C-55/63

58/63 — SIDERURGICA SARDA­ , having its registered office in Cagliari, represented by its sole director, Giulio Stefano.

59/63 — SIDERAL­ , a company limited by shares, having its registered office at S. Zeno Naviglio (Brescia), represented by its director, Bruno Zanardini,

61/63 —

I.L.F.O., having its registered office in Odolo (Brescia), represented by Dante Donini, Chairman of the Board of Directors,

62/63 —

O.R.I. MARTIN­ , having its registered office in Brescia, represented

v

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY­ , rep­

by Italo Telchini, acting as Agent, assisted in Case 57/63 by Rodolfo resented

De Nova, Dean of the Faculty of Law at the University of Pavia, and in the Luxem­ remaining cases by Feliciano Benvenuti, with an address for service in bourg at 2 place de Metz, defendant,

MODENA v HIGH AUTHORITY

Ap licaton:

composed of: A. M. Donner, President; Ch. L. Hammes and A. Trabucchi, Presidents of Chambers, L. Delvaux, R. Rossi (Rapporteur), R. Lecourt

and W. Strauß, Judges,

Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

sent to each of the applicants a letter in visions of Article 6 of Decision No which it referred to Decision No 7/63 7/63, it called upon each of the

which 'determines the contributions addressees to pay the equalization payable under Decisions Nos 22/54, contributions based on the statement

14/55, 26/55, 3/56, 2/57 and 16/58 . . . of account in question. in respect of the equalization of im­ T he letter in question states the amount

ported ferrous scrap and scrap treated payable by each addressee. as such . . .' and in which The present applications are made

—

it enclosed a complete statement of against Decision No 7/63 and the state­

Decision No 7/63 of the High Autho­ covered, and also all the figures

rity of the ECSC communicated by upon which Decision No 7/63 is based.' letter of 8 April 1963 and the

implementing measures which it ap­ The other applicants submitted the follow­ plies ; ing conclusions: — declare that the calculation of the

of ferrous amount scrap in respect of 'A — In the first place:

which the applicant undertaking (a) To declare to be illegal and to

must pay a levy and on which the annul Decision No 7/63 and the

Alternatively —

order the High Authority to pay the (a) To declare that the mistakes of law fact costs.'

and and the approximate,

During the procedure this applicant inadequate and incomplete compu­

asked the Court to order the following tations, which it is the aim of

measures of inquiry: Decision No 7/63 to rectify, consti­

(c) To hear, if necessary, the evidence the second paragraph of Article 39; of the following persons: Luciano To order the High Authority to pay the Gerini, of 24 Piazza Stazione, costs; subject to the right to apply for declara­ be Bordighera, that experts'

to verify the an order reports ob­

tions in annex No 2; Augusto Cara­ tained.'

malli of 93 Via Bagnoli, Pozzuoli, Alt the applicants reserve the right to

Emilio Scarpellino, of 101 Via contest by a separate application the

Napoli, Pozzuoli, and Vitale Jovino, individual decision by which the High of 5 Via Pisciarelli, Pozzuoli, to Authority might decide to confirm and verify the declarations in the legal ac­ make enforceable the statement of

should: and effect', but adds that any discussion

(a) In Case 57/ 63 of this point is irrelevant, since it is only — 'dismiss the application for produc­ necessary know whether or not the to

tion of evidence and declare that the letter in question is a decision against application brought against the letter which proceedings can be instituted. of 8 April 1963 is inadmissible; In the other cases the High Authority — declare the application made against observes in addition that the letter of

General Decision No 7/63 to be 8 April 1963: inadmissible dis­ or, alternatively, does not comply with the formal —

miss the said application, and in conditions laid down by Decision either event order the applicant to No 22/60 of 7 September 1960, bear the costs;'

— was not notified in accordance with

ground that the applicants have no letter of 8 April 1963 cannot be con­

existing legal interest in such claims; sidered as a decision in the formal sense. —

in any event dismiss ail the applica­ They call attention however to the fact tions made by the applicant as being that this letter enlarges and explains an in substance unfounded; individual decision contained, inter alia, — order the applicant companies to in Decision No 7/63. The applicant in Case 57/63 states on costs.'

pay the this point that the

said letter sets out essential facts which III — Submissions and argu­ are part of the logical construction of the ments of the parties contested Decision and that it should

therefore have been explained in the

1. The letter of 8 April 1963 The applicants in the other cases sub­

mit in addition to this argument that, The High Authority maintains that the even if it is assumed that a formal letter in question does not have the decision is necessary in order to establish formal attributes of a genuine decision conclusively the damage they have against which it is possible to institute suffered from Decision No 7/63, it is proceedings within the meaning of nevertheless a fact that the Decision

JUDGMENT OF 9.6.1964 — JOINED CASES 55 TO 59/63 AND 61 TO 63/63

referred to above has caused some decision and submits therefore that the

damage and that, for that reason, it application is also inadmissible from the would in any event be justified to refrain point of view of misuse of powers.

from dismissing the application as being In addition the High Authority, in the

apply only to the applicants, so that The High Authority recalls in Case 57/63 the Decision only appears to be an

that misuse of powers is the only ground individual decision because it is of complaint which individual under­ applied to individuals; takings can plead against a general — because in this case the situation is

decision. It notes that, according to the analogous to the one in taxation laws,

applicants, Decision No 7/63 amounts which always retain the character of

to a typical example of misuse of powers general and abstract provisions even

since it is on the face of it a general though the tax debt derives directly decision but in substance an individual from them and the specific tax

(ab­ grounds pleaded by the applicants, and essential procedural requirement

sometimes put forward in quite an sence of reasons) and infringement of the arbitrary way as a form of misuse of law; grounds which cannot be pleaded

powers, are inadmissible. as such by individuals in respect of a

After putting forward this premise the general decision such as the one which is High Authority also denies that this challenged.

case discloses a misuse of powers, main­ T he applicant in Case 57/63 maintains on

tains that as a result the contested the other hand that the ground of mis­

sufficient to render the measure in founded. In order to restrict its question null and void, but moreover arguments to the preliminary issue of

imposes a duty to examine the true and admissibility the High Authority actual content of the Decision, the should only have shown that the

latter prevailing over the aspect of form. ground of complaint put forward by Therefore, in such a case, all the grounds the applicants on this point does not of action laid down in Article 33 of the fall within the concept of 'misuse of

Treaty may be pleaded and are in the powers'

auto­ second paragraph of

matically admissible if only so that Article 33 of the Treaty. Had any doubts concerning the legal relation­ such demonstration been given it

form of a general decision. sions as such not onlyand pseudo-

Having said this, the applicant reserves general decisions may be vitiated by a the right to contest any individual misuse of powers affecting individual decision containing the order to pay the undertakings and may therefore be amount mentioned in the letter of contested on this ground by such

8 April 1963 and, in that connexion, to undertakings.

rely on the provisions of Article 36 of the With regard to the second argument —

Treaty in order to contest the legality it is sufficient to comment, still on the of Decision No 7/63 should it be held to question of the issue, preliminary be a general decision. that the theory regarding the mul­

T­ he applicants in the other cases in addition tiple individual nature of Decision make the following further comments: No 7/63 must be accepted, without

general, it should be noted that by The applicants on the other hand submit 'misuse' 'sviamento' of powers or is that it is impossible to exclude the

meant any defect capable of affecting possibility that a failure to state the

the legality of a discretionary decision, reasons upon which an administrative

in view of the fact that it transforms it act is based may amount not only to a

inde­ into a decision different in kind from the misuse of powers but also to an

one it should have been according to the pendent defect of infringement of legal legislative provisions and what Italian provisions.

different credits or debits were deter­ action and that it should therefore be mined and this failure is due to the fact considered as inadmissible for the same that the Decision was in the form of a reasons as the main claim in accordance 'general' 'individual'

and not an de­ with the principle 'accessorium regitur

cision. principale'.

T he applicants argue finally that it must The High Authority states that, as it is notbe forgotten that, according to the impossible to discuss the merits of the Court, a disguised individual decision application in connexion with an objec­

individual de­ less remains nevertheless an tion of inadmissibility, it is even

cision and that, as a result, if the Court possible to discuss the validity of the

annulled when

on the ground of misuse of powers, for the main claim. The claim sub­

being reproduced in proper form as an mitted in this case belongs to the second individual decision but with defects type of claim. It is therefore wrong to different from the one contained in the infer from the objection that the first latter decision which would necessitate a claim is inadmissible that the alternative fresh application. Finally an examina­ claim must also be inadmissible: the

tion of all the grounds for the application admissibility of each claim is determin-

MODENA v HIGH AUTHORITY

ferrous scrap It able according to two entirely separate amount of chargeable.

concept of act or point that a provision when

connected neither with the concept of a the number of those to whom it is general nor of an individual decision, addressed is to all intents and purposes 'abstract' but can be applied to a series of acts or unlimited, when at the time

omissions over a period of time or to it is made it refers to cases not yet

delays decision is 'pre­ simple which exceed the neces­ identified; finally, a

sary and foreseeable time required "in paratory' when it contains, assesses and order to arrive at the decision which has makes provision for consequences arising

to be taken. out of facts to be ascertained in the

reply the wording of the claim for dressed to an class of addressees it 'closed' compensation and also the 'causa peten­ is addressed to a class of addres­

di', since, instead of making this claim sees, in fact, to iron and steel under­

independent of the main claim, they takings, which during the period of

joined it directly to the examination of equalization have used ferrous scrap in the conduct of the High Authority in their furnaces, and whose number and connexion with the carrying out and names could not be unknown to the liquidation of the equalization scheme. authors of the Decision. The individual This new claim is inadmissible because nature of Decision No 7/63 is moreover it was submitted too late. As a result the confirmed by the provisional nature of High Authority maintains the objec­ the results to which it leads, a provisional

tions which it has raised on the inad­ nature mentioned directly or indirectly

missibility of the alternative claim for by the wording of the Decision (Article 5) compensation. as well as by the letters of 8 April 1963

relating to the consumption of ferrous from the interdependence of the various

scrap by the applicant undertakings, amounts chargeable and their effect

data which, although questionable and on the rate of equalization. In these

vague, were taken into account by the circumstances no one can deny that each High Authority in order to calculate the undertaking by reason of the fact that its

JUDGMENT OF 9.6.1964 — JOINED CASES 55 TO 59/63 AND 61 TO 63/63

position influences the position of all the On the other hand it is important to note others is individually referred to by that the letter of 8 April 1963 contained 'data' Decision No 7/63. the forming the basis of the

into consideration by the provisions in declaratory It merely clarifies a one.

question is the result of specific situations result already achieved, from the very

which have already been evaluated and beginning, in Decision No 7/63 and in examined in the case of each of the the figures to the individual relating undertakings referred to: thus the total contributions, and without them the

amount ferrous scrap mentioned in of Decision could not have been taken.

the annexes of the Decision are in fact The applicants submit therefore that

the total consumption of ferrous scrap the contested Decision is in its essence

tory'. Instead of rules for the visions under revenue law lay down a making conduct of iron and steel undertakings rate of tax in abstract form and for the

in the future, it determines the existence future without the legislature's knowing of debits and credits in the case of or being able to know who the tax

undertakings which have acquired fer­ payers will be or still less the basis upon rous scrap in the past and for specific which individual assessments are to be The decision in question is (which it is im­ periods. made explains why therefore retroactive. possible to calculate the amounts pay­

The individual, concrete and retro­ able by each tax payer and the total tax

active nature of Decision No 7/63 is which is likely to be raised until the tax moreover confirmed by the fact that the payers and their tax basis have been between the Deci­ The applicants then point period taking of the ascertained).

sion and the letter of 8 April 1963 is so out that the contested Decision has be­ short that it would have been impossible adopted the opposite procedure

each of the undertakings, containing the already known; facts upon which the calculations refer­ —

assumes that the total amount of

red to above were based, were ready. contributions to be collected in order

MODENA v HIGH AUTHORITY

to conclude the accounting pro­ thors of the measure do not nevertheless

cedures relating to the equalization refer to or know all of them individually.

sortium). This results from the history regard to the limited number of under­

of the origin of the equalization scheme takings subject to the ECSC Treaty, the which was first created by private persons to whom the decisions of the

initiative and obligatory by then made High Authority are addressed can al­

the High Authority for all iron and steel most always be identified when a deci­

undertakings without however changing sion is made. its basic structure. Moreover, the High Authority con­

The applicants conclude their sub­ tinues, it is not possible to interpret the

in category of measures and it must tion scheme and there­ particular after the decisions fixing the date of cessation had fore be held to be a general decision both been taken, all the Decisions relating to as regards its form and its content. In equalization refer to a definite class of fact, contrary to what the applicant has persons and to their individual specific asserted, the Decision in question refers

situations. to situations which have not been In Case 57/63 the High Authority replies clarified and to addressees which have

by observing in particular that in its not been finally ascertained. It certainly opinion, if the definition of the applicant fixes the rates of equalization, but only is applied, a decision would undoubtedly provisionally, because the facts necessary be general if it were of general applica­ for determining the final rate are in tion. Therefore everything would turn process of being collected.

on ascertaining whether the measure T herefore, for example, possible changes

applied to several individual persons or in the determination of assessable scrap 'mentioned'

those at least one by one by charged to each individual undertaking the draftsman, or whether, on the other andconsequently in the chargeable base hand, it refers to a class of persons whose may lead to borderline cases where one description is stated, although the au- debtor is not assessable whereas another

no foundation. check whether the specific facts can

In the other cases the High Authority puts be fitted into these abstract cate­

forward identical arguments and in gories. It should moreover be noted

addition the following arguments: that the contested Decision does not

— The contested Decision is general impose upon undertakings an obli­

because it gation to make There­ varies previous general any payment. Decisions relating to the same subject fore the fact that the Decision is in matter. part retroactive in no way reduces

class; on this point it must not be organization of the departments of

forgotten that all general decisions of the High Authority. the ECSC are notified to a closed

class of addressees because their 2. Infringement of the Treaties or of any is to of law to their applica­ regulate rules relating purpose operations

which are already in progress at the tion, of the decisions introducing the time they are taken. ferrous scrap equalization scheme and

— The general nature of a decision of the principles governing the latter does not involve 'a virtually un­

limited number of be­ The applicants argue that Decision No addressees',

and between the members inter se on the The applicant in Case 57/63 submits in other hand. Therefore it is wrong to addition that it is inadmissible for the infer, as the High Authority would like High Authority to take refuge behind to do, that the final stage of the liquida­ the obligation of professional secrecy, be because informa­ tion may effected 'by successive this privilege covers

but individual deci­ tion on communications between the approximations', sions are necessary to determine speci­ undertakings and the High Authority fically the definite figures upon which but not in this particular case, where

is be­ the drawing up and passing of the final there a multilateral relationship balance sheet and the ascertainment of tween several undertakings and the

the final individual balances be factors relating to each undertaking are may calculated. items which must be used in calculating The High Authority replies that the cal­ the debits and credits of the other under­

culations in Decision No 7/63 are takings. With regard to the principle put

necessarily provisional until the last forward by the High Authority that

participants and, as such, it should have 5. Absence of reasons not only given each an undertaking account of its debits and credits but The applicants argue that Decision No should also have given each of them an 7/63 does not adequately state the data opportunity to ascertain the credits and for the calculations which formed the debits of the other undertakings as well basis of the High Authority's Decision. as the method of calculation adopted to

The tables annexed to the Decision only determine them, having regard to the

contain the totals and not the individual interdependence between the amount of items and, for this reason, they do not credits and debits of one undertaking mention the contribution payable by and those of the others. They submit each of the applicants. It is useless to that such a defect amounts not only to a

argue on this point that it was impossible misuse of powers but also to an infringe­ in practice to state reasons, because ment of the law. there was no reason why each item and The applicant in Case 55/63 in addition

all the factors used for the calculations places greater reliance on certain docu­

should not have been set out, since all ments which it produced with its reply,

of a private company. In this latter case basis for assessment has not yet been it is obvious that each member has the fixed: this situation does not necessarily right to know the financial position of call for a statement of reasons. the others, whereas in the present case Finally in all the cases the High Authority each undertaking subject to the equali­ observes that the equalization rate has zation scheme must itself prove any not in fact been increased by the con­

mistakes which may have been made tested Decision, as the rate in question relating to itself. Apart however from includes, in addition to the various

the obligation of professional secrecy amounts required for the operation of

it must not be forgotten that the High the equalization scheme, the interest

Authority is a public body and as such payable by undertakings which did not its acts are presumed to be in com­ pay it on the dates laid down for that

pliance with the law. purpose. It concludes that in such cir­

factors used in the calculations, which bility with Community rules relating to have been ascertained or evaluated, is publication ofprices inadmissible not only in the case of the

contested Decision but also in the case of The applicants argue that Decision No the individual decisions which will be 7/63, instead of fixing a rate which, even taken, when the time comes, against if only provisional, ought to have been

defaulting undertakings; this is all the based on established facts, subject of

more so because it is not clear how the course to the necessary adjustments, various factors upon which the calcula­ adopted new criteria for sharing the tions and the total results have been equalization charges and claim that this

based could have been brought in change is so substantial that it is not one practice to the notice of the under­ of the factors which could reasonably

takings. have been foreseen by the undertakings In the other cases the High Authority main­ when they determined their prices and tains in addition that, since a general made public the price lists referred to in

found in the tables annexed to Decision both with undertakings which according No 7/63 compared with the tables to the Decision probably have a large annexed to the Decision of 1960, and credit balance and undertakings which, underline the general nature of these at any rate for the time being, have been basis declara­ differences, and the absence of any assessed on the of their

reasons given for certain of the debts. tions. This distortion of equalization,

They therefore reject the charge that which the applicants deplore, is due to they have shown a lack of acumen and the fact that the debits and credits

have not complied with their obliga­ stated in Decision No 7/63 only come

tions under the equalization scheme and into operation so many years after the

conclude their argument by stating that commercial transactions to which they they cannot be held in any way res­ refer and in a new market situation. ponsible for the increase in the charges On this point too the applicant in Case for which they are now liable. 57/63 submits that it is the victim of a

reasons why the new rate is not to be which have made proper declarations regarded as a substantial increase, sub­ and have discharged their liabilities mits that the words 'new criteria for punctually.

sharing the charges', upon which the Moreover the High Authority goes on to contrary argument is based, is due to a say, in Case 57/63, that the value of the mistake of translation in the Italian text equalization scheme exists inde­

and should be amended to read 'new pendently of the trading conditions in calculations'. which it operates and that in a system

It disputes, particularly in Case 57/63, imposed, like this one, as a matter of

that the applicant adopted a price and public policy the persons subject thereto production policy different from the one cannot put forward their own wishes

which it would have adopted if it had and interests in support of the argu­

T he applicants state that the increase of computation adopted by the High Au­ equalization charges Deci- arising out of thority, explain by means of a consider-

JUDGMENT OF 9.6.1964 — JOINED CASES 55 TO 59/63 AND 61 TO 63/63

able number of facts and been dis­ technical con­ made when the applicant

siderations, for which they offer to charged the payments it was called

adduce evidence, the reasons why the upon to make. At all events it is clear computation of the contributions of that it is not a valid criticism by the each particular undertaking in Decision undertaking of the administration of No 7/63 should be held to be inaccurate. such a scheme to allege that the High

The applicant in Case No 57/63 states on Authority has not extended its appli­

from ferrous 'own from arisings'

— exempted equalization equalization

scrap actually used in the foundries charges has already been settled by and steelworks originating from other several judgments of the Court. Undertakings or other sectors of the — As the applicant expressly refuses to

same industry: ferrous scrap which, make any application under Article on the contrary, should have been 40 of the Treaty, it is logical to pro­

subject to equalization charges; ceed on the basis that the charges

— included in the statements of pay­ arising out of payments not owed ments made by the equalization fund but not recoverable should be borne amounts which were overpaid by way by all the undertakings subject to

errors in establishing the basis of assess­ this liquidation was carried out with

ment are avoided. considerable delay and resulted in en­

The High Authority then challenges the im­ tirely unforeseeable liabilities being validity of the arguments submitted by posed upon them.

the applicants: arguments which in its 'Subject to the provision of further inconsistent or particulars'

view are to some extent the applicants state the

technically inaccurate. facts upon which their application is for this reason the High Authority in based and those which caused the

any damage. It refers to the arguments and 59/63 were lodged on 22 May 1963 already put forward and deduces from and applications in Cases 61, 62 and

them that the submissions put forward 63/63 on 24 May 1963. by the applicants are not valid and By an order of 18 February 1964 the

moreover goes on to point out that these Court ordered that all the above Cases submissions refer to the conduct of the be joined for the purposes of the written High Authority prior to the adoption of and oral procedures and of the judg­

Decision No 7/63 and that they are not ment.

therefore relevant to the examination of On 5 March 1964 the High Authority the 'subject of the dispute'. its Legal Adviser Italo Fel­ matter appointed

chini, as its Agent in the absence of its IV — Procedure previous Agent Giulio Felchini. The procedure followed the normal

tion of individual decisions undertakings subject to the financial concerning arrangements for the equalization of ferrous scrap and that it can, therefore, be contested by each of the undertakings upon all the grounds laid down by the first paragraph of Article 33 of the ECSC Treaty.

In support of this argument the applicants submit that the contested

Decision is directed to a specific category of addressees, that is, undertakings which utilize ferrous scrap, and that, instead of containing abstract rules for factual situations which may arise in the future, it is solely intended to

regulate facts and situations which have arisen in the past, namely the

purchase of scrap, by a given number of undertakings.

In order to ascertain whether a decision of the High Authority is general or

making a provisional calculation of the equalization rate on the basis of

data which are known and in part still disputed.

For the determination of these factors it relied chiefly on the total consump­

tion of ferrous scrap in the Common Market without taking into account

the amounts actually used by each undertaking.

Therefore, so far as its content is concerned, Decision No 7/63 does not

it, by giving convincing reasons why the adoption of the contested decision is directly prejudicial to its interests. In this case, as the contested Decision affects all the applicants in the same degree, it is impossible to maintain that it directly damages the individual interests of each of them

and that it is vitiated by a misuse of powers 'affecting them'.

It is therefore clear that the misuse of powers has not been made out.

Therefore the present applications are inadmissible in so far as they challenge Decision No 7/63.

MODENA v HIGH AUTHORITY

2. The letters of 8 April 1963

of this claim that, even if the Court were to hold that Decision No 7/63 is

valid, it should find that the High Authority has committed a wrongful act or

omission in the management and liquidation of the ferrous scrap equaliza­ tion scheme.

As has already been stated, the final statement of account of all the credits

and debits of each undertaking subject to the financialhasarrangements

not been drawn up by the High Authority and Decision No 7/63, far yet

For all these reasons the claim for damages fails.

JUDGMENT OF 9.6.1964 — JOINED CASES 55 TO 59/63 AND 61 TO 63/63

Costs

Having regard to the complexity of the questions concerning the admissi­

bility of the applications made against Decision No 7/63, the Court, having regard to the first paragraph of Article 69 (3) of the Rules of Procedure,

adjudges that each party shall bear its own costs.

THE COURT

her by:

1. Dismisses the applications as inadmissible to the extent to which they seek the annulment of Decision No 7/63 and of the letters of 8 April 1963;

2. Dismisses the applications as unfounded to the extent to

which they seek payment of dam ges;

3. Orders each party to bear its own costs.