C-25/65

2. Procedure — Application — Measures formingasingle whole — Subject — matter of action

3. Procedure — Objectionof illegality — General decision — Directlegal relation­ ship — Measures forminga whole — Admissibility (ECSC Treaty, Article 36)

4. Common financialarrangements — Equalization of ferrousscrap — Calculation of contributions — Estimated assessment — Conditions

(ECSC Treaty, Article53)

1.An unforeseeable circumstancewithin single whole must be regarded as themeaning ofthe third paragraph directed also, so far asis necessary of Article 39 of theProtocol on the against the others. Statuteof theCourtof Justice of the ECSC may be constituted by the 3. Where an application is made against a measurewhich is one of a number delay inthe lodgingof an applica­ tion byreason of the fact 'thatit is of measures constituting a single onlyreceived bythe Courtsome whole,the applicant is entitled to time after its arrivalat the place pleadthe illegalityof a general decis­ where the Court has itsseat. ion onwhich one of die said individual measures is based. 2. Anapplication expressly directed againsta measure which is oneof 4. Cf. para.2, summary, Joined Cases a numberof measures constitutinga 9 and 58/65, [1967] E.C.R. 1.

InJoined Cases

applicants,

High Authorityof theEuropean Coaland Steel Community , repre­ sentedby itslegal adviser, ItaloTelchini,acting as Agent, assisted byRenato Alessi, advocate ofthe Voghera Bar,with an address for service in Luxem­ bourg at its offices, 2 placede Metz,

defendant,

Application

(a)for theannulment of theindividual decisions of the High Authority of 11 February 1965charging the applicants Simet and Feramwith the pay­ ment of the sums of 252 974 228 lire and105 899634 lirerespectivelyby way of contributions to the importedferrous scrap equalization scheme;

(b) for adeclaration of theillegalityof generalDecision No 7/63 of the High Authority of 3 April 1963concerning the drawingup of statements of account relating tothe equalization of imported ferrous scrap and scrap treated as such;

Issuesof fact and oflaw

JUDGMENT OF2.3. 1967— JOINED CASES 25 AND26/65

(a) As regards its principalconclusions alternantively, take note that the assess­ 'annulthe decision of11 February abletonnage has been reduced to 1965(notified co the applicant on20 35 574metric tons and that the amount March 1965) onthe grounds of in­ stilldue by way of equalizationcon­ fringementof an essentialprocedural tributions istherefore reduced to requirement, lack ofa statement of 238 631270 lire, and for theremainder, reasons andmisuse of powers; reject allthe submissions in theapplica­ declare that Decision No 7/63of the tionand order the applicantto bear High Authority isillegal on diegrounds the costs'. of infringementofan essential 'pro­ cedural requirement, infringement of the Treatyand misuse of powers; III — Procedure order thedefendant tobear the costs ; Theapplications in the two cases were (b) As regards thepreliminarycon­ clusions enteredat the Registry on 4 May 1965. Measuresof inquiry By documents,lodged on 18 May in 'orderthat alldocuments concerning bothcases the High Authority asked thedeclarations, calculations and checks theCourt,pursuant to Article 91 of and the documents relating to purchases theRules ofProcedure, to declare the of scrap by theapplicant (thesedocu­ applicationsinadmissible on the ground ments beingin thepossession of the thatthey were submitted outof time HighAuthority) beproduced to the andto orderthe applicants topay the Court andcommunicated tothe costsof the proceedings. In their applicant'; observations whichthey lodged on 17 Expert's report Junethe applicants asked theCourt to dismiss the High Authority's applica­ causeto be ascertained by an expert tionon the above-mentioned procedural to be appointed bythe Court ofits own issueand to order it topay the costs. motion what were the usual average Byordersof 13 July the Court in both prices in the Community for internal casesreservedfor thefinal judgment scrap during the 'period from1April itsdecision on the defendant's pre­ 1954to 30 November1958 and what liminaryobjection and reserved the were theusual prices on theinter­ costs.

further extension,theRegistrar, by the time-limits.The applicationsare letterof14 July, informed it thatit thus inadmissible. was barred fromlodging a reply and The applicantsmake it clear that the that thewritten procedure was now to two applications were despatched on21 be regardedas closed followingthe April atthe sametime as a communi­ lodging ofthe HighAuthority's state­ cation tothe Registry advising it of such ment ofdefence. despatch. This communication arrived The HighAuthority lodged itsrejoinder within the periodprescribed for the lodg­ in Case 25/65 (Simet) on 15 September ing of the applications. 1966. Thedelay inthe delivery of Cheappli­ Uponhearing the reportof the Judge- cations themselves must therefore be Rapporteur andtheviews ofthe Ad­ regarded as an unforeseeable circum­ vocate-Generalthe Court decided to stance oras a case of force majeure. open theoral procedure without any The defendant observes, in Case 25/65 preparatoryinquiry. The applicant in (Simet), that the application was sent, Case26/65 (Feram), before theoral not by normalpost, but by parcel post, procedure was opened,lodgeda num­ a notoriously slowersystem. berof documents. At therequest of the In anyevent, according to the case-law Court the defendant, too, lodged anum­ and the legaldoctrine of theMember ber of documents. States, thehazards of the postal service The oral submissions of the parties cannotbe invokedin orderto justify were presented at the hearingson 8and delay where mandatory limitation 23November 1966. periodsapply. On 17 November 1966 theHigh 2. Inadmissibilityof Application 25/65 Authority lodged itswritten replies to (Simet) on the ground ofdisparity the questions which were putto it at between the submissions and the sub­ the hearingon8 November as wellas ject-matter ofthe dispute several documents in support. The Advocate-General delivered his The defendant maintains thatApplica­ opinion at thehearing on 14 December tion25/65 is inadmissible, sinceit was 1966. expressly brought solelyagainst the en­ forceabledecision concerning the obliga­ tionto pay,whereas the submissions re­ IV — Submissions and argu­ fer to theindividual decision determin­ ments of the parties ing the tonnageof ferrous scrap. According to the defendant, thesub­ The submissionsand argumentsof the missionscontained in an application in parties may 'be summarizedas follows: adversaryproceedings and which relate to a measureother than the contested A —Admissibility measure cannotbe admitted. Since, therefore, itmakes no express mention 1. The inadmissibility of both applica­ of the decisionfixing the tonnages sub­ tions onthe groundof their being ject to contribution and contains no sub­ out oftime missions relating tothe decision con­ The defendant points outthat the con­ cerning theobligation to pay, the tested decisions were notified tothose to applicationcannot be regarded as ad­ whom they wereaddressed respectively missiblein so far as either of the in­ on 20March 1965 (Simet) and on19 dividual decisions is concerned. March 1965 (Feram)and that the ap­ I he Applicant Simet replies thatm the plicationsagainst themwere notmade recitals contained in the preamble to until 4 May,that is,after the expiry of thedecision containing the order to pay

there isa referenceto thedecision de ments of ferrous scrap declared each termining itsconsumption of bought month; ferrous scrap and that theHigh Author — the suppliers' invoices book; ityitself has thereforeestablished and — thecertificates of the weight of fer reliedupon thelogical andnecessary rous scrap received; connexion between'the two decisions. —the cashbook; Moreover thestatement of the first — the day book. submissionin the applicationexpressly However, according to the applicant, refers tothe two decisions. there is no provision of Italian law or of Community law which-requires un

illegality. Nosuch objection, however, wellas the annual balance sheets and has beenraised inthe present case. The defendant alsomakes the point theprofit and loss account. These ac countingdocuments arestill available that general Decision No7/63constitu atitspremises, and subject to certain tes thebasis solely of the individual conditionslaid down by Italian law, to decisionconcerning the obligation to pay. SinceSimet hasnot, in fact,con therepresentativesof the HighAuthor

tionscheme. to call in question thelegality ofthe Byvirtue ofthese decisions undertakings generaldecisionon whichthe contested individualdecisions are based. mustbe in a position to corroborate by concrete evidencethe truth of their On thesecondpoint it maintains that thetwo individual decisions are referred declarations and the High Authority is empowered to correct declarationsin to inits application. support of which no valid proof is available,which was the case in this B —The substanceof the case

SIMETAND FERAM vHIGH AUTHORITY

tion. What is more,Simethas failedto not have acapacity of between 6 and provide other informationwhich would 7metric tons, but of 5 metric tons at makeit possible toascertain its actual most.In support of this statement, it consumptionwhich istheonly basis on produces, as a scheduleto its reply, the which contributions canbe calculated. invoicerelatingto the purchaseof the Simet's attitude has preventedthe High furnace whichshows a capacityof4 to Authority from basing its assessment 5 metric tons. directly on exhaustive accounting docu Thedefendant, while maintaining that

estimatedassessment. Itmaintains that 1 he defendant takes the view that these certain membersof the committee of amendmentsarenot its fault as they experts consulted bythe High Author are dueto theapplicant's negligence ity werebyno means inagreement with and to its delayin providing the neces thisratio; moreover,otherexperts sug sary information for the calculation of gested different criteria. its contributions. Inthese circumstances Furthermore, the ratio adopted could the essenceof the reasons of fact and not applyin the case of the production lawon which the disputed decisions of ordinary steels or where, as in the are founded has not been altered inany present case, small electricfurnaces are way and thedecisions must be upheld. also used for the production of alloy (e) The applicant maintainsthat the steels. ratio betweenthe specific chargeof fer The defendant replies that theapplicant rous scrapand steel produced, deter is not entitled to ask the Court to give mined bytheHigh Authority at 1 051 a judgment on the substance of this kg per metricton, should not 'be asses matter, for this would involve theas

fall within the HighAuthority's dis­ The defendant replies that the factors cretion and the legalityofwhich cannot on which it based its criteriafor assess-

JUDGMENTOF 2.3. 1967 —JOINED CASES 25 AND 26/65

ing the consumption of ferrous scrap consumption of electricity since June werearrived aton the basis of theex­ 1956. perience gained,and confirmed on Allthese factorsprove, according tothe several occasions,with production plant defendant, that Simet did engage in similar tothe applicant's. The figureof production between1 June1956 and 950 kgis contradicted, moreover, by 31 January 1957. the calculationof theinput offerrous (g)The applicant maintains that the scrapcarried outby the applicant HighAuthority, in exercising itspowers itself. under Article 47 of the Treaty, must (f) Theapplicant maintains thatthe respectcertain guarantees to the benefit generaldecisions on the equalization ofwhich the undertakingsare entitled. schememake contributions entirely de­ Inparticular, it is not entitled to rely pendent upon the consumption of onchecksthe results of which were boughtferrous scrap. TheHigh Author­ neverrecorded in minutes and of which ity therefore hadno right to impose theapplicant is therefore unaware.

upon itcontributions for theperiod The defendant replies that there is no from 1 June 1956to 31 January 1957 expressprovision or any general prin­ duringwhich Simet bought no ferrous ciplewhich requiresits servants to scrap and engagedin no production recordtheir checks in the formof activity. minutes.

SIMET AND FERAM vHIGH AUTHORITY

Treaty. plete statements of account expressly (c) The applicants put forwardthe fol accepted by Feram. lowing furtherarguments in support of The HighAuthority arrived at itscon thesubmission of misuse of powers: clusions solelyon the basis of the in — the numerous substantial frauds,for formationsupplied to it by Feram, whichthe HighAuthority mustbear information whichin no way corres responsibility,caused serious injury pondsto that produced by it in the to theundertakings;

facts; of theCouncil as it isrequired todo by Article53 ofthe Treaty. —by fixing theweighted average for The defendant repliesthat mere is no internal scrap at too lowaprice and the provisionwhich requiresit toseek the weightedaverage for imported scrap Council's assent before adopting de at too higha price the High Author cisions implementing financial arrange ity causedsmall undertakings, which ments already inexistence.In anyevent, essentially consume internalscrap of the question has alreadybeen resolved in lesser quality and giving a poor yield, this wayby thecase-lawof the Court. tobearthe greater part of the in (b) The applicantspoint outthat when crease in the cost price of imported the Council issued its opinion on general scrapand wasthus guilty of serious Decision No 14/55setting upthe discrimination against them. equalizationscheme it had expressly Thedefendant replies to the complaint recommended tothe High Authoritythat of discrimination thatall the Commun itshould only increase the equalization ityundertakings were entitled to use contributionsfor very seriousreasons and importedscrap.

JUDGMENT OF2. 3.1967 —JOINED CASES 25 AND 26/65

forward by theapplicants, thedefendant particular Articles 17 and 78of the maintains thatthey have nothing to do Treaty. with the submission ofmisuse of The defendant remarks that this line powers.The applicants giveno indica­ of argumenthas been rejected in its tion ofthe objectives pursued bythe entirety by theCourt in previouscases. High Authority in thecontested general (e) According to theapplicants, since decision. Furthermore, the arguments Decision No 7/63, on the High Author­ have norelevance tothe present cases. ity's ownadmission, does not create any (d)The applicants complain thatthe obligation to pay on the part of under­ HighAuthority kept from the under­ takings,it cannot serve as a basis for takings the actualamount ofthe equal­ thecontested individual decisions. ization rate.In particular,Decision No The defendantmaintains that Decision 7/63,a measuredesigned to settlethe No 7/63lays down the necessary pre­ accounts between a certain number of conditions forestablishing the amount undertakings subject to thescheme, of theequalization contributions which should havegiven each undertaking an the various undertakings had to pay. accurate account ofits debitsor credits Theactual obligation to pay only ensues and enabled it toascertain the debits as theresult of individual implementing orcredits of the other undertakings as decisions. well as themethod of calculationused Theapplicant simet taxes theview that to arriveat these figures. sincethe Court has ruled that undertak­ The Treatyrequires theHigh Author­ ingsmust waituntil the final state­ ity, especially asregards publicity for ments ofaccount have been drawn up price lists,to notify ingood time the beforeasserting their rights through final statements of account and to apply litigation,the High Authority, too, must thecorrect rates.Havingfailed todo waituntil then before requiring the this, theHigh Authority infringed in undertakings to pay their debts.

2. Theobjection basedon the discrepancybetween the submissions and the subject-matter of Application 25/26 (Simet)

According to the defendant,Application 25/65(Simet) is expressly directed solelyagainstthe decision imposing the obligationto pay, whereas the argu­ ments takenas a whole only relate tothe decision fixing the assessable ton­ nage of ferrous scrap. This discrepancy between thesubmissions and the subject-matter of theapplication aresaid to make theapplication inadmissible in itsentirety.

SinceApplications 26/65 (Feram) isinadmissibleas being out of time, the objection need onlybe examined from thepoint ofview of Application 25/65 (Simet).Although there isa passagein theapplication indicating that its subject-matteris the annulmentof general Decision No 7/63, such is not the case asregards theconclusions which are expresslyformulated by the appli­ cant Simet. In these circumstances, it mustbe accepted that the applicant Simetonlyintendedto plead allthe groundsfor annulment insupport of an objection of illegalityagainst Decision No7/63.

(b) The defendantargues, as regards Case25/65 (Simet), thatits general Decision No7/63 servesas a basisonly forthe individual decision of 11 February 1965imposing the obligation to pay. The application,however, contains no submission or argumentagainstthe latter decision. Thus there islacking in the present casethat directlegal connexionbetween the con­ testedindividual measure and thegeneral decision on which it is founded in theabsence of whichthe illegalityof the general decision cannot bepleaded.

It hasbeen decided underheading 2 abovethat thetwo individual decisions of 11February 1965 constitute a single whole.In these circumstances the applicant Simetis entitled to plead the illegality of general Decision No 7/63 in support of submissions directed againstone or other of the twocontested individual decisions.

II — The substance

The justification for resorting to an estimated assessment

Under Article 2 of Decision No 13/58of 24 July 1958, relating to the management ofthe financialarrangements institutedby Decisions Nos 22/54, 14/55, 26/55,3/56 and 2/57, andunder Article15 of Decision No 16/58 of the same dateestablishing financialarrangement making it possibleto ensure a regular supplyof scrapto the Common Market, as amended by Decision No 18/58of 15 October1958, theHigh Authority is empowered, where undertakings fail to declare information requiredfor the calculation of con­ tributions, to makeestimated assessments. TheHigh Authority is also em-

The contesteddecision relies on the applicant's failure to produce certain accounting documents, which itlists, inorder to claimthat the High Author­ ity was 'compelled ... to ascertainthe undertaking'sconsumption of scrapby means ofan estimated assessmentbased onthe consumption of electricity'. In thisrespect it mustbenoted that by itsdecisionof 22 July 1959 'relating to the carrying out ofa checkatthe premises oftheundertaking Simet' and containinginstructions thatdocuments bemade available,the HighAuthority demanded theproduction of certaindocuments only two of which appear in the listof evidentiary accountingdocuments contained in the contested de­ cision. According tothedefendant, however, 'thegeneral expressionused in the decision of22 July1959... is capable of covering any kind ofdocument which couldserveto verify whether the declarations submitted by the under­ taking were correct'. It follows,therefore that thecontesteddecision is wrong in justifying itsrecourse to anestimatedassessmenton the groundthat the High Authority was compelled to do so'sincethe undertaking failed to submitac­ countingdocuments', which itlists, whenit is apparent from the foregoing considerationsthat otherevidence could havesufficed to serve the desired purpose.More particularlyit should be pointedout that,as regards the day book, the defendanthas maintained throughoutthe proceedings that '(the day book) itselfwould have been enoughto enablethe High Authority to ascer­ tain thereal facts assuming thatthe daybook gavea true reflexion of them'.

Onthe other hand,as regards theproduction of documentaryevidence, the parties are notin agreement over the applicant'sstatementthat it did not refuse tosubmit tothe inspectors of the High Authority and of the Société Anonyme FiduciaireSuisse certainaccounting documents and more particu­ larlythe invoices book and theday book,which arecompulsory commercial records under theapplicant's national law.

Inview ofthese reports, whichoriginate from itsown authorized representa­ tives, itill becomes the HighAuthority tomaintain that the applicant refused tosubmit documents which it was in fact requestedto submit.

Since the contested decision is based exclusivelyon the statement, which has notbeen proved,that Simet failedto supply evidence of proof andsince the probative value of Simet's declarationshas not beencalledin issue, the de­ cision provides no justification for theground on which it alleges that it was necessary to resort to an exceptionalassessment procedure. Accordingly, both the decisiondeterminingthe consumption of assessable scrap and, conse­ quently, the decision of the same date, fixing,on the basis of the said esti­ mated assessment, the amount of the contributions due fromSimet to the equalization scheme,must be annulled.

III — Costs

Under Article 69 (2)of the Rulesof Procedurethe unsuccessfulparty shall beordered to paythe costs.The defendant High Authority has failedin its submissionson the applicationof the Simetcompany (Case 25/65). It must therefore beordered topay the costsin that case.

SIMET AND FERAM v HIGH AUTHORITY

The application of theapplicant Feram hasbeen declaredto be inadmissible (Case 26/65). Itmusttherefore be ordered to paythe costs in that case.

3.Dismissesthe application of the company Acciaieriee Ferriere di Roma (Feram);

4.Orders thecompany of Acciaieriee Ferriere di Roma (Feram)to pay the costs of the proceedings inCase 26/65.

Hammes Trabucchi

Donner Lecourt Strauß

Delivered inopen court inLuxembourg on 2March 1967.

M. J.Eversen Ch. L. Hammes