C-53/63

JUDGMENT OF THE COURT 5 DECEMBER 1963­

Lemmerz-Werke GmbH, Gußstahlwerk Carl Bönnhoff and Others 2 v High Authority of the European Coal and Steel Community

Joined Cases 53 and 54/63

Summary

1. Measures adopted by institutions of the Community—Decisions of the High Authority—Constituent elements

(ECSC Treaty, Article 14)

(1) 53/63 Lemmerz-Werke GMBH­, Königswinter (Rheinland), represented by its manager Paul Lemmerz,

(2) 54/63 (a) GUßSTAHLWERK CARL BÖNNHOFF Kommanditgesellschaft, Wetter (Ruhr), represented by its partners, Hermann Carl

Bönnhoff, Horst Pegan and Waldemar Bönnhoff,

(b) Edelstahlwerke Ed. Dörrenberg Sohne Kommanditgesell­ schaft, Ründeroth (Rheinland), represented by its partner Oskar Dörrenberg,

(c) Stahlwerk Mannheim-AG Mannheim-Rheinau, represented by its directors, Werner Esser and Ludwig Schreiner,

1 — Language of the Case: German. 2 — CMLR.

Application for annulment of:

1. Certain parts of Decision No 7/63 of the High Authority of 3 April 1963 (Official Journal of the European Communities of 6 April 1963 pp. 1901 et sea.):

2. Certain parts of the request made to the applicants on 8 April 1963 for payment of contributions to the Imported Ferrous Scrap Equalization

Scheme;

THE COURT

composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi (Presidents of Chambers), L. Delvaux, R. Rossi, R. Lecourt and W. Strauß (Judge-Rapporteur), Judges,

ment). A — Case 53/63 z. The question arose as to the date 1. The applicant manufactures bicycle from which it pay levies to the should

wheels and rims. To provide for its Imported Ferrous-Scrap Equalization

LEMMERZ-WERKE v HIGH AUTHORITY

Scheme (set up by the High Authority for the period April 1954 to March in 1954 on the basis of Article 53 of the 1959 inclusive.

Treaty establishing the ECSC) for the In accordance with this Decision and

scrap purchased by it. By a unanimous subject to the reservations set out

Decision; the High Authority opposes 2/57 (administration of the Imported this claim. Ferrous Equalization Fund, Scrap 3. On 3 April 1963 by Decision No is based Brussels) while the second on

7/63(Official Journal of the European Decision No 16/58 (administration of

Communities, pp 1091/63 et seq.) the the Luxembourg fund). An explanatory High Authority altered the basis for note is attached.

calculation of the equalization levy. The purpose of the statement is to Article 6 of the Decision provides that adjust the state of your account as 'a complete statement of account will be closely as possible to the final position.

sent to each undertaking subject to the Subsequent amendments may neverthe­

equalization scheme if the balance less be made once certain outstanding . . .;

made the Article of the banks listed in the above Decision No 13/58. as well as other latest.' . .' bv 31 Mav 1963 at the amendments 'now make it both possible The sum determined in this way does and necessary to draw up fresh state­

not take into account the exemption ments of account'.

4. On 8 April 1963 the Directorate- claimed by the applicant (see paragraph 2 above") General for Steel, Marketing Division, The explanatory note referred to in of the High Authority sent to the appli­

the letter states, inter alia: cant a registered letter (with form of 'Undertakings should, therefore, after acknowledgment of receipt) signed by their statements of the Director-General, Rollman, and examining another Director, Peco, which sta ed: account, send to the Regional Office

'Decision No 7/63 of the High Author­ of their country, to the CPFI, Brussels, or to the High Author­ ity published in the Official Journal of . . .

the European Communities of 6 April ity, their observations on any questions arising, and upon which the 1963 fixes the revised contribution rates High Authority has not already given for the equalization scheme for imported opinion.'

'that the demand for payment sent tions for the period prior to 1 February High 8 April 1957 (the date upon which Decision by the Authority on

1963 does not constitute a formal No 2/57 entered into force). The repre­

decision within the of sentative of the High Authority raised meaning Article 15 Treaty. no objection. of the 4. During the summer and autumn or In cases where under takings do not

agree with the balance shown on the 1961, the High Authority requested the before 31 applicants to make a declaration, suppor­ statement of account May 1963, the High Authority will take ted by documentary evidence, of their

individual reasoned and enforceable purchases scrap for the period from of

1 April 1954 to 31 January 1957. The decisions, based on Article 92 of the Treaty. applicants complied with this request,

6. On 15 II — Conclusions of the May 1963, the applicant

instituted parties the present proceedings.

B — Case 54/63 1. The applicant in Case 53/63 claims

1. The applicants are small and that the Court should:

medium-sized undertakings. Only a '(1) Annul Decision No 7/63 of the

relatively small proportion of their pro­ High Authority of 3 April 1963, duction (ingot castings) comes within published in the Official Journal of the jurisdiction of the ECSC. For this the European Communities, pp reason the defendant was originally of 1093/63 et seq., in so far as it the opinion that the applicants would fails to take into account the

ings. account the resolution of 8 May 3. On 8 May 1957, the Board or the 1957 referred to at (1) above; CPFI unanimously decided to grant the (3) Order the defendant to pay the action.'

applicants and a certain number of costs of the

LEMMERZ-WERKE v HIGH AUTHORITY

2. The conclusions of the applicants in is restricted to exemptions granted only Case 54/63 are identical. to specific individual firms. 3. The defendant contends in both During the oral proceedings the appli­

cases that the Court should: cants stated in answer to a question

'rule on the preliminary objection, that they challenged Decision No 7/63 in accordance with Article 91 (1) of 'only in so far as it is an individual the Rules of Procedure, that the Decision', and independently of the con­

view of the

(a) As regards Decision No 7/63 the law is binding on the Court. defendant's Legal Adviser, Mr van der The defendant replies: Esch, explained to representatives of A — On the first head of the con­ the applicants during a conversation on 3 1963 that Decision clusions May the contain­

ed a revocation of the CPFI resolutions The claim is inadmissible. Decision No of 8 May 1957. The defendant appar­ 7/63 is a general decision and does not

ently bases its orders for payment on contain a revocation of any previous

the same view, since it expressly refers resolutions in favour of the appli­

to the said resolution. It is true that cants.

is not as such divested of its legal those bodies as it considers unjustified.

character. They maintain further that Moreover anything said during the

if there is a revocation it refers only conversation in question is not relevant, to a small number of undertakings since the defendant cannot be bound by known to the defendant by name, and statements of this kind (cf. also at 2,

JUDGMENT OF 5. 12. 1963 — JOINED CASES 53 AND 54/63

below, where the defendant's observa­ decision immediately in each case, it tions are recorded). would be setting in motion unnecessarily a cumbersome procedure contrary to B — On the second head of the con­

the principles of good administration. clusions (f) The fact that the orders for payment This head of the conclusions is also are based on Decision No 7/63 means

of the orders pay­ any significance. can explained

ment makes it clear that the latter do by reference to the rules laid down in not constitute the final word of the Decision No 7/61 (Official Journal of defendant, but give undertakings the the European Communities, p. 653/61), opportunity to examine the statements according to which interest is not

of account and if necessary to submit charged on arrears, but the amount due objections to the High Authority — increases automatically according to the perhaps successfully. length of time which elapses before (b) The statements of account do not payment is made. That is why the

satisfy the requirements for decisions of amounts due cannot be fixed absolutely, the High Authority laid down by but only by reference to a given

Decision No 22/60. Admittedly the date. Court has not previously been given the (h) Were the orders for payment to be opportunity of determining the scope regarded as decisions, the consequences of this Decision. But the great majority would be prejudicial to all the parties

of undertakings which received orders concerned. Since the demands naturally for payment, interpreting the legal do not contain a statement of reasons, situation correctly, acted 'as the High they would have to be declared invalid Authority had expected', that is to say without further examination of the infring­ that they either paid or raised objec­ merits on the ground that they tions, which are at present being dealt ed an essential procedural requirement, with in administrative proceedings. with the result that the defendant

LEMMERZ-WERKE v HIGH AUTHORITY

disadvantage to the undertakings, since with form of acknowledgment of

they could not in any case be compelled receipt; to make payment until the adoption by state­ they contained not merely a —

the defendant of an enforceable decision ment of account, but a demand for which could lawfully be contested in an Court. payment accompanied by a time-limit application to the therefor; The view of the law refuted by the High Authority would also frustrate the 'explanatory note'

— the precludes any purpose Decision No 22/60, which of objectionsrelating to questions 'upon is to establish legal certainty for all which the High Authority has already

parties concerned. given an opinion'; during the con­

2. Costs to consider Decision No 22/60; con­

sequently the applicants had no The applicants consider that even if the means of knowing whether the Court application were to be dismissed as would uphold its earlier statement

inadmissible, the High Authority ought that there is always a decision if the to bear the costs of the proceedings, notification in question constitutes—

since it caused them to be instituted. as in this instance—in practice, 'the final administration'

(a; Article 6 of Decision No 7/63, word of the

taken in conjunction with the contested (Rec. 1958-59); letters of 8 April 1963 which quote that — the applicants could not be sure Decision, creates the impression that an whether or not the Court would individual decision is concerned. This take into account the letter from Mr Article states that 'a complete statement

stances created the impression that a during the conversation between the

decision parties'

was concerned: representatives, the assertions

—

they were sent by registered post made by the applicants are not

JUDGMENT OF 5. 12. 1963 — JOINED CASES 53 AND 54/63

The oral procedure relating to the pre­

IV — Procedure liminary objections took place on 9 October 1963 and on 16 October 1963 The procedure followed the normal the Advocate-General presented his course. By Order of the President of the opinion.

Grounds of Judgment

It is established that on 8 April 1963 the relevant departments of the High

Authority sent to the applicant undertakings registered letters with forms of acknowledgement of receipt. The letters stated that the said undertakings

were requested to make, by 31 May 1963 at the latest, payments by way of contribution to the imported ferrous scrap equalization scheme.

The objection of inadmissibility is well-founded.

In fact the conclusions put forward by the applicants are devoid both of

purpose and of legal interest, as Decision No 7/63 did not withdraw any exemptions which had previously been granted to certain undertakings.

LEMMERZ-WERKE v HIGH AUTHORITY

It follows both from the headings of sections II and III of its statement of

reasons, and from the wording of the operative part, that the Decision refers

The second head of the applications

In support of its 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 under­

takings have 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 'shall decisions which 'shall be binding in their entirety'. take'

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

JUDGMENT OF 5. 12. 1963 — JOINED CASES 53 AND 54/63

fundamental conditions underlying the concept of a decision within the

meaning 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

however, they must show that they are intended to have legal effects entirety'

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 letters in dispute, they cannot be considered as decisions within the meaning of the Treaty. In fact, there is nothing to indicate that the High Authority, sitting as a body, discussed and resolved upon them. The applicants were merely 'requested'

'explanatory note'

to make payment, and, according to the enclosed

with the contested letters, to submit any observations they might have.

Consequently the conclusions put forward under the second head of the

Under Article 69 (3) of the Rules of Procedure moreover, it is open to the Court to a successful party to pay in whole or in part the costs order even

incurred by the opposite party. The peremptory tone of the letters involved in the present 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 applicants'

minds about the nature of the said letters.

The High Authority, having by its own conduct induced the applicants to institute proceedings in order to safeguard their rights, must bear the greater part of the costs. It is appropriate that the High Authority should bear three- applicants'

quarters of the costs.

On those grounds,

THE COURT

her by:

I. Dismisses the applications as being inadmissible; 2. Orders the High Authority of the European Coal and Steel Commu­

nity to bear its own costs and three-quarters of the costs of the

applicants and orders the applicants to bear one-quarter of their own costs.

Dormer Hammes Trabucchi