61959CJ0042_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES 42 AND 49/59
SOCIETE NOUVELLE DES USINES DE PONTLIEUE - ACIERIES DU TEMPLE ( SNUPAT ), A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE AT BILLANCOURT ( SEINE ), REPRESENTED BY ITS ADMINISTRATIVE DIRECTOR IN OFFICE, EUGENE DE SEZE, ASSISTED BY JEAN DE RICHEMONT, ADVOCATE AT THE COUR D'APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 6 RUE ALPHONSE - MUNCHEN, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE AT THE CONSEIL D'ETAT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
SUPPORTED BY
( 1 ) KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN NV, A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE AT VELSEN ( NETHERLANDS ), REPRESENTED BY ITS DIRECTOR, PROFESSOR J . F . TEN DOESSCHATE, ASSISTED BY CHRISTIAAN PIETER KALFF, ADVOCATE AT THE GERECHTSHOF AND AT THE ARRONDISSEMENTSRECHTBANK, AMSTERDAM, AND JOSSE MERTENS DE WILMARS, ADVOCATE OF THE ANTWERP BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 27 AVENUE GUILLAUME,
( 2 ) BREDA SIDERURGICA SPA, A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE IN MILAN, REPRESENTED BY ITS AUTHORIZED ADMINISTRATIVE DIRECTOR IN OFFICE, GUIDO REBUA, ASSISTED BY CESARE GRASSETTI, ADVOCATE AT THE ITALIAN CORTE DI CASSAZIONE AND AT THE CORTE D'APPELLO, MILAN, PROFESSOR OF THE LAW FACULTY OF THE UNIVERSITY OF MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GUIDO RIETTI, 15 BOULEVARD ROOSEVELT, INTERVENER
Subject of the case
APPLICATION
FOR THE ANNULMENT OF THE LETTER FROM THE MARKET DIVISION OF THE HIGH AUTHORITY OF 7 AUGUST 1959, BY WHICH THAT DIVISION REFUSED TO AGREE TO THE PRINCIPLE OF DAMAGES IN FAVOUR OF THE APPLICANT CLAIMED ON THE GROUND OF THE ALLEGED WRONGFUL ACT OR OMISSION COMMITTED BY THE HIGH AUTHORITY IN GRANTING 'DEROGATIONS' TO CERTAIN UNDERTAKINGS IN CONNEXION WITH THE EQUALIZATION OF SCRAP ( CASE 42/59 );
AGAINST THE IMPLIED DECISION OF REJECTION ALLEGED TO RESULT FROM THE SILENCE OF THE HIGH AUTHORITY CONCERNING THE REQUESTS MADE BY THE APPLICANT FOR THE WITHDRAWAL OF ALL 'DEROGATIONS' GRANTED OR TOLERATED BY THE HIGH AUTHORITY IN RESPECT OF THE EQUALIZATION SCRAP, FOR THE FIXING OF A NEW RATE OF LEVY AND FOR THE COMMUNICATION OF THE LATTER TO THE APPLICANT WITH ALL THE INFORMATION ENABLING THE LATTER TO UNDERTAKE A NORMAL CHECK ON THE CALCULATION OF THOSE LEVIES ( CASE 49/59 ).
Grounds
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I - THE ADMISSIBILITY OF THE APPLICANT'S MAIN CONCLUSIONS
THE DEFENDANT SUBMITS THAT THE APPLICATION IS INADMISSIBLE ON THE GROUND THAT THE LETTER OF 7 AUGUST 1959 FROM THE MARKET DIVISION DOES NOT CONSTITUTE A DECISION OF THE HIGH AUTHORITY AND, ALTERNATIVELY, THAT THERE CANNOT BE AN APPLICATION IN RESPECT OF AN ULTRA VIRES MEASURE IN THIS CONNEXION .
THESE TWO OBJECTIONS OF INADMISSIBILITY ARE WELL FOUNDED .
( A ) IN FACT THE LETTER IN QUESTION DOES NOT CONSTITUTE A DECISION OF THE HIGH AUTHORITY EITHER IN ITS FORM OR IN ITS CONTENT .
AS REGARDS ITS FORM, THIS LETTER WAS SIGNED SOLELY BY THE DIRECTOR OF THE MARKET DIVISION, ACTING IN HIS OWN NAME AND NOT IN THE NAME AND ON BEHALF OF THE HIGH AUTHORITY; IT CANNOT THEREFORE BE REGARDED AS A DECISION OF THE HIGH AUTHORITY .
AS REGARDS ITS CONTENT, IT MERELY STATES THAT THE JUDGMENTS OF THE COURT OF JUSTICE
OF 17 JULY 1959 WILL BE CONSIDERED BY THE DEPARTMENTS OF THE HIGH AUTHORITY WHICH WILL TAKE THE NECESSARY DECISIONS, AND THAT THE MARKET DIVISION SEES NO BASIS FOR THE CLAIM FOR COMPENSATION FOR A WRONGFUL ACT OR OMISSION .
SUCH A STATEMENT DOES NOT ESTABLISH ANY GENERAL RULE AND DOES NOT CONCLUSIVELY AFFECT ANY INDIVIDUAL INTEREST .
( B ) THE PRESENT APPLICATION IS REALLY DIRECTED TOWARDS HAVING THE HIGH AUTHORITY HELD LIABLE FOR A WRONGFUL ACT OR OMISSION .
SUCH A RULING MAY NOT BE OBTAINED BY MEANS OF AN ACTION FOR ANNULMENT UNDER ARTICLE 33 OF THE ECSC TREATY, WHICH CONCERNS THE ANNULMENT OF DECISIONS OF THE HIGH AUTHORITY AND ON WHICH THE APPLICATION IS BASED, BUT CAN BE FOUNDED ONLY UPON ARTICLE 40 OR POSSIBLY UPON ARTICLE 34 .
IT IS NOT POSSIBLE TO BASE A CONTRARY ARGUMENT ON THE THIRD SENTENCE OF ARTICLE 40 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC; IN FACT, ALTHOUGH THAT PROVISION REFERS TO CASES IN WHICH A PERSON WHO CONSIDERS THAT HE HAS SUFFERED DAMAGE OWING TO A WRONGFUL ACT OR OMISSION OF THE COMMUNITY HAS MADE A PRIOR REQUEST TO THE RELEVANT INSTITUTION OF THE COMMUNITY, IT IS NEVERTHELESS INTENDED ONLY TO FIX A LIMITATION PERIOD, WITHOUT ALTERING THE CHARACTER OF THE APPLICATION PROVIDED FOR IN THE MATTER .
FOR THESE TWO REASONS THE APPLICATION IS INADMISSIBLE .
II - THE ADMISSIBILITY OF THE APPLICANT'S SUPPLEMENTARY CONCLUSIONS
THE APPLICANT FURTHER ASKS THE COURT TO 'TAKE FORMAL NOTE THAT ( IT ) RESERVES THE RIGHT TO BRING BEFORE THE COURT A FRESH APPLICATION FOR DAMAGES AGAINST THE HIGH AUTHORITY FOR A WRONGFUL ACT OR OMISSION, IN COMPENSATION FOR THE DAMAGE SUFFERED BY IT AS A RESULT OF THE ABOVEMENTIONED DEROGATIONS' AND 'ALSO TO TAKE FORMAL NOTE THAT IT INTENDS TO REQUEST THE JOINDER OF THIS NEW APPLICATION' WITH THE PRESENT PROCEEDINGS .
THE APPLICANT HAS NOT ESTABLISHED THAT IT HAS A LEGITIMATE INTEREST IN SUBMITTING SUCH CONCLUSIONS, NOR DOES THE COURT ACCEPT THE EXISTENCE OF SUCH AN INTEREST .
IN FACT THE APPLICANT'S RIGHT TO TAKE ACTION CANNOT IN ANY CASE DEPEND ON THE FACT THAT THE COURT HAS PREVIOUSLY TAKEN FORMAL NOTE OF ITS INTENTION TO AVAIL ITSELF OF SUCH A RIGHT .
THE JOINDER OF FUTURE PROCEEDINGS WITH THE PRESENT PROCEEDINGS WHICH ARE THE SUBJECT OF THE PRESENT JUDGMENT, IS INCONCEIVABLE .
CONSEQUENTLY, FAILING ANY INTEREST, THESE TWO HEADS OF THE PRESENT APPLICATION ARE INADMISSIBLE
CASE 49/59
ADMISSIBILITY
I - SUBMISSIONS PUT FORWARD BY THE DEFENDANT
1 . AS REGARDS THE REQUEST TO REVOKE THE EXEMPTIONS THE DEFENDANT RELIES ON THE DISCRETION OF THE COURT ON THE QUESTION WHETHER THE HIGH AUTHORITY HAS FAILED TO ACT, DESPITE THE FACT THAT WITHIN THE PERIOD OF TWO MONTHS LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 35 THE MARKET DIVISION REPLIED TO THE APPLICANT THAT THE QUESTIONS RAISED WERE BEING STUDIED .
P . 74
NEVERTHELESS, SUCH A REPLY DOES NOT EXCLUDE THE ADMISSIBILITY OF AN APPLICATION FOR FAILURE TO ACT, SINCE IT DOES NOT AMOUNT TO A DECISION WITHIN THE MEANING OF THE TREATY .
DESPITE THAT LETTER THERE IS AN IMPLIED DECISION OF REFUSAL, IN ACCORDANCE WITH ARTICLE 35 OF THE ECSC TREATY, SO THAT FROM THIS POINT OF VIEW THE APPLICATION FOR FAILURE TO ACT IS ADMISSIBLE .
2 . AS REGARDS THE APPLICATION TO HAVE A NEW RATE OF CONTRIBUTION FIXED AND TO HAVE IT COMMUNICATED TO THE APPLICANT WITH ALL THE INFORMATION ENABLING THE LATTER TO EXERCISE A NORMAL CHECK ON THE ESTABLISHMENT OF THAT RATE, THE DEFENDANT ALLEGES THAT THERE WAS NO FAILURE TO ACT AND NO POSSIBILITY OF SUCH A FAILURE .
IN ORDER TO SHOW THAT THERE WAS NO FAILURE TO ACT, THE DEFENDANT SUBMITS THAT A FULL PROCEDURE WAS COMMENCED AS SOON AS THE JUDGMENT IN JOINED CASES 32 AND 33/58 WAS PRONOUNCED, IN ORDER TO DRAW THE INFERENCES FROM THAT JUDGMENT AND TO FIX THE NEW RATE OF CONTRIBUTION .
THESE OBSERVATIONS ARE IRRELEVANT .
IN FACT THE FAILURE TO ACT REFERRED TO BY ARTICLE 35 OF THE TREATY IS DISTINGUISHED BY THE ABSENCE OF AN EXPRESS DECISION; THE PRELIMINARY WORK UNDERTAKEN IN PREPARATION FOR SUCH A DECISION CANNOT BE ASSIMILATED TO THE DECISION ITSELF .
IN ORDER TO SHOW THAT THERE WAS NO POSSIBILITY OF A FAILURE TO ACT THE DEFENDANT ALLEGES THAT THE HIGH AUTHORITY'S DEPARTMENTS HAD TO HAVE A SUFFICIENT PERIOD OF TIME TO FIX THE NEW RATE OF CONTRIBUTION FOLLOWING THE JUDGMENT IN JOINED CASES 32 AND 33/58 .
ACCORDING TO THE DEFENDANT, THE HIGH AUTHORITY CANNOT BE 'FORCED, WITHIN A CERTAIN PERIOD AND AT THE REQUEST OF AN UNDERTAKING, TO MODIFY' THE RULES IN QUESTION .
THE REASONING CONFUSES THE ADMISSIBILITY OF THE APPLICATION WITH ITS VALIDITY .
ACCORDING TO THE THIRD PARAGRAPH OF ARTICLE 35 OF THE ECSC TREATY PROCEEDINGS MAY BE INSTITUTED FOR FAILURE TO ACT IF AT THE END OF TWO MONTHS THE HIGH AUTHORITY HAS NOT TAKEN ANY DECISION .
IT FOLLOWS FROM THE FOREGOING THAT THE OBJECTIONS OF INADMISSIBILITY RAISED BY THE DEFENDANT MUST BE REJECTED .
P . 75
II - SUBMISSIONS PUT FORWARD BY THE INTERVENERS
THE INTERVENERS RAISE OBJECTIONS OF INADMISSIBILITY WHICH WERE NOT PUT FORWARD BY THE DEFENDANT .
THE INTERVENERS' RIGHT TO DO SO CANNOT BE DISPUTED IN THE PRESENT CASE, SINCE THESE OBJECTIONS OR ARGUMENTS SEEK THE REJECTION OF THE APPLICANT'S CONCLUSIONS .
1 . THE INTERVENERS RAISE AN OBJECTION OF INADMISSIBILITY BASED ON THE FACT THAT THE IMPLIED DECISION OF REFUSAL, TO THE EXTENT TO WHICH IT RELATES TO THE REVOCATION OF THE EXEMPTIONS, HAS ONLY CONFIRMATORY FORCE AND THAT CONSEQUENTLY THE APPLICANT IS NOT ENTITLED TO SEEK ITS ANNULMENT, SINCE THE PERIOD GRANTED BY THE TREATY FOR INSTITUTING PROCEEDINGS AGAINST PREVIOUS IDENTICAL DECISIONS HAS EXPIRED .
THE INTERVENER BREDA SIDERURGICA ADDS THAT THE EXEMPTIONS DO NOT AMOUNT TO A DECISION BECAUSE IN GRANTING THEM THE HIGH AUTHORITY SIMPLY APPLIED ITS BASIC DECISIONS N.S 22/54, 14/55 AND 2/57; NEITHER, THEREFORE, CAN THE REFUSAL TO REVOKE THOSE EXEMPTIONS BE A DECISION WITHIN THE MEANING OF THE TREATY BECAUSE, 'WHERE THERE IS NO DECISION WHICH MAY TACITLY BE CONFIRMED, THERE CANNOT BE A CONFIRMATORY DECISION '.
FURTHERMORE, THE DEFENDANT, IN ITS OBSERVATIONS CONCERNING THE SUPPLEMENTARY STATEMENT FROM THE INTERVENER BREDA SIDERURGICA, CLAIMS THAT THE CONTESTED MEASURE AMOUNTS TO A MERE INTERPRETATION OF PREVIOUS RULES AND ADDS THAT AN INTERPRETATION, 'ALTHOUGH IT UNDENIABLY CONSTITUTES THE ADOPTION OF AN ATTITUDE, IS NEVERTHELESS NOT A "DECISION" AND CANNOT BE THE SUBJECT EITHER OF A DIRECT ACTION FOR ANNULMENT OR OF PROCEEDINGS FOR FAILURE TO ACT '.
THE COURT CANNOT ACCEPT THESE ARGUMENTS .
THE ARGUMENTS PUT FORWARD BY THE INTERVENER BREDA SIDERURGICA AND THE SUPPLEMENTARY ARGUMENTS OF THE DEFENDANT IGNORE THE FACT THAT THE APPLICATION OF THE GENERAL DECISION N . 2/57 TO A CONCRETE CASE CONSTITUTES A DECISION, WHATEVER THE LEGAL STATUS WHICH SHOULD BE ATTRIBUTED TO THE LETTER OF 18 DECEMBER 1957 .
THUS THE WITHDRAWAL BY THE HIGH AUTHORITY OF THE RESERVATIONS PREVIOUSLY FORMULATED BY ITS REPRESENTATIVE CONCERNING THE DISPUTED EXEMPTIONS HAD THE FORCE OF A DECISION; THE EXEMPTIONS GRANTED TO THE INTERVENERS THEREFORE CONSTITUTE DECISIONS .
AS REGARDS THE ARGUMENT THAT THE REFUSAL TO REVOKE THE EXEMPTIONS GRANTED TO BREDA AND HOOGOVENS IS A PURELY CONFIRMATORY MEASURE, IT IS TRUE THAT A MEASURE WHICH MERELY CONFIRMS A PREVIOUS MEASURE CANNOT AFFORD THOSE CONCERNED THE OPPORTUNITY OF REOPENING THE QUESTION OF THE LEGALITY OF THE MEASURE WHICH IS CONFIRMED .
P . 76
HOWEVER, THAT GENERAL RULE DOES NOT APPLY IF THERE IS A NEW FACT OF SUCH A CHARACTER AS TO ALTER THE ESSENTIAL CIRCUMSTANCES AND CONDITIONS WHICH GOVERNED THE ADOPTION OF THE FIRST MEASURE .
BY COMMENCING AN ACTION BASED ON ARTICLE 35 OF THE TREATY THE APPLICANT ASKED THE HIGH AUTHORITY TO IMPLEMENT THE COURT'S JUDGMENT IN JOINED CASES 32 AND 33/58, MAINTAINING THAT, CONSIDERED IN THE LIGHT OF THE GROUNDS OF THAT JUDGMENT, THE EXEMPTIONS GRANTED TO UNDERTAKINGS IN A SITUATION OF LOCAL INTEGRATION WERE NO LONGER JUSTIFIED AND MUST BE WITHDRAWN .
NEVERTHELESS, THE QUESTION WHETHER THE JUDGMENT MENTIONED IS SUCH AS TO INVALIDATE THE IMPLIED REFUSAL AT ISSUE MUST BE EXAMINED IN RELATION TO THE SUBSTANCE OF THE CASE; IN THESE CIRCUMSTANCES THE ARGUMENT BASED ON THE ALLEGED CONFIRMATORY NATURE OF THE CONTESTED DECISION CANNOT BE ACCEPTED AS AN OBJECTION OF INADMISSIBILITY .
IT FOLLOWS FROM THE FOREGOING THAT THE OBJECTIONS OF INADMISSIBILITY PUT FORWARD MUST BE REJECTED .
2 . THE INTERVENER HOOGOVENS RELIES ON AN OBJECTION OF INADMISSIBILITY BASED ON THE FACT THAT THE APPLICANT DID NOT PUT FORWARD THE SUBMISSION OF MISUSE OF POWERS .
THAT ALLEGATION IS IN FACT INCORRECT, SINCE IN ITS APPLICATION THE APPLICANT RELIED ON THE SUBMISSION OF MISUSE OF POWERS AND SET OUT IN A COGENT MANNER THE FACTS FROM WHICH, IN ITS OPINION, THE MISUSE OF POWERS ARISES .
CONSEQUENTLY THAT OBJECTION MUST BE REJECTED, IRRESPECTIVE OF THE QUESTION WHETHER THE ADMISSIBILITY OF THE APPLICATION DEPENDS ON THE FACT THAT A MISUSE OF POWERS WAS RELIED UPON .
3 . THE INTERVENERS RAISE TWO FURTHER OBJECTIONS OF INADMISSIBILITY .
THEY CLAIM, FIRST, THAT THE DECISION AT ISSUE IS GENERAL AND THEREFORE CAN BE DISPUTED ONLY BY A SUBMISSION OF MISUSE OF POWERS, WHILST A MISUSE OF POWERS IS LEGALLY IMPOSSIBLE IN THE PRESENT INSTANCE SINCE THE HIGH AUTHORITY DID NOT ACT UNDER A DISCRETIONARY POWER .
THEY FURTHER MAINTAIN THAT EVEN IF THE DECISION WERE INDIVIDUAL THE APPLICANT COULD ONLY RELY ON MISUSE OF POWERS TO THE EXTENT TO WHICH THE APPLICATION IS BASED ON THE SECOND PARAGRAPH OF ARTICLE 35 .
( A ) THE NATURE OF THE CONTESTED DECISION MUST BE ASSESSED IN THE LIGHT OF THE WORDING OF THE PRIOR REQUEST ADDRESSED BY THE APPLICANT TO THE HIGH AUTHORITY .
P . 77
BY THAT REQUEST, THE APPLICANT SOUGHT IN PARTICULAR THE ADOPTION OF A SERIES OF INDIVIDUAL DECISIONS TO WITHDRAW EXEMPTIONS .
IN THE OPINION OF THE COURT THAT WAS CERTAINLY THE ESSENTIAL ELEMENT OF THE REQUEST, SINCE AT THE TIME WHEN IT WAS FORMULATED NO CASE SIMILAR TO THAT OF THE TWO INTERVENERS HAD COME TO LIGHT, SO THAT IT REFERRED IN SUBSTANCE TO THE WITHDRAWAL OF THE EXEMPTIONS GRANTED TO HOOGOVENS AND BREDA SIDERURGICA .
THUS THE REFUSAL TO ACCEDE TO THE APPLICANT'S REQUEST HAS THE NATURE OF AN INDIVIDUAL DECISION .
SIMILAR CONSIDERATIONS APPLY TO THE OTHER PARTS OF THE REQUESTED DECISIONS, THAT IS TO SAY THE FIXING OF THE NEW RATE OF EQUALIZATION AND ITS COMMUNICATION TO THE APPLICANT .
IN FACT IT APPEARS FROM THE CONTEXT AND THE CIRCUMSTANCES THAT THE APPLICANT, ALTHOUGH PERHAPS USING INAPPROPRIATE EXPRESSIONS, IN ESSENCE WANTED THE CHARGE TO WHICH IT WOULD BECOME LIABLE TO BE FIXED IN RELATION TO THE WITHDRAWAL OF THE ABOVEMENTIONED EXEMPTIONS AND TO BE COMMUNICATED TO IT .
CONSEQUENTLY ON THIS POINT ALSO THE CONTESTED DECISION APPEARS TO HAVE AN INDIVIDUAL NATURE .
THE INDIVIDUAL DECISION CONCERNS THE APPLICANT SINCE THE EFFECT OF THESE EXEMPTIONS IS TO INCREASE THE CONTRIBUTION PAYABLE BY THE APPLICANT AND THIS FACT CERTAINLY INFLUENCES THE COMPETITIVE SITUATION EXISTING BETWEEN THE APPLICANT AND THE INTERVENERS .
( B ) SINCE THE CONTESTED DECISION IS INDIVIDUAL, THE APPLICANT IS IN PRINCIPLE ENTITLED TO PUT FORWARD ALL THE SUBMISSIONS PROVIDED FOR IN THE FIRST PARAGRAPH OF ARTICLE 33 OF THE TREATY, AND NOT ONLY MISUSE OF POWERS .
THERE IS, CONSEQUENTLY, NO NEED TO DECIDE THE PROBLEM WHETHER A MISUSE OF POWERS IS CONCEIVABLE IN THE CASE OF LIMITED JURISDICTION .
IT SHOULD HOWEVER BE CONSIDERED WHETHER, AS THE INTERVENER HOOGOVENS MAINTAINS, THAT RULE IS INAPPLICABLE IN THE PRESENT CASE SINCE AN APPLICATION FOR FAILURE TO ACT BASED ON THE SECOND PARAGRAPH OF ARTICLE 35, ACCORDING TO THE VERY WORDING OF THAT PROVISION, CAN ONLY BE AN APPLICATION CONCERNING MISUSE OF POWERS .
THAT OBJECTION DISREGARDS THE FACT THAT THE APPLICATION IS IN EFFECT BASED ON THE FIRST PARAGRAPH OF THE SAID ARTICLE .
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IN FACT THE APPLICANT HAS CLEARLY EXPRESSED THE OPINION THAT THE HIGH AUTHORITY IS REQUIRED TO MAKE A FINDING ACQUIESCING IN THE PRIOR REQUEST WHICH THE APPLICANT ADDRESSED TO IT .
IT FOLLOWS FROM THE PRECEDING CONSIDERATIONS THAT THE OBJECTIONS OF INADMISSIBILITY WHICH HAVE BEEN RAISED ARE UNFOUNDED .
4 . FINALLY, THE DEFENDANT AND THE INTERVENERS RAISE AN OBJECTION OF INADMISSIBILITY BASED ON THE FACT THAT THE RETROACTIVE WITHDRAWAL SOUGHT EXCEEDS THE POWERS OF THE HIGH AUTHORITY, SINCE AN ADMINISTRATIVE ACT CONFERRING SUBJECTIVE RIGHTS CAN BE REVOKED ONLY WITHIN A REASONABLE PERIOD OF TIME, AND SUCH PERIOD HAS BEEN GREATLY EXCEEDED IN THE PRESENT CASE . THE PRINCIPLE OF THE BALANCE OF THE INTERESTS IN QUESTION IS ALSO SAID TO STAND IN THE WAY OF THE WITHDRAWAL SOUGHT .
AS HAS BEEN SAID ABOVE, THE QUESTION WHETHER THE HIGH AUTHORITY HAD THE RIGHT TO TAKE THE DECISION SOUGHT MUST BE EXAMINED IN RELATION TO THE SUBSTANCE OF THE CASE, AND MUST THEREFORE BE DEFERRED UNTIL THE DISCUSSION OF THE SUBSTANCE .
FOR THESE REASONS THE APPLICATION IS ADMISSIBLE .
THE SUBSTANCE
I - THE APPLICATION FOR FAILURE TO ACT DIRECTED AGAINST THE IMPLIED REFUSAL TO WITHDRAW THE DISPUTED EXEMPTIONS
THE LEGALITY OF THE REFUSAL TO WITHDRAW THE DISPUTED EXEMPTIONS WITH RETROACTIVE EFFECT DEPENDS IN THE FIRST PLACE ON THE LEGALITY OF THE EXEMPTIONS THEMSELVES .
IN FACT, IF THESE ARE LEGAL, IT FOLLOWS THAT THE HIGH AUTHORITY WAS JUSTIFIED IN REFUSING TO WITHDRAW THEM, SINCE THE RETROACTIVE WITHDRAWAL OF A LEGAL MEASURE WHICH HAS CONFERRED INDIVIDUAL RIGHTS OR SIMILAR BENEFITS IS CONTRARY TO THE GENERAL PRINCIPLES OF LAW .
IT IS APPROPRIATE THEREFORE TO CONSIDER FIRST WHETHER THE DISPUTED EXEMPTIONS ARE ILLEGAL .
A - ARE THE DISPUTED EXEMPTIONS ILLEGAL?
1 . THE FERROUS SCRAP IN QUESTION, USED BY HOOGOVENS AND BREDA SIDERURGICA AND COMING FROM THEIR SISTER UNDERTAKINGS, WAS EXEMPTED FROM EQUALIZATION IN 1956 AND 1957 BECAUSE OF THE LOCAL INTEGRATION OF THE WORKSHOPS IN QUESTION, ALTHOUGH IT MIGHT POSSIBLY FALL WITHIN THE CONCEPT OF GROUP SCRAP .
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IN ITS JUDGMENT GIVEN ON 17 JULY 1959 IN JOINED CASES 32 AND 33/58 ( SNUPAT V HIGH AUTHORITY ) THE COURT DECIDED THAT AN EXEMPTION IN RESPECT OF GROUP SCRAP WAS UNJUSTIFIED .
IN THESE CIRCUMSTANCES THE ABOVEMENTIONED JUDGMENT SHOWED THE EXEMPTIONS IN A NEW LIGHT; THIS SHOULD HAVE LED, AFTER A FRESH EXAMINATION OF THEIR LEGAL BASIS, TO A DECISION CONCERNING THEIR LEGALITY .
THE SAID JUDGMENT MUST THEREFORE HAVE LED THE HIGH AUTHORITY TO RE-EXAMINE ITS PREVIOUS POSITION AND TO CONSIDER WHETHER THE DISPUTED EXEMPTIONS COULD BE RETAINED IN VIEW OF THE PRINCIPLES ESTABLISHED BY THE ABOVE-MENTIONED JUDGMENT, SINCE IT WAS REQUIRED FROM THAT TIME TO CONFORM TO THOSE PRINCIPLES AT THE RISK OF TOLERATING DISCRIMINATION INTERFERING WITH NORMAL COMPETITION AS PROVIDED FOR BY THE FUNDAMENTAL RULES OF THE TREATY .
IN FACT, AT THE TIME WHEN THE LETTERS OF 18 DECEMBER 1957 AND 17 APRIL 1958 WERE WRITTEN AND PUBLISHED IN THE JOURNAL OFFICIEL, THE HIGH AUTHORITY HAD STILL TO RESOLVE COMPLETELY THE PROBLEM OF EXTRACTING THE PRINCIPLES CONTAINED IN BASIC DECISION N . 2/57, WHICH DOES NOT DEFINE THE MEANING OF THE TERMS 'OWN RESOURCES' AND 'BOUGHT SCRAP '.
THIS WAS NO LONGER THE CASE WHEN THE APPLICANT, AFTER THE AFOREMENTIONED JUDGMENT HAD BEEN GIVEN BY THE COURT, BROUGHT THE MATTER BEFORE THE HIGH AUTHORITY .
AT THAT TIME IN FACT THE DELICATE PROBLEM OF THE INTERPRETATION OF DECISION N . 2/57 HAD BEEN UNDERTAKEN AND ON SEVERAL POINTS RESOLVED BY THE COURT OF JUSTICE .
IN PARTICULAR, THE SAID JUDGMENT SET OUT THE REASONS FOR WHICH THE EXEMPTION OF OWN RESOURCES MUST BE REGARDED AS LEGAL WHILST THAT OF FERROUS SCRAP DESCRIBED AS 'GROUP SCRAP' IS NOT .
THE HIGH AUTHORITY'S REFUSAL TO WITHDRAW THE EXEMPTIONS, FAR FROM SIMPLY CONFIRMING ITS PREVIOUS POINT OF VIEW, THEREFORE CONTAINS THE IMPLIED DECISION THAT THE JUDGMENT OF THE COURT DOES NOT REQUIRE A DIFFERENT ATTITUDE AND THAT THE CONSIDERATIONS WHICH, IN THE COURT'S OPINION, PREVENT THE EXEMPTION OF GROUP SCRAP DO NOT COVER THE CASE OF LOCAL INTEGRATION .
IN THESE CIRCUMSTANCES, THE SILENCE OF THE HIGH AUTHORITY ON THE REQUEST THAT THE DISPUTED EXEMPTIONS BE WITHDRAWN, FAR FROM AMOUNTING TO A MERE CONFIRMATION OF ITS PREVIOUS ATTITUDE, IMPLIES A NEW DECISION, TO THE EFFECT THAT THE PRINCIPLES LAID DOWN BY THE JUDGMENT OF THE COURT IN JOINED CASES 32 AND 33/58 DID NOT REQUIRE THE HIGH AUTHORITY TO ALTER ITS POSITION .
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THE REFUSAL TO REVOKE THE DISPUTED EXEMPTIONS THUS CONSTITUTES A NEW DECISION OF THE HIGH AUTHORITY, A DECISION WHICH THE APPLICANT WAS ABLE TO DISPUTE AND WHICH IT DISPUTED WITHIN THE PRESCRIBED PERIOD BY THE PRESENT APPLICATION .
2 . IT IS APPROPRIATE TO PASS NEXT TO A CONSIDERATION OF THE PROBLEM OF THE LEGALITY OF THE DISPUTED EXEMPTIONS ON THE BASIS OF THE PRINCIPLES LAID DOWN BY THE COURT IN ITS PREVIOUS JUDGMENT ( JOINED CASES 32 AND 33/58 ).
IN GRANTING THE EXEMPTIONS ON THE GROUND OF THE LOCAL INTEGRATION OF THE WORKSHOPS, THE HIGH AUTHORITY JUSTIFIED ITS DECISION ON THE BASIS OF A LINK WHICH WAS ESSENTIALLY GEOGRAPHICAL, AND THEREFORE FORTUITOUS, WHICH THE COURT HELD TO BE UNACCEPTABLE IN ITS PREVIOUS JUDGMENT .
FURTHER, IN THE AFOREMENTIONED JUDGMENT, THE COURT LAID DOWN THE PRINCIPLE THAT THE EXEMPTION OF GROUP SCRAP, SINCE IT CAUSES DISCRIMINATION PROHIBITED BY ARTICLE 4 OF THE TREATY, IS CONTRARY TO THE TREATY .
THE FERROUS SCRAP FROM BREEDBAND'S WORKSHOPS WHICH IS USED BY HOOGOVENS CONSTITUTES GROUP SCRAP, AS DOES THE FERROUS SCRAP USED BY BREDA SIDERURGICA WHICH COMES FROM ITS SISTER UNDERTAKINGS .
IN FACT NEITHER HOOGOVENS NOR BREDA FORMS A SINGLE UNDERTAKING WITH THE COMPANIES FROM WHICH THE FERROUS SCRAP IN QUESTION COMES .
THE CONCEPT OF AN UNDERTAKING FOR THE PURPOSE OF THE TREATY MAY BE IDENTIFIED WITH THAT OF A NATURAL OR LEGAL PERSON, SINCE THE TREATY USES THIS CONCEPT PRIMARILY TO DEFINE PERSONS WITH RIGHTS AND OBLIGATIONS ARISING UNDER COMMUNITY LAW .
IT COULD BE ACCEPTED THAT SEVERAL DISTINCT COMPANIES MAY CONSTITUTE A SINGLE UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 OF THE TREATY ONLY IF THE TREATY CONTAINED AN EXPRESS PROVISION TO THAT EFFECT .
IN THE ABSENCE OF SUCH A PROVISION IT CANNOT BE PRESUMED THAT TWO SEPARATE AND DISTINCT COMPANIES CAN CONSTITUTE A SINGLE UNDERTAKING FOR THE PURPOSES OF THE TREATY, MORE PARTICULARLY WHEN THEY EACH HAVE DISTINCT LEGAL PERSONALITY IN THE EYES OF THEIR NATIONAL LAW; ON THE OTHER HAND, IF THE CONTRARY ARGUMENT WERE ACCEPTED, THE IDENTIFICATION OF THE UNDERTAKINGS REFERRED TO IN ARTICLE 80 WOULD FREQUENTLY BE IMPOSSIBLE .
P . 81
FURTHERMORE, AS REGARDS THE BREDA INDUSTRIAL COMPLEX, ONLY THE BREDA SIDERURGICA COMPANY PRODUCES STEEL WHILST THE OTHER COMPANIES ONLY PROCESS THE STEEL .
IN THESE CIRCUMSTANCES THE BREDA SIDERURGICA COMPANY AND THE OTHER COMPANIES IN THE SAME GROUP CANNOT CONSTITUTE A SINGLE UNDERTAKING WITHIN THE MEANING OF ARTICLE 80 OF THE TREATY, WHICH REFERS SOLELY TO UNDERTAKINGS 'ENGAGED IN PRODUCTION IN THE COAL OR THE STEEL INDUSTRY '.
LOCAL INTEGRATION, EVEN OF A VERY HIGH ORDER, AND THE ECONOMIC INTERDEPENDENCE OF THE PRODUCTION OF EACH OF THE UNDERTAKINGS FORMING THE GROUP CANNOT OBSCURE THE FACT THAT THE WORKSHOPS WHERE THE FERROUS SCRAP IS RECOVERED BELONG TO LEGAL PERSONS DISTINCT FROM THE INTERVENERS .
IF THE INTERESTED PARTIES CHOOSE EXPRESSLY TO GROUP THEMSELVES TOGETHER ACCORDING TO A GIVEN LEGAL FORM IN ANTICIPATION OF CERTAIN ADVANTAGES, THEY HAVE NO GROUNDS FOR DEMANDING THAT THIS LEGAL FORM SHOULD NOT BE TAKEN INTO ACCOUNT WHENEVER ITS APPLICATION IS CAPABLE OF OPERATING TO THEIR DISADVANTAGE .
IT WOULD FURTHER BE UNJUST TO APPLY TO FERROUS SCRAP MOVING BETWEEN TWO DISTINCT COMPANIES RULES DIFFERING ACCORDING TO WHETHER THOSE COMPANIES OCCUPY NEIGHBOURING OR MORE OR LESS WIDELY SEPARATED PREMISES .
SUCH A SYSTEM WOULD RESULT IN INCREASING THE EXTRA BURDEN CONSEQUENT UPON THE NECESSITY OF PAYING FOR TRANSPORT CHARGES AND THEREFORE MIGHT ARTIFICIALLY INCREASE THE DIFFERENCES IN COSTS OF PRODUCTION, WHICH WOULD RUN COUNTER TO THE TREATY AS WELL AS TO THE BASIC PRINCIPLES OF THE EQUALIZATION SCHEME .
LASTLY, HOOGOVENS' ARGUMENT THAT THE USE BY IT OF ARISINGS FROM BREEDBAND'S WORKSHOPS CONSTITUTES AN IMPROVEMENT IN PRODUCTIVITY WITHIN ONE AND THE SAME UNDERTAKING, AND THAT THE TWO UNDERTAKINGS DO NOT CONSTITUTE A GROUP LIKELY TO AFFECT COMPETITION ARTIFICIALLY IS NEGATED BY THE FACT THAT ACTUALLY THIS IS NOT A CASE OF A SINGLE UNDERTAKING, BUT OF TWO COMPANIES DISTINCT IN LAW, EACH HAVING LEGAL PERSONALITY .
THE POOLING OF THE GAINS AND LOSSES RESULTING FROM THE CONTRACT GOVERNING THE RELATIONSHIP BETWEEN HOOGOVENS AND BREEDBAND EXPRESSES ONLY THE COOPERATION EXISTING BETWEEN THOSE TWO UNDERTAKINGS .
BY VIRTUE OF THAT COOPERATION, WHETHER OR NOT IT AMOUNTS TO A CARTEL OR A COMBINE, THE TWO UNDERTAKINGS FORM A GROUP .
CONSEQUENTLY THE EXEMPTION GRANTED TO HOOGOVENS BECAUSE OF THE EXISTENCE OF THE HOOGOVENS-BREEDBAND GROUP IS CAPABLE OF DISTORTING COMPETITION, THAT IS TO SAY, IN THE PRESENT CASE, THE COMPETITIVE RELATIONSHIP EXISTING BETWEEN HOOGOVENS AND OTHER UNDERTAKINGS WHICH ARE NOT GROUPED WITH FERROUS-SCRAP PRODUCERS .
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FOR THESE REASONS THE RULES LAID DOWN IN THE JUDGMENT IN JOINED CASES 32 AND 33/58, ACCORDING TO WHICH SO-CALLED GROUP SCRAP MUST BE ASSESSED FOR EQUALIZATION, APPLY EQUALLY TO THE INTERVENERS .
3 . HOOGOVENS CLAIMS THAT THE DISPUTED EXEMPTIONS MUST BE MAINTAINED TO AVOID A DOUBLE CHARGE ON THE SAME UNDERTAKINGS FOR THE SAME QUANTITY OF FERROUS SCRAP, OF WHICH THE COURT DISAPPROVED IN ITS PREVIOUS JUDGMENT .
THE COURT DOES NOT ACCEPT THAT REASONING .
IN ITS JUDGMENT IN JOINED CASES 32 AND 33/58, THE COURT RULED AGAINST DOUBLE IMPOSITION OF THE LEVY ONLY IN SO FAR AS THIS WOULD AFFECT ONE AND THE SAME UNDERTAKING AND NOT IN A CASE IN WHICH THE LEVY WOULD BE APPORTIONED BETWEEN SEVERAL SEPARATE UNDERTAKINGS .
CONSEQUENTLY THE DECISIVE TEST IS NOT WHETHER THE MATERIAL IS TECHNICALLY IDENTICAL BUT WHETHER THE PURCHASER AND THE UNDERTAKING IN WHICH THE MATERIAL IS RECOVERED ARE THE SAME .
IN FACT, IN VERY NUMEROUS CASES THERE IS A TECHNICAL RELATIONSHIP BETWEEN FERROUS SCRAP RECOVERED DURING THE MANUFACTURE OF FINISHED PRODUCTS, ON THE ONE HAND, AND FERROUS SCRAP USED IN THE PRODUCTION OF STEEL INTENDED FOR SUCH MANUFACTURE, ON THE OTHER .
AT THE RISK OF RENDERING THE FINANCIAL ARRANGEMENTS FOR EQUALIZATION INOPERATIVE AND IN VIEW OF THE ENDLESS CYCLE OF CRUDE OR PROCESSED SCRAP THROUGH THE DIFFERENT STAGES OF PRODUCTION, IT IS UNAVOIDABLE THAT 'THE SAME QUANTITY OF FERROUS SCRAP' SHOULD BE SUBJECT TWICE AND EVEN MORE TO THE CHARGE .
IT IS THEREFORE ESTABLISHED THAT THE DECISIONS BY WHICH EXEMPTIONS WERE GRANTED TO HOOGOVENS AND BREDA SIDERURGICA ARE ILLEGAL, SINCE EXEMPTION BASED ON THE CRITERION OF LOCAL INTEGRATION IS IN CONTRADICTION WITH THE INTERPRETATION OF THE TREATY GIVEN BY THE COURT IN ITS JUDGMENT IN JOINED CASES 32 AND 33/58 .
4 . IT IS NECESSARY TO CONSIDER FURTHER WHETHER THE FINDING OF THE ILLEGALITY OF THE DISPUTED EXEMPTIONS IS IN CONTRADICTION WITH BASIC DECISION N . 2/57 .
THE COURT CONSIDERS THAT SUCH IS NOT THE CASE .
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( A ) IT APPEARS FROM ARTICLE 2 OF DECISION N . 2/57 THAT THE EXPRESSION 'OWN RESOURCES' USED IN ARTICLE 4 OF THE DECISION RELATES TO THE 'UNDERTAKINGS REFERRED TO IN ARTICLE 80 OF THE TREATY', IT BEING UNDERSTOOD THAT THE UNDERTAKING USING THE FERROUS SCRAP IS REFERRED TO, THAT IS, IN THE PRESENT CASE, HOOGOVENS AND BREDA SIDERURGICA .
THERE IS REASON TO NOTE FIRST OF ALL THAT BY THE EXPRESSION 'OWN RESOURCES' DECISION N . 2/57 REFERS TO FERROUS SCRAP WHICH HAS FROM THE BEGINNING BEEN THE PROPERTY OF AN UNDERTAKING WITHIN THE MEANING OF THE TREATY .
THAT INTERPRETATION, FAR FROM CONTRADICTING THE INTENTION OF THE AUTHOR OF THE DECISION, WAS ADOPTED BY THE LATTER IN ITS LETTER OF 18 DECEMBER 1957 ( JO OF 1, 2 . 1958, P . 45/58 ), SINCE THERE IT IS SPECIFIED THAT THE CONCEPT OF 'OWN RESOURCES' MUST BE INTERPRETED 'IN ACCORDANCE WITH THE SEMANTIC VALUE OF THE EXPRESSION '.
THE CONCEPT OF 'UNDERTAKING' AS CONCEIVED BY ARTICLE 80 OF THE TREATY CORRESPONDS TO THE CONCEPT OF A NATURAL OR LEGAL PERSON, AS IS SET OUT ABOVE UNDER A 2 .
CONSEQUENTLY, WHEN A DECISION OF THE HIGH AUTHORITY SIMPLY REFERS TO THE 'UNDERTAKINGS REFERRED TO IN ARTICLE 80 OF THE TREATY' THERE IS REASON TO ASSUME THAT IT MEANS BY THIS THE NATURAL OR LEGAL PERSONS IN WHOSE NAME THE ACTIVITIES REFERRED TO IN THAT ARTICLE ARE CARRIED ON .
IN THE PRESENT CASE IT IS FURTHERMORE ESTABLISHED THAT SUCH AN INTERPRETATION CORRESPONDS TO THE INTENTION OF THE AUTHOR OF DECISION N . 2/57 SINCE, IN ITS LETTER OF 18 DECEMBER 1957, THE HIGH AUTHORITY SPECIFIED 'THAT AN UNDERTAKING...IS DEFINED IN ALL CIRCUMSTANCES BY ITS NAME '.
IN ADDITION, THE REFERENCE TO AN UNDERTAKING'S 'OWN' FERROUS SCRAP IMPLIES THE CONCEPT OF 'OWNER', WHICH HAS A STRICTLY LEGAL NATURE .
IT FOLLOWS FROM THE PRECEDING CONSIDERATIONS THAT, ACCORDING TO THE WORDING OF DECISION N . 2/57, ONLY FERROUS SCRAP WHICH BETWEEN THE TIME OF ITS 'PRODUCTION' AND THAT OF ITS USE HAS NOT UNDERGONE A CHANGE OF OWNERSHIP THAT EXPRESSION BEING TAKEN IN ITS STRICTLY LEGAL SENSE, CAN BE REGARDED AS OWN RESOURCES AND THEREFORE AS EXEMPT FROM EQUALIZATION .
THIS CANNOT BE SAID OF THE FERROUS SCRAP AT ISSUE .
( B ) THE INTERVENER HOOGOVENS ATTEMPTED TO SHOW THAT THE FERROUS SCRAP WHICH IT RECEIVES FROM BREEDBAND HAS NEVER CEASED TO BE THE PROPERTY OF HOOGOVENS .
IN THAT RESPECT IT ALLEGES IN PARTICULAR THAT :
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UNDER THE CONTRACT MADE BETWEEN BREEDBAND AND ITSELF, THE TWO COMPANIES FORM A 'MAATSCHAP' WITHIN THE MEANING OF ARTICLE 1655 ET SEQ . OF THE NETHERLANDS CIVIL CODE;
ACCORDING TO THE CIVIL LAW OF THE NETHERLANDS, THE MEMBERS OF A 'MAATSCHAP' ARE JOINT OWNERS OF THE GOODS PRODUCED IN COMMON .
THESE ALLEGATIONS ARE BASED ESSENTIALLY ON THE CONTRACT MADE BETWEEN HOOGOVENS AND BREEDBAND, THE WORDING OF WHICH THE INTERVENER DID NOT SEE FIT TO PLACE ON THE FILE .
THE INTERVENER EMPHASIZED THE 'EXTREMELY CONFIDENTIAL' NATURE OF THIS CONTRACT AND STATED THAT IT HAD SERIOUS DOUBTS ABOUT DISCLOSING ITS CONTENTS TO THE APPLICANT AND TO THE INTERVENER BREDA SIDERURGICA, WHICH ARE ITS COMPETITORS .
IT STATED NEVERTHELESS THAT IT WAS WILLING TO MAKE THE CONTRACT AVAILABLE TO ANY PERSON BOUND BY PROFESSIONAL SECRECY, IN THE PRESENCE, IF NEED BE, OF THE JUDGE-RAPPORTEUR, OR TO THE HIGH AUTHORITY FOR THE PURPOSE OF SUCH INVESTIGATION AS THE COURT MIGHT CONSIDER NECESSARY .
IT WOULD INFRINGE A BASIC PRINCIPLE OF LAW TO BASE A JUDICIAL DECISION ON FACTS AND DOCUMENTS OF WHICH THE PARTIES THEMSELVES, OR ONE OF THEM, HAVE NOT BEEN ABLE TO TAKE COGNIZANCE AND IN RELATION TO WHICH THEY HAVE NOT THEREFORE BEEN ABLE TO FORMULATE AN OPINION .
AT THE TIME OF THE INSPECTION BY THE COURT AT IJMUIDEN, THE REPRESENTATIVE OF THE INTERVENER, WHEN QUESTIONED ON THE SUBJECT, STATED THAT THE CONTRACT CONTAINED NO EXPRESS REFERENCE TO THE SYSTEM OF OWNERSHIP, BUT THAT IN THE OPINION OF THE INTERVENER THE PROOF OF JOINT OWNERSHIP EMERGED FROM SEVERAL OF ITS CLAUSES .
THE INTERPRETATION AND EVALUATION OF THESE CLAUSES ARE DEPENDENT ON AN EXAMINATION OF THE COMPLETE CONTRACT .
SINCE THE INTERVENER HAS ITSELF RELIED UPON THIS CONTRACT BY WAY OF PROOF OF ITS ALLEGATION THAT THE FERROUS SCRAP FROM BREEDBAND IS EQUIVALENT TO HOOGOVENS' OWN RESOURCES, IT SHOULD HAVE ADDUCED PROOF OF ITS ALLEGATIONS .
IT IS NOT ACCEPTABLE TO RELY ON THE COURT TO TAKE THE INITIATIVE IN OBTAINING FOR ITSELF BY MEASURES OF INQUIRY INFORMATION INTENDED TO PROVE THE COGENCY OF THE ARGUMENT RELIED UPON BY THE INTERVENER, WHICH ITSELF POSSESSES THAT INFORMATION .
FOR THESE REASONS THE COURT, TAKING NOTE OF THE RESERVATIONS AND HESITATIONS OF HOOGOVENS, HAS NOT ORDERED THE PRODUCTION OF THE CONTRACT .
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IN THE PRESENT CASE, SINCE THE INTERVENER HAS NOT ADDUCED PROOF OF ITS ALLEGATIONS, IT IS NOT NECESSARY TO GIVE JUDGMENT UPON THE WEIGHT OF THAT ARGUMENT .
CONSEQUENTLY IT HAS NOT BEEN ESTABLISHED THAT THE FERROUS SCRAP WHICH HOOGOVENS RECEIVES FROM BREEDBAND CONSTITUTES 'OWN RESOURCES', IN ACCORDANCE WITH THE SEMANTIC VALUE OF THAT EXPRESSION .
( C ) THE SAME FINDING MUST BE REACHED ON THE SUBJECT OF THE INTERVENER BREDA SIDERURGICA, WHICH HAS NOT EVEN ALLEGED THE ABSENCE OF A CHANGE OF OWNERSHIP OF THE FERROUS SCRAP IN QUESTION .
5 . CONSEQUENTLY THE EXEMPTIONS GRANTED TO THE INTERVENERS AMOUNT TO TRUE DEROGATIONS .
DECISION N . 2/57 PROVIDES NEITHER FOR GENERA DEROGATIONS NOR FOR SPECIAL DEROGATIONS FROM THE CONCEPT OF OWN RESOURCES .
NEVERTHELESS, IN THE CONTEXT OF FINANCIAL ARRANGEMENTS INVOLVING THE EQUALIZATION OF CHARGES, THE POWER TO GRANT DEROGATIONS MUST NOT BE PRESUMED, ESPECIALLY SINCE ANY DEROGATION IN FAVOUR OF ONE CONTRIBUTOR NECESSARILY INCREASES THE BURDEN ON THE OTHERS .
THE DISPUTED DEROGATIONS WERE THEREFORE GRANTED AS THE RESULT OF A MISTAKEN INTERPRETATION OF DECISION N . 2/57 .
6 . NEVERTHELESS, IT SHOULD BE EXAMINED FURTHER WHETHER THESE CONSIDERATIONS ARE INVALIDATED BY THE FACT THAT THE FERROUS SCRAP IN QUESTION IS NOT 'BOUGHT SCRAP' EITHER, THIS EXPRESSION BEING TAKEN IN THE MEANING WHICH EMERGES FROM A LOGICAL INTERPRETATION OF DECISION N . 2/57 .
( A ) THE INTERVENER BREDA SIDERURGICA STATED, AT THE TIME OF THE VISIT OF INSPECTION, THAT THE DELIVERIES WHICH IT RECEIVES FROM ITS SISTER COMPANIES ARE MADE PURSUANT TO THE FIXING OF A PRICE WHICH IS OFTEN 'THE SUBJECT OF SERIOUS DISCUSSION '.
CONSEQUENTLY THERE CAN BE NO DOUBT THAT THOSE DELIVERIES CONSTITUTE PURCHASES SINCE THERE IS AGREEMENT ON A TRANSFER OF OWNERSHIP BY MEANS OF THE PAYMENT OF A PRICE .
( B ) THE INTERVENER HOOGOVENS ALLEGED, AT THE TIME OF THE VISIT OF INSPECTION, THAT 'IN RESPECT OF DELIVERIES OF FERROUS SCRAP FROM BREEDBAND, THE LATTER RECEIVES A CREDIT NOTE FROM HOOGOVENS, DRAWN UP IN ACCORDANCE WITH THE PRICE OF FERROUS SCRAP IN THE INTERNAL MARKET'; IT ADDED HOWEVER THAT 'THIS PRICE IS IRRELEVANT BECAUSE IT IS FIXED ONLY TO ENABLE THE COST OF PRODUCTION AT THE DIFFERENT STAGES OF MANUFACTURE TO BE PRECISELY CALCULATED' AND THAT IN ANY CASE THIS 'PRICE' IS FINALLY BORNE BY THE TWO COMPANIES UNDER AN AGREEMENT BY WHICH THEY ARE REQUIRED TO SHARE THEIR PROFITS AND LOSSES .
THE FACTS ALLEGED HAVE NOT BEEN DISPUTED BY THE APPLICANT .
NEVERTHELESS, IN THE OPINION OF THE COURT IT EMERGES FROM THE GENERAL STRUCTURE AND OBJECTIVES OF DECISION N . 2/57 THAT THE CONCEPT OF 'BOUGHT SCRAP' INCLUDES THE DELIVERIES IN QUESTION .
AS THE COURT HAS ALREADY FOUND IN ITS JUDGMENT IN JOINED CASES 32 AND 33/58, IT EMERGES FROM THE OBJECTIVES AND FUNDAMENTAL PRINCIPLES OF THE EQUALIZATION MACHINERY THAT THE EXEMPTION OF OWN RESOURCES CONSTITUTES AN EXCEPTION TO THE RULE THAT ALL CONSUMERS OF FERROUS SCRAP ARE REQUIRED IN THAT CAPACITY TO PAY EQUALIZATION CONTRIBUTIONS .
CONSEQUENTLY IT IS NOT THE CONCEPT OF 'OWN RESOURCES' BUT RATHER THAT OF 'BOUGHT SCRAP' WHICH, IN CASE OF DOUBT, MUST BE INTERPRETED WIDELY .
THERE IS THEREFORE REASON FOR REGARDING AS 'BOUGHT FERROUS SCRAP' ALL SCRAP IN WHICH THERE HAS BEEN A TRANSFER OF PROPERTY FOR AN AGREED PRICE, WHETHER THIS TRANSFER IS EFFECTED UNDER A CONTRACT OF SALE IN THE REAL MEANING OF THE TERM, OR BY VIRTUE OF A COMPARABLE CONTRACT AND WHETHER OR NOT THERE EXISTS BETWEEN BUYER AND SELLER A SHARING OF PROFITS AND LOSSES .
SUCH IS THE CASE AS REGARDS THE FERROUS SCRAP IN QUESTION .
IT FOLLOWS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE EXEMPTIONS GRANTED TO THE INTERVENERS ARE CONTRARY BOTH TO THE TREATY AND TO THE PROVISIONS OF DECISION N . 2/57 .
B - ARE THE ILLEGAL EXEMPTIONS IN DISPUTE CAPABLE OF BEING REVOKED?
THE INTERVENERS HAVE ALLEGED THAT THE REFUSAL TO REVOKE THE EXEMPTIONS IS JUSTIFIED BY THE FACT THAT THEIR POSSIBLE WITHDRAWAL WOULD BE POINTLESS .
THEY CLAIM THAT THE EQUALIZATION SCHEME NO LONGER OPERATES AND IS BEING WOUND UP, SO THAT THE ANNULMENT EX NUNC OF THE CONTESTED DECISION CAN HAVE NO PRACTICAL EFFECT, WHILST A WITHDRAWAL WITH RETROACTIVE EFFECT AND AN ALTERATION OF THE AMOUNTS WHICH THE INTERVENERS HAVE PAID IN THE PAST WOULD RUN COUNTER TO THE PRINCIPLE THAT THE WITHDRAWAL OF ACQUIRED RIGHTS IS UNACCEPTABLE .
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THAT ALLEGATION DISREGARDS THE FACT THAT THE PRINCIPLE OF RESPECT FOR LEGAL CERTAINTY, IMPORTANT AS IT MAY BE, CANNOT BE APPLIED IN AN ABSOLUTE MANNER, BUT THAT ITS APPLICATION MUST BE COMBINED WITH THAT OF THE PRINCIPLE OF LEGALITY; THE QUESTION WHICH OF THESE PRINCIPLES SHOULD PREVAIL IN EACH PARTICULAR CASE DEPENDS UPON A COMPARISON OF THE PUBLIC INTEREST WITH THE PRIVATE INTERESTS IN QUESTION, THAT IS TO SAY :
ON THE ONE HAND, THE INTEREST OF THE BENEFICIARIES AND ESPECIALLY THE FACT THAT THEY MIGHT ASSUME IN GOOD FAITH THAT THEY DID NOT HAVE TO PAY CONTRIBUTIONS ON THE FERROUS SCRAP IN QUESTION, AND MIGHT ARRANGE THEIR AFFAIRS IN RELIANCE ON THE CONTINUANCE OF THIS POSITION .
ON THE OTHER HAND, THE INTEREST OF THE COMMUNITY IN ENSURING THE PROPER WORKING OF THE EQUALIZATION SCHEME, WHICH DEPENDS ON THE JOINT LIABILITY OF ALL UNDERTAKINGS CONSUMING FERROUS SCRAP; THIS INTEREST MAKES IT NECESSARY TO ENSURE THAT OTHER CONTRIBUTORS DO NOT PERMANENTLY SUFFER THE FINANCIAL CONSEQUENCES OF AN EXEMPTION ILLEGALLY GRANTED TO THEIR COMPETITORS .
IT SHOULD ALSO BE NOTED THAT THE STATEMENT OF ACCOUNT IS STILL PROVISIONAL IN CHARACTER AND THAT IT IS POSSIBLE TO SPREAD THE PAYMENT OF ARREARS OVER A PERIOD OF TIME .
FURTHERMORE, ACCORDING TO THE LAW OF ALL THE MEMBER STATES, RETROACTIVE WITHDRAWAL IS GENERALLY ACCEPTED IN CASES IN WHICH THE ADMINISTRATIVE MEASURE IN QUESTION HAS BEEN ADOPTED ON THE BASIS OF FALSE OR INCOMPLETE INFORMATION PROVIDED BY THOSE CONCERNED .
THE COURT CANNOT EXCLUDE THE APPLICATION OF THIS PRINCIPLE IN THE PRESENT CASE .
IN FACT IT APPEARS FROM A STATEMENT MADE BY THE REPRESENTATIVE OF THE INTERVENER HOOGOVENS AT THE TIME OF THE VISIT OF INSPECTION BY THE COURT AT IJMUIDEN, AS WELL AS FROM THE 1959 ANNUAL REPORT OF BREEDBAND NV, THAT THE LATTER ALSO PROVIDED HOOGOVENS WITH FERROUS SCRAP ARISING DURING THE ROLLING OF STEEL SLABS WHICH DID NOT COME FROM HOOGOVENS .
ON THE OTHER HAND, IT APPEARS FROM THE STATEMENTS MADE BY THE REPRESENTATIVE OF BREDA SIDERURGICA AT THE TIME OF THE VISIT BY THE COURT TO SESTO SAN GIOVANNI THAT THE SISTER COMPANIES OF THE INTERVENER BREDA SIDERURGICA ARE FREE TO CHOOSE THEIR SUPPLIERS OF STEEL, SO THAT THE FERROUS SCRAP WHICH THEY DELIVER TO THE BREDA SIDERURGICA COMPANY DOES NOT COME EXCLUSIVELY FROM THE STEEL PROVIDED BY THE LATTER .
THE APPRAISAL OF THIS FACT AND OF THE RESPECTIVE IMPORTANCE OF THE INTERESTS IN QUESTION AND CONSEQUENTLY THE DECISION WHETHER OR NOT TO WITHDRAW THE IRREGULAR EXEMPTIONS WITH RETROACTIVE EFFECT DEVOLVE IN THE FIRST PLACE ON THE HIGH AUTHORITY .
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THE COURT CANNOT PUT ITSELF IN THE PLACE OF THE HIGH AUTHORITY AND MUST CONSEQUENTLY CONFINE ITSELF TO REFERRING THE MATTER BACK TO THE HIGH AUTHORITY SO THAT IT MAY MAKE THAT APPRAISAL IN ACCORDANCE WITH ARTICLE 34 OF THE TREATY .
IT APPEARS FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE CONTESTED DECISION IS ILLEGAL BECAUSE IT IS BASED ON THE NOTION, WHICH IS INCORRECT IN LAW, THAT THE DISPUTED EXEMPTIONS WERE LEGAL AND THAT THE HIGH AUTHORITY HAD NO POWER TO WITHDRAW THEM .
CONSEQUENTLY THAT DECISION MUST BE ANNULLED AND THE MATTER REMITTED TO THE HIGH AUTHORITY .
II - THE ACTION FOR FAILURE TO ACT BROUGHT AGAINST THE IMPLIED REFUSAL TO FIX THE NEW RATE OF CHARGE AND TO COMMUNICATE IT TO THE APPLICANT WITH ALL THE NECESSARY INFORMATION
ANY WITHDRAWAL OF DISPUTED EXEMPTIONS WOULD INVOLVE AN OBLIGATION ON THE PART OF THE DEFENDANT TO FIX THE NEW BASIC RATE OF EQUALIZATION, TO SUBSTITUTE FOR THE DECISIONS IMPOSING A CONTRIBUTION ON THE APPLICANT NEW AND PROPERLY REASONED DECISIONS BASED ON A CORRECT CALCULATION AND TO COMMUNICATE THOSE DECISIONS TO THE APPLICANT .
HOWEVER, THE DEPARTMENTS OF THE HIGH AUTHORITY MUST HAVE, WHERE NECESSARY, A REASONABLE PERIOD OF TIME IN WHICH TO CARRY OUT THESE OPERATIONS, SO THAT IT CANNOT BE ACCEPTED THAT THE DEFENDANT WAS REQUIRED TO ADOPT THE DECISIONS SOUGHT AT THE LATEST BY THE DATE ON WHICH IT IS CONSIDERED TO HAVE TAKEN THE CONTESTED IMPLIED DECISION .
NEVERTHELESS, THE ANNULMENT OF THE REFUSAL TO WITHDRAW THE EXEMPTIONS EXTENDS NECESSARILY TO THE REFUSAL TO RECTIFY THE CONTRIBUTION .
CONSEQUENTLY, THAT PART OF THE CONTESTED DECISION MUST ALSO BE ANNULLED .
IN THESE CIRCUMSTANCES THERE IS NO NEED TO CONSIDER WHETHER THE CONTESTED DECISION IS FURTHER VITIATED BY OTHER DEFECTS ALLEGED BY THE APPLICANT, THAT IS TO SAY MISUSE OF POWERS, LACK OF JURISDICTION AND INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS .
Decision on costs
UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
IN THE PRESENT CASE THE APPLICANT HAS BEEN UNSUCCESSFUL IN APPLICATION 42/59, WHILST THE DEFENDANT AND THE INTERVENERS HAVE BEEN UNSUCCESSFUL IN APPLICATION 49/59 .
CONSEQUENTLY, AS REGARDS APPLICATION 42/59, THE APPLICANT MUST BEAR THE COSTS, INCLUDING THOSE OF THE INTERVENTION .
AS REGARDS APPLICATION 49/59, IT IS APPROPRIATE THAT THE DEFENDANT AND THE INTERVENERS SHOULD BEAR THEIR OWN COSTS, THAT THE DEFENDANT SHOULD BE ORDERED TO BEAR THE COSTS OF THE APPLICANT, APART FROM THE COSTS DUE TO THE INTERVENTIONS, AND THAT THE INTERVENERS SHOULD BE ORDERED TO BEAR THE COSTS CAUSED TO THE APPLICANT BY THEIR RESPECTIVE INTERVENTIONS .
Endorsements
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE - RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE - GENERAL;
HAVING REGARD TO ARTICLES 4, 33, 34, 35, 40, 53 AND 80 OF THE ECSC TREATY;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC;
HAVING REGARD TO DECISION N . 2/57 OF THE HIGH AUTHORITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT
HEREBY :
IN CASE 42/59 :
1 . DISMISSES THE APPLICATION AS UNFOUNDED;
2 . ORDERS THE APPLICANT TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENTION;
IN CASE 49/59 :
1 . ANNULS THE IMPLIED DECISION OF THE HIGH AUTHORITY REFUSING TO WITHDRAW WITH RETROACTIVE EFFECT THE EXEMPTIONS GRANTED TO THE INTERVENERS AND TO FIX, WITH RESPECT TO THE WITHDRAWAL, THE CONTRIBUTION DUE FROM THE APPLICANT, AS WELL AS TO COMMUNICATE IT TO THE LATTER WITH ALL THE INFORMATION ENABLING IT TO MAKE ITS NORMAL CHECK OF THE CALCULATION OF THAT CONTRIBUTION;
2 . REMITS THE MATTER TO THE HIGH AUTHORITY;
3 . ( A ) ORDERS THE DEFENDANT AND THE INTERVENERS TO BEAR THEIR OWN COSTS;
( B ) ORDERS THE DEFENDANT TO BEAR THE COSTS OF THE APPLICANT, APART FROM THE COSTS CAUSED BY THE INTERVENTION;
( C ) ORDERS THE INTERVENERS TO PAY THE COSTS CAUSED TO THE APPLICANT BY THEIR RESPECTIVE INTERVENTIONS .