Judgment of the Court of 13 July 1965. - Mannesmann AG v High Authority of the ECSC. - Case 37-64.



European Court reports

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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

++++

1 . MEASURES ADOPTED BY COMMUNITY INSTITUTIONS - DECISION OF THE HIGH AUTHORITY TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL - AMENDMENT - POWERS OF THE HIGH AUTHORITY

2 . MEASURES ADOPTED BY COMMUNITY INSTITUTIONS - VALIDITY - CONDITIONS OF ESSENTIAL PROCEDURAL REQUIREMENTS - PROVISIONS RELATING THERETO - PROHIBITION ON THE EXTENSION OF THEIR APPLICATION

3 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - UNIT OF ACCOUNT - FUNCTION

( ECSC TREATY, ARTICLE 53 )

4 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - CONTRIBUTIONS - CALCULATION IN UNITS OF ACCOUNT - RATE OF EXCHANGE APPLICABLE DURING ACCOUNTING PERIODS

( ECSC TREATY, ARTICLE 53 )

5 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - DISCRIMINATORY RULES - AMENDMENT - ABSENCE OF VESTED RIGHTS

Summary

1 . CF . PARAGRAPH 4, SUMMARY, JUDGMENT IN CASE 111/63, ( 1965 ) ECR 677 .

THERE IS NO JUSTIFICATION FOR THE CONCLUSION THAT THE DECISIONS OF THE HIGH AUTHORITY TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL COULD ONLY BE AMENDED, EVEN IN THE CASE OF AMENDMENTS NOT AFFECTING THE BASIS OF SUCH DECISIONS, BY A NEW DECISION ALSO TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL .

*/ 663J0111 /*.

2 . CF . PARAGRAPH 5, SUMMARY, JUDGMENT IN CASE 111/63, ( 1965 ) ECR 677 .

A PROVISION WHICH LAYS DOWN THE ESSENTIAL PROCEDURAL REQUIREMENTS FOR THE VALIDITY OF CERTAIN DECISIONS MUST BE STRICTLY CONSTRUED .

*/ 663J0111 /*.

3 . CF . PARAGRAPH 7, SUMMARY, JUDGMENT IN CASE 111/63, ( 1965 ) ECR 677 .

IN THE FERROUS SCRAP EQUALIZATION SCHEME THE UNIT OF ACCOUNT IS NOT A CURRENCY DIFFERENT FROM NATIONAL CURRENCIES BUT IS MERELY AN ACCOUNTING DEVICE INTENDED TO FACILITATE THE FIXING OF A GENERAL EQUALIZATION PRICE AND THE UNIFORM AND EXPEDITIOUS CALCULATION OF EQUALIZATION PAYMENTS AND CONTRIBUTIONS .

*/ 663J0111 /*.

4 . CF . PARAGRAPH 8, SUMMARY, JUDGMENT IN CASE 111/63, ( 1965 ) ECR 677 .

IT IS NECESSARY TO FIX THE CONTRIBUTIONS TO BE PAID BY THE UNDERTAKINGS TO THE FERROUS SCRAP EQUALIZATION SCHEME ON THE BASIS OF THE PARITY OF THE UNIT OF ACCOUNT IN FORCE DURING THE VARIOUS ACCOUNTING PERIODS .

*/ 663J0111 /*.

5 . CF . PARAGRAPH 9, SUMMARY, JUDGMENT IN CASE 111/63, ( 1965 ) ECR 677 .

IN THE EQUALIZATION SCHEME, WHICH IS BASED ON A CLOSE INTERDEPENDENCE BETWEEN THE CONTRIBUTIONS OF EACH PARTICIPANT, IT IS PERMISSIBLE TO ALTER SITUATIONS CREATED BY RULES WHICH, IF THEY ARE ALLOWED TO CONTINUE IN FORCE, WOULD CONFER UNJUSTIFIED BENEFIT ON CERTAIN UNDERTAKINGS COMPARED WITH OTHERS AND WOULD THEREFORE JEOPARDIZE THE OBJECTIVES OF THE SCHEME .

*/ 663J0111 /*.

Parties

IN CASE 37/64

MANNESMANN AG, MANNESMANNUFER 1B, DUESSELDORF, REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY WERNER VON SIMSON, ADVOCATE AT BERTRANGE ( LUXEMBOURG ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, DR BASTIAAN VAN DER ESCH, ACTING AS AGENT, ASSISTED BY DR HANS PETER IPSEN, PROFESSOR AT THE UNIVERSITY OF HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR THE ANNULMENT OF ARTICLE 1 OF THE DECISION OF 8 JULY 1964 RELATING TO THE FINANCIAL OBLIGATIONS OF THE APPLICANT UNDER THE FERROUS SCRAP EQUALIZATION SCHEME,

Grounds

P.738

ADMISSIBILITY

THE DEFENDANT HAS NOT CALLED IN QUESTION 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 .

THE SUBSTANCE OF THE CASE

THE ARGUMENTS UPON WHICH THE APPLICANT HAS BASED ITS APPLICATION MAY BE REDUCED TO THREE FUNDAMENTAL PROPOSITIONS : FIRST, THAT THE LIABILITIES OF UNDERTAKINGS BY WAY OF CONTRIBUTIONS ARE TO BE FIXED IN UNITS OF ACCOUNT AND NOT IN NATIONAL CURRENCIES; FURTHER, THAT THERE IS NO LOGICAL CONNEXION BETWEEN THE BASIS USED FOR CALCULATING EQUALIZATION PRICES AND PAYMENTS AND THE BASIS USED FOR CALCULATING EQUALIZATION CONTRIBUTIONS; FINALLY, THAT THE CONTRIBUTIONS ARE THEREFORE TO BE CALCULATED AT THE CURRENCY PARITY IN FORCE EITHER AT THE DATE OF THEIR PAYMENT OR AT THE DATE WHEN THE HIGH AUTHORITY ISSUES THE ENFORCEABLE DECISION .

THE ARGUMENT THAT GENERAL DECISION NO 21/60 DID NOT AUTHORIZE THE HIGH AUTHORITY TO ADOPT THE CONTESTED DECISION IS BASED ON THE ASSUMPTION THAT THE AMOUNT OF THE CONTRIBUTION MUST BE CALCULATED IN PRINCIPLE IN NATIONAL CURRENCY ACCORDING TO THE CURRENCY PARITY IN FORCE AT THE DATE OF PAYMENT OR AT LEAST AT A DATE AFTER THE EQUALIZATION ACCOUNTING PERIOD FOR WHICH THE CONTRIBUTION IN QUESTION IS PAYABLE .

THE APPLICANT CLAIMS FIRST OF ALL IN SUPPORT OF ITS SUBMISSION THAT THE HIGH AUTHORITY HAS INFRINGED AN ESSENTIAL PROCEDURAL REQUIREMENT THE FACT THAT THE GENERAL DECISION NO 21/60, WHICH ALTERED THE AIM AND OPERATION OF THE EQUALIZATION SCHEME, SHOULD HAVE BEEN ADOPTED WITH THE UNANIMOUS ASSENT OF THE SPECIAL COUNCIL OF MINISTERS . FURTHER IT CLAIMS THAT THE REASONS GIVEN FOR BOTH GENERAL DECISION NO 21/60 AND THE CONTESTED DECISION WRONGLY STATED THAT THE SAME CURRENCY PARITIES SHOULD BE ADOPTED TO CALCULATE EQUALIZATION PRICES AND PAYMENTS AS WELL AS EQUALIZATION CONTRIBUTIONS . FINALLY IN SUPPORT OF THE SUBMISSION OF INFRINGEMENT OF THE TREATY THE APPLICANT USES THE SAME ARGUMENTS AS COMPLAINTS OF VIOLATION OF THE PRINCIPLE OF NON - DISCRIMINATION, OF THE PRINCIPLE THAT TAXATION SHOULD NOT BE RETROACTIVE, OF INTERFERENCE IN THE MONETARY SOVEREIGNTY OF MEMBER STATES AND OF LACK OF COMPETENCE .

P.739

IT IS THEREFORE NECESSARY TO DETERMINE WHETHER THESE THREE SUBMISSIONS MENTIONED ABOVE ARE WELL FOUNDED .

THE QUESTION WHETHER THE LIABILITIES OF UNDERTAKINGS BY WAY OF CONTRIBUTIONS ARE TO BE DETERMINED IN UNITS OF ACCOUNT OR IN NATIONAL CURRENCIES POSES FALSE ALTERNATIVES . WITHIN THE FRAMEWORK OF THE FERROUS SCRAP EQUALIZATION SCHEME THE UNIT OF ACCOUNT IS NOT A CURRENCY DIFFERENT FROM NATIONAL CURRENCIES BUT IS ONLY AN ACCOUNTING DEVICE INTENDED TO FACILITATE THE FIXING OF A GENERAL EQUALIZATION PRICE AND THE UNIFORM AND EXPEDITIOUS CALCULATION OF THE ACCOUNTS FOR EQUALIZATION PAYMENTS AND CONTRIBUTIONS . WITH REGARD TO THE VARIOUS UNDERTAKINGS THE USE OF THE UNIT OF ACCOUNT IS ONLY INTENDED TO INDICATE THE METHOD OF CALCULATING IN THEIR NATIONAL CURRENCIES THE AMOUNTS WHICH THEY OWE OR ARE OWED . THESE AMOUNTS, CALCULATED IN UNITS OF ACCOUNT, ARE IMMEDIATELY CONVERTED INTO NATIONAL CURRENCIES . THEREFORE, THE UNDERTAKINGS' CONTRIBUTIONS, EVEN IF THEY WERE CALCULATED IN UNITS OF ACCOUNTS, ARE IN FACT ONLY DETERMINED IN NATIONAL CURRENCIES .

THE QUESTION THEN ARISES AT WHAT TIME THE CALCULATION OF BOTH THE AMOUNTS OF THE EQUALIZATION CONTRIBUTIONS AND PAYMENTS AND THE RESULTING CONVERSION INTO NATIONAL CURRENCIES OF THE AMOUNTS CALCULATED IN UNITS OF ACCOUNT MUST BE EFFECTED .

THE PARTIES BOTH AGREE THAT, ACCORDING TO THE PRINCIPLES AND NATURE OF THE EQUALIZATION SCHEME, THE DETERMINATION OF EQUALIZATION PRICES AND THE AMOUNTS OF THE EQUALIZATION PAYMENTS MUST BE BASED ON THE DATE WHEN THE SCRAP WAS PURCHASED . THE APPLICANT, ON THE OTHER HAND, DOES NOT AGREE THAT THIS MUST NECESSARILY BE THE DATE FOR THE CALCULATION OF CONTRIBUTIONS AND CONCLUDES ON THIS POINT THAT, FOLLOWING THE PRACTICE ADOPTED BY THE MAJORITY OF MEMBER STATES, THE DATE MUST EITHER BE THE DATE WHEN THE CONTRIBUTIONS ARE FINALLY DETERMINED OR WHEN THEY ARE IN FACT PAID .

HOWEVER, THESE CONCLUSIONS CANNOT BE ACCEPTED . IN ORDER TO ACHIEVE AN EQUAL DISTRIBUTION OF THE CHARGES ARISING OUT OF THE IMPORTATION OF FERROUS SCRAP FROM THIRD COUNTRIES, THE EQUALIZATION SCHEME OPERATED ON THE BASIS OF ACCOUNTING PERIODS, USUALLY OF ONE MONTH, SO THAT ONE EQUALIZATION PRICE WAS ADOPTED FOR EACH PERIOD AND THE EQUALIZATION PAYMENTS MADE DURING THIS PERIOD WERE CALCULATED ON THE BASIS OF THIS EQUALIZATION PRICE . WHEN THIS HAD BEEN DONE THE CHARGE RESULTING FROM THE SAID PAYMENTS, WHICH VARIED CONSIDERABLY FROM ONE ACCOUNTING PERIOD TO ANOTHER, WAS LEVIED ON ALL UNDERTAKINGS SUBJECT TO THE LEVY, IN PROPORTION TO THE VOLUME OF THEIR PURCHASES WHETHER IMPORTED FROM OUTSIDE OR ORIGINATING WITHIN THE COMMON MARKET .

P.740

IN THIS WAY IN EACH ACCOUNTING PERIOD IT WAS ARRANGED THAT THE COST PRICE OF IMPORTED FERROUS SCRAP FOR ALL UNDERTAKINGS WAS THE SAME AS THE AVERAGE PURCHASE PRICE OF SCRAP BOUGHT ON THE INTERNAL MARKET . AS THE CONTRIBUTION PER METRIC TON OF SCRAP VARIES FROM ONE ACCOUNTING PERIOD TO ANOTHER, IT IS NECESSARY TO FIX THE CONTRIBUTIONS TO BE PAID ON THE BASIS OF THE PARITY OF THE UNIT OF ACCOUNT IN FORCE DURING THE SAID PERIODS .

AS THE EQUALIZATION SCHEME CONSISTS BASICALLY ON THE ONE HAND OF A CHARGE ON THE DIFFERENCE BETWEEN THE PRICE OF IMPORTED FERROUS SCRAP AND THE PRICE INSIDE THE COMMON MARKET AND ON THE OTHER HAND OF THE EQUAL DISTRIBUTION OF THIS CHARGE AMONG UNDERTAKINGS CONSUMING SCRAP IN PROPORTION TO THEIR CONSUMPTION, IT WOULD BE WRONG TO ADOPT A RATE OF EXCHANGE FOR THE CALCULATIONS NECESSARY FOR THE FIRST STAGE OF THE OPERATION DIFFERENT FROM THE ONE ADOPTED FOR THE CALCULATIONS REQUIRED FOR THE SECOND STAGE .

IN THIS RESPECT, GENERAL DECISION NO 21/60 DOES NOT THEREFORE ALTER THE AIM AND OPERATION OF THE FUND, BUT APPEARS ON THE CONTRARY TO DEFINE WITH ACCURACY THE CONSEQUENCES OF THE SYSTEM ALREADY ADOPTED IN THE EVENT OF A POSSIBLE CHANGE IN CURRENCY PARITIES OCCURRING DURING THE PERIOD COVERED BY THESE TWO OPERATIONS . THEREFORE THE ARGUMENTS UPON WHICH THE APPLICANT SEEKS TO BASE THE NECESSITY FOR THE UNANIMOUS ASSENT OF THE SPECIAL COUNCIL OF MINISTERS CANNOT BE UPHELD . THE ALLEGATION THAT THE STATEMENTS OF THE REASONS UPON WHICH DECISION NO 21/60 AND THE CONTESTED DECISION ARE BASED ARE INADEQUATE MUST ALSO BE REJECTED .

THE METHOD ADOPTED DOES NOT INFRINGE THE PROHIBITION ON DISCRIMINATION . AN EQUAL APPORTIONMENT OF THE CHARGES PRESUPPOSES THE AVOIDANCE OF VARIATIONS IN CURRENCY PARITIES BY THE ADOPTION FOR ALL UNDERTAKINGS OF THE SAME PERIOD OF REFERENCE DURING WHICH THEIR DEBITS AND CREDITS CALCULATED IN UNITS OF ACCOUNT ARE CONVERTED AT THE SAME TIME INTO NATIONAL CURRENCIES . THE ADOPTION OF A SYSTEM BASED ON THE DATE OF PAYMENT OR ON THE DATE ON WHICH THE ENFORCEABLE NATURE OF THE CLAIM WAS ESTABLISHED WOULD LEAD TO THE DANGER THAT THE PARITY APPLICABLE COULD VARY ACCORDING TO THE CONDUCT OF THE UNDERTAKINGS CONCERNED OR OF THE HIGH AUTHORITY AND THAT THERE WOULD BE DISCRIMINATION AGAINST UNDERTAKINGS OF THE SAME COUNTRY, WHICH HAD PAID THEIR CONTRIBUTION EITHER EARLIER OR LATER . THEREFORE THE METHOD ADOPTED BY THE DECISIONS IN QUESTION APPEARS TO BE NOT ONLY APPROPRIATE BUT TO CONFORM TO THE EQUALIZATION SCHEME .

NOR IS IT POSSIBLE TO OBJECT THAT GENERAL DECISION NO 21/60 INFRINGES THE PRINCIPLE THAT TAXES AND SIMILAR CHARGES MUST NOT BE RETROACTIVE . THIS COMPLAINT IS BASED PARTLY ON THE FALSE PRESUMPTION THAT, ON THE ONE HAND, UNDER THE PRESENT SYSTEM THE UNIT OF ACCOUNT CONSTITUTES A KIND OF CURRENCY AND, ON THE OTHER HAND, ON THE EQUALLY FALSE PRESUMPTION THAT THE CONVERSION OF THE UNIT OF ACCOUNT INTO NATIONAL CURRENCY ONLY TAKES PLACE AT THE DATE OF PAYMENT . IT IS ALSO ON THE BASIS OF THESE TWO FALSE PRESUMPTIONS THAT THE COMPLAINTS WERE MADE WITHOUT JUSTIFICATION THAT THE HIGH AUTHORITY INTERFERED WITH THE MONETARY SOVEREIGNTY OF MEMBER STATES AND ACTED ULTRA VIRES .

THIS SUBMISSION MUST THEREFORE BE DISMISSED AS UNFOUNDED .

A - THE SUBMISSIONS REGARDING THE SYSTEM RELATING TO INTEREST

THE APPLICANT STATES THAT THE GENERAL DECISIONS CONTESTED BY THIS APPLICATION ARE ILLEGAL, BECAUSE THEY INTRODUCED A SYSTEM WITH REGARD TO INTEREST WHICH IS NOT COVERED BY THE DECISIONS MADE EARLIER WITH THE ASSENT OF THE COUNCIL, IN ACCORDANCE WITH ARTICLE 53(B ) OF THE TREATY .

THE FIRST QUESTION TO BE ANSWERED IS WHETHER THE OBLIGATION TO OBTAIN THE ASSENT OF THE COUNCIL IN THIS CASE ARISES UNDER THE TREATY .

UNDER ARTICLE 53(B ) OF THE TREATY THE HIGH AUTHORITY MAY ' WITH THE UNANIMOUS ASSENT OF THE COUNCIL, ITSELF MAKE ANY FINANCIAL ARRANGEMENTS SERVING THE SAME PURPOSES '. AS THIS IS A PROVISION WHICH LAYS DOWN ESSENTIAL PROCEDURAL REQUIREMENTS FOR THE VALIDITY OF CERTAIN DECISIONS IT MUST BE STRICTLY CONSTRUED . THE EFFECT OF ARTICLE 53(B ) OF THE TREATY IS THAT THE UNANIMOUS ASSENT OF THE COUNCIL WAS ONLY NECESSARY IF THE INTRODUCTION OF A SYSTEM OF CREDITING INTEREST AFFECTED OR MODIFIED THE VERY BASIS OF THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME .

A SYSTEM FOR CREDITING INTEREST, ESTABLISHED IN ORDER TO COMPENSATE UNDERTAKINGS SUBJECT TO THE SCHEME FOR PERIODS DURING WHICH THEY HAD TO LOCK UP CAPITAL REQUIRED TO MEET THEIR OBLIGATIONS, APPEARS TO BE NECESSARY IN ORDER TO ENSURE THAT THOSE UNDERTAKINGS ARE NOT UNJUSTIFIABLY PREJUDICED BY DELAYS IN PAYMENTS MADE BY OTHER UNDERTAKINGS . THIS SYSTEM WHICH DOES NOT MODIFY THE ESSENTIAL STRUCTURE OF THE FINANCIAL ARRANGEMENTS FOR EQUALIZATION WAS ADOPTED TO ENABLE IT TO FUNCTION PROPERLY AND TO ATTAIN THE OBJECTIVES APPROVED BY THE COUNCIL .

THE SECOND QUESTION TO BE ANSWERED IS WHETHER THE FACT THAT ARTICLE 13 OF DECISION NO 16/58, ADOPTED WITH THE UNANIMOUS ASSENT OF THE COUNCIL, PROVIDED FOR THE APPLICATION OF A SYSTEM WITH REGARD TO INTEREST, MEANT THAT THE HIGH AUTHORITY HAD TO OBTAIN ONCE MORE THE UNANIMOUS ASSENT OF THE COUNCIL TO ANY AMENDING DECISION .

THERE IS NO JUSTIFICATION FOR THE CONCLUSION THAT THE DECISIONS OF THE HIGH AUTHORITY TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL COULD ONLY BE AMENDED, EVEN IN THE CASE OF AMENDMENTS NOT AFFECTING THE BASIS OF SUCH DECISIONS, BY A NEW DECISION ALSO TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL .

P.742

THEREFORE THE COMPLAINT BASED ON THE ABSENCE OF THE UNANIMOUS ASSENT OF THE COUNCIL IS UNFOUNDED .

THE APPLICANT STATES THAT THE STATEMENT OF THE REASONS UPON WHICH DECISION NO 7/61 IS BASED IS INCONCLUSIVE AND DOES NOT GIVE THE REASONS WHY IT WOULD HAVE BEEN IMPOSSIBLE FOR THE HIGH AUTHORITY TO REMOVE THE DISADVANTAGES OF THE FORMER SYSTEM FOR CHARGING INTEREST FOR DELAY IN PAYMENT AND TO ADOPT A SYSTEM OTHER THAN THE ONE WHICH IS CONTESTED .

RECITALS 5 TO 8 OF THIS DECISION UNDERLINE CLEARLY THE DISADVANTAGES CAUSED BY CHARGING INTEREST FOR DELAY IN PAYMENT ON PROVISIONAL CONTRIBUTIONS, AND THAT IT IS NECESSARY TO CALCULATE THE AMOUNT OF THE CONTRIBUTIONS OF ALL THE UNDERTAKINGS LIABLE TO PAY THEM BY REFERENCE TO THE SAME DATE, AS THESE CONTRIBUTIONS ARE OFTEN SPREAD OVER VARYING PERIODS FOR DIFFERENT UNDERTAKINGS WHICH ARE THEREBY EITHER BENEFITED OR PREJUDICED BY THEM . RECITAL 8 DESCRIBES THE SITUATION WHICH IN THE OPINION OF THE HIGH AUTHORITY RESULTS FROM THE APPLICATION OF THE CONTESTED SYSTEM AND WHICH IS THE REASON WHY IT ADOPTED THIS SYSTEM .

THIS STATEMENT OF REASONS DISCLOSES THE CONSIDERATIONS WHICH LED THE HIGH AUTHORITY TO ADOPT THE DISPUTED DECISION NO 7/61 AND THE REASONS UPON WHICH THAT DECISION IS BASED . SINCE THE STATEMENT OF THE REASONS UPON WHICH THE DECISION IS BASED IS ADEQUATE IN LAW THIS SUBMISSION MUST BE REJECTED AS UNFOUNDED .

THE APPLICANT MAINTAINS THAT THE NEW SYSTEM FOR CHARGING INTEREST ADOPTED BY DECISION NO 7/61 DISCRIMINATES AGAINST UNDERTAKINGS WHICH ARE NOT RESPONSIBLE FOR THE DELAY IN THEIR PAYMENTS .

IN FACT THE SYSTEM INTRODUCED BY DECISION NO 7/61 DISPENSED WITH THE IMPOSITION OF PECUNIARY SANCTIONS IN THE FORM OF INTEREST PAYABLE FOR DELAYED PAYMENT . HOWEVER, EXPERIENCE SHOWED THAT FOR VARIOUS REASONS FOR WHICH THE UNDERTAKINGS COULD OFTEN NOT BE MADE RESPONSIBLE THE EXACT AMOUNTS OF THE CONTRIBUTIONS COULD ONLY BE DETERMINED AFTER DELAYS WHICH WERE AT TIMES CONSIDERABLE .

THERE WAS THEREFORE THE DANGER THAT THE FORMER SYSTEM MIGHT LEAD TO BOTH AN INTRICATE AND COMPLICATED INVESTIGATION INTO ALL THE CIRCUMSTANCES RELATING TO THE RESPONSIBILITY FOR DELAY, AND TO THE UNSATISFACTORY SITUATION THAT THE CHARGE UNDER THE EQUALIZATION SCHEME WAS IN FACT IMPOSED UNEQUALLY ON THE VARIOUS UNDERTAKINGS . THUS THE UNDERTAKINGS, WHOSE EXACT CONTRIBUTIONS COULD ONLY BE DETERMINED AFTER SOME DELAY, RETAINED THE USE FOR A CERTAIN TIME OF SUMS WHICH SHOULD HAVE BEEN AVAILABLE TO THE FUND . THE RESULT WAS THAT THE OTHER UNDERTAKINGS HAD TO BEAR ADDITIONAL CHARGES WITHOUT ANY SET-OFF . THESE UNDERTAKINGS WERE THEREFORE IN A DOUBLY UNFAVOURABLE POSITION COMPARED WITH THE UNDERTAKINGS WHOSE PAYMENTS WERE DELAYED . THESE DISPARITIES WHICH AROSE OUT OF THE FORMER SYSTEM WERE OF A KIND LIKELY TO HAVE DIRECT EFFECTS IN THE FIELD OF COMPETITION .

P.743

SUCH A RESULT WOULD CLEARLY BE CONTRARY TO THE REQUIREMENTS AND OBJECTIVES OF THE EQUALIZATION SCHEME, IN PARTICULAR TO THE PRINCIPLE THAT THE CONTRIBUTIONS TO BE PAID BY THE CHARGEABLE UNDERTAKINGS SHOULD BE APPORTIONED AS EQUALLY AS POSSIBLE . FOR THIS REASON THE HIGH AUTHORITY COULD NOT CONTINUE THE FORMER SYSTEM BUT HAD TO REPLACE IT WITH ANOTHER WHICH DID NOT HAVE THE DISADVANTAGES MENTIONED ABOVE . WHILST IT IS TRUE THAT FOR THIS PURPOSE IT TREATED ON A FOOTING OF EQUALITY ALL UNDERTAKINGS WHICH WERE FOR ANY REASON IN ARREARS WITH THEIR PAYMENTS, WITHOUT CONSIDERING THE QUESTION OF BLAME OR LIABILITY, THIS IS EXPLAINED BY THE INJUSTICES AND UNCERTAINTIES WHICH A MORE CONVENTIONAL SYSTEM WOULD HAVE INTRODUCED INTO THE WORKING OF THE EQUALIZATION SCHEME .

IT IS CLEAR MOREOVER THAT THE SYSTEM ADOPTED BY DECISION NO 7/61 ELIMINATES AS FAR AS POSSIBLE THE OBJECTIVE INEQUALITIES CAUSED BY THE DELAYS IN THE LIQUIDATION OF THE EQUALIZATION SCHEME .

THEREFORE THIS COMPLAINT IS UNFOUNDED .

FINALLY, THE APPLICANT SUBMITS THAT DECISION NO 7/61 IS DEFECTIVE BECAUSE IT HAS RETROACTIVE EFFECT AND THEREFORE INFRINGES A FUNDAMENTAL LEGAL PRINCIPLE .

IN A FINANCIAL SCHEME SUCH AS THE ONE IN QUESTION, BASED ON A CLOSE INTER-DEPENDENCE BETWEEN THE CONTRIBUTIONS OF EACH OF THE PARTICIPANTS, IT IS ABOVE ALL NECESSARY TO ENSURE EQUALITY OF TREATMENT BETWEEN THOSE SUBJECT THERETO, BY ELIMINATING ALL POSSIBILITY OF DISCRIMINATING BETWEEN THEM . IN THESE CIRCUMSTANCES THE CONTINUANCE OF RULES WHICH WOULD HAVE THE EFFECT OF CONFERRING UNJUSTIFIED BENEFITS ON CERTAIN UNDERTAKINGS COMPARED WITH OTHERS, ON THE PRETEXT THAT THEY ESTABLISHED LEGAL SITUATIONS OR VESTED RIGHTS, WOULD JEOPARDIZE THE OBJECTIVES OF THE SAID SCHEME .

IT IS THEREFORE NECESSARY WITHIN THE FRAMEWORK OF SUCH A SCHEME TO ACKNOWLEDGE THAT THE RESPONSIBLE BODIES HAVE THE POWER TO MAKE THE NECESSARY AMENDMENTS TO SUCH RULES IN ORDER TO ELIMINATE ANY POSSIBLE DISCRIMINATION .

FURTHER, SINCE THIS FINANCIAL SCHEME IS BEING LIQUIDATED AND THE CONTRIBUTIONS OF EACH PARTICIPANT ARE THEREFORE BEING DEALT WITH ON A PROVISIONAL BASIS, IT IS IMPOSSIBLE TO ELIMINATE ANY SUCH DISCRIMINATION WITHOUT ALTERING SITUATIONS CREATED BY THE PREVIOUS RULES, WHICH HAD TO BE AMENDED . IT IS THEREFORE NECESSARY TO CONCLUDE THAT THIS SUBMISSION IS UNFOUNDED AND MUST BE REJECTED .

THEREFORE THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

Decision on costs

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 AND MUST BE ORDERED TO BEAR THE COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .