7.

Now that the foregoing has been dealt with I shall consider whether there is any foundation to the Commission's argument that an express intention to effect an alignment must be stated at the time the contract is concluded. There is no provision in force which lays down such an obligation clearly and unequivocally, or indeed the obligation to refer to the alignment effected in the business books and accounting documents. The defendant refers to Article 1 of Decision No 14/64 of the High Authority which provides that undertakings must make available to officials or agents of the High Authority carrying out checks or verifications as regards prices, business books and accounting documents including at least information concerning ‘price and all other conditions of sale’. The Commission deduces from this that the means of forming the price, in particular if it is based on the criterion of alignment, must be shown in the documents. This also corresponds to the requirements laid down by the Court in its judgment of 12 July 1962 in Case 16/61 Acciaierie Ferriere e Fonderie di Modena [1962] ECR 289 in accordance with which the alignment must be made on the basis of factors which are ‘known and verifiable’. The Commission observes that those requirements would be set at nought if undertakings could disregard published prices and subsequently justify their conduct on the basis of their intention to align their prices. It nevertheless appears necessary to discount the argument that the requirement to make express reference to the alignment in the contract of sale may be inferred from the said obligation to state the price (which is naturally made clear in the order in the present case, altnough without details of the method by which it was determined), still less from the obligation to mention the other conditions of sale (as distinct from the price). In my view the existence of an obligation or a formal nature, failure to fulfil which carries a pecuniary sanction, cannot be inferred without a clear provision, which is absent in the present case. Since there is no provision of that nature it is insufficient to rely, as does the defendant, on the circular of the High Authority of 20 December 1962. Apart from the fact that the circular in question was not binding, being essentially intended to inform undertakings of the said judgment of the Court of 12 July 1962 in Case 16/61, it recognized by implication that there was no formal obligation as strict as that which the defendant now seeks to establish. The High Authority in fact merely ‘urgently recommended’ the undertakings, in sales effected at aligned prices, to mention in the documents confirming the sale the price list on which the alignment was effected, in order to avoid the risk of disputes and, where appropriate, fines. At the time of the said circular the Community executive did not appear to exclude the possibility that undertakings might furnish evidence such as to prove that, although there was no express reference to an alignment at the time of the contract, the reduction made with regard to the list price was effected on the basis of an alignment. The defendant recalls in support of its point of view the abovementioned judgment of 12 July 1962 in Case 16/61. According to that judgment the right to align prices ‘constitutes an exception to the principle of list prices, but it must not divest that principle of all effect through the exclusion of publicity by means of alignments carried out a posteriori’. However, the context of the judgment shows that the Court was referring exclusively to cases in which the alignment was relied upon in justification of discounts granted at the time of implementation of the contract in relation to the price stated in the invoices and the accounting documents of the undertaking. In the present case, on the other hand, Rumi has not been charged with any accounting contrivance. The reductions granted by the applicant in relation to its list prices were clearly stated in the invoices and other accounting documents and are undoubtedly contemporaneous with the conclusion of the contracts of sale. This means that there is a clear distinction between the present case and that with which the said judgment was concerned. The sole criterion resulting from that previous case which must be considered applicable to the present one is the requirement that determination of the price by the method of alignment must truly be effected at the time when the contract is concluded and that accordingly the price must remain fixed at the time of implementation of the contract, It is in fact clear that when the Court refers to an alignment carried out ‘a posteriori’ it means instances where the price actually charged is less than that mentioned in the contract and shown in the accounting documents of the undertaking. In that context the reference to known and verifiable factors, on the basis of which it is possible to establish that the alignment is correct, merely means that the price actually charged must coincide with that shown on the invoice and in the accounting documents and that regard may be had only to price lists which are official, and can thus be objectively checked, of the competing undertakings on which the alignment was carried out. I certainly do not wish to dispute that it is useful, in order to assist investigations by the Commission, that information capable of identifying the alignment should appear in the undertakings's books. What I do dispute is that there is a clear obligation of that nature at present incumbent on undertakings. Turning to the present case I note that Rumi advanced the justification of alignment for the first time not before this Court but when the administrative procedure was begun, as soon as the objections were formally made known to it. The applicant has pointed out that in its statement of 15 October 1977 it gave details relating to every individual contract of the competing undertakings on which it had effected the alignment. Failure by the representatives of the undertaking to mention the alignment in the course of the investigation carried out by the agents of the Commission does not seem to me sufficient evidence to substantiate an allegation of bad faith against the applicant. An inspection is not a contentious procedure in which the person concerned is required to set out all the arguments constituting his defence; in particular, it does not appear reasonable to claim that it is the duty of administrative personnel to point out, in connexion with a check on accounting documents, a circumstance whose relevance to the assessment of the undertaking's conduct could not have been fully understood by them.