C-111/63

identify the complaints which the the Council. applicant intends to raise and the 5. A provision which lays down the essence of the arguments invoked in essential procedural requirements for support of them. Cf. paragraph 3, the validity of certain decisions must summary in Joined Cases 19/60, be strictly construed. 21/60, 2/61 and 3/61, Rec. 1961, p. 563. 6. It is of the nature of the equalization

scheme that the limitation period 2. The systematic buying of raw from date when the can only run the materials marks the commencement accounts are finally closed. Cf. of production within the meaning of paragraph 4, summary, Case 108/63, Article 80 of the Treaty if it enabled Rec. 1963, 2-3. pp.

the buyer to start actual production, even if such production on a 7. In the ferrous scrap equalization was

trial basis. scheme the unit of account is not a

currency different from national

3. The High currencies but is merely an account­

ed Cases 42 and 49/59, Rec. 1961, situations created by rules which, if p. 107. they are allowed to continue in force, would confer unjustified benefit on 4. There is no justification for the con­ certain undertakings compared with

clusion that the decisions of the High others and would therefore jeopardize

Authority taken with the unanimous the objectives of the scheme.

In Case 111/63

LEMMERZ-WERKE GMBH of Königswinter (Rhineland), represented by its Managing Director, Paul Lemmerz, and H. Wirtz, Hengeler, Kurth, B. Wirtz and A. Heusch, Advocates at Düsseldorf authorized to act in these proceed-

LEMMERZ-WERKE v HIGH AUTHORITY

defendant,

Application for the annulment of the decision of the High Authority of 6 November 1963 relating to the financial obligations of the applicant under

the equalization scheme for imported ferrous scrap,

THE COURT

composed of: Ch. L. Hammes, President, A. M. Dormer and R. Lecourt, Presidents Strauß (Rappor­ Chambers, L. of Delvaux, A. Trabucchi, W. teur) and R. Monaco, Judges,

Advocate-G neral: K. Roemer Registrar: A. Van Houtte

1956, as it has stated, initially on a Object: Production and sale of steel

JUDGMENT OF 13. 7. 1965 — CASE 111/63

follow­ ingots by independent foundries. meeting of the Board) sent the

... At the 28th meeting of the CPFI ing letter to the CPFI : ... it was decided to obtain a list of 'I have received your minutes of the

. . . steelfoundries producing as ancil­ 32nd meeting of the Board . . . and with

lary products steel ingots, in order to regard to them I refer to item 8 on

(5) On 17 May 1957 the CPFI wrote

This list includes the applicant and of the regional offices to the chairman states that its production of crude steel in particular the following: stating; does not include castings but consists 'Object: Steel ingots produced by exclusively of ingots. foundries (3) According to the minutes of its 32nd Pursuant to the decision taken on 7 meeting, on 8 May 1957, the Board and 8 May 1957 by the Boards of the of the CPFI took the following Office Commun des Consommateurs de decison: Ferraille [the Joint Bureau of Ferrous Item 8 of the agenda: Determination Scrap Consumers] and of the CPFI the of the date from which the independent factories mentioned in our draft letter castings foundries which produce and to Mr Rollman ... will be liable to

sell steel ingots are to be subject to the pay contributions on the corresponding levy in respect of that part of their proportion of bought scrap from 1 bought scrap corresponding to the pro­ February 1957. duction of steel ingots. We shall be grateful if you will inform The Board of the CPFI ... decided the factories in question (with the ex­

that the independent castings foundries ception of those listed below) of this

shall pay the levy on the tonnage of decison:

bought scrap corresponding to their [the list does not include the name or

man consumers of scrap (hereinafter tion fund levy in order to offset the referred to by its German initials increase in the of importation cost

'DSVG'), and of the regional office of By letter of 17 May 1957 the CPFI ...

the CPFI (which also took part in this informs us that:

LEMMERZ-WERKE v HIGH AUTHORITY

"Pursuant to the decisions taken by the (9) On 19 November 1958 the market­

Boards [of the Joint Bureau of Ferrous ing division of the High Authority wrote Scrap Consumers and of the CPFI] on to the CPFI inter alia as follows: 7 and 8 May 1957 the factories men­ 'As decision 8 1957 the of May taken tioned in a letter to the High sent by the Fund relates only to independent Authority shall as from 1 February 1957 steel foundries, the list mentioned by be liable to contributions the DSVG only be based on pay on the can a mis­

By letter of 12 May 1959 the CPFI ment put by Mr forward Lindeboom 1957.' sent the High Authority's request to the in his letter of 16 May DSVG. (8) On 12 June 1958 the Société On 2 June 1961 the DSVG sent a reply Fiduciaire Suisse the High Author­ sent to the CPFI stating that in its opinion ity a report on the checks carried out there had been no mistake and that at the offices of the applicant in the there was no need therefore to make same month; it states in particular: the alteration which had been requested. 'As we have already mentioned, the (10) By letter of 19 July 1961 the Direc­ company which is required to supply torate-General for Steel of the High a statement of productions began to pro­ Authority sent the applicant a statement duce in however it bought fer­ steel July 1956; of the relevant tonnage of

began buy ferrous scrap for to this pur­ rous scrap for the period February 1957 pose in April 1956 ...' to November 1958, stating in addition

(It then reports that the applicant refer­ as follows:

red to the circular letter of 20 May 'According to the circular letter . . .

1957 of the DSVG mentioned in para­ sent to you inadvertently by the DSVG, graph 6 above). . . . you were only to be liable to pay 'As a result the company has not paid the levy from 1 February 1957 As ...

any levy on the purchases of ferrous your company has never produced steel from castings, it cannot in any circumstances scrap made during the period

(11) On 8 April 1963 the appropriate Authority failed to state whether the

department of the High Authority sent error in question was a mistake of law the applicant a demand for payment or of fact or a mistaken assessment of

based on the fact that it should have the situation. Further the reasons are

paid contributions before 1 February not conclusive because a mistake on the

1957. The judgment of the Court in part of a person making a declaration Joined Cases 53 and 54/63 of 5 Decem­ does not affect the validity of his declar­ ber 1963 dismissed the application ation.

against this measure as being inadmis­ According to the defendant the recitals

vokes exemption which have onswhy it is in the public interest. any may been granted. However the decision is limited to stat­

ing that the applicant must have been aware of the DSVG's error. In particu­

II — Conclusions of the lar the decision does not say that the parties revocation would have been justified The applicant claims that the contested even if the applicant were entitled to

decision should be annulled; the de­ regard its legal position securely as

fendant contends that the application established ('Vertrauensposition'). should be dismissed as unfounded. In The defendant retorts that the fact that

addition each party submits that the the applicant ought to have noticed the

essential procedural requirements (see ferring to the case-law of the Court the below 1 High Authority showed that it was to 5), the Treaty and the rules law the relating to its application (see of aware of the conditions governing exemp­ below 6 to 11 and 13) and because it retroactive revocation of illegal

amounts to a misuse of powers (see tions.

below 12). 3. Inadequacy and inconsistency of the 1. Inadequacy of the statement of statement of reasons with reference

reasons: the decision does not state to the applicant's economic situation

the nature of the DSVG's mistake The applicant disputes the statement in The applicant alleges that the High the recitals of the decision that it did

LEMMERZ-WERKE v HIGH AUTHORITY

sufficient account can be taken of any pay equalization contributions for the Dur­ justifiable reason'

contradicts the opera­ period prior to 1 February 1957. tive part of the decision, which states ing that period it had only carried out

that if payment of the total amount is at its new steel works preparatory oper­

not made within 30 days execution will ations and trials; these experiments do be levied. not amount to production within the

The defendant retorts that it was for meaning of Article 80 of the ECSC 'preparations' the applicant to explain any economic Treaty, they were only for difficulties which it may have had. The production. Therefore there were no

by by 'normal operations'

forward on this in legal proceed­ Authority that the CPFI decision of point 8 May 1971 did not apply to the ings have been examined during the ;' applicant administrative procedure . . .

it The applicant refers to the fact that the and submits that is an ambiguous

statement of the facts. letter May 1957 by the CPFI sent on 2 to the High Authority (which also men­ The defendant is of the opinion that

the statement of defence has removed tions Lemmerz-Werke) had been made

this ambiguity. available to the persons attending the meeting of the CPFI on 8 May 1957; de­ 5. that is sufficient to show that the Inadequacy of the statement of reas­

refer­ taken this also ons with reference to the liability in cision at meeting principle the applicant to red to the applicant. of pay equalization contributions The history of the decision confirms

steel ingots. But the discussion also dealt ducing castings. It necessarily regarded

with the question of determining as a the decision as the reaction of the CPFI it dis­ general principle from what date under­ to the previous letters in which

takings which for whatever reason had puted its liability to pay equalization

not yet received a demand for payment contributions.

would have to make payments. It is for The defendant on the other hand is of

reasons based on public law that in all the opinion that the applicant must have these cases the CPFI did not seek to known that the decision only applied impose retroactive liability. Moreover all to foundries. It is clear that the DSVG's the persons concerned knew at that time circular was designed for the latter. The that the applicant did not operate an applicant's previous letters referred to

plicant was neither a participant in the is illegal for various reasons.

voluntary equalization scheme which ex­ The High Authority allowed the normal

isted at that time, nor a member of time-limit to expire. It was informed of the DSVG but had to participate later the exemption in 1958 at the latest but in the compulsory scheme. The DSVG did not annul it until 1963. sent the CPFI a list of all the under­ The applicant had by then become en­

takings in this situation; that is how titled to regard its legal position as

the inadvert­ applicant's name was also securely established.

ently put on the completed list sent to The revocation discriminates between it the High Authority. There has never and undertakings which before 1 been any doubt that the applicant was February 1957 had been officially noti­

was not affected by the decision, it could pared with the Hoogovens company's

not have known this. The circular letter case where the Court upheld the revo­

of the DSVG neither quotes the word­ cation (Case 16/61). The applicant com­

ing of the decision nor of the letter of pares the two cases on this point and

2 May 1957. stresses in particular that the Hoogovens The facts of the case show that the judgment is based on the absence of

applicant had no reason to believe that any wrongful act or omission on the

the case-law of the Court any exemp­ It is the High Authority which is tion would have been illegal. answerable for the amounts not levied The revocation was effected within a as a result of a wrongful act or omis­

reasonable time it is im­ sion. The defendant fails to period of and understand

possible to agree that the applicant had the concept of the limitation of actions

become entitled to regard its legal posi­ when it refuses to acknowledge it by tion as securely established. Any hope calling attention to the benefit accruing hat the decision in question would con­ from it to the debtor. tinue to apply disappeared at the latest The defendant replies that to admit that

in 1958 when the Société Fiduciaire the equalization contributions are time-

Suisse carried out its checks at the ap­ barred would confer on the undertaking plicant's offices and when in Decision concerned an unjustified advantage over

takings concerned. Moreover the Court most only a general limitation period

decided that it is the exemption of a could be considered; under German consumer of ferrous scrap which con­ law, for example, this is a period of

stitutes discrimination, in that it is detri­ 30 years.

mental to that consumer's competitors. Even if it was thought that a limitation The Hoogovens case is on all forms period began to run from the end of

1958 (that is say, from appli­ with this case; the position of the to the earliest

cant is even weaker than that of the date when an individual decision affect­

the applicant many times of its view prices, equalization prices and

on the disputed question of liability. amounts all expressed in European Further all the undertakings concerned Payments Union or EMA units of

were aware of the reasons for the delay account; it is not until Decision over a period of years in the prepara­ 21/60 (Official Journal, p. 1177) that tion of the statements of account, so there is an exception to this prin­

that none of them could assume that ciple for the benefit of French under­

it would not receive any more. takings. 'The EMA unit of account

Both parties in addition refer to their in fact laid down definitively the

sessment of the facts; in addition it took tion period: there is no doubt that

an inordinately long time to revoke it. in fact the equalization scheme owed The defendant refers to its arguments and was owed substantial sums at the

relating to the other complaints (see in date of the revaluation in question.

particular point 9 above). 2. The illegal procedure followed at

13. Mistakes in the calculations that time by the High Authority in connexion with group scrap led to The applicant begins its argument by delayed collection of the levy and

slating that 'for internal reasons'

LEMMERZ-WERKE v HIGH AUTHORITY

According to the principles of public date effected' settle­ and not at the of

law public bodies must bear the con­ ment.

sequences of any wrongful act or The unit of account has only been used omission on their The defen­ as 'standard for calculation', not part. a unit

dant on the contrary makes the as a currency and not with the object

debtors punctually pay for who paid of determining the amount of the contri­

puted in fact refers to the same sum It was in the first place the system of

which was the subject of the order to imposing interest for delay in payment of 8 April 1963 which was con­ which made it necessary to fix the date pay tested at that time. In the second place bearing in mind the principle of equality the applicant's declarations are too of treatment. However experience show­ vague; the defendant gives particulars ed that this system could only achieve

in support of this allegation. In the its Object if it was possible to obtain

third place the applicant should have declarations from the undertakings

criticized in the courts of those pro­ immediately, to fix the rate of the levy ceedings Decisions Nos 21/60 and and to give notice of the amount of the

7/61, which governed the questions at contributions payable. But these ideal

period, that is to say, up to 30 April normal cases; but whilst under the old

1959. As the revaluations in question system additional charges were imposed took place after this date it was not even on punctual payers (in particular

necessary to amend Article 2 of the because of the interest to be credited

Decision. by the CPFI), the new system only Having regard to the object of the imposes them on defaulters. equalization scheme it is necessary to The assumptions made with regard to

adjust the unit of account to the the reasons for Decision No 7/61 are

national currency by reference to the misleading. To offset a loss of interest date 'when the equalization was actually it would not have been necessary for

Authority with regard to group scrap prove that its submissions are set out

did not amount to a wrongful act or with sufficient precision.

omission. The recitals of the decision It criticized general Decisions Nos

only treat the Court's judgments as one 21/60 and 7/61 by implication, this

factor among many others. being according to the sufficient case-

The defendant infers from a table which law of the Court. The contested decision it produced that under the new system is based expressly on Decision No 7/63 imposed and on the decisions recited in its pre­ no additional charges were on

53/63 are procedural declarations of applicant. The Court dismissed this

limited effect and intended for the application by an order of 25 November Court. At that time the applicant itself 1964. considered that its application was in­ The oral procedure took place on 11 admissible and it had therefore to mini­ March 1965. mize its risk on the question of costs; On 6 May 1965 the Advocate-General

during the said proceedings the expres­ delivered his reasoned opinion. disputed' sion 'not which it used applied On 30 June 1965, pursuant to Article

to a fixed sum and not to the method 45 (2) of its Rules of Procedure the

used to calculate it. The defendant it­ Court heard the parties on technical

self in the previous case allowed the details in order to obtain further clari­

I — The submissions relating to the period prior

to 1 February 1957

1. Mistake relating to the principle of liability to contribute to the equaliza­

tion scheme

LEMMERZ-WERKE v HIGH AUTHORITY

The applicant submits that, independently of any question of exemption, the ferrous scrap which it bought prior to 1 February 1957 was not subject to

buyer to start actual production even if such production was on a trial basis.

Under Article 53 of the Treaty the High Authority may make any financial arrangements 'which it recognizes to be necessary for the performance of the 3' tasks set out in Article including that of 'ensuring an orderly supply to Market' the Common laid down in subparagraph (a) of the said Article 31. 'undertakings' The Treaty does not therefore only look on from the point of view of production but also from that of the procurement of materials which of necessity precede production, at any rate in the case of the procurement

of materials such as ferrous scrap which fall within the jurisdiction of the

High Authority.

It is not disputed that the applicant bought ferrous scrap from April 1956 and that it commenced actual production of steel on 1 February 1957 at the latest. It is therefore liable to pay contributions from April 1956. Finally the applicant is wrong to quote Article 6 of Decision No 2/57, published in the Official Journal of 28 January 1957, to prove that the period prior to 1 Feb­ ruary 1957 was not a 'period of normal operation'. This provision in fact

only refers to the 'supplementary rates'

2. The exemption of the applicant for the period prior to 1 February 1957 and its eventual withdrawal

JUDGMENT OF 13. 7. 1965 — CASE 111/63

The contested decision, after stating in its preamble that the decision of the Board of the CPFI of 8 May 1957 did not exempt the applicant and that, even if the fact that this decision was inadvertently sent to the applicant is treated as an exemption, it should in fact be regarded as illegal, revokes, so far as necessary, any exemption which it may have granted.

The applicant contests the said decision with a number of complaints, based on the one hand on the actual existence of a decision granting it an exemp­

tion and on the other hand on the illegality of any revocation of the latter decision.

It is desirable to examine first the submissions which seek to show that such a revocation is illegal, because it would be unnecessary to consider the ques­

(b) In the opinion of the applicant the contested decision is incorrect when it states, 'that . . . Lemmerz-Werke could not assume that [the decision of the Board of the CPFI] also applied to it, but, on the contrary, had to acknow­

ledge that the decision had been sent to it in error or that it had obtained the benefit of it by mistake, without the specific facts of its case having been Board.' examined at allby the Further the applicant submits that the dis­ puted revocation took place after the reasonable period of time for such re­

vocation had already elapsed.

Both these complaints must be examined together, because they both raise the same general question whether the defendant paid sufficient regard to the extent to which the applicant was able to rely on the legality and the con­

tinuance of the exemption in question.

LEMMERZ-WERKE v HIGH AUTHORITY

set up the equalization scheme did not provide for exemptions and that in the matter of public contributions exemptions cannot be presumed.

Moreover it is clear that the applicant could only rely on the continuance of

the said exemption for a short period because:

— from June 1958 the Société Fiduciaire Suisse carried out checks at the

applicant's offices; it is apparent from the report which it sent to the de­

fendant that on the one hand it had directed the defendant's attention to the ferrous scrap in dispute, and on the other hand that when questioned about the scrap the applicant had produced the circular of 20 May 1957;

missions in an application brought by SNUPAT for the annulment of the refusal to revoke retroactively certain exemptions; although the subject

matter of this application was only 'group scrap', it was nevertheless the first time in the history of the equalization scheme that the Court and the High Authority were faced with the general question of the legality of the retroactive revocation of an exemption;

— In its judgment in this case of 22 March 1961 the Court confirmed that the High Authority had an inherent right to revoke decisions and also

confirmed the importance in this connexion of the interdependence of the equalization charges;

JUDGMENT OF 13. 7. 1965 — CASE 111/63

—

(2) The conduct of the defendant in the situation described above must how­ ever be examined because the fact that the applicant could not count oh the continuance of the exemption does not of itself exclude the possibility that

the defendant or its representatives committed a breach of their duty to act

with care accuracy which would preclude the defendant from revoking and

the exemption in dispute. The examination of this question is connected with

the submission that the right to revoke the exemption had been forfeited.

It was not until July 1961, more than five years after the notification of the exemption in question to the applicant, that the defendant informed the

Although the attitude of the regional office in Germany is not entirely blame­

less, it is understandable that the defendant might have believed that its instructions had been communicated correctly and without delay. Therefore

LEMMERZ-WERKE v HIGH AUTHORITY

it cannot be accepted that, having regard to the conduct of the defendant, its right to demand payment of the disputed amount was forfeited.

Moreover it must be borne in mind that by continuing to exempt one under­

taking the defendant would not only have to increase the charges on the other undertakings, some of which at least are normally in competition with the exempted undertaking, but would in particular be placing the latter in a

This complaint cannot be upheld. In fact, so far as the independent foundries are concerned, their legal position under Decision No 2/57 cannot be com­

pared with that of the applicant, as the decision mentioned above was not

based on a mistake affecting the said foundries.

So far as the undertakings which have benefited from the same mistake are

concerned, the applicant has not proved the incorrectness of the defendant's allegation that in their cases revocation was unnecessary having regard to the facts.

3. Limitation of action:

JUDGMENT OF 13. 7. 1965 — CASE 111/63

It relies in addition on the time taken by the defendant to make the revoca­

tion which it considers was excessive.

This submission is similar to those which have just been examined and must therefore be rejected for the same reasons.

5. Inadequate statement of the reasons upon which the decision was based

(a) The applicant submits that, although the contested decision states that the notification to the applicant of the circular of 20 May 1957 was based on

(b) The applicant complains that the contested decision is irrelevant, as a

mistake on the part of a person making a declaration does not normally affect the validity of his declaration.

This complaint refers to the main argument put forward in the said decision, that is to say, that there was no exemption. Since the examination of this

argument is unnecessary, as has already been stated, this complaint has become purposeless.

(c) The applicant complains that the only reason put forward by the defen­ dant in justification of the contested revocation was that the applicant

should have recognized that in fact the revocation did not apply to it. The defendant should therefore have indicated the reasons why the revocation was justified even if the applicant had become entided to regard its legal position as securely established.

had to pay the entire sum which is disputed within the prescribed time, unless the defendant for valid reasons granted it less onerous conditions of

payment. As the alleged contradiction therefore does not exist, this sub­

mission must be rejected.

(e) The applicant complains that the defendant decided, without having obtained any information on the matter, that the amount to be paid by the applicant was not likely to prejudice its economic situation. As the applicant

has not substantiated that it was faced with such difficulties, this complaint

is unfounded.

within the meaning of the Treaty from April 1956, 'the date when it began

to purchase ferrous scrap for the production of steel which it intended to undertake'.

The result of all the foregoing considerations is that this application is not well-founded to the extent to which it refers to the contributions charged to

the applicant for the period prior to 1 February 1957.

JUDGMENT OF 13. 7. 1965 — CASE 111/63

II — The submissions relating to the period after

the basis that the applicant, far from acknowledging once and for all that the calculation of the disputed amount complied with the Treaty and with the rules law relating to its application, simply intended to limit the of subject-

matter of the said application to the period prior to 1 February 1957 in order

to minimize the risk on the question of costs. The objection must therefore

be dismissed.

(b) The defendant raises another objection of inadmissibility on the ground that the applicant's submissions are not sufficiently detailed.

Under Article 22 of the Protocol on the Statute of the Court of Justice of the ECSC and Article 38 (1) (c) of the Rules of Procedure the applicant only has to give a brief statement of the grounds on which the application is based. In this case the applicant has complied with this condition, as its application

1. The rate of exchange to be applied to the calculation of the debts of

undertakings

LEMMERZ-WERKE v HIGH AUTHORITY

The applicant complains that the defendant did not take proper account, when it calculated the amounts charged to undertakings, either of the double devaluation of the French franc or the revaluation of the German mark. In its opinion the unit of account in fact determined finally the amount and extent of the credits and debits of ferrous scrap consumers, whereas national de­ currencies were only the medium for payment and their revaluation or

valuation could not have any effect on the amount of the debtor's obligation. It submits also that if, on the other hand, such an effect had existed the

defendant should also have taken into account any change in currency parities after the equalization period, in this case the revaluation of the German mark. Therefore by only taking into account the devaluation of the French franc it discriminated against German undertakings.

contributions, even if they were calculated in units of account, are

in fact only determined in national currencies.

The question then arises at what time the calculation of both the amounts of the equalization contributions and payments and the resulting conversion into national currencies of the amounts in units of accounts must be effected.

In order to achieve an equal distribution of the charges arising out of the

importation of ferrous scrap from third countries the equalization scheme operated on the basis of accounting periods, usually of one month, so that

one equalization price was adopted for each period, and the equalization pay­ ments made during this period were calculated on the basis of this equaliza­

As the equalization scheme consists basically on the one hand of a charge on the difference between the price of imported ferrous scrap and the price

inside the Common Market and on the other hand of the equal distribution of

among undertakings consuming scrap in proportion to their con­ this charge

sumption it would be wrong to adopt a rate of exchange for the calculations

necessary for the first stage of the operation different from the one adopted

for the calculations required for the second stage.

earlier or later.

It follows from this in particular that only those changes in parities which

occurred before the end of the equalization scheme can be taken into con­

sideration converting into national currencies the amounts calculated when

in units of account. Therefore the method adopted by the defendant appears to be not only objective but to conform to the equalization scheme and the

fact that it did not take into account the revaluation of the mark does not amount to discrimination against German undertakings.

assent of the Council in this case arises under the Treaty.

LEMMERZ-WERKE v HIGH AUTHORITY

Under Article 53 (b) of the Treaty the High Authority may 'with the

unanimous assent of the Council, itself make any financial arrangements serving the same purposes'. As this is a provision which lays down the essen­

tial procedural requirements for the validity of certain decisions it must be

strictly construed. The effect of Article 53 (b) of the Treaty is that the un­

by the Council.

The second question to be answered is whether the fact that Article 13 of

Decision 16/58, adopted with the unanimous assent of the Council, provided for the application of a system for the payment of interest for delay meant that the High Authority had to obtain once more the unanimous assent of the Council to any amending decision.

There is no justification for the conclusion that the decisions of the High

Authority taken with the unanimous assent of the Council could only be amended, even in the case of amendments not affecting the basis of such

decisions, by a new decision also taken with the unanimous assent of the

charging interest for delay in payment on provisional contributions, and that

it is necessary to calculate the amount of the contributions of all the under-

JUDGMENT OF 13. 7. 1965 — CASE 111/63

takings liable to pay them by reference to the same date, as these contribu­

tions are often spread over varying periods for different undertakings, which are thereby either benefited or prejudiced. Recital 8 describes the situation which in the opinion of the High Authority results from the application of the contested system and which is the reason why it adopted this system.

This statement of reasons thus discloses the considerations which led the

In fact the system introduced by Decision No 7/61 dispensed with the im­ position of pecuniary sanctions in the form of interest payable for delayed payment. However, experience showed that for various reasons, for which the undertakings could often not be made responsible, the exact amounts of the

contributions could only be determined after delays which are at times

considerable.

There was therefore the danger that the former system might lead to both an intricate and complicated investigation into all the circumstances relating to the responsibility for delay and to the unsatisfactory situation that the charge under the equalization scheme was in fact imposed unequally on the various undertakings. Thus the undertakings, whose exact contributions could only be determined after some delay, retained the use for a certain time of sums which should have been available to the Fund. The result was that the other undertakings had to bear additional charges without any set-off. These under­ takings were therefore in a doubly unfavourable position compared with the undertakings whose payments were delayed. These disparities which arose

out of the former system were of a kind likely to have direct effects in the field of competition.

Such a result would clearly be contrary to the requirements and objectives of the equalization scheme, in particular to the principle that the contributions

as far as possible the objective inequalities caused by the delay in the liquida­ tion of the equalization scheme.

Therefore this complaint is unfounded.

(d) Finally the applicant submits that Decision No 7/61 is defective because it has retroactive effect and therefore infringes a fundamental legal principle.

inter­ In such a financial scheme as the one in question, based on a close

dependence between the contributions of each of the participants, it is above all necessary to ensure equality of treatment between those subject thereto, by eliminating all possibility of discriminating between them. In these cir­

cumstances the continuance of rules which would have the effect of confer­

The result of all these considerations is that this application is unfounded.

III — Costs

The applicant has failed in all its claims. However the conduct of the bodies responsible for the administration of the financial scheme could be said to

have encouraged it to contest justification for the charge relating to the period prior to 1 February 1957 which covered the largest part of the disputed sum. In these circumstances it is appropriate to apply Article 69 (3) of the Rules of Procedure and to order that the costs be borne as set out in the operative

part of the judgment;

OPINION OF MR ROEMER — CASE 111/63

I. Dismisses the application as unfounded;

2. Orders the applicant to pay its own costs and one half of the defendant's costs, the other half of the defendant's costs to be borne

by the defendant.

Hammes Donner Lecourt

Delvaux Trabucchi Strauß Monaco

Delivered in open court in Luxembourg on 13 July 1965.

I. First objection ot tne High Autnonty (Acknow- ledgement by the applicant that it owed the equalization contributions) 704

1 — Translated from the German.