C-3/58
ECLI:EU:C:1960:16
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ORDER OF 11.4.1960 —JOINED CASES 3 TO 18, 25 AND 26/58
It was considered that rate 6 B 33 is a com which, according to the applicants, is in the petitive rate in relation to the Mittelland nature of a tax. kanal and, of course, this decision is not dis puted by the applicants who benefit there Articles 4 and 70 of the Treaty speak of from. 'transport rates'. It is certain that the expres sion 'rate' is normally used in relation to transport by rail or by road. However, it But the High Authority has ordered that seems to me to be certain that the provi Article 71 (b) of the scale of dues for navi sions of the Treaty on this subject are di gation on the canal be abolished as being a rected at all means of public transport, that protective rate of a discriminatory kind, not is to say all those performed by an under qualifying for authorization under the taking acting in a commercial capacity or by fourth paragraph of Article 70. Article 71 (b) a public service. Navigation dues payable provides for a reduction in favour of east- bound traffic from Minden destined for iron for use of a canal are elements in the price mines and iron and steelworks. There can of transport and, as a result, of the produc tion cost of the goods carried. A compari be no doubt about the special and discri sion with the rate of a competing means of minatory character of this rate. transport (in this case the railways) would not fairly represent the facts if the dues were The only question which calls for our atten not taken into account. To my mind the tion is whether the High Authority has the fact that the toll is fixed by the High Au power under Article 70 to take a decision on thority in the form of a due is of little im a navigation due, that is to say on a toll, the portance. The due must be regarded as the amount of which is set by the State and price of a service, and not as a tax.
I am of the opinion that:
Case 19/58 brought by the Government of the Federal Republic should be dismissed, and that the costs should be borne by the applicant;
Applications 3 to 18/58, 25 and 26/58 should be dismissed, and that the ap plicants should bear their own costs;
And that the cost incurred by the interveners should be borne by them.
ORDER OF THE PRESIDENT OF THE COURT of 11 APRIL 1960 1
In Cases
3/58 — BARBARA ERZBERGBAU AG, 4/58 — GEWERKSCHAFT Louise, 5/58 — HERZ-LAHN-ERZBERGBAUAG, AG, 6/58 — MANNESMANN AG, 7/58 — ERZBERGBAU SIEGERLAND AG,
1 — Language of the Case: German.
BARBARA ERZBERGBAU v HIGH AUTHORITY
8/58 — ERZBERGBAU STAUFENSTOLLN GMBH, intervener: Land of BADEN-WÜRTTEMBERG, 9/58 — HESSISCHE BERG-und Huttenwerke AG, 10/58 — STAHLWERKE SÜDWESTFALEN AG, 11/58 — HÜTTENWERKE SIEGERLAND AG, 12/58 — FRIEDRICHSHÜTTE AG, 13/58 — EISERFELDERHÜTTE GMBH, 14/58 — NIEDERDREISBACHERHÜTTE GMBH, 15/58 — GEWERKSCHAFT GRÜNEBACHER HÜTTE, 16/58 — BIRLENBACHER HÜTTE SCHLEIFENBAUM & Co. KG, 18/58 — ILSEDER HÜTTE AG, 25/58 — HÜTTENWERK SALZGITTER AG, 26/58 — LUITPOLDHÜTTE AG,
all represented by their Boards of Directors or by their managers, assisted by Hein rich Lietzmann, Barrister-at-Law, Essen, in Cases 3 to 16/58, 25 and 26/58, and by Ludwig Raiser, Professor of Law at the University of Tubingen in Case 18/58, with an address for service in Luxembourg at the office of A. Woopen, 2 rue du Fort-Élizabeth, applicants,
Land of BADE-WÜRTTEMBERG represented by the acting Minister-President and the Minister for Economic Affairs, assisted by Joseph H. Kaiser, Professor of Law at the University of Freiburg, intervener,
v
High Authority of the European Coal and Steel Community , represented by its Legal adviser, W. Much, acting as Agent, with an address for service in Lux embourg at its seat, 2 place de Metz,
defendant,
The President of the Court of Justice of the European Communities
makes the following
ORDER
Issues of fact
By an application lodged at the Registry on 'Order the suspension of the decisions or 1 April 1960 the applicants in Cases 3 to recommendations contained in the letter 16/58, 25 and 26/58 claim that the Court sent by the High Authority on 12 February should: 1958 to the Government of the Federal
ORDER OF 11.4.1960 —JOINED CASES 3 TO 18, 25 AND 26/58
Republic of Germany concerning special on the substance, it is to be expected that rates charged by the German Federal Rail the decision of the Court on these appli ways for the carriage of mineral fuels, des cations will be forthcoming fairly soon. tined for the iron and steel industry and for Therefore it seems inappropriate that the the carriage of ores (published in the OJ of Federal Government or the Federal the ECSC, No 8, of 3 March 1958, p. 105/58 Railways should introduce a temporary et seq. and p. 122/58 et seq.) until such time solution prior to that judgment by their as final judgment is delivered in this case decision to increase the rates from 15 and in so far as the applicants have contest April 1960, since in view of the expected ed the aforementioned decisions or recom judgment it is not possible to say wheth mendations of the High Authority.' er that temporary solution will become permanent. By an application lodged at the Registry on 1 April 1960, the applicant in Case 18/58 (b) Until such time as the rates intro claims that the Court should: duced on 15 April 1960 are abolished, consumers of coal and of ore will have to 'Order a stay of execution of the decision of bear considerably higher transport costs the High Authority of 9 February 1958 in so than hitherto. The extra charges will far as the latter concerns, under Nos II and cause grave and irreparable loss to the III, C 2 and 3, rate 71 (b) (now 65) of the applicants because they have no legal general scale of dues for navigation on the right to require repayment by the Federal canals of West Germany until such time as Railways or the inland waterway author final judgment is given in case 18/58.' ities of sums paid in excess.
The applicants claim that their request is (c) The loss occasioned by the rise in admissible. rates will be particularly grave and irre parable for those applicants which pro They argue that since they have, by way of duce ores. Applications 3 to 16/58, 18, 25 and 26/58, brought before the Court applications for The consumers have informed these ap the annulment of certain decisions con plicants that they will cease buying ore tained in the abovementioned letters, they with effect from 15 April 1960 if the in fulfil the conditions as to admissibility laid creases in the rates for ore fixed by the down by the second paragraph of Article 39 decisions of the High Authority of 12 of the Treaty establishing the ECSC and by February 1958 are applied as from 15 Article 83 (1) of the Rules of Procedure of April 1960. the Court.
The applicants also allege that a stay of exe The applicants have produced copies of some of these letters so as to substantiate cution is urgent and necessary by reason of the following facts: their statements, and they offer to sup ply proof of their statements of fact. 1. The Federal Government has informed the applicants that it will comply with The application lodged on behalf of the ap the letters from the High Authority to plicants in Cases 11 and 12/58 at the Regis the Federal Government dated 12 Feb try on 13 March 1960 by Wolfgang Küster, ruary 1958 and that it will, with effect advocate at Düsseldorf, is based in sub from 15 April 1960, abolish the rates stance on the same grounds. mentioned therein and replace them by new rates. In addition, this application states that The relevant letter from the Federal should the Court order a stay of execution before 15 April 1960 the Federal Govern Minister of Transport dated 22 March 1960 is on the file. ment would be willing to delay applying its provisions which are due to come into force 2. (a) In the present state of the procedure on 15 April.
BARBARA ERZBERGBAU v HIGH AUTHORITY
The grounds put forward by the applicant in High Authority and the appropriate author Case 18/58 are substantially the same as the ities of the Federal Republic are under way arguments of the other applicants. concerning the possibility of granting new protective rates in favour of those undertak In its statement of 6 April 1960 the defend ings. ant states its position on the request for a stay of execution and it puts forward in par The High Authority also points out that ticular the following arguments: with the exception of the undertakings Il seder Hütte/Peine and Huttenwerke Salz At the present stage of the procedure, to gitter AG, the contested decisions give all suspend the application of the contested de the applicants the benefit of transitional cision would no longer be justified. periods of from four to eight years and that therefore at the present moment all that is It is impossible to agree with the applicants' involved is the making of partial increases, opinion according to which execution of the and these could evidently be annulled at decision prior to delivery of judgment might cause them irreparable loss. once if the Court gave judgment in favour of the applicants. In so far as they apply to so-called Vorharz gruben works, the special ore rates 7 B 3 and The High Authority contends that the re- 7 B 35 will not be subject to any change after quest for a stay of execution lodged by the 15 April 1960. Negotiations between the applicants should be rejected.
Grounds
During the course of the present procedure it is not necessary to decide whether and in what circumstances an intervener may claim a stay of execution, and it is sufficient to note that in judging whether the requests in question are well- founded it is not necessary to take into account the request of the Land of Baden- Württemberg to intervene in Case 8/58.
The requests for a stay of execution have been lodged less than six weeks before 10 May 1960, the date on which the judgment on the substance is to be published.
The applicants rely on the fact that the Federal Government has now resolved to execute the decisions of the High Authority of 9 February 1958, as it has long been required to do, as appears from the judgment of the Court of Justice of 8 March 1960 in Case 3/59.
From the time when the abovementioned decisions were adopted the applicants could have expected them to be executed and as from that time they could have lodged a request for a stay of execution which might have been justified.
In principle, it is for an applicant to decide whether it is appropriate to lodge a re- quest for a stay of execution, and to decide at what stage of the procedure to lodge it.
However, there are obvious objections to granting such a request when it is lodged after the written procedure has come to an end and after the oral procedure on the
ORDER OF 11.4.1960 —JOINED CASES 3 TO 18, 25 AND 26/58
substance, at a time when the Court has already commenced its deliberations on the judgment on the substance.
Moreover, as the defendant has also observed, it is to be noted that the execution of the decisions of 9 February 1958 will not immediately provoke disadvantageous consequences for some undertakings and will result in only partial increases in rates for most of the other undertakings.
It is true that that constitutes a disadvantage for the undertakings affected by those measures, but there would not appear to be any grounds for the argument put forward by the applicants that these alterations in rates could not be with drawn at a later stage.
The foregoing considerations require that the request be rejected, and it is not ne cessary to order the measures of inquiry proposed by the applicants.
The defendant has not put forward any conclusions concerning costs, and it is not therefore appropriate to order the applicants to bear the costs.
On those grounds,
Having regard to Article 39 of the Treaty establishing the ECSC, Article 33 of the Statute of the Court of Justice of the ECSC and Articles 83, 84,85 and 86 of the Rules of Procedure of the Court,
The President of the Court of Justice
declares and orders:
1. The applications are dismissed;
2. The applicants and the defendant must each bear their own costs.
Luxembourg, 11 April 1960.
H. J. Eversen A. M. Donner
Acting Registrar President