C-12/63

JUDGMENT OF THE COURT 4 JULY 1963

Mrs Marga Schlieker, nee Diepenbruck v High Authority of the European Coal and Steel Community

Case 12/63

Summary

1. Application on the grounds of failure to act—Application to the High Authority under the first paragraph of Article 35 ECSC Treaty—Persons entitled to

apply

In Case 12/63

Mrs Marga Schlieker, née Diepenbruck represented by Dr Bruckhaus, ,

Kreifels Dr Winkhaus, 2 Berliner Allee, Diisseldorf 4, with an address and

for service in Luxembourg at the office of Félicien Jansen, 21 rue Aldringer,

applicant,

v

Application for a declaration that certain agreements entered into by the

Schlieker group, in which the applicant has an interest, as set out in the

request addressed by her to the High Authority on 7 November 1962 are

null and void;

Alternatively, for the restoration of the position before the said agreements were entered into;

on the preliminary objection of inadmissibility raised by the defendant,

to free competition and are consequently By requests of 7 and 9 November 1962, contrary to Article 65 (1) of the ECSC Mrs Marga Schlieker requested the Treaty. High Authority to declare null and void Following these requests, the High the agreements entered into between Authority restricted itself to replying on Mr Willy H. Schlieker, her husband, 21 December 1962 that it was already and the undertaking, Willy H. Schlieker officially looking into 'the facts relating KG, in has interest, in question'

which she an on to the proceedings and that

the one hand, and certain undertakings up to that time it had had no cause to

belonging to the European Coal and intervene, but would certainly follow Steel Community on the other; these developments in the matter.

agreements were for the most part con­ On 12 February 1963, the applicant, in cluded subsequent to bankruptcy pro­ addition to pursuing remedies under nat­

ceedings in respect of the assets of the ional law in defence of her interests, Schlieker group. lodged at the Registry of the Court an In the same requests, Mrs Schlieker application based on the failure of the Author­ High alternatively requested the High Authority to act. ity to order the restoration of the posi­

in part, to require its authorization munity procedure a judgment may not

alone, to order the restoration of the prescribe a particular course of conduct

position existing before the agreements or lay down a particular decision for into'. High (ob­ were entered adoption by the Authority The High Authority in its preliminary jection, p. 2, point 2); the High Author­ objection on the grounds of inadmis­ ity considers moreover that the submis­

the Court: sions made against it are 'inconclusive'; sibility, requested 'annul' that it cannot in fact agree­

'if it considers that the application is in ments governed by private law but fact in order, to dismiss it as inadmis­ 'void'

merely find that they are within sible by way of a preliminary decision the meaning of Article 65 of the Treaty; under Article 91 of the Rules of Pro­ that it cannot order that the previously cedure and to order the applicant to

in­ Authority must, by a decision or a inary objection of recommendation, determine the nullity admissibility of the agreements set out in the letter 1. The High Authority raises the ques­ of 7 November 1962; alternatively the tion whether the memorandum of 11 application asked the Court to 'declare

February 1963 makes the issue and the that, so far as these agreements required

submissions sufficiently clear. authorization, this has not been gran­

(memorandum in reply, pp. 2 and ted'

It leaves the Court to determine whether

the application and documents annexed 3, point 2); the Court is hence at liberty in accordance with Article 22 to interpret (cf. judg­ are of the the conclusions

within the Community scheme. In the infringement of Articles 65 and 66 of

applicant's documents only a few refer­ the Treaty, private individuals may be ences to this subject are to be found. directly affected, as in the present case, These references appear to reflect a and have a right to comparable legal concern to prevent certain agreements protection within the Community. Such from being entered into, contrary to a principle must be applied generally the Treaty, by undertakings with which even if the draftsmen of a given provis­

the applicant is associated, and to pre­ ion did not expressly so provide. A vent these undertakings from becoming broad interpretation of the right of

as a consequence liable to fines. This action in favour of individuals does not

formula­ does not explain the action as conflict with wording of Articles 65 the

ted; there is a contradiction between and 66 (memorandum in reply, pp. 3

general than an action may the action.

brought before the Court for failure to On 23 March 1963 the applicant sent

act on the part of the High Authority. a memorandum in answer to the latter This Article allows the States, the Coun­ application.

cil, undertakings or associations to raise The oral procedure took place on 29 the matter with the High Authority but May 1963. The Advocate-General hearing does Advocate-General _1_

rhe hearing at the

not confine this right to them. at the

ECSC undertakings. Such agreements or transactions may rightly or wrongly be considered as constituting an agreement or concentration required by Articles 65 and 66 of the ECSC Treaty to be authorized by the High Authority. Mrs Schlieker, by applications of 7 and 9 November 1962, has asked the High Authority first to declare these agreements void and alterna­

tively to order the restoration of the position as it previously existed. The High Authority, by letter of 21 December 1962, restricted itself to replying that it was already officially looking into the facts relating to the proceedings

SCHLIEKER v HIGH AUTHORITY

in question. Up to that time it had had no cause to intervene and would

continue to follow developments. Following this reply the present application on the ground of failure to act was made to the Court.

The proceedings provided for by the third paragraph of Article 35 presup­

special rights of action. (4) gives the Court control over the Article 65 exclusive jurisdiction of the High Authority over agreements but Article 80

reserves only to undertakings engaged in production and distribution rights of action under the former Article.

Although, for its part, the second subparagraph of Article 66 (5) entitles

'any person directly concerned'

to institute proceedings 'as provided in Article 33', this action is envisaged only against decisions by which the High

Authority recognizes the unlawful nature of a concentration and orders

any possibility of proceedings being taken when the interests injured are

JUDGMENT OF 4. 7. 1963 — CASE 12/63

those of a person other than an undertaking or association. Whatever may be the consequences of a factual situation of which the Court must neces­

sarily be unaware, the Court has no authority to depart from the provisions for the protection of legal rights set out in the Treaty.

The present application must therefore be dismissed as inadmissible and the applicant must be ordered to pay the costs under Article 69 (2) of the Rules of Procedure.

On those grounds,

2. Orders the applicant to pay the costs.

Dormer Delvaux Lecourt

Hammes Rossi Trabucchi Strauß

Delivered in open court in Luxembourg on 4 July 1963.

A. Van Houtte A. M. Dormer

Registrar President