61965J0008

++++

BASIS OF ASSESSMENT - ESTIMATED ASSESSMENT - STATEMENT OF REASONS

WHEN AN ESTIMATED ASSESSMENT IS MADE, WHICH, BY BRIEFLY SETTING FORTH THE ESSENTIAL FACTOR ON WHICH IT IS BASED, IS SUFFICIENT IN LAW, THE ADMINISTRATION IS NOT BOUND TO EXPLAIN SUCH ASSESSMENT IN DETAIL OR REPRODUCE THE ACCOUNTING DOCUMENTS AND TECHNICAL ANALYSES ON WHICH IT IS BASED .

WHEN AN UNDERTAKING SUPPLIES EXPLANATIONS WHICH ARE NOT IRRELEVANT, THE HIGH AUTHORITY, AS DEFENDANT, MAY NOT RESTRICT ITSELF TO A MERE ASSERTION THAT THESE EXPLANATIONS ARE NOT ENTIRELY CONCLUSIVE AND ABSTAIN FROM STATING THE REASONS FOR ITS DECISION .

IN CASE 8/65

ACCIAIERIE E FERRIERE PUGLIESI SPA, A LIMITED LIABILITY COMPANY, WITH ITS REGISTERED OFFICE AT GIOVINAZZO, REPRESENTED AND ASSISTED BY CARLO SELVAGGI, ADVOCATE OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCATE, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY PROFESSOR ROLANDO QUADRI, ADVOCATE OF THE NAPLES BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY OF 13 NOVEMBER 1964, RELATING TO THE APPLICANT'S FINANCIAL OBLIGATIONS UNDER THE SCHEME FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH,

P.6

A - ADMISSIBILITY

THE ADMISSIBILITY OF THE APPLICATION MADE AGAINST THE HIGH AUTHORITY'S DECISION OF 13 NOVEMBER 1964, FIXING THE APPLICANT'S FINANCIAL OBLIGATIONS WITH REGARD TO THE EQUALIZATION SCHEME, IS NOT DISPUTED AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THE APPLICATION IS THEREFORE ADMISSIBLE .

B - SUBSTANCE OF THE CASE

THE FIRST SUBMISSION

THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION INFRINGES AN ESSENTIAL PROCEDURAL REQUIREMENT CONSISTING IN A FAILURE TO STATE ADEQUATELY THE REASONS FOR THE DECISION . ACCORDING TO THE APPLICANT THE DECISION ONLY JUSTIFIES THE CORRECTIONS MADE TO THE DECLARATIONS SUPPLIED BY THE APPLICANT TO FIX THE ASSESSMENT OF ITS CONTRIBUTIONS BY THE MERE ASSERTION THAT THE EVIDENCE FOR THE USE OF THE FERROUS SCRAP IN DISPUTE ELSEWHERE THAN IN ITS STEELWORKS WAS NOT SUPPLIED, ALTHOUGH THAT EVIDENCE WOULD HAVE BEEN CAPABLE OF EXEMPTING THE FERROUS SCRAP FROM THE EQUALIZATION CHARGES . IN SO REVERSING THE BURDEN OF PROOF, THE DEFENDANT FAILED TO GIVE REASONS SUFFICIENT IN LAW FOR THE CORRECTIONS TO THE DECLARATIONS, WHICH WERE PROPERLY MADE BY THE APPLICANT, OF THE QUANTITIES OF FERROUS SCRAP SUBJECT TO CONTRIBUTION .

IN THE SIXTH AND SEVENTH RECITALS IN THE PREAMBLE TO THE CONTESTED DECISION THE DIFFERENCES FOUND, WHEN THE CHECKS WERE CARRIED OUT, BETWEEN THE TONNAGES DECLARED AND THE TONNAGES IN FACT SUBJECT TO EQUALIZATION CONTRIBUTIONS, ARE DECLARED TO AMOUNT TO 10 520 METRIC TONS . IN THE EIGHTH RECITAL THE SAID DECISION SHOWS THE CORRECTIONS TO BE MADE AS FOLLOWS :

' 1 055 METRIC TONS OF FERROUS SCRAP PURCHASED WHICH THE UNDERTAKING STATES WERE INTENDED FOR ITS INTEGRATED FOUNDRY ( AN ACTIVITY NOT SUBJECT TO THE TREATY ), WITHOUT HOWEVER SUPPLYING ANY DEFINITE PROOF OF THIS; 9 200 METRIC TONS OF FERROUS SCRAP, WHICH THE UNDERTAKING CONSIDERED AS RETURN SCRAP WITHOUT HOWEVER SHOWING THAT IT HAD USED THESE QUANTITIES FOR THIS PURPOSE; ON THE OTHER HAND THAT QUANTITY MUST BE CONSIDERED AS EQUIVALENT TO AN INCREASE IN THE STOCKS OF FERROUS SCRAP, AS IS CLEAR FROM THE GENERAL STATEMENT OF MOVEMENTS OF FERROUS SCRAP;

364 METRIC TONS OF FERROUS SCRAP SOLD, ORIGINATING FROM THE INTEGRATED FOUNDRY'S STOCKS OF FERROUS SCRAP ( NOT SUBJECT TO CONTRIBUTION ) WHICH THE UNDERTAKING WRONGLY DEDUCTED;

1 347 METRIC TONS OF FERROUS SCRAP TRANSFERRED FROM THE STEELWORKS TO THE FOUNDRY, FOR WHICH OPERATION NO EVIDENCE HAS AS YET BEEN SUPPLIED . '

P.7

IT IS AGREED THAT FOR THE PERIOD TAKEN INTO ACCOUNT BY THE CONTESTED DECISION, THE APPLICANT UNDERTAKING USED CERTAIN QUANTITIES OF FERROUS SCRAP IN ITS STEELWORKS AND CERTAIN OTHERS IN ITS INTEGRATED IRON FOUNDRY AND THAT THE LATTER WERE NOT LIABLE TO CHARGES UNDER THE EQUALIZATION SCHEME . IN VIEW OF THESE CIRCUMSTANCES, THE HIGH AUTHORITY MAY, UNDER CERTAIN CONDITIONS, REQUIRE THAT THE TONNAGES OF FERROUS SCRAP NOT SUBJECT TO THE EQUALIZATION CONTRIBUTIONS SHOULD BE FIXED ON THE BASIS OF RELIABLE DATA . THE ABSENCE OF SUCH DATA MAY JUSTIFY RECOURSE TO AN ESTIMATED ASSESSMENT .

IN INDICATING, IN THE RECITAL QUOTED ABOVE, THAT THE APPLICANT UNDERTAKING HAD NOT CORRECTLY DRAWN UP ITS DECLARATIONS WITH REGARD TO THE TONNAGES EXEMPT FROM CONTRIBUTIONS, THE CONTESTED DECISION SETS FORTH, ALBEIT BRIEFLY, THE ESSENTIAL FACTOR ON WHICH IT IS BASED . WHEN IT STATES THE REASONS FOR ITS DECISION, THE DEFENDANT IS NOT BOUND TO EXPLAIN ITS ASSESSMENT IN DETAIL OR TO REPRODUCE THE ACCOUNTING DOCUMENTS AND TECHNICAL ANALYSES ON WHICH ITS ASSESSMENT IS BASED .

THE APPLICANT DISPUTES THE MATERIAL ACCURACY BOTH OF THE REASONS FOR THE CONTESTED DECISION AND OF THE AMOUNT OF THE CORRECTIONS MADE TO ITS DECLARATIONS . THIS CRITICISM DOES NOT RELATE TO THE SUBMISSION OF AN INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .

THE REASONS FOR THE CONTESTED DECISION ARE SUFFICIENT IN LAW, AND THE FIRST SUBMISSION IS THEREFORE UNFOUNDED .

THE SECOND SUBMISSION

IN THE FIRST PLACE THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION INCREASED THE BASIS OF ITS ASSESSMENT TO CONTRIBUTION BY 1 055 AND 1 347 METRIC TONS OF FERROUS SCRAP WHICH THE HIGH AUTHORITY WRONGLY REFUSED TO RECOGNIZE AS HAVING BEEN USED IN THE IRON FOUNDRY . IN SUPPORT OF ITS ARGUMENT, THE APPLICANT HAS PRODUCED EXTRACTS FROM ITS BOOKS OF INVOICES TO ESTABLISH THAT, DURING THE PERIOD IN DISPUTE, ITS SALES OF IRON PRODUCTS INCREASED TO QUANTITIES INCOMPATIBLE WITH A CONSUMPTION OF FERROUS SCRAP OF LESS THAN 4 000 METRIC TONS, SO THAT THE DEFENDANT IMPROPERLY AND WITHOUT SUFFICIENT JUSTIFICATION LIMITED THE CONSUMPTION OF FERROUS SCRAP IN THE IRON FOUNDRY TO 1 552 METRIC TONS .

P.8

THE DEFENDANT HAS NOT GIVEN ANY SPECIFIC REPLY TO THE ARGUMENTS THUS PUT FORWARD AND HAS LIMITED ITSELF TO RELYING ON THE ABSENCE OF COMPLETE INDUSTRIAL ACCOUNTS FOR THE IRON FOUNDRY . IT HAS ALSO FAILED TO GIVE ANY PRECISE REASONS FOR THE FIGURES ADOPTED . THE FACTORS PUT FORWARD BY THE APPLICANT HAVE THUS NOT BEEN SUFFICIENTLY REFUTED . IT IS THUS APPARENT THAT THE CONTESTED DECISION CONTAINS NO BASIS FOR APPLYING THE RULES CONCERNING THE HIGH AUTHORITY'S ESTIMATED ASSESSMENT OF CONTRIBUTIONS TO CHARGES UNDER THE EQUALIZATION SCHEME .

IN THE SECOND PLACE THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION INCREASED ITS BASIS OF ASSESSMENT TO CONTRIBUTION BY 9 200 METRIC TONS OF FERROUS SCRAP, WHICH THE HIGH AUTHORITY CONSIDERED AS CORRESPONDING TO AN INCREASE IN STOCKS SUBJECT TO EQUALIZATION CHARGES . IT IS SAID THAT THIS IS IN FACT RETURN SCRAP CONSTITUTING OWN RESOURCES WHICH ARE NOT ASSESSABLE BY VIRTUE OF ARTICLE 4(2 ) OF DECISION NO 2/57 .

WHILST THE DEFENDANT PERSISTS IN ITS COMPLAINTS WITH REGARD TO THE INCOMPLETE STATE OF THE UNDERTAKING'S INDUSTRIAL BOOK-KEEPING, IT HAS NOT CONCERNED ITSELF WITH THE ORIGIN OF THE FERROUS SCRAP TO WHICH THE CORRECTIONS RELATED, ON THE GROUND THAT IN ANY EVENT THE QUANTITIES IN QUESTION ARE LIABLE TO EQUALIZATION . AT THE REQUEST OF THE COURT THE DEFENDANT PRODUCED A DOCUMENT ENTITLED ' GENERAL STATEMENT OF MOVEMENTS OF FERROUS SCRAP ' FOR THE PERIOD FROM APRIL 1954 TO JANUARY 1957 . IN ITS OBSERVATIONS ON THE SAME DOCUMENT, THE APPLICANT OBSERVED IN THE COURSE OF THE ORAL PROCEDURE THAT THE RETRIEVALS DECLARED BY IT WERE MUCH LOWER THAN THE AVERAGE OF INTERNAL RETRIEVALS FOR COMPARABLE UNDERTAKINGS, BECAUSE OF INADEQUATE INDUSTRIAL BOOK-KEEPING WITH REGARD TO ITS OWN ARISINGS RETURNED TO STOCK .

THE DEFENDANT'S ARGUMENT THAT THE INCREASES IN THE STOCKS IN QUESTION WERE IN ANY EVENT LIABLE TO EQUALIZATION CONTRIBUTIONS, FAILS TO RECOGNIZE THAT THE DIFFERENCES FOUND COULD BE EXPLAINED BY THE UNDERTAKING'S INTERNAL RETRIEVALS IN RESPECT OF WHICH THE BOOK-KEEPING IS DEFECTIVE, AS THE DEFENDANT ITSELF SAYS . IN THIS CONNEXION, THE EXPLANATION SUPPLIED BY THE APPLICANT HAD THUS TO BE CONSIDERED AND COULD NOT BE DISMISSED FROM THE OUTSET . THE DEFENDANT HAS HOWEVER LIMITED ITSELF TO THE MERE ASSERTION THAT IT IS FOR THE APPLICANT TO CONVINCE IT AND THAT IT HAS FAILED TO DO SO . ALTHOUGH THE DOCUMENT PRODUCED AT THE REQUEST OF THE COURT SHOWS CONTRADICTIONS IN THE UNDERTAKING'S DECLARATIONS, IT BY NO MEANS ESTABLISHES THE QUANTITY OF 9 200 METRIC TONS STATED IN THE CONTESTED DECISION . THE DEFENDANT HAS SUPPLIED NO OTHER FACTS CAPABLE OF JUSTIFYING THAT ASSESSMENT . THE INCREASE OF 9 200 METRIC TONS IN THE BASIS OF ASSESSMENT HAS THUS NOT BEEN SUFFICIENTLY JUSTIFIED IN LAW . THE APPLICATION IS THEREFORE WELL FOUNDED AND THE CONTESTED DECISION MUST BE ANNULLED .

UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . SINCE THE DEFENDANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . ANNULS THE DECISION OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY OF 13 NOVEMBER 1964, CONCERNING THE FINANCIAL OBLIGATIONS OF THE APPLICANT COMPANY UNDER THE SCHEME OF EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .