C-9/61

JUDGMENT OF 12. 7. 1962 — CASE 9/61

the attainment of the aims of Article The principles which it establishes 70 but also for ensuring their have permanent effect. implementation. 5. The third paragraph of Article 70, 2. The High Authority is not empowered far from being of restricted and to ensure that the provisions of the limited application, must be applied third paragraph of Article 70 are to transport within the framework observed save by way of a recom­ of the general scheme of the Treaty mendation addressed to Member and of the functioning of the common market for coal and steel as set forth States, specifying their obligations under the Treaty; such recommenda­ in particular in Articles 2 to 5 of the tion cannot however impose upon Treaty. them new obligations which have 6. The High Authority is entitled to no basis in the Treaty. make the attainment of the objectives of Article 60 of the ECSC Treaty the 3. Article 4 of the ECSC Treaty, which aim of a recommendation addressed prohibits all discrimination in general to Member States relating to publicity and expressly mentions transport, is for transport costs. It is in fact entitled the basic principle for the purposes to take the view that the obligation of the first and second paragraphs of Article 70. The reference to this to guarantee appropriate publicity for transport rates is part of its principle is therefore entirelyjustified. general task to ensure the attainment 4. The third paragraph of Article 10 of of the objects laid down by the the Convention on Transitional Pro­ Treaty and it has the right to require visions is provisional only as regards Member States to facilitate the accom­ the procedure for its implementation. plishment of this task.

NETHERLANDS v HIGH AUTHORITY

supported by:

— LES CHARBON AGES DE FRANCE , a public industrial and commercial body having its office in Paris, represented by its general manager, P. Baseilhac,

LES HOUILLIERES DU BASSIN DU NORD ET DU PAS-DE- CALAIS , a public industrial and commercial body having its office at Douai (France), represented by its general manager, J. Aurel,

— LES HOUILLIERES DU BASSIN DE LORRAINE , a public industrial and commercial body having its office at Merlebach (France), represented by its general manager, P. Signard, assisted by Roger L'Eleu, advocate at the Cour d'Appel, Paris, with an address for service in Luxembourg at the offices of Les Charbonnages de France, 103 Grand' rue,

interveners,

JUDGMENT OF 12. 7. 1962 — CASE 9/61

JUDGMENT

Issues of fact and of law

NETHERLANDS v HIGH AUTHORITY

appropriate implementing provisions. Authority implementing those Articles; Whereas the implementing measures to Whereas Member States are bound, in be taken by Member States must, in execution of their basic obligation under nature, scope and form, be such as to the first paragraph of Article 86, to make it possible for the aims envisaged implement this Recommendation in in the publication or communication of such a way as to facilitate the attainment scales, rates and tariff rules to be of the Community's objectives; effectively achieved; whereas in this Whereas the provisions to be adopted by respect Member States should bear it in Member States will attain the objectives mind that the principle of publication of this Recommendation only if all or communication expressed in the necessary measures have been taken to third paragraph of Article 70 is not an ensure that transport undertakings end in itself; comply with those provisions; whereas Whereas publication or communication the Treaty does not give the High as such is merely a means of attaining Authority the power to take action other objectives of the Treaty ; whereas itself to check compliance by those in this instance primary importance undertakings, nor to take action in the attaches to the provisions of the case of any breach, and Member States Treaty concerning transport, with which must therefore themselves be responsible those concerned, and in particular trans for drawing up their provisions in such port undertakings, must be effectively a way that an effective check may be obliged to comply; whereas the relevant kept on transport undertakings and provisions are the following: appropriate sanctions applied in cases — Article 4 (b) of the Treaty, which of breach;

Member States are therefore bound ofthe Conventionon the Transitional to extend the implementing measures Provisions). adopted by them pursuant to this 2. The measures adopted pursuant to Recommendation to all modes of trans­ paragraph (1) shall be such as to port; whereas in so doing they are promote the proper functioning of the entitled to take into account the Common Market as laid down in the individual characteristics of the various Treaty, particularly in Articles 2 to 5 modes of transport; and 60, and in the Decisions of the High Whereas the present position in the Authority implementing those Articles. transport sector makes it necessary that Member States should comply as soon Article 2 as possible with the directions given in this Recommendation; whereas 31 Dec­ The Governments of the Member States ember 1961 accordingly appears suitable shall adopt all such general or special as the final date, either for direct measures as may be appropriate in order promulgation of the necessary laws and to ensure that a check be kept on regulations or, if lengthy procedures compliance with existing lawsand regula­ such as the enactment of legislation tions and with those which may be prove necessary for this purpose, for the adopted in pursuance of the objectives initiation of such procedures.' set out in Article 1, and that sanctions The operative part of the Recommenda­ be applied in cases of breach. tion provides as follows: Article 3 Article 1 The measures adopted pursuant to 1. The Governments of the Member Articles 1 and 2 shall cover all modes of States shall adopt all appropriate general transport. However, account may be or special measures to ensure that the taken of the individual characteristics scales, rates and all other tariff rules of of the various modes of transport. every kind applied to the carriage of coal and steel within each Member Article 4 State and between the Member States are published or brought to the know­ 1. The Governments of the Member ledge of the High Authority to such States shall adopt the measures referred extent and in such manner and form as to in Articles 1 and 2 by 31 December to: ­ 1961 at the latest. Should it be necessary (a) ensure that transport undertakings under any national law to enact legisla­ apply scales, rates and all other tariff tion, or to adopt some other lengthy rules of every kind which afford procedure, in order to put these measures comparable price conditions to com­ into effect such procedures shall be parably placed consumers (Article initiated by that same date at the latest. 4 (b) and the first and second 2. The Governments of Member States paragraphs of Article 70 of the shall communicate to the High Authority Treaty); by 31 October 1961 at the latest the (b) permit the implementation of content of their proposed measures.' measures adopted for the purpose ofestablishing through international 9. On 6 April 1961 the Government tariffs and harmonizing rates and of the Kingdom of the Netherlands conditions of carriage (first para­ lodged at the Court Registry an applica­ graph, of Article 70 of the Treaty tion for the annulment of Recommenda­ and third paragraph of Article 10 tion No 1/61 under Article 33 or

alternatively, under Article 88 of the A — The procedure followed Treaty establishing the European Coal and Steel Community. 1. The applicant is of the opinion that the High Authority is not entitled to 10. On 19 July 1961, Les Charbonnages address a recommendation to Member de France, Les Houillières du Bassin du States when, as in the case of transport, Nord et du Pas-de-Calais and Les the Treaty does not expressly provide Houillières du Bassin de Lorraine lodged for such action. at the Court Registry an application for (a) In fact according to the applicant leave to intervene with the object of both recommendations and decisions of supporting the conclusions of the defen the High Authority create binding rules. dant High Authority; this application The High Authority can only exercise for leave to intervene was declared to this power, whatever form it may take, be admissible by Order of the Court of if it is conferred upon it by an express 26 September 1961. provision of the Treaty. However, none of the Articles referred II — Conclusions ofthe parties to in the Recommendation, not even Articles 8 and 14, expressly grants such

the Treaty. mendation. It maintains that it cannot be inferred

The High Authority) (Rec. 1960, pp. 662 pretation would be that the High and 723) that in the Court's opinion the Authority, which has accurately defined recommendation is the only method at powers in its own sphere of coal and the disposal of the High Authority of steel, the exerciseof which is accompanied reminding Member States oftheir obliga by procedural safeguards, would have tions under the Treaty or that this more extensive powers over transport. procedure is possible, still less (c) To sum up, the applicant is of the appropriate, in the case of transport opinion that, as regards the implement where the Treaty makes no reference to ing measures to be taken by Member the possibility ofsuch a recommendation. States for putting into effect the third The interveners assert that, where recom paragraph of Article 70, the High mendations are concerned, two different Authority does not have the power to types of cases must be distinguished; make a recommendation, even if it is those cases where the Treaty does not restricted to a reminder of their obliga imply any duty to make regulations and tions under the Treaty.

recommendations to Member States was prescribed for it by a material concerning the obligations imposed upon ground of the judgments in Cases 20/59 them in connexion with transport. and 25/59 and it was bound to comply The applicant replies that the distinction with the rules with regard to powers made by the interveners is not supported which are clearly stated in them. by the Treaty. Having regard to this explicit, clear Their argument confuses cause with and unambiguous wording the observa effect.

NETHERLANDS v HIGH AUTHORITY

nexion that the applicant's submission on the objectives of the Treaty, Article with regard to a procedural mistake 88 provides for the institution of pro­ relates in fact to the meaning of certain ceedings in which the Court has un­ grounds of a judgment bringing earlier limited jurisdiction. Further, the appli­ proceedings between the same parties cant considers that it follows clearly to an end. The Netherlands Govern­ from the content and general scheme of ment therefore could and should have the contested recommendation that the

made use of the procedure specifically High Authority is of the opinion that provided to settle a dispute of this kind, Member States have failed to fulfil an

JUDGMENT OF 12. 7. 1962 — CASE 9/61

which the governments must take into arbitrary and restrictive manner a account when determining the measures criterion for achieving the objective of which they are invited to take. the Treaty. It is the recommendation which in It is the applicant's view, therefore, fact brings together within a specific that the real aims of the recommendation context the provisions of the Treaty and are, on the one hand, to extend the the corresponding objectives, thereby obligations of Member States beyond the determining in a way which is binding limits within which they are expressly on the Member States — and on the confined by the third paragraph of High Authority — the framework within Article 70 and, on the other hand, to which the Member States can select the limit in fact the choice of methods which necessary measures for the application this provision leaves to the Member of the Treaty. States.

to 'determine in a way which is binding The defendant then notes that, when on the Member States — and moreover such a delicate matter as the problem on the High Authority — the framework of transport within the Community is at within which the Member States can issue, the application of a 'penal' pro­ select the necessary measures for the cedure recording a failure under Article application of the Treaty', the High 88 of the Treaty to fulfil an obligation Authority is establishing a connexion, under the Treaty, this being the pro­ not laid down in the Treaty, between cedure which appears to be whole- the third paragraph of Article 70 and heartedly favoured by the Netherlands certain other provisions of the Treaty Government, is pointless so long as a which it calls 'objectives'; it is thus constructive solution is possible. fixing binding objectives which go be­ However, the recommendation pro­ yond the duty imposed by the Treaty cedure, whereby the obligation to be on Member States to exercise their performed by Member States, defined exclusive powers to make regulations in in the third paragraph of Article 70 the field of transport. The High Authority of the Treaty, is combined with the is therefore exceeding the limits of its objectives arising from the Treaty which powers, whose nature the Court has the Member States must take into pointed out. consideration, enables the High Furthermore, by referring only to the Authority to fulfil in a positive manner publication of the scales, rates and the general task assigned to it by tariff rules, when the third paragraph of Article 8 of the Treaty, that is to say, Article 70 provides as an alternative the fulfilment of the aims of the Treaty. their communication to the High In addition this non-contentious pro­ Authority, it is laying down in an cedure leaves Member States, within

the general mandatory framework laid treat its application in its entirety as an down in the recommendation, free to application instituting proceedings in choose the measures, which, having which the Court has unlimited juris­ regard to the particular situation in diction under Article 88 of the Treaty. each country, may gradually lead to the According to the applicant the contested better and more complete performance 'Recommendation', wrongly described of the said obligations of the Treaty. as such, is void. In fact in many respects, The interveners for their part maintain it is incompatible with Article 88, in that by the contested Recommendation particular because it does not give the the High Authority has effectively re­ Member States, in this case the Govern­ minded Member States of their obliga­ ment of the Netherlands, the opportunity tions without adding any aims which to submit their comments. are not already set out in the Treaty. The defendant replies that the contested A decision which only confirms pre­ Recommendation is indeed a recom­ existing rules cannot be annulled because mendation under Article 14 and that it does not give rise to any ground for there is no question in this case of complaint. initiating the procedure laid down in The absence of any ground for complaint Article 88. does not mean that the measure is Therefore the application made by the lacking in legal interest. The reminder, Netherlands Government can only be an in this case, proved to be necessary and application for annulment and not an it had to be in the form of a mandatory application in respect of which the instruction. The recommendation was Court has unlimited jurisdiction under therefore the only available procedure, the second paragraph of Article 88. because an opinion is not binding. For the same reason there is no question The interveners also dispute that the in this case of recording a failure by one only procedure which the High Authority of the Member States pursuant to the could adopt in this case was the pro­ first paragraph of Article 88. cedure under Article 88. At the present stage of the action taken On the one hand, an administrative by the High Authority there is thus no authority cannot be denied the oppor­ reason to apply the procedure laid tunity of reminding the persons con­ down by the said Article. cerned of the existence and nature of their obligations before resorting to B — The contests of the recommendation litigation. As the recommendation does not establish any new obligation the 1. The applicant, relying on the third governments retain all their rights and paragraph of Article 14 of the Treaty, safeguards for these rights. takes the view that a recommendation of On the other hand, the procedure used the High Authority lays down binding by the High Authority was in fact rules, although to a lesser extent than completely justified having regard to a decision, and that the wording of the the circumstances of the case. specified aims and their definition and 3. The applicant, which has no doubt the appropriate methods of achieving that in this case the procedure of these aims must therefore be stated

considered as determining the scope, clearly expressed: in fact, under the nature and form of the implementing third paragraph of Article 14 of the measures to be taken. Treaty, the aims of but not the methods However, the wording of these objectives specified in a recommendation are is so vague that it makes the Recom­ binding. mendation worthless as such. The applicant maintains that the con­ The same objection can be raised tested Recommendation does not make against the statement of the 'reasons for it possible to distinguish the aims, the Recommendation; the legal basis which are binding on it, from the of the action taken by the High Authority appropriate methods for achieving these is not clearly defined. aims, which it is free to choose. By not specifying the aims to be attained This lack of clarity could mean that a the High Authority has misused its Member State would find it impossible powers and the contested Recommenda­ to ascertain the implementation measures tion is void on the grounds of lack of which it has to take; the freedom to competence, infringement of the Treaty, choose methods, which a recommenda­ in particular of Articles 14 and 15, and, tion must leave to a Member State, as regards the failure to state reasons, therefore becomes illusory. ofinfringement ofan essential procedural If the High Authority, in breach of requirement. Articles 14 and 15, has not stated the The defendant replies that the complaint aims of the Recommendation, it is of lack of clarity refers in fact to the because it intends to determine them absence of any details concerning the later according to the implementing measures to be implemented by Member measures chosen. This is prohibited by States. the Treaty. It intends moreover to do it In its view this absence of details, far in such a way that the aims will bear from being a ground for annulment, only an indirect relation or indeed none proves that it is making every effort at all to the question of observing to carry out scrupulously the procedure obligations under the Treaty. for recommendations advocated in the The defendant is, on the contrary, of the judgments of the Court. opinion that there is no reason in this As the Member States are tree to choose case to define the aims and methods. the methods to be used, the measures In fact the Recommendation does not

annulled, because it was not really It leaves Member States the freedom to intended to invite Member States to choose the methods of attaining the take the necessary measures to imple­ aims laid down. Neither the preamble ment the third paragraph of Article 70, nor above all the operative words but, in breach of the Treaty, to determine contain an indication of the measures unilaterally the aims to be achieved by by which the Member States must publication or communication of scales, acquire or maintain that knowledge of rates and tariff rules. rates and conditions of carriage which The High Authority is thus imposing is necessary for the proper functioning on Member States and undertakings of the Common Market. obligations which exceed those devolving The fears expressed by the Netherlands upon them under the Treaty, is inter­ Government are thus neither real nor vening again in a field where, as the justified. Court decided in Cases 20/59 and 5. The following arguments concerning 25/59 referred to above, the power to the subject matter of the contested make regulations belongs only to the Recommendation are put forward by Member States, and is infringing the each of the parties in support of these provision whereby a recommendation views: must leave to the Member States the choice of methods for achieving the Article 1(1) aims therein laid down. Finally the contested Recommendation The applicant maintains: lays down rules which not only do not arise out of the Treaty but are even (a) that Article 1 (1) (a) ofthe Recom­ incompatible with it, because they affect mendation requires that the publica­ the freedom which the Treaty leaves tion or the communication of the to Member States and transport under­ scales, rates and tariff rules be takings. done in such a manner as to allow The applicant is of the opinion, there­ the High Authority and the producers fore, that, even if the procedure adopted and consumers of coal and steel to by the High Authority in this case were confirm by checking beforehand to be regarded as in order, the Recom­ whether the provisions of the first mendation must still be annulled because and second paragraphs of Article the High Authority exceeded its powers 70 prohibiting discriminatory tariffs in giving it such content and scope have been observed; in so doing, and because it infringes the Treaty and the Recommendation infringes the in particular Articles 2 to 5 inclusive, Treaty. 8, 14, 15, 60, 70, 86 and 88. (b) that Article 1 (1) (b) ofthe Recom­ The defendant and the interveners on the mendation to the extent that it other hand, are of the opinion that the compels Member States to take contested Recommendation sets out, implementing measures which by with regard to the implementation their nature, scope and form make required by the third paragraph of possible the attainment of objectives Article 70, the aims arising out of the not referred to in the third para­ various relevant provisions of the Treaty graph of Article 70, establishes a

The specific objectives concerning trans­ on the Transitional Provisions, the port, which Article 1 of the Recom­ applicant challenges whether the mendation makes obligatory, thus derive measures referred to in the Convention directly from the Treaty. The govern­ can simply be considered as one of the ments of the Member States are required, objectives of Article 70. The contrary having regard to these objectives, to would rather appear to be true. ensure the implementation of the pro­ It then argues that the High Authority visions of the third paragraph of Article is not taking account of the consequences 70 by taking appropriate measures. of the fact that the fixing of through The applicant replies that the third international tariffs and the harmoniza­

paragraph of Article 70 of the Treaty, tion of rates and conditions of transport which creates a procedure for the presupposed any agreement between supervision by the High Authority of Member States. compliance with the prohibition of finally it comments that the high discrimination in the sector of transport, Authority does not indicate how the is a system on its own, which takes full Convention on the Transitional Pro­ account of the requirements of the visions, which moreover has now expired, High Authority. can itself determine the methods of The High Authority has an exact implementing the third paragraph of knowledge of the scales, rates and Article 70. In particular it does not state tariff rules whether they are published why Member States could not ensure or simply brought to its knowledge. It is compliance with the obligations under

this paragraph by means ofa multilateral could in the end be achieved indepen agreement such as the Convention re dently of an agreement to be made lating to the fixing of through inter between the Governments of the Member national railway tariffs of 21 March States. Its object is only to make sure 1955. that the measures chosen by the Member The defendant in reply emphasizes that the States for the fulfilment of the third contested Recommendation does not paragraph ofArticle 70 do not prevent or abolish the alternative provided by the interfere with the conclusion of this third paragraph of Article 70.

coal and steel because of and to the minded them that they must make their extent of its importance to the function choice of methods in such a way as to ing of this market. It is therefore natural make possible the ultimate attainment that it should also take into account the of the objectives of the Treaty as they objectives laid down by the other emerge from the various provisions provisions of the Treaty which aim at concerning transport, in particular from maintaining the proper functioning of the third paragraph of Article 10 of the the Common Market.

JUDGMENT OF 12. 7. 1962 — CASE 9/61

Article 70 by the words 'Subject to the In particular, as far as Article 60 is provisions of this Article and to the other concerned the contested Recommenda­ provisions of this Treaty, transport tion disregards the judgment delivered policy . . . shall continue to be governed by the Court in Case 25/59, which by the laws or regulations of the denies that there is any organic and individual Member States'. functional correlation between the Article 1 (2) of the Recommendation obligation to publish the prices of takes account of the complementary products and the obligation to publish character of the rules of the Treaty transport costs. The High Authority relating to transport and of the proper once again is trying to arrogate to functioning of the Common Market as itself indirectly the power to make more particularly provided by Articles regulations which the Court has denied 2 to 5 inclusive and Article 60. it.

other way of proceeding would have Further, the provisions laid down by meant that the High Authority intended Article 70 for the observance of the

unlawfully to limit the choice of methods principle of non-discrimination in trans­ available to Member States. port are necessarily connected by way of The applicant is of the opinion that the Article 4 with those provisions under obligations of Member States in the Article 60 relating to prices and con­ field of transport are laid down clearly ditions of sale.

and exhaustively and must only be In practice the normal application of strictly interpreted, as the Court has the provisions of Article 60 and of the decided in its judgments. Decisions of the High Authority imple-

NETHERLANDS v HIGH AUTHORITY

It is never impossible price list with full knowledge of the for a producer to ascertain current delivered prices of their competitors, prices. whilst others cannot do so. On the other hand the whole machinery for align Article 2 ment is based on a knowledge of the possible transport costs for products The applicant maintains that Article 2 offered by competing undertakings. of the Recommendation, which obliges The distinction between publication Member States to adopt general and and communication, to which the con special measures in respect of checks tested Recommendation is not in any and sanctions, is an interference, pro way opposed, in no way implies that the hibited by the Treaty, with the High Authority is prevented from giving sovereignty of Member States, who in third parties information with the help this field have retained their power to of particulars which have been brought make regulations. to its knowledge. Quite the reverse is The defendant is of the opinion that the

Treaty. That is why it has asked Member The essential question is, therefore, States to make provision, in the laws whether the High Authority can, con and regulations to be adopted in order trary to the opinion of the applicant, to attain the aims stated in the Recom impose upon Member States by way of a mendation, for the possibility of checks binding recommendation its own view and the imposition of sanctions without of the scope of the obligations which which such measures would be a dead devolve upon them and of the connexion letter.

therefore Article 4 (1), which fixes The object of Article 4 therefore is to the time limit, is also void; help the governments. It is prompted by considerations of efficiency and a — or Articles 1 and 2 are restricted desire for economy of effort in the to such reminders and in that action which the governments are called case Article 4 (1), which fixed the upon to take. It is better in fact to time limit for the fulfilment of examine and possibly criticize the obligations under the Treaty, is measures during their preparatory stage void because the High Authority rather than after their adoption. should have made use of the pro­ In addition the defendant is of the cedure under Article 88; opinion that Article 4 is in no way prejudicial to the rights of the applicant, (b) maintains that Article 4 (2) of the who therefore has no interest in its Recommendation also infringes the annulment.

Treaty in that it obliges the govern­ ments of Member States to com­ IV — Procedure municate to the High Authority the content of the proposed measures to enable it, as the final recital of the The procedure both in the original statement of reasons discloses, to case and in the intervention proceedings carry out checks in advance whereas took the normal course.

NETHERLANDS v HIGH AUTHORITY

Grounds ofjudgment

The admissibility of the application by the Netherlands Government and the intervention by Les Charbonnages de France and others has not been challenged by the parties and there are no reasons for the Court to raise the matter of its own motion. The original application and the application to intervene are therefore admissible.

(3) that 'the scales, rates and all other tariff rules of every kind applied to the carriage of coal and steel within each Member State and between Member States shall be published or brought to the knowledge of the High Authority';

This paragraph is a concrete and binding provision.

(b) The fourth indent of the second paragraph of Article 5 imposes on the High Authority the duty to ensure the observance of the rules laid down in the Treaty.

JUDGMENT OF 12. 7. 1962 — CASE 9/61

This obligation moreover is confirmed by Article 8 of the Treaty.

The High Authority has therefore the power to require States to fulfil their obligations under Article 70.

It follows from the above considerations that the only manner in which the High Authority is empowered to ensure that the provisions of the third paragraph ofArticle 70 are observed is by way ofa recommendation addressed to the Member States, a recommendation which specifies their obligations under the Treaty but which cannot impose on the said Member States new obligations which have no basis in the Treaty.

NETHERLANDS v HIGH AUTHORITY

This means that the disputed Recommendation has been made and addressed to Member States by virtue of a power duly vested in the High Authority.

2. There is therefore no need to dwell any longer on the applicant's submission that, in the absence of an express authorization in the Treaty, the High Authority could only derive power to make regulations in this case under the first paragraph of Article 95 which applies to 'cases not provided for in this Treaty where it becomes apparent that a decision or recommendation of the High Authority is necessary to attain . . . one of the objectives of the Community. . .'

The only object of the first paragraph of Article 95 is to institute special rules for departing from the Treaty with the object of empowering the High Authority to meet an unforeseen situation.

The circumstances in this case are different because, as has just been shown, no such departure from the Treaty is involved since the High Authority has applied the Treaty in circumstances covered by its provisions.

JUDGMENT OF 12. 7, 1962 — CASE 9/61

III — The content ofthe Recommendation

A — General

As far as the content of the regulation is concerned, the applicant complains that both the statement of reasons and the operative part are not sufficiently clear; that the High Authority did not confine itself to dealing with the aims but by implication fixed the methods in the Recommendation, thus depriving the applicant of the possibility of choosing them, and that as a result in the present case there is not a recommendation but an actual decision.

The contested Recommendation does not imply any obligation with regard to the methods to be adopted in connexion with the aims of the Treaty. It only mentions the obligation to achieve certain aims by requiring Member States to ensure that the third paragraph of Article 70 is appropriately implemented.

The States are completely free in the choice of measures left to their discretion provided that such measures conform to the stated aims.

(b) Secondly, the applicant maintains that the aims attributed by the contested Recommendation to the provisions of the third paragraph of Article 70 of the Treaty go further than the objectives expressly and, in its view, definitively set forth in the first and second paragraphs of this Article. In particular, by including the aims stated in the third paragraph of Article 10 of the Convention of the Transitional Provisions and those aims specified in Articles 2 to 5 and Article 60 of the Treaty, the Recommendation, by virtue of its nature and scope, goes beyond the area of application of Article 70.

It is appropriate to examine separately the complaints concerning Article 1 (1) and (2) respectively of the Recommendation:

(i) So far as Article 1 (1) of the Recommendation and more particularly subparagraph (a) of this provision is concerned, Article 4 (b) of the Treaty, which prohibits all discrimination in general and expressly mentions transport, is the basic principle for the purpose of the first and second paragraphs of Article 70. The reference to this provision of principle is therefore entirely justified.

It was proper for the Recommendation to mention the aims laid down in the third paragraph of Article 10 of the Convention on the Transitional Provisions.' This Convention is provisional only as regards the procedure for its implementation but the principles which it establishes have permanent effect.

(ii) So far as concerns the reference in Article 1 (2) of the Recommendation to Articles 2 to 5 of the Treaty, there is no justification for finding in the third paragraph of Article 70 a self-contained system serving solely the aims referred to in the first and second paragraphs, that is to say the application to the carriage of coal and steel of comparable prices for comparably placed consumers in order to prevent discrimination in this field.

Furthermore, it follows from the fifth paragraph of Article 70 that, although transport policy continues to be governed by the power of individual Member States to make laws and regulations, this general jurisdiction is subject to the restrictions which arise not only from the obligations specified in Article 70 but also from the 'other provisions' of the Treaty. Although it is true that the price lists which must be published according to Article 60 (2) (a) of the Treaty do not include transport costs as a constituent element in fixing prices, a knowledge of such costs is necessary in order to exercise the right, reserved to undertakings by Article 60 (2) (b), to align their delivered prices on the lower delivered prices of other undertakings.

In fact the secret nature of exceptions from published tariffs which have been granted to certain undertakings divests these tariffs of any practical value and may falsify calculations made by competitors based on tariffs which they could normally assume are effective and applied in practice. The High Authority is therefore entitled to take the view that the obligation to guarantee appropriate publicity for transport rates is part of its general task to ensure the attainment of the objects laid down by the Treaty and it has

NETHERLANDS v HIGH AUTHORITY

the right to require Member States to have regard to this task by taking the measures referred to in Article 1(1) of the Recommendation.

The High Authority was thus entitled to make the attainment of the objectives of Article 60 the aim of the contested Recommendation.

With regard to (a), this argument confuses the creation of a new obligation with giving concrete form to a pre-existing obligation. The latter applies in this case, and it is logical that it should involve also the fixing of a time limit.

With regard to (b), the fixing of a time limit does not put the contested Recommendation on the same footing as the phase initiating the procedure under Article 88. The procedure set out in this Article is not initiated auto­ matically by the expiration of a time limit but presupposes that an examina­ tion of the situation has led the High Authority to 'consider' that there has been a failure to fulfil an obligation under the Treaty. Any finding that

JUDGMENT OF 12. 7. 1962 — CASE 9/61

such a failure exists is precluded in this case, to the benefit of governments, so long as the period fixed for the fulfilment of this obligation has not expired.

4. The applicant is of the opinion that the fact that Article 4 (2) of the Recommendation requires the governments of the Member States to communicate to the High Authority by 31 October 1961 the content of measures which they propose to adopt in order to implement the contested Recommendation is an infringement of the Treaty.

This provision is only intended to enable the High Authority and the Member States to present their views one to another on a non-contentious basis. As the intention of this procedure is to secure cooperation between the parties, it cannot provide the applicant with any grounds for complaint and therefore does not give the Court any grounds for criticism.

NETHERLANDS v HIGH AUTHORITY

THE COURT

hereby:

1. Dismisses the application;

2. Orders the applicant to pay the costs of the action.

Donner Riese Rossi

having regard in particular to the After publication of the judgments in status of the applicants, I will make it Cases 20/59 and 25/59 the High Authority my business to carry out an exhaustive issued the now contested Recommenda­ evaluation of all the issues which have tion No 1/61 by which it intended to arisen, for a neglect of individual argu­ induce the governments of the Member ments as a result of the joint treatment States to take implementing measures 1 — Translated from the German. 2 — Government of the Italian Republic v High Authority of the European Coal and Steel Community.