Abstract
Before undertaking a detailed analysis of the powers given to the Court of Justice by the Coal and Steel Treaty, a few general remarks may be made by way of introduction.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsPreview
Unable to display preview. Download preview PDF.
References
For example, Art. 33, par. 1 grants this right, among others, to member States; Art. 35, par. 1 to the Council, Art. 38, par. 1 to the High Authority, Art. 33, par. 2 to enterprises and associations; Art. 66, par. 5.2 to individuals. In several cases different parties can bring the same action, e.g., under Arts. 33, 35 and 38.
Münch, Die Gerichtsbarkeit im Schuman-Plan, published in Gegenwartsprobleme des internationalen Rechtes und der Rechtsphilosphie, pages 124 and 125.
It is expressly stated in Art. 41 of the Draft Treaty of the European (Political) Community, which may a contrario be taken as adding weight to Dr. Münch’s contention, although he does not quote the article.
For a discussion of the nature of the Court, see page 9, above.
A specific power given to the High Authority by Section 26, par. 2.2 of the Convention on Transitional Provisions.
See page 183, below.
The wording of Art. 35, par. 1 granting a right of appeal to States and to the Council “according to the case” must be explained away if the right of appeal of States and the Council is held to be identical.
See Art. 26, par. 1 of the Treaty.
Speaking through its Government representative — see Art. 27, par. 1.
See page 183, below.
Further problems arising out of the right to appeal are considered when Art. 35, par. 1 is discussed below.
Münch, loc. cit., page 127.
Die Nichtigkeitsklage im Recht der Europäischen Gemeinschaft für Kohlen und Stahl — Recours pour excès de pouvoir, Hamburg, 1952.
A position that is described as une contestation du droit objectif — see Vigne, Les recours jurisdictionnels des entreprises privées contre les décisions de la Haute Autorité, published in Acheteurs, 1952, page 30.
“Outsiders” is a term Dr. Steindorff employs to denote enterprises not within the definition of enterprises given in Art. 80 of the Treaty.
Steindorff, loc. cit., page 82.
Volkerrecht, Vol. I, page 125.
P.G.I.J., Series A/B, No. 46, page 138. 6 Steindorff, loc. cit., page 87.
Art. 63, par. 2.2; Art. 66, pars. 5.1 and 5.2; Art. 66, par. 6.2. This may be compared with the position before the International Court of Justice and the new Human Rights Court at Rome.
Art. 63, par. 2.2.
Art. 66, par. 5.1. No right of appeal is expressly granted in this article, but an appeal is open under the general wording of Art. 36, par. 2.
Art. 66, par. 5.2.
Art. 66, par. 6.2.
This is governed by Art. 33, par. 2 of the Treaty.
For a consideration of the distinction between a general and an individual decision, see the analysis of Art. 33, par. 2, page 83 below.
For a definition of this term, see page 99 and the analysis of Art. 36 page 98 below.
Power granted to the Court by Art. 66, par. 5.2 of the Treaty.
The meaning and implications of this prohibition are discussed when Art. 33, par. 1 is considered below — see page 80.
A tabulation of the actions that may come before the Court is given below — see page 65.
The execution of this formality is to be the responsibility of a Minister which each of the Governments must designate for the purpose — Art. 92, par. 2 of the Treaty.
Art. 38 of the Treaty.
Art. 33, par. 2 of the Treaty.
Art. 38 of the Treaty. For these grounds see page 108 below.
Art. 37, par. 3 of the Treaty. See also under b.
Art. 35, par. 3 of the Treaty. 5 Art. 37, par. 3 of the Treaty. 6 Art. 34, par. 2 of the Treaty.
Art. 40, par. 2 of the Treaty. Should the injured party not recover damages from the agent, the Court can impose an equitable charge upon the Community as a whole — idem.
For example, pecuniary sanctions against States under Art. 88, par. 3a), against enterprises under Art. 47, par. 3, and against individuals under Art. 66, par. 5.1 of the Treaty. For a full list of these sanctions see AppendixIII
Art. 89, par. 2 of the Treaty.
Art. 39, par. 1 of the Treaty — Art. 66, par. 5.2 of the Treaty is an exception.
Art. 39, par. 2 of the Treaty.
For a discussion of whether these measures are dependent upon a prior suspension of the decision or recommendation, see page 113 below.
Art. 41 of the Treaty.
Art. 70, par. 1 of the Rules. 6 Art. 10, par. 5 of the Rules.
Art. 13, par. 2 of the Statute.
Art. 43, par. 2 of the Treaty.
Art. 42 of the Treaty.
Art. 89, par. 2 of the Treaty.
For example, those allowed by Arts. 33, 35, 36 and 38 of the Treaty.
The procedure for dismissal is set out in Art. 12, par. 2 of the Treaty.
Art. 24, par. 3 of the Treaty.
A requirement for holding office set out in Art. 9, par. 1 of the Treaty.
For examples of these conditions, see Art. 9, pars. 5 and 7 of the Treaty.
A further example of the extent to which French procedural law has been copied, is to be found in Art. 34 of the Treaty by which, following an annulment of a decision or recommendation of the High Authority, that Authority is itself required to take the measures to carry out the decision of annulment, so that its duty is in no way superseded by the Court.
Duez and Debeyre, Traité de Droit Administratif, Dalloz, 1952, page 573.
See, for example, Art. 59, par. 5 of the Treaty — requiring a unanimous vote — and Art. 56, par. 2 — requiring a two-thirds majority.
For example, Art. 51, par. 1.3 and Art. 55, par. 2 of the Treaty. A failure to comply with these conditions may also be classed as a violation of the Treaty.
See the consideration of Art. 38, below.
Duez and Debeyre, Traité de Droit Administratif, Dalloz, 1952, page 576.
Loc. cit., page 579.
Leferriere, Traité de la Juridiction Administrative et les Recours Contentieux, 1896, II, page 548.
Conférences de Droit Administratif, II, page 531.
Comp, also R. Laun, Bemerkungen zum freien Ermessen und zum détournement de pouvoir im staatlichen und im Völkerrecht, in Festschrift für Herbert Kraus anlässlich seines 70 Geburtstages.
For a discussion of whether the terms of this paragraph are applicable to appeals brought under Art. 37, par. 3, Art. 41 and Art. 65, par. 4.2 of the Treaty, see pages 104, 122 and 129 below.
For example, Art. 36, par. 3 and Art. 66, par. 5.2 of the Treaty.
Rapport de la Délégation Française sur le Traité instituant la C.E.C. A., published by the Ministère des Affaires Etrangères, October, 1951; La Communauté Européenne du Charbon et de l’Acier, by Paul Reuter, 1953; La Cour de Justice de la C.E.C.A. by A. Antoine in Révue Générale de Droit International Public, April-June, 1953.
Antoine, ioc. cit., page 233.
It is interesting to an English lawyer to note that only in a few of the articles giving powers to the High Authority is the phrase “in its opinion” employed, thus largely avoiding the many difficulties that phrase has caused English Courts. Art. 58, par. 1 is an exception.
For example, Art. 59, par. 1 of the Treaty.
Antoine, toc. cit., page 234.
See the Bunkerfirmen-Vereinigung case, page 183 below.
R.D.F., page 35.
Antoine, loc. cit., page 236.
For a discussion of this, see page 56 above.
Antoine, loc. cit., page 236.
See further page 72 above.
Antoine, loc. cit., page 237. He adds that in his opinion the Court must be limited to evidence that appears from the pièces du dossier.
Reuter, par. 90. He proceeds by questioning whether one could attack a decision because, though its dominant motive was in the interest of the Community, “yet the decision was of another nature than that envisaged by the Treaty in the particular articles by which it was governed”.
R.D.F., page 35.
Art. 14, par. 1 reads: “In the execution of the mission entrusted to it, and under the conditions set out in the present Treaty, the High Authority shall take decisions, formulate recommendations and issue avis”.
The distinction between decisions, recommendations and avis is set out in Art. 14, pars. 2, 3 and 4. This distinction is connected exclusively with the extent to which they are binding and in no way with their substantial contents. Further, the term “decision” is not intended to cover all those matters that have been decided, nor is a recommendation to be understood as a line of policy that is simply recommended — a “recommendation”, as the term is used in the Treaty, is binding.
The creation of a Commission of Experts and the appointment of its President was effected by means of Arrêtes-see Journal Officiel, 7th March, 1953.
Art. 65, par. 2.5 of the Treaty.
Münch, Die Gerichtsbarkeit im Schuman-Plan, published in Gegenwartsprobleme des Internationalen Rechtes und der Rechtsphilosophie, page 130.
R.D.F., page 35, see page 16 above.
Examples of such express provisions are: Art. 58, par. 1 — if the High Authority deems that the Community is faced with a period of manifest crisis; Art. 59, par. 1.1 — if it finds that the Community is faced with a serious shortage of one or more products; Art. 60, par. 2b), penultimate sentence-if the decisions appear necessary to avoid disturbances; Art. 63, par. 1 — if it finds that discrimination is being practised by buyers; Art. 65, par. 2.1 — if it admits that certain arrangements between enterprises will contribute to a substantial improvement in production; Art. 65, par. 2.2, — if it finds that certain agreements tend to restrict normal competition. For a full list of the possible decisions and recommendations of the High Authority, see Appendix II.
R.D.F., page 35.
On the question of whether this can be regarded as a decision, see page 76, above.
Art. 58, par. 1 of the Treaty only makes reference to a “manifest crisis”. It is not clear whether the Court, which is precluded from the study of economic facts, is thereby debarred from enquiring whether a particular crisis is also a manifest crisis.
As required by Art. 58, par. 1 of the Treaty, see Appendix VB.
For the views of Dr. Steindorff on this subject, see page 61 above.
It is not stated whether a month means a period of four weeks or a period reckoned from a date in one month to the same date in the next. In the case of notification, this period of one month is to be calculated from the day after the party concerned receives such notification; in the case of publication it is to be calculated from the fifteenth day after the publication of the decision or recommendation in the Journal Officiel — Art. 85, par. 1 of the Rules. For the extention of this time for delays caused by distance see Art. 85, par. 2 of the Rules — page 177, footnote 4 below.
Thus, decision No. 21/53 of the High Authority concerning the price scales of the enterprise N. V. Maatschappij tot Exploitatie van de Mijnen Laura en Vereeniging, Eijgelshoven, is published in the Journal Officiel of 13th March, 1953. See also decisions 19/53, 20/53, 22/53 and 23/53, which are each confined to regulating one enterprise.
1st August, 1954.
Par. 3 of this Information speaks of any other decisions — toute autre decision — that the High Authority may subsequently take on this subject. From this it is being assumed that the letter to the Italian Government is regarded as embodying a decision.
R.D.F., page 39.
The distinction in the Treaty between reparations — réparations — and compensation — indemnité — is that the former covers the cost of rectifying the damage that has been caused, while the latter is a money payment making amends for disturbance.
R.D.F., page 39.
It should be noted that the words are not “full reparation”. It was assumed by members of the Netherlands’ Parliament in their discussion of this article (see page 18 above) that the term “equitable reparation” implies less than “full reparation”. This interpretation may be doubted on the contention that “equitable reparation” must always be full, but against this must be set: first, that the avoidance of the words “full reparation” must be held as significant, and secondly, that as the funds at the disposal of the High Authority are obtained from all the other enterprises of the Community, an equitable solution must take account of other parties than the High Authority and the particular enterprise that has been injured.
The French Delegation assume that this redress is to be en nature — R.D.F., page 39.
For a discussion of the possible relationship between a right of appeal under this paragraph and under Art. 35, par 3 of the Treaty, see page 97 below.
The grounds upon which a decision or recommendation of the High Authority may be annulled is governed by Art. 33, par. 1 of the Treaty — the question of liability in passing them is not.
This action, however, is only open if it is held that the duty placed upon the High Authority by Art. 34, par. 1 is a duty “to take a decision or to formulate a recommendation”.
This might be important if an enterprise is not prepared to bear the burden of costs in doubtful litigation. For a discussion of the requirement of interest see page 57 above.
For a discussion of the meaning of the word “obligation” see page 94.
il appartient, selon le cas, aux Etats.....de la saisir. The meaning of “according to the case” is discussed when par. 3 is considered below.
See also Art. 58 par. 1.2 of the Treaty.
For example, Art. 63, par. 1, Art. 65, par. 2.1 and Art. 68, par. 3 of the Treaty. See further Appendix IIA.
Express power is given to the High Authority to repeal its own decision on certain matters by Art. 58, par. 3 and Art. 59, par. 6 of the Treaty.
As, for example a deliberate witholding on unjustified grounds of a guarantee of a loan granted to an enterprise, see Art. 51, par. 2.
R.D.F., page 36.
For a discussion of this, see page 57 above.
See page 58 above.
Antoine, in Révue Générale de Droit International Public, April-June, 1953, page 238.
Art. 85, par. 2 of the Rules is expressly defined to apply only to the limitations of time mentioned in Art. 33 of the Treaty and in Art. 31 of the Rules. Art. 39 of the Statute of the Court — which applies to appeals under Arts. 36 and 37 of the Treaty — does not apply to Art. 35, par. 3.
R.D.F., page41.
Reuter, La Communauté Européenne du Charbon et de l’Acier, par. 91.
Antoine, loc. cit., page 242.
Art. 39 of the Statute of the Court.
Antoine, loc. cit., page 243. 3 Reuter, loc. cit., par. 89.
Art. 63, par. 2.2, Art. 66, par. 5.1, Art. 66, par. 5.2 and Art. 66, par. 6.2 of the Treaty.
For these see page 73, footnote 5 above.
See page 185 below.
Declaration of the Belgian Sénat, see page 23 above. 5 une telle situation.
Antoine, loe. cit., page 244.
R.D.F., page 43.
Reuter, loc. cit., par. 91. See also page 26 above.
It is submitted below that consistency requires that appeals brought under Art. 41 of the Treaty must be regarded as being bound by the terms of Art. 33, par. 1 of the Treaty, which if accepted would add weight to the contention that Art. 33, par. 1 is a general provision.
Art. 39, par. 1 of the Statute, see page 178 below.
For the reckoning of this time, see Art. 85, par. 1 of the Rules, page 177, footnote 4 below.
By Art. 14, par. 5 of the Treaty, when the High Authority is empowered to take a decision it may limit itself to formulating a recommendation.
It would appear that a State can also appeal to the High Authority, under Art. 35, par. 1, for a failure to carry out a term of the Treaty — Art. 37, par. 2 — and then after two months’ further inactivity on the part of the High Authority can appeal to the Court — though here it would not get compensation.
A list of these délibérations is given in Appendices III and IV.
Art. 85, par. 1 of the Rules which declares that only from fifteen days after the date of publication of a decision or recommendation of the High Authority is the period of one month to be calculated, does not apply to the publication of the délibérations of the Assembly.
The Inter-Parliamentary Union in their English version of the Treaty translate délibérations as “acts” — see “Constitutional and Parliamentary Information”, 3rd Series, No. 12.
R.D.F., pages 36–37. 3 See Appendix IV.
This action for annulment can be brought by the High Authority or by member States — Art. 38, par. 1 — but in practice it would seem that only member States would bring it.
R.D.F., page 45.
In support of this it may be argued that as the Rules of Procedure are subordinate to the Treaty, they clearly cannot in any way limit the competence granted to the Court by the Treaty, so that Art. 63 must be held only to be binding upon appellants.
For this procedure see page 00, below. Art. 63, par. 2 of the Rules may be held to mean either that there is a contradiction with the Treaty, in which case the terms of the Protocol on the Statute of the Court would take precedence over the Rules of Procedure as being higher ranked; or, which is suggested is the case here, that two procedures are intended. This means that if appellants seek both an injunction and an annulment, they must notify the President of the Court and the Registrar separately.
Article 63, par. 1 lays down that “No request seeking to obtain by means of summary procedure the suspension of execution foreseen in Art. 39, par. 2 of the Treaty can be made unless the decision or recommendation of the High Authority has been challenged in a principal appeal lodged either previously or at least simultaneously”.
Under Art. 38, par. 1 of the Treaty.
R.D.F., pages 45–6.
It may, however, be significant that neither of the requests for the suspension of the execution of the decisions of the High Authority in the Bunkerfirmen-Vereinigung and the German Armaments cases mention the ordering of provisional measures. See pages 183 and 182, below.
See Duez and Debreyre, Traité de Droit Administratif, Dalloz, 1952, page 694.
Idem.
sous réserve de
R.D.F., page, 37.
Antoine, loc. cit., page 240.
R.D.F., page 39.
R.D.F., page 40.
Reuter, loc. cit., par. 93.
Antoine, loc. cit., page 241.
The lifting of immunity is governed by Art. 13, par. 2 of the Protocol on Immunities and Art. 16, par. 3 of the Statute of the Court.
Reuter, loc. cit., par. 77.
R.D.F., page 40.
la Cour peut...
By Art. 6 of the Treaty, the Community is granted full legal capacity in each of the member States, and has the right of acquiring and disposing of both real and personal property and of being represented in national tribunals.
Reuter, loc. cit., par. 78.
R.D.F., page 40.
For an analogous situation see the Australian Bank Case, 1950, before the Privy Council (1950 A.C., page 235) on the question whether the reference to inter-State legislation in one charge ended the Council’s power to hear the case.
It is not clear, however, if the High Authority on this interpretation would be bound by Art. 34 of the Treaty.
See Art. 33, par. 3 and Art. 38, par. 2 of the Treaty.
For example, grants of jurisdiction given by Art. 16 of the Protocol on Privileges and Immunities and Art. 37 of the Protocol on the Statute of the Court.
A national tribunal would not appear to have any implied right conferred by this article to determine whether a class of subjects covered by the national legislation is other than a class concerned with the object of the Treaty, If such a class were so included, this inclusion, by Art. 43, par. 2, would clearly not grant jurisdiction to the Schuman Court.
This situation may be compared with the similar one that arises as a result of the wording of Art. 40, par. 3 of the Treaty — see page 120, above.
The obligation on the High Authority not to reveal certain information is contained in Art. 47, par. 2 of the Treaty.
But see the comment, page 114, above.
These conditions of sale require a purchaser to conform to the rules drawn up by the High Authority in application of the terms of Arts. 60–64 of the Treaty — concerning prices — see Art. 63, par. 2.1a) of the Treaty.
Art. 43, par. 1 of the Protocol on the Statute of the Court sets out that the decisions of the High Authority under Art. 63, par. 2 of the Treaty must be notified to the purchaser as well as to the enterprises concerned, but that if the decision concerns all, or a large number, of the enterprises, a publication of the decision may be substituted for a notification.
The text deals first with the case of a breach and then permits additional sanctions in the case of a further breach — en cas de récidive — and finally allows an appeal “in this case”. page 127, footnote 1 above.
For a general discussion of what amounts to a decision of the High Authority, as referred to in Art. 33, par. 1 of the Treaty, see page 76 above. It is being assumed here that this pronouncement of the High Authority is a decision.
This means, as mentioned above, see page 63, that the more widespread the agreements are, or the more comprehensive the association of enterprises is — and therefore the more important the agreements or decisions become — the less comprehensive is the defence granted by the Treaty to these enterprises or associations concerned.
It appears from the wording of Art. 65, par. 5 that fines and daily penalty payments for violation of Art. 65, par. 1 may only be imposed upon enterprises and not upon associations. The Court will have to decide, therefore, whether an association may appeal against such sanctions imposed upon its constituent enterprises.
When the concentration comprises one or more “outsiders” i.e. enterprises not coming within the definition in Art. 80 of the Treaty, the High Authority is bound to hear the Government concerned before taking its decision.
By par. 3, certain classes of transactions are exempted from this requirement owing to the importance of the assets or enterprises affected, considered together with the nature of the concentrations thus realised. The regulation established for this purpose with the concurrence of the Council will also determine the conditions to which such exemption is to be subject. See also Art. 13 of the Convention on Transitory Provisions.
This authorisation can, however, be granted by the High Authority under such conditions as it may deem fit — Art. 66 par. 2.3 of the Treaty.
Art. 66, par. 5.1 of the Treaty. See Appendix III. The imposition of this fine gives a right of appeal under Art. 36, par. 2 of the Treaty.
Art. 66, par. 5.2 of the Treaty. This gives a right of appeal under Art. 33, par. 2 of the Treaty.
Die Nichtigkeitsklage im Recht der Europäischen Gemeinschaft für Kohlen und Stahl — Recours pour excès de pouvoir, Hamburg, 1952.
The inferences that Dr. Steindorff draws from this situation have been set out and discussed above, see page 61.
In the case of a very large concentration affecting several countries, the decision might be taken as being general and then particular enterprises in that concentration could only appeal against that decision on the grounds of a détournement de pouvoir — Art. 33, par. 2 of the Treaty. It may be doubted whether the State in which an enterprise operates is a party “directly interested”, and thus able to appeal — especially seeing that it would here be appealing on behalf of the enterprise and not on its own account.
In relation to individuals, it is not clear what meaning the term “individual decision”, as employed in Art. 33, is to have. The decisions of the High Authority under Art. 66 either regulate enterpises or assets.
It may perhaps be assumed that individuals will be given the same right of action as enterprises and associations and become bound by the conditions of Art. 33, par. 2 of the Treaty.
As is the case in the reference in Art. 36, par. 3 of the Treaty.
On this see further the consideration of Art. 33, page 85, above.
It may be noted that the time for bringing an appeal against a pecuniary sanction under Art. 36, par. 2 of the Treaty is limited to one month by Art. 39 of the Statute, while for appeals under Art. 88, par. 4 of the Treaty the time is two months.
Art. 88, par. 4 describes the suspension of payment as a decision.
The same incorrect, or at least ambiguous, wording is to be found, for example, in the recent draft of the International Law Commission on Arbitral Procedure (Art. 28).
For the purpose of these levies and the means of increasing them, see Art. 50 of the Treaty.
The only action that the High Authority may take against States as a punitive measure is set out in Art. 88, par. 3 of the Treaty, and comprises the withholding of sums due to that State from the High Authority, and the authorising of other States to take action against it. Appeals against the High Authority are governed by Art. 88, see page 136 above.
Author information
Authors and Affiliations
Rights and permissions
Copyright information
© 1955 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Valentine, D.G. (1955). The Competence of the Court. In: The Court of Justice of the European Coal and Steel Community. Springer, Dordrecht. https://doi.org/10.1007/978-94-015-0927-5_4
Download citation
DOI: https://doi.org/10.1007/978-94-015-0927-5_4
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-015-0361-7
Online ISBN: 978-94-015-0927-5
eBook Packages: Springer Book Archive