Action on the part of the high authority within the meaning of the first paragraph of article 37 must be interpreted as referring only to an action which has already occurred and not a decision which the high authority has the as yet unresolved intention of adopting.
The case of discrimination covered by the first paragraph of article 70 refers exclusively to conditions of transport and therefore to the comparability of different routes and locations from the point of view of transport.
Special rates and conditions within the meaning of the fourth paragraph of article 70 are not only those adopted in the interest of undertakings, but also those which are advantageous to them. Therefore even reasons for their adoption which are entirely foreign to the interests of an undertaking receiving an advantage cannot exclude or restrict the application of the abovementioned provision.
The adverse effect on the profitability of an undertaking of the lack of special rates and conditions does not render those rates and conditions consonant with the principles of the treaty and therefore does not, in cases where the fourth paragraph of article 70 applies, put the high authority under an obligation based on articles 2 and 3.
A protective rate is compatible with the treaty only in exceptional cases, notably where the undertaking receiving assistance is experiencing disadvantages created by factors other than those of an economic nature; such a rate is legitimate only in so far as it is necessary in order to enable the undertaking to adapt itself to new conditions or to survive an accidental disadvantage.
Citations:
C-19/58, [1960] EUECJ C-19/58
Links:
European
Updated: 20 May 2022; Ref: scu.131578