1 . THE SUBMISSION BASED ON LACK OF COMPETENCE ( A ) THE APPLICANTS ALLEGE THAT THE HIGH AUTHORITY IS WRONG IN INFERRING FROM ARTICLE 92 OF THE ECSC TREATY ITS FORMAL COMPETENCE TO TAKE THE CONTESTED DECISIONS . IN THIS CONNEXION IT MUST BE STATED, FIRST, THAT THE CONTESTED DECISIONS ARE BASED NOT ONLY ON ARTICLE 92, BUT ALSO ON ARTICLE 53 OF THE TREATY AS WELL AS ON DECISIONS N.S 14/55 OF 26 MARCH 1955 AND 2/57 OF 26 JANUARY 1957, TAKEN PURSUANT TO ARTICLE 53, THE LEGALITY OF WHICH DECISIONS IS NOT DISPUTED . ARTICLE 92 OF THE TREATY DETERMINES SOLELY THE LEGAL NATURE OF CERTAIN DECISIONS OF THE HIGH AUTHORITY AS REGARDS THE MEANS AVAILABLE FOR THEIR ENFORCEMENT, BUT IT DOES NOT SPECIFY THE CASES IN WHICH THE HIGH AUTHORITY IS EMPOWERED TO TAKE ENFORCEABLE DECISIONS, NAMELY DECISIONS WHICH IMPOSE A PECUNIARY OBLIGATION . IT IS ERRONEOUS TO MAINTAIN THAT THE TREATY ITSELF ENUMERATED THESE CASES EXCLUSIVELY IN ITS PROVISIONS ON LEVIES, PERIODIC PENALTY PAYMENTS AND FINES . ARTICLE 53, UPON WHICH THE CONTESTED DECISIONS RELY AS A LEGAL BASIS, DOES IN FACT EMPOWER THE HIGH AUTHORITY TO MAKE FINANCIAL ARRANGEMENTS . IT GIVES THE HIGH AUTHORITY THE POWER TO IMPOSE PECUNIARY OBLIGATIONS ON UNDERTAKINGS AND TO SANCTION THEM BY ENFORCEABLE DECISIONS BASED ON ARTICLE 92 . THE FINANCIAL ARRANGEMENTS REFERRED TO IN ARTICLE 53 ARE USED FOR GATHERING AND DISTRIBUTING PECUNIARY RESOURCES; THEREFORE THE DECISIONS WHICH MAKE THEM CAN ALSO REGULATE THE MEANS OF ENFORCEMENT OF A COMPULSORY CONTRIBUTION TO THE BENEFIT OF SUCH AN ARRANGEMENT . DECISIONS N.S 14/55 AND 2/57, SETTING UP A FINANCIAL ARRANGEMENT INTENDED TO ENSURE AN ORDERLY SUPPLY OF SCRAP TO THE COMMON MARKET, OBLIGED THE SCRAP-CONSUMING UNDERTAKINGS IN THE COMMUNITY TO PAY CONTRIBUTIONS AND EXPRESSLY PROVIDED THAT THE HIGH AUTHORITY CAN TAKE ENFORCEABLE DECISIONS FOR THE RECOVERY THEREOF . THE HIGH AUTHORITY MAINTAINS THAT THESE PROVISIONS AUTHORIZE IT NOT ONLY TO COLLECT CONTRIBUTIONS, BUT ALSO TO ENFORCE RIGHTS ARISING FROM PAYMENTS OF EQUALIZATION WRONGLY MADE BY MEANS OF THOSE CONTRIBUTIONS, EVEN THOUGH DECISIONS N.S 14/55 AND 2/57 DID NOT EXPRESSLY PROVIDE FOR THAT POSSIBILITY . IN THE ABSENCE OF AN EXPRESS PROVISION ON THIS POINT, IT MUST BE ASKED WHETHER OR NOT THE RECLAIMING OF EQUALIZATION PAYMENTS WRONGLY RECEIVED IS THE NECESSARY COROLLARY OF THE COMPULSORY CONTRIBUTIONS AND THE RIGHTS TO EQUALIZATION PROVIDED IN THE DECISIONS ON THE EQUALIZATION SCHEME, AND WHETHER OR NOT THE POWERS OF ENFORCEMENT CONFERRED ON THE HIGH AUTHORITY IN THOSE DECISIONS, BY REASON OF THEIR IMPORT AND PURPOSE, AUTHORIZE SIMILARLY THE RECLAIMING BY MEANS OF ENFORCEABLE DECISIONS OF WRONGLY-MADE EQUALIZATION PAYMENTS . P . 131 THE EQUALIZATION SCHEME, WHICH WAS COMPULSORILY APPLIED TO THE MANY UNDERTAKINGS CONSUMING FERROUS SCRAP IN THE SIX COUNTRIES OF THE COMMUNITY, ALWAYS ENGENDERS THE POSSIBILITY OF ERRORS IN THE PAYMENT OF EQUALIZATION AMOUNTS, AND THEREFORE IT MUST BE ACCEPTED THAT THE LEGAL FOUNDATION OF AN OBLIGATION TO PAY CONTRIBUTIONS IMPLIES THE RIGHT TO RECOVER OVERPAYMENTS, AS THE EQUALIZATION SCHEME SET UP BY DECISION N.S 14/55 AND 2/57 COULD NOT BE IMPLEMENTED IN A REASONABLE WAY IN THE ABSENCE OF THIS POWER . THEREFORE EXPRESS AUTHORIZATION WAS NOT NECESSARY FOR THE EXERCISE OF RIGHTS TO REPAYMENT WHICH ARE OF THE SAME LEGAL NATURE AS THE RIGHT TO EQUALIZATION AND THE OBLIGATION TO PAY CONTRIBUTIONS . THEREFORE, THE FORMAL COMPETENCE OF THE HIGH AUTHORITY TO NOTE THE EXISTENCE OF AN OBLIGATION TO REPAY AND TO ASSERT ITS RIGHT TO REPAYMENT THROUGH AN ENFORCEABLE DECISION WAS WELL FOUNDED . ( B ) ON THE SUBSTANCE OF THE DECISIONS, AS REGARD THE COMPETENCE OF THE HIGH AUTHORITY, THE APPLICANTS ALLEGE THAT THE HIGH AUTHORITY USED THE POWER TO TAKE AN ENFORCEABLE ADMINISTRATIVE DECISION PROVIDED FOR IN ARTICLE 92 OF THE TREATY IN ORDER TO CREATE A CLAIM FOR ITSELF IN PRIVATE LAW . ACCORDING TO THE APPLICANTS, IF IT MUST BE ACKNOWLEDGED THAT THE PAYMENT OF THE CONTRIBUTIONS AND OF EQUALIZATION WITHIN THE SCRAP EQUALIZATION SCHEME WAS OF A PUBLIC LAW NATURE, NONE THE LESS IN THIS INSTANCE THE RIGHT TO REPAYMENT OF THE EQUALIZATION AMOUNTS PAID RESULTS FROM A PRIVATE LAW RELATIONSHIP . INDEED, THE FUND, OR THE DSVG ACTING ON ITS ORDER, DID NOT MAKE A PAYMENT TO THE APPLICANTS CORRESPONDING TO A PUBLIC LAW REQUIREMENT DERIVING FROM THE DECISIONS . ACCORDING TO THE DEFENDANT'S OWN ALLEGATIONS, IT MADE THE PAYMENT TO THE SUPPLIERS OF THE SCRAP, WHICH MEANS THAT THE APPLICANTS WERE RELIEVED OF A PRIVATE LAW OBLIGATION, AN OBLIGATION, MOREOVER, THE EXISTENCE OF WHICH THEY STRONGLY DISPUTE . THE STRUCTURE OF THE EQUALIZATION SCHEME FOR FERROUS SCRAP EXHIBITS, TAKEN AS A WHOLE, THE CHARACTERISTICS OF AN INSTITUTION GOVERNED BY PUBLIC LAW . IT IS A SYSTEM FOR LOWERING THE PRICE OF IMPORTED SCRAP TO THE BENEFIT OF THE CONSUMERS . WHETHER THIS LOWERING IS EFFECTED BY WAY OF AN INDIVIDUAL DISTRIBUTION OF SUBSIDIES OR BY GENERAL REDUCTION IN THE PRICE OF THAT SCRAP, IT IS STILL AN ADMINISTRATIVE MEASURE PRODUCING SUBJECTIVE RIGHTS, THE NATURE OF WHICH IS NOT ALTERED BY THE INTERVENTION OF A PRIVATE LAW ELEMENT, SUCH AS THE ALLEGED SETTLEMENT OF THE DEBT . P . 132
2 . THE MERITS OF THE HIGH AUTHORITY'S CLAIMS AS THE COMPETENCE OF THE HIGH AUTHORITY AND THE PROCEDURE WHICH IT EMPLOYED TO RECOVER EQUALIZATION AMOUNTS DO NOT GIVE RISE TO ANY OBJECTIONS, BEFORE PROCEEDING TO ANY OTHER ISSUE, IT SHOULD BE EXAMINED WHETHER THERE ARE ANY GROUNDS ON WHICH THE APPLICANTS CAN BE TREATED AS LIABLE FOR AMOUNTS WRONGLY PAID BY THE JOINT BUREAU IN RESPECT OF EQUALIZATION . THERE IS NO NEED TO INQUIRE INTO THE QUESTION OF THE LEGAL GROUNDS UPON WHICH AND THE EXTENT TO WHICH THE CONTRACTS WERE TO PRODUCE LEGAL EFFECTS ON THE PART OF THE APPLICANTS . SUCH EFFECTS WOULD BE POSSIBLE ONLY IF, AS A RESULT OF THE PURCHASES OF SCRAP, AS CONCLUDED BY THE JOINT BUREAU : ( A ) THE APPLICANTS INCURRED A LIABILITY IN RESPECT OF THE PAYMENT OF EQUALIZATION, OR IF ( B ) IN THE ALTERNATIVE, THEY BORE THE RISK OF SUCH PAYMENT, OR ELSE ( C ) IF THEY BENEFITED FROM ANY UNJUSTIFIED ENRICHMENT . ( A ) IT EMERGES FROM THE DOCUMENTS PRODUCED BEFORE THE COURT, AND MORE PARTICULARLY FROM THE CORRESPONDENCE BETWEEN THE JOINT BUREAU AND HANSA CONFIRMING THE GENERAL AGREEMENTS, WHICH DOCUMENTS, MOREOVER, ARE NOT CHALLENGED BY THE PARTIES, THAT IT WAS THE JOINT BUREAU, AN ORGAN OF THE HIGH AUTHORITY, WHICH ENTERED INTO THE AGREEMENTS WITH HANSA DEALING WITH THE PURCHASE AND DELIVERY OF SCRAP . UNDER THE VERY TERMS OF THE LETTERS OF CONFIRMATION, THE SUBJECT-MATTER OF THE PURCHASES WAS SCRAP WHICH BY ITS PARTICULAR FEATURES WAS EXPRESSLY ELIGIBLE FOR EQUALIZATION; FURTHERMORE, THIS CONDITION FOLLOWS FROM THE CLEAR INTENTION OF ALL THOSE CONCERNED . ARTICLE 4, AND IN PARTICULAR PARAGRAPH ( 4 ) THEREOF, OF THE GENERAL CONDITIONS WHICH FORMED AN INTEGRAL PART OF THE AGREEMENTS CONCLUDED BY THE JOINT BUREAU WITH THE SCRAP SUPPLIERS, PROVIDED FOR THE DIRECT SUPERVISION BY THE FUND OR ITS REPRESENTATIVES OF THAT ESSENTIAL QUALITY OF THE GOODS SOLD, NAMELY THEIR BELONGING TO MORE OR LESS CLEARLY DEFINED CATEGORIES OF SCRAP QUALIFYING FOR EQUALIZATION . THUS, NO OBLIGATION OF VERIFICATION, AND HENCE NO LIABILITY, COULD FALL UPON THE APPLICANTS, UNLESS IT WERE PROVED THAT THEY KNEW OR COULD HAVE KNOWN THAT THE SCRAP WAS FRAUDULENTLY DECLARED TO BE SCRAP ENTITLED TO EQUALIZATION . HOWEVER, NO PROOF OR OFFER OF PROOF TO THIS EFFECT HAS BEEN ADVANCED . ( B ) AS REGARDS THE PAYMENT OF EQUALIZATION BY THE FUND, IT SHOULD BE POINTED OUT THAT UNDER THE AFOREMENTIONED GENERAL CONDITIONS, IN PARTICULAR THE LAST PARAGRAPH OF ARTICLE 4, THE FUND, ON THE ORDER OF THE JOINT BUREAU, WAS TO MAKE SUCH PAYMENT ONLY AFTER CARRYING OUT THE DUTIES OF SUPERVISION INCUMBENT UPON IT, AS HAS JUST BEEN EXPLAINED, PROVIDED, STILL UNDER THE GENERAL CONDITIONS, THAT SUCH PAYMENT WAS TO BE SUSPENDED IF THE 'LEAST DOUBT' EXISTED AS TO THE AUTHENTICITY OF THE DOCUMENTS ESTABLISHING THE SCRAP'S QUALIFYING FOR EQUALIZATION . P . 133 THUS NO RISK IN RESPECT OF THEPAYMENT OF EQUALIZATION HAD BEEN ASSUMED BY THE APPLICANTS ALL THE MORE SO AS NO SUM INTENDED FOR THAT PURPOSE WAS PAID INTO THEIR HANDS, BUT ALL THE PAYMENTS RELATING THERETO WENT DIRECTLY TO THE SUPPLIERS THROUGH THE DSVG, THE REGIONAL OFFICE FOR GERMANY OF THE JOINT BUREAU AND THE FUND . ( C ) MOREOVER, IT CANNOT BE ARGUED THAT ANY UNJUSTIFIED ENRICHMENT ON THE PART OF THE APPLICANTS EXISTS . INDEED, EQUALIZATION WAS DESIGNED TO MAKE UP THE DIFFERENCE IN PRICE BETWEEN SO - CALLED IMPORTED SCRAP, WHICH WAS MORE HIGHLY - PRICED, AND SCRAP RECOVERED WITHIN THE COMMON MARKET . ACCORDING TO THE VERY PRINCIPLES UNDERLYING EQUALIZATION, THAT EXTRA COST WAS TO BE BORNE NOT BY THE APPLICANTS IN PROPORTION TO THE SUPPLIES OF IMPORTED SCRAP WHICH THEY RECEIVED, BUT BY THE SCRAP CONSUMERS AS A WHOLE THROUGH THE FUND . THUS THE PAYMENT OF EQUALIZATION DID NOT CONSTITUTE AN ENRICHMENT FOR THE APPLICANTS BY VIRTUE OF A PAYMENT WHICH BENEFITED THEM DIRECTLY, BUT WAS THE RESULT OF AN OPERATION BRINGING SCRAP DELIVERED DOWN TO THE PRICE OF THE INTERNAL MARKET . MOREOVER, AN OBLIGATION TO MAKE RESTITUTION ON THE GROUNDS OF AN UNJUSTIFIED ENRICHMENT ALSO PRESUPPOSES THE ABSENCE OF ANY JUSTIFICATION WHATEVER IN THE DEALINGS BETWEEN THE PARTIES . HOWEVER, THAT LEGAL JUSTIFICATION EXISTS INDEPENDENTLY OF WHETHER THE EQUALIZATION WAS PAID DIRECTLY TO THE SCRAP SELLERS, THUS CONSTITUTING THE DIFFERENCE BETWEEN THE PRICE ON THE INTERNAL MARKET AND THE IMPORT PRICE, OR WHETHER IT WAS PAID TO THE APPLICANTS TO ENABLE THEM TO BUY IMPORTED SCRAP INSTEAD OF BUYING SCRAP COMING FROM THE INTERNAL COMMUNITY MARKET . THEREFORE IN THIS INSTANCE THE REQUIREMENTS OF UNJUSTIFIED ENRICHMENT GIVING RISE TO RESTITUTION ARE NOT FULFILLED . UNDER THESE CIRCUMSTANCES, THE DECISIONS INFRINGE RULES OF LAW RELATING TO THE APPLICATION OF THE TREATY AND MUST BE ANNULLED . MOREOVER, THIS CONCLUSION DOES NOT PREJUDICE THE HIGH AUTHORITY'S RIGHT TO PROCEED AGAINST THE PERPETRATORS OF THE FRAUDS AND AGAINST THOSE WHO PROFITED FROM THEM . IN VIEW OF THE FOREGOING CONSIDERATIONS IT BECOMES SUPERFLUOUS TO EXAMINE THE OTHER GROUNDS OF COMPLAINT PUT FORWARD BY THE APPLICANTS, AND MORE PARTICULARLY THAT OF LACK OF REASONS SUPPORTING THE DECISIONS .