C-3/59

High Authority of the European Coal and Steel Community , represented by its Legal Adviser, Walter Much, acting as Agent, assisted by Professor Hans Peter Ipsen, with an address for service in Luxembourg at its seat, 2 place de Metz,

defendant,

Application for the annulment of the decision of the High Authority of 1 Decem­ ber 1958, notified to the applicant on 5 December 1958, reference No 35172,

THE COURT

composed of: A. M. Donner (Rapporteur), President, L. Delvaux and R. Rossi, Presidents of Chambers, 0. Riese and N. Catalano, Jufges,

Advocate-General: M. Lagrange Registrar: A. Van Houtte

In its two letters of 12 February 1958 the Since it takes the view that the Treaty does High Authority, pursuant to Article 70 of not require it to alter the rates and condi­ the Treaty and the seventh paragraph of Art­ tions in question and, therefore, that the icle 10 of the Convention, drew the atten­ High Authority has no power to require any tion of the Government of the Federal Rep­ such alteration, it bases its action against ublic of Germany to the rates and condi­ the decision of 1 December 1958 on the tions applied to the carriage by rail on the same submissions as those which it made in one hand of ores and on the other of mineral support of Application 19/58, challenging fuels for the iron and steel industry which the validity of the decisions of February the High Authority considered to be illegal 1958. special rates and conditions. In those letters the High Authority laid down periods with­ The defendant argues that the present case in which those rates and conditions were to cannot be concerned with the validity of the be altered or discontinued. The first such decisions of February 1958, but only with period expired on 1 July 1958. the question whether the applicant was re­ quired to observe them. The decision of 1 During the month of July the High Author­ December 1958 covers this latter question ity took note that no action had been taken alone; the present case is only concerned in respect of its two letters mentioned with the legality of that decision. above, wherupon it called upon the Federal Government to explain itself. The Federal According to the defendant, the mere exis­ Government replied that in its opinion it tence of the decisions of February 1958 was not necessary to act upon the decisions means — by virtue of the first paragraph of contained in the letters of the High Author­ Article 86 of the Treaty—that the applicant ity until such time as the court of Justice is required to implement them. had delivered judgment in the proceedings which the Federal Government had To this the applicant replies: brought against those decisions. (a) That the very point which the court, in The High Authority thereupon adopted its exercise of its unlimited jurisdiction, decision of 1 December 1958, setting a should examine is the question whether further time-limit; it recorded that the Fed­ the decisions of February 1958 imposed eral government had failed to fulfil an obli­ on the applicant a duty which it must gation under the Treaty, and set 31 January perform. In support of the proposition 1959 as the last date for fulfilling its obliga­ that a decision may still be contested in tion. proceedings brought against a later de­ cision, the applicant refers to the case- law of the court of Justice, which allows III — Submissions and arguments the objection of illegality to be raised of the parties against general decisions when mea­ sures implementing them are contested The submissions and arguments of the par­ (particularly the judgment in case 9/56, ties may be summarized as follows: Rec. volume IV, p. 26).

places the applicant under a duty to al application, which is based, inter alia, on the ter tariff provisions which have not second paragraph of Article 88. been authorized. This question is not dealt with in the decisions of February It considers that the requirement that it 1958. It would indeed have been impos must fulfil its obligations before 31 January sible for them to deal with it, because 1959, as required by the decision of 1 Dec the answer to the question can only be ember 1958, is contrary to the third para given by way of the procedure set out in graph of Article 88. Article 88.

cle 88. If that is not the position, pro diction. The defendant also stresses that the ceedings based on the second paragraph judgment in Case 9/56 has no bearing on of that article are inconceivable. the present case. (b) That Application 19/58—which is pri marily based on Article 33 of the Trea B ty—cannot be considered, since this is of itself a sufficient basis for an action, The applicant alleges that it also based its as an application based on the second application 19/58 on the second paragraph paragraph of Article 88 (prohibition of of Article 88 of the Treaty.

The third According to the applicant, the mere fact paragraph of Article 88 merely states that the first application has been made sus that the two penalties for which it pro pends the time-limits set in the decisions of vides may be imposed only after an ac 1958. tion, if any, has been rejected. The de cisions of February 1958 and of 1 De According to the applicant the text of the cember 1958 do not contain these pen Treaty is open to the interpretation (and alties and cannot be regarded as being perhaps even suggests) that any decision analogous thereto.

sion. The very fact that the said Article 88 spended by reason of the lodging of its first makes provision for particular measures

tacitly excludes any other measure. There rules of procedure. So far as Governments fore the very fact that the contested deci are concerned the treaty lays down several sion, which was taken under Article 88, distinct legal remedies. In this context, does not correspond to one of the measures apart from Article 88, the defendant men for which that article makes provision, tions Articles 33, 35, 37, 38 and 40. means that the decision is contrary to that

The defendant Where there is a difference of view between wonders whether the applicant's argument the high Authority and the Member States does not acknowledge by implication that on the legality of such decisions, their the decisions of February 1958. have bind implementation can only be required by ing force, quite apart from the question of means of a decision taken in application of their legality. the first paragraph of Article 88. Finally, the defendant rejects the appli According to the applicant, the authors of cant's argument that it would still be open the Treaty intended to lay down special pro to the latter to dispute the same questions of visions with a view to settling possible dif law in proceedings based on Article 88, ferences on the interpretation of the Treaty even if the Court of Justice had rejected between the High Authority and the Mem Application 19/58 in whole or in part.

ty. According to the applicant, it is the pres of 11 December 1958. Therefore the period ervation of this right which is involved in for instituting proceedings expired on 11 the present case. February. In these circumstances, it is un acceptable that the time-limit for imple The defendant denies the existence of an mentation should be set at no later than 31 absolute right to use the procedure under January. Article 88. Legal protection in the Commu nity is based on a system of types of action The applicant also stresses that the fixing of which differ from each other according to too short a period under the first paragraph the subject-matter, procedural conditions, of Article 88 reduces the benefit of the pe capacity to institute proceedings and the riod of two months laid down by the second

This argument must be rejected.

In fact, pursuant to the seventh paragraph of Article 10 of the Convention on the Transitional Provisions, the said contested passages of those decisions expressly set time-limits for the modification of a certain number of special rates and con­ ditions notified to the High Authority in accordance with that provision. It follows that the abovementioned decisions placed the applicant under a duty to modify the rates in question within the prescribed period.

2. Secondly, the applicant alleges that even supposing that the decisions of 12 February 1958 did place the Federal Government under an obligation, there has not yet been any failure to fulfil that obligation because the time-limit set for mod­ ifying the rates and conditions was suspended by the lodging of Application 19/58, which is based, inter alia, on Article 88 of the Treaty, and must therefore benefit from the suspensory effect provided for by the third paragraph of that article.

Ths argument cannot be accepted, quite apart from the question whether Appli­ cation 19/58 may or must be considered as an application under Article 88, which question the Court does not intend to examine at present.

The reality, contrary to the opinion of the applicant, is that the third paragraph of Article 88 merely states that the measures set out under (a) and (b) cannot be tak­ en while the action is sub judice.

It cannot be argued that the authors of the Treaty intended to give a suspensory

4. The applicant also alleges that there is no legal basis for the contested decision because the decisions of 12 February 1958 are not valid. The applicant is thus rais­ ing against that decision the submissions already directed against the decisions of 12 February 1958 in application 19/58, taking the view that Article 88 gives Mem­ ber States a special right of action, which is distinct from the right given by Article 33 and which entitles then to institute proceedings in which the Court has unli­ mited jurisdiction and which allows it to examine the legality of the basic deci­ sions.

This line of reasoning cannot be accepted.

It cannot be argued that the States have a right to contest, as a matter for the un­ limited jurisdiction of the Court, not only decisions adopted by the High Author­ ity pursuant to Article 88, but also decisions adopted by it in the exercise of the general powers conferred on it by the Treaty.

JUDGMENT OF 8. 3. 1960 — CASE 3/59

Article 33, which gives Member States and undertakings a right to bring an action for annulment, and not an action in which the Court has unlimited jurisdiction, does not admit of the interpretation put forward by the applicant. If a Member State, without having obtained the annulment of a decision of the High Authority, or a suspension of the time-limit for the execution of that decision, does not com­ ply with the same, it is thereby guilty, as appears from the first paragraph of Article 86, of a failure to fulfil its obligations, and the High Authority is required to record such failure pursuant to the first paragraph of Article 88.

In fact the object of the two actions is quite different. The object of the first is to establish the illegality of a decision taken outside the scope of Article 88, whereas the object of the second action can only be:

(a) To obtain the annulment of the recording of the failure to fulfil the obligation by adducing evidence to the effect that the Member State concerned has ful­ filled its obligations under the decision which it is accused of failing to ob­ serve. This precludes the possibility of challenging, at the same time, the le­ gality of such a decision;

GERMANY v HIGH AUTHORITY

(b) To obtain the annulment or the modification of measures consequent upon the recording of the failure to fulfil an obligation.

It is appropriate to note that if the applicant's interpretation were to be adopted, it would follow that Member States could ignore decisions taken against them by the High Authority and wait until proceedings under Article 88 were initiated against them, and then in their turn bring proceedings against the said decisions every time it appeared to them expedient to do so.

Moreover, while Article 88 does not permit disputes concerning previous deci­ sions, as is stated above, nevertheless Article 37 offers Member States the possib­ ility of disputing decisions in the special circumstances mentioned therein.

This submission is unfounded. It does not appear from the wording of Article 88 that the period set for fulfilling an obligation must be at least as long as the period

JUDGMENT OF 8. 3. 1960 — CASE 3/59

within which proceedings must be initiated. Such a requirement could not be in the interest of the Member States, for it clearly appears from the third paragraph of Article 88 that, even supposing that the High Authority were to take the mea­ sures set out at (a) and (b) of the said third paragraph prior to the expiry of the pe­ riod within which proceedings must be initiated, such action would be rendered nugatory by a subsequent action brought within the prescribed period.

Therefore the application against the decision of 1 December 1958 must be dis­ missed.

Costs

The applicant has failed in its submissions and must, therefore, bear the costs in their entirety.

Riese Catalano

A. Van Houtte A. M. Donner

Registrar President