C-28/63
ECLI:EU:C:1963:53
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JUDGMENT OF THE COURT <ap note>1</ap note> 5 DECEMBER 1963
Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. 2 v High Authority of the European Coal and Steel Community
Case 28/63
Measures adopted by institutions of the Community — Decisions of the High Authority — Constituent elements
(ECSC Treaty, Article 14)
(See Summary in Joined Cases 23, 24 and 52/63, para. 1)
In Case 28/63
KONINKLIJKE NEDERLANDSCHE HOOGOVENS EN STAALFABRIEKEN N.V., having its registered office at IJmuiden, Netherlands, represented by its manager P. R. Bentz van den Berg, assisted by J. Mertens de Wilmars, advocate, Antwerp, with an address for service in Luxembourg at the chambers of Ernest Arendt, 6 rue Willy-Goergen, applicant,
v
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, represented by its Legal Adviser B. der Esch, acting as Agent, with an van
address for service in Luxembourg at its offices, 2 Place de Metz,
defendant,
In the matter (at the present stage of the proceedings) of the admissibility of the application made by the company Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. for the an ulment:
—
primarily, of the decision contained in the letter dated 8 April 1963 of the High Authority requesting the applicant to pay before 31 May 1963 the sum of 8 671 348-34 F1. by way of contributions to the equalization scheme for imported ferrous scrap and scrap treated as such;
—
secondarily, of Article 6 of Decision No 7/63 of the High Authority of 3 April 1963 on the compilation of statements of account in connection with the equalization scheme for imported ferrous scrap and scrap treated
as such (Official Journal of the European Communities of 6 April 1963, pp. 1091/63 et seq.);
1 — Language of the Case: Dutch. 2 — CMLR.
JUDGMENT OF 5. 12. 1963 — CASE 28/63
THE COURT
composed of: A. M. Donner, President, Ch. L. Hammes (Rapporteur) and A. Trabucchi (Presidents of Chambers), L. Delvaux, R. Rossi, R. Lecourt and W. Strauβ, Judges,
Advocate-General: K.Roemer Registra: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure to the equalization scheme. This letter contains the following passage in par
The applicant company (hereinafter ticular :
referred to as 'Hoogovens') carries out 'In accordance with Article 6 of Decis
the rolling of steel ingots which are ion No 7/63 you are requested to pay provided for this purpose by other the sum of 8 671 348.34 Fl. High to the which is Breed undertakings, one of Authority at one of the banks listed in band N.V. The scrap recovered during the Article.' above this operation is considered by Article 6 Decision No 7/63 fixes of the Hoogovens as its own production and date for 31 payment as May 1963. The therefore exempt from equalization, and letter of 8 April 1963 bears a refer also has been regularly declared as such to 'to be pay ence quoted when making the bodies responsible for administering ment'. the equalization scheme without this On 13 May 1963, Hoogovens lodged being disputed by the latter. at the Court Registry an application for On 15 June 1962, the High Authority the annulment of both the decision con
informed the applicant that this scrap tained in the High Authority's letter of was, 'if an actual agreement exists for 8 April 1963 and Article 6 of the High rolling', to be considered not as own Authority's Decision No 7/63 of 3 scrap belonging to the applicant April 1963 and for the High Authority Hoogovens but to the factory giving the to be ordered to pay the costs of the order, and should thus have been sub
case. jected to the levy as bought scrap. The arguments put forward by the ap
By registered letter with form of plicant in support of its application are acknowledgement of receipt, dated 8 essentially as follows: April 1963, the Director and Director General of the Directorate General for — The scrap resulting from rolling Steel High under contract constitutes its own of the Authority, pursuant
to Decision No 7/63 and subject to the resources which are not subject to
conditions contained therein, sent to the the levy; applicant a full statement of account — In any case, the High Authority is out all its credits and debits in not entided to require from it in setting clusive of principal and interest, relating relation to this scrap a contribution
HOOGOVENS v HIGH AUTHORITY
to the rebate of interest in favour of III — Submissions and argu
other undertakings which have fulfil ments of the parties
led their financial obligations with as to admissibility of
regard to the equalization scheme. the application
— The High Authority is wrong to re
The High Authority maintains that the fuse to grant it a postponement of application is inadmissible in so far as the time for payment of its contribu
for it relates to the letter of 8 April 1963 tion the group scrap. on the ground that the latter does not On 14 June Authority1963 the High constitute a decision. It claims that the submitted a request under Article 91 (1) disputed letter is merely a statement of of the Rules of Procedure that the Court should give a the amount payable by the applicant at preliminary ruling liquidation the present stage of the of on the admissibility of the application. the equalization scheme, together with The Court allowed this request and the a request for payment of this sum. oral procedure took place on 10 October 1963. The Advocate-General delivered Merely fixing a balance payable by the
applicant does not in itself constitute a his opinion on 16 October 1963. decision within the meaning of Articles 14, 15 and 33 of the Treaty. Firms to which such letters were sent II — Conclusions of the could either agree with the statement admis parties as to of account and pay, or make known sibility of the appli
their objections; the High Authority cation only takes individual decisions, on which an application to the Court can be At this stage in the proceedings where based, in cases where it considers itself the only issue is that of admissibility unable to admit the complaints made the High Authority claims that the and therefore to alter the statement of Court should: account. declare by a decision inadmissible, The High Authority claims further that under Article 91 (1) of the Rules of the letter in dispute does not comply Procedure, the application made by the with the formalities required for a de applicant on 8 April 1963 costs.' and order cision and laid down by general Decis the applicant to pay the ion No 22/60 High Authority of the
T he applicant in the main action, the of 7 September 1960 on the carrying defendant in so far as the present ob into effect of Article 15 of the Treaty jection is concerned, claims that the (Official Journal of the European Com Court should place on record that the munities of 29 September 1960, pp. def ndant: 1248/60). It bears only the signatures of a Director and a Director-General — leaves it to the Court to decide whether the procedure referred to in There is nothing to show that it is a decision of the High Authority which is Article 91 of the Rules of Procedure of the Court should be applied; being notified. Furthermore, there is no statement of the reasons on which it is — leaves it to the Court to decide based. whether either its subsidiary appli The High Authority maintains that its cation or its principal application is is the only one compatible with the view
admissible; principles of good administration and is — maintains its submission that the also in accordance with the interests of
High Authority be ordered to pay the applicant. Maintenance of the re
the costs of the action. quirement of legal certainty, which De-
JUDGMENT OF 5. 12. 1963 — CASE 28/63
cision No 22/60 is designed to ensure, 7/63 are inadmissible, since they relate is likewise in the interests of the appli to a general decision, and the hypo cant, and it is not impossible that there thetical and meaningless reference to a
will be a satisfactory outcome of the misuse of powers cannot mitigate this
examination of its complaints by the defect. administration. The applicant in the main action, while The applicant in the main action, the stating that it disputes the argument of defendant in the present proceedings, the High Authority, leaves this point states that it leaves it to the Court to the Court to determine. whether the letter of 8 April 1963 con The applicant in the main action main
stitutes a decision open to appeal and tains its submission that the Court requests only the placing on record of: should order the High Authority to pay the costs of the action, even if it does — tne declaration by tne High Authority not declare the action admissible. that the disputed letter is not in the It claims that both the case-law of the nature of a decision, so that the state
Court and the point of view adopted ment of account contained therein cannot constitute the 'final statement previously by the High Authority itself led it to the conclusion that the letter in Article 6 account'
of referred to of 8 April 1963 was a decision and of Decision No 7/63, nor can it persuaded it that it was obliged, under therefore constitute formal notifica
tion; penalty of being time-barred, to con
test the legality of the letter within the — the declaration of the High Authority time-limit set by the Treaty. The com
that before making a decision it is pany claims that the confusion which prepared to consider the applicant's has arisen as to the legal effect of the complaints at administrative level and letter is fault disputed exclusively the to give its official view thereon, of the High Authority, which should together with a statement of reasons. bear the consequences.
The High Authority also considers that The High Authority contends that the
the conclusions in the application direc applicant in the main action should be ted against Article 6 of Decision No ordered to pay ±e costs.
Grounds of judgment
It is established that on 8 April 1963 the relevant departments of the High
Authority sent to the applicant undertaking a registered letter with form of acknowledgement of receipt. The letter stated that the applicant was requested to pay by 31 May 1963 at the latest the sum of 8 671 348-34 Fl. by way of contribution to the imported ferrous scrap equalization scheme.
Fearing that the content of these letters would be regarded as a decision within themeaning of the ECSC Treaty, the recipient undertaking made an appli
cation for annulment of thedecision and, secondarily, for the annul alleged
ment of Article 6 of the Decision of the High Authority No 7/63. The High
Authority has submitted that the application is inadmissible.
HOOGOVENS v HIGH AUTHORITY
I — On the admissibility of the application
In support of this objection on the ground of inadmissibility the High
Authority points out that the letter of 8 April 1963 does not constitute a
decision and cannot therefore be made the subject of an application. The applicant undertaking has left this matter to the discretion of the Court.
It is appropriate to inquire whether the letter constitutes a decision within the
meaning of Article 14 of the Treaty. According to the provisions of this
Article, the High Authority decisions which 'shall be binding in take'
'shall...
their entirety'.
The High Authority in its Decision No 22/60 has considered it necessary to establish 'as a matter of obligation'
the form of these decisions and has laid down the conditions with which it undertakes to make such measures comply.
In a subsequent 'communication', (Official Journal of the European Commu
nities, pp. 1250/60), the High Authority has prescribed that if these
formalities are not carried out, then the parties concerned may 'infer that the measures in question do not entail any legal obligations'.
Although it is desirable to ensure observance of the requirements prescribed in the appropriate manner by the High Authority, which enable governments, institutions and undertakings to identify decisions from their actual form, it does not follow that a measure should not be considered a decision, merely because it fails to comply with some inessential requirement of form, if the
fundamental conditions underlying the concept of a decision within the mean
ing of the Treaty are otherwise satisfied.
According to Article 14, decisions shall be taken by the High Authority, that is to say by its members sitting as a body. As such decisions are 'binding in their
entirety', however, they must show that they are intended to have legal effects upon those to whom they are addressed.
It follows from the natural meaning of the word that a decision marks the
culmination of procedure within the High Authority, and is thus the definitive expression of its intentions.
Finally, it is necessary for the legal protection of all those affected that they should be able to identify by its very form a decision which involves such serious legal consequences, in particular a compulsory time-limit for exercising
the right of instituting proceedings against it. In particular, for a measure to amount to a decision, those to whom it is addressed must be enabled to
recognize clearly that they are dealing with such a measure.
JUDGMENT OF 5. 12. 1963 — CASE 28/63
It follows therefore from all these considerations that a decision must appear as a measure taken by the High Authority, acting as a body, intended to produce legal effects and constituting the culmination of procedure within the High
Authority, whereby the High Authority gives its final ruling in a form from which its nature can be identified.
Any measure, therefore, which, in particular, does not appear to have been debated and adopted by the High Authority and authenticated by the signature of one of its members, cannot be regarded as a decision.
In the present case, in spite of the apparently peremptory nature of the letter in dispute, it cannot be considered as a decision within the meaning of the Treaty. In fact, there is nothing to indicate that the High Authority, sitting as a body, had discussed and resolved upon it. The applicant was merely 'requested' note'
to make payment, and, according to the explanatory enclosed
with the contested letter, to submit any observations it might have. Conse quently the application is inadmissible.
The subsidiary application made by the applicant company against Article 6 ofDecision No 7/63 of 3 April 1963 must be treated in the same way as the principal application and also be declared inadmissible.
II — Costs
Under the first paragraph of Article 69 (3) of the Rules of Procedure, the Court
may order that the parties bear their own costs. The peremptory tone of the
letter involved in these proceedings, accentuated by the mode of despatch, and the setting of a time-limit for payment, were capable in themselves of creating
uncertainty in the applicant's mind about the nature of the said letter. The High Authority, having by its own conduct induced the applicant to institute proceedings in order to safeguard its rights, must bear the greater part of the costs. It is appropriate that these should be consolidated and that the High
Authority should bear three-quarters thereof and the applicant one-quarter. 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;
Having regard to the Treaty establishing the European Coal and Steel Com munity, especially Articles 14, 15 and 33;
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, especially Articles 69 and 91;
HOOGOVENS v HIGH AUTHORITY
THE COURT
her by:
I. Rules that the application submitted by Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. is inadmissible;
2. Orders the High Authority of the European Coal and Steel
Community to bear three-quarters of the costs and the applicant to
bear one-quarter.
Donner Hammes Trabucchi
Delvaux Rossi Lecourt Strauβ
Delivered in open court in Luxembourg on 5 December 1963
A. Van Houtte A. M. Donner
Registrar President
OPINION OF MR ADVOCATE-GENERAL ROEMER
(see Joined Cases 23, 24 and 52/63, page 226)