C-21/61
ECLI:EU:C:1962:12
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JUDGMENT OF THE COURT <ap note>1</ap note> 6 APRIL 1962
Meroni & Co., S.p.A., and Others
v High Authority of the European Goal and Steel Community
Joined Cases 21 to 26/61
Summary
1. Proceedings — Action for failure to act — Silence of the High Authority essential — Letter repeating and explaining this position — Absence of an express decision
2. Proceedings — Action for failure to act — Decisions of the High Authority referred to in Article 33 of the ECSC Treaty — Inadmissibility
1. A letter from the High Authority 2. An applicant cannot be permitted,
repeating and explaining its prior by using the procedural artifice of an legal position does not constitute an action for failure to act, to ask for the express decision of refusal by it and annulment of a decision which might
consequently does not interrupt the have been declared void if period at the end of which an implied proceedings had been instituted decision of refusal is to be inferred within the time limit laid down in the
from the silence of the High Authority. third paragraph of Article 33.
In Joined Cases 21 to 26/61
MERONI & CO., S.P.A ., having its registered office at Milan, represented by Aldo Meroni (21/61),
ACCIAIERIA LAMINATOI DI MAGLIANO ALPI (A.L.M.A.), S .p
.A., having its registered office at Turin, represented by Giuseppe Passalacqua (22/61),
FER. RO (FERRIERE ROSSI ), an iron and steel undertaking, having its
registered office at Magliano Alpi (Coni), represented by Gino Rossi
(23/61),
MERONI & CO., a limited partnership, having its offices at Erba, represented
by Agostino Artioli (24/61),
SOCIETÀ INDUSTRIALE METALLURGICA DI NAPOLI (SIMET), S.P.A ., having its registered office at Naples, represented by Pio Fantini (25/61),
ACCIAIERIA FERRIERA DI ROMA (FERAM), S.P.A ., having its registered
office at Rome, represented by Antonio Frigerio (26/61),
1 — Language of the Case: Italian.
JUDGMENT OF 6.4.1962 — JOINED CASES 21 TO 26/61
all assisted by Arlino Cottrau, a member of the Turin Bar, advocate of the Corte Suprema di Cassazione at Rome, with an address for service in
Luxembourg at the Chambers of Georges Margue, 20 rue Philippe II,
applicants, v
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by Professor Giulio Pasetti, with an address for service at its
offices, 2 Place de Metz, Luxembourg,
defendant,
Application for 'a declaration that the High Authority is required to
confirm by a decision that it has infringed its obligations under the Treaty
by exempting producers of steel within the meaning of Annex III to the Treaty and steel foundries from equalization payments on the consumption of bought scrap as respects the proportion of scrap consumption corresponding to crude steel production for foundries, and that it is therefore required to
rescind these provisions which appear to be discriminatory',
THE COURT
composed of: A. M. Donner, President, O. Riese and J. Rueff (Rapporteur)
(Presidents of Chambers), L. Delvaux and R. Rossi, Judges,
Advocate-General: K. Roemer
Registrar: A. Van Houtte
inadmis on the procedural issue arising out of the preliminary objection of
sibility put forward by the defendant under Article 91 of the Rules of
Procedure, gives the following
JUDGMENT
Issues of fact and of law
I —
Conclusions ofthe parties The applicants in the main action claim that the Court should:
The defendant in the main action 'without going into the substance of the contends that the Court should: case, declare that all claims made by the 'declare to be inadmissible, without applicant (s) in the application (s) going into the substance of the case, commenced on 8 (and 11) December all the claims made by the applicant(s) 1961 in accordance with Article 35 of the in the application (s) commenced on 8 Treaty are admissible, and order the (and 11) December 1961 and notified High Authority of the European Coal on 11 (and 12) December, and order the and Steel Community to pay the fees
applicant(s) to pay the costs.' and disbursements incurred by the
MERONI v HIGH AUTHORITY
applicant(s) in connection with the (Rec. t. VII 1961, p. 105, Nos. 5 and 6 issue.' procedural of the Summary).
Moreover, as regards the individual
II — Arguments decisions granting exemptions, it is only of the parties
necessary to refer to the evidence con
tained in the applications or to establish The arguments put forward by the that the said exemptions, although parties may be summarized as follows: granted generally, constitute in fact According to the High Authority, the so many individual decisions taken by action for failure to act brought by the the High Authority in favour of the applicant is equivalent to undertakings various undertakings' benefiting from an application for the annulment of them. The fact that exemptions from paragraphs (b) and (d) of Article 10 of payment of equalization compulsory Decisions 2/57 and 16/58. Therefore, this contributions for the period from 1 application, by the procedural artifice April 1954 to 1 February 1957 were of an action for failure to act, amounts, granted to producers of special steels in fact, to an application for the annul
and castings is well known and can be ment of a decision, which might have established from written documents. been declared void if proceedings
had been instituted within the time limit III — Procedure laid down in the third paragraph of
Article 33. Moreover there exists no The procedure took the following course: individual decision granting the exemp The plaintiffs gave formal notice to the tions challenged by the applicants. High Authority to take a decision by There is therefore no decision which two series of letters: in Case 21/61 by can be annulled. letters dated 8 September and 14 The applicants reply that this argument November 1961; in Case 22/61 by letters confuses the validity of the action with dated 6 September and 15 November its admissibility. It is only necessary to 1961; in Case 23/61 by letters dated refer to the conclusions which have been 4 September and 15 November 1961; lodged; on hand, according the other in Case 24/61 letters dated 8 by to the case law of the Court, for an action September and 14 November 1961; for failure to act to be admissible, it is in Case 25/61 by letters dated 8 sufficient to show that the High September and 16 November 1961; Authority has failed, within a period of in Case 26/61 letters dated 8 by two months following formal notice to do September and 14 November 1961. so, to take decisions which it has been As The High Authority replied to the first asked to take. the Treaty does not series letters by a letter dated of these require any other condition for the 27 October 1961, signed by the Director admissibility of an action for failure to General, Mr Rollman, and the Director, act, it is therefore only necessary to refer Mr Peco. to the first paragraph of Article 91 (1) ofthe Rules of Procedure which expressly The applications were lodged at the
in to Court Registry on 8 December states that, order make an
application for a decision on a procedural (Applications 21, 22 and 23/61) and
11 December 1961 (Applications 24, issue, it is essential that the application should not in any way lead to a hearing 25 and 26/61).
of the substance of the case. Reference is On 22 December an application by the
made, in respect of the admissibility of defendant was lodged at the Court actions for failure to act, to the Court's Registry; this application, made under decisions in Cases 42/59 and 49/59 Article 91 of the Rules of Procedure,
JUDGMENT OF 6.4.1962 — JOINED CASES 21 TO 26/61
raises a preliminary objection of oral arguments at the hearing on 1
inadmissibility with regard to the six March 1962 after the Judge-Rapporteur applications referred to above. [Jacques Rueff) had been heard. In accordance with Article 91 of the On 9 March 1962 the Advocate-General Rules of Procedure each of the parties Karl Roemer was of the opinion that the produced a written statement in support preliminary objection of inadmissibility of its conclusions the put forward by the defendant should be concerning preliminary issue and presented their accepted.
Grounds of judgment
The second of the conclusions of the applicants in the main action is worded
as fol ws:
'to annul for lack of competence, infringement of essential procedural
requirements, infringement of the Treaty and misuse of powers with regard legal consequences to the applicant, with all arising therefrom, the implied decision of refusal which is to be inferred from the silence of the High
Authority with regard to the request by the applicant for the abolition, as from the day when the exemptions were granted expressly or by implication (or merely tacitly allowed), of the exemptions from compulsory payment of
equalization contributions for scrap-iron granted to other undertakings
in Article 80 of the Treaty, and which using bought scrap-iron, referred to
are in a similar situation.'
It is important at the outset for the Court to consider of its own motion
whether the High Authority has failed to act, that is to say whether there
is an implied decision of refusal.
A lettersigned by Mr Rollman, Director-General of Steel with the High
Authority and by Mr Peco, Director, is annexed to the application and must be taken into consideration.
This letter is a reply to the first series of formal notices sent by the applicants to the High Authority between 4 and 9 September. The letter is dated 27 October 1961; at first sight therefore it seems to interrupt the period of two
months at the end of which an implied decision of refusal is to be inferred from the silence of the High Authority. A more detailed examination of the contents of this letter shows that it does not contain an express decision of
refusal but a repetition and explanation of the prior legal position of the
High Authority.
In particular, the third paragraph of this letter states:
In any case before the High Authority gives its views on the problem in
MERONI v HIGH AUTHORITY
question, it seems to be appropriate that further and better particulars be
supplied of the claims put forward.'
There is thus no express decision of refusal by the High Authority; it is
necessary therefore to establish whether the procedure laid down in Article 35 is applicable.
For this purpose it is necessary to ascertain whether, as the defendant in the main action alleges, the implied decision of refusal invoked by the applicant does not merely confirm the rules in force. In this connexion the decision, which, according to the applicants, the High Authority should have taken, must be considered.
The formal notices by letter sent by the applicants to the High Authority as well as the applications themselves permit the text of this decision to be
presumed with sufficient accuracy. The description of the subject of the
actions with which the applicants begin their applications reads as fol ws:
'The applicant asks the Court of Justice of the European Communities to declare that the High Authority is required to confirm by a decision that it
has infringed its obligations under the Treaty by exempting producers of steel within the meaning of Annex III to the Treaty and steel foundries from
equalization payments on the consumption of bought scrap as respects the for proportion of scrap consumption corresponding to crude steel production foundries, and that it is therefore required to rescind these provisions which discriminatory.' appear to be
In the penultimate paragraph of their formal notice dated 8 September 1961 the applicants requested that:
'The discrimination in question ... be removed by the High Authority's taking a decision to make all purchases of scrap-iron without exception,
including purchases intended for the production of steels referred to in Annex III to the Treaty and steel castings, subject to equalization payments.'
The paragraph preceding the conclusions in the applications reads as
folows:
'Finally the applicant leaves it to the Court of Justice to determine whether the implied decision of refusal of the High Authority to rescind the unlawful and discriminatory exemptions contained in paragraphs (b) and (d) (of Article 10) of Decision 2/57 applies to them individually or is of general application.'
JUDGMENT OF 6.4.1962 — JOINED CASES 21 TO 26/61
These passages are sufficient proof that, in any event, the decision which the
applicants claim the High Authority should have taken was to rescind the
decisions granting the exemptions in dispute and in particular paragraphs
(b) and (d) of Article 10 of Decision 2/57, repeated in the same paragraphs of Article 10 Decision 16/58, as well as the practices of the High Authority having the same effect before Decision 2/57 was taken.
As regards Decision 2/57, the application must be dismissed because an
applicant cannot be permitted, by using the procedural artifice of an action for failure to act, to ask for the annulment of decisions which might have been declared void if proceedings had been instituted within the time limit laid down in the third paragraph of Article 33.
As regards the exemptions alleged by the applicants to have been granted for the period before Decision 2/57, these are not expressly, or at all events not
clearly, referred to in the formal by letter referred to above. The notices
applicants themselves emphasize that these exemptions were well known,
and they did not consider it advisable at that time to give the High Authority
formal notice to withdraw them.
Nor did they bring an application for annulment of the exemptions in question when Article 10 of Decision 2/57 made them apparent and it became possible to commence proceedings in respect thereof. As they did not commence proceedings then, they are now precluded from doing so.
The preliminary objection of inadmissibility put forward by the defendant in the main action must therefore be allowed.
Costs
As the applicants in the main action have failed by reason of the preliminary objection of inadmissibility put forward by the defendant in the main action, under the terms of Article 69 (2) of the Rules of Procedure they must be
ordered to pay the costs.
On those grounds,
Upon reading the pleadings; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;
Having regard to Articles 33 and 35 of the Treaty establishing the European Coal and Steel Community and Articles 69 and 91 of the Rules of Procedure;
MERONI v HIGH AUTHORITY
THE COURT
her by:
1. Rules that the preliminary objection of inadmissibility put forward by Authoritythe High to Applications with regard
21/61, 22/61, 23/61, 24/61, 25/61 and 26/61 is accepted;
2. Orders the applicants in the main action to pay the costs of the proceedings.
Donner Riese Rueff Delvaux Rossi
Delivered in open court in Luxembourg on 6 April 1962.
A. Van Houtte A. M. Donner
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER DELIVERED ON 9 MARCH 1962 <apnote>1</apnote>
Mr President, producers of special steels had never
Members of the Court, been exempt from equalization pay
ments, whereas producers of steel for The claims in Joined Cases 21 to 26/61 foundries pursuant to Decisions No 2/57 are based on Article 35 of the Treaty. and No 16/58 were not subject to
We are therefore concerned with actions equalization. Reasons were given for for failure to act. They were initiated the latter case; in addition the applicants by letters to the High Authority dated were asked to supply further particulars respectively 4, 8 and 9 September which with regard to their complaints.
are substantially similar. In letters dated respectively 14, 15 and These 'letters contain the complaints 16 November 1961 the applicants put
that ferrous scrap used for the production the same questions again to the High of special steels (Annex III to the Authority and repeated their request
Treaty) and of steel for foundries is that all bought scrap without exception exempt from equalization and they be made subject to equalization. request that all purchases of ferrous On 8 and 11 December 1961 respectively
scrap without exception be subject to actions for failure to act were brought equalization payments. before the Court. The applications ask
The High Authority replied on 27 in identical terms for the rescission of
October 1961 and pointed out that the implied decision of refusal to be
1 — Translated from the German.