The High Authority first contends that, on the basis of the two following possibilities, which are considered in turn, there is no decision which can be the subject of an application for annulment:

On subsequent consideration of the question from its own point of view, the High Authority insists that it did not intend to take a decision and that the Federal Government did not regard its letter as one.

Finally, the defendant proceeds to interpret the Treaty instead of the facts and contends that it was impossible, in law, for the High Authority to give formal approval to the measures adopted by the Federal Government. Under the Treaty, no such a power may be exercised as against a government.

In its reply, the applicant acknowledges that the word approval does not in fact appear in the letter written by the High Authority on 21 June. It declares its willingness to abandon the word and to use the word resolution in its place.

It also unreservedly recognizes that there is no question of a decision within the meaning of Article 88 of the Treaty, but it still insists that it in no way follows that the contested resolution does not constitute a decision.

Going on to consider the concept of decision on the basis of the precedents established by the Court and of legal opinion, the applicant claims that the resolution the annulment of which it is seeking constitutes an act of the High Authority. According to the applicant, it is a basic principle that the acts of the High Authority shall be subject to review with the result that they can be the subject of an application before the Court.

In answer to the concept of decision submitted by the applicant, the High Authority suggests another interpretation which is also based on case-law and learned opinion. It endeavours, in particular, to demonstrate that the letter of 21 June 1957does not endow the Federal Government with any new legal rights or obligations and does not contain any rule applicable in the future which has henceforth the force of law.

Moreover, the High Authority emphasizes the need, in describing an act, to have regard to its form as well as its underlying purpose. In its view, the High Authority did no more than declare that a particular situation, which its letter mentions as being merely a possibility, is not contrary to the Treaty. In so doing it neither sought nor produced any legal effect.

Nevertheless it adds:

This alternative claim is challenged from two points of view by the High Authority in its rejoinder, in which it criticizes the applicant, first for thus expressing in wholly different terms the decision against which it brought proceedings and, second, for impugning a negative resolution which in no way constitutes a decision of refusal, either express or implied, and, moreover, is not the subject of any formal request for action.

The High Authority goes on to expound the alternative argument that, even on the assumption that the consent which it gave to the German Government amounted to a decision against which proceedings could be brought, it would still not be an individual decision concerning the applicant.

This argument affects the admissibility of the application only in so far as the application for annulment, based on an infringement of the Treaty, is concerned.

As far as the applicant is concerned, the decision is an individual one because it approves a special measure adopted by the Federal Republic. The measure concerns it inasmuch as now or in the future, it operates to the serious disadvantage of the coalmining undertakings which are affiliated to it.

On the other hand, the High Authority takes the view that its consent would, as regards its practical effect, concern the whole of the common market in coal and would thereby, in fact, amount to a general decision. Moreover such consent would have repercussions on the conditions of competition affecting all coal producers of the Community. It does not, in consequence, concern the applicant individually.

The Association denies that a decision can be considered to be individual and to concern a party only if its practical consequences exclusively affect the rights and interests of that party.

The defendant relies in particular on the opinion of the Advocate-General in Joined Cases 7 and 9/54 in contending that, when seised of proceedings for annulment, the Court of Justice can decide no more than that the High Authority is under a duty to take a particular step.

In reply, the applicant states that there is no such restriction under any provision of the Treaty and that its concept is that which accords most closely with the provisions of Article 34 of the Treaty under which, if the Court declares a decision or a recommendation void, it shall refer the matter back to the High Authority, which shall take the necessary steps to comply with the judgment. The applicant concludes by stating in fact, this provision makes it clear that the Court can also take the steps which have to be taken by the High Authority.

In its rejoinder the High Authority replies that on the contrary, Article 34, on which the applicant relies, argues in favour of the Authority's contention.

No formal objection has been raised concerning the admissibility of the action in so far as it involves an application for annulment based on a submission of misuse of powers. In its statement of defence, the defendant confined itself to the following comments:

In the application initiating the proceedings, the applicant expresses the view that the letter addressed to it by the High Authority on 7 August 1957 is only a notification of the contested decision within the meaning of the first paragraph of Article 33 of the Treaty establishing the European Coal and Steel Community, since the substance of the decision was brought to its notice by the statement of defence at a later date.

The applicant considers that the contested decision was set out in the High Authority's letter of 21 June 1957 to the Federal Government.

In consequence, consideration must be given to the question whether the letter is a decision which can be the subject of proceedings under Article 33 of the Treaty.

In order to carry out the tasks assigned to it, the High Authority is empowered by Article 14 of the Treaty to take decisions in accordance with the provisions of the said Treaty.

The decision (if any) referred to in the application could have been taken only in pursuance of Article 88 of the Treaty.

Article 88 of the Treaty strictly defines the conditions in which the decisions for which it provides may be taken, but provides for such a decision only when the High Authority considers that a State has failed to fulfil an obligation under this Treaty, in which case the High Authority is bound to record this failure in a reasoned decision after giving the State concerned the opportunity to submit its comments and setting it a time-limit for the fulfilment of its obligation.

If, after giving a State the opportunity to submit its comments, pursuant to Article 88, the High Authority receives undertakings from the State which convince it that the State had not failed to fulfil an obligation under the Treaty, it has no alternative but to discontinue the action taken. Article 88 of the Treaty confers no power on the High Authority to take, in respect of Member States, decisions registering approval, but only decisions recording failure to fulfil an obligation under the Treaty.

In its letter of 21 June 1957, the High Authority confined itself to informing the Federal Government that, if certain conditions were fulfilled, it would no longer consider that the said Government had failed to fulfil an obligation under the Treaty.

In these circumstances, the letter of 21 June 1957 cannot be regarded as containing a decision recording a failure within the meaning of Article 88 and it cannot in consequence, be the subject of the action provided for under Article 33 to have decisions or recommendations of the High Authority declared void.

In the absence of a decision of the High Authority to record a failure within the meaning of Article 88 of the Treaty, the only complaint which the applicant could have made against the High Authority was of abstention within the meaning of Article 35 of the Treaty.

In its reply, the applicant states that in the unlikely event of the Court's ruling that, as claimed by the High Authority, it took no decision … the proceedings must be regarded as having been brought under Article 35.

In any case, the basis of an action cannot be changed, even by way of an alternative, in the reply.

Moreover, proceedings may be brought under Article 35 only inasmuch as the applicant has first raised the matter with the High Authority in accordance with the provisions of the first paragraph of that article.

This initial requirement is necessary not only because the time-limit set for the party concerned commences to run with effect from the request submitted to the High Authority but also because of the need for notification which, by impugning the inaction of the High Authority, forces it to take a decision within a limited period regarding the legality or otherwise of its inaction.

The applicant's letter of 11 July 1957 to the High Authority requesting to be informed of the decision which it had taken in the matter in question cannot be regarded as fulfilling the requirement provided for in the first paragraph of Article 35 of the Treaty, nor does the letter of 22 August, in which the applicant merely stated that it was contemplating instituting proceedings against the decision which it believed the High Authority to have taken, constitute fulfilment of that requirement.

In consequence, the action of the Gezamenlijke Steenkolenmijnen in Limburg is inadmissible either under Article 33 or under Article 35.