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A - ADMISSIBILITY
1 . WERE THE APPLICATIONS LODGED WITHIN THE PERIOD PRESCRIBED BY THE TREATY AND BY THE RULES OF PROCEDURE?
APPLICATIONS NOS 36/58, 37/58, 38/58, 40/58 AND 41/58 ARE IDENTICAL, EXCEPT AS REGARDS THE DATE ON WHICH THEY WERE ENTERED IN THE REGISTER AT THE REGISTRY .
THOSE APPLICATIONS SEEK THE ANNULMENT OF A DECISION OF THE HIGH AUTHORITY OF 24 JULY 1958, PUBLISHED IN THE JOURNAL OFFICIEL OF 30 JULY 1958 .
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THE THIRD PARAGRAPH OF ARTICLE 33 OF THE TREATY PROVIDES THAT APPLICATIONS SHALL BE INSTITUTED WITHIN ONE MONTH OF THE PUBLICATION OF THE DECISION ADOPTED .
UNDER ARTICLE 85 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY, WHICH REMAINS APPLICABLE TO THE APPLICATIONS MENTIONED ABOVE IN ACCORDANCE WITH ARTICLE 111 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE PERIOD PRESCRIBED FOR INSTITUTING APPLICATIONS AGAINST DECISIONS OF THE HIGH AUTHORITY STARTS TO RUN ON THE FIFTEENTH DAY FOLLOWING THE DATE OF PUBLICATION OF THE DECISION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .
UNDER ARTICLE 85 ( 2 ), THE PERIOD IS EXTENDED, ON ACCOUNT OF DISTANCE, BY FIVE DAYS FOR PARTIES RESIDING IN ITALY .
ARTICLE 33 ( 3 ) OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT " AS REGARDS PROCEDURAL TIME-LIMITS, THE DATE OF LODGING AT THE REGISTRY SHALL ALONE BE TAKEN INTO CONSIDERATION ".
APPLICATIONS NOS 40/58 AND 41/58 WERE LODGED AT THE REGISTRY ON 22 SEPTEMBER 1958 .
THAT DATE IS SUBSEQUENT TO 18 SEPTEMBER, THE EXPIRY DATE OF THE PERIOD RESULTING FROM THE ABOVEMENTIONED ARTICLES .
IN THE REPLY, THE APPLICANTS CLAIM THAT " IN ORDER TO ESTABLISH THE DATE ON WHICH A MEASURE HAS BEEN NOTIFIED BY POST, THE DATE OF POSTING SHOULD ALONE BE TAKEN INTO CONSIDERATION ".
THE APPLICANTS'CLAIM IS IN CONTRADICTION WITH THE WORDING OF ARTICLE 33 ( 3 ) OF THE RULES OF PROCEDURE OF THE COURT .
IF THE APPLIANTS'CLAIM WERE ACCEPTED, THE EXTENSIONS FOR DISTANCE PROVIDED FOR BY ARTICLE 85 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT WOULD HAVE NO JUSTIFICATION FOR, AS REGARDS LODGING BY POST, ALL PARTIES ARE IN IDENTICAL CIRCUMSTANCES, WHATEVER THE DISTANCE MAY BE WHICH SEPARATES THEM FROM THE COURT .
FOR THESE REASONS, IT IS ESTABLISHED THAT APPLICATIONS NOS 40/58 AND 41/58 WERE LODGED AT THE REGISTRY AFTER THE EXPIRY OF THE PERIOD PRESCRIBED BY THE TREATY AND BY THE RULES OF PROCEDURE OF THE COURT FOR BRINGING APPLICATIONS AGAINST DECISIONS OF THE HIGH AUTHORITY .
CONTRARY TO THE CLAIM MADE BY THE APPLICANTS DURING THE ORAL PROCEDURE, APPLICATIONS NOS 40/58 AND 41/58 CANNOT BE CONSIDERED AS APPLICATIONS TO INTERVENE AD-ADJUVENDUM IN CASES NOS 36/58, 37/58 AND 38/58, IN APPLICATION OF ARTICLE 34 OF THE STATUTE OF THE COURT, AS THE CONDITIONS LAID DOWN BY ARTICLE 71 OF THE RULES OF PROCEDURE OF THE COURT ARE NOT SATISFIED .
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FOR THESE VARIOUS REASONS, APPLICATIONS NOS 40/58 AND 41/58 ARE INADMISSIBLE .
APPLICATIONS NOS 36/58, 37/58 AND 38/58, LODGED AT THE REGISTRY ON 5 SEPTEMBER, WERE BROUGHT WITHIN THE PERIOD PRESCRIBED BY THE TREATY AND BY THE RULES OF PROCEDURE OF THE COURT .
2 . IS DECISION NO 13/58 GENERAL OR INDIVIDUAL IN CHARACTER?
UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY, UNDERTAKINGS MAY INSTITUTE PROCEEDINGS AGAINST DECISIONS CONCERNING THEM WHICH ARE INDIVIDUAL IN CHARACTER OR AGAINST GENERAL DECISIONS WHICH THEY CONSIDER TO INVOLVE A MISUSE OF POWERS AFFECTING THEM .
IT IS NECESSARY TO EXAMINE WHETHER DECISION NO 13/58, AT ISSUE IN THE APPLICATIONS, IS A DECISION CONCERNING THE APPLICANTS WHICH IS INDIVIDUAL IN CHARACTER OR A GENERAL DECISION .
THE PRINCIPAL PURPOSE OF DECISION NO 13/58 IS TO CORRECT IRREGULARITIES FOUND BY THE JUDGMENTS IN CASES 9/56 AND 10/56 IN DECISION NO 14/55 OF 26 MARCH 1955 .
AS THE COURT FOUND IN THE JUDGMENT IN MERONI V HIGH AUTHORITY ( 9/56 ), DECISION NO 14/55 IS A GENERAL DECISION .
DECISION NO 13/58, IN SO FAR AS IT PERMITS A MODIFICATION OF DECISION NO 14/55, IS CLOTHED WITH THE GENERAL CHARACTER OF THE LATTER .
THE GENERAL CHARACTER OF DECISION NO 13/58 RESULTS DIRECTLY FROM ITS CONTENT, WHICH ESTABLISHES A SERIES OF LEGISLATIVE PRINCIPLES, LAYS DOWN IN ABSTRACT FORM THE CIRCUMSTANCES IN WHICH THEY ARE TO APPLY AND SPECIFIES THE LEGAL CONSEQUENCES FLOWING FROM THEM .
DECISION NO 13/58 CONTAINS GENERAL RULES WHICH, LIKE THE FORMER GENERAL DECISIONS ON THE EQUALIZATION MACHINERY WHICH THOSE RULES ARE TO ALTER, MAY BE OF IMPORTANCE IN THE SAME WAY FOR AN INDETERMINATE NUMBER OF CASES .
THOSE RULES ARE TO BE APPLICABLE TO ALL PERSONS FINDING THEMSELVES IN THE CIRCUMSTANCES SPECIFIED FOR THE APPLICATION OF SUCH RULES .
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THEREFORE THE APPLICANTS'ASSERTION THAT DECISION NO 13/58, IN SO FAR AS IT AUTHORIZES THE HIGH AUTHORITY TO RECONSIDER DECISIONS ADOPTED BY THE EQUALIZATION FUND AND THE JOINT BUREAU, IN ORDER EITHER TO CONFIRM THEM OR TO OVERRULE THEM, " INDIVIDUALLY AND DIRECTLY CONCERNS A SMALL NUMBER OF READILY IDENTIFIABLE STEEL UNDERTAKINGS OF THE COMMUNITY " CANNOT BE ACCEPTED .
FOR THOSE REASONS DECISION NO 13/58 IS A GENERAL DECISION FOR THE PURPOSES OF ARTICLE 33 OF THE TREATY .
3 . ARE APPLICATIONS NOS 36/58, 37/58 AND 38/58 AGAINST GENERAL DECISION NO 13/58 ADMISSIBLE?
SINCE DECISION NO 13/58 IS A GENERAL DECISION, THE APPLICANTS, ACCORDING TO ARTICLE 33 OF THE TREATY, MAY ONLY INSTITUTE PROCEEDINGS AGAINST THAT DECISION IF THEY CONSIDER IT TO INVOLVE A MISUSE OF POWERS AFFECTING THEM .
THE APPLICANTS HAVE CLAIMED THAT DECISION NO 13/58 SHOULD BE ANNULLED FOR INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT, INFRINGEMENT OF THE TREATY AND MISUSE OF POWERS AFFECTING THEM .
UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE TREATY, THE LATTER SUBMISSION ALONE MAY BE RAISED .
B - SUBSTANCE
DOES DECISION NO 13/58 INVOLVE A MISUSE OF POWERS?
THE APPLICANTS RAISE THE QUESTION WHETHER :
" THE INTENTION BEHIND DECISION NO 13/58 WAS TO DRESS WITH THE TRAPPINGS OF A GENERAL DECISION AN INDIVIDUAL DECISION STRIKING EXCLUSIVELY AT UNDERTAKINGS WHICH HAD BEEN UNABLE TO IMPORT FERROUS SCRAP FROM THIRD COUNTRIES AND WHICH, THEREFORE, HAD NOT BEEN ABLE TO SET OFF WHAT THEY OWED FOR FERROUS SCRAP BOUGHT WITHIN THE COMMUNITY AGAINST GRANTS FOR IMPORTED SCRAP, AND THUS FOUND THEMSELVES FACED WITH BILLS FOR ASTRONOMICAL SUMS COMPARED WITH THEIR SIZE AND TURNOVER ".
CONTRARY TO THE APPLICANTS' ALLEGATION, DECISION NO 13/58 CANNOT BE CONSIDERED AS HAVING THAT PURPOSE, BECAUSE IT WAS DIRECTED AT ESTABLISHING A LEGAL BASIS FOR THE FINANCIAL ARRANGEMENTS WITH THE JUDGMENTS IN CASES 9/56 AND 10/56 OF 13 JUNE 1958 HAD FOUND FAULT .
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THE APPLICANTS ALLEGE THAT IN ADOPTING DECISION NO 13/58 THE HIGH AUTHORITY INTENDED TO RENDER IT IMPOSSIBLE FOR THEM " TO BRING BEFORE THE COURT AN ACTION FOR FAILURE TO ACT UNDER ARTICLE 35 " AND THUS TO OBLIGE THEM " TO CONTEST THE DECISION ( ADOPTED BY WAY OF THE TRAPPINGS OF A GENERAL DECISION ) BY REFERENCE TO THE GROUND OF ILLEGALITY WHICH IS THE HARDEST TO PROVE, NAMELY MISUSE OF POWERS AFFECTING THEM ".
IN PUTTING FORWARD THAT COMPLAINT, THE APPLICANTS AGAIN FAIL TO RECOGNIZE THE ABOVEMENTIONED PURPOSE OF DECISION NO 13/58 .
MOREOVER, THE EARLIER GENERAL DECISIONS COULD ONLY BE RECTIFIED SO AS TO ACCORD WITH THE PRINCIPLES STATED BY THE COURT IN ITS JUDGMENTS IN CASES 9/56 AND 10/56 BY A GENERAL DECISION ADOPTED IN ACCORDANCE WITH THE PROCEDURE LAID DOWN IN ARTICLE 53 ( B ) OF THE TREATY .
THE APPLICANTS ASSERT THAT THE MISUSE OF POWERS " IS EVIDENT " WHEN THE HIGH AUTHORITY DECLARES :
" THAT IN ORDER TO RECTIFY THE PRESENT SITUATION IT IS NECESSARY FOR ... THE HIGH AUTHORITY TO BE IN A POSITION TO RECONSIDER THE DECISIONS ADOPTED BY THE EQUALIZATION FUND AND THE JOINT BUREAU IN ORDER EITHER TO CONFIRM OR TO OVERRULE THOSE DECISIONS ..."
BY THAT PROVISION THE HIGH AUTHORITY :
" OF ITS OWN WILL OR BECAUSE OF AN ERRONEOUS INTERPRETATION OF ARTICLE 34 OF THE TREATY ALLOWS ITSELF TO BE DIVERTED TOWARDS OTHER PURPOSES WHICH CERTAINLY HAVE NOTHING TO DO WITH " THE NECESSARY STEPS TO COMPLY WITH THE JUDGMENT ". FOR HOW WOULD IT BE POSSIBLE FOR THE HIGH AUTHORITY TO CONFIRM THE DECISIONS ADOPTED BY THE CPFI AND THE OCCF, WHICH HAVE BEEN ANNULLED BY THE COURT OF JUSTICE ON THE GROUNDS, FIRST, THAT THEY ENFORCED AN OBLIGATION WHICH HAD ARISEN IN APPLICATION OF GENERAL DECISION NO 14/55, WHICH IS IRREGULAR, AND, SECONDLY, THAT THEY ENFORCED OBLIGATIONS WHICH HAD ARISEN UNDER A PROCEDURE FOR WHICH THERE WAS NO LEGAL BASIS . "
IN THAT COMPLAINT, THE APPLICANTS FAIL TO RECOGNIZE THE ACTUAL SCOPE OF THE JUDGMENTS IN CASES 9/56 AND 10/56 WHICH WERE NOT CONCERNED WITH THE SUBSTANCE OF THE DELIBERATIONS OF THE BRUSSELS AGENCIES, BUT WITH THE CIRCUMSTANCES IN WHICH THE DECISIONS WHICH FOLLOWED THEREFROM HAD BEEN APPLIED TO THE UNDERTAKINGS .
THE PURPOSE OF DECISION NO 13/58 IS TO MAKE THE FINANCIAL ARRANGEMENTS ESTABLISHED BY DECISIONS NOS 22/54, 14/55, 26/55, 3/56 AND 2/57 COMPATIBLE WITH THE REQUIREMENTS OF THE TREATY .
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THE APPLICANT'S CLAIM IS BASED ON THEIR FEAR THAT THE HIGH AUTHORITY WILL APPLY DECISION NO 13/58 IN A WAY WHICH THEY HOLD TO BE ILLEGAL .
SUCH A COMPLAINT COULD ONLY BE RAISED IN RESPECT OF INDIVIDUAL DECISIONS HAVING MADE SUCH AN APPLICATION OF DECISION NO 13/58 .
THE APPLICANTS SEE A MANIFEST " MISUSE OF PROCEDURE " IN THE FACT THAT BY DECISION NO 13/58 THE HIGH AUTHORITY INTENDED :
" TO MAKE THE UNWARRANTABLE EQUALIZATION RATES CALCULATED BY THE BRUSSELS AGENCIES BEHING CLOSED DOORS AND STUBBORNLY KEPT SECRET BY THE DEFENDANT CONTINUE IN FORCE ( EVEN TODAY, AFTER THE SEVERE CONDEMNATIONS OF THE COURT OF JUSTICE IN THE JUDGMENTS OF 13 JUNE 1958 ). THE MEANS CONSIST IN USING, WHATEVER THE CONTORTIONS INVOLVED, THE STATEMENTS OF ACCOUNT CONJURED UP OUT OF THE IMAGINATION, WHICH THE COURT HAD CONSIDERED AS DEVOID OF LEGAL EFFECT ( IT IS STILL CALLING THEM NOW, IN JANUARY 1959, BY THE EUPHEMISM " QUASI-DEFINITIVE "). FURTHER, THE MEANS CONSIST IN PERSISTING WITH A TENACITY WORTHY OF A BETTER CAUSE IN NOT PUBLISHING THE FACTS NOT COVERED BY PROFESSIONAL SECRECY, WHICH CAN BE USEFUL TO THE GOVERNMENTS AND TO ALL INTERESTED PARTIES ".
IN SUBMITTING SUCH COMPLAINTS, THE APPLICANTS AGAIN COMMIT THE ERROR OF INTERPRETATION ALREADY MENTIONED IN RESPECT OF DECISION NO 13/58, AND FAIL TO RECOGNIZE THAT THE SAID DECISION DOES NOT IN ANY WAY PREDETERMINE THE CIRCUMSTANCES IN WHICH IT SHALL APPLY .
THE APPLICANTS SEE FURTHER MISUSES OF POWERS IN THE FACT THAT BY DECISION NO 13/58 THE HIGH AUTHORITY :
" INTENDED TO INTRODUCE THE POWER TO PROCEED WITH RETROACTIVE EFFECT BY WAY OF ESTIMATED ASSESSMENTS IN CALCULATING THE EQUALIZATION CONTRIBUTIONS DUE FROM UNDERTAKINGS WHICH HAVE NOT SUBMITTED RETURNS AS TO THEIR CONSUMPTION OF FERROUS SCRAP WITHIN DUE TIME ".
IN SUBMITTING THAT COMPLAINT, THE APPLICANTS FAIL TO RECOGNIZE THAT IN ITS JUDGMENT IN CASE 9/56 THE COURT DID NOT DECLARE THAT ESTIMATED ASSESSMENTS ARE ILLEGAL .
ON THE CONTRARY, IT FOUND THAT A LEVY BY WAY OF AN ESTIMATE WAS A REMEDY WHEN UNDERTAKINGS FAILED TO SUBMIT RETURNS AND WAS A NECESSARY AND INEVITABLE CONSEQUENCE OF THE SYSTEM OF COMPULSORY CONTRIBUTIONS .
IT EVEN STATED THAT, IF THAT REMEDY WERE NOT AVAILABLE, THERE WOULD BE NO POINT IN MAKING IT COMPULSORY TO CONTRIBUTE BECAUSE EVERY UNDERTAKING, IN ITS OWN DEFENCE, WOULD RESORT TO AVOIDANCE BY NOT SUBMITTING RETURNS .
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IN ITS JUDGMENT IN CASE 9/56, THE COURT ONLY RULED AGAINST A FAILURE TO STATE REASONS FOR THE ESTIMATED ASSESSMENT, LEAVING THE ADDRESSE IGNORANT OF THE WAY IN WHICH ITS DEBT HAD BEEN CALCULATED .
IT IS INDEED THE PURPOSE OF DECISION NO 13/58 TO PUT ESTIMATED ASSESSMENTS ON A LEGAL BASIS, WHICH HAD BEEN LACKING .
IN PUTTING ESTIMATED ASSESSMENTS ON A LEGAL BASIS, WHICH HAD BEEN LACKING, THE HIGH AUTHORITY COULD NOT DO OTHERWISE THAN MAKE USE OF SUCH ASSESSMENTS IN RESPECT OF UNDERTAKINGS WHICH HAD FAILED TO MAKE RETURNS AS TO THEIR CONSUMPTION OF FERROUS SCRAP FOR, IF IT HAD NOT MADE USE OF SUCH ASSESSMENTS, THE SAID UNDERTAKINGS WOULD HAVE BEEN ABLE, BY PERSISTING IN DEFAULTING, TO AVOID PAYMENT OF THE EQUALIZATION CONTRIBUTIONS FOR WHICH THEY WERE LIABLE .
THE APPLICANTS SEE AN OBVIOUS MISUSE OF POWERS IN THE FACT THAT THE HIGH AUTHORITY HAS RESORTED " TO EXTRAORDINARY AND DANGEROUS MEASURES SUCH AS ESTIMATED ASSESSMENTS ", INSTEAD OF LIMITING ITSELF TO USING THE MEANS PROVIDED FOR IN ARTICLE 47 OF THE TREATY OF EXERCISING PRESSURE AND IMPOSING FINES IN ORDER TO FORCE DEFAULTING UNDERTAKINGS TO DECLARE THEIR CONSUMPTION OF FERROUS SCRAP .
IT RESULTS FROM THE CONSIDERATIONS SET OUT IN THE PRECEDING PARAGRAPH THAT ESTIMATED ASSESSMENTS CAN LEGITIMATELY BE MADE ON UNDERTAKINGS WHICH FAIL TO COMPLY WITH THE REQUIREMENT TO SUBMIT RETURNS, WITHOUT WHICH THE EQUALIZATION SYSTEM COULD NOT BE PUT INTO PRACTICE .
THEREFORE THE MAKING OF AN ESTIMATED ASSESSMENT CANNOT INVOLVE A MISUSE OF POWERS .
FOR ALL THE REASONS MENTIONED ABOVE, DECISION NO 13/58 DOES NOT INVOLVE A MISUSE OF POWERS .
THE APPLICANTS HAVE FAILED IN ALL THEIR SUBMISSIONS AND MUST, THEREFORE, BEAR ALL THE COSTS .
THE COURT
HEREBY
1 . DECLARES THAT THE APPLICATIONS OF THE UNDERTAKINGS FER . RO ( FERRIERE ROSSI ), AN UNDERTAKING TRADING AS AN INDIVIDUAL, MAGLIANO ALPI ( CUNEO ) ( 40/58 ) AND ACCIAIERIE SAN MICHELE SPA, TURIN ( 41/58 ), FOR THE ANNULMENT OF DECISION NO 13/58 OF 24 JULY 1958, PUBLISHED IN THE JOURNAL OFFICIEL OF 30 JULY 1958, ARE INADMISSIBLE .
2 . DISMISSES THE APPLICATIONS OF THE UNDERTAKINGS SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( SIMET ), SPA, NAPLES ( 36/58 ), MERONI AND C ., INDUSTRIE METALLURGICHE, A LIMITED PARTNERSHIP, ERBA ( 37/58 ), AND MERONI AND C ., INDUSTRIE METALLURGICHE, SPA, MILAN ( 38/58 ), FOR THE ANNULMENT OF THE ABOVEMENTIONED DECISION AS UNFOUNDED .
3 . ORDERS THE APPLICANT TO BEAR THE COSTS .
