C-1/57

JUDGMENT OF 10. 12. 1957 -JOINED CASES I AND 14/57

6. Opinion of the High Authority — Legal nature An opinion cannot involve the person to whom it is addressed in any legal obligation; it is a measure by means of which the High Authority exercises its function of giving guidance and constitutes advice given to undertakings. An opinion does not affect the freedom of decision and the responsibility of undertakings any more than those of the High Authority.

In Joined Cases 1 and 14/57

SOCIÉTÉ DES USINES À TUBES de la SARRE , having its registered office in Paris, represented by its President and Director-General, Jean Levêque, assisted by Henri Levêque, Advocate at the Cour d'Appel, Paris, with an address for service in Luxembourg at the Chambers of Georges Reuter, 1 avenue de l'Arsenal,

applicant, v

High Authority of the European Coal and Steel Community , represented by its Legal Adviser, Gerard Olivier, acting as Agent, assisted by Jean Coutard, Advocate at the Conseil d'État and the Cour de Cassation, Paris, with an address for service in Luxembourg at its offices, 2 place de Metz,

JUDGMENT

Facts

1. Procedure letter of 19 December 1956, which the ap­ plicant considered to be an opinion within On 23 January 1957 the Société des Usines the meaning of the fourth paragraph of Ar­ à Tubes de la Sarre brought an application ticle 54 of the Treaty. (Case 1/57) against the High Authority's By order of 31 January 1957 the President of

USINES À TUBES DE LA SARRE v HIGH AUTHORITY

2. Decision No 26/56 of 11 July 1956 (JO 7. By letter of 15 February 1957 the appli­ No 17 of 19.7.1956, p. 209) completed the cant expressed its disagreement with the in­ abovementioned decision by providing terpretation placed by the High Authority that, regardless of the amount of foresee­ on the letter of 19 December 1956 and stat­ able expenditure, investment programmes ed that it was unable to 'put forward fresh relating to blast furnaces and converters facts'. used in steel production must be the subject of advance notification. On the same date 8. On 27 February 1957, the High Author­ the High Authority published an opinion ity sent the following letter to the applicant: giving guidance on investment pro­ grammes for the iron and steel industry. 'Subject: Your Investment Statement of 28 July 1956. Installation of an Electric Steel 3. On 28 July 1956, in accordance with the Mill

said decisions, the applicant company sub­ mitted an investment proposal to the High Gentlemen, Authority for the installation of an electric steel mill with a capacity of 80 000 metric In your letter of 15 instant you inform us tons of liquid steel. that you are unable to put forward fresh

JUDGMENT OF 10. 12. 1957 —JOINED CASES 1 AND 14/57

July 1956). Moreover, your letter of 28 July In Application 14/57, the Société des 1956 referred to that opinion. Usines à Tubes de la Sarre claimed that the In view of the fact that, first, the invest Court should: ment proposals known to the High Author ity will, in the coming years, endanger the 'either rule that the application for annul supplies of ferrous scrap to the open-hearth ment is inadmissible because the act im and electric steel mills and that, secondly, if pugned is incapable, directly or indirectly, you put your proposal for an electric mill of having any legal effect or because the let into effect, this will mean the purchase of ter of 27 February 1957 does not constitute substantial quantities of ferrous scrap on an opinion within the meaning of the fourth the market, the High Authority has no al paragraph of Article 54 of the Treaty since

9. It was against this opinion that, on 25 statement of defence in Case 14/57 and March 1957, the applicant company sub contended that the Court should: mitted Application 14/57. 'dismiss the application lodged on 25 March 3. Conclusions of the parties 1957; as inadmissible on the ground that it im In Application 1/57 the applicant claimed pugns an opinion and not a decision or that the Court should: recommendation within the meaning of Article 14 of the Treaty,

USINES À TUBES DE LA SARRE v HIGH AUTHORITY

4. Submissions and arguments of the legal provisions there is nothing to jus­ the parties tify the applicant's assumption.

A — Admissibility III — Admissibility of Application 14/57

I — Admissibility of Application 1/57 A. In the applicant's view, this application is inadmissible since it impugns a non-ex­ A. The defendant contends that the appli­ istent act which is devoid of any basis in law cation is inadmissible because the letter of or regulations. The letter of 27 February 19 December 1956 does not constitute an 1957 cannot be regarded as a true opinion opinion within the meaning of the fourth since it constitutes no more than a commu­ paragraph of Article 54 of the Treaty. This nication consequent upon the opinion of 19 is demonstrated by the fact that the pur­ December 1956. ported opinion was not a reasoned one and was not brought to the attention of the gov­ ernment concerned or published as re­ B. The defendant takes the contrary view quired by the said article. Application 1/57 that the letter of 27 February 1957 certainly in fact impugns a decision which led to the constitutes the opinion provided for in the adverse opinion of 27 February 1957. fourth paragraph of Article 54 of the Treaty.

JUDGMENT OF 10. 12. 1957 —JOINED CASES 1 AND 14/57

There can be no question rules out any possibility of proceedings for of the High Authority being prohibited annulment of an opinion and this is the rea from taking subsequent action in accor son for the exception expressly provided for dance with an opinion which it has previ in the fifth paragraph of Article 54. ously delivered. On the other hand Article 31 is not in itself The argument to this effect produces the a sufficient foundation for the admissibility contradictory conclusion that the High of an application for which no provision is Authority would not only be unable to take made under any of the other articles of the any positive action when delivering an

institute proceedings under Article 33 of istration of the High Authority has reached the Treaty. a conclusion in the circumstances provided for under the Treaty. B — Substance There is nothing approaching a decision in the words, taken by themselves, of the two If the adverse opinion were to 'have the letters of 19 December 1956 and of 27 Feb force of a decision', the following submis ruary 1957. The High Authority has never sions are advanced in support of the appli claimed for itself the right to attach actual cation for annulment. obligations to an opinion given under the fourth paragraph of Article 54 of the Treaty. I. The claim that the opinion of 27 Febru The defendant contends that opinions have ary 1957 was delivered out of time their own place and importance in the general structure of the Treaty and to allow The applicant contends that under Article 4 the possibility of an application to have an of Decision No 27/55, as it has always been opinion annulled would upset the balance interpreted by the High Authority and as established by the Treaty between action confirmed by the terms of the correspon taken by the High Authority to give guid dence between the parties, the High Au ance and the responsibility of undertakings. thority undertook to issue its opinions with The underlying reasons which led to Article in a period of 3 months following the noti 54 would, as a result, be distorted if respon fication of the programmes.

It dis tion of inadmissibility would give it an as putes the relevance of the correspondence surance that conclusions would not subse on this point.

II — Statement of reasons would have to adopt a point of view on in vestment programmes. (a) The letter of 19 December 1956 (Appli cation 1/57) III — Investment programme and adverse opinion A. The applicant submits that the words 'in the present circumstances' are insufficient, A. The applicant claims that it based its in by themselves, to satisfy the requirements vestment programme on the information of Article 15 and the fourth paragraph of contained in the general opinion of 19 July Article 54 of the Treaty.

Treaty. In any case the applicant company was perfectly well aware of the reasons why B. The defendant rejects the applicant's ar the High Authority had no alternative but gument on the basis of the following con to give an adverse opinion. siderations: the letter of the Mannesmann company contains no guarantee that the in (b) Letter of 27 February 1957 (Application vestment contemplated would not involve 14/57) any additional purchase of ferrous scrap, nor does it demonstrate that the Mannes A. The applicant claims that this opinion mann company and the applicant company was not only issued out of time but did not form a single economic unit such as to contain an adequate statement of reasons make it possible to produce a unified state since the High Authority makes no refer ment on the pig-iron/ferrous scrap relation ence to the special considerations advanced ship as a whole. by the applicant company.

and 5 of the Treaty. all policy relating to the supply of ferrous scrap on the common market and that the B. The defendant is unable to understand general opinion of 19 July 1956 specified the on what grounds the applicant company is conditions under which the High Authority relying in alleging that the treatment which

I — Does the letter of 19 December 1956 constitute an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty?

The unequivocal terms and the form of the letter of 19 December 1956, together with the correspondence and discussions which preceded its communication, clearly demonstrate that, in sending this letter, the High Authority undoubtedly intended to deliver an 'opinion' within the meaning of the fourth paragraph of Ar­ ticle 54 of the Treaty on the investment proposal submitted by the applicant on 28 July 1956. However, the Court Finds that, under the said provision, the delivery of an opinion on investment programmes is subject to certain requirements: the opinion must be a reasoned one, it must be communicated to the undertaking and notified to the government concerned, and the fact that it has been delivered must be published. It is clear from the file that, although the letter of 19 December 1956 was in fact communicated to the applicant, it did not form the subject of a notification to the government concerned or of any reference in the Journal Officiel. The Court con­ curs with the opinion of the Advocate-General that the statement of reasons is non-existent. The words 'in the present circumstances' cannot in fact be regarded as a statement of the essential findings of the fact upon which the legal justifica­ tion of the measure depends. Several of the conditions laid down by the Treaty have not been fulfilled; although some of them are formal requirements which cannot affect the character or the existence of an act, it is clear that a statement of reasons for an opinion is not only required by Articles 5 and 15 and the fourth paragraph of Article 54 of the Treaty but that it is an essential, indeed constituent element of such an act, with the re­

It is clear from the file that this second letter was communicated to the applicant and notified to the governments concerned and that its issue was the subject of an entry in the Journal Officiel. Moreover, the Court considers that, although the statement of reasons is brief, the letter of 27 February 1957 is sufficiently reasoned. In the first place the High Authority refers to the memorandum of 19 July 1955 concerning the general objects and to the general opinion of 19 July 1956 giving guidance on investment programmes in the iron and steel industry and, secondly, it claims that the investment contemplated will result in the purchase of substan­ tial quantities of ferrous scrap on the market. The act consequently fulfils the con­ ditions laid down in the fourth paragraph of Article 54 of the Treaty and, on this account, constitutes an opinion within the meaning of that provision. The applicant claims that the opinion of 27 February 1957 was delivered out of time because Article 4 of Decision No 27/55 of the High Authority of 20 July 1955 requires the High Authority to deliver its opinion within a period of three months following the submission of the investment programme. Allowing for a deferment agreed between the parties this time-limit expired on 19 December 1956. Without wishing to construe the wording of Article 4 of Decision No 27/55 of the High Authority as, by implication, imposing on the authority an obligation to de­ liver its opinion within a period of three months from the submission of pro­ grammes and the commencement of work on them, the Court considers that the principles of sound administration require that the delivery of an opinion within the meaning of the fourth paragraph of Article 54 of the Treaty should take place within a reasonable time. In requiring undertakings to lodge their investment proposals not less than three months before the signature of contracts, the High Authority hopes to act in such a way as to prevent work of which it disapproves from being undertaken. From this it follows that the undertakings concerned must of necessity know the opin­ ion prior to the date fixed for work to begin. On a reasonable view, these arrangements therefore require the High Authority to deliver its opinion, in normal circumstances, before the expiry of the three months laid down in Article 4 of Decision No 27/55.

tute a disguised decision, as the applicant considers it to be. As the Court ruled in its judgment of 16 July 1956 in Case 8/55, an act of the High Authority con­ stitutes a decision when it lays down a rule capable of being applied, in other words, when by the said act the High Authority unequivocally determines the po­ sition which it decides to adopt if certain conditions are fulfilled. There can be no doubt that, first, there is, in the opinion of 27 February, no rule capable of being applied since it imposes no legal obligation on the applicant and, secondly, there is nothing in the file on the case justifying the conclusion that, in issuing the said opinion, the High Authority had clearly laid down what attitude it had forthwith decided to adopt towards the undertaking in the event of its ignoring the adverse opinion. The warnings given by certain officials are no proof that the High Au­ thority had already reached a conclusion in the matter. The opinion of the High Authority of 27 February 1957 cannot, therefore be regarded as a decision within the meaning of Article 14 of the Treaty with the result that the application for annulment of that opinion is inadmissible since it impugns an act which cannot be reviewed by the Court.

C — Effect of a ruling that the application is inadmissible

The applicant seeks a declaration from the Court that, inter alia, Application 14/57 is inadmissible because the act is capable, neither directly nor indirectly, of having any legal effect. It considers that a ruling that it is inadmissible would provide it with an assurance that no conclusions will later be drawn from the opinion which are inconsistent with the true nature of that act.

THE COURT

hereby:

1. Declares Applications 1/57 and 14/57 to be inadmissible;

2. Orders the applicant to pay the costs of the proceedings.

Delivered in open court in Luxembourg on 10 December 1962.

OPINION OF MR LAGRANGE —JOINED CASES 1 AND 14/57

Mr President, second opinion which, in its view, alone is Members of the Court, in the nature of an opinion, the company, in order to cover all eventualities, brought a The two parties are agreed at least upon one second application against this opinion: this point, the importance of the judgment was Application 14/57. which you are called upon to deliver in the These two applications taken together (for present case regarding the legal effect of the that is obviously how they must be dealt opinions of the High Authority on the sub­ with) give rise to a number of alternative ject of investments as provided for under conclusions. the fourth paragraph of Article 54 of the In the first place, the two parties are by im­ Treaty. Although this view of the impor­ plication agreed that only one of the two let­ tance of the case (or rather this opinion), ters really constitutes an opinion delivered does not bind the Court, I myself fully con­ under the fourth paragraph of Article 54, so, cur with it. if one of these applications is entertained, The arguments developed by the parties the inadmissibility of the other follows as a both in the written procedure and in the matter of course. This is certainly the view very remarkable submissions which you of the applicant which regards the conclu­ have heard are a measure of this impor­ sions in the second application as being tance. But their breadth and quality have merely an alternative to the conclusions in considerably simplified my own task be­ the first. cause it really does seem that everything The conclusions in the first application are has been said. themselves alternatives, for the applicant First of all I think I can dispense with any claims statement of the facts, which were admira­ bly set out in the report of the Judge-Rap­ 'that the Court should: porteur, were the subject of detailed consid­ either rule that the application for annul­ eration in the pleadings, and will be fresh in ment is inadmissible on the ground that the your minds. contested opinion is incapable, directly or I need only recall that Application 1/57 is indirectly, of having any legal effect; brought against a letter of 19 December 1956 which the applicant company regards or, alternatively, annul the contested opin­ as the opinion delivered by the High Au­ ion because it infringes Articles 2, 3, 4, 5, thority pursuant to the fourth paragraph of 14, 15 and 54 of the Treaty.' Article 54 of the Treaty concerning the statement of investments submitted on 28 The basic issue raised in this case is a ques­ July 1956 and that, since the High Author­ tion of principle, which is whether opinions ity refused to recognize this letter of 19 De­ delivered by the High Authority pursuant cember 1956 as being in the nature of an to the fourth paragraph of Article 54 of the opinion given under Article 54 and, in con­ Treaty can or cannot be the subject of an ap­ sequence, on 27 February 1957, delivered a plication for annulment. I propose to deal