B.

There remain those grounds or complaint which concern the disputed Decisions themselves. A first series of complaints concerns the inspections conducted by the Fiduciaire suisse. The applicant alleges: (1) that the task of the Fiduciaire suisse was not established in a decision nor was it notified to the State concerned and consequently the fourth paragraph of Article 86 of the Treaty was infringed; (2) that the Fiduciaire suisse, a private company, did not have the capacity to exercise the powers of a public service; (3) that the inspections made by the officials of that company were not drawn up in any minutes, nor were they given any publicity. The defendant replies, as you know, that there is no question of any infringement of Article 86 since the inspections and checks were undertaken solely in pursuance of Article 47 and not of Article 86. The Fiduciaire suisse was only charged with obtaining information on behalf of the High Authority; to which the applicant replies by producing an opinion of Campsider, the Italian regional office of the scheme, according to which the High Authority had conferred upon the Fiduciaire suisse the task of checking the movements of the ferrous scrap undertakings under Articles 47 and 86 of the Treaty. The defendant contents itself with the reply that it is not responsible for the workings of Campsider. In fact, in my opinion, there seems to be no point to this dispute. According to the case law of this Court, Article 47 permits the High Authority to obtain ‘all the information it requires to carry out its tasks’ and ‘to have any necessary checks made’. There is nothing to prevent any on-the-spot checks being carried out by an accounting establishment which is duly authorized for this purpose. Recourse to Article 86 and the necessity of observing the procedure which it lays down only concern the case where it appears necessary to enable the High Authority's officials to exercise the coercive powers given by the revenue laws of a State to its own national officials (Judgment in Joined Cases 5 to 11/62 of 4 December 1962, Rec. 1962, p. 884). It has never been alleged that the officials of the Fiduciaire suisse have ever attempted to exercise such coercive powers or make use of prerogatives reserved by law to the officials of the Italian revenue authorities. No more are they under any obligation to draw up minutes in good and proper form of the results of their checks. The second series of complaints concerns the merits of the bases for determining the contribution as laid down in the disputed Decisions. Two factors give rise to dispute in this matter: (1) the validity of the criterion used by the High Authority, that is to say the consumption of electricity; (2) the accuracy of the assessment of the amount of that consumption. (a) Value of the criterion used. The applicant refers to the judgment of this Court of 14 December 1962, in Joined Cases 5 to 11/62, to which I have just referred and in which it is stated that the consumption of electric energy by furnaces constitutes only one of the factors capable of determining the tonnages of ferrous scrap consumed. That is what the Court declared, in agreement, what is more, with the High Authority's own argument. Does it follow from this that when no other factor exists for checking, as the accounting documents have been com pletely destroyed, the High Authority must purely and simply renounce and abandon the task? I hardly think that can have been the Court's intention on 14 December 1962; it certainly was not mine when I advised the Court to uphold the argument of the High Authority at that time. The consumption of electricity constitutes, in my opinion, a valid factor even by itself, on condition that the ratio of the consumption of electricity to that of ferrous scrap has been correctly established. For that, it is first necessary, from a technical point of view, that the average relationship be established as accurately as possible and, secondly, that the undertaking in question is left all the latitude it requires to set out the reasons which, because of its particular manufacturing process, of its machinery, or of any other factor, means that in its case the average ratio worked out by the experts is not applicable. These two conditions appear to me to be present in this case. The average ratio seems to have been worked out with great precision by a commission of experts from the six Member States meeting at Luxembourg under the auspices of the High Authority. To this expert opinion, the applicant opposes another which criticizes the first which in turn is rejected by the High Authority. I have read closely all these documents which you will have to appraise. In my view the opposing expert opinion produced by the applicant is not sufficient to cast doubt on the validity of the work of the High Authority's commission of experts. On the other hand, the applicant has not adduced any precise factor, based on conditions peculiar to the manufacturing processes of the Leone undertaking, capable of pointing to a ratio of consumption different from the average established by the experts. (b) Assessment of the consumption of electricity. On this point my comments will be brief, since, as you will recall, this point has been clarified as far as is possible. I would merely point out that in law it is accepted practice to require undertakings, in the absence of all accounting documents, to produce their electricity invoices for the corresponding periods of assessment; this is what the Court recognized in its judgment of 14 December 1962. It is also quite normal, if these invoices are not produced and if the undertaking neglects or refuses to procure duplicates from the supplier of electric current or does not succeed in obtaining them from him, for the officials whose duty it is to carry out the investigation to contact the supplier themselves. Finally, if for any particular period information is entirely lacking, the only remaining method is to proceed by extrapolation. That is what happened in this case, and it led to the figure of 28386 metric tons being fixed as the assessable tonnage for the period from 1 October 1955 to 31 January 1958. Thanks to the perseverance of the Court in its efforts to obtain more precise information, it was in the end possible, under the circumstances alluded to in the oral procedure (which in my opinion it would be poindess to repeat), to find out the actual consumption during the period for which the High Authority was forced to infer consumption (letter from the electricity company dated 11 October 1963). Thanks to this new information, which corresponds more to the real position, the assessable tonnage is now reduced from 28386 to 25506 metric tons of ferrous scrap. Nevertheless, as I pointed out at the beginning of my observations, the Court in this case has had brought before it an application for annulment and could have had no other action brought before it as Article 36 was not applied. It has no jurisdiction to fix the amount of the debt. The legality of a decision must be determined with reference to the day when it was taken. If the Court considered itself under an obligation to try to throw as much light on the case as possible, it was not so as to be able to fix the amount of the contribution, but to be better able to check whether, in taking the Decisions now being challenged, the High Authority acted legally. I believe that this was the case; consequendy the application should be dismissed and the applicant should bear the costs. This will not, of course, prevent the deduction being made, either on the applicant's request or by the Court of its own motion, taking into account this last piece of information obtained with such difficulty and so late in the proceedings by reason of the attitude taken by the applicant.