C-22/58

JUDGMENT OF THE COURT

17 JULY 1959 1

Bochumer Verein für Gußtstahlfabrikation AG, Niederrheinische Hütte AG and Stahlwerke Siidwestfalen AG

v High Authority of the European Coal and Steel Community

Case 22/58

Application for annulment—Definition of a decision—Criteria applicable in the legal assess­ ment of a measure by the High Authority—Effect of declarations issued by servants of the High Authority—Distinction between a decision and an internal office directive (Cf. summary, Judgment in Case 20/58 of 6 July 1959)

v

High Authority of the European Coal and Steel Community , represented by its Legal Adviser, Frans van Houten, acting as Agent, assisted by Wolfgang Schneider, Advocate of the Frankfurt Bar, with an address for service in Luxem­ bourg at its offices, 2 place de Metz,

defendant,

1- Language of the Case: German.

JUDGMENT OF 17. 7. 1959 — CASE 22/58

Application for annulment of the letter sent by the High Authority on 18 December 1957 to the Office Commun des Consommateurs de Ferraille (OCCF) (Joint Bureau of Ferrous Scrap Consumers) and published in the Journal Officiel No 4 of 1 February 1958, if and in so far as that letter constitutes a decision within the meaning of Articles 14 and 15 of the Treaty,

I — Conclusions of the parties By its Decision No 22/54 of 26 March 1954, the High Authority established an equaliza­ The applicants claim that the Court should: tion system to prevent Community prices '1. Annul the letter sent by the High for ferrous scrap from being aligned on the Authority on 18 December 1957 to the higher prices for scrap imported from third OCCF and published in the Journal Of­ countries. ficiel No 4 of 1 February 1958, p. 45 et This equalization system was continued by seq., if and in so far as that letter con­ Decisions Nos 14/55 and 2/57 but, from 1 stitutes a decision within the meaning of April 1955, the proceeds of the contribution Articles 14 and 15 of the Treaty; were used to finance, besides equalization, 2. Order the defendant to pay the costs. the granting of premiums for the increased The defendant contends that the Court use of cast iron. The implementation of the should: system in practice was entrusted to the Of­ '1. Take formal note that all the documents fice Commun des Consommateurs de and communications relating to this Ferraille (OCCF) (Joint Bureau of Ferrous case shall be sent to the High Authority, Scrap Consumers) and the Caisse de Péré­ 2 place de Metz, Luxembourg; quation des Ferrailles Importées (CPFI) 2. Dismiss the application lodged by the (Imported Ferrous Scrap Equalization applicants on 17 March 1958 as un­ Fund), agencies operating under the control founded; of the High Authority. 3. Order the applicants to pay the costs. Under Decision No 2/57, the contribution of each undertaking is obtained by applying, II — Statement of the facts for each accounting period, a basic rate to its consumption of bought scrap, and, if The facts of the case may be summarized as necessary, a supplementary rate to its excess follows: consumption of bought scrap. An undertak-

ing's total consumption of scrap is defined as But it asserts that the criterion in question being the sum of the tonnages of the total applies equally to all the undertakings in the amount of own resources and the amounts Community and that consequently the letter of bought scrap received, plus any decrease in dispute is of a general nature. It follows in stocks or minus any increase in stocks, from this that under the second paragraph and minus any deliveries of scrap sold of Article 33 of the Treaty the applicants and/or transferred. And by substraction, the can put forward only the submission of mis­ consumption of bought scrap is equal to the use of powers affecting them. total consumption minus the total amount The applicants take the view that the letter of own resources and the decrease in stocks. complained of is not a decision. The only Following these definitions, certain under­ measures of the High Authority capable of takings interpreted the term 'own resources' having binding force are those which are as meaning 'scrap which has not been clearly described as a decision or a bought' and entered as own resources in recommendation and whose form and con­ their accounts with the Equalization Fund tent satisfy the requirements of Article 14 all the tonnages received by them from sub­ and 15 of the Treaty. sidiary undertakings having a different com­ If the contested letter is a decision, it is in­ pany name, but in which they possessed a dividual in character, since it is addressed to controlling interest. In other words, in the the President of the OCCF, and it concerns view of those undertakings, 'group scrap' is the applicants, whose equalization contribu­ 'own resources scrap' and therefore is not tions it considerably increases. Therefore it taken into consideration for the purposes of is open to the applicant companies to put paying the contribution imposed on the con­ forward any or all of the grounds referred to sumption of bought scrap. in the first paragraph of Article 33 of the By a letter of 30 October 1957, the OCCF Treaty. then asked the High Authority to take a decision on this question under the second 2. The substance of the case paragraph of Article 15 of Decision No 2/57. In its reply of 18 December 1957, First submission: Lack of competence published in the Journal Officiel of 1 The applicants state that under the second February 1958, the High Authority took the paragraph of Article 15 of Decision No 2/57 view that the question was misconceived the High Authority may take a decision only and asserted in support of this view that in the absence of a unanimous resolution by there already existed a well-established opi­ the Board of the OCCF on the measures nion linking the concept of 'own resources' referred to in Articles 3 to 11 (1) of the said to the legal concept of 'ownership'. decision. In the present case, the point at This application is for the annulment of the issue is the definition of the concept of an aforesaid letter of 18 December 1957. undertaking. And it is Article 2 of the deci­ sion which defines that concept as meaning 'an undertaking referred to in Article 80 of III — Submissions and argu­ the Treaty'. Furthermore, that definition ments of the parties does not constitute 'a measure'.

therefore replies to the arguments put mission based on infringement of an essen­ forward by the applicants in support of that tial procedural requirement cannot be ad­ submission only in the alternative. mitted (see supra: 'Admissibility') and It asserts that the contested letter cannot be replies to the arguments in support of this considered as amending its previous Deci­ submission only in the alternative. sions Nos 22/54, 14/55 and 2/57 and that The defendant asserts that the complaint of therefore there was no occasion for the inadequacy of the reasons stated is without Council of Ministers to intervene. On the re­ foundation. The third paragraph of this quest of the OCCF, the High Authority con­ letter complained of sets out the reasons on firmed and clarified the interpretation of the which the letter is based, which are founded concept of 'own resources' which the OCCF on the concept of ownership and of logical had hitherto been following. An interpreta­ and literal interpretation. A more detailed tion in accordance with the habitual mean­ statement of reasons would have been re­ ing of the word and the material context is quired only if the letter had diverged from not an amendment. the normal meaning of words. According to The exemptions granted in the contested the principles of law, the reasons given are letter also do not constitute an amendment sufficient.

Treaty' that of 'an undertaking bearing the 4. The letter infringes the previous Deci­ same company name' or of'a legal person'. sions Nos 22/54, 14/55 and 2/57, and in Furthermore, the letter does not state the particular Article 3 (1) of Decision No 2/57, reasons on which it is based, contrary to the which provides for a contribution only in provisions of the first paragraph of Article respect of bought scrap, and Article 4 (1) 15 of the Treaty. and (2), which allows undertakings within The defendant takes the view that the sub- the meaning of Article 80 of the Treaty to

BOCHUMER VEREIN v HIGH AUTHORITY

6. According to Article 80 of the Treaty, ing directly with iron and steel but not the the applicants together with their sub holding companies or parent companies sidiaries constitute one single undertaking. which exercise an influence over them. The letter complained of infringes that arti When that provision speaks of an undertak cle, by adopting the criteria of the company ing, it can mean only the legal person who name or a legal person. consumes the ferrous scrap. Although 7. The applicants constitute an economic German law recognizes for tax purposes the unit with their subsidiaries, and to a large existence of organic, financial and economic extent also a legal unit. Therefore they are links between a parent company and one or in a position comparable to that of under more subsidiary companies, that recognition takings in the same branch of production is always limited to definite sectors and the which have grouped their different works legal independence of the controlled com into a single legal person. Thus the letter panies is not affected thereby.

other. Furthermore, in the case of the appli Thus, in order to effect the equalization of cants, scrap is recovered within a single un prices of assessable scrap and of imported dertaking within the meaning of Article 80 scrap, which has to be subsidized, the defen of the Treaty, which is not true of the un dant would have to carry out a fresh appor dertakings which were granted the exemp tionment of the contributions in favour of tion. groups and to the detriment of those plants The defendant takes the view that the sub which are not part of a group. mission based on infringement of the Treaty The different treatment applied, on the one cannot be admitted in this case (see supra: hand, to concentrations forming a single 'Admissibility'). Therefore it replies to the legal person and, on the other, to undertak applicants' arguments in support of that ings linked as regards organization, submission only in the alternative. economy and finances, rests on a legal foun According to the defendant, the applicants dation, ownership at the time of recovery,

which cannot be of a discriminatory nature. Fourth submission: misuse of powers As to the exemptions granted to Hoogovens The applicants make five points in support and Breda, they are based upon the of this submission criterion of the existence of a single in dustrial unit, locally integrated. This 1. The High Authority seeks by means of criterion is capable of objective application its letter to obtain a result which it can in all cases of a similar nature. achieve only by taking a decision; by so do The criterion defined in the letter com ing, it is committing a misuse of powers. plained of is not an administrative measure 2. The High Authority sought to amend its having retroactive effect, but only the state previous decisions without obtaining the as ment of what the administration had always sent of the Council of Ministers.

assessable. On the other hand, the extensive own resources, since examples had expressly interpretation defended by the applicants been submitted to it. By treating could not be applied unless it had been economically identical cases in a different precisely defined in the decision itself. way and thus knowingly discriminating The contradictions alleged by the applicants between undertakings within the Com do not exist in the letter complained of. The munity, the High Authority is committing a reason why the High Authority stated that misuse of powers. it was not necessary to amend the existing 4. By means of the letter complained of, the procedure while at the same time inviting defendant seeks to prejudice the unity of un the Fund to recover the overdue contribu dertakings and to impose equalization con tions was that the tonnages had been wrong tributions upon transactions of an internal ly entered in the accounts as own resources. nature; by arbitrarily describing a part of Since, as the result of a mistake in in undertakings' own resources as bought terpretation, the applicants submitted a scrap, it is disguising its true intention as an materially incorrect declaration, they must intervention upon the market.

BOCHUMER VEREIN v HIGH AUTHORITY

Furthermore, the infringements of the mitted also 'affects' the applicants. On this Treaty upon which the applicants seek to point it leaves the matter to the wisdom of rely under the heading of misuse of powers the Court.

can be alleged only as such, that is, as in­ As to its answer to the various arguments fringements of the Treaty and not under the which the applicants put forward in support heading of misuse of powers. of misuse of powers, the defendant refers to The defendant also points out that it is the explanations which it gave in the first doubtful whether in the present case any three submissions.

misuse of powers which may have been com-

Grounds of judgment

Admissibility

This finding is confirmed by the fact that an amendment to Decision No 2/57 would have required, under Article 53 (b) of the Treaty, the prior unanimous assent of the

JUDGMENT OF 17. 7. 1959 — CASE 22/58

Council of Ministers, a condition which was not fulfilled in the present case. Moreover, there is no reason to suppose that the High Authority would knowingly have infringed this imperative provision.

These considerations are not invalidated by the fact that, in answer to a formal re­ quest from the Deutsche Schrottverbrauchergemeinschaft, sent to the High Authority on 6 February 1958, the Market Division replied by a letter of 19 February 1958 that the letter of 18 December 1957 was indeed a 'decision'.

In fact, by its very wording, this answer from the Market Division expresses the opi­ nion of an official of the High Authority and does not necessarily, in itself alone and in the present case, convey the intentions of the High Authority. It must be noted, however, that the answer could have prompted, or even decided, the applicants to bring proceedings against this alleged decision, with the legitimate concern of safeguarding their interests.

However, the various subjective factors set out above cannot in themselves be decisive for the purpose of determining the nature of the letter of 18 December 1957 in question, since the nature of an administrative measure depends above all on its subject-matter and its content.

However, since the defendant by its letter of 19 February 1958 prompted, or even

BOCHUMER VEREIN v HIGH AUTHORITY

decided, the applicants to bring proceedings against the alleged decision contained in the letter of 18 December 1957, an order must be made that the parties bear their own costs.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 14, 15. 33 and 80 of the Treaty establishing the ECSC; Having regard to the Protocol on the Statute of the Court of Justice of the ECSC; Having regard to the Rules of Procedure of the Court of Justice of the ECSC,

THE COURT

hereby:

A. Van Houtte A. M. Donner

Registrar President

OPINION OF MR ADVOCATE-GENERAL LAGRANGE

(see Case 20/58, page 84)