C-70/69
ECLI:EU:C:1971:27
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JUDGMENT OF THE COURT 16 MARCH 19711
Acciaieria e Ferriera di Roma (Feram) v Commission of the European Communities
Case 70/69
Summary
1. Common financial arrangements—Equalization—General decision taken with the assent of the Council—Recommendations formulated in the assent without effect on the assessment of the powers provided for in the decision (ECSC Treaty, Article 53)
2. Common financial arrangements—Equalization—Normal disadvantages—Absence of damage (ECSC Treaty, Article 40, Article 53)
3. Liability of the ECSC—Wrongful act or omission—Existence of frauds—failure of the administration in its duty of supervision—Insufficient proof (ECSC Treaty, Article 40)
1. The recommendations drawn up by 2. The inevitable and inherent disad the Council upon the giving of an vantages in the equalization scheme assent cannot have the effect of re which, of its nature, necessitates a stricting or modifying the express posteriori calculations for the fixing powers conferred by the decision of the rate do not constitute damage which is the subject of that assent. giving a right to compensation. The legality of decisions taken in implementation of a general decision 3. The existence of frauds does not alone which has been the subject of an suffice to prove that the administra assent can therefore be examined only tion has failed in its duty of super on the basis of the actual provisions vision and consequently is guilty of of that general decision. a wrongful act or omission.
In Case 70/69
ACCIAIERIA E FERRIERA di Roma (FERAM) S.P.A., having its registered office at 18 Via della Ranocchia, Rome, represented first by Arturo Cottrau and then by Giorgio Cottrau, of the Turin Bar, with an address for service in Luxem bourg at the Chambers of Georges Margue, 20 rue Phillippe-II, applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, Antonio Abate, acting as Agent, with an address for service in Luxembourg at the office of Émile Reuter, 4 boulevard Royal, defendant, 1 — Language of the Case : Italian.
JUDGMENT OF 16. 3. 1971 — CASE 70/69
Application for
— the annulment of the individual decision of the Commission of the European Communities of 9 October 1969, requiring the Feram under taking to pay supplementary contributions under the provisions concerning the equalization scheme for imported ferrous scrap and scrap treated as such; — compensation for damage caused by a wrongful act or omission of the defendant,
THE COURT
composed of: R. Lecourt, President, A. M. Donner (Rapporteur), and A. Trabucchi, Presidents of Chambers, R. Monaco, J. Mertens de Wilmars, P. Pescatore and H. Kutscher, Judges,
Advocate-General: K. Roemer Registrar: A. Van Houtte
gives the following
JUDGMENT
Issues of fact and of law
I — Facts and procedure 105 889 634 as at 31 May 1963 (cal culated on the basis of 32 805 metric The facts on which the proceedings are tons of bought scrap). The application based may be summarized as follows: made by the Feram undertaking against By Decision No 7/63 of 3 April 1963 that decision was dismissed as inadmis (OJ No 54 of 6. 4. 1963) concerning the sible (Joined Cases 25 and 26/65 [1967] drawing up of statements of account re ECR 33). lating to ferrous scrap and scrap treated General Decision No 19/65 of the High as such, the High Authority of the Authority of 15 December 1965 (OJ ECSC provided for a regrouping of No 224 of 30. 12. 1965), on the drawing movements of funds in respect of the up of final statements of account relat Brussels Fund (CPFI) and the Luxem ing to the equalization of imported fer bourg Fund, and the provisional closure rous scrap and scrap treated as such, on 31 May 1963 of the accounts of each provides for the final fixing on the one undertaking subject to the equalization hand of the rates of equalization con scheme. tributions and on the other hand of the By an individual decision of 11 February rates in respect of interest charges 1965, adopted pursuant to Decision No (Articles 4 and 2) and furthermore lays 7/63, the contributions due from the down in particular: Feram undertaking were fixed at lit — that the capital balance of each
FERAM v COMMISSION
undertaking (constituted by its credits open the oral procedure without a pre and its payments on the one hand paratory inquiry. and contributions due on the other The parties presented oral argument at hand) was to bear interest at 5% the hearing on 12 January 1971. from 31 May 1963 until the date on The Advocate-General delivered his which payment is made and in no opinion on 2 February 1971. case later than 31 December 1965 (Article 5 (1)); — that a complete statement of account II — Conclusion of the par ties drawn up as at 31 December 1965, and taking into consideration in re spect of each accounting period all The applicant claims that the Court debits and credits of principal and should: 'interrogate the defendant on the if interest was to be sent to all un following circumstances: dertakings concerned (Article 6); 1. What is, at the present time, the exact tonnage of scrap, calculated — that as from 1 January 1966, the credit or debit balance in accordance year by year on which the equaliza with this statement of account was to tion levy was wrongly charged from 1 April 1954 to 31 March 1959? bear interest at 5%, p.a. which was 2. What was the exact amount of the to be converted into capital (Article 5 (3)); expenses borne by the Community calculated year by year as from 1 — that after 31 December 1965 receipts January 1968, to carry out a check from actions for recovery of wrong of the tonnages of scrap involved fully charged equalization amounts in fraud, for legal expenses, travel and bad debts were to be divided ling expenses, etc., and what among all the undertakings affiliated are those which were incurred to the equalization scheme in pro normally from 1 April 1954 to 1 portion to the basis of their assess January 1958 to have a check made ment to contribution. of the working of the Brussels The application of these rules to the organizations? Feram undertaking (still in respect of 3. What is the exact amount today of a quantity of scrap amounting to 32 805 the equalization sums improperly metric tons) shows, as at 31 December paid to those committing frauds and 1968, a supplementary amount of lit. which the Community has succeed 24 189 879, which had been charged ed in recovering? to the Feram undertaking by a decision 4. What are the names of the persons of the Commission of the EC of 9 responsible for the frauds and of October 1969, a decision which is the their accomplices who have been the subject of the present application. subject of proceedings and what are The application was lodged in the Court the tonnages and the amounts im Registry on 29 November 1969. properly paid? The written procedure followed the 5. Have employees and officials of the normal course. Joint Bureau of Ferrous Scrap Con Because of the connexion between the sumers (the "OCCF") and the Im present case and Case 67/69, the Court, ported Ferrous Scrap Equalization by order of 8 July 1970, decided to join Fund (the "CPFI") been the subject them for the purposes of the oral pro of proceedings? If so, who are guilty cedure. and who have been discharged? On hearing the report of the Judge- 6. What is the exact amount of im Rapporteur and the views of the ported ferrous scrap and scrap Advocate-General, the Court decided to treated as such imported into
JUDGMENT OF 16. 3. 1971 — CASE 70/69
France during the period from 1 relative to the question at issue in April 1954 to 31 December 1956 the application, and in particular in respect of which the customs the copy of the quarterly reports documents had already been destroy sent to the High Authority by the ed when the Community inspectors Société Fiduciaire de Belgique on asked for them? What is the amount the subject of the inquiry made into imported into Belgium during the the management of the OCCF and
same period? of the CPFI of Brussels, for the 7. What legal measures or administra period from 1 April 1954 to 31 tíve sanctions were taken in respect March 1959. of the employees of Campsider in 11. Declare the present application to Italy who had removed all docu be admissible. ments capable of proving validly 12. Declare Decisions Nos 7/63 and the origin of the scrap taken into 19/65 on which the contested in account for equalization? dividual decision is based to be
8. What is the present state of pro irregular in form and illegal in ceedings in the civil action which substance and consequently annul the High Authority stated it had the individual decision for the rea brought against the Netherlands sons set out in the present applica State in order to obtain compensa tion, which will be expounded more tion for damage caused to the Com fully in later pleadings and oral munity by the issue of false docu submissions. ments by one of its officials?
13. Hold the defendant liable for the 9. Is it true that the Federal Trade wrongful act or omission (Article 40) Commission in the United States constituted by the fact that it noti on 29 May 1961 (No 6516, Federal fied Feram validly for the first time Judge John Lewis) concerning the on 27 October 1969 of the amount action brought against "Luria of the interest and for having obliged Brothers and Company Corporation" it, thus causing it damage, to pub stated the following: "It is clear lish its own price list after an that the agreements made between average delay of 14 years without the OCCF and Luria Brothers and knowing the amount of this unduly Company had the effect of limiting high payment and therefore without trade competition in the purchase having been able to take account of scrap made by the OCCF on the of it in drawing up its price list. United States market. In view of 14.
Calculate the damage suffered by the position of the Luria company the applicant, by reason of the com in the American market and the size plaints put forward in the preceding of the scrap purchasing schedule of paragraph, to the extent of 15% of the OCCF, the agreement made the total sales of steel during the between these two parties clearly period when the compulsory scheme created a monopoly in favour of the for the equalization of imported Luria group in respect of the export ferrous scrap or scrap treated as of scrap by the United States .
. . It such was in force in the Com is impossible not to see that the munity or, failing that, ask an expert basic structure of such an agreement to be appointed to establish the and its objective have remained exact amount; what they actually were: anti-trust 15. Hold the defendant responsible for agreements."? the secret conclusion of an agree 10. Order the defendant in accordance ment with the Council of Ministers with Article 23 of the Protocol to of the Community by which it produce to the Court all documents undertook to commit a serious
FERAM v COMMISSION
breach of the duty of supervision (b) that the High Authority (Commis and checking which is imposed upon sion) disregarded the recommenda it by the law which governs the tions which the Council made when European Coal and Steel Com giving its assent to Decision No munity as well as by the normal 14/55, including particularly: '
diligence which any public admini stration should show, thus making 3. To avoid increasing the cost price easy the practice and perpetuation in the whole of the Community within the compulsory ferrous scrap and in particular increasing the equalization scheme of large-scale net burden borne in the working frauds involving a very large sum. of the fund by certain regions of the Community, the equalization The applicant would be fully in levies must not be increased with agreement if the Court considered out a very serious reason. it appropriate to try to resolve the 4. The effort made to assist imports present case extra-judicially and and a reasonable price level must amicably, which would be advan not encourage either in existing tageous for both parties. plant or by the creation of new 16. Order the defendant to pay the costs plant, an ill-considered expansion including the advocate's fees.' in the consumption of scrap ' The defendant contends that the Court (Third General Report on the should: activities of the Communities, p. 106); 'Reject all the claims made by the (c) that the amount of the equalization Acciaieria e Ferriera di Roma—Feram rates was decided in an incorrect in its Application 70/69 of 29 manner, the average weighted costs November 1969 and order the appli of internal recovered scrap being cant to pay the costs and expenses priced at too low a level and those of the case.' of imported scrap at too high a level; In its rejoinder the defendant further (d) that the High Authority (Commis contends that the Court should: sion) has always failed to justify the 'Join the present case to Case 67/69, management of the Equalization commenced by the Società Industriale Fund by a detailed account of the metaiiurgica di Napoli (Simet)'. factors to be taken into account; (e) that under Article 53 (b) of the III — Submissions and argu Treaty, the High Authority should ments of the parties have sought the assent of the Council to Decision No 19/65. The submissions and arguments of the The defendant replies to these com parties may be summarized as follows: plaints: (a) that this argument has already been A— The application for annulment rejected by the Court in Case 18/62 The applicant asks for the annulment of [1963] ECR 259; the contested decision by pleading the (b) that even supposing that the recom illegality of General Decisions Nos 7/63 mendations put forward were manda and 19/65. tory, on the one hand the increase In this respect it alleges in particular: in contributions is due essentially (a) that these regulations produce dis to the imposition of interest charges crimination by excluding from scrap resulting from Decision No 7/61, the equalization scrap from steel alloys legality of which the Court has and scrap intended for integrated accepted (Case 111/63, [1965] ECR foundries; 677), and on the other hand the
JUDGMENT OF 16. 3. 1971 — CASE 70/69
increase in consumption of scrap is an unlawful act or omission in regard to due only to the increase in produc the applicant. tion of steel during the years 1954 to 1958; (a) Admissibility (c) that in fixing the average weighted According to the defendant this head of price of imported scrap, the High the application is inadmissible because, Authority based itself on the con on the one hand, it is not stated what are tracts of purchase laid down by the the irregularities constituting the unlaw OCCF, and that as concerns internal ful acts or omissions of the Community, recovered scrap, the Court in Case so that the requirements of Article 22 30/65 ([1966] ECR 35) rejected the of the Protocol on the Statute of the complaints made in that respect; Court and Article 38(1) of the Rules of (d) that within the limits imposed upon Procedure are not satisfied and because, it by Article 47 of the Treaty the
on the other hand, the action is pre High Authority has given a full statement of the reasons for the mature, since the amount of the possible damage flowing from the said frauds decisions in question; depends essentially on the result of (e) that Article 53 (b) of the Treaty actions for recovery currently pending. applies only to decisions instituting The applicant did not express its views financial arrangements. on the admissibility of its request. B — The action for damages (b) On the substance of the case In order to support this request the
applicant bases its action on two com Relying in particular on the opinions of plaints: the Advocates-General of the Court in 1. It states that by taxing highly trans Case 33/59 [1962] ECR 381), on the actions carried out fifteen years previous one hand, and in the Joined Cases 9 ly makes it impossible to recover —which and 25/64 ([1965] ECR 311), on the such taxation in sales prices—the Com other hand, the applicant states that the mission has committed a wrongful act High Authority has failed in its duties or omission in regard to the applicant. of supervision in respect of equalization The defendant alleges that a similar of scrap and that consequently the complaint was rejected by the Court in frauds which took place may be imputed Case 20/60 (Rec. 1961, p. 319 et seq.). to a wrongful act or omission of the In fact the delay with which the final Community. These frauds contributed detailed account was communicated to to increasing the rates of contribution the applicant is only the inescapable imposed on the undertakings subject to consequence of a system necessarily the equalization scheme so that they implying a posteriori calculations and directly caused damage to these under consequently cannot amount to a wrong takings, including the applicant.
As to ful act or omission. If the applicant at the exact evaluation of the damage, the the time of the fixing of sales prices for applicant considers that it can be made the period 1954 to 1958 was not able on the basis of the facts which are at to take account of the exact cost of the disposal of the Commission and the equalization, this was a normal incon production of which it asks the Court venience of the system, which cannot to order. be classified as damage capable of being The defendant denies the existence of attributed to the Community. a wrongful act or omission on its part
2. Furthermore the applicant considers alleging in particular: that the behaviour of the defendant in — that the 'Brussels organizations' (the respect of the frauds committed in res OCCF and CPFI), which carried out pect of scrap equalization, amounts to the management of the scrap
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equalization scheme during the period — that since when it became aware of when the frauds were committed, the frauds, the High Authority took were not part of the High Authority, action, first with care then with but were entirely distinct from the increasing energy, its behaviour cer latter and were furthermore governed tainly cannot be classified as gross by private law (cf. Judgment of the malfeasance. Court in Case 9/56, Rec. 1958, p. — that even supposing the management 42); of the equalization scheme devolved — that consequently a wrongful act or directly upon the High Authority, omission can originate only in the its responsibility can be raised only supervision of the management of the in case of 'gross malfeasance'—a scheme, which devolved on the High solution also accepted by French Authority; case-law (cf. Opinion of Mr — that in respect of the supervision of Advocate-General Lagrange in Case activities governed by private law by 23/59, Rec. 1958-1959, pp. 525 and public authorities, Community law 526). provides no rules, so that it may be Furthermore the applicant cannot claim useful to consider the solutions to have suffered actual and existing reached by the national laws of the damage when, on the one hand, it has Member States; still not paid the whole of its contribu — whilst Italian law excludes any tions and, on the other hand, the responsibility by the administration damage itself is only future and un in this respect, French law accepts certain, since actions for recovery are it only in case of 'gross malfeasance'. still pending.
Grounds of judgment
ι By an application of 27 November 1969, lodged at the Court Registry on 29 November 1969, the Feram undertaking of Rome brought before the Court:
(a) an application for the annulment under the combined provisions of Articles 33 and 36 of the Treaty establishing the European Coal and Steel Community of the decision of the Commission of the European Com munities of 9 October 1969, taken in implementation of the provisions concerning the equalization of imported ferrous scrap and scrap treated as such and requiring the Feram company to make supplementary equaliza tion payments; and
(b)an action for damages under Article 40 of the same Treaty against the European Coal and Steel Community.
The application for annulment
2 The applicant requests the annulment of the contested decision on the ground that General Decisions Nos 7/63 and 19/65, of which the contested decision constitutes the application, are illegal in several respects.
JUDGMENT OF 16. 3. 1971 — CASE 70/69
3 A — These decisions are said to be discriminatory to the extent to which they exclude from the obligation to pay contributions and from the right to receive equalization payments, the tonnages of purchased alloy steel scrap and, in the case of undertakings having a steel foundry, the proportion of bought scrap consumed corresponding to the proportion of production of crude steel for castings.
4 The defendant has argued that the exemption of alloy steel scrap is justified by the difference between the alloy scrap market and that of ordinary scrap, the price of alloy scrap depending rather on the proportion of noble metals found in it than on that of ferrous scrap. The inclusion of alloy scrap in the equalization scheme had, according to the defendant, an undoubted influence on the market in non-ferrous metals which do not fall within the ECSC Treaty. The defendant has given as a reason for the exclusion of scrap intended for integrated foundries, the necessity not to change the normal conditions of competition between them and the independent foundries.
5 These explanations, which are not disputed by the applicant, in substance appear acceptable. The High Authority, by adopting General Decisions Nos 7/63 and 19/65 which furthermore only re-enacted previous provisions, was entitled to take the view that a proper application of the principles of the Treaty required the exclusion of the said scrap from the equalization scheme and that there is nothing to show that in doing this it distorted the scheme and made it discriminatory.
6 Consequently the complaint must be rejected.
7 B — Further, according to the applicant the competent authorities disregarded the recommendations which the Council of the ECSC made when giving its assent to Decision No 14/55 of the High Authority of 26 March 1955 estab lishing financial machinery designed to ensure a regular flow of scrap for the Common Market (OJ No. 8 of 30.3.1955, p. 685).
8 Recommendations drawn up by the Council upon the giving of an assent such as that prescribed in Articles 28 and 53 of the Treaty cannot have the effect of restricting or modifying the express powers conferred by the decision which is the subject of that assent. The legality of decisions taken in imple mentation of a general decision which has been the subject of an assent can therefore be examined only on the basis of the actual provisions of that general decision.
9 Consequently even if it were established, which the defendant denies, that in exercise of the powers conferred by Decision No 14/55 the competent auth orities disregarded the recommendations of the Council, this would have
FERAM v COMMISSION
consequences only as regards the relations between those authorities and the Council, but could not invalidate decisions taken in conformity with the pro vision in respect of which the assent was given.
Furthermore, Decision No 14/55 was supplemented and amended by several later decisions which also obtained the requisite assent of the Council, par ticularly Decision No 16/58 of the High Authority of 24 July 1958 (OJ No. 10 of 30.7.1958, p. 275), by which the scheme was renewed. There is nothing to indicate that on these occasions the Council found that its initial recom mendations had been disregarded.
10 The complaint must therefore be rejected.
11 C — The applicant goes on to allege that the data used as the basis of the average weighted equalization prices fixed by Decisions Nos 7/63 and 19/65 are correct. It says that the average weighted costs of internal recovered scrap were excessively reduced whilst the average costs of imported scrap were in creased so that the equalization rate was raised to an unnecessarily high level. According to the experience of the applicant itself the prices of internal recovered scrap were consistently higher than the average prices adopted by Decisions Nos 7/63 and 19/65.
12 The defendant replies that the basic data for fixing average prices of imported scrap were taken directly from contracts of purchase made by the Joint Bureau of Ferrous Scrap Consumers, the only body competent to make pur chases of scrap on the international market on behalf of undertakings which requested it to do so and that this fixing of prices consequently cannot attract any criticism. As regards the average prices of scrap bought within the market, the necessary data were derived from the monthly declarations of the undertakings containing information concerning the prices paid. These de clarations were strictly supervised by the checking of purchase invoices. The defendant further states that it is in the nature of the scrap market to cause, particularly on the basis of the location of consuming undertakings, price differences which are in themselves compatible with the unity of the market.
13 The applicant has submitted nothing capable of constituting even the begin nings of proof of its allegations. In particular it has failed to prove that the price differences in the market were changed through the functioning of the equalization scheme or that the functioning of the scheme aggravated the dis advantages which it suffered in comparison with better situated undertakings.
14 The complaint must therefore be rejected.
JUDGMENT OF 16. 3. 1971 — CASE 70/69
15 D — The applicant lastly alleges that the reasons for Decisions Nos 7/63 and 19/65 are inadequately stated.
In its reply it stated that by this complaint it did not intend to require that the documents justifying the various figures laid down by these decisions should be annexed to the decisions or published, but asks that the defendant should submit the books of account relating to the equalization scheme to an official auditor of accounts or to a committee of representatives of under takings and that the defendant should publish the resulting report.
16 The reasons for the provisions of Decisions Nos 7/63 and 19/65 are given in both the preambles and annexes to those decisions. The requirement of a final check of the accounting of the equalization scheme is concerned not with the supervision of the legality of the decisions in question but with the efficiency of the working of this scheme which is a matter for other institutions and authorities of the Communities and particularly the Parliament and the auditor.
17 Further, the defendant has stated that all the figures set out in the annexes to Decisions Nos 7/63 and 19/65 were submitted by its officers to repeated examinations and checks and that the auditor of the ECSC always exercised his supervision over the management and the annual accounts of the equaliza tion scheme.
18 The complaint must consequently be rejected.
19 E — The applicant further regards Decisions Nos 7/63 and 19/65 as illegal because they were not submitted to the Council and did not receive its assent as required by Article 53 of the Treaty.
20 However, that article requires the unanimous assent of the Council only for decisions by which the High Authority institutes financial arrangements. The contested decisions amount only to measures implementing Decisions No 18/58 which itself was given the requisite assent of the Council.
21 It follows that the objection of illegality raised against Decisions Nos 7/63 and 19/65 must be dismissed. Consequently the principal application for annulment must also be dismissed.
The application for damages
22 In its originating application the applicant asks the Court to hold the defen dant liable for wrongful acts or omissions within the meaning of Article 40 of
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the Treaty. A first unlawful act or omission is said to be constituted by the fact that on the one hand the Commission validly notified it for the first time on 18 October 1969 of the amount of its equalization contributions, whilst on the other hand, the applicant was obliged to publish its price lists for the period subject to equalization (April 1954 to November 1958) without know ing the amount of those contributions. The damage suffered by the applicant under this head amounts to 15% of its total sales of steel during the con tribution period.
23 A second wrongful act or omission is said to be constituted by the fact that because of its commitments to the Council, the High Authority was seriously in breach of the duty of supervision which is imposed upon it by the Treaty and grossly failed to exercise the normal diligence which any public admini stration must show, thus facilitating the perpetration of large-scale frauds within the framework of the equalization scheme. In its conclusions the applicant stated lastly that it would accept any solution capable of fixing the amount of damage which it had suffered.
24 As concerns the first head of the claim, the very nature of any equalization scheme which could legally have been established by the general decisions of the High Authority necessarily implied a posteriori calculations. In fact the equalization rate could be fixed only following consideration of a series of factors such, in particular, as the prices and the respective total quantities of imported scrap and of scrap purchased within the market.
25 In order to ascertain these factors the competent authorities depended par ticularly on the care with which the undertakings concerned carried out their duty to make the necessary declarations. It is common knowledge and further more proved by this very case that certain undertakings have not always shown all the care required. The applicant has not however alleged that the administration was guilty of negligence by failing to use the requisite vigour in reminding those subject to its administration of their duties.
26 In fact the disadvantages complained of were inevitable and inherent in the equalization scheme.
Such disadvantages cannot amount to damage giving rise to a right to com pensation especially as they affect all iron and steel undertakings in the Community and equalization has on the other hand brought considerable benefits to users of scrap as a whole.
27 In the present case it has not been established that the disadvantage suffered by the applicant exceeded that normally inherent in the chosen scheme or those suffered by its competitors. It cannot be disputed, furthermore, that while the
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scheme was functioning the applicant was regularly informed of the amount of its contributions as appeared on the one hand from provisional calculations by the administration and on the other hand from declarations made by itself regarding its purchases of scrap. In December 1965 at the latest it received its virtually definitive statement of account which was, of course, subject to its obligation to pay interest which was legally due from it.
28 Since neither the existence of a wrongful act or omission nor of damage special to the applicant has been established, the first head of the action for damages must be dismissed.
29 As regards the second head of the action it appears from the originating application that by the commitments which it mentions the applicant has in mind the recommendation of the Council, formulated at the time of the assent to Decision No 14/55 mentioned above, that the High Authority should limit very strictly the actions taken in respect of supervision exercised over the measures adopted by the Brussels organizations and their national offices. Acting in accordance with that recommendation the High Authority is stated to have failed in its duty to ensure the achievement of the objectives both of the Treaty and of the financial arrangement.
30 The possible existence of the alleged commitments is in any event irrelevant in the present case, since the responsibility of the Community authorities must be considered in the light of the established rules and the valid prin ciples applying to the matter. The High Authority, furthermore, has never sought to exonerate itself by relying on such recommendations of the Council, nor could it do so.
31 The applicant based its complaints of lack of supervision and of care on nothing more than the fact that very serious frauds took place in the manage ment of the equalization scheme.
32 The defendant considers the claim to be inadmissible on the ground that it is not possible to see exactly which facts the applicant intends to rely upon, as the basis of its right to compensation.
33 The mere fact that frauds took place does not by itself prove that the ad ministration failed in its duties of supervision and consequently was guilty of a wrongful act or omission. The Commission has stated that the tonnages of scrap wrongfully accepted for equalization amount to approximately 2% of the total tonnage accepted and that the frauds complained of, although they amounted to a serious handicap, were not of such a character as to distort the equalization scheme or throw it out of balance.
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It has stated also that at present four-fifths of the wrongly paid sums have been recovered and that as to the rest, proceedings for recovery are still pending.
34 Having regard to these observations, which were not disputed during the proceedings, the complaints put forward must be supported by much more precise particulars than the general assertions to which the applicant has confined itself, in order to be taken into consideration as proof of the exis tence of a wrongful act or omission.
This head of the action for damages must consequently also be rejected.
Costs
Under Article 69(2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs.
The applicant has failed in its submissions.
On those grounds,
Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Coal and Steel Community, especially Articles 33, 36, 40 and 53; 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,
THE COURT
hereby:
ι. Dismisses the application;
2. Orders the applicant to bear the costs.
Lecourt Dormer Trabucchi
Monaco Mertens de Wilmars Pescatore Kutscher
Delivered in open court in Luxembourg on 16 March 1971.
A. Van Houtte R. Lecourt Registrar President