C-8/56

JUDGMENT OF THE COURT 10 DECEMBER 19571

Acciaierie Laminatoi Magliano Alpi (ALMA) SpA v High Authority of the European Coal and Steel Community

Case 8/56

Summary

1. Procedure — Letter sent by the High Authority — Registered mail — Delivery to employee of the addressee undertaking — Effects If, before imposing a fine on an undertaking, the High Authority gives that undertaking, by way of a registered letter, the opportunity to submit its comments pursuant to Article 36 of the Treaty, the statement contained in that letter becomes fully effective as soon as the postal employee delivers that letter in due course to an employee of the undertaking at its registered office, the effect of which is to bring the letter within the control of that undertaking (Treaty, Article 36).

2. Prices — Publication — System — Communication to the High Authority of price lists and conditions of sale The Treaty is not infringed when the High Authority determines the extent and manner of publication of price lists and conditions of sale, pursuant to Article 60 (2) (a) of the Treaty, laying down, inter alia, that they shall be communicated to it. Article 60 (2) (a) must be viewed in this connexion as a special provision in relation to Article 47 (Treaty, Articles 47 and 60).

Rome, with an address for service in Luxembourg at the Chambers of Georges Margue, 6 rue Alphonse München,

applicant,

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY , represented by its Legal Adviser, Professor Giulio Pasetti-Bombardella, Advocate, acting as Agent, assisted by Alberto Trabucchi, Professor at the University of Padova, Advocate before the Corte di Cassazione, Rome, with an address for service in Luxembourg at its offices, 2 place de Metz,

defendant,

Application for the annulment of the decision of the High Authority of 24 October 1956 notified to the applicant by registered letter of 9 November 1956 imposing on the applicants a fine of Lit 800 000,

I — Conclusions of the parties 'reject all the claims made by the ALMA company in their application, notified to the The applicant claims that the Court should: High Authority on 13 December 1956;

'find in favour of the present application order the company to pay the costs of the and annul the decision of the High Author­ action.' ity of 24 October 1956, notified on 14 No­ vember 1956, as annexed to the file: II — Background to the case

order the High Authority to pay the costs. The applicant is an iron and steel undertak­ ing having its registered office in Turin, its The defendant contends that the Court works being situated at Magliano Alpi, a should: small town about 100 km from that city.

ALMA v HIGH AUTHORITY

III — Submissions and arguments (a) In the applicant's view the High Au­ of the parties thority was unaware that Article 64 of the Treaty may be used as the basis for deter­ In support of its application the applicant mining a fine only where the sanction is im­ claims: posed in respect of prohibited practices such as discrimination and unfair competition, an infringement of Article 36 of the Treaty which are offences of which the applicant and a failure to examine an important fact;' has never been guilty. Indeed, that article provides for fines 'not exceeding twice the 'an infringement of Article 64 of the Trea­ value of the sales effected [in disregard of ty.' the provisions]'. The High Authority's ar­ gument would therefore lead to the absurd A — Infringement of Article 36 result that, in view of the volume of sales effected on the basis of the price lists which (a) The applicant maintains in its applica­ were not communicated to the High Au­ tion that the warning letter of 4 November thority, the applicant could have been 1955 arrived neither at its registered office ordered to pay a fine of between Lit 100 and nor at its works. In its reply and at the hear­ 200 million. ing it merely stated that the letter was never The High Authority has confused publica­ delivered to its sole director at Magliano tion and communication of price lists. The Alpi. applicant merely infringed the obligation to

OPINION OF MR LAGRANGE -CASE 8/56

Law

A — Infringement of Article 36 of the Treaty

The applicant complains that the High Authority imposed the contested fine with­ out having previously given it the opportunity to submit its comments pursuant to the first paragraph of Article 36 of the Treaty. In this connexion, it claims that the registered letter sent by the High Authority on 4 November 1955, which, with­ out any doubt, constituted an invitation satisfying the requirements of the said provision, never arrived at Magliano Alpi, where the works of the applicant com­ pany are situated, since the address contained spelling errors. It is unnecessary to examine whether this complaint is also, or exclusively, one of infringement of essential procedural requirements, since the Court is of the opinion that it is unfounded. The High Authority has submitted to the Court a photocopy of the acknowledge­ ment of receipt of the above-mentioned letter, bearing the seal of ALMA, the au­ thenticity of which has not been challenged. It has therefore shown that the letter was delivered to an employee of the applicant at a building situated at 33 Corso Regio Parco, Turin, being the address which the applicant, in its application, states­ to be that of its registered office.

ALMA v HIGH AUTHORITY

This being so, it is of little importance whether the letter—as stated by the appli­ cant—was not conveyed from Turin to Magliano Alpi. Since it is established that it duly arrived at the applicant's registered office, application may be made of a principle of law recognized in all countries of the Community, namely that a writ­ ten declaration of intent becomes effective as soon as it arrives in due course with­ in the control of the addressee. The submission concerning infringement of Article 36 must therefore be rejected.

The submission concerning infringement of Article 64 must therefore also be re­ jected.

C — Amount of the fine

The Court has examined the question whether the amount of the fine should be reduced.

It notes that the action before it is one in which it has unlimited jurisdiction (sec­ ond paragraph of Article 36) and that, therefore, it is empowered not only to annul but also to amend the decision which has been adopted.

JUDGMENT OF 10. 12. 1957 -CASE 8/56

Although the applicant has put forward no formal submission to this effect, the Court believes, the Advocate-General concurring, that that part of the application stressing the modest financial circumstances of the applicant may be interpreted as an alternative submission requesting such a reduction. Furthermore, even in the absence of any formal submission, the Court is authorized to reduce the amount of an excessive fine since such a result would not have an effect ultra pe­ tita, but would on the contrary amount to a partial acceptance of the application. In accordance with the views expressed by the Advocate-General the Court is, however, of the opinion that the amount of the fine is not excessive in this case. As regards the gravity of the offence, account should be taken of the importance of the principle of the publication of prices, on the one hand, and of the fact, on the other hand, that the applicant persistently disregarded the rules in question for more than three years, thereby betraying considerable negligence at the very least. Furthermore, as regards the applicant's financial situation the Court refers to the figures quoted in the Advocate-General's Opinion. It notes, moreover, that the ac­ counts for 1955 and 1956 contain items on the debit side entitled 'Extraordinary Reserve Fund', amounting to Lit 18 043 659 and 18 621 034 respectively. This be­ ing the case, no manifest injustice has been established and the Court does not intend to substitute its assessment for that of the High Authority. The Court is not unaware of the difficulties which the applicant may encounter as the result of the coincidence of its obligations to pay the fine and discharge ar­ rears in respect of levies. The Court relies on the High Authority's judgment re­ garding the manner in which the fine is to be paid.

ALMA v HIGH AUTHORITY

Orders the applicant to pay the costs.

Pilotti Hammes Serrarens

Riese Delvaux Rueff Van Kleffens

Delivered in open court in Luxembourg on 10 December 1957.

M. Pilotti O Riese

The company ALMA (Acciaierie Lamina­ doubtedly fulfils the formality required by toi Magliano Alpi) asks you to annul a de­ the first paragraph of Article 36. Moreover, cision of the High Authority dated 24 Oc­ this point is not contested. tober 1956 imposing on it, pursuant to Ar­ But the applicant claims that it never re­ ticle 64 of the Treaty, a fine of Lit 800 000 ceived the letter in question. for failure to publish its price lists and con­ However, the file contains a photocopy of ditions of sale. This is an action based on an acknowledgement of receipt in respect of Article 36, therefore an action in which the a letter posted on 7 November 1955 in Lux­ Court has unlimited jurisdiction. embourg by the High Authority addressed The application is in due form and was sub­ to 'Acc. e Lam. di Magliona Alpi' (instead mitted within the period of one month from of 'Magliano Alpi'), Corso Regiodarco, 33 notification of the decision pursuant to the (instead of Corso Regioparco, 33), Turin, provisions of Article 33 of the Treaty and Italy. The acknowledgement of receipt it- Article 39 of the Protocol on the Statute of self bears the stamp of the receiving office the Court. It is therefore admissible. (Turin, 9/11/55), the signature of the em­ ployee of the receiving office and (and this With regard to substance, two submissions seems to me to be the decisive point and to have been raised: justify the new arguments developed in the oral hearing) the signature of the addressee The first is based on an infringement of the preceded by the seal of the company: first paragraph of Article 36, according to 'ALMA', which proves that the minor which: Before imposing a pecuniary sanc­ spelling mistakes contained in the written tion or ordering a periodic penalty payment address did not prevent delivery of the let­ as provided for in this Treaty, the High Au­ ter to the addressee at the very place indi­ thority must give the party concerned the cated by the company as being its registered opportunity to submit its comments.' office. The fact (which has, moreover, not The file contains a copy of a letter dated 4 been established) that the company official November 1955, signed by a member of the whose duty it is to receive the mail did not High Authority, the content of which un­ in fact convey the letter to the place at