C-5/62

5. 9/62, MERONI & CO., a company limited by shares governed by Italian law, having its registered office in Milan, represented by its sole director Aldo Meroni;

6. 10/62, ACCIAIERIA FERRIERA DI ROMA (FERAM), a company limited by shares governed by Italian law, having its registered office in Rome, represented by Aldo Alliata, Chairman of the Board of Directors;

7. 11/62, SOCIETÀ INDUSTRIALE METALLURGICA DI NAPOLI (SIMET), a

company limited by shares governed by Italian law, having its registered office in Naples, represented by Pio Fantini, Chairman of the Board of Directors;

8. 13/62, SAFIM SIDERURGICA­ , a company limited by shares governed by Italian law, having its registered office in Milan, represented by Francesco

Bonelli, Chairman of the Board of Directors;

Chambers of Georges Margue, avocat-avoué, 20 rue Philippe I;

applicants,

v

High Authority of the European Coal and Steel Community, represented by its Legal Adviser, Professor Giulio Pasetti, acting as Agent, and assisted by Antonio Bardella, advocate of the Venice Bar, with an

address for service in Luxembourg at its offices, 2 Place de Metz,

defendant,

(b) As to Cases 13 to 15/62:

for annulment under Article 33 of the ECSC Treaty of individual Decisions of the High Authority ordering the applicants to furnish it with invoices of electric energy to enable the tonnages declared by the applicant undertakings, and which are the basis for the equalization

contribution, to be checked;

JUDGMENT OF 14. 12. 1962 —JOINED CASES 5 TO 11 AND 13 TO 15/62

THE COURT

composed of: A. M. Donner, President, L. Delvaux (Rapporteur) and

A — In Cases 5 to 11/62 sions of the High Authority of 23

February 1962, notified to the ap­

The applicants claim that the Court plicants on 12 March 1962, are

should: admis ble;

(a) In the applications for annulment of the —

consequently annul the individual implied Decisions of refusal (Article 35) Decisions for infringement of essen­

the accounting and non-accounting ments capable of leading to a better

documents of their undertakings, understanding of the dispute, with

—

declare that the applications for regard in particular to the alleged

annulment of the implied Decisions failure to produce a considerable

of refusal are admis ble; part of the accounting and non-

SAN MICHELE v HIGH AUTHORITY

formal notice are inadmis ble; II —

Summary of the facts —

dismiss in addition all the claims

included in the aplicatons; The facts of the cases may be summa­

—

gorically deny, as will be stated in more invoices relating to the electric energy detail during the course of the proceed­ consumed during the period from 1 ings, having prevented the officials of the April 1954 to 30 November 1958 and to High Authority from carrying out a certify that the invoices covered the total check of the factors serving to establish amount of electric energy consumed. the amount subject to assessment for the The Directorate General indicated that purpose of equalization by the alleged the purpose of this request was to check lack of a considerable part of the ac­ the factors necessary for the application

and docu­ of equalization to imported counting non-accounting relating ments of their undertakings, scrap.

— declare that the applications for The applicants in Cases 13 to 15/62 sent annulment of the individual Deci­ letters dated 21 December 1961, claim­

sions of the High Authority of 23 ing that the demand was unlawful and February 1962, notified to the appli­ setting out the reasons why they could cants on 12 March 1962, are admis­ not comply with it. sible; The applicants in Cases 5 to 11 /62 sent

—

order the defendant, in accordance letters, dated 27 December 1961, in with Article 23 of the Protocol on the which they made the same objection and Statute of the Court of Justice, to also invited the High Authority either to produce hearing all docu­ at the withdraw its request or, alternatively, to ments capable of leading to a better confirm it in the form of a Decision

the defendant to All the applications seek the annulment order pay the costs. —

The defendant contends that the Court of these individual Decisions. The appli­ should: cants in Cases 5 to 11 /62 seek in addition — dismiss all the claims contained in the the annulment of the implied Decision applications; of refusal which, according to them, — order the applicants to pay the costs arises from the silence of the High and expenses of the proceedings. Authority after the receipt of their

JUDGMENT OF 14. 12. 1962 — JOINED CASES 5 TO 11 AND 13 TO 15/62

above-mentioned letters of 27 December law of the Court in Case 31/59, Brescia v. 1961. High Authority, nothing in the wording of Article 47 of the ECSC Treaty "allows III —

Submissions and argu­ one to infer from it the implied provision

ments of the parties that a preliminary decision is to be before is made"

by Article 35 tion whether the High Authority had the right to take the decision sought and

Article 35 is an exceptional provision. whether it was obliged to take it within Apart from the cases prescribed by that a period of two months following notice Article, silence does not constitute depends on an examination of the sub-

grounds for There are only an action. stance of the case. For an action for two cases prescribed. The High Author­ failure to act to be admissible, it suffices

ity must either be required to take a that the High Authority has taken no decision or be empowered to do so, and in decision by the expiry of that period' either case its failure in this respect must (Rec. 1961, p. 106). constitute a misuse of powers. The The defendant answers that this case is

applicants have not adduced any proof essentially different from those decided in their claims that this case falls within in the latter judgment, where the Court either of the two situations prescribed. had been asked to make a decision on the The letters of 27 December 1961 sent by validity under Article 35 of a notice to

the applicants to the High Authority obtain from the High Authority a

SAN MICHELE v HIGH AUTHORITY

admissible the applicants would have 5 to 11 /62) and their applications for had to adduce proof of the existence of annulment under Article 33 (for Cases 5 one or other of those conditions. to 11/62 and 13 to 15/62) on three sub­

missions : infringement of essential pro­

2. Lack of any legal interest cedural requirements (in this case lack In the defendant'­s opinion, no legal of reasoning), infringement of the Treaty importance can be attached to a formal and misuse of powers. These submissions notice which in this case was intended are set out as folows:

solely to achieve a measure which the 1. The letters of 27 November 1961 applicants themselves admit is not from the Directorate General for merely illegal but also contrary to their interests. This establishes a lack of any steel are vitiated by lack of reasoning and by misuse of powers because they legal interest and is enough to render the state that the applicants evaded in­ action for failure to act inadmissible. vestigation, which is not so; The applicants reply that the criterion of 2. These same letters are vitiated by adopting the fixed parameter of 900 lack of reasoning, infringement of the kwh per metric ton to be used in calculat­

ing the consumption of electric energy is Treaty and misuse of powers because they call upon the applicants to send, discriminatory and that an intention to or ask their suppliers of electric obtain the abolition of this criterion the High Autho­ energy to send, to constitutes for the applicants a legal rity the invoices relating to the interest. Further, the formal notice was different amounts of energy con­ the only means which enabled the sumed, and to certify that these in­ applicants to avoid the application by voices are authentic and that they the High Authority of the sanctions pre­ cover the total amount of the energy scribed by Article 47 of the ECSC consumed; Treaty and constituted the most res­

1961 or to institute an action based on state that the applicants evaded rectly Article 35 of the ECSC Treaty. supervision

B — On the substance of the case The applicants state that the demand for The applicants base their actions for the production of documents contained failure to act under Article 35 (for Cases in the letters in dispute was justified by

JUDGMENT OF 14. 12. 1962 — JOINED CASES 5 TO 11 AND 13 TO 15/62

the fact that 'as a result of the lack of a change by reason of the checks when considerable part of the accounting and they are carried out'(Rec. 1960, p. 173).

non-accounting documents of the under­ The Decisions in dispute show clearly taking, it has not been possible to carry the object of the order given to send the

out an adequate check of the factors invoices relating to the consumption of

In addition, by making certain exces­ either direct or from a third party sivedemands upon the applicants, the High Authority, relying on this false The applicants point out that the letters

allegation, distorted the facts in pursu­ in question required them to send, either ance of an illegal objective: conse­ direct or through their suppliers of elec­

quently it committed a misuse of powers. tric energy, the invoices relating to their These complaints apply equally to the consumption of electricity, or certified

Decisions of 2 February 1962. These true copies, accompanied by a certificate constitute in effect a clear rejection of the that the documents supplied covered the

claims contained in the letters of 27 total amount of electric energy used.

December 1961 giving formal notice; This claim to be furnished with declara­

As to admissibility) and that the letters tion of bad faith against Community of 27 November 1961 have not been undertakings and exceeds the powers de­

by the volving on the High Authority under Article appli­ made a cause of action

cants. As for the applications for annul­ 47. It also constitutes a misuse of powers, ment of the Decisions of 23 February because it is deliberately intended to fall 1961, the defendant states that these upon a small number of specific under­

Decisions are quite sufficiently reasoned. takings thereby completely ignoring the According to the judgment delivered by criterion of equality.

the Court in Case 31/59, Brescia v. High for the reasons set out above (c.f. supra

Authority, 'the need for information re­ III, B, 1), these complaints also apply to quired by the High Authority must the Decisions of 23 February 1962, emerge from the decision with certainty. subject however to the fact that those

Decisions of 23 February 1962 —

ence, unless it considers that the appli­

namely the production of invoices and a cants have knowingly furnished it with certificate that they represented the total false information, and in such case the

consumption — was indispensable for High Authority can have recourse to the checking. In fact, the mere production third paragraph of Article 47 which

of the invoices without the certificate enables it to impose fines and periodic

would have allowed the undertakings to penalty payments. By carrying out evade the investigations by concealing illegal and irregular checks it is infringing part of the invoices without assuming Articles 8 and 4­ 7 of the ECSC Treaty and the responsibility of issuing a false the Decisions setting up the equalization

and in the Decisions of 23 February 1962 the data taken from the adjusting to produce electricity invoices has as its declarations of scrap consumption. object the assessment by inference of the consumption of scrap. The letters of 27 4. The High Authority cannot validly order November 1961 and the disputed Deci­ the production in Luxembourg of the sions refrain from explaining how in­ documents subjected to checking spection of the consumption of energy can enable one to ascertain the assessable The applicants point out that the order in tonnages and do not indicate the reasons the letters of 27 November 1961 and in which led the High Authority to resort the Decisions of 23 February 1962 to to a calculation by inference in spite of send the invoices relating to the electric the monthly declarations supplied by energy consumed to Luxembourg for

the applicants. The letters and Deci­ the purposes of inspection is not justified. sions are consequently vitiated by lack of By making this demand, the High reasoning. Authority has in addition infringed Arti­ In addition, this method of investigation cles 8, 47 and 86 of the ECSC Treaty. is totally unreliable. In fact, the con­ According to Article 8 of the Treaty, it sumption of electric energy varies con­ shall be the duty of the High Authority

siderably according to the systems of to ensure that the objectives set out in production by the various adopted the Treaty are attained in accordance steelworks. The High Authority is aware with the provisions thereof. Article 47 of consumption of bought Treaty confers on the High Author­ applicants'

carried out by the officials of the High scheme and the exact scope of the first

Authority at the place of business of the paragraph of Article 47, there is abso­

undertakings during normal working lutely no need to resort to the provisions hours. These conditions are in accord­ of the fourth paragraph of Article 86 of ance with Article 86 of the Treaty which the Treaty, the aim of which is in no way to inspectors High define the in­ confers on the of the extent of the power to obtain Authority the powers granted by the formation and make checks but solely to

laws of the Member States to their own make available Authority to the High revenue officials, in this case the Italian the compulsory powers afforded by national

revenue authorities. These powers are revenue laws for the direct and com­

laid down in Decree No. 645 of the pulsory execution by its own officials of President of the Italian Republic dated inspections capable of affecting the area 29 January 1958, in Decree-Law No 762 of individual liberty and of departing of 19 June 1940 relating to the general from the principle of the inviolability of tax on turnover, in Article 37 of Law No (Rec. 1960, 172 premises'

troy the argument.

invoices relating to electric energy cover­ by Italian Law No 4021 of 24 August

ing the period from 1 April 1954 to 30 1877, revenue officials 'may summon a November 1958 because according to taxpayer to appear in person and supply Italian law invoices need to be kept for explanations and proof. It must there­

only five years. fore be presumed that the applicants

In reply, the defendant first puts forward would approve the actions of the High

the arguments set out in point 1 above Authority if the latter, by using such

that Article 47 must be interpreted in the light of Article 86 which refers to IV —

Procedure national laws —

and in this case Italian law —

the defendant submits that the On 27 September 1962 the Court made judgment of the Court in Case 31/59, an order joining Cases 5 to 11/62 and 13 Brescia v. High Authority, excludes all to 15/62 for the purposes of the oral

SAN MICHELE v HIGH AUTHORITY

procedure and the judgment. Judge-Rapporteur and the opinion of

which was not contradicted by the defendant.

The Decision of 23 February 1962, whether or not it was considered by the High Authority as a reply to the applicants'

notices, meets in fact the desire expressed by them, namely 'to take a preliminary decision under Article 14 in which (the High Authority) gives a ruling on all the points in dispute set out in this letter'.

Without dealing expressly with all the points contained in the letter of

27 December 1961, some of which appear to be of doubtful relevance, the

Decision settled, at least indirectly, the questions raised by the applicants, thus opening for them the possibility of an action under Article 33 of the Treaty.

It is not necessary in this case to settle whether a decision within the meaning of Article 35 of the Treaty should not merely be taken but whether it should also be communicated within the period of two months, for it is not disputed that the Decision reached the applicants before they brought their action for failure to act.

In these circumstances, the applicants had no legitimate grounds for com­

plaining of a failure to act which no longer existed at the time the actions were brought, since their legal protection was sufficiently assured by the possibility of making an application for annulment of the Decision under

Article 33 of the Treaty.

Consequently, the actions for failure to act must be ruled to be inadmissible owing to lack of legal interest.

The admissibility of the applications for annulment under Article 33 of the

they call upon the applicants to send to the High Authority the invoices relating to the various amounts of electricity consumed by them and to certify that these invoices cover the total amount of energy used.

The complaint alleging infringement of Article 47 of the Treaty is not well founded. The limit of the High Authority's powers when applying Article 47 is determined by the requirements of the checks. In this case, the demands for the production of the invoices and for a certificate that the documents supplied cover the total amount of the electric energy consumed by the undertaking during the period in question do not in the circumstances constitute an excessive requirement on the part of the High Authority.

Further, the complaint of misuse of powers arising from the fact that the same orders were not made by the High Authority to all undertakings is

SAN MICHELE v HIGH AUTHORITY

not well founded. In fact, the High Authority asserted during the oral

procedure, without receiving any denial from the applicants, that all

of electricity is not by itself sufficient to calculate the consumption of scrap, it may nonetheless be a valid basis for verification when taken with other

factors.

Moreover, it would have been possible for the undertakings subsequently to discuss the amount of their contribution and the bases on which it was

fixed.

(c) The applicants claim that these same Decisions are vitiated by lack of reasoning and by infringement of the Treaty because the powers conferred on the High Authority do not allow it to order that the documents subjected to checking be presented at Luxembourg.

The complaint concerning lack of reasoning is not well founded. In fact Article 47 of the Treaty conferring on the High Authority the power to 'obtain the information it requires'

working hours, in accordance with Article 86 of the Treaty, which confers oninspectors of the High Authority the powers conferred by the laws of Member States on officials of their own revenue departments — in this case

the Italian revenue authorities —

and that Italian law does not permit

revenue officials to require that documents which they consider necessary for their investigations be sent to their offices.

This argument must be rejected. The provisions of the fourth paragraph of Article 86 are not intended to define the extent of the power which is

conferred on the High Authority by Article 47 of the Treaty to obtain

Finally, the applicants pointed out during the oral procedure that the

fact that, according to Italian law, invoices have to be kept for only five years might make it impossible for them to produce invoices for electric

energy relating to the period from 1 April 1954 to 30 November 1958, as required by the High Authority.

This objection raised by the applicants cannot affect the validity of the dis­ puted Decisions. It is for the High Authority to consider whether the non-

production of certain invoices is justified, taking into account the provisions

of the relevant legislation and drawing the appropriate conclusions from

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 8, 14, 33, 35, 47 and 86 of the Treaty establishing the European Coal and Steel Community;

Having regard to the Protocol on the Statute of the Court of Justice of the

European Coal and Steel Community;

Having regard to the Rules of Procedure of the Court of Justice of the European Communities;

THE COURT

For the President

A. Van Houtte L. Delvaux

Registrar President of Chamber