Opinion of Mr Advocate General Reischl delivered on 24 November 1981. # Rudolf Flender KG and others v Commission of the European Communities. # ECSC - Action for a declaration of nullity brought by undertakings not subject to the Treaty. # Case 74/81.

(a)

In the context of such an examination, which perforce will be only summan', the first question to be answered is whether undertakings, that is to say tuhe producers, may be considered as having a right to bring an action under the ECSC Treaty.

According to the system of the Treaty and in view or the fact that in principle only those undertakings which. according to Articles 80 and 81 and of Annex I to the Treaty, may be defined as being engaged in production (thus excluding processing companies such as the applicants), are subject to the provisions of the Treaty and to measures adopted thereunder, of the private natural and legal persons who may be affected by such provisions and measures only undertakings engaged in production and their associations may obtain judicial review of measures adopted by the Coal and Steel Community in the exercise of its sovereign powers (second paragraph of Article 33 of the ECSC Treaty). For the purposes of Articles 65 and 66 and of the information required for their application, undertakings and agencies regularly engaged in distribution other than sale to domestic consumers or small craft industries are by virtue of Article 80 placed on the same footing as regards such measures.

Furthermore, the possibility of instituting proceedings exists only in a number of special cases. Thus, under Article 63 of the Treaty, a purchaser of coal and steel products may bring an action before the Court if the Commission, having found that the purchaser has infringed certain obligations contained in the conditions of sale of undertakings relating to price maintenance, restricts dealings with that purchaser by Community undertakings. In addition, mention should be made of the field covered by Article 66 which governs cases of concentration between undertakings, at least one of which is covered by Article 80. The others therefore need not be undertakings subject to the Treaty. Article 66 (4) gives the Commission the power to obtain information even from the latter undertakings. By virtue of Article 66 (6), in the event of non-compliance fines may be imposed, subject to a right of appeal under Article 36. Under Article 66 (5) the Commission may order the separation of undertakings which are unlawfully concentrated. Any person directly concerned, including undertakings not subject to the Treaty, may appeal against such an order. If the order for separation has not been carried out within the specified period Article 66 (5) gives the Commission the power to impose fines against which appeals may be brought under Article 36 of the Treaty in conjunction with Article 43 (2) of the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community. Again, Article 66 (6) provides for the imposition of fines on all natural and legal persons who have evaded the obligations laid down in paragraph (1) of that Article, or who have obtained or attempted to obtain authorization under paragraph (2) by means of false or misleading information. Article 36 also confers a right of appeal in such cases.

Since it is plain, on the facts of the case, that tube producers do not fall within any of those categories, it is indeed arguable that no right to institute proceedings before the Court is available to them.

None the less I have very serious reservations about accepting that argument. The applicants have rightly pointed out that there is no power in the Treaty by which the Commission may, as it were, create a legal vacuum by addressing to undertakings, which are not covered by the Treaty, measures which may not be made subject to judicial review. It cenainly cannot be inferred from Article 33 of the Treaty that the Treaty covers undertakings or persons who are deprived of any legal protection. I have no doubt that such a proposition would be repugnant to constitutional principles and legal traditions common to all the Member States, which have given rise to something akin to a body of general principles of Community law. It is thus possible to infer from the above-mentioned provisions a general principle governing the system of the ECSC Treaty, a principle, moreover, which the Commission has not denied, to the effect that, whenever measures adopted on the basis of the Treaty produce effects on undertakings which are not subject to its provisions and to which certain measures are expressly addressed, such undertakings too, may obtain judicial review of those measures, even where, as in the present case, no such right is granted expressis verbis in the allegedly ultra vires measure. That being so, the applicants' alternative argument to the effect that, in the absence of any legal protection for tube producers and in the light of the general scheme of the Treaty, the measures laid down in Decision 385/81/ECSC cannot in law apply to them, also becomes irrelevant.

(b)

Decision 385/81/ECSC is a legislative measure, that is to say a general decision within the meaning of the Treaty. Thus, in applying to the Court, the applicants have founded their action on the second paragraph of Article 33 of the Treaty which provides that “undertakings or the associations referred to in Article 48 may, under the same conditions, [those laid down by the first paragraph] institute proceedings against decisions or recommendations concerning them which are individual in character or against general decisions or recommendations which they consider to involve a misuse of powers affecting them”. In their view, it is possible, in the present case too, to mount in this way a direct challenge to the measure complained of, subject only to the precondition that a prima facie case for misuse of powers affecting the applicants is made out.

The Commission, however, considers that argument to be untenable. In its view, there can be no question of an application by analogy of the provision cited above, which is designed for coal and steel undertakings within the meaning of the Treaty, and by virtue of which the contesting of general measures is to be considered exceptional, to undertakings which are not subject to the Treaty. This, according to the Commission may be demonstrated by reference to the general scheme of the Treaty which, as we have seen, grants to undertakings, which are not subject to the Treaty, special rights of appeal which, in the Commission's view, would otherwise be meaningless. If, however, — so runs the Commission's argument — those special provisions are taken as a basis and it asked which specially regulated case is most closely comparable to the present case, it is difficult to avoid the conclusion that it is only following a decision to impose a penalty that judicial review may be applied for. In the context of that review the general decision on which the individual decision is based also becomes subject to scrutiny by way of Article 36 of the Treaty.

In my opinion there is, in any event, something to be said for the Commission's view. An examination of the provisions I have mentioned conferring rights of action on undertakings not covered by the Treaty shows that in no case is there a right to institute proceedings against general decisions. It appears, therefore, that the most appropriate solution in the present case would be to grant a right of action analogous to the one provided for by Article 66 (6).

Article 63, which enables coal and steel undertakings to be made subject to obligations which mainly affect their purchasers, had to give a right of action to the purchasers who themselves are in no way addressees of decisions. The decisions in question are however always individual in nature, as is clear from the general system of the Treaty and some of the provisions of Article 63 as well as from the fact that Article 43 of the Protocol on the Statute of the Court of Justice provides that such decisions must be notified to the purchasers concerned. Thus, even if an application by analogy of that provision were to be considered (and the different nature of the facts in the present case militates against this), there would certainly not be any justification for a right of action against a general decision.

Similarly, Article 66 (5) which confers a right of action on any person directly concerned never speaks of general but only of individual decisions, whether it be a case of a finding that a concentration is unlawful or of contesting orders for separation and interim measures of protection in connection therewith, or the consequential impostion of penalty payments and fines.

Article 66 (4), dealing with concentrations which may involve undertakings not subject to the Treaty, empowers the Commission to request information from those undertakings. Pursuant to that article Decision 26/54 of 6 May 1954 was issued (Official Journal, English Special Edition, October 1972, p. 17). Article 2 of that decision provides that natural and legal persons are to notify certain acquisitions of rights in an undertaking and Article 7 provides that the High Authority may, by special request, obtain from the persons mentioned in Article 1, all information necessary for the implementation of Article 66 of the Treaty. In the event of non-compliance fines may be imposed under Article 66 (6) subject to a right of appeal under Article 36 of the Treaty. This can only be understood as meaning that, in this situation, too, persons not subject to the Treaty have a right of action only against individual decisions imposing penalties on them. For if it were otherwise, that is to say if one were to accept the applicants' argument to the effect that no provision had been made for legal protection of persons not subject to the Treaty in connection with requests for information and that therefore, in regard to Article 66 (4), general principles of legal protection must be applied, then the reference which is made in Article 66 (6) to Article 36 of the Treat), and which can only relate to undertakings not subject to the Treaty, would be deprived of any real meaning. It must also be acknowledged that, of all the special provisions conferring rights of action on undertakings not subject to the Treaty, the right of action contained in Article 66 (6) must be considered as coming closest to the present case. Even if it cannot be denied that the facts of the case are somewhat different since Decision 385/81/ECSC also confers the right to carry out checks and since, in the case of a concentration involving a number of undertakings not covered by the provisions of the Treaty, those undertakings voluntarily bring themselves within the field of jurisdiction of the ECSC Treaty, there are still strong grounds for supposing that, in the case of a general decision, the possibility of legal protection is only afforded, by analogy with Article 66 (6), to the extent of permitting appeals against individual decisions adopted in implementation of Decision 385/81/ECSC, but not to the extent of allowing that general decision to be contested directly. Since, in this respect, objections founded on rules of constitutional law are difficult to sustain (after all. it is clear that Community law makes no provision for a general right of action, and even coal and steel undertakings may bring an action against general decisions only in exceptional cases), the present action could have had no hope of succeeding simply because an action brought by tube producers against a general decision could not have been considered admissible.

(c)

If that line of reasoning is rejected and it is instead considered appropriate to apply by analogy the second paragraph of Article 33 to the present case, on the ground that otherwise there would be no reasonable or adequate legal protection, that still does not establish the admissibility of the action. Since the decision at issue is clearly general in nature, it is necessary, according to the case-law of the Court, that the applicants should make out a prima facie case of a misuse of powers affecting them (judgment of 9 June 1964 in Joined Cases 55, 59 and 61 to 63/63 Modena v High Authority [1964] ECR 211).

The applicant's submissions in that respect principally allege a misuse of procedure which constitutes, according to the applicants, a misuse of powers. There is a misuse of powers if a procedural measure is used to implement measures for which the procedure resorted to is not designed, in particular where recourse is had to a simple procedure so as to avoid a more complicated one. In the applicants' view it is important, in considering the problems raised by the present case, to remember that the legislatures of the Member States had defined the class of persons who come within the jurisdiction of the Coal and Steel Community. Tube producers clearly do not come within the field of application of the ECSC Treaty. The provisions of the Treaty could therefore only have been extended to them by way of an amendment — requiring ratification — to the Treaty under Article 96 and certainly not by using, as was the case, the procedure laid down by Article 95. It was absolutely inadmissible to adopt the decision under the procedure laid down in the first paragraph of Article 95, as evidently happened. A “minor amendment” of the Treaty which, under paragraphs (3) and (4) of Article 95, is subject to stricter and wider ranging preconditions is limited inasmuch as there may only be an amendment of existing powers and there can be no question of creating completely new powers. Nor may such amendment entail any alteration in the general scheme of the Treaty or in the relationship between the powers of the Community and those of the Member States. However, if those conditions must be observed in the case of a “minor amendment” of the Treaty, there can be no doubt that they apply equally to the procedure laid down in Article 95 (1) which is both simpler and leaves less scope for discretion. In this case, too, there can be no question of extending the class of persons coming within the field of application of the ECSC Treaty or of creating completely new powers, as was the intention of the contested decision.

In addition, the applicants also find that there is a misuse of powers in the failure to have regard to the objectives of Articles 2, 3 and 4 as well as in the extension, for the wrong purposes, of the power to obtain information and to carry out checks. They point out that the reference in the decision to those articles is not significant in itself because those articles are mentioned in any event in Article 95. Thus the unlawful extension of the class of persons to whom the ECSC Treaty applies also constitutes an infringement of the above-mentioned objectives of the Treaty since the realization of those objectives is confined to the market in coal and steel within the framework laid down in Article 3.

Lastly, there can be no doubt, in the applicants' view, that there was a misuse of powers affecting them and that they have been the subject or at any rate the victim of a misuse of powers, a necessary requirement laid down by case-law of the Court (judgment of 16 July 1956 in Case 8/55 Fédération Charbonniere de Belgique v High Authority [1956] ECR 227). They have been manifestly prejudiced by the imposition of a duty to furnish information and by the obligation to permit checks to be carried out. They contend that they are particularly affected because they are bound to their suppliers by long-term contracts which preclude any other use being made of the material supplied and therefore the suppliers are able to carry out checks which make it unnecessary to subject the applicants to any further direct checks.

I have, however, serious doubts, as does the Commission, whether the applicants' contention is sufficient for the purposes of the second paragraph of Article 33 of the ECSC Treaty.

(d)

Accordingly, there is no need for me to examine further the substance of the case. I would nevertheless like very briefly to give my thoughts on this matter.