1 . THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THE PRESENT APPLICATIONS POINTING OUT FIRST THAT THEY ARE MADE IN FACT AGAINST THE DECISIONS OF 23 FEBRUARY 1962 AND THAT THEY BRING BEFORE THE COURT QUESTIONS ALREADY SETTLED BY IT IN ITS JUDGMENT OF 14 DECEMBER 1962 . THE APPLICATIONS MADE AGAINST THE DECISIONS OF 23 FEBRUARY 1962 ON WHICH THE COURT RULED IN ITS JUDGMENT OF 14 DECEMBER 1962 CONCERNED THE POWER OF THE HIGH AUTHORITY TO REQUIRE PRODUCTION OF THE INVOICES FOR ELECTRIC ENERGY CONSUMED BY THE APPLICANTS . IN THE FIRST APPLICATIONS THE APPLICANTS MAINTAINED THAT SUCH A POWER HAD NO BASIS IN ARTICLE 47 OF THE TREATY . THE PRESENT APPLICATIONS ON THE OTHER HAND ARE CONCERNED WITH THE PECUNIARY SANCTIONS IMPOSED BY THE DECISIONS OF 18 DECEMBER 1962 FOR FAILURE TO PRODUCE THESE INVOICES . AS TO THIS THE APPLICANTS MAKE THE POINT THAT FAILURE TO PRODUCE THESE INVOICES CANNOT BE CONSIDERED AS AN INFRINGEMENT OF THE DECISIONS OF 23 FEBRUARY 1962, THE INVOICES HAVING BEEN DESTROYED IN ACCORDANCE WITH THE NATIONAL LAW APPLICABLE IN THIS CASE . THE SUBJECT MATTER OF THE PRESENT APPLICATIONS IS THUS DIFFERENT FROM THAT OF THE APPLICATIONS AGAINST THE DECISIONS OF 23 FEBRUARY 1962 . ALTHOUGH IN COURSE OF THE ORAL PROCEDURE IN THE PREVIOUS CASE THE APPLICANTS HAD ALREADY ALLEGED THAT THE PRODUCTION OF THE INVOICES AT ISSUE REQUIRED BY THE HIGH AUTHORITY MIGHT BE MADE IMPOSSIBLE BECAUSE UNDER ITALIAN LAW TRADE INVOICES NEED BE KEPT ONLY FOR FIVE YEARS, THE JUDGMENT RULED THAT IT IS FOR THE HIGH AUTHORITY TO DETERMINE WHETHER FAILURE TO PRODUCE CERTAIN INVOICES IS JUSTIFIED IN THE LIGHT OF THE RELEVANT LEGISLATION AND TO DRAW THE NECESSARY CONCLUSIONS . NO DECISION HAVING THE FORCE OF RES JUDICATA HAS THEREFORE BEEN TAKEN BY THE COURT ON THE SUBJECT MATTER OF THE PRESENT PROCEEDINGS . CONSEQUENTLY ON THIS POINT THE PRESENT APPLICATIONS MUST BE TAKEN TO BE ADMISSIBLE .
2 . THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 MAKE THE POINT THAT THE CONTESTED DECISIONS IMPOSE PECUNIARY SANCTIONS ON THEM FOR NOT HAVING PRODUCED THE ELECTRICITY INVOICES RELATING TO THE WHOLE PERIOD OF THE OPERATION OF THE EQUALIZATION SCHEME, WHILST THEY HAVE BEEN ENGAGED IN THE IRON AND STEEL INDUSTRY FOR ONLY PART OF THIS PERIOD . THE DEFENDANT CONTESTS THE ADMISSIBILITY OF THIS SUBMISSION, MAKING THE POINT THAT, AS THE DECISIONS OF 18 DECEMBER 1962 WERE LIMITED TO DRAWING THE LEGAL CONCLUSIONS FLOWING FROM THE DECISIONS OF 23 FEBRUARY 1962, IT IS AGAINST THE LAST-MENTIONED DECISIONS AND THE OBLIGATION THEY CONTAIN THAT THE APPLICANTS SHOULD HAVE RAISED SUCH A SUBMISSION . HOWEVER, THE JUDGMENT WHICH SETTLED THE APPLICATIONS MADE AGAINST THE DECISIONS OF 23 FEBRUARY 1962 ACCEPTED AS WELL-FOUNDED THE POWER OF THE HIGH AUTHORITY TO REQUIRE PRODUCTION OF THE INVOICES FOR ELECTRIC ENERGY ACTUALLY CONSUMED BY THE APPLICANTS DURING THE OPERATION OF THE EQUALIZATION SCHEME . MOREOVER ANY SANCTION IMPOSED BY THE HIGH AUTHORITY CAN BE CONSIDERED AS LAWFUL ONLY IF IT IS DIRECTED TO AN INFRINGEMENT IN RELATION TO A DECISION TAKEN IN IMPLEMENTATION OF THE TREATY . IN THE PRESENT CASE, AS FAILURE TO PRODUCE THE ELECTRICITY INVOICES RELATES TO A PERIOD WHEN THE APPLICANTS WERE NOT ENGAGED IN THE IRON AND STEEL INDUSTRY, IT CANNOT IN ANY EVENT CONSTITUTE AN INFRINGEMENT OF THE DECISIONS OF 23 FEBRUARY 1962 . THEREFORE IF THE ALLEGATIONS OF THE APPLICANTS WERE TO PROVE TO BE WELL-FOUNDED THE PECUNIARY SANCTIONS IN QUESTION WOULD NEED TO BE ANNULLED BECAUSE AT LEAST IN PART THEY WOULD HAVE NO PURPOSE . THE SUBMISSION MADE BY THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 IS THEREFORE ADMISSIBLE .
3 . THE APPLICANTS IN CASES 2/63, 3/63, 5/63 AND 6/63 RAISE THE FURTHER POINT THAT AS THEY WERE NOT ENGAGED IN THE IRON AND STEEL INDUSTRY FOR PART OF THE PERIOD DURING WHICH THE EQUALIZATION SCHEME WAS IN OPERATION, THE IMPOSITION OF A FINE FOR FAILURE TO PRODUCE ELECTRICITY INVOICES RELATING TO THE WHOLE OF THIS PERIOD IS ILLEGAL BECAUSE IT IS UNFOUNDED AND CONSTITUTES A MISUSE OF POWERS . ARTICLE 1 OF THE DECISIONS OF 23 FEBRUARY 1962 PROVIDES THAT THE APPLICANT SHALL PRODUCE THE ELECTRICITY ACCOUNTS 'RELATING TO THE ACTIVITY OF THE UNDERTAKING FOR THE PERIOD FROM APRIL 1954 TO NOVEMBER 1958 INCLUSIVE '. IT FOLLOWS FROM THESE WORDS THAT THE OBLIGATION THERE STATED APPLIES ONLY TO INVOICES RELATING TO BUSINESS IN THE IRON AND STEEL INDUSTRY IN FACT CARRIED ON BY EACH APPLICANT DURING THAT PERIOD . THE DECISIONS OF 18 DECEMBER 1962, RECITING THE OPERATIVE PART OF THE DECISIONS OF 23 FEBRUARY 1962 AS QUOTED ABOVE THEREFORE LAY DOWN PECUNIARY SANCTIONS ONLY FOR INFRINGEMENT OF THIS OBLIGATION, WHATEVER MAY HAVE BEEN THE ACTUAL PERIOD DURING WHICH EACH UNDERTAKING WAS ACTIVELY ENGAGED IN THE IRON AND STEEL INDUSTRY WHILE THE EQUALIZATION SCHEME WAS OPERATIVE . THEREFORE THE SUBMISSION RAISED BY THE APPLICANTS IN THE ABOVE-MENTIONED CASES IS UNFOUNDED . B - REDUCTION OF THE AMOUNT OF THE FINES IN THEIR ALTERNATIVE CONCLUSIONS THE APPLICANTS REQUEST A REDUCTION IN THE AMOUNT OF THE FINES HAVING REGARD ON THE ONE HAND TO THE FACT THAT THE UNCERTAN AND EQUIVOCAL CONDUCT OF THE HIGH AUTHORITY LED THEM TO COMMIT A JUSTIFIED ERROR IN LAW AND ON THE OTHER HAND TO THE FACT THAT THIS AMOUNT IS OUT OF PROPORTION TO THE ECONOMIC CAPACITY OF EACH UNDERTAKING . AS REGARDS THE FIRST ARGUMENT, THE PRECEDING CONSIDERATIONS SHOW THAT NO ERROR IN LAW CAN VALIDLY BE INVOKED BY THE APPLICANTS SINCE THE OBLIGATION TO PRODUCE CERTIFIED COPIES OF THE INVOICES AT ISSUE, IN THE ABSENCE OF THE ORIGINALS, IS PLAIN FROM THE DECISIONS OF 23 FEBRUARY 1962 AS WELL AS FROM THE LETTERS OF 27 NOVEMBER 1961 . AS REGARDS THE SECOND ARGUMENT, THE APPLICANTS HAVE NOT FURNISHED THE COURT WITH A SHRED OF FACTUAL EVIDENCE TO SHOW THAT THE AMOUNT OF THE FINES IS OUT OF PROPORTION TO THE ECONOMIC CAPACITY OF EACH UNDERTAKING . MOREOVER THIS AMOUNT DOES NOT APPEAR TO BE EXCESSIVE BECAUSE IT FALLS FAR SHORT OF THE MAXIMUM LAID DOWN IN ARTICLE 47 OF THE TREATY . FOR THESE REASONS THE ABOVE-MENTIONED ALTERNATIVE CONCLUSIONS MUST BE DISMISSED . C - ANNULMENT OF THE PERIODIC PENALTY PAYMENTS THE APPLICANTS CLAIM, IN THE FURTHER ALTERNATIVE, THAT EXONERATION FROM THE PAYMENT OF THE PERIODIC PENALTY PAYMENTS IMPOSED BY THE CONTESTED DECISIONS SHOULD BE GRANTED . IN FURTHERANCE OF THIS CLAIM THEY RAISE THE POINT THAT, AS PRODUCTION OF COPIES OF THE INVOICES AT ISSUE TO THE HIGH AUTHORITY COULD ONLY BE MADE AFTER DELIVERY OF THESE COPIES BY THE ELECTRICITY SUPPLY COMPANIES, THE APPLICANTS CANNOT BE HELD RESPONSIBLE FOR THE DELAY IN PRODUCING THEM . TO JUSTIFY THIS DELAY THE APPLICANTS REFER TO THE PHYSICAL DIFFICULTIES ALLEGED IN THE ANSWERS TO THE LETTERS ASKING FOR DELIVERY OF THE COPIES OF THE INVOICES AT ISSUE . WITHOUT REGARD TO THE QUESTION WHETHER THE INVOICES WERE IN FACT DESTROYED IT CAN BE SAID THAT THE DELAY IN PRODUCTION OF THESE COPIES IS DUE IN LARGE MEASURE TO THE FACT THAT THE APPLICANTS ONLY APPLIED TO THE ELECTRICITY SUPPLY COMPANIES IN DECEMBER 1962 AT THE EARLIEST, THAT IS, AFTER A CONSIDERATE LAPSE OF TIME FROM THEIR BEING NOTIFIED OF THE DECISIONS OF 23 FEBRUARY 1962 . THEREFORE THE PHYSICAL DIFFICULTIES WHICH THE ELECTRICITY SUPPLY COMPANIES MENTION CANNOT RELIEVE THE APPLICANTS OF ALL RESPONSIBILITY IN THIS MATTER . THESE DIFFICULTIES CAN NEVERTHELESS BE TAKEN INTO ACCOUNT IN FIXING THE TIME FROM WHICH THE PERIODIC PENALTY PAYMENTS AT ISSUE ARE APPLIED . IN THESE CIRCUMSTANCES, THE PERIODIC PENALTY PAYMENTS MUST BE MAINTAINED BUT THE PERIOD AT THE END OF WHICH THEY TAKE EFFECT MUST BE EXTENDED TO SEVEN MONTHS FROM THE NOTIFICATION OF THE CONTESTED DECISIONS .