C-14/64

JUDGMENT OF THE COURT 16 FEBRUARY 1965 1

Mrs Emilia Gualco (née Barge), widow of Mr Leone, v High Authority of the European Coal and Steel Community 2

Case 14/64

Summary

1. Procedure—Application — Lawyers — Certificate of entitlement to practise — Production of authority to act not required (Rules of Procedure, Article 38 (3))

2. Measures adopted by the Community—Application for annulment—New measure identical to the unannulled part of a former measure partly annulled— Res judicata

Application for annulment of the individual decision of the High Authority of 18 March 1964 whereby the said High Authority ordered the applicant

1 -Language of the Case: Italian. 2-CMLR.

JUDGMENT OF 16. 2. 1965—CASE 14/64

to pay it the sum of 169 782 125 Italian lire in respect of sums due from the former Acciaieria Leone undertaking under the imported ferrous scrap equalization scheme;

THE COURT

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

GUALCO v COMMISSION

decisions taken on 23 May 1962; one of (c) annul the individual decision of the these fixed the assessable tonnage of High Authority (taken on 18 March ferrous scrap for the period from 1 1964 and notified on 28 March) for October 1955 to 31 January 1958 and misuse of power owing to a mis­ the other the amount of the equalization representation of the facts forming contribution. the basis for the calculation of the Mrs Gualco brought an action against equalization contribution which it these decisions (Case 18/62). In its contains; judgment given on 16 December 1963 the Court annulled the decisions in (d) order the defendant to bear the costs.’ question 'in respect of the estimated assessment of the consumption of These conclusions are put forward: ferrous scrap for the period from 1 'reserving the right to -produce fresh October 1955 to 31 January 1957’. documents, to adduce fresh facts and The High Authority, on 18 March 1964, any other further argument, and to do addressed a new individual decision to so after having established proof, by Mrs Gualco. means of witnesses, with regard to the This decision fixed the amount of the following points: contributions to be paid for the period from 1 October 1955 to 31 January 1. Is it true that following the death of 1958 under the imported ferrous scrap the late Vittorio Leone (4 March equalization scheme. 1956) his widow tried to continue In doing this the High Authority stated managing the undertaking herself that it had applied the judgment of the but that being inexpert and ill­ Court of 16 December 1963, using the assisted, she was forced to close the method of calculation employed by the undertaking and to cease all activity in the iron and steel business from Court for assessing the tonnage of ferrous scrap in dispute. 30 April 1957? Further that she was forced to cancel the contract for the It is against this decision that Mrs Gualco has made the present applica­ supply of electricity which she had tion, lodged at the Court Registry on made with the Turin municipal 27 April 1964. electricity generating station, to put out her electric smelting furnace for good, to discontinue all purchases of II — Conclusions of the ferrous scrap, and finally to lay off parties her workers?

4. Is it true that during the period when A. Leone undertaking of which the it was engaged in the iron and steel defendant has produced (Schedule 2), business (1 October 1955 to 30 April by way of example, the one produced 1957), Acciaieria Leone produced on 15 January 1958, "reserving the 'castings' of the order of 20% to right, should occasion arise, to produce 25% of its production of cast steel? others"; and further order (Article 23 5. Is it true that Acciaieria Leone of the Protocol) production of the original of the letter dated 24 October divided its work force (40 workers) 1957 produced by the High Authority into two eight-hour shifts, and from (Schedule 1 to its memorandum of sixteen hours of operation obtained defence), which is a (photocopy) letter on average four casts of steel a day? the authenticity of which the applicant Witnesses: disputes, and also production of the Mr Vigano, an official of the S.A.F.S. originals of the "summaries of the from Basel; Schedules to the equalization declara­ Mr Maurice Chaudat, from the tion" (Schedule 3 to the memorandum ‘Inspectorate’ of the High Authority; of defence); Mr Luigi Florio, via San Francisco and finally order the defendant to pro­ d'Assisi 17, Turin; duce all such other documents as may Mrs Ines Cravero, via Caboto 36, throw further light on the dispute and Turin.' in particular the reports of the alleged investigations carried out by the The defendant in its memorandum of Fiduciaire suisse at Acciaieria Leone and defence, contends that the Court Ferriere di Borgaro; should: As to substance: 'first, and as a preliminary ruling: declare that this case is inadmissible: annul the individual decision of the (a) for want of authority to act, High Authority, which the applicant (b) for failure to observe the principle contests for misuse of powers resulting of res judicata: from misrepresentation of the facts used secondly, as to substance: as a basis for calculating the equalization dismiss the case as unfounded: contribution contained in that decision; in any event: and award the costs and fees of the pro­ order the applicant to reimburse costs ceedings to the applicant.' and expenses.' In its rejoinder the defendant maintains The applicant has inserted at the end its previous conclusions. of her reply some 'final submissions' worded as follows: III — Submissions and 'Rejecting all other arguments and after arguments of the admitting with a view to elucidating the parties facts the proof by witnesses proposed in the originating application (pages 11 A — On admissibility to 13 of the French translation) and the proof by experts proposed in section 9 The defendant raises two objections of of the reply, inadmissibility against the application. According to the first it is argued that On a preliminary basis: the authority to act ad litem given to order the High Authority to produce, in Mr Cottrau was limited to Case 18/62, accordance with Article 23 of the Proto­ the first Barge case, which was brought col, the declarations made by the Ing. to an end with the judgment of 16

questions already dealt with in the pre­ 2. As to the calculation of the amount vious judgment and thus conflicts with the binding nature of res judicata. of ferrous scrap used The applicant replies that on the one The applicant distinguishes three refer­ hand the authority to act given to Mr ence periods. Cottrau was properly amended, and on As regards the period from 1 October the other hand res judicata only applies 1955 to 31 January 1957 the Court, by to an unequivocal decision of the Court, its judgment of 16 December 1963, and is not relevant here because the annulled the two individual decisions of judgment in Case 18/62 did not decide the High Authority addressed to the the points raised in the present applica­ former Leone undertaking in the person tion on the basis of precise facts. of Mrs Gualco, laying down the assess­ able tonnage for equalization purposes B — On the substance and the amount of the equalization con­ tribution. According to the applicant the 1. As to the date when the Leone decision on which the calculation should undertaking ceased operations be based is Decision No 2/57. According to the applicant the under­ The judgment annulled these decisions taking operated only from 1 October 'in respect of the estimated assessment 1955 to 30 April 1957. On the latter of the consumption of ferrous scrap for date the workers were laid off and the the period from 1 October 1955 to 31 contract for the supply of electricity was January 1957'. It follows from this judg­ terminated. Therefore the date for the ment that it is open to the applicant close of business was 30 April 1957. to prove that the estimated assessment The works were then used by the was incorrect. With a view to doing so Ferriere di Borgaro. However, the con­ she first of all asserts that the coefficients tract for the transfer of the Leone for the calculations must be reviewed on undertaking to Ferriere di Borgaro was the basis of factual considerations (aged not made by a notarially authenticated plant, recovery of 12% of arisings, document until 4 February 1958. Thus manufacture of steel castings constitu­ the date when the Leone undertaking ting 20% of the total production, non- closed down does not coincide with the use of oxygen in the furnaces, time date of the transfer. taken to do the work, etc.). These facts According to the defendant the two could be checked by experts where dates do coincide as a series of docu­ necessary. She then states that the posi­ ments proves. In law the Leone under­ tion of the undertaking and the assess­ taking existed until the date of the ment made of it by the Italian revenue transfer, and was actually in operation authorities show that the criteria adopt-

ed by the High Authority are in Gualco (aged plant, recovery of 12% adequate. From the calculations made of arisings, manufacture of steel cast by the applicant on the basis of co ings, etc.). It states that no real proof efficients and of the estimate of the has been put forward in support of the time taken to do the work put forward argument founded on the use of alloy by her she arrives at 7 164 tons as the scrap by Ferriere di Borgaro. quantity of ferrous scrap liable to the Therefore the defendant stands by the equalization lew for this first period. figures given in the contested decision. The applicant's second period runs from

business. She says that the use of the and the first and second subparagraphs works after this date is attributable to of Article 29 (3) of the said Rules had Ferriere di Borgaro, as is proved by the been infringed by the High Authority's consumption of alloy scrap necessary having annexed to its memorandum of only for the goods produced by this defence three documents, two of which undertaking. Furthermore since this were in French, whereas the language kind of scrap is exempt from the of the case was Italian. equalization contribution it should be The applicant claimed that: deducted from the assessable tonnage, 'That Court of Justice of the European whichever undertaking is charged with Communities, without considering the the lew. main issue, should: The defendant disputes Mrs Gualco's

The High Authority rejects as irrelevant all offers 15 339 and lodged at the Registry on of proof intended to reopen the 27 May 1964) in accordance with decisions given in the previous judg Article 29 (1) and (3) of the Rules of Procedure; ment. The figures and coefficients put forward afresh by the applicant are 2. Prescribe a new time-limit t from the 'absolutely without foundation and, in date of the amendment and service any case, are superseded by the judg of the documents in question for the ment already given'. filing of the applicant's reply; having Secondly the defendant rejects the regard to the vacation period it is various points of fact raised by Mrs requested that this time-limit be set

Grounds of judgment

Mrs Gualco (nee Barge), widow of Mr Leone, has brought an application for the annulment of the individual decision taken by the High Authority on 18 March 1964 ordering her to pay 169 782 125 lire representing an equalization contribution for imported ferrous scrap, due from the company known as ‘Acciaieria Ing. Leone'.

On admissibility

The High Authority argues that the case is inadmissible, for the reason that when the application was lodged the lawyer acting for the applicant had no authority to do so.

However according to the terms of Article 38 of the Rules of Procedure, the lawyer acting for a party is required only to establish his professional status as a lawyer and is not required to produce a duly executed authority to act in the lodging of an application, subject to proof if challenged that he is so authorized.

JUDGMENT OF 16. 2. 1965 — CASE 14/64

On the substance of the case

By a decision taken on 18 March 1964 the High Authority, following the principles laid down by the Court in its judgment of 16 December 1963, fixed the assessable tonnage of ferrous scrap at 25 506 tons, and the amount of Mrs Gualco's contribution at 169 782 125 lire.

The applicant objects first to the fact that the High Authority based its decision exclusively on the consumption of electricity, and secondly to the

1 — Translator's Note: This formal rejection, in the operative part of the judgments of the Court, is not normally expressed in the English translation of the Reports.

GUALCO v COMMISSION

coefficients used for calculating the consumption of ferrous scrap by means of the said quantity of electricity which could not have any application to such obsolete plant as hers.

Therefore the second ground of complaint is unfounded.

The applicant then claims that the electric current was also used in her undertaking for the manufacture of steel castings, and that the quantities of ferrous scrap for such manufacture are exempt from equalization according

JUDGMENT OF 16. 2. 1965 — CASE 14/64

to the decision of the High Authority itself. This complaint consists of a mere allegation, as the applicant's offers of proof are not supported by any facts worthy of consideration. Moreover, Mrs Gualco never gave any information about this type of manufacture in her declarations made for the purposes of fixing the general levy.

Therefore the third ground of complaint is unfounded.

The applicant claims that an assessment of her income made by the Italian revenue authorities proves that the assessment of her production capacity made by the High Authority was excessive. However the estimate of Mrs Gualco's income seems to have been made by the Italian authorities by means of an aggregate lump-sum estimate, which could not be relevant to this case. Furthermore, the equalization scheme is based on the consumption of ferrous scrap by the undertaking, and not on its profits.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties;

GUALCO v COMMISSION

Upon hearing the opinion of the Advocate-General; Having regard to Article 33 of the Treaty establishing the European Coal and Steel Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 38 and 69;

THE COURT

hereby:

1. Dismisses Application 14/64; 2. Orders the applicant to pay the costs, including those of the applica­ tion on the procedural issue. Hammes Donner Lecourt

1. The coefficient of consumption of electricity/con­ sumption of ferrous scrap 65 2. The proportion of own arisings in the consumption of ferrous scrap 65 3. Did the applicant use electricity for the manu­ facture of steel castings? 66 4. The reference by the applicant to the assessment of her income by the Italian revenue authorities and to the production-capacity of her undertaking 66 5. Under what general decision is the applicant's liability to contribute determined? 67 III — Observations on the application regarding the pro­ cedural issue 67

IV — Summary and conclusion 68 1 — Translated from the German.