C-18/62

contrary. 2. The requirements of a statement of

reasons according to whether vary 7. It is for the undertakings concerned to the measures in question are general enable the High Authority to carry decisions in the nature of regula­ out its duties by voluntarily furnish­ tions, or decisions which do not ing it with the information which

have those characteristics. it needs.

3. It is not necessary to give separate 8. The method of assessment by extra­

reasons for the various provisions of polation is not capable of sufficiently a general decision, as long as these justifying in law an estimated assess­

are clear and fall normally into the ment except where there is a total system as a whole. lack of other information. 4. Cf. Summary of judgment in Case 9. An estimated assessment may be 31/59, No 3, Rec. 1960, p. 156. contradicted by evidence to the con­

of powers are not applicable to such High Authority, provided for by instructions. Article 17 of the ECSC Treaty and

The expression 'have made'

of the auditor's report, provided for . . .

clearly shows that the High Author­ by Article 78 of that Treaty, is

have inadmissible. ity need not the checks re­

ferred to carried out exclusively by 11. The costs of an application must be its own officials, but that it may considered to be unreasonable when instruct for this purpose any per­

Sergio Gualco by her second marriage, assisted by Arturo Cottrau, advocate of the Turin Bar and the Corte di Cassazione of the Italian Republic, with an

BARGE v HIGH AUTHORITY

address for service in Luxembourg at the Chambers of Georges Margue, avocat-avoué, 20 Rue Philippe-II, applicant,

v

High Authority of the European Coal and Steel Community, represented by Adviser, its Legal Professor Giulio Pasetti, acting as Agent, assisted by Professor Luigi Carraro, advocate of the Padua Bar and the Corte di Cassazione of the Italian Republic, with an address for service in Luxem­ bourg at its offices, 2 Place de Metz, defendant,

Application for annulment of two individual Decisions of the High Authority of 23 May 1962, communicated on 29 May 1962 to the applicant in her

JUDGMENT

Issues of fact and of law

I — Conclusions of the the carrying out of any inquiry and

parties the development of any subsequent

defence, In her application, the applicant claims After on the fact placing record that that the Court of Justice: the applicant categorically denies having 'After dismissing every request and ob­ ever been requested by the officials of

jection to contrary and subject to the the High Authority to supply informa­ the production of further documents, tion or to produce documents,

by the dispatch every month of forms tocol on the Statute of the Court, 2/50; to produce in court the accounting should: documents and the minutes of the

S. A. Fiduciaire Suisse; (a) Declare the present action admis­

(3) After an expert accounting report, sible; made by experts to be chosen b; (b) Order the defendant, in accordance the Court of Justice of the Euro­ with Article 23 of the Protocol on

Statute of pean Communities, with regard t the the Court, to produce the accounting documents and dif­ before the Court all the documents ferent addenda which led to the find­ relating to the question at issue and ings and conclusions set out in De­ in particular the minutes of the

inspections cisions Nos 18/60, 19/60 and 20/60 alleged carried out by and in their annexes: the S. A. Fiduciaire Suisse at the (4) Declare null and void the disputed Acciaieria ing. A. Leone and at the decisions of the High Authority; Ferriere di Borgaro; (5) Order the defendant to bear the (c) Declare null and void the individual costs of the action and of the ex­

Decisions taken on 23 May 1962 perts'

de­ if necessary, after production by the In its statement of defence, the applicant of the invoices relating to elec­ fendant contends that the Court tric energy, accompanied by an affidavit should: indicating that these invoices cover the 'Dismiss all the requests contained in total consumption during the period re­

Application 18/62, made on 4 July ferred to in the individual Decisions, 1962 by Mrs Emilia Barge, the wife of subject to the calling of witnesses and Gualco and widow of Leone, and noti­

possibly specifying the questions to be fied the following day; asked, in case the Court decides to order Order the applicant to pay the costs action. a preliminary investigation of the facts and expenses of the set out in the statements of defence and In her statement in reply, the applicant rejoinder; subject further to the appoint­

puts forward the following 'final con­

ment of an expert in the event that an clusions'

: for.' expert's report is called The Court of Justice of the European Communities, after dismissing every II facts —

Lire. out and the results of its calculations

Mr Vittorio Leone, the owner or the based on the consumption of electric

undertaking and husband of the appli­ energy and it fixed the assessable ton­

cant, died in Turin on 4 March 1956. nage at 24 425 metric tons for the

By official deed dated 4 February 1958, period from October 1955 to January the applicant sold the Acciaieria ing. 1958; and in a letter of 23 January A. Leone to company the known as 1962 (Schedule 7 to the application), Ferriere di Borgaro for 25 000 000 Lire, the High Authority notified the appli­

but with the obligation for the pur­ cant of the provisional assessment of its chaser to pay the debts up to the equalization contributions for the period

By a further Decision of 10 July 1958 application (Schedule 8 to the applica­

High its De­ the Authority revoked tion).

cision of 2 October 1957 because of The first of these Decisions sets the

the death of the party to whom it had tonnage of ferrous scrap subject to the

been addressed. As a result Ferriere di equalization contribution for the period

Borgaro withdrew its third party pro­ from 1 October 1955 to 31 January 1957 at 28 386 metric tons. This De­ ceedings.

in July 1958, found with the aid of the check of these declarations, the move­

'book of raw materials processed'

a ments of ferrous scrap had to be cal­

failure to declare 3 338 metric tons for culated by estimated findings based on

the period from 1 April 1955 to 31 the amount of electric energy consumed January 1957. During the following in­ by the electric furnaces. The Decision spection in October 1960 the legal states that the consumption of electricity representatives of Ferriere di Borgaro 'based on the invoices of the electricity informed they had destroyed 10 137 900 kWh. company'

them that amounts to

give a production amounting to 11 264 deed of assignment of the undertaking metric tons of liquid steel. Finally, by Acciaieria ing. A Leone to Ferriere di

estimating that 1080 kg. of ferrous Borgaro, which deed had been drawn

scrap is needed to produce 1 000 kg. of up purely for tax purposes, she signed liquid steel, the calculation on this basis a second deed (not produced during the written procedure) from which, 11264 x 1 080 according to the applicant, 'it can easily gives or 12 166 metric be deduced that, following the death 1 000 of the engineer Vittorio Leone (March

tons or bought ferrous scrap as the 1957), his widow had in fact assigned

amount subject to levy. The Decision the whole undertaking of the deceased adds that failure to produce the invoices to her father and her brother in their

relating to energy consumed during the capacity as directors of Ferriere di period from October 1955 to January Borgaro, at the same time notifying 1957 inclusive has forced the inspection them, in the schedule of the liabilities service to calculate the movements of of Acciaieria ing. A. Leone, of the ferrous scrap for this period by extra­ equalization debt which amounted, as

The Decisions (Sche­ equalization debt by second of these the indicating the dule 9 to the application) fixes the amount implies admission of the exis­

amount of the equalization contribu­ tence of the debt, which is tantamount

tion at 186 432 125 Lire, on the basis to waiving the right to raise possible

of the tonnage liable to levy determined objections to the legal basis of the debt with the aid of estimated findings. and therefore involves recognition of the

legality of the general Decisions under

III — Submissions and argu­ which the debt arises. The defendant

contribution to which she was sub­ individual Decision of 2 October 1957

sequently assessed'. (Application 8/61, was revoked. General Decision No 2/57 French translation, p. 17). The defen­ is dated 26 January 1957 whereas the

dant claims that the request for re­ deed of assignment referred to is dated imbursement presupposed the existence 4 February 1958. Thus, at the time of

of an obligation to the contribution, the conduct considered as acquiescence, pay an obligation which the applicant at that the administrative measure in relation

time did not deny and which today she to which such conduct must be cannot call in question 1 again. again. assessed was already in existence. .

The applicant replies that acquiescence

been acceptance of an assessment t( She adds that she has an infant

levy which had not yet been com­ daughter, Patricia, by her marriage to municated to the party concerned, and Vittorio Leone, who is a joint bene­ that, even if the request for compensa­ ficiary in the estate, the administration

tion for the damage presupposed the of which was commenced on 4 March existence of an obligation to pay 1956 in pursuance of a will made on

equalization contributions, it could no 26 January 1956 before notary and a

imply acquiescence in the exception: in the presence of witnesses. The appli­

to paragraphs (b) and (d) of Article 1( cant cannot therefore accept the pro­

from her by the High Authority. From in conferring on the employees of the the will dated 26 January 1956 Fiduciaire Suisse the task of inspecting (Schedule 1 to the statement of defence) Community undertakings at the latter's it appears in fact that the applicant is places of business is illegal. the sole owner of the undertaking, as (c) Lastly the applicant attacks the

preferential legatee, and is bound to failure to draw up minutes at the time

pay the debts and other liabilities when checks were carried out by the

from it. Fiduciaire Suisse in July 1958 and

October 1960 and points out that the 2. With regard to the checks carried defendant has not proved the alleged

out by the S. A. Fiduciaire suisse refusal to produce the accounting docu­

Meroni, of 13 June 1958, Rec. 1958 graph of Article 47 of the ECSC (janvier—juillet), p. 42) 'A delegation Treaty) must be clearly distinguished of powers cannot be presumed and . . . from that relating to the grant of the

even when empowered to delegate its powers of public officials to persons

powers the delegating authority must who carry out inspections on behalf of take an express decision transferring the High Authority (Fourth paragraph them'. The applicant also refers to the of Article 86 of the ECSC Treaty). opinion of Mr Advocate-General The different sphere of application of

Roemer in Joined Cases 36, 37, 38, 40 each of these provisions was defined and 41/58 (Rec. 1958-1959). by 'the Court in its judgment of 4

(b) The applicant further submits that April 1960 (Case 31/59, Brescia v powers which may only be exercised High Authority, Rec. 1960, pp. 172 and by a person having the capacity of a 173) and confirmed in its judgment of public official cannot be delegated to 14 December 1962 in Joined Cases 5 private employees who do not possess to 11/62 and 13 to 15/62, Acciaierie such a quality. In other words the dele­ San Michele and others v High Author­ gate of a public administration can only ity. In so far as the High Authority exercise the power of the delegator if he obtains information and carries out

has himself the status of a public official. checks without using the powers speci-

necessary checks made'. This sentence prove by the evidence of witnesses the

clearly means that the High Authority accuracy of the figures on which the

can confer on third parties the task of individual Decisions are based. interpreta­ carrying out the checks. This tion is confirmed by Article 5 of the 3. As to the reason for the adjust­

ECSC Treaty which prescribes a mini­ ment of the applicant's declarations mum of administrative machinery. In on the basis of an estimate its judgment of 13 June 1958 (Case 9/56, Meroni v High Authority, Rec. (a) The applicant disputes the con­

1958 (janvier-juillet), pp. 25 et seq.) sumption figure of 10 137 900 kWh for the Court allowed delegation by the the period from 1 February 1957 to

High Authority of executive powers to 31 January 1958, which, according to agencies governed by private law. the disputed Decisions, had been 'cal­ As to the failure to draw up minutes culated with the aid of the invoices of

that, as the checks were not carried out (b ) The applicant also wholly disputes

in accordance with the rules laid down the consumption figure of 16 220 metric by Article 86, the applicant could have tons of ferrous scrap for the period

presented evidence to the contrary rather from 1 October 1955 to 31 January than merely raising general objections. 1957, obtained by way of extrapolation The Court could, furthermore, direct from the data taken from the documents the applicant to produce the invoices submitted for the period from February relating to the electric energy consumed 1957 to January 1958. She points out

JUDGMENT OF 16. 12. 1963 — CASE 18/62

in this respect that the furnace did not T he applicant also criticizes the minutes

necessarily operate as intensively during of the meeting of experts held on 13 the period to which the extrapolation February 1962 at the defendant's relates as during the reference period, request (Schedule 2 to the statement of

declarations separating ments, the figures of the assessable appearing in the minutes and observes

corresponding debit there agree­ tonnages and the that was not unreserved

balances contained in the letter of 17 ment on the figures proposed by the

January 1962 have been considerably High Authority. The applicant produces increased in the Decisions of 23 May a technical opinion drawn up at her 1962 although those figures were cal­ request by six experts on 20 November culated by the same inductive method. 1962 (Schedule 1 to the reply). Accord­

She submits from the above that there ing to these experts, at the meeting of are no valid grounds for the Decisions. 13 February 1962, the subject of which The defendant replies that the letter of was a problem concerning the smaller

17 January 1962 was merely an act of iron and steel undertakings, no repre­

The applicant disputes the fact that the owed by the applicant who is com­

consumption of electric energy, by pulsorily subject to the equalization

itself, is capable of enabling an exact scheme'.

inductive assessment to be arrived at of The applicant then disputes the

the amount of bought ferrous scrap defendant's statement that the criterion

consumed by a given iron and steel for calculating kWh per metric ton had undertaking. She refers in this respect been fixed in a way which was most

must be absolutely certain that calcula­ As for the experts'

opinion produced by tions are uniform and not either too the applicant, she does not dispute high or too low, since the equalization the validity of the criterion adopted but scheme is the joint concern of all the merely asserts that 'the consumption of

undertakings participating. She refers in electric energy outlined by the curves of this respect to the opinion of Mr the graph prepared by the experts of Advocate-General Lagrange in Joined the High Authority cannot be regarded Cases 42 and 49/59, SNUPAT v High as entirely valid'. This opinion is in Authority (Rec. 1961. d . 178) keeping with that of the High Authority The defendant replies first by producing that, once the validity of a criterion or the preparatory note of 26 January of a general rule has been well establish­ 1962 for themeeting of experts on 13 ed, the presence of exceptional circum­

February 1962 (Schedule 6 to the stances in any particular case which

rejoinder) and the letters in which the alter the rule must be established by experts approved the minutes of the the person who asserts their exis­

meeting and the graph adopted by the tence.

to use for checking purposes inductive as provided for in this Treaty, the

factors, such as the consumption of High Authority must party give the de­ concerned the opportunity to submit its electric energy. According to the fendant the consumption of comments'. In fact the request in the electricity is a factor sufficient to justify an adjust­ second of the individual Decisions in ment on the basis of an estimate. It is dispute to pay 186 432 125 Lire con­

for the user to show that the usual ratio stitutes in her opinion a pecuniary of energy to ferrous scrap does not sanction. She refers in this respect to

apply to the furnace he uses by reason the view of Mr Advocate-General of its particular characteristics. In this Lagrange in his opinion in Case 15/57, sense one can say that energy con­ Hauts Fourneaux de Chasse v High sumption in only one of the factors on Authority (Rec. 1958 (janvier-juillet), p. which the High Authority can base its 205) and the case law of the Court in

assessment, that is to say, an exception its judgment of 13 June 1958 (Case to the general rule can be justified by 9/56, Meroni v High Authority, Rec. taking account of other factors. 1958 (janvier-juillet), pp. 26 and 27). The defendant adds that the ratio The defendant replies that the applicant

applied by the High Authority, namely is confusing 'adjustment of the contri­ kWh per metric ton of steel produced, bution payable', which is at issue in this must be considered all the more equit­ case, with 'pecuniary sanction'. For the able in that in its calculation account question of sanction to arise there must

Treaty for undertakings which evade direct and immediate manner. In addi­

their obligations or knowingly furnish tion, the reasons for excluding these false information. This distinction was kinds ferrous scrap are by implica­ of

made in Article 15 of Decision No tion apparent from the very bases of 16/58 which makes provision, on the the equalization scheme as can be ascer­

one hand, for sanctions for inaccurate tained from the statement of reasons on

declarations and, on the other hand, which the general Decisions of the High for the adjustment, on the basis of an Authority are based. estimate, of declarations for which (b) The applicant states that, in order to there is no reasonable basis. extend exemptions from payment of

contributions retroactively to the period between 1 April 1954 and 31 January II — Article 10 (b) and (d) of general 1957, the High Authority was bound Decisions Nos 2/57 and 16/58 to take the advice of the Council of

powers. ity had also wanted to apply the scheme to situations such as those referred to in Article 10 (b) and (d), thereby alter­

1. Submissions and arguments com­ ing the normal conditions of competi­

mon to Article 10 (b) and (d) tion.

(c) The applicant alleges infringement

(a) According to the applicant Decisions of Articles 3 (b) and (c), 4 (b) and the Nos 2/75 and 16/58 do not indicate third paragraph of Article 5 of the

the reasons for exempting the pro­ ECSC Treaty as well as of the funda­

infringed in any way since the Decisions alloy steels. She then asks the Court to

did in fact derogate from de­ not the prin­ put the following question to the

ciple of equal treatment. fendant: 'What is the total tonnage of

(d) Finally the applicant alleges that alloy steels which was exempted from there was misuse of powers arising from the equalization contribution within the

discrimination between undertakings, in­ ECSC from April 1954 to March 1959 tervention capable of distorting normal because it was declared as having been from alloy scrap?'

competition, and the retroactive exten­ obtained

ably from that in ordinary ferrous scrap. because these steels are largely produced In fact alloy scrap contains precious from ordinary scrap to which the al­

metals (molybdenum, chromium, nickel, loys are added.

vanadium) and its price depends not In reply to the applicant s question the

only on that of ordinary ferrous scrap defendant states that no tonnage of

but also on that of its precious metals. special steels has been exempted from The object of the equalization scheme equalization because the latter applies

is to overcome the difficulties of the to the ferrous scrap used and not to

pared with 13 million metric tons of contributions, because otherwise the

ordinary ferrous scrap; consequently it production costs of such foundries represents a negligible amount (a yearly would have been higher than those of

average covering 1960, 1961 and the independent foundries, and this would

first six months of 1962). otherwise clearly have resulted in an

JUDGMENT OF 16. 12. 1963 — CASE 18/62

alteration of the normal conditions of tion contribution, it was necessary to competition. Such an exemption was exempt the integrated foundries from the only means of preventing the general paying the contribution on ferrous scrap Decisions from giving rise to cases of used for the type of production in discrimination prohibited by Articles 3 question.

reply) and statistics for the production Decisions are not justified either by of crude steel for castings by the method their accounting factors or in the

of production used by independent context of the Decisions themselves

steel foundries in the Community or by previous administrative meas­

(Schedule 9 to the reply). She states ures to which one might refer; that, according to the above, the High (b) because the Decisions in dispute discrimination intro­ Authority, in order to ensure normal maintain the

competitive conditions between integra­ duced into the equalization scheme

ted and independent foundries, has para­ by paragraphs (b) and (d) of Article distorted im­ 10 Decisions Nos 2/57 doxically the much more of and

tion of cast steel for moulds from in­ cision No 18/60 which allows dis­

tegrated foundries at a disadvantage crimination between purchasers of

compared with the production of the imported ferrous scrap and scrap independent foundries (the question is treated as such and purchasers of

precisely that of two groups of manu­ ferrous scrap recovered internally, facturers carrying on the same activity by conferring on the former a total who manufacture the same products by indemnity of 5.5 units of account or the same methods of production using 3 437.50 lire per metric ton with­

the same materials) and because the out extending the indemnity to the

latter are not subject to the equaliza- latter);

Treaty, because an auditor's report In reply the applicant maintains and

on the legality of the operations of develops the complaints set out in the

the ferrous scrap equalization scheme application; she concludes by formulat­ was never presented; ing a series of six questions which she (g) for misuse of powers, because the asks the Court to put to the High High Authority carried out opera­ Authority. tions capable of distorting competi­ In its rejoinder the defendant replies

tion. point by point to the arguments in the The defendant, in reply to the criticisms reply and to the questions submitted by set out under (b), (d) and (g) above, the applicant.

which are identical to those directed against general Decisions Nos 2/57 and

16/58, refers to its replies set out under IV — Procedure the preceding heading. As for the com­

All accounting data on which the the that 'it does not appear from the files calculations were based were also pub­ of the Azienda Elettrica Municipale that

lished in the form of an annex. The data relating to the consumption of elec­

applicant's complaint is thus based on tric energy by iron and steel manufac­

the failure to produce the mass of ac­ turers was directly communicated to the counting documents in support of the High Authority'. various published figures and it may be In addition, on 4 March 1963 the appli­ observed in this respect that no public cant filed documents containing replies administration and no undertaking or to the arguments set forth in the re­

company any country has ever of pub­ joinder. lished in its balance sheets or reports At the hearing on 26 March 1963 the

details of supporting documents which Court, having heard the report of the

affidavit certifying that those invoices sented her comments on the contents

covered the entire consumption for the of the defendant's letter lodged on 19 period in question. April 1963. On 19 April 1963 the High Authority On 1 August 1963 the Court put to

lodged its reply to the requests of the the parties eight questions addressed to

Court and added that it had no objec­ the defendant. tion to the addition to the file of the On 27 August 1963 the applicant in­

documents produced by the applicant on formed the Court that her search for 14 February 1963 and 4 March 1963. the document whose production had In its turn it asked for authorization to been ordered on 20 May 1963 had been produce a letter of 7 May 1958 from unsuccessful.

the Caisse de péréquation des ferrailles For the rest, the statements or the

failed to produce it. Following this ob­ tics in support of her arguments.

servation the Court on 20 May 1963 At me second oral hearing, which took

ordered the applicant to produce this place on 23 October 1963, the applicant document. gave her opinion on the replies given by On 18 June 1963 the applicant, after the defendant on 25 September 1963 to

having requested an extension of time the questions put by the Court and the on 19 April 1963, lodged her reply to defendant gave its opinion on the tables the Court's order to produce the in­ of statistics lodged by the applicant on voices relating to the consumption of 25 September 1963.

Grounds of judgment

The application was lodged in accordance with the required procedure and

However, neither the applicant's conduct towards third parties nor the bring­ ing of an action for damages, which furthermore was withdrawn, meet the requirements of an admission in law of the existence of a debt.

The defendant's argument must be dismissed and therefore the application is admissible.

On the substance of the case

The applicant makes the preliminary point that she is not 'the widow of the engineer A. Leone', the description wrongly applied to her in the disputed

Decisions, but the widow of the engineer Vittorio Leone, the son and successor of the first-named. She points out, in addition, that she has a minor daughter by her marriage to Vittorio Leone, who is joint beneficiary of his estate under his will made before a notary and in the presence of witnesses on 26 January 1956. Consequently she finds herself unable to accept as regular the procedural situation in which she is treated as sole representative of the undertaking Acciaieria ing. A. Leone.

The Decisions in dispute were taken concerning 'the undertaking Acciaieria ing. A. Leone of Borgaro Torinese represented by Mrs Emilia Barge, wife of Gualco, widow of the engineer A. Leone'. It must be noted that no express submission was raised by the applicant with regard to this matter and that the existence of a joint beneficiary is not relevant to the case.

issue are in fact checks within the meaning of Article 47. Article 86 is not

JUDGMENT OF 16. 12. 1963 — CASE 18/62

applicable so that there was no need to notify the Member State concerned as by the fourth paragraph of that Article. Since Article 47 gives the prescribed

High Authority the power to have checks made, the instructions by virtue of which it does so constitute the actual exercise of its powers and not their dele­ gation. Accordingly the procedure and publicity required for a delegation of here Moreover the 'have made'

powers are not applicable. expression . . .

clearly shows that the High Authority need not have these checks carried out exclusively by its own officials, but that it may instruct for this purpose any person whom it thinks fit to carry out the work.

meaning of Decisions Nos 13/58 and 16/58 only aim at establishing with all possible accuracy the amounts owed by the undertakings by way of equalization levy. The undertakings concerned remain able to challenge, and where appro­

priate to prove, the inaccuracy of those assessments through either administra­

tive or judicial channels. Such assessments have nothing in common with

pecuniary sanctions and accordingly Article 36 of the Treaty does not apply in the case of an estimated assessment.

The applicant disputes the figure for the consumption of electricity for the period from 1 February 1957 to 31 January 1958, which, according to the Decisions in dispute, had been drawn up from the invoices of the electricity

company, and asks the Court to order evidence of this to be produced. She also contests the accuracy of the fading on which the High Authority based the two individual Decisions in dispute to the effect that for the 5-ton electric

tained in the letter sent to her by the High Authority on 17 January 1962 and those contained in the disputed Decisions.

So far as concerns the establishment of the relationship between the con­

sumption of electricity and the production of steel adopted by the High

Authority to enable it to determine the quantity of ferrous scrap used, although it is true that the consumption of electric energy in the furnaces is only one of the factors indicating the tonnage of ferrous scrap consumed, the exclusive use of this method is nevertheless justified in this case because of the total

absence of any other factors, owing to the destruction, as alleged by the present owners, of the accounting documents of the undertaking.

The adoption of a coefficient of 900 kWh. per metric ton of liquid steel pro­ duced is justified by the opinion of the commission of experts. Neither the fact that these experts were chosen from large undertakings, nor that they were unable to agree completely on all points, is sufficient to invalidate their opinion, since it is obvious that it is chiefly undertakings of a considerable size which will have at their disposal persons sufficiently specialized in this matter to be able to give an opinion.

It appears from the defendant's statement that it has never claimed that it was

able to determine an exact sum and that the method adopted only amounts to an approximate method. Moreover undertakings can always prevent the use of an approximate method of this kind by providing the exact data in their pos­

session. Finally the applicant did no more than make the vague allegation that

JUDGMENT OF 16. 12. 1963 — CASE 18/62

exceptional circumstances which, according to the opinions produced by her, might in certain cases invalidate the relationship between kWh. and steel

produced, adopted by the High Authority, are in fact present in this case. Her assertions lack precision and cannot be taken into account.

sufficient reason to invalidate the disputed Decision or the statement of reasons

relevant thereto.

In the absence of any documents, the High Authority was justified in basing its Decision on the data at its disposal. Neither the applicant's allegations nor the letter from the Azienda Elettrica Municipale of 22 April 1963, addressed to

the applicant and produced by her are capable of invalidating the accuracy of this information.

this letter of 22 April 1963 constitutes the reply to the applicant's request

made in pursuance of a question put by the Court to send it invoices for the

Authority, the consumption of electricity for the said period was 13 475 200 kWh., less 2 358 000 kWh., which, according to information supplied to S. A. Fiduciaire Suisse had been consumed during the period from 1 February to 30 April 1957. This reduces the consumption to 11 117.200 kWh.

Using the criterion adopted by the High Authority itself, that is to say a maximum consumption of 900 kWh. 1 080 kg. ferrous scrap per metric and

ton of liquid steel produced, a consumption of electricity of 11 117 200 kWh. does not correspond to a consumption of 16 220 tons of ferrous scrap, the

figure at which the High Authority put this consumption for the said period.

The method of assessment by extrapolation involves the use of several hypo­ thetical factors. There can only be sufficient justification in law for an

estimated assessment where there is a total lack of other information. The production before a court of evidence invalidating the results of extrapolation is admissible. The justification for the estimated assessment for the period

It follows from the above that the contested Decisions relating to the estimated assessments must be annulled in respect of the period from 1 October 1955 to 31 January 1957.

As to the objection of illegality directed against Article 10 (b) and (d) of general Decisions Nos 2/57 and 16/58

When bringing an application for the annulment of individual decisions, the applicant may put at issue the general decisions of which the decision in dispute is merely an application, because the latter, although valid in itself, neverthe­

less infringes the Treaty to the extent that it is based upon illegal rules. In this

case, the individual Decisions in dispute are an application of general Decisions Nos 2/57 and 16/58, setting up the financial arrangements designed to ensure a regular supply of ferrous scrap in the Common Market. However, the disputed Decisions do not constitute a direct and immediate application of Article 10 (b) and (d).

JUDGMENT OF 16. 12. 1963 — CASE 18/62

Authority has arbitrarily adopted differing criteria as to inclusion or exclusion of undertakings with regard to the equalization scheme.

The first two grounds of complaint cannot be accepted. The requirements of a statement of reasonsvary according to whether one is concerned with general decisions having the character of regulations, or with decisions which do not have that character. As to Decisions Nos 2/57 and 16/58, it is not necessary to give reasons for the various provisions of the text, as long as these are clear and fall normally into the system as a whole.

The second ground of complaint does not refer to Decisions Nos 2/57 and

16/58 themselves, but to the application of them by the 'agencies in Brussels'; this ground of complaint is thus outside the scope of the objection of illegality.

The grounds of complaint concerning infringement of the Treaty and misuse of powers are not well founded.

The defendant has pointed out that the exemption for alloy steel scrap is justified by the difference between the alloy ferrous scrap market and that for

Consequently, since there is no need to pursue this examination, the complaint concerning infringement of the Treaty must be dismissed, as must also, and for the same reasons, the complaint of misuse of powers.

As to the objection of illegality directed against general Decisions Nos 18/60, 19/60 and 20/60

The applicant alleges that Decisions Nos 18/60, 19/60 and 20/60 are vitiated

by illegality. This allegation is set out above in seven separate grounds of com­

plaint. The defendant remarks quite rightly that the complaints listed under (b),

(d) and (g) are identical to those brought against Decisions Nos 2/57 and 16/58, and are therefore to be dismissed on the grounds set out above.

The defendant denies that the provisions invoked apply to the arrangements

prescribed in Article 53 of the Treaty and points out that the general report referred to in Article 17 has regularly contained a statement of the functioning of the equalization scheme.

JUDGMENT OF 16. 12. 1963 — CASE 18/62

In any event, the two reports referred to are intended for the European Parlia­ ment and the Committee of Presidents respectively and it is solely for these

bodies to judge whether the reports are sufficiently complete.

In applications made by private undertakings judicial review of the contents of such documents is inadmissible.

As the application has been held to be well founded in respect of the estimated assessments for the period from 1 October 1955 to 31 January 1957 there would normally be grounds for a sharing of the costs. The applicant, however, owes her partial success only to the insistence of the Court itself, which ordered the production of invoices from the electricity company. With greater diligence

the applicant could have produced similar information before the date of the disputed individual Decisions, or at least before the date of her application.

Consequently litigation could have been avoided in respect of the said period and the costs pertaining to this part of the application could therefore have

been avoided and they must be considered as unreasonable within the meaning of Article 69 (3) of the Rules of Procedure. Accordingly, the applicant must bear the costs of the application.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General;

1962, which have respectively as their object the fixing of the tonnage subject to equalization and the amount of the equalization contribu­

tion, in respect of the estimated assessment of the consumption of ferrous scrap for the period from 1 October 1955 to 31 January 1957;

2. Orders the applicant to pay the costs.

Donner Hammes Trabucchi

Delvaux Rossi Lecourt Strauß

Delivered in open court in Luxembourg on 16 December 1963

The final developments in this case, as concerned, and the second, which is en­ you will certainly recall, concerned the forceable within the meaning of Article more factual aspects of the litigation, 92 of the Treaty, fixes the amount of

notably the consumption of electricity the contribution which is consequently and the periods covered by this con­ owing.

sumption. These were a result of the We are therefore not concerned with

Court's own efforts to elucidate the an action of unlimited jurisdiction as if facts as clearly as possible, efforts more­ for example a fine or periodic penalty over which enabled the Court to get payment had been imposed under

closer to the real position. But one must Article 36 which is not the case here; not lose sight of the fact that the action for although the applicant also relies

brought before the Court is an applica­ upon Article 36, it is perhaps so as to