P . 48
A - CAPACITY OF THE APPLICANT
THE LIMITED PARTNERSHIP NOLD WAS FORMED AND ESTABLISHED IN GERMANY . ITS PARTNERSHIP DEED, WINDING UP AND DISSOLUTION ARE GOVERNED BY THE NATIONAL PROVISIONS APPLYING TO THE PLACE WHERE IT HAS ITS REGISTERED OFFICE . UNDER GERMAN LAW A COMPANY IN LIQUIDATION HAS THE CAPACITY TO INSTITUTE PROCEEDINGS AND TO VINDICATE ITS RIGHTS FOR THE PURPOSES OF ITS LIQUIDATION . INCLUDED AMONG THESE IN THE PRESENT CASE WITHOUT DOUBT ARE THE PRESERVATION OF THE RIGHT ESSENTIAL TO THE EXISTENCE OF THE COMPANY TO RECEIVE SUPPLIES AS A FIRST-HAND WHOLESALER .
P . 49
ACCORDING TO GERMAN LAW THE PARTNERS OF A LIMITED PARTNERSHIP WHICH HAS GONE INTO LIQUIDATION BY OPERATION OF LAW AS A RESULT OF THERE BEING NO LONGER A PARTNER WITH UNLIMITED LIABILITY CAN EMPOWER A REPRESENTATIVE TO UNDERTAKE CERTAIN ACTS IN LAW IN SO FAR AS THIS IS NECESSARY FOR THE PURPOSES OF THE LIQUIDATION . THE PARTNERS ACTING AS LIQUIDATORS WERE THEREFORE ENTITLED TO GIVE MR ERICH NOLD A POWER OF ATTORNEY TO BRING THE PRESENT ACTION .
TO THE WRITTEN DECLARATION OF THE PARTNERS THAT THEY HAVE GIVEN MR NOLD POWER OF ATTORNEY TO THIS EFFECT THE DEFENDANT SIMPLY SAYS THAT THE POWER OF ATTORNEY HAS NOT BEEN GIVEN IN WRITING AND FOR THIS REASON IS NOT VALID . THE GERMAN LAW APPLICABLE IN THE PRESENT CASE DOES NOT REQUIRE THE POWER OF ATTORNEY TO BE IN WRITING EVEN IF THE ACT FOR WHICH THE POWER IS GIVEN MUST ITSELF BE IN WRITING .
MR ERICH NOLD WAS ACCORDINGLY AUTHORIZED TO BRING THE ACTION AGAINST THE HIGH AUTHORITY SINCE HE WAS ACTING ON BEHALF OF THE PARTNERS WHO WERE IN TURN ACTING LAWFULLY AS LIQUIDATORS WITHIN THE FRAME WORK OF THE TASKS OF THE LIQUIDATION . THE LEGAL SIGNIFICANCE OF THE DECLARATION BY WHICH MR ERICH NOLD AUTHORIZED THE BRINGING OF THE ACTION AFTER HE ENTERED THE APPLICANT COMPANY AS A PARTNER WITH UNLIMITED LIABILITY DOES NOT NEED TO BE EXAMINED .
B - THE FORMAL VALIDITY OF THE APPLICATION
THE APPLICATION IS SIGNED BY MR KLIBANSKY OF THE FRANKFURT AM MAIN BAR; THE MEASURES TAKEN AGAINST HIM DID NOT DISBAR HIM .
UNDER ARTICLE 107 ( 2 ) OF THE RECHTSANWALTSORDNUNG OF HESSE, THE PROVISIONS OF WHICH APPLIED TO MR KLIBANSKY AND ON WHICH MR NOLD AS HIS CLIENT COULD RELY, A SUSPENSION FROM PRACTICE DOES NOT AFFECT THE LEGALITY OF THE ACTS UNDERTAKEN BY THE ADVOCATE CONCERNED .
IN VIEW OF THESE CONSIDERATIONS THE APPLICATION IS VALID FROM THE FORMAL POINT OF VIEW .
C - THE LEGAL NATURE OF THE CONTESTED DECISIONS
THE ADMISSIBILITY OF THE SUBMISSIONS UPON WHICH THE APPLICATION RELIES DEPENDS ON THE LEGAL NATURE AND THE LEGAL SCOPE OF THE CONTESTED DECISIONS . WITH REGARD TO ACTIONS BY UNDERTAKINGS ARTICLE 33 OF THE ECSC TREATY DISTINGUISHES BETWEEN INDIVIDUAL AND GENERAL DECISIONS IN SO FAR AS IT ALLOWS THE RIGHT TO HAVE A GENERAL DECISION DECLARED VOID ONLY WHERE THE APPLICANT CONSIDERS IT TO INVOLVE A MISUSE OF POWERS AFFECTING IT .
P . 50
DECISIONS NOS 16 TO 18/57 OF 26 JULY 1957 AUTHORIZE THE AGREEMENTS ON THE JOINT SALE OF FUEL BY THE MINING COMPANIES ASSOCIATED IN THE COAL-SELLING AGENCIES OF THE RUHR, GEITLING, PRAESIDENT AND MAUSEGATT . DECISION NO 19/57 WHICH WAS ALSO ADOPTED ON 26 JULY 1957 AUTHORIZED THE JOINT PURCHASE OF FUEL FROM CERTAIN COAL WHOLESALERS OPERATING IN SOUTHERN GERMANY THROUGH THE INTERMEDIARY OF OBERRHEINISCHE KOHLENUNION .
THE CONTESTED DECISIONS WERE ADOPTED ON THE BASIS OF ARTICLES 65 ( 2 ) OF THE ECSC TREATY AS A RESULT OF APPLICATIONS FOR AUTHORIZATIONS . THESE RELATED IN THE CASE OF DECISIONS NOS 16 TO 18/57 TO THE COMMERCIAL RULES OF THE AFOREMENTIONED COAL-SELLING AGENCIES OF THE RUHR AND IN THE CASE OF DECISION NO 19/57 TO A COMPANY CONTRACT BETWEEN SOUTHERN GERMAN AND FRENCH WHOLESALERS .
THE CONTESTED DECISIONS AUTHORIZED, SUBJECT TO CERTAIN CONDITIONS AND RESTRICTIONS, THESE RULES AND THIS CONTRACT AND THEREFORE RULES AS TO THE LEGAL VALIDITY OF ACTUAL DECISIONS TAKEN BY CLEARLY IDENTIFIED UNDERTAKINGS .
FROM THIS IT IS CLEAR THAT THE AUTHORIZATIONS IN QUESTION ARE INDIVIDUAL IN CHARACTER IN RELATION TO THE UNDERTAKINGS CONCERNED .
ALTHOUGH THE TREATY IS SILENT ON THE MATTER A DECISION WHICH IS INDIVIDUAL IN CHARACTER IN RELATION TO THE UNDERTAKINGS TO WHICH IT IS DIRECTED CANNOT AT THE SAME TIME BE REGARDED AS A GENERAL DECISION IN RELATION TO THIRD PARTIES .
MOREOVER, GENERAL DECISIONS ARE QUASI-LEGISLATIVE MEASURES WHICH ISSUE FROM A PUBLIC AUTHORITY AND HAVE A LEGISLATIVE EFFECT ERGA OMNES . IN THE PRESENT CASE THE HIGH AUTHORITY HAS SIMPLY AUTHORIZED JOINT-SELLING AGREEMENTS ( DECISIONS NOS 16 TO 18/57 ) AND JOINT-BUYING AGREEMENTS ( DECISION NO 19/57 ) ON THE BASIS OF ARTICLE 65 ( 2 ) AND BY WAY OF EXCEPTION TO THE BASIS OF ARTICLE 65 ( 2 ) AND BY WAY OF EXCEPTION TO THE BASIC PROHIBITION CONTAINED IN ARTICLE 65 ( 1 ). THE CONDITIONS OF SALE WERE LAID DOWN BY THE COAL-SELLING AGENCIES OF THE RUHR AND THE UNDERTAKINGS ASSOCIATED THEREIN AND THE CONDITIONS FOR ACCEPTANCE INTO THE OBERRHEINISCHE KOHLENUNION WERE LAID DOWN BY THE UNDERTAKINGS AND COAL WHOLESALERS OPERATING IN SOUTHERN GERMANY . THE AGREEMENTS LAYING DOWN THESE CONDITIONS WERE SIMPLY APPROVED BY THE HIGH AUTHORITY AND HAVE ACCORDINGLY NOT LOST THEIR CHARACTER OF ACTS OF PRIVATE LAW . AS A RESULT THEY ARE NOT TO BE REGARDED AS QUASI-LEGISLATIVE MEASURES ADOPTED BY A PUBLIC AUTHORITY IN THE EXERCISE OF ITS POWERS TO ADOPT GENERALLY BINDING PROVISIONS .
IN VIEW OF ALL THIS THE CONTESTED DECISIONS MUST BE REGARDED AS INDIVIDUAL IN CHARACTER WITHIN THE MEANING OF THE ECSC TREATY .
P . 51
D - THE INDIVIDUAL SUBMISSIONS
IN ORDER TO GIVE A RIGHT FOR AN UNDERTAKING TO INSTITUTE PROCEEDINGS AGAINST SUCH DECISIONS IT IS SUFFICIENT THAT THE DECISIONS ARE INDIVIDUAL IN CHARACTER AND AFFECT THE APPLICANT UNDERTAKING . IN THE PRESENT CASE THE CONTESTED DECISIONS AFFECT THE APPLICANT SINCE THEY RELATE TO WHOLESALERS AND THEIR APPLICATION DIRECTLY AFFECTS THE POSITION OF THE APPLICANT .
THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY ALLOWS THE APPLICANT THEREFORE TO PLEAD ALL THE GROUNDS DESCRIBED IN THE FIRST PARAGRAPH OF THIS ARTICLE AGAINST THE DECISIONS ADOPTED .
THE APPLICANT BASES ITS APPLICATION ON THE FOLLOWING GROUNDS :
1 . INFRINGEMENT OF THE TREATY;
2 . INFRINGEMENT OF THE BASIC LAW OF THE FEDERAL REPUBLIC OF GERMANY AND THE CONSTITUTION OF THE LAND HESSE;
3 . MISUSE OF POWERS;
4 . INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .
E - SUBMISSION OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT
FIRST IT MUST BE CONSIDERED WHETHER THE LAST-MENTIONED SUBMISSION IS WELL FOUNDED, SINCE IN THIS EVENT CONSIDERATION OF THE REMAINING GROUNDS IS UNNECESSARY .
THE APPLICANT FIRST MADE THE SUBMISSION OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT BECAUSE OF INSUFFICIENT REASONS FOR THE CONTESTED DECISIONS IN ITS PLEADING OF 11 NOVEMBER 1957 .
ARTICLE 22 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND ARTICLE 29 ( 3 ) OF THE RULES OF PROCEDURE PROVIDE THAT THE APPLICATION SHALL CONTAIN A BRIEF STATEMENT OF THE GROUNDS ON WHICH IT IS BASED . THESE PROVISIONS ACCORDINGLY MEAN THAT GROUNDS WHICH ARE NOT MENTIONED IN THE APPLICATION ARE INADMISSIBLE .
THE COURT LIKEWISE REJECTS THE APPLICANT'S ARGUMENT THAT THE GENERAL COMPLAINT OF DISCRIMINATION, ON WHICH THE APPLICATION RESTS, INCLUDES THE SUBMISSION OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT . THEY HAVE NOTHING IN COMMON AND CANNOT BE COMPARED .
HOWEVER, THE OBLIGATION UNDER ARTICLE 15 OF THE ECSC TREATY ON THE HIGH AUTHORITY TO STATE THE REASONS FOR ITS DECISIONS IS NOT ONLY FOR THE PROTECTION OF INTERESTED PARTIES, BUT ALSO HAS AS OBJECTIVE TO ENABLE THE COURT TO REVIEW THE DECISIONS FULLY FROM THE LEGAL POINT OF VIEW AS REQUIRED BY THE TREATY . AS A RESULT THE COURT CAN AND MUST OF ITS OWN MOTION TAKE EXCEPTION TO ANY DEFICIENCIES IN THE REASONS WHICH WOULD MAKE SUCH REVIEW MORE DIFFICULT .
P . 52
THE HIGH AUTHORITY IS EMPOWERED UNDER ARTICLE 65 TO AUTHORIZE JOINT-SELLING AGREEMENTS IF IT FINDS THAT " THE AGREEMENT IN QUESTION IS ESSENTIAL IN ORDER TO ACHIEVE ( A SUBSTANTIAL IMPROVEMENT IN THE PRODUCTION OR DISTRIBUTION ) AND IS NOT MORE RESTRICTIVE THAN IS NECESSARY FOR THAT PURPOSE ".
THE HIGH AUTHORITY HAS MADE THE RIGHT OF WHOLESALERS TO OBTAIN SUPPLIES DIRECT FROM THE JOINT-SELLING AGENCIES DEPENDENT ON THE FULFILMENT OF THREE QUANTITATIVE CRITERIA SET OUT IN THE SAID DECISIONS WITHOUT SPECIFYING IN WHICH WAY THE LAYING DOWN OF THESE TONNAGE LIMITS CAN CONTRIBUTE TO A SUBSTANTIAL IMPROVEMENT IN THE DISTRIBUTION OF FUEL AND WITHOUT DISCUSSING THE QUESTION WHETHER THE TONNAGE LIMITS ARE MORE RESTRICTIVE THAN IS NECESSARY FOR THE PURPOSE OF THE AGREEMENT .
IN THE GROUNDS OF DECISIONS NOS 16 TO 18/57 THE HIGH AUTHORITY HAS LIMITED ITSELF, AS REGARDS THE LAYING DOWN OF QUANTITATIVE CONDITIONS FOR THE RECOGNITION OF FIRST-HAND WHOLESALERS, TO REFERRING TO THE GENERAL PRINCIPLES ALREADY STATED IN THE GROUNDS OF DECISIONS NOS 5 TO 7/56 .
ALTHOUGH THERE IS A GENERAL JUSTIFICATION OF THE JOINT-SELLING OF FUEL IN THE 1956 DECISIONS, THE 29TH RECITAL IN THE PREAMBLE TO DECISION NO 5/56 ( JO, P . 34 ) OBSERVES WITH REGARD TO THE CRITERIA PROVIDED FOR IN THE GENERAL COMMERCIAL RULES FOR THE DIRECT SUPPLY OF WHOLESALERS AND THEIR NUMERICAL LIMITATION THAT THE LIMITATION ADOPTED " DOES NOT HAVE DISCRIMINATORY EFFECTS NOR DOES IT LEAD TO ... CERTAIN DEALERS OBTAINING A POSITION WHICH RESTRICTS ... COMPETITION ". THIS STATEMENT OF REASONS AND THE LACK OF ANY JUSTIFICATION FOR THE QUANTITATIVE LIMITATIONS INTRODUCED DO NOT SHOW THAT IN ADOPTING THE CONTESTED DECISIONS THE HIGH AUTHORITY HAS EXAMINED WHETHER THE SAID LIMITATIONS ARE MORE RESTRICTIVE THAN IS NECESSARY FOR A SUBSTANTIAL IMPROVEMENT IN DISTRIBUTION, WHICH IS THE OBJECTIVE OF ARTICLE 65 ( 2 ) ( B ).
FROM THIS IT APPEARS THAT THE REASONS FOR DECISIONS NOS 16/57, 17/57 AND 18/57 NEITHER ON THEIR OWN NOR BY REFERENCE TO THE 1956 DECISIONS CONTAIN A SUFFICIENT AND PROPER STATEMENT OF THE FACTUAL AND LEGAL CONSIDERATIONS ON WHICH THE CONTESTED DECISIONS ARE BASED . THEY THUS DO NOT PERMIT REVIEW BY THE COURT, IN PARTICULAR AS TO WHETHER THE HIGH AUTHORITY HAS HAD FULL REGARD TO ARTICLE 65 ( 2 ).
THE SAME OBSERVATIONS APPLY TO DECISION NO 19/57 WHICH IN THE RESULT MERELY IMPLEMENTS DECISIONS NOS 16/57, 17/57 AND 18/57, IN SO FAR AS IT ENABLES JOINT-BUYING OF FUEL THROUGH THE OBERRHEINISCHE KOHLENUNION ONLY BY THOSE COAL WHOLESALERS OPERATING IN SOUTHERN GERMANY WHO ARE ALLOWED TO OBTAIN DIRECT SUPPLY FROM THE JOINT-SELLING AGENCIES . P . 53
DECISIONS NOS 16/57, 17/57, 18/57 AND 19/57 ACCORDINGLY INFRINGE ARTICLE 15 OF THE ECSC TREATY SINCE INSUFFICIENT REASONS ARE EQUIVALENT TO ABSENCE OF REASONS . THE DECISIONS MUST ACCORDINGLY BE ANNULLED IN SO FAR AS THEY MAKE THE RECOGNITION OF FIRST-HAND WHOLESALERS DEPENDENT ON THEIR ACHIEVING CERTAIN MINIMUM TONNAGES .
THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS BOTH IN THE MAIN ACTION AND IN THE APPLICATION FOR AN INTERIM MEASURE .
ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT THE UNSUCCESSFUL PARTIES SHALL BE ORDERED TO PAY THE COSTS .
THE COURT
HEREBY :
1 . DECLARES THE APPLICATION ADMISSIBLE;
2 . ANNULS ARTICLE 2 ( 1 ), ( 2 ) AND ( 3 ) OF DECISIONS NOS 16/57, 17/57 AND 18/57 OF THE HIGH AUTHORITY OF 26 JULY 1957;
3 . ANNULS DECISION NO 19/57 OF THE HIGH AUTHORITY OF 26 JULY 1957 IN SO FAR AS IT RESTRICTS THE ADMISSION OF WHOLESALERS TO THE OBERRHEINISCHE KOHLENUNION TO THOSE WHOLESALERS OPERATING IN SOUTHERN GERMANY WHO FULFIL THE CONDITIONS FOR OBTAINING SUPPLIES DIRECT UNDER DECISIONS NOS 16/57, 17/57 AND 18/57;
4 . ORDERS THE DEFENDANT TO PAY THE COSTS OF THE ACTION INCLUDING THE COSTS OF THE APPLICATION FOR AN INTERIM MEASURE .
