C-1/63

JUDGMENT OF THE COURT 16 DECEMBER 1963

Macchiorlati Dalmas & Figli v High Authority of the European Coal and Steel Community

Case 1/63

Summary

1. Measures adopted by institutions of the Community — Decisions of the High Authority — Statement of reasons — Criteria

(ECSC Treaty, Article 15)

1962, p. 489. measures cannot be regarded as com­

pliance with the obligation to state

2. Cf. summary No 4, Case 9/56, Rec. the reasons upon which a decision is 1958 (janvier-juillet), p. 13. based.

In Case 1/63

Macchiorlati Dalmas & Figli , a limited partnership, having its registered

office in Turin, represented by its managing partner, Antonio Macchiorlati Dalmas, assisted by Antonio Astolfi, Advocate of the Milan Bar and at the Corte di Cassazione, with an address for service in Luxembourg at the

Application for the annulment, revocation or variation of the individual Decision 14 November 1962 whereby the High Authority of pay­ demands

ment by the applicant of the sum of 7 000 000 lire by way of surcharges for

delay in payment of the levies imposed on its production of steel for the years 1953 to 1960 inclusive,

THE COURT

composed of: A. M. Donner, President, Ch. L. Hammes (Rapporteur) (Presi­ dent of Chamber), L. Delvaux, R. Rossi and R. Lecourt, Judges.

Advocate-Gneral: K. Roemer Registra: A. Van Houtte

subject to levy by virtue of Decisions partly during interviews at the head Nos 2/52 and 3/52 of 23 December office of the High Authority, the appli­

1952 (Official Journal, 1952, pp. 3 and cant paid the arrears of the actual levy 4), as amended and supplemented by until the end of February 1960, but Decisions Nos 29/55 of 3 November requested that payment of the surcharges

1955 (Official Journal, 1955, p. 905) for delay be remitted. and 31/55 of 19 November 1955 By letter of 18 June 1962 the High (Official Journal, 1955, p. 906). Authority informed the applicant that its On 15 February 1959, following lengthy request had been partially granted, the

negotiations with Macchiorlati, the High surcharges for delay having been re­

Authority issued against it an enforce­ duced from 9 334 514 lire, the amount able Decision whereby it was required to which they had in the meantime in­

to pay 21 541 543 lire, of which creased, to 7 000 000 lire, payment of

which is the subject of the present 1. Absence and inadequacy of the state­

action. ment of reasons

The applicant, relying on the case law of II — Conclusions of the decisions the Court, maintains that the parties of the High Authority taken pursuant

to Article 92 must contain an exact and The applicant claims that the Court detailed statement of account setting should: out particulars of the debt thus made

(i) declare the contested Decision null enforceable.

and void; In tact the decision itself should be in

The defendant mentions the legal basis for the debt contends that the Court dismiss nor the period to which it refers and should all the claims put in this the are in­ respect recitals forward by the applicant as being inad­ adequate. missible and in any event unfounded A mere enumeration of the decisions and order the applicant to bear the concerning the levy and a chrono­ taken costs. logical list of the letters exchanged between the parties is no substitute for III — Submissions and argu­ a statement of the reasons upon which a

ments of the parties decision is based. The defendant replies that tne contested

The applicant on the one hand directly Decision is the result of a complicated

challenges the individual Decision of procedure taken pursuant to the first 14 November 1962 by proceedings paragraph of Article 36, in the course of based on Articles 33 and 36 and on the which the High Authority by docu­ other hand indirectly challenges, by a ments sent to the debtor, progressively claim under the third paragraph of compiled complete documentary evidence Article 36, the individual Decision of of the amount claimed.

13 February 1959, and general Decisions A Decision is supplemented by the

Nos 2/52 and 3/52 as amended by measures which precede it and comprise

Decision deter­ out that Article 6 of general Decision sufficient reason for the No 3/52, supplemented by Decision No mining the surcharges for delay in pay­

29/55, gives it the right to request the ment, the carrying out of these proposals High Authority to remit, in whole or in would, on the other hand, deprive the

part, the surcharges for delay in pay­ High Authority of the right to demand ment and that the defendant was there­ payment of the surcharges. fore obliged to state the reasons which The defendant, however, maintains that were capable of justifying its refusal to the surcharges for delay in payment are grant a total remission. The High in fact interest on the overdue payments Authority should also have explained its of the levy, in particular when they are reasons for reducing the surcharges to fixed, as happened in this case, at a rate 7 000 000 lire. A statement of reason equivalent to the normal rate of bank upon which a decision is based is the interest. condition precedent to the exercise by The statement of reasons for the

±e High impli­ Authority of its discretionary Decision is therefore given by power in connection with the remission cation. It need only be stated explicidy of surcharges for delay in payment. The if the surcharges were fixed in such a

complete absence of any explanation of way that they amounted to a sanction or

the manner in which this discretionary if they were reduced to such an extent as power was exercised must lead to the to be tantamount to a full remission of

the enforceable demand to pay was decisions taken by the High Authority based. This argument is sufficiently under Article 50 of the Treaty substantiated by the last recital which

states that the applicant did not carry 2. Infringement of Article 6 of general

out its express undertaking to submit Decision No 3/52 in so far as it its proposals for payment. constitutes a rule of law relating to The applicant denies having given any the application of the Treaty such undertaking and points out that

there is no decision imposing upon it The applicant states that the detailed the obligation to submit proposals for statement of account of the penalties for payment. In any case, according to the delay in payments, which the High High Authority's own argument, the Authority sent it by letter of 26 April 1959 Decision was replaced by a 1961, rounded up all the figures. The

MACCHIORLATI DALMAS v HIGH AUTHORITY

High Authority therefore exceeded, if cally refuting that assertion; and finally only by a negligible amount, the per­ the fact that by letters of 11 May 1960 centage increase of 1 % fixed by Article 6 and 20 February 1962 the applicant of general Decision No 3/52. This com­ again requested that the surcharges for plaint, although of no great practical delay in payment be remitted without

prove by the evidence of witnesses that procedural grounds because the appli­

during a between its repre­ cant is barred as a result of the expira­ meeting sentatives and officials of the High tion of the time limit within which pro­

Authority on 21 April 1960 at Luxem­ ceedings against this Decision must be bourg a compromise was reached. The instituted, and on substantive grounds

applicant agreed to discontinue its because of the lapse of the right to

action in Case 22/59, to pay its arrears institute proceedings, as a result of the

and in future to carry out its obligations discontinuance by the applicant of its in a proper manner. In return the High earlier application and of the implemen­

sistent with the alleged compromise as the applicant to plead the illegality of

In decision in­ a misuse of powers. fact, according the general upon which the

to the High Authority, the documents dividual decision, which it is contesting, produced in these proceedings prove is based. A request for the annulment of that no such agreement as the one an individual decision cannot be based mentioned by the applicant was con­ on the presumed illegality of another

cluded. This is clear in particular from : individual decision which is not contes­

the lack of any written confirmation by ted.

the High Authority of the applicant's The High Authority goes on to say that assertion contained in a letter of 30 the aim the legal order created by of

resolved. It follows from Article 33 that Article 33 has expired, it is necessary individual decisions, which are not con­ only that there should in fact be a tested within the time limit laid down decision and that this decision should or are contested in proceedings which be the necessary condition precedent to

later discontinued, or are confirmed later individual de­ are the validity of the

by the dismissal of proceedings institu­ cision which is contested.

ted against them, are definitive and bind In this case the Decision of 14 Novem­ the parties thereto in all respects. ber 1962 could neither exist nor be Moreover the Decision of 13 February justified without the Decision of 13 1959 is not the basis of the Decision February 1959 which fixes the amount of 14 February 1962 except in so far of the levy contributions and the periods

as it fixes the amount owed by the of delay. undertaking. It is not the legal origin

of the obligation itself, which arises from 2. The substance the failure to comply with the general Decisions introduced the levy deter­ which According to the applicant the

flow from definitive in­ the nature of the In fact the High Authority did not preceding decision. It imposes sur­ form the applicant of the criteria which

charges for delay in payment it applied. It only did so in its state­ according laid down decis­ defence in Case 22/59 which to rules by general ment of

ions. disclosed that it had done no more than The only general decisions which the calculate an average for the preceding applicant is entitled to challenge on the five years increased by a small per­

ground that the individual Decision of centage.

14 November 1962 is based on them An assessment made by the High

are those which determine the mode of Authority of its own volition and which assessment and collection of interest on merely consists of statistical or mathe­

make it possible for the debtor to know In addition the High Authority submits

how the debt has been calculated. that undertakings have no legal interest In any event me ngures arrived at in contesting Article 6 of general De­ differ considerably from the actual pro­ cision No 3/52. This provision applies

duction figures. to the levies Article 50 (3) of the The High Authority limits itself to re­ Treaty, which gives the High Authority plying that the Court in Case 9/56 the right to impose upon undertakings

(Meroni & Co., Industrie Metallurgiche, which do not comply with decisions S.p.A. High Authority; Rec. 1958, v the taken by it under that Article surcharges (janier-juillet), p. 9) and in Joined of not more than 5%, for each quarter's Cases 36, 37, 38, 40 and 41/58 (Societa delay, that is to say approximately Industriale Metallurgica di Napoli 1.66% per month.

(SIMET) and others v the High Author­ The contested provision which hxes the

ity; Rec. 1958-1959, p. 331) has ac­ the rate of the surcharges for delay in knowledged that the High Authority is payment at only 1% per month and

This Decision is confined to demanding (a) Infringement of Article 50 (1) surcharges for delay in payment for failure to fulfil in good time the ob­ The applicant argues that Article 50 (1) ligation to pay the levy arising from exhaustively enumerates the specific ex­

the general Decisions. The applicant is penses which levy the to is intended not entitled to contest this obiligation cover. The High Authority is therefore in particular because it has fulfilled it not entided to fix the rate for the levy

without any reservation. at a level which allows it to cover other

The applicant fact expenses, for estab­ replies that it is the example the cost of

that the obligation to pay the levies was lishing and maintaining a guarantee fund not observed which justifies the sur­ or a special reserve fund. charges for delay in payment. The De­ The rate of the levy has not however 14 November 1962, de­ been cision of which adjusted so as to cover only those termines the amount of the surcharges, requirements laid down in Article 50 is therefore inevitably based on the (1). The budgetary documents of the general Decisions relating to the levies High Authority disclose that the sum and the alleged failure to observe them. of 153.87 million units of account was

The application against the general De­ levied on undertakings to cover ex­

to cover its own expenses. The documents produced by the High No legal principle or provision ot the Authority prove that Decision No 3/52 Treaty justifies the creation of a guaran­ (and also Decision No 2/52) were adop­

tee fund which exclusively serves cer­ ted without proper consultation with

tain political objectives of the High the Council. Authority. The application of the fund In any case the High Authority was re­

is, moreover, contrary to the basic pro­ quired to refer expressly to consulta­

visions of the Treaty, as the High tion with the Council in the preamble

Authority is not entitled to impose sub­ to its Decision. Not having done so, it stantial levies on certain undertakings infringed an essential procedural re­

meet any requirements it desires. by Decisions Nos 2/52 and 3/52. The High Authority on this point re­ Article 50 (2) expressly provides only fers to the point of view it adopted in for consultation with the Council con­

Joined Cases 41 50/59 (Hambor­ and cerning the mode of assessment and

ner Bergbau AG, Friedrich Thyssen collection of the levy. As this question

Bergbau AG v the High Authority, Rec. was settled by Decision No 2/52, con­

1960, pp. 989 et seq.) and to the opin­ sultation with the Council logically is ion of the Advocate-General in those only mentioned in that Decision. cases. Furthermore, the Court would not have failed to consider of its own motion this alleged procedural defect, if it existed, (b) Infringement of Article 50 (2) in previous proceedings.

The applicant recalls that Article 50 (2) that 'the of assessment provides mode (c) Infringement of Article 47 and collection'

amount of surcharges for delay in pay­ lations based on statistical averages and

ment, all of which are precisely the unreliable forecasts of increased pro­

factors required for the assessment and duction.

MACCHIORLATI DALMAS v HIGH AUTHORITY

For High is because the de­ the Authority to adopt a pro­ all the more serious

cedure for making findings of fact, cisions of the High Authority in this

which the request

directed. The contested general Decision in no

The High Authority nevertheless un­ way prevents the High Authority from lawfully made an assessment of its own allowing the party concerned, pursuant motion of the applicant's chargeable pro­ to the first paragraph of Article 36, the

duction for the period April to October opportunity of submitting its comments

1958. on the amount of the surcharges noti­

The defendant replies that the Court fied to it. has already recognized the principle that It is only afterwards that, in the full

a pecuniary sanction or ordering a procedure under the first paragraph of

periodic penalty payment. Article 36 had not been meticulously However, Article 6 of Decision No observed.

3/52, supplemented by Decision No The system introduced by general De­ 3/52 does in­ 29/55, determines the amount of the cision No not therefore

surcharge for delay in payment in a fringe the first paragraph of Article 36 stricdy objective manner. It substitutes and does not confer upon the High for discretionary assessment, preceded a Authority powers to which it is not

by the exercise by the party concerned entitled under that Article. of its subjective right to submit its comments, a mathematical determination D — The amount of the surcharges for of amount which could only be abated delay in payment after the sanction had been imposed. The procedure under Article 36 is The applicant points out that the sum

therefore reversed. The undertaking no of 7 000 000 lire for surcharges for longer has the right to submit its com­ delay in payment out of total contribu­

nature of the failure to pay and of the amount payable to the level of the

consequences of the sanction should normal bank rate and therefore applies

have led the High Authority to remit the a criterion of equalization and not of

surcharges for delay in payment or to sanction.

reduce them to a minimal sum. Specially favourable treatment did not

In ract having regard to tne particular appear to be justified. It would more­

Grounds of judgment

A —

Admissibility No objection has been raised by the parties to the procedure in this case and there are no grounds for the Court to raise the matter of its own motion.

B — Substance

I — The nullity of the individual Decision of 14 November 1962

It is necessary in the first place to examine the submissions of the applicant

MACCHIORLATI DALMAS v HIGH AUTHORITY

In this case the contested Decision does not contain anything whatsoever in the nature of a statement of account showing how the debt, which is enforce­

able by virtue of the Decision, is calculated and therefore does not enable the Court to check the rate of interest actually applied or the nature of such

interest

Only an accurate and detailed statement of account determining and explain­

ing the amount of the surcharges for delay in payment, which the applicant firm was liable to pay in respect of the levies assessed on its production of steel for the years 1953 to 1960 inclusive, could enable the Court to review the legal justification of this enforceable claim.

The complaint of infringement of an essential procedural requirement, in this case the duty to state the reasons upon which decisions of the High Authority are based, is well-founded.

The contested Decision must therefore be annulled.

II — Costs

The defendant has failed in its conclusions and it must therefore be ordered to bear the costs.

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;

hereby:

I. Annuls the individual enforceable Decision of 14 November 1962

addressed by the High Authority to the applicant;

2. Orders the High Authority of the European Coal and Steel Commu­

nity to bear the costs.

Dormer Hammes

Legal consideration ... ... ... ... ... ... ... ... 316

A — Submissions directed against the individual Decision of November 1962 316

I — Were the surcharges for delay in payment remitted by the High Authority? 316

II — Infringement of Article 6 of Decision No. 3/52 ... ... ... 317

III —

Deficiency of the statement of reasons ... ... ... ... 317

1 — Translated from the German.