Judgment of the Court of 12 July 1962. - Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. v High Authority of the European Coal and Steel Community. - Case 14/61.



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Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

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1 . ADMINISTRATIVE MEASURE CONFERRING SUBJECTIVE RIGHTS OR SIMILAR ADVANTAGES - ILLEGALITY OF THAT MEASURE - RETROACTIVE WITHDRAWAL OR WITHDRAWAL EX NUNC - ACTUAL SITUATION OF THE PARTIES CONCERNED AS THE CRITERION OF CHOICE

2 . ADMINISTRATIVE MEASURE CONFERRING SUBJECTIVE RIGHTS OR SIMILAR ADVANTAGES - ILLEGALITY OF THAT MEASURE - RETROACTIVE WITHDRAWAL OR WITHDRAWAL EX NUNC - ABSENCE OF FALSE OR INCOMPLETE INFORMATION GIVEN BY THE BENEFICIARIES AS A CRITERION OF CHOICE

3 . ADMINISTRATIVE MEASURE CONFERRING SUBJECTIVE RIGHTS OR SIMILAR ADVANTAGES - ILLEGALITY OF THAT MEASURE - RETROACTIVE WITHDRAWAL - DECISIONS WHICH CREATE AND THOSE DECLARATORY OF SUBJECTIVE RIGHTS - REASONABLE PERIOD OF TIME FOR WITHDRAWAL - RELATIVE IMPORTANCE OF THIS FACTOR

4 . DECISIONS OF THE HIGH AUTHORITY - SUFFICIENT REASONING - CRITERIA

( ECSC TREATY, ARTICLES 15 AND 33 )

Summary

1 . IN THE CONTEXT OF THE BALANCING OF INTERESTS UPON WHICH THE CHOICE BETWEEN RETROACTIVE WITHDRAWAL AND WITHDRAWAL EX NUNC OF AN ILLEGAL DECISION DEPENDS, THE ACTUAL SITUATION OF THE PARTIES CONCERNED MUST BE TAKEN INTO ACCOUNT .

2 . IN THE CONTEXT OF THE BALANCING OF INTERESTS UPON WHICH THE CHOICE BETWEEN RETROACTIVE WITHDRAWAL AND WITHDRAWAL EX NUNC OF AN ILLEGAL DECISION DEPENDS, THE FACT THAT THE BENEFICIARY HAS NOT PROVOKED THAT DECISION BY MEANS OF FALSE OR INCOMPLETE INFORMATION IS ONE OF THE CRITERIA TO BE TAKEN INTO ACCOUNT, BUT IT DOES NOT IN LAW EXCLUDE RETROACTIVE WITHDRAWAL .

3 . THE PRINCIPLE THAT RETROACTIVE WITHDRAWAL OF AN ILLEGAL ADMINISTRATIVE MEASURE CAN ONLY BE MADE WITHIN A REASONABLE PERIOD OF TIME IS ONLY OF LIMITED IMPORTANCE WHERE DECLARATORY DECISIONS ARE CONCERNED; IT THEREFORE CONSTITUTES ONLY ONE OF THE CRITERIA TO BE TAKEN INTO ACCOUNT IN THE BALANCE OF INTERESTS .

4 . A STATEMENT OF REASONS MUST BE DEEMED ADEQUATE, UNDER THE TERMS OF ARTICLES 15 AND 33 OF THE TREATY, WHEN IT ENABLES BOTH THE PARTIES CONCERNED AND THE COURT TO DISCOVER THE ESSENTIAL ELEMENTS OF THE HIGH AUTHORITY'S REASONING .

Parties

IN CASE 14/61

KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N . V ., A LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT VELSEN ( NETHERLANDS ), REPRESENTED BY ITS DIRECTOR, PIETER VAN DELDEN, ASSISTED BY JOSSE MERTENS DE WILMARS, ADVOCATE OF THE ANTWERP BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 27 AVENUE GUILLAUME, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, DR ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY JEAN COUTARD, ADVOCATE OF THE CONSEIL D'ETAT AT PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

SUPPORTED BY

SOCIETE ACIERIES DU TEMPLE, A LIMITED COMPANY HAVING ITS REGISTERED OFFICE AT BILLANCOURT ( SEINE ), REPRESENTED BY ITS GENERAL MANAGING DIRECTOR, EUGENE DE SEZE, ASSISTED BY JEAN DE RICHEMONT, ADVOCATE OF THE PARIS COUR D'APPEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE-II, INTERVENER,

Subject of the case

APPLICATION FOR ANNULMENT OF THE DECISION OF 14 JUNE 1961 WHEREBY THE HIGH AUTHORITY WITHDREW WITH RETROACTIVE EFFECT THE EXEMPTION GRANTED TO THE APPLICANT RELATING TO THE EQUALIZATION OF IMPORTED FERROUS SCRAP;

Grounds

P . 267

ADMISSIBILITY

THE APPLICATION WAS MADE IN DUE AND PROPER FORM AND WITHIN THE APPROPRIATE TIME LIMIT . NO OBJECTION WAS RAISED ON GROUNDS OF ADMISSIBILITY, EITHER BY THE DEFENDANT OR BY THE INTERVENER AND THERE IS NO REASON FOR THE COURT TO RAISE AN OBJECTION OF INADMISSIBILITY OF ITS OWN MOTION . THE APPLICATION IS THEREFORE ADMISSIBLE .

I - ON THE SCOPE OF THE JUDGMENT OF 22 MARCH 1961

1 . IN ITS JUDGMENT OF 22 MARCH 1961 IN JOINED CASES 42 AND 49/59 SOCIETE NOUVELLE DES USINES DE PONTLIEUE - ACIERIES DU TEMPLE ( SNUPAT ) V HIGH AUTHORITY ( REC . 1961, PP . 109 ET SEQ .) ( HEREINAFTER REFERRED TO AS 'THE SNUPAT JUDGMENT ') THE COURT HELD THAT THE HIGH AUTHORITY, IN CONTINUING TO REGARD LOCAL INTEGRATION BETWEEN THE UNDERTAKINGS CONCERNED AS A GROUND FOR NOT APPLYING THE EQUALIZATION LEVY, HAD MISINTERPRETED THE TREATY AND THE BASIC DECISIONS ON THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP AND THAT, IN CONSEQUENCE, THE HIGH AUTHORITY HAD MISINTERPRETED THE COURT'S JUDGMENT OF 17 JULY 1959, IN JOINED CASES 32 AND 33/58 ( SNUPAT V HIGH AUTHORITY, REC . 1958/1959, P . 275 ) WHICH DECLARED GROUP FERROUS SCRAP TO BE SUBJECT TO THE SAID EQUALIZATION .

THE COURT, IN THE SNUPAT JUDGMENT, FOUND THAT SUCH EXEMPTIONS WERE ILLEGAL . THIS FINDING OBLIGED THE HIGH AUTHORITY TO TAKE STEPS TO WITHDRAW THE EXEMPTIONS .

THE QUESTION, HOWEVER, WHETHER THE WITHDRAWAL SHOULD BE MADE RETROACTIVE OR SHOULD TAKE EFFECT ONLY EX NUNC WAS NOT DECIDED BY THE COURT . THE JUDGMENT DECLARED THAT THE QUESTION WHETHER A WITHDRAWAL WITH RETROACTIVE EFFECT WAS ADVISABLE WOULD DEPEND ON AN APPRAISAL OF THE DIFFERENT FACTORS SET OUT IN THE JUDGMENT AND HELD THAT THE MAKING OF THIS APPRAISAL WAS IN THE FIRST PLACE THE DUTY OF THE AUTHORITY EMPOWERED TO WITHDRAW EXEMPTIONS .

HENCE THE COURT, BEING ANXIOUS NOT TO 'PUT ITSELF IN THE PLACE OF THE HIGH AUTHORITY' OR TO DEPRIVE THE APPLICANT EITHER OF THE BENEFIT OF AN ADMINISTRATIVE APPRAISAL, OR OF THE POSSIBILITY OF FURTHER LEGAL ACTION, CONFINED ITSELF TO REFERRING THE MATTER BACK TO THE HIGH AUTHORITY, SO THAT, IN ACCORDANCE WITH ARTICLE 34 OF THE TREATY, THE LATTER MIGHT PROCEED TO MAKE THIS APPRAISAL AND TO TAKE THE DECISION WHETHER OR NOT TO WITHDRAW THE IRREGULAR EXEMPTIONS WITH RETROACTIVE EFFECT .

2 . CONSEQUENTLY, THE DEFENDANT'S ARGUMENT THAT THE COURT, IN ITS EARLIER JUDGMENT, HAD ALREADY ORDERED THE RETROACTIVE WITHDRAWAL OF THE DISPUTED EXEMPTIONS, OR HAD ALREADY DECIDED THAT A WITHDRAWAL WITH RETROACTIVE EFFECT WAS NECESSARY IN THIS CASE, MUST BE DISMISSED .

IN FACT, THE IMPLIED DECISION REFUSING TO WITHDRAW THE DISPUTED EXEMPTIONS 'WITH RETROACTIVE EFFECT' WAS ANNULLED ONLY BECAUSE OF THE ERRONEOUS GROUND ON WHICH IT WAS BASED . IT CANNOT BE INFERRED THAT WITHDRAWAL WITH RETROACTIVE EFFECT WAS IN ANY EVENT OBLIGATORY .

ON THE CONTRARY, IT IS CLEAR FROM THE GROUNDS OF JUDGMENT THAT THE DECISION WHETHER IT WAS APPROPRIATE IN THE PARTICULAR CASE TO WITHDRAW THE EXEMPTION EX NUNC OR EX TUNC WAS REFERRED BACK TO THE HIGH AUTHORITY .

3 . THE HIGH AUTHORITY HAS ARGUED THAT THE SNUPAT JUDGMENT RECOGNIZED ITS DISCRETIONARY POWER TO WITHDRAW EXEMPTIONS WITH RETROACTIVE EFFECT; THIS ARGUMENT IS CORRECT IN THE SENSE THAT THE JUDGMENT REFERRED BACK TO THE HIGH AUTHORITY THE APPRAISAL OF THE FACTS . HOWEVER, THIS DOES NOT MEAN, AS IS APPARENT MOREOVER FROM THE SNUPAT JUDGMENT, THAT THE LEGALITY OF THE DECISION CANNOT BE REVIEWED BY THE COURT, AS IT HAS BEEN IN THE PRESENT APPLICATION .

IN OTHER WORDS, TO RECOGNIZE THE HIGH AUTHORITY'S POWER OF APPRAISAL IS NOT TO DENY THE JURISDICTION OF THE COURT OF JUSTICE TO SEE WHETHER THE DECISION OF THE HIGH AUTHORITY RESTS ON A CORRECT APPLICATION OF THE TREATY, OF THE BASIC DECISIONS AND OF THE RULES RECOGNIZED BY THE SNUPAT JUDGMENT AND WHETHER IT IS ACCORDINGLY JUSTIFIED IN LAW .

IT MUST BE SEEN, THEN, WHETHER THE COMPLAINTS MADE AGAINST THE DISPUTED DECISION ARE VALID .

P . 269

II - COMPLAINTS BASED ON INFRINGEMENT OF THE TREATY AND OF THE RULES OF LAW RELATING TO ITS APPLICATION AND ON MISUSE OF POWERS

1 . THE HIGH AUTHORITY WAS SATISFIED, ON INVESTIGATION OF THE FACTS, THAT THE APPLICANT COULD NOT BE CHARGED WITH HAVING GIVEN ANY FALSE OR INCOMPLETE INFORMATION; IT FOLLOWS THAT SUCH A CHARGE MUST BE EXCLUDED FROM CONSIDERATION AND IS NOT TO BE TAKEN INTO ACCOUNT AS JUSTIFYING THE DISPUTED DECISION .

THE APPLICANT IS WRONG IN ALLEGING THAT THE DEFENDANT HAS MISUNDERSTOOD THE POINT OF THE SNUPAT JUDGMENT IN FAILING TO ATTACH ANY WEIGHT TO THE ABOVEMENTIONED FACT; MOREOVER, AS IS CLEAR FROM THE SNUPAT JUDGMENT, THIS IS ONE OF THE FACTORS TO BE TAKEN INTO CONSIDERATION, BUT IT CANNOT BE CLAIMED THAT, ONCE IT HAS BEEN ESTABLISHED THAT NO FALSE OR INCOMPLETE INFORMATION HAS BEEN SUPPLIED, A WITHDRAWAL OF THE EXEMPTION EX TUNC IS AUTOMATICALLY PRECLUDED .

2 . THE APPLICANT IMPUGNS THE DEFENDANT'S EVALUATION OF THE CONFLICTING INTERESTS INVOLVED, ALLEGING THAT THE HIGH AUTHORITY HAS NOT TAKEN PROPER ACCOUNT OF THE FINANCIAL INTERESTS IN QUESTION, IN THAT IT HAS NOT COMPARED THE BURDEN IMPOSED ON THE APPLICANT BY A RETROACTIVE WITHDRAWAL OF EXEMPTION WITH THE TOTAL AMOUNT OF THE EQUALIZATION CONTRIBUTIONS .

ACCORDING TO THE APPLICANT, SUCH A COMPARISON WOULD SHOW THAT THE AMOUNT DUE FROM HOOGOVENS IN RESPECT OF EQUALIZATION REPRESENTS ONLY ABOUT 0.37% OF THE TOTAL AMOUNT OF THE EQUALIZATION CONTRIBUTIONS, SO THAT THE CONTINUANCE OF ITS EXEMPTION COULD NOT IMPAIR THE REGULAR FUNCTIONING OF THE EQUALIZATION SCHEME, WHICH IS THE MOST IMPORTANT ASPECT OF THE PUBLIC INTEREST TO BE TAKEN INTO ACCOUNT BY THE HIGH AUTHORITY, ACCORDING TO THE SNUPAT JUDGMENT .

THE COURT CANNOT ACCEDE TO THIS ARGUMENT . IN FACT, A COMPARISON OF THE BURDEN IMPOSED ON ONE UNDERTAKING WITH THE TOTAL AMOUNT OF THE CONTRIBUTIONS WOULD STRAIGHTAWAY EXCLUDE ANY WITHDRAWAL OF AN ILLEGAL EXEMPTION, SINCE THE SUM TOTAL OF CONTRIBUTIONS IS ALWAYS OF OVERWHELMING MAGNITUDE . THIS CONCLUSION IS CONTRARY TO THE VIEW ADOPTED BY THE COURT IN ITS PREVIOUS JUDGMENT . MOREOVER, TO LEAVE EXEMPTIONS IN FORCE AS FAR AS THE PAST IS CONCERNED WOULD, WITHOUT JUSTIFICATION, AFFORD THE APPLICANT AN ADVANTAGE OF 5 TO 6 MILLION DUTCH GUILDERS OVER EACH OF THE OTHER UNDERTAKINGS IN THE COMMUNITY . THIS ASPECT OF THE BALANCE OF FINANCIAL INTERESTS MUST NOT BE OVERLOOKED .

3 . THE APPLICANT ALLEGES THAT THE DEFENDANT HAS FAILED TO APPRECIATE THAT THE WITHDRAWAL EX TUNC INVOLVES A REAL LOSS FOR HOOGOVENS AND 'AN ADVANTAGE WITHOUT REASONABLE FOUNDATION' FOR OTHER UNDERTAKINGS . ACCORDING TO THE APPLICANT, THE PERIOD DURING WHICH IT ENJOYED EXEMPTION WAS A PERIOD OF FAVOURABLE MARKET CONDITIONS, WHICH ENABLED EQUALIZATION CONTRIBUTORS TO PASS ON THE BURDEN IN THE LAST RESORT TO THEIR CUSTOMERS, WHILST NOW THERE HAS BEEN A CHANGE IN THE STRUCTURE OF THE THIN SHEET MARKET WHICH WOULD MAKE IT IMPOSSIBLE FOR THE APPLICANT TO DO LIKEWISE .

P . 270

IN THE OPINION OF THE COURT, THIS ARGUMENT IS IRRELEVANT . IT IS REASONABLE TO ASSUME, IN FACT, THAT, WHILE ENJOYING EXEMPTION DURING THE PERIOD OF FAVOURABLE MARKET CONDITIONS, WHICH IT NOW PRAYS IN AID, THE APPLICANT HAD THE ADVANTAGE OVER ITS COMPETITORS OF EITHER, ON THE ONE HAND, MAKING A LARGER PROFIT ON THE SALE OF ITS PRODUCTS OR SELLING THEM AT LOWER PRICES AND SO BEING ASSURED OF A WIDER MARKET OR, ON THE OTHER HAND, USING THE ECONOMIES THUS EFFECTED FOR INVESTMENTS WHICH INCREASED ITS PRODUCTIVE CAPACITY . CONSEQUENTLY, IT MUST BE CONCEDED THAT THE PRESENT DISADVANTAGES HAD THEIR COMPENSATION IN THE ADVANTAGES ENJOYED IN THE PAST .

MOREOVER, EVEN IF THE ALLEGED DISADVANTAGE EXISTS IN PRINCIPLE, IT MUST NOT BE FORGOTTEN THAT A MERE WITHDRAWAL EX NUNC WOULD HAVE ALLOWED THE CONTINUANCE OF A CONSIDERABLY GREATER DIFFERENCE IN TREATMENT BETWEEN THE APPLICANT AND THE OTHER CONTRIBUTING UNDERTAKINGS .

ACCORDINGLY, THIS COMPLAINT MUST ALSO BE DISMISSED .

4 . THE APPLICANT FURTHER COMPLAINS THAT THE DEFENDANT DID NOT LIMIT ITS COMPARATIVE INVESTIGATION ONLY TO THOSE UNDERTAKINGS WHICH PRODUCE SLABS FOR THE MANUFACTURE OF WIDE-STRIP ROLLED SHEETS; IF IT HAD SO LIMITED ITS INVESTIGATION TO THE UNDERTAKINGS IN DIRECT COMPETITION WITH HOOGOVENS, WHICH WERE SET OUT IN THE LIST ANNEXED TO THE APPLICATION, IT WOULD HAVE BEEN REVEALED THAT 97.3% OF THEM ARE INTEGRATED UNDERTAKINGS NOT SUBJECT TO EQUALIZATION . THE CONTINUANCE OF EXEMPTION AS FAR AS THE PAST IS CONCERNED WOULD THEREFORE HAVE CAUSED THEM NO INJURY .

THE COURT IS UNABLE TO ACCEPT THIS ARGUMENT .

( A ) THE INTEREST OF THE COMMUNITY, AS THE SNUPAT JUDGMENT HAS ALREADY LAID DOWN, REQUIRES THAT THE OTHER CONTRIBUTING UNDERTAKINGS SHALL NOT BE MADE TO SUFFER THE EFFECT OF AN EXEMPTION ILLEGALLY GRANTED TO THEIR COMPETITORS .

ONE MUST NOT UNDERESTIMATE THE IMPORTANCE IN THIS CASE OF THE TYPICAL ASPECT OF THE FINANCIAL ARRANGEMENT COVERING UNDERTAKINGS WHICH ARE TO A LARGE EXTENT IN A SITUATION OF MUTUAL COMPETITION, ACTUAL OR POTENTIAL, DIRECT OR INDIRECT, TOTAL OR PARTIAL, TEMPORARY OR PERMANENT .

P . 271

( B ) MOREOVER, EVEN IF THE APPLICANT'S CONTENTION WERE IN FACT CORRECT, IT WOULD STILL BE THE CASE THAT A MERE WITHDRAWAL EX NUNC WOULD HAVE LEFT IT WITH AN ILLEGAL ADVANTAGE, AT LEAST IN RELATION TO THE FEW NON-INTEGRATED UNDERTAKINGS AMONG ITS 'TRUE COMPETITORS '.

( C ) FURTHERMORE, IT IS QUITE CLEAR THAT THE UNDERTAKINGS DESCRIBED BY THE APPLICANT AS 'TRUE COMPETITORS' DO NOT USE THEIR OWN FERROUS SCRAP EXCLUSIVELY; THEY ARE THEREFORE LIABLE ON THIS ACCOUNT FOR THE EQUALIZATION LEVY, AND CONSEQUENTLY HAVE AN INTEREST IN SEEING THAT OTHER CONTRIBUTORS ARE NOT ILLEGALLY EXEMPTED .

( D ) FINALLY, IT IS CONTENDED THAT THE DISPUTED DECISION INVOLVES A DISCRIMINATION AS BETWEEN THE APPLICANT AND ITS COMPETITORS WHICH CONTINUE TO ENJOY THE EXEMPTIONS PROVIDED FOR BY THE BASIC DECISIONS REGARDING OWN RESOURCES . THIS CONTENTION IS DIRECTED FUNDAMENTALLY AGAINST THE VERY SYSTEM SET UP BY THE SAID DECISIONS; AND SINCE THE APPLICANT HAS NOT CHALLENGED THE LEGALITY OF THE BASIC DECISIONS, THIS COMPLAINT CANNOT BE SUSTAINED .

MOREOVER, THE COURT HAS SEVERAL TIMES ALREADY PRONOUNCED ( IN THE SNUPAT JUDGMENT AND IN THE JUDGMENT IN JOINED CASES 32 AND 33/58 ON 17 JULY 1959 ) UPON THE LEGALITY OF THE SYSTEM WHICH EXEMPTS OWN RESOURCES AND IMPOSES EQUALIZATION ON FERROUS SCRAP CIRCULATING BETWEEN DIFFERENT LEGAL PERSONS, ALTHOUGH CLOSELY INTEGRATED .

FROM ALL THE FOREGOING CONSIDERATIONS IT FOLLOWS THAT THIS COMPLAINT MUST ALSO BE DISMISSED .

5 . THE APPLICANT ALLEGES MORE GENERALLY THAT THE DEFENDANT FAILED TO MAKE AN APPRAISAL OF HOOGOVENS' ACTUAL AND PARTICULAR SITUATION, AS REQUIRED BY THE SNUPAT JUDGMENT .

IT IS CERTAINLY TRUE THAT, IN WEIGHING THE CONFLICTING INTERESTS ON WHICH THE CHOICE BETWEEN THE EX NUNC AND EX TUNC REVOCATION OF AN ILLEGAL DECISION IS TO DEPEND, IT IS IMPORTANT TO BEAR IN MIND THE ACTUAL SITUATION OF THE PARTIES CONCERNED . IT IS CLEAR, HOWEVER, THAT THIS WAS DONE IN THE PRESENT CASE .

IN FACT, IT IS EVIDENT FROM FINDINGS 2 TO 4 ABOVE THAT IN THE DISPUTED DECISION FULL ACCOUNT WAS TAKEN OF THE ACTUAL SITUATION OF THE APPLICANT AS REGARDS THE FINANCIAL INTERESTS IN QUESTION, THE PARTICULAR CONSEQUENCES WHICH A RETROACTIVE WITHDRAWAL WOULD ENTAIL FOR THE APPLICANT AND ITS COMPETITIVE POSITION .

P . 272

MOREOVER, IT IS CLEAR THAT AT THE MEETING ON 15 MAY 1961 THE HIGH AUTHORITY RECEIVED THE REPRESENTATIVES OF THE APPLICANT, WHO LAID BEFORE THE DEFENDANT ALL THEIR ARGUMENTS IN FAVOUR OF THE SOLUTION MOST ADVANTAGEOUS TO THEIR INTERESTS . IT APPEARS, THEREFORE, THAT THE DEFENDANT, IN ARRIVING AT ITS DECISION, WAS IN FULL POSSESSION OF THE FACTS OF THE CASE .

IN THESE CIRCUMSTANCES, ONE CANNOT BUT CONCLUDE THAT THE HIGH AUTHORITY, IN ITS APPRAISAL OF THE SITUATION, HAD REGARD TO THE POSSIBLE EFFECTS OF EACH OF THE ALTERNATIVE SOLUTIONS .

THIS COMPLAINT IS THEREFORE UNFOUNDED .

6 . THE APPLICANT REPEATS THE ARGUMENT THAT A RETROACTIVE WITHDRAWAL WOULD NOT BE PERMISSIBLE IN THIS CASE BECAUSE THE REASONABLE PERIOD OF TIME WITHIN WHICH SUCH A WITHDRAWAL WOULD BE POSSIBLE HAD LONG SINCE EXPIRED .

THE SNUPAT JUDGMENT ANNULLED THE IMPLIED DECISION REFUSING SUCH WITHDRAWAL 'BECAUSE IT IS BASED ON THE NOTION, WHICH IS INCORRECT IN LAW,...THAT THE HIGH AUTHORITY HAD NO POWER TO WITHDRAW' DISPUTED EXEMPTIONS WITH RETROACTIVE EFFECT .

IT FOLLOWS THAT THE TEST OF 'THE REASONABLE PERIOD OF TIME' IS ONLY ONE OF THE FACTORS TO BE TAKEN INTO CONSIDERATION IN WEIGHING UP THE VARIOUS INTERESTS, AND THAT IN THIS CASE IT IS OF RELATIVELY LITTLE WEIGHT .

MOREOVER, THERE IS A DISTINCTION TO BE DRAWN, BECAUSE THE RULE WHICH REQUIRES THAT WITHDRAWAL MUST TAKE PLACE WITHIN A REASONABLE PERIOD OF TIME VARIES IN SUBSTANCE AND EXTENT ACCORDING TO THE CIRCUMSTANCES .

IN FACT, THIS RULE, WHICH MAY BE OF CONSIDERABLE IMPORTANCE WHERE IT IS A QUESTION OF DECISIONS CREATING INDIVIDUAL RIGHTS, IS OF LESS SIGNIFICANCE WHERE IT IS A QUESTION OF PURELY DECLARATORY DECISIONS .

THERE CAN BE NO DOUBT THAT THE EXEMPTION GRANTED TO THE APPLICANT DID NOT CONSTITUTE A MEASURE CREATING RIGHTS, AS THE HIGH AUTHORITY HAS NO POWER TO GRANT DEROGATIONS OR EXEMPTIONS FROM THE PAYMENT OF EQUALIZATION CONTRIBUTIONS, BUT POWER ONLY TO DECLARE THAT THE OBLIGATION TO PAY THE LEVY DOES NOT ARISE FROM THE BASIC DECISIONS . ITS DECISION TO REGARD GROUP FERROUS SCRAP RECOVERED BY AN UNDERTAKING WHICH IS LOCALLY INTEGRATED WITH THE CONSUMER UNDERTAKING AS OWN ARISINGS WAS THEREFORE ONLY A DECLARATORY MEASURE .

P . 273

FOR THIS REASON ALSO, THE QUESTION OF 'A REASONABLE PERIOD OF TIME' COULD NOT BE OF DECISIVE IMPORTANCE IN THIS CASE, BUT CONSTITUTED ONLY ONE ELEMENT IN THE APPLICANT'S SPECIAL INTEREST IN THE RESPECT FOR THE PRINCIPLE OF LEGAL CERTAINTY, A PRINCIPLE WHICH THE HIGH AUTHORITY WAS BOUND TO, AND DID, TAKE INTO ACCOUNT .

HOWEVER, THE FOREGOING CONSIDERATION DOES NOT MEAN THAT, EVEN IN THESE CASES, THE TIME FACTOR HAS NOT A PART TO PLAY; THE COMPETENT AUTHORITY CAN WITHDRAW AN EXEMPTION WITH RETROACTIVE EFFECT ONLY BY TAKING INTO ACCOUNT THE FACT THAT THE BENEFICIARIES OF THE REVOKED DECISION COULD ASSUME IN GOOD FAITH THAT THEY WOULD NOT HAVE TO PAY CONTRIBUTIONS ON THE FERROUS SCRAP IN QUESTION, AND COULD ARRANGE THEIR AFFAIRS IN RELIANCE ON THE CONTINUANCE OF THIS SITUATION .

CONSEQUENTLY, ONE MUST SEE WHETHER THE CONSIDERATIONS SET OUT IN THE PREAMBLE TO THE DISPUTED DECISION ( THIRTEENTH RECITAL ) ARE CORRECT .

THE DISPUTED DECISION RIGHTLY STATES THAT :

'HOOGOVENS' CONVICTION THAT IT WAS CONCLUSIVELY ENTITLED TO THE BENEFIT OF THE EXEMPTION COULD HAVE HAD NO FOUNDATION UNTIL THE HIGH AUTHORITY MADE ITS ATTITUDE KNOWN ON 18 DECEMBER 1957 '.

AS TO THE PERIOD AFTER THIS DATE, THE APPLICANT KNEW THAT THE UNDERTAKINGS SUBJECT TO THE FINANCIAL ARRANGEMENT WERE SHOWING A CLEAR INCLINATION TO BRING BEFORE THE COURT THE QUESTION WHETHER THE DECISIONS RELATING TO THE INSTITUTION AND APPLICATION OF THE EQUALIZATION SYSTEM WERE JUSTIFIED AND, IN PARTICULAR, TO MAKE AN ISSUE OF SITUATIONS IN WHICH THERE WAS, OR APPEARED TO BE, AN ELEMENT OF DISCRIMINATION . IN THESE CIRCUMSTANCES, THE APPLICANT COULD NOT - STRICTLY SPEAKING - FEEL CERTAIN AT ANY TIME THAT THE DISTINCTION MADE BETWEEN FERROUS SCRAP CIRCULATING WITHIN THE HOOGOVENS - BREEDBAND GROUP AND FERROUS SCRAP CIRCULATING WITHIN OTHER INDUSTRIAL GROUPS WOULD BE UPHELD BY THE COURT .

IT FOLLOWS THAT THIS COMPLAINT IS ALSO UNFOUNDED .

7 . THE APPLICANT ALLEGES THAT THE DEFENDANT DID NOT TAKE INTO CONSIDERATION ITS OWN RESPONSIBILITY, ARISING FROM THE FACT THAT THE HIGH AUTHORITY HAD ( WRONGLY ) RECOGNIZED THAT THE FERROUS SCRAP IN QUESTION WAS NOT ASSESSABLE AND CONTINUED TO MAINTAIN THIS POSITION IN THE SNUPAT CASE .

THE APPLICANT IS ESTOPPED BY ITS OWN CONDUCT FROM PUTTING FORWARD SUCH AN ARGUMENT, WHICH AMOUNTS TO VENIRE CONTRA FACTUM PROPRIUM . NEVERTHELESS, IT IS PROPER FOR THE COURT TO EXAMINE THE VALIDITY OF THAT ARGUMENT OF ITS OWN MOTION .

P . 274

IN THIS CONNEXION, THE COURT IS OF THE OPINION THAT THE ATTITUDE ADOPTED BY THE HIGH AUTHORITY UNTIL THE SNUPAT JUDGMENT WAS CERTAINLY NOT A WRONGFUL ACT OR OMISSION, SINCE THE CORRECT INTERPRETATION OF THE BASIC DECISIONS ON THE DISTINCTION BETWEEN BOUGHT FERROUS SCRAP AND OWN ARISINGS HAS PROVED TO BE VERY DEBATABLE .

SINCE THE HIGH AUTHORITY COULD NOT BE CHARGED WITH A WRONGFUL ACT OR OMISSION, ITS ATTITUDE COULD NOT ENTITLE THE APPLICANT TO MORE FAVOURABLE TREATMENT .

MOREOVER, THE APPLICANT'S ARGUMENT AMOUNTS TO SAYING THAT THE HIGH AUTHORITY, WHICH ITSELF NEITHER FINANCES NOR PROFITS FROM THE FINANCIAL ARRANGEMENT, SHOULD MAKE THE UNDERTAKINGS WHICH IT ADMINISTERS PAY DIRECTLY FOR THE CONSEQUENCES OF ITS OWN ERRORS . FOR THIS REASON, TOO, THE SAID ARGUMENT IS UNACCEPTABLE .

CONSEQUENTLY, THIS COMPLAINT MUST LIKEWISE BE DISMISSED .

8 . IT IS EVIDENT FROM THE CONSIDERATIONS SET OUT ABOVE THAT THE DISPUTED DECISION CORRECTLY WEIGHED THE PUBLIC INTEREST AGAINST THE PRIVATE INTERESTS INVOLVED .

THE PUBLIC INTEREST IS DISTINCT FROM THE PRIVATE INTEREST OF THE OTHER UNDERTAKINGS CONSUMING FERROUS SCRAP .

SUCH A CONCEPT WOULD MEAN COMPARING ONLY THE PRIVATE INTERESTS OF THE APPLICANT AND THE PRIVATE INTERESTS OF THE OTHER UNDERTAKINGS .

IN FACT, AS THE SNUPAT JUDGMENT HAS ALREADY RECOGNIZED, THE INTEREST OF THE COMMUNITY, THAT IS TO SAY, THE PUBLIC INTEREST, REQUIRES 'ENSURING THE PROPER WORKING OF THE EQUALIZATION SCHEME, WHICH DEPENDS ON THE JOINT LIABILITY OF ALL UNDERTAKINGS CONSUMING FERROUS SCRAP; THIS INTEREST MAKES IT NECESSARY TO ENSURE THAT OTHER CONTRIBUTORS DO NOT PERMANENTLY SUFFER THE FINANCIAL CONSEQUENCES OF AN EXEMPTION ILLEGALLY GRANTED TO THEIR COMPETITORS '.

THE WITHDRAWAL OF THE DISPUTED EXEMPTIONS WITH RETROACTIVE EFFECT QUITE RIGHTLY TAKES ACCOUNT OF THIS PUBLIC INTEREST WHICH IN THIS CASE PREVAILS OVER THE PRIVATE INTERESTS OF THE APPLICANT .

P . 275

IT SHOULD BE BORNE IN MIND, MOREOVER, THAT BY THE DISPUTED DECISION THE HIGH AUTHORITY ACTED AS LENIENTLY AS POSSIBLE IN THE CIRCUMSTANCES, AS IT PERMITTED THE APPLICANT TO PAY THE ARREARS OF CONTRIBUTIONS BY INSTALMENTS . THE APPLICANT IS WRONG, THEREFORE, IN ALLEGING THAT THE DISPUTED DECISION OFFENDS AGAINST THE PRINCIPLES LAID DOWN BY THE JUDGMENT OF THE COURT OF 12 JUNE 1958, IN THE CASE OF CHASSE V HIGH AUTHORITY ( REC . 1959, P . 190 ).

IN THE CIRCUMSTANCES, THE COURT SEES NO REASON IN LAW TO SET ASIDE THE APPRAISAL MADE BY THE HIGH AUTHORITY .

III - THE REASONS GIVEN FOR THE CONTESTED DECISION

THE APPLICANT ALLEGES THAT THE CONTESTED DECISION SHOWS A LACK OR INSUFFICIENCY OF REASONS, CONSTITUTING AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .

THIS COMPLAINT CANNOT BE ACCEPTED BY THE COURT . ALTHOUGH THE REASONS MAY APPEAR TO BE INADEQUATELY ELABORATED, CAREFUL EXAMINATION SHOWS THEM TO BE TO THE POINT; THEY ARE, THEREFORE, SUFFICIENT TO JUSTIFY THE DISPUTED DECISION .

A STATEMENT OF REASONS MUST BE DEEMED ADEQUATE, UNDER THE TERMS OF ARTICLES 15 AND 33 OF THE TREATY, WHEN IT ENABLES BOTH THE PARTIES CONCERNED AND THE COURT TO DISCOVER THE ESSENTIAL ELEMENTS OF THE HIGH AUTHORITY'S REASONING . IN THIS CONNEXION, THE CONTESTED DECISION MAKES CLEAR THE REASONS WHICH LED THE DEFENDANT TO GIVE PREFERENCE IN THIS CASE TO THE PRINCIPLE OF LEGALITY . MOREOVER, IF THE DEFENDANT DID NOT THINK IT NECESSARY TO TAKE NOTE OF THE EFFECTS - EFFECTS OF SOME CONSEQUENCE, NO DOUBT - WHICH A WITHDRAWAL EX TUNC WOULD, ON A CONCRETE APPRAISAL OF THE INTERESTS INVOLVED, ENTAIL FOR THE APPLICANT, THAT IS EASILY EXPLAINED BY THE FACT THAT, IN THE OPINION OF THE HIGH AUTHORITY, THE WELL-KNOWN PROSPERITY OF THE APPLICANT COMPANY REDUCED THE RELATIVE IMPORTANCE OF THOSE EFFECTS IN THE CONTEXT OF THE BALANCE OF INTERESTS .

THIS REASONING EMERGES CLEARLY FROM THE SCHEME OF THE CONTESTED DECISION, BOTH FOR THE PARTY TO WHOM IT WAS ADDRESSED AND FOR THE COURT, SO THAT THE STATEMENT OF REASONS CANNOT BE SAID TO BE SUBSTANTIALLY INADEQUATE IN THIS REGARD .

ACCORDING TO THE APPLICANT, THERE IS A LOGICAL INCONSISTENCY BETWEEN THE OPERATIVE PART OF THE DECISION AND THE RECITAL THAT 'THE RETROACTIVE WITHDRAWAL OF AN ILLEGAL EXEMPTION HAS THE EFFECT ONLY OF REMOVING AN UNJUSTIFIED ADVANTAGE AND RE-ESTABLISHES EQUALITY BETWEEN HOOGOVENS AND OTHER CONTRIBUTORS '. THE APPLICANT CONSIDERS THAT 'TO STATE AS A MATTER OF LAW THAT THIS INEQUALITY CONSTITUTES A DISCRIMINATION WHICH IS CONTRARY TO THE TREATY AND SHOULD IN CONSEQUENCE BE ABOLISHED IS NOT TO WEIGH UP THE PRINCIPLE OF LEGAL CERTAINTY AND THE PRINCIPLE OF LEGALITY : IT IS TO IGNORE, A PRIORI, ONE OF THESE TWO PRINCIPLES '.

P . 276

THE APPLICANT FAILS TO APPRECIATE, HOWEVER, THAT THE WORDS CITED, AS APPEARS FROM THEIR CONTEXT, ARE NOT INTENDED, DIRECTLY AND BY THEMSELVES, TO JUSTIFY THE WITHDRAWAL, BUT ARE PRIMARILY INTENDED TO REFUTE AN ACTUAL OR POTENTIAL ARGUMENT OF HOOGOVENS, NAMELY, 'THAT A BURDEN IS THEREBY BEING IMPOSED UPON IT WHICH IS DISPROPORTIONATE TO THE ADVANTAGES WHICH IT ENTAILS FOR OTHER UNDERTAKINGS '.

LOOKED AT IN THIS LIGHT, THE RECITAL IMPUGNED RETAINS ITS FULL MEANING AND IS CONSISTENT WITH THE OPERATIVE PART OF THE DECISION .

CONSEQUENTLY, THIS COMPLAINT MUST BE DISMISSED .

ACCORDING TO THE APPLICANT, THE DEFENDANT WAS WRONG IN SUPPORTING ITS DECISION ON THE GROUND THAT 'WITHDRAWAL...EX NUNC COULD HAVE NO PRACTICAL EFFECT SINCE THE EQUALIZATION SYSTEM HAS BEEN ABOLISHED '. THE APPLICANT ARGUES THAT THIS CIRCUMSTANCE SHOULD MILITATE IN FAVOUR OF MAINTAINING THE EXEMPTION .

THE COURT CANNOT ACCEPT THIS ARGUMENT .

THE FACT THAT IN THIS CASE WITHDRAWAL EX NUNC WOULD ALLOW THE CONSEQUENCES OF THE ILLEGAITY WHICH WAS COMMITTED TO REMAIN IN BEING IS OBVIOUSLY AN ARGUMENT WHICH MILITATES IN FAVOUR OF WITHDRAWAL EX TUNC .

THIS COMPLAINT MUST THEREFORE BE DISMISSED .

Decision on costs

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE UNSUCCESSFUL PARTY HAS FAILED IN ALL ITS SUBMISSIONS IN THE PRESENT CASE .

IT MUST THEREFORE BE ORDERED TO BEAR THE COSTS, INCLUDING THOSE OF THE INTERVENTION .

Operative part

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS, INCLUDING THOSE OF THE INTERVENTION .