C-8/54

ASSOCIATION DES UTILISATEURS DE CHARBON DU GRAND-DUCHÉ DE LUXEM­ BOURG, represented by its Administrative Board, assisted by Alex Bonn, Advo­ cate in Luxembourg, with an address for service in Luxembourg at its registered office, 8, Avenue de l'Arsenal,

applicant,

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser, Nicola Catalano, acting as Agent, assisted by Ernest Arendt, Advocate in Luxembourg, with an address for service in Luxembourg at its offices, 2, Place de Metz,

defendant,

GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG, represented by Pierre Pescatore, Legal Adviser to the Ministry for Foreign Affairs with an address for service in Luxembourg at the Ministry for Foreign Affairs, 5, Rue Notre-Dame,

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

Advocate General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts

an authority to represent it from the mem ment a period of until 31 March 1955 bers of the Administrative Board ofthe As either sociation in favour of Alex Bonn, Advo to repeal the order confirming the activi cate in Luxembourg; ties of the Office Commercial du Ravi a certificate attesting that Alex Bonn is a taillement, member of the Luxembourg Bar. or to amend its provisions so that they were in accordance with the Treaty. The defendant informed the applicant by After two requests for an extension of the letter of 27 November 1954 that the Caisse period had been made by the defendant de Compensation 'is not ofsuch a nature as and granted by Order of the President on to have any effects which are incompatible 11 November and on 9 December 1954, with the Treaty and cannot therefore be the defendant lodged on 12 January 1955 prohibited'. its defences relating to the two above-men tioned applications. Following that letter, the applicant, 'so as The defence relating to Application 8/54 to avoid a fruitless argument on questions contends that: of admissibility', lodged a second applica tion (Application 10/54) on 23 December 'The Court should: 1954, the subject-matter of which was the same as that of the previous application Take note that the High Authority has an and which requested moreover that address for service in Luxembourg within 'The Court should: the meaning of Article 31 (2) of the Rules of Procedure of the Court at its offices at 2, Declare that the present application, Place de Metz; which has only been lodged in so far as nec essary, is admissible and well founded; A. Principally: While maintaining the application of 11 October 1954 and requesting primarily Declare that the application is inadmiss that the Court should find the conclusions ible on the ground that the applicant contained therein well founded, annul in Association does not have the capacity to so far as in necessary the decision of refusal institute proceedings; of the High Authority, following from its B. In the alternative: letter of 27 November 1954, of the request of the Association of 20 July 1954; Declare, consequently, that the High Au

abolished; 3. Declare that there is no need to give judgment on the head ofthe application re Order the High Authority to bear the questing the annulment of the implied de costs.' cision of refusal of the request that the Caisse de Compensation for solid fuels By decision of 7 January 1955, the High should be closed and abolished, since this Authority gave the Luxembourg Govern- application has become purposeless;

C. In any case, order the applicant to bear II. A. Take note that the applicant, with the costs, fees and expenses.' out prejudice to the statement of reasons upon which the decision adopted by the The statement ofdefence relating to Appli High Authority on 7 January 1955 con cation 10/54 puts forward the same sub cerning the Office Commercial du Ravi missions except that the last subparagraph taillement was based, considers that as a of the fourth paragraph is replaced by the result of that decision its application has following words: become purposeless within the limits settled by the decision; and order the de 'Taking into consideration solely the sub fendant to bear the costs relating thereto; missions which were put forward in so far as necessary and which were directed B. (a) Declare that the application orig against the decision of refusal following inally directed against the implied decision from the letter of the High Authority of 27 of refusal resulting from the silence of the November 1954, dismiss the above-men High Authority stands in spite of the letter tioned head of the application as un of the High Authority of 27 November

Declare that the Caisse de Compensa In the reply relating to Application 8/54 tion established by the Ministerial Order of the applicant claims that: 8 March 1954 constitutes a special charge contrary to Article 4 (c) of the Treaty; 'The Court should: 2. Declare that the Caisse de Compensa Dismiss the pleas of inadmissibility and tion established by the Ministerial Order of the arguments put forward by the defend 8 March 1954 constitutes discrimination ant; contrary to Article 4 (b) of the Treaty; Declare that the operation of the Caisse de I. A. Declare that the applicant has suffi Compensation is closely linked to the exis cient capacity to institute proceedings be tence of the monopoly of the Office Com fore the Court of Justice on the basis ofAr mercial du Ravitaillement on imports and ticle 35 of the Treaty and consequently de that the abolition of the latter must of ne clare that the application lodged by the ap cessity involve the abolition of the Caisse plicant Association is admissible; de Compensation; Declare that the levy, which amounts to an B. Declare that the application containing increase in the price of solid fuel for non-

Declare that the High Authority must, by 2. The issue of the Ministerial Order of 12 means of a decision or recommendation, September 1955 repealing with effect from order that the Caisse de Compensation at­ 2 April 1955 the Ministerial Order of 8 tached to the Office Commercial du Ra­ March 1954 concerning the operation, so vitaillement by the Ministerial Order of 8 far as solid fuel is concerned, of the Caisse March 1954 should be prohibited and ab­ de Compensation for solid fuels attached olished; to the Office Commercial du Ravitaille­ Order the High Authority to pay the costs, ment; fees and expenses, without prejudice'. 3. The issue of the Ministerial Order of 30 The reply relating to Application 10/54 September 1955 repealing the Ministerial puts forward the same submissions except Order of 8 March 1954 on the importation for the two following amendments; ofsolid fuels and declaring the importation thereof to be free, the Government reserv­ First paragraph: ing to itself certain rights of intervention. That order was to take effect from 1 Octob­ 'The Court should: er 1955;

Join the two applications because they are related; 4. The lodging, a few hours before the Dismiss the pleas of inadmissibility and lodging of the rejoinder, of an application the arguments put forward by the defend­ to intervene on the part ofthe Luxembourg ant': Government, claiming that:

After II B(a): the following paragraph is 'The Court should: added: Take note of the Luxembourg Govern­ 'In the alternative and if the refusal of the ment's application to intervene; declare High Authority resulting from its letter of that application to intervene admissible 27 November 1954 must be considered as and well-founded; moreover, take note an express decision, declare the applica­ that the intervener supports the sub­ tion against that decision admissible'. missions of the High Authority requesting that the application lodged by the Associa­ By order of the President of 25 March tion should be dismissed; 1955, Cases 8/54 and 10/54 were joined Order the applicant in the main action to 'for all procedural purposes'. bear the costs of the application to inter­ In the common rejoinder in Joined Cases 8 vene'.

The applicant in the main action contested this attitude 'seems to indicate that it felt, that the application to intervene was well to say the least, such serious doubts with founded in the written observations which regard to the previous system that it pre it submitted pursuant to Article 71 (3) of ferred to avoid a judgment of the Court'. the Rules of Procedure. The Court exam The Groupement considers that it is possi ined the application in accordance with ble 'that a State of the Community can Article 71 (4) when the parties had pre achieve, by virtue of powers which it has sented oral argument and the Advocate reserved to itself, certain economic results, General had delivered his opinion at the particularly for social purposes, by means hearing on 19 November 1955. of a system which is compatible with the By order of 24 November 1955, the Lux

that a preparatory inquiry was necessary. ible with the provisions of the Treaty,' the By order made at the hearing on 30 No economic effects of which Decree 'are vember 1955 the Second Chamber of the identical to those of the Ministerial Order Court requested the parties to provide cer of 8 March 1954'. It states that it has not tain written information before 14 Decem hitherto declared that the new system is in ber 1955. compatible with the provisions of the The parties supplied the information re Treaty because it considered it appropriate quested on 12 December. to await the decision of the Court in the By order of 14 December 195 5, the Second proceedings pending before it. Chamber of the Court ordered the closure The Groupement on the contrary bases an of the preparatory inquiry and fixed the argument in favour of its reasoning on 'the time-limit laid down in Article 45 of the attitude adopted by the Luxembourg Gov Rules of Procedure for the lodging by the ernment which abolished the Caisse de parties of their final written conclusions at Péréquation (Equalization Fund)' since 7 January 1956.

Those conclusions were lodged on 4 and 7 the undertakings or associations referred to January respectively. They confirm the in Article 48, Article 35 does not do the previous conclusions. same and does not limit the undertakings In accordance with Article 45 (2) of the and associations entitled to raise a matter Rules of Procedure of the Court, the Presi and to institute proceedings if necessary. dent of the Court fixed the date for the oral The absence of a reference to Article 48 is proceedings at 1 February 1956 and, if significant and in the circumstances the need be, on the following days. restrictive interpretation of Article 35 ad The hearings were held on 7 and 8 Febru vocated by the High Authority places on ary 1956. that provision a limitation which it does During those hearings the parties pre not contain'. sented oral argument. In its opinion, 'both undertakings, the de At the hearing on 8 February 1956 the Ad

If an express reference was indispensable, as the 1. As regards admissibility the High Au applicant seems to believe, those who thority first puts forward the argument that drafted the Treaty would not have failed, the applicant Association lacks capacity. precisely in order to eliminate all possible It considers that the latter is not 'a produ doubt, to refer in the wording of Article 35 cer undertaking under Article 80 or an as to Article 46 in the same way as they had sociation ofundertakings under Article 48. referred to Article 48 in the wording of Ar Even if it were necessary to regard it as an ticle 33'. undertaking or a distribution agency with The High Authority then puts forward the in the meaning of Article 80 it would only following two arguments: be able to institute proceedings in special cases concerning the matters laid down in (a) May 'two distinct questions be raised' Articles 65 and 66 ofthe Treaty.

JUDGMENT OF 23.4.1956 — JOINED CASES 8 AND 10/54

The de question seem to the applicant to give it fendant maintains, first, that a new factor what it would have obtained if the High ofthis kind involves 'the amendment ofthe Authority had not refused its request of 14 original conclusions', . . . 'the amendment July 1954? of the applicant's claim and thus the If the answer is in the affirmative, in what amendment of the very subject-matter of in its opinion, does the interest which it the proceedings . .

How was acquired on the expiry of the period of ever, since the Caisse de Compensation two months laid down in Article 35 of the has been abolished for the future, applica Treaty'. tions such as those lodged by the Associa In its rejoinder the defendant does not raise tion have become purposeless as regards any new argument to that reply. It refers to the future: its previous defence and specifies that it On the other hand, as the Luxembourg 'certainly did not wish to raise a formal Government maintained the Caisse de plea of inadmissibility to the applicant's Compensation for the period prior to 2 application'. In fact, it admits that 'the April 1955, the question at issue, which is comments ofthe High Authority could not whether the Caisse de Compensation is in any case result in preventing the Court compatible with the provisions of the from giving a decision on the substance of Treaty, remains unanswered with regard the problem'. to the past and must be decided by the This argument is therefore simply submit Court, which has exclusive jurisdiction ted to the Court because 'although it has no over it. The measure of the interest of the practical significance for the purposes of Association in the question is the amount the proceedings instituted by the appli of the equalization increases payable by cant, it has an interest as a matter of prin the Luxembourg iron and steel industry for ciple for the executive of the Community the period in question, from 1 March 1954 which awaits guidance from the case-law to 31 March 1955, in other words, ofthe Court so as to be able to take account 28171984 Belgian francs. With regard to thereof in its future actions'. the other importers ofindustrial coal ofthe

Grand Duchy who are members of the As being levied on the products at the time of sociation, the amount of 120333 metric consumption or at any stage of distribu tons at 8 francs per metric ton, in other tion'. words 962664 francs, is involved. This amount, which was included in the price II. The abolition of the Office Commer invoiced by the Office Commercial du Ra cial du Ravitaillement deprives the Caisse vitaillement, had to be paid by the con de Compensation of its substantive and le sumers'. gal basis and must entail the abolition of the latter.

88. ter. . . intented to abolish the Office's im In order to show that the Office Commer port monopoly in solid fuels'. cial du Ravitaillement and the Caisse de consequently. . .the abolition or the im Compensation are not in conformity with port monopoly of the Office deprives the the Treaty, it relies on Articles 3(b), 4(b), Caisse de Compensation of its substantive 4(d) and 66(7) on the one hand and on Ar and legal basis and must therefore entail ticle 4(c) on the other. the abolition of the latter'. Since the applicant has stated that, as a re The defendant replies that its decision of 7 sult of the decision of 7 January 1955, its January 1955 which declared that the ac application 'had become purposeless with tivities of the Office were incompatible in the limits settled by the decision', there with the provisions of the Treaty' has no is no need to refer to the arguments relating thing to do with the legality of the equali to the legality of the Office Commercial du zation of domestic coal', for 'the abolition Ravitaillement in relation to the Treaty. of the monopoly which was requested by The arguments concerning that office are the High Authority involved the necessity only summarized here to the extent to of amending the detailed rules for the col which they have a bearing on the corre lection of the levy but certainly did not in sponding problem raised by the Caisse de volve the necessity of abolishing the equal Compensation. ization system in addition'. The arguments invoked by the parties with regard to the Caisse de Compensation at

JUDGMENT OF 23.4.1956 — JOINED CASES 8 AND 10/54

cal charges in force in each Member State bourg' and that consequently 'the Luxem­ may be added to that ex works price in or­ bourg Government specifically intended to der to make up the delivered price.' make the Luxembourg iron and steel in­ dustry alone bear the financing of the sub­ In the opinion of the applicant, however, sidy for solid fuels for domestic use by in­ 'the levy cannot be considered as a fiscal troducing an equalization levy on hard charge'. coke'. Whilst making all reservations as to the ad­ missibility of that submission which does (b) So far as imported industrial coal is not appear in the applications, reserva­ concerned, the applicant states that the tions based on Article 22 of the Statute of levy 'affects the operation of undertakings the Court of Justice and Article 29 of the in the industries which come within Arti­ Rules of Procedure, the defendant replies cle 80 of the Treaty, that is, industries in the rejoinder that producing industrial coal which supply this type of fuel to the industry of the 'there is nothing to prevent the Member Grand Duchy of Luxembourg'. However, States from imposing on industries or pro­ it 'is imposed on those undertakings in ducts of the Community duties or charges their capacity as competitors with liquid in order to use the receipts therefrom in fuel'. whole or in part for the purpose of subsid­ The levy therefore in its opinion consti­ izing domestic coal'. tutes 'national intervention in the prices of Community products by means...of spe­ It declares, however, that it does not un­ cial charges, intervention which is in itself derstand prohibited by the Treaty'.

UTILISATEURS DE CHARBON LUXEMBOURG V HIGH AUTHORITY

has involved. . . the creation of discrimina tinction to be made between special tion between consumers of solid fuels for charges and general charges: 'In the first non-domestic use of the European Coal place, it is necessary for that subsidy, aid or and Steel Community and Luxembourg charge to be of a special nature, that is, for consumers of this type of fuel. . .' it to concern exclusively undertakings or The reply states that this discrimination products of the Community'. . . 'As soon as comes within Article 4(b) (special charge) the subsidy, aid or charge concerns a group and not within Article 67, (an action by a which includes the undertakings or pro Member State which is liable to provoke a ducts of the Community but goes beyond serious disequilibrium). them what is involved is a general measure In fact, the levy: which could only come if necessary within the application of Article 67'; (a) is not a duty: it does not serve 'to cover It then establishes a distinction between all public charges' since the Ministerial Or subsidies, aids or charges affecting under der of 8 March 1954 'appropriates it spe takings and those affecting products of the cially and exclusively'; Community'. In the second case 'any sub sidy, aid or special charge applicable at any (b) 'may not be considered as a charge ei one point ofdistribution is prohibited only ther since it consists in a levy imposed on if its indirect result is either to distort certain individuals by virtue of a specific competition or to involve a benefit for or service provided for them by the Adminis advantage to undertakings of the Commu tration'.

. .consequently, the The first argument, an argument reasoning equalization levy is nothing other than a to the converse, is based on the fact that price increase'. 'the provision refers only to charges im The defence refutes the argument based on posed on products of the Community Article 4(b) by assuming that the levy con themselves.' stitutes a general charge permitted by Ar The second argument is based on the fact ticle 4(c) and that the differences between that the Member States have the right to the general charges of the countries of the increase or to create charges or duties 'even Community cannot constitute the discri ifthey are imposed only on products of the mination referred to in Article 4(b). Community' ; it is therefore 'permissible to The defendant adds that the fact that a

general measure adopted by one of the 1. By Decision No 25/53 (Journal Officiel Member States does not correspond to the of 13 March 1953, p. 83) adopted under general measures adopted by the other Article 11 of the Convention on the Tran Member States can never be considered as sitional Provisions, the High Authority de dicrimination'. . . 'Substantial differences cided on the abolition, reduction or con exist between the legislation ofother Mem tinuation under specific conditions of cer ber States in particular in the tax and social tain special charges imposed on German security fields', because Member States coal mines. By Decision No 17/54 of 20 have remained sovereign in those matters. March 1954 (Journal Officiel of 24 March 1954, p. 266), the High Authority decided For that reason: on the abolition of all special charges im posed on German coal mines, including Article 26 of the Treaty gives the Council those concerning price reductions for sup of Ministers the task of harmonization; plies to domestic consumers. This abolition was decided on in applica Article 67 of the Treaty enables the High Authority to intervene 'in cases in which tion of the provisions of Article 11 of the Convention on the Transitional Provisions national measures of economic policy would have a repercussion in competition and of Article 4 (c) of the Treaty because for coal and steel'. they were special charges imposed on un dertakings of the Community.

munity. This question formed the subject- ceases to constitute prohibited discrimina matter of an application to the Court of tion when it is justified by a difference in Justice by the Belgian Government (Case the situations of the persons concerned'. 4/53), an application which was subse However, '. . .the governments, precisely quently withdrawn. Because of the inter because they are sovereign in the field of vention of the High Authority, certain sub general economic policy, may apply differ stantial amendments were made to the ent treatment to groups of persons which French system so as to eliminate discrimi differ economically and socially'. natory effects which were incompatible Finally, the important factor, according to with the provisions of the Treaty. the defendant, is to examine 'whether the difference in treatment established by one 3. By Decisions No 29/53 (Journal Offi government between groups of interested ciel of 21 May 1953, p. 129) and No 23/54 persons within the context of its economic (Journal Officiel of 31 March 1954, p. 293) policy distorts competition in the market'. of 30 March 1953 and 29 March 1954, the The interpretation ofthe defendant is com High Authority authorized the Nether pleted by the following reply to the ques lands Government, under the third para tions put during the preparatory inquiry: graph of Article 24 of the Convention on the Transitional Provisions, to maintain 'The principal intervention measures tak until 31 March 1955 an equalization fund en by the High Authority in fields which financed by a levy on the Netherlands coal may reveal certain similarities with the production. subject-matter of the present proceedings A similar authorization was not necessary have been the following: for the Luxembourg equalization fund be-

LAW

THE COURT

for the purpose of giving judgment in the present cases, puts forward the follow­ ing considerations in law:

1. Admissibility of Applications 8/54 and 10/54

A — Capacity ofthe applicant to raise the matter with the High Authority in ap­ plication of Article 33 of the Treaty

Article 35 enables 'undertakings or associations' to raise a matter with the High Authority. The associations referred to in this expression may only be associations of un­ dertakings within the meaning given to the word 'undertaking' by Article 80 of the Treaty for the purposes of the whole Treaty. If in fact this were not so, an association could find itself in a position to institute proceedings where none of the individual members of which it is formed could have done so on its own. In the absence of any indication to the contrary, the Treaty does not establish such differences in the treatment of an association and the members of which it is formed.

It is also, as its title expressly indicates, an association of coal consumers. The fact that the Groupement des Industries Sidérurgiques Luxembourgeoises is one of its members does not alter this character and, moreover, that body has already lodged on its own account an application with the same purpose. Article 1 or the statute of the Association leaves no doubt that its object is to de­ fend and to represent the interests of its members in their capacity as coal con­ sumers and to give opinions on questions of interest to coal consumers. For those reasons, without this finding prejudging the necessary capacity to lodge an application under other articles of the Treaty, the Association des Ut­ ilisateurs de Charbon du Grand-Duché is not one of the associations enabled to raise the matter with the High Authority in application of the provisions of Ar­ ticle 35. For that reason, Applications 8/54 and 10/54 are inadmissible. In those circumstances, the applicant must be ordered to bear the costs.

Upon reading the pleadings; Upon hearing the parties to the main action and the intervener; Upon hearing the opinion of the Advocate General; Having regard to Articles 4, 33, 35, 48, 67, 80, 86 and 88 of the ECSC Treaty; Having regard to the Protocol on the Statute of the Court ofJustice ofthe ECSC; Having regard to the Rules of Procedure of the Court of Justice and the Rules of the Court on costs; Taking note ofthe applicant's statement that, without prejudice to the statement of the reasons upon which the decision taken by the High Authority on 7 Jan-

Pilotti Rueff Riese

Serrarens Delvaux Hammes van Kleffens

Delivered in open court in Luxembourg on 23 April 1956.

M. Pilotti J. Rueff President Judge-Rapporteur A. Van Houtte Registrar

OPINION OF THE ADVOCATE GENERAL

(see Joined Cases 7 and 9/54 p. 204)

(Joined Cases 8 and 10/54); 1 — Language of the Case: French