61964J0014

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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

1 . 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 .

2 . A MEASURE ADOPTED BY AN INSTITUTION CONSTITUTES RES JUDICATA IN SO FAR AS IT CONSISTS OF A MERE REPETITION OF THE UNANNULLED PART OF A FORMER MEASURE WHICH HAS BEEN PARTLY ANNULLED .

IN CASE 14/64

MRS EMILLA GUALCO ( NEE BARGE ), WIDOW OF MR LEONE, REPRESENTED AND ASSISTED BY ARTURO COTTRAU, OF THE TURIN BAR, ADVOCATE AT THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE,

APPLICANT,

V

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

DEFENDANT,

APPLICATION FOR ANNULMENT OF THE INDIVIDUAL DECISION OF THE HIGH AUTHORITY OF 18 MARCH 1964 WHEREBY THE SAID HIGH AUTHORITY ORDERED THE APPLICANT 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;

P.57

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 .

P.58

THEREFORE THE SUBMISSION IN QUESTION MUST BE REJECTED .

THE HIGH AUTHORITY ALSO ARGUES THAT THE APPLICATION IS INADMISSIBLE IN SO FAR AS IT IS NOT LIMITED TO THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 AND SEEKS TO RAISE AGAIN QUESTIONS ALREADY SETTLED BY THE JUDGMENT IN CASE 18/62 OF 16 DECEMBER 1963 AND WHICH ARE RES JUDICATAE . MRS GUALCO, ARGUING AGAINST THIS OBJECTION, SAYS THAT THE JUDGMENT IN CASE 18/62 IN NO WAY DEALT WITH THE GROUNDS FOR COMPLAINT IN THE PRESENT CASE, AS APPEARS FROM THE GROUNDS OF THE SAID JUDGMENT THEMSELVES .

IN THE JUDGMENT MENTIONED ABOVE THE COURT GAVE ITS RULING ON THE APPLICATION BROUGHT AGAINST TWO DECISIONS OF 29 MAY 1962, WHEREBY THE HIGH AUTHORITY FIXED THE ASSESSABLE TONNAGE OF FERROUS SCRAP FOR THE PERIOD 1 OCTOBER 1955 TO 31 JANUARY 1958 AND THE AMOUNT OF THE EQUALIZATION LEVY FOR THE SAID PERIOD .

IT ANNULLED THESE DECISIONS BUT ONLY ' IN RESPECT OF THE ESTIMATED ASSESSMENT OF THE CONSUMPTION OF FERROUS SCRAP FOR THE PERIOD FROM 1 OCTOBER 1955 TO 31 JANUARY 1957 '. THUS THIS PARTIAL AND LIMITED ANNULMENT LEFT IN FORCE THE REMAINDER OF THE DISPUTED DECISIONS, AS APPEARS BOTH FROM THE GROUNDS AND FROM THE OPERATIVE PART OF THE JUDGMENT WHICH, BE IT NOTED, REJECTS ALL OTHER WIDER OR CONTRARY CONCLUSIONS '. THEREFORE THE DECISION OF 18 MARCH 1964, WHICH IS THE SUBJECT-MATTER OF THE CASE AT PRESENT BEING CONSIDERED, CONSTITUTES RES JUDICATA IN SO FAR AS IT CONSISTS OF A MERE REPETITION OF THOSE PARTS OF THE DECISIONS OF 29 MAY 1962 WHICH WERE NOT ANNULLED .

THEREFORE THE APPLICATION IS ADMISSIBLE ONLY TO THE EXTENT TO WHICH IT RELATES TO THE ESTIMATED CONSUMPTION OF FERROUS SCRAP FOR THE PERIOD BETWEEN 1 OCTOBER 1955 AND 31 JANUARY 1957 WHICH WAS CRITICIZED IN THE JUDGMENT IN CASE 18/62, GIVEN ON 16 DECEMBER 1963 .

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 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 .

P.59

HOWEVER, ALTHOUGH THE CONSUMPTION OF ELECTRIC ENERGY IN THE FURNACES CONSTITUTES ONLY ONE OF THE MEANS OF DETERMINING THE TONNAGE OF FERROUS SCRAP CONSUMED, THE USE OF THIS MEANS TO THE EXCLUSION OF ALL OTHERS MAY BE UNAVOIDABLE FOR WANT OF OTHER PRECISE DATA, AND IN PARTICULAR FOR WANT OF ANY SUPPORTING DOCUMENTS OF ACCOUNT . IT IS IN FACT MRS GUALCO'S FAILURE TO PRODUCE SUCH DOCUMENTS WHICH HAS FORCED THE HIGH AUTHORITY TO HAVE RECOURSE TO INDUCTIVE METHODS OF CALCULATION BASED ON THE KNOWN FACTOR OF THE CONSUMPTION OF ELECTRICITY .

A COEFFICIENT OF 900 KWH PER TON OF LIQUID STEEL PRODUCED IS IN LINE WITH THE COEFFICIENT WHICH IS USUALLY APPLIED IN SUCH CASES, AND WITH THE OPINION OF THE COMMITTEE OF EXPERTS MENTIONED IN THE JUDGMENT IN CASE 18/62 GIVEN ON 16 DECEMBER 1963 BETWEEN THE SAME PARTIES .

IT HAS NOT BEEN SHOWN IN ANY WAY THAT MRS GUALCO'S WORKS WERE IN A TECHNICAL STATE WHICH WAS NOT COMPATIBLE WITH SUCH A COEFFICIENT . FURTHERMORE THE APPLICANT'S ARGUMENTS ARE BASED ON MERE ALLEGATIONS FOR WHICH THERE IS NOT THE SLIGHTEST JUSTIFICATION . SINCE SHE HAS NOT PRODUCED THE DOCUMENTS OF ACCOUNT OR ANY OTHER DOCUMENTS TO SUPPORT HER ASSERTIONS OR RENDER THEM PLAUSIBLE, THERE ARE NO GROUNDS FOR UNDERTAKING AN EXPERT INQUIRY .

THEREFORE THE FIRST GROUND OF COMPLAINT IS UNFOUNDED .

ON THE OTHER HAND THE APPLICANT ALLEGES THAT THE HIGH AUTHORITY FIXED THE QUANTITY OF OWN ARISINGS AT TOO LOW A LEVEL WHEN IT CALCULATED THE CONSUMPTION OF FERROUS SCRAP SUBJECT TO THE EQUALIZATION LEVY . SHE HAS NOT PRODUCED DOCUMENTS IN SUPPORT OF THIS ALLEGATION, BUT HAS ARGUED THAT THE HIGH AUTHORITY'S INSPECTORS COULD, WHEN AT HER PREMISES, HAVE TAKEN COGNIZANCE OF A REGISTER OF WORK CARRIED OUT FOR THIRD PARTIES . HOWEVER SHE HAS NOT PRODUCED THIS REGISTER EITHER, AND HAS BEEN CONTENT TO ASK THAT WITNESSES BE HEARD . SINCE MRS GUALCO HAS NOT LODGED WITH THE COURT THE REGISTER WHICH IT WAS FOR HER TO PRODUCE AS A FIRST STEP, THERE ARE NO GROUNDS FOR ORDERING SUCH A MEASURE .

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 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 .

THEREFORE THE FOURTH GROUND OF COMPLAINT IS UNFOUNDED .

IN HER REPLY THE APPLICANT CLAIMS, FOR THE FIRST TIME, THAT THE EQUALIZATION CONTRIBUTION SHOULD HAVE BEEN ASSESSED, NOT BY VIRTUE OF DECISION NO 19/60, BUT OF DECISION NO 2/57 IN VIEW OF THE FACT THAT HER PRODUCTION CEASED IN APRIL 1957 . THIS ALLEGATION, APART FROM THE FACT THAT IT SEEMS TO BE OUT OF TIME AND CONTRARY TO THE JUDGMENT IN CASE 18/62 GIVEN ON 16 DECEMBER 1963, BETWEEN THE SAME PARTIES, RUNS COUNTER TO THE VERY PROVISIONS OF DECISION NO 19/60 . IN FACT THIS DECISION NOT ONLY RELATES TO ACCOUNTING PERIODS WHICH BEGAN TO RUN AFTER THE ALLEGED ENDING OF PRODUCTION BY THE APPLICANT, BUT ALSO TO THE WHOLE OF THE PERIOD WHEN THE EQUALIZATION SCHEME WAS IN FORCE .

THEREFORE THE FIFTH GROUND OF COMPLAINT IS UNFOUNDED .

THE APPLICANT HAVING FAILED IN ALL HER SUBMISSIONS MUST BE ORDERED TO PAY THE WHOLE OF THE COSTS, INCLUDING THOSE OF THE APPLICATION ON THE PROCEDURAL ISSUE .

THE COURT

HEREBY :

1 . DISMISSES APPLICATION 14/64;

2 . ORDERS THE APPLICANT TO PAY THE COSTS, INCLUDING THOSE OF THE APPLICATION ON THE PROCEDURAL ISSUE .