P . 188
THE COURT
FOR THE PURPOSE OF GIVING JUDGMENT IN THE PRESENT CASES, PUTS FORWARD THE FOLLOWING CONSIDERATIONS IN LAW :
1 . CONSEQUENCES OF THE JOINDER OF APPLICATIONS 7/54 AND 9/54
THE ORDER OF 25 MARCH 1955 JOINING APPLICATIONS 7/54 AND 9/54 DOES NOT PRECLUDE THEIR SEPARATE EXAMINATION IN THE PRESENT JUDGMENT .
P . 189
PART ONE
APPLICATION 7/54
A - THE ADMISSIBILITY OF APPLICATION 7/54
I - THE REGULARITY OF THE PROCEDURE
THE APPLICANT HAS ANNEXED TO ITS APPLICATION A COPY OF THE LETTER WHICH IT HAD SENT TO THE HIGH AUTHORITY ON 14 JULY 1954 AND THIS DATE HAS NOT BEEN CONTESTED BY THE DEFENDANT . THAT DOCUMENT MAY CONSEQUENTLY BE CONSIDERED AS " DOCUMENTARY EVIDENCE OF THE DATE ON WHICH THE REQUEST WAS LODGED " REQUIRED UNDER THE SECOND PARAGRAPH OF ARTICLE 22 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC . THE APPLICATION, WHICH WAS LODGED LESS THAN A MONTH AFTER THE EXPIRY OF THE PERIOD OF TWO MONTHS LAID DOWN IN ARTICLE 35 OF THE TREATY, WAS SUBMITTED WITHIN THE PRESCRIBED PERIOD .
IN ACCORDANCE WITH THE OPINION OF THE ADVOCATE GENERAL THE TWO HEADS OF CLAIM CONTAINED IN THE APPLICATION ARE OBVIOUSLY RELATED .
THE FACT THAT THEY HAVE BEEN PUT FORWARD IN THE SAME APPLICATION CANNOT CALL IN QUESTION THE ADMISSIBILITY OF THAT APPLICATION .
MOREOVER, THE DEFENDANT DOES NOT RAISE " THE FORMAL INADMISSIBILITY " OF THE APPLICATION ORIGINATING THE PROCEEDINGS AND LEAVES THE DECISION ON THIS POINT TO THE DISCRETION OF THE COURT .
II - THE CAPACITY OF THE APPLICANT TO RAISE THE MATTER WITH THE HIGH AUTHORITY IN APPLICATION OF ARTICLE 35 OF THE TREATY
APPLICATION 7/54 REQUESTS THE ANNULMENT OF THE IMPLIED DECISION OF REFUSAL WHICH IS TO BE INFERRED UNDER ARTICLE 35 OF THE TREATY FROM THE SILENCE OF THE HIGH AUTHORITY FOR TWO MONTHS WITH REGARD TO THE REQUEST MADE BY THE APPLICANT IN ITS LETTER OF 14 JULY 1954 .
THE EXPRESSION " AS THE CASE MAY BE " IN ARTICLE 35 MUST BE CONSIDERED AS GIVING THE POWER TO RAISE A MATTER WITH THE HIGH AUTHORITY TO THOSE PERSONS SPECIFIED IN THAT ARTICLE WHO HAVE AN INTEREST IN THE DECISION WHICH THE HIGH AUTHORITY IS REQUIRED TO TAKE OR IN THE RECOMMENDATION WHICH IT IS REQUIRED TO MAKE .
THE DECISIONS REQUESTED FROM THE HIGH AUTHORITY BY THE APPLIANT'S LETTER OF 14 JULY 1954 WERE CERTAINLY OF INTEREST TO THE APPLICANT .
ARTICLE 35 MOREOVER ENABLES " UNDERTAKINGS OR ASSOCIATIONS " TO RAISE A MATTER WITH THE HIGH AUTHORITY .
THE ASSOCIATIONS REFERRED TO IN THAT EXPRESSION MAY ONLY BE ASSOCIATIONS OF UNDERTAKINGS WITHIN THE MEANING GIVEN TO THE WORD " UNDERTAKING " BY ARTICLE 80 OF THE TREATY FOR THE PURPOSES OF THE WHOLE TREATY .
IF IN FACT THIS WERE NOT SO, AN ASSOCIATION COULD FIND ITSELF IN A POSITION TO INSTITUTE PROCEEDINGS WHERE NONE OF THE INDIVIDUAL MEMBERS OF WHICH IT IS FORMED COULD HAVE DONE SO ON ITS OWN .
P . 190
IN THE ABSENCE OF ANY INDICATION TO THE CONTRARY, THE TREATY DOES NOT ESTABLISH SUCH DIFFERENCES IN THE TREATMENT OF AN ASSOCIATION AND THE MEMBERS OF WHICH IT IS FORMED .
THE GROUPEMENT DES INDUSTRIES SIDERURGIQUES LUXEMBOURGEOISES, THE APPLICANT, IS CERTAINLY AN ASSOCIATION OF UNDERTAKINGS, BECAUSE IT GROUPS IN A CO-OPERATIVE SOCIETY UNDERTAKINGS CARRYING OUT PRODUCTION ACTIVITIES IN THE STEEL SECTOR WITHIN ONE OF THE TERRITORIES REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 79 .
THE FIRST PARAGRAPH OF ARTICLE 35 GIVES THE STATES, THE COUNCIL OR UNDERTAKINGS AND ASSOCIATIONS THE POWER TO RAISE A MATTER WITH THE HIGH AUTHORITY ONLY WHEREVER THE HIGH AUTHORITY IS REQUIRED BY THE TREATY OR BY RULES LAID DOWN FOR THE IMPLEMENTATION THEREOF TO TAKE A DECISION OR MAKE A RECOMMENDATION AND FAILS TO FULFIL THIS OBLIGATION .
THE APPLICANT ALLEGES THAT ARTICLES 86 AND 88 OF THE TREATY PLACED THE HIGH AUTHORITY UNDER A DUTY TO TAKE A DECISION OR MAKE A RECOMMENDATION CONCERNING THE CAISSE DE COMPENSATION ATTACHED TO THE OFFICE COMMERCIAL DU RAVITAILLEMENT .
UNDER ARTICLE 86 THE MEMBER STATES UNDERTAKE TO REFRAIN FROM ANY MEASURES INCOMPATIBLE WITH THE COMMON MARKET REFERRED TO IN ARTICLES 1 AND 4 .
ARTICLE 88 REQUIRES THE HIGH AUTHORITY, IF IT " CONSIDERS THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THIS TREATY ", TO RECORD THIS FAILURE IN A REASONED DECISION .
FOR THAT REASON, THE HIGH AUTHORITY WAS CERTAINLY REQUIRED BY THE TREATY TO TAKE A DECISION IF IT CONSIDERED THE CAISSE DE COMPENSATION TO BE INCOMPATIBLE WITH THE COMMON MARKET REFERRED TO IN ARTICLES 1 AND 4 .
THEREFORE, IT WAS CERTAINLY FOR THE APPLICANT TO RAISE THE MATTER WITH THE HIGH AUTHORITY IN APPLICATION OF THE FIRST PARAGRAPH OF ARTICLE 35 .
III - THE CAPACITY OF THE APPLICANT TO INSTITUTE PROCEEDINGS BEFORE THE COURT OF JUSTICE AGAINST THE IMPLIED DECISION OF REFUSAL WHICH IS TO BE INFERRED FROM THE SILENCE OF THE HIGH AUTHORITY
THE APPLICANT HAS CLAIMED THAT
" THE COURT SHOULD :
ANNUL THE IMPLIED DECISION OF REFUSAL OF THE HIGH AUTHORITY TAKEN AFTER THE GROUPEMENT DES INDUSTRIES SIDERURGIQUES LUXEMBOURGEOISES HAD SENT ITS LETTER OF 14 JULY 1954 "
AND THE APPLICANT CONSIDERS THAT " THIS IMPLIED DECISION OF REFUSAL IS VITIATED BY NULLITY FOR INFRINGEMENT OF THE TREATY AND IN THE ALTERNATIVE FOR INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS ".
P . 191
THE PROCEEDINGS INSTITUTED BY THE APPLICANT UNDER THE THIRD PARAGRAPH OF ARTICLE 35 OF THE TREATY ARE THEREFORE PROCEEDINGS FOR ANNULMENT ON THE GROUND OF INFRINGEMENT OF THE TREATY AND INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AS PROVIDED IN ARTICLE 33 OF THE TREATY AND ARE THEREFORE SUBJECT TO THE CONDITIONS THEREOF .
UNDER THE SECOND PARAGRAPH OF ARTICLE 33, UNDERTAKINGS OR THE ASSOCIATIONS REFERRED TO IN ARTICLE 48 MAY INSTITUTE LIKE PROCEEDINGS AND, WITHOUT ITS BEING NECESSARY TO SPECIFY THE SCOPE OF THIS REQUIREMENT IN CASES IN WHICH AN APPLICATION IS LODGED PURSUANT TO AN ARTICLE OF THE TREATY OTHER THAN ARTICLE 35, THE APPLICANT ASSOCIATION MAY BE CONSIDERED AS ONE OF THE ASSOCIATIONS REFERRED TO IN ARTICLE 48 OF THE TREATY .
HOWEVER, THE LUXEMBOURG GOVERNMENT IN ITS APPLICATION TO INTERVENE STATED THAT " THE APPLICANT, WHILST COMING WITHIN THE JURISDICTION OF THE COMMUNITY IN OTHER RESPECTS, DOES NOT HAVE THE CAPACITY TO INSTITUTE PROCEEDINGS BEFORE THE COURT OF JUSTICE IN VIEW OF THE SPECIAL NATURE OF THE DISPUTE ".
THE LUXEMBOURG GOVERNMENT SUPPORTS ITS CLAIM BY OBSERVING THAT THE DISPUTE BROUGHT BEFORE THE COURT RELATES EXCLUSIVELY TO COAL, THAT ONLY A COAL-PRODUCING UNDERTAKING OR AN ASSOCIATION OF SUCH UNDERTAKINGS HAS CAPACITY TO INSTITUTE SUCH PROCEEDINGS, BUT THAT ON THE OTHER HAND AN ASSOCIATION OF UNDERTAKINGS WHICH INSTITUTES PROCEEDINGS AND WHICH IN THIS INSTANCE, CAN ONLY INSTITUTE PROCEEDINGS IN ITS CAPACITY AS AN ORGANIZATION REPRESENTING CONSUMERS DOES NOT HAVE SUCH CAPACITY .
AS REGARDS THE ADMISSIBILITY OF THE SUBMISSIONS PUT FORWARD BY THE INTERVENER, THE DEFENDANT HAS LEFT THE DECISION ON THIS POINT TO THE DISCRETION OF THE COURT . ARTICLE 34 OF THE STATUTE OF THE COURT OF JUSTICE LIMITS THE SUBMISSIONS MADE IN AN APPLICATION TO INTERVENE TO SUPPORTING OR REQUESTING THE REJECTION OF THE SUBMISSIONS OF ONE OF THE PARTIES .
NEVERTHELESS THERE IS NO NEED TO INQUIRE WHETHER THE INTERVENER, IN VIEW OF THE PROVISIONS OF ARTICLE 34 OF THE STATUTE OF THE COURT OF JUSTICE, WAS JUSTIFIED IN CONTESTING THE ADMISSIBILITY OF THE APPLICATION, SINCE ITS ADMISSIBILITY MUST IN THIS INSTANCE BE EXAMINED OF THE COURT'S OWN MOTION .
IN THE OPINION OF THE ADVOCATE GENERAL, THERE IS NO PROVISION OF THE TREATY WHICH REQUIRES THAT THE SPECIALITY OF THE PRODUCERS MUST BE LINKED TO THE SPECIAL FIELD OF THE DISPUTE .
THE SILENCE OF THE TREATY ON THIS POINT CANNOT BE INTERPRETED TO THE DISADVANTAGE OF THE UNDERTAKINGS AND ASSOCIATIONS .
FOR THIS REASON THE APPLICANT'S RIGHT TO INSTITUTE PROCEEDINGS BEFORE THE COURT CANNOT IN THIS INSTANCE BE CONTESTED .
THE APPLICANT HAS NOT ALLEGED THAT THE IMPLIED DECISION OF REFUSAL WAS VITIATED BY MISUSE OF POWERS AFFECTING IT AND FOR THAT REASON IT COULD NOT INSTITUTE PROCEEDINGS AGAINST THAT DECISION UNLESS THAT DECISION WAS A DECISION CONCERNING IT WHICH WAS INDIVIDUAL IN CHARACTER .
THIS REQUIREMENT INVOLVES TWO DISTINCT CHARACTERISTICS WITH REGARD TO THE DECISION : IT MUST BE INDIVIDUAL IN CHARACTER AND MUST CONCERN THE APPLICANT .
P . 192
THE TREATY, BY REQUIRING THAT DECISIONS WHICH ARE CAPABLE OF BEING ANNULLED BY THE INSTITUTION OF PROCEEDINGS BY UNDERTAKINGS OR ASSOCIATIONS MUST BE INDIVIDUAL IN CHARACTER WHEN THEY DO NOT INVOLVE A MISUSE OF POWERS AFFECTING SUCH UNDERTAKINGS OR ASSOCIATIONS, DEBARS INDIVIDUALS, WHENEVER NO MISUSE OF POWERS AFFECTING THEM IS ALLEGED, FROM OBTAINING JUDGMENT ON GENERAL DECISIONS OR RECOMMENDATIONS .
IN THESE CIRCUMSTANCES, IT IS SUFFICIENT, IN ORDER THAT AN UNDERTAKING OR ASSOCIATION MAY BE ABLE TO INSTITUTE PROCEEDINGS AGAINST A DECISION OR RECOMMENDATION, FOR THAT DECISION OR RECOMMENDATION TO BE NOT GENERAL BUT INDIVIDUAL IN CHARACTER AND IT IS NOT NECESSARY FOR THE DECISION TO MANIFEST THIS CHARACTER IN RELATION TO THE APPLICANT .
THE IMPLIED DECISION OF REFUSAL WHICH IS TO BE INFERRED FROM THE SILENCE OF THE HIGH AUTHORITY CAN ONLY EXPRESS THE REFUSAL OF THE DECISION REQUESTED BY THE APPLICANT IN ITS LETTER OF 14 JULY 1954 .
THIS DECISION IS THUS DEEMED TO STATE THAT THERE IS NO NEED TO RECORD IN A REASONED DECISION THAT BY AUTHORIZING THE OFFICE COMMERCIAL DU RAVITAILLEMENT TO INCREASE THE PRICE OF SOLID FUELS FOR NON-DOMESTIC USE BY THE ORDER OF 8 MARCH 1954 THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG HAS FAILED TO FULFIL AN OBLIGATIONS UNDER THE TREATY .
THIS DECISION REFERS SOLELY TO ONE PARTICULAR ACTIVITY OF A PUBLIC BODY REFERRED TO BY NAME, IN OTHER WORDS THE OFFICE COMMERCIAL DU RAVITAILLEMENT, AND IS A DECISION WHICH IS INDIVIDUAL IN CHARACTER .
MOREOVER, THE IMPLIED DECISION OF REFUSAL CONTESTED BY THE APPLICANT PERMITS THE CONTINUATION OF A SYSTEM WHICH IMPOSES ON THE UNDERTAKINGS WHICH FORM THE GROUPEMENT DES INDUSTRIES SIDERURGIQUES LUXEMBOURGEOISES AN ADDITIONAL CHARGE OF 8 FRANCS PER METRIC TON OF COAL CONSUMED BY THEM AND AS SUCH CONCERNS A GROUP FORMED IN ORDER " TO CARRY OUT ... ALL TRANSACTIONS DEEMED BY THE LAW TO BE BUSINESS TRANSACTIONS SO AS TO ENSURE THE SMOOTH RUNNING AND THE DEVELOPMENT OF THE LUXEMBOURG IRON AND STEEL INDUSTRY AND IN PARTICULAR THE INDUSTRY OF ITS MEMBERS ".
FOR THOSE REASONS THE IMPLIED DECISION OF REFUSAL, THE ANNULMENT OF WHICH IS REQUESTED, IS IN THE PRESENT CASE INDIVIDUAL IN CHARACTER AND CONCERNS THE APPLICANT WHICH THEREFORE HAD THE CAPACITY TO INSTITUTE PROCEEDINGS AGAINST IT .
IV - THE INTEREST OF THE APPLICANT IN PROCEEDING WITH ITS ACTION AT LAW AFTER THE REPEAL BY MINISTERIAL ORDER OF 12 SEPTEMBER 1955 WITH EFFECT FROM 2 APRIL 1955 OF THE MINISTERIAL ORDER OF 8 MARCH 1954 CONCERNING THE OPERATION OF THE CAISSE DE COMPENSATION ATTACHED TO THE OFFICE COMMERCIAL DU RAVITAILLEMENT
IN REPLY TO THE QUESTIONS PUT DURING THE PREPARATORY INQUIRY, THE APPLICANT CLAIMED THAT THE LUXEMBOURG GOVERNMENT MAINTAINED THE CAISSE DE COMPENSATION FOR THE PERIOD PRIOR TO 2 APRIL 1955 AND THAT THEREFORE THE QUESTION AT ISSUE, WHICH IS WHETHER THE CAISSE DE COMPENSATION IS COMPATIBLE WITH THE PROVISIONS OF THE TREATY, REMAINS UNANSWERED WITH REGARD TO THE PAST .
IN THE REJOINDER THE DEFENDANT LEFT THE DECISION ON THAT POINT TO THE DISCRETION OF THE COURT .
P . 193
THE COURT ACKNOWLEDGES THAT THE APPLICANT HAS AN INTEREST IN PROCEEDING WITH ITS ACTION .
FOR THE ABOVE-MENTIONED REASONS THE APPLICATION IS ADMISSIBLE .
B - THE SUBSTANCE OF APPLICATION 7/54
I - THE SUBJECT-MATTER OF THE APPLICATION
( A ) THE APPLICANT'S CLAIM THAT THE ACTIVITIES OF THE OFFICE COMMERCIAL DU RAVITAILLEMENT SHOULD BE BROUGHT TO AN END
THE HIGH AUTHORITY TOOK A DECISION ON 7 JANUARY 1955, IN OTHER WORDS AFTER THE APPLICATIONS HAD BEEN LODGED, THAT THE ORDER OF THE MINISTER FOR ECONOMIC AFFAIRS OF THE LUXEMBOURG GOVERNMENT OF 8 MARCH 1954 CONFIRMING THE ACTIVITIES OF THE OFFICE COMMERCIAL DU RAVITAILLEMENT WITH REGARD TO THE IMPORTATION OF SOLID FUELS CONSTITUTES A MEASURE WHICH IS INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY .
IN THE OPINION OF BOTH THE APPLICANT AND THE DEFENDANT THIS DECISION MUST BE CONSIDERED AS THE POSITIVE OUTCOME OF THE HEAD OF CLAIM IN THE APPLICATION CONCERNING THE OFFICE COMMERCIAL DU RAVITAILLEMENT .
THEREFORE, THE APPLICATION HAS BECOME PURPOSELESS IN RELATION TO THAT HEAD OF CLAIM .
( B ) CONSEQUENCES OF THE LETTER OF THE HIGH AUTHORITY OF 27 NOVEMBER 1954 STATING, AFTER THE EXPIRY OF THE PERIOD OF TWO MONTHS, THE REASONS UPON WHICH ITS REFUSAL TO TAKE THE DECISION REQUESTED BY THE APPLICANT WITH REGARD TO THE CAISSE DE COMPENSATION IS BASED .
IN ITS DEFENCE, THE HIGH AUTHORITY STATES THAT THE LETTER OF 27 NOVEMBER 1954 TRANSFORMED ITS SILENCE INTO AN EXPRESS REFUSAL WHICH STATED IN DETAIL THE REASONS UPON WHICH IT WAS BASED .
IT CLAIMS THAT, IN THESE CIRCUMSTANCES, THE ACTION BROUGHT ON THE BASIS OF ARTICLE 35 HAS NO LEGAL FOUNDATION AND THE APPLICATION HAS BECOME PURPOSELESS .
THE LETTER SETTING OUT THE REASONS OF THE HIGH AUTHORITY WAS RECEIVED AFTER THE EXPIRY OF THE PERIOD OF TWO MONTHS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 35 .
AT THE END OF THAT PERIOD THE IMPLIED DECISION OF REFUSAL REFERRED TO IN THAT PARAGRAPH WAS INFERRED TO EXIST AND THE APPLICANT FINALLY ACQUIRED THE RIGHT TO INSTITUTE PROCEEDINGS .
MOREOVER, THE SUBJECT-MATTER OF THE PROCEEDINGS IS NOT THE SILENCE OF THE HIGH AUTHORITY BUT ITS REFUSAL TO TAKE A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY WHICH, ACCORDING TO THE APPLICANT, IT WAS UNDER A DUTY TO TAKE .
P . 194
THE LETTER INDICATING THE REASONS FOR THE REFUSAL OF THE HIGH AUTHORITY DOES NOT AFFECT THE EXISTENCE OF THAT REFUSAL WHICH WAS FINALLY ESTABLISHED AT THE END OF THE PERIOD OF TWO MONTHS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 35 OF THE TREATY .
THE IMPLIED DECISION OF REFUSAL WHICH IS TO BE INFERRED AT THE END OF THAT PERIOD FROM THE SILENCE OF THE HIGH AUTHORITY DOES NOT SUBSTANTIALLY CHANGE THE SITUATION RESULTING THEREFROM BUT ONLY GIVES IT POSITIVE EXPRESSION SO THAT THE PROCEEDINGS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 35 MAY BE INSTITUTED AGAINST IT .
THE LETTER OF 27 NOVEMBER 1954 STATING THE REASONS UPON WHICH THE DECISION WAS BASED HAS NOT ALTERED THAT SITUATION ANY FURTHER .
IN THESE CIRCUMSTANCES, IN THE OPINION OF THE ADVOCATE GENERAL, THAT LETTER HAS NOT DEPRIVED THE APPLICATION OF ITS SUBJECT-MATTER OR PREVENTED THE APPLICANT FROM PROCEEDING WITH ITS ACTION BASED ON ARTICLE 35 OF THE TREATY .
II - THE COMPATIBILITY OF THE CAISSE DE COMPENSATION WITH THE PROVISIONS OF THE TREATY
THE APPLICANT CONTESTS THE IMPLIED DECISION OF REFUSAL OF THE HIGH AUTHORITY CONCERNING THE CAISSE DE COMPENSATION ON THE GROUND OF INFRINGEMENT OF THE TREATY AND IN PARTICULAR OF ARTICLES 4 ( B ) AND 4 ( C ) THEREOF AND, IN THE ALTERNATIVE, ON THE GROUND OF INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS INASMUCH AS IT IS NOT BASED ON ANY EXPRESS REASON .
IT IS NECESSARY TO EXAMINE THE TWO SUBMISSIONS SEPARATELY .
C - SUBMISSION CONCERNING INFRINGEMENT OF THE TREATY
I - IS ARTICLE 4 DIRECTLY APPLICABLE OR ONLY " AS PROVIDED IN THIS TREATY "?
ARTICLE 4 DECLARES THAT THE PRACTICES LISTED IN PARAGRAPHS ( A ), ( B ), ( C ) AND ( D ) THEREOF ARE " INCOMPATIBLE WITH THE COMMON MARKET ... AND ACCORDINGLY ... ABOLISHED AND PROHIBITED ... AS PROVIDED IN THIS TREATY ".
CERTAIN OF THOSE PRACTICES ARE REFERRED TO IN OTHER PROVISIONS OF THE TREATY AND, IN PARTICULAR, ANY ACTION BY A MEMBER STATE WHICH IS LIABLE TO HAVE APPRECIABLE REPERCUSSIONS ON CONDITIONS OF COMPETITION IN THE COAL OR THE STEEL INDUSTRY IN ARTICLE 67 OF THE TREATY, SPECIAL CHARGES IN ARTICLE 67 ( 3 ) AND IN ARTICLE 11 AND THE THIRD PARAGRAPH OF ARTICLE 25 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS .
UNDER ARTICLE 84 OF THE TREATY, THE WORDS " THIS TREATY " MEAN THE PROVISIONS OF THE TREATY AND ITS ANNEXES, OF THE PROTOCOLS ANNEXED THERETO AND OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS .
FOR THAT REASON, THE PROVISIONS CONTAINED IN ALL THOSE INSTRUMENTS ARE EQUALLY BINDING AND THERE IS NO QUESTION OF CONTRASTING THEM WITH ONE ANOTHER BUT ONLY OF CONSIDERING THEM IN CONJUNCTION WITH ONE ANOTHER SO AS TO APPLY THEM APPROPRIATELY .
P . 195
THE COURT HAS ALREADY DECIDED IN ITS JUDGMENT IN CASE 1/54, UNDER II ( A ), THAT " ARTICLES 2, 3 AND 4 OF THE TREATY ... CONSTITUTE FUNDAMENTAL PROVISIONS ESTABLISHING THE COMMON MARKET AND THE COMMON OBJECTIVES OF THE COMMUNITY ... IN AUTHORIZING THE HIGH AUTHORITY TO DEFINE THE PROHIBITED PRACTICES, THE TREATY OBLIGES IT TO TAKE INTO ACCOUNT ALL THE AIMS LAID DOWN IN ARTICLES 2, 3 AND 4 ". FOR THE SAME REASONS, THE PROVISIONS OF ARTICLE 4 ARE SUFFICIENT OF THEMSELVES AND ARE DIRECTLY APPLICABLE WHEN THEY ARE NOT RESTATED IN ANY PART OF THE TREATY . WHERE, HOWEVER, THE PROVISIONS OF ARTICLE 4 ARE REFERRED TO, RESTATED OR ELABORATED ON IN OTHER PARTS OF THE TREATY, THE TEXTS RELATING TO ONE AND THE SAME PROVISION MUST BE CONSIDERED AS A WHOLE AND APPLIED SIMULTANEOUSLY .
II - IS THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION A SPECIAL CHARGE PROHIBITED BY ARTICLE 4 ( C ) OF THE TREATY?
ARTICLE 4 ( C ) PROHIBITS SPECIAL CHARGES IMPOSED BY STATES, IN ANY FORM WHATSOEVER . IT IS NECESSARY TO SEEK THE CRITERIA FOR RECOGNIZING A SPECIAL CHARGE, WHICH IS ABOLISHED AND PROHIBITED BY ARTICLE 4 ( C ) IN THE CIRCUMSTANCES REFERRED TO, IN PARTICULAR, IN ARTICLE 67 ( 3 ).
THE TREATY DOES NOT SPECIFY THE CHARACTERISTICS WHICH ESTABLISH THE SPECIAL NATURE OF A CHARGE BUT ARTICLE 67 ( 3 ) THEREOF GIVES AN EXAMPLE OF A CHARGE DESCRIBED AS SPECIAL BECAUSE IT IS IMPOSED ON THE COAL OR STEEL UNDERTAKINGS WITHIN THE JURISDICTION OF A STATE IN COMPARISON WITH THE OTHER INDUSTRIES IN THE SAME COUNTRY . THE SPECIAL NATURE OF THAT CHARGE IS EVIDENTLY BASED ON THE FACT THAT IT ONLY AFFECTS A PROPORTION OF THE INDUSTRIES WHICH, BECAUSE THEY ARE SUBJECT TO THE JURISDICTION OF THE SAME STATE, ARE COMPARABLY PLACED IN RELATION TO THAT STATE .
HOWEVER, THE FACT THAT THEY ARE COMPARABLY PLACED ONLY SUPPLIES A RELATIVE AND TRANSITORY CRITERION BECAUSE IT DEPENDS ON THE SCOPE OF ITS FIELD OF APPLICATION . A CHARGE WHICH IS GENERAL IN RELATION TO ALL THE UNDERTAKINGS OF A STATE MAY CEASE TO BE SO AND BECOME SPECIAL IF ALL THE UNDERTAKINGS OF THE COMMUNITY ARE CONSIDERED .
IN THOSE CIRCUMSTANCES IT IS NECESSARY, WHERE DOUBTS EXIST, TO REINFORCE THE CRITERION OF COMPARABILITY BY COMPARING THE RESULT TO WHICH IT LEADS WITH THAT INTENDED BY THE TREATY .
UNDER ARTICLE 2 OF THE TREATY THE OBJECTIVE OF THE COMMUNITY IS IN PARTICULAR PROGRESSIVELY TO BRING ABOUT CONDITIONS WHICH WILL OF THEMSELVES ENSURE THE MOST RATIONAL DISTRIBUTION OF PRODUCTION AT THE HIGHEST POSSIBLE LEVEL OF PRODUCTIVITY, WHILE SAFEGUARDING CONTINUITY OF EMPLOYMENT AND TAKING CARE NOT TO PROVOKE FUNDAMENTAL AND PERSISTENT DISTURBANCES IN THE ECONOMIES OF MEMBER STATES . ARTICLE 67 MAKES THIS REQUIREMENT MORE PRECISE BY AUTHORIZING THE HIGH AUTHORITY TO COMPENSATE FOR THE HARMFUL EFFECTS OF AN ACTION TAKEN BY MEMBER STATES WHEN SUCH ACTION IS LIABLE, BY SUBSTANTIALLY INCREASING DIFFERENCES IN PRODUCTION COSTS OTHERWISE THAN THROUGH CHANGES IN PRODUCTIVITY, TO PROVOKE A SERIOUS DISEQUILIBRIUM . IT FOLLOWS FROM THIS, BY REASONING TO THE CONVERSE, THAT THE TREATY AUTHORIZES ACTION TAKEN BY MEMBER STATES WHEN IT DOES NOT SUBSTANTIALLY INCREASE DIFFERENCES IN PRODUCTION COSTS OR INCREASES THEM THROUGH CHANGES IN PRODUCTIVITY .
P . 196
IN THE LIGHT OF THAT PROVISION, THE MOST RATIONAL DISTRIBUTION OF PRODUCTION IN ACCORDANCE WITH ARTICLE 2 IS THAT WHICH IS BASED IN PARTICULAR UPON THE COMPOSITION OF PRODUCTION COSTS RESULTING FROM OUTPUT, THAT IS, FROM THE PHYSICAL AND TECHNICAL CONDITIONS PARTICULAR TO THE VARIOUS PRODUCERS .
IN THE FIRST ANALYSIS, WITHOUT ITS BEING POSSIBLE TO CONSIDER THIS CRITERION BY ITSELF AS DECISIVE, A CHARGE MAY BE PRESUMED TO BE SPECIAL AND THEREFORE ABOLISHED AND PROHIBITED BY THE TREATY IF, BY AFFECTING UNEQUALLY THE PRODUCTION COSTS OF COMPARABLY PLACED PRODUCERS, IT INTRODUCES INTO THE DISTRIBUTION OF PRODUCTION DISTORTIONS WHICH DO NOT RESULT FROM CHANGES IN PRODUCTIVITY .
IT IS NECESSARY TO INQUIRE WHETHER, HAVING REGARD TO THE ABOVE-MENTIONED CRITERIA AND PRESUMPTIONS, THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION IN APPLICATION OF THE MINISTERIAL ORDER OF 8 MARCH 1954 IS A SPECIAL CHARGE WITHIN THE MEANING OF THE TREATY .
UNDER ARTICLE 1 OF THE ABOVE-MENTIONED ORDER, THE OFFICE COMMERCIAL DU RAVITAILLEMENT IS AUTHORIZED TO INCREASE THE PRICES OF SOLID FUELS FOR NON-DOMESTIC USE WHEREVER THEY COME FROM, WHATEVER THE QUALITY AND WHOEVER THE CONSUMER . THE CHARGE IMPOSED ON SOLID FUELS FOR NON-DOMESTIC USE MIGHT BE SPECIAL IF IT AFFECTED ONLY A PART OF THE UNDERTAKINGS SUBJECT TO THE JURISDICTION OF THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG AND IT WOULD THEN BE THE CHARGE WHICH THE PARTIES HAVE BOTH AGREED TO CALL THE CHARGE IMPOSED ON THE UNDERTAKINGS . IT IS POSSIBLE TO STATE THAT IT WOULD THEN INDEED AFFECT THE COMPOSITION OF PRODUCTION COSTS OTHERWISE THAN THROUGH CHANGES IN PRODUCTIVITY .
HOWEVER, THE INCREASE IMPOSED BY THE CAISSE DE COMPENSATION ON SOLID FUELS FOR NON-DOMESTIC USE REGARDLESS OF THE QUALITY OR THE CONSUMER AFFECTS ALL CONSUMERS OF SOLID FUELS FOR NON-DOMESTIC USE EQUALLY AND IS OBVIOUSLY NOT A SPECIAL CHARGE ACCORDING TO THIS CRITERION .
SINCE HARD COKE IS AFFECTED IN THE SAME WAY AS OTHER TYPES OF FUEL IT IS NOT THEREFORE SUBJECT TO A SPECIAL CHARGE IN SPITE OF THE SITUATION WHEREBY THE IRON AND STEEL UNDERTAKINGS ARE THE PRINCIPAL IF NOT THE ONLY CONSUMERS OF THAT PRODUCT .
THE CHARGE IMPOSED ON SOLID FUELS FOR NON-DOMESTIC USE IN THE GRAND DUCHY OF LUXEMBOURG MIGHT ALSO BE SPECIAL IF IT AFFECTED ONLY SOME OF THE SOLID FUELS FOR NON-DOMESTIC USE CONSUMED BY LUXEMBOURG INDUSTRY AND WOULD THEREFORE BE THE CHARGE WHICH THE PARTIES HAVE CALLED THE CHARGE IMPOSED ON PRODUCTS .
THE EFFECT OF SUCH A CHARGE WOULD CERTAINLY BE TO VARY THE COMPOSITION OF PRODUCTION COSTS RESULTING FROM OUTPUT FOR LUXEMBOURG CONSUMERS OF NON-DOMESTIC COAL AND THUS TO INTRODUCE DISTORTIONS IN THE DISTRIBUTION OF THEIR PURCHASES WITHIN THE COMMON MARKET .
HOWEVER, THE INCREASE IN PRICE IMPOSED BY THE CAISSE DE COMPENSATION IS LEVIED IN LUXEMBOURG ON ALL SOLID FUELS FOR NON-DOMESTIC USE REGARDLESS OF THEIR ORIGIN . AS SUCH IT AFFECTS EQUALLY ALL PRODUCERS OF THE COMMUNITY WHO SELL IN LUXEMBOURG COAL FOR NON-DOMESTIC USE, JUST AS IT WOULD AFFECT THE PRODUCERS OF THE GRAND DUCHY OF LUXEMBOURG IF COALMINES WERE TO BE DISCOVERED AND WORKED THERE .
P . 197
HAVING REGARD TO THIS CRITERION TOO THE CHARGE INTRODUCED BY THE MINISTERIAL ORDER OF 8 MARCH 1954 IS NOT A SPECIAL CHARGE .
IN THE PRESENT CASE IT DOES NOT SEEM THAT THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION MIGHT SHOW ITSELF TO BE OF A SPECIAL NATURE IN RELATION TO OTHER CRITERIA . IN THESE CIRCUMSTANCES, IT IS NOT A SPECIAL CHARGE WHICH IS ABOLISHED AND PROHIBITED BY ARTICLE 4 ( C ) OF THE TREATY .
III - IS THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION A MEASURE OR PRACTICE WHICH DISCRIMINATES AND WHICH IS ABOLISHED AND PROHIBITED BY ARTICLE 4 ( B ) OF THE TREATY?
THE TREATY ABOLISHES AND PROHIBITS MEASURES OR PRACTICES WHICH DISCRIMINATE BETWEEN PRODUCERS, BETWEEN PURCHASERS OR BETWEEN CONSUMERS .
THE CONCEPT OF DISCRIMINATION IS SPECIFIED IN ARTICLE 60 OF THE TREATY WHICH INDICATES THAT PRACTICES INVOLVING, WITHIN THE COMMON MARKET, THE APPLICATION OF DISSIMILAR CONDITIONS TO COMPARABLE TRANSACTIONS, ARE DISCRIMINATORY .
A CHARGE, EVEN IF IT IS NOT SPECIAL, MAY DIRECTLY OR INDIRECTLY INVOLVE EFFECTS WHICH DISCRIMINATE BETWEEN PRODUCERS, BETWEEN PURCHASERS OR BETWEEN CONSUMERS .
IT IS THEREFORE NECESSARY TO INQUIRE WHETHER THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION MUST BE CONSIDERED AS A MEASURE OR PRACTICE WHICH DISCRIMINATES AND WHICH IS ABOLISHED AND PROHIBITED BY THE TREATY .
THE APPLICANT REGARDS THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION AS A MEASURE WHICH DISCRIMINATES BETWEEN CONSUMERS OF HARD COKE AND INDUSTRIAL COAL WHO ARE ESTABLISHED IN LUXEMBOURG, ON THE ONE HAND, AND THOSE OF THE OTHER MEMBER STATES, ON THE OTHER .
IT IS TRUE THAT NORMALLY THE INCREASE IN PRICES OF SOLID FUELS FOR NON-DOMESTIC USE INTRODUCED BY THE MINISTERIAL ORDER OF 8 MARCH 1958 AFFECTS ONLY LUXEMBOURG CONSUMERS OF THAT FUEL AND NOT CONSUMERS OF THE OTHER MEMBER STATES .
IT THEREFORE CREATES A DIFFERENCE BETWEEN THE RESPECTIVE PRODUCTION COSTS OF THE TWO GROUPS OF CONSUMER .
THIS DIFFERENCE COULD ONLY BE REMOVED BY THE ABOLITION OF THAT INCREASE IN PRICES WITHIN THE GRAND DUCHY OF LUXEMBOURG OR THE INTRODUCTION OF AN ANALOGOUS INCREASE IN PRICE IN THE OTHER MEMBER STATES .
THE ABOLITION OF AND PROHIBITION ON SPECIAL CHARGES DOES NOT ADVERSELY AFFECT THE RIGHT OF THE MEMBER STATES TO IMPOSE GENERAL CHARGES OF THEIR NATIONALS .
IT IS IRRELEVANT WHETHER THE CHARGE IS IN THE FORM OF A DUTY OR TAX OR IN THE FORM OF AN EQUALIZATION LEVY HAVING THE SAME ECONOMIC RESULTS AND THE SAME FINANCIAL IMPACT .
SEVERAL PROVISIONS OF THE TREATY, IN PARTICULAR ARTICLE 62 THEREOF, AND ARTICLES 24 AND 25 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS PROVIDE FOR THE USE FOR CERTAIN PURPOSES OF NATIONAL EQUALIZATION SCHEMES OR ARRANGEMENTS OR OF EQUALIZATION LEVIES .
P . 198
ON THE OTHER HAND, IN THE OPINION OF THE ADVOCATE GENERAL, ALTHOUGH THE TREATY DOES NOT DEPRIVE THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG OF THE POWER TO IMPOSE A GENERAL CHARGE ON COAL CONSUMERS SUBJECT TO ITS JURISDICTION, IT IS EVIDENTLY IMPOSSIBLE FOR IT TO HAVE THAT CHARGE EXTENDED TO THE CONSUMERS OF OTHER MEMBER STATES .
THE TREATY NOWHERE PROVIDES FOR THE EQUALIZATION OF THE CHARGES ESTABLISHED BY THE MEMBER STATES IN THE FIELDS WHICH COME WITHIN THEIR RESPECTIVE JURISDICTIONS . ARTICLE 26 OF THE TREATY IS CONFIRMATION THAT THE TREATY HAS NOT TAKEN AWAY FROM THE MEMBER STATES THE RESPONSIBILITY FOR THEIR GENERAL ECONOMIC POLICY SINCE IT REQUIRES THE COUNCIL " TO HARMONIZE THE ACTION OF THE HIGH AUTHORITY AND THAT OF THE GOVERNMENTS WHICH ARE RESPONSIBLE FOR THE GENERAL ECONOMIC POLICIES OF THEIR COUNTRIES ".
IT FOLLOWS FROM ARTICLE 67 THAT NOT ALL ACTION BY A MEMBER STATE WHICH IS LIABLE TO HAVE APPRECIABLE REPERCUSSIONS ON CONDITIONS OF COMPETITION IN THE COAL OR THE STEEL INDUSTRY COMING WITHIN THE JURISDICTION OF THE COMMUNITY IS NECESSARILY ABOLISHED AND PROHIBITED BY THE TREATY OR THEREFORE NECESSARILY CONSTITUTES A MEASURE OR PRACTICE WHICH DISCRIMINATES AND IS PROHIBITED BY ARTICLE 4 ( B ) OF THE TREATY, BECAUSE IT EMPOWERS THE HIGH AUTHORITY, BY THE GRANT OF AN AID, TO COMPENSATE FOR, IN OTHER WORDS, TO TOLERATE AND IN PRACTICE TO AUTHORIZE IN CERTAIN CIRCUMSTANCES, THE HARMFUL EFFECTS OF THIS INTERFERENCE WITH COMPETITION .
MOREOVER, ARTICLE 67 PROVIDES IN DETAIL FOR THE INTERVENTION OF THE HIGH AUTHORITY ONLY WITH REGARD TO ACTIONS TAKEN BY THE MEMBER STATES WHICH HAVE " APPRECIABLE " REPERCUSSIONS ON CONDITIONS OF COMPETITION IN THE COAL OR THE STEEL INDUSTRY OR ARE CAPABLE, BY " SUBSTANTIALLY " INCREASING THE DIFFERENCES IN PRODUCTION COSTS OTHERWISE THAN THROUGH CHANGES IN PRODUCTIVITY, OF PROVOKING A " SERIOUS DISEQUILIBRIUM ".
IT FOLLOWS FROM ALL THESE REASONS THAT THE TREATY HAS RECOGNIZED THAT THE ABOLITION AND PROHIBITION OF DISCRIMINATORY MEASURES AND PRACTICES LAID DOWN BY ARTICLE 4 ( B ) COULD NOT HAVE THE EFFECT OF CREATING ABSOLUTE EQUALITY IN THE CONDITIONS OF COMPETITION OF THE COAL AND STEEL INDUSTRIES COMING WITHIN THE COMMUNITY NOR OF ELIMINATING ALL INTERFERENCE WITH THE CONDITIONS OF COMPETITION RESULTING FROM ACTION TAKEN BY MEMBER STATES SUBSTANTIALLY INCREASING DIFFERENCES IN PRODUCTION COSTS OTHERWISE THAN THROUGH CHANGES IN PRODUCTIVITY .
THE PERSISTENCE OF DIFFERENCES IN CONDITIONS OF COMPETITION IS A NECESSARY AND INEVITABLE CONSEQUENCE OF THE PARTIAL NATURE OF THE INTEGRATION BROUGHT ABOUT BY THE TREATY AND DOES NOT INVOLVE DISCRIMINATION FORBIDDEN BY THE TREATY .
ARTICLE 67 CONFIRMS THIS INTERPRETATION SINCE IT GIVES THE HIGH AUTHORITY POWER TO COMPENSATE FOR AND THUS TO CANCEL OUT THE EFFECTS OF INTERFERENCE WITH COMPETITION WHICH THE PROVISIONS OF THE TREATY HAVE NOT ELIMINATED AND THUS TO PREVENT THAT INTERFERENCE WITH COMPETITION FROM JEOPARDIZING, BECAUSE IT CONTINUES AFTER THE ESTABLISHMENT OF THE COMMON MARKET, THE TASK WITH WHICH THE COMMUNITY WAS ENTRUSTED IN ARTICLE 2 OF THE TREATY " IN HARMONY WITH THE GENERAL ECONOMY OF THE MEMBER STATES ".
IN THE LIGHT OF THE ABOVE-MENTIONED PRINCIPLES IT IS NECESSARY TO INQUIRE WHETHER THE INCREASE IN THE PRICE OF SOLID FUELS FOR NON-DOMESTIC USE RESULTING FROM THE MINISTERIAL ORDER OF 8 MARCH 1954 CONSTITUTES A MEASURE OR PRACTICE WHICH DISCRIMINATES BETWEEN CONSUMERS AND IS ABOLISHED AND PROHIBITED BY ARTICLE 4 ( B ) OF THE TREATY .
P . 199
THE FORM OF THE CHARGE IMPOSED ON CONSUMERS OF SOLID FUELS FOR NON-DOMESTIC USE MAKES IT IMPOSSIBLE TO JUDGE WHETHER IT IS OR IS NOT A DISCRIMINATORY MEASURE OR PRACTICE PROHIBITED BY ARTICLE 4 ( B ) OF THE TREATY .
IT IS NOT IMPORTANT UNDER THESE CIRCUMSTANCES TO KNOW WHETHER IT CONSTITUTES A DUTY, A TAX OR AN INCREASE IN PRICE .
THUS THE TREATY DOES NOT PROHIBIT THE INCREASE IN PRICE RESULTING FROM THE MINISTERIAL ORDER OF 8 MARCH 1954 AND ITS EFFECTS ARE NECESSARILY LIMITED TO THE TERRITORY OF THE GRAND DUCHY OF LUXEMBOURG .
AT THE VERY MOST THE HIGH AUTHORITY COULD, IF IT HAD CONSIDERED THAT THE ACTION OF THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG INVOLVED HARMFUL EFFECTS FOR THE COAL AND STEEL UNDERTAKINGS COMING WITHIN THE JURISDICTION OF THAT GOVERNMENT, HAVE AUTHORIZED IT TO GRANT AN APPROPRIATE AID .
THE HIGH AUTHORITY CONSIDERED THAT THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION " IS NOT CAPABLE OF DISTORTING COMPETITION EITHER FOR THE SALE OF COAL OR FOR THE SALE OF STEEL PRODUCTS, BECAUSE IT HAS LITTLE EFFECT ON THE COST PRICE OF STEEL PRODUCED BY THE LUXEMBOURG IRON AND STEEL INDUSTRY ".
THE APPLICANT CONTESTS THIS STATEMENT AND CONSIDERS THAT THE PRICE OF HARD COKE ACCOUNTS FOR ABOUT 30 PER CENT OF THE COST PRICE OF PRODUCTS OF THE IRON AND STEEL INDUSTRY AND THAT THEREFORE THE INCREASE IN ITS PRICE DISTORTS, BY ITS VERY SERIOUS EFFECT ON THE COST PRICE OF THOSE PRODUCTS, THE CONDITIONS OF COMPETITION BETWEEN THE LUXEMBOURG PRODUCERS AND THOSE OF THE OTHER COUNTRIES OF THE COMMUNITY .
SINCE THE APPLICANT DOES NOT ALLEGE IN THESE PROCEEDINGS THAT THE HIGH AUTHORITY HAS BEEN GUILTY OF A MISUSE OF POWERS OR HAS MANIFESTLY FAILED TO OBSERVE THE PROVISIONS OF THE TREATY OR ANY RULE OF LAW RELATING TO ITS APPLICATION, THE COURT MUST THEREFORE MERELY INQUIRE WHETHER, IN LAW, THE INCREASE IN PRICE IMPOSED ON SOLID FUELS FOR NON-DOMESTIC USE BY THE MINISTERIAL ORDER OF 8 MARCH 1954 INFRINGES THE TREATY OR ANY RULE OF LAW RELATING TO ITS APPLICATION .
THE ABOVE-MENTIONED CONSIDERATIONS SHOW THAT BY IMPOSING ON SOLID FUELS FOR NON-DOMESTIC USE THE INCREASE IN PRICE RESULTING FROM THE MINISTERIAL ORDER OF 8 MARCH 1954, THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG HAS ADOPTED A MEASURE COMING WITHIN GENERAL ECONOMIC POLICY FOR WHICH, UNDER ARTICLE 26 OF THE TREATY, IT IS STILL RESPONSIBLE AND THAT THAT MEASURE IS NOT A DISCRIMINATORY PRACTICE PROHIBITED AND ABOLISHED BY ARTICLE 4 ( B ) OF THE TREATY .
IV - SHOULD THE ABOLITION OF THE IMPORT MONOPOLY CONFERRED ON THE OFFICE COMMERCIAL DU RAVITAILLEMENT HAVE INVOLVED THE ABOLITION OF THE CAISSE DE COMPENSATION WHICH HAD BEEN ATTACHED TO IT?
THE MINISTERIAL ORDER OF 8 MARCH 1954 WHICH AUTHORIZED THE OFFICE COMMERCIAL DU RAVITAILLEMENT TO INCREASE THE PRICE OF SOLID FUELS FOR NON-DOMESTIC USE, STATES CLEARLY IN ITS PREAMBLE THAT THE CAISSE DE COMPENSATION IS ATTACHED TO THE OFFICE COMMERCIAL DU RAVITAILLEMENT .
P . 200
THE MINISTERIAL ORDER OF 8 MARCH 1954 CONFIRMING THE ACTIVITIES OF THE OFFICE COMMERCIAL DU RAVITAILLEMENT WITH REGARD TO THE IMPORTATION OF SOLID FUELS WAS REPEALED BY THE MINISTERIAL ORDER OF 30 SEPTEMBER 1955 .
THE APPLICANT CLAIMED IN ITS REPLY THAT THE ABOLITION OF THE IMPORT MONOPOLY OF THE OFFICE COMMERCIAL DU RAVITAILLEMENT SHOULD HAVE INVOLVED THE ABOLITION OF THE CAISSE DE COMPENSATION .
THE TWO PROBLEMS OF THE LEGALITY, WITH REGARD TO THE TREATY, OF THE CONTESTED EQUALIZATION SYSTEM, ON THE ONE HAND, AND OF THE MONOPOLY CONFERRED ON THE BODY TO WHICH THE MANAGEMENT OF THAT EQUALIZATION SYSTEM HAD BEEN ENTRUSTED, ON THE OTHER, ARE INDEPENDENT .
THEREFORE, THE DECISION OF THE HIGH AUTHORITY OF 7 JANUARY 1955 DECLARING THAT THE ORDER OF THE MINISTER FOR ECONOMIC AFFAIRS OF THE LUXEMBOURG GOVERNMENT ADOPTED ON 8 MARCH 1954 IN ORDER TO CONFIRM THE ACTIVITIES OF THE OFFICE COMMERCIAL DU RAVITAILLEMENT WAS INCOMPATIBLE WITH THE PROVISIONS OF THE TREATY CANNOT AFFECT THE COMPATIBILITY WITH THE PROVISIONS OF THE TREATY OF THE CAISSE DE COMPENSATION, THE ABOLITION OF WHICH THE HIGH AUTHORITY HAS REFUSED TO REQUEST .
V - DOES THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION INFRINGE THE DECISIONS OF THE HIGH AUTHORITY FIXING, IN APPLICATION OF ARTICLE 63 ( 2 ) ( A ) OF THE TREATY, MAXIMUM PRICES FOR HARD COKE AND INDUSTRIAL COAL FROM CERTAIN COALFIELDS?
THE APPLICANT HAS ALLEGED THAT THE INCREASE IN PRICE IMPOSED BY THE CAISSE DE COMPENSATION IS CONTRARY TO DECISIONS NOS 15/54, 19/54 AND 20/54 OF THE HIGH AUTHORITY ON THE ESTABLISHMENT OF PRICE LISTS APPLICABLE TO COAL FROM CERTAIN COALFIELDS .
THE MAXIMUM PRICES ARE IMPOSED ON COAL-PRODUCING UNDERTAKINGS AND THE FIXING OF THE MAXIMUM PRICES DOES NOT PREVENT THE PRODUCTS FROM BEING SUBJECT TO DUTIES, TAXES OR ANY OTHER GENERAL CHARGE AT THE TIME OF CONSUMPTION OR AT ANY STAGE WHATEVER OF DISTRIBUTION .
IN THOSE CIRCUMSTANCES, THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION DOES NOT INFRINGE THE DECISIONS OF THE HIGH AUTHORITY FIXING MAXIMUM PRICES .
VI - IS THE CAISSE DE COMPENSATION INCOMPATIBLE WITH THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET?
THE APPLICANT REGARDS THE EXISTENCE AND THE OPERATION OF THE CAISSE DE COMPENSATION AS AN INFRINGEMENT OF THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET .
IN SUPPORT OF ITS OPINION IT SEES THE EQUALIZATION LEVY AS A SYSTEM OF DOUBLE PRICES WHICH IS UNFAVOURABLE TO LUXEMBOURG CONSUMERS OF SOLID FUEL FOR NON-DOMESTIC USE IN COMPARISON WITH OTHER CONSUMERS OF THE EUROPEAN COAL AND STEEL COMMUNITY .
P . 201
IT STATES THAT THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET MUST ENSURE THAT ALL CONSUMERS OF THE COMMON MARKET WHO BUY THE SAME PRODUCT OF THE COMMUNITY FROM THE SAME PRODUCER BUY IT AT THE SAME EX WORKS PRICE .
CONTRARY TO THE OPINION OF THE APPLICANT, THE INCREASE IN PRICE RESULTING FROM THE ORDER OF 8 MARCH 1954 DOES NOT AFFECT THE EX WORKS PRICE OF THE SOLID FUELS PURCHASED BY LUXEMBOURG CONSUMERS BUT ONLY THE PRICE AT WHICH THE SOLID FUELS ARE SOLD ON ARRIVAL TO CONSUMERS SUBJECT TO THE JURISDICTION OF THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG .
IT IS UNIMPORTANT THAT THE LEVY IMPOSED BY THE CAISSE DE COMPENSATION TAKES THE FORM OF A PRICE INCREASE SINCE IT CONSTITUTES, BY ITS NATURE AND EFFECTS, A LEVY ON THE VALUE OF THE SOLID FUELS CONSUMED IN THE GRAND DUCHY OF LUXEMBOURG FOR NON-DOMESTIC PURPOSES .
ALTHOUGH IT CREATES A DOUBLE PRICE FOR SOLID FUELS CONSUMED WITHIN THE GRAND DUCHY, THIS IS ONLY BECAUSE THE PRICE CHARGED TO CONSUMERS OF NON-DOMESTIC COAL DIFFERS FROM THAT PAID BY CONSUMERS OF DOMESTIC COAL .
THIS DOUBLE PRICE, BY MAKING LUXEMBOURG CONSUMERS OF SOLID FUELS FOR NON-DOMESTIC USE BEAR THE FINANCING OF THE CAISSE DE COMPENSATION EXCLUSIVELY, DOES NOT CONSTITUTE, AS THE APPLICANT ALLEGES, A FURTHER INFRINGEMENT OF THE PRINCIPLES OF THE COMMON MARKET SINCE THE TWO GROUPS OF CONSUMERS ARE NOT COMPARABLY PLACED .
THE OBJECT OF THE PRICE INCREASE INTRODUCED BY THE MINISTERIAL ORDER OF 8 MARCH 1954 IS SPECIFIED IN THE RECITALS OF THE PREAMBLE THERETO .
ACCORDING TO THOSE RECITALS THE PURPOSE OF THE SYSTEM FOR THE EQUALIZATION OF THE PRICE OF FUEL FOR INDUSTRIAL USE AND THE PRICE OF FUEL FOR DOMESTIC USE IS ESSENTIALLY TO MAINTAIN THE OFFICIAL PRICES IN THE DOMESTIC SECTOR, PREVENT DEPRECIATION IN WORKERS' PURCHASING POWER AND MAINTAIN THE LEVEL OF WAGES AND SALARIES LINKED TO A SLIDING SCALE .
NONE OF THOSE OBJECTIVES SHOWS AN INTENTION TO DISTORT COMPETITION OR MAY BE CONSIDERED CONTRARY TO THE FUNDAMENTAL PRINCIPLES OF THE COMMON MARKET AS SET OUT IN PARTICULAR IN ARTICLE 2 OF THE TREATY .
THE REPLIES OF THE HIGH AUTHORITY TO THE WRITTEN QUESTIONS ADDRESSED TO IT DURING PREPARATORY INQUIRY SHOW THAT THERE IS NO DISPARITY BETWEEN THE PRINCIPLES UPON WHICH ITS DECISIONS CONCERNING VARIOUS SYSTEMS OF EQUALIZATION WERE BASED AND THOSE WHICH DETERMINED ITS ATTITUDE TO THE CAISSE DE COMPENSATION OF THE GRAND DUCHY OF LUXEMBOURG .
FOR ALL THESE REASONS, THE PRICE INCREASE RESULTING FROM THE MINISTERIAL ORDER OF 8 MARCH 1954 IS NOT INCOMPATIBLE WITH THE BASIC PRINCIPLES OF THE COMMON MARKET .
D - THE SUBMISSIONS CONCERNING THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS
THE APPLICANT CLAIMS IN THE ALTERNATIVE THAT THE IMPLIED DECISION OF REFUSAL IS VITIATED BY NULLITY FOR INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS INASMUCH AS THE GROUNDS FOR IT ARE NOT STATED .
P . 202
ARTICLE 88 OF THE TREATY PROVIDES THAT " IF THE HIGH AUTHORITY CONSIDERS THAT A STATE HAS FAILED TO FULFIL AN OBLIGATION UNDER THIS TREATY, IT SHALL RECORD THIS FAILURE IN A REASONED DECISION ".
CONSEQUENTLY, THE DUTY TO GIVE A STATEMENT OF THE REASONS UPON WHICH IT IS BASED APPLIES TO THE DECISION WHICH, IN THE APPLICANT'S VIEW, THE HIGH AUTHORITY WAS REQUIRED TO TAKE WITH REGARD TO THE GOVERNMENT OF THE GRAND DUCHY OF LUXEMBOURG .
THERE IS NOTHING IN THE WORDING OF ARTICLE 88 TO JUSTIFY THE VIEW THAT SUCH A DUTY EXISTS WITH REGARD TO A REFUSAL TO TAKE A DECISION UNDER THAT ARTICLE .
CONSEQUENTLY, THE LACK OF A STATEMENT OF REASONS UPON WHICH THE IMPLIED DECISION OF REFUSAL WAS BASED DOES NOT CONSTITUTE AN INFRINGEMENT OF THE PROVISIONS OF ARTICLE 88 OF THE TREATY .
E - COSTS
UNDER ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS, BUT THE COURT MAY NEVERTHELESS ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS .
APPLICATION 7/54 RELATES TO TWO DISTINCT HEADS OF CLAIM : THE OFFICE COMMERCIAL DU RAVITAILLEMENT AND THE CAISSE DE COMPENSATION FOR SOLID FUELS .
AS A RESULT OF THE DECISION OF THE HIGH AUTHORITY OF 7 JANUARY 1955 CONCERNING THE OFFICE COMMERCIAL DU RAVITAILLEMENT, THE FIRST HEAD OF CLAIM IN APPLICATION 7/54 HAS BECOME PURPOSELESS .
THE PARTIES HAVE AGREED THAT JUDGMENT SHOULD NOT BE DELIVERED ON THAT HEAD OF THE APPLICATION .
HOWEVER, THE DECISION TAKEN ON 7 JANUARY 1955 BY THE HIGH AUTHORITY COMPLIES WITH THE REQUEST OF THE APPLICANT FOR A DECLARATION THAT THE OFFICE COMMERCIAL DU RAVITAILLEMENT IS INCOMPATIBLE WITH THE TREATY .
IF THAT DECISION HAD BEEN TAKEN WITHIN THE PERIOD OF TWO MONTHS WHICH STARTED TO RUN WITH THE LETTER OF 14 JULY 1954 RAISING THE MATTER WITH THE HIGH AUTHORITY, IT WOULD HAVE MET THE FIRST HEAD OF THE APPLICANT'S CLAIM . THEREFORE, IN SPITE OF THE FACT THAT THAT APPLICATION DID NOT PROCEED TO JUDGMENT, IT MAY BE CONSIDERED THAT THE FIRST HEAD OF THE APPLICANT'S CLAIM WAS WELL FOUNDED .
THE SECOND HEAD OF CLAIM IN APPLICATION 7/54, WHICH SEEKS THE ANNULMENT OF THE IMPLIED DECISION OF REFUSAL OF THE HIGH AUTHORITY, IS DISMISSED .
THE APPLICANT AND THE DEFENDANT MAY BE CONSIDERED AS HAVING EACH SUCCEEDED ON ONE OF THE HEADS OF CLAIM IN THEIR CONCLUSIONS .
THE APPLICATION TO INTERVENE RELATES ONLY TO THE SECOND HEAD OF CLAIM IN THE APPLICATION ON WHICH THE APPLICANT HAS FAILED .
IN THESE CIRCUMSTANCES, IT IS NECESSARY TO ORDER THAT EACH OF THE MAIN PARTIES MUST BEAR ITS OWN COSTS AND THAT THE APPLICANT MUST BEAR THE COSTS OF THE INTERVENER .
P . 203
PART TWO
APPLICATION 9/54
APPLICATION 9/54 WAS LODGED ONLY IN AS FAR AS WAS NECESSARY .
IT SPECIFIES THAT " THE RIGHT TO INSTITUTE PROCEEDINGS HAS BEEN ACQUIRED AND THEREFORE THE WRITTEN REPLY STATING THE REASONS UPON WHICH THE DECISION WAS BASED CANNOT REMOVE OR ALTER THAT RIGHT OR, ONCE THE APPLICATION HAS BEEN LODGED, PLACE THE APPLICANTS UNDER A DUTY TO LODGE A FRESH APPLICATION ".
" SUPPOSING, HOWEVER, THAT AN INTERESTED PARTY SHOULD MAINTAIN THE CONTRARY, IN OTHER WORDS, THAT THE ABOVE-MENTIONED LETTER OF 27 NOVEMBER 1954 CONSTITUTES AN EXPRESS DECISION OF REFUSAL WHICH BREAKS THE SILENCE OF THE HIGH AUTHORITY, THE APPLICANTS HAVE AN INTEREST, IN ORDER TO AVOID A FRUITLESS ARGUMENT ON QUESTIONS OF ADMISSIBILITY, IN LODGING BY THIS DOCUMENT, AN APPLICATION IN SO FAR AS IS NECESSARY AGAINST THE REFUSAL OF THE HIGH AUTHORITY OF THEIR REQUEST ".
THE COURT HAS HELD THAT APPLICATION 7/54 IS ADMISSIBLE .
FOR THAT REASON, APPLICATION 9/54, WHICH WAS LODGED MERELY IN SO FAR AS WAS NECESSARY, IS PURPOSELESS .
THERE IS THEREFORE NO NEED TO GIVE JUDGMENT .
THERE IS NO NEED TO GIVE JUDGMENT ON APPLICATION 9/54 .
HOWEVER, THE APPLICANT WAS JUSTIFIED IN CONSIDERING IT NECESSARY TO LODGE THAT APPLICATION SINCE THE HIGH AUTHORITY, WITHOUT FORMALLY DECLARING THAT THE LETTER OF 27 NOVEMBER 1954 MADE APPLICATION 7/54 INADMISSIBLE BY TRANSFORMING THE IMPLIED DECISION INTO AN EXPRESS DECISION, PUT FORWARD AND DEVELOPED THIS OPINION IN ITS DEFENCE .
CONSEQUENTLY, ALL THE PARTIES HAVE FAILED TO RECOGNIZE THE ADMISSIBILITY OF APPLICATION 7/54 IN THE SAME WAY .
FOR THAT REASON, THE PARTIES, INCLUDING THE INTERVENER, MUST BE ORDERED TO BEAR THEIR OWN COSTS RELATING TO APPLICATION 9/54 .
THE COURT
HEREBY :
I . IN CASE 7/54
( A ) DECLARES THAT THERE IS NO NEED TO PROCEED TO JUDGMENT ON THE FIRST HEAD CONCERNING THE OFFICE COMMERCIAL DU RAVITAILLEMENT;
( B ) DISMISSES THE APPLICATION ON THE SECOND HEAD CONCERNING THE CAISSE DE COMPENSATION ATTACHED TO THE OFFICE COMMERCIAL DU RAVITAILLEMENT;
ORDERS THE MAIN PARTIES TO BEAR THEIR OWN COSTS;
ORDERS THE APPLICANT TO BEAR THE COSTS OF THE INTERVENER .
II . DECLARES THAT THERE IS NO NEED TO PROCEED TO JUDGMENT IN CASE 9/54;
ORDERS THE PARTIES, INCLUDING THE INTERVENER, TO BEAR THEIR OWN COSTS .
