Judgment of the Court of 9 June 1964. - Acciaierie Fonderie Ferriere di Modena and others v High Authority of the European Coal and Steel Community. - Joined cases 55/63 to 59/63 and 61/63 to 63/63.



European Court reports

French edition Page 00413

Dutch edition Page 00441

German edition Page 00455

Italian edition Page 00416

English special edition Page 00211

Danish special edition Page 00485

Greek special edition Page 01103

Portuguese special edition Page 00451



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . MEASURES ADOPTED BY INSTITUTIONS OF THE COMMUNITY - DECISIONS OF THE HIGH AUTHORITY - GENERAL OR INDIVIDUAL NATURE - CRITERIA FOR DISTINGUISHING BETWEEN THEM

( ECSC TREATY, ARTICLE 33 )

2 . PROCEDURE - ACTION AGAINST A GENERAL DECISION OF THE HIGH AUTHORITY - UNDERTAKINGS AS APPLICANTS - MISUSE OF POWERS AFFECTING THE APPLICANT - ADMISSIBILITY

( ECSC TREATY, ARTICLE 33 )

3 . PROCEDURE - ACTION AGAINST A GENERAL DECISION OF THE HIGH AUTHORITY - UNDERTAKINGS AS APPLICANTS - MISUSE OF POWERS AFFECTING THE APPLICANT - CONCEPT

( ECSC TREATY, ARTICLE 33 )

Summary

1 . IN ORDER TO ASCERTAIN WHETHER A DECISION OF THE HIGH AUTHORITY IS GENERAL OR INDIVIDUAL ITS CONTENT MUST IN PARTICULAR BE EXAMINED TO ESTABLISH WHETHER ITS PROVISIONS AFFECT DIRECTLY AND INDIVIDUALLY THE PERSONS BOUND BY THEM .

THE DETERMINATION OF THE LEGAL NATURE OF A MEASURE EMANATING FROM THE COUNCIL OR THE COMMISSION DOES NOT DEPEND ONLY ON ITS OFFICIAL DESIGNATION, BUT SHOULD FIRST TAKE INTO ACCOUNT ITS OBJECT AND CONTENT .

CF . JOINED CASES 16 AND 17/62, JOINED CASES 19 AND 22/62, PARA . 4 OF SUMMARY, REC . 1962, PP . 906 AND 947 .

2 . IN THE CASE OF AN ACTION BROUGHT AGAINST A GENERAL DECISION THE GROUND OF MISUSE OF POWERS IS ONLY ADMISSIBLE IF THE APPLICANT SHOWS THAT THERE HAS BEEN A MISUSE OF POWER ' AFFECTING ' IT BY GIVING CONVINCING REASONS WHY THE ADOPTION OF THE CONTESTED GENERAL DECISION IS DIRECTLY PREJUDICIAL TO ITS INTERESTS .

3 . IF A MEASURE AFFECTS ALL THE PERSONS CONCERNED IN THE SAME DEGREE IT IS IMPOSSIBLE TO MAINTAIN THAT IT DIRECTLY DAMAGES THE INDIVIDUAL INTERESTS OF EACH APPLICANT AND THAT IT IS THEREFORE VITIATED BY A MISUSE OF POWERS ' AFFECTING THEM '.

Parties

IN JOINED CASES 55 TO 59/63 AND 61 TO 63/63

55/63 - ACCIAIERIE FONDERIE FERRIERE DI MODENA, HAVING ITS REGISTERED OFFICE IN MODENA, REPRESENTED BY ITS DIRECTOR, ALCESTE GIACOMAZZI, ENGINEER,

56/63 - ACCIAIERIE E FERRIERE L . BOSIO, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN SOREZZO ( BRESCIA ), REPRESENTED BY ITS DIRECTOR, CARLO ANTONINI,

57/63 - FERRIERE E ACCIAIERIE NAPOLETANE, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN NAPLES, REPRESENTED BY GIOVANNI SCOTTO, CHAIRMAN OF THE BOARD OF DIRECTORS,

58/63 - SIDERURGICA SARDA, HAVING ITS REGISTERED OFFICE IN CAGLIARI, REPRESENTED BY ITS SOLE DIRECTOR, GIULIO STEFANO .

59/63 - SIDERAL, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE AT S . ZENO NAVIGLIO ( BRESCIA ), REPRESENTED BY ITS DIRECTOR, BRUNO ZANARDINI,

61/63 - I.L.F.O ., HAVING ITS REGISTERED OFFICE IN ODOLO ( BRESCIA ), REPRESENTED BY DANTE DONINI, CHAIRMAN OF THE BOARD OF DIRECTORS,

62/63 - O.R.I . MARTIN, HAVING ITS REGISTERED OFFICE IN BRESCIA, REPRESENTED BY DR . ROBERTO DE MIRANDA, CHAIRMAN OF THE BOARD OF DIRECTORS,

63/63 - STEFANA FRATELLI FU GIROLAMO, HAVING ITS REGISTERED OFFICE IN NAVE ( BRESCIA ), REPRESENTED BY ITS DIRECTOR, GIULIO STEFANA, ENGINEER,

ALL ASSISTED BY PIETRO GASPARRI, PROFESSOR AT THE UNIVERSITY OF PERUGIA AND ADVOCATE OF THE CORTE DI CASSAZIONE, THE APPLICANT IN CASE 57/63 BEING ASSISTED IN ADDITION BY CARLO SELVAGGI, ADVOCATE AT THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF CAMILLE WAGNER, 31 RUE DES ROSES, APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITALO TELCHINI, ACTING AS AGENT, ASSISTED IN CASE 57/63 BY RODOLFO DE NOVA, DEAN OF THE FACULTY OF LAW AT THE UNIVERSITY OF PAVIA, AND IN THE REMAINING CASES BY FELICIANO BENVENUTI, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION :

- FOR THE ANNULMENT OF DECISION N . 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 AND OF THE SUBSEQUENT IMPLEMENTING MEASURES;

- ALTERNATIVELY ( EXCEPT IN CASE 57/63 ) FOR A DECLARATION THAT THERE IS A CLAIM FOR DAMAGES WITHIN THE MEANING OF ARTICLE 40 OF THE TREATY ARISING OUT OF WRONGFUL ACTS OR OMISSIONS BY SERVANTS OF THE HIGH AUTHORITY,

Grounds

A - THE APPLICATION FOR ANNULMENT

1 . DECISION N . 7/63

ADMISSIBILITY

( A ) THE DEFENDANT SUBMITS THAT DECISION N . 7/63 IS A GENERAL DECISION AND CAN THEREFORE ONLY BE CONTESTED BY THE APPLICANTS IF THEY CAN MAKE OUT A PRIMA FACIE CASE OF MISUSE OF POWERS AFFECTING THEM .

THE APPLICANTS, ON THE OTHER HAND, ARGUE THAT DECISION N . 7/63 IS A COLLECTION OF INDIVIDUAL DECISIONS CONCERNING UNDERTAKINGS SUBJECT TO THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF FERROUS SCRAP AND THAT IT CAN, THEREFORE, BE CONTESTED BY EACH OF THE UNDERTAKINGS UPON ALL THE GROUNDS LAID DOWN BY THE FIRST PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY .

IN SUPPORT OF THIS ARGUMENT THE APPLICANTS SUBMIT THAT THE CONTESTED DECISION IS DIRECTED TO A SPECIFIC CATEGORY OF ADDRESSEES, THAT IS, UNDERTAKINGS WHICH UTILIZE FERROUS SCRAP, AND THAT, INSTEAD OF CONTAINING ABSTRACT RULES FOR FACTUAL SITUATIONS WHICH MAY ARISE IN THE FUTURE, IT IS SOLELY INTENDED TO REGULATE FACTS AND SITUATIONS WHICH HAVE ARISEN IN THE PAST, NAMELY THE PURCHASE OF SCRAP, BY A GIVEN NUMBER OF UNDERTAKINGS .

IN ORDER TO ASCERTAIN WHETHER A DECISION OF THE HIGH AUTHORITY IS GENERAL OR INDIVIDUAL ITS CONTENT MUST IN PARTICULAR BE EXAMINED TO ESTABLISH WHETHER ITS PROVISIONS ARE LIKELY TO AFFECT DIRECTLY AND INDIVIDUALLY THE SITUATION OF THE PERSONS TO WHOM THEY APPLY .

IT EMERGES FROM THE CONTENT OF DECISION N . 7/63 THAT THE HIGH AUTHORITY IS NOT ESTABLISHING A DEFINITIVE STATEMENT OF ACCOUNT OF THE AMOUNTS PAYABLE BY EACH UNDERTAKING BY WAY OF EQUALIZATION CONTRIBUTIONS, SINCE IT IS ONLY CONCERNED WITH THE DETERMINATION OF THE GENERAL FACTORS NECESSARY FOR MAKING A PROVISIONAL CALCULATION OF THE EQUALIZATION RATE ON THE BASIS OF DATA WHICH ARE KNOWN AND IN PART STILL DISPUTED .

FOR THE DETERMINATION OF THESE FACTORS IT RELIED CHIEFLY ON THE TOTAL CONSUMPTION OF FERROUS SCRAP IN THE COMMON MARKET WITHOUT TAKING INTO ACCOUNT THE AMOUNTS ACTUALLY USED BY EACH UNDERTAKING .

THEREFORE, SO FAR AS ITS CONTENT IS CONCERNED, DECISION N . 7/63 DOES NOT INDIVIDUALLY AND DIRECTLY AFFECT THE LEGAL POSITION OF UNDERTAKINGS USING FERROUS SCRAP .

( B ) UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY AN APPLICATION BROUGHT BY UNDERTAKINGS AGAINST A GENERAL DECISION OF THE HIGH AUTHORITY IS ONLY ADMISSIBLE IF THEY CAN MAKE OUT A PRIMA FACIE CASE OF A MISUSE OF POWERS AFFECTING THEM . THEREFORE THE GROUNDS OTHER THAN MISUSE OF POWERS, PUT FORWARD IN THIS CASE BY THE APPLICANTS, ARE INADMISSIBLE .

SO FAR AS THE GROUND OF MISUSE OF POWERS IS CONCERNED IT IS NOT ADMISSIBLE IN AS MUCH AS IT IS BASED ON THE SAME ARGUMENT AS IS PUT FORWARD IN SUPPORT OF THE OTHER GROUNDS OF ACTION MENTIONED IN THE FIRST PARAGRAPH OF ARTICLE 33 OF THE TREATY .

IN ADDITION THIS GROUND IS ONLY ADMISSIBLE, IN AN ACTION BROUGHT AGAINST A GENERAL DECISION, IF THE APPLICANT SHOWS THAT THERE HAS BEEN A MISUSE OF POWERS ' AFFECTING ' IT, BY GIVING CONVINCING REASONS WHY THE ADOPTION OF THE CONTESTED DECISION IS DIRECTLY PREJUDICIAL TO ITS INTERESTS . IN THIS CASE, AS THE CONTESTED DECISION AFFECTS ALL THE APPLICANTS IN THE SAME DEGREE, IT IS IMPOSSIBLE TO MAINTAIN THAT IT DIRECTLY DAMAGES THE INDIVIDUAL INTERESTS OF EACH OF THEM AND THAT IT IS VITIATED BY A MISUSE OF POWERS ' AFFECTING THEM '. IT IS THEREFORE CLEAR THAT THE MISUSE OF POWERS HAS NOT BEEN MADE OUT .

THEREFORE THE PRESENT APPLICATIONS ARE INADMISSIBLE IN SO FAR AS THEY CHALLENGE DECISION N . 7/63 .

2 . THE LETTERS OF 8 APRIL 1963

ADMISSIBILITY

THE LETTERS REFERRED TO ABOVE, IN SPITE OF THEIR APPARENTLY PEREMPTORY STYLE, CANNOT BE REGARDED AS DECISIONS WITHIN THE MEANING OF THE TREATY .

MOREOVER THE APPLICANTS THEMSELVES ADMIT THAT THE LETTERS OF 8 APRIL 1963 DO NOT HAVE THE CHARACTERISTICS OF A DECISION WHICH CAN BE CONTESTED UNDER ARTICLE 33 OF THE TREATY .

FOR THE REASONS MENTIONED UNDER 1 ABOVE THE APPLICATIONS BY THE APPLICANTS AGAINST THE LETTERS OF 8 APRIL 1963 ARE INADMISSIBLE .

B - THE CLAIM FOR DAMAGES

WITH THE EXCEPTION OF THE APPLICANT IN CASE 57/63, THE OTHER APPLICANTS ALSO PUT FORWARD CLAIMS IN THE ALTERNATIVE FOR DAMAGES; THEY SUBMIT IN RESPECT OF THIS CLAIM THAT, EVEN IF THE COURT WERE TO HOLD THAT DECISION N . 7/63 IS VALID, IT SHOULD FIND THAT THE HIGH AUTHORITY HAS COMMITTED A WRONGFUL ACT OR OMISSION IN THE MANAGEMENT AND LIQUIDATION OF THE FERROUS SCRAP EQUALIZATION SCHEME .

AS HAS ALREADY BEEN STATED, THE FINAL STATEMENT OF ACCOUNT OF ALL THE CREDITS AND DEBITS OF EACH UNDERTAKING SUBJECT TO THE FINANCIAL ARRANGEMENTS HAS NOT YET BEEN DRAWN UP BY THE HIGH AUTHORITY AND DECISION N . 7/63, FAR FROM STATING THE FINAL FINANCIAL POSITION OF EACH UNDERTAKING IN THE LIQUIDATION OF THE SAID SCHEME, ATTEMPTS TO FACILITATE THIS LIQUIDATION BY CONFINING ITSELF TO THE DETERMINATION OF THE FACTORS FOR COMPUTING THE PROVISIONAL EQUALIZATION RATE . NOR DOES IT NOT IMPOSE ANY LEGAL OBLIGATION ON THESE UNDERTAKINGS .

IN THESE CIRCUMSTANCES IT IS IMPOSSIBLE TO KNOW AT THE PRESENT TIME WHETHER AND TO WHAT EXTENT THE APPLICANTS WILL SUFFER ANY DAMAGE ARISING OUT OF THE LIQUIDATION OF THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF FERROUS SCRAP AND OUT OF THE FINAL STATEMENT OF ACCOUNT OF THE CREDITS AND DEBITS OF EACH UNDERTAKING, AS DECISION N . 7/63 PROVIDES FOR A POSSIBLE VARIATION OR CORRECTION OF THE CALCULATIONS UPON WHICH IT IS BASED .

MOREOVER THE APPLICANTS THEMSELVES HAVE NOT PRODUCED TO THE COURT ANY FACTUAL EVIDENCE TO ENABLE IT TO ASSESS THE DAMAGE IN QUESTION .

FOR ALL THESE REASONS THE CLAIM FOR DAMAGES FAILS .

Decision on costs

HAVING REGARD TO THE COMPLEXITY OF THE QUESTIONS CONCERNING THE ADMISSIBILITY OF THE APPLICATIONS MADE AGAINST DECISION N . 7/63, THE COURT, HAVING REGARD TO THE FIRST PARAGRAPH OF ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE, ADJUDGES THAT EACH PARTY SHALL BEAR ITS OWN COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS AS INADMISSIBLE TO THE EXTENT TO WHICH THEY SEEK THE ANNULMENT OF DECISION N . 7/63 AND OF THE LETTERS OF 8 APRIL 1963;

2 . DISMISSES THE APPLICATIONS AS UNFOUNDED TO THE EXTENT TO WHICH THEY SEEK PAYMENT OF DAMAGES;

3 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .