61962CJ0005_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES 5 TO 11 AND 13 TO 15/62
1 . 5/62, SOCIETA INDUSTRIALE ACCIAIERIE SAN MICHELE, A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN TURIN, REPRESENTED BY ITS SOLE DIRECTOR BARTOLOMEO ARAGNO;
2 . 6/62, FERRIERE ROSSI ( FER . RO ), AN INDIVIDUAL UNDERTAKING GOVERNED BY ITALIAN LAW, HAVING ITS OFFICES IN MAGLIANO ALPI ( CONI ), REPRESENTED BY ITS OWNER GINO ROSSI;
3 . 7/62, MERONI & CO ., A PARTNERSHIP WITH LIMITED LIABILITY GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN ERBA ( COMO ), REPRESENTED BY ITS MANAGING PARTNERS AMBROGIO AND ALDO MERONI;
4 . 8/62, ACCIAIERIE LAMINATOI MAGLIANO ALPI ( ALMA ), A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN TURIN, REPRESENTED BY ITS SOLE DIRECTOR GIUSEPPE PASSALACQUA;
5 . 9/62, MERONI & CO ., A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN MILAN, REPRESENTED BY ITS SOLE DIRECTOR ALDO MERONI;
6 . 10/62, ACCIAIERIA FERRIERA DI ROMA ( FERAM ), A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN ROME, REPRESENTED BY ALDO ALLIATA, CHAIRMAN OF THE BOARD OF DIRECTORS;
7 . 11/62, SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( SIMET ), A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN NAPLES, REPRESENTED BY PIO FANTINI, CHAIRMAN OF THE BOARD OF DIRECTORS;
8 . 13/62, SAFIM SIDERURGICA, A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN MILAN, REPRESENTED BY FRANCESCO BONELLI, CHAIRMAN OF THE BOARD OF DIRECTORS;
9 . 14/62, ACCIAIERIE FERRIERE SICILIANE BONELLI, A COMPANY LIMITED BY SHARES GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN MILAN, REPRESENTED BY FRANCESCO BONELLI, CHAIRMAN OF THE BOARD OF DIRECTORS;
10 . 15/62, ILMAR, A PARTNERSHIP WITH LIMITED LIABILITY GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN PADUA, REPRESENTED BY ITS PARTNER WITH FULL LIABILITY ALDO ROMARO;
ALL ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND OF THE CORTE DI CASSAZIONE OF ITALY, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, AVOCAT-AVOUE, 20 RUE PHILIPPE II; APPLICANTS,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PROFESSOR GIULIO PASETTI, ACTING AS AGENT, AND ASSISTED BY ANTONIO BARDELLA, ADVOCATE OF THE VENICE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,
Subject of the case
APPLICATION
( A ) AS TO CASES 5 TO 11/62 :
1 . FOR ANNULMENT UNDER ARTICLE 35 OF THE ECSC TREATY OF AN IMPLIED DECISION OF REFUSAL BY THE HIGH AUTHORITY TO WITHDRAW ITS DEMAND FOR THE PRODUCTION OF INVOICES RELATING TO ELECTRIC ENERGY USED BY THE APPLICANTS OR, ALTERNATIVELY, TO CONFIRM THIS DEMAND IN THE FORM OF A DECISION APPLYING TO ALL UNDERTAKINGS IN THE SAME SECTOR;
2 . FOR ANNULMENT UNDER ARTICLE 33 OF THE ECSC TREATY OF INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY ORDERING THE APPLICANTS TO FURNISH IT WITH INVOICES FOR ELECTRIC ENERGY TO ENABLE THE TONNAGES DECLARED BY THE APPLICANT UNDERTAKINGS, AND WHICH ARE THE BASIS FOR THE EQUALIZATION CONTRIBUTION, TO BE CHECKED;
( B ) AS TO CASES 13 TO 15/62 :
FOR ANNULMENT UNDER ARTICLE 33 OF THE ECSC TREATY OF INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY ORDERING THE APPLICANTS TO FURNISH IT WITH INVOICES OF ELECTRIC ENERGY TO ENABLE THE TONNAGES DECLARED BY THE APPLICANT UNDERTAKINGS, AND WHICH ARE THE BASIS FOR THE EQUALIZATION CONTRIBUTION, TO BE CHECKED;
Grounds
P . 459
I - AS TO ADMISSIBILITY
THE PARTIES HAVE NOT OBJECTED THAT THE PROCEDURE WAS IN ANY WAY IRREGULAR .
THE LETTER DESCRIBED BY THE APPLICANTS AS A FORMAL NOTICE UNDER ARTICLE 35 AND DATED 27 DECEMBER 1961 WAS RECEIVED BY THE HIGH AUTHORITY ON 29 DECEMBER 1961 . THE LATTER TOOK A DECISION ON 23 FEBRUARY 1962 WHICH REACHED THE APPLICANTS ON 12 MARCH 1962, ACCORDING TO THEIR STATEMENT WHICH WAS NOT CONTRADICTED BY THE DEFENDANT .
THE DECISION OF 23 FEBRUARY 1962, WHETHER OR NOT IT WAS CONSIDERED BY THE HIGH AUTHORITY AS A REPLY TO THE APPLICANTS' NOTICES, MEETS IN FACT THE DESIRE EXPRESSED BY THEM, NAMELY 'TO TAKE A PRELIMINARY DECISION UNDER ARTICLE 14 IN WHICH ( THE HIGH AUTHORITY ) GIVES A RULING ON ALL THE POINTS IN DISPUTE SET OUT IN THIS LETTER '.
WITHOUT DEALING EXPRESSLY WITH ALL THE POINTS CONTAINED IN THE LETTER OF 27 DECEMBER 1961, SOME OF WHICH APPEAR TO BE OF DOUBTFUL RELEVANCE, THE DECISION SETTLED, AT LEAST INDIRECTLY, THE QUESTIONS RAISED BY THE APPLICANTS, THUS OPENING FOR THEM THE POSSIBILITY OF AN ACTION UNDER ARTICLE 33 OF THE TREATY .
THE FACT THAT THIS INDIRECT REPLY DIFFERS FROM THAT SOUGHT BY THE APPLICANTS CANNOT OPEN THE WAY FOR PROCEEDINGS UNDER ARTICLE 35, BECAUSE THAT PROVISION WOULD APPLY ONLY IF THE HIGH AUTHORITY HAD MADE NO DECISION ON THE MATTER REFERRED TO IN THE APPLICANTS' NOTICES .
THE APPLICANTS, MOREOVER, SEEM TO SHARE THIS OPINION AS, AT THE SAME TIME AND WITH IDENTICAL ARGUMENTS, THEY HAVE BROUGHT AN ACTION UNDER ARTICLE 33 AGAINST THE DECISION IN QUESTION .
THE APPLICANTS ALLEGE THAT THE PERIOD OF TWO MONTHS PROVIDED FOR IN ARTICLE 35 WAS NOT OBSERVED, SINCE THE DECISION OF 23 FEBRUARY 1962 DID NOT REACH THEM UNTIL 12 MARCH 1962 .
P . 460
IT IS NOT NECESSARY IN THIS CASE TO SETTLE WHETHER A DECISION WITHIN THE MEANING OF ARTICLE 35 OF THE TREATY SHOULD NOT MERELY BE TAKEN BUT WHETHER IT SHOULD ALSO BE COMMUNICATED WITHIN THE PERIOD OF TWO MONTHS, FOR IT IS NOT DISPUTED THAT THE DECISION REACHED THE APPLICANTS BEFORE THEY BROUGHT THEIR ACTION FOR FAILURE TO ACT .
IN THESE CIRCUMSTANCES, THE APPLICANTS HAD NO LEGITIMATE GROUNDS FOR COMPLAINING OF A FAILURE TO ACT WHICH NO LONGER EXISTED AT THE TIME THE ACTIONS WERE BROUGHT, SINCE THEIR LEGAL PROTECTION WAS SUFFICIENTLY ASSURED BY THE POSSIBILITY OF MAKING AN APPLICATION FOR ANNULMENT OF THE DECISION UNDER ARTICLE 33 OF THE TREATY .
CONSEQUENTLY, THE ACTIONS FOR FAILURE TO ACT MUST BE RULED TO BE INADMISSIBLE OWING TO LACK OF LEGAL INTEREST .
THE ADMISSIBILITY OF THE APPLICATIONS FOR ANNULMENT UNDER ARTICLE 33 OF THE TREATY IS NOT DISPUTED AND IN THIS CASE THERE IS NO NECESSITY FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .
II - ON THE SUBSTANCE OF THE CASE
THE APPLICANTS ALLEGE THE LACK OR INSUFFICIENCY OF GROUNDS, INFRINGEMENT OF THE TREATY, ESPECIALLY OF ARTICLE 47, AND MISUSE OF POWERS WITH REGARD TO THE DECISIONS OF THE HIGH AUTHORITY OF 23 FEBRUARY 1962 . EACH OF THESE THREE SUBMISSIONS IS QUOTED UNDER SEVERAL HEADS .
( A ) FIRST, THE APPLICANTS ASSERT THAT THE DECISIONS OF 23 FEBRUARY 1962 ARE VITIATED BY INFRINGEMENT OF THE TREATY AND MISUSE OF POWERS, BECAUSE THEY CALL UPON THE APPLICANTS TO SEND TO THE HIGH AUTHORITY THE INVOICES RELATING TO THE VARIOUS AMOUNTS OF ELECTRICITY CONSUMED BY THEM AND TO CERTIFY THAT THESE INVOICES COVER THE TOTAL AMOUNT OF ENERGY USED .
THE COMPLAINT ALLEGING INFRINGEMENT OF ARTICLE 47 OF THE TREATY IS NOT WELL FOUNDED . THE LIMIT OF THE HIGH AUTHORITY'S POWERS WHEN APPLYING ARTICLE 47 IS DETERMINED BY THE REQUIREMENTS OF THE CHECKS . IN THIS CASE, THE DEMANDS FOR THE PRODUCTION OF THE INVOICES AND FOR A CERTIFICATE THAT THE DOCUMENTS SUPPLIED COVER THE TOTAL AMOUNT OF THE ELECTRIC ENERGY CONSUMED BY THE UNDERTAKING DURING THE PERIOD IN QUESTION DO NOT IN THE CIRCUMSTANCES CONSTITUTE AN EXCESSIVE REQUIREMENT ON THE PART OF THE HIGH AUTHORITY .
FURTHER, THE COMPLAINT OF MISUSE OF POWERS ARISING FROM THE FACT THAT THE SAME ORDERS WERE NOT MADE BY THE HIGH AUTHORITY TO ALL UNDERTAKINGS IS NOT WELL FOUNDED . IN FACT, THE HIGH AUTHORITY ASSERTED DURING THE ORAL PROCEDURE, WITHOUT RECEIVING ANY DENIAL FROM THE APPLICANTS, THAT ALL UNDERTAKINGS USING ELECTRIC FURNACES HAD BEEN CALLED UPON TO SUBMIT TO THE SAME CHECKS AND THAT ORDERS IDENTICAL TO THOSE CONTAINED IN THE DISPUTED DECISIONS WERE SENT TO ALL THE UNDERTAKINGS WHICH DID NOT COMPLY WITH THAT DEMAND .
P . 461
( B ) THE APPLICANTS ALLEGE THAT THE DECISIONS OF 23 FEBRUARY 1962 ARE VITIATED BY LACK OF REASONING AND BY INFRINGEMENT OF THE TREATY, BECAUSE THE INVOICES FOR THE CONSUMPTION OF ELECTRIC ENERGY DO NOT CONSTITUTE A VALID MEANS OF DETERMINING THE AMOUNT OF SCRAP USED .
THE COMPLAINTS OF THE APPLICANTS ARE NOT WELL FOUNDED . IN FACT, ACCORDING TO THE VERY TERMS OF THE DECISIONS OF 23 FEBRUARY 1962, THE CONSUMPTION OF ELECTRIC ENERGY BY FURNACES IS ONLY ONE OF THE FACTORS ON WHICH THE HIGH AUTHORITY WAS TO BASE ITS DETERMINATION OF THE TONNAGES TO SERVE AS A BASIS FOR THE EQUALIZATION CONTRIBUTION .
EVEN THOUGH, AS THE HIGH AUTHORITY RECOGNIZES MOREOVER, THE CONSUMPTION OF ELECTRICITY IS NOT BY ITSELF SUFFICIENT TO CALCULATE THE CONSUMPTION OF SCRAP, IT MAY NONETHELESS BE A VALID BASIS FOR VERIFICATION WHEN TAKEN WITH OTHER FACTORS .
MOREOVER, IT WOULD HAVE BEEN POSSIBLE FOR THE UNDERTAKINGS SUBSEQUENTLY TO DISCUSS THE AMOUNT OF THEIR CONTRIBUTION AND THE BASES ON WHICH IT WAS FIXED .
( C ) THE APPLICANTS CLAIM THAT THESE SAME DECISIONS ARE VITIATED BY LACK OF REASONING AND BY INFRINGEMENT OF THE TREATY BECAUSE THE POWERS CONFERRED ON THE HIGH AUTHORITY DO NOT ALLOW IT TO ORDER THAT THE DOCUMENTS SUBJECTED TO CHECKING BE PRESENTED AT LUXEMBOURG .
THE COMPLAINT CONCERNING LACK OF REASONING IS NOT WELL FOUNDED . IN FACT ARTICLE 47 OF THE TREATY CONFERRING ON THE HIGH AUTHORITY THE POWER TO 'OBTAIN THE INFORMATION IT REQUIRES' AND TO 'HAVE ANY NECESSARY CHECKS MADE' IS FORMULATED VERY WIDELY . IT WAS NOT ABSOLUTELY NECESSARY FOR PARTICULAR REASONS TO BE GIVEN FOR THE DEMAND FOR PRODUCTION OF DOCUMENTS AT LUXEMBOURG .
FURTHERMORE, THE COMPLAINT CONCERNING THE INFRINGEMENT OF THE TREATY IS NOT WELL FOUNDED . THE APPLICANTS WERE WRONG IN MAINTAINING THAT THE RIGHT TO MAKE CHECKS MUST BE LIMITED TO INSPECTIONS CARRIED OUT BY OFFICIALS OF THE HIGH AUTHORITY AT THE PLACE OF BUSINESS OF THE UNDERTAKINGS DURING NORMAL WORKING HOURS, IN ACCORDANCE WITH ARTICLE 86 OF THE TREATY, WHICH CONFERS ON INSPECTORS OF THE HIGH AUTHORITY THE POWERS CONFERRED BY THE LAWS OF MEMBER STATES ON OFFICIALS OF THEIR OWN REVENUE DEPARTMENTS - IN THIS CASE THE ITALIAN REVENUE AUTHORITIES - AND THAT ITALIAN LAW DOES NOT PERMIT REVENUE OFFICIALS TO REQUIRE THAT DOCUMENTS WHICH THEY CONSIDER NECESSARY FOR THEIR INVESTIGATIONS BE SENT TO THEIR OFFICES .
P . 462
THIS ARGUMENT MUST BE REJECTED . THE PROVISIONS OF THE FOURTH PARAGRAPH OF ARTICLE 86 ARE NOT INTENDED TO DEFINE THE EXTENT OF THE POWER WHICH IS CONFERRED ON THE HIGH AUTHORITY BY ARTICLE 47 OF THE TREATY TO OBTAIN INFROMATION AND TO MAKE CHECKS; IT IS MERELY INTENDED TO PUT AT THE HIGH AUTHORITY'S DISPOSAL 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 .
AS THERE IS NO EXPRESS RULE ON THIS MATTER IN COMMUNITY LAW, IT IS FOR THE COURT TO DETERMINE WHETHER THE MEASURES OF INVESTIGATION TAKEN BY THE HIGH AUTHORITY WERE EXCESSIVE . IN THIS CASE, AND HAVING REGARD TO THE CIRCUMSTANCES, THE DEMAND FOR THE PRODUCTION OF THE INVOICES AT LUXEMBOURG WAS NOT EXCESSIVE AND DISPROPORTIONATE TO THE AIM IN VIEW . THE INSPECTIONS PREVIOUSLY CARRIED OUT ON THE SPOT BY OFFICIALS OF THE HIGH AUTHORITY AND OF THE SWISS TRUST COMPANY GAVE REASONS FOR SERIOUSLY DOUBTING THE VERACITY OF THE DECLARATIONS MADE BY CERTAIN UNDERTAKINGS WITH REGARD TO THEIR CONSUMPTION OF SCRAP . CONSEQUENTLY, CHECKING IN DETAIL IN THE OFFICES OF THE HIGH AUTHORITY CONSTITUTED A MORE ADEQUATE METHOD AND ONE WHICH MOREOVER WAS LESS LIKELY TO DISTURB THE FUNCTIONING OF THE UNDERTAKINGS CONCERNED THAN FRESH INSPECTIONS CARRIED OUT ON THEIR PREMISES .
FINALLY, THE APPLICANTS POINTED OUT DURING THE ORAL PROCEDURE THAT THE FACT THAT, ACCORDING TO ITALIAN LAW, INVOICES HAVE TO BE KEPT FOR ONLY FIVE YEARS MIGHT MAKE IT IMPOSSIBLE FOR THEM TO PRODUCE INVOICES FOR ELECTRIC ENERGY RELATING TO THE PERIOD FROM 1 APRIL 1954 TO 30 NOVEMBER 1958, AS REQUIRED BY THE HIGH AUTHORITY .
THIS OBJECTION RAISED BY THE APPLICANTS CANNOT AFFECT THE VALIDITY OF THE DISPUTED DECISIONS . IT IS FOR THE HIGH AUTHORITY TO CONSIDER WHETHER THE NON-PRODUCTION OF CERTAIN INVOICES IS JUSTIFIED, TAKING INTO ACCOUNT THE PROVISIONS OF THE RELEVANT LEGISLATION AND DRAWING THE APPROPRIATE CONCLUSIONS FROM THEM .
FOR THESE REASONS THE APPLICATIONS AGAINST THE DECISIONS OF 23 FEBRUARY 1962 MUST BE RULED TO BE UNFOUNDED .
Decision on costs
UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANTS HAVE FAILED IN ALL THEIR SUBMISSIONS AND MUST THEREFORE BEAR THE COSTS .
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 8, 14, 33, 35, 47 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 ACTIONS FOR FAILURE TO ACT UNDER ARTICLE 35 OF THE TREATY AS INADMISSIBLE;
2 . DISMISSES THE APPLICATIONS FOR ANNULMENT OF THE DECISIONS OF THE HIGH AUTHORITY OF 23 FEBRUARY 1962 AS UNFOUNDED;
3 . ORDERS THE APPLICANTS TO PAY THE COSTS .