Judgment of the Court of 2 March 1967. - Acciaierie San Michele SpA (in liquidation) v High Authority of the ECSC. - Joined cases 9 and 58-65.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . LIABILITY OF THE ECSC - FINANCIAL ARRANGEMENTS - EQUALIZATION - NORMAL DISADVANTAGES - ABSENCE OF HARM

2 . COMMON FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - CALCULATION OF CONTRIBUTIONS - ESTIMATED ASSESSMENT - CONDITIONS

( ECSC TREATY, ARTICLE 53 )

Summary

1 . CF . PARA . 1, SUMMARY, JOINED CASES 14, 16, 17, 20, 24, 26 AND 27/60 AND 1/61 ( 1961 ) ECR 161 .

THE DISADVANTAGES WHICH ARE BOUND TO BE INHERENT IN THE SYSTEM OF EQUALIZATION ARE NORMAL AND DO NOT AMOUNT TO AN INJURY GIVING RISE TO A CLAIM FOR REPARATION . UNCERTAINTY AS TO THE RATE OF EQUALIZATION, EVEN IF THE AMOUNT APPLICABLE FOR A SINGLE PERIOD HAS BEEN INCREASED BY A CONSIDERABLE AMOUNT, IS REGARDED AS SUCH A DISADVANTAGE PROVIDED THAT EXPERIENCED PRODUCERS HAVE BEEN ABLE TO TAKE THESE INCREASES INTO ACCOUNT IN THEIR ESTIMATES .

*/ 661J0014 /*.

2 . IN ORDER TO BE ENTITLED TO MAKE AN ESTIMATED ASSESSMENT, THE HIGH AUTHORITY MUST PROVE THAT THE UNDERTAKING IN QUESTION HAS FAILED EITHER TO PRODUCE THE INFORMATION NECESSARY FOR CALCULATING ITS CONTRIBUTIONS OR TO SUPPLY PROOF IN SUPPORT OF IT .

Parties

IN JOINED CASES 9 AND 58/65

ACCIAIERIE SAN MICHELE SPA ( IN LIQUIDATION ), REPRESENTED BY ITS LIQUIDATOR, GIANNI DELZANO, ASSISTED BY ARTURO COTTRAU OF THE TURIN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS AGENT, ITALIO TELCHINI, ASSISTED BY ORIO GIACCHI OF THE MILAN BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION :

- FOR THE ANNULMENT OF

( A ) THE INDIVIDUAL DECISIONS OF 13 NOVEMBER 1964 FIXING THE TONNAGE OF ASSESSABLE FERROUS SCRAP AND THE APPLICANT'S DEBT TO THE SCHEME FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP;

( B ) OF OTHER INDIVIDUAL DECISIONS OF 5 OCTOBER 1965, AMENDING THE SAID TONNAGE AND THE SAID DEBT;

- RAISING OBJECTIONS OF ILLEGALITY WITH REFERENCE TO THE GENERAL DECISIONS NOS 7/61 AND 7/63;

- FOR DAMAGES FOR AN ALLEGED WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY,

Grounds

P . 9

THE SAN MICHELE COMPANY HAS MADE AN APPLICATION AGAINST TWO INDIVIDUAL DECISIONS OF 13 NOVEMBER 1964, WHEREBY THE HIGH AUTHORITY, ON THE BASIS OF AN ESTIMATED ASSESSMENT, FIXED THE TONNAGE OF ASSESSABLE FERROUS SCRAP AND FROM THAT THE CORRESPONDING DEBT TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME .

THE SAID COMPANY HAS ALSO MADE AN APPLICATION AGAINST TWO OTHER INDIVIDUAL DECISIONS OF 5 OCTOBER 1965 BASED ON NEW FACTS RELATING TO THE CONSUMPTION OF ELECTRICITY AND FIXING AN INCREASE IN THE TONNAGE AND THE CONTRIBUTIONS . THE SAID APPLICATIONS SEEK THE ANNULMENT OF THE SAID INDIVIDUAL DECISIONS, PLEADING THE ILLEGALITY OF GENERAL DECISIONS NOS 7/61 AND 7/63 AND CLAIMING COMPENSATION FOR A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY .

SINCE THESE APPLICATIONS DO NOT GIVE RISE TO ANY DISPUTE AS TO ADMISSIBILITY, THEY MUST BE DECLARED ADMISSIBLE .

P . 10

THE ESTIMATED ASSESSMENT

UNDER ARTICLE 2 OF DECISION NO 13/58 OF 24 JULY 1958 AND ARTICLE 15 OF DECISION NO 16/58, OF THE SAME DATE, AS AMENDED BY DECISION NO 18/58 OF 15 OCTOBER 1958, THE HIGH AUTHORITY IS EMPOWERED TO MAKE AN ESTIMATED ASSESSMENT, IF THE UNDERTAKINGS FAIL TO DECLARE INFORMATION FOR CALCULATING THE CONTRIBUTIONS TO BE PAID UNDER THE FINANCIAL ARRANGEMENTS KNOWN AS THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME . THE HIGH AUTHORITY IS ALSO EMPOWERED, IN APPLYING THE SAME PROVISIONS, TO AMEND BY AN ESTIMATED ASSESSMENT DECLARATIONS IN SUPPORT OF WHICH VALID PROOF CANNOT BE SUPPLIED .

IT IS CLEAR FROM THESE PROVISIONS THAT THE ASSESSMENT AND AMENDMENT ON THE HIGH AUTHORITY'S INITIATIVE ARE ALTERNATIVE AND EXCEPTIONAL METHODS, WHICH ARE APPLICABLE ONLY IN CERTAIN CIRCUMSTANCES . IN FACT THE HIGH AUTHORITY IS ONLY EMPOWERED TO SUBSTITUTE ITS OWN FIGURES FOR THOSE OF THE UNDERTAKINGS IF THE LATTER DO NOT FULFIL THEIR OBLIGATION TO SUPPLY IT WITH INFORMATION CAPABLE OF PROVING THE DECLARATIONS MADE . IN ORDER TO BE ENTITLED TO MAKE AN ESTIMATED ASSESSMENT, THE HIGH AUTHORITY MUST THEREFORE PROVE THAT THE UNDERTAKING HAS FAILED EITHER TO PRODUCE THE INFORMATION NECESSARY FOR CALCULATING ITS CONTRIBUTIONS OR TO SUPPLY PROOF IN SUPPORT OF IT .

IT APPEARS FROM THE DECISION OF 13 NOVEMBER 1964 THAT WHEN THE CHECKS WERE CARRIED OUT IN JUNE 1958 BY THE FIDUCIAIRE SUISSE THE UNDERTAKING FAILED TO PRODUCE THE ACCOUNTING DOCUMENTS WHICH WERE REQUIRED OF IT, THAT IS TO SAY, THE BOOKS OF STOCK RECEIVED, THE REGISTER OF SUPPLIERS' INVOICES, THE REGISTER OF GOODS BEING PROCESSED, THE BALANCE SHEET BOOK AND THE JOURNAL .

IN CONNEXION WITH THE CHECKS CARRIED OUT IN OCTOBER 1962 BY THE HIGH AUTHORITY'S INSPECTORS, THE SAID DECISION MENTIONS THAT THE SAME DOCUMENTS WERE REQUESTED, BUT THAT THEY WERE ONLY ' SUBMITTED IN PART ' ( WITHOUT MORE PRECISE DETAILS ) AND THAT SINCE THE HIGH AUTHORITY ' DID NOT HAVE THE ABOVEMENTIONED ACCOUNTING DOCUMENTS AT ITS DISPOSAL ' IT WAS OBLIGED TO MAKE AN ESTIMATED ASSESSMENT .

THE SAN MICHELE UNDERTAKING DISPUTES THESE REASONS AND STATES THAT IT PRODUCED TO THE AGENTS OF THE FIDUCIAIRE SUISSE AND TO THE HIGH AUTHORITY'S INSPECTORS THE REGISTER OF INVOICES FOR BOUGHT FERROUS SCRAP AND THE REGISTER OF GOODS BEING PROCESSED, IN ADDITION TO VARIOUS ACCOUNTING DOCUMENTS RELATING IN PARTICULAR TO THE RECEIPTS OF FERROUS SCRAP .

THE PARTIES ARE THUS IN DISAGREEMENT ON THE FACTS .

P . 11

NO DOCUMENT LODGED ON THE FILE DEFINATELY ESTABLISHES EITHER THE EXISTENCE OR THE CONTENTS OF A FORMAL DEMAND ADDRESSED TO THE UNDERTAKING TO SUPPLY THE DOCUMENTS MENTIONED IN THE DECISION, OR THE ACCURACY OF THE SAN MICHELE UNDERTAKING'S STATEMENTS IN CONNEXION WITH THE PRODUCTION OF CERTAIN OF THESE .

IT IS CLEAR HOWEVER FROM THE ' INSPECTION REPORT ' OF 19 NOVEMBER 1962, DRAWN UP BY MR MAURICE CHAUDAT, THE HIGH AUTHORITY'S INSPECTOR, THAT VARIOUS ACCOUNTING DOCUMENTS WERE SUBMITTED TO HIM .

THE SAID REPORT IN FACT STATES :

' THERE WERE PRESENTED TO US FOR THE PERIOD UNDER REVIEW :

- THE SUPPLIERS' INVOICES FOR 1957 AND 1958, NUMBERED AND ARRANGED IN ORDER, IN ACCORDANCE WITH ARTICLE 26 OF THE DECREE LAW OF 9 JANUARY 1940 ON THE I.G.E . THESE INVOICES WERE NUMBERED FROM 1 TO 875 ( 1957 ) AND FROM 1 TO 841 ( 1958 ); THE INVOICES FOR THE PURCHASE OF FERROUS SCRAP WERE FILED IN ORDER WITH THE PURCHASE INVOICES . ON THE OTHER HAND THE ELECTRICITY INVOICES WERE ARRANGED ACCORDING TO DATE, BUT APART FROM THEM .

- THE SALES INVOICES, ALSO NUMBERED BUT IN TWO SERIES, ONE FOR DIRECT SALES, THE OTHER FOR COMMISSION SALES;

- COPY OF DECLARATION 2/50 615 AND GENERAL ASSESSMENT;

- BALANCE SHEET BOOK, PROFIT AND LOSS ACCOUNTS, BALANCES AND RESOLUTIONS OF THE GENERAL MEETING;

- REGISTER OF GOODS BEING PROCESSED FOR 1958 ( THAT FOR 1957 WAS MISSING );

- ORIGINALS OF THE STATEMENTS TO THE " CASSA CONGUAGLIO PER LE TARIFFE ELECTRICHE " ACCOMPANIED BY RECEIPTS FOR REGISTERED LETTERS '.

IT THEREFORE APPEARS THAT THE STATEMENT IN THE DECISION OF 13 NOVEMBER 1964 THAT THE HIGH AUTHORITY DID NOT HAVE AT ITS DISPOSAL THE ACCOUNTING DOCUMENTS WHICH IT REQUESTED IS THEREFORE NOT CORRECT, OR AT ANY RATE ONLY PARTLY CORRECT, SINCE TWO OF THEM ARE REFERRED TO IN MR CHAUDAT'S REPORT ( THE BALANCE SHEET BOOK AND THE REGISTER OF GOODS BEING PROCESSED FOR 1958 ) AND WERE ACCOMPANIED BY FILES OF INVOICES FOR SCRAP PROPERLY NUMBERED AND ARRANGED .

WITHOUT INDICATING THAT THESE DOCUMENTS HAD BEEN PRODUCED, OR EXPLAINING WHY THEY WERE REJECTED, AND WITHOUT DISCUSSING THE FIGURES, THE SAID DECISION MERELY STATES THAT SINCE THE HIGH AUTHORITY ' DID NOT HAVE THE ABOVEMENTIONED ACCOUNTING DOCUMENTS AT ITS DISPOSAL '...IT WAS ' OBLIGED ' TO MAKE AN ESTIMATED ASSESSMENT . NO DETAILS ARE SUPPLIED NOR ARE ANY REASONS GIVEN SHOWING IN WHAT WAY THE HIGH AUTHORITY WAS THUS OBLIGED, WHEREAS IN PARTICULAR THE ACCOUNTING DOCUMENTS PRODUCED IN COURT APPEAR TO CONTAIN VARIOUS MATTERS CALLING FOR CROSS - CHECKING OR DISCUSSION .

P . 12

THE HIGH AUTHORITY CANNOT MERELY REJECT ANY ACCOUNTING DOCUMENT FOR THE SOLE REASON THAT IT REVEALS FIGURES LOWER THAN THOSE OBTAINED BY MEANS OF THE ESTIMATED ASSESSMENT ON THE BASIS OF THE CONSUMPTION OF ELECTRICITY .

FURTHERMORE, THE CHAUDAT REPORT, ITSELF EMPHASIZES VARIOUS POINTS ARISING OUT OF THE ACCOUNTING DOCUMENTS, THE EXCESSIVE OBSOLESCENCE OF EQUIPMENT AND ' CONSIDERABLE ' RECOVERIES OF SCRAP WHICH WERE NOT EVEN MENTIONED IN THE STATEMENT OF REASONS FOR THE DECISION .

THE CONTESTED DECISIONS MUST THEREFORE BE ANNULLED AS BEING BASED ON INCORRECT REASONS AND FOR INFRINGEMENT OF ARTICLE 2 OF GENERAL DECISION NO 13/58 OF 24 JULY 1958 .

THE OBJECTIONS OF ILLEGALITY WITH REFERENCE TO GENERAL DECISIONS NOS 7/61 AND 7/63 .

SINCE THE CONTESTED DECISIONS MUST BE ANNULLED, IT IS UNNECESSARY TO GIVE A RULING ON THE OBJECTIONS OF ILLEGALITY WITH REFERENCE TO GENERAL DECISIONS NOS 7/61 AND 7/63 .

THE CLAIM FOR COMPENSATION

THE APPLICANT HAS CLAIMED COMPENSATION FOR THE ALLEGED WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY, BUT WITHOUT INDICATING THE AMOUNT OF DAMAGE WHICH IT HAS SUFFERED .

THE APPLICANT HAS BY NO MEANS PROVED THAT BECAUSE IT WAS FOR A TIME UNCERTAIN AS TO THE FINAL AMOUNT OF ITS EQUALIZATION CONTRIBUTIONS, THE DISADVANTAGE FROM WHICH THE SAN MICHELE UNDERTAKING SUFFERED EXCEEDS THE NORMAL DISADVANTAGES UNAVOIDABLY INHERENT IN THE EQUALIZATION SCHEME, AS IT HAS BEEN ESTABLISHED AND HAS FUNCTIONED WITH A VIEW TO THE GENERAL INTEREST .

THIS HEAD OF THE CLAIM MUST THEREFORE BE REJECTED .

THE APPLICATION ON A PROCEDURAL ISSUE IN CONNEXION WITH THE HIGH AUTHORITY'S LETTER OF 28 JANUARY 1966 .

P . 13

ON 30 MARCH 1966 THE SAN MICHELE UNDERTAKING RAISED AN OBJECTION UNDER ARTICLE 91 OF THE RULES OF PROCEDURE AGAINST THE LETTER OF 28 JANUARY 1966, WHEREBY THE HIGH AUTHORITY NOTIFIED IT THAT IN IMPLEMENTATION OF GENERAL DECISION NO 19/65 OF 15 DECEMBER 1965 IT HAD FIXED THE FINAL RATES OF THE EQUALIZATION CONTRIBUTIONS AND THAT CONSEQUENTLY THE BALANCE OF THE DEBT OWED BY THE SAN MICHELE UNDERTAKING WAS INCREASED TO 252 494 640 LIRE . BY AN ORDER OF 2 JUNE 1966, THE COURT RESERVED ITS DECISION FOR THE FINAL JUDGMENT .

THE ANNULMENT OF THE CONTESTED DECISIONS RENDERS THE SAID LETTER AND THE PROCEDURAL ISSUE POINTLESS .

IT IS THEREFORE UNNECESSARY TO GIVE A RULING IN THE MATTER .

Decision on costs

UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE DEFENDANT HAS FAILED IN RESPECT OF THE PRINCIPAL HEAD OF THE APPLICATIONS . IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

THE COSTS OF TWO OF THE THREE PROCEDURAL ISSUES RAISED BY THE APPLICANT HAVE BEEN RESERVED . THE DEFENDANT MUST BEAR THE COSTS OF THE PROCEEDINGS FORMING THE SUBJECT OF THE ORDER OF 2 JUNE 1966 SINCE THE HIGH AUTHORITY'S LETTER OF 28 JANUARY 1966 IS SUPPLEMENTARY TO THE ANNULLED DECISIONS .

THE APPLICANT MUST BEAR THE COSTS OF THE PROCEEDINGS CLOSED BY THE ORDER OF 13 JULY 1966, SINCE THE COURT HAS TAKEN NOTE OF THE REGISTRAR'S FINDING THAT THE ORIGINAL DOCUMENT CONFORMED TO THE PHOTOCOPY WHICH THE APPLICANT ALLEGED WAS INCOMPLETE .

THE COSTS RELATING TO THESE PROCEEDINGS ARE ESTIMATED AT 1/20 OF THE TOTAL COSTS OF THE ACTION .

Operative part

THE COURT

HEREBY :

1 . ANNULS THE INDIVIDUAL DECISIONS OF 13 NOVEMBER 1964 AND 5 OCTOBER 1965, FIXING AND AMENDING THE TONNAGE OF ASSESSABLE FERROUS SCRAP AND THE DEBT OF ACCIAIERIE SAN MICHELE SPA UNDER THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME;

2 . ORDERS THE HIGH AUTHORITY TO PAY 19/20 OF THE COSTS OF THE ACTION AND ACCIAIERIE SAN MICHELE SPA TO BEAR THE REMAINING 19/20 .