61965CJ0025_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN JOINED CASES
25/65 - SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( SIMET ), SPA, HAVING ITS REGISTERED OFFICE IN NAPLES-BARRA,
AND
26/65 - ACCIAIERIE E FERRIERE DI ROMA ( FERAM ), SPA, HAVING ITS REGISTERED OFFICE IN ROME,
BOTH REPRESENTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND OF THE CORTE DI CASSAZIONE, 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, ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY RENATO ALESSI, ADVOCATE OF THE VOGHERA BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION
( A ) FOR THE ANNULMENT OF THE INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY OF 11 FEBRUARY 1965 CHARGING THE APPLICANTS SIMET AND FERAM WITH THE PAYMENT OF THE SUMS OF 252 974 228 LIRE AND 105 899 634 LIRE RESPECTIVELY BY WAY OF CONTRIBUTIONS TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME;
( B ) FOR A DECLARATION OF THE ILLEGALITY OF GENERAL DECISION NO 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 CONCERNING THE DRAWING UP OF STATEMENTS OF ACCOUNT RELATING TO THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH;
Grounds
P . 42
I - ADMISSIBILITY
1 . THE OBJECTION THAT THE APPLICATIONS ARE OUT OF TIME
THE APPLICATIONS, WHICH WERE SENT FROM TURIN BY REGISTERED PARCEL POST ON 21 APRIL 1965, DID NOT REACH THE COURT UNTIL THE FOLLOWING 4 MAY . THE PERIOD OF ONE MONTH FIXED BY THE TREATY, TOGETHER WITH THE TEN DAYS' EXTENSION ON ACCOUNT OF DISTANCE TO WHICH THE APPLICANTS IN THE PRESENT CASE WERE ENTITLED, FOR LODGING THEIR APPLICATIONS AT THE COURT, HAS BEEN EXCEEDED . UNDER ARTICLE 37(3 ) OF THE RULES OF PROCEDURE THE ONLY RELEVANT DATE IN THE RECKONING OF TIME - LIMITS FOR MAKING APPLICATIONS IS THAT OF LODGMENT AT THE REGISTRY . THE APPLICANTS, HOWEVER, RELY ON THE EXISTENCE OF UNFORESEEABLE CIRCUMSTANCES OR OF FORCE MAJEURE WHICH, UNDER THE THIRD PARAGRAPH OF ARTICLE 39 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC, PREVENT THE EXPIRY OF THE PERIOD FROM PREJUDICING THEIR RIGHTS .
THE PRINCIPAL REASON FOR THE DELAY MAY BE FOUND IN THE FACT THAT THE APPLICATIONS DID NOT REACH THE COURT UNTIL FOUR DAYS AFTER THEIR ARRIVAL IN LUXEMBOURG . THIS FACT MUST BE REGARDED, SO FAR AS THE APPLICANTS ARE CONCERNED, AS AN UNFORESEEABLE CIRCUMSTANCE WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 39 OF THE STATUTE . IN THESE CIRCUMSTANCES THE PARTICULAR FEATURES OF THE CASE MAKE IT POSSIBLE TO TREAT THE DATE OF THE ARRIVAL OF THE APPLICATIONS IN LUXEMBOURG AS THE DATE OF THEIR LODGMENT AT THE REGISTRY . ACCORDINGLY, APPLICATION 25/65 ( SIMET ) IS ADMISSIBLE SINCE THE CONTESTED DECISION WAS NOTIFIED ON 20 MARCH AND THE APPLICATION WAS LODGED ON 30 APRIL 1965, THE LAST DAY OF THE PRESCRIBED PERIOD . ON THE OTHER HAND, SINCE APPLICATION 26/65 ( FERAM ) ARRIVED IN LUXEMBOURG AFTER THE EXPIRY OF THE PERIOD PRESCRIBED FOR CONTESTING THE DECISION NOTIFIED ON 19 MARCH 1965, THIS APPLICATION IS INADMISSIBLE .
P . 43
2 . THE OBJECTION BASED ON THE DISCREPANCY BETWEEN THE SUBMISSIONS AND THE SUBJECT-MATTER OF APPLICATION 25/26 ( SIMET )
ACCORDING TO THE DEFENDANT, APPLICATION 25/65 ( SIMET ) IS EXPRESSLY DIRECTED SOLELY AGAINST THE DECISION IMPOSING THE OBLIGATION TO PAY, WHEREAS THE ARGUMENTS TAKEN AS A WHOLE ONLY RELATE TO THE DECISION FIXING THE ASSESSABLE TONNAGE OF FERROUS SCRAP . THIS DISCREPANCY BETWEEN THE SUBMISSIONS AND THE SUBJECT-MATTER OF THE APPLICATION ARE SAID TO MAKE THE APPLICATION INADMISSIBLE IN ITS ENTIRETY .
HOWEVER, THE DECISION FIXING AT 37 668 METRIC TONS THE BASIS OF SIMET'S ASSESSMENT TO CONTRIBUTION FOR THE PERIOD FROM 1 JUNE 1956 TO 30 NOVEMBER 1958 AND THE DECISION IMPOSING THE OBLIGATION TO PAY THE SUM OF 252 974 228 LIRE BY WAY OF ARREARS OF CONTRIBUTIONS TO THE EQUALIZATION SCHEME WERE BOTH TAKEN BY THE HIGH AUTHORITY ON THE SAME DATE, NAMELY 11 FEBRUARY 1965 . THE DECISIONS WERE ADDRESSED TO THE APPLICANT ALONE . THE RECITALS IN THE PREAMBLE TO THE SECOND DECISION EXPRESSLY REFER TO THE DECISION DETERMINING THE CONSUMPTION OF ASSESSABLE BOUGHT SCRAP . THE DETERMINATION OF THE ASSESSABLE TONNAGES OF SCRAP WHICH LOGICALLY MUST PRECEDE THE FIXING OF THE AMOUNT FOR PAYMENT WAS IN FACT INTENDED TO FORM THE BASIS FOR THE LATTER OPERATION . IT MUST THEREFORE BE ACCEPTED THAT FOR PRACTICAL PURPOSES THE TWO DECISIONS IN QUESTION CONSTITUTE A SINGLE WHOLE . THE APPLICATION, WHICH WAS EXPRESSLY DIRECTED AGAINST THE SECOND DECISION, MUST THEREFORE BE REGARDED AS DIRECTED ALSO, SO FAR AS IS NECESSARY, AGAINST THE FIRST . THIS WAS CLEARLY THE APPLICANT'S INTENTION . THE HIGH AUTHORITY WAS UNDER NO MISAPPREHENSION ON THIS POINT AND ITS RIGHTS OF DEFENCE WERE IN NO WAY PREJUDICED .
ITS OBJECTION MUST THEREFORE BE DISMISSED .
3 . THE OBJECTION RELATING TO THE SUBMISSIONS DIRECTED AGAINST GENERAL DECISION NO 7/63
( A ) UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY THE ONLY GROUND WHICH AN UNDERTAKING IS ENTITLED TO PLEAD IN SUPPORT OF AN APPLICATION FOR THE ANNULMENT OF A GENERAL DECISION OF THE HIGH AUTHORITY IS MISUSE OF POWERS . IT CANNOT PLEAD THE FOUR GROUNDS FOR ANNULMENT SET FORTH IN THE FIRST PARAGRAPH OF ARTICLE 33 UNLESS IT CLAIMS, BY WAY OF AN OBJECTION, THAT THE GENERAL DECISION ON WHICH THE CONTESTED INDIVIDUAL DECISION IS BASED IS ILLEGAL . THE DEFENDANT MAINTAINS THAT IN THE PRESENT CASE THE TWO APPLICANTS PLEADED THE FOUR GROUNDS IN SUPPORT OF AN APPLICATION WHICH SOUGHT NO MORE THAN ANNULMENT OF GENERAL DECISION NO 7/63 .
P . 44
SINCE APPLICATIONS 26/65 ( FERAM ) IS INADMISSIBLE AS BEING OUT OF TIME, THE OBJECTION NEED ONLY BE EXAMINED FROM THE POINT OF VIEW OF APPLICATION 25/65 ( SIMET ). ALTHOUGH THERE IS A PASSAGE IN THE APPLICATION INDICATING THAT ITS SUBJECT-MATTER IS THE ANNULMENT OF GENERAL DECISION NO 7/63, SUCH IS NOT THE CASE AS REGARDS THE CONCLUSIONS WHICH ARE EXPRESSLY FORMULATED BY THE APPLICANT SIMET . IN THESE CIRCUMSTANCES, IT MUST BE ACCEPTED THAT THE APPLICANT SIMET ONLY INTENDED TO PLEAD ALL THE GROUNDS FOR ANNULMENT IN SUPPORT OF AN OBJECTION OF ILLEGALITY AGAINST DECISION NO 7/63 .
( B ) THE DEFENDANT ARGUES, AS REGARDS CASE 25/65 ( SIMET ), THAT ITS GENERAL DECISION NO 7/63 SERVES AS A BASIS ONLY FOR THE INDIVIDUAL DECISION OF 11 FEBRUARY 1965 IMPOSING THE OBLIGATION TO PAY . THE APPLICATION, HOWEVER, CONTAINS NO SUBMISSION OR ARGUMENT AGAINST THE LATTER DECISION . THUS THERE IS LACKING IN THE PRESENT CASE THAT DIRECT LEGAL CONNEXION BETWEEN THE CONTESTED INDIVIDUAL MEASURE AND THE GENERAL DECISION ON WHICH IT IS FOUNDED IN THE ABSENCE OF WHICH THE ILLEGALITY OF THE GENERAL DECISION CANNOT BE PLEADED .
IT HAS BEEN DECIDED UNDER HEADING 2 ABOVE THAT THE TWO INDIVIDUAL DECISIONS OF 11 FEBRUARY 1965 CONSTITUTE A SINGLE WHOLE . IN THESE CIRCUMSTANCES THE APPLICANT SIMET IS ENTITLED TO PLEAD THE ILLEGALITY OF GENERAL DECISION NO 7/63 IN SUPPORT OF SUBMISSIONS DIRECTED AGAINST ONE OR OTHER OF THE TWO CONTESTED INDIVIDUAL DECISIONS .
II - THE SUBSTANCE
THE JUSTIFICATION FOR RESORTING TO AN ESTIMATED ASSESSMENT
UNDER ARTICLE 2 OF DECISION NO 13/58 OF 24 JULY 1958, RELATING TO THE MANAGEMENT OF THE FINANCIAL ARRANGEMENTS INSTITUTED BY DECISIONS NOS 22/54, 14/55, 26/55, 3/56 AND 2/57 AND UNDER ARTICLE 15 OF DECISION NO 16/58 OF THE SAME DATE ESTABLISHING FINANCIAL ARRANGEMENTS MAKING IT POSSIBLE TO ENSURE A REGULAR SUPPLY OF SCRAP TO THE COMMON MARKET, AS AMENDED BY DECISION NO 18/58 OF 15 OCTOBER 1958, THE HIGH AUTHORITY IS EMPOWERED, WHERE UNDERTAKINGS FAIL TO DECLARE INFORMATION REQUIRED FOR THE CALCULATION OF CONTRIBUTIONS, TO MAKE ESTIMATED ASSESSMENTS . THE HIGH AUTHORITY IS ALSO EMPOWERED, PURSUANT TO THE SAME PROVISIONS, TO CORRECT ON ITS OWN INITIATIVE DECLARATIONS IN SUPPORT OF WHICH NO VALID PROOF CAN BE SUPPLIED .
P . 45
IT FOLLOWS FROM THESE PROVISIONS THAT ASSESSMENTS AND CORRECTIONS OF THIS KIND ARE SECONDARY METHODS, OF AN EXCEPTIONAL CHARACTER, WHICH CAN ONLY APPLY UNDER CERTAIN CONDITIONS . THE HIGH AUTHORITY HAS NO POWER TO SUBSTITUTE ITSELF FOR THE UNDERTAKINGS EXCEPT WHERE THE LATTER DO NOT COMPLY WITH THEIR DUTY TO PROVIDE INFORMATION CAPABLE OF CORROBORATING THE DECLARATIONS WHICH THEY HAVE MADE . THUS, FOR IT TO BE ENTITLED TO ACT OF ITS OWN MOTION, THE HIGH AUTHORITY MUST SHOW EITHER THAT THE UNDERTAKING HAS FAILED TO PROVIDE THE INFORMATION NECESSARY FOR ITS CONTRIBUTIONS TO BE ASCERTAINED OR THAT IT HAS FAILED TO PROVIDE PROOF IN SUPPORT .
THE CONTESTED DECISION RELIES ON THE APPLICANT'S FAILURE TO PRODUCE CERTAIN ACCOUNTING DOCUMENTS, WHICH IT LISTS, IN ORDER TO CLAIM THAT THE HIGH AUTHORITY WAS ' COMPELLED...TO ASCERTAIN THE UNDERTAKING'S CONSUMPTION OF SCRAP BY MEANS OF AN ESTIMATED ASSESSMENT BASED ON THE CONSUMPTION OF ELECTRICITY '. IN THIS RESPECT IT MUST BE NOTED THAT BY ITS DECISION OF 22 JULY 1959 ' RELATING TO THE CARRYING OUT OF A CHECK AT THE PREMISES OF THE UNDERTAKING SIMET ' AND CONTAINING INSTRUCTIONS THAT DOCUMENTS BE MADE AVAILABLE, THE HIGH AUTHORITY DEMANDED THE PRODUCTION OF CERTAIN DOCUMENTS ONLY TWO OF WHICH APPEAR IN THE LIST OF EVIDENTIARY ACCOUNTING DOCUMENTS CONTAINED IN THE CONTESTED DECISION . ACCORDING TO THE DEFENDANT, HOWEVER, ' THE GENERAL EXPRESSION USED IN THE DECISION OF 22 JULY 1959...IS CAPABLE OF COVERING ANY KIND OF DOCUMENT WHICH COULD SERVE TO VERIFY WHETHER THE DECLARATIONS SUBMITTED BY THE UNDERTAKINGS WERE CORRECT '. IT FOLLOWS, THEREFORE THAT THE CONTESTED DECISION IS WRONG IN JUSTIFYING ITS RECOURSE TO AN ESTIMATED ASSESSMENT ON THE GROUND THAT THE HIGH AUTHORITY WAS COMPELLED TO DO SO ' SINCE THE UNDERTAKING FAILED TO SUBMIT ACCOUNTING DOCUMENTS ', WHICH IT LISTS, WHEN IT IS APPARENT FROM THE FOREGOING CONSIDERATIONS THAT OTHER EVIDENCE COULD HAVE SUFFICED TO SERVE THE DESIRED PURPOSE . MORE PARTICULARLY IT SHOULD BE POINTED OUT THAT, AS REGARDS THE DAY BOOK, THE DEFENDANT HAS MAINTAINED THROUGHOUT THE PROCEEDINGS THAT ' ( THE DAY BOOK ) ITSELF WOULD HAVE BEEN ENOUGH TO ENABLE THE HIGH AUTHORITY TO ASCERTAIN THE REAL FACTS ASSUMING THAT THE DAY BOOK GAVE A TRUE REFLECTION OF THEM '.
ON THE OTHER HAND, AS REGARDS THE PRODUCTION OF DOCUMENTARY EVIDENCE, THE PARTIES ARE NOT IN AGREEMENT OVER THE APPLICANT'S STATEMENT THAT IT DID NOT REFUSE TO SUBMIT TO THE INSPECTORS OF THE HIGH AUTHORITY AND OF THE SOCIETE ANONYME FIDUCIAIRE SUISSE CERTAIN ACCOUNTING DOCUMENTS AND MORE PARTICULARLY THE INVOICES BOOK AND THE DAY BOOK, WHICH ARE COMPULSORY COMMERCIAL RECORDS UNDER THE APPLICANT'S NATIONAL LAW .
ON THIS POINT, THE INFORMATION SUPPLIED AND THE DOCUMENTS WHICH WERE PROPERLY LAID BEFORE THE COURT, AND MORE PARTICULARLY THE REPORTS OF THE INSPECTORS OF THE HIGH AUTHORITY AND OF THE SOCIETE ANONYME FIDUCIAIRE SUISSE WHO WERE RESPONSIBLE FOR CHECKING THE APPLICANT'S DECLARATIONS - REPORTS WHICH WERE ONLY SUBMITTED TO THE COURT DURING THE ORAL PROCEDURE AND AT THE EXPRESS REQUEST OF THE COURT - DO NOT SHOW THAT ANY REQUEST WAS IN FACT MADE OR, A FORTIORI, REFUSED FOR THE PRODUCTION OF THE DOCUMENTS SET FORTH IN THE CONTESTED DECISION . INSPECTOR CHAUDAT, IN HIS REPORT OF 1 APRIL 1960 ON THE VISIT WHICH HE MADE TO SIMET ON 22 MARCH 1960, IN ORDER ( ACCORDING TO THE DEFENDANT ) TO ' PERUSE THE DOCUMENTS MENTIONED IN THE SAID INDIVIDUAL DECISION ' ( OF 22 JULY 1959 ), REMARKED THAT THE UNDERTAKING'S ADMINISTRATION MANAGER ' SAID THAT HE WAS WILLING TO SUBMIT THE DOCUMENTS WHICH WE REQUESTED FROM HIM '. THE REPORT DRAWN UP ON 15 JUNE 1960 BY THE SOCIETE ANONYME FIDUCIAIRE SUISSE ON THE FURTHER CHECKS CARRIED OUT AT SIMET'S PREMISES FROM 21 TO 25 MARCH 1960 MAKES NO MENTION OF ANY REFUSAL TO PRODUCE THE DOCUMENTS REQUESTED . BY LETTER OF 5 MAY 1961 INSPECTOR CHAUDAT ASKED THE APPLICANT'S LAWYER TO PRODUCE A NUMBER OF DOCUMENTS AMONG WHICH FIGURE NONE OF THE DOCUMENTS THE PRODUCTION OF WHICH IS MENTIONED AS NECESSARY IN THE CONTESTED DECISION . IN HIS REPORT OF 14 MARCH 1962 ON THE CHECKS CARRIED OUT BETWEEN MAY AND SEPTEMBER 1961, INSPECTOR CHAUDAT SPECIFIES THE DOCUMENTS WHICH SIMET TRANSMITTED TO HIM AT HIS REQUEST . AGAIN, AMONG THESE THERE IS TO BE FOUND ONLY ONE OF THE ABOVE-MENTIONED DOCUMENTS .
P . 46
IN VIEW OF THESE REPORTS, WHICH ORIGINATE FROM ITS OWN AUTHORIZED REPRESENTATIVES, IT ILL BECOMES THE HIGH AUTHORITY TO MAINTAIN THAT THE APPLICANT REFUSED TO SUBMIT DOCUMENTS WHICH IT WAS IN FACT REQUESTED TO SUBMIT .
SINCE THE CONTESTED DECISION IS BASED EXCLUSIVELY ON THE STATEMENT, WHICH HAS NOT BEEN PROVED, THAT SIMET FAILED TO SUPPLY EVIDENCE OF PROOF AND SINCE THE PROBATIVE VALUE OF SIMET'S DECLARATIONS HAS NOT BEEN CALLED IN ISSUE, THE DECISION PROVIDES NO JUSTIFICATION FOR THE GROUND ON WHICH IT ALLEGES THAT IT WAS NECESSARY TO RESORT TO AN EXCEPTIONAL ASSESSMENT PROCEDURE . ACCORDINGLY, BOTH THE DECISION DETERMINING THE CONSUMPTION OF ASSESSABLE SCRAP AND, CONSEQUENTLY, THE DECISION OF THE SAME DATE, FIXING, ON THE BASIS OF THE SAID ESTIMATED ASSESSMENT, THE AMOUNT OF THE CONTRIBUTIONS DUE FROM SIMET TO THE EQUALIZATION SCHEME, MUST BE ANNULLED .
Decision on costs
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE DEFENDANT HIGH AUTHORITY HAS FAILED IN ITS SUBMISSIONS ON THE APPLICATION OF THE SIMET COMPANY ( CASE 25/65 ). IT MUST THEREFORE BE ORDERED TO PAY THE COSTS IN THAT CASE .
THE APPLICATION OF THE APPLICANT FERAM HAS BEEN DECLARED TO BE INADMISSIBLE ( CASE 26/65 ). IT MUST THEREFORE BE ORDERED TO PAY THE COSTS IN THAT CASE .
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 5, 14, 15, 17, 33, 36, 47, 53, 78, 80 AND 92;
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 . ANNULS THE TWO INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY DATED 11 FEBRUARY 1965 AND NOTIFIED TO THE SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( SIMET ) ON 20 MARCH 1965;
2 . ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO PAY THE COSTS OF THE PROCEEDINGS IN CASE 25/65;
3 . DISMISSES THE APPLICATION OF THE COMPANY ACCIAIERIE E FERRIERE DI ROMA ( FERAM );
4 . ORDERS THE COMPANY OF ACCIAIERIE E FERRIERE DI ROMA ( FERAM ) TO PAY THE COSTS OF THE PROCEEDINGS IN CASE 26/65 .