Publication of Rates the Background
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BY PETER BENENSON MOT. only the Dutch Government (The IN Commercial Motor, July 17) complained to the European Court against the Coal and Steel High Authority's requirement that all national transport rates should be published; the Italian Government did so as well. As has already been reported, the European Court rejected the Dutch Government's case. The Italian Government, which raised a number of different arguments, has been informed that consideration of their case will take rather longer. It is expected that this judgment will be given after the court's vacation towards the end of September, or early October.
One interesting point about these cases is that any interested party (and this may include a British transport concern) has the right to be heard by the Court and is entitled to intervene in the suit. Another judgment handed down on July 12 established that any interested party injured by the terms of a Court decision may apply to the Court to remove the injury.
Although it is not thought that any British concern would wish to intervene in these suits brought by the Dutch and Italian Governments, it is clearly in their interests to keep watch on future proceedings brought before the European Court of Justice.
The history of this argument about transport rates between the Dutch Government and the High Authority is a long one. It 'dates back to 1956. On July 12 of that year the High Authority sent round to member-governments a report prepared by the commission of transport experts, which had been established on February 21. There followed a series of negotiations between membergovernments and the High Authority about the implementation of the recommendations in this expert report.
Then. on August 12, 1958. the High Authority wrote a letter to membergovernments requesting them to take the necessary steps to prepare for the publication of transport tariffs and rates prevailing within their borders. The basis of this request was Article 70(3) of the Treaty of Paris (which established the Coal and Steel Community). This paragraph reads: "The rates, prices and tariffs of all sorts applied to the transport of coal and steel within each member State arid among the member States shall be published or brought to the knowledge of the High Authority."
On November 29, 1958, the Dutch Minister of Transport and Waterways replied to the High Authority stating that his Government were prepared to give information about the prices which had been charged, but they were averse to giving advance information of transport rates. In particular, the Dutch Minister stressed that, in respect of road transport rates, the only obligation which his Government had was to supply the High c12 Authority with sufficient information to allow it to determine whether or not there was any discrimination or favouritism.
The Minister insisted that the information supplied was for the use of the High Authority only, and was to be regarded as confidential.
On February 18, 1959, the High Authority, impliedly overruling the Dutch objection, issued decision 18/59 which required member-governments to publish or communicate to the High Authority the tariffs, rates and other conditions which applied to the transport by road of coal and steel within each country. The High Authority went one step further and notified all the member-governments that they were, in fact, already in default of their treaty obligations by reason of their having failed to publish this information previously.
The Dutch Government did not take this decision lying down: it appealed against it to the European Court of Justice. And when the case came on for hearing the Dutch Government won the day. On July 15, 1960, the European Court ordered the High Authority to cancel decision 18/59.
• Equally, the High Authority was not prepared to leave the matter there. It examined the Court's judgment and, taking stock of the judicial advice contained in it, redrafted its decision so as to comply with its powers and functions as laid down by the Treaty of Paris. The redrafted decision (No. 1/61) was taken on March 1, 1961, and notified to the Dutch Government three days later. The text was published in full in the Journal Officiel des Communautes Europeennes on March 9, 1961*.
On April 6, 1961, the Dutch Government filed a new complaint to the European Court requesting the annulment of decision 1/61. Soon afterwards three of the principal coal-mining enterprises of France were given leave to intervene in the case. These companies believed that they had reason to complain of unfair discrimination by Dutch hauliers in favour of Dutch-mined coal. They argued vigorously in support of the High Authority's decision.
The European Court handed down its judgment on July 12. The Court, accept
ing the advice submitted by K Roemer, Advocate-General, upheld the validity of decision 1/61 of the High Authority. This deeision. requires the transport rates and tariffs prevailing within each country,. and on inter-state routes, to be either published or disclosed to the High Authority. Transport is expressly defined as including road trans port.
The decision sets out in Article 1 the purpose for which these disclosures arc required, that is to enable coal and steel enterprises to discover for themselves whether there is any unfair discrimination against them in the realm of transport
charges. Article 4 requires each memt state to take the necessary legislative administrative steps to ensure the publl tion or disclosure of transport le before December 31, 1961. And e member-government is required to inf.( the High Authority before October of the steps which they propose to t in order to ensure adherence to decision.
It is Article 60 of the Paris Tre Which gives coal and steel enterprises right to verify for themselves that ti' is no unfair discrimination against th Article 60(2)(a) reads: "The price-I and conditions of sale within the comn market shall be published in the exl and in the form prescribed by the H Authority after consulting the Consu tive Committee; if the High Autho finds that an enterprise has chosen abnormal basing point for its price-I . . . it shall address the appropr recommendation to that enterpri; Article 70 of the Treaty deals expre: with transport charges.
In the third paragraph it is stai "The rates, prices, and tariff provisi of all sorts applied to the transport coal and steel within each member-S shall be published or brought to knowledge of the High Authority.," ' fourth paragraph provides that: *! application of special domestic tE measures in the interest of one or sev+ coalor steel-producing enterprises sl be subject to the prior agreement of High Authority, which shall ensure I such measures are in accordance with principles of this Treaty."
The Court reached its conclusion favour of requiring transport rates only to be disclosed to the IH Authority, but through it to coal steel producers, on a variety of grout But the most important ground from point of view of the road trans' industry is this: if coal and steel prodw are enabled to make private and un closed arrangements with hauliers carriage within national frontiers, it impossible for competitors in other p. of the common market to detern whether or not there is unfair discrirm tion.
In other words, private arrangerm for discounts on quantity, or for exten credit are not items which show up the standard price list which coal steel producers must publish to con with Article 60(2)(a); these are the p lists which permit one producer to ye that a competitor is not receiving unfair advantages.
Thus, the only way of ensuring + producers receive the necessary infori fian. about their competitors' transi arrangements is to insist on full publ !ion of all national transport tariffs, r and conditions under Article 70.