61963J0108

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1 . DECISIONS INVOLVING PECUNIARY OBLIGATIONS - METHODS OF ENFORCEMENT - ACTION ON THE BASIS OF ARTICLE 33 OF THE ECSC TREATY - INADMISSIBILITY - JURISDICTION OF THE COURTS OF THE COUNTRY CONCERNED

( ECSC TREATY, ARTICLES 33, 92; EEC TREATY, ARTICLE 192; EAEC TREATY, ARTICLE 164 )

2 . PROCEDURE - ACTION - SUBMISSION BASED ON AN UNWRITTEN RULE OF LAW - ADMISSIBILITY

3 . INFORMATION - CHECKING - POWERS OF THE HIGH AUTHORITY - CONTINUATION AFTER THE TERMINATION OF BUSINESS OR THE INSOLVENCY OF AN UNDERTAKING

( ECSC TREATY, ARTICLE 47 )

4 . COMMON FINANCIAL ARRANGEMENTS - STATEMENTS OF ACCOUNT - PROVISIONAL NATURE - RIGHT OF THE HIGH AUTHORITY TO RECONSIDER THE AMOUNT OF CONTRIBUTIONS BEFORE THE CLOSURE OF ACCOUNTS

( ECSC TREATY, ARTICLE 53 )

1 . COMPLIANCE WITH NATIONAL LAWS ON THE ENFORCEMENT OF CLAIMS IN BANKRUPTCY SHOULD BE ENSURED, IF THE NEED ARISES, NOT BY WAY OF ACTION UNDER ARTICLE 33, BUT ON THE BASIS OF ARTICLE 92 OF THE TREATY ITSELF, THE COURTS OF THE COUNTRY CONCERNED HAVING JURISDICTION OVER COMPLAINTS THAT ENFORCEMENT IS BEING CARRIED OUT IN AN IRREGULAR MANNER .

2 . THE FACT THAT A RULE INVOKED BY A PARTY DOES NOT FORM PART OF WRITTEN LAW IS NOT SUFFICIENT PROOF THAT IT DOES NOT EXIST . SUCH A SUBMISSION CANNOT THEREFORE BE DISMISSED FROM THE OUTSET AS INADMISSIBLE .

3 . THE USUAL POWERS OF CHECKING AND SUPERVISION VESTED IN THE HIGH AUTHORITY WITH REGARD TO UNDERTAKINGS DO NOT END WHEN THE LATTER CEASE TO OPERATE THEIR BUSINESS OR BECOME INSOLVENT .

4 . IT FOLLOWS FROM THE NATURE OF THE EQUALIZATION SCHEME THAT THE FIXING OF CONTRIBUTIONS REMAINS ESSENTIALLY PROVISIONAL UNTIL THE FINAL CLOSURE OF ACCOUNTS .

ONLY THEN IS IT POSSIBLE FINALLY TO ESTABLISH THE TOTAL SUM OF THE EXPENSES OF ADMINISTERING THE SCHEME AND THE CONTRIBUTIONS PAYABLE BY EACH OF THE UNDERTAKINGS SUBJECT TO IT .

CONSEQUENTLY, THE NOTIFICATION OF CERTAIN SUMS DUE BY WAY OF EQUALIZATION CONTRIBUTIONS DOES NOT ESTOP THE HIGH AUTHORITY FROM RECONSIDERING THE AMOUNTS .

IN CASE 108/63

OFFICINE ELETTROMECCANICHE ING . A . MERLINI, OF TURIN, A LIMITED LIABILITY COMPANY IN LIQUIDATION, REPRESENTED BY ITS LIQUIDATOR, CAMILLO MERLINI, ASSISTED BY GIORGIO CONIGLIANI AND ANDREA CRAVERA, ADVOCATES OF THE TURIN BAR AND AT THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, ADVOCATE, 6 RUE A . MUNCHEN,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED AND DEFENDED BY ITS LEGAL ADVISER, ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY ORIO GIACCHI, ADVOCATE OF MILAN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR ANNULMENT OF THE DECISIONS OF THE HIGH AUTHORITY OF 30 OCTOBER 1963, FIXING FOR THE APPLICANT THE TONNAGE OF BOUGHT FERROUS SCRAP SUBJECT TO EQUALIZATION AND ORDERING IT TO PAY THE CORRESPONDING CONTRIBUTIONS,

P.9

THE ADMISSIBILITY OF THE APPLICATION

THE APPLICATION WAS MADE IN THE CORRECT FORM AND IN DUE TIME .

IN ITS APPLICATION THE APPLICANT SUBMITTED THAT THE OPERATION OF THE CONTESTED DECISIONS SHOULD BE SUSPENDED . HOWEVER IN ACCORDANCE WITH ARTICLE 83(3 ) OF THE RULES OF PROCEDURE ANY APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE SHALL BE MADE IN A SEPARATE DOCUMENT . IN THIS CASE THE APPLICATION FOR SUSPENSION MUST THEREFORE BE DECLARED INADMISSIBLE .

IN ITS REJOINDER, THE DEFENDANT OBJECTS TO THE ADMISSION OF CERTAIN DOCUMENTS PRODUCED BY THE APPLICANT BY WAY OF REPLY .

THE APPLICANT MERELY REFERS TO AN ANNEXED STATEMENT WHICH, AS ITS COUNSEL HAS ADMITTED, WAS DRAFTED BY HIS CLIENT, AND GOES BEYOND THE BOUNDS OF THE APPLICATION AND THE STATEMENT OF DEFENCE BY RAISING FRESH SUBMISSIONS AND ARGUMENTS .

THE REQUIREMENTS OF ARTICLE 20 OF THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE ECSC TREATY AND ARTICLES 37 ET SEQ . OF THE RULES OF PROCEDURE DO NOT PERMIT THE SAID STATEMENT TO BE ACCEPTED AS A REPLY .

ON THE SUBMISSIONS

1 . INFRINGEMENT OF RULES OF LAW DERIVED FROM NATIONAL LAWS

THE APPLICANT CONTESTS THE DISPUTED DECISIONS ON THE GROUND THAT THEY INFRINGE RULES OF LAW DERIVING FROM NATIONAL LAWS AND IN PARTICULAR FROM THE ITALIAN LAW ON BANKRUPTCY BECAUSE OF THE FACT THAT, BY THE SAID DECISIONS, THE HIGH AUTHORITY CREATED AN ENFORCEABLE TITLE TO THE ENTIRE AMOUNT OF ITS DEBT .

THE DEFENDANT CLAIMS THAT THE SUBMISSION IS INADMISSIBLE, SINCE ARTICLE 33 OF THE TREATY, ON WHICH THE APPLICATION IS BASED, ONLY RECOGNIZES THE GROUNDS OF INFRINGEMENT OF THE TREATY OR OF ANY RULE OF LAW RELATING TO ITS APPLICATION . IN ANY EVENT, THE FIXING, PURSUANT TO ARTICLE 92 OF THE TREATY, OF THE FULL AMOUNT OF THE DEBT WOULD IN NO WAY RELEASE THE HIGH AUTHORITY, WHEN IT IN FACT PROCEEDS TO ENFORCEMENT, FROM THE LIMITATIONS AND CONDITIONS OF THE ARRANGEMENT APPROVED IN ACCORDANCE WITH THE NATIONAL LAW APPLICABLE, SO THAT ITS CLAIMS WOULD BE REDUCED TO THE PERCENTAGE FIXED BY THE SAID ARRANGEMENT . ON THE OTHER HAND THE FIXING OF THIS AMOUNT WOULD FORM A NECESSARY CONDITION FOR CALCULATING THAT PERCENTAGE .

P.10

COMPLIANCE WITH NATIONAL LAWS ON THE ENFORCEMENT OF CLAIMS IN BANKRUPTCY SHOULD BE ENSURED, IF THE NEED ARISES, NOT BY WAY OF ACTION UNDER ARTICLE 33, BUT ON THE BASIS OF ARTICLE 92 OF THE TREATY ITSELF . IN FACT THE SECOND PARAGRAPH OF THE SAID ARTICLE IS CLARIFIED BY THE MORE DETAILED BUT ESSENTIALLY IDENTICAL PROVISIONS OF THE TREATIES OF ROME, THAT IS TO SAY, ARTICLE 192 OF THE EEC TREATY AND ARTICLE 164 OF THE EAEC TREATY WHICH IN THEIR FINAL PARAGRAPH REQUIRE THAT THE COURTS OF THE COUNTRY CONCERNED SHALL HAVE JURISDICTION OVER COMPLAINTS THAT ENFORCEMENT IS BEING CARRIED OUT IN AN IRREGULAR MANNER . THE APPLICATION OF ARTICLE 92 OF THE TREATY WILL THUS ENABLE THE APPLICANT IF NEED BE TO REQUEST THE PROTECTION OF ITS RIGHTS DERIVING FROM NATIONAL LAWS IN RESPECT OF THE CONDITIONS UNDER WHICH THE PRESENT CLAIM IS ENFORCED .

THE SUBMISSION IS THEREFORE INADMISSIBLE .

2 . FAILURE TO STATE REASONS

THE APPLICANT CONSIDERS THAT THE TWO DECISIONS OF 30 OCTOBER 1963 DO NOT CONTAIN A STATEMENT OF REASONS SUFFICIENT TO SHOW HOW THE QUANTITIES OF FERROUS SCRAP ALLEGEDLY CONSUMED AND THE RATE OF CONTRIBUTION ADOPTED HAVE BEEN CALCULATED .

THE SAID DECISIONS HOWEVER GIVE A CLEAR AND PERTINENT SUMMARY OF THE DATA ON WHICH THEY WERE BASED . THE INFORMATION TO WHICH THE DECISIONS REFER WAS NOTIFIED IN ADVANCE TO THE APPLICANT BY LETTERS OF 18 AUGUST 1961, 14 FEBRUARY 1962 AND 4 JULY 1962 WHICH THE APPLICANT DOES NOT DENY RECEIVING AND OF WHICH, MOREOVER, IT MAKES USE ITSELF IN THE APPLICATION .

THIS SUBMISSION MUST CONSEQUENTLY BE DISMISSED .

3 . PRECLUSION OF THE RIGHT TO PRESENT FRESH CLAIMS IN ACCORDANCE WITH THE NEW FINDINGS

THE APPLICANT CLAIMS THAT THE HIGH AUTHORITY WAS PRECLUDED FROM CARRYING OUT CHECKS AND INSPECTIONS IN SEPTEMBER 1958, THAT IS TO SAY, AFTER THE APPLICANT BECAME BANKRUPT AND CEASED TO OPERATE ITS BUSINESS . THE HIGH AUTHORITY IS MOREOVER SAID TO BE ESTOPPED FROM FIXING THE TOTAL AMOUNT OF CONTRIBUTIONS DUE ON THE GROUND THAT IT HAD EARLIER ASKED FOR A SMALLER SUM .

THE DEFENDANT ARGUES THAT THIS SUBMISSION IS INADMISSIBLE, AS SUCH ESTOPPEL OF A CLAIM FOR THE RECOVERY OF THE SUMS DUE BY WAY OF EQUALIZATION CONTRIBUTIONS DOES NOT EXIST IN LAW . HOWEVER THE FACT THAT SUCH A RULE IS NOT MENTIONED IN WRITTEN LAW IS NOT SUFFICIENT PROOF THAT IT DOES NOT EXIST . CONSEQUENTLY THIS SUBMISSION CANNOT BE DISMISSED FROM THE OUTSET AS INADMISSIBLE AND THE APPLICANT'S ARGUMENTS MUST BE CONSIDERED .

P.11

WITH REGARD TO THE FIRST HEAD OF THE SUBMISSION, THERE IS NOTHING TO PROVE THAT THE POWERS OF CHECKING AND SUPERVISION VESTED IN THE HIGH AUTHORITY WITH REGARD TO UNDERTAKINGS END WHEN THE LATTER CEASE TO OPERATE THEIR BUSINESS . ON THE CONTRARY, IT IS OBVIOUS THAT THESE POWERS REMAIN VESTED IN IT IN SO FAR AS THEY RELATE TO NORMAL VERIFICATION AND CHECKING OF THE OPERATION OF THAT BUSINESS . THIS ALSO HOLDS GOOD IN THE CASE OF BANKRUPTCY .

MOREOVER IT CANNOT BE CLAIMED THAT THE HIGH AUTHORITY WAS GUILTY OF EXCESSIVE DELAY IN ITS EXERCISE OF THESE POWERS WITH REGARD TO THE APPLICANT . THE CHECKS IN QUESTION WERE CARRIED OUT IN SEPTEMBER 1958, TWO MONTHS AFTER PUBLICATION OF DECISION NO 13/58 WHEREBY THE HIGH AUTHORITY RESUMED THE EXERCISE OF THE POWERS UNLAWFULLY DELEGATED TO THE AGENCIES OF THE EQUALIZATION SCHEME . THE APPLICANT WRONGLY CONSIDERS THAT THE SAID DECISION RE-ESTABLISHED THE EQUALIZATION SCHEME WITH RETROACTIVE EFFECT, WHICH, IT ALLEGES, IS LEGALLY IMPOSSIBLE WITH REGARD TO AN UNDERTAKING WHICH HAS IN THE MEANTIME CEASED PRODUCTION . THE JUDGMENT IN CASE 9/56 ( MERONI V HIGH AUTHORITY ) ONLY FOUND THE PREVIOUS RULES ON EQUALIZATION ILLEGAL WITH REGARD TO THE PROVISIONS FOR THE DELEGATION OF POWERS CONTAINED IN THEM AND DID NOT TOUCH UPON THE BASIC RULES CONCERNING THE FUNCTIONING OF THE SCHEME AND THE OBLIGATIONS ON THE PART OF UNDERTAKINGS . THUS DECISION NO 13/58 DID NOT CREATE NEW OBLIGATIONS BUT LIMITED ITSELF TO REORGANIZING THE EXERCISE OF THE POWERS NECESSARY FOR THE PROPER FUNCTIONING OF THE SCHEME .

THEREFORE, EVEN IF THE CHECKS IN QUESTION HAD BEEN CARRIED OUT EARLIER, THEY WOULD IN ALL PROBABILITY HAVE BEEN EFFECTED BY THE AGENCIES OF THE SAID SCHEME AND THUS, IN ORDER TO REGULARIZE THEM, IT WOULD HAVE BEEN NECESSARY FOR THE HIGH AUTHORITY TO REPEAT THEM AFTER THE ISSUE OF DECISION NO 13/58 .

THIS COMPLAINT MUST THEREFORE BE DISMISSED .

WITH REGARD TO THE SECOND HEAD OF THE SUBMISSION, IT FOLLOWS FROM THE NATURE OF THE EQUALIZATION SCHEME THAT THE FIXING OF CONTRIBUTIONS REMAINS ESSENTIALLY PROVISIONAL UNTIL THE FINAL CLOSURE OF ACCOUNTS . ONLY THEN IS IT POSSIBLE FINALLY TO ESTABLISH THE TOTAL SUM OF THE EXPENSES OF ADMINISTERING THE SCHEME AND THE CONTRIBUTIONS PAYABLE BY EACH OF THE UNDERTAKINGS SUBJECT TO IT . CONSEQUENTLY THE NOTIFICATION OF CERTAIN SUMS DUE BY WAY OF EQUALIZATION CONTRIBUTIONS DOES NOT ESTOP THE HIGH AUTHORITY FROM RECONSIDERING THE AMOUNTS . IT HAS NOT BEEN DISPUTED THAT THE CLAIM FOR A SUM OF 102 649 693.75 LIRE AS A DEBT IN THE WINDING-UP WAS PURELY PROVISIONAL .

IN THE CIRCUMSTANCES, THE SECOND HEAD OF THE SUBMISSION IS UNFOUNDED .

P.12

4 . MISUSE OF POWERS

( A ) THE APPLICANT COMMENCES BY DISPUTING THE HIGH AUTHORITY'S RIGHT TO MAKE AN ESTIMATED ASSESSMENT IN THIS CASE .

ACCORDING TO ARTICLE 13 OF DECISION NO 16/58 THE HIGH AUTHORITY IS ENTITLED TO AMEND DECLARATIONS WHICH CANNOT BE SUPPORTED BY VALID PROOF .

IT IS NOT DISPUTED THAT IN THE CASE OF THE CHECKS CARRIED OUT IN SEPTEMBER 1958 THE MERLINI COMPANY WAS UNABLE TO SUPPLY THE DOCUMENTS NECESSARY TO PROVE ITS EARLIER DECLARATIONS .

THIS COMPLAINT MUST THEREFORE BE DISMISSED .

( B ) IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE, THE DEFENDANT FOUNDED ITS ESTIMATED ASSESSMENT ON THE CONSUMPTION OF ELECTRICITY FOR PRODUCTION PURPOSES AND ON THE CAPACITY OF THE UNDERTAKING'S FURNACES .

IN THE COURSE OF THE WRITTEN PROCEDURE THE APPLICANT LIMITED ITSELF TO STATING THAT THE PARTICULARS CONTAINED IN THE CONTESTED DECISIONS WERE INACCURATE BOTH WITH REGARD TO THE CONSUMPTION OF ELECTRICITY AND TO THE RATIO BETWEEN IT AND THE CONSUMPTION OF FERROUS SCRAP, BUT IT REFRAINED FROM SUPPORTING ITS ALLEGATIONS BY ANY PROOF . IT WAS ONLY IN RESPONSE TO REPEATED QUESTIONS FROM THE COURT THAT IT FINALLY PRODUCED AN INCOMPLETE REGISTER, PART OF WHICH WAS TORN, HEADED ' METER READINGS ', IN AN ENDEAVOUR TO ESTABLISH THAT A CONSIDERABLE PROPORTION OF THE ELECTRICITY CONSUMED WAS USED FOR PURPOSES OTHER THAN THE PRODUCTION OF LIQUID STEEL . AT THE SAME TIME, IN ORDER TO PROVE THAT A PROPORTION OF THE ELECTRICITY CONSUMED WAS USED BY THIRD PARTIES, IT PRODUCED A COPY OF A CONTRACT WHEREBY IT HAD HIRED A LARGE FURNACE TO ANOTHER UNDERTAKING FROM 20 OCTOBER 1956 .

HOWEVER THE FIGURES FOR CONSUMPTION OF ELECTRICITY ENTERED IN THE SAID REGISTER APPEAR AS A WHOLE TO BE IDENTICAL IF NOT HIGHER THAN THE AMOUNTS SET FORTH IN THE DISPUTED DECISIONS .

THE ASSERTION THAT THESE AMOUNTS DO NOT CORRESPOND TO THE QUANTITIES IN FACT USED FOR THE PRODUCTION OF LIQUID STEEL IS CONTRADICTED BY THE REPLIES WHICH THE APPLICANT ITSELF GAVE TO THE ' CONSUMI B ' QUESTIONNAIRES RELATING TO THE CONSUMPTION OF ELECTRICITY FOR THE PURPOSES OF STEEL PRODUCTION, SENT TO THE I.S.A . OF MILAN, AND ON WHICH THE HIGH AUTHORITY PARTIALLY BASED ITS ASSESSMENT . THE APPLICANT EXPLAINED THIS CONTRADICTION AS ARISING FROM AN ERROR COMMITTED WHEN THE QUESTIONNAIRES WERE COMPLETED, BUT IT WAS UNABLE TO FURNISH ANY EVIDENCE OF THIS WHATEVER . IT IS MOREOVER COMMON GROUND FIRST THAT THE QUANTITY OF FERROUS SCRAP ASSESSED BY THE DEFENDANT ON THE BASIS OF THE SUPPLIES OF ELECTRICITY CORRESPONDS TO THE CAPACITY OF THE UNDERTAKING'S SMALL FURNACES, EXCLUDING THE LARGE FURNACE IN QUESTION, AND SECONDLY THAT WHEN CHECKS WERE MADE IN SEPTEMBER 1958 THE HIGH AUTHORITY'S AGENTS WERE INFORMED THAT THE SAID LARGE FURNACE HAD NEVER BEEN IN OPERATION, SO THAT THEY DID NOT TAKE IT INTO CONSIDERATION IN CALCULATING THE UNDERTAKING'S CAPACITY .

P.13

WHEN THE COURT REQUESTED EITHER PRODUCTION OF THE STATEMENTS OF ACCOUNT DRAWN UP IN CONNEXION WITH THE OTHER PARTY TO THE CONTRACT REGADING THE CONSUMPTION OF ELECTRICITY OR THE PRODUCTION OF DOCUMENTS RELATING TO THE PAYMENT OF RENT - WHICH ACCORDING TO THE CONTRACT WAS CALCULATED IN TERMS OF THE USE OF THE LARGE FURNACE - THE APPLICANT WAS UNABLE TO PRODUCE THIS EVIDENCE .

CONSEQUENTLY THE COMPLAINT MUST BE DISMISSED .

( C ) THE APPLICANT TAKES STRONG EXCEPTION TO WHAT IN ITS VIEW ARE THE EXCESSIVELY HIGH RATES OF EQUALIZATION LAID DOWN FOR THE CONSECUTIVE YEARS FOR THE PERIOD 1954-1957 AND CLAIMS THAT THE INCREASE IN THE RATES FROM 1.65 LIRE PER KILOGRAMME OF FERROUS SCRAP PURCHASED IN MARCH 1954 TO 12 LIRE PER KILOGRAMME IN MARCH 1957 IS ONLY EXPLICABLE THROUGH ERRORS COMMITTED BY THE BODIES RUNNING THE EQUALIZATION SCHEME WHICH THE HIGH AUTHORITY OUGHT TO HAVE PUT RIGHT . SUCH AN ALLEGATION IS NOT SUFFICIENT OF ITSELF FOR THE RATE TO BE CONSIDERED ILLEGAL, THE MORE SO SINCE THE DEFENDANT EXPLAINS THAT ON THE CONTRARY THIS WAS NOT A PERMANENT INCREASE IN THE RATE, BUT THAT IT WAS INCREASED AND DIMINISHED IN TERMS OF THE FLUCTUATING PRICES ON THE WORLD MARKET OF FERROUS SCRAP .

THIS COMPLAINT CANNOT THEREFORE BE UPHELD .

( D ) THE FINAL COMPLAINT IS THAT THE DEFENDANT FAILED TO TAKE INTO ACCOUNT THE ACTIVITIES OF THE LARGE IRON AND STEEL COMPLEXES WHICH WERE INTERESTED IN OBTAINING FERROUS SCRAP ON THE WORLD MARKET AND WHICH LED TO THE DISTORTION OF DATA RELATING TO THE INTERNAL MARKET .

THE APPLICANT DID NOT SUPPLY ANY EVIDENCE IN SUPPORT OF ITS ALLEGATIONS .

THIS COMPLAINT MUST ALSO BE DISMISSED .

THE PRESENT SUBMISSION OF THE APPLICANT THEREFORE CANNOT SUCCEED AND THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

UNDER THE FIRST PARAGRAPH OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADINGS . THE APPLICANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PRESENT ACTION .

THE COURT

HEREBY :

1 . DISMISSES APPLICATION 108/63 AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION .