Judgment of the Court of 16 June 1966. - Acciaierie e Ferriere di Solbiate SpA v High Authority of the ECSC. - Case 50-65.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - OWN RESOURCES OF SCRAP - CONCEPT

( ECSC TREATY, ARTICLE 53 )

2 . COMMON FINANCIAL ARRANGEMENTS - UNDERTAKINGS LIABLE TO PAY CONTRIBUTIONS - CONCEPT

( ECSC TREATY, ARTICLES 53, 80 )

3 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - BOUGHT SCRAP ADDED TO STOCK - SYSTEM OF ASSESSMENT

( ECSC TREATY, ARTICLE 53, DECISION NO 2/57 OF THE HIGH AUTHORITY, ARTICLE 4 )

Summary

1 . FERROUS SCRAP WHICH HAS NOT UNDERGONE ANY CHANGE OF OWNERSHIP, USING THE TERM IN A STRICTLY LEGAL SENSE, BETWEEN ITS PRODUCTION AND ITS UTILIZATION, CONSTITUTES AN UNDERTAKING'S OWN RESOURCES .

CF . PARA . 9, SUMMARY, JOINED CASES 42 AND 49/59, ( 1961 ) ECR 105 .

2 . FOR THE PURPOSES OF THE EQUALIZATION SCHEME, THE CONCEPT OF AN UNDERTAKING MAY BE IDENTIFIED WITH THAT OF A NATURAL OR LEGAL PERSON .

CF . PARA . 3, SUMMARY, JOINED CASES 17 AND 20/61, ( 1962 ) ECR 619 .

3 . THE EFFECT OF ARTICLE 4 OF DECISION NO 2/57 OF THE HIGH AUTHORITY IS NOT TO EXEMPT SCRAP PURCHASED AND CONSUMED BY USERS FROM PAYMENT OF THE EQUALIZATION CONTRIBUTIONS . ITS PURPOSE IS MERELY TO AVOID A SECOND ASSESSMENT BEING MADE AT THE MOMENT THEY ARE PUT INTO THE FURNACE OF THOSE QUANTITIES OF FERROUS SCRAP WHICH ARE NOT USED FROM DAY TO DAY BUT ARE ADDED TO STOCK .

Parties

IN CASE 50/65

ACCIAIERIE E FERRIERE DI SOLBIATE SPA, A LIMITED LIABILITY COMPANY HAVING ITS REGISTERED OFFICE AT MILAN, REPRESENTED BY ITS SOLE DIRECTOR, EMILIO BERTONE, ASSISTED BY PIETRO GASPARRI, PROFESSOR AT THE UNIVERSITY OF PERUGIA, ADVOCATE AT THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, ITALO TELCHINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICE, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF TWO INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY OF 19 MAY 1965 FIXING, FIRST, THE QUANTITY OF SCRAP ASSESSABLE AND, SECONDLY, THE AMOUNT OF THE EQUALIZATION CONTRIBUTION PAYABLE BY THE APPLICANT;

Grounds

P.153

ADMISSIBILITY

IN THE COURSE OF THE PROCEEDINGS THE APPLICANT WITHDREW ALL CONCLUSIONS OTHER THAN THOSE CLAIMING THE ANNULMENT OF THE INDIVIDUAL DECISIONS OF 19 MAY 1965 .

FURTHERMORE, AS A RESULT OF EXPLANATIONS SUPPLIED BY THE HIGH AUTHORITY REGARDING THE JUSTIFICATION FOR THE SECOND SUBMISSION, THE APPLICANT PUTS FORWARD SOLELY THE INFRINGEMENT OF RULES OF LAW RELATING TO THE APPLICATION OF THE FINANCIAL ARRANGEMENT FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH .

THE DEFENDANT HAS NOT CONTESTED THE ADMISSIBILITY OF THE APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

THE APPLICATION IS THEREFORE ADMISSIBLE .

P.154

SUBSTANCE

THE APPLICANT MAINTAINS THAT THE HIGH AUTHORITY, HAVING REGARDED AS BOUGHT SCRAP STOCKS OF FERROUS SCRAP USED BY THE SOLBIATE COMPANY AT THE COMMENCEMENT OF ITS ACTIVITIES, FAILED TO APPRECIATE THE FUNDAMENTAL PRINCIPLE UPON WHICH THE FINANCIAL ARRANGEMENT FOR THE EQUALIZATION OF FERROUS SCRAP IS BASED, IN PARTICULAR ARTICLES 3 TO 6 OF DECISION NO 2/57 .

ACCORDING TO THIS PRINCIPLE, FOR THE PURPOSES OF ASSESSING BOUGHT SCRAP, THE FINANCIAL ARRANGEMENT RELATES ONLY TO TRANSFERS OF OWNERSHIP IN CONSIDERATION OF A PRICE; THIS IS PARTICULARLY SO IN THOSE CASES IN WHICH THE COMPANY FORMERLY EXERCISING OWNERSHIP CEASES TO EXIST AND IS SUCCEEDED BY A NEW COMPANY FORMED FROM THE SAME FAMILY GROUP .

IN THIS INSTANCE, IT IS CLAIMED, AS THE APPLICANT AND THE METALSIDER UNDERTAKING, THE FORMER OWNER OF THE FERROUS SCRAP IN QUESTION, ARE BOTH CONSTITUTED BY THE SAME FAMILY GROUP, IT MUST BE ACCEPTED THAT AT THE BEGINNING THE GROUP UTILIZED THE STOCKS WHICH IT HAD AVAILABLE AT METALSIDER, WITH THE RESULT THAT NO TRANSFER OF FERROUS SCRAP WITHIN THE MEANING OF THIS FINANCIAL ARRANGEMENT CAN BE SAID TO HAVE TAKEN PLACE BETWEEN THE TWO UNDERTAKINGS .

IN ACCORDANCE WITH THE GENERAL DECISIONS ESTABLISHING THE FINANCIAL ARRANGEMENT FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP, SCRAP PURCHASED AND CONSUMED BY UNDERTAKINGS CARRYING OUT ACTIVITIES IN THE FIELD OF IRON AND STEEL IS SUBJECT TO EQUALIZATION .

ALTHOUGH GENERAL DECISION NO 22/54 REFERS TO THE CONCEPT OF PURCHASE, THIS REFERENCE IS EXPLAINED IN PARTICULAR BY THE NEED TO DISTINGUISH ASSESSABLE SCRAP FROM THAT EXEMPT FROM THE EQUALIZATION LEVY, THAT IS, FROM SCRAP WHICH HAS NOT UNDERGONE ANY CHANGE OF OWNERSHIP ( USING THIS TERM IN A STRICTLY LEGAL SENSE ) BETWEEN ITS PRODUCTION AND ITS UTILIZATION . FURTHERMORE, FOR THE PURPOSE OF THE EQUALIZATION SCHEME, THE CONCEPT OF AN UNDERTAKING MAY BE IDENTIFIED WITH THAT OF A NATURAL OR LEGAL PERSON .

IT IS ESTABLISHED THAT THE FERROUS SCRAP IN DISPUTE WAS NOT PRODUCED BY THE APPLICANT WHICH IS A COMPANY ENTIRELY DISTINCT FROM THE METALSIDER UNDERTAKING .

THIS BEING SO, IT MUST BE REGARDED AS BOUGHT SCRAP AND AS SUCH SUBJECT TO THE EQUALIZATION LEVY .

THE APPLICANT FURTHER MAINTAINS THAT THE FERROUS SCRAP IN QUESTION SHOULD HAVE BEEN EXEMPT FROM EQUALIZATION ON THE GROUND THAT IT CONSTITUTES STOCKS, WITHIN THE MEANING OF ARTICLE 4 OF GENERAL DECISION NO 2/57 .

P.155

THE EFFECT OF THIS ARTICLE IS NOT TO EXEMPT SCRAP PURCHASED AND CONSUMED BY USERS FROM PAYMENT OF THE EQUALIZATION CONTRIBUTIONS .

ITS PURPOSE IS MERELY TO AVOID A SECOND ASSESSMENT BEING MADE AT THE MOMENT THEY ARE PUT IN THE FURNACE OF THOSE QUANTITIES OF FERROUS SCRAP WHICH ARE NOT USED FROM DAY TO DAY BUT ARE ADDED TO STOCK .

IN THIS INSTANCE, THE FERROUS SCRAP IN DISPUTE WAS PURCHASED AND CONSUMED BY THE APPLICANT .

MOREOVER, THE APPLICANT DESCRIBED THIS SCRAP AS STOCKS AS AT THE FIRST DAY OF THE MONTH, WITHOUT PROVIDING ANY EVIDENCE FOR THIS DESCRIPTION .

THE APPLICANT CONTENDS FINALLY THAT THE EXEMPTION GRANTED TO UNDERTAKINGS IN EXISTENCE ON THE ENTRY INTO FORCE OF THE FINANCIAL SCHEME AS REGARDS THE CONSUMPTION OF FERROUS SCRAP DRAWN FROM STOCKS AVAILABLE AT THAT DATE SHOULD ALSO HAVE BEEN GRANTED TO UNDERTAKINGS WHICH, LIKE THE APPLICANT, COMMENCED THEIR ACTIVITIES AFTER THE ENTRY INTO FORCE OF THIS SCHEME, AS REGARDS THE CONSUMPTION OF STOCKS AVAILABLE THE FIRST TIME THE FURNACE WAS CHARGED; BY SUBJECTING THE FERROUS SCRAP IN QUESTION TO THE EQUALIZATION LEVY THE HIGH AUTHORITY INFRINGED THE PRINCIPLE OF NON - DISCRIMINATION, TO THE DETRIMENT OF THE APPLICANT .

UNDERTAKINGS IN EXISTENCE BEFORE THE ENTRY INTO FORCE OF THE FINANCIAL SCHEME PURCHASED FERROUS SCRAP AT THE MARKET PRICE, WHICH WAS UNAFFECTED BY EQUALIZATION, WHEREAS THOSE UNDERTAKINGS WHICH PURCHASED THE SAME PRODUCT AFTER THAT DATE BENEFITED FROM THE EFFECT OF THIS SCHEME UPON MARKET PRICES .

THE APPLICANT HAS OFFERED NO SPECIFIC EVIDENCE THAT THE FERROUS SCRAP IN DISPUTE WAS TAKEN FROM STOCKS HELD BY THE METALSIDER UNDERTAKING PRIOR TO THE ENTRY INTO FORCE OF THE FINANCIAL SCHEME .

IN THESE CIRCUMSTANCES, AS THE FACTUAL SITUATIONS OF THE APPLICANT UNDERTAKING AND OF OTHER UNDERTAKINGS WHICH HAVE BENEFITED FROM THIS EXEMPTION ARE NOT COMPARABLE, THE COMPLAINT OF DISCRIMINATION MUST BE DISMISSED .

FOR ALL THESE REASONS THE APPLICATION MUST BE REGARDED AS UNFOUNDED .

Decision on costs

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

IN THIS INSTANCE, THE APPLICANT HAS FAILED IN ITS APPLICATION .

IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES APPLICATION 50/65 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .