Judgment of the Court of 3 March 1971. - Acciaierie e Ferriere Riva S.p.a. v Commission of the European Communities. - Case 2-70.



European Court reports 1971 Page 00097

Danish special edition Page 00023

Greek special edition Page 00701

Portuguese special edition Page 00033



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 - FUNCTIONING - EQUALITY OF TREATMENT OF CONTRIBUTORS - OBLIGATIONS OF THE COMMISSION

( ECSC TREATY, ARTICLE 53 )

2 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - CONTRIBUTIONS - LIMITATION PERIOD - INCONTESTABILITY UNTIL CLOSURE OF THE FINAL ACCOUNT

( EEC TREATY, ARTICLE 53 )

Summary

1 . IN THE COMMON FINANCIAL ARRANGEMENTS RELATING TO THE EQUALIZATION OF FERROUS SCRAP, WHICH ARE BASED ON A STRICT INTERDEPENDENCE OF THE PAYMENTS MADE BY EACH OF THE PARTICIPANTS, ABOVE ALL EQUALITY OF TREATMENT BETWEEN CONTRIBUTORS MUST BE ENSURED BY ELIMINATING ALL POSSIBILITY OF DISCRIMINATION BETWEEN THEM .

THE COMMISSION THEREFORE HAS THE RIGHT AND THE DUTY, IN THE VERY INTEREST OF THE CONTRIBUTORS, TO SEE THAT THIS SCHEME ALWAYS OPERATES ON JUST PRINCIPLES, WHICH ARE BOTH LEGALLY AND FACTUALLY SOUND .

2 . THE ABSENCE OF PROVISIONS RELATING TO THE BARRING BY TIME OF THE POWERS OF ORGANIZATIONS COMPETENT TO DRAW UP ESTIMATES ON THEIR OWN AUTHORITY OF THE QUANTITIES AND PERIODS FOR WHICH UNDERTAKINGS ARE SUBJECT TO THE DUTY TO CONTRIBUTE TO THE EQUALIZATION SCHEME IS EXPLAINED BY THE DESIRE OF THE LEGISLATURE THAT IN THIS RESPECT THE PRINCIPLE OF DISTRIBUTIVE JUSTICE SHOULD PREVAIL OVER THAT OF LEGAL CERTAINTY .

IN FACT, THE VERY OPERATION OF THIS SCHEME IMPLIES THAT THE VERIFICATION OF COSTS, ON THE ONE HAND, AND OF THE BASIS OF CONTRIBUTIONS, ON THE OTHER, ARE ONLY CARRIED OUT A POSTERIORI AND MAY BE AMENDED UNTIL THE CLOSURE OF THE ACCOUNTS OF THE SCHEME .

( CF . PARAGRAPH 6, SUMMARY, JUDGMENT OF 13 JULY 1965 IN CASE 111/63, ( 1965 ) ECR 677 ).

Parties

IN CASE 2/70

ACCIAIERIE E FERRIERE RIVA S . P . A ., HAVING ITS REGISTERED OFFICE AT 9 VIA DEI CIGNOLI, MILAN, REPRESENTED BY ANGELO COLOMBO OF THE MILAN BAR AND ERNEST ARENDT OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 RUE PHILIPPE-II, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ANTONIO ABATE, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF TWO INDIVIDUAL DECISIONS OF 4 DECEMBER 1969 ADDRESSED TO THE APPLICANT AND FIXING, FIRST, THE APPLICANT' S TONNAGE OF FERROUS SCRAP ASSESSABLE UNDER THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH AND, SECONDLY, THE AMOUNT OWED BY THE APPLICANT ON THE BASIS OF THE SAID TONNAGE OF FERROUS SCRAP, NAMELY, THE SUM OF LIT . 275 005 963,

Grounds

1 BY APPLICATION DATED 12 JANUARY 1970, LODGED AT THE REGISTRY ON 14 JANUARY 1970, THE UNDERTAKING ACCIAIERIE E FERRIERE RIVA S . P . A . HAS BROUGHT BEFORE THE COURT AN APPLICATION FOR THE ANNULMENT, UNDER ARTICLE 33 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, OF DECISIONS NOS 1166 AND 1167 OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 4 DECEMBER 1969 IMPLEMENTING THE PROVISIONS RELATING TO THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH AND DETERMINING, IN RESPECT OF THE UNDERTAKING RIVA AND CO . S . A . S ., WHICH WAS TAKEN OVER BY THE APPLICANT, THE TONNAGE OF BOUGHT SCRAP ASSESSABLE TO EQUALIZATION CONTRIBUTIONS AND THE SUMS PAYABLE .

2 SINCE THE DECISIONS WERE NOTIFIED TO THE APPLICANT ON 13 DECEMBER 1969 THE APPLICATION WAS LODGED WITHIN THE PRESCRIBED PERIOD .

3 THE APPLICANT :

( A ) INVOKING, FIRST OF ALL, THE PRINCIPLES OF RES JUDICATA AND LIMITATION OF ACTIONS OBJECTS TO THE FACT THAT THE DECISIONS IN DISPUTE HAVE, IN REVOKING DECISIONS OF THE HIGH AUTHORITY OF 18 DECEMBER 1963, EXTENDED THE REFERENCE PERIOD 1 NOVEMBER 1957 TO 30 NOVEMBER 1958 TO A PERIOD FROM MARCH 1957 TO 30 NOVEMBER 1958 AND THEREBY INCREASED THE TONNAGE FORMING THE BASIS OF ITS CONTRIBUTION FROM 25 721 TO 45 740 METRIC TONS OF BOUGHT SCRAP AND THE CORRESPONDING DEBT FROM LIT . 33 190 021 TO LIT . 275 005 363;

( B ) COMPLAINS THAT THE FIGURES ADOPTED IN ITS CASE BY THE COMMISSION DO NOT CORRESPOND TO REALITY AND PROPOSES TO SHOW IN DETAIL THAT THE PRESUMPTIONS ON WHICH THE CONTESTED DECISIONS WERE BASED ARE UNFOUNDED .

THE SUBMISSION RELATING TO THE PRINCIPLE OF RES JUDICATA

4 BY THE CONTESTED DECISION, NO 1166, THE COMMISSION REVOKED THE DECISION OF THE HIGH AUTHORITY OF 18 DECEMBER 1963 FIXING THE AMOUNT OF SCRAP SERVING AS THE BASIS FOR EQUALIZATION CONTRIBUTIONS AT 25 721 METRIC TONS AND REPLACED IT BY A FRESH ASSESSMENT OF 45 740 METRIC TONS .

5 IT EMERGES FROM THE RECITALS IN THE PREAMBLE TO THE CONTESTED DECISION THAT IT IS BASED ESSENTIALLY ON TWO CONSIDERATIONS; FIRST, FRESH CRITERIA OF TECHNICAL EVALUATION ENABLED THE QUANTITIES OF SCRAP ASSESSABLE TO CONTRIBUTIONS WHICH WERE ADOPTED FOR THE PERIOD REFERRED TO IN THE DECISION OF 18 DECEMBER 1963 ( 1 NOVEMBER 1957 TO 30 NOVEMBER 1958 ) TO BE CORRECTED TO THE ADVANTAGE OF THE UNDERTAKING; SECONDLY, IT WAS ESTABLISHED THAT, CONTRARY TO THE DATA ON WHICH THAT PREVIOUS DECISION HAD BEEN BASED, THE UNDERTAKING DID NOT COMMENCE STEEL PRODUCTION ON 1 JANUARY 1958 BUT AS EARLY AS 10 MARCH 1957 .

6 THE APPLICANT, INVOKING WHAT IT CALLS THE " PRINCIPLE OF RES JUDICATA " CONTESTS, FIRST OF ALL, THE COMMISSION' S POWER TO REVOKE ITS PREVIOUS DECISIONS AND TO MODIFY THEIR CONTENT . SINCE THE APPLICANT DID NOT TAKE ADVANTAGE OF ITS RIGHT OF APPEAL AGAINST THE DECISION OF 18 DECEMBER 1963, THE LATTER BECAME FINAL, NOT ONLY IN RELATION TO THE UNDERTAKING CONCERNED, BUT ALSO IN RELATION TO THE COMMUNITY AUTHORITIES .

7 IN COMMON FINANCIAL ARRANGEMENTS SUCH AS THOSE FOR THE EQUALIZATION OF FERROUS SCRAP WHICH ARE BASED ON THE STRICT INTERDEPENDENCE OF THE PAYMENTS MADE BY EACH OF THE PARTICIPANTS, ABOVE ALL EQUALITY OF TREATMENT BETWEEN CONTRIBUTIONS MUST BE ENSURED BY ELIMINATING ALL POSSIBILITY OF DISCRIMINATION BETWEEN THEM . THE COMMISSION THEREFORE HAD THE RIGHT AND THE DUTY, IN THE VERY INTEREST OF THE CONTRIBUTORS TO THE EQUALIZATION SCHEME, TO SEE THAT THE LATTER ALWAYS OPERATED ON JUST PRINCIPLES, WHICH WERE BOTH LEGALLY AND FACTUALLY SOUND . IN CONSEQUENCE, IT WAS ITS DUTY TO RECTIFY ALL LEGAL OR FACTUAL ERRORS AND ALL ASSESSMENTS WHICH EXPERIENCE SHOWED TO BE INACCURATE OR INCOMPLETE .

8 IN ADDITION, ALTHOUGH IT IS TRUE THAT THE APPLICANT DID NOT BRING LEGAL PROCEEDINGS AGAINST THE DECISION OF 1963, IT DOES HOWEVER EMERGE FROM THE FILE THAT IT REQUESTED THE COMPETENT AUTHORITY TO TAKE ACCOUNT OF SUPPLEMENTARY INFORMATION ON THE RUNNING-IN PERIOD OF THE ELECTRIC FURNACES . THE OFFICERS CONCERNED AGREED TO HAVE THE FACTS PUT FORWARD BY THE APPLICANT EXAMINED BY AN EXPERT AND REQUESTED THE UNDERTAKING TO SUPPLY THE DOCUMENTS NECESSARY TO DETERMINE ITS CONSUMPTION OF ELECTRIC POWER AND IT WAS PRECISELY WHEN THIS EXPERT INQUIRY WAS MADE THAT THE FRESH DATA ON THE COMMENCEMENT OF THE UNDERTAKING' S STEEL PRODUCTION, ON WHICH THE CONTESTED DECISION IS BASED, EMERGED .

9 HAVING ITSELF REQUESTED A FURTHER EXAMINATION OF THE DATA ON WHICH THE DECISION OF 1963 WAS BASED, IT IS NOT FOR THE APPLICANT TO CHALLENGE THE RESULTS OF THE NEW EXAMINATION BY INVOKING THE PRINCIPLES OF LEGAL CERTAINTY . THE SUBMISSION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

THE SUBMISSION RELATING TO THE LIMITATION PERIOD

10 THE APPLICANT ALLEGES SECONDLY THAT THE POWER TO IMPOSE ON IT THE OBLIGATION TO CONTRIBUTE TO THE EQUALIZATION SCHEME HAS LAPSED BY PRESCRIPTION . IN THIS CONNEXION, IT RELIES ON THE FACT THAT EIGHT YEARS PASSED BETWEEN THE END OF THE PERIOD IN DISPUTE, FROM 10 MARCH TO 31 DECEMBER 1957, AND THE FIRST OFFICIAL NOTICE THAT IT WOULD HAVE TO PAY CONTRIBUTIONS IN RESPECT OF THAT PERIOD, NAMELY THE LETTER OF 23 DECEMBER 1965 .

11 WHILST RECOGNIZING THAT THE WRITTEN RULES WHICH GOVERN THE RELATIONSHIP BETWEEN THE COMMUNITY AND UNDERTAKINGS AS REGARDS EQUALIZATION DO NOT CONTAIN ANY SPECIFIC PROVISION ON THE LIMITATION OF ACTIONS, IT CONSIDERS NEVERTHELESS THAT IN THIS RESPECT THE LIMITATION OF ACTIONS DERIVES FROM THE GENERAL PRINCIPLES OF LAW WHICH GOVERN ALL RELATIONSHIPS UNDER THE COMMUNITY LEGAL SYSTEM . IN THIS CONNEXION, BOTH THE NATIONAL PROVISIONS ON LIMITATION OF ACTIONS AND THOSE EXACTED BY GENERAL DECISION NO 5/65 OF THE HIGH AUTHORITY OF 17 MARCH 1965 ON THE BARRING BY TIME OF CLAIMS IN RESPECT OF LEVIES PROVIDED FOR IN ARTICLES 49 AND 50 OF THE ECSC TREATY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1965-1966, P . 38 ) ARE APPLICABLE BY ANALOGY .

12 THE APPLICANT ALSO RELIES ON ARTICLE 2 OF THE GENERAL DECISION NO 14/64 OF THE HIGH AUTHORITY OF 8 JULY 1964 ON BUSINESS BOOKS AND ACCOUNTING DOCUMENTS WHICH UNDERTAKINGS MUST PRODUCE FOR INSPECTION BY OFFICIALS OR AGENTS OF THE HIGH AUTHORITY CARRYING OUT CHECKS OR VERIFICATIONS AS REGARDS PRICES . SINCE THIS PROVISION REQUIRES UNDERTAKINGS TO BE ABLE TO PRODUCE THEIR DOCUMENTS FOR THE CURRENT CALENDAR YEAR AND FOR THE FIVE PRECEDING CALENDAR YEARS THE APPLICANT CLAIMS THAT IT FOLLOWS THAT THE POWERS OF CHECKING AND VERIFICATION CAN BE EXERCISED ONLY DURING THIS SAME PERIOD .

13 THE ABSENCE OF PROVISIONS RELATING TO THE BARRING BY TIME OF THE POWERS OF ORGANIZATIONS COMPETENT TO DRAW UP ESTIMATES ON THEIR OWN AUTHORITY OF THE QUANTITIES AND PERIODS FOR WHICH UNDERTAKINGS ARE SUBJECT TO THE DUTY TO CONTRIBUTE TO THE EQUALIZATION SCHEME IS EXPLAINED BY THE DESIRE OF THE LEGISLATURE THAT IN THIS RESPECT THE PRINCIPLE OF DISTRIBUTIVE JUSTICE SHOULD PREVAIL OVER THAT OF LEGAL CERTAINTY . IN FACT, THE VERY NATURE OF THE OPERATION OF AN EQUALIZATION SCHEME SUCH AS THAT IN QUESTION IMPLIES THAT THE VERIFICATION OF COSTS, ON THE ONE HAND, AND OF THE BASIS OF CONTRIBUTIONS, ON THE OTHER, CAN ONLY BE CARRIED OUT A POSTERIORI AND MUST BE CAPABLE OF AMENDMENT UNTIL THE CLOSURE OF THE ACCOUNTS OF THE SCHEME .

14 IT IS ONLY BY GENERAL DECISION NO 19/65 OF THE HIGH AUTHORITY RELATING TO THE DRAWING UP OF FINAL STATEMENTS FOR PRICE EQUALIZATION IN REGARD TO IMPORTED SCRAP AND SCRAP TREATED AS SUCH ( OFFICIAL JOURNAL 1965, P . 3290 ) THAT A FINAL CLOSURE OF THE ACCOUNTS WAS ENVISAGED, WITH THE RESULT THAT THOSE CONTRIBUTING COULD CONSIDER THAT THE VERIFICATION AND ACCOUNTING OPERATIONS WERE COMING TO AN END . HOWEVER, THE APPLICANT ITSELF ADMITS THAT IT WAS INFORMED OF THE ATTITUDE ADOPTED WITH REGARD TO IT BY THE OFFICERS CONCERNED BEFORE THE PUBLICATION OF THIS DECISION . CONSEQUENTLY, THE SUBMISSION MUST BE DISMISSED .

THE SUBSTANCE OF THE CASE

15 IN THE ORIGINATING APPLICATION THE APPLICANT HAS ALLEGED THAT THE FIGURES ADOPTED BY THE CONTESTED DECISIONS DO NOT CORRESPOND TO REALITY . IT PROPOSED TO SHOW THAT THERE WAS NO BASIS FOR THE PRESUMPTION ADOPTED IN THE DECISIONS AT ISSUE WHEREBY THE PERIOD FROM 10 MARCH TO 31 DECEMBER 1957 WAS CONSIDERED AS A PERIOD OF FULL PRODUCTION .

16 IT ALLEGES THAT THIS WAS A PERIOD OF TESTING OF THE PLANT AND EXPERIMENTATION, FOR WHICH A HEAVY CONSUMPTION OF ELECTRIC POWER, THE BASIC FACTOR IN THE DETERMINATION BY THE INSTITUTION ON ITS OWN AUTHORITY OF THE BASIS OF CONTRIBUTION, YIELDED ALMOST NO PRODUCTION . IN ITS STATEMENT OF DEFENCE, THE DEFENDANT HAS EXPLAINED THE CALCULATIONS ON WHICH THE CONTESTED DECISION IS BASED AND HAS DECLARED THAT IT ADOPTED IN RESPECT OF THE FIRST THREE MONTHS AT ISSUE CRITERIA SUITED TO THE SPECIAL CHARACTERISTICS OF A RUNNING-IN PERIOD .

17 NEITHER IN ITS REPLY NOR DURING THE ORAL PROCEDURE DID THE APPLICANT CONTEST THE EXPLANATION PUT FORWARD BY THE DEFENDANT . IT ALSO FAILED TO DEVELOP ITS COMPLAINTS AS IT HAD PROPOSED TO DO IN ITS ORIGINATING APPLICATION . IN THESE CIRCUMSTANCES, SINCE THE APPLICANT HAS FAILED TO ESTABLISH THAT ITS APPLICATION IS WELL-FOUNDED, IT MUST ACCORDINGLY BE DISMISSED .

Decision on costs

18 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANT HAS FAILED IN ITS SUBMISSIONS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .