C-24/58

JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58

of which they form part, considered as a ers this to be necessary in order to avoid whole, are lawful. any serious economic disturbance (Cf. Judgment of the Court in Joined Cases 6. As far as the duration of the period, 27 to 29/58, Summary No 5). which the High Authority has to allow for the modification of special internal 7. Under Article 35 of the Treaty an action rates and conditions contravening the against the High Authority for failure to Treaty, is concerned, the principle set act can only be brought if the matter has out in the second paragraph of Article 1 previously been raised with it. Such an (5) of the Convention on the Transition­ action can only be directed against the al Provisions does not apply to the sev­ refusal of the High Authority to take the enth paragraph of Article 10 of the Con­ decision which it was called upon to vention. The High Authority is therefore adopt (Cf. Judgment of the Court in not only entitled but forced to grant pe­ Case 17/57, Summary No 1; Judgment riods of time which exceed the expira­ of the Court in Cases 7/54 and 9/54, Rec. tion of the transitional period if it consid­ 1955/1956, Vol. II, p. 89-90)

In Joined Cases 24/58 and 34/58

1 . Chambre Syndicale de la Siderurgie de l' EST de la France, 2. Chambre Syndicale de la Sidérurgie de Moselle, 3. Société Anonyme Lorraine Escaut, 4. Société Anonyme Forges et Aciéries de Nord et Lorraine, 5. Société Anonyme Union Sidérurgique Lorraine (Sidelor), 6. Société Anonyme Société Lorraine de Laminage Continu (Sollac), 7. Société Anonyme Union de Consommateurs de Produits MÉTALLUR­ GIQUES & INDUSTRIELS (UCPMI), 8. Société de Wendel & CIE., SA,

represented by its Legal Adviser, Raymond Baeyens, acting as Agent, and assisted by Georges van Hecke, Professor at the University of Louvain, Advocate at the Cour d'Appel, Brussels,

CHAMBRE SYNDICALE DE LA SIDÉRURGIE v HIGH AUTHORITY

Application for the annulment of the decision of the High Authority of 9 February 1958, notified by letter of 12 February 1958 to the Federal German Government relating to rates and conditions applicable to the carriage by rail of mineral fuels for the iron and steel industry and published in the Journal Officiel of the ECSC of 3 March 1958,

and 34/58 brought by the same applicants as those in Case 24/58,

applicants,

represented and assisted as above,

THE COURT

composed of A. M. Donner, President, L. Delvaux, President of Chamber, R. Rossi, President of Chamber (Rapporteur), O. Riese and Ch. L. Hammes, Judges,

Advocate-General: K. Roemer

Registrar: A. Van Houtte

gives the following

JUDGMENT

consequently annul the said decision: The facts of these joined cases may be sum­ marized as follows: 1. On the ground that it wrongly states that the application of some or all of The coal basins of the Ruhr and Aix-la- Tariffs AT 6 B 30 (scale of rates and Chapelle supply with mineral fuels all the conditions II) and AT 6 B 33 is justi­ German iron and steel factories as well as fied on grounds of competition; the French iron and steel undertakings of Lorraine, which include inter alia the six 2. In particular it nullifies the provisions applicant companies. of the first and second paragraphs of Article 70 of the Treaty by keeping in As far as consignments of mineral fuels to force some of the German rates and German iron and steel factories are con­ conditions applicable to the carriage cerned, the applicable rates and conditions by rail of mineral fuels, even though on the German Federal Railways are almost these rates and conditions viewed as all calculated on the basis of rates and con­ a whole discriminate against the ap­ ditions which under the terminology in use plicants, who are French nationals, in Germany are called 'special tariffs', because they are based on a criterion namely Tariffs AT 6 B1 and AT 6 B 33. Ta­ of nationality which should have riff AT 6 B 1 is regarded as a special tariff been abolished at the very latest when compared with the generally applicable ta­ the common market in coal was est­ riff called Class FK. Since, however, this ta­ ablished; riff has no practical significance, Tariff AT 6 B 1 is defined by the German Govern­ 3. While acknowledging that Tariffs ment as also being a 'general' tariff. AT 6 B 30 (scale of rates and condi­ tions I), AT 6 B 31 and AT 6 B 33 dis­ Tariffs AT 6 B 30 to AT 6 B 33 are regarded criminate unlawfully, in that these ta­ as being special tariffs compared with Tariff riffs nullify the provisions of the sec­ AT 6 B 1 mentioned above; they form the ond paragraph of Article 2 and of Ar­ subject-matter of this case. ticle 4 (b) of the Treaty, the High Au­ thority, by granting extensions of As far as the consignments of mineral fuels time, unlawfully authorized their ret­ to the French iron and steel undertakings of ention after the expiration of the Lorraine and inter alia to the applicants are transitional period, as a result of mis­ concerned, the applicable rates and condi­ applying the seventh paragraph of Ar­ tions for the carriage of goods by rail is the ticle 10 of the Convention and disre­ through ECSC Tariff No 1301 which in­ garding Article 1 (5) thereof; cludes the application on the German sector of 'the international ECSC tariff, Scale 102'. and order the High Authority of the Euro­ The latter tariff is calculated on the basis of pean Coal and Steel Community, 2 place de the internal German Tariff AT 6 B 1. Metz, Luxembourg, to bear the entire costs of the proceedings.' As soon as the High Authority took up its duties it decided, pursuant to Article 10 of 2. The defendant contends that the Court the Convention on the Transitional Provi­ should: sions, to examine the internal rates and

conditions applied by each Member State (II), AT 6 B 32 and AT 6 B 33 (I) comply with a view to determining whether they with the principles of the Treaty; with were compatible or not with the principles reference to the last tariff, however, ac laid down in the Treaty. count must be taken of the abolition of Article 71 (b) of the scale of inland wa To this end it forthwith convened the Com terway charges on the Mittellandkanal mittee of Experts provided for by the first by the High Authority as from 1 Jan paragraph of Article 10 of the Convention uary 1959; and entrusted it with the task of making the preparatory classification necessary for the (b) Decided on the gradual modification of purpose of determining which rates and Tariffs AT 6 B 30 (I) and AT 6 B 31; conditions were to be examined in the light of the provisions of the fourth paragraph of (c) 'Reminded' the Government of the

tion maintained in particular that this series III — Submissions and arguments of special rates and conditions in fact of the parties formed a complete tariff offering reduced preferential rates to all German iron and The submissions and arguments of the steel undertakings located far from coal parties may be summarized as follows: mines and for this reason amounted to dis crimination based on the criterion of na Admissibility tionality. It maintained that it was advisable to examine them in the light of the first and The defendant takes the view that when the second paragraphs of Article 10 of the Con applicants attack a complete tariff allegedly vention and of the first and second para discriminating against French iron and graphs of Article 70 of the Treaty (discri steel undertakings (second complaint) and minatory internal rates and conditions) and when they take exception to specific rates not with reference to the fourth paragraph and conditions which affect a limited num of Article 70 of the Treaty (special internal ber of German undertakings (first and third rates and conditions). complaints) their legal interests are not the same because, in the case of those rates and The Commission however expressed the conditions it is in the interest of all the un opinion that, before deciding whether the dertakings of the Community, and not tariffs in question, viewed as a whole, were merely of the applicants, to see the special discriminatory it was advisable first of all rates and conditions which are discrimina to classify them, taking into account the tory support measures brought to an end as particular characteristics of each of them. quickly as possible. Viewed in this way the disputed decision, even though it is an 'in On the basis of this classification, recorded dividual' decision, does not concern the in a memorandum of 8 March 1954 on applicants. which the French experts noted down their reservations, the High Authority at its The applicants, however, call attention to meeting on 9 February 1958 examined the fact that the defendant's argument ap separately each of these tariffs and: pears in itself to be contradictory.

JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58

complaint exists it seems to them to be rele­ waterways in the case of consignments to vant to demonstrate what the first com­ the Georgsmarienhütte factory. plaint endeavours to prove, namely the non-competitive nature of all authorized (b) As far as traffic to the Osnabrück facto­ rates and conditions. It appears to the appli­ ry is concerned Tariff AT 6 B 30 (II)-after cants inconceivable that, whereas they can taking into account the fact that it was in­ establish an interest considered adequate creased on 1 October 1959—is not correctly for the purpose of criticizing the retention of aligned on the charges for carrying coal by a complete system which is discriminatory, inland waterway. However the expert goes they cannot establish a similar interest for on to say that this finding has ceased to the purpose of criticizing the retention of have very much significance since the traf­ the rates and conditions which are the con­ fic in question is relatively unimportant and stituent elements thereof. still decreasing.

CHAMBRE SYNDICALE DE LA SIDÉRURGIE v HIGH AUTHORITY

AT 6 B 30 (II). In addition they re-empha of the territories referred to in the first para size what they consider to be the artificial graph of Article 79 of the Treaty'. The ap nature of tariff AT 6 B1 as an internal Tariff plicants argue that Tariff AT 6 B 1 is not in of general application thus repeating the ar fact applied generally to the carriage of coal, gument advanced and expanded in their most of which is not intended for iron and pleadings. steel undertakings, or to consignments of coal to German iron and steel factories lo

thority simply to the effect of the presump tion that Tariff AT 6 B 1 is to be considered The applicants, on the other hand, are of the as being in fact an 'internal tariff of general opinion that the fact that this was how the application'. Proceeding on the basis of this tariff was regarded amounts to discrimina presumption the High Authority in fact tion based upon nationality and nullifies the concluded that: provisions of Articles 3 (b), 4 (b) and the first, second and fourth paragraphs of (a) The disputed Tariffs AT 6 B 30 to AT 6 Article 70 of the Treaty. B 33 which secure reductions compared with a system regarded as normal 'in all The defendant states first of all that by ex probability belong to the category of special amining separately the various elements internal rates and conditions referred to in which make up the German tariff arrange the fourth paragraph of Article 70 of the ments, it complied in every way with the Treaty', and consequently, instead of being provisions of the Treaty.

JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58

The fact Convention on the Transitional Provisions. that the fuels for the German iron and steel factories are only carried at the rates of the (a) Infringement of the second paragraph tariff over short distances not exceeding 40 of Article 70 of the Treaty and of the fifth km from the Ruhr mines does not mean paragraph of Article 10 of the Convention. that this tariff is not an internal tariff of gen eral application to fuels, because, under the The applicants maintain that the retention system of charges adopted by the German of the above-mentioned discriminatory railways, it also applies to the carriage of tariffs prohibited by the second paragraph of fuels which are not intended for the iron Article 70 beyond the transitional period is

These two provisions alignment of that tariff on Tariff AT 6 B 1, only apply if the Committee of Experts ex and provides for Tariff AT 6 B 31 to be amines the measures intended to eliminate aligned within a margin of 8% on Tariff AT the discrimination contravening the second 6 B 1. paragraph of Article 70, whereas in these cases the High Authority thought it had to As Tariff AT 6 B 1 is thus an 'internal tariff examine the tariffs in question as 'special of general application', the fact that it was internal rates and conditions' under the used as the basis of the calculation of the fourth paragraph of Article 70. ECSC through international tariff, which applies to the applicants, cannot be regarded (b) Infringement of the fourth paragraph of

held to be lawful. They explain that this par The applicants state that, although the High agraph contains a provision which, because Authority acknowledges that special inter it derogates from the principles of the Trea nal rates and conditions AT 6 B 30 (I) and ty, falls within the fifth paragraph of Article AT 6 B 31 and also Article 71 (b) of the scale 1 of the Convention which reads 'Save of inland waterway charges on the Mittel where this Convention expressly provides landkanal are discriminatory within the otherwise, these derogations and sup

plementary provisions shall cease to apply, these provisions. It was in fact impossible, and measures taken to implement them because of the large amount of preparatory shall cease to have effect, at the end of the work, to anticipate at the time the Treaty transitional period'. was drawn up when the High Authority would in fact have been in a position to no Now, since the wording of the seventh para tify the governments of the modifications graph of Article 10 of the Convention does to be made in the rates and conditions re not expressly state that it is to apply after ferred to in the seventh paragraph of Article the expiration of the transitional period, the 10 of the Convention; on the other hand conclusion must be drawn that the seventh there was no way of anticipating at that paragraph of Article 10 of the Convention time what period would have been neces does not derogate from the general principle sary to ensure that any economic distur laid down by the fifth paragraph of Article bance was definitely avoided. 1 of the Convention.

Second part: Case 34/58 sions of time for the abolition or modifica tion of the three tariffs in question can be I — Conclusions of the parties assimilated to a 'temporary or conditional authorization' which expires at the same 1. The applicants in Case 34/58 claim that date as these time-limits. Since the appli the Court should: cants concede that the High Authority could, in application of the fourth paragraph 'admit their application for the annul of Article 70 of the Treaty, have agreed to ment of the decision of refusal taken by a 'temporary or conditional extension' in re the High Authority on 7 June 1958; spect of similar support tariffs introduced after it was set up, particularly having re consequently annul the said decision; gard to the need to avoid disturbances in the economy of the Member State con declare that this application is brought cerned, within the meaning of the second by the applicants without prejudice to paragraph of Article 2 of the Treaty, it must the application now pending before the also be admitted that the High Authority Court in which they ask for the annul could also grant a similar extension in the ment of the decisions of the High Au case of support tariffs in force at the date on thority notified in its letter of 12 Febru which it was set up, which moreover is what ary 1958 to the Government of the Fed it in fact did on 9 February 1958 before the eral Republic of Germany.' expiration of the transitional period.

JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58

II — Facts III — Submissions and arguments of the parties

The main facts of this case may be The submissions and arguments of the summarized as follows: parties may be summarized as follows:

By letter of 26 March 1958 the applicants Admissibility drew the attention of the High Authority to the fact that: The defendant, after calling attention to the fact that the complaint of failure to act has already been brought before the Court, on the one hand, an examination of special since it has been formulated in the second Tariffs AT 6 B 30 to AT 6 B 33 discloses that complaint of Application 24/58, submits tariff arrangements exist, which viewed as a that this application is inadmissible. In its whole produce discrimination based on the view the letter of 7 June 1958, which is the country of origin or the destination of the subject-matter of the application, is not a products; decision and does not disclose a new atti­ tude compared with the decision of 9 on the other hand, the High Authority did February 1958. not adopt appropriate measures to bring the whole of this discriminatory system to an The applicants do not dispute this but take end but merely imposed in its decision of 9 note of the fact that between the two dates

February 1958 a partial prohibition on cer­ mentioned above the High Authority did tain tariffs and simply reminded the Federal did not change its attitude to the iron and German Government that 'it was in its in­ steel industry in Lorraine. This conduct terest to introduce a tariff of general appli­ therefore provides the most convincing cation' for the carriage of mineral fuels to proof of a failure to act by the High the iron and steel industry. Authority.

The High Authority replied by letter of 7 The defendant points out that, since the tar­ June 1958 in which it pointed out that by its iffs in question have been defined by the decision of 9 February 1958 it had disconti­ German Federal Government as 'a tariff nued within the time-limits laid down by fixed to meet competition' or 'a support ta­ the seventh paragraph of Article 10 of the riff or as 'a support tariff fixed to meet Convention those tariffs numbered AT 6 B competition', it was forced to find out first 30 to AT 6 B 33 which it regarded as being of all whether the tariffs defined in this way incompatible with the Treaty with the re­ should be so defined. Thus, so far from sult that the tariffs which were authorized avoiding the application of the first para­ to be retained cannot be held to be discri­ graph of Article 10 of the Convention, it minatory. This letter is the subject-matter asked the Committee of Experts provided of Application 34/58 lodged on 2 July 1958. for in that paragraph to deal with the matter

CHAMBRE SYNDICALE DE LA SIDÉRURGIE v HIGH AUTHORITY

and took account of the information sup­ The defendant replies that, after it had abol­ plied by the said Committee. ished the special tariffs which were found to be discriminatory, it could not go further The applicants nevertheless challenge the and require the German Government to merits of this procedure. They maintain deal with the difficult situation in certain

Since the substance of this complaint is ex­ on the substance of the case fully endorses actly the same on this point as that of the the argumentation developed by the appli­ second complaint in Case 24/58 the argu­ cants in the main action and produces doc­ ments developed by the applicants and the umentary evidence in order to prove that defendant are identical in both cases. their arguments are well founded.

In the second place the applicants submit V — Procedure that, since the whole of the disputed rates and conditions are discriminatory, the High The procedure followed the normal course. Authority should have invited the Federal German Government either to introduce a Upon hearing the report of the Judge-Rap­ general tariff for the carriage by complete porteur and the views of the Advocate- trainloads of fuels for the iron and steel in­ General the Second Chamber on 26 June dustry, or a special tariff for the export of 1959 ordered an expert's report to be ob­ fuels to the iron and steel factories of the tained on the facts upon which the first Community, or again to work out some complaint in Case 24/58 is based; since the other way of meeting that government's re­ parties were agreed upon the person to be quirements, provided only that the solution appointed as the expert by the Chamber, it adopted should ensure observance of the entrusted Mr Joseph Haenni, Directeur de principle of non-discrimination. l'Office Central des Transports Internation­ aux par Chemin de Fer à Berne (Director of The fact that the High Authority merely the Central Office for International Railway made some simple suggestions in this con­ Transport, Berne) with the task of preparing nexion is evidence of its failure to act. this report.

Admissibility The defendant submits that the first and third complaints of the application are inadmissible as the applicants have no legal interest in them. It is in the interests of all undertakings in the Community to bring to an end as expeditiously as possible special internal rates and conditions which are discrimin­ atory, but the applicants have not shown that their individual situation differs from that of the majority of iron and steel undertakings of the Community. The applicants and the German undertakings benefiting from the contested tariff rates are in competition with each other, since they carry on the same productive activity in the Common Market, sell the same products and obtain their supplies of mineral fuels from the same mines.

Consequently, the contested decision, which permits the retention of reduced ta­ riff rates which might affect this competition is of concern to the applicant un­ dertakings within the meaning of the second paragraph of Article 33 of the Treaty. Therefore the first and third complaints of the application are admissible. On the substance of the case

The submission that Tariffs AT 6 B 30 (II) and AT 6 B 33 (I) are illegal 1. The applicants maintain that Tariff AT 6 B 30 (II) is not justified by competition from another mode of transport. Tariff AT 6 B 33 (I) is not aligned on the com­ peting rates for the carriage by inland waterway of either coal or coke.

CHAMBRE SYNDICALE DE LA SIDÉRURGIE v HIGH AUTHORITY

On the basis of the findings of the expert's report which it adopts and accepts as its own, the Court finds that the inland waterways are in genuine competition with the railway for consignments to the Osnabrück factory and offer potential compe­ tition for consignments to the Georgsmarienhütte factory. Since the two tariffs are thus justified in general on the ground of competition, it is sufficient in this case to ascertain whether the parity of the rates between the two competing modes of transport has been correctly calculated, that is to say, whether the rates upon which the disputed tariffs are based are correctly aligned on the competing inland waterway rates.

The possibility of supplying this factory from the Viktor-Ickern mines cannot jus­ tify retention of Tariff AT 6 B 30 (II) for consignments from the mines of West­ phalia and Königsborn, since, in the case of these consignments, it is not correctly aligned on the competing inland waterways rates.

The abovementioned findings apply afortiori to the carriage of coke, since the rail­ way rate has in this case to take account of the surcharge by which the inland wa­

JUDGMENT OF 15. 7. 1960 — JOINED CASES 24 AND 34/58

Therefore this tariff is a special internal rate and condition which complies with the principles of the Treaty and for this reason cannot be prohibited. Nevertheless, taking into account the surcharge of DM 0.80 to DM 1.00 per metric ton which has to be added to the inland waterways rate for coal, as has been men­ tioned above, so that this rate may be taken as the basis of calculating the railway rate for coke, the Court finds that Tariff AT 6 B 33 (I) is not correctly aligned on the inland waterways rate for coke, since it is lower. For this reason, although the scheduled charge in question is correctly aligned as far as the carriage of coal is concerned, part of it consists, on the other hand, of an aid or subsidy so far as the carriage of coke is concerned. Therefore in so far as Tariff AT 6 B 33 (I) is a special internal rate and condition applicable to the carriage of coke, it cannot be regarded as complying with the principles of the Treaty as laid down by the fourth paragraph of Article 70 to the extent to which it is not correctly aligned. 3. For all these reasons the first complaint of the application is well founded in so far as it is directed against that part of the contested decision which acknow­ ledges that (a) Tariff AT 6 B 30 (II) applied to the carriage of coal and coke coming from the mines of Königsborn to the Osnabrück factory and from the mines of Königsborn and Westphalia to the Georgsmarienhütte , and (b) Tariff AT 6 B 33 (I) applied to the carriage of coke comply with the principles of the Treaty.

The submission that the fifth paragraph ofArticle 10 of the Convention on the Trans­ itional Provisions and Article 3 (b), Article 4 (b) and (c) and the first and second par­ agraphs of Article 70 of the Treaty have been infringed The applicants submit in the first place that the High Authority was wrong to ac­ knowledge Special Tariffs AT 6 B 30 to AT 6 B 33 as being special internal rates

and conditions and therefore believed that it had to compare them with the sev­ enth paragraph of Article 10 of the Convention. Tariff AT 6 B 1, compared with which the disputed tariffs have been regarded as special internal rates and conditions, is never applied to the carriage of mineral fu­ els in bulk to the German iron and steel industry which is in a situation similar to that of the applicant undertakings. Therefore the tariffs at issue, far from being rates and conditions applicable to cer­ tain transport links in which the German iron and steel industry is interested, con­ stitute, as a whole, tariff arrangements which apply to the entire carriage of min­ eral fuels in bulk to that part of the German iron and steel industry which is in a similar situation to that of the applicant undertakings. The applicants also argue that the ECSC through international tariff applies to them and that, since it is calculated on the basis of Tariff AT 6 B (I), it includes rates which are higher than those of Special Tariffs AT 6 B 30 to AT 6 B 33. In such circumstances German iron and steel undertakings would enjoy the ben­ efit of tariff arrangements at reduced rates compared with those applicant under­ takings which are in a similar situation; in this way rates and conditions would be offered to users in a similar situation which were so different that they could not guarantee for the applicants equal access to sources of production. Consequently the High Authority, instead of considering in accordance with the seventh paragraph of Article 10 of the Convention whether Tariffs AT 6 B 30 to AT 6 B 33 comply with the principles of the Treaty should have found that the said tariffs as a whole establish, to the detriment of the applicants, discrimination based on a criterion of nationality. Therefore in so far as the contested decision keeps in force some of the rates and conditions of these tariff arrangements it infringes the fifth paragraph of Article 10 of the Convention and Articles 3 (b), 4 (b) and (c) and the first and second par­ agraphs of the Treaty. This argument is based on a false appraisal of the facts and fails to appreciate the limits imposed upon the powers which the High Authority can exercise in trans­ port matters.

In the cases of transport covered by special tariffs which were found to comply with the principles of the Treaty the application of Special Tariff AT 6 B 1 is ruled out either by the competition offered to the railways by the waterways or by the existence of special difficulties which do not originate in economics and to which the undertakings benefiting from these special tariffs are exposed; if this compe­ tition or these difficulties ceased to exist, Tariff AT 6 B 1 would apply to the users, who actually enjoy the benefit of reduced special tariffs. There is no doubt that Tariff AT 6 B 1 is an internal tariff of 'general application' within the meaning of Article 1 of the aforementioned Agreement of 21 March. The Government of the Federal Republic of Germany used this particular tariff as the basis for the calculation of the ECSC international tariff applicable to the carriage of mineral fuels in bulk to the applicant undertakings; this circumstance has never been challenged in the manner prescribed by Article 16 of the said agree­ ment.

Even though before 1958 Tariffs AT 6 B 30 to AT 6 B 33 as a whole covered a large part of the long-distance internal carriage of coal in the Federal Republic the position has, however, changed since the entry into force of the decision of the High Authority of 9 February 1958 which abolished a large number of these spe­ cial tariffs; the appeal of the German Government against this decision and the applications for annulment brought by a large number of German undertakings were dismissed by the judgments of the Court of 10 May 1960 (Cases 19/58,3 to 18, 25 and 26/58). Consequently, for all these reasons Tariff AT 6 B 1 is both in form and in substance an internal tariff of general application. This finding is also confirmed by the fact that Tariff AT 6 B 1 has also been applied to transport to the Saar ever since it became part of the territory of the Federal Rep­ ublic.

define the disputed tariffs when they are compared with Tariff AT 6 B 1 as 'special internal rates and conditions'; the disputed tariffs do not include any reduction of rates which would be discriminatory compared with the rates of the through in­ ternational ECSC tariff which applies to the applicants, since this latter tariff is cor­ rectly calculated on the basis of an internal tariff which is in fact of general ap­ plication. It is true that the effects of the intervention of the High Authority, taking into ac­ count what has been stated above in connexion with the first complaint, do not correspond to the wishes, which are moreover understandable, of the applicants but it must be noted that these effects are caused, on the one hand, by the fact that the Treaty establishing a Community restricted to coal and steel only covered transport indirectly and to a limited extent and, on the other hand, by the fact that the network of waterways competing with the railways was in the past developed much more within the various countries than for traffic with countries abroad.

For these reasons this complaint is unfounded.

The submission that the time allowedfor the modification of Tariffs AT 6 B 30(1) and AT6 B 31 and Article 71 (b) of the scale of inland waterway charges on the Mittel­ landkanal are illegal 1. The applicants submit in the first place that when the High Authority granted time-limits exceeding the transitional period for the modification of Tariffs AT 6 B 30 (I) and AT 6 B 31 and also of Article 71 (b) of the scale of inland waterway charges on the Mittellandkanal it infringed the second paragraph of Article 70 of the Treaty and the fifth paragraph of Article 10 of the Convention on the Trans­ itional Provisions under which measures to eliminate discriminatory practices contravening the aforementioned second paragraph of Article 70 must enter into force on the date of the establishment of the common market in coal at the latest.

Therefore the time allowed by the High Authority for the modification of the ta­ riffs at issue should not have exceeded the transitional period and should have ended at the expiration of that period. This argument must be rejected. The two prerogatives of the High Authority in this connexion must be distin­ guished. On the one hand, it is under a duty, for the purpose of permitting special internal rates and conditions to be modified, to allow such time as may be neces­ sary to avoid any serious economic disturbance and, on the other hand, it has the right to fix the duration of the time allowed. Although this duty must be carried out subject to a strict time-limit prescribed by the Treaty, the duration of the periods in question allowed cannot, on the other hand, be in general restricted to a fixed period such as the transitional period. In fact, since the special internal rates and conditions may even, for justifiable rea­ sons, be examined just before the expiration of the transitional period, the High Authority could not perform its duty to allow the time provided for by the seventh paragraph of Article 10 of the Convention if the periods of time granted were in no circumstances to exceed the expiration of the transitional period. There is no doubt that the seventh paragraph of Article 10 of the Convention, as far as the duration of the time which the High Authority has to allow for the mod­ ification of special internal rates and conditions contravening the Treaty is con­ cerned, is not subject to the rule laid down in the second part of the fifth paragraph of Article 1 of the Convention; therefore the High Authority is not only entitled but forced to grant periods of time which exceed the expiration of the transitional period, if it considers this to be necessary in order to avoid any serious economic disturbance.

It is appropriate to order that the applicants and the defendant each pay one half of the costs of the expert's report and that, as far as the remainder of the costs are concerned, each party bears its own costs.

Case 34/58

Admissibility The applicants maintain that, in order to remove the discrimination based on a criterion of nationality arising out of the disputed tariff arrangements as a whole, the High Authority was under a duty to recommend the Government of the Fed­ eral Republic of Germany either to fix a general tariff for the carriage of mineral fuels by trainloads or to adopt for the benefit of non-German iron and steel fac­ tories of the Community tariff arrangements for the carriage of mineral fuels si­ milar to those which apply to German iron and steel factories. The alleged duty of the High Authority to submit the first of these two recom­ mendations mentioned above to the Government of the Federal Republic of Ger­ many is not mentioned in the letter of 26 March 1958 in which the applicants raised with the High Authority the question of its failure to act. Under Article 35 of the Treaty proceedings against the High Authority for failure to act can only be brought if the matter has been raised previously with the High Authority and the grounds upon which such proceedings are based can only be the refusal of the High Authority to take the decision which it was called upon to adopt. Since the High Authority has not been formally required to take such a decision in accordance with the first paragraph of Article 35 of the Treaty, it cannot be said to have taken an implied decision of refusal according to the third paragraph of the said article.

The refusal by the High Authority in its letter of 7 June 1958 to acknowledge that it is under such a duty contravenes the first and second paragraphs of Article 40 of the Treaty. Therefore this argument is not well founded. The High Authority only has power under Article 4 (b) and the first, second and third paragraphs of Article 70 of the Treaty to bring to an end tariff measures which entail discrimination based on a criterion of nationality or which do not comply with the principles of the Treaty. Except in the cases covered by this prohibition the fifth paragraph of Article 70 of the Treaty provides that all other transport measures fall within the jurisdiction of the Member State concerned, with the result that in this field the High Au­ thority can merely make suggestions. It is only possible to imagine the High Authority being under a duty to recom­ mend the adoption for the benefit of non-German iron and steel factories of the Community of tariff arrangements similar to those applying to German iron and steel factories, if the German and non-German iron and steel undertakings are in comparable situations. The applicants have neither submitted nor proved that they are in such a com­ parable situation, because they have a mode of transport competing with the rail­ ways or because they are exposed to special difficulties similar to those to which the German undertakings in question are laid open. As was found in Case 24/58, the disputed tariff arrangements, even if they are con­ sidered as a whole, do not include any discrimination based on a criterion of na­ tionality and therefore comply with the principles of the Treaty. In these circumstances the application to the applicants of the tariff arrangements applicable to German iron and steel factories would infringe Articles 4 (b) and 70 of the Treaty. The application is unfounded.

hereby:

I -Case 24/58

(a) Annuls the disputed decision to the extent to which it acknowledges that Tariff AT 6 B 33 (I), only in so far as it applies to the carriage of coke, and Tariff AT 6 B 30 (II), in so far as it applies to the carriage of coal and coke coming from the mines of Königsborn and Westphalia, comply with the principles of the Treaty.

(b) The other conclusions in the application are rejected as unfounded. The applicants and the defendant shall each bear one half of the costs of and incidental to the expert's report. So far as the remainder of the costs are concerned each party shall bear its own costs.

II -Case 34/58

(a) Dismisses the application as inadmissible in so far as it is directed against the refusal of the High Authority to recommend the Government of the Federal Republic of Germany to introduce a tariff of general application to the carriage of mineral fuels by trainloads. (b) Dismisses the application as unfounded is so far as it is directed against the implied decision of refusal of the High Authority to recommend the Government of the Federal Republic of Germany to adopt for the benefit of non-German iron and steel factories of the Community tariff arrangements for the carriage of mineral fuels similar to those applying to German iron and steel factories. The applicants are ordered to pay the costs of the proceedings. The costs of the intervention shall be borne by the intervener.

Summary A — Introduction 303

B — Are the applications admissible? 303 I -Case 24/58 303

(1) Scope of the conclusions 303 (2) Is a 'decision' of the High Authority challenged? .... 303 (3) The legal interest of the applicants 304 (4) Admissibility of the individual complaints 305 (5) Conclusion 305 II -Case 34/58 305

(1) Preliminary proceedings and period within which pro­ ceedings must be brought 306 (2) Is the legal objective of an action for failure to act differ­ ent from that of an application for annulment? 306 (a) The legal effects of a successful application for annul­ ment 306

(b) Discrimination on the ground of nationality not taken into account — The tariff situation of the Federal Railways after the decision of the High Authority . . 307 (c) Introduction for the benefit of the applicants of a tariff corresponding to the German special tariffs 307 (d) Introduction of a general tariff for complete trainloads 307 C — Are the applications well founded? 308 I — Application for annulment 308 (1) Examination of individual tariffs 308 (a) General observations on the concept of 'competitive tariffs' 309

(b) The individual competing tariffs 310 (i) Tariff 6 B 30 II 310 (ii) Tariff 6 B 33 314 (iii) Summary of the observations on Tariffs 6 B 30 II and 6 B 33 316