1 . MISTAKE RELATING TO THE PRINCIPLE OF LIABILITY TO CONTRIBUTE TO THE EQUALIZATION SCHEME P.689 THE APPLICANT SUBMITS THAT, INDEPENDENTLY OF ANY QUESTION OF EXEMPTION, THE FERROUS SCRAP WHICH IT BOUGHT PRIOR TO 1 FEBRUARY 1957 WAS NOT SUBJECT TO THE EQUALIZATION LEVY, AS THE OPERATIONS CARRIED OUT AT ITS STEEL WORKS AT THAT TIME WERE LIMITED TO PREPARATORY WORK AND TRIALS . ACCORDING TO THE WORDING OF THE BASIC DECISIONS RELATING TO THE FINANCIAL SCHEME IN QUESTION ' THE UNDERTAKINGS REFERRED TO IN ARTICLE 80 OF THE TREATY WHICH CONSUME FERROUS SCRAP ' ARE LIABLE TO PAY THE CONTRIBUTIONS PRESCRIBED BY THE SAID DECISIONS . UNDER THE SAID ARTICLE OF THE ECSC TREATY ' FOR THE PURPOSES OF THIS TREATY " UNDERTAKING " MEANS ANY UNDERTAKING ENGAGED IN PRODUCTION IN THE COAL OR THE STEEL INDUSTRY '. THE SYSTEMATIC BUYING OF RAW MATERIALS MARKS THE COMMENCEMENT OF SUCH PRODUCTION IF IT ENABLED THE BUYER TO START ACTUAL PRODUCTION EVEN IF SUCH PRODUCTION WAS ON A TRIAL BASIS . UNDER ARTICLE 53 OF THE TREATY THE HIGH AUTHORITY MAY MAKE ANY FINANCIAL ARRANGEMENTS ' WHICH IT RECOGNIZES TO BE NECESSARY FOR THE PERFORMANCE OF THE TASKS SET OUT IN ARTICLE 3 ' INCLUDING THAT OF ' ENSURING AN ORDERLY SUPPLY TO THE COMMON MARKET ' LAID DOWN IN SUBPARAGRAPH ( A ) OF THE SAID ARTICLE 31 . THE TREATY DOES NOT THEREFORE ONLY LOOK ON ' UNDERTAKINGS ' FROM THE POINT OF VIEW OF PRODUCTION BUT ALSO FROM THAT OF THE PROCUREMENT OF MATERIALS WHICH OF NECESSITY PRECEDE PRODUCTION, AT ANY RATE IN THE CASE OF THE PROCUREMENT OF MATERIALS SUCH AS FERROUS SCRAP WHICH FALL WITHIN THE JURISDICTION OF THE HIGH AUTHORITY . IT IS NOT DISPUTED THAT THE APPLICANT BOUGHT FERROUS SCRAP FROM APRIL 1956 AND THAT IT COMMENCED ACTUAL PRODUCTION OF STEEL ON 1 FEBRUARY 1957 AT THE LATEST . IT IS THEREFORE LIABLE TO PAY CONTRIBUTIONS FROM APRIL 1956 . FINALLY THE APPLICANT IS WRONG TO QUOTE ARTICLE 6 OF DECISION NO 2/57, PUBLISHED IN THE OFFICIAL JOURNAL OF 28 JANUARY 1957, TO PROVE THAT THE PERIOD PRIOR TO 1 FEBRUARY 1957 WAS NOT A ' PERIOD OF NORMAL OPERATION '. THIS PROVISION IN FACT ONLY REFERS TO THE ' SUPPLEMENTARY RATES ' TO BE CHARGED ON ' THE EXCESS CONSUMPTION ' OF FERROUS SCRAP, A QUESTION WHICH DOES NOT ARISE IN THE PRESENT CASE . THIS SUBMISSION MUST THEREFORE BE REJECTED WITHOUT THERE BEING ANY NEED TO ASCERTAIN WHETHER AND TO WHAT EXTENT THE OPERATIONS CARRIED OUT BY THE APPLICANT DURING THE PERIOD IN QUESTION WENT BEYOND THE PREPARATORY STAGE .
2 . THE SYSTEM RELATING TO INTEREST ( A ) THE APPLICANT STATES THAT THE GENERAL DECISIONS CONTESTED IN THIS APPLICATION ARE ILLEGAL, BECAUSE THEY INTRODUCED A SYSTEM WITH REGARD TO INTEREST WHICH IS NOT COVERED BY THE DECISIONS MADE EARLIER WITH THE ASSENT OF THE COUNCIL, IN ACCORDANCE WITH ARTICLE 53(B ) OF THE TREATY . THE FIRST QUESTION TO BE ANSWERED IS WHETHER THE OBLIGATION TO OBTAIN THE ASSENT OF THE COUNCIL IN THIS CASE ARISES UNDER THE TREATY . P.699 UNDER ARTICLE 53(B ) OF THE TREATY THE HIGH AUTHORITY MAY ' WITH THE UNANIMOUS ASSENT OF THE COUNCIL, ITSELF MAKE ANY FINANCIAL ARRANGEMENTS SERVING THE SAME PURPOSES '. AS THIS IS A PROVISION WHICH LAYS DOWN THE ESSENTIAL PROCEDURAL REQUIREMENTS FOR THE VALIDITY OF CERTAIN DECISIONS IT MUST BE STRICTLY CONSTRUED . THE EFFECT OF ARTICLE 53(B ) OF THE TREATY IS THAT THE UNANIMOUS ASSENT OF THE COUNCIL WAS ONLY NECESSARY IF THE INTRODUCTION OF A SYSTEM OF CREDITING INTEREST AFFECTED OR MODIFIED THE VERY BASIS OF THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME . A SYSTEM FOR CREDITING INTEREST, ESTABLISHED IN ORDER TO COMPENSATE UNDERTAKINGS SUBJECT TO THE SCHEME FOR THE PERIODS DURING WHICH THEY HAD TO LOCK UP CAPITAL REQUIRED TO MEET THEIR OBLIGATIONS, APPEARS TO BE NECESSARY IN ORDER TO ENSURE THAT THESE UNDERTAKINGS ARE NOT UNJUSTIFIABLY PREJUDICED BY DELAYS IN PAYMENTS MADE BY OTHER UNDERTAKINGS . THIS SYSTEM, WHICH DOES NOT MODIFY THE ESSENTIAL STRUCTURE OF THE FINANCIAL ARRANGEMENTS FOR EQUALIZATION, WAS ADOPTED TO ENABLE IT TO FUNCTION PROPERLY AND TO ATTAIN THE OBJECTIVES APPROVED BY THE COUNCIL . THE SECOND QUESTION TO BE ANSWERED IS WHETHER THE FACT THAT ARTICLE 13 OF DECISION 16/58, ADOPTED WITH THE UNANIMOUS ASSENT OF THE COUNCIL, PROVIDED FOR THE APPLICATION OF A SYSTEM FOR THE PAYMENT OF INTEREST FOR DELAY MEANT THAT THE HIGH AUTHORITY HAD TO OBTAIN ONCE MORE THE UNANIMOUS ASSENT OF THE COUNCIL TO ANY AMENDING DECISION . THERE IS NO JUSTIFICATION FOR THE CONCLUSION THAT THE DECISIONS OF THE HIGH AUTHORITY TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL COULD ONLY BE AMENDED, EVEN IN THE CASE OF AMENDMENTS NOT AFFECTING THE BASIS OF SUCH DECISIONS, BY A NEW DECISION ALSO TAKEN WITH THE UNANIMOUS ASSENT OF THE COUNCIL . THEREFORE THE COMPLAINT BASED ON THE ABSENCE OF THE UNANIMOUS ASSENT OF THE COUNCIL IS UNFOUNDED . ( B ) THE APPLICANT STATES THAT THE STATEMENT OF THE REASONS UPON WHICH DECISION NO 7/61 IS BASED IS INCONCLUSIVE, ON THE GROUND THAT IT DOES NOT GIVE THE REASONS WHY IT WOULD HAVE BEEN IMPOSSIBLE FOR THE HIGH AUTHORITY TO REMOVE THE DISADVANTAGES OF THE FORMER SYSTEM FOR CHARGING INTEREST FOR DELAY IN PAYMENT AND TO ADOPT A SYSTEM OTHER THAN THE ONE WHICH IS CONTESTED . RECITALS 5 TO 8 OF THIS DECISION UNDERLINE CLEARLY THE DISADVANTAGES CAUSED BY CHARGING INTEREST FOR DELAY IN PAYMENT ON PROVISIONAL CONTRIBUTIONS, AND THAT IT IS NECESSARY TO CALCULATE THE AMOUNT OF THE CONTRIBUTIONS OF ALL THE UNDERTAKINGS LIABLE TO PAY THEM BY REFERENCE TO THE SAME DATE, AS THESE CONTRIBUTIONS ARE OFTEN SPREAD OVER VARYING PERIODS FOR DIFFERENT UNDERTAKINGS, WHICH ARE THEREBY EITHER BENEFITED OR PREJUDICED . RECITAL 8 DESCRIBES THE SITUATION WHICH IN THE OPINION OF THE HIGH AUTHORITY RESULTS FROM THE APPLICATION OF THE CONTESTED SYSTEM AND WHICH IS THE REASON WHY IT ADOPTED THIS SYSTEM . P.700 THIS STATEMENT OF REASONS THUS DISCLOSES THE CONSIDERATIONS WHICH LED THE HIGH AUTHORITY TO ADOPT THE DISPUTED DECISION NO 7/61 AND THE REASONS UPON WHICH THAT DECISION IS BASED . SINCE THE STATEMENT OF THE REASONS UPON WHICH THE SAID DECISION IS BASED IS ADEQUATE IN LAW THIS SUBMISSION MUST BE REJECTED AS UNFOUNDED . ( C ) THE APPLICANT MAINTAINS THAT THE NEW SYSTEM FOR CHARGING INTEREST ADOPTED BY DECISION NO 7/61 DISCRIMINATES AGAINST UNDERTAKINGS WHICH ARE NOT RESPONSIBLE FOR THE DELAY IN THEIR PAYMENTS . IN FACT THE SYSTEM INTRODUCED BY DECISION NO 7/61 DISPENSED WITH THE IMPOSITION OF PECUNIARY SANCTIONS IN THE FORM OF INTEREST PAYABLE FOR DELAYED PAYMENT . HOWEVER, EXPERIENCE SHOWED THAT FOR VARIOUS REASONS, FOR WHICH THE UNDERTAKINGS COULD NOT OFTEN NOT BE MADE RESPONSIBLE, THE EXACT AMOUNTS OF THE CONTRIBUTIONS COULD ONLY BE DETERMINED AFTER DELAYS WHICH ARE AT TIMES CONSIDERABLE . THERE WAS THEREFORE THE DANGER THAT THE FORMER SYSTEM MIGHT LEAD TO BOTH AN INTRICATE AND COMPLICATED INVESTIGATION INTO ALL THE CIRCUMSTANCES RELATING TO RESPONSIBILITY FOR DELAY AND TO THE UNSATISFACTORY SITUATION THAT THE CHARGE UNDER THE EQUALIZATION SCHEME WAS IN FACT IMPOSED UNEQUALLY ON THE VARIOUS UNDERTAKINGS . THUS THE UNDERTAKINGS, WHOSE EXACT CONTRIBUTIONS COULD ONLY BE DETERMINED AFTER SOME DELAY, RETAINED THE USE FOR A CERTAIN TIME OF SUMS WHICH SHOULD HAVE BEEN AVAILABLE TO THE FUND . THE RESULT WAS THAT THE OTHER UNDERTAKINGS HAD TO BEAR ADDITIONAL CHARGES WITHOUT ANY SET-OFF . THESE UNDERTAKINGS WERE THEREFORE IN A DOUBLY UNFAVOURABLE POSITION COMPARED WITH THE UNDERTAKINGS WHOSE PAYMENTS WERE DELAYED . THESE DISPARITIES WHICH AROSE OUT OF THE FORMER SYSTEM WERE OF A KIND LIKELY TO HAVE DIRECT EFFECTS IN THE FIELD OF COMPETITION . SUCH A RESULT WOULD CLEARLY BE CONTRARY TO THE REQUIREMENTS AND OBJECTIVES OF THE EQUALIZATION SCHEME, IN PARTICULAR TO THE PRINCIPLE THAT THE CONTRIBUTIONS TO BE PAID BY THE CHARGEABLE UNDERTAKINGS SHOULD BE APPORTIONED AS EQUALLY AS POSSIBLE . FOR THIS REASON THE HIGH AUTHORITY COULD NOT CONTINUE THE FORMER SYSTEM BUT HAD TO REPLACE IT WITH ANOTHER WHICH DID NOT HAVE THE DISADVANTAGES MENTIONED ABOVE . WHILST IT IS TRUE THAT FOR THIS PURPOSE IT TREATED ON A FOOTING OF EQUALITY ALL UNDERTAKINGS WHICH WERE FOR ANY REASON IN ARREAR WITH THEIR PAYMENTS, WITHOUT CONSIDERING THE QUESTION OF BLAME OR LIABILITY, THIS IS EXPLAINED BY THE INJUSTICES AND UNCERTAINTIES WHICH A MORE CONVENTIONAL SYSTEM WOULD HAVE INTRODUCED INTO THE WORKING OF THE EQUALIZATION SCHEME . P.701 IT IS MOREOVER CLEAR THAT THE SYSTEM ADOPTED BY DECISION NO 7/61 ELIMINATES AS FAR AS POSSIBLE THE OBJECTIVE INEQUALITIES CAUSED BY THE DELAY IN THE LIQUIDATION OF THE EQUALIZATION SCHEME . THEREFORE THIS COMPLAINT IS UNFOUNDED . ( D ) FINALLY, THE APPLICANT SUBMITS THAT DECISION NO 7/61 IS DEFECTIVE BECAUSE IT HAS RETROACTIVE EFFECT AND THEREFORE INFRINGES LEGAL PRINCIPLE . IN SUCH A FINANCIAL SCHEME AS THE ONE IN QUESTION, BASED ON A CLOSE INTERDEPENDENCE BETWEEN THE CONTRIBUTIONS OF EACH OF THE PARTICIPANTS, IT IS ABOVE ALL NECESSARY TO ENSURE EQUALITY OF TREATMENT BETWEEN THOSE SUBJECT THERETO, BY ELIMINATING ALL POSSIBILITY OF DISCRIMINATING BETWEEN THEM . IN THESE CIRCUMSTANCES THE CONTINUANCE OF RULES WHICH WOULD HAVE THE EFFECT OF CONFERRING UNJUSTIFIED BENEFITS ON CERTAIN UNDERTAKINGS COMPARED WITH OTHERS, ON THE PRETEXT THAT THEY ESTABLISHED LEGAL SITUATIONS OR VESTED RIGHTS, WOULD JEOPARDIZE THE OBJECTIVES OF THE SAID SCHEME . IT IS THEREFORE NECESSARY WITHIN THE FRAMEWORK OF SUCH A SCHEME TO ACKNOWLEDGE THAT THE RESPONSIBLE BODIES HAVE THE POWER TO MAKE THE NECESSARY AMENDMENTS TO SUCH RULES IN ORDER TO ELIMINATE ANY POSSIBLE DISCRIMINATION . FURTHER, AS THIS FINANCIAL SCHEME IS BEING LIQUIDATED AND THE CONTRIBUTIONS OF EACH PARTICIPANT ARE THEREFORE BEING DEALT WITH ON A PROVISIONAL BASIS, IT IS IMPOSSIBLE TO ELIMINATE ANY SUCH DISCRIMINATION WITHOUT ALTERING SITUATIONS CREATED BY THE PREVIOUS RULES, WHICH HAD TO BE AMENDED . IT IS THEREFORE NECESSARY TO CONCLUDE THAT THIS SUBMISSION IS UNFOUNDED AND MUST BE REJECTED . THE RESULT OF ALL THESE CONSIDERATIONS IS THAT THIS APPLICATION IS UNFOUNDED .