C-29/63

JUDGMENT OF THE COURT

9 DECEMBER 1965 <apnote>1</apnote>

Société Anonyme des Laminoirs, Hauts Fourneaux, Forges Fonderies et Usines de la Providence and Others

v High Authority of the ECSC

Joined Cases 29, 31, 36, 39-47, 50 and 51/63

Summary

Marchienne-au-Pont, Belgium, represented by Max Nokin, Chairman of its Board of Directors;

(2) 31/63, SOCIÉTÉ ANONYME DE LA FABRIQUE DE FER DE MAUBEUGE, having its registered office at Louvroil (Nord), represented by J. A. de Beco, its Chairman and General Manager;

(3) 36/63, HAUTS FOURNEAUX ET FORGES DE SAULNES ET GORCY (FORMER­ LY RATY ET CIE ), a company limited by shares, having its registered

office in Paris 16, represented by Roland Labbe, its Chairman and Managing Director;

(4) 39/63, ACIÉRIES ET FORGES DE FIRMINY , a company limited by shares, having its registered office in Paris 9, represented by its liquidator, Marcel Macaux;

1 — Language of the Case: French

(10) 45/63, SOCIÉTÉ ANONYME H. K. PORTER-FRANCE, having its registered office in Paris 8, represented by Jean Pillard, its General Works Manager, and Joseph Versavel, General Secretary;

(11) 46/63, UNION DES CONSOMMATEURS DE PRODUITS MÉTALLURGIQUES ET INDUSTRIELS, a company limited by shares, having its registered office in Paris 8, represented by Marcel Petiet, its Chairman and General Manager;

(12) 47/63, SOCIÉTÉ FIVES-LILLE-CAIL, a company limited by shares, having its registered office in Paris 8, represented by Jacques Thibault, its Chairman and General Manager;

(13) 50/63, UNION SIDÉRURGIQUE DU NORD DE LA FRANCE 'USINOR', a com­ pany limited by shares, having its registered office in Paris 9, represented by Maurice Borgeaud, its Managing Director;

(14) 51/63, SOCIÉTÉ D'EXPLOITATION DES FORGES D'HENNEBONT, a company limited by shares, having its registered office in Paris 8, represented by Félix Portal, its Chairman and Managing Director;

USINES DE LA PROVIDENCE v HIGH AUTHORITY

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

Advocate-General : M. Lagrange (until 7 October 1964) and K. Roemer (from 8 October 1964) Registrar : A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts rous scrap originating in third countries, and shipyard scrap from ship-breakers' The facts may be summarized as fol­ yards or other scrap recovery yards lows: within the Community. Ferrous scrap accepted for equalization As the Caisse de Péréquation des Fer­ falls into two categories: imported fer- railles Importées (the Imported Ferrous

Scrap Equalization Fund) (hereinafter The High Authority considered that it referred to by its French initials as the could not allow the applicants to retain 'CPFI') bore the difference between, on the benefits thus acquired and debited the one hand, the purchase price of the them with the sums received under this ferrous scrap, which was either the price head in the statement of account which paid to the supplier in a third country, it communicated to them by letters increased by the cost of sea freight or dated 8 April 1963 (Schedule 1 to the the price paid to a ship-breaker and, on applications). the other hand, the equalization price, The applicants allege that this injurious it was most important for the Commun­ situation arose from a wrongful act or ity to buy scrap on the most favourable omission attributable to the High terms, which meant shipyard scrap. The Authority which had not sufficiently steelworks near ship-breakers' yards re­ checked the functioning of the equaliza­ quired a smaller tonnage than was avail­ tion scheme. According to the appli­ able for sale. Surplus shipyard scrap was cants, the High Authority's liability only of interest to steelworks, such as arises from the judgment given by the the applicants', which were nearer im­ Court on 15 December 1971 in Joined port harbours than ship-breakers' yards, Cases 19/60, 21/60, 21/61 and 3/61 provided that scrap from such yards, (Fives-Lille-Cail and others v High delivered to the works, was no more Authority, Rec. 1961, p. 565 et seq.) expensive than imported ferrous scrap. dealing with identical facts, and they In order to sell shipyard scrap to the state that it therefore only remains for iron and steel undertakings situated at them to prove the existence of the a greater distance from the yards, the damages and to quantify them. Office Commun des Consommateurs de Ferraille (the Joint Bureau of Ferrous II — Conclusions of the Scrap Consumers) (hereinafter referred parties to by its French initials as the 'OCCF') undertook to compensate these under­ A — The applicants claim that the takings for the difference between the Court should: cost of transporting the scrap from the producer's shipbreaking yard to the con­ 'subject to any further pleadings and sumer's works, on the one hand, and the rejoinders thereto and generally any cost of transporting the imported fer­ further submissions and conclusions, rous scrap from the usual port of im­ order the High Authority, on the portation to the consumer's works, on grounds of a wrongful act or omission the other hand; this difference is given on its part in operating the scheme for the abbreviated designation of 'parity the equalization of ferrous scrap, to pay of transport costs' or 'transport parity'. to the applicant(s) the sum of (see table According to the applicants, the pay­ infra) as damages; ments promised by the OCCF were and order the High Authority to pay the effected in full. costs.'

B — The defendant contends that : ing documents: the figures vary con­ siderably from one application to the 'For those reasons and others which may other, and the prolixity of the various be deduced or added, the Court should documents to be collected meant that dismiss the applications lodged at the it was in practice impossible to pro­ Registry by the fourteen undertakings duce them on the date for lodging the on 22 May 1963, with all consequences applications. They add that the neces­ in law, in particular with regard to costs.' sary documents are appended to their reply. The defendant replies that the appli­ cants, who in this instance did not have III — Submissions and argu­ to observe any period of limitation in ments of the parties lodging their applications, have supplied no valid reason for their delay in in­ The submissions and arguments of the dicating their evidence and have there­ parties may be summarized as follows: by infringed Article 42 (1) of the Rules of Procedure. A — Admissibility 2. In its rejoinder, the defendant ob­ The defendant makes no formal sub­ serves that in their reply the applicants missions on the inadmissibility of the have adopted a new method of calculat­ applications. ing the alleged damage, equal to the 1. It alleges however that in the appli­ difference between the cost price of the cations the applicants have indeed tonnage of ferrous scrap acquired by shown the calculations whereby they en­ them from ship-breakers' yards and the deavour to prove the amount of their cost price of the same tonnage of im­ damage, but that although they declare ported ferrous scrap. They were obliged that they are able to supply the figures to change their method because the de­ on which the said calculations are based, fendant had put forward the objection they have not done so: the applicants that the calculations effected in the ap­ have thereby failed to comply with the plications amounted to claiming the requirements of Articles 38 to 42 of actual sum of the 'transport parity the Rules of Procedure. The applicants grant' wrongly drawn by them and the reply that there is absolutely no ques­ reimbursement of which had been tion of deliberately withholding support- claimed by the High Authority.

The outcome of this new method of 3. The defendant summarizes its line of calculation is that all the figures for argument on the admissibility of the compensation set out in the applications applications as follows. are completely upset and nine out of the The insufficiency of the indication of twenty three applicants were led to dis the evidence in the applications was not continue their actions, since their use of caused by lack of time but rather by an shipyard scrap, far from resulting in a alteration in the line of legal argument loss to them, had on the contrary been which changed the very nomenclature of

infringes both: Court has only to apply its judgment Article 38 (1) of the Rules of Procedure, of 15 November 1961 (Joined Cases according to which the application shall 19/60, 21/60, 2/61 and 3/61, Fives- state the subject matter of the dispute Lille-Cail and others v High Author and the grounds on which the applica ity, Rec. 1961, p. 589);

B — On the substance The defendant furthermore submits that there has been an infringement of To order pecuniary reparation from the Article 38 (1) of the Rules of Procedure, Community, Article 40 of the Treaty in accordance with which the applica requires three ingredients to be present: tion shall contain an indication of any — a wrongful act or omission on the evidence founded upon. The defendant part of the Community; in fact states that if their claims in the — an injury caused in carrying out the reply are not considered fresh issues, the Treaty; application must be held inadmissible as —a causal connexion between the it does not contain the indication found wrongful act or omission and the in the reply ofthe evidence founded upon. injury. The application clearly contains neither evidence nor an indication of the evid

USINES DE LA PROVIDENCE v HIGH AUTHORITY

tion sorily applied to the many undertakings consuming ferrous scrap in the six coun The defendant observes in the first tries of the Community always engen place that the decisions of the Court ders the possibility of errors in the pay do not constitute 'arrêts de règlement' ment of equalization sums' (Rec. 1960, (judgments producing quasi-legislative p. 281). effects) and that the entitlement to re The applicants reply that they did not paration must 'be appraised 'in concreto' rely upon the judgment of 15 December in each case. 1961 as having the force of res judicata It is true that the case which was the with regard to the present disputes.

The with the functioning of the equalization said judgment took into account 'the scheme. However in its judgment the size of the transport parity payments Court found that the failure to super made to French undertakings (349 021 vise was aggravated because the prom dollars)', which figure corresponds to ises of the transport parity grant were the matters forming the subject of the given when the High Authority was no present applications, and the judgment longer restricting itself merely to carry refers to Decisions Nos 22/54 and ing out checks, but had, by virtue of 14/55, which certainly proves that the Decision No 13/58, taken over the man facts referred to in the judgment relate agement of the equalization scheme. to the period before Decision No 13/58. Since the present disputes relate to facts The gravity of the wrongful act or prior to Decision No 13/58, the ques omission of which the High Authority tion can no longer be regarded as settled was guilty is established by the number and the said judgment is not even a of contracts which provided for com precedent upon which it is sufficient to pensatory 'transport parity grants' and

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

able legal obstacle decision of the Court in this way, since The defendant states that in its judg they limit themselves at the present ment of 22 March 1961 in Joined Cases time to pleading a wrongful act or omis 42 and 49/59, in the case of SNUPAT sion. It thus appears that the 'transport v High Authority (Rec. 1961, p. 99 et parity' reimbursements were illegal and seq.), the Court ruled that, when the that the High Authority was bound to High Authority has committed errors claim their return. in law—in that case illegal exemptions The applicants reply that the defendant's from the equalization levy were at issue line of argument is contradicted by the —of which it was unaware and which express terms of Article 40 of the benefited certain undertakings, it must Treaty. According to this Article, any be ordered to rectify these errors at the wrongful act or omission confers a right cost of those who had provisionally to pecuniary reparation, but the repara benefited from them and consequently tion is proportionate to the injury sus it must revoke, even with retroactive tained and not to the factors causing effect, the administrative measures which the wrongful act or omission.

In these circumstan expressed in figures, but which could ces, the claim to a right to compensatory nevertheless justify pecuniary repara reparation could not be admitted, with tion. out depriving of its effect the obligatory The applicants add in support of these rectification of legal errors. considerations that, contrary to what the In Joined Cases 19/60, 21/60, 2/61 defendant claims, the purpose of the and 3/61, Fives-Lille-Cail and others v actions is not specifically to claim the High Authority, the latter alleged that benefit of the 'transport parity grants'; the 'transport parity' reimbursements the applicants are concerned about one constituted a violation of the essential thing only: in furtherance of their ob-

ligation to comply with the final ground 2.2% of deliveries from third countries of the judgment of 15 December 1961, and that the supply of this additional they must assemble, in order to sub tonnage could not present any difficulty. mit them to the Court, all the factors As to (b). The applicants produce for the examination undertaken in order (Schedule 1 in all the applications) an to reply to the question put. Naturally, attestation from the SITAM (Société if in the course of the inquiry conduc Internationale de Transports Affrète ted by the Court, it appears necessary ments Manutensions Transit) dated 30 to amend the particulars to be used for December 1962; from this they deduce quantifying the damage suffered, the that it was possible to freight an addi applicants will do what is necessary; the tional 160 000 metric tons of imported amount of damages could thus differ ferrous scrap for the French under from the sums representing the 'trans takings as a whole. port parities', as they appear in the ap As to (c). The applicants produce cer plications submitted.

(a) The argument based on the increase ence to shipyard scrap. Consequently in stocks is not conclusive, since the they state that but for the 'transport tonnage of stocks corresponds to a speci parity grants' they would certainly have fied period of consumption and, if the chosen imported ferrous scrap, as the consumption is increased, a proportional predominant motive guiding them was increase in stocks must follow accord always the most advantageous cost ingly. price. (to) The defendant then argues that, In support of their allegations, they even if the total resources of imported endeavour to show that there were suffi ferrous scrap had been sufficient, as the cient resources to be found in: applicants allege, the latter could not (a) ferrous scrap originating in third choose between shipyard scrap and im countries, especially the United ported ferrous scrap. To this end the States; defendant quotes the opinion of Mr (b) sea-freight space; Advocate-General Roemer in Joined (c) sufficient capacity of machinery for Cases 19/60, 21/60, 2/61 and 3/61, warehousing and unloading in the Fives-Lille-Cail and others v High usual ports of importation; Authority : (d) foreign exchange for French under 'The Caisse de Bruxelles and, later, the

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

yard scrap which was offered it. In sup it with imported ferrous scrap. port of this observation reference should (b) The defendant's reasoning, which not be omitted to the case of certain endeavours to deduce from the special Italian undertakings which, after directly powers of the Brussels agencies an purchasing imported ferrous scrap with argument to establish the uncertainty out going through the OCCF and then of the damage suffered, is unfounded in claiming the equalization payment, met fact and in law. In fact the Brussels with a refusal which they were obliged agencies were regularly informed by to accept. their regional offices (in Germany, It would thus be entirely wrong to think France, etc.) of the aggregate amount that the undertakings had a free choice. of the various countries' requirements. Moreover, for each period the tonnage With regard to resources, on the basis of imported ferrous scrap capable of of its periodic inquiries undertaken in qualifying for equalization payments had the large producing markets (USA, maximum limits which could not be North Africa, etc.), the OCCF drew exceeded. up and submitted for the CPFI's ap Thus the defendant concludes that, as proval a general statement of purchases the applicants' certainty of obtaining to be negotiated by the OCCF on the imported ferrous scrap in place of the various markets.

No problem had ever It adverts to the need to open irrevoc been raised in this connexion between able credits, the inconvenience in cases a specific firm and the Brussels agen of dispute with foreign suppliers, pos cies. The contracts concluded with the sible quarrels with ship-owners and the suppliers had in fact always met the possibility of demurrage on unloading. stated requirements; in fact the ques It alleges finally that ferrous scrap from tion of an obligatory distribution, on ship-breakers' yards has always been the High Authority's own initiative, has regarded as of better quality than im thus never been raised. ported ferrous scrap which has on Besides it would have been legally im several occasions given purchasers un possible, in the absence of a declara pleasant surprises. tion of a 'serious shortage' made in The applicants reply as follows : accordance with the mandatory pro (a) With regard to the stocks, they cedure laid down in Article 59 of the

Treaty; it is known that the High not purchased on the internal mar Authority has always been unwilling to ket at prices, 'free works', equal to have recourse to these exceptional meas or higher than those of the ship ures with regard to coal, ferrous scrap yard scrap in dispute; and steel, etc. With regard to the fer (b) that other scrap, treated as imported rous scrap sector, the balance which ferrous scrap, was not purchased was always achieved 'between supply from places equidistant to or further and demand meant that the problem was from the works than those in which not raised. the disputed ferrous scrap from ship- The Italian undertakings to whom breakers' yards originated; equalization payments were refused pur (c) that no purchases were made of chased directly without going through other shipyard scrap originating in the OCCF, thus clearly violating the places equidistant to or further from basic rules of the equalization scheme those in which the disputed scrap which allowed only the Brussels agen

. In order to explain the ceived from 1955 to 1958, contain a defendant's allegation, it should be high proportion of good quality ferrous noted here that in its rejoinder (p. 39) scrap; this involves moreover a marking the defendant pointed out that the up of prices which has never given equalization price was calculated on the rise to dispute. basis of the prices actually prevailing The applicants observe, with regard to within the Common Market, in the the other hazards mentioned by the course of the month of delivery. defendant, that a channel of commerce The defendant indicates that it is in exposed to so many risks would con possession of declarations of the sequently have played only a very small average price 'free works' of all ferrous part in supplying the Community: in scrap bought each month, by each fact deliveries of imported ferrous scrap applicant, on the internal market.

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

It further represents the additional charge finally remarks that owing to lack of time it imposed upon the applicants. was unable to extend the comparison (a) The cost price of the imported to the cases where internal ferrous scrap, ferrous scrap, free on board ship to the acquired at less advantageous rates than port of delivery, is equal to the equaliza shipyard scrap, was purchased at a tion price increased by the cost of tran difference in price lower than the shipment from the ship into the wagon amount of the injury claimed. or barge and by the cost of transport

As to (c). The defendant observes that breakers' yard, is equal to the same the applicant in Case No 51/63 (Forges equalization price, increased by 2 d'Hennebont) accepted, without request dollars—to take account of the absence ing the 'transport parity', considerable of transhipment costs—and by the cost tonnages of ferrous scrap from the same of transport from the ship-breaker's ship-breaking yards as those which yard to the consumers' factory. supplied the scrap in dispute, and that The difference between the cost price this took place every month without of shipyard scrap and that of imported exception from February 1955 to ferrous scrap is thus equal to the December 1958. difference between the cost of trans

As to (e). The defendant alleges transport rates prevailing at each parti (Schedule 50 to the reply) that the cular period. applicant in Case No 51/63 (Forges Applying this method of calculation d'Hennebont) accepted the imported to every case in question, each of the ferrous scrap which it purchased in applicants gives the figures for the cost 1956 at exactly the same ports as those of transporting the disputed shipyard in which the disputed shipyard scrap scrap, from which it subtracts the emanated. estimated figures arrived at, taking

USINES DE LA PROVIDENCE v HIGH AUTHORITY

port costs of an equivalent tonnage of works: according to this method, the imported ferrous scrap from the usual difference constitutes the amount of port of importation to the consumer's the damage.

Case 1 2

Tonnage of ship­ Cost of transport yard scrap purchased from the breaker's

(metric tons) yard to the works (New French Francs)

(1) 29/63 Providence 11 108 285 652.15 (2) 31/63 Maubeuge 174 4 687.42 (3) 36/63 Saulnes et Gorcy 3 160 104 095.81 (4) 39/63 Firminy 7 172 159 389.32 (5) 40/63 Pompey 590 17 950.37 (6) 41/63 Beautor 542 9 229.90 (7) 42/63 Rouen 6 265 89 554.79 (8) 43/63 Saint-Jacques 1 738 56 274.91 (9) 44/63 Châtillon 6 857 165 951.22 (10) 45/63 Porter-France 770 17 519.45 (11) 46/63 Union des Consommateurs 246 7 839.08 (12) 47/63 Fives-Lille-Cail 5 075 121 724.06 (13) 50/63 Usinor 13 905 355 647.47 (14) 51/63 Hennebont 3 146 44 728.85

for the tonnages of shipyard scrap, expressly laid down that it was in­ the subject of the application; admissible to identify the damage sus­ — The settlement of the CPFI, through tained with the amount of the 'transport the Union des Consommateurs de parity' promised or paid (Rec. 1961, Ferraille of the sums with which the p. 592). Consequently the applicants OCCF's commitments were con­ have quite failed to establish that 'the cerned; purchase of shipyard scrap in respect — The applicants' costs for the trans­ of which no transport parity grant is port of the tonnages of scrap in dis­ available would have been ... more pute from the ship-breakers' yards expensive than simply purchasing to the works; imported ferrous scrap' (Rec. 1961, p. — The costs which the applicants would 593) or how much more expensive it have had to bear for the transport would have been. of a tonnage of imported ferrous (b) The aforementioned calculations scrap equivalent to the disputed have been prepared on the basis of tonnage of shipyard scrap, from the figures which have not been proved and, port of importation to the works; although the applicants have declared in this connexion, each of the appli­ that they are able to supply proof of cants designates, as the usual port them, they have at any rate failed to do of importation, the port or ports so.

USINES DE LA PROVIDENCE v HIGH AUTHORITY

plete, since the Brussels agencies only actual costs of transhipment, the under­ paid the transhipment costs during the takings, for their part, could thus only period when Decision No 34/56 conform to a practice not of their mak­ (Official Journal, 1956, p. 382) was in ing but established by the Community force. agencies. Since, in the instances quoted, the costs (c) The applicants find that as a con­ of unloading the imported ferrous scrap, sequence of the defendant's objections not reimbursed through equalization, the problem is presented to them in covered the entire amounts of the an entirely different light. The High 'transport parity grants' claimed, and Authority considers that, in comparing even exceeded them, the defendant the prices 'free works' of the shipyard deduces from this that the same situa­ scrap in dispute and of the imported tion must have obtained in the other ferrous scrap, it is important to insert, periods in respect of which it does not instead of the 'lump-sum of 2 dollars', have any documents, since, during the amount of the actual costs of tran­ these periods, the transhipment costs shipment. The question of choice of the were paid by the consumers of imported port of importation is consequently ferrous scrap. raised. In the method of calculation The defendant thus considers that it adopted in the applications, this choice has at all events shown the inaccuracy made no difference, since the rate of 2 of the calculations put forward by me dollars had been adopted uniformly for applicants. all the ports of importation. Under the The applicants reply as follows: new method of calculation required as (a) With regard to the documentary a result of the defendant's objection, evidence, they allege that the abundance the port to be selected, for the compari­ and diversity of the documents to be son to be valid, must be the one most collected made it impossible to gather frequently used by each of the appli­ them by the date when the applications cants.

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

The of the cases had any damage been defendant also states that the applicants suffered since it only has some of the often choose a port through which they necessary documents. have received no scrap for the year It states that damage has been proved in the course of which they allege in none of the cases. It considers that damage as regards shipyard scrap (see all the applicants obtained their ship Schedules 17, 22A and 24 to the yard scrap at 'free works' prices equal reply). to or less than the average prices of Finally, in Schedules 8, 13, 26, 34, 41 ferrous scrap which they bought as a and 49 to the rejoinder, the defendant general rule. sets out a series of errors or omissions The defendant first of all puts forward which it has found in Schedules 1 to a general argument covering all the 21A to the reply, which are the tables

cants' evidence give the details of the stevedorage costs etc., together with the total cost per 1. Choice of the port of importation— metric ton. Schedule 37 to the reply At the outset, the defendant observes forms the yearly summary of the ton that in their reply all the applicants— nages of imported ferrous scrap un with the exception of the applicant in loaded in each of the ports. Schedules Case No 50/63, Forges d'Hennebont— 38 and 39 to the reply are the sum endeavour to prove the damage caused maries by port and by year of the to them on the basis of ports other arithmetical average of the net costs than those proposed to them by the per metric ton, in dollars (Schedule 38) Union de Consommateurs de Ferrailles and in old French francs (Schedule de France (the French Association of 39). Ferrous Scrap Consumers) (UCFF) The defendant states that Schedule 45 when the contracts were concluded, or to 64A to the reply which, according indeed other than those which they to the applicants, are 'the statements of mentioned in their applications. the Groupement d'Importation de Pro In Schedules 1 and 22A to the reply, duits Sidérurgiques (GIPS) (Iron and the applicants choose a 'main port of Steel Products Import Association)

showing, for the tonnages of ferrous of these allowances can be deducted, scrap imported by the applicants, the and the defendant has made this port used, the costs of unloading etc. correction in the schedules to the at the port and the costs of transport rejoinder submitted separately. from the port to the works', only cover 3. Choice of the method of transport a minute proportion of the ships featur from the port to the factory.—The ed in Schedules 23 to 36 to the reply. defendant alleges mat in their compari These latter schedules are used to son the applicants on the one hand ascertain the averages featured in keep strictly to the means of transport Schedules 38 and 39 to the reply, ing the shipyard scrap which they which are used in their turn to as actually used, whereas, on the other certain the damage to all the applicants. hand, for imported ferrous scrap nine The defendant then alleges that each of the applicants systematically choose of the applicants employs in his own the means of internal transport (water particular case the costs of unloading or rail) more favourable to them.

It by port. In its opinion, the method of tries to prove that the cost of trans weighted averages is required, and in porting imported ferrous scrap from the schedules to the rejoinder (sche the port of Rouen to the works is less dules submitted separately) it shows the than those from the ship-breaker's yard comparison between the weighted and to the works. In fact, the applicant had the arithmetical averages. the scrap from the ship-breaker's yard The defendant moreover sets out (see in Petit-Quevilly sent for preparation schedules to the rejoinder submitted and subsequently returned to the works. separately) a series of arithmetical Since according to the contract the errors and errors in the exchange pari shipyard scrap in question was of the ties in Schedules 23 to 36 to the reply. same quality as the imported ferrous Finally the defendant notes that in scrap, the latter must also have made Schedules 23 to 36 to the reply the the double journey, breaking bulk, applicants deducted from the cost of necessitated by preparation. unloading the imported ferrous scrap 4. Calculation of the costs of transport the whole of the dispatch money (un from the port to the works—These cal loading allowance) which was granted culations appear in Schedules 65 to

tion. It follows from this that only half was transported by rail to the works

and the impression is thus given that combine and of necessity multiply all almost all the imported ferrous scrap the abovementioned errors of principle was transported by inland waterway. and of calculation. The defendant says that this was not Moreover, states the defendant, there the case and indicates in the schedules are numerous errors of calculation parti to the rejoinder the means of transport cular to these schedules. These errors used as it emerges from its own docu are set out in the schedules to the ments.

port. In fact the defendant says that the port of Ghent, although the 'trans the applicants do not explain, with port parities' related to Antwerp and regard to the ferrous scrap actually Dunkirk, and although it received more imported, the type and capacity of than 25 % of its imported ferrous scrap wagons employed, and furthermore the through the port of Dunkirk, where the cost of unloading on to the platform costs of unloading were much higher cannot be ascertained from the tariffs. than in Ghent (Schedule 4 to the In the schedules to the rejoinder, the rejoinder). defendant shows the actual costs as they The applicant bases its calculations on emerge from the consignment notes, transport by waterway, although it which often exceed those alleged by regularly used rail transport which cost the applicants. almost double (Schedule 5 to the Finally the defendant points out that rejoinder). in Schedule 96 to the reply the figure 2. Application 31/63 (Fabriques de indicated by the applicant in Case No Fer de Maubeuge)—The alleged damage 42/63 (Hauts Fourneaux de Rouen) relates exclusively to contract 302/DN, for rail transport from the port of Rouen carried out in April 1956.

USINES DE LA PROVIDENCE v HIGH AUTHORITY

Application 41/63 (Beautor)—The costs which it puts forward (Schedule applicant alleges that it has suffered 16 to the rejoinder). damage as regards shipyard scrap cost The applicant accepted imported ferrous ing, free works, less than the average scrap costing, 'free works', more than price of internal ferrous scrap which it the disputed shipyard scrap. received in the same month (Schedule 4. Application 39/63 (Firminy)—The 22 to the rejoinder). applicant alleges that it has suffered The applicant bases its calculations on damage as regards shipyard scrap cost

Application 42/63 (Hauts Fourneaux The applicant bases its calculations on de Rouen)—The applicant alleges that transport by waterway, although its it has sustained damage as regards ship imported ferrous scrap was transported yard scrap costing less, free works, than by means of 597 wagons and 201 barges the average price of internal ferrous (Schedule 19 to the rejoinder). scrap which it received in the same The applicant accepted ferrous scrap month (Schedule 25 to the rejoinder). imported through Ghent and transport The applicant bases its calculations on ed by rail with transport costs three a port through which no ferrous scrap times higher than those indicated by was imported throughout the entire the applicant (see contract 2/BER/1938 duration of the equalization scheme. reproduced in Schedule 19 to the The applicant includes transport costs rejoinder). occasioned by the preparation of ferrous

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

9. Application 44/63 (Forges de sommateurs)—The applicant bases its Châtillon, Commentry et Neuves-Mai calculations on the port of Ghent, al sons)—Schedules 15 and 98 to the re though the 'transport parities' related to ply contain errors and omissions Dunkirk or Antwerp and in 1954, the (Schedules 29 and 30 to the rejoinder). only year in respect of which it alleges The applicant alleges that it has sus that it has sustained damage, all its fer tained damage as regards shipyard scrap rous scrap came through Antwerp costing, free factory, less than the aver (Schedule 37 to the rejoinder). age price of internal ferrous scrap which The applicant bases its calculations on it received in the same month (Schedule transport by waterway, although its im 31 to the rejoinder). ported ferrous scrap was transported by The applicant bases its calculations on means of 75 wagons and 18 barges the port of Ghent, although the 'trans (Schedule 38 to the rejoinder). port parities' related to Dunkirk and 12. Application 47/63 (Fives-Lille-Cail) Antwerp and more than 55 % of its —The applicant bases its calculations on imported ferrous scrap was received the port of Ghent, although the 'trans through Dunkirk and Antwerp port parities' related to Dunkirk and (Schedule 32 to the rejoinder). Antwerp and although it received 24 % The applicant also bases its calculations of its imported ferrous scrap through on transport by waterway, although a the port of Dunkirk where the costs of large percentage of its imported ferrous unloading were much higher than at scrap, especially that leaving from the Ghent. port of Ghent, was transported by rail 13. Application 50/63 (Usinor)— at twice the cost shown by the appli Schedules 24 and 104 to the reply con cant (Schedule 33 to the rejoinder). tain errors and omissions (Schedules 41, The applicant could have used inland 42 and 43 to the rejoinder). waterways to transport its shipyard The applicant alleges that it has sus scrap. tained damage as regards shipyard scrap

Antwerp. Moreover in the course of the kirk and Antwerp and the 'transport years 1955 and 1956, the only years in parities' paid also related to Dunkirk, respect of which it alleges that it has although in 1954 all its imported fer sustained damage, it imported through rous scrap came through Dunkirk and Dunkirk a tonnage double that of the although each year it received a large

tonnage of imported ferrous scrap Using the data contained in Schedule through Dunkirk, with costs of unload 105 to the reply, the defendant has ing and transport distinctly higher than compared the cost price of the disputed in Ghent (Schedules 45 and 46 to the shipyard scrap in the first place with rejoinder). the cost price of all the imported fer The applicant bases its calculations with rous scrap received by the applicant regard to its works at Denain on trans and, in the second place, with the cost port by waterway for the years 1954 price of all the ferrous scrap imported and 1955, although in 1954 its impor in 1956, the first year of importation ted ferrous scrap was transported by and the year following the purchase of means of 194 wagons and 5 barges and the disputed shipyard scrap.

damage out exception higher than the notional expenses put forward by the applicant The applicants allege that since their (Schedules 47 and 48 to the rejoinder). works were nearer to the ports of im The applicant could have had the dis portation than to the ship-breakers' puted shipyard scrap which came from yards they normally had to use impor Saint-Nazaire transported by inland ted ferrous scrap. They consequently waterway. made it a condition of their acceptance 14. Application 51/63 (Forges d'Henne of the disputed shipyard scrap that the bont)—Schedule 22 to the reply con OCCF should give an undertaking that tains errors and omissions (Schedule 49 scrap from such yards, free works, to the rejoinder). would not cost them more than im The applicant bases its calculations on ported ferrous scrap. Thus before the the port of Lorient, although the dam placing of each order the OCCF prom age alleged concerns only the years 1954 ised that the applicants would be com and 1955 and it received no imported pensated for the difference between the ferrous scrap through Lorient before costs of transporting the ferrous scrap

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

1. Nine applicants discontinued their imbursements and the acceptance of applications because they realized that the contracts put forward has not been shipyard scrap, even without the 'trans established. port parity' reimbursement, cost them less than the imported ferrous scrap. The defendant says that it follows from IV — Procedure this that the acceptance of the contracts with regard to the disputed shipyard The statements of the parties were pre scrap was not, as the applicants allege, sented in the proper form and within conditional on the certainty of paying the prescribed time, and the procedure a price corresponding to that of im followed the normal course. ported ferrous scrap, and that it is by no means established that without this Cases 29 to 51/63 were joined for the certainty the applicants would have re purposes of the procedure and judg frained from concluding these con ment, by order of the Court dated 12

2. The defendant goes on to observe preliminary report of the Judge-Rappor that in the reply two undertakings teur and the Advocate-General, the (Providence and Usinor) claim compen Court decided to open the oral pro sation of 430 066.76 new French francs cedure without any preparatory in and consequently consider that they quiry. have suffered damage to this extent, al On 6 March 1964, the applicants lodged though the 'transport parity' reimburse a note, with tables annexed thereto, ment (the amount of their claim in the correcting as follows the amount of the applications) only amounted to alleged damage, taking account of the 411 802.26 new French francs. observations submitted by the defendant The defendant says that comparison of in its rejoinder:

On 20 April 1964 the defendant lodged By an order of 6 October 1964, the its reply to the notes of 11 and 14 Court decided to appoint an expert April 1964. whose task it would be to reconcile the The second hearing in open court was parties and, failing that, to deliver a held on 21 April 1964. Mr Advocate- reasoned report on the difficulties divid­ General Lagrange delivered his opinion ing the parties and to specify the com­ at the hearing on 12 March 1964. ponents and the sum of the possible

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

Grounds of judgment

A — Admissibility

1. The defendant argues that in their applications the applicants did not produce the figures on which they based their calculations of the amount of the damage allegedly suffered and that therefore they did not comply with the requirements of Article 38 of the Rules of Procedure. The applicants reply that it was not possible for them to produce their documentary evidence before the lodging of their reply, since the figures varied considerably from one claim to another and also because of the abundance of the various docu­ ments which had to be collected.

This first objection of inadmissibility must be rejected, and the explanation given by the applicants must be considered as acceptable. Moreover, the absence of the figures in the applications cannot have put the defendant at

USINES DE LA PROVIDENCE v HIGH AUTHORITY

any disadvantage, since it has been able to discuss the figures produced by the applicants in their reply, both in its rejoinder and during the oral procedure.

The abovementioned allegation on the part of the defendant must be con­ sidered as admissible. Its argument is in fact merely that, in order to cal­ culate any damage which the applicant may have suffered, it is necessary to establish with accuracy all the advantages and all the disadvantages which would have arisen if imported ferrous scrap had been substituted for the ship­ yard scrap which was in fact consumed.

4. Therefore the applications are admissible.

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

B — The substance of the cases

In examining the question whether the giving of these promises is attribut­ able to a wrongful act or omission on the part of the defendant for which it may be held liable under Article 40 of the Treaty, a distinction should be made between the periods before and after Decision No 13/58. By this decision the High Authority took over the administration of the equalization scheme.

As regards the period prior to Decision No 13/58, Decision No 14/55 dele­ gated the administration of the financial arrangements to the OCCF and to the CPFI 'subject to the responsibility of the High Authority'. By virtue of these words the said authorities were placed under the supervision of the High Authority, and the latter was made responsible for an appropriate supervision of the scheme. This system was intended to give a certain amount of autonomy to the OCCF and to the CPFI, and the applicant under-

USINES DE LA PROVIDENCE v HIGH AUTHORITY

takings were not unacquainted with the administration of these two bodies. The system thus cannot be considered as one in which responsibility was transferred absolutely and automatically to the said bodies, but as an arrange­ ment requiring the High Authority to exercise reasonable supervision.

It follows from these considerations that, both as regards the period before and the period after the Decision No 13/58, the promises to grant transport parities which were given from 1 January 1957 onwards are attributable to wrongful acts or omissions on the part of the High Authority of a nature such as to make it responsible for them. Therefore the High Authority must be held accountable for damage arising out of the deliveries of shipyard scrap on orders placed as from that date.

2. The objections of a general nature raised by the defendant

(a) The defendant argues that the alleged damage cannot be assessed.

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

When it is necessary to consider a situation as it would have been if there had been no wrongful act or omission, the Court must, whilst insisting that all available evidence be produced, accept realistic approximations, such as averages which have been established by means of comparisons.

(b) The defendant alleges that the undertakings were not free to choose at will between shipyard scrap and scrap exported to the Community, and could not therefore be sure of obtaining the latter instead of the former. It is further asserted that the CPFI had the power to determine the quantities of ferrous scrap accepted for equalization, and in particular to put shipyard scrap in a privileged position in this respect.

(d) Finally the defendant objects that when consumers placed their orders for imported ferrous scrap they did not know what the final cost of these orders would be, because the equalization price was calculated on the basis of the prices actually quoted on the Community market during the month when delivery took place. According to the defendant the promise with regard to the transport parity could not, therefore, have been the decisive factor, as the applicants allege, in their choice between shipyard scrap and imported ferrous scrap. The defendant says that the undertakings' uncertainty as to the final cost of their orders for ferrous scrap is confirmed by the fact that the appli­ cants in Cases 29/63 (Providence) and 50/63 (Usinor) each claimed in their reply damage amounting to FF 211 264.14 and FF 218 802.62 respectively, although the sums which they received in respect of the transport parity grant were not more than FF 200 369.71 and FF 211 432.55. According to the defendant this calculation made by the applicants shows that the trans­ port parity grant was not a compensation for the loss which these under­ takings suffered because of the preference given to shipyard scrap over im­ ported ferrous scrap.

USINES DE LA PROVIDENCE v HIGH AUTHORITY

The expert appointed by the Court, in performing the task entrusted to him, has attempted to decide how much weight should be given both in qualitative and quantitative terms to the various supporting documents put in evidence. In his opinion the documents produced are sufficiently conclusive, both quali­ tatively and quantitatively. He also thinks that they constitute a reliable basis for determining the level of transport costs by rail and by waterway which were in fact borne by the applicant undertakings for the carriage of ferrous scrap originating in third countries during the years when they used the ship­ yard scrap in dispute in these cases.

In reconstructing the position as it would have been if the applicants could have freely chosen to use imported ferrous scrap, the expert has taken into account the ports which were in fact used, including the minor ports, and this has led him to make alterations to the applicants' calculations. The de­ fendant has made the observation, as regards the transport by rail of shipyard

JUDGMENT OF 9. 12. 1965 — JOINED CASES 29, 31, 36, 39-47, 50 and 51/63

scrap, that the applicants had used the most expensive form of transport, but the expert has rightly pointed out that since the CPFI had approved the provision for this means of transport in contract, the applicants have done no more than keep within the bounds of what was agreed. The expert has also made judicious use of calculations involving weighted averages for working out the transport costs. He has examined the transhipment charges applied in the ports, and this has led him to approve in general terms the figures put forward by the applicants.

It is necessary to take this objection into account in assessing the damage suffered. It is indeed undeniable that during the period at issue the under­ takings contributing to the equalization scheme would have had to bear an increased charge because of the additional purchase of imported ferrous scrap instead of shipyard scrap. During the hearing on 28 September 1965 the applicants argued, but to no purpose, that the figures put forward by the defendant were based on the total tonnage of imported ferrous scrap which would have been consumed instead of the shipyard scrap which was in fact consumed, and that they should not be placed at a disadvantage because of the joinder of their applications. In the Court's opinion the cal­ culation of the whole of the quantities of imported ferrous scrap which would have been consumed by the applicants in place of the shipyard scrap is to be explained, not by the joinder of the applications, but by the structure of the equalization scheme, the underlying proposition for which was the inter­ dependence of all the undertakings involved.

For the assessment of the damage allegedly suffered by the applicants, it is necessary to take account of the factors considered relevant by the expert, with the corrections resulting from the present judgment. In particular the undertakings whose position has been adversely affected have produced suffi­ ciently persuasive documentary evidence to prove the costs relating to the imported scrap. As has been said before, the assessment cannot be based on the whole of the ferrous scrap taken into consideration by the expert, but only on the deliveries of ferrous scrap made to each of the applicants in respect of orders placed after 31 December 1956. Therefore in order to assess any damage

by way of preliminary judgment, and without prejudice to any of the rights of the parties:

1. Requires the parties to produce to the Court, within three months from the date when this judgment is delivered, the figures of any agreed damages; 2. Requires the parties in default of agreement to lodge with the Court, within the same period of three months, submissions con­ taining their separate figures; 3. Reserves the costs.

Hammes Delvaux Donner

Trabucchi Lecourt

Delivered in open court in Luxembourg on 9 December 1965.

A. Van Houtte Ch. L. Hammes Registrar President