61959CJ0031_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
ACCIAIERIA E TUBIFICIO DI BRESCIA, A JOINT STOCK COMPANY, HAVING ITS REGISTERED OFFICE AT BRESCIA, REPRESENTED BY ITS CHAIRMAN, DANDOLO FRANCESCO REBUA, ASSISTED BY CESARE GRASSETTI, PROFESSOR AT THE FACULTY OF LAW OF THE UNIVERSITY OF MILAN, ADVOCATE OF THE MILAN BAR AND THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GUIDO RIETTI, 15 BOULEVARD ROOSEVELT, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS AGENT, DR MARIO BERRI, LEGAL ADVISER TO THE HIGH AUTHORITY, ASSISTED BY ANTONIO SORRENTINO, ADVOCATE AT THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY OF 15 APRIL 1959 CONCERNING THE CARRYING OUT OF AN INSPECTION AT ACCIAIERIA E TUBIFICIO DI BRESCIA, S.P.A ., VIA ZARA 12, BRESCIA,
Grounds
P . 78
I - PROCEDURE
THE APPLICATION HAS BEEN INTRODUCED IN DUE FORM AND WITHIN THE PRESCRIBED TIME - LIMIT .
P . 79
NEITHER THE DEFENDANT NOR THE ADVOCATE - GENERAL HAS CONTESTED THE ADMISSIBILITY OF THE APPLICATION AND NO SUCH QUESTION HAS BEEN RAISED BY THE COURT .
II - SUBSTANCE OF THE CASE
A - THE INFRINGEMENT OF THE TREATY
1 . THE APPLICANT CLAIMS, FIRST, THAT THE DECISION IS 'ABSOLUTELY IMPRECISE AND WITHOUT DEFINITE SUBJECT-MATTER', IN THAT NEITHER THE RECITALS IN THE PREAMBLE THERETO NOR THE OPERATIVE PART INDICATE THE INFORMATION IT IS ASKED TO PROVIDE OR EXPLAIN WHY IT IS NECESSARY IN THIS PARTICULAR CASE AND THAT THIS CONSTITUTES AN INFRINGEMENT OF THE TREATY .
THE GROUND OF COMPLAINT REFERS IN THIS CASE TO THE FACT THAT THE DECISION ORDERS THE UNDERTAKING TO PROVIDE INFORMATION BUT DOES NOT SET OUT PRECISELY ITS SPECIFIC SUBJECT-MATTER AND CONTENT OR, IN ADDITION, WHY SUCH INFORMATION IS NECESSARY . THE APPLICANT SEEKS TO DRAW A DISTINCTION BETWEEN THESE ELEMENTS AND THE OBJECTIVE PURSUED WHICH, IT MAINTAINS, IS INSUFFICIENTLY CLEARLY STATED IN THE DECISION AND THUS CANNOT CONSTITUTE THE NECESSARY LEGAL BASIS FOR IT .
2 . SECONDLY, MORE GENERALLY, THE APPLICANT PUTS FORWARD THE SAME GROUND OF COMPLAINT IN ORDER TO DEDUCE FROM THE FAILURE TO SATISFY THE CONDITIONS TO WHICH ANY MEASURE OF INVESTIGATION IS SUBJECT UNDER THE FIRST PARAGRAPH OF ARTICLE 47 OF THE TREATY, THAT IS, A PRELIMINARY DECISION SETTING OUT THE REASONS WHY A REQUEST FOR INFORMATION IS NECESSARY AND SPECIFYING AND DEFINING THE INFORMATION REQUIRED, THAT THERE HAS BEEN AN INFRINGEMENT OF THE TREATY . SUCH INFORMATION, IT CLAIMS, MAY ONLY SUBSEQUENTLY BE CHECKED AND, IF NECESSARY, THE PENALTIES REFERRED TO UNDER THE THIRD PARAGRAPH OF THE SAME ARTICLE MAY BE IMPOSED IF IT IS REFUSED OR INACCURATE .
3 . THE SECOND OF THESE GROUNDS OF COMPLAINT MUST BE EXAMINED FIRST .
BY PROVIDING IN A SINGLE SECTION THE TWO PROPOSITIONS THAT 'THE HIGH AUTHORITY MAY OBTAIN THE INFORMATION IT REQUIRES TO CARRY OUT ITS TASKS . IT MAY HAVE ANY NECESSARY CHECKS MADE', THE FIRST PARAGRAPH OF ARTICLE 47 ESTABLISHES, FIRST THE DUTIES OF UNDERTAKING TO PROVIDE INFORMATION AND, SECONDLY, THE EXTENT OF THE INQUIRIES, WHICH MAY BE MADE AT THE SAME TIME . NOTHING IN THE WORDING OF THIS PROVISION ALLOWS ONE TO INFER FROM IT THE IMPLIED PROVISION THAT A PRELIMINARY DECISION IS TO BE ADOPTED BEFORE ANY CHECK IS MADE .
IN FACT, ALTHOUGH AN INSPECTION ONLY IMPLIES AN EXAMINATION AS TO THE ACCURACY OF THE INFORMATION PROVIDED, THE CHECK PROVIDED FOR IN ARTICLE 47 APPLIES NOT ONLY GENERALITER TO ALL THE INQUIRIES WHICH THE HIGH AUTHORITY IS ENTITLED TO MAKE IN ORDER TO CARRY OUT ITS TASKS WHICH GO BEYOND THE IMPOSITION OF LEVIES OR OF OTHER PARAFISCAL CHARGES_THE INSTITUTION OF PROCEEDINGS FOR VIOLATIONS OF THE TREATY AND THE IMPLEMENTING DECISIONS ADOPTED THEREUNDER, BUT ALSO TO ITS MANY DUTIES OF OBTAINING INFORMATION, FOR EXAMPLE, UNDER SUBPARAGRAPHS ( 1 ) AND ( 5 ) OF THE THIRD PARAGRAPH OF ARTICLE 46 OF THE TREATY .
P . 80
HOWEVER, AS THE TASK OF COLLECTING INFORMATION REFERRED TO IN THE FIRST PARAGRAPH OF ARTICLE 47 IS NEITHER DEFINED NOR LIMITED BY THAT PARAGRAPH, IT MUST BE ACCEPTED THAT, IF THE UNDERTAKINGS CONSIDER THAT THE ACTIVITIES OF THE OFFICIALS OF THE HIGH AUTHORITY EXCEED EITHER THEIR TERMS OF REFERENCE OR THE JURISDICTION OF THE COMMUNITY, THEY MAY REQUEST THAT NO INFORMATION BE GATHERED OR CHECKS BE MADE BEFORE A DECISION IS ADOPTED IN FAVOUR OF ONE OF THE DIFFERING POINTS OF VIEW .
FURTHERMORE, IN THIS INSTANCE THE HIGH AUTHORITY ACTED IN ACCORDANCE WITH THESE PRINCIPLES BY SPECIFYING IN THE CONTESTED DECISION THE APPLICANT'S DUTY TO PROVIDE THE INFORMATION AND TO ALLOW THE CHECKS TO BE MADE AS SOON AS THE DISPUTE AROSE AS TO THE EXTENT OF THE POWERS OF ITS OFFICIALS .
THEREFORE, TO DEFINE THE GENERAL SCHEME AND THE EXACT SCOPE OF THE FIRST PARAGRAPH OF ARTICLE 47 THERE IS ABSOLUTELY NO NEED TO RESORT TO THE PROVISIONS OF THE FOURTH PARAGRAPH OF ARTICLE 86 OF THE TREATY, THE AIM OF WHICH IS NO WAY TO DEFINE THE EXTENT OF THE POWER TO OBTAIN INFORMATION AND TO MAKE CHECKS BUT SOLELY TO MAKE AVAILABLE TO THE HIGH AUTHORITY THE COMPULSORY POWERS AFFORDED BY NATIONAL REVENUE LAWS FOR THE DIRECT AND COMPULSORY EXECUTION BY ITS OWN OFFICIALS OF INSPECTIONS CAPABLE OF AFFECTING THE AREA OF INDIVIDUAL LIBERTY AND OF DEPARTING FROM THE PRINCIPLE OF THE INVIOLABILITY OF PRIVATE PREMISES .
IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THERE IS NOTHING IN THE LETTER, SPIRIT OR AIM OF THE FIRST PARAGRAPH OF ARTICLE 47 TO PROHIBIT INFORMATION BEING OBTAINED AND A CHECK BEING MADE AT THE SAME TIME .
THERE HAS THUS BEEN NO INFRINGEMENT OF ARTICLE 47 AND THE APPLICANT CANNOT SUCCEED IN HIS CLAIM THAT THE INFORMATION MUST BE OBTAINED AND THE CHECK MADE IN TWO DISTINCT AND SUCCESSIVE STAGES ACCORDING TO AN ORDER OF PRIORITY WHICH IS NOT LAID DOWN IN THE TEXT, PROVIDED OF COURSE THAT IT IS NECESSARY FOR THE CHECKS TO BE MADE .
4 . AFTER THIS DEFINITION OF THE LEGAL BASIS FOR THE DECISION IN QUESTION IT IS APPROPRIATE TO EXAMINE THE FIRST GROUND OF COMPLAINT, IN WHICH THE APPLICANT CLAIMS THAT THE DECISION IS IMPRECISE AND LACKS DEFINITE SUBJECT-MATTER SINCE THE FIRST PARAGRAPH OF ARTICLE 47 REQUIRES THE HIGH AUTHORITY TO GIVE A PRIOR AND PRECISE INDICATION OF THE FACTS TO WHICH THE CHECKS APPLY AND NOT ONLY OF THE PURPOSE FOR WHICH THEY ARE INTENDED .
THE HIGH AUTHORITY MUST OF COURSE GIVE REASONS FOR ITS DECISION AND IN THE ABSENCE OF ANY LEGAL GROUNDS FOR IT, THE TERMS OF THE TREATY ARE INFRINGED . HOWEVER, AS THE COURT HAS JUST HELD, CHECKS CARRIED OUT BY THE HIGH AUTHORITY WHEN OBTAINING INFORMATION MAY GUIDE ITS INQUIRIES AND THE SUBJECT-MATTER OF SUCH INQUIRIES COULD NOT BE DEFINED IN DETAIL IN THE STATEMENT OF REASONS .
P . 81
FURTHERMORE, THE NEED FOR INFORMATION REQUIRED BY THE HIGH AUTHORITY MUST EMERGE FROM THE DECISION WITH CERTAINTY .
IN VIEW OF THIS IT IS ONLY THE OBJECT IN VIEW WHICH MUST SERVE AS THE CRITERION AND NOT AN A PRIORI STATEMENT OF THE RESULTS EXPECTED WHICH, DRAWN UP UNILATERALLY AND WITHOUT KNOWLEDGE OF THE FACTS, MAY CHANGE BY REASON OF THE CHECKS WHEN THEY ARE CARRIED OUT .
THE COURT FINDS THAT THE STATEMENT OF REASONS FOR THE DECISION IN QUESTION AND ITS OPERATIVE PART SET OUT IN SUFFICIENT DETAIL FOR THE PURPOSES OF LAW ALL THE ELEMENTS OF FACT WHICH JUSTIFY ITS CONCLUSIONS .
THE TWO GROUNDS OF COMPLAINT EXAMINED ABOVE ARE THEREFORE UNFOUNDED .
5 . AS REGARDS THE SUBMISSION THAT THE HIGH AUTHORITY VIOLATED THE TREATY AND EXCEEDED ITS POWERS BY SEEKING TO HAVE CHECKS MADE ON THE APPLICANT'S ENTIRE IRON AND STEEL AND ENGINEERING PRODUCTION, THEREBY ENCROACHING ON AN AREA NOT COVERED BY THE PROVISIONS OF THE ECSC TREATY, IT MUST BE NOTED THAT THE EXERCISE OF THE HIGH AUTHORITY'S RIGHT TO HAVE CHECKS MADE MUST IN PRINCIPLE BE CONFINED TO THE COAL AND STEEL PRODUCTION OF THE UNDERTAKINGS .
THEREFORE, AS LONG AS THE ADMINISTRATIVE ORGANIZATION AND, IN PARTICULAR, THE ACCOUNTS OF THE UNDERTAKINGS, ARE BASED UPON A CLEAR DIVISION BETWEEN THOSE SECTORS OF PRODUCTION WHICH ARE SUBJECT TO THE ECSC TREATY AND OTHER SECTORS OF PRODUCTION, THE HIGH AUTHORITY OUGHT NOT IN PRINCIPLE TO EXTEND ITS CHECKS BEYOND THE COAL OR IRON AND STEEL SECTORS .
ON THE OTHER HAND, THE HIGH AUTHORITY MUST ASSURE ITSELF THAT SUCH A DIVISION IN FACT EXISTS AND THAT IT HAS NOT BEEN FALSIFIED INTENTIONALLY OR AS THE RESULT OF AN ERROR . FOR THIS PURPOSE IT MAY CLAIM A RIGHT TO INSPECT THE WHOLE ADMINISTRATION OF THE UNDERTAKING .
FURTHERMORE, EVEN IF THE DIVISION PROVES TO BE CORRECT, THE HIGH AUTHORITY MUST BE ABLE TO COMPLETE ITS INQUIRIES BY ALSO INSPECTING THAT PART OF THE ADMINISTRATION WHICH IS CONCERNED WITH THE PRODUCTION WHICH IS NOT SUBJECT TO THE TREATY, IN ORDER TO INVESTIGATE WHETHER THERE IS ANY DISCREPANCY BETWEEN THE ACCOUNTS OF THE TWO SECTIONS WHICH MIGHT DISCLOSE A VIOLATION OF THE TREATY .
ALTHOUGH THE HIGH AUTHORITY MAY HAVE BEEN TOO POSITIVE IN THE FOURTH RECITAL TO ITS DECISION, WHEN IT STATED THAT THE ACCOUNTS OF AN UNDERTAKING ARE INDIVISIBLE, THIS CANNOT INVALIDATE THE DECISION ADOPTED IN THIS INSTANCE WHICH, AS IS SHOWN BY THE EARLIER CORRESPONDENCE BETWEEN THE PARTIES, SEEKS TO CHECK WHETHER FACTORS CONCERNING THE PRODUCTION OF IRON AND STEEL ARE NOT TO BE FOUND IN THE PART OF THE ACCOUNTS WHICH DEALS WITH THE UNDERTAKING'S ENGINEERING PRODUCTION .
P . 82
FURTHERMORE, IT IS NOT NECESSARY TO RESTRICT THE POWER OF THE HIGH AUTHORITY TO EXAMINE ALL THE ACCOUNTS OF AN UNDERTAKING WHOSE PRODUCTION IS MIXED ON THE GROUNDS THAT IT MAY DIVULGE INFORMATION WHICH IS HARMFUL TO SUCH UNDERTAKINGS SINCE, IN THE LIGHT OF THE DUTY OF PROFESSIONAL SECRECY IMPOSED ON THE INSPECTORS OF THE HIGH AUTHORITY, NO VITAL INTEREST OF THE UNDERTAKINGS IS LIKELY TO BE ADVERSELY AFFECTED BY SUCH A GENERAL EXAMINATION .
MOREOVER, NOT ONLY DO THE PROVISIONS OF THE FOURTH PARAGRAPH OF ARTICLE 47 PROVIDE A SAFEGUARD FOR THE INTERESTS OF THE UNDERTAKINGS, BUT THEY ALSO GIVE THEM A RIGHT TO COMPENSATION FOR ANY DAMAGE WHICH MAY RESULT FROM INDISCRETION ON THE PART OF THE OFFICIALS OF THE HIGH AUTHORITY .
THIS SUBMISSION IS THEREFORE UNFOUNDED .
B - THE INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS
1 . CONTRARY TO THE COMPLAINT MADE BY THE APPLICANT AND ALTHOUGH THE DECISION IS IMPERFECTLY FORMULATED AS REGARDS THE NEED FOR THE REQUEST FOR INFORMATION, SUFFICIENT REASONS ARE GIVEN FOR THE DECISION, SINCE THE MERE REFERENCE TO THE PERFORMANCE OF ITS TASKS BY THE HIGH AUTHORITY IS SUPPLEMENTED BY THE STATEMENT OF THE PURPOSES FOR WHICH THE INFORMATION WAS INTENDED .
2 . FOR THE SAME REASONS IT CANNOT BE HELD THAT INSUFFICIENT REASONS WERE GIVEN FOR THE CHECKS ORDERED TO BE CARRIED OUT .
3 . THE ARGUMENTS PUT FORWARD IN SUPPORT OF THE COMPLAINT THAT THE STATEMENT OF REASONS FOR THE DECISION IS VITIATED ON GROUNDS OF 'ERROR AND INAPPROPRIATENESS' AND THEREFORE INFRINGES ESSENTIAL PROCEDURAL REQUIREMENTS THUS AMOUNT TO THE COMPLAINT OF INFRINGEMENT OF THE TREATY WHICH HAS ALREADY BEEN DISMISSED ABOVE AND THERE IS NO LONGER ANY NEED TO CONSIDER THEM AGAIN IN THIS NEW FORM .
C - MISUSE OF POWERS
THE APPLICANT WRONGLY MAINTAINS THAT THE HIGH AUTHORITY SOUGHT, BY MEANS OF THE CONTESTED DECISION, TO TRANSFORM THE RIGHT TO OBTAIN INFORMATION AND, IN PARTICULAR TO HAVE CHECKS MADE, INTO A PROCEDURE WHICH WAS INQUISITORIAL IN NATURE, IN ORDER TO EXTEND ITS POWERS BEYOND THOSE LAID DOWN BY THE TREATY AND THAT IN THIS WAY IT PURSUED AN AIM WHICH IT WAS NOT ENTITLED TO PURSUE UNDER THE TREATY .
THIS ARGUMENT IS NOT PERTINENT, SINCE IT FAILS TO MAKE CLEAR WHAT OBJECTIVES OUTSIDE THE SCOPE OF THE TREATY THE HIGH AUTHORITY IS ALLEGEDLY TRYING TO ATTAIN . FURTHERMORE, IT IS NOT SUPPORTED BY ANY EVIDENCE AND NO EVIDENCE HAS BEEN OFFERED .
IT MUST THEREFORE BE REJECTED .
Decision on costs
UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF THE EUROPEAN COMMUNITIES THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
IN THIS INSTANCE THE APPLICANT HAS BEEN UNSUCCESSFUL BOTH IN HIS SUBMISSIONS IN THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES AND IN THE MAIN ACTION .
THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE SECTION .
Endorsements
ON THOSE GROUNDS,
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 5, 15, 33, 46, 47, 64, 82 AND 86 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,
Operative part
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED;
2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION, INCLUDING THOSE OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .