C-17/57

JUDGMENT OF THE COURT 4 FEBRUARY 1959 <apnote>1</apnote>

Gezamenlijke Steenkolenmijnen in Limburg v High Authority of the European Coal and Steel Community

Case 17/57

Procedure — Action for failure to act — Putting the High Authority on notice

Proceedings may be brought under Article submitted to the High Authority but also 35 only inasmuch as the applicant has first because of the need for notification which, raised the matter with the High Authority by impugning the inaction of the High in accordance with the provisions of the first Authority, forces it to take a decision within paragraph of that article. This initial re­ a limited period regarding the legality or quirement is necessary not only because the otherwise of its inaction (Article 35 of the time-limit set for the party concerned com­ ECSC Treaty). mences to run with effect from the request

Procedure — Application for annulment — Basis of action — Change

JUDGMENT OF 4. 2. 1959 — CASE 17/57

Raad of the Netherlands, with an address for service at the offices of the High Authority at 2, place de Metz,

defendant,

Application for annulment of the decision of the High Authority concerning the Federal German Government in respect of the tax-free bonus granted to miners working underground and known as the 'Bergmannsprämie'.

THE COURT

composed of: A. M. Donner, President, O. Riese and J. Rueff (Judge-Rapporteur) Presidents of Chambers, L. Delvaux, Ch. L. Hammes, N. Rossi and N. Catalano, Judges,

formed the President of the High Authority without raising any objection to a that his Government was contemplating measure which provided an incentive for adoption of the following measures: underground workers, the High amendment of the directives in force for Authority commented critically on the payment of part of the shift bonus out of the evaluation of underground plant in the coalfields; public funds without the imposition of a countervailing charge on the coalmining a reduction of the tax on turnover; undertakings; suspension of old-age insurance con­ to offset the continuance of the measure tributions to the miners' provident fund; which the High Authority considered to grant of a shift bonus which would not be illegal, the Government of the Federal be subject to income tax. Republic then proposed to introduce a Following this notification, the High compensatory charge by discontinuing Authority, by letter of 2 May 1956, set in the payment to the miners' pension fund, motion the procedure provided for under there having been no objection on the

STEENKOLENMIJNEN v HIGH AUTHORITY

financing. Since no decision has been taken, dustry to offset the shift bonus, which ought it is impossible to provide the Netherlands to be paid by the undertakings'. Government with a copy of it', it concluded. On 11 July 1957, the applicant wrote re- questing the High Authority to inform it of the decision which the High Authority had II — Procedure taken concerning the problem created by the shift bonus. By application dated 13 September 1957, On 7 August 1957 the High Authority registered on 14 September under No 1944, replied informing the applicant that 'the De Gezamenlijke Steenkolenmijnen in Lim problem of the bonus paid to German burg (the 'Association of United Coalfields miners has now been solved'. 'The solution of Limburg', hereinafter called 'the consists of a higher contribution to social in Association') sought annulment of the deci surance by the mining undertakings'. The sion of the High Authority in respect of the High Authority also referred to the Bulletin tax-free bonus granted to underground Mensuel d'Information, which it is responsi miners on the ground that the decision had ble for publishing, the speech of its Vice- not been published by the High Authority. President, Mr Etzel, to the Common The applicant association claimed that the Assembly during the debates of the previous Court should: 27 June and to the paper submitted on 1 'annul the contested decision; July by one of its members to the Con declare that the High Authority shall sultative Committee. record in a decision that, by financing out In reply to this letter the applicant wrote of public funds a tax-free bonus granted again to the High Authority on 22 August to miners working underground, the 1957, stating that it 'believes the decision Federal Republic of Germany has failed adopted concerning the Federal German to fulfil its obligations under the Treaty Government is prima facie contrary to the and that it must accordingly annul this Treaty' and that it was contemplating 'in

JUDGMENT OF 4. 2. 1959 — CASE 17/57

'1. Note that the High Authority, in accor­ sion represents confirmation of the con­ dance with Article 32 (2) of the Rules of tested regulations. Procedure of the Court, has an address The applicant maintains that the decision for service in Luxembourg at 2, place de was set out by the letter which the President Metz; of the High Authority sent on 21 June 1957 2. Rule that the application of 13 to the Minister for Economic Affairs of the September 1957 of the Gezamenlijke Federal Republic of Germany. It sum­ Steenkolenmijnen in Limburg is inad­ marizes it thus: missible or, in the alternative, dismiss 'The High Authority consents to the the application; financing by the Federal Republic of Ger­ 3. Order the applicant to pay the costs.' many of the Bergmannsprämie out of The application was submitted in due form public funds in view of the Federal and the procedure followed the normal German Government's promise to discon­ course. tinue in future the contribution to the

STEENKOLENMIJNEN v HIGH AUTHORITY

on 21 June. It declares its willingness to paragraph of Article 22 of the Protocol on abandon the word and to use the word the Statute of the Court of Justice expressly 'resolution' in its place. requires the applicant to produce documen It also unreservedly recognizes that 'there is tary evidence of the date on which the re- no question of a decision within the mean quest was lodged. ing of Article 88 of the Treaty', but it still Nor, again, can the letter addressed by the insists that 'it in no way follows that the Vice-President of the High Authority to the contested resolution does not constitute a applicant on 7 August constitute an express decision'. refusal in the form of a decision.

Authority. First of all it states that it did not of an application before the Court'. intend to base its application on Article 35 In answer to the concept of decision sub of the Treaty but on Article 33 because, it mitted by the applicant, the High Authority explains, suggests another interpretation which is also based on case-law and learned opinion. It 'In the unlikely event of the Court's rul endeavours, in particular, to demonstrate ing that, as claimed by the High that the letter of 21 June 1957 'does not en Authority, it took no decision in this case, dow the Federal Government with any new the applicant could always avail itself of the abovementioned means of redress legal rights or obligations and does not con tain any rule applicable in the future which and follow the procedure in Article 35.' has henceforth the force of law'. Nevertheless it adds: Moreover, the High Authority emphasizes 'if the Court were to hold that the con the need, in describing an act, to have tested decision constitutes a refusal to regard to its form as well as its underlying take a decision (as the applicant has con

As far (2) The possibility that the contested deci as the applicant is concerned, the letter of sion constitutes an express refusal to take a the High Authority of 7 August 1957 decision within the meaning of Article 88. would in that case contain the refusal. It In its statement of defence, the High would then be better to couch the con Authority advances alternative arguments tested decision in the following terms:

"The High Authority refuses to condemn The Association denies that a decision can the Federal Republic for . . . etc.", and in be considered to be individual and to con those circumstances the applicant would cern a party only 'if its practical conse ask the Court to regard its application as quences exclusively affect the rights and in being brought against that decision.' terests of that party'. This alternative claim is challenged from two points of view by the High Authority in Second head of claim its rejoinder, in which it criticizes the appli cant, first for thus expressing 'in wholly The defendant relies in particular on the different terms the decision against which it opinion of the Advocate-General in Joined brought proceedings' and, second, for im Cases 7 and 9/54 in contending that, when pugning a negative resolution which in no seised of proceedings for annulment, the way constitutes a decision of refusal, either Court of Justice 'can decide no more than express or implied, and, moreover, is not the that the High Authority is under a duty to subject of any formal request for action. take a particular step'. The High Authority goes on to expound the In reply, the applicant states that there is no alternative argument that, even on the such restriction under any provision of the assumption that the consent which it gave to Treaty and that 'its concept is that which the German Government amounted to a accords most closely with the provisions of decision against which proceedings could be Article 34 of the Treaty under which, if the Court declares a decision or a recommenda brought, it would still not be an individual decision concerning the applicant. tion void, it shall refer the matter back to This argument affects the admissibility of the High Authority, which "shall take the the application only in so far as the applica necessary steps to comply with the judg tion for annulment, based on an infringe ment".' The applicant concludes by stating ment of the Treaty, is concerned. 'in fact, this provision makes it clear that As far as the applicant is concerned, the the Court can also take the steps which have decision is an individual one because it to be taken by the High Authority'. 'approves a special measure adopted by the In its rejoinder the High Authority replies Federal Republic'.

comments: would thereby, in fact, amount to a general decision'. Moreover such consent would 'As far as misuse of powers is concerned, have 'repercussions on the conditions of the High Authority does not wish to con competition affecting all coal producers of test admissibility, although it is very the Community.' It does not, in con doubtful whether this submission is ade sequence, concern the applicant individually. quately formulated and substantiated.'

In order to carry out the tasks assigned to it, the High Authority is empowered by Article 14 of the Treaty to take decisions in accordance with the provisions of the said Treaty.

The decision (if any) referred to in the application could have been taken only in pursuance of Article 88 of the Treaty.

Article 88 of the Treaty strictly defines the conditions in which the decisions for which it provides may be taken, but provides for such a decision only when 'the High Authority considers that a State has failed to fulfil an obligation under this Treaty', in which case the High Authority is bound to record this failure in a reasoned decision 'after giving the State concerned the opportunity to submit its comments' and setting it a time-limit for the fulfilment of its obligation.

If, after giving a State the opportunity to submit its comments, pursuant to Article 88, the High Authority receives undertakings from the State which convince it that the State had not failed to fulfil an obligation under the Treaty, it has no alter­ native but to discontinue the action taken. Article 88 of the Treaty confers no power on the High Authority to take, in respect of Member States, decisions registering approval, but only decisions recording failure to fulfil an obligation un­ der the Treaty.

In its letter of 21 June 1957, the High Authority confined itself to informing the Federal Government that, if certain conditions were fulfilled, it would no longer consider that the said Government had failed to fulfil an obligation under the Treaty.

In these circumstances, the letter of 21 June 1957 cannot be regarded as containing a decision recording a failure within the meaning of Article 88 and it cannot in con­ sequence, be the subject of the action provided for under Article 33 to have deci­ sions or recommendations of the High Authority declared void.

This initial requirement is necessary not only because the time-limit set for the party concerned commences to run with effect from the request submitted to the High Authority but also because of the need for notification which, by impugning the in­ action of the High Authority, forces it to take a decision within a limited period regarding the legality or otherwise of its inaction.

The applicant's letter of 11 July 1957 to the High Authority requesting to be in­ formed of the decision which it had taken in the matter in question cannot be regarded as fulfilling the requirement provided for in the first paragraph of Article 35 of the Treaty, nor does the letter of 22 August, in which the applicant merely stated that it was contemplating instituting proceedings against the decision which it believed the High Authority to have taken, constitute fulfilment of that require­ ment.

In consequence, the action of the Gezamenlijke Steenkolenmijnen in Limburg is in­ admissible either under Article 33 or under Article 35.

Costs

Under Article 60 of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. The applicant in this action has failed to establish admissibility.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;

Donner Riese Rueff

Delvaux Hammes Rossi Catalano

Delivered in open court in Luxembourg on 4 February 1959.

A. Van Houtte A. M. Donner

Registrar President

OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 27 NOVEMBER 1958 <apnote>1</apnote>