Judgment of the Court of 15 December 1961. - Société Fives Lille Cail and others v High Authority of the European Coal and Steel Community. - Joined cases 19-60, 21-60, 2-61 and 3-61.



European Court reports

French edition Page 00561

Dutch edition Page 00593

German edition Page 00613

Italian edition Page 00547

English special edition Page 00281

Danish special edition Page 00269

Greek special edition Page 00631

Portuguese special edition Page 00637



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . PROCEDURE - ACTION FOR FAILURE TO ACT - ADMISSIBILITY - HIGH AUTHORITY'S DUTY TO ACT - FINDING REQUIRED

( ECSC TREATY, FIRST PARAGRAPH OF ARTICLE 35 )

2 . PROCEDURE - APPLICATIONS - PROCEDURAL REQUIREMENTS - REVIEW BY THE COURT OF ITS OWN MOTION

( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC, ARTICLE 22; RULES OF PROCEDURE OF THE COURT OF JUSTICE, ARTICLE 38 )

3 . PROCEDURE - APPLICATIONS - PROCEDURAL REQUIREMENTS - SUBMISSIONS RELIED UPON - TERMINOLOGY - SUMMARY - CONCEPT

( PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC, ARTICLE 22; RULES OF PROCEDURE OF THE COURT OF JUSTICE, ARTICLE 38 )

4 . PROCEDURE - ACTION FOR DAMAGES - ADMISSIBILITY

( ECSC TREATY, ARTICLE 40 )

Summary

1 . THE ADMISSIBILITY OF AN ACTION FOR FAILURE TO ACT BASED ON THE FIRST PARAGRAPH OF ARTICLE 35 IS SUBJECT IN THE FIRST PLACE TO A FINDING THAT THE HIGH AUTHORITY HAD, UNDER A PROVISION OF THE TREATY OR OF RULES LAID DOWN FOR THE IMPLEMENTATION THEREOF, A DUTY TO TAKE A DECISION OR MAKE A RECOMMENDATION .

2 . THE COURT MUST OF ITS OWN MOTION CONSIDER WHETHER THE PROVISIONS GOVERNING THE FORM OF APPLICATIONS HAVE BEEN COMPLIED WITH SINCE THOSE PROVISIONS AFFECT NOT ONLY THE INTERESTS OF THE PARTIES BUT ALSO THE RIGHT OF THE COURT TO EXERCISE ITS POWER OF JUDICIAL REVIEW .

3 . THE WORDS 'BRIEF STATEMENT OF THE GROUNDS' USED IN THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE AND THE RULES OF PROCEDURE MEAN THAT, ALTHOUGH THE APPLICATION NEED NOT CONFORM WITH THE PHRASEOLOGY OF THE FIRST PARAGRAPH OF ARTICLE 33, IT MUST SPECIFY THE NATURE OF THE GROUNDS ON WHICH THE APPLICATION IS BASED . ALTHOUGH A MERE ABSTRACT STATEMENT OF THE GROUNDS IN THE APPLICATION DOES NOT ALONE SATISFY THIS REQUIREMENT, THE GROUNDS MAY BE EXPRESSED IN TERMS OF THEIR SUBSTANCE RATHER THAN OF THEIR LEGAL CLASSIFICATION PROVIDED THAT THE GROUND OF COMPLAINT RELIED UPON IS ESTABLISHED IN RELATION TO THE FACTS WHICH HAVE BEEN SET OUT .

4 . WHEN BROUGHT AS AN ALTERNATIVE TO AN APPLICATION FOR ANNULMENT, AN APPLICATION FOR DAMAGES UNDER ARTICLE 40 OF THE ECSC TREATY IS ADMISSIBLE ONLY IF IT IS BASED ON GROUNDS WHICH ARE INDEPENDENT OF THOSE OF THE APPLICATION FOR ANNULMENT .

Parties

IN JOINED CASES

19/60 SOCIETE FIVES LILLE CAIL, WHOSE REGISTERED OFFICE IS AT 7, RUE DE MONTALIVET, PARIS, REPRESENTED BY RAYMOND BARRAINE, HEAD OF ITS ADMINISTRATION AND LEGAL DEPARTMENTS,

21/60 SOCIETE UNION SIDERURGIQUE DU NORD DE LA FRANCE ( HEREINAFTER REFERRED TO AS 'USINOR '), WHOSE REGISTERED OFFICE IS AT 14 RUE D'ATHENES, PARIS, REPRESENTED BY RENE DAMIEN, CHAIRMAN OF ITS BOARD OF MANAGEMENT,

2/61 SOCIETE DES FORGES ET ATELIERS DU CREUSOT, WHOSE REGISTERED OFFICE IS AT 15, RUE PASQUIER, PARIS, REPRESENTED BY GEORGES CHAMBON, ITS MANAGING DIRECTOR,

3/61 SOCIETE MARREL FRERES, WHOSE REGISTERED OFFICE IS AT 28 RUE CLAUDE-DRIVON, RIVE-DE - GIER ( LOIRE ), REPRESENTED BY JACQUES MARREL, ITS GENERAL MANAGER,

ASSISTED BY JEAN-PIERRE ARON, ADVOCATE AT THE COUR D'APPEL, PARIS, 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, ITALO TELCHINI, ACTING AS AGENT, AND PROFESSOR ANDRE DE LAUBADERE, OF THE UNIVERSITY OF PARIS, ACTING AS CO-AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICE AT 2 PLACE DE METZ, DEFENDANT,

Subject of the case

APPLICATION :

( A ) IN CASE 19/60

FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE HIGH AUTHORITY REFUSING TO PAY TO THE APPLICANT, FIVES LILLE CAIL, AS PARITY OF TRANSPORT COSTS ( HEREINAFTER REFERRED TO AS 'TRANSPORT PARITY '), THE SUM OF FF 5 764.16 REPRESENTING THE DIFFERENCE BETWEEN THE COST OF CARRIAGE OF FERROUS SCRAP TO THE RECIPIENT WORKS FROM, ON THE ONE HAND, THE NEAREST STATION TO THE SCRAP RECOVERY YARD AND, ON THE OTHER, THE NEAREST PORT OF ENTRY; OR IN THE ALTERNATIVE, FOR AN ORDER THAT THE HIGH AUTHORITY PAY AS DAMAGES TO THE SAID APPLICANT THE SUM OF FF 5 764.16;

( B ) IN CASE 21/60

FOR THE ANNULMENT OF THE IMPLIED DECISION OF THE HIGH AUTHORITY REFUSING TO PAY THE APPLICANT, USINOR, THE SUM OF FF 14 912.71 AS TRANSPORT PARITY IN RESPECT OF THE SAID FERROUS SCRAP; IN THE ALTERNATIVE, FOR AN ORDER THAT THE HIGH AUTHORITY PAY AS DAMAGES TO THE SAID APPLICANT THE SUM OF FF 14 912.71;

( C ) IN CASE 2/61 :

FOR THE ANNULMENT OF THE ENFORCEABLE DECISION OF THE HIGH AUTHORITY OF 14 DECEMBER 1960 ORDERING THE APPLICANT, THE SOCIETE DES FORGES ET ATELIERS DU CREUSOT, TO REPAY TO IT THE AMOUNT OF FF 20 800 WHICH HAD BEEN WRONGLY PAID TO THE APPLICANT UNDER THE SCHEME FOR THE EQUALIZATION OF IMPORTED SCRAP AND SCRAP TREATED AS SUCH; IN THE ALTERNATIVE, FOR AN ORDER THAT THE HIGH AUTHORITY PAY AS DAMAGES TO THE SAID APPLICANT THE SUM OF FF 20 800;

( D ) IN CASE 3/61 :

FOR THE ANNULMENT OF THE ENFORCEABLE DECISION OF THE HIGH AUTHORITY OF 14 DECEMBER 1960 ORDERING THE APPLICANT, MARREL FRERES, TO REPAY TO IT THE AMOUNT OF FF 4 760; IN THE ALTERNATIVE, FOR AN ORDER THAT THE HIGH AUTHORITY PAY AS DAMAGES TO THE SAID APPLICANT THE SUM OF FF 4 760 .

Grounds

P . 293

I - THE APPLICATIONS FOR ANNULMENT

ADMISSIBILITY

CONSIDERATION MUST FIRST BE GIVEN TO THE ADMISSIBILITY OF THE APPLICATIONS . THIS QUESTION ARISES IN A DIFFERENT FORM IN CASES 19 AND 21/60 ON THE ONE HAND AND IN CASES 2 AND 3/61 ON THE OTHER .

1 . CASES 19 AND 21/60

THESE APPLICATIONS ARE AGAINST AN IMPLIED DECISION OF REFUSAL BY THE HIGH AUTHORITY OF REQUESTS FOR THE PAYMENT OF CERTAIN SUMS AS TRANSPORT PARITY . THEIR ADMISSIBILITY IS THEREFORE SUBJECT TO THE CONDITIONS LAID DOWN BY ARTICLE 35 OF THE TREATY FOR THE INSTITUTION OF AN ACTION FOR FAILURE TO ACT .

P . 294

THE ADMISSIBILITY OF SUCH AN ACTION IS SUBJECT IN THE FIRST PLACE TO A FINDING THAT THE HIGH AUTHORITY HAD, UNDER A PROVISION OF THE TREATY OR RULES LAID DOWN FOR THE IMPLEMENTATION THEREOF, A DUTY TO TAKE A DECISION OR MAKE A RECOMMENDATION .

IT IS ESTABLISHED IN THIS CASE THAT NEITHER ANY PROVISION OF THE TREATY NOR ANY DECISION OF GENERAL OR INDIVIDUAL APPLICATION WHICH WOULD CONSTITUTE A RULE LAID DOWN FOR THE IMPLEMENTATION THEREOF PROVIDED FOR OR GOVERNED ANY ALLOWANCE WHATEVER AS TRANSPORT PARITY . NONE OF THE DECISIONS ADOPTED BY THE HIGH AUTHORITY UNDER ARTICLE 53 OF THE TREATY, THE LEGAL BASIS FOR THE INSTITUTION AND THE WORKING OF THE EQUALIZATION SCHEME, CONTAINS OR LAYS DOWN SPECIFIC RULES ON THIS SUBJECT . WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER THESE DECISIONS FORMALLY PRECLUDE THE PRACTICE REGULARLY FOLLOWED IN RESPECT AND TO THE ADVANTAGE OF THE APPLICANTS, THEY COULD NOT IN ANY CASE, IN THE ABSENCE OF A GENERAL FOUNDATION IN LAW, CONSTITUTE RULES LAID DOWN FOR THE IMPLEMENTATION OF THE TREATY WHICH COULD CREATE FOR THE HIGH AUTHORITY A DUTY TO ACT IN A PARTICULAR MANNER . SINCE THE HIGH AUTHORITY WAS UNDER NO DUTY TO ACT, THE CONDITIONS LAID DOWN IN THE FIRST PARAGRAPH OF ARTICLE 35 ARE THEREFORE NOT SATISFIED .

FURTHERMORE, SINCE THERE WAS NO SUBMISSION ALLEGING MISUSE OF POWERS, IT IS NOT NECESSARY TO ENQUIRE WHETHER IT WAS OPEN TO THE HIGH AUTHORITY TO TAKE ACTION WITHIN THE MEANING OF THE SECOND PARAGRAPH OF ARTICLE 35 .

SINCE, IN THESE CIRCUMSTANCES, THE CONDITIONS OF ARTICLE 35 OF THE TREATY HAVE NOT BEEN FULFILLED, THE ACTION BROUGHT BY THE APPLICANTS MUST BE DECLARED INADMISSIBLE .

2 . JOINED CASES 2 AND 3/61

THE DEFENDANT CONTENDS THAT, IN THE ABSENCE OF DETAILS, THE WORDING OF THE APPLICATIONS DOES NOT MAKE IT POSSIBLE TO IDENTIFY THE SUBSTANCE AND EFFECT OF THE COMPLAINTS OF ULTRA VIRES ACTS AND OF 'INFRINGEMENT OF THE RULES OF LAW RELATING TO THE APPLICATION OF THE TREATY' WHICH MAY ENTAIL THE ANNULMENT OF THE CONTESTED DECISIONS . THUS BOTH THE MANDATORY RULES LAID DOWN IN ARTICLE 22 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND THOSE LAID DOWN IN ARTICLE 38 OF THE RULES OF PROCEDURE, WHICH PROVIDE THAT THE APPLICATIONS ORIGINATING THE PROCEEDINGS SHALL CONTAIN A 'BRIEF STATEMENT OF THE GROUNDS ON WHICH THE APPLICATION IS BASED' HAVE BEEN INFRINGED .

IT IS NOT CLEAR FROM A STUDY OF THE SUBMISSIONS OF THE HIGH AUTHORITY WHETHER IT INTENDED TO CHALLENGE THE APPLICATIONS IN JOINED CASES 2 AND 3/61 FROM THE VIEWPOINT OF PROCEDURAL REQUIREMENTS AS WELL AS THOSE IN JOINED CASES 19 AND 20/60 . NEVERTHELESS, THE COURT MUST OF ITS OWN MOTION CONSIDER THIS QUESTION SINCE THE PROVISIONS GOVERNING THE FORM OF APPLICATIONS AFFECT NOT ONLY THE INTERESTS OF THE PARTIES BUT ALSO THE RIGHT OF THE COURT TO EXERCISE ITS POWER OF JUDICIAL REVIEW .

P . 295

WITH REGARD TO THE WORDING OF THE APPLICATIONS, ALTHOUGH IT MUST BE ACCEPTED THAT THE STATEMENT OF THE GROUNDS FOR INSTITUTING THE PROCEEDINGS NEED NOT CONFORM WITH THE PHRASEOLOGY OR THE LIST IN THE FIRST PARAGRAPH OF ARTICLE 33, IT MAY BE SUFFICIENT FOR THE GROUNDS FOR INSTITUTING THE PROCEEDINGS TO BE EXPRESSED IN TERMS OF THEIR SUBSTANCE RATHER THAN OF THEIR LEGAL CLASSIFICATION PROVIDED, HOWEVER, THAT IT IS SUFFICIENTLY CLEAR FROM THE APPLICATION WHICH OF THE GROUNDS REFERRED TO IN THE TREATY IS BEING INVOKED . A MERE ABSTRACT STATEMENT OF THE GROUNDS IN THE APPLICATION DOES NOT ALONE SATISFY THE REQUIREMENTS OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OR THE RULES OF PROCEDURE . THE WORDS 'BRIEF STATEMENT OF THE GROUNDS' USED IN THOSE INSTRUMENTS MEAN THAT THE APPLICATION MUST SPECIFY THE NATURE OF THE GROUNDS ON WHICH THE APPLICATION IS BASED . THE GROUND OF COMPLAINT RELIED UPON MUST THEREFORE BE ESTABLISHED IN RELATION TO THE FACTS WHICH HAVE BEEN SET OUT . THIS HAS NOT, HOWEVER, BEEN DONE IN THE PRESENT CASE .

THE APPLICANTS HAVE, IN FACT, CONFINED THEMSELVES TO ACCUSING THE HIGH AUTHORITY OF ACTING ULTRA VIRES AND INFRINGING THE RULES OF LAW GOVERNING THE APPLICATION OF THE TREATY WITHOUT SPECIFYING WHAT CONSTITUTED THE ULTRA VIRES ACTS, WHICH IS A GENERAL EXPRESSION CAPABLE OF COVERING ALL CASES IN WHICH AN APPLICATION FOR ANNULMENT IS LODGED AS PROVIDED FOR IN ARTICLE 33, AND, MOREOVER, WITHOUT IDENTIFYING THE RULE OF LAW THE INFRINGMENT OF WHICH BY THE HIGH AUTHORITY IS SUCH AS TO JUSTIFY LODGING AN APPLICATION .

REFERENCE TO AN UNDERTAKING GIVEN TO THE APPLICANTS AND TO AN ASSURANCE GIVEN TO THEM BY THE OCCF OR THE UCFF WHEN CONTRACTS RELATING TO SCRAP WERE ENTERED INTO DOES NOT DISCLOSE A GENERAL AND IMPERSONAL RULE OF LAW THE INFRINGEMENT OF WHICH CAN BY ITSELF INITIATE PROCEEDINGS FOR ANNULMENT . ONLY IN THEIR REPLY DO THE APPLICANTS SPECIFY 'THE RULE OF LAW' ALLEGED TO HAVE BEEN INFRINGED AS THE GENERAL PRINCIPLE GOVERNING THE LEGALITY OF THE REVOCATION OF ADMINISTRATIVE MEASURES, A PRINCIPLE 'WHICH COMES WITHIN THE RULES OF LAW RELATING TO THE APPLICATION OF THE ECSC TREATY '.

THE GROUND FOR ANNULMENT SET OUT IN THESE TERMS WAS REFERRED TO NEITHER DIRECTLY NOR BY IMPLICATION IN THE APPLICATIONS ORIGINATING THE PROCEEDINGS . IT DOES NOT CONSTITUTE THE AMPLIFICATION OF A SUBMISSION SET OUT THEREIN BUT AN ENTIRELY NEW SUBMISSION . THE SUBMISSION WAS ACCORDINGLY, MADE OUT OF TIME AND, FOR THAT REASON, THE APPLICATIONS MUST BE DECLARED INADMISSIBLE .

II - APPLICATIONS FOR DAMAGES

A - ADMISSIBILITY

THE FOUR APPLICANTS SEEK PECUNIARY COMPENSATION FROM THE HIGH AUTHORITY FOR THE DAMAGE WHICH THEY CLAIM WAS CAUSED THEM BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE AUTHORITY IN THE PERFORMANCE OF ITS FUNCTIONS .

P . 296

THIS WRONGFUL ACT OR OMISSION IS ALLEGED TO TAKE THREE FORMS . IN THE FIRST PLACE, THE HIGH AUTHORITY FAILED TO MAKE KNOWN IN GOOD TIME ITS NEW VIEW ON TRANSPORT PARITY AND THUS ALLOWED THE UNDERTAKINGS TO ENTER INTO COMMITMENTS WHICH THEY WOULD HAVE REFRAINED FROM ENTERING INTO IF THEY HAD BEEN PROPERLY INFORMED . SECONDLY, IT FAILED TO PREVENT, BY ADEQUATE SUPERVISION, THE BODIES OPERATING UNDER ITS CONTROL OR UNDER ITS DIRECTION FROM TAKING UNLAWFUL ACTION AND ENTERING INTO ILLEGAL COMMITMENTS . FINALLY, IT IS ACCORDINGLY LIABLE FOR THE UNLAWFUL AND DEFECTIVE WORKING OF THE EQUALIZATION SCHEME .

IN CONSEQUENCE, THE APPLICATIONS FOR COMPENSATION ARE NOT BASED ON THE SUBMISSION THAT THE HIGH AUTHORITY ILLEGALLY WITHDREW FROM THEM RIGHTS AND PRIVILEGES WHICH HAD BEEN GRANTED TO THEM BY THE OCCF . THOSE APPLICATIONS ARE BASED ON GROUNDS WHICH ARE INDEPENDENT OF THOSE OF THE APPLICATIONS FOR ANNULMENT . THEY ARE, CONSEQUENTLY, ADMISSIBLE .

B - SUBSTANCE

1 . WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY

THE DEFENDANT CLAIMS THAT THE APPLICANTS WRONGLY ACCUSED IT OF HAVING, IN 1958, CHANGED ITS MIND WITH REGARD TO TRANSPORT PARITY . ON THE CONTRARY, IT ALWAYS CONSIDERED THAT THIS PARITY COULD NOT FORM PART OF THE EQUALIZATION PRICE, AND IN SUPPORT OF THIS CLAIM THE HIGH AUTHORITY RELIES PRINCIPALLY ON DECISION N . 34/56 . IT FURTHER CONTENDS THAT, ALTHOUGH THE QUESTION OF REFUNDING THE TRANSPORT PARITY WAS RAISED AT THE OCCF, IT WAS NEVER THE SUBJECT OF A DECISION OF PRINCIPAL . HOWEVER, THERE APPEARS TO BE NO NEED TO GO INTO THESE ARGUMENTS . EVEN IF THEY WERE SUBSTANTIATED THEY WOULD NOT ALTER THE FACT, ADMITTED BY THE HIGH AUTHORITY, THAT PROMISES TO REFUND TRANSPORT COSTS WERE ON VARIOUS OCCASIONS MADE AND CARRIED OUT .

THESE PROMISES WERE MADE POSSIBLE ONLY BECAUSE THE HIGH AUTHORITY FAILED TO EXERCISE SUFFICIENT CONTROL OVER THE WORKING OF THE EQUALIZATION SCHEME, WITH THE RESULT, AS IS, MOREOVER, CLEAR FROM ITS OWN STATEMENTS, THAT IT WAS UNAWARE OF THE EXISTENCE OF PRACTICES WHICH WERE INCOMPATIBLE WITH ITS POLICY ON TRANSPORT PARITY .

THE HIGH AUTHORITY CONTENDS IN VAIN THAT IT COULD BE UNAWARE OF THE EXISTENCE AND EXTENT OF THE TRANSPORT PARITY BY SEEKING TO MINIMIZE ITS EFFECT AND REDUCE IT TO 'ERRORS CONFINED TO CERTAIN UNDERTAKINGS IN ONE OF THE COUNTRIES OF THE COMMUNITY '. IN FACT THE SIZE OF THE PAYMENTS MADE AS TRANSPORT PARITY TO FRENCH UNDERTAKINGS ($ 349 021 ), ITALIAN UNDERTAKINGS ($ 160 000 ) AND NETHERLANDS UNDERTAKINGS ($ 13 000 ), WHICH IS A TOTAL OF MORE THAN $500 000, WAS CERTAINLY SUCH AS TO ATTRACT ITS ATTENTION IF IT EXERCISED SUFFICIENT SUPERVISION, ESPECIALLY SINCE IT HAD A PERMANENT REPRESENTATIVE ON THE BOARDS OF MANAGEMENT OF THE BRUSSELS ORGANIZATIONS . IN ANY CASE, THE VERY FACT OF HAVING AUTHORIZED THE EQUALIZATION SCHEME, IN WHATEVER FORM OBLIGED THE HIGH AUTHORITY TO SUPERVISE IT, WHICH IN FACT WAS THE PRINCIPLE LAID DOWN BY ARTICLE 1 OF DECISION N.S 22/54 AND 14/55 SETTING UP THE SAID SCHEME . THE HIGH AUTHORITY'S FAILURE TO EXERCISE ADEQUATE SUPERVISION IS FURTHER AGGRAVATED AS REGARDS THE PRESENT DISPUTES . IN THESE CASES THE ASSURANCES WITH REGARD TO THE TRANSPORT PARITIES WERE IN FACT GIVEN TO THE APPLICANTS AT A TIME WHEN THE HIGH AUTHORITY NO LONGER LIMITED ITS ACTIVITIES TO MERE SUPERVISION OF THE EQUALIZATION SCHEME BUT HAD, BY DECISION N . 13/58, TAKEN OVER THE ADMINISTRATION OF IT . ALERTED BY PREVIOUS DIFFICULTIES, IT OUGHT TO HAVE INTENSIFIED ITS SURVEILLANCE OF THE ORGANIZATIONS WHICH CONTINUED TO ACT DE FACTO ON ITS BEHALF . WHATEVER THE REASONS FOR THIS FAILURE, IN NOT PREVENTING THEM FROM CONTINUING THEIR PREVIOUS PRACTICES AND, IN PARTICULAR, FROM MAKING PROMISES IN OCTOBER 1958 TO THE FOUR APPLICANT COMPANIES, WITH REGARD TO THE GRANT OF THE TRANSPORT PARITY, WHATEVER WERE THE REASONS FOR THIS OMISSION, IT GRAVELY NEGLECTED THE DUTIES OF SUPERVISION REQUIRED BY A NORMAL STANDARD OF CARE, AND IT IS THIS SHORTCOMING WHICH GIVES RISE TO ITS LIABILITY .

THE DEFENDANT CONTINUES TO MAINTAIN THAT THE LACK OF SUPERVISION CANNOT HAVE AFFECTED THE APPLICANTS ADVERSELY SINCE THE LATTER MUST HAVE BEEN AWARE OF THE ILLEGALITY OF THE MEASURES ADOPTED IN THEIR FAVOUR AND ALSO OF THE LACK OF AUTHORITY OF THE ORGANIZATIONS WHICH HAD ADOPTED THEM .

THIS SUBMISSION CANNOT BE ACCEPTED . THE FACT THAT, BY DECISION N . 13/58, THE FUND HAD BEEN ENTRUSTED WITH THE APPLICATION OF THE FINANCIAL MACHINERY AND THAT, AT THE TIME, SIMILAR PROMISES HAD BEEN REPEATEDLY MADE AND FULFILLED IN THE CASE OF A LARGE NUMBER OF UNDERTAKINGS IN THE COMMUNITY MIGHT LEAD THE APPLICANTS TO BELIEVE THAT THE PROMISES MADE TO THEM WERE LEGAL AND REFLECTED THE INTENTIONS OF THE HIGH AUTHORITY . IT IS IMPOSSIBLE TO ARGUE AGAINST THIS THAT NEITHER THE NATURE OF THE EQUALIZATION SCHEME NOR THE PRINCIPLES OF THE TREATY PERMITTED THE EQUALIZATION RULES TO BE APPLIED IN THIS MANNER . IN FACT, WHATEVER THE MERITS OF SUCH AN ARGUMENT, IT IS NOT IN DISPUTE THAT THE PRACTICE OF TRANSPORT PARITY WAS FORBIDDEN IN CLEAR AND FORMAL TERMS ONLY BY DECISION N . 18/60 . IT IS UNDERSTANDABLE THAT, NOT HAVING MADE A DETAILED STUDY OF THE LEGAL ISSUES LIKELY TO BE INVOLVED IN THIS CONNEXION, THE APPLICANTS REGARDED THAT PRACTICE AS A NORMAL APPLICATION OF THOSE REGULATIONS .

2 . THE APPLICANTS' DAMAGE

THE APPLICANTS ASSESS THE DAMAGE FOR WHICH THEY ARE SEEKING COMPENSATION AS THE AMOUNTS OF TRANSPORT PARITY WHICH WERE PROMISED OR PAID TO THEM . THIS ASSESSMENT IS UNACCEPTABLE . THE WRONGFUL ACT GIVING RISE TO THE LIABILITY OF THE HIGH AUTHORITY IS NOT CAUSED BY THE FACT THAT IT DID NOT PAY THAT PARITY BUT BY THE LACK OF ADEQUATE SUPERVISION OF THE ORGANIZATIONS RESPONSIBLE FOR APPLYING EQUALIZATION . IT IS FROM THIS VIEW, THEREFORE, THAT THE EXISTENCE AND AMOUNT OF DAMAGE MUST BE ASSESSED .

THE EXISTENCE OF DAMAGE CAN BE ACCEPTED ONLY IF IT IS ESTABLISHED THAT THE PURCHASE OF SHIPYARD SCRAP WITHOUT THE BENEFIT OF THE TRANSPORT PARITY GRANT WAS MORE EXPENSIVE FOR THE APPLICANTS THAN AN OUTRIGHT PURCHASE OF IMPORTED FERROUS SCRAP . THE APPLICANTS HAVE NEITHER SUBMITTED NOR OFFERED EVIDENCE ON THIS POINT AND THEIR APPLICATIONS CANNOT THEREFORE BE UPHELD .

Decision on costs

THE APPLICANT PARTIES, HAVING FAILED IN THEIR SUBMISSIONS, MUST, UNDER THE TERMS OF ARTICLE 69 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, BE ORDERED TO PAY THE COSTS .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .