Court of Justice 10-02-1982 ECLI:EU:C:1982:48

1. Admissibility

1. The applicants stress on the one hand that the second paragraph of Article 33 of the ECSC Treaty in principle gives undertakings subject to the ECSC Treat) the right to institute proceedings and, on the other hand that neither the ECSC Treaty nor general Community law, which is governed by the constitutional principles and legal traditions common to the Member States, recognizes executive measures which are exempt from the possibility of being challenged by the parties concerned subject to generally accepted conditions.

   The applicants refer to special cases provided for by the Treaty, in which the recognition of limited powers extending to undertakings not subject to the Treaty, is linked to the concomitant right to institute proceedings before the Court. The articles in question are as follows:

   1. Article 63 (2) which, in a case where an undertaking is prohibited from dealing with certain purchasers, confers upon the purchasers the right, without prejudice to Article 33, to bring an action before the Court;

   2. Article 66 (5) according to which any person directly concerned by an order to dismantle a concentration may institute proceedings under the conditions laid down in Article 33; the Court has unlimited jurisdiction to judge, on the basis of law and fact, whether the concentration is lawful;

   3. The second part of Article 80, which makes subject to the law of the European Coal and Steel Community, “for the purposes of Articles 65 and 66 and of information required for their application and proceedings in connection with them, any undertaking or agency regularly engaged in distribution other than sale to domestic consumers or small craft industries” and which confers upon those concerned a right of action, even if they are only required to supply information and are not required to allow verification work to be carried out as in the present case.

   On this point of admissibility the applicants submit that:

   • Either, under the terms of the second paragraph of Article 33 of the ECSC Treaty, tube producers are denied the right to institute proceedings on the ground that they are not “undertakings” within the meaning of Article 80 of the ECSC Treaty, which however necessarily implies that legal or administrative measures of the institutions of the European Coal and Steel Community may not be addressed to them;

   • Or, notwithstanding all objections based on Community law, constitutional law or public international law, the purported extension of sovereign powers in the present case is recognized and in that case legal protection conferred by the ECSC Treaty and unwritten constitutional traditions dictate that a right of action must be granted by going beyond the limits of positive law which are laid down in the second paragraph of Article 33 of the ECSC Treaty.

   Under the first of these propositions the present action is certainly inadmissible but the Court should nevertheless ensure that the legal situation is clarified in a proper manner in the context of the decision as to costs. Such a clarification is of overiding necessity for the applicants because of the present legal uncertainty and the risks which that entails.

   The Commission states that the action is directed against a general decision creating obligations for undertakings not subject to the ECSC Treaty and in the event of failure to comply with those objectives an individual decision may be adopted imposing fines and periodic penalty payments on the undertaking concerned. Article 95 of the Treaty is in itself a general provision and has not settled the question of rights of action in such a case. It may be assumed, however, that in addition to giving the Commission powers as regards the matters governed by it, it also gives the Commission the power to grant a right of action to the undertaking concerned. Decision 385/81/ECSC might therefore have expressly provided that producers of steel tube should have the right to institute proceedings under the second paragraph of Article 33 of the ECSC Treaty against the general decision or, under Article 36, against any decision imposing a penalty or that both rights of action should be available to them. The decision however contains no such express provisions.

   The Commission concedes that the applicants may avail themselves of the right of appeal granted by Article 36 against any decision imposing a penalty upon them and that under the third paragraph of that article the Court may also be requested to review the legality of the contested decision within the framework of that right of action. On the other hand the Comission rejects any possibility of applying by analogy the provisions of Article 33 concerning actions to have a general decision declared void. The possibility of contesting general decisions constitutes, even for undertakings subject to the ECSC Treaty, a narrowly defined exception which may not be extended, in the absence of an overriding reason, to undertakings which do not come within the ECSC Treaty.

   The reference made by the applicants to various articles of the ECSC Treaty is without relevance.

   1. In the case of Article 63 (2) the purchaser, although not subject to a prohibition, is in effect the person most closely affected by it and usually is much more affected by it than producers. The sole possibility of ensuring his legal protection is to give him a right of action under Article 33 against a decision which is not addressed to him.

   2. Article 66 (5) gives a right of action to undenakings not subject to the ECSC Treaty but only against individual decisions and it may not be relied upon as a ground for applying by analogy Article 33 in order to contest a general decision.

   3. The second pan of Article 80 widens in certain cases the definition of “undertaking” as defined in the Treaty and thus makes no mention of the legal protection to be conferred on undertakings not subject to the ECSC Treaty.

   Moreover, the situation of the applicant is broadly speaking equivalent to that envisaged by Article 66 (4) of the Treaty. Under that provision the Commission may either by regulation or by a special request obtain from certain natural or legal persons any information needed to control concentrations. In that case it is clear from paragraph (6) of that article that persons not subject to the ECSC Treaty have a right of action only under Article 36, that is to say only in the case where a fine or a periodic penalty payment is imposed on them.

2. The applicants state that the contested decisions must be classified as a general decision within the meaning of the second paragraph of Article 33. Moreover they acknowledge that, whilst individual decisions may be challenged on the standard grounds of lack of competence, infringement of procedural requirements or substantive provisions as well as misuse of powers and whilst the Court, in appeals against decisions imposing sanctions and periodic penalty payments has unlimited jurisdiction, the second paragraph of Article 33 of the ECSC Treaty only allows general decisions of the Commission to be contested on the ground of misuse of powers.

   However, for an action to be admissible it is sufficient, according to the applicants, to adduce relevant facts and to indicate the reasons why there has been a misuse of powers affecting the applicant. In the context of an examination of the issue of admissibility it is not necessary to prove a misuse of powers. Indeed the evidence, and the evaluation of that evidence, are matters going to the question whether the action is well-founded in substance.

   According to the case-law of the Court there is a misuse of powers where the Commission, through want of foresight or serious lack of care amounting to disregard for the purpose of the law, has pursued objectives other than those for which the powers provided for by the Treaty were conferred upon it.

   In this respect it makes no difference whether the authority applies a substantive provision for a purpose for which it is not intended or whether it uses a procedural measure as a basis for adopting measures for which the procedure selected is not intended.

   In this case the Commission has extended, beyond the field covered by the Treaty, obligations in regard to information and checks, to a class of persons not subject to the rules of the Treaty. In doing so the Commission has used the simpler procedure contained in the first and second paragraphs of Article 95 in order to “avoid having recourse to formal requirements considered as more onerous than the procedure “such as the procedure which should really be applied”, namely an amendment to the Treaty under Article 96 subject to ratification by the legislatures of the respective Member States.

   That constitutes a misuse of procedure which comes within the concept of “misuse of powers” within the meaning of Article 33 of the Treaty.

   In avoiding the procedure laid down in Article 96 tor amendments to the Treaty the Commission resorted to the simplified procedure provided for by the first paragraph of Article 95 for a purpose other than that for which it was legally provided in order to give effect to its intention to extend its own sovereign powers to undertakings which are not subject to the ECSC Treaty.

   By virtue of the second paragraph of Article 33 of the ECSC Treaty, undertakings may institute proceedings against general decisions which they consider to involve a misuse of powers “affecting them”. According to the case-law of the Court that condition is satisfied where an undertaking “has been subject to or at any rate the victim of the misuse of powers which it alleges”.

   That condition is satisfied since the applicants, whilst not being subject to the legislation of the European Coal and Steel Community or to the sovereignty of its institutions, have suffered damage to their rights and interests by being subjected to obligations to supply information which are imposed upon them directly.

   In addition to the duty to supply information, provision has also been made for an obligation to allow verification work to be carried out. That obligation is also directly applicable to them. In fact the applicants are obliged to allow such verification work “and no individual decision shall be required for this purpose”.

   As a result the applicants are the victims of a decision by which the Commission, in misuse of its powers, arrogates to itself sovereign powers affecting them.

   The Commission states that the applicants are not required to prove the existence of a misuse of powers in order that the application may be adjudged to be admissible. That is a matter of substance. In order that the application may be adjudged to be admissible, they must however formally plead a misuse of powers affecting them and make out a prima facie case of such misuse of powers.

   The applicant's argument is not material since, on the basis of the facts and circumstances described by the applicants, a case of misuse of powers cannot conclusively be made out.

   According to the Commission the submissions made by the applicants concern the issue whether the Commission is competent in the present case and whether the decision is compatible with the Treaty, but the lack of competence and the infringement of the Treaty which have been alleged may not be assimilated to a misuse of powers.

   Moreover the applicants have not made any allegation appropriate for the purposes of the contention that they alone unlike the other producers of steel tube, are the victims of a misuse of powers. Their application therefore fails to found a right of action to have a general decision declared void.