Judgment of the Court of 16 December 1963. - Società Industriale Acciaierie San Michele and others v High Authority of the European Coal and Steel Community. - Joined cases 2 to 10-63.



European Court reports

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - APPLICATION - REQUIREMENTS OF FORM

( RULES OF PROCEDURE, ARTICLE 38 )

2 . APPEALS AGAINST PECUNIARY SANCTIONS - REFERENCE TO ARTICLE 36 OF THE ECSC TREATY NOT NECESSARY

3 . PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION - GROUNDS AVAILABLE

Summary

1 . CF . SUMMARIES IN CASES 7/56 AND 3/57 TO 7/57, REC . 1957, P . 88, N . 10, AND IN CASES 19/60, 21/60 2/61, 3/61, REC . 1961, P . 564, N . 3 .

PROCEDURE - APPLICATION - DETAILS REQUIRED

THE APPLICANT IS NOT BOUND TO CITE THE PROVISIONS ON WHICH HE RELIES; IT IS ENOUGH IF THE APPLICATION CONTAINS 'THE FACTS AND SUBMISSIONS ON WHICH THE APPLICATION IS BASED' AND 'THE CONCLUSIONS' ( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE, ARTICLE 22; RULES OF PROCEDURE OF THE COURT, ARTICLE 29 ( 3 )).

*/ EN.656J0007 /*.

THE WORDS 'BRIEF STATEMENT OF THE GROUNDS' USED IN THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE AND THE RULES OF PROCEDURE MEAN THAT, ALTHOUGH THE APPLICATION NEED NOT CONFORM WITH THE PHRASEOLOGY OF THE FIRST PARAGRAPH OF ARTICLE 33, IT MUST SPECIFY THE NATURE OF THE GROUNDS ON WHICH THE APPLICATION IS BASED . ALTHOUGH A MERE ABSTRACT STATEMENT OF THE GROUNDS IN THE APPLICATION DOES NOT ALONE SATISFY THIS REQUIREMENT, THE GROUNDS MAY BE EXPRESSED IN TERMS OF THEIR SUBSTANCE RATHER THAN OF THEIR LEGAL CLASSIFICATION PROVIDED THAT THE GROUND OF COMPLAINT RELIED UPON IS ESTABLISHED IN RELATION TO THE FACTS WHICH HAVE BEEN SET OUT .

*/ EN.660J0019 /*.

2 . ANY APPEAL AGAINST PECUNIARY SANCTIONS IMPOSED BY THE HIGH AUTHORITY IS BY ITS VERY NATURE BASED ON ARTICLE 36 OF THE TREATY AND THERE IS NO NEED TO INVOKE THAT ARTICLE EXPRESSLY .

3 . IN PROCEEDINGS IN WHICH THE COURT HAS UNLIMITED JURISDICTION THE APPLICANTS ARE ALSO ENTITLED TO AVAIL THEMSELVES OF THE GROUNDS SET FORTH IN ARTICLE 33 OF THE TREATY .

Parties

IN JOINED CASES 2/63 TO 10/63

1 ) 2/63, 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 ) 3/63, FERRIERE ROSSE ( FER . RO .), AN INDIVIDUAL UNDERTAKING GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN MAGLIANO ALPI ( CONI ), REPRESENTED BY ITS OWNER GINO ROSSI;

3 ) 4/63, MERONI & CO ., A COMPANY LIMITED BY SHARES, GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN MILAN, REPRESENTED BY ITS SOLE DIRECTOR ALDO MERONI;

4 ) 5/63, ACCIAIERIE LAMINATOI MAGLIANO ALPI ( A.L.M.A .), A COMPANY LIMITED BY SHARES, GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN TURIN, REPRESENTED BY ITS SOLE DIRECTOR GIUSEPPE PASSALACQUA;

5 ) 6/63, SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( S.I.M.E.T .) 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;

6 ) 7/63, MERONI & CO ., A LIMITED PARTNERSHIP, GOVERNED BY ITALIAN LAW, HAVING ITS REGISTERED OFFICE IN ERBA ( COMO ), REPRESENTED BY ITS MANAGING PARTNERS AMBROGIO AND ALDO MERONI,

7 ) 8/63, ACCIAIERIA FERRIERA DI ROMA ( F.E.R.A.M .), 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;

8 ) 9/63, 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 ) 10/63, ACCIAIERIE E 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;

ALL ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND AT 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, APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY MARIO GIULIANO, ADVOCATE OF THE MILAN BAR AND AT THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC, PROFESSOR AT THE UNIVERSITY OF MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION

- PRIMARILY FOR ANNULMENT OF THE INDIVIDUAL DECISIONS OF 18 DECEMBER 1962;

- SECONDARILY FOR ANNULMENT OF THE PERIODIC PENALTY PAYMENTS AND REDUCTION OF THE AMOUNT OF THE FINES .

Grounds

ADMISSIBILITY

1 . THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE PRESENT APPLICATIONS POINTING OUT FIRST THAT THEY ARE MADE IN FACT AGAINST THE DECISIONS OF 23 FEBRUARY 1962 AND THAT THEY BRING BEFORE THE COURT QUESTIONS ALREADY SETTLED BY IT IN ITS JUDGMENT OF 14 DECEMBER 1962 .

THE APPLICATIONS MADE AGAINST THE DECISIONS OF 23 FEBRUARY 1962 ON WHICH THE COURT RULED IN ITS JUDGMENT OF 14 DECEMBER 1962 CONCERNED THE POWER OF THE HIGH AUTHORITY TO REQUIRE PRODUCTION OF THE INVOICES FOR ELECTRIC ENERGY CONSUMED BY THE APPLICANTS . IN THE FIRST APPLICATIONS THE APPLICANTS MAINTAINED THAT SUCH A POWER HAD NO BASIS IN ARTICLE 47 OF THE TREATY .

THE PRESENT APPLICATIONS ON THE OTHER HAND ARE CONCERNED WITH THE PECUNIARY SANCTIONS IMPOSED BY THE DECISIONS OF 18 DECEMBER 1962 FOR FAILURE TO PRODUCE THESE INVOICES . AS TO THIS THE APPLICANTS MAKE THE POINT THAT FAILURE TO PRODUCE THESE INVOICES CANNOT BE CONSIDERED AS AN INFRINGEMENT OF THE DECISIONS OF 23 FEBRUARY 1962, THE INVOICES HAVING BEEN DESTROYED IN ACCORDANCE WITH THE NATIONAL LAW APPLICABLE IN THIS CASE . THE SUBJECT MATTER OF THE PRESENT APPLICATIONS IS THUS DIFFERENT FROM THAT OF THE APPLICATIONS AGAINST THE DECISIONS OF 23 FEBRUARY 1962 .

ALTHOUGH IN COURSE OF THE ORAL PROCEDURE IN THE PREVIOUS CASE THE APPLICANTS HAD ALREADY ALLEGED THAT THE PRODUCTION OF THE INVOICES AT ISSUE REQUIRED BY THE HIGH AUTHORITY MIGHT BE MADE IMPOSSIBLE BECAUSE UNDER ITALIAN LAW TRADE INVOICES NEED BE KEPT ONLY FOR FIVE YEARS, THE JUDGMENT RULED THAT IT IS FOR THE HIGH AUTHORITY TO DETERMINE WHETHER FAILURE TO PRODUCE CERTAIN INVOICES IS JUSTIFIED IN THE LIGHT OF THE RELEVANT LEGISLATION AND TO DRAW THE NECESSARY CONCLUSIONS .

NO DECISION HAVING THE FORCE OF RES JUDICATA HAS THEREFORE BEEN TAKEN BY THE COURT ON THE SUBJECT MATTER OF THE PRESENT PROCEEDINGS .

CONSEQUENTLY ON THIS POINT THE PRESENT APPLICATIONS MUST BE TAKEN TO BE ADMISSIBLE .

2 . THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 MAKE THE POINT THAT THE CONTESTED DECISIONS IMPOSE PECUNIARY SANCTIONS ON THEM FOR NOT HAVING PRODUCED THE ELECTRICITY INVOICES RELATING TO THE WHOLE PERIOD OF THE OPERATION OF THE EQUALIZATION SCHEME, WHILST THEY HAVE BEEN ENGAGED IN THE IRON AND STEEL INDUSTRY FOR ONLY PART OF THIS PERIOD .

THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THIS SUBMISSION, MAKING THE POINT THAT, AS THE DECISIONS OF 18 DECEMBER 1962 WERE LIMITED TO DRAWING THE LEGAL CONCLUSIONS FLOWING FROM THE DECISIONS OF 23 FEBRUARY 1962, IT IS AGAINST THE LAST-MENTIONED DECISIONS AND THE OBLIGATION THEY CONTAIN THAT THE APPLICANTS SHOULD HAVE RAISED SUCH A SUBMISSION .

HOWEVER, THE JUDGMENT WHICH SETTLED THE APPLICATIONS MADE AGAINST THE DECISIONS OF 23 FEBRUARY 1962 ACCEPTED AS WELL-FOUNDED THE POWER OF THE HIGH AUTHORITY TO REQUIRE PRODUCTION OF THE INVOICES FOR ELECTRIC ENERGY ACTUALLY CONSUMED BY THE APPLICANTS DURING THE OPERATION OF THE EQUALIZATION SCHEME .

MOREOVER ANY SANCTION IMPOSED BY THE HIGH AUTHORITY CAN BE CONSIDERED AS LAWFUL ONLY IF IT IS DIRECTED TO AN INFRINGEMENT IN RELATION TO A DECISION TAKEN IN IMPLEMENTATION OF THE TREATY .

IN THE PRESENT CASE, AS FAILURE TO PRODUCE THE ELECTRICITY INVOICES RELATES TO A PERIOD WHEN THE APPLICANTS WERE NOT ENGAGED IN THE IRON AND STEEL INDUSTRY, IT CANNOT IN ANY EVENT CONSTITUTE AN INFRINGEMENT OF THE DECISIONS OF 23 FEBRUARY 1962 .

THEREFORE IF THE ALLEGATIONS OF THE APPLICANTS WERE TO PROVE TO BE WELL-FOUNDED THE PECUNIARY SANCTIONS IN QUESTION WOULD NEED TO BE ANNULLED BECAUSE AT LEAST IN PART THEY WOULD HAVE NO PURPOSE .

THE SUBMISSION MADE BY THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 IS THEREFORE ADMISSIBLE .

3 . THE DEFENDANT THEN MAKES THE POINT THAT THE PRESENT APPLICATIONS DO NOT SATISFY THE CONDITIONS OF ADMISSIBILITY SET OUT IN ARTICLE 38 ( 1 ) ( C ) OF THE RULES OF PROCEDURE OF THE COURT, AS THEY DO NOT CONTAIN A BRIEF STATEMENT OF THE GROUNDS ON WHICH THEY ARE BASED .

THE APPLICANTS MAINTAIN IN THEIR APPLICATIONS THAT THE PECUNIARY SANCTIONS IMPOSED BY THE CONTESTED DECISIONS ARE OUT OF PROPORTION BOTH TO THE SERIOUSNESS OF THE OFFENCES OF WHICH THEY ARE ACCUSED AND TO THE ECONOMIC CAPACITY OF EACH UNDERTAKING .

CERTAIN OF THE APPLICANTS FURTHER MAINTAIN THAT THE PECUNIARY SANCTIONS HAVE ALSO BEEN IMPOSED FOR FAILURE TO PRODUCE ELECTRICITY INVOICES RELATING TO A PERIOD DURING WHICH THEY WERE NOT ENGAGED IN THE IRON AND STEEL INDUSTRY .

THESE SUBMISSIONS ARE SUFFICIENT TO JUSTIFY THE MAKING OF AN APPEAL IN RESPECT OF WHICH THE COURT HAS UNLIMITED JURISDICTION, AS PROVIDED FOR IN ARTICLE 36 OF THE TREATY .

THE APPLICATIONS THEREFORE SHOW SUFFICIENTLY CLEARLY WHICH OF THE GROUNDS SET OUT IN THE TREATY ARE THOSE INVOKED BY THE APPLICANTS .

THE PRESENT APPLICATIONS ARE ADMISSIBLE UNDER ARTICLE 38 ( 1 ) ( C ) QUOTED ABOVE .

4 . FINALLY THE DEFENDANT MAINTAINS THAT THE PRESENT APPLICATIONS, SO FAR AS THEY SEEK A REDUCTION OF THE FINES AND A TOTAL REMISSION OF THE PERIODIC PENALTY PAYMENTS, ARE INADMISSIBLE BECAUSE THEY CONTAIN NO REFERENCE TO ARTICLE 36 OF THE TREATY AND SET OUT NO CRITICISM OF THE APPLICATION OF THIS ARTICLE BY THE HIGH AUTHORITY .

ACCORDING TO THE RULES OF PROCEDURE OF THE COURT IT IS UNNECESSARY FOR AN APPLICANT TO INDICATE, FOR THE PURPOSE OF ADMISSIBILITY, THE PROVISIONS OF THE TREATY UNDER WHICH HE IS ENTITLED TO BRING HIS ACTION . ANY APPEAL AGAINST PECUNIARY SANCTIONS IMPOSED BY THE HIGH AUTHORITY IS BY ITS VERY NATURE BASED ON ARTICLE 36 OF THE TREATY AND THERE IS NO NEED TO INVOKE THAT ARTICLE EXPRESSLY .

HAVING REGARD TO THE PURPOSE OF THE PRESENT APPLICATIONS, IT IS ABUNDANTLY CLEAR THAT THESE ARE BASED ON ARTICLE 36 OF THE TREATY .

AS THE APPEALS PROVIDED FOR IN THIS ARTICLE CONFER UNLIMITED JURISDICTION UPON THE COURT, THE APPLICANTS ARE ENTITLED TO AVAIL THEMSELVES OF THE GROUNDS SET FORTH IN ARTICLE 33 OF THE TREATY .

IN THESE CIRCUMSTANCES THE OBJECTION RAISED BY THE DEFENDANT DOES NOT APPEAR WELL-FOUNDED .

THE SUBSTANCE

A - ANNULMENT OF THE FINES

1 . THE APPLICANTS RELY ON ITALIAN FISCAL LAW TO JUSTIFY THE ALLEGED DESTRUCTION OF THE ELECTRICITY INVOICES AT ISSUE AND TO CLAIM THAT IN THESE CIRCUMSTANCES THEY SHOULD NOT BE HELD LIABLE FOR NOT HAVING PRODUCED THE INVOICES IN QUESTION IN ACCORDANCE WITH THE DECISIONS OF 23 FEBRUARY 1962 .

THE SUBMISSION MADE BY THE APPLICANTS ASSUMES THAT THE DECISIONS OF 23 FEBRUARY 1962 MUST BE INTERPRETED AS REQUIRING ONLY PRODUCTION OF THE ORIGINALS OF THE ELECTRICITY INVOICES .

HOWEVER, NEITHER THE LETTER NOR THE SPIRIT OF THESE DECISIONS JUSTIFIES SUCH AN INTERPRETATION . THEY ARE LIMITED BY ARTICLE I THEREOF TO REQUIRING PRODUCTION OF 'ALL INVOICES FOR ELECTRIC ENERGY...RELATING TO THE ACTIVITY OF THE UNDERTAKING FOR THE PERIOD FROM APRIL 1954 TO NOVEMBER 1958 INCLUSIVE' WITHOUT SPECIFYING THAT THEY MUST BE ORIGINALS ONLY .

FURTHER, TAKING ACCOUNT OF THE FACT THAT THE PURPOSE OF PRODUCING THE INVOICES AT ISSUE WAS TO ENABLE THE HIGH AUTHORITY TO CHECK THE INFORMATION REQUIRED FOR THE APPLICATION OF THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP, THE APPLICANTS HAD NO REASON TO THINK THAT ONLY PRODUCTION OF THE ORIGINAL ACCOUNTS WOULD HAVE SERVED THIS PURPOSE .

IN ADDITION, IN THE LETTERS OF 27 NOVEMBER 1961 ADDRESSED TO THE APPLICANTS, THE HIGH AUTHORITY HAD EXPRESSLY STIPULATED THAT IN THE ABSENCE OF THE ORIGINAL ELECTRICITY INVOICES THE APPLICANTS WERE REQUIRED TO PRODUCE 'CERTIFIED COPIES OR PHOTOCOPIES '. ENCLOSED WITH THESE LETTERS WERE SEVERAL FORMS FOR COMPLETION BY THE ADDRESSEES IN WHICH 'COPIES OR PHOTOCOPIES' WERE ALSO MENTIONED .

ALL THE APPLICANTS RECEIVED THIS LETTER AND ANSWERED IT, EITHER CONTESTING THE LEGALITY OF THE REQUEST BY THE HIGH AUTHORITY OR ASKING IT TO WITHDRAW ITS REQUEST, OR FAILING THAT, TO CONFIRM IT BY WAY OF A DECISION APPLICABLE TO ALL UNDERTAKINGS IN THE SAME LINE OF BUSINESS .

THEREUPON THE HIGH AUTHORITY ADOPTED THE DECISIONS OF 23 FEBRUARY 1962 REPEATING THE OBLIGATION CONTAINED IN THE LETTER OF 27 NOVEMBER 1961 .

IN THE CIRCUMSTANCES THESE LETTERS CONSTITUTE AS IT WERE A MEASURE PREPARATORY TO THE DECISIONS OF 23 FEBRUARY 1962 AND THE APPLICANTS CAN IN NO WAY ALLEGE THAT THESE DECISIONS MUST BE INTERPRETED AS REQUIRING PRODUCTION ONLY OF THE ORIGINALS OF THE INVOICES AT ISSUE .

IN ANY EVENT, WHEN ACCOUNT IS TAKEN OF THE ABOVE-MENTIONED LETTERS, THE APPLICANTS SHOULD HAVE TAKEN THE PRECAUTION OF KEEPING THE ELECTRICITY INVOICES IN ANTICIPATION OF THE DECISIONS WHICH THE HIGH AUTHORITY MIGHT TAKE IN THE MATTER .

IT IS CLEAR FROM THE ANSWERS GIVEN TO THE QUESTIONS ASKED BY THE COURT THAT THE DESTRUCTION OF THE INVOICES TOOK PLACE ONLY AFTER THESE LETTERS HAD REACHED THE APPLICANTS .

IT THEREFORE FOLLOWS THAT EVEN IF THE APPLICANTS HAD DESTROYED OR LOST OR HAD NEVER KEPT THE ORIGINALS OF THE INVOICES AT ISSUE, THEY OUGHT TO HAVE ASKED THE ELECTRICITY SUPPLY COMPANIES FOR COPIES OF THEM UPON BEING NOTIFIED OF THE DECISIONS OF 23 FEBRUARY 1962, THUS ENDEAVOURING TO COMPLY WITH THESE DECISIONS . INSTEAD, THE APPLICANTS INSTITUTED ANNULMENT PROCEEDINGS ALLEGING THAT THE POWER OF THE HIGH AUTHORITY TO REQUIRE TRANSMISSION OF ACCOUNTING DOCUMENTS HAD NO FOUNDATION IN THE TREATY . ONLY BETWEEN DECEMBER 1962 AND JANUARY 1963, THAT IS AT LEAST TEN MONTHS AFTER BEING NOTIFIED OF THE DECISIONS OF 23 FEBRUARY 1962, DID THEY FOR THE FIRST TIME ASK THE ELECTRICITY SUPPLY COMPANIES TO FURNISH THEM WITH A COPY OF EACH INVOICE .

IT MUST THEREFORE BE DECLARED THAT, UP TO THE TIME OF ADOPTION OF THE DECISIONS IMPOSING THE PECUNIARY SANCTIONS AT ISSUE, THE APPLICANTS FAILED TO FULFIL THE OBLIGATION IMPOSED ON THEM BY THE DECISIONS OF 23 FEBRUARY 1962 .

THIS CONCLUSION APPLIES WITH PARTICULAR FORCE TO THE APPLICANT IN CASE 2/63 WHO RIGHT UP TO OCTOBER 1962 WAS IN A POSITION TO PRODUCE THE ORIGINALS OF THE INVOICES AT ISSUE AND, HAVING REGARD TO THE DATE WHEN THESE INVOICES WERE DESTROYED, ALL REFERENCE TO ITALIAN FISCAL LAW IS IRRELEVANT IN THE PRESENT CASE .

IN THESE CIRCUMSTANCES THE IMPOSITION OF THE FINE PROVIDED FOR IN THE DECISIONS OF 18 DECEMBER 1962 FOR INFRINGEMENT OF THE OBLIGATION CONTAINED IN THE DECISIONS OF 23 FEBRUARY 1962 IS JUSTIFIED .

2 . THE APPLICANTS FURTHER MAINTAIN THAT THE CONTESTED DECISIONS DISCRIMINATE AGAINST THEM, AS PECUNIARY SANCTIONS WERE NOT IMPOSED ON THE APPLICANT IN CASE 18/62 WHO WAS IN A SIMILAR POSITION .

IT APPEARS HOWEVER FROM THE FOREGOING CONSIDERATIONS THAT THE IMPOSITION OF PECUNIARY SANCTIONS IS FULLY JUSTIFIED IN THE PRESENT CASE BY REASON OF THE INFRINGEMENT OF THE DECISIONS OF 23 FEBRUARY 1962 . IN THESE CIRCUMSTANCES IT IS OF LITTLE CONSEQUENCE TO DETERMINE WHETHER IN ALLEGEDLY COMPARABLE CASES THE HIGH AUTHORITY SHOULD HAVE IMPOSED THE SAME PECUNIARY SANCTIONS .

THEREFORE THE COMPLAINT OF DISCRIMINATION RAISED MUST BE DISMISSED AS UNFOUNDED .

3 . THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 RAISE THE FURTHER POINT THAT AS THEY WERE NOT ENGAGED IN THE IRON AND STEEL INDUSTRY FOR PART OF THE PERIOD DURING WHICH THE EQUALIZATION SCHEME WAS IN OPERATION, THE IMPOSITION OF A FINE FOR FAILURE TO PRODUCE ELECTRICITY INVOICES RELATING TO THE WHOLE OF THIS PERIOD IS ILLEGAL BECAUSE IT IS UNFOUNDED AND CONSTITUTES A MISUSE OF POWERS .

ARTICLE 1 OF THE DECISIONS OF 23 FEBRUARY 1962 PROVIDES THAT THE APPLICANT SHALL PRODUCE THE ELECTRICITY ACCOUNTS 'RELATING TO THE ACTIVITY OF THE UNDERTAKING FOR THE PERIOD FROM APRIL 1954 TO NOVEMBER 1958 INCLUSIVE '.

IT FOLLOWS FROM THESE WORDS THAT THE OBLIGATION THERE STATED APPLIES ONLY TO INVOICES RELATING TO BUSINESS IN THE IRON AND STEEL INDUSTRY IN FACT CARRIED ON BY EACH APPLICANT DURING THAT PERIOD .

THE DECISIONS OF 18 DECEMBER 1962, RECITING THE OPERATIVE PART OF THE DECISIONS OF 23 FEBRUARY 1962 AS QUOTED ABOVE THEREFORE LAY DOWN PECUNIARY SANCTIONS ONLY FOR INFRINGEMENT OF THIS OBLIGATION, WHATEVER MAY HAVE BEEN THE ACTUAL PERIOD DURING WHICH EACH UNDERTAKING WAS ACTIVELY ENGAGED IN THE IRON AND STEEL INDUSTRY WHILE THE EQUALIZATION SCHEME WAS OPERATIVE .

THEREFORE THE SUBMISSION RAISED BY THE APPLICANTS IN THE ABOVE-MENTIONED CASES IS UNFOUNDED .

B - REDUCTION OF THE AMOUNT OF THE FINES

IN THEIR ALTERNATIVE CONCLUSIONS THE APPLICANTS REQUEST A REDUCTION IN THE AMOUNT OF THE FINES HAVING REGARD ON THE ONE HAND TO THE FACT THAT THE UNCERTAN AND EQUIVOCAL CONDUCT OF THE HIGH AUTHORITY LED THEM TO COMMIT A JUSTIFIED ERROR IN LAW AND ON THE OTHER HAND TO THE FACT THAT THIS AMOUNT IS OUT OF PROPORTION TO THE ECONOMIC CAPACITY OF EACH UNDERTAKING .

AS REGARDS THE FIRST ARGUMENT, THE PRECEDING CONSIDERATIONS SHOW THAT NO ERROR IN LAW CAN VALIDLY BE INVOKED BY THE APPLICANTS SINCE THE OBLIGATION TO PRODUCE CERTIFIED COPIES OF THE INVOICES AT ISSUE, IN THE ABSENCE OF THE ORIGINALS, IS PLAIN FROM THE DECISIONS OF 23 FEBRUARY 1962 AS WELL AS FROM THE LETTERS OF 27 NOVEMBER 1961 .

AS REGARDS THE SECOND ARGUMENT, THE APPLICANTS HAVE NOT FURNISHED THE COURT WITH A SHRED OF FACTUAL EVIDENCE TO SHOW THAT THE AMOUNT OF THE FINES IS OUT OF PROPORTION TO THE ECONOMIC CAPACITY OF EACH UNDERTAKING . MOREOVER THIS AMOUNT DOES NOT APPEAR TO BE EXCESSIVE BECAUSE IT FALLS FAR SHORT OF THE MAXIMUM LAID DOWN IN ARTICLE 47 OF THE TREATY .

FOR THESE REASONS THE ABOVE-MENTIONED ALTERNATIVE CONCLUSIONS MUST BE DISMISSED .

C - ANNULMENT OF THE PERIODIC PENALTY PAYMENTS

THE APPLICANTS CLAIM, IN THE FURTHER ALTERNATIVE, THAT EXONERATION FROM THE PAYMENT OF THE PERIODIC PENALTY PAYMENTS IMPOSED BY THE CONTESTED DECISIONS SHOULD BE GRANTED .

IN FURTHERANCE OF THIS CLAIM THEY RAISE THE POINT THAT, AS PRODUCTION OF COPIES OF THE INVOICES AT ISSUE TO THE HIGH AUTHORITY COULD ONLY BE MADE AFTER DELIVERY OF THESE COPIES BY THE ELECTRICITY SUPPLY COMPANIES, THE APPLICANTS CANNOT BE HELD RESPONSIBLE FOR THE DELAY IN PRODUCING THEM .

TO JUSTIFY THIS DELAY THE APPLICANTS REFER TO THE PHYSICAL DIFFICULTIES ALLEGED IN THE ANSWERS TO THE LETTERS ASKING FOR DELIVERY OF THE COPIES OF THE INVOICES AT ISSUE .

WITHOUT REGARD TO THE QUESTION WHETHER THE INVOICES WERE IN FACT DESTROYED IT CAN BE SAID THAT THE DELAY IN PRODUCTION OF THESE COPIES IS DUE IN LARGE MEASURE TO THE FACT THAT THE APPLICANTS ONLY APPLIED TO THE ELECTRICITY SUPPLY COMPANIES IN DECEMBER 1962 AT THE EARLIEST, THAT IS, AFTER A CONSIDERATE LAPSE OF TIME FROM THEIR BEING NOTIFIED OF THE DECISIONS OF 23 FEBRUARY 1962 .

THEREFORE THE PHYSICAL DIFFICULTIES WHICH THE ELECTRICITY SUPPLY COMPANIES MENTION CANNOT RELIEVE THE APPLICANTS OF ALL RESPONSIBILITY IN THIS MATTER .

THESE DIFFICULTIES CAN NEVERTHELESS BE TAKEN INTO ACCOUNT IN FIXING THE TIME FROM WHICH THE PERIODIC PENALTY PAYMENTS AT ISSUE ARE APPLIED .

IN THESE CIRCUMSTANCES, THE PERIODIC PENALTY PAYMENTS MUST BE MAINTAINED BUT THE PERIOD AT THE END OF WHICH THEY TAKE EFFECT MUST BE EXTENDED TO SEVEN MONTHS FROM THE NOTIFICATION OF THE CONTESTED DECISIONS .

Decision on costs

UNDER THE TERMS OF THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

THE DEFENDANT HAS BEEN UNSUCCESSFUL IN PART IN THE SUBMISSION RELATING TO THE ANNULMENT OF THE PERIODIC PENALTY PAYMENTS .

Operative part

THE COURT

HEREBY DECLARES THAT :

1 . THE APPLICATIONS ARE ADMISSIBLE;

2 . THE APPLICATIONS ARE DISMISSED AS UNFOUNDED . NEVERTHELESS THE TIME LIMIT AT THE END OF WHICH THE PERIODIC PENALTY PAYMENTS IMPOSED BY THE DECISIONS OF 18 DECEMBER 1962 TAKE EFFECT IS EXTENDED TO SEVEN MONTHS FROM THE NOTIFICATION OF THE LATTER;

3 . FOUR FIFTHS OF THE COSTS ARE TO BE BORNE BY THE APPLICANTS AND THE REMAINING ONE FIFTH THEREOF BY THE DEFENDANT .