C-18/57

JUDGMENT OF 20. 3. 1959 — CASE 18/57

do not allow the Court to check them and in the ECSC Treaty. Insufficient grounds are particular ascertain whether the High equivalent to lack of grounds (Articles 15 Authority has fully observed Article 65(2). and 65(2) of the ECSC Treaty). Such decisions thus infringe Article 15 of

In Case 18/57

I. NOLD, KG, KOHLEN- UND BAUSTOFFGROßHANDLUNG, Darmstadt, represented by Georg Thomas, Rechtsanwalt of the Amtsgericht and Landgericht Frankfurt am Main, and Joseph Kübel, Rechtsanwalt, of the Landgericht Bonn, with an address for service in Luxembourg at the offices of Félicien Jansen, Huissier, 21 rue Aldringer, applicant,

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser, Dr Robert Krawielicki, acting as Agent, assisted by Professor Philipp Möhring, Rechtsanwalt, of the Bundesgerichtshof Karlsruhe, with an address for service in Luxembourg at its offices at 2 place de Metz,

gives the following

JUDGEMENT

Issues of fact and of law

I — Conclusions of the parties 'annul Decisions Nos 16/57, 17/57, 18/57 and 19/57 of the High Authority of 26 1. In its application the applicant claims July 1957 (published in the JO of 10.8 that the Court should: 1957).'

NOLD v HIGH AUTHORITY

2. The defendant contends in its statement 4. On 8 January 1957 the applicant com of defence that the Court should: pany went into liquidation as a result of the retirement of the sole personally liable 'dismiss the application made by the shareholder Mrs Use Nold, nee Behne. applicant as inadmissible or in any event 5. The transitional rules expiring on 31 as unfounded with all the consequences March 1957 benefiting the applicant were arising in law, in particular with regard extended to 30 June 1957 by Decisions Nos

3. On this date Decisions Nos 5/56, 6/56 for qualification as first-hand wholesalers from 75 000 to 60 000 metric tons, from and 7/56 were adopted by which the High 40 000 to 30 000 metric tons and from Authority authorized under Article 65 of 12 500 to 9 000 metric tons. the ECSC Treaty the agreements of the mining companies associated in the Ruhr 8. Decision No 19/57 gave approval to the coal-selling agencies Geitling, Präsident and Oberrheinische Kohlenunion, for the benefit Mausegatt which contained inter alia com of its members who according to the sales mercial rules and in particular laid down conditions of the mining companies or their conditions relating to qualification as first marketing organizations were entitled to hand wholesalers. purchase directly from these organizations, According to the rules approved on 15 to purchase jointly from the districts of Aachen, Ruhr, Saar and Lorraine. February 1956 to be recognized by the three joint selling agencies as first-hand 9. The joint selling agencies, Präsident and wholesalers for the 1956/57 coal-marketing Mausegatt, wrote to the applicant on 19 year it was necessary for those wholesalers September 1957, as did Geitling on 21 to show that in the previous coal-marketing September 1957 in similar terms, that as year they had from 1 October 1957 they could no longer treat the applicant as a first-hand (1) marketed at least 75 000 metric tons of wholesaler for sales area IV since it no fuel from Community market sources; longer fulfilled the required conditions, and (2) of which 40 000 metric tons were in that August and September would be

JUDGMENT OF 20. 3. 1959 — CASE 18/57

sonally liable member and therefore no one entitled to represent it. It maintains that the 1. The application cited: partners acting as liquidators were not en (1) the High Authority of the European titled to bring the action in the name of the Coal and Steel Community; company nor was Mr Erich Nold, who at (2) 'Präsident' Ruhrkohlen Verkaufs the time was not a member of the firm, en gesellschaft mbH; titled to give an authority to act. (3) 'Mausegatt' Ruhrkohlen Verkaufs In the defendant's view the action is thus gesellschaft mbH; now inadmissible because the nullity has not (4) 'Geitling' Ruhrkohlen Verkaufs been repaired within the period prescribed gesellschaft mbH. for bringing the action.

3. On application of the applicant the Court He signed a statement approving all the by Order dated 4 December 1957 previous procedural acts only after the ex recognized the applicant's capacity to in piry of this period; according to the High stitute proceedings which the High Authority it is therefore invalid. Authority had contested in its pleadings 2. The applicant cites Article 12 of the dated 23 October 1957 on the basis of the partnership deed and the statements of the second paragraph of Article 33 and Article retiring members in support of the claim 80 in conjunction with Articles 65 and 66 of that after the undertaking went into liquida the ECSC Treaty and suspended operation tion the members jointly entitled to repre of Decisions Nos 16/57, 17/57 and 18/57 sent the undertaking had transferred the until final judgment in the action in so far further conduct of the business and the as the commercial rules provided for in representation of the undertaking to Mrs these decisions disqualified the applicant Sophia Nold who in turn was entitled to from recognition as a first-hand wholesaler. grant a general power of attorney to a third

NOLD v HIGH AUTHORITY

of the undertaking to act as a trustee at the C. Substance time the application was lodged and this meant that he had to defend the existence of (a) Submission of discrimination

the undertaking by all available means. 1. Admissibility of the submission Finally the applicant considers that by The High Authority alleges that the con­ reason of the principle of good faith the fact tested decisions are general decisions and that it was in the process of being restruc­ that the applicant was entitled to allege dis­ tured during the short period laid down for crimination and thus infringement of the lodging an application and that there was Treaty only if it had complained in due time an 'interregnum' cannot lead to rejection of of misuse of powers, which was not the case, the application for not being brought within and if the Court had held this claim to be the prescribed period. well founded. It proposes to deal with this submission therefore only ex abundanti B. Formal validity of the application cautela.

measure. In this it refers to Article 107(2) of The fact that it did not fulfil the first condi­

the Rechtsanwaltsordnung of Hesse and a tion requiring a turnover of 60 000 metric letter in the file from the President of the tons per annum is due to circumstances for Anwaltskammer Frankfurt am Main. which it is not responsible since it is due to a Further it states that according to the misunderstanding of the position by the wording of the Statute of the Court of High Authority. First, it is dependent on the Justice of the ECSC the lawyer need fulfil deliveries of fuels which it receives; no condition other than that of being en­ preference was, however, given to the sub­ titled to practise before a court of a Member sidiaries of the joint selling agencies. State which is not contested in the present Secondly, there has been a reduction in turn­ case. over because certain industrial customers

JUDGMENT OF 20. 3. 1959 — CASE 18/57

have received deliveries direct from the joint to direct deliveries. The applicant cannot selling agencies. cogently allege that this is the case as the This involves measures and practices three criteria for recognition of a wholesaler leading to varied practice with regard to were applied equally to all dealers in the price and delivery between producers and Common Market.

buyers and between firms engaged in There would be discrimination vis-à-vis the wholesale trade; thus there is discrimina­ other dealers in the Common Market if the tion. applicant continued to receive supplies as a Discrimination is also alleged in the fact first-hand wholesaler by virtue of limited that buyers are prevented from freely choos­ transitional rules conceived as exceptions. ing their supplier. The rebates granted to The defendant also objects to the applicant's the first-hand wholesaler and the advan­ supporting his allegation of discrimination tages which it receives with regard to trans­ by saying that it has lost substantial port and delivery, etc. gives it such an ad­ customers because the joint selling agencies vantage with regard to its offers for sale that made deliveries direct to certain industrial

discrimination under Article 4(b). The com­ dustrial customers since those rules depend mercial rules authorized by the High on other decisions of the High Authority Authority in no way contribute to an ap­ which are no longer open to challenge owing parent improvement in supply and are also to the expiry of the relevant period, namely not necessary to achieve this effect; they Decisions Nos 5 to 7/56 of 15 February 1956. therefore infringe the conditions of Article In addition, the authorization for these rules 65 and thus involve discrimination. is based on an evaluation of the situation, The High Authority replies that the submis­ resulting from economic facts and circum­ sion is not well founded because the con­ stances which the Court may not review. tested decisions do not affect the applicant The High Authority expressly denies that at all. there are any quantitative restrictions in the The applicant would be adversely affected, coal trade. It takes the view that the in­ if at all, by the lapse of the limited tran­ troduction of the delivery scheme is not sitional rules authorized by Decisions Nos 5 responsible for the applicant's situation and to 7/56; the termination of these tran­ could not have prevented it from achieving sitional rules arose from Decisions Nos 10 to the prescribed turnover. This failure is due 12/57 which have not been contested by the solely to the considerable reduction in its applicant and under the terms of which the trade in recent years, as the standard of period expired on 30 June 1957. quantities laid down in the delivery scheme Moreover, the applicant misunderstands the related not to deliveries to the wholesalers concept of discrimination. There is dis­ but to deliveries to their customers, so that crimination where dealers in a comparable it would have been possible for the applicant situation are treated differently with regard to extend its custom.

The defendant further takes the view that The High Authority denies that it is re­ Articles 4(b) and 65 of the Treaty govern quired to make its decision dependent on the different aspects of economic activity and participation of a third party in the drawing are not mutually contradictory and ex­ up of the agreement. clusive. In fact the applicant did take part indirectly It also states that it is in no way free to in drawing up the authorized agreement. approve the commercial rules submitted to The applicant is not adversely affected by it as it pleases or with arbitrary limitations the decision. It does not regulate the direct and conditions. In this respect it is bound by supply of wholesalers by the producers and the Treaty and must give authorization if, does not give the Oberrheinisiche Kohlen­ on the one hand, the conditions of Article union or the coal wholesalers belonging to it 65(2) are fulfilled and, on the other hand, a monopoly position since both non-members Article 4(b) is not infringed. as well as members of the Oberrheinische The requisite conditions are fulfilled here: Kohlenunion have to fulfil the conditions the number of recognized first-hand laid down for direct supply. wholesalers (73) is large enough to ensure (b) Submission that the provisions of the effective competition in the sale of fuel from Basic Law of the Federal Republic of the three joint selling agencies in sales area Germany and the constitution of the IV. The rules contain no limitation going Land Hesse are infringed. beyond their objective, namely the improve­ ment of supply. The criterion laid down by The applicant alleges in the application that them arises from economic facts and cir­ the rules in the decisions infringe the Basic cumstances which the Court may not Law of the Federal Republic of Germany review. and in particular Articles 14 (expropria­ Nor do the rules infringe the prohibition on tion), 3 (principle of equality) and 12 (right discrimination in Article 4(b) since they to choose trade, occupation or profession) apply equally to all dealers; an exception, and the constitution of the Land Hesse, such as that claimed by the applicant on the namely Article 43 (protection of small and grounds of its seniority, would on the other medium-sized industrial and commercial

JUDGMENT OF 20. 3. 1959 — CASE 18/57

The applicant in reply says that the submis­ (d) Submission of infringement of an essen­ sion of misuse of powers is connected with tial procedural requirement the general concept of discrimination which includes it. It is further of the view that the 1. Admissibility of the submission The High Authority states that the appli­ Court in application of the principle da mihi cant's submission cannot be allowed since it factum, dabo tibi ius may infer this submis­ is not mentioned in the application and is sion from the facts in the application. thus out of time.

Grounds of Judgment

A — Capacity of the applicant

The limited partnership Nold was formed and established in Germany. Its partnership deed, winding up and dissolution are governed by the national provi­ sions applying to the place where it has its registered office. Under German law a company in liquidation has the capacity to institute proceedings and to vindicate its

NOLD v HIGH AUTHORITY

rights for the purposes of its liquidation. Included among these in the present case without doubt are the preservation of the right essential to the existence of the com­ pany to receive supplies as a first-hand wholesaler.

According to German law the partners of a limited partnership which has gone into liquidation by operation of law as a result of there being no longer a partner with unlimited liability can empower a representative to undertake certain acts in law in so far as this is necessary for the purposes of the liquidation. The partners acting as liquidators were therefore entitled to give Mr Erich Nold a power of attorney to bring the present action.

C — The legal nature of the contested decisions

The admissibility of the submissions upon which the application relies depends on the legal nature and the legal scope of the contested decisions. With regard to ac­ tions by undertakings Article 33 of the ECSC Treaty distinguishes between

JUDGMENT OF 20. 3. 1959 — CASE 18/57

individual and general decisions in so far as it allows the right to have a general decision declared void only where the applicant considers it to involve a misuse of powers affecting it.

Decisions Nos 16 to 18/57 of 26 July 1957 authorize the agreements on the joint sale of fuel by the mining companies associated in the coal-selling agencies of the Ruhr, Geitling, Präsident and Mausegatt. Decision No 19/57 which was also adopted on 26 July 1957 authorized the joint purchase of fuel from certain coal wholesalers operating in southern Germany through the intermediary of Oberrheinische Kohlenunion.

The contested decisions were adopted on the basis of Articles 65(2) of the ECSC Treaty as a result of applications for authorizations. These related in the case of Decisions Nos 16 to 18/57 to the commercial rules of the aforementioned coal-

Moreover, general decisions are quasi-legislative measures which issue from a public authority and have a legislative effect erga omnes. In the present case the High Authority has simply authorized joint-selling agreements (Decisions Nos 16 to 18/57) and joint-buying agreements (Decision No 19/57) on the basis of Article 65(2) and by way of exception to the basis of Article 65(2) and by way of exception to the basic prohibition contained in Article 65(1). The conditions of sale were laid down by the coal-selling agencies of the Ruhr and the undertakings associated therein and the conditions for acceptance into the Oberrheinische Kohlenunion were laid down by the undertakings and coal wholesalers operating in southern Germany. The agreements laying down these conditions were simply approved by the High Authority and have accordingly not lost their character of acts of private law. As a result they are not to be regarded as quasi-legislative measures adopted by a public authority in the exercise of its powers to adopt generally binding provi­ sions.

In view of all this the contested decisions must be regarded as individual in character within the meaning of the ECSC Treaty.

NOLD v HIGH AUTHORITY

D — The individual submissions

In order to give a right for an undertaking to institute proceedings against such decisions it is sufficient that the decisions are individual in character and affect the

applicant undertaking. In the present case the contested decisions affect the appli­ cant since they relate to wholesalers and their application directly affects the posi­ tion of the applicant.

E — Submission of infringement of an essential procedural re­ quirement

First it must be considered whether the last-mentioned submission is well founded, since in this event consideration of the remaining grounds is unnecessary.

The applicant first made the submission of infringement of an essential procedural requirement because of insufficient reasons for the contested decisions in its pleading of 11 November 1957.

Article 22 of the Statute of the Court of Justice of the ECSC and Article 29(3) of the Rules of Procedure provide that the application shall contain a brief statement of the grounds on which it is based. These provisions accordingly mean that grounds which are not mentioned in the application are inadmissible.

The Court likewise rejects the applicant's argument that the general complaint of discrimination, on which the application rests, includes the submission of infringe­ ment of an essential procedural requirement. They have nothing in common and cannot be compared.

However, the obligation under Article 15 of the ECSC Treaty on the High

From this it appears that the reasons for Decisions Nos 16/57, 17/57 and 18/57 neither on their own nor by reference to the 1956 decisions contain a sufficient and proper statement of the factual and legal considerations on which the contested decisions are based. They thus do not permit review by the Court, in particular as to whether the High Authority has had full regard to Article 65(2).

The same observations apply to Decision No 19/57 which in the result merely im­ plements Decisions Nos 16/57, 17/57 and 18/57, in so far as it enables joint buying

NOLD v HIGH AUTHORITY

of fuel through the Oberrheinische Kohlenunion only by those coal wholesalers operating in southern Germany who are allowed to obtain direct supply from the joint selling agencies.

Decisions Nos 16/57, 17/57, 18/57 and 19/57 accordingly infringe Article 15 of the ECSC Treaty since insufficient reasons are equivalent to absence of reasons. The decisions must accordingly be annulled in so far as they make the recognition of first-hand wholesalers dependent on their achieving certain minimum tonnages.

Costs

1. Declares the application admissible;

2. Annuls Article 2(1), (2) and (3) of Decisions Nos 16/57, 17/57 and 18/57 of the High Authority of 26 July 1957;

3. Annuls Decision No 19/57 of the High Authority of 26 July 1957 in so far as it restricts the admission of wholesalers to the Oberrheinische

Kohlenunion to those wholesalers operating in southern Germany who fulfil the conditions for obtaining supplies direct under Deci­ sions Nos 16/57, 17/57 and 18/57;

OPINION OF MR ROEMER — CASE 18/57

4. Orders the defendant to pay the costs of the action including the costs of the application for an interim measure.

Summary Page

A — Facts ... ... ... ... ... ... ... 55

I — Particulars of the action ... ... ... ... ... 55

II — Applicant's status and its representation in the action ... ... 55 III — The history and content of the contested decisions ... ... 56 IV — Conclusions of parties ... ... ... ... ... 58

V — General view of the submissions and arguments of the parties ... 58

B — Legal discussions ... ... ... ... ... ... 59