61962CJ0018_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 18/62
EMILIA BARGE, WIDOW OF VITTORIO LEONE FROM HER FIRST MARRIAGE, WIFE OF SERGIO GUALCO BY HER SECOND MARRIAGE, ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, AVOCAT - AVOUE, 20 RUE PHILIPPE-II, APPLICANT,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PROFESSOR GIULIO PASETTI, ACTING AS AGENT, ASSISTED BY PROFESSOR LUIGI CARRARO, ADVOCATE OF THE PADUA BAR AND THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION FOR ANNULMENT OF TWO INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY OF 23 MAY 1962, COMMUNICATED ON 29 MAY 1962 TO THE APPLICANT IN HER CAPACITY AS REPRESENTATIVE OF THE UNDERTAKING ACCIAIERIA ING . ANTONIO LEONE, AND CONCERNING, FIRST, THE FIXING OF THE TONNAGE OF IMPORTED FERROUS SCRAP SUBJECT TO THE EQUALIZATION CONTRIBUTION, AND SECONDLY, THE AMOUNT DUE IN ACCORDANCE WITH THE PROVISIONS CONCERNING THE SAID EQUALIZATION;
Grounds
THE APPLICATION WAS LODGED IN ACCORDANCE WITH THE REQUIRED PROCEDURE AND WITHIN THE PRESCRIBED TIME-LIMITS .
ALTHOUGH THE DEFENDANT DID NOT RAISE ANY PRELIMINARY OBJECTION OF INADMISSIBILITY AGAINST THE APPLICATION CONTESTING THE INDIVIDUAL DECISIONS TAKEN ON 23 MAY 1962, IT DID CONTEST THE ADMISSIBILITY OF THE OBJECTION OF ILLEGALITY DIRECTED AGAINST GENERAL DECISIONS N.S 2/57, 16/58, 18/60, 19/60 AND 20/60 .
THE DEFENDANT ALLEGES THAT THE APPLICANT RECOGNIZED HER OBLIGATION TO PAY THE EQUALIZATION CONTRIBUTION, BOTH BY HER EXTRA-JUDICIAL CONDUCT AND BY HAVING BROUGHT AN ACTION FOR DAMAGES ON 4 APRIL 1961 ( CASE 8/61 ). CONSEQUENTLY, SHE IS NOW ESTOPPED FROM INVOKING THE ILLEGALITY OF THE BASIC DECISIONS .
HOWEVER, NEITHER THE APPLICANT'S CONDUCT TOWARDS THIRD PARTIES NOR THE BRINGING OF AN ACTION FOR DAMAGES, WHICH FURTHERMORE WAS WITHDRAWN, MEET THE REQUIREMENTS OF AN ADMISSION IN LAW OF THE EXISTENCE OF A DEBT .
THE DEFENDANT'S ARGUMENT MUST BE DISMISSED AND THEREFORE THE APPLICATION IS ADMISSIBLE .
ON THE SUBSTANCE OF THE CASE
THE APPLICANT MAKES THE PRELIMINARY POINT THAT SHE IS NOT 'THE WIDOW OF THE ENGINEER A . LEONE', THE DESCRIPTION WRONGLY APPLIED TO HER IN THE DISPUTED DECISIONS, BUT THE WIDOW OF THE ENGINEER VITTORIO LEONE, THE SON AND SUCCESSOR OF THE FIRST-NAMED . SHE POINTS OUT, IN ADDITION, THAT SHE HAS A MINOR DAUGHTER BY HER MARRIAGE TO VITTORIO LEONE, WHO IS JOINT BENEFICIARY OF HIS ESTATE UNDER HIS WILL MADE BEFORE A NOTARY AND IN THE PRESENCE OF WITNESSES ON 26 JANUARY 1956 . CONSEQUENTLY SHE FINDS HERSELF UNABLE TO ACCEPT AS REGULAR THE PROCEDURAL SITUATION IN WHICH SHE IS TREATED AS SOLE REPRESENTATIVE OF THE UNDERTAKING ACCIAIERIA ING . A . LEONE .
THE DECISIONS IN DISPUTE WERE TAKEN CONCERNING 'THE UNDERTAKING ACCIAIERIA ING . A . LEONE OF BORGARO TORINESE REPRESENTED BY MRS EMILIA BARGE, WIFE OF GUALCO, WIDOW OF THE ENGINEER A . LEONE '. IT MUST BE NOTED THAT NO EXPRESS SUBMISSION WAS RAISED BY THE APPLICANT WITH REGARD TO THIS MATTER AND THAT THE EXISTENCE OF A JOINT BENEFICIARY IS NOT RELEVANT TO THE CASE .
THE APPLICANT ALLEGES THAT THE INDIVIDUAL DECISIONS OF 23 MAY 1962 ARE VITIATED BY LACK OF COMPETENCE, INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS AND INFRINGEMENT OF THE TREATY, ALL ARISING OUT OF THE FACT THAT THEY ARE BASED ON CHECKS MADE BY THE S.A . FIDUCIAIRE SUISSE . SHE CONTESTS THE VALIDITY OF THESE CHECKS, RELYING ON THE ABSENCE OF ANY EXPRESS OR PUBLIC DELEGATION OF POWERS BY THE HIGH AUTHORITY TO THAT COMPANY AND, ALTERNATIVELY, ON THE FAILURE TO NOTIFY SUCH DELEGATION TO THE MEMBER STATE CONCERNED IN ACCORDANCE WITH THE FOURTH PARAGRAPH OF ARTICLE 86 OF THE TREATY . SHE ALSO ALLEGES THAT THE OFFICIALS OF THE S.A . FIDUCIAIRE SUISSE DID NOT HAVE THE CAPACITY OF PUBLIC OFFICIALS, WHICH IS NECESSARY TO CARRY OUT THE INSPECTIONS REFERRED TO IN THE TREATY . FINALLY, SHE DRAWS ATTENTION TO THE FACT THAT NO MINUTES OF THE INSPECTIONS WERE DRAWN UP OR SIGNED BY THE REPRESENTATIVES OF THE UNDERTAKING CONCERNED .
FROM THE DOCUMENTS IN THE CASE IT APPEARS THAT IN THIS CASE THE HIGH AUTHORITY WAS ONLY CONCERNED TO OBTAIN INFORMATION AND TO HAVE THE NECESSARY CHECKS MADE IN PURSUANCE OF ARTICLE 47 OF THE TREATY . THIS PROVISION GIVES THE HIGH AUTHORITY THE POWER TO OBTAIN THE INFORMATION IT REQUIRES TO CARRY OUT ITS TASKS AND PROVIDES THAT IT MAY HAVE ANY NECESSARY CHECKS MADE . THERE IS NOTHING IN THE APPLICANT'S REASONING TO PROVIDE ANY CAUSE FOR DOUBT THAT THE INSPECTIONS AT ISSUE ARE IN FACT CHECKS WITHIN THE MEANING OF ARTICLE 47 . ARTICLE 86 IS NOT APPLICABLE SO THAT THERE WAS NO NEED TO NOTIFY THE MEMBER STATE CONCERNED AS PRESCRIBED BY THE FOURTH PARAGRAPH OF THAT ARTICLE . SINCE ARTICLE 47 GIVES THE HIGH AUTHORITY THE POWER TO HAVE CHECKS MADE, THE INSTRUCTIONS BY VIRTUE OF WHICH IT DOES SO CONSTITUTE THE ACTUAL EXERCISE OF ITS POWERS AND NOT THEIR DELEGATION . ACCORDINGLY THE PROCEDURE AND PUBLICITY REQUIRED FOR A DELEGATION OF POWERS ARE HERE NOT APPLICABLE . MOREOVER THE EXPRESSION 'HAVE...MADE' CLEARLY SHOWS THAT THE HIGH AUTHORITY NEED NOT HAVE THESE CHECKS CARRIED OUT EXCLUSIVELY BY ITS OWN OFFICIALS, BUT THAT IT MAY INSTRUCT FOR THIS PURPOSE ANY PERSON WHOM IT THINKS FIT TO CARRY OUT THE WORK .
THE UNDERTAKING HAS PUT FORWARD NO FACTOR WHICH PROVIDES ANY CAUSE FOR DOUBTING THE COMPETENCE OR OBJECTIVITY OF THE PERSON CHARGED WITH THE CHECKS .
FURTHERMORE, IT DID NOT OBJECT TO THEM . FINALLY, IN A CASE OF THIS SORT IT IS ONLY INFORMATION OF A PURELY FACTUAL NATURE WHICH CAN BE GAINED FROM SUCH OPERATIONS, AND THE UNDERTAKING CONCERNED HAS THE RIGHT TO CONTEST THIS BY ADDUCING PROOF TO THE CONTRARY .
CONSEQUENTLY THE ABOVE-MENTIONED GROUNDS OF COMPLAINT MUST BE DISMISSED .
THE APPLICANT CLAIMS THAT THESE ASSESSMENTS AND ADJUSTMENTS ON THE BASIS OF ASSESSMENTS AS PRESCRIBED BY ARTICLE 2 OF DECISION N . 13/58 AND ARTICLE 15 OF DECISION N . 16/58 CONSTITUTE PECUNIARY SANCTIONS AND CONSEQUENTLY ARTICLE 36 OF THE TREATY IS APPLICABLE IN THIS CASE . SHE CONSIDERS THAT, BY FAILING TO GIVE HER THE OPPORTUNITY TO SUBMIT HER COMMENTS BEFOREHAND, THE HIGH AUTHORITY HAS INFRINGED ARTICLE 36 .
AS REGARDS THIS GROUND OF COMPLAINT, THE ESTIMATED ASSESSMENTS WITHIN THE MEANING OF DECISIONS N.S 13/58 AND 16/58 ONLY AIM AT ESTABLISHING WITH ALL POSSIBLE ACCURACY THE AMOUNTS OWED BY THE UNDERTAKINGS BY WAY OF EQUALIZATION LEVY . THE UNDERTAKINGS CONCERNED REMAIN ABLE TO CHALLENGE, AND WHERE APPROPRIATE TO PROVE, THE INACCURACY OF THOSE ASSESSMENTS THROUGH EITHER ADMINISTRATIVE OR JUDICIAL CHANNELS SUCH ASSESSMENTS HAVE NOTHING IN COMMON WITH PECUNIARY SANCTIONS AND ACCORDINGLY ARTICLE 36 OF THE TREATY DOES NOT APPLY IN THE CASE OF AN ESTIMATED ASSESSMENT .
THE APPLICANT DISPUTES THE FIGURE FOR THE CONSUMPTION OF ELECTRICITY FOR THE PERIOD FROM 1 FEBRUARY 1957 TO 31 JANUARY 1958, WHICH, ACCORDING TO THE DECISIONS IN DISPUTE, HAD BEEN DRAWN UP FROM THE INVOICES OF THE ELECTRICITY COMPANY, AND ASKS THE COURT TO ORDER EVIDENCE OF THIS TO BE PRODUCED . SHE ALSO CONTESTS THE ACCURACY OF THE FINDING ON WHICH THE HIGH AUTHORITY BASED THE TWO INDIVIDUAL DECISIONS IN DISPUTE TO THE EFFECT THAT FOR THE 5-TON ELECTRIC FURNACES OF THE TYPE USED BY THE APPLICANT THE MAXIMUM CONSUMPTION OF ELECTRICITY IS 900 KWH PER METRIC TON OF LIQUID STEEL PRODUCED .
THE APPLICANT ALSO CHALLENGES THE ACCURACY OF THE ASSESSMENT OF THE AMOUNT OF FERROUS SCRAP CONSUMED DURING THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957, AN ASSESSMENT OBTAINED BY EXTRAPOLATION FROM THE CONSUMPTION OF ELECTRICITY DURING THE PERIOD FROM 1 FEBRUARY 1957 TO 31 JANUARY 1958 .
FINALLY, AS PROOF OF THE RANDOM NATURE OF THE METHOD OF CALCULATION ADOPTED BY THE HIGH AUTHORITY, SHE CITES THE DIFFERENCES BETWEEN THE CALCULATIONS CONTAINED IN THE LETTER SENT TO HER BY THE HIGH AUTHORITY ON 17 JANUARY 1962 AND THOSE CONTAINED IN THE DISPUTED DECISIONS .
SO FAR AS CONCERNS THE ESTABLISHMENT OF THE RELATIONSHIP BETWEEN THE CONSUMPTION OF ELECTRICITY AND THE PRODUCTION OF STEEL ADOPTED BY THE HIGH AUTHORITY TO ENABLE IT TO DETERMINE THE QUANTITY OF FERROUS SCRAP USED, ALTHOUGH IT IS TRUE THAT THE CONSUMPTION OF ELECTRIC ENERGY IN THE FURNACES IS ONLY ONE OF THE FACTORS INDICATING THE TONNAGE OF FERROUS SCRAP CONSUMED, THE EXCLUSIVE USE OF THIS METHOD IS NEVERTHELESS JUSTIFIED IN THIS CASE BECAUSE OF THE TOTAL ABSENCE OF ANY OTHER FACTORS, OWING TO THE DESTRUCTION, AS ALLEGED BY THE PRESENT OWNERS, OF THE ACCOUNTING DOCUMENTS OF THE UNDERTAKING .
THE ADOPTION OF A COEFFICIENT OF 900 KWH . PER METRIC TON OF LIQUID STEEL PRODUCED IS JUSTIFIED BY THE OPINION OF THE COMMISSION OF EXPERTS . NEITHER THE FACT THAT THESE EXPERTS WERE CHOSEN FROM LARGE UNDERTAKINGS, NOR THAT THEY WERE UNABLE TO AGREE COMPLETELY ON ALL POINTS, IS SUFFICIENT TO INVALIDATE THEIR OPINION, SINCE IT IS OBVIOUS THAT IT IS CHIEFLY UNDERTAKINGS OF A CONSIDERABLE SIZE WHICH WILL HAVE AT THEIR DISPOSAL PERSONS SUFFICIENTLY SPECIALIZED IN THIS MATTER TO BE ABLE TO GIVE AN OPINION .
THE APPLICANT PRODUCES SEVERAL OPINIONS OF OTHER EXPERTS STATING THAT THE RELATIONSHIP BETWEEN THE CONSUMPTION OF ELECTRICITY AND THE AVERAGE PRODUCTION OF THE FURNACES IS SUBJECT TO AN INFINITE NUMBER OF CONTINGENCIES, SO THAT IT IS NOT POSSIBLE TO ESTABLISH THE EXACT QUANTITY OF STEEL ACTUALLY PRODUCED .
EVEN IF THE APPLICANT'S OBSERVATIONS ARE CORRECT, THEY ARE NOT RELEVANT TO THE QUESTION WHETHER THE INDUCTIVE METHOD ADOPTED BY THE HIGH AUTHORITY CONSTITUTES A GENERAL METHOD CAPABLE OF MAKING UP FOR THE INADEQUACY OF OTHER DATA AND, CONSEQUENTLY, THERE IS NO NEED TO COMPLY WITH THE APPLICANT'S REQUEST FOR THE APPOINTMENT OF EXPERTS TO DEMONSTRATE 'WHETHER IT IS REASONABLE AND JUSTIFIED TO DETERMINE INDUCTIVELY THE CONSUMPTION OF FERROUS SCRAP IN ELECTRIC FURNACES OF SMALL CAPACITY, EXCLUSIVELY BY THE METHOD OF CALCULATION PROPOSED BY THE HIGH AUTHORITY, AND TO DEDUCE THEREFROM THE EXACT SUMS OWED BY THE APPLICANT '.
IT APPEARS FROM THE DEFENDANT'S STATEMENT THAT IT HAS NEVER CLAIMED THAT IT WAS ABLE TO DETERMINE AN EXACT SUM AND THAT THE METHOD ADOPTED ONLY AMOUNTS TO AN APPROXIMATE METHOD . MOREOVER UNDERTAKINGS CAN ALWAYS PREVENT THE USE OF AN APPROXIMATE METHOD OF THIS KIND BY PROVIDING THE EXACT DATA IN THEIR POSSESSION . FINALLY THE APPLICANT DID NO MORE THAN MAKE THE VAGUE ALLEGATION THAT EXCEPTIONAL CIRCUMSTANCES WHICH, ACCORDING TO THE OPINIONS PRODUCED BY HER, MIGHT IN CERTAN CASES INVALIDATE THE RELATIONSHIP BETWEEN KWH . AND STEEL PRODUCED, ADOPTED BY THE HIGH AUTHORITY, ARE IN FACT PRESENT IN THIS CASE . HER ASSERTIONS LACK PRECISION AND CANNOT BE TAKEN INTO ACCOUNT .
IT IS FOR THE UNDERTAKING CONCERNED TO ENABLE THE HIGH AUTHORITY TO CARRY OUT ITS DUTIES BY VOLUNTARILY FURNISHING IT WITH THE INFORMATION WHICH IT NEEDS . NOT ONLY HAS THE UNDERTAKING NOT PRODUCED THIS INFORMATION BUT CLAIMS TO HAVE DESTROYED IT . IT MADE NO EFFORT, UNTIL JUST BEFORE THE COURT HEARING, TO OBTAIN THE INFORMATION FROM THE ELECTRICITY COMPANIES . IT THUS ONLY HAS ITSELF TO BLAME FOR HAVING FORCED THE HIGH AUTHORITY TO MAKE AN INDUCTIVE ASSESSMENT AND MUST ACCORDINGLY BEAR THE CONSEQUENCES .
IN REPLY TO THE QUESTIONS PUT BY THE COURT, THE DEFENDANT ADMITTED THAT, FOR THE PERIOD FROM 1 FEBRUARY 1957 TO 31 JANUARY 1958, IT DOES NOT IN FACT HAVE 'INVOICES FROM THE ELECTRICITY COMPANY' AS THE DECISIONS IN DISPUTE INDICATE, BUT HAS HAD TO RELY ON ORAL INFORMATION SUPPLIED BY AN OFFICIAL OF THE AZIENDA ELETTRICA MUNICIPALE OF TURIN TO THE EMPLOYEE OF THE FIDUCIAIRE SUISSE ENTRUSTED TO CARRY OUT CHECKS AT THE APPLICANT'S UNDERTAKING . THE FACT THAT THE DEFENDANT RELIED ON ORAL EVIDENCE DOES NOT NECESSARILY CONSTITUTE BY ITSELF A SUFFICIENT REASON TO INVALIDATE THE DISPUTED DECISION OR THE STATEMENT OF REASONS RELEVANT THERETO .
IN THE ABSENCE OF ANY DOCUMENTS, THE HIGH AUTHORITY WAS JUSTIFIED IN BASING ITS DECISION ON THE DATA AT ITS DISPOSAL . NEITHER THE APPLICANT'S ALLEGATIONS NOR THE LETTER FROM THE AZIENDA ELETTRICA MUNICIPALE OF 22 APRIL 1963, ADDRESSED TO THE APPLICANT AND PRODUCED BY HER ARE CAPABLE OF INVALIDATING THE ACCURACY OF THIS INFORMATION .
THIS LETTER OF 22 APRIL 1963 CONSTITUTES THE REPLY TO THE APPLICANT'S REQUEST MADE IN PURSUANCE OF A QUESTION PUT BY THE COURT TO SEND IT INVOICES FOR THE ELECTRICITY CONSUMED DURING THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 AND FROM 1 FEBRUARY 1957 TO 31 JANUARY 1958 .
ACCORDING TO THIS LETTER, THE TOTAL CONSUMPTION INVOICED TO ACCIAIERIA ING . A . LEONE FOR USE BY ITS ELECTRIC FURNACES DURING THE PERIOD INDICATED IS 13 475 200 KWH . EVEN IF ONE ACCEPTS AS RELEVANT THE DEFENDANT'S STATEMENT THAT IT ONLY COVERS THE PERIOD FROM OCTOBER 1955 TO APRIL 1957, FROM WHICH DATE THE CONTRACT FOR THE SUPPLY OF ELECTRIC ENERGY TO THE UNDERTAKING WAS TRANSFERRED TO FERRIERE DI BORGARO, THIS INFORMATION IS OF SUCH A NATURE AS TO INVALIDATE THE ASSESSMENT OF THE CONSUMPTION OF FERROUS SCRAP ( AND THE REASONING ON WHICH IT IS BASED ) BY THE ENTERPRISE IN RESPECT OF THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 .
IN FACT, EVEN TAKING INTO ACCOUNT THE ABOVE - MENTIONED OBSERVATION OF THE HIGH AUTHORITY, THE CONSUMPTION OF ELECTRICITY FOR THE SAID PERIOD WAS 13 475 200 KWH ., LESS 2 358 000 KWH ., WHICH, ACCORDING TO INFORMATION SUPPLIED TO S . A . FIDUCIAIRE SUISSE HAD BEEN CONSUMED DURING THE PERIOD FROM 1 FEBRUARY TO 30 APRIL 1957 . THIS REDUCES THE CONSUMPTION TO 11 117 200 KWH .
USING THE CRITERION ADOPTED BY THE HIGH AUTHORITY ITSELF, THAT IS TO SAY A MAXIMUM CONSUMPTION OF 900 KWH . AND 1 080 KG . FERROUS SCRAP PER METRIC TON OF LIQUID STEEL PRODUCED, A CONSUMPTION OF ELECTRICITY OF 11 117 200 KWH . DOES NOT CORRESPOND TO A CONSUMPTION OF 16 220 TONS OF FERROUS SCRAP, THE FIGURE AT WHICH THE HIGH AUTHORITY PUT THIS CONSUMPTION FOR THE SAID PERIOD .
THE METHOD OF ASSESSMENT BY EXTRAPOLATION INVOLVES THE USE OF SEVERAL HYPOTHETICAL FACTORS . THERE CAN ONLY BE SUFFICIENT JUSTIFICATION IN LAW FOR AN ESTIMATED ASSESSMENT WHERE THERE IS A TOTAL LACK OF OTHER INFORMATION . THE PRODUCTION BEFORE A COURT OF EVIDENCE INVALIDATING THE RESULTS OF EXTRAPOLATION IS ADMISSIBLE . THE JUSTIFICATION FOR THE ESTIMATED ASSESSMENT FOR THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 MUST THEREFORE BE CONSIDERED INSUFFICIENT .
THE DEFENDANT HAS ALLEGED THAT AT THE TIME WHEN THE DISPUTED DECISIONS WERE TAKEN, IT DID NOT YET HAVE AT ITS DISPOSAL THE INFORMATION EVENTUALLY PRODUCED BY THE APPLICANT UPON THE COURT'S ORDER; HOWEVER JUSTIFIED THIS OBSERVATION MAY BE, IT CANNOT HOWEVER COMPENSATE FOR THE INADEQUACY OF THE DATA UPON WHICH THE HIGH AUTHORITY RELIED . AS HAS BEEN STATED ABOVE, AN ESTIMATED ASSESSMENT MAY BE CONTRADICTED BY EVIDENCE TO THE CONTRARY, AND MUST CONSEQUENTLY BE ANNULLED IN SO FAR AS IT IS PROVED TO BE INEXACT .
IT FOLLOWS FROM THE ABOVE THAT THE CONTESTED DECISIONS RELATING TO THE ESTIMATED ASSESSMENTS MUST BE ANNULLED IN RESPECT OF THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 .
AS TO THE OBJECTION OF ILLEGALITY DIRECTED AGAINST ARTICLE 10 ( B ) AND ( D ) OF GENERA DECISIONS N.S 2/57 AND 16/58
WHEN BRINGING AN APPLICATION FOR THE ANNULMENT OF INDIVIDUAL DECISIONS, THE APPLICANT MAY PUT AT ISSUE THE GENERAL DECISIONS OF WHICH THE DECISION IN DISPUTE IS MERELY AN APPLICATION, BECAUSE THE LATTER, ALTHOUGH VALID IN ITSELF, NEVERTHELESS INFRINGES THE TREATY TO THE EXTENT THAT IT IS BASED UPON ILLEGAL RULES . IN THIS CASE, THE INDIVIDUAL DECISIONS IN DISPUTE ARE AN APPLICATION OF GENERAL DECISIONS N.S 2/57 AND 16/58, SETTING UP THE FINANCIAL ARRANGEMENTS DESIGNED TO ENSURE A REGULAR SUPPLY OF FERROUS SCRAP IN THE COMMON MARKET . HOWEVER, THE DISPUTED DECISIONS DO NOT CONSTITUTE A DIRECT AND IMMEDIATE APPLICATION OF ARTICLE 10 ( B ) AND ( D ).
CONSEQUENTLY, THE OBJECTION RAISED BY THE APPLICANT CAN ONLY BE ADMITTED TO THE EXTENT THAT THE PROVISIONS REFERRED TO HAD IN GENERAL HAMPERED THE NORMAL FUNCTIONING OF THE EQUALIZATION SCHEME .
TONNAGES OF BOUGHT ALLOY STEEL SCRAP AND, IN THE CASE OF UNDERTAKINGS OPERATING A STEEL FOUNDRY, THE PROPORTION OF BOUGHT FERROUS SCRAP CONSUMED WHICH CORRESPONDS TO THE PROPORTION OF CRUDE STEEL PRODUCTION FOR CASTINGS ARE EXCLUDED BY THE ABOVE PROVISIONS FROM THE BURDEN OR THE BENEFIT ( AS THE CASE MAY BE ) OF EQUALIZATION .
THE APPLICANT SUBMITS THAT THE SAID GENERAL DECISIONS PROVIDE NO STATEMENT OF REASONS ON WHICH THESE PROVISIONS ARE BASED AND ALLEGES MOREOVER THAT THE HIGH AUTHORITY HAD TOLERATED THE RETROACTIVE EXTENSION OF THESE 'DEROGATIONS' BY THE 'AGENCIES IN BRUSSELS' TO THE PERIOD FROM 1 APRIL 1954 TO 31 JANUARY 1957 . THE COMPLAINT IS ALSO MADE THAT ARTICLE 3 ( B ) AND ( C ), ARTICLE 4 ( B ) AND PARAGRAPH THREE OF ARTICLE 5 OF THE TREATY HAVE ALSO BEEN INFRINGED BY THESE PROVISIONS BECAUSE THE LATTER ARE DISCRIMINATORY AND DISTORT NORMAL COMPETITIVE CONDITIONS WITHIN THE COMMON MARKET . FINALLY, THE APPLICANT CONSIDERS THE PROVISIONS REFERRED TO AS CONSTITUTING A MISUSE OF POWERS, SINCE THE HIGH AUTHORITY HAS ARBITRARILY ADOPTED DIFFERING CRITERIA AS TO INCLUSION OR EXCLUSION OF UNDERTAKINGS WITH REGARD TO THE EQUALIZATION SCHEME .
THE FIRST TWO GROUNDS OF COMPLAINT CANNOT BE ACCEPTED . THE REQUIREMENTS OF A STATEMENT OF REASONS VARY ACCORDING TO WHETHER ONE IS CONCERNED WITH GENERAL DECISIONS HAVING THE CHARACTER OF REGULATIONS, OR WITH DECISIONS WHICH DO NOT HAVE THAT CHARACTER . AS TO DECISIONS N.S 2/57 AND 16/58, IT IS NOT NECESSARY TO GIVE REASONS FOR THE VARIOUS PROVISIONS OF THE TEXT, AS LONG AS THESE ARE CLEAR AND FALL NORMALLY INTO THE SYSTEM AS A WHOLE .
THE SECOND GROUND OF COMPLAINT DOES NOT REFER TO DECISIONS N.S 2/57 AND 16/58 THEMSELVES, BUT TO THE APPLICATION OF THEM BY THE 'AGENCIES IN BRUSSELS'; THIS GROUND OF COMPLAINT IS THUS OUTSIDE THE SCOPE OF THE OBJECTION OF ILLEGALITY .
THE GROUNDS OF COMPLAINT CONCERNING INFRINGEMENT OF THE TREATY AND MISUSE OF POWERS ARE NOT WELL FOUNDED .
THE DEFENDANT HAS POINTED OUT THAT THE EXEMPTION FOR ALLOY STEEL SCRAP IS JUSTIFIED BY THE DIFFERENCE BETWEEN THE ALLOY FERROUS SCRAP MARKET AND THAT FOR ORDINARY FERROUS SCRAP, THE PRICE OF ALLOY FERROUS SCRAP DEPENDING MORE ON THE VALUE OF THE PRECIOUS METALS WHICH IT CONTAINS THAN ON THAT OF ORDINARY SCRAP . IT ALSO OBSERVES THAT TO INCLUDE ALLOY FERROUS SCRAP IN THE EQUALIZATION SCHEME WOULD HAVE HAD A CERTAIN INFLUENCE ON THE MARKET IN PRECIOUS NON-FERROUS METALS, WHICH ARE OUTSIDE THE ECSC TREATY .
THE DEFENDANT HAS JUSTIFIED THE EXCLUSION OF FERROUS SCRAP INTENDED FOR INTEGRATED FOUNDRIES BY THE NEED TO AVOID INTERFERING WITH THE NORMAL CONDITIONS OF COMPETITION BETWEEN THESE AND INDEPENDENT FOUNDRIES .
THESE EXPLANATIONS, CONTESTED ONLY AS TO CERTAIN DETAILS BY THE APPLICANT, APPEAR PERTINENT . IN ADOPTING ARTICLE 10 ( B ) AND ( D ) OF DECISIONS N.S 2/57 AND 16/58, THE HIGH AUTHORITY MAY HAVE CONSIDERED THAT A CORRECT APPLICATION OF ARTICLES 3, 4 AND 5 OF THE TREATY REQUIRED THE EXCLUSION OF THE SAID TYPES OF FERROUS SCRAP FROM THE EQUALIZATION SCHEME AND THERE IS NOTHING TO INDICATE THAT IN SO DOING IT DISTORTED THE SCHEME .
CONSEQUENTLY, SINCE THERE IS NO NEED TO PURSUE THIS EXAMINATION, THE COMPLAINT CONCERNING INFRINGEMENT OF THE TREATY MUST BE DISMISSED, AS MUST ALSO, AND FOR THE SAME REASONS, THE COMPLAINT OF MISUSE OF POWERS .
AS TO THE OBJECTION OF ILLEGALITY DIRECTED AGAINST GENERAL DECISIONS N.S 18/60, 19/60 AND 20/60
THE APPLICANT ALLEGES THAT DECISIONS N.S 18/60, 19/60 AND 20/60 ARE VITIATED BY ILLEGALITY . THIS ALLEGATION IS SET OUT ABOVE IN SEVEN SEPARATE GROUNDS OF COMPLAINT . THE DEFENDANT REMARKS QUITE RIGHTLY THAT THE COMPLAINTS LISTED UNDER ( B ), ( D ) AND ( G ) ARE IDENTICAL TO THOSE BROUGHT AGAINST DECISIONS N.S 2/57 AND 16/58, AND ARE THEREFORE TO BE DISMISSED ON THE GROUNDS SET OUT ABOVE .
HEADS ( A ) AND ( C ) ALLEGE THAT THERE IS A LACK OF ANY STATEMENT OF REASONS AND A LACK OF PUBLICITY . THE PURPOSE OF THESE ALLEGATIONS IS TO FORCE THE HIGH AUTHORITY TO PRODUCE ALL THE DOCUMENTS RELATING TO THE ACCOUNTS . IN HER REPLY, THE APPLICANT EXPLAINED THESE COMPLAINTS IN GREATER DETAIL, ASKING FOR THE PRODUCTION BY THE DEFENDANT OF THE BOOKS OF ACCOUNT RELATING TO THE OPERATION OF THE EQUALIZATION SCHEME, THEIR SUBMISSION TO THE AUDITOR OR TO ANOTHER QUALIFIED INSPECTOR, AND THE PUBLICATION OF THE REPORT EITHER APPROVING OR DISAPPROVING OF SUCH WORKING .
THUS EXPLAINED, THESE COMPLAINTS APPEAR TO BE IDENTICAL TO THE COMPLAINTS UNDER ( E ) AND ( F ) CONCERNING THE ABSENCE OF A GENERAL REPORT, AS PRESCRIBED BY ARTICLE 17, AND OF THE AUDITOR'S REPORT PROVIDED FOR BY ARTICLE 78 OF THE TREATY .
THE DEFENDANT DENIES THAT THE PROVISION INVOKED APPLY TO THE ARRANGEMENTS PRESCRIBED IN ARTICLE 53 OF THE TREATY AND POINTS OUT THAT THE GENERAL REPORT REFERRED TO IN ARTICLE 17 HAS REGULARLY CONTAINED A STATEMENT OF THE FUNCTIONING OF THE EQUALIZATION SCHEME .
IN ANY EVENT, THE TWO REPORTS REFERRED TO ARE INTENDED FOR THE EUROPEAN PARLIAMENT AND THE COMMITTEE OF PRESIDENTS RESPECTIVELY AND IT IS SOLELY FOR THESE BODIES TO JUDGE WHETHER THE REPORTS ARE SUFFICIENTLY COMPLETE .
IN APPLICATIONS MADE BY PRIVATE UNDERTAKINGS JUDICIAL REVIEW OF THE CONTENTS OF SUCH DOCUMENTS IS INADMISSIBLE .
IN HER REPLY, THE APPLICANT HAS FURTHER DEVELOPED HER OBJECTIONS BY RAISING A SERIES OF CRITICISMS OF THE EQUALIZATION OPERATIONS, ENDING BY PUTTING SIX QUESTIONS TO THE DEFENDANT . THESE CRITICISMS CONCERN THE EFFECTIVENESS AND EFFICIENCY OF THE MANAGEMENT OF THE EQUALIZATION SCHEME RATHER THAN THE LEGALITY OF THE GENERAL DECISIONS UNDERLYING IT, AND THE COURT FINDS THAT NEITHER THESE OBSERVATIONS NOR THE ANSWERS GIVEN BY THE DEFENDANT HAVE BROUGHT TO LIGHT REASONS CAPABLE OF THROWING DOUBT ON THE LEGALITY OF GENERAL DECISIONS N.S 18/60, 19/60 AND 20/60 . CONSEQUENTLY THE OBJECTION OF ILLEGALITY DIRECTED AGAINST THESE DECISIONS MUST BE DISMISSED AS UNFOUNDED .
Decision on costs
AS THE APPLICATION HAS BEEN HELD TO BE WELL FOUNDED IN RESPECT OF THE ESTIMATED ASSESSMENTS FOR THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 THERE WOULD NORMALLY BE GROUNDS FOR A SHARING OF THE COSTS . THE APPLICANT, HOWEVER, OWES HER PARTIAL SUCCESS ONLY TO THE INSISTENCE OF THE COURT ITSELF, WHICH ORDERED THE PRODUCTION OF INVOICES FROM THE ELECTRICITY COMPANY . WITH GREATER DILIGENCE THE APPLICANT COULD HAVE PRODUCED SIMILAR INFORMATION BEFORE THE DATE OF THE DISPUTED INDIVIDUAL DECISIONS, OR AT LEAST BEFORE THE DATE OF HER APPLICATION . CONSEQUENTLY LITIGATION COULD HAVE BEEN AVOIDED IN RESPECT OF THE SAID PERIOD AND THE COSTS PERTAINING TO THIS PART OF THE APPLICATION COULD THEREFORE HAVE BEEN AVOIDED AND THEY MUST BE CONSIDERED AS UNREASONABLE WITHIN THE MEANING OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE . ACCORDINGLY, THE APPLICANT MUST BEAR THE COSTS OF THE APPLICATION .
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 3, 4, 5, 17, 33, 36, 47, 53, 78 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
DECLARES THE PRESENT APPLICATION ADMISSIBLE AND HEREBY :
1 . ANNULS THE TWO INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY OF 23 MAY 1962, WHICH HAVE RESPECTIVELY AS THEIR OBJECT THE FIXING OF THE TONNAGE SUBJECT TO EQUALIZATION AND THE AMOUNT OF THE EQUALIZATION CONTRIBUTION, IN RESPECT OF THE ESTIMATED ASSESSMENT OF THE CONSUMPTION OF FERROUS SCRAP FOR THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .