1 . ...
2 . PART OF YOUR ARMCO ARISINGS SOLD TO THIRD PARTIES WERE DEDUCTED AND PART WAS NOT DEDUCTED FROM THE TONNAGES SUBJECT TO THE LEVY...THE FERROUS SCRAP RESULTING FROM THE ARMCO PRODUCTS IS TO BE TREATED IN THE STATEMENTS AS ORDINARY FERROUS SCRAP . CONSEQUENTLY, THE 257 METRIC TONS ARE STILL DEDUCTIBLE ...
3 . ... ' THIS LETTER APPEARS TO BE MERELY A COMMUNICATION INVITING THE APPLICANT TO RECTIFY ITS STATEMENTS IN CONNEXION WITH THE EQUALIZATION SCHEME . MOREOVER AS REGARDS THE LETTER OF 12 AUGUST, IT WAS DRAFTED AND NOTIFIED AFTER THE ENTRY INTO FORCE OF DECISION NO 13/58, IN ACCORDANCE WITH WHICH THE HIGH AUTHORITY, CONSIDERING, INTER ALIA, THAT ' IT IS NECESSARY FOR THE POWERS DELEGATED TO THE EQUALIZATION FUND...TO BE RESUMED BY THE HIGH AUTHORITY ', PROVIDED THAT ' THE RIGHT WHICH ( THE BASIC DECISIONS ) CONFERRED ON THE EQUALIZATION FUND...SHALL FALL TO THE HIGH AUTHORITY, WHICH MAY ENTRUST THE ADMINISTRATIVE WORK TO THE EQUALIZATION FUND OR ANY OTHER APPROPRIATE BODY '. CONSEQUENTLY, AT THE DATE IN QUESTION, THE CPFI NO LONGER HAD THE POWER TO TAKE DECISIONS WHICH COULD BE REGARDED AS DECISIONS OF THE HIGH AUTHORITY . THE HIGH AUTHORITY HAS THE POWER TO REVOKE DECISIONS AND MAY EVEN DO SO RETROACTIVELY, SUBJECT IN EXCEPTIONAL CASES TO CONSIDERATIONS OF LEGAL CERTAINTY . THIS POWER IS EVEN GREATER WHEN THE ' REVOCATION ' CONCERNS NOT A FORMAL DECISION, BUT A SIMPLE STATEMENT . IN THIS INSTANCE, THE APPLICANT WAS ONLY ABLE TO RELY FOR A RELATIVELY SHORT PERIOD ON THE MAINTENANCE OF THE POSITION ADOPTED BY THE CPFI . UNDER THE TERMS OF ARTICLE 1(B ) OF THE ABOVE - MENTIONED DECISION NO 13/58, WHICH CAME INTO FORCE AFTER THE FIRST AND BEFORE THE SECOND OF THE LETTERS IN QUESTION, THE DEFENDANT RESERVED THE RIGHT TO ' RESCIND AS FAR AS IS NECESSARY ANY RESOLUTIONS ' OF THE AGENCIES IN BRUSSELS AND ' TO TAKE ANY MEASURES ENTAILED IN RESCINDING THEM '. THE EFFECT OF THIS PROVISION WAS TO MAKE ALL THE MEASURES ADOPTED BY THESE BODIES APPEAR RATHER PRECARIOUS . SECONDLY, BEARING IN MIND THE MAGNITUDE OF THE TASK OF RECONSIDERING ALL THESE MEASURES, THE BENEFICIARIES OF ANY FAVOURABLE STATEMENTS COULD NOT EXPECT A FINAL DECISION ON THESE STATEMENTS TO BE TAKEN IN A SHORT TIME . ON 25 NOVEMBER 1959, A LETTER ADDRESSED BY THE MARKET DIVISION OF THE HIGH AUTHORITY TO THE APPLICANT'S SISTER COMPANY, WHICH HAD THE SAME GENERAL MANAGER, REFERRED TO A ' DISAGREEMENT BETWEEN YOU AND YOUR PURCHASERS ' ABOUT THE DESCRIPTION OF MATERIAL SIMILAR TO THE MATERIAL IN QUESTION . P.197 BY LETTER OF 17 AUGUST 1961, THE HIGH AUTHORITY'S MARKET DIRECTORATE INFORMED THE APPLICANT THAT THE PROBLEM IN QUESTION WAS ' AT PRESENT UNDER FURTHER CONSIDERATION ' AND THAT THE COMPETENT DEPARTMENTS OF THE HIGH AUTHORITY ' PROVISIONALLY ACCEPT THE METHOD OF DECLARATION ADOPTED BY YOUR UNDERTAKING '. BY LETTER OF 8 OCTOBER 1962 THE MARKET DIRECTORATE INFORMED THE APPLICANT OF ITS FINAL DECISION, WHICH IS IDENTICAL WITH THAT MAINTAINED BY THE DEFENDANT IN THE PRESENT CASE . FINALLY, IT MUST BE BORNE IN MIND THAT, BY CONTINUING AN ADVANTAGE ILLEGALLY GRANTED TO AN UNDERTAKING WITHIN THE FRAMEWORK OF THE EQUALIZATION SCHEME, THE DEFENDANT WOULD NOT ONLY BE INCREASING THE BURDENS BORNE BY THE OTHER UNDERTAKINGS, OF WHICH AT LEAST SOME ARE COMPETITORS OF THE RECIPIENT UNDERTAKING, BUT ABOVE ALL PUT THE LATTER IN A PRIVILEGED POSITION . IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THIS COMPLAINT MUST BE REJECTED . AS NONE OF THE SUBMISSIONS PUT FORWARD BY THE APPLICANT HAS BEEN FOUND TO BE JUSTIFIED, THE APPLICATION FOR ANNULMENT MUST BE DISMISSED . II - THE CLAIM FOR DAMAGES IN THE EVENT OF THE APPLICATION FOR ANNULMENT BEING DISMISSED, THE APPLICANT, IN AN ALTERNATIVE PLEA, REQUSTS THE COURT TO ORDER THE PAYMENT OF SUCH DAMAGES AS WILL MAKE GOOD THE DAMAGE WHICH IT HAS SUFFERED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT . IT CONSIDERS THIS WRONGFUL ACT TO CONSIST IN THE FACT THAT THE CPFI ' AUTHORIZED THE APPLICANT TO DEDUCT FROM THE BASIS OF ASSESSMENT OF ITS EQUALIZATION CONTRIBUTIONS THE TONNAGES IN DISPUTE, WITHOUT PREVIOUSLY ESTABLISHING THE LEGALITY OF THIS PROCEDURE '. SECONDLY IT MAINTAINS THAT BUT FOR THIS ERROR IT WOULD HAVE SOLD THE MATERIAL IN QUESTION AT A HIGHER PRICE, COMPRISING THE RULING PRICE AS INCREASED BY THE EQUALIZATION CONTRIBUTION TO WHICH THIS MATERIAL WOULD HAVE BEEN SUBJECT HAD THE BASIC DECISIONS BEEN APPLICABLE TO IT, SINCE IF THE INFORMATION RECEIVED BY THE APPLICANT HAD BEEN CORRECT THAT PARTY WOULD HAVE BEEN AWARE BOTH OF THE ADVANTAGE TO ITS CUSTOMERS AS THE RESULT OF THE NON-ASSESSMENT OF THIS MATERIAL, AND OF THE DISADVANTAGE TO ITSELF IF IT WAS NOT DEDUCTIBLE . IT IS FIRST NECESSARY TO CONSIDER WHETHER THE APPLICANT WAS INJURED BY THE ACTIONS OF THE CPFI WHICH ARE CRITICIZED IN THIS CASE . AS THE ATTITUDE ADOPTED BY THE APPLICANT AFTER THE CPFI MADE ITS STATEMENTS DID NOT DIFFER FROM THAT ADOPTED EARLIER, IT APPEARS THAT THESE STATEMENTS DID NOT FORM THE BASIS OF ITS PRICING POLICY . IN FACT, THE SAME POLICY WAS FOLLOWED PREVIOUSLY, THAT IS, DURING THE PERIOD WHEN ON ITS OWN ADMISSION THE APPLICANT HAD TO CONSIDER THE POSSIBILITY THAT THE PRODUCTS IN QUESTION WOULD NOT BE ACCEPTED AS ' FERROUS SCRAP '. IN ADDITION, IT CANNOT BE PROVED THAT THE APPLICANT'S CUSTOMERS WOULD HAVE ACCEPTED WITHOUT FURTHER ADO AN INCREASE IN THE PRICE OF THE MATERIAL IN QUESTION . FIRST, THE PRICE WHICH THE APPLICANT WAS ABLE TO OBTAIN WAS THE RESULT OF SUPPLY AND DEMAND . SECONDLY, THE CUSTOMERS, WHO HAVE ALWAYS MAINTAINED THAT THE MATERIAL IN QUESTION DID NOT CONSTITUTE FERROUS SCRAP, WERE NOT THE VICTIMS OF ANY ERROR . THE CLAIM FOR DAMAGES MUST THEREFORE BE DISMISSED WITHOUT ITS BEING NECESSARY TO DECIDE WHETHER THE ACTIONS CRITICIZED CONSTITUTE A WRONGFUL ACT OR OMISSION OR TO ADMIT THE OFFERS OF PROOF MADE BY THE APPLICANT .