WHICH IT CONSIDERED THAT ARTICLE 71 ( B ) OF THE SCALE OF DUES FOR NAVIGATION ON THE MITTELLANDKANAL IS DISCRIMINATORY . IN REALITY THIS COMPLAINT MERELY EXPRESSES THE FACT, ALREADY EXAMINED, THAT SPECIAL TRANSPORT RATES ARE NOT DISCRIMINATORY BY DEFINITION . AS HAS ALREADY BEEN SAID, THIS COMPLAINT, IN SO FAR AS IT IS PUT FORWARD IN SUPPORT OF THE SUBMISSION THAT THE TREATY HAS BEEN INFRINGED, MUST BE REJECTED . ESSENTIALLY, THE SAID COMPLAINT DOES NOT CONCERN THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AND THEREFORE IT CANNOT BE ACCEPTED UNDER THIS HEAD . THE SUBMISSION AS TO MISUSE OF POWERS FINALLY, THE APPLICANTS ARGUE THAT THE HIGH AUTHORITY HAS USED THE POWERS VESTED IN IT UNDER THE FOURTH PARAGRAPH OF ARTICLE 70 AND ARTICLE 10 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS TO ENDS FOR WHICH THE TREATY DOES NOT PROVIDE OR FOR WHICH IT NO LONGER MAKES PROVISION, AND ON THIS ACCOUNT THEY ASSERT THAT THERE HAS BEEN A MISUSE OF POWERS . IN PUTTING FORWARD THIS ASSERTION, THE APPLICANTS RELY ON FACTS ALREADY ADVANCED IN SUPPORT OF THE SUBMISSION AS TO THE INFRINGEMENT OF THE TREATY . THIS SUBMISSION HAS BEEN PUT FORWARD IN A VAGUE AND IMPRECISE MANNER . THE COURT MUST THEREFORE CONFINE ITSELF TO A FINDING THAT THE EXISTENCE OF A MISUSE OF POWERS IN RELATION TO THE APPLICANTS DOES NOT APPEAR TO IT TO BE ESTABLISHED BY THE FACTS SUCH AS THEY HAVE BEEN PRESENTED . THE SUBMISSION CONCERNING A MISUSE OF POWERS MUST BE REJECTED .