C-3/54

JUDGMENT OF THE COURT 11 FEBRUARY 1955 1

Associazone Industrie Siderurgiche Italiane (ASSIDER) v High Authority of the European Coal and Steel Community

Case 3/54

Application for annulment—General decision of the High Authority—Applicant under­ takings and associations of undertakings—Admissibility

For an application by an undertaking or by an association of undertakings against a gen­ eral decision of the High Authority to be admissible it is enough for the applicant formally to allege that there has been a misuse ofpowers affecting it. The allegation must indicate the reasons for which the applicant considers that there has been a misuse ofpowers af­ fecting it. If the applicant is an association of undertakings, it is sufficient for it to claim that there has been a misuse ofpowers affecting one or more undertakings which are mem­ bers of the association.

The Treaty does not impose any further condition for an application to be admissible such as, for example, proof that a misuse of powers affecting the applicant has actually been committed, since this latter question goes to the substance. (Treaty. Art. 33)

1 — Language of the Case: Italian.

JUDGMENT OF 11. 2. 1955 — CASE 3/54

THE COURT

composed of: M. Pilotti, President, P. J. S. Serrarens and Ch. L. Hammes (Presi­ dents of Chambers), O. Riese, L. Delvaux, J. Rueff and A. van Kleffens, Judges,

Advocate General: M. Lagrange Registrar: A. Van Houtte

gives the following

On 18 February 1954 the applicant lodged market relating to the publication of price- at the Court Registry an application for the lists and conditions of sale (Official Jour­ annulment of Decisions Nos 1/54, 2/54 nal, English Special Edition 1952-1958, and 3/54 of the High Authority of 7 Jan­ pp. 9-12); under the terms of these deci­ uary 1954 published as follows: No 1/54 sions, undertakings were under an obliga­ in the Official Journal, English Special tion to publish their price-lists before car­ Edition 1952-1958, p. 14; No 2/54 in the rying out any transactions and keep strictly Official Journal, English Special Edition to the prices stated therein—any variation 1952-1958, p. 15; and No 3/54 in the in relation to the aformentioned lists con­ Journal Officiel de la Communaute Euro­ stituting, according to these texts, a pro­ péenne du Charbon et de l'Acier, 13 Jan­ hibited discriminatory practice. uary 1954, p. 219). On 7 January 1954, the High Authority The application was submitted within the amended and supplemented these rules by required period in accordance with the Decisions Nos 1/54, 2/54 and 3/54 against third paragraph of Article 33 of the Treaty which the present proceedings are now and with Articles 84 and 85 of the Rules of brought. Procedure of the Court. Under this new system, a variation from Under the first paragraph of Article 22a of published prices no longer amounts to a the applicant's articles of association, the prohibited practice if the seller can show President directs and represents the asso­ that the transaction in question does not ciation in its internal and external relations fall within the categories of transactions and his signature is legally sufficient to covered by his price-list, or that the prices bind it. or conditions have been departed from The applicant has established that Mr uniformly in all comparable transactions Rebua is its President. (Decision No 1/54) ; — moreover, in the The applicant's lawyer has been properly case of the steel market, and the steel mar­ appointed. ket alone, an average margin of 2.5% was It appears from the documents produced introduced, within which a variation from by the parties as well as from the decisions the lists was allowed in the case of all trans­ at issue that the facts of the case are as fol­ actions concluded within the preceding lows: sixty days, without the need for prior pub­ Under the terms of Article 60 of the Trea­ lication of new lists (Decision No ty, the High Authority on 2 May 1953 2/54); — lastly, for purposes of verification, adopted Decisions Nos 30/53 and 31/53 steel undertakings must submit fortnightly which define the practices prohibited by reports on all variations made (Decision Article 60 (1) and contain rules for the steel No 3/54).

The applicant claims that the Court gistry within the period laid down in the should: order of the President of the Court of 4 May 1954, as extended by the order of 2 'Entertain the present action and annul June 1954, and was served on the appli Decisions Nos 1/54, 2/54 and 3/54 of the cant on 13 July 1954 in accordance with High Authority of 7 January 1954 and af Article 33 (2) of the Rules of Procedure.

plicant subsequently withdrew its request Court, the President on 12 July 1954 ap for suspension. pointed Judge O. Riese as Judge-Rappor The applicant relies on the following sub teur. missions in support of its application : In his preliminary report, the Judge-Rap A. Misuse of powers; porteur reported that in this case a prepar B. Infringement of the Treaty. atory inquiry was not necessary. In accordance with the final paragraph of The application was served on the High Article 34 of the Rules of Procedure, after Authority on 19 February 1954 in accor hearing the views ofthe Advocate General, dance with Article 33 (2) of the Rules of the Court decided to open the oral proce Procedure of the Court. dure without any preparatory inquiry. The statement of defence was lodged at the In accordance with Article 45 (2) of the Court Registry within the period laid down Rules of Procedure of the Court, the Presi by Article 31 (1) ofthe Rules of Procedure. dent of the Court fixed the date of the oral The High Authority's Agent and Counsel procedure for 3 November 1954.

to make available to the Court all docu admissible ('improponibile'); or ments relating to the case and that the ap plicant's lawyers should have access to (b) alternatively, dismiss the application them under the seal of professional sec as unfounded and in any event order the recy. applicant to pay the costs of the action.' In the course of the hearing held on 11 No vember 1954, the Advocate General, in The statement of defence was served on the accordance with the procedure laid down applicant on 20 March 1954 in accordance in Article 11 and the final paragraph ofAr with Article 33 (2) of the Rules of Proce ticle 21 of the Protocol on the Statute of the dure of the Court. Court of Justice, gave his opinion that the The reply was lodged at the Court Registry application should be dismissed. within the period laid down in the order of At the hearing on 11 November 1954, the the President of the Court of Justice of 20 President in accordance with Article 50 (2) March 1954 and was served on the High of the Rules of Procedure declared the oral Authority on 4 May 1954 in accordance procedure closed. with Article 33 (2) of the Rules of Proce

JUDGMENT OF 11. 2. 1955 — CASE 3/54

2. Substance vided for by the Treaty. Even if the appli cant's contentions are accepted, this does A. Misuse of powers in respect ofArticles 4 not apply in the present case. If this inter (b) and 60 ofthe Treaty; infringement of pretation is not accepted the applicant those articles must nevertheless be refused the right to bring proceedings because it has not sub (a) Applicant's arguments mitted proof ofthe existence of a 'misuse of powers affecting it'. It is not enough for the The contested decisions are vitiated by applicant to allege the existence of a 'mis misuse of powers and are contrary to the use of powers affecting it'; the application Treaty. They pursue objectives other than is 'proponibile' only if this misuse of pow those for the purpose of which the High ers has actually been committed. Authority was, under Article 60, vested with regulatory powers. Moreover, the ob (b) Applicant's arguments jectives actually pursued as well as the le gal consequences of those decisions are in The applicant contends that the interpre conflict with the very clear provisions of tation placed by the High Authority on Ar

But it 33 must be interpreted as having the same used this power and this right in order to meaning as in the first paragraph. legitimize, after the event, variations ef For an undertaking or association of un fected between actual and published dertakings to have the right to institute prices. Moreover, the new rules in fact proceedings against a general decision, it is make discriminatory practices possible sufficient if the interests of the party con since, in particular cases, the mean varia cerned, either alone or in conjunction with tion of 2.5% allows of considerably greater other undertakings, are directly damaged. variations; moreover, the fact that excep This applies in the present case as is clear tional transactions are not taken into ac from the detailed statements of the appli count in calculating variations makes any cant in support of its application. If the supervision impossible.

ASSIDER v HIGH AUTHORITY

The ket. In its new rules the High Authority is rules with regard to publication are in fact trying indirectly to revise the Trea nothing more than a means of ensuring ty. But it is clear from the provisions of the compliance with the rules on non-discri Treaty that variations from the price-lists mination. Infringements of the former can are not authorized under any circum not be assimilated to infringement of the stances and, moreover, amount to discri others. mination because only the price published Article 60 (2) enables the High Authority and fixed in a list constitutes a guarantee to permit some variation from the price- that it will be applied without regard to the lists. In no case does a rigid price system identity of the purchaser. constitute a guarantee against discrimina The contested decisions deprive the price- tion. In the case of a tendency of prices to lists of any real meaning. fall, such as existed when the contested de Moreover, the new rules are unlawful in cision were adopted, it is pointless to ex that they permit practices which the Trea pect purchasers to exercise effective con ty expressly prohibits, namely, 'purely trol.

The rule to thority had in view in taking the contested which the applicant refers has a quite dif decisions are themselves contrary to the ferent objective, namely to prevent mon Treaty. Thus the power conferred by Arti opoly positions. Moreover, the danger ap cle 60 (2) (a) to draw up rules in relation to prehended by the applicant existed in the publication of price-lists has been used for same way under the previous system. another purpose—in order to make poss The object of the new rules is not to revise ible discounts on prices, which is an in the Treaty or to 'ratify ex post facto' in fringement of Article 60 (2) (b); similarly, fringements perpetrated in the past; the the power conferred under Article 60 (1) to statement of the reasons on which the con define discriminatory practices has been tested decisions are based does no more misused to permit variations from price- than describe a factual situation.

Moreover, has exceeded the powers which it possesses as a result of the arrangements with regard under the Treaty, while misuse of powers to information, introduced by Decision

No 3/54, the new rules make it easier to (b) Defendant's arguments discover any discrimination. The High Authority denies that there has The ground of misuse of powers cannot be been any discrimination; it is for the appli based on the impracticality or unreason cant to prove it. ableness of a decision. In any case Decision No 3/54 is in no respect unenforceable. It B. Misuse ofpowers in respect of Article 60 is not the representatives who have to de and 64 of the Treaty cide on any grant of discounts but the management of the producer undertak (a) Applicant's arguments ings, otherwise the latter would be liable to penalties provided for under the Treaty. The High Authority neglected to impose the penalties provided for in Article 64 against undertakings which, prior to the D. Misuse ofpowers in respect ofArticle 30 contested decisions, applied prices lower (2) ofthe Convention on the Transition

On the con to avoid applying penalties. The Treaty trary the new rules make it possible to gives it the power to impose penalties in grant discounts to purchasers from all cases of infringement; it in no way imposes countries in the Community including an obligation to do so. In any case it cannot Italian purchasers. do so with fairness without possessing ac curate information on the various infringe ments and is thus in a position to punish all (b) Defendant's arguments offenders. It is the object of Decision No 3/54 to make it easier from now on for The only effect of Article 30 (2) ofthe Con these conditions to obtain. vention on the Transitional Provisions is to prohibit non-Italian sellers from align C. Misuse of powers arising from the un ing their prices on the price-lists of Italian reasonableness of the decisions steel undertakings. The new rules in no way modified this prohibition. Now, as in (a) Applicant's arguments the past, Italian steel producers are effec tively protected; foreign undertakings The arrangements with regard to informa must sell in Italy at a higher price than in tion, introduced by Decision No 3/54, are other countries of the Community as a re impracticable and in consequence unrea sult of the protective duties which still exist

ASSIDER v HIGH AUTHORITY

By its decision No 1/55 of 4 January 1955, 542, the High Authority revoked Decision published in the Journal Officiel 1955, p. No 3/54.

Law

The Court's judgment in the present case has taken the following points of the law into account:

1. Admissibility

(a) The Court finds that by virtue of Article 2 of its articles of assocation the ap­ plicant is an association of undertakings fulfilling the conditions required by the second paragraph of Article 33 and by Article 48 of the Treaty.

The Court does not consider that the Treaty provides for or imposes any further condition for an application to be admissible such as, for example, proof that a misuse of powers affecting the applicant has actually been committed. Such proof is necessary to establish that the application is well founded but this ques­ tion goes to the substance and does not affect admissibility.

(c) The Court agrees with the Advocate General's view that the three decisions in dispute may be contested in a single action.

JUDGMENT OF 11. 2. 1955 — CASE 3/54

2. Substance

For the foregoing reasons the Court considers that the action has lost its purpose as regards the application for annulment of the first article of Decision No 2/54 of the High Authority and also as regards the application for annulment of De­ cision No 3/54. As for the application for annulment of Decision No 1/54 and of Articles 2 to 5 of Decision No 2/54 it is without foundation.

In these circumstances the Court is not called upon to give a decision on the de­ finition of misuse of powers within the meaning of the second paragraph of Ar­ ticle 33 of the Treaty or on the interpretation of the words, 'to involve a misuse of powers affecting them ', employed therein.

While Decision No 1/54 ofthe High Authority declared not to be discriminatory variations from the prices contained in the price-list ofan undertaking in the case of an exceptional transaction or when similar variations are applied to all com­ parable transactions, it expressly maintains the obligation to comply with the

ASSIDER v HIGH AUTHORITY

rules concerning the publication of price-lists; this provision in no way compro­ mises the legal position of the Italian steel industry and does not tend to legiti­ mize previous infringements.

4. In the judgment delivered on 21 December 1954 in the case of the Italian Government v The High Authority it was held that Articles 2 and 3 of Decision No 2/54 of the High Authority constitute neither an infringement of the Treaty or of the Convention on the Transitional Provisions nor a misuse of powers.

While the provision in Article 3 of Decision No 2/54, which reduces to one day the period within which new price-lists may become applicable, obliges Italian undertakings to react more quickly to changes in the price-lists of their com­ petitors, it does not seriously undermine the special protection provided for their benefit.

Articles 4 and 5 of Decision No 2/54 of the High Authority are of wholly general application and constitute no threat whatever to Italian steel undertakings or as­ sociations of undertakings. The subject-matter of those articles has nothing to do with the present case; moreover the applicant, which has submitted no ar­ guments on the subject, did not refer to it. The said articles cannot in conse­ quence be vitiated by misuse of powers as the applicant alleges.

Upon reading the pleadings; Upon hearing the parties; Upon hearing the opinion of the Advocate General; Having regard to Articles 31, 33, 48, 60 and 80 of the Treaty; Having regard to the Protocol on the Statute of the Court;

OPINION OF MR LAGRANGE — CASE 3/54

Having regard to the Rules of Procedure of the Court including those relating to costs,

THE COURT

hereby:

Declares that there is no need for a decision on the application for annulment of Article 1 of Decision No 2/54 of the High Authority or of Decision No 3/54 of the High Authority;

President Judge-Rapporteur A. Van Houtte

Registrar

OPINION OF MR ADVOCATE GENERAL LAGRANGE 1

Summary General considerations 73

'Improponibilità' and admissibility 73

Misuse of powers in general 74 French law 75

1 — Translated from the French.