C-33/59

2. Wrongful act or omission — Certificates drawn up by a national authority recognized as

supporting documents — Wrongful act committed by a national official in drawing up such certificates — Absence of checking by the Community

1. An amendment of the conclusions, done in a formal manner. even if admissible, is subject to the

strictest requirements as regards its 2. See Summary of the Judgment in precision and content and must be Case 23/59, Rec. 1958/1959, p. 505.

In Case 33/59

COMPAGNIE DES HAUTS FOURNEAUX DE CHASSE­ , a limited company governed

Application for pecuniary reparation for an injury allegedly caused by a wrongful act or omission on the part of the Community;

1 — Language of the Case: French.

JUDGMENT OF 14.12.1962 — CASE 33/59

THE COURT

composed of: A. M. Donner, President, L. Delvaux and R. Rossi (Presidents of Chambers), O. Riese (Rapporteur) and Ch. L. Hammes, Judges,

Advocate-Gneral M. Lagrange A. V H outte Registra:

ferrous scrap. These arrange­ of Ferrous Scrap Consumers) — agencies suming in intended with their head offices in Brussels and ments were particular to regional offices in each of the Member equalize within the Community the cost States. price of this raw material, whether of 'foreign' The From 1 August 1958 the High Authority Community or of origin. itself once again took over the powers scheme was supported by contributions based bought of decision which it had delegated to on the consumption of

those agencies. scrap by each undertaking. These contributions were principally intended 2. Up to 1957 approximately 22 000 for tons ferrous of Com­ to allow equalization payments metric of scrap in order to assist those undertakings munity origin were equalized, in respect which purchased ferrous scrap imported of which there were presented, by way of from third countries or emanating from supporting documents, certificates issued the by Mr Van der Grift, the head of the ship-breakers'

yards, as cost price

of these two categories of ferrous scrap Iron and Steel Department of the

was generally dearer than that of ferrous Dutch Ministry for Economic Affairs. scrap within the Community. These certificates fraudulently certified 'ship-breakers' The above-mentioned arrangements that the material was fro m­

operated from 1 April 1954 until the end yards'. These irregularities gave rise to

the above-mentioned facts indicated In its application, the applicant claimed

a wrongful act or omission on the part that the Court should:

of the Community. (a) 'Declare that the present action is Alter the discovery of the Van der admis ble; Grift case, it emerged that following (b) Declare that the High Authority of acts of fraud and other irregularities the ECSC is liable for having failed committed independently of this case, to avoid the situation whereby, other quantities scrap had of ferrous during the period from 1954 to

also been wrongly equalized. The High 1957, considerable quantities of fer­ Authority instituted an inquiry into the rous scrap were sold, supported by matter, in April 1961 presented, as and fraudulent certificates issued by the an Annex to its ninth General Report, the head of the Iron and Steel a Report on the action taken by it in the Department of the Dutch Ministry matter (hereinafter referred to as 'the for Economic Affairs, to the effect

Report of the High Authority'). The that those quantities originated from

Domestic Market Committee of the ship-breakers'

of the High Authority: Authority for the loss resulting — that up to the time when the Report therefrom, with default interest; was drawn up, it had been found that (e) Order the High Authority to pay 229 889 metric tons out of a total of the costs and expenses of the pro­

13 018 270 tons imported ceedings.'

metric of

ferrous scrap or scrap treated as such In its reply, the applicant declared that

had been wrongly equalized ; it maintained these conclusions.

—

that at the date when the Report or on all the acts of fraud committed in was drawn up it was impossible to respect of equalization, 'possibly amend­

state the final outcome of the attempts ing the tenor of their conclusions to that mad­ e by the High Authority to recover effect, subject ... to the admissibility of from the guilty parties the sums such amendments'.

paid in error, as certain of these The lawyer for the applicants replied in

attempts had not yet been successful. substance that 'it is an established fact

JUDGMENT OF 14.12.1962 — CASE 33/59

that the present case centres around to the same thing from the legal point of acts of fraud committed in respect of view.

fourneaux de Chasse, made on 7 July that acts of fraud such as those in the

1959; and order the applicant company present case were prevented. In this

to pay the costs'. respect the applicant refers in particular

In its rejoinder the defendant declared to the eighth recital of the preamble to

that it maintained these conclusions. Decision 14/55. The High Authority has failed seriously in its duty to exercise III —

Submissions and arguments due care. It cannot plead in its defence ofthe parties set out in the that the acts of fraud in question were

1. Submissions and arguments of the The acts of fraud would not have applicant. occurred if the responsible departments had exercised care:

Where the applicant cites actual facts, —

to issue in advance strict provisions

these relate only to the Van der Grift on the preliminary examination of case. requests for equalization payments;

It maintains that the acts of fraud in —

to issue certificates indicating the

to carry out an inspection by sampling its case compelled it to claim damages to check that the ferrous scrap for immediately, since the provisions of which equalization payments were

Article 40 of the Statute of the Court of claimed was in fact from ship-

breakers' Justice of the ECSC on the period of yards and, if necessary, limitation might otherwise be pleaded appointing sworn experts to carry out against it. an inspection on the spot; The alleged loss is caused by a wrongful —

to require the parties concerned to

act or omission on the part of the produce photocopies of the invoices defendant or of the agencies in Brussels of the ship-breaking undertakings

or the regional offices, which amounts together with banking documents

origin. The certificates issued by the opinion on the legal measures to be Dutch official created the impression taken with regard to compensation'.

by the use of a false registration In a letter to Mr Bentz Van den Berg, number that these originals existed. Presidentof the CPFI, the Vice-President The negligence of the High Authority of the High Authority expressly stated emerges moreover from the fact that that the acts of fraud had been able to it never obtained information on the continue for long because regional so

steps taken by the Dutch authorities offices had for too long a time retained

for issuing ship-breaking certificates; the files which they are required to submit

these only came to the notice of the to the Fund and because certain regional

High Authority in 1959 following a offices had failed to carry out the instruc­

equalization. Since then, numerous regu­

2. Moreover, the High Authority and lations were in fact issued for this purpose, the agencies in Brussels had admitted on providingin particular for the production several occasions that a wrongful act or supporting documents. ofa whole series of

omission had occurred. It is incomprehensible that, despite all Thus, the reply of the High Authority these factors, the defendant can con­

to written question No 59 of Deputies tinue to maintain that at the time it Van der Goes Naters Neder­ van and exercised all possible care. Moreover, horst (OJ 20. April 1958, pp. 22/58 et even if the regional offices had submitted

seq.) states: the documents more quickly, this would

that the tonnages of ferrous not have prevented the acts of fraud. scrap —

ally the liaison between the Fund and The defendant cannot plead that it had the regional offices in the countries no right to supervise the activities of

of the Com unity'; national administrations. On the con­

— that in a letter to the President of the trary, it is competent to exercise such

Board of the Fund, the High Authority a supervision and it is obliged to do so 'asked for information on the steps insofar as measures of this nature are

JUDGMENT OF 14.12.1962 —

CASE 33/59

(a) The applicant has failed to prove which a national agency issued in the any actual injury. The High Authority exercise of its constitutional powers.

has taken measures to recover the

equalization sums paid in error, so that IV — Subsequent procedure it will still be possible subsequently to

correct the the levy. It is 1. amounts of By an Order of 26 February 1960, unnecessary to consult an expert, since the Court joined the present case to the exact ferrous scrap for amount of Cases 46/59 (Meroni, Erba) and 47/59 which equalization payments have been (Meroni, Milan) for the purposes of the illegally granted is known. oral procedure.

(b) The arguments of the applicant 2. By an Order of 2 June 1960, the do not establish a wrongful act or Court authorized the three applicants omission on the part of the High Author­ to add to the file a certain number of ity or on the part of the agencies in Brussels documents, amongst which was a Report which, in the opinion of the —

of the High Authority of 21 December High Authority, amounts to the same 1959, the first official document in thing. The wrongful act or omission of which it stated that acts of fraud other the Dutch official cannot be imputed to

CHASSE v HIGH AUTHORITY

the part of the High Authority and on applicants'

ment of the arguments. on

It observed, furthermore, that the appli­ which the applicants intend to base their

cants refer to the Report of the High respective applications?' Authority as a whole without specifying The applicants' reply was in substance the facts which, according to them, give that:

rise to liability on the part of the The precise facts (apart from those

which, according to the applicants, nor did they do so at the second hearing give rise to the wrongful act or omission on 28 September 1962.

Grounds of judgment

I — On the scope of the conclusions

The question must first be settled whether the conclusions in the present

application refer to all the acts of fraud and other irregularities committed in connexion with the equalization of ferrous scrap from 1954 to 1957, or only to the acts of fraud relating to the false certificates issued by Mr Van der Grift, head of the Iron and Steel Department of the Ministry for Economic Affairs of the Netherlands (which acts of fraud are hereinafter referred to as 'the Van der Grift affair').

In its application the applicant claims in particular that the Court should:

At the hearing counsel for the applicants, whilst asserting that the conclusions

of the parties had always related to all acts of fraud, refrained from formally

amending or clarifying those conclusions.

However, such an assertion besides being patently incorrect as has just been shown, cannot be held in any way to take the place of an amendment of the conclusions, which, even if admissible, is subject to the strictest

requirements as regards its precision and content.

It follows from the foregoing that in this case only conclusions relating to the Van der Grift affair are presented to the Court.

belong to the political and administrative sphere, and cannot thus constitute an obligation to the undertakings under its authority or a guarantee giving

rise to objective, contractual or legal liability on the part of the High

Authority, even when no wrongful act or omission can be imputed to it.

This submission must therefore be dismissed.

2. Liability for a wrongful act or omission

The application is moreover principally based on Article 40 of the ECSC

If, in accordance with the system applied by the High Authority, certificates issued by the Dutch Ministry were recognized as supporting documents without further checking, it cannot be inferred from this that the official

whom the Ministry had charged with issuing the said certificates acted on behalf of or in the name of the Community. The wrongful act committed by this official cannot therefore be imputed to the defendant. No other personal

wrong committed by a servant of the defendant in the performance of his duties has been established.

(b) It is also necessary however to consider whether there was a wrongful

act or omission on the part of the defendant within the meaning of Article

40 of the ECSC Treaty, because of its failure to provide a better organized system for issuing the certificates of origin for ferrous scrap qualifying for equalization payments, and in particular because of its failure to provide for the investigation of the authenticity of the said certificates.

basis, according to Dutch law, for the re-export of the ferrous scrap, it was natural to entrust their issue to the national authorities who, moreover, were the best qualified to carry out the necessary checks.

The issue of the certificates had not been left to a subordinate authority but to a Ministry. The Dutch regulations provided for an extremely detailed

procedure prior to the issue of the certificates for checking the origin of the

ferrous scrap in question; it was in fact impossible to foresee that acts of fraud could occur if this system were applied.

In these circumstances, the defendant cannot be blamed for having adopted

this system and the fact of its having done so cannot in any case be described as a wrongful act or omission.

it was only after the acts of fraud that those defects came to light —

they do not constitute an express admission that a wrongful act or omission on the

part of the High Authority had occurred. They cannot moreover transform

a course of action by the defendant into a wrongful act or omission — a

description which such a course of action does not in fact deserve.

In its judgment in the FERAM case (Rec. 1958/1959, pp. 506 et seq.), the Court had refused a request for reparation for injury to the applicant

III — Costs

Under the terms of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs. In this case the applicant has failed in its pleas and must therefore bear the costs of the proceedings.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Raporteu; Upon hearing the parties;

CHASSE v HIGH AUTHORITY

Upon hearing the opinion of the Advocate-Gnral;

Donner Delvaux Rossi Riese Hammes

Delivered in open court in Luxembourg on 14 December 1962. For the President

A. Van Houtte L. Delvaux Registrar President of Chamber

OPINION OF MR ADVOCATE-GENERAL LAGRANGE DELIVERED ON 1 MARCH 1962­ <apnote>1</apnote>

Summary

I — Facts and conclusions 392

tions 398 B — Wrongful acts or omissions in the institution of enquiries . 399

V — Final considerations 401

1 — Translated from the French.