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Judgment of the Court of 11 February 1955. - Associazione Industrie Siderurgiche Italiane (ASSIDER) v High Authority of the European Coal and Steel Community. - Case 3-54. European Court reports French edition Page 00123 Dutch edition Page 00133 German edition Page 00133 Italian edition Page 00127 English special edition Page 00063 Danish special edition Page 00009 Greek special edition Page 00009 Portuguese special edition Page 00011

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

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APPLICATION FOR ANNULMENT - GENERAL DECISION OF THE HIGH AUTHORITY - APPLICANT UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS - ADMISSIBILITY

( TREATY, ART . 33 )

FOR AN APPLICATION BY AN UNDERTAKING OR BY AN ASSOCIATION OF UNDERTAKINGS AGAINST A GENERAL DECISION OF THE HIGH AUTHORITY TO BE ADMISSIBLE IT IS ENOUGH FOR THE APPLICANT FORMALLY TO ALLEGE THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING IT . THE ALLEGATION MUST INDICATE THE REASONS FOR WHICH THE APPLICANT CONSIDERS THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING IT . IF THE APPLICANT IS AN ASSOCIATION OF UNDERTAKINGS, IT IS SUFFICIENT FOR IT TO CLAIM THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING ONE OR MORE UNDERTAKINGS WHICH ARE MEMBERS OF THE ASSOCIATION . THE TREATY DOES NOT IMPOSE ANY FURTHER CONDITION FOR AN APPLICATION TO BE ADMISSIBLE SUCH AS, FOR EXAMPLE, PROOF THAT A MISUSE OF POWERS AFFECTING THE APPLICANT HAS ACTUALLY BEEN COMMITTED, SINCE THIS LATTER QUESTION GOES TO THE SUBSTANCE .

IN CASE 3/54

ASSOCIAZIONE INDUSTRIE SIDERURGICHE ITALIANE ( ASSIDER ), WHOSE REGISTERED OFFICE IS IN MILAN, REPRESENTED BY ITS PRESIDENT, DANDOLO FRANCESCO REBUA, ASSISTED BY CESARE GRASSETTI, PROFESSOR AT THE UNIVERSITY OF MILAN, OF THE MILAN BAR AND THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG, CARE OF GUIDO RIETTI, 15, BOULEVARD ROOSEVELT, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, NICOLA CATALANO, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT AND THE COUR DE CASSATION, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2, PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF DECISIONS NOS 1/54, 2/54 AND 3/54 OF THE HIGH AUTHORITY OF 7 JANUARY 1954,

P . 69

THE COURT'S JUDGMENT IN THE PRESENT CASE HAS TAKEN THE FOLLOWING POINTS OF THE LAW INTO ACCOUNT :

( A ) THE COURT FINDS THAT BY VIRTUE OF ARTICLE 2 OF ITS ARTICLES OF ASSOCIATION THE APPLICANT IS AN ASSOCIATION OF UNDERTAKINGS FULFILLING THE CONDITIONS REQUIRED BY THE SECOND PARAGRAPH OF ARTICLE 33 AND BY ARTICLE 48 OF THE TREATY .

( B ) THE CONTESTED DECISIONS ARE GENERAL DECISIONS . THE COURT REJECTS THE DEFENDANT'S ARGUMENT THAT THE ADMISSIBILITY OF PROCEEDINGS BROUGHT BY UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS AGAINST GENERAL DECISIONS IS SUBJECT TO PROOF OF THE EXISTENCE OF A MISUSE OF POWERS AFFECTING THEM . UNDER THE PROVISIONS OF THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY, UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS " MAY ... INSTITUTE PROCEEDINGS ... AGAINST GENERAL DECISIONS ... WHICH THEY CONSIDER TO INVOLVE A MISUSE OF POWERS AFFECTING THEM ". FROM THIS WORDING, WHICH IS PERFECTLY CLEAR, FOR AN APPLICATION TO BE ADMISSIBLE IT IS ENOUGH FOR THE APPLICANT FORMALLY TO ALLEGE THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING IT JUST AS IT IS SUFFICIENT, AS REGARDS THE ADMISSIBILITY OF AN APPLICATION FROM A STATE, FOR IT TO ALLEGE THE EXISTENCE OF ONE OF THE FOUR GROUNDS FOR ANNULMENT SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 33 OF THE TREATY . THE ALLEGATION MUST INDICATE THE REASONS FOR WHICH THE APPLICANT CONSIDERS THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING IT . THOSE CONDITIONS HAVE BEEN FULFILLED IN THIS CASE . IN THE CASE OF PROCEEDINGS INSTITUTED BY AN ASSOCIATION OF UNDERTAKINGS IT IS SUFFICIENT FOR IT TO CLAIM THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING ONE OR MORE UNDERTAKINGS WHICH ARE MEMBERS OF THE ASSOCIATION . IN THE PRESENT CASE THE APPLICANT CLAIMS, WITH SUPPORTING ARGUMENTS, THAT THERE HAS BEEN A MISUSE OF POWERS AFFECTING THE UNDERTAKINGS WHICH IT REPRESENTS IN TERMS OF ARTICLE 30 OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS AS WELL AS OF ARTICLES 4 ( B ), 60 AND 64 OF THE TREATY, AND AS A CONSEQUENCE ALSO OF THE UNREASONABLENESS OF THE DECISIONS IN QUESTION .

THE COURT DOES NOT CONSIDER THAT THE TREATY PROVIDES FOR OR IMPOSES ANY FURTHER CONDITION FOR AN APPLICATION TO BE ADMISSIBLE SUCH AS, FOR EXAMPLE, PROOF THAT A MISUSE OF POWERS AFFECTING THE APPLICANT HAS ACTUALLY BEEN COMMITTED . SUCH PROOF IS NECESSARY TO ESTABLISH THAT THE APPLICATION IS WELL FOUNDED BUT THIS QUESTION GOES TO THE SUBSTANCE AND DOES NOT AFFECT ADMISSIBILITY .

( C ) THE COURT AGREES WITH THE ADVOCATE GENERAL'S VIEW THAT THE THREE DECISIONS IN DISPUTE MAY BE CONTESTED IN A SINGLE ACTION .

P . 70

2 . SUBSTANCE

FOR THE FOREGOING REASONS THE COURT CONSIDERS THAT THE ACTION HAS LOST ITS PURPOSE AS REGARDS THE APPLICATION FOR ANNULMENT OF THE FIRST ARTICLE OF DECISION NO 2/54 OF THE HIGH AUTHORITY AND ALSO AS REGARDS THE APPLICATION FOR ANNULMENT OF DECISION NO 3/54 . AS FOR THE APPLICATION FOR ANNULMENT OF DECISION NO 1/54 AND OF ARTICLES 2 TO 5 OF DECISION NO 2/54 IT IS WITHOUT FOUNDATION .

IN THESE CIRCUMSTANCES THE COURT IS NOT CALLED UPON TO GIVE A DECISION ON THE DEFINITION OF MISUSE OF POWERS WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY OR ON THE INTERPRETATION OF THE WORDS, " TO INVOLVE A MISUSE OF POWERS AFFECTING THEM ", EMPLOYED THEREIN .

1 . SINCE ARTICLE 1 OF DECISION NO 2/54 OF THE HIGH AUTHORITY WAS FOR ALL PURPOSES ANNULLED BY JUDGMENT OF 21 DECEMBER 1954 IN THE CASE OF THE FRENCH GOVERNMENT V THE HIGH AUTHORITY, THIS APPLICATION FOR ANNULMENT HAS ON THIS POINT NO LONGER ANY PURPOSE .

IN THESE CIRCUMSTANCES IT IS NOT NECESSARY TO CONSIDER WHETHER, ON THIS POINT, THE APPLICATION IS OR IS NOT WELL FOUNDED OR TO GIVE AN EXPRESS RULING THEREON IN THE JUDGMENT SINCE A DECISION WHICH HAS ALREADY BEEN ANNULLED OR WITHDRAWN IN THE MEANTIME CANNOT COMPROMISE THE RIGHTS OR INTERESTS OF THE APPLICANT . IN CONSEQUENCE, THE PRESENT JUDGMENT MUST BE CONFINED TO STATING THAT NO DECISION IS CALLED FOR ON THE APPLICATION FOR ANNULMENT OF ARTICLE 1 OF DECISION NO 2/54 OF THE HIGH AUTHORITY .

2 . THE SAME CONCLUSION MUST BE REACHED AS REGARDS DECISION NO 3/54 SINCE THE HIGH AUTHORITY WITHDREW IT BY ITS DECISION NO 1/55 OF 4 JANUARY 1955 ( JOURNAL OFFICIEL OF 11 JANUARY 1955, P . 542 ). IT MUST IN CONSEQUENCE ALSO BE STATED THAT NO DECISION IS NECESSARY IN RESPECT OF DECISION NO 3/54 OF THE HIGH AUTHORITY .

3 . AS REGARDS DECISION NO 1/54 OF THE HIGH AUTHORITY, THE APPLICANT RELIED ON THE SAME GROUNDS AS THOSE INVOKED AGAINST THE HIGH AUTHORITY BY THE GOVERNMENT OF THE ITALIAN REPUBLIC IN CASE NO 2/54 . THE COURT REJECTED THOSE GROUNDS IN THE JUDGMENT WHICH IT DELIVERED IN THAT CASE WHEN IT HELD THAT THE PROVISIONS IN QUESTION INFRINGED NEITHER THE TREATY NOR THE CONVENTION ON THE TRANSITIONAL PROVISIONS AND DID NOT CONSTITUTE A MISUSE OF POWERS . NO NEW GROUND HAS BEEN ADDUCED CAPABLE OF LEADING THE COURT TO A DIFFERENT DECISION, WHATEVER INTERPRETATION MIGHT BE PLACED ON THE CONCEPT OF " A MISUSE OF POWERS AFFECTING THEM " WITHIN THE MEANING OF ARTICLE 33 OF THE TREATY .

WHILE DECISION NO 1/54 OF THE HIGH AUTHORITY DECLARED NOT TO BE DISCRIMINATORY VARIATIONS FROM THE PRICES CONTAINED IN THE PRICE-LIST OF AN UNDERTAKING IN THE CASE OF AN EXCEPTIONAL TRANSACTION OR WHEN SIMILAR VARIATIONS ARE APPLIED TO ALL COMPARABLE TRANSACTIONS, IT EXPRESSLY MAINTAINS THE OBLIGATION TO COMPLY WITH THE RULES CONCERNING THE PUBLICATION OF PRICE-LISTS; THIS PROVISION IN NO WAY COMPROMISES THE LEGAL POSITION OF THE ITALIAN STEEL INDUSTRY AND DOES NOT TEND TO LEGITIMIZE PREVIOUS INFRINGEMENTS .

P . 71

4 . IN THE JUDGMENT DELIVERED ON 21 DECEMBER 1954 IN THE CASE OF THE ITALIAN GOVERNMENT V THE HIGH AUTHORITY IT WAS HELD THAT ARTICLES 2 AND 3 OF DECISION NO 2/54 OF THE HIGH AUTHORITY CONSTITUTE NEITHER AN INFRINGEMENT OF THE TREATY OR OF THE CONVENTION ON THE TRANSITIONAL PROVISIONS NOR A MISUSE OF POWERS .

WHILE THE PROVISION IN ARTICLE 3 OF DECISION NO 2/54 WHICH REDUCES TO ONE DAY THE PERIOD WITHIN WHICH NEW PRICE-LISTS MAY BECOME APPLICABLE, OBLIGES ITALIAN UNDERTAKINGS TO REACT MORE QUICKLY TO CHANGES IN THE PRICE-LISTS OF THEIR COMPETITORS, IT DOES NOT SERIOUSLY UNDERMINE THE SPECIAL PROTECTION PROVIDED FOR THEIR BENEFIT .

ARTICLES 4 AND 5 OF DECISION NO 2/54 OF THE HIGH AUTHORITY ARE OF WHOLLY GENERAL APPLICATION AND CONSTITUTE NO THREAT WHATEVER TO ITALIAN STEEL UNDERTAKINGS OR ASSOCIATIONS OF UNDERTAKINGS . THE SUBJECT-MATTER OF THOSE ARTICLES HAS NOTHING TO DO WITH THE PRESENT CASE; MOREOVER THE APPLICANT, WHICH HAS SUBMITTED NO ARGUMENTS ON THE SUBJECT, DID NOT REFER TO IT . THE SAID ARTICLES CANNOT IN CONSEQUENCE BE VITIATED BY MISUSE OF POWERS AS THE APPLICANT ALLEGES .

5 . IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS THAT NONE OF THE CONTESTED PROVISIONS REFERRED TO IN 3 . AND 4 . ABOVE INFRINGES THE TREATY OR THE CONVENTION ON THE TRANSITIONAL PROVISIONS .

THERE IS IN CONSEQUENCE NO NEED TO DEAL WITH THE QUESTION WHETHER AND UNDER WHAT CONDITIONS UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS MAY CHALLENGE A GENERAL DECISION OF THE HIGH AUTHORITY ON THE GROUND THAT IT INFRINGES THE LAW .

6 . THE COURT DISMISSES THE CONCLUSIONS CLAIMING PRODUCTION OF ALL THE DOCUMENTS RELATING TO THE CASE; THOSE PRODUCED BY THE DEFENDANT SUFFICE IN THIS CASE TO EXPLAIN TO THE COURT THE OBJECTIVES BEING PURSUED BY THE HIGH AUTHORITY .

THE DEFENDANT HAVING FAILED IN ITS PRINCIPAL CONTENTION THAT THE APPLICATION IS INADMISSIBLE ( IMPROPONIBILE ) THE COURT CONSIDERS IT FAIR THAT THE PARTIES SHOULD BEAR THEIR OWN COSTS AS PROVIDED UNDER ARTICLE 60 ( 2 ) OF THE RULES OF PROCEDURE .

THE COURT

HEREBY :

DECLARES THAT THERE IS NO NEED FOR A DECISION ON THE APPLICATION FOR ANNULMENT OF ARTICLE 1 OF DECISION NO 2/54 OF THE HIGH AUTHORITY OR OF DECISION NO 3/54 OF THE HIGH AUTHORITY;

DISMISSES THE APPLICATION FOR ANNULMENT OF DECISION NO 1/54 OF THE HIGH AUTHORITY AND OF ARTICLES 2 TO 5 OF DECISION NO 2/54 OF THE HIGH AUTHORITY;

ORDERS EACH OF THE PARTIES TO BEAR ITS OWN COSTS .