Important legal notice

61987C0032

European Court reports 1988 Page 03305

Opinion of the Advocate-General

Mr President,

Members of the Court,

A - The facts of the case

1 . The case which comes before the Court today was brought by an Italian association of steel-producing undertakings and by three Italian steel producers ( of which two are concentrated within the meaning of Article 66 of the ECSC Treaty ). It concerns, once again, the system of steel quotas introduced under Article 58 of the ECSC Treaty which, in the various forms which that system has taken since 1980, has already been subjected to scrutiny in a number of cases .

3 . Accordingly, the Commission proposed, in a communication to the Council dated 2 October 1986, also to liberalize, with effect from 1 January 1987, product groups IV, Ic, VI, as well as pre-products from category Ic and a part of category III . But that proposal was also unsuccessful . As we know, the Commission did not rely on paragraph ( 3 ) of Article 58, which is expressly quoted in Article 18 of Decision No 3485/85 and provides that :

"The system of quotas shall be ended on a proposal made to the Council by the High Authority after consulting the Consultative Committee, or by the Government of a Member State, unless the Council decides otherwise, acting unanimously if the proposal emanates from the High Authority or by a simple majority if the proposal emanates from a government ".

4 . Rather, as is explained in Article 19 of Decision No 3485/85, it was concerned to obtain the Council' s assent under paragraph ( 1 ) of Article 58 of the ECSC Treaty, which provides :

"In the event of a decline in demand, if the High Authority considers that the Community is confronted with a period of manifest crisis and that the means of action provided for in Article 57 are not sufficient to deal with this, it shall, after consulting the Consultative Committee and with the assent of the Council, establish a system of production quotas, accompanied to the necessary extent by the measures provided for in Article 74 ."

5 . As this was not forthcoming ( at the meeting of the Council of 20 October 1986, the representatives of Belgium, Germany and Luxembourg declared themselves opposed to a liberalization of categories III, IV and VI and maintained their opposition at the meeting of 18 November 1986 ), Decision No 3746/86, amending Decision No 3485/85, ( 3 ) only excluded product group Ic, together with its pre-products, from the system of quotas . The position remained unchanged even after further discussion of the question at the meetings of 19 March 1987, at which the Luxembourg and Greek delegations spoke against any further liberalization, and 1 June 1987 . Only by way of Decision No 194/88 of 6 January 1988 ( 4 ) were categories IV and VI removed from the system of quotas .

6 . On 3 February 1987, the association mentioned above ( whose 74 members essentially manufacture categories IV and VI products - one member is also active in the field of category III - unhappy with the framing of Decision No 3746/86, brought an action before the Court for a declaration that Decision No 3746/86, which in its view had been improperly adopted, was void .

7 . On the basis of Decision No 3485/85, as amended by Decision No 3746/86, and in accordance with Decision No 3673/86, ( 5 ) which contains the rates of abatement applicable for the first quarter of 1987, the quotas for the other undertakings mentioned above ( which only manufacture products of category IV, that is the applicant in Case 52/87, or heavy profiles falling within category III, that is the applicants in Case 57/87 ), were fixed in communications of 23 December 1986 for the first quarter of 1987 . Since they also take the view that the legal basis of these communications is open to challenge, in so far as it is apparent from Decision No 3746/86, they likewise brought proceedings before the Court on 20 and 25 February 1987 seeking a declaration that the communications addressed to them by the Commission on 23 December 1986 were invalid .

8 . On the basis of all the written and oral submissions I feel it appropriate to make the following analysis of these three cases .

B - Assessment

I - Admissibility

9 . As the Commission expressed reservations as to the admissibility of the application in Case 32/87, these should be examined first .

10 . 1 . This can be dealt with briefly, as far as the Commission' s observation is concerned to the effect that Decision No 3746/86, which only liberalized category Ic, does not affect the applicant because none of its members manufactures such products . It therefore is not an act adversely affecting them .

11 . It seems to me that the Commission did not really maintain that point of view after the applicant made clear that the decision in question was not contested because it liberalized category Ic but on the ground that it did not also exclude other categories from the system of quotas ( which would have been possible under Article 58 ( 3 ) of the ECSC Treaty ). The applicant and its members do in fact feel aggrieved by the fact that the contested decision did not go far enough ( Article 4 of Decision No 3485/85 did not also delete categories III, IV and VI ) and, from this point of view, no reservations subsist as regards the applicant' s interest in bringing the action .

12 . 2 . A further objection to the admissibility of the application is related to the fact that the contested decision is genuinely a general decision . As we know, such decisions may only be directly challenged by undertakings or associations of undertakings if they claim that they constitute a misuse of powers affecting them . The Commission fails to see any argument of this kind in the application . In its view the originating application actually only contains arguments relating to substantive legality but no assertion of a misuse of powers with regard to the applicant or cogent reasons therefor .

( a ) In this respect, the Commission is referring principally to the Court' s case-law, according to which a misuse of powers must be expressly alleged and reasons given for such an allegation ( judgment in Case 3/54 ( 6 )); and as was held in the judgment in Joined Cases 55 to 59 and 61 to 63/63, ( 7 ) the applicants must allege a misuse of powers affecting them and, as was held in the judgment in Cases 3 and 4/64, ( 8 ) the applicants must convincingly point to facts and circumstances indicating the probability of a misuse of powers .

13 . In my view, however, it cannot be said that the applicant' s application does not do justice to this point . Central to its submissions is indeed the argument that the Commission, in issuing the contested decision, committed a misuse of procedure, that is to say, instead of applying Article 58 ( 3 ), it had recourse to Article 58 ( 1 ). This is a category of misuse of powers, as is made clear by the judgments in Cases 2/57 ( 9 ) and in Joined Cases 140, 146, 221 and 226/82 ( 10 ) ( which deal with the circumvention of a special procedure ). Moreover, it cannot be called in doubt - and I need give no further proof of this - that the application contains detailed arguments in this respect which substantiate the probability that they are well founded .

14 . As far as the making of an allegation of a misuse of powers is concerned ( whether it is proven is however a question of substance ), there can be no reservations about this .

15 . ( b ) It might at the most be otherwise as regards the requirement that there must have been a misuse of powers affecting the applicant . The relevant case-law, which I set out in my Opinion in Case 250/83 ( 11 ) enables such a supposition to be made . It may be concluded from that case-law that the purpose of the expression quoted above is to limit the right of action to factual situations in which individual aspects predominate . In accordance with Article 33 ( 2 ) of the ECSC Treaty, the precondition, as was held in the judgment in Joined Cases 55 to 59 and 61 to 63/63, is that the applicant' s interests must be directly prejudiced, which cannot, however, be so if several undertakings are affected in the same way by a general decision .

16 . In the present case, it is nevertheless clear that not only the 74 members of the applicant association are affected by the contested limited liberalization, but all manufacturers of products which, in spite of the Commission' s proposal for liberalization, were not excluded .

17 . It is permissible to believe however that, following recent decisions of the Court, such a narrow view is no longer justified . I would recall the judgment in Joined Cases 140, 146, 221 and 226/82, in which there was held to be admissible an application by an association some of whose members were excluded from the increase in quotas provided for in the contested general decision . I would also point out that in Case 250/83 the Court held an action against a general decision to be admissible, although in my Opinion I considered that the applicant could not be regarded as a specific victim on the ground that it, like most of the large steel undertakings, had been excluded from the rules on adjustment because it had received subsidies .

18 . If accordingly one applies a liberal test, it may well be regarded as sufficient, as far as the admissibility conditions of Article 33 ( 2 ) of the ECSC Treaty are concerned, for the applicant to argue that its members were particularly affected by the contested decision because they manufacture products which should have been excluded and that they were thereby discriminated against in relation to manufacturers whose products were in fact liberalized .

19 . 3 . Doubt was also cast on the applicant' s interest in bringing the action .

20 . On this point the Commission, in its pleadings, argued that it was on the one hand not certain that, had Article 58 ( 3 ) been applied, a more far-reaching liberalization would in fact have come about ( because it could be prevented by a unanimous vote of the Council ); on the other hand, should the contested decision be declared unlawful, owing to the failure to apply Article 58 ( 3 ), it could not be excluded that the Commission, which would then have to take up the case again, would in its assessment of the situation, arrive at different conclusions and thus also at less far-reaching proposals for amendment than those adopted in 1986 .

21 . At the hearing, the Commission moreover pointed out that it was in fact no longer considering for the foreseeable future ( that is to say beyond 1 July 1988 ), a partial liberalization of category III ( regard being had to the reference quantities which have since been transferred to this category and to the difficulty in distinguishing the various products which make up this category ). In addition, it seems to have cast doubt, in its oral submissions, on the applicant' s interest in bringing the action by pointing out that in the mean time ( by the decision of 6 January 1988 ) the liberalization of categories IV and VI deemed correct by the applicant has actually come about .

22 . ( a ) As far as these considerations are concerned the last-mentioned argument may in my view at once be regarded as without merit . The applicant is, after all, of the opinion that the decision challenged by it, which was issued on 5 December 1986 and entered into force on 1 January 1987, was improper because it failed to effect at the same time a liberalization of categories IV and VI as well as parts of category III . Therefore the applicant is concerned to obtain a declaration of its unlawfulness, a fresh assessment of the situation as at 1 January 1987 and the replacement of the decision as from the date of its entry into force by more far-reaching liberalization . In view of the actual production quantities in 1987, this may be of real interest to the applicant and is quite a different interest to the one satisfied by the decision of 6 January 1988 . Therefore, with regard to both categories of products, an interest in bringing the action can certainly not be denied on account of the change in the legal situation on 1 January 1988 .

23 . ( b ) As to the Commission' s argument that, had Article 58 ( 3 ) been applied, it was not certain that a different result would have been achieved ( namely a liberalization as contemplated by the Commission ), the applicant, referring to the relevant case-law of the Court, pertinently observed that it is not a question of whether it may be said with certainty that by applying Article 58 ( 3 ) a result different from that contained in the contested decision would have come about . In the context of the examination of admissibility, it is sufficient that it may be regarded as conceivable and also likely that the application of Article 58 ( 3 ) would have led to a different result . The latter point may certainly be conceded, that is to say it may be assumed that at least one Member State ( which is sufficient for Article 58 ( 3 ) ) would have gone along with the Commission proposals . On this point I refer to a reservation made by the Italian delegation in the Council meeting of 18 November 1986 as regards the sole exclusion of category Ic and to the statments contained in the minutes of the Council meeting of 18 March 1987 that the Italian delegation was in favour, as a matter of priority, of the liberalization of category VI, and I recall, moreover, the applicant' s claiming that the Netherlands also favoured a more far-reaching liberalization . This cannot be countered by saying that neither of these States contested the Commission' s decision, thereby demonstrating its insistence on a more far-reaching liberalization . It is, of course, one thing, in the application of Article 58 ( 3 ), simply to adhere to the Commission' s viewpoint in a Council meeting and thereby to prevent a unanimous veto; it is quite another to contest a decision before the Court .

24 . ( c ) As to the question, moreover, of what inferences may be expected to be drawn by the Commission if the contested decision were declared void, and whether it may be assumed that an assessment of the situation would yield the same result as prior to the adoption of the contested decision or whether a change is becoming apparent, a distinction must be drawn on the basis of the product categories in question .

25 . As regards categories IV and VI, it must be acknowledged at once that, even at the time when the action was brought, there was no reason to expect a different assessment ( the Commission gave clearly to understand in March 1987 that it is in favour of liberalization on the ground that the crisis is over and that on no account will it lend its support to a prolongation of the system beyond 1987 ). This applies a fortiori at the present time since we now know that, by a decision of 6 January 1988, adopted with the Council' s assent, those two categories have been definitively excluded from the system of quotas . Therefore, were the contested decision to be declared void with the result that the Commission had to set up regulating these categories under Article 58 ( 3 ) of the ECSC Treaty in respect of the period from 1 January 1987, there is every reason to assume that it would proceed in exactly the same way .

26 . It is otherwise however, with regard to small heavy profiles in category III . That is because the Commission firmly stated that it has had to revise its judgment, for the reasons which I have stated, ( 12 ) and therefore no liberalization may be contemplated even for the period after 1 July 1988 . It may therefore be assumed with certainty that, were the contested decision to be declared void and subsequently newly formulated in accordance with Article 58 ( 3 ), category III would be left within the quota system, and the legal situation would to that extent remain unchanged .

27 . It follows that there is no interest in bringing an action on the basis of the non-application of the correct procedure under Article 58 ( 3 ) of the ECSC Treaty, as regards the failure to liberalize category III ( small heavy profiles ).

28 . 4 . In conclusion, at the end of this first part of my examination, it should be stated that the admissibility of the application in Case 32/87, which alone has been called in question, cannot basically be denied and that the contrary is true only in so far as the treatment in the contested decision of category III is concerned . Moreover, it also follows, let it be pointed out at this juncture, that in Case 57/87, which has been brought by undertakings manufacturing solely products of category III, the action must be deemed to be inadmissible in so far as the general Decision No 3746/86 is contested for applying Article 58 ( 1 ) of the ECSC Treaty and for failing to liberalize category III .

II - The substance of the case

29 . 1 . In all three cases the main complaint - in Case 32/87 the only one - is that Decision No 3746/86, which amended Decision No 3485/85, was improperly adopted . If the correct procedure had been adopted, the decision would have been issued under paragraph ( 3 ) of Article 58 of the ECSC Treaty, pursuant to which a proposal for liberalization made by the Commission, in the belief that the conditions laid down in Article 58 ( 1 ) are no longer met, can only be rejected by the Council by unanimity; that is to say, in other words, such a proposal made by the Commission will be successful if it is supported by at least one Member State . On the other hand, the Article 58 ( 1 ) procedure, which was actually applied, requires the assent of the Council, that is to say a positive vote with the majority provided for in Article 28 .

30 . On this point it was argued that Article 58 ( 3 ) should be applied, not only when the system of quotas as a whole is abolished, but also when certain products are to be excluded from the system with the result that unrestricted production will be possible . It was also stressed that, as opposed to paragraph ( 1 ) of Article 58, paragraph ( 3 ) thereof should be regarded as a lex specialis whose less stringent requirements for the abolition of the system of quotas may be explained by the fact that quota arrangements are basically out of harmony with Treaty principles, above all with the prohibition on the sharing of markets ( Article 4 ( d ) ) and should be regarded as something to be tolerated only exceptionally, as Articles 5 and 57 make clear .

31 . As we have seen and heard, the Commission shares the view, which is also represented in academic writing, that an easier procedure was laid down for the abolition of the system of quotas in view of the fact that, in itself, it represents a foreign body in the system of the Treaty . It is also of the view that Article 58 ( 3 ), even if its wording is not clear, also comes into play even where the system of quotas for one or several product groups is to be abolished, as clearly, to that extent, the legal basis for the application of Article 58 ( 3 ) is established .

32 . However, the Commission maintains firmly that Article 58 ( 3 ) may on no account be regarded as a lex specialis as opposed to paragraph ( 1 ) of that article . It has the right to choose and is quite entitled, in abolishing the system of quotas, to have recourse to the actus contrarius of its implementation ( which alone is mentioned in Article 58 ( 1 ) ) on the basis of Article 58 ( 1 ). In this connection, the assessment of whether the economic situation is marked by the existence or disappearance of a crisis is a delicate operation as the situation in the different Member States, or indeed even within a Member State, may vary considerably . In this assessment it is therefore right to have regard to objections by Member States, particularly those whose undertakings are behind in their restructuring measures . It should also be remembered that the Commission, when a system of quotas is only partially abolished, is dependent on trustful collaboration with the Council in its majority in overcoming the crisis in the other areas of production . It is appropriate to bear that in mind even when measures restricting a system of quotas are being taken .

33 . On this subject, it should be emphasized at the outset in the judgment that the ECSC Treaty proceeds from the premiss that undertakings have freedom to develop ( 13 ) and that the High Authority ought first to employ indirect means of action . ( 14 ) If the High Authority wishes to take direct action, that is to say, in this context, the introduction of production quotas, thereby restricting undertakings' possibilities of free development, then it is bound by the principles of the rule of law ( 15 ) to apply the criterion of whether "the Community is confronted with a period of manifest crisis ". ( 16 ) It may not from its own plenitude of powers introduce production quotas but is bound to observe a procedure laid down by law, namely hearing the views of the Consultative Committee and obtaining the assent of the Council . 16

34 . In accordance with the basic orientation of the Treaty in favour of the free development of undertakings and the use of indirect means of action by the High Authority, it is apparent from the structure of Article 58 that a less stringent procedure is laid down for the abolition of the system of quotas . This is clearly based on a recognition that interferences with the conditions of production, as permitted by Article 58, should be regarded as exceptions which, when their underlying causes disappear, are no longer justified .

35 . In the light of that system of the Treaty, in which the freedom of undertakings is the rule and the High Authority' s powers of intervention are the exception, the Commission' s view that it is entitled to choose between the procedures of paragraph ( 1 ) and ( 3 ), cannot be accepted . If a situation of manifest crisis no longer exists, it must abolish the system of quotas and thereby employ all means of action at its disposal . It must therefore apply paragraph ( 3 ), according to which consultation of the Consultative Committee and the absence of a unanimous decision to the contrary by the Council are sufficient for the ending of the exceptional situation, that is to say the High Authority needs the support of only one Member State for this purpose .

36 . Under Article 58 ( 3 ) the High Authority, that is the Commission, makes its proposal only after consulting the Consultative Committee . If, as a result, there are no indications of a continuation of the manifest crisis, it is required to employ all means of action to restore the normal situation, that is to say it must make the proposal to end the system of quotas in so far as a manifest crisis no longer exists .

37 . It should also be pointed out that the less stringent procedure of Article 58 ( 3 ) also applies to a partial ending of the system of quotas, that is its reduction . It is true that the wording of Article 58 ( 3 ) - "the system of quotas shall be ended ..."; "le régime des quotas prend fin ..." - could be construed as meaning that only the abolition of the whole system of quotas is contemplated . If that were so, it would have to be acknowledged that there is a gap in the provisions, as Article 58 ( 1 ) deals only with the introduction of the system of quotas and not with the partial amendment thereof . In filling the gap the nearest provision would have to be applied by way of analogy, which in the case of a restriction of a system of quotas is clearly Article 58 ( 3 ), concerned with the ending of the system, and not paragraph ( 1 ) of that provision which deals with the introduction thereof . This was rightly pointed out at the hearing .

38 . On that basis, that is if Article 58 ( 3 ) is regarded as relevant also to a partial ending of the system of quotas, it may then seem to be only good sense to deem this procedure alone to be applicable, although no express mention of such exclusivity is made in Article 58 . It is nevertheless significant that Article 58 ( 3 ) states : "the system of quotas shall be ended ..." (" le régime des quotas prend fin ...") and not "may" be ended, which would imply a discretion . Moreover it was also rightly pointed out in this connection that a right to choose, which the Commission deems to be correct, would not only be something quite unusual as it would lead to confusion and would jeopardize legal certainty . More particularly, it could not be reconciled with the recognized fact that, when the crisis triggering a system of quotas is over, that system must be unconditionally ended because it is in itself not compatible with the principles of the Treaty; that, however, could be rendered difficult or prevented by the majority participation of the Member States ( which under Article 38 of the Treaty is subject only to limited judicial review ).

39 . As against that no argument can be derived, as the Commission has tried to do, from Article 61 of the ECSC Treaty in which only the fixing of prices is provided for . That fact does indeed lead to the conclusion that in lifting such measures recourse must also be had, as an actus contrarius, to this provision . Article 58 is clearly different in so far as it expressly provides for two different procedures for the implementation and the ending of a system of quotas .

40 . Also lacking in validity is, in my view, the reference to the difficulties involved in the assessment of a crisis situation and the extent of its continuation . Those difficulties may doubtless cause the Commission, if it complies with its obligations under Article 58 ( 3 ), to undertake particularly thorough enquiries with the help of the Member States, the necessary consultation of the Consultative Committee ( 17 ) and the most appropriate form of consultation of the European Parliament . They cannot, however, lead the Commission simply to shirk its responsibility and to leave it to the majority of these institutions to make the necessary determination under Article 58 .

41 . Nor, finally, will it be possible to see any compelling force in the reference to the endeavour to maintain relations based on mutual trust with the Member States, in order to overcome the crisis remaining in other areas ( which is important, for example, in the organization of external protection, the financing of new employment opportunities under Article 56 of the ECSC Treaty or the promotion of the restructuring of whole regions ). Even if a certain degree of understanding may doubtless be shown for these considerations, they cannot justify a failure to take account of clear attributions of responsibility which should be seen in the context of the institutional equilibrium which the Treaty seeks to achieve . Furthermore, it would also seem questionable whether, in fact, in the case of a proper application of Article 58 ( 3 ), such a degree of disgruntlement need be feared on the part of some Member States, that it would, as a result, not be possible to adopt objectively required measures such as a necessary reduction in capacity, with which Member States would have to cooperate .

42 . Therefore, it may now be affirmed that the Commission, in adopting the contested decision, based itself on an incorrect understanding of Article 58 and, consequently, did not assume its responsibility under Article 58 ( 3 ) in order to reduce the system of quotas . That reduction might possibly have gone further than the extent achieved in the contested decision . Since Decision No 3746/86 did not provide for a liberalization of categories IV and VI, it is to be regarded as unlawful and therefore the actions in Cases 32/87 and 52/87 are well founded, the latter of which concerns a quota communication concerning category IV which was based on Decision No 3485/85, as amended by Decision No 3746/86 .

43 . Allow me to say further that this means that the procedure for amending Decision No 3485/85 with effect from 1 January 1987 will have to be taken up again by the Commission on the basis of Article 58 ( 3 ). It will clearly not be possible simply to fall back on the communication of 2 October 1986 . For it cannot be excluded that the evaluations appearing therein were arrived at with a view to a quite specific concertation procedure, decisively influenced by the Council, in the context of which the communication constituted the starting point for negotiations in order to reach a compromise and recorded the corresponding positions . Nor must it be forgotten that this document should be seen in the light of the submissions of the Commission' s representative at the hearing . There it was said that the Commission chose the Article 58 ( 1 ) procedure because the assessment of the continuation of a crisis is a very delicate task in which the Commission, being obliged in principle to take an overall view, has to have regard to objections made by the Member States concerning their respective situations . Therefore the Commission, conscious of its responsibility under Article 58 ( 3 ), must now obtain a new and complete picture of the economic situation and accordingly set about re-ordering the legal situation and, if appropriate, address a new quota communication to the applicant in Case 52/87 .

44 . 2 . On Case 32/87 which is, as I have already said, based on the submission just dealt with, there is nothing further to add, in the same way as, now that the unlawfulness of Decision No 3746/86 has been established, it would appear superfluous to examine in Case 52/87 any other submissions than that already dealt with, as those submissions are so closely connected with the issues under discussion as seemingly to preclude any other assessment .

45 . Other submissions are, however, of importance to the applicants in Case 57/87 which, as I have already mentioned, only manufacture category III products . For it has been demonstrated that the submission hitherto examined, namely that of failure to apply Article 58 ( 3 ), will not come into play because it may be assumed that, even had the correct procedure been adhered to, no liberalization of category III would have occurred .

46 . In regard to Case 57/87, consideration must yet be given to the allegation that Article 58 was infringed because the system of quotas was kept on foot for products in respect of which no manifest crisis subsisted . And it must also be examined whether the Commission may justifiably be accused of discriminating against category III products as opposed to certain category Ic products on the ground that, in the contested decision, it excluded the latter from the system of quotas although it had formed the view that no crisis subsisted in respect of either of these products .

( a ) On this point, as regards the first-mentioned submission, it should be said that a different picture now emerges that at the time the procedure leading to the adopting of the contested decision was instituted ( in the Commission' s communication of 2 October 1986 a liberalization of certain of the category III products was suggested ). To this extent the Commission, for certain reasons mentioned above, radically revised its opinion and now takes the view that, even after 1 July 1988, no liberalization of category III may be contemplated . This means that the applicants in Case 57/87 may no longer simply rely on the Commission' s own statement to support their argument that a manifest crisis no longer subsists in respect of category III products . Moreover since they did not contradict the Commission' s account presented at the hearing and also submitted no evidence to substantiate their opinion that, in respect of small heavy profiles, there has since 1 January 1987 been no manifest crisis, it must be held against them that their submission of an infringement of Article 58 on the ground that a manifest crisis no longer exists, is lacking any foundation .

( b ) The same clearly applies to the second-mentioned submission in so far as it relies on a discrimination against category III products . Since the Commission has now distanced itself from the premiss that it is not appropriate to speak of a crisis in regard to any of the three categories III, IV and VI ( in respect of category III its thinking is now different ) and since the applicant has not shown that the crisis as regards category III products has come to an end, as it has in the case of category Ic products, it is only possible to conclude that any difference in treatment in this respect cannot be described as discriminatory, as the situations are not comparable .

( c ) For the applicants in Case 57/87 the outcome therefore is that the application is not successful because, in relation to the first submission relied on by them ( failure to apply Article 58 ( 3 ) ), they do not have an interest in bringing the action and because the other submissions advanced do not appear to be well founded .

But, as the Commission put forward a different view as to category III only at the hearing and because, following the Commission' s communication of 2 October 1986, a cause of action arose from the failure to liberalize category III, I would indeed be inclined to think that the costs incurred in Case 57/87 should also be borne by the Commission .

C - Conclusion

51 . On the basis of the foregoing, I propose that the Court in its judgment should hold as follows :

"The applications in Cases 32 and 52/87 should be allowed as Decision No 3746/86 was adopted under Article 58 ( 1 ) of the ECSC Treaty and did not liberalize categories IV and VI .

The application in Case 57/87 should be dismissed as unfounded .

In all three cases the Commission should be ordered to pay the costs of the proceedings .

() Translated from the German .

( 1 ) OJ 1984, L 29, p . 1 et seq .

( 2 ) OJ 1985, L 340, p . 5 et seq .

( 3 ) OJ 1986, L 348, p . 1 .

( 4 ) OJ 1988, L 25, p . 1 et seq .

( 5 ) OJ 1986, L 339, p . 20 .

( 6 ) Judgment of 11 February 1955 in Case 3/54 Assider v High Authority (( 1955 )) ECR 63 .

( 7 ) Judgment of 9 June 1964 in Joined Cases 55 to 59 and 61 to 63/63 Modena v High Authority (( 1964 )) ECR 211 .

( 8 ) Judgment of 8 July 1965 in Joined Cases 3 and 4/64 Sidérurgie française v High Authority (( 1965 )) ECR 443 .

( 9 ) Judgment of 13 June 1958 in Case 2/57 Hauts-fourneaux de Chasse v High Authority (( 1958 )) ECR 199 .

( 10 )Judgment of 21 February 1984 in Joined Cases 140, 146, 221 and 226/82 Walzstahl-Vereinigung and Thyssen v Commission (( 1984 )) ECR 951 .

( 11 )Opinion of 27 November 1984 in Case 250/83 Finsider v Commission (( 1985 )) ECR 132 .

( 12 )See paragraph 21 above .

( 13 )Articles 2 and 4 of the ECSC Treaty .

( 14 )Article 57 of the ECSC Treaty .

( 15 )Article 31 of the ECSC Treaty .

( 16 )Article 58 of the ECSC Treaty .

( 17 )Article 58 ( 3 ).