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Judgment of the Court of 5 December 1963. - Lemmerz-Werke GmbH and others v High Authority of the European Coal and Steel Community. - Joined cases 53 and 54-63. European Court reports French edition Page 00489 Dutch edition Page 00511 German edition Page 00519 Italian edition Page 00483 English special edition Page 00239 Danish special edition Page 00441 Greek special edition Page 01003 Portuguese special edition Page 00345

Summary Parties Subject of the case Grounds Decision on costs Operative part

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1 . MEASURES ADOPTED BY INSTITUTIONS OF THE COMMUNITY - DECISIONS OF THE HIGH AUTHORITY - CONSTITUENT ELEMENTS

( ECSC TREATY, ARTICLE 14 )

2 . MEASURES ADOPTED BY INSTITUTIONS OF THE COMMUNITY - DECISIONS OF THE HIGH AUTHORITY - INTERPRETATION - SIGNIFICANCE OF STATEMENTS BY OFFICIALS

3 . COSTS - NO FORMAL APPLICATION - CONSEQUENCES

( RULES OF PROCEDURE, ARTICLE 69 ( 2 ))

1 . SEE SUMMARY IN JOINED CASES 23, 24 AND 52/63, PARAGRAPH 1 .

( A ) A MEASURE WHICH SATISFIES THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY RETAINS THE CHARACTER OF A DECISION EVEN THOUGH IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM LAID DOWN BY THE HIGH AUTHORITY FOR THE IDENTIFICATION OF ITS DECISIONS .

( B ) THE DECISION MUST APPEAR AS A MEASURE ADOPTED BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS, CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE LATTER GIVES ITS FINAL RULING IN A FORM WHICH ENABLES THE MEASURE IN QUESTION TO BE IDENTIFIED AS A DECISION .

ANY MEASURE, THEREFORE, WHICH, IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND WHICH IS NOT AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .

*/ EN.663J0023 /*.

2 . STATEMENTS ORIGINATING FROM OFFICIALS OF THE HIGH AUTHORITY CANNOT HAVE ANY INFLUENCE ON THE INTERPRETATION OF DECISIONS TAKEN BY IT, AT LEAST WHEN THAT INTERPRETATION, LEAVING ASIDE THE STATEMENTS MADE, LEADS TO AN UNEQUIVOCAL CONCLUSION .

3 . SEE SUMMARY IN JOINED CASES 23, 24 AND 52/63, PARAGRAPH 2 .

IN THE ABSENCE OF ANY FORMAL APPLICATION FOR THE UNSUCCESSFUL PARTY TO BE ORDERED TO PAY THE COSTS, THE LATTER CANNOT BE MADE TO PAY THE COSTS INCURRED BY THE SUCCESSFUL PARTY .

*/ EN.663J0023 /*.

IN JOINED CASES

( 1 ) 53/63 LEMMERZ-WERKE GMBH, KONIGSWINTER ( RHEINLAND ), REPRESENTED BY ITS MANAGER, PAUL LEMMERZ,

( 2 ) 54/63 ( A ) GUSSTAHLWERK CARL BONNHOFF KOMMANDITGESELLSCHAFT, WETTER ( RUHR ), REPRESENTED BY ITS PARTNERS, HERMANN CARL BONNHOFF, HORST PEGAN AND WALDEMAR BONNHOFF,

( B ) EDELSTAHLWERKE ED . DORRENBERG SOHNE KOMMANDITGESELLSCHAFT, RUNDEROTH ( RHEINLAND ), REPRESENTED BY ITS PARTNER OSKAR DORRENBERG,

( C ) STAHLWERK MANNHEIM-AG MANNHEIM-RHEINAU, REPRESENTED BY ITS DIRECTORS, WERNER ESSER AND LUDWIG SCHREINER,

ASSISTED BY DR H . WIRTZ, MR HENGELER, DR KURTH AND DR B . WIRTZ, ADVOCATES OF THE DUSSELDORF BAR, AND IN THE ORAL PROCEEDINGS BY A . HEUSCH, ADVOCATE OF THE DUSSELDORF BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MR JEHLE, 2 RUE DU FORT-ELISABETH, PLAINTIFFS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER DR HEINRICH MATTHIES, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 3 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF :

1 . CERTAIN PARTS OF DECISION N . 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 ( OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 6 APRIL 1963 PP . 1901 ET SEQ .);

2 . CERTAIN PARTS OF THE REQUEST MADE TO THE APPLICANTS ON 8 APRIL 1963 FOR PAYMENT OF CONTRIBUTIONS TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME;

IT IS ESTABLISHED THAT ON 8 APRIL 1963 THE RELEVANT DEPARTMENTS OF THE HIGH AUTHORITY SENT TO THE APPLICANT UNDERTAKINGS REGISTERED LETTERS WITH FORMS OF ACKNOWLEDGEMENT OF RECEIPT . THE LETTERS STATED THAT THE SAID UNDERTAKINGS WERE REQUESTED TO MAKE, BY 31 MAY 1963 AT THE LATEST, PAYMENTS BY WAY OF CONTRIBUTION TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME .

THESE LETTERS RELIED UPON DECISION N . 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 AND THE SUMS THEREIN INDICATED DID NOT TAKE INTO CONSIDERATION THE EXEMPTIONS, WHICH, ACCORDING TO THE APPLICANTS, HAD PREVIOUSLY BEEN GRANTED TO THEM BY THE CPFI . IN VIEW OF THIS, THE APPLICANTS CONSIDERED THAT DECISION N . 7/63 AMOUNTED TO A WITHDRAWAL OF THESE EXEMPTIONS, AND REQUESTED IN THE FIRST HEAD OF THEIR APPLICATIONS THAT THE DECISION SHOULD TO THIS EXTENT BE ANNULLED .

IN ADDITION, FEARING THAT THE CONTENT OF THESE LETTERS WOULD BE REGARDED AS A DECISION WITHIN THE MEANING OF THE ECSC TREATY, THE APPLICANTS, IN THE SECOND HEAD OF THEIR RESPECTIVE APPLICATIONS, REQUESTED THE ANNULMENT OF THIS ALLEGED DECISION .

THE HIGH AUTHORITY DISPUTES THE ADMISSIBILITY OF THESE APPLICATIONS .

ADMISSIBILITY OF THE APPLICATION

THE FIRST HEAD OF THE APPLICATIONS

THE OBJECTION OF INADMISSIBILITY IS WELL - FOUNDED .

IN FACT THE CONCLUSIONS PUT FORWARD BY THE APPLICANTS ARE DEVOID BOTH OF PURPOSE AND OF LEGAL INTEREST, AS DECISION N . 7/63 DID NOT WITHDRAW ANY EXEMPTIONS WHICH HAD PREVIOUSLY BEEN GRANTED TO CERTAIN UNDERTAKINGS .

IT FOLLOWS BOTH FROM THE HEADINGS OF SECTIONS II AND III OF ITS STATEMENT OF REASONS, AND FROM THE WORDING OF THE OPERATIVE PART, THAT THE DECISION REFERS ONLY TO THE REVISION OF EQUALIZATION PRICES AND OF CONTRIBUTION RATES AND NOT TO RESOLUTIONS TAKEN HAVING REGARD TO THE PARTICULAR POSITION OF INDIVIDUAL UNDERTAKINGS OR GROUPS OF UNDERTAKINGS .

THESE FINDINGS WOULD REMAIN UNALTERED EVEN SUPPOSING THAT AN OFFICIAL OF THE HIGH AUTHORITY HAD MADE THE STATEMENTS ATTRIBUTED TO HIM BY THE APPLICANTS .

IN FACT, ANY STATEMENTS ORIGINATING FROM OFFICIALS OF THE HIGH AUTHORITY CANNOT HAVE ANY INFLUENCE ON THE INTERPRETATION OF DECISIONS TAKEN BY IT, AT LEAST WHEN THAT INTERPRETATION, LEAVING ASIDE THE STATEMENTS MADE, LEADS TO AN UNEQUIVOCAL CONCLUSION .

IT FOLLOWS FROM THESE CONSIDERATIONS THAT DECISION N . 7/63 IS NOT OF INDIVIDUAL CONCERN TO THE APPLICANTS .

THEREFORE, THE CONCLUSIONS PUT FORWARD UNDER THE FIRST HEAD OF THE APPLICATION ARE INADMISSIBLE .

THE SECOND HEAD OF THE APPLICATIONS

IN SUPPORT OF ITS OBJECTION ON THE GROUND OF INADMISSIBILITY THE HIGH AUTHORITY POINTS OUT THAT THE LETTER OF 8 APRIL 1963 DOES NOT CONSTITUTE A DECISION AND CANNOT THEREFORE BE MADE THE SUBJECT OF AN APPLICATION . THE APPLICANT UNDERTAKINGS HAVE LEFT THIS MATTER TO THE DISCRETION OF THE COURT . IT IS APPROPRIATE TO INQUIRE WHETHER THE LETTER CONSTITUTES A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY . ACCORDING TO THE PROVISIONS OF THIS ARTICLE, THE HIGH AUTHORITY 'SHALL...TAKE' DECISIONS WHICH 'SHALL BE BINDING IN THEIR ENTIRETY '.

THE HIGH AUTHORITY IN ITS DECISION N . 22/60 HAS CONSIDERED IT NECESSARY TO ESTABLISH 'AS A MATTER OF OBLIGATION' THE FORM OF THESE DECISIONS AND HAS LAID DOWN THE CONDITIONS WITH WHICH IT UNDERTAKES TO MAKE SUCH MEASURES COMPLY .

IN A SUBSEQUENT 'COMMUNICATION', ( OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES, P . 1250/60, THE HIGH AUTHORITY HAS PRESCRIBED THAT IF THESE FORMALITIES ARE NOT CARRIED OUT, THEN THE PARTIES CONCERNED MAY 'INFER THAT THE MEASURES IN QUESTION DO NOT ENTAIL ANY LEGAL OBLIGATIONS '.

ALTHOUGH IT IS DESIRABLE TO ENSURE OBSERVANCE OF THE REQUIREMENTS PRESCRIBED IN THE APPROPRIATE MANNER BY THE HIGH AUTHORITY, WHICH ENABLE GOVERNMENTS, INSTITUTIONS AND UNDERTAKINGS TO IDENTIFY DECISIONS FROM THEIR ACTUAL FORM, IT DOES NOT FOLLOW THAT A MEASURE SHOULD NOT BE CONSIDERED A DECISION, MERELY BECAUSE IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM IF THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY ARE OTHERWISE SATISFIED .

ACCORDING TO ARTICLE 14, DECISIONS SHALL BE TAKEN BY THE HIGH AUTHORITY, THAT IS TO SAY BY ITS MEMBERS SITTING AS A BODY . AS SUCH DECISIONS ARE 'BINDING IN THEIR ENTIRETY' HOWEVER, THEY MUST SHOW THAT THEY ARE INTENDED TO HAVE LEGAL EFFECTS UPON THOSE TO WHOM THEY ARE ADDRESSED .

IT FOLLOWS FROM THE NATURAL MEANING OF THE WORD THAT A DECISION MARKS THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, AND IS THUS THE DEFINITIVE EXPRESSION OF ITS INTENTIONS .

FINALLY, IT IS NECESSARY FOR THE LEGAL PROTECTION OF ALL THOSE AFFECTED THAT THEY SHOULD BE ABLE TO IDENTIFY BY ITS VERY FORM A DECISION WHICH INVOLVES SUCH SERIOUS LEGAL CONSEQUENCES, IN PARTICULAR A COMPULSORY TIME-LIMIT FOR EXERCISING THE RIGHT OF INSTITUTING PROCEEDINGS AGAINST IT . IN PARTICULAR, FOR A MEASURE TO AMOUNT TO A DECISION, THOSE TO WHOM IT IS ADDRESSED MUST BE ENABLED CLEARLY TO RECOGNIZE THAT THEY ARE DEALING WITH SUCH A MEASURE .

IT FOLLOWS THEREFORE FROM ALL THESE CONSIDERATIONS THAT A DECISION MUST APPEAR AS A MEASURE TAKEN BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS AND CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE HIGH AUTHORITY GIVES ITS FINAL RULING IN A FORM FROM WHICH ITS NATURE CAN BE IDENTIFIED .

ANY MEASURE, THEREFORE, WHICH IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .

IN THE PRESENT CASE, IN SPITE OF THE APPARENTLY PEREMPTORY NATURE OF THE LETTERS IN DISPUTE, THEY CANNOT BE CONSIDERED AS DECISIONS WITHIN THE MEANING OF THE TREATY . IN FACT, THERE IS NOTHING TO INDICATE THAT THE HIGH AUTHORITY, SITTING AS A BODY, DISCUSSED AND RESOLVED UPON THEM . THE APPLICANTS WERE MERELY 'REQUESTED' TO MAKE PAYMENT, AND, ACCORDING TO THE 'EXPLANATORY NOTE' ENCLOSED WITH THE CONTESTED LETTERS, TO SUBMIT ANY OBSERVATIONS THEY MIGHT HAVE .

CONSEQUENTLY THE CONCLUSIONS PUT FORWARD UNDER THE SECOND HEAD OF THE APPLICATIONS ARE ALSO INADMISSIBLE .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE CONCLUSIONS OF THE SUCCESSFUL PARTY . SINCE THE DEFENDANT HAS NOT MADE ANY FORMAL SUBMISSIONS ON THIS MATTER, THE APPLICANTS CANNOT BE ORDERED TO PAY THE COSTS INCURRED BY THE DEFENDANT NOTWITHSTANDING THAT THEY HAVE FAILED IN THEIR APPLICATIONS . THE DEFENDANT MUST THEREFORE BEAR ITS OWN COSTS .

UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE MOREOVER, IT IS OPEN TO THE COURT TO ORDER EVEN A SUCCESSFUL PARTY TO PAY IN WHOLE OR IN PART THE COSTS INCURRED BY THE OPPOSITE PARTY . THE PEREMPTORY TONE OF THE LETTERS INVOLVED IN THE PRESENT PROCEEDINGS, ACCENTUATED BY THE MODE OF DESPATCH, AND THE SETTING OF A TIME-LIMIT FOR PAYMENT, WERE CAPABLE IN THEMSELVES OF CREATING UNCERTAINTY IN THE APPLICANTS' MINDS ABOUT THE NATURE OF THE SAID LETTERS .

THE HIGH AUTHORITY, HAVING BY ITS OWN CONDUCT INDUCED THE APPLICANTS TO INSTITUTE PROCEEDINGS IN ORDER TO SAFEGUARD THEIR RIGHTS, MUST BEAR THE GREATER PART OF THE COSTS . IT IS APPROPRIATE THAT THE HIGH AUTHORITY SHOULD BEAR THREE-QUARTERS OF THE APPLICANTS' COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS AS BEING INADMISSIBLE;

2 . ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO BEAR ITS OWN COSTS AND THREE-QUARTERS OF THE COSTS OF THE APPLICANTS AND ORDERS THE APPLICANTS TO BEAR ONE-QUARTER OF THEIR OWN COSTS .