WOULD FURTHER BE UNJUST TO APPLY TO FERROUS SCRAP MOVING BETWEEN TWO DISTINCT COMPANIES RULES DIFFERING ACCORDING TO WHETHER THOSE COMPANIES OCCUPY NEIGHBOURING OR MORE OR LESS WIDELY SEPARATED PREMISES .
SUCH A SYSTEM WOULD RESULT IN INCREASING THE EXTRA BURDEN CONSEQUENT UPON THE NECESSITY OF PAYING FOR TRANSPORT CHARGES AND THEREFORE MIGHT ARTIFICIALLY INCREASE THE DIFFERENCES IN COSTS OF PRODUCTION, WHICH WOULD RUN COUNTER TO THE TREATY AS WELL AS TO THE BASIC PRINCIPLES OF THE EQUALIZATION SCHEME .
LASTLY, HOOGOVENS' ARGUMENT THAT THE USE BY IT OF ARISINGS FROM BREEDBAND'S WORKSHOPS CONSTITUTES AN IMPROVEMENT IN PRODUCTIVITY WITHIN ONE AND THE SAME UNDERTAKING, AND THAT THE TWO UNDERTAKINGS DO NOT CONSTITUTE A GROUP LIKELY TO AFFECT COMPETITION ARTIFICIALLY IS NEGATED BY THE FACT THAT ACTUALLY THIS IS NOT A CASE OF A SINGLE UNDERTAKING, BUT OF TWO COMPANIES DISTINCT IN LAW, EACH HAVING LEGAL PERSONALITY .
THE POOLING OF THE GAINS AND LOSSES RESULTING FROM THE CONTRACT GOVERNING THE RELATIONSHIP BETWEEN HOOGOVENS AND BREEDBAND EXPRESSES ONLY THE COOPERATION EXISTING BETWEEN THOSE TWO UNDERTAKINGS .
BY VIRTUE OF THAT COOPERATION, WHETHER OR NOT IT AMOUNTS TO A CARTEL OR A COMBINE, THE TWO UNDERTAKINGS FORM A GROUP .
CONSEQUENTLY THE EXEMPTION GRANTED TO HOOGOVENS BECAUSE OF THE EXISTENCE OF THE HOOGOVENS-BREEDBAND GROUP IS CAPABLE OF DISTORTING COMPETITION, THAT IS TO SAY, IN THE PRESENT CASE, THE COMPETITIVE RELATIONSHIP EXISTING BETWEEN HOOGOVENS AND OTHER UNDERTAKINGS WHICH ARE NOT GROUPED WITH FERROUS-SCRAP PRODUCERS .
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FOR THESE REASONS THE RULES LAID DOWN IN THE JUDGMENT IN JOINED CASES 32 AND 33/58, ACCORDING TO WHICH SO-CALLED GROUP SCRAP MUST BE ASSESSED FOR EQUALIZATION, APPLY EQUALLY TO THE INTERVENERS .
3 . HOOGOVENS CLAIMS THAT THE DISPUTED EXEMPTIONS MUST BE MAINTAINED TO AVOID A DOUBLE CHARGE ON THE SAME UNDERTAKINGS FOR THE SAME QUANTITY OF FERROUS SCRAP, OF WHICH THE COURT DISAPPROVED IN ITS PREVIOUS JUDGMENT .
THE COURT DOES NOT ACCEPT THAT REASONING .
IN ITS JUDGMENT IN JOINED CASES 32 AND 33/58, THE COURT RULED AGAINST DOUBLE IMPOSITION OF THE LEVY ONLY IN SO FAR AS THIS WOULD AFFECT ONE AND THE SAME UNDERTAKING AND NOT IN A CASE IN WHICH THE LEVY WOULD BE APPORTIONED BETWEEN SEVERAL SEPARATE UNDERTAKINGS .
CONSEQUENTLY THE DECISIVE TEST IS NOT WHETHER THE MATERIAL IS TECHNICALLY IDENTICAL BUT WHETHER THE PURCHASER AND THE UNDERTAKING IN WHICH THE MATERIAL IS RECOVERED ARE THE SAME .
IN FACT, IN VERY NUMEROUS CASES THERE IS A TECHNICAL RELATIONSHIP BETWEEN FERROUS SCRAP RECOVERED DURING THE MANUFACTURE OF FINISHED PRODUCTS, ON THE ONE HAND, AND FERROUS SCRAP USED IN THE PRODUCTION OF STEEL INTENDED FOR SUCH MANUFACTURE, ON THE OTHER .
AT THE RISK OF RENDERING THE FINANCIAL ARRANGEMENTS FOR EQUALIZATION INOPERATIVE AND IN VIEW OF THE ENDLESS CYCLE OF CRUDE OR PROCESSED SCRAP THROUGH THE DIFFERENT STAGES OF PRODUCTION, IT IS UNAVOIDABLE THAT 'THE SAME QUANTITY OF FERROUS SCRAP' SHOULD BE SUBJECT TWICE AND EVEN MORE TO THE CHARGE .
IT IS THEREFORE ESTABLISHED THAT THE DECISIONS BY