61965CJ0003_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 3/65
SOCIETE ANONYME METALLURGIQUE D' ESPERANCE - LONGDOZ, HAVING ITS REGISTERED OFFICE AT 60 RUE D' HARSCAMP, LIEGE, REPRESENTED BY ALEXANDRE DE POSSON, GENERAL MANAGER, AND ALBERT LAMPROYE, SECRETARY-GENERAL, ASSISTED BY J . MERTENS DE WILMARS, ADVOCATE OF THE ANTWERP BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY - GOERGEN,
APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, GIUSEPPE MARCHESINI, ACTING AS AGENT, ASSISTED BY CYR CAMBIER, ADVOCATE AT THE COUR D' APPEL, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION
- PRIMARILY FOR THE ANNULMENT OF THE DEFENDANT'S DECISION OF 13 NOVEMBER 1964 REQUIRING THE APPLICANT TO PAY A SPECIFIC SUM AS ITS CONTRIBUTION TO THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP;
- SECONDARILY FOR DAMAGES FOR THE DEFENDANT'S WRONGFUL ACT OR OMISSION,
Grounds
P.1078
I - THE APPLICATION FOR ANNULMENT
1 . THE FIRST GROUND
THE APPLICANT CLAIMS THAT THE SCRAP IN DISPUTE CONSTITUTED NOT BOUGHT SCRAP WITHIN THE MEANING OF THE GENERAL DECISIONS, BUT ' OWN RESOURCES ' WHICH, AS SUCH, WERE GRANTED EXEMPTION FROM THE EQUALIZATION CONTRIBUTION .
ON THE BASIS OF THIS DESCRIPTION, IT CONCLUDES THAT THE OWNERSHIP OF THE SAID SCRAP NEVER CEASED TO BE VESTED IN IT BY VIRTUE OF THE RETENTION OF OWNERSHIP CLAUSE INCLUDED IN THE CONTRACTS OF SALE MADE WITH PHENIX-WORKS AND LA ROCHETTE AND THAT THE DECISION WHICH IT CONTESTS WAS THEREFORE WRONG IN SUBJECTING THE SCRAP TO EQUALIZATION CONTRIBUTIONS .
THE GENERAL DECISIONS APPLICABLE TO THIS QUESTION INTRODUCED, FOR THE BENEFIT OF ALL UNDERTAKINGS WITHIN THE COMMUNITY, A SCHEME DESIGNED TO ENSURE THEM A REGULAR SUPPLY OF SCRAP AT UNIFORM PRICES WHATEVER THE MEMBER STATE TO WHICH THEY BELONGED OR THE ORIGIN OF THE SCRAP IN QUESTION .
P.1079
THESE DECISIONS, AIMED AT SPREADING BETWEEN UNDERTAKINGS THE FINANCIAL BURDEN OF A BENEFIT IN WHICH ALL COULD SHARE, ACCORDINGLY MADE ALL SCRAP CONSUMED BY COMMUNITY UNDERTAKINGS SUBJECT TO THE EQUALIZATION LEVY, WITH THE SINGLE EXCEPTION OF SCRAP WHICH CONSTITUTED THEIR OWN RESOURCES .
THE SCOPE OF THIS EXEMPTION CAN BE DETERMINED ONLY BY REFERENCE TO THE SYSTEM WITHIN WHICH IT IS DESIGNED TO OPERATE AND IN THE LIGHT OF THE FUNDAMENTAL PRINCIPLES ON WHICH IT IS BASED .
SINCE THE OBLIGATION TO CONTRIBUTE TO THE EQUALIZATION SCHEME IS THE RULE AND EXEMPTION THE EXCEPTION, THE LATTER MUST BE INTERPRETED STRICTLY AND MUST BE CONSISTENT WITH THE AIMS, THE BASIC PRINCIPLES AND THE REQUIREMENTS FOR THE PROPER FUNCTIONING OF THE EQUALIZATION SCHEME, IN PARTICULAR THE PRINCIPLE OF THE EQUAL LIABILITY OF ALL THOSE AFFECTED TO PAY CONTRIBUTIONS, SHARED IN PROPORTION TO THE AMOUNTS RESPECTIVELY CONSUMED, AND THE REQUIREMENT THAT THE SCHEME BE APPLIED IMPARTIALLY TO ALL THOSE SUBJECT TO IT .
WHEN IT PLEADS THE RIGHT OF OWNERSHIP, WHICH IT CLAIMS NEVER TO HAVE CEASED TO ENJOY IN RESPECT OF THE DISPUTED SCRAP, AND THE FACT THAT THIS ELEMENT HAS BEEN TAKEN INTO ACCOUNT IN CERTAIN SIMILAR CASES PREVIOUSLY, THE APPLICANT IS IGNORING THE FACT THAT THE CONCEPT OF ' OWN RESOURCES ' DEPENDS EQUALLY ON A CONSIDERATION OF THE METHOD OF SCRAP PRODUCTION REQUIRED BY THE SPIRIT AND PURPOSE OF THE EQUALIZATION SCHEME . THE APPLICANT IS THEREFORE MISTAKEN IN THINKING THAT THE EXEMPTION CAN BE MADE TO APPLY TO THE SCRAP HERE IN DISPUTE SIMPLY BY SHOWING THAT AT NO TIME DID IT TRANSFER ITS OWNERSHIP THEREOF .
IN DOING SO, IT FAILS TO APPRECIATE THAT THE FACT THAT SCRAP ARISING FROM A TRANSFER OF OWNERSHIP WAS CLASSIFIED IN PREVIOUS SIMILAR CASES AS BOUGHT SCRAP DOES NOT BY ANY MEANS INDICATE THAT THE ABSENCE OF ANY TRANSFER WILL JUSTIFY EXEMPTION FROM THE EQUALIZATION LEVY .
INDEED, THE QUESTION WHO HOLDS TITLE TO THE OWNERSHIP OF THE DISPUTED SCRAP, HOWEVER IMPORTANT, CANNOT BE THE SOLE DETERMINING FACTOR IN THE EQUALIZATION SCHEME .
THE AIMS OF THE SCHEME MAKE IT IMPERATIVE TO TAKE INTO CONSIDERATION THE CIRCUMSTANCES SURROUNDING THE PRODUCTION OF THE SCRAP IN QUESTION .
P.1080
NO EXEMPTION FROM EQUALIZATION CONTRIBUTIONS CAN BE ALLOWED WHICH WOULD TEND TO INCREASE SUBSTANTIALLY DIFFERENCES IN PRODUCTION COSTS, OTHERWISE THAN BY ALTERING THE LEVEL OF OUTPUT, AND THEREBY BRING ABOUT AN APPRECIABLE DISEQUILIBRIUM IN THE COMPETITIVE RELATIONSHIPS BETWEEN UNDERTAKINGS .
THAT DOES NOT OCCUR WHEN AN UNDERTAKING PUTS BACK INTO ITS PRODUCTION CYCLE WASTES ARISING FROM THE PRODUCTION OR PROCESSING, CARRIED OUT BY IT OR ON ITS BEHALF, OF ITS OWN PRODUCTS .
SUCH RE-UTILIZATION CONSTITUTES IN FACT AN INTERNAL MEASURE OF ECONOMY CONDUCIVE TO INCREASED PRODUCTIVITY; EXEMPTION OF SCRAP SO USED DOES NOT THEREFORE DISTORT COMPETITION WITHIN THE MARKET .
ON THE OTHER HAND ANY EXEMPTION WHICH DEPENDS NOT ON THE WAY IN WHICH AN UNDERTAKING ARRANGES ITS PRODUCTION, BUT ON THE CONTRACTUAL RELATIONSHIPS WHICH IT HAS WITH OTHER UNDERTAKINGS, IS NOT COMPATIBLE WITH THE SCHEME .
THE CLASSIFICATION OF SCRAP AS ' OWN RESOURCES ' IS NOT THEREFORE NECESSARILY DEPENDENT ON THE CONCEPT OF OWNERSHIP OF THE SCRAP, BUT IS INTENDED TO APPLY IN THE MAIN TO SCRAP WHICH IS GENUINELY THE PRODUCT OF THE UNDERTAKING'S OWN ACTIVITY, THE RESULT OF ITS OWN WORK .
THE SCRAP IN QUESTION DID NOT ARISE BY SEPARATION FROM THE SEMI-FINISHED PRODUCT BY A JOINT PRO QUOTA OPERATION PERFORMED BY THE APPLICANT AND EACH OF THE UNDERTAKINGS WITH WHICH IT HAS CONTRACTED BUT IS THE OUTCOME OF THE MANUFACTURE OF FINISHED PRODUCTS CARRIED OUT BY THE FIRMS PHENIX-WORKS AND LA ROCHETTE WORKING ON THEIR OWN ACCOUNT AND AT THEIR OWN RISK .
IN ADDITION, A VALUATION WAS MADE OF THE SCRAP TRANSFERRED BY PHENIX-WORKS AND LA ROCHETTE TO THE APPLICANT AND TAKEN INTO ACCOUNT WHEN THE SELLING PRICE OF THE SEMI-FINISHED PRODUCT WAS FIXED .
HOWEVER, AT LEAST IN THE CASE OF THE FIRST CONTRACT MADE WITH PHENIX-WORKS, THE VALUE SO FIXED FOR THE SCRAP DIFFERS FROM THE VALUE OF A CORRESPONDING QUANTITY OF THE SEMI-FINISHED PRODUCTS .
THIS SEPARATE VALUATION OF THE SEMI-FINISHED PRODUCTS SOLD AND OF THE SCRAP RECOVERED CONFIRMS THAT THE LATTER DOES NOT MERELY REPRESENT A PORTION RETAINED FROM THE SEMI - FINISHED PRODUCTS SOLD, BUT IS A NEW PRODUCT .
CONSEQUENTLY CONSUMPTION OF THIS SCRAP BY THE APPLICANT CANNOT BE CONSIDERED AS A RE-UTILIZATION BY THE PRODUCER UNDERTAKING OF ITS OWN RESOURCES .
P.1081
IN THESE CIRCUMSTANCES, THE SCRAP IN QUESTION MUST BE SUBJECT TO THE PAYMENT OF EQUALIZATION CONTRIBUTIONS, THE AFFINITIES WITH PRIVATE LAW INVOKED HERE BY THE APPLICANT BEING IRRELEVANT TO THE MATTER .
THE DETERMINING FACTOR LIES NOT, THEREFORE, AS THE APPLICANT CLAIMS, SIMPLY IN THE PHYSICAL TRANSFER OF THE SCRAP, BUT IN ITS INCORPORATION INTO THE CYCLE OF PRODUCTION OF AN UNDERTAKING WHICH HAS HAD NO PART IN THE PRODUCTION PROCESS FROM WHICH IT HAS ARISEN .
THE GROUND PUT FORWARD BY THE APPLICANT IS THEREFORE NOT WELL FOUNDED .
2 . THE OTHER GROUNDS IN THE APPLICATION FOR ANNULMENT
A - THE APPLICANT ACCUSES THE DEFENDANT OF HAVING ' PENALIZED A MEASURE WHICH HELPS TO ENSURE IN THE MOST RATIONAL MANNER REGULAR SUPPLIES OF SCRAP TO UNDERTAKINGS '. THEREBY THE CONTESTED DECISION, OR AT LEAST THE GENERAL DECISIONS ON WHICH IT IS BASED, IT CLAIMS, INFRINGED ARTICLE 3(A ) OF THE TREATY .
THE APPLICANT BASES ITS COMPLAINT IN PARTICULAR ON THE REASONS SET OUT IN THE CONTESTED DECISION, ACCORDING TO WHICH THE DISPUTED CONTRACTS ' APPEAR TO BE INTENDED PRIMARILY TO SECURE ( FOR THE APPLICANT ) A GUARANTEED SUPPLY OF SCRAP '.
THIS COMPLAINT EFFECTIVELY NEGATES THE WHOLE CONCEPT OF A FINANCIAL MECHANISM SINCE IT AMOUNTS TO SAYING THAT ANY METHOD OF SUPPLYING SCRAP WHICH CAN BE CALLED ' RATIONAL ' MUST BE EXEMPTED FROM EQUALIZATION .
MORE PARTICULARLY, AS REGARDS THE PASSAGE COMPLAINED OF IN THE STATEMENT OF THE REASONS ON WHICH THE DECISION IS BASED, THE CONTEXT REVEALS THAT IT IS INTENDED SIMPLY TO DEMONSTRATE THAT THE DISPUTED CONTRACTS WERE DRAWN UP WITH THE SAME INTENT AS ANY CONTRACT OF SUPPLY NOT CONTAINING A RETENTION OF OWNERSHIP .
THIS GROUND IS ACCORDINGLY UNFOUNDED .
B - ACCORDING TO THE APPLICANT, THE CONTESTED DECISION CONFLICTS WITH ARTICLES 3(B ) AND 4(B ) OF THE TREATY, SINCE IT IMPOSES THE EQUALIZATION LEVY ON SCRAP COVERED BY A RETENTION OF OWNERSHIP CLAUSE, WHILST EXEMPTING SCRAP RETURNED TO THE PERSON ORDERING A JOBBING CONTRACT ON COMPLETION OF THE CONTRACT .
IT IS CLEAR FROM THE FOREGOING THAT SUBJECTING THE SCRAP IN DISPUTE TO THE EQUALIZATION CONTRIBUTION ACCORDS WITH THE TRUE PURPOSE OF THE EQUALIZATION SYSTEM .
P.1082
AS A SUBSIDIARY POINT THE APPLICANT CLAIMS THAT, EVEN IF THE DIFFERING TREATMENT OF THE TWO TYPES OF SCRAP MENTIONED ABOVE IS SANCTIONED BY THE BASIC DECISIONS, THESE LATTER CONFLICT WITH THE TREATY .
IT FOLLOWS FROM WHAT HAS ALREADY BEEN SAID THAT THIS CLAIM IS UNFOUNDED .
C - THE APPLICANT CLAIMS THAT THE REASONS STATED FOR THE CONTESTED DECISION ARE NOT ADEQUATE IN LAW, SINCE THEY OMIT TO GIVE REASONS WHY THE DEFENDANT ACCORDS DIFFERENT TREATMENT ON THE ONE HAND TO THE SCRAP IN QUESTION AND ON THE OTHER HAND TO SCRAP RETURNED TO THE PERSON ORDERING A JOBBING CONTRACT ON COMPLETION OF THE CONTRACT .
THE DEFENDANT WAS UNDER NO OBLIGATION TO STATE ITS REASONS FOR NOT CHARGING THE EQUALIZATION CONTRIBUTIONS ON OTHER CATEGORIES OF SCRAP, BUT ONLY THOSE WHICH LED IT TO CONCLUDE THAT THE SCRAP IN QUESTION CONSTITUTED ' BOUGHT SCRAP '.
THE GROUNDS STATED IN THE DECISION REVEAL THOSE REASONS IN A MANNER BOTH DETAILED AND CLEAR .
ACCORDINGLY THIS CLAIM IS UNFOUNDED .
IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THE APPLICATION FOR ANNULMENT MUST BE DISMISSED AS UNFOUNDED .
II - THE APPLICATION FOR DAMAGES
THE APPLICANT CLAIMS THAT, IF THE COURT DECIDES THAT THE DISPUTED SCRAP SHOULD BE CONSIDERED AS BOUGHT SCRAP, THE APPLICANT HAS SUFFERED DAMAGE CAUSED BY THE DEFENDANT'S WRONGFUL ACT OR OMISSION .
IT STATES THAT THE CONDUCT OF THE DEFENDANT OR ITS SERVANTS OR AGENTS WAS SUCH AS TO PERSUADE THE APPLICANT THAT THE SAID SCRAP WAS NOT SUBJECT TO THE PAYMENT OF EQUALIZATION CONTRIBUTIONS . IN CONSEQUENCE IT MADE NO ATTEMPT SO TO ARRANGE ITS RELATIONSHIPS WITH PHENIX-WORKS AND LA ROCHETTE AS TO AVOID IN WHOLE OR IN PART THE PAYMENTS FOR WHICH IT NOW FINDS ITSELF LIABLE .
1 . THE APPLICANT CLAIMS THAT, DURING THE PERIOD RUNNING FROM THE COMMENCEMENT OF THE EQUALIZATION SCHEME TO THE MONTH OF NOVEMBER 1956, THE DEFENDANT ' NEGLECTED OR OMITTED TO DRAW THE ATTENTION OF UNDERTAKINGS TO THE EXISTENCE OF THE PROBLEM IN QUESTION '.
P.1083
IT CLAIMS THAT THE FIRST CONTRACT CONCLUDED BETWEEN IT AND PHENIX-WORKS WAS KNOWN TO THE MARKET DIVISION OF THE HIGH AUTHORITY FROM 1953 ONWARDS, AND THE DEFENDANT DOES NOT DISPUTE THIS .
IT HAS BEEN ESTABLISHED THAT THE CONTRACT REFERRED TO ABOVE WAS SUBMITTED TO THE DEFENDANT FOR REASONS NOT CONNECTED WITH THE COMPULSORY EQUALIZATION SCHEME, AND AT A TIME WHEN THE LATTER HAD NOT YET BEEN INTRODUCED .
MOREOVER, THE CONTRACT CONTAINED NO RETENTION OF OWNERSHIP CLAUSE, WHICH AT THAT TIME APPEARED ONLY IN THE CONFIRMATIONS OF ORDERS SENT BY THE APPLICANT TO PHENIX-WORKS, OF WHICH THE DEFENDANT HAD NO KNOWLEDGE .
ON THE OTHER HAND, THE CONTRACT DID REFER TO DELIVERIES OF SCRAP AND EVEN MENTIONED THE PRICE TO BE ENTERED IN THE ACCOUNTS FOR IT .
IN THESE CIRCUMSTANCES, IT BEING IMPOSSIBLE FOR THE DEFENDANT TO TAKE INTO ACCOUNT ALL ASPECTS OF THE CASE, IT CANNOT BE ACCUSED OF NOT HAVING TAKEN THE INITIATIVE IN ORDER TO AVOID THE CONSEQUENCES FOR THE APPLICANT OF THE ERROR COMPLAINED OF BY THE LATTER .
2 . IT HAS BEEN ESTABLISHED THAT IN NOVEMBER 1956, WHEN THE FIRST CHECK WAS CARRIED OUT ON THE APPLICANT FIRM, THE OFFICIALS OF THE SOCIETE FIDUCIAIRE SUISSE ( SFS ), WHILE AWARE THAT THE APPLICANT WAS RECEIVING SCRAP FROM PHENIX-WORKS WHICH IT DID NOT DECLARE AS ' BOUGHT SCRAP ', DID NOT REFER THE PROBLEMS TO THE BODIES RESPONSIBLE FOR THE ADMINISTRATION OF THE EQUALIZATION SCHEME .
THE APPLICANT CLAIMS THAT THE OFFICIALS GAVE IT ' EVERY ASSURANCE THAT THE CONTRACT WAS EFFECTIVE AS REGARDS THE PROBLEM OF LIABILITY TO PAY CONTRIBUTIONS '.
THE FILE OF THE CASE SHOWS THAT THE TASK OF THESE OFFICIALS WAS ONE OF CHECKING AND INSPECTION, AND EXCLUDED ANY ADMINISTRATIVE DUTY WHICH MIGHT CONFER ON THEM THE CAPACITY OF REPRESENTATIVES OF THE DEFENDANT .
THEY DID NOT, THEREFORE, HAVE ANY POWERS TO SETTLE THE LEGAL PROBLEMS RAISED BY THE BASIC DECISIONS .
NO INTERESTED PARTY WITH DUE WARNING, SUCH AS THE APPLICANT, COULD HAVE BEEN IGNORANT OF THESE FACTS, THE MORE SO SINCE THE INVESTIGATORS WERE ACCOUNTANTS FROM A PRIVATE FIRM BASED IN A NON-MEMBER COUNTRY .
IN ADDITION, IT APPEARS FROM THE LETTER FROM THE DEFENDANT TO THE OCCF OF 18 DECEMBER 1957 ( OFFICIAL JOURNAL OF 1 FEBRUARY 1958, P.45 ET SEQ .) THAT, ' SINCE THE INCEPTION ' OF THE FINANCIAL SCHEME, THE ORGANS RESPONSIBLE FOR ITS ADMINISTRATION HAD APPLIED THE CONCEPT OF ' OWN RESOURCES ' TO MEAN ' SCRAP RECOVERED BY ( THE CONSUMER UNDERTAKING ) IN ITS OWN WORKS BEARING THE SAME COMPANY NAME '.
THIS BEING SO, THE APPLICANT COULD NOT AT ANY TIME BE CERTAIN THAT IT WOULD NOT HAVE TO PAY THE CONTRIBUTIONS IN QUESTION .
THE APPLICANT'S ALLEGATION IS THEREFORE UNFOUNDED, EVEN IF ITS CLAIMS CONCERNING THE CONDUCT OF THE OFFICIALS OF THE SFS ARE ACCURATE IN FACT .
ACCORDINGLY, IT IS NOT NECESSARY TO GRANT THE APPLICANT'S REQUEST FOR AN INQUIRY INTO THE MATTER .
IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE APPLICATION FOR DAMAGES MUST BE REJECTED .
Decision on costs
ACCORDING TO ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY MUST PAY THE COSTS . THE APPLICANT HAS FAILED IN ITS SUBMISSIONS, AND MUST THEREFORE BEAR THE COSTS OF THE ACTION .
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 THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, ESPECIALLY ARTICLES 3, 4, 15, 33, 40 AND 53;
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, ESPECIALLY ARTICLE 69,
Operative part
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION AS UNFOUNDED;
2 . ORDERS THE APPLICANT TO BEAR THE COSTS .