Netherlands v ECSC High Authority: ECJ 19 Feb 1960

Europa Although for the publication of price-lists and conditions of sale applied within the common market the treaty has expressly given the high authority a legislative power, providing even for review by the consultative committee, the absence of any provision in this respect in article 70 shows that in the transport sector the treaty denies the high authority any express power to take implementing decisions. Neither the wording nor the general structure of the treaty gives the high authority implied legislative power with regard to the publication of transport tariffs. The obligatory publishing of prices does not mean that transport tariffs have to be published. The expressions ‘price-lists and conditions of sale’ in article 60 refer only to price-lists and conditions of sale of goods and not to those of transport for charges are only one element of the seller’s cost price, which he is not required to publish. Nor is it possible to infer general powers for the high authority with regard to checking discrimination from a structural and functional correlation between the obligation to publish the prices of products and the obligation to publish transport costs. The high authority cannot under these powers introduce preventive measures by way of decision and in this connexion lay down that scales or rates must be published, since its legislative power in the matter is exceptional and subject to renunciation by the member states which the treaty does not provide for either expressly or by implication in the sphere of the publication of transport tariffs. Article 88 does not give the high authority legislative power similar to the power with regard to the general law of the treaty. The high authority cannot therefore rely on this provision to take decisions creating obligations on the part of the member states. The only object of the reasoned decision referred to in article 88 is the recording of failure to fulfil obligations arising either from an imperative provision of the treaty or a decision or recommendation prior to the application of this article. Article 88 opens means of implementation and is the ultima ratio enabling the community interests enshrined in the treaty to prevail over the inertia and resistance of member states. Nevertheless article 88 must be strictly interpreted. The recording of a failure on the part of a member state to fulfil an obligation imposed by the treaty cannot, in a matter such as the publication of transport charges where the high authority has no legislative power, relate to the means indicated by the high authority to attain the proposed objective but only to the failure to attain this objective.


C-25/59, [1960] EUECJ C-25/59




Updated: 20 May 2022; Ref: scu.131603