C-4/59

JUDGMENT OF 4. 4. 1960 — JOINED CASES 4 TO 13/59

The legal justification of the payment exists whether it was paid to the consumer under­ independently of whether the equalization takings to enable them to buy imported was paid directly to the scrap sellers or scrap.

In Joined Cases

1. MANNESMANN AG, Düsseldorf (Case 4/59), 2. RUHRSTAHL AG, Witten (Case 5/59), 3. GUSSTAHLWERK GELSENKIRCHEN AG, Gelsenkirchen (Case 6/59), 4. GUSSTAHLWERK WITTEN AG, Witten (Case 7/59), 5. NIEDERRHEINISCHE HÜTTE AG, Duisburg (Case 8/59), 6. BOCHUMER VEREIN FÜR GUSSTAHLFABRIKATION AG, Bochum (Case 9/59), 7. STAHLWERKE BOCHUM AG, Bochum (Case 10/59), 8. AUGUST THYSSEN-HÜTTE AG, Duisburg-Hamborn (Case 11/59), 9. HÜTTENWERK OBERHAUSEN AG, Oberhausen (Case 12/59), 10. PHOENIX-RHEINROHR AG, Düsseldorf (Case 13/59), assisted by Werner von Simson, Advocate at the Oberlandesgericht Düsseldorf, with an address for service in Luxembourg at the Chambers of the said Werner von Simson in Luxembourg, Bertrange,

applicants

v

gives the following

MANNESMANN v HIGH AUTHORITY

JUDGMENT

Issues of fact and of law

I — Statement of the facts made a financial arrangement for the equal­ ization of the prices of scrap imported from The facts of the case may be summarized as third countries, as well as scrap treated as follows: such (shipyard scrap and other highly priced scrap). A — The bases of the equalization scheme 4. In 1953 the governments of the six 1. The situation of the market in ferrous Member States enacted a general prohibi­ scrap in the Community, which is marked tion on exporting scrap; in the following by the fact that the Community's internal year, they made an exception to it for such resources in scrap are insufficient to cover shipyard scrap as, after being compulsorily the requirements of current consumption offered to the Joint Bureau, was not bought and at the same time to build up stocks to by the Joint Bureau for the Community. a level compatible with the undertakings' normal operation, makes it necessary to im­ 5. Under the general decisions quoted port scrap from third countries. above, the scrap-consuming undertakings enjoyed an equalization between the (high­ Imported scrap commands appreciably er) price of scrap imported from third coun­ higher prices than scrap recovered within tries or scrap treated as such, on the one the Community. For this reason, with a hand, and the price of Community scrap, view to ensuring an orderly supply of scrap on the other. at reasonable prices, the need for an equal­ ization scheme for imported scrap was as­ All the scrap-consuming undertakings in certained before the Common Market was the Community were obliged to pay the established. contributions necessary for the equalization transactions and for the purchase of scrap in 2. Since a first voluntary equalization third countries.

JUDGMENT OF 4. 4. 1960 — JOINED CASES 4 TO 13/59

5) and 2/57 (Article 11), after obtaining the before the establishment of the compulsory agreement of the Fund, the Joint Bureau equalization scheme and were later taken were to negotiate the purchases for the joint over by the scheme. account.

tions to be paid by the undertakings, gave the undertakings notice of the time for pay 1. During the period from 31 August 1956 ment and was empowered to collect the to 8 July 1957, the Joint Bureau concluded relevant amounts; it also effected payment six general agreements with the company of the equalization amounts. Hansa Rohstoffverwertung GmbH, Düs seldorf (hereinafter referred to as 'Hansa') 7. In each of the Member States regional for the account of undertakings to be sub offices existed, as auxiliaries to the equali sequently named.

chases; indicated to the seller of the scrap ance is concerned, the letters indicate Ice the undertakings which were to receive it; land, England and other territories outside the Community. informed the Fund of the tonnages of scrap qualifying for equalization which had been delivered to the undertakings within their As to provenance, two of the letters of con area; on the basis of these reports, the Fund firmation mention substitute scrap. calculated the total amount of equalization due in the Community, the equalization 2. The contracts of purchase expressly refer contribution calculated per metric ton of to the general provisions of the Joint Bu scrap purchased, and the credit or debit bal reau's contract, which stipulate inter alia: ance of each country; that the purchase shall always be carried out collaborated with the Fund in the settle by order of and for the account of undertak ment of the amounts due in respect of ings to be named subsequently and that the equalization. regional offices are authorized to name the undertakings which are to receive the ma Contingent provisions governing the or

MANNESMANN v HIGH AUTHORITY

. . fund, were paid by the DSVG not to that undertaking itself, but directly to the seller For the batches of scrap arising from these of the scrap in part of the purchase price. sources or from similar sources, the CPFI (the Fund) or its representative's shall have 4. The certificates sent by a Netherlands a right of inspection over the breaking-up of seller of scrap, the Zeeuwse Metaalmaats the scrap. chappij, to Hansa and by Hansa to the DSVG to prove entitlement to equalization were declarations signed by the head of the Iron and Steel Division of the Netherlands For other materials in Community territory Ministry for Economic Affairs. which do not come under the provisions of the High Authority, declarations by the These declarations stated inter alia: government agencies or other administra

ings. The deliveries to the consumer under 6. By a letter of 27 November 1958, the takings were in each case preceded by no High Authority informed the applicants tices of allocation from the DSVG to the that the payments in respect of equalization undertakings which were to receive the with which their accounts had been credit goods; after taking delivery of the scrap, the ed had been made in error and invited them undertakings sent acknowledgements of re- to repay amounts equivalent thereto to the ceipt to Hansa and scrap accounts to the financial arrangement. DSVG.

These decisions

1. Claim that the Court should: 1. The applicants criticize the fact that the contested decisions were taken in the form '(a)Annul the individual decisions of the of enforceable decisions within the mean­ High Authority of 6 January 1959 'con­ ing of Article 92 of the ECSC Treaty. cerning the repayment of provisional equalization payments made by the im­ The Treaty enumerates exclusively the ported Ferrous Scrap Equalization cases in which the existence of pecuniary Fund' to the applicant undertakings; obligations on undertakings can be esta­ blished by decisions of the High Authority; (b) Order the High Authority to pay the costs.' in this case, only such pecuniary obligations as are governed by the Treaty itself without recourse to other rules of law are included. 2. In the alternative, suggest that the case be adjourned until such time as the organs In this instance, no such case is involved. of the financial arrangement have submit­ ted their final accounts, and that, if neces­ The defendant answers that the individual sary, time-limits be laid down for this pur­ decision imposing an obligation of repay­ pose; ment can be equated with a decision impos­ ing an obligation of payment (e.g. of equal­ 3. In the further alternative, should the ization contributions); the individual deci­ claims of the High Authority be upheld, as­ sion is the only means which the Treaty sert, if and in so far as appropriate, rights to puts at the disposal of the High Authority to a set-off based on an action for damages oblige a recalcitrant undertaking, through against the High Authority for wrongful proper legal proceedings, to fulfil its pecun­ acts or omissions by its organs. iary obligations.

that the High Authority can also not base its The effect of accepting that the procedure purported right to take a decision establish­ of making an order to pay by means of an ing the existence of pecuniary obligations administrative decision is lawful in regard upon Article 53 of the ECSC Treaty. to them would be that the protection before the courts enjoyed by Community under­ The High Authority cannot purport to der­ takings, in respect of pecuniary obligations ive the general right to enact administrative in relation to the High Authority, would be orders which constitute pecuniary obliga­ less than that granted to undertakings out­ tions from its right to make a financial ar­ side the Community. rangement; on the contrary, in the deci­ sions by which it made the financial ar­ The defendant answers that the Court of rangement and which were unanimously Justice affords the applicants full and com­ approved by the Council of Ministers, it plete legal protection against its decisions; should have stated clearly the cases in the (procedural) prejudice advanced by the which it reserves the right to take enforce­ applicants and allegedly resulting from the able decisions which constitute pecuniary procedure for repayment does not affect the obligations. legality of the contested decisions.

This is not the case for decisions imposing 4. Under the submissions of the High Au­ repayment. thority's lack of competence, the applicants further assert that the decisions under Arti­ cle 92 should at all events establish: Such decisions, therefore, find no legal ba­ sis either in the substantive law of the that the equalization amounts were paid to ECSC Treaty, or in the decisions taken un­ the applicants; der Article 53; and to read implied exten­ sions into the provisions of the Treaty that they were wrongly paid, since the High would be prejudicial to its strictly norma­ tive nature. Authority would have been competent to take a decision only in that case.

The High Authority also disputes that a de­ This payment to a third party could also not cison claiming back overpayments in re­ constitute a payment on behalf of the appli­ spect of equalization is such as to be outside cants, since the applicants had no obliga­ its competence. The right to take such mea­ tions in regard to the recipient of the pay­ sures goes without saying and the agree­ ment. ment of the Council of Ministers was not necessary to confer it upon the High Au­ If the applicants did buy the scrap con­ thority. cerned, they could only have done so sub­ ject to the conditions of a contract con­ 3. The applicants also advance the argu­ cluded by the Joint Bureau of Ferrous Scrap ment that, in many cases, any repayment of Consumers which, in the absence of a valid overpayments in respect of equalization power of representation, was not legally would have to be demanded from a scrap binding on them. dealer who is not among the undertakings referred to in Article 80 of the Treaty and Moreover, that contract required that the who therefore cannot be the subject of an delivery should be of scrap qualifying for administrative decision. equalization, and expressly stipulated the

JUDGMENT OF 4. 4. 1960 — JOINED CASES 4 TO 13/59

1. The applicants maintain that the High cants or on their behalf. Therefore the con Authority misused its powers through a tested decisions cannot rely on a right misuse of procedure in purporting, in the which, by its nature, was capable of being absence of any already existing pecuniary established by a decision of the High Au obligation directly resulting from the func thority against the applicants. tioning of the financial arrangement, to create such an obligation by the contested The defendant answers these arguments of decisions themselves, and in employing to the applicants in detail under the heading of that end the summary procedure which is infringement of the Treaty (see under D in open to it only for ascertaining and putting fra). into effect obligations the legal foundation of which is clearly derived from the Treaty.

them. 2. The applicants also consider as constitut ing a misuse of procedure the fact that the 6. As regards the content of the contested High Authority used the medium of an ad decisions, the applicants criticize the fact ministrative decision to give the impression that the High Authority decided that a con that the complex involving both public law tract existed between themselves and Han and private law justifies its claims, by as sa. It was not, however, competent to do so; serting as facts in the contested decisions by its decisions, it can only regulate the ap matters involving private law, such as 'the plicants' public law relations with the Com applicants received payments' or 'the equal munity, but cannot make findings in the ization benefited them'.

MANNESMANN v HIGH AUTHORITY

pute. The contested decisions are essential­ Moreover, the contested decisions fail to ly based on the assessment of a civil law re­ state the reasons on which they are based in lationship. The High Authority seeks, how­ that they do not indicate the facts from ever, to deny the applicants any objections which it follows: relating to the civil law relationship, with the argument that its debt comes under that a part of the scrap delivered to the ap­ public law alone. plicants did not qualify for equalization and that the sums the repayment of which is be­ The defendant answers that the equalization ing sought were wrongly paid; the bare as­ scheme as a whole comes under public law, sertion that it was neither imported scrap and that the rights and duties of the under­ nor shipyard scrap is irrelevant, in view of takings arising from this scheme are in the the fact that Community scrap could be de­ domain of public law. livered which qualified for equalization by virtue of the conferring of rights to export; The concept of a 'complex' is mistaken; payment of the equalization amounts is of that the scrap received by the applicants did a public law nature, and consequently clai­ come from that part of the delivery and not ming back equalization amounts wrongly from another, almost all of which qualified paid is of the same nature. for equalization.

The statement of reasons supplied a posteri­ Furthermore, the contested decisions were ori in the statement in defence is not taken a year after the discovery of the cor­ capable of alleviating the effects of the in­ ruption affair; in the meantime, the appli­ fringement of an essential procedural cants became aware of all the details on the requirement consisting of a lack of a state­ amounts that were improperly paid to them ment of the reasons on which the contested in respect of equalization upon examination decisions were based. of the false certificates.

JUDGMENT OF 4. 4. 1960 — JOINED CASES 4 TO 13/59

D — Infringement of the Treaty (bb) The payment did not relieve the appli­ cants of an obligation, as the contract According to the applicants, the contested of purchase concluded between the decisons infringe the Treaty or a rule of law Joint Bureau and Hansa did not direct­ relating to its application in that: ly bind the applicants. they create an enforceable right in respect of as to (aa) a debt the basis of which in fact and in law is not clearly shown therein; According to the applicants, the High Au­ thority bases its right to recovery of the pay­ inasmuch as they hold a pecuniary obliga­ ments on the argument—in their opinion a tion to exist, or inasmuch as they purport to mistaken one—that the direct or indirect establish it themselves, they rely on allega­ payment of equalization amounts benefits tions of fact which are untrue or which can­ the undertakings to whom it is made, to the not be proved: detriment of the Community. In the reality, equalization does not benefit the undertak­ The first argument is covered by the discus­ ing which happens to consume imported sion under the submission of infringement scrap, but rather scrap consumers as a of an essential procedural requirement (see whole; its purpose is to guarantee that im­ under C supra). ported scrap should be available in suffi­ cient quantities and that the price thereof As to the second argument, the applicants should be adjusted to that of Community maintain that the existence of a pecuniary scrap. The consumer of such scrap does not obligation depends on proof that: benefit from it any more than any other scrap consumer (except users of own aris­ 1. Payments were made to them; ings). The applicants conclude from this that, for their part, they have not received 2. Those payments were wrongly made; any payments in respect of equalization.

from the decisions setting up the financial tion of the undertaking as the buyer makes arrangement that the undertaking to which the contract legally binding on that under the scrap is delivered is the creditor of the taking. The defendant asks on what legal equalization payments. The applicants do basis the applicants could have acquired not dispute that payments in respect of and paid for the scrap other than on that of equalization were made; the applicants a purchase at common law. alone could claim the right to receive those payments, and the DSVG did in fact give The Joint Bureau did not itself purchase, it the undertakings valuable consideration by did not receive any delivery of scrap, it did paying off a part of the purchase price which not by itself carry out any payment for scrap they owed, when it transferred the equaliza or resell any scrap to the applicants.

This High Authority further points out count, the contracts of purchase, however, other general provisions of the contracts, being concluded directly between the sel tending to show that the undertakings are lers and the consumers concerned'; but the indeed the buyers of the scrap. Joint Bureau can, 'to the extent necessary for ensuring an orderly supply to the (ii) The applicants also maintain that a pur common market, also directly conclude chasing order, which governs the internal contracts of purchase (and of affreigh relations between the Joint Bureau and the tment) for the account of consumers to be applicants, could not amount to a power of named subsequently'. agency or make the applicants, through the medium of the Joint Bureau, the direct con The applicants maintain that, by regularly tracting partners of Hansa.

task.

The fact that in the present case, for several opinion, between the undertakings and years, the undertakings, the applicants Hansa), which does not concern the Fund. among them, continuously and regularly entrusted their purchases of scrap to the 2. Were the applicants entitled to equaliza DSVG through the Joint Bureau not only tion payments? created internal relations but also necessar ily involved the existence of a power of ag The applicants take the view that the pay ency in relation to third parties. ment of the part of the purchase price corre sponding to the amount of equalization was This conclusion is confirmed by the fact rightly made.

In the pres the Joint Bureau, the defendant replies that ent action, the sellers produced a certificate there was no need for the applicants to be from the Netherlands Government under informed of the details of the various pur which that scrap would be authorized to be chases; the DSVG, which was responsible exported if the Joint Bureau did not claim, for them, has the closest corporate relations it. The scrap thus became capable of consti with the German scrap-consuming under tuting the subject-matter of equalization, takings; the purchasing system has been and any examination as to whether the cer functioning for a long time and scrap is a tificate from the Netherlands Government material which lends itself to such a meth

It is not here a question of good or bad faith, but of the tak (iv) Finally, the applicants take the view ing, together with certain objective factors, that they cannot have been liable for the of evidence of the right to receive an equal purchase price in the event of the scrap's ization payment. not qualifying for equalization, and that they cannot have been relieved of an obli (b) The applicants maintain that the equal gation by the wrongly-made payment of ization scheme, that is, the Brussels organ that price. ization, the Fund, the Joint Bureau and the regional offices, constitute one unit and The defendant replies that the fact that the that all the quantities bought by the Joint material delivered might not have corre Bureau therefore qualify for equalization.

MANNESMANN v HIGH AUTHORITY

The appli 3. Does the High Authority possess a right cants forget that the export certificates do as against the applicants to reclaim over not represent the quantities of scrap to payments? which they relate, but are of value only as documentary evidence. If such documents The applicants take the view that the High are false as to their subject-matter, they Authority cannot demand from them the cannot give rise to true rights. repayment of equalization amounts impro perly paid. (c) The applicants point out that in two of the six general agreements in question the (a) The organs of the High Authority con scrap was expressly described as being sub cluded the contract for the delivery of scrap stitute scrap; they take the view that the and. agreed on the conditions under which other agreements also concerned substitute the seller was to be entitled to the part of the

imported scrap. The High Authority seems made wrongly for the account of the appli to be unaware that, by virtue of the govern cants; the applicants are not guilty of any ment certificates, substitute scrap, which is wrongful act or omission, whereas the same in itself community scrap, becomes 'high is not true of the defendant. As the condi ly-priced scrap' treated as scrap coming tions of a legally valid payment, the High from third countries and therefore qualifies Authority cannot impose on the applicants for equalization. claims greater than those fixed by contract regarding the recipient of the payment and Hansa was entitled to deliver Community considered by them as adequate in the pre scrap as qualifying for equalization, if it pro forman ce of the contract.

the Joint Bureau; both conditions were ful­ filled in this instance. The defendant disputes that the Joint Bu­ reau ever concluded any general agree­ The defendant points out in this connexion ments by delegation of the sovereign pow­ that the expression 'substitute scrap', which ers of the High Authority or of the Fund; appears in two of the agreements in dispute, and the organs of the High Authority also relates to the possible replacement of the did not draw up the conditions according to imported scrap which is referred to therein; which the sellers could have laid claim to moreover, substitute scrap, as opposed to that part of the purchase price correspond-

JUDGMENT OF 4. 4. 1960 — JOINED CASES 4 TO 13/59

position. ler is legally constituted by the world mar ket price, and not by the price of Commu 4. What scrap was delivered to the appli nity scrap; as far as scrap from third coun cants? tries is concerned, they are relieved of the burden of the higher price by the benefit of (a) Finally, the applicants point out that the equalization. condition precedent to any recovery sought from them is that the scrap which was in Moreover, the obligation in the law of the fact delivered to them should be identical Coal and Steel Community to repay sums with that which, according to the High Au improperly paid is not seriously open to dis thority, did not qualify for equalization.

ture. The provisions of German law on en of material from Hansa received a specified richment are not applicable. part of that scrap.

The defendant answers that the payments The defendant maintains that, for two of made by the Fund in respect of equalization the general agreements in dispute were only of a provisional nature; conse­ (62/VAR/130 and 70/VAR/1456), the dis­ quently the fact that there are differences pute over identity is immaterial, since the (which are minimal in any event) from the scrap delivered in performance of these two amounts claimed by the High Authority general agreements was solely scrap not goes without saying. qualifying for equalization ('black' scrap), even though it was described as being ship­ Moreover the applicants are able to verify yard scrap. Under the four other general the accuracy of the figures referred to by the agreements, 'white' scrap was also de­ High Authority; there is not the least livered, but it was not mixed with 'black' ground for submitting to athe Court the fi­ scrap. gures for the Fund's transactions in their The defendant also points out that in Oc­ entirety. The action turns solely on the tober 1958, when the Fund declared itself question whether the scrap for which equal­ willing to bring an action in Germany ization payments were made qualified for against Hansa for the recovery of overpay­ equalization and, if it did not so qualify, ments, acting as the assignee of the under­ whether the repayment of the amounts paid takings to which scrap had been delivered can be claimed from the undertakings which benefited therefrom. Even if the which did not qualify for equalization, the applicants did not question the accuracy of Fund had been negligent and if, for one pur­ the figures put forward by the Fund con­ chase or the other, it had paid excessive cerning the quantities of black scrap, al­ equalization amounts, the High Authority though it would have been in their interest would be entitled to claim back the to do so. amounts overpaid; but that is immaterial in the present case. The High Authority analyses in detail the examples quoted by the applicants and con­ (c) The applicants criticize the fact that cludes that the probative value of the their own share through the payment of

contributions in the equalization amounts certain undertakings benefited improperly. in dispute was not taken into account in any The liquidation of the Fund concerns finan of the decisions on repayment. cially only its own assets; it has no effect on The defendant replies that no set-off with an action against the applicants for recovery regard to the amounts of equalization im of overpayments and, consequently, on the properly received is practicable before the question whether the High Authority's ac accounts have been finally audited and ver tion infringes the principle of good faith.

F – Set-off E — Infringement of the principle of good faith In letters previous to this action, the appli cants Ruhrstahl AG (Case 5/59), Bochumer The applicants point out that final accounts Verein (Case 9/59) and Hüttenwerk Ober for the equalization scheme have not yet hausen (Case 12/59) claimed the right to a been produced; therefore the applicants set-off based on an action for damages.

Moreover, yet been presented it is taking steps relating those debts can be claimed in their own to the equalization scheme's past with a right. Even if the right to reclaim overpay view to settling a contentious matter which ments was governed by public law, the set it investigated and in which it determined ting-off of debts governed by private law the amounts of equalization from which could none the less be sought.

In reality, those three organs are different the causal relationship between the wrong­ legal entities and, in order to bring an action ful act or omission and the damage. for damages, the applicants ought to have set out in greater detail which organs con­ In this instance, the detriment suffered by ducted themselves wrongfully, what pre­ the applicants cannot have been caused by cisely constituted the wrong, whether their the improper conduct of the organs of the claims have their origin in civil law or in a equalization scheme; moreover there is no wrongful act or omission under administra­ wrongful act or omission. tive law and, above all, what can justify claims based on a wrongful act or omission IV — Procedure on the part of the administration. The actions are in due form and were There exists no legal basis to any liability on brought within the prescribed time-limit. the part of the Joint Bureau or the fund, still less on the part of the High Authority, for The procedure, which involved the joinder a wrongful act or omission by the DSVG. of the cases, followed the normal course.

Grounds of judgment

I — Admissibility of the applications

No objection was raised as to the admissibility of the applications.

The court finds no reason to challenge the admissibility of the applications of its own motion.

The right of the company Mannesmann AG, which contests the validity as re­ gards their substance of the decisions taken against the companies Mannesmann- Hüttenwerke AG and Hahnsche Werke AG, to institute proceedings must be re­ cognized, since, as the undisputed assignee of those two undertakings, it wishes to take precautions against a formal amendment of the decision making it enfor­ ceable against itself.

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 en­ forceable decisions, namely decisions which impose a pecuniary obligation.

It is erroneous to maintain that the Treaty itself enumerated these cases exclusive­ ly 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 sanc­ tion them by enforceable decisions based on Article 92.

The financial arrangements referred to in Article 53 are used for gathering and dis­ tributing 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 Nos 14/55 and 2/57, setting up a financial arrangement intended to en­ sure an orderly supply of scrap to the Common Market, obliged the scrap-consum­ ing 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 Nos 14/55 and 2/57 did not expressly provide for that possibility.

(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 con­ sumers.

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 mea­ sure producing subjective rights, the nature of which is not altered by the inter­ vention of a private law element, such as the alleged settlement of the debt.

(c) if they benefited from any unjustified enrichment.

(a) It emerges from the documents produced before the Court, and more parti­ cularly 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 en­ tered 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 pur­ chases was scrap which by its particular features was expressly eligible for equal­ ization; 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 intergral part of the agreements concluded by the Joint Bureau with the scrap suppliers, provided for the direct supervision by the fund or its representa­ tives 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 ap­ plicants, 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

Thus the payment of equalization did not constitute an enrichment for the appli­ cants 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 en­ richment also presupposes the absence of any justification whatever in the deal­ ings 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 ap­ plication of the Treaty and must be annulled.

Moreover, this conclusion does not prejudice the High Authority's right to

THE COURT

hereby:

1. Annuls the decisions of the High Authority of 6 January 1959, 'concern­ ing the repayment of provisional equalization payments made by the Imported Ferrous Scrap Equalization Fund' to the undertakings Man­ nesmann Hüttenwerke AG, Hahnsche Werke AG, Ruhrstahl AG, Gußstahlwerk Gelsenkirchen AG, Gußstahlwerk Witten AG, Nieder­ rheinische Hütte AG, Bochumer Verein für Gußstahlfabrikation AG, Stahlwerke Bochum AG, August Thyssen-Hütte AG, Hüttenwerk Oberhausen AG and Phoenix-Rheinrohr AG;

2. Orders the High Authority to pay the costs.

Donner Delvaux Riese Hammes Catalano

Delivered in open court in Luxembourg on 4 April 1960.