Avis juridique important

61963J0012

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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

2 . PROCEEDINGS WITHIN THE MEANING OF ARTICLE 66 ( 5 ) - PROVISION DEROGATING FROM THE GENERAL PROVISIONS RELATING TO PROCEDURE - INAPPLICABILITY TO A FAILURE TO ACT FALLING EXCLUSIVELY WITHIN ARTICLE 35 .

Summary

1 . THE PERSONS ENTITLED TO APPLY TO THE HIGH AUTHORITY AS PROVIDED IN THE FIRST PARAGRAPH OF ARTICLE 35 OF THE ECSC TREATY AS A PRELIMINARY TO AN ACTION ON THE GROUNDS OF A FAILURE TO ACT, CAN ONLY BE STATES, THE COUNCIL, UNDERTAKINGS OR ASSOCIATIONS .

2 . PROCEEDINGS UNDER THE SECOND SUB-PARAGRAPH OF ARTICLE 66 ( 5 ) DEROGATE FROM THE GENERAL PROVISIONS RELATING TO PROCEDURE LAID DOWN BY THE TREATY, AND CANNOT BE EXTENDED TO CASES OF INACTION ON THE PART OF THE HIGH AUTHORITY WHICH FALL EXCLUSIVELY WITHIN THE PROCEDURE LAID DOWN IN ARTICLE 35 .

Parties

IN CASE 12/63

MRS MARGA SCHLIEKER, NEE DIEPENBRUCK, REPRESENTED BY DR BRUCKHAUS, KREIFELS AND DR WINKHAUS, 2 BERLINER ALLEE, DUSSELDORF 4, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF FELICIEN JANSEN, 21 RUE ALDRINGER, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, HEINRICH MATTHIES, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

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,

Grounds

MRS SCHLIEKER WHO HAS A MINORITY INTEREST IN THE SCHLIEKER GROUP HAS BROUGHT AN ACTION FOR FAILURE TO ACT AGAINST THE HIGH AUTHORITY . FOLLOWING CERTAIN DEALINGS PREVIOUS TO OR SUBSEQUENT TO THE SUSPENSION OF PAYMENTS BY THE SAID GROUP, THIS GROUP ENTERED INTO AGREEMENTS OR TRANSACTIONS WITH CERTAIN 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 ALTERNATIVELY 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 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 PRESUPPOSE FIRST AN APPLICATION TO THE HIGH AUTHORITY WHICH CAN BE MADE ONLY BY THE LIMITED NUMBER OF LEGAL PERSONS SET OUT IN THE FIRST PARAGRAPH OF ARTICLE 35, NAMELY THE STATES, THE COUNCIL, UNDERTAKINGS AND ASSOCIATIONS . THIS INTERPRETATION IS FORTIFIED BY THE PROVISIONS OF ARTICLE 33 WHICH LAYS DOWN THE GENERAL CONDITIONS FOR AN ACTION FOR ANNULMENT OF WHICH ARTICLE 35 IS ONLY A VARIATION .

MRS SCHLIEKER IS NOT AN UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 AND SHE IS ACTING IN HER PRIVATE CAPACITY IN DEFENCE OF HER PERSONAL INTERESTS . HER APPLICATION IS THEREFORE INADMISSIBLE SO FAR AS IT IS FOUNDED ON ARTICLE 35 .

IT IS APPROPRIATE NEVERTHELESS TO ENQUIRE WHETHER THE SAID APPLICATION MAY BE CONSIDERED ADMISSIBLE HAVING REGARD TO ARTICLES 65 AND 66 WHICH PROVIDE SPECIAL RIGHTS OF ACTION . ARTICLE 65 ( 4 ) GIVES THE COURT CONTROL OVER THE EXCLUSIVE JURISDICTION OF THE HIGH AUTHORITY OVER AGREEMENTS BUT ARTICLE 80 RESERVES ONLY TO UNDERTAINGS 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 CONSEQUENTIAL MEASURES .

THIS PROVISION DEROGATES FROM THE GENERAL PROVISIONS AS TO PROCEDURE LAID DOWN BY THE TREATY AND CANNOT BE EXTENDED TO CASES OF INACTION ON THE PART OF THE HIGH AUTHORITY, WHICH FALL EXCLUSIVELY WITHIN THE PROCEDURE LAID DOWN IN ARTICLE 35 .

MRS SCHLIEKER'S APPLICATION IS THEREFORE NOT ADMISSIBLE ON THE BASIS OF ARTICLES 65 AND 66 EITHER .

THE APPLICANT PLEADS FINALLY THAT HER LEGITIMATE INTERESTS WOULD BE DEPRIVED OF ANY LEGAL PROTECTION IF HER APPLICATION WERE DISMISSED AND THAT THE PROVISIONS OF THE TREATY RELATING TO AGREEMENTS AND CONCENTRATIONS COULD BE EVADED BY MERE FAILURE TO ACT ON THE PART OF THE HIGH AUTHORITY, WITHOUT ANY POSSIBILITY OF PROCEEDINGS BEING TAKEN WHEN THE INTERESTS INJURED ARE THOSE OF A PERSON OTHER THAN AN UNDERTAKING OR ASSOCIATION . WHATEVER MAY BE THE CONSEQUENCES OF A FACTUAL SITUATION OF WHICH THE COURT MUST NECESSARILY BE UNAWARE, THE COURT HAS NO AUTHORITY TO DEPART FROM THE PROVISIONS FOR THE PROTECTION OF LEGAL RIGHTS SET OUT IN THE TREATY .

Decision on costs

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 .

Operative part

THE COURT

HEREBY :

1 . RULES THAT THE APPLICATION OF MRS MARGA SCHLIEKER IS INADMISSIBLE;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .