Judgment of the Court of 9 December 1965. - Société anonyme des laminoirs, hauts fourneaux, forges, fonderies et usines de la Providence and others v High Authority of the ECSC. - Joined cases 29, 31, 36, 39 to 47, 50 and 51-63.



European Court reports

French edition Page 01123

Dutch edition Page 01198

German edition Page 01198

Italian edition Page 01108

English special edition Page 00911

Danish special edition Page 00135

Greek special edition Page 00197

Portuguese special edition Page 00247



Summary

Parties

Subject of the case

Grounds

Operative part



Keywords

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WRONGFUL ACT OR OMISSION - DAMAGE - METHOD OF ASSESSMENT - REVIEW BY THE COURT

( ECSC TREATY, ARTICLE 40 )

Summary

WHEN IT IS NECESSARY, IN ASSESSING THE DAMAGE ARISING OUT OF A WRONGFUL ACT OR OMISSION, TO CONSIDER THE SITUATION AS IT WOULD HAVE BEEN IF THERE HAD BEEN NO WRONGFUL ACT OR OMISSION, THE COURT MUST, WHILST INSISTING THAT ALL AVAILABLE EVIDENCE BE PRODUCED, ACCEPT REALISTIC APPROXIMATIONS SUCH AS AVERAGES WHICH HAVE BEEN ESTABLISHED BY MEANS OF COMPARISONS . THE SAMPLING METHODS HABITUALLY USED IN ECONOMIC SURVEYS MAKE IT POSSIBLE TO REACH ACCEPTABLE APPROXIMATIONS PROVIDED THAT THE BASIC FACTS ARE SUFFICIENTLY RELIABLE .

Parties

IN JOINED CASES

( 1 ) 29/63, SOCIETE ANONYME DES LAMINOIRS, HAUTS FOURNEAUX, FORGES, FONDERIES ET USINES DE LA PROVIDENCE, HAVING ITS REGISTERED OFFICE AT MARCHIENNE-AU-PONT, BELGIUM, REPRESENTED BY MAX NOKIN, CHAIRMAN OF ITS BOARD OF DIRECTORS;

( 2 ) 31/63, SOCIETE ANONYME DE LA FABRIQUE DE FER DE MAUBEUGE, HAVING ITS REGISTERED OFFICE AT LOUVROIL ( NORD ), REPRESENTED BY J.A . DE BECO, ITS CHAIRMAN AND GENERAL MANAGER;

( 3 ) 36/63, HAUTS FOURNEAUX ET FORGES DE SAULNES ET GORCY ( FORMERLY RATY ET CIE ), A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 16, REPRESENTED BY ROLAND LABBE, ITS CHAIRMAN AND MANAGING DIRECTOR;

( 4 ) 39/63, ACIERIES ET FORGES DE FIRMINY, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 9, REPRESENTED BY ITS LIQUIDATOR, MARCEL MACAUX;

( 5 ) 40/63, SOCIETE DES ACIERIES DE POMPEY, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN POMPEY, MEURTHE-ET-MOSELLE, REPRESENTED BY R . DE GUNZBOURG, ITS CHAIRMAN AND MANAGING DIRECTOR;

( 6 ) 41/63, SOCIETE ANONYME DE L' ACIERIE ET DES LAMINOIRS DE BEAUTOR, HAVING ITS REGISTERED OFFICE AT BEAUTOR ( AISNE ), REPRESENTED BY GEORGES BUREAU, ITS CHAIRMAN AND MANAGING DIRECTOR;

( 7 ) 42/63, SOCIETE DES HAUTS FOURNEAUX DE ROUEN, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 9, REPRESENTED BY PIERRE CELIER, ITS CHAIRMAN AND MANAGING DIRECTOR;

( 8 ) 43/63, SOCIETE DES USINES SAINT-JACQUES, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 9, REPRESENTED BY ANDRE GUILLANTON, ITS CHAIRMAN AND MANAGING DIRECTOR;

( 9 ) 44/63, COMPAGNIE DES FORGES DE CHATILLON, COMMENTRY ET NEUVES-MAISONS, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 9, REPRESENTED BY LEON BUREAU, ITS VICE-CHAIRMAN AND MANAGING DIRECTOR;

( 10 ) 45/63, SOCIETE ANONYME H.K . PORTER-FRANCE, HAVING ITS REGISTERED OFFICE IN PARIS 8, REPRESENTED BY JEAN PILLARD, ITS GENERAL WORKS MANAGER, AND JOSEPH VERSAVEL, GENERAL SECRETARY;

( 11 ) 46/63, UNION DES CONSOMMATEURS DE PRODUITS METALLURGIQUES ET INDUSTRIELS, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 8, REPRESENTED BY MARCEL PETIET, ITS CHAIRMAN AND GENERAL MANAGER;

( 12 ) 47/63, SOCIETE FIVES-LILLE-CAIL, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 8, REPRESENTED BY JACQUES THIBAULT, ITS CHAIRMAN AND GENERAL MANAGER;

( 13 ) 50/63, UNION SIDERURGIQUE DU NORD DE LA FRANCE ' USINOR ', A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 9, REPRESENTED BY MAURICE BORGEAUD, ITS MANAGING DIRECTOR;

( 14 ) 51/63, SOCIETE D' EXPLOITATION DES FORGES D' HENNEBONT, A COMPANY LIMITED BY SHARES, HAVING ITS REGISTERED OFFICE IN PARIS 8, REPRESENTED BY FELIX PORTAL, ITS CHAIRMAN AND MANAGING DIRECTOR;

ASSISTED BY JEAN-PIERRE ARON, ADVOCATE OF THE COUR D' APPEL, PARIS,

ALL WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE CHAMBRE SYNDICALE DE LA SIDERURGIE FRANCAISE, 49 BOULEVARD JOSEPH-II,

APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, DR ITALO TELCHINO, ACTING AS AGENT, AND BY ANDRE DE LAUBADERE, PROFESSOR IN THE FACULTY OF LAW OF PARIS, ACTING AS CO-AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

Subject of the case

APPLICATION FOR REPARATION, ON THE BASIS OF ARTICLE 40 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, TO MAKE GOOD THE INJURY CAUSED BY THE WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY IN OPERATING THE SCHEME FOR EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH,

Grounds

P.934

A - ADMISSIBILITY

1 . THE DEFENDANT ARGUES THAT IN THEIR APPLICATIONS THE APPLICANTS DID NOT PRODUCE THE FIGURES ON WHICH THEY BASED THEIR CALCULATIONS OF THE AMOUNT OF THE DAMAGE ALLEGEDLY SUFFERED AND THAT THEREFORE THEY DID NOT COMPLY WITH THE REQUIREMENTS OF ARTICLE 38 OF THE RULES OF PROCEDURE . THE APPLICANTS REPLY THAT IT WAS NOT POSSIBLE FOR THEM TO PRODUCE THEIR DOCUMENTARY EVIDENCE BEFORE THE LODGING OF THEIR REPLY, SINCE THE FIGURES VARIED CONSIDERABLY FROM ONE CLAIM TO ANOTHER AND ALSO BECAUSE OF THE ABUNDANCE OF THE VARIOUS DOCUMENTS WHICH HAD TO BE COLLECTED .

THIS FIRST OBJECTION OF INADMISSIBILITY MUST BE REJECTED, AND THE EXPLANATION GIVEN BY THE APPLICANTS MUST BE CONSIDERED AS ACCEPTABLE . MOREOVER, THE ABSENCE OF THE FIGURES IN THE APPLICATIONS CANNOT HAVE PUT THE DEFENDANT AT ANY DISADVANTAGE, SINCE IT HAS BEEN ABLE TO DISCUSS THE FIGURES PRODUCED BY THE APPLICANTS IN THEIR REPLY, BOTH IN ITS REJOINDER AND DURING THE ORAL PROCEDURE .

P.935

2 . THE DEFENDANT THEN ARGUES THAT THE APPLICANTS INFRINGED ARTICLES 38 AND 42 OF THE RULES OF PROCEDURE IN THAT THEIR REPLY REPLACES THE METHOD OF CALCULATING THE ALLEGED DAMAGE USED IN THEIR APPLICATIONS BY AN ENTIRELY DIFFERENT METHOD . ACCORDING TO THE DEFENDANT THE CALCULATIONS IN THE APPLICATION RESULTED IN A CLAIM FOR THE VERY AMOUNT REPRESENTED BY THE ' TRANSPORT PARITY ' IMPROPERLY RECEIVED, WHEREAS IN THE REPLY THE CLAIM FOR THE ' TRANSPORT PARITY ' REIMBURSEMENT HAS BEEN TRANSFORMED INTO ACTION FOR REPARATION BASED ON THE EXISTENCE OF DAMAGE EQUAL TO THE DIFFERENCE BETWEEN THE COST PRICE OF THE TONNAGE OF SHIPYARD SCRAP ACQUIRED AND THE COST PRICE OF THE SAME TONNAGE OF IMPORTED FERROUS SCRAP .

THIS SECOND OBJECTION OF INADMISSIBILITY MUST ALSO BE REJECTED . IN FACT AN EXAMINATION OF THE WORDING OF THE APPLICATIONS REVEALS THAT THE APPLICANTS HAVE ATTEMPTED THEREIN TO SHOW THAT WITHOUT THE GRANT OF THE ' TRANSPORT PARITY ' THE TONNAGE OF SCRAP BOUGHT BY THEM HAD COST THEM MORE THAN THE SAME TONNAGE OF IMPORTED FERROUS SCRAP WOULD HAVE DONE IF BOUGHT OVER THE SAME PERIOD . FURTHERMORE THE REPLY NEITHER CHANGES THE SUBJECT MATTER OF THE DISPUTE, NOR DOES IT INTRODUCE FRESH ISSUES . ALL THE APPLICANTS HAVE DONE THEREIN IS TO RECTIFY THEIR CALCULATIONS SO AS TO TAKE INTO ACCOUNT OBJECTIONS PUT FORWARD BY THE DEFENDANT IN ITS STATEMENT OF DEFENCE .

3 . IN ITS WRITTEN OBSERVATIONS ON THE EXPERT'S REPORT, LODGED AT THE REGISTRY ON 14 JUNE 1965, THE DEFENDANT ALLEGES THAT IN ASSESSING THE DAMAGE ALLEGED BY THE APPLICANTS THERE SHOULD BE TAKEN INTO ACCOUNT THE INCREASE IN THE FERROUS SCRAP EQUALIZATION CONTRIBUTION WHICH WOULD HAVE BEEN DEMANDED OF THE APPLICANTS IF THEY HAD CHOSEN TO BUY IMPORTED FERROUS SCRAP INSTEAD OF THE SHIPYARD SCRAP WHICH THEY DID IN FACT OBTAIN . DURING THE HEARING IN OPEN COURT ON 28 SEPTEMBER 1965, THE APPLICANTS PUT FORWARD THE VIEW THAT THIS LINE OF REASONING ON THE PART OF THE DEFENDANT SHOULD BE DECLARED INADMISSIBLE HAVING REGARD TO ARTICLE 42(2 ) OF THE RULES OF PROCEDURE .

THE ABOVEMENTIONED ALLEGATION ON THE PART OF THE DEFENDANT MUST BE CONSIDERED AS ADMISSIBLE . ITS ARGUMENT IS IN FACT MERELY THAT, IN ORDER TO CALCULATE ANY DAMAGE WHICH THE APPLICANT MAY HAVE SUFFERED, IT IS NECESSARY TO ESTABLISH WITH ACCURACY ALL THE ADVANTAGES AND ALL THE DISADVANTAGES WHICH WOULD HAVE ARISEN IF IMPORTED FERROUS SCRAP HAD BEEN SUBSTITUTED FOR THE SHIPYARD SCRAP WHICH WAS IN FACT CONSUMED .

4 . THEREFORE THE APPLICATIONS ARE ADMISSIBLE .

P.936

B - THE SUBSTANCE OF THE CASES

THE APPLICANTS ALLEGE THAT, SINCE THE BENEFIT OF THE ' TRANSPORT PARITIES ', WHICH HAD BEEN GRANTED TO THEM BY THE SO-CALLED ' BRUSSELS ' AUTHORITIES, WAS LATER TAKEN AWAY FROM THEM BY THE HIGH AUTHORITY, THEY HAVE SUFFERED DAMAGE, IN SO FAR AS THEY HAD ONLY AGREED TO TAKE DELIVERIES OF SHIPYARD SCRAP BECAUSE THEY HAD BEEN PROMISED THAT THEY WOULD RECEIVE THE SAID ' TRANSPORT PARITIES '. THEY ALSO ALLEGE THAT THE DISPUTED PROMISES, WHICH WERE BOTH MADE AND CARRIED OUT CONSISTENTLY FOR A PERIOD STRETCHING OVER SEVERAL YEARS, CAN ONLY HAVE ARISEN BECAUSE OF DEFECTIVE SUPERVISION ON THE PART OF THE DEFENDANT OF THE RUNNING OF THE EQUALIZATION SCHEME, AND THEREFORE CONSTITUTE A WRONGFUL ACT OR OMISSION ON ITS PART . IT IS FURTHER ASSERTED THAT THIS WRONGFUL ACT OR OMISSION WAS THE CAUSE OF THE ALLEGED DAMAGE, THE AMOUNT OF WHICH IS CALCULATED AS THE DIFFERENCE BETWEEN THE PURCHASE PRICE OF THE SHIPYARD SCRAP IN FACT RECEIVED, WITHOUT THE DEDUCTION OF THE TRANSPORT PARITY GRANT, AND THE PRICE OF IMPORTED FERROUS SCRAP WHICH THE APPLICANTS COULD HAVE RECEIVED OVER THE SAME PERIODS .

1 . AS TO THE WRONGFUL ACT OR OMISSION ATTRIBUTED TO THE DEFENDANT

IT IS NOT DENIED THAT THE PROMISES THAT THE APPLICANTS WOULD BE PAID THE TRANSPORT PARITY WERE MADE AND FULFILLED . FURTHERMORE IT IS A FACT THAT THE INCOMPATIBILITY BETWEEN THE TRANSPORT PARITY GRANT AND THE OBJECTIVES OF THE EQUALIZATION SYSTEM ONLY BECAME APPARENT, IN CLEAR AND EXPRESS TERMS, WHEN DECISION NO 18/60 WAS ADOPTED . THUS THE APPLICANTS COULD REASONABLY HAVE BELIEVED THAT THE SAID PROMISES WERE LEGAL AND THAT THE AUTHORITIES WHICH MADE THEM WERE ACTING WITHIN THEIR POWERS .

IN EXAMINING THE QUESTION WHETHER THE GIVING OF THESE PROMISES IS ATTRIBUTABLE TO A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT FOR WHICH IT MAY BE HELD LIABLE UNDER ARTICLE 40 OF THE TREATY, A DISTINCTION SHOULD BE MADE BETWEEN THE PERIODS BEFORE AND AFTER DECISION NO 13/58 . BY THIS DECISION THE HIGH AUTHORITY TOOK OVER THE ADMINISTRATION OF THE EQUALIZATION SCHEME .

AS REGARDS THE PERIOD PRIOR TO DECISION NO 13/58, DECISION NO 14/55 DELEGATED THE ADMINISTRATION OF THE FINANCIAL ARRANGEMENTS TO THE OCCF AND TO THE CPFI ' SUBJECT TO THE RESPONSIBILITY OF THE HIGH AUTHORITY '. BY VIRTUE OF THESE WORDS THE SAID AUTHORITIES WERE PLACED UNDER THE SUPERVISION OF THE HIGH AUTHORITY, AND THE LATTER WAS MADE RESPONSIBLE FOR AN APPROPRIATE SUPERVISION OF THE SCHEME . THIS SYSTEM WAS INTENDED TO GIVE A CERTAIN AMOUNT OF AUTONOMY TO THE OCCF AND TO THE CPFI, AND THE APPLICANT UNDERTAKINGS WERE NOT UNACQUAINTED WITH THE ADMINISTRATION OF THESE TWO BODIES . THE SYSTEM THUS CANNOT BE CONSIDERED AS ONE IN WHICH RESPONSIBILITY WAS TRANSFERRED ABSOLUTELY AND AUTOMATICALLY TO THE SAID BODIES, BUT AS AN ARRANGEMENT REQUIRING THE HIGH AUTHORITY TO EXERCISE REASONABLE SUPERVISION .

P.937

IT IS NOT DENIED THAT THE PROMISES MADE AND CARRIED OUT BY THE OCCF, AND IN PARTICULAR BY SOME OF ITS REGIONAL OFFICES, OCCURRED WITHOUT ANY CONSULTATION WITH OR APPROVAL BY THE BOARD OF ADMINISTRATION ON WHICH THE DEFENDANT WAS REPRESENTED . FURTHERMORE THE ACTIVITIES UNDERTAKEN UNDER THE EQUALIZATION SCHEME WERE SO NUMEROUS, DIVERSE AND DECENTRALIZED THAT IT WAS NOT POSSIBLE TO UNDERTAKE A SPECIFIC AND IMMEDIATE INVESTIGATION OF EACH ACTION . HOWEVER, IN VIEW OF THE FACT THAT THE PROMISES AT ISSUE EXTENDED OVER A PERIOD OF SEVERAL YEARS, IN THE LONG TERM THEY COULD NOT HAVE ESCAPED THE ATTENTION OF THE HIGH AUTHORITY . IN FACT THE TOTAL AMOUNT OF SUMS PAID IN RESPECT OF TRANSPORT PARITY MOUNTED UP OVER THE YEARS TO A CONSIDERABLE SUM . IT CAME TO MORE THAN .5 MILLION DOLLARS FOR THE WHOLE PERIOD DURING WHICH THE EQUALIZATION SCHEME WAS OPERATING, BOTH BEFORE AND AFTER DECISION NO 13/58 . THE CONCLUSION TO BE DRAWN FROM THIS IS THAT ALTHOUGH THE FIRST PROMISES COULD CERTAINLY STILL BE ATTRIBUTED TO SOME REASON OTHER THAN LACK OF CARE ON THE PART OF THE DEFENDANT IN EXERCISING ITS SUPERVISION, NEVERTHELESS IT MUST BE RECOGNIZED THAT TOWARDS THE END OF THE PERIOD PRIOR TO DECISION NO 13/58 THE HIGH AUTHORITY'S LACK OF CARE BECAME INCREASINGLY OBVIOUS .

DECISION NO 13/58 GAVE THE HIGH AUTHORITY THE POWERS PREVIOUSLY DELEGATED TO THE OCCF AND TO THE CPFI, AND ONLY LEFT THE LATTER, OR ANY OTHER APPROPRIATE BODY, WITH THE TASK OF CARRYING OUT INSTRUCTIONS . FROM 1 AUGUST 1958, THE DATE WHEN DECISION NO 13/58 ENTERED INTO FORCE, THE HIGH AUTHORITY'S DUTY WAS NO LONGER JUST TO SUPERVISE THE EQUALIZATION SCHEME BUT IT BECAME DIRECTLY RESPONSIBLE FOR THE ACTIONS TAKEN UNDER THE EQUALIZATION SCHEME, INCLUDING THE PROMISES IN CONNEXION WITH THE TRANSPORT PARITY REIMBURSEMENTS .

IT FOLLOWS FROM THESE CONSIDERATIONS THAT, BOTH AS REGARDS THE PERIOD BEFORE AND THE PERIOD AFTER THE DECISION NO 13/58, THE PROMISES TO GRANT TRANSPORT PARITIES WHICH WERE GIVEN FROM 1 JANUARY 1957 ONWARDS ARE ATTRIBUTABLE TO WRONGFUL ACTS OR OMISSIONS ON THE PART OF THE HIGH AUTHORITY OF A NATURE SUCH AS TO MAKE IT RESPONSIBLE FOR THEM . THEREFORE THE HIGH AUTHORITY MUST BE HELD ACCOUNTABLE FOR DAMAGE ARISING OUT OF THE DELIVERIES OF SHIPYARD SCRAP ON ORDERS PLACED AS FROM THAT DATE .

2 . THE OBJECTIONS OF A GENERAL NATURE RAISED BY THE DEFENDANT

( A ) THE DEFENDANT ARGUES THAT THE ALLEGED DAMAGE CANNOT BE ASSESSED .

P.938

WHEN IT IS NECESSARY TO CONSIDER A SITUATION AS IT WOULD HAVE BEEN IF THERE HAD BEEN NO WRONGFUL ACT OR OMISSION, THE COURT MUST, WHILST INSISTING THAT ALL AVAILABLE EVIDENCE BE PRODUCED, ACCEPT REALISTIC APPROXIMATIONS, SUCH AS AVERAGES WHICH HAVE BEEN ESTABLISHED BY MEANS OF COMPARISONS .

( B ) THE DEFENDANT ALLEGES THAT THE UNDERTAKINGS WERE NOT FREE TO CHOOSE AT WILL BETWEEN SHIPYARD SCRAP AND SCRAP EXPORTED TO THE COMMUNITY, AND COULD NOT THEREFORE BE SURE OF OBTAINING THE LATTER INSTEAD OF THE FORMER . IT IS FURTHER ASSERTED THAT THE CPFI HAD THE POWER TO DETERMINE THE QUANTITIES OF FERROUS SCRAP ACCEPTED FOR EQUALIZATION, AND IN PARTICULAR TO PUT SHIPYARD SCRAP IN A PRIVILEGED POSITION IN THIS RESPECT .

THE EXPLANATIONS GIVEN BY THE APPLICANTS, WHICH ARE NOT CONTRADICTED BY THE DEFENDANT, SHOW THAT DURING THE PERIOD WHEN THE EQUALIZATION SCHEME WAS OPERATING THE QUESTION OF IMPOSING AN OFFICIAL ALLOCATION BY WAY OF COMPULSORY POWERS NEVER AROSE .

( C ) THE DEFENDANT ALSO ASSERTS THAT THE QUALITY OF SHIPYARD SCRAP HAS ALWAYS BEEN CONSIDERED BETTER THAN THAT OF IMPORTED FERROUS SCRAP AND THAT THEREFORE THE APPLICANT UNDERTAKINGS WOULD HAVE TAKEN SUPPLIES OF SHIPYARD SCRAP EVEN WITHOUT THE TRANSPORT PARITY GRANT .

THE APPLICANTS HAVE REPLIED THAT THE QUALITY OF IMPORTED FERROUS SCRAP, AT LEAST AS REGARDS THE SCRAP ORIGINATING IN AMERICA, IS COMPARABLE TO THE QUALITY OF SHIPYARD SCRAP AND THIS HAS NOT BEEN CONTESTED BY THE DEFENDANT .

( D ) FINALLY, THE DEFENDANT OBJECTS THAT WHEN CONSUMERS PLACED THEIR ORDERS FOR IMPORTED FERROUS SCRAP THEY DID NOT KNOW WHAT THE FINAL COST OF THESE ORDERS WOULD BE, BECAUSE THE EQUALIZATION PRICE WAS CALCULATED ON THE BASIS OF THE PRICES ACTUALLY QUOTED ON THE COMMUNITY MARKET DURING THE MONTH WHEN DELIVERY TOOK PLACE . ACCORDING TO THE DEFENDANT THE PROMISE WITH REGARD TO THE TRANSPORT PARITY COULD NOT, THEREFORE, HAVE BEEN THE DECISIVE FACTOR, AS THE APPLICANTS ALLEGE, IN THEIR CHOICE BETWEEN SHIPYARD SCRAP AND IMPORTED FERROUS SCRAP . THE DEFENDANT SAYS THAT THE UNDERTAKINGS' UNCERTAINTY AS TO THE FINAL COST OF THEIR ORDERS FOR FERROUS SCRAP IS CONFIRMED BY THE FACT THAT THE APPLICANTS IN CASES 29/63 ( PROVIDENCE ) AND 50/63 ( USINOR ) EACH CLAIMED IN THEIR REPLY DAMAGE AMOUNTING TO FF 211 264.14 AND FF 218 802.62 RESPECTIVELY, ALTHOUGH THE SUMS WHICH THEY RECEIVED IN RESPECT OF THE TRANSPORT PARITY GRANT WERE NOT MORE THAN FF 200 369.71 AND FF 211 432.55 . ACCORDING TO THE DEFENDANT THIS CALCULATION MADE BY THE APPLICANTS SHOWS THAT THE TRANSPORT PARITY GRANT WAS NOT A COMPENSATION FOR THE LOSS WHICH THESE UNDERTAKINGS SUFFERED BECAUSE OF THE PREFERENCE GIVEN TO SHIPYARD SCRAP OVER IMPORTED FERROUS SCRAP .

P.939

THE FACT THAT THE EQUALIZATION PRICE WAS NOT KNOWN UNTIL AFTER THE MAKING OF THE CONTRACT CANNOT BE DENIED . NEVERTHELESS IT REMAINS POSSIBLE THAT THE TRANSPORT PARITY GRANT WAS A DECISIVE FACTOR IN THE CHOICE MADE BY THE APPLICANTS, WHOSE WORKS WERE FURTHER AWAY FROM THE SHIP-BREAKERS' YARDS THAN FROM THE PORTS THROUGH WHICH THE IMPORTS CAME . THE DAMAGE RESULTS FROM THE FACT THAT THE FREEDOM OF CHOICE OF THE APPLICANT UNDERTAKINGS WAS IMPAIRED BY THE PROMISES IMPROPERLY GIVEN TO THEM WITH REGARD TO THE TRANSPORT PARITY GRANT . MOREOVER THE FACT THAT THE APPLICANT UNDERTAKINGS DID NOT KNOW THE EQUALIZATION PRICES AT THE TIME WHEN THEY MADE THIS CHOICE CANNOT HAVE HAD AN INFLUENCE ON THEIR DECISION . FOR IN SPITE OF THIS UNCERTAINTY, THEY WERE SURE OF PAYING THE SAME PRICE, CALLED THE EQUALIZATION PRICE, FOR ANY ONE GRADE OF FERROUS SCRAP, WHETHER IT CAME FROM SHIP-BREAKERS' YARDS OR WAS IMPORTED . THEREFORE THE DECISION TO TURN TO THE ONE SOURCE OF SUPPLY OR THE OTHER IN FACT DEPENDED ON AS ACCURATE AN ASSESSMENT AS POSSIBLE OF THE TRANSHIPMENT COSTS AND OF CHARGES FOR CARRIAGE INSIDE THE COMMUNITY .

3 . THE DAMAGE ALLEGED BY THE APPLICANT UNDERTAKINGS

IN ASSESSING THEIR LOSS THE APPLICANTS HAVE USED THE ONLY METHOD POSSIBLE . THIS CONSISTS IN IMAGINING THE POSITION WHICH WOULD HAVE ARISEN FOR EACH FACTORY CONCERNED AS REGARDS THE PURCHASE OF FERROUS SCRAP, IF THE PROMISES RELATING TO THE TRANSPORT PARITY HAD NOT BEEN MADE . ALTHOUGH IN USING THIS METHOD IT IS NOT POSSIBLE TO ARRIVE AT AN EXACT ASSESSMENT OF THE DAMAGE, NEVERTHELESS THE SAMPLING METHODS HABITUALLY USED IN ECONOMIC SURVEYS MAKE IT POSSIBLE TO REACH ACCEPTABLE APPROXIMATIONS PROVIDED THAT THE BASIC FACTS ARE SUFFICIENTLY RELIABLE .

THE EXPERT APPOINTED BY THE COURT, IN PERFORMING THE TASK ENTRUSTED TO HIM, HAS ATTEMPTED TO DECIDE HOW MUCH WEIGHT SHOULD BE GIVEN BOTH IN QUALITATIVE AND QUANTITATIVE TERMS TO THE VARIOUS SUPPORTING DOCUMENTS PUT IN EVIDENCE . IN HIS OPINION THE DOCUMENTS PRODUCED ARE SUFFICIENTLY CONCLUSIVE, BOTH QUALITATIVELY AND QUANTITATIVELY . HE ALSO THINKS THAT THEY CONSTITUTE A RELIABLE BASIS FOR DETERMINING THE LEVEL OF TRANSPORT COSTS BY RAIL AND BY WATERWAY WHICH WERE IN FACT BORNE BY THE APPLICANT UNDERTAKINGS FOR THE CARRIAGE OF FERROUS SCRAP ORIGINATING IN THIRD COUNTRIES DURING THE YEARS WHEN THEY USED THE SHIPYARD SCRAP IN DISPUTE IN THESE CASES .

IN RECONSTRUCTING THE POSITION AS IT WOULD HAVE BEEN IF THE APPLICANTS COULD HAVE FREELY CHOSEN TO USE IMPORTED FERROUS SCRAP, THE EXPERT HAS TAKEN INTO ACCOUNT THE PORTS WHICH WERE IN FACT USED, INCLUDING THE MINOR PORTS, AND THIS HAD LED HIM TO MAKE ALTERATIONS TO THE APPLICANTS' CALCULATIONS . THE DEFENDANT HAS MADE THE OBSERVATION, AS REGARDS THE TRANSPORT BY RAIL OF SHIPYARD SCRAP, THAT THE APPLICANTS HAD USED THE MOST EXPENSIVE FORM OF TRANSPORT, BUT THE EXPERT HAS RIGHTLY POINTED OUT THAT SINCE THE CPFI HAD APPROVED THE PROVISION FOR THIS MEANS OF TRANSPORT IN CONTRACT, THE APPLICANTS HAVE DONE NO MORE THAN KEEP WITHIN THE BOUNDS OF WHAT WAS AGREED . THE EXPORT HAS ALSO MADE JUDICIOUS USE OF CALCULATIONS INVOLVING WEIGHTED AVERAGES FOR WORKING OUT THE TRANSPORT COSTS . HE HAS EXAMINED THE TRANSHIPMENT CHARGES APPLIED IN THE PORTS, AND THIS HAD LED HIM TO APPROVE IN GENERAL TERMS THE FIGURES PUT FORWARD BY THE APPLICANTS .

P.940

IN ITS WRITTEN OBSERVATIONS ON THE EXPERT'S REPORT, THE DEFENDANT HAS OBJECTED THAT, WHEN THE EXPERT WAS COMPARING THE COST PRICE OF SHIPYARD SCRAP WITH THAT OF IMPORTED SCRAP IN CALCULATING THE AMOUNT OF THE DAMAGE SUFFERED, HE SHOULD HAVE TAKEN INTO ACCOUNT NOT ONLY THE EQUALIZATION PRICE AND TRANSPORT COSTS INSIDE THE COMMUNITY, BUT ALSO THE INCREASE IN CONTRIBUTIONS WHICH THE APPLICANTS WOULD HAVE HAD TO BEAR BECAUSE OF THE EXTRA IMPORTS, AND WHICH WOULD HAVE BEEN IN PROPORTION TO THEIR BASIS OF ASSESSMENT .

IT IS NECESSARY TO TAKE THIS OBJECTION INTO ACCOUNT IN ASSESSING THE DAMAGE SUFFERED . IT IS INDEED UNDENIABLE THAT DURING THE PERIOD AT ISSUE THE UNDERTAKINGS CONTRIBUTING TO THE EQUALIZATION SCHEME WOULD HAVE HAD TO BEAR AN INCREASED CHARGE BECAUSE OF THE ADDITIONAL PURCHASE OF IMPORTED FERROUS SCRAP INSTEAD OF SHIPYARD SCRAP . DURING THE HEARING ON 28 SEPTEMBER 1965 THE APPLICANTS ARGUED, BUT TO NO PURPOSE, THAT THE FIGURES PUT FORWARD BY THE DEFENDANT WERE BASED ON THE TOTAL TONNAGE OF IMPORTED FERROUS SCRAP WHICH WOULD HAVE BEEN CONSUMED INSTEAD OF THE SHIPYARD SCRAP WHICH WAS IN FACT CONSUMED, AND THAT THEY SHOULD NOT BE PLACED AT A DISADVANTAGE BECAUSE OF THE JOINDER OF THEIR APPLICATIONS . IN THE COURT'S OPINION THE CALCULATION OF THE WHOLE OF THE QUANTITIES OF IMPORTED FERROUS SCRAP WHICH WOULD HAVE BEEN CONSUMED BY THE APPLICANTS IN PLACE OF THE SHIPYARD SCRAP IS TO BE EXPLAINED, NOT BY THE JOINDER OF THE APPLICATIONS, BUT BY THE STRUCTURE OF THE EQUALIZATION SCHEME, THE UNDERLYING PROPOSITION FOR WHICH WAS THE INTERDEPENDENCE OF ALL THE UNDERTAKINGS INVOLVED .

FOR THE ASSESSMENT OF THE DAMAGE ALLEGEDLY SUFFERED BY THE APPLICANTS, IT IS NECESSARY TO TAKE ACCOUNT OF THE FACTORS CONSIDERED RELEVANT BY THE EXPERT, WITH THE CORRECTIONS RESULTING FROM THE PRESENT JUDGMENT . IN PARTICULAR THE UNDERTAKINGS WHOSE POSITION HAS BEEN ADVERSELY AFFECTED HAVE PRODUCED SUFFICIENTLY PERSUASIVE DOCUMENTARY EVIDENCE TO PROVE THE COSTS RELATING TO THE IMPORTED SCRAP .

AS HAS BEEN SAID BEFORE, THE ASSESSMENT CANNOT BE BASED ON THE WHOLE OF THE FERROUS SCRAP TAKEN INTO CONSIDERATION BY THE EXPERT, BUT ONLY ON THE DELIVERIES OF FERROUS SCRAP MADE TO EACH OF THE APPLICANTS IN RESPECT OF ORDERS PLACED AFTER 31 DECEMBER 1956 . THEREFORE IN ORDER TO ASSESS ANY DAMAGE WHICH MAY HAVE BEEN SUSTAINED, IT IS NECESSARY TO MAKE NEW CALCULATIONS BASED SOLELY ON SHIPYARD SCRAP DELIVERED TO THE APPLICANTS PURSUANT TO ORDERS PLACED FROM 1 JANUARY 1957 ONWARDS, AND WHICH ORIGINALLY ATTRACTED THE TRANSPORT PARITY GRANT .

IT IS THEREFORE PROPER TO GRANT THE PARTIES A STAY OF THREE MONTHS IN ORDER THAT THEY MAY INFORM THE COURT OF THE FIGURES WHICH THEY SHALL BY THEN HAVE AGREED BETWEEN THEM, OR, IF THEY FAIL TO AGREE, IN ORDER THAT THEY MAY SUBMIT THEIR SEPARATE FIGURES TO THE COURT .

Operative part

THE COURT

BY WAY OF PRELIMINARY JUDGMENT, AND WITHOUT PREJUDICE TO ANY OF THE RIGHTS OF THE PARTIES :

1 . REQUIRES THE PARTIES TO PRODUCE TO THE COURT, WITHIN THREE MONTHS FROM THE DATE WHEN THIS JUDGMENT IS DELIVERED, THE FIGURES OF ANY AGREED DAMAGES;

2 . REQUIRES THE PARTIES IN DEFAULT OF AGREEMENT TO LODGE WITH THE COURT, WITHIN THE SAME PERIOD OF THREE MONTHS, SUBMISSIONS CONTAINING THEIR SEPARATE FIGURES;

3 . RESERVES THE COSTS .