C-16/59

JUDGMENT OF 12. 2. 1960 — JOINED CASES 16, 17 AND 18/59

In Joined Cases

1. GEITLING RUHRKOLHLEN-VERKAUFSGESELLSCHAFT MBH having its registered office in Essen (Case 16/59),

2. MAUSEGATT RUHRKOHLEN-VERKAUFSGESELLSCHAFT MBH having its re- gistered office in Essen (Case 17/59),

3. PRÄSIDENT RUHRKOHLEN-VERKAUFSGESELLSCHAFT MBH having its registered office in Essen (Case 18/59),

each represented by its manager,

(a) Decision No 17/59 of the High Authority dated 18 February 1959 on the ex­ tension of the authorizations for the sales organizations of the Ruhr basin pu­ blished in the Journal Officiel des Communautés Européennes, No 14 of 7 March 1959;

(b) the letter of 21 February 1959 from the President of the High Authority ad­ dressed to the management of the applicant selling agencies on the extension of the authorizations for the marketing organizations of the Ruhr basin,

THE COURT

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

GEITLING. MAUSEGATT, PRÄSIDENT v HIGH AUTHORITY

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

2. The authorization to the Ruhr coal sell­ The defendant contends that the Court ing agencies cannot be extended beyond should: 31 March 1961 (JO, p. 280, second co­ lumn, fourth paragraph; point 1 in letter Reject claims 1 to 7 made by the applicants of 21 February 1959); as inadmissible or as unfounded and order the applicants to bear the costs. 3. The High Authority will see to it that the decisions of the mining companies do After first reserving its position with regard not again lead in law or in fact to the to claim 8, the defendant, by letter dated 23 establishment of a uniform marketing June 1959, contended that the Court system based on similar organizations should: (JO, p. 280, first and second columns, sixth paragraph); 'Declare that claim 8 (annulment of Article 11 of Decision No 17/59) in Cases 16/59, 4. There can be no authorization given to 17/59 and 18/59 has lost its purpose and in any future agreement of the mining substance has been settled. companies on joint selling unless some large undertakings decide to market By letter dated 3 July 1959 the applicants their production independently (point 2 stated they had no objections to this con­ (a) in the letter of 21 February 1959); tention by the defendant.

JUDGMENT OF 12. 2. 1960 — JOINED CASES 16. 17 AND 18/59

By Decisions Nos 7/58, 8/58 and 9/58 of 18 By order dated 17 April 1959 the Court June 1958 the High Authority authorized jointed the three cases. the selling agencies, subject to certain con­ ditions, to conclude long-term delivery On 17 June 1959 the High Authority issued contracts. Articles 2 to 4 of Decision No Decision No 36/59 (JO of 8.7.1959) on the 17/59 maintain this arrangement in so far as partial revocation and supplemention of the duration of the agreements does not Decision No 17/59 with regard to the trad­ exceed ten years. ing rules of the Ruhr coal selling agencies. On the publication of this decision the par­ Decisions Nos 16/57, 17/57 and 18/57 had ties stated in supplemental applications that made direct deliveries by wholesale coal the application for annulment of Article 11 merchants through the Ruhr coal selling of Decision No 17/59 had lost its purpose; agencies subject to strict conditions. Arti­ further the applicants brought an action cles 5 to 11 of Decision No 17/59 amend the against Decision No 36/59 (Joined Cases trading rules so that the conditions for de­ 36/59, 37/59 and 38/59). livery by wholesale merchants are made substantially less strict. The applicants had, moreover, brought an application for the adoption of interim mea­ Articles 12 and 13 of decision No 17/59 au­ sures (Case 19/59 R) seeking postponement thorize the decision of the rules committee of the entry into force of Article 11 (appli­ dated 10 December 1958 on a partial cation of the quantitative criteria laid down amendment of the decision relating to com­ by the High Authority for authorizing panies' own consumption dated 13 Decem­ wholesale merchants to buy directly from ber 1955 and extend the validity of Decision the selling agencies) and Article 14 (2), sec­ No 8/56 to 31 March 1960. ond sentence (dispatch of officials of the

(a) Since the High Authority has extended the agreements by a year, it has already to (b) The contested decision is an individual this extent satisfied the applicants' claims decision since it directly concerns the appli­ who accordingly have in no way suffered cants, it has been notified to them and con­ damage. tains directions which are intended to apply solely to a particular and limited section of (b) Since only the operative part of a deci- the mining undertakings of the common market. sion is binding (Articles 14 and 15 of the Treaty) and not the statement of the grounds thereof, the latter cannot be the (c) The defendant wrongly denies the exis­ subject of an application for annulment. tence of damage and of legal interest on the part of the applicants. They certainly had an interest in obtaining an annulment since (c) By publishing the general principles on this was the only way in which a declara- the basis of which a future, comprehensive tion, which might possibly in future be an restructuring of the Ruhr coal marketing obstacles to the establishment of a market­ should take place, the High Authority has ing organization, could be prevented from created no rule applicable to a particular having legal force. case. According to the case-law of the Court (Joined Cases 1/57 and 14/57, Rec. 1957, 2. Claim 7 (objecting to article 14 (2) of De­ pp. 221 to 223) general principles cannot be cision No 17/59 providing for the carry­ the subject of an application for annulment. ing out of checks by officials of the High Authority). The applicants counter that the application is admissible on the basis of Articles 33 and The defendant considers the claim inadmis­ 80 of the Treaty. sible. It states that the applicants have no need at present to bring the matter before (a) The contested provisions are decisions the Court since the contested article con­ within the meaning of Articles 33 and 14 of tains no particulars of the intended checks. the Treaty. To carry out these checks further measures

Following the publication of Decision No Moreover the High Authority in various 36/59 which revoked the provisions of De­ ways has not had regard to the provisions of cision No 17/59 on trading rules the parties Article 65 of the Treaty. unanimously agreed that Claim 8 had lost its purpose. In answer the defendant says that the appli­ cants object solely to the fact that binding B — Substance legal effects could be attributed to the ob­ servations of the High Authority contained 1. Claims 1 to 6 (objecting to the statement in the statement of grounds of the contested of grounds in Decision No 17/59 and the decision. This was however never the in­ letter of 21 February 1959). tention of the High Authority. The declar­ ations contained in the statement of The applicants allege: grounds and in the letter of 21 February 1959 are simply general, non-binding direc­ (a) Lack of competence vested in the High tives for the applicant undertakings. Authority 2. Claim 7 (objecting to Article 14 (2) of (b) Infringement of essential procedural re­ Decision No 17/59 providing for checks quirements by officials of the High Authority).

(c) Infrigement of various provisions of the The applicants allege: Treaty. (a) Lack of competence vested in the High (a) The applicants take the view that the Authority. High Authority cannot of its own motion give or refuse authorization. It can do so (b) Misuse of the right to information by only where there is an application by the the High Authority. undertakings concerned. A decision which refuses authorization in future circum­ (c) Infringement of provisions of the Trea­ stances without regard to future trends does ty. not constitute an application of Article 65 of the Treaty but further legislation which the (a) The High Authority is competent to re- High Authority has power to enact only in quire information and to make inquiries

with regard to the actual conditions of joint tion, such a limited power would make it selling only where there is an application for impossible to judge existing marketing an authorization under Article 65 (2). agreements properly. It would be necessary for the High Authority every time within a (b) The wording of Articles 47 and 65 (3) of short period before the expiry of an agree­ the Treaty makes it clear that the High Au­ ment to rule on the applications of the thority may exercise the rights provided for undertakings which are parties to that therein only in carrying out certain clearly agreement. A proper application of the pro­ defined tasks. In the present case interven­ visions in accordance with the economic tion by the High Authority on the basis of circumstances justifying an authorization Article 65 and general inquiries are ruled would be impossible under these condi­ out since information can be required and tions. checks undertaken only in fulfilment of a particular task of the administration. (b) There can be no misuse of the right to information in carrying out the checking (c) Further the High Authority infringes provided for. The High Authority does not Article 4 (b) of the Treaty which prohibits wish to check what it already knows but to discrimination. The continued presence of procure reliable information on the condi­ officials to make checks would unjustifia­ tions of the Ruhr coal marketing to ensure bly place the applicants in a worse position compliance with Article 65 (2) of the Treaty and they are already at a disadvantage in in the future. comparison with the majority of mining companies in other areas of the common (c) The complaint that Article 4 (b) of the market. Treaty (discrimination) has been infringed is unfounded. Limiting the checks to the Moreover the High Authority is incorrectly applicants is justified by the fact that no applying the provisions of Articles 47 and basic restructuring such as is to be under­ 65 (3) of the Treaty. Both provisions lay taken by the applicants at the end of 1959 is down that the High Authority may put expected of the marketing organizations in questions to enable it to carry out its task. A the other areas of the Community. The right to check arises only when a reply has High Authority has complied with the pro­ been received from the person under an ob­ visions of Articles 47 and 65 (3) of the Trea­ ligation to provide information. The High ty by giving notice of its checks. The first Authority is therefore infringing the Treaty paragraph of Article 47 gives the High Au­ when it procures information directly from thority not only the right to obtain informa­ the applicants without having previously tion but also the power to have any neces­ put specific questions. sary checks made. The wording and intent of this provision give no ground for infer­ The defendant in answer says: ring that the right is subject to the condition that the High Authority shall previously (a) If the High Authority, as the applicants have asked for and received information on allege, were restricted to requiring informa­ the same subject-matter. tion only after an application for authoriza­

Claim 7 is for the annulment of the second sentence of Article 14 (2) of Decision No 17/59 whereby the High Authority will instruct officials to inform it whether and to what extent revocation or amendment of an authorization prolonged by the decision is necessary and also to make inquiries about the details to be taken into account in a restructuring of the marketing of Ruhr coal.

The objective of claim 8 was the annulment of Article 11 of Decision No 17/59 whereby the more extensive applications of the mining companies concerned re­ lating to the trading regulations were rejected. The parties are unanimously agreed however that this claim has in the meantime lost its purpose as the contested de­ cision has in this respect been replaced by Decision No 36/59 of 17 June 1959 since the application was brought.

Admissibility of claims 1 to 6

On 11 and 12 December 1958 the mining undertakings affiliated to the selling agen­ cies applied for the previous authorization to be extended by a year, that is until 31 March 1960. The High Authority dealt with these applications by Decision No 17/59 of 18 February 1959 which was published in the Journal Officiel of the Eu­ ropean Communities of 7 March 1959 and notified to each of the three selling agencies by letter of 21 February 1959.

Articles 1 and 12 of Decision No 17/59 grant the prolongation of the authorization for the period requested. Articles 2 to 10 however amend the conditions for au­ thorization of long-term delivery contracts and the trading rules and prescribe new conditions, applicable at once, with which the agreements must comply.

The conditions set out in the fifth and at the end of the seventh recitals are not a decision but simply a notice which does not bind the High Authority for the fu­ ture and in no way rules out its amending its viewpoint set out above after tho­ rough examination of subsequent applications by the parties; moreover in such an event it would be under an obligation to make such an examination.

The applicants have not gone into the correctness of the findings of fact contained in the recitals or into the relevance of the interpretation of the Treaty; they have simply challenged the abovementioned recitals maintaining that they represent an administrative act which contains a premature decision separable from the au­ thorization.

As appears from the above observations these objections are unfounded since the said grounds represent a material part of the grounds for the authorization.

Moreover neither these grounds themselves nor the contested parts of the letter of notification of 21 February 1959 are such as to affect the applicants adversely because they are not binding on the addresses of the decision and on the other hand they do not bind the High Authority on exercising in the future its power of authorization.

In view of the above claims 1 to 6 are inadmissible.

JUDGMENT OF 12. 2. 1960 — JOINED CASES 16. 17 AND 18/59

The declarations of the applicants on this matter are therefore to be interpreted as a withdrawal of the claim of which the Court takes note.

Costs

Under Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. In the present case the applicants have failed in respect of admissibility.

Nevertheless the drafting of the seventh recital to Decision No 17/59 in such im­ perative terms could well give the impression that it was already definitive and thus a genuine decision. This fact could have led the applicants to bring the pres­ ent action thus involving them in unnecessary costs. As a result the costs of the action should in part be borne by the defendant.

Further the defendant stated in the course of the oral procedure that it is prepared to meet the costs involved in claim 8. The agreement announced by the parties in the course of the proceedings that the defendant would meet the costs attribut­ able to claim 8 should therefore be noted and taken into account in apportioning the costs in the manner mentioned below.

The applicants failed in an interim application in the action; nevertheless a similar apportionment to that mentioned above of the costs of the interim application ap­ pears appropriate.

3. Takes note of the agreement of the parties that the defendant should bear the costs attributable to claim 8;

4. Orders that costs of the action including the costs of the interim appli­ cation shall be borne as to two-thirds by the applicants and as to one third by the defendant.

Donner Delvaux Rossi

Riese Catalano

Delivered in open court in Luxembourg on 12 February 1960.

A. Van Houtte A. M. Donner