C-2/54

JUDGMENT OF THE COURT 21 DECEMBER 1954 1

Government of the Italian Republic v High Authority of the European Coal and Steel Community

Case 2/54

1. Procedure. Cf. Summary of Judgment in Case 1/54, para. 1

2. Prices. Cf Summary of Judgment in Case J/54, para. 2

3. Misuse of powers. Cf. Summary of Judgment in Case J/54, para. 3

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser, Nicola Catalano, acting as Agent, assisted by Jean Coutard, Advocate at the Conseil d'Etat and the Cour de Cassation, Paris, with an address for service in Luxembourg at its offices, 2 Place de Metz,

defendant, 1 — Language of the Case: Italian.

JUDGMENT OF 21. 12. 1954 — CASE 2/54

APPLICATION for the annulment of Decisions No 1/54, 2/54 and 3/54 of the High Authority of 7 January 1954,

THE COURT

On 18 February 1954 the Government of keep strictly to the prices stated therein, the Italian Republic lodged at the Court any variation in relation to the aforemen­ Registry an application for the annulment tioned lists constituting, according to these of Decisions Nos 1/54, 2/54 and 3/54 of texts, a prohibited discriminatory practice. the High Authority of 7 January 1954, On 7 January 1954 the High Authority published as follows: No 1/54 in the Offi­ amended these rules by adopting Decisions cial Journal, English Special Edition 1952- Nos 1/54 and 2/54 against which the pre­ 1958, p. 14; No 2/54 in the Official Jour­ sent proceedings are now brought. nal, English Special Edition 1952-1958, p. Under this new system, a variation from 15; and No 3/54 in the Journal Officiel de published prices no longer amounts to a la Communauté Européenne du Charbon prohibited practice if the seller can show et de l'Acier, 13 January 1954. that the transaction in question does not fall within the categories of transactions The application was submitted within the covered by his price-list or that the prices required period, in accordance with the or conditions have been departed from third paragraph of Article 33 of the Treaty equally in all comparable transactions and with Articles 84 and 85 of the Rules of (Decision No 1/54); moreover, in the case Procedure of the Court and the Agent and of the steel market, and the steel market Advocate have been duly appointed. alone, an average margin of 2.5% was in­ troduced, within which a variation from It appears from the documents produced the lists was allowed in the case of all trans­ by the parties as well as from the decisions actions concluded within the preceding at issue that the facts of the case are as fol­ sixty days without the need for prior publi­ lows: cation of new lists (Decision No 2/54), last­ Under the terms of Article 60 of the Trea­ ly, for the purposes of verification, under­ takings must submit fortnightly reports on ty, the High Authority, on 2 May 1953, variations made on the steel market (Deci­ adopted Decisions Nos 30/53 and 31/53 sion No 3/54). which define the practices prohibited by Article 60 (1) and contain rules for the steel market relating to the publication of price- The aforementioned decisions and com­ lists and conditions of sale; under the munications relating thereto were pub­ terms of these decisions, undertakings lished in the Journal Officiel, 1953 pp. 109 were under an obligation to publish their to 112, and 1954, pp. 217 to 224; Deci­ price-lists prior to any transactions and sions Nos 30/53, 31/53, 1/54 and 2/54

were subsequently published in the Official (b) Infringement by Decisions Nos 2/54 Journal, English Special Edition 1952- and 3/54 ofArticle 60 (2) ofthe Treaty: the 1958, pp. 9 to 12 and 14 to 16. admission of differences in relation to the By its application, the Government of the published price-lists derogates from the Italian Republic contested the aforemen system prescribed by the Treaty: it follows tioned decisions and asked the Court, to from the words at the beginning of Article 60 (2): 'For these purposes', that the obli 'Annul Decisions Nos 1 /54, 2/54 and 3/54 gation to publish has been prescribed to of the High Authority of 7 January 1954', ensure that the prohibition on discrimina tion is observed.

Accord B. Misuse of powers. ing to the Treaty publication is an indis pensable means of preventing discrimina The grounds put forward may be summar ized as follows: tion; only full publication ensures equal treatment for all buyers. For this reason (a) Infringement by Decision No 1/54 of the High Authority is not generally entitled Article 60 (1) in conjunction with Article 4 to allow differences in relation to the price- lists. The words 'to the extent and in the (b) of the Treaty: the latter has created an insoluble link between the principle of manner prescribed by the High Authority' publicity and that of non-discrimination contained in Article 60 (2) (a) give the High such that only the previous rules can be re Authority the right only to regulate the garded as lawful. The grant of any varia conditions of publication but not the right tions in relation to the price-lists substi

For these reasons account the reservations made within the also they are contrary to the letter and Consultative Committee and the Council spirit of the Treaty. of Ministers. In addition to these consider ations there is the fact that the Treaty does (c) Infringement of Article 30 (2) of the not define 'comparable transactions'; as a Convention on the Transitional Provi result undertakings have the opportunity sions : the decisions in question allow non- of making each case 'unique' and escaping Italian steel producers to agree to reduc the sanctions provided for in the event of a tions on the Italian market which by rea disregard of the prohibition on discrimina son of the introduction of the average dif

JUDGMENT OF 21. 12. 1954 — CASE 2/54

The new required to pursue according to the Treaty. rules are more logical than the old. It is It is required: clear that a seller who varies his price-lists equally for all comparable transactions is 1. To use the power which it has under not making any discrimination. Further, Article 60 (1) only for the purpose of defin the obligation to publish is only a means in ing discriminatory practices; in fact its ob relation to the prohibition on discrimina jective has been to allow discrimination tion and is not an objective in itself.

The variations then are re Finally, Decision No 3/54 is vitiated for ductions and constitute for the buyers an misuse of powers for although according to advantage of which they are not going to the statement of the reasons on which it is complain. It is not correct to say that the based it is intended to prevent discrimina Treaty provides for a system of fixed tion, in fact it must serve to authorize var prices. The new submissions made for the iations. first time in the reply must be declared in The application was served on the High admissible under Article 29 (3) of the Authority on 19 February 1954 in accord Rules of Procedure.

pointed. In its defence the High Authority power to agree a margin. requests the Court to: The criterion of non-comparability of a transaction is an objective factor which 'Dismiss the application by the Govern cannot be arbitrarily assessed by undertak ment of the Italian Republic filed on 10 ings although the ascertainment of com February 1954, served on 19 February parability may in practice sometimes be 1954 and order the applicant to pay the difficult. The objection based on the da costs and disbursements'. mage caused to the Italian steel market is unfounded, for Italy also is subject to the In its rejoinder the High Authority supple competition of the Common Market and is

not entitled to greater protection than that ings could keep price variations secret for given to it by Article 30 of the Convention 60 days is not correct since the fortnightly on the Transitional Provisions. reports required by Decision No 3/54 re veals them. (b) As regards the infringement of Article The exemption from the duty to publish 60 (2) of the Treaty by Decisions Nos 2/54 allowed for transactions which do not and 3/54: come within the categories of transactions The Court is asked to dismiss the sub provided for by the price-lists is justified missions made for the first time in the reply for there are transactions which are quite as inadmissible under Article 29 (3) of the outside the normal framework and which Rules of Procedure. In any event the sub can therefore never be discriminatory.

lists. ly the content of the publication and as a It is also not correct to say that undertak result the power to determine what are the ings in any particular case can allow large factors making up the prices which must be variations in relation to the price-lists for published and those which do not have to the prohibition on discrimination prevents be so published. In doing this it must, as this. Further, in practice they can never appears from the words 'in particular', wait until an average difference of 2.5% is have regard to all the objectives referred to reached, but they must adjust their price- in Article 60 (1) and Articles 2 to 4 of the lists beforehand if they wish to avoid their

Article 30 gorous enforcement of a system of prior (2) simply prohibits non-Italian undertak publication and a constant revision of ings from aligning their quotations for the price-lists following any variation of sale of steel on the Italian market on those prices, however slight, would have pre of Italian producers. This prohibition con vented prices from finding their own level. tinues as heretofore; Italian steel produc The fixing of prices could have arisen only ers are effectively protected for foreign un from agreements between producers which dertakings must sell at higher prices in Ita would have been inconsistent with the pro ly than in the other countries of the Com visions of the Treaty. munity as a result of the protective duties The complaint of not having followed the which still temporarily exist and the neces dissenting opinions given in the Consulta sity of adding transport costs.

JUDGMENT OF 21. 12. 1954 — CASE 2/54

(d) Misuse of powers. graph of Article 34 of the Rules of Proce­ The submission is unfounded. Misuse of dure. powers assumes that the High Authority In accordance with the first paragraph of has kept, from the formal point of view, Article 34 on the Rules of Procedure of the within the terms of the Treaty. The sub­ Court, the President on 12 July 1954 ap­ missions of infringement of the Treaty and pointed Judge O. Riese as Judge-Rappor­ misuse of powers are mutually exclusive. teur.

powers. It cannot be said that provisions In accordance with Article 45 (2) of the intended to improve former inaccurate de Rules of Procedure of the Court, the Presi finitions are vitiated as being a misuse of dent of the Court fixed the date of the oral powers. procedure for 3 November 1954. The objective, moreover, of the High Au Hearings were held in open court on 3. 4, thority has been to prevent practices con

is impracticable. Further, the more effec tive system of checking introduced by De 'Requires the High Authority to transmit cision No 3/54 enables immediate action to the Court within 24 hours the minutes to be taken taken where discriminatory and opinions of the Consultative Commit practices are suspected. tee relating to this case and authorizes it, as The defence was served on the Govern an exceptional measure, to erase the ment of the Italian Republic on 20 March names of those taking part and any refer 1954 in accordance with Article 33 (2) of ences which would allow the authors of the the Rules of Procedure of the Court. various opinions to be identified'. The reply was lodged at the Court Registry within the period laid down in the order of The High Authority complied with this or the President of the Court of 20 March der within the period laid down. 1954 and was served on the High Authori In the course of the hearing held on 11 No ty on 3 May 1954 in accordance with vember 1954, the Advocate General, in Article 33 (2) of the Rules of Procedure. accordance with the procedure laid down The rejoinder of the High Authority was in Article 11 and the final paragraph of Ar lodged at the Registry within the period ticle 21 ofthe Protocol on the Statute ofthe laid down in the order of the President of Court of Justice, gave his opinion that the the Court of 4 May 1954, as extended by application should be dismissed. the order of 2 June 1954, and was served At the hearing on 11 November 1954, the on the Government of the Italian Republic President of the Court, in accordance with on 13 July 1954, in accordance with Article 50 (2) of the Rules of Procedure, Article 33 (2) of the Rules of Procedure. declared the oral procedure closed. After the rejoinder had been lodged on 12 July 1954, the written procedure was ter minated in accordance with the first para

The applicant contests Decisions Nos 1/54, 2/54 and 3/54 on the grounds of in­ fringement of the Treaty and misuse of powers.

A. The submission of infringement of the Treaty

I. Decision No 1/54

(1) Decision No 1 /54 introduces a clear distinction between publication and dis­ crimination, thereby creating two kinds of infraction, namely the more serious one of discrimination and the less serious one of infringing the rules as to price publication. However, whilst recognizing that the two paragraphs of Article 60 are linked as regards purpose, the Court does not consider that distinction amounts to an infringement of the Treaty. In fact, nowhere does the Treaty pre­ scribe that any infringement of the rules governing price publication amounts in itself to one of the practices prohibited under Article 60 (1). As regards the prohibition of discriminatory practices in particular, it cannot be disputed that the fact of departing, to whatever extent, from the prices or conditions laid down in the price-list of an undertaking does not amount to discrimination when it is a case of an exceptional transaction or when the same variation is made in the case of all comparable transactions. On this point, Decision No 1 /54 is therefore consistent with the Treaty. On the other hand, it might be objected that Decision No 30/53 was open to criticism, since without expressly admitting evidence to the contrary it held certain transactions to be discriminatory which, in fact, were not.

The criticism that the absence of any precise definition of exeptional transac­ tions and comparable transactions opens the door to discriminatory practices and facilitates them instead of countering them, and so makes the concept of a discriminatory practice meaningless, is likewise unfounded. It is true that the old

(2) Decision No 1/54 in no way does away with the duty to publish prices: on the contrary, it expressly retains it. There is therefore nothing in the objection that the decision is contrary to the rules governing price publication and that it sacrifices the principle of publication as a means of preventing prohibited prac­ tices. The Court, when it investigates Decision No 2/54, will consider whether the fact of permitting variations and, within certain limits, exempting undertak­ ings from making a new publication is in accordance with the Treaty; in any case this is not a fact which can be relied on in contesting Decision No 1/54, which in no way affects the principle of publication.

(3) Decision No 1/54 in no way prevents the imposition of penalties if there is discrimination. If comparable transactions are entered into at different prices and under different conditions of sale, the penalties provided for by Article 64 still apply.

(4) Lastly, there is nothing in the applicant's argument that Decision No 1/54, instead of defining prohibited practices, in fact legalizes certain practices which were illegal under the old system. It has been shown above that Decision No 1/54

ITALY v HIGH AUTHORITY

gives a new definition of prohibited practices by distinguishing between the rules as to non-discrimination and the provisions governing publication. If the new definition permits practices, which were previously prohibited, namely depar­ tures from published prices, it also lays it down that prices or conditions must be departed from uniformity in all comparable transactions, apart from any ex­ ceptional transaction which cannot give rise to discrimination. The principle of prohibiting any discriminatory practice is therefore strictly observed; Decision No 1/54, whilst doing away with the former automatic system, stays within the definition of prohibited practices. The Court therefore holds that Decision No 1/54 does not amount to infringe­ ment of the Treaty. The application to annul that decision, inasmuch as it is based on an allegation of infringement of the Treaty, must therefore be dismis­ sed.

(a) Articles 2, 3 and 4 of the Treaty, referred to at the beginning of Article 60 (1), constitute fundamental provisions establishing the Common Market and the common objectives of the Community. Their importance is clear from Article 95. In authorizing the High Authority to define prohibited practices, the Treaty obliges it to take into account all the aims laid down in Articles 2, 3 and 4. This follows clearly from the express reference to the said articles at the beginning of Article 60. The High Authority therefore has not merely a right, but a duty, when defining prohibited practices, to bear in mind the attempt to prevent agree­ ments between producers and to be concerned to help prices to be fixed as low as possible, under the conditions referred to in Article 3 of the Treaty, as well as the attempt to prevent unfair competitive practices and discriminatory prac­ tices. For these reasons, the Court cannot accept the applicant's contention that Article 60 only refers to the attempt to prevent discriminatory practices, that the attempt to prevent agreements is solely governed by Article 65, and that the at­ tempt to help prices to be fixed as low as possible is governed by Article 61. It is true that Articles 65 and 61 ofthe Treaty give the High Authority direct means of action to counter agreements and increases in prices, but the Treaty makes it clear (inter alia in Article 57 which deals with the field of production) that the

JUDGMENT OF 21. 12. 1954 — CASE 2/54

High Authority, before using direct means ofaction, must give preference to 'the indirect means of action at its disposal'. Thus the High Authority may also ex­ ercise its right to define prohibited practices as regards prices, with a view to fore­ stalling practices which are contrary to any ofthe objectives referred to in Article 60. Furthermore, the words 'in particular' (Article 60 (1) show that Article 60 deals mainly with unfair competitive practices and discriminatory practices.

Whilst publication is intended to meet the above-mentioned objectives, the Treaty does not consider that this alone will suffice to ensure the attainment of these objectives; publication is but one of the means provided for by the Treaty. The publication of price-lists is a matter of public law, since the results under private law have not been dealt with by the Treaty. However, this public law characteristic, which the Advocate General has rightly emphasized, is not incon­ sistent with the applicant Government's contention that the publication of price-lists must also produce legal consequences for third parties, in particular undertakings wishing to align their prices with those of their competitors. It is this result, which is inherent in the very publication of the price-lists, which dis­ tinguishes that publication both from the mere information collected by the High Authority under Article 47 as well as from the publication of statistical documents compiled by the High Authority in accordance with Article 46. If publication was not intended to keep the general public informed, it is difficult to understand why the Treaty did not merely declare 'that the price-lists must be communicated to the High Authority'.

(2) Article 60 (1) directly and categorically prohibits certain practices; the High Authority is authorized to define them but it may not derogate from the rule that they are prohibited. Article 60 (2) provides for the compulsory publication ofthe price-lists 'for these purposes'. These words clearly show the instrumental nature of the subsequent provisions as to the publication of prices. This is categorically provided for; it is regarded as an appropriate means of attaining the objectives set out in the pre­ vious paragraph. It is thus only a means, but a means categorically laid down

(3) Article 60 (2) (a) does not expressly state the time when price-lists and con­ ditions of sale must be published. One only has to read subparagraph (2) (b) on the methods of quotation to understand that the price-lists must precede any sale effected in the Common Market. In fact, Article 60 (2) (b) states that the methods of quotation used must not have the effect that prices charged result in increases over the price 'shown in the price-lists'—which again confirms that the price-lists contain a list of the prices at which goods are offered for sale, which enables any lawful transaction to be precisely calculated, and that these price-lists must be published before being ap­ plied. Moreover, Article 30 (2) of the Convention on the Transitional Provisions states that the prices charged by undertakings for sales of steel on the Italian market may not be lower than the prices shown in the price-lists for comparable trans­ actions. This provision confirms that the price-list is only a list of the prices at which goods are offered for sale prior to any contract of sale. Moreover the Treaty is very precise in its wording when it refers to 'the price- lists' and not 'price-lists'. The price-lists in question are therefore not documents related to the Treaty alone and specially drawn up with a view to the Treaty's objectives, but documents of a type which has been established by previous com­ mercial practice and which, according to such practice, always amount—albeit sometimes generally and sometimes provisionally—to an offer to do business on the basis of the price stated in them. Price-lists do not cease to be offers to do business even though the Treaty ascribes to them objectives of public interest which are recognized by its provisions. There can therefore be no doubt that the expression 'price-list' retains its usual meaning in the Treaty and means the prices on the basis of which undertakings state their willingness to sell their products. This interpretation is moreover confirmed (and on this point the Court accepts

the Advocate General's argument) by the fact that Article 60 (2) distinguishes between prices applied 1 and prices charged, inasmuch as this latter expression which appears in Article 60 (2) (b) means the prices at which transactions are in fact concluded. Consequently, it would seem that the expression 'prix ap pliqués' (prices applied) means the prices at which goods are offered by vendors, although it would have been clearer had the Treaty used the term 'prices to be applied' for this purpose.

It would be really difficult to regard this as a concession if the price-lists merely reflected price movements on the market after they had occurred. Only if there is previous pub lication can this be regarded as a concession, for this is the only circumstance under which undertakings will have an interest in not having to wait several days before being in a position to conclude sales contracts based on new prices. It must therefore be concluded that the publication of price-lists must necessarily be effected before undertakings may apply new prices. Moreover, it follows from the foregoing considerations that the word 'price-list' always means published price-lists.

Treaty requires the publication of exact prices in the form of price-lists. This fol lows from the objectives to which the principle of price publication is intended to lead: the information aquired by purchasers is only of value to them if it in forms them of the exact prices at which they can buy. Likewise publication must make alignment possible and this must be based on a competitor's exact prices. Alignment is a right granted to undertakings by the Treaty, not a mere possibility to which effect could only be given if undertakings were in a position to gain in formation by other more or less fortuitous means as to prices charged by their

ITALY v HIGH AUTHORITY

must be understood to mean that the High Authority is entitled to determine the content of the price-lists. But this content must fulfil a public need, so that the High Authority is confined to laying down the minimum information to be in cluded in the price-lists. In other words, the phrase 'to the extent and in the manner prescribed by the High Authority' entitles the High Authority to prescribe the extent, that is to say, the scope, of publications, in so far as it is a question of settling their details;. the High Authority may, for instance, as it has already done, decide the period after which a new price-list shall come into force, lay down that certain discounts (such as discounts for seconds, and so on) must be mentioned in the price-lists, and decide whether packing costs should or should not be published.

then be able to lay down far wider margins, and it is impossible to say where this would end; it might lay down mere publication in scales (for example 'price 80 to 120') or even the non-publication ofprices ofwhole categories ofproducts—in short, it might discard the principle of compulsory publication laid down in the Treaty. Lastly whilst it is true that the High Authority's powers are to regulate the mini mum requirements with which the price-lists must comply, its powers are also to regulate the scope of the publication itself. It is thus not enough to ensure that the price-lists are transmitted to the High Authority; if this were the case, the Treaty would merely have so provided. The price-lists must be made public and the High Authority's power to prescribe 'the extent and the manner' implies that it has a duty to see that the extent to which and the manner in which the price- lists are published and made available to the public adequately meet the needs of the public interest.

JUDGMENT OF 21. 12. 1954 — CASE 2/54

cordance with the provisions ofthe decision; Article 2 then states with great pre­ cision what information the price-lists must contain, putting a reasonable inter­ pretation on the words 'extent' and 'manner' which appear in the Treaty; Article 4 provides that price-lists are to apply not earlier than five clear days after they have been addressed to the High Authority and that the seller must communi­ cate them upon request to anyone interested. On the other hand, what is laid down in Article 1 of Decision No 2/54 is not the extent to which the price-lists must be made public by undertakings, but rather the extent to which the High Authority authorizes the non-observance of the published price-lists. This is contrary to Article 60 (2) of the Treaty. It is to be added that the interpretation adopted by the Court is supported by the fact that the High Authority may determine the extent of publication after mere­ ly consulting the Consultative Committee whereas, before defining prohibited practices, it must also consult the Council of Ministers. This is understandable if the High Authority when determining the extent of publication must strictly adhere to the rule that the exact prices and conditions of sale must be published. Had the Treaty wished to give the High Authority greater freedom and the right to derogate from this rule, it would have been logical for such powers also to be subject to consultation with the Council.

ITALY v HIGH AUTHORITY

lication is aimed. Moreover, the Treaty enables the High Authority to inter­ vene by other means, as soon as it learns that any agreements have been con­ cluded.

(c) The state of the market, in particular the realization that there is a trend to lower prices, is likewise no ground for abolishing the rule that prices are to be published, since such publication is provided for by the Treaty. In the event of a crisis or disturbances on the market, the Treaty confers various powers on the High Authority — in particular under Article 60 (2) (b) last line, Article 61, Ar­ ticle 63, Articles 58 and 59 — but nowhere the power to dispense with the com­ pulsory publication of price-lists. Moreover, the rule as to compulsory publica­ tion, laid down by the Treaty, is of a general nature and in no wise depends on current market trends.

The applicant has further made the following submissions:

7. Submission that the Consultative Committee has not been consulted in ac­ cordance with legal requirements: The defendant asks the Court to declare this submission inadmissible on the

JUDGMENT OF 21. 12. 1954 — CASE 2/54

ground that it is not contained in the application. The Court considers that it is right to consider this submission of its own motion in view of the fact that if it were well-founded the Court would be justified in annulling the decision of its own motion on the ground of infringement of the Treaty or of an essential pro­ cedural requirement. The minutes of the Consultative Committee, forwarded to the Court in pursu­ ance of the order of 6 November 1954, show that the Consultative Committee has been duly consulted, that it has given an opinion on certain amendments which were to be made to Decisions Nos 30/53 and 31/53 and that the only is- sues on which the consultation has not been concluded, namely the definition and the exemption from publication in price-lists of long-term contracts and open tenders do not come into question in examining the legality ofthe contested decisions.

The minutes reflect a collection of opinions which the High Authority, together with the Consultative Committee, could rightly consider as an opinion. On this issue the Court concurs with the opinion of the Advocate General.

8. Submission that the contested decisions contained an insufficient statement ofthe reasons on which they were based in view ofthe omission ofcontrary opin­ ions:

ITALY v HIGH AUTHORITY

The applicant did not contest the remaining articles of Decision No 2/54, and there is therefore no reason for considering this point.

11. The applicant seeks the annulment of Articles 1, 2 and 3 of Decision No 2/54 on the grounds of infringement of Article 30 of the Convention on the Transitional Provisions. As regards Articles 2 and 3 of Decision No 2/54 this ap­ plication must be rejected on the above-mentioned grounds. Although the pro­ vision of Article 3 of Decision No 2/54 reducing the period provided for the ap­ plication of the new price-lists forces the Italian undertakings to react more quickly to any alterations in the price-lists oftheir competitors, it does not, how­ ever, seriously affect the special protection given to them. On the other hand, as regards Article 1 of the decision the applicant's claim is justified for the following reasons:

III — Decision No 3/54

Decision No 3/54, which is intended to introduce a method of collecting infor­ mation and enabling supervision to take place, is based on Article 47 ofthe Trea-

JUDGMENT OF 21. 12. 1954 — CASE 2/54

ty. That article empowers the High Authority to obtain the information it re- quires in order to carry out its tasks; Decision No 3/54 is therefore consistent with the Treaty. The fact that the High Authority combined this method of col­ lecting information with the supervision of the system of publication provided for in Article 60 does not make it in any way objectionable. Even though Decision No 3/54 is apparently intended to complete the system ofvariations introduced by Article 1 ofDecision No 2/54 which has already been declared to be inconsistent with the Treaty, it is however not in itself contrary to the Treaty; there is therefore no reason to annul it, although the annulment of Article 1 of Decision No 2/54 makes it inoperative and deprives it of any point.

B. The submission of misuse ofpowers

ITALY v HIGH AUTHORITY

The Court considers this application admissible; the applicant was entitled to think that compliance with the obligations under Article 23 of the Statute would be ensured; moreover it was not until the oral procedure was opened that it was able to see that the High Authority had not forwarded all the documents to the Court. The Court finds that the defendant was bound to forward the minutes of the High Authority in accordance with Article 23 of the Statute of the Court of Justice. The Court, had application been made, would have authorized the names of the speakers to be omitted and if necessary would have ordered these documents to be examined in camera. However, the Court does not consider it necessary to order the production of these minutes, or those of the Council of Ministers: the documents produced by the defendant are sufficient for the Court in the present case to clarify the objectives pursued by the High Authority

Costs and reference of the case back to the High Authority

(1) Under the terms of Article 60 of the Rules of Procedure of the Court, in any contentious matter the unsuccessful party shall be ordered to pay the costs. Nevertheless the Court may, in accordance with paragraph (2) of that article, order that the parties bear their own costs wholly or in part, where each party succeeds on some and fails on other heads.

In this case, the applicant has succeeded in part of the case and on an important point, namely the annulment ofArticle 1 of Decision No 2/54 which introduced the system of mean variations from the prices published in the price-lists. In these circumstances the Court considers that it would be right to grant the ap­ plicant the right to the reimbursement by the defendant of half its costs.

founded as regards the infringement of the Treaty and the Convention on the Transitional Provisions and refers the matter back to the High Authority for the necessary action;

Dismisses the application for the annulment of Decisions No 1/54 and 3/54 and of Articles 2 and 3 of Decision No 2/54;

Orders the defendant to bear its own costs and half the costs of the applicant.

Pilotti Serrarens Hammes

Riese Delvaux Rueff van Kleffens

Delivered in open court in Luxembourg on 21 December 1954.

Submission of misuse of powers 59

Submission of infringement of Article 30 (2) of the Convention . 61 Conclusions 62

Mr President, Members of the Court, 1. Infringement of Article 60 (1) in con­ junction with Article 4 (b) of the Treaty: Like the Judge-Rapporteur, I regret not be­ this submission contests in particular De­ ing able to address the Court in the lan­ cision No 1/54 on the definition of prohi­ guage of the case. I have now to give my bited practices; opinion in Case 2/54 brought by the Ital­ ian Government. 2. Infringement of Article 60 (2) by Deci­ The application makes four formal sub­ sion No 2/54 which makes the system of missions as follows: publishing more flexible;