J. Nold, Kohlen- und Baustoffgroßhandlung v Commission of the European Communities (4/73)

I —The facts

In pursuance of paragraph (2) of Article 12 of the Convention on the Transitional Provisions annexed to the ECSC Treaty and of Article 3 of the Decision of the High Authority No 37/53 of 11 July 1953 on the date of implementation of the prohibitions relating to agreements laid down by Article 65 of the Treaty (OJ, p. 153), the High Authority informed the mining companies of the Ruhr Basin, in May 1954, that it could not authorize the continued existence of the ‘Gemeinschaftsorganisation Ruhrkohle GmbH’ (GEORG), the central organization for the coal, set up before the establishment of the common market in coal.On 15 February 1956, by Decisions Nos 5/56 (OJ, p. 29), 6/56 (OJ, p. 43) and 7/56 (OJ, p. 56), the High Authority authorized, subject to certain conditions, the joint sale of fuels by the mining companies of the Ruhr Basin associated to form the three selling agencies ‘Geitling’, ‘Präsident’ and ‘Mausegatt’.The trading rules authorized on that occasion by the High Authority fixed, in particular, the conditions required for acquisition of the status of direct wholesaler, with the right to direct purchase from a selling agency. For direct purchase from an agency, the dealer had to meet not only the conditions ordinarily required of a wholesaler (creditworthiness, establishment within a sales area, storage capacity, knowledge of the market and the products, extensive custom, wide range of categories and sorts for sale), but also to have sold, during the preceding coal industry year,(a) within the common market, at least 75000 metric tons of fuels originating from Community coalfields,(b) of which at least 40000 metric tons were to have been sold in the sales area where he wished to acquire the right to operate as a dealer,(c) of which at least 12500 metric tons were to have been bought from the selling agency concerned.By way of derogation from these conditions, the right of direct purchase from selling agencies was also granted, for a transitional period originally limited to 31 March 1957 and extended to 1 July 1957 by Decisions of the High Authority Nos 10/57 (OJ, p. 159), 11/57 (OJ, p. 160) and 12/57 (OJ, p. 161), of 1 April 1957, to wholesalers who, even though failing to satisfy the quantitative criteria imposed, had been supplied as direct wholesalers during the preceding coal industry year or who could establish that they fulfilled the conditions required during that year for supply as direct wholesalers (sale of 6000 metric tons per annum of Ruhr coal).An action for annulment of Decision No 5/56, brought by the selling agency ‘Geitling’, was dismissed by the Court in its Judgment of 20 March 1957 (Case 2/56, Rec. 1957, p. 11).By Decisions Nos 16/57 (OJ, p. 319), 17/57 (OJ, p. 330) and 18/57 (OJ, p. 341) of 26 July 1957 the High Authority supplemented and amended Decisions Nos 5/56, 6/56 and 7/56 of 15 February 1956 authorizing the joint sale of fuels by the mining companies of the Ruhr Basin.As regards qualification as a coal wholesaler with the right of direct purchase, the respective quantitative minima were reduced from 75000 to 60000 metric tons, from 40000 to 30000 metric tons and from 12500 to 9000 metric tons.The Decisions of the High Authority Nos 16/57, 17/57 and 18/57 did not maintain the derogations provided for the benefit of ‘former’ wholesalers. Accordingly, in September 1957, the three selling agencies for Ruhr coal informed the Nold company that they could no longer supply it as a direct wholesaler as from 1 October 1957.In an action brought by Nold the Court, in its Judgment of 20 March 1959 (Case 18/57, Rec. 1959, p. 89), annulled, by reason of insufficient grounds, the provisions of Decisions Nos 16, 17 and 18/57 relating to the conditions for qualification as a direct wholesaler.By Decision No 17/59 of 18 February 1959 extending the authorizations relating to the marketing organizations of the Ruhr Basin (OJ, p. 279) and Decision No 36/59 of 17 June 1959 rescinding and supplementing part of Decision No 17/59 concerning the trading rules for the Ruhr coal selling agencies (OJ, p. 736), the High Authority, abolished in respect of the conditions for qualification as direct coal dealer, the criterion of sales of 60000 metric tons of Community coal within the common market and reduced respectively from 30000 to 20000 metric tons per annum the criterion of sales of Community coal within a particular sales area and from 9000 to 6000 metric tons the criterion of sales within that same area of coal from a specific selling agency.The essential provisions of Decision No 36/59 were annulled in an action brought by the three selling agencies, by the mining companies of the Ruhr Basin and by Firma Nold, by Judgment of the Court of 15 July 1960 (Joined Cases 36, 37, 38 and 40/59, Rec. 1960, p. 857).By Decision No 16/60 of 22 June 1960 on the refusal to authorize a joint marketing organization of mining companies of the Ruhr Basin (OJ, p. 1014), the High Authority opposed the substitution for the system of sale by three independent agencies, of a single sales organization embracing almost all the mining companies of the Ruhr Basin. An action brought against this Decision by the selling agencies was dismissed by Judgment of the Court of 18 May 1962 (Case 13/60, Rec. 1962, p. 165).On 8 February 1961, by Decision No 3/61 amending Decision No 17/59 (amended by Decision No 36/59) as regards trading rules for the coal selling agencies of the Ruhr (OJ, p. 413), the High Authority authorized the Ruhr coal selling agencies to render direct supplies to coal wholesalers subject to a single quantitative criterion, namely the sale, within the common market, during the preceding coal industry year, of at least 6000 metric tons of fuels originating from the selling agency supplying the accredited dealer.By Decisions Nos 5/63 (OJ, p. 1173) and 6/63 (OJ, p. 1191) of 20 March 1963, the High Authority authorized the joint selling of fuels by the mining companies of the Ruhr Basin organized into the two selling agencies ‘Geitling’ and ‘Präsident’, while maintaining in force, with regard to the trading rules, the conditions for admitting coal wholesalers to the right of direct supply.The principal grounds of the action brought against these Decisions by the Government of the Kingdom of the Netherlands were dismissed by the Court in its Judgment of 15 July 1964 (Case 66/63, Rec. 1964, p. 1049).By Decision of 27 November 1969 authorizing the merger of the mining companies of the Ruhr Basin by the transfer of colliery assets to the company Ruhrkohle AG, the Commission of the European Communities, applying Article 66 (2) of the ECSC Treaty, authorized the merger of the mining companies of the Ruhr Basin into a single company, Ruhrkohle AG, and obliged the latter to submit for its authorization any amendment to its terms of business.Also on 27 November 1969, the Commission took two Decisions (OJ, L 304, pp. 11 and 12) revoking, as from 31 December 1969, its Decisions Nos 5/63 and 6/63.The Commission, by a Decision of 21 December 1972 authorizing new terms of business of Ruhrkohle AG (OJ 1973, L 120, p. 14), authorized trading rules which, by comparison with those in force included, in particular, the following changes:(a) the entitlement of a wholesaler to buy direct is now subject, not to his having sold not less than 6000 metric tons of Ruhr coal in the preceding coal year, but to the conclusion of a two-year contract to purchase not less than 6000 metric tons a year from Ruhrkohle AG for the supply of domestic and small consumers;(b) before a dealer is entitled to supply industrial consumers he must first be admitted to supply domestic and small consumers;(c) the qualification required of admitted direct buying dealers for the supply of large industrial concerns is not, as heretofore, a minimal annual consumption of 30000 metric tons of solid fuels of any provenance, but the taking of that tonnage of Ruhr products; dealers may sell to consumers beyond this limit only if they render special services.However, provisionally, in the first year following the entry into force of the new terms of business, Ruhrkohle AG had to allow wholesalers contracting for the stipulated minimum amount of 6000 metric tons a year of products for domestic and small consumers to take up to 15 % less than that amount.On 10 January 1973, Ruhrkohle-Verkauf GmbH, the marketing agency for Ruhrkohle AG, sent to direct coal wholesalers and in particular to the Nold undertaking, the text of the new trading rules authorized by the Commission's Decision of 21 December 1972 and applicable as from 1 January 1973, and informed them that as from that date commercial transactions between them would be carried out on that basis.