C-1/59

In order to determine accurately the gravity publication. The latter infringement cannot of the infringement and consequently the however be regarded as a minor offence in amount of the fine, it is necessary to con­ view of the aims of compulsory publication. sider whether or not the failure to comply A mere infringement of the rules regarding with the rules regarding publication also in­ publication calls therefore for the imposition cludes an infringement of the rules on non­ of a fine which is appropriate having regard discrimination. Infringement of the rule on to the consequences of that infringement. non-discrimination is a more serious offence (ECSC Treaty, Articles 36, 60 and 64) than infringement of the rules regarding

In Case 1/59

MACCHIORLATTI DALMAS E FIGLI, a limited partnership governed by Italian law, having its registered office in Turin, represented by Antonio Macchiolatti Dalmas, assisted by Arturo Cottrau, Advocate of the Turin Bar and at the Corte di Cassazionze of the Italian Republic, with an address for service in Luxembourg at the Chambers of Georges Margue, Advocate, 6 rue Alphonse-Munchen,

applicant,

v

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

Advocate General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties In October 1957 Mr. Robert Lepape, Chief Inspector of the supervising departments of The applicant, reserving all other argu­ the High Authority visited the applicant ments in justification of its conduct, claims partnership's registered office for the pur­ that the Court should: pose of inspecting and checking the latter's 'In the first place, declare that the contested accounts as provided for in Decisions Nos decision of the High Authority of the ECSC 30/53, 31/53, 1/54 and 2/54. On 16 is null and void; January 1958 the High Authority notified Alternatively, reduce the amount of the fine the undertaking that some of its invoices, imposed upon the applicant; amounting in value altogether to Lit In any event, order the High Authority to 70 569 655 did not appear to be in order bear the costs.' because they recorded sales at prices ex­ The defendant contends that the Court ceeding those in its price list, the price in­ should: creases amounting in the aggregate to Lit 'Dismiss all the claims made by the limited 9 199 973; the High Authority therefore in­ partnership 'Macchiorlatti Dalmas e Figli' vited it to offer an explanation for this in its application of 6 January 1959; within a period of 15 days, failing which it Order the applicant partnership to bear the would impose the penalties provided in Ar­ costs.' ticle 64 of the Treaty. According to the applicant it gave its ex­ planation orally to Mr. Lepape when the II — Summary of the facts checks were being carried out and for various reasons omitted to confirm it in The principal facts of this case may be sum­ writing to the High Authority. marized as follows: Consequently, on 4 December 1958 the

the Treaty. 5. In support of its assertions the applicant This fine of Lit 2 500 000 is the subject- produces in addition to its price list a very matter of an appeal in which the Court has large number of letters. unlimited jurisdiction (Article 36 of the In particular, its customers Cosiac (Annex Treaty). 13 to the reply), Menzio Petro (Annex 14 to the reply) and Martini Francesco (Annex 15 to the reply) state that they paid prices III — Submissions and arguments of the above the list prices because there were parties special conditions attaching to the methods of manufacture or delivery. The 'Ferro e Ac­ The submissions and arguments of the par­ ciaio' undertaking of Milan, which acted as ties may be summarized as followes: intermediary in the case of the deliveries to the customer Ilva, states (Annex 16 to the A — Submissions and arguments of the reply) that the method of manufacturing the applicant goods supplied and the delivery dates justified prices higher than those in the price 1. The applicant states that the reason why list. it failed to reply to the High Authority's 6. The applicant (reply, No 6) offers to registered letter of 16 January 1958 giving prove by witnesses that, as indicated in its it particulars of the invoices which Mr. price lists, when it has received special Lepape considered were not in order and in­ orders from its purchasers it has invariably viting it to offer an explanation was that the applied fixed price increases, of which it firm's senior partner was ill. However, it produces a detailed list. asserts that this explanation had already been given by the firm's staff to Mr. Lepape B — Submissions and arguments of the while he was carrying out his investigation defendant and it offers to call witnesses to prove this. 1. The defendant submits that, in the It cannot seriously be maintained that the absence of an explanation by Macchiorlatti correspondence produced by the High Dalmas e Figli, the High Authority had no Authority constitutes an extra-judicial ad­ other option but to impose the penalties' mission by Macchiorlatti that it has effected prescribed by the Treaty. The letter of 15 sales at prices higher than those stated in its December 1958 which the applicant sent to price list. That correspondence refers solely the High Authority (Annex 3 to the state­ to the collection of the levy provided for in ment of defence) is an extra-judicial admis­ Article 49 of the Treaty. sion wholly at variance with the case 2. Article 1 of Decision No 1/54 allows the presented afterwards in its application; in it obligation to adhere to published price lists the applicant acknowledges in particular to be disregarded in two specific cases: that it took account when fixing its prices of (a) When the transaction does not fall the financial standing and size of each within the categories of transaction customer and this amounts to discrimina­ covered by the price list; or tion prohibited by the Treaty. (b) When the departure is uniform in all 2. An examination of the invoices men­ comparable transactions. tioned in the contested decision reveals that

Grounds of judgment

Admissibility

The applicant is a mechanical engineering undertaking. It is also an iron and steel undertaking and for this reason falls within Article 80 of the ECSC Treaty; it is not disputed that it produces, inter alia, steel ingots, rolled steel products and steel sec­ tions, which are products mentioned in Annex 1 to the Treaty.

In accordance with Article 36 of the Treaty the Court has unlimited jurisdiction in appeals against pecuniary sanctions imposed under that Treaty such as those which are at issue in this case.

Therefore the application is admissible.

The substance

Under Article 2 of Decision No 30/53, as amended by Article 1 of Decision No 1/54, it is a prohibited practice within the meaning of Article 60 (1) for a seller to apply prices or conditions departing from those shown in his price list unless he can show either that the transaction in question does not fall within the categories of transac­ tions covered by this price list, or that the prices or conditions have been departed from uniformly in all comparable transactions.

Existence of the infringement

It emerged at the hearing that none of the sales to which exception is taken can be regarded as exclusive of or falling outside the categories of transactions covered by the applicant's price list, although the contested decision does not mention in the statement of the reasons upon which it is based that the exceptions specified in Arti­ cle 1 of Decision No 1/54 did not apply in this case.

Most of the sales at issue contravene the rules regarding publication. In some of them the price increases were a direct breach of the price list and in others that price list left out certain information which Article 2 (b) and (e) of Decision No 31/53 requires it to contain, such as any additional charge for size or length, any surcharge or increase in connexion with delivery, costs in connexion with method of shipment and any increase for certain grades and qualities. Those breaches or omis­ sions were found in the following invoices relating to the sales in question: Nos 2 of 5 January 1957; 4, 6, 7 and 8 of 4 January 1957; 12 of 7 January 1957; 15 of 8 January 1957; 53 of 26 January 1957; 63 and 64 of 29 January 1957; 70 and 72 of 30 January 1957; 429, 430 and 431 of 3 June 1957; 438 of 6 June 1957; 441 of 7 June 1957; 444 of 8 June 1957; 445 to 455 of 8, 10 and 11 June 1957; 459 to 463 of 12 June 1957; 464 and 465 of 13 June 1957 and 466 to 473 of 13 and 17 June 1957.

Furthermore, the applicant disregarded the rule on non-discrimination in the sales recorded in its invoices Nos 4 of 4 January 1957 and 15 of 8 January 1957. The fact is that in the case of those sales the list prices were not departed from uniformly in all comparable transactions.

1. To prevent prohibited practices as far as this is possible;

2. To permit buyers to obtain accurate information on prices and also to par­ ticipate in the detection of discrimination;

3. To allow undertakings to know the exact prices charged by their competitors and provide them with the opportunity of aligning their own prices on them.

Consequently, a mere infringement of the rules regarding publication of prices postulates the imposition of a fine which is not simply a symbolic penalty but which is appropriate having regard to the consequences of that infringement, which are to prevent the attainment of the fundamental objectives mentioned above.

In these circumstances the abovementioned infringements which have been found to have been committed — having regard to the value of the transactions com­ plained of, the disparity between the list prices and those which were applied and to the amount of the price increase applied in a discriminatory manner to certain customers — justify the pecuniary sanction imposed by the High Authority upon the applicant and the amount of the fine is appropriate in view of the gravity of the in­ fringements, bearing in mind the limits laid down by Article 64 of the Treaty.

The contested decision is justified and the application must be dismissed as unfounded.

1. Dismisses the application;

2. Orders the applicant to bear the costs.

Donner Delvaux Rossi Riese Catalano

Delivered in open court in Luxembourg on 17 December 1959.

A. Van Houtte A. M. Donner, Registrar President

OPINION OF MR ADVOCATE-GENERAL LAGRANGE <apnote>1</apnote>