61964J0039

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1 . MEASURES ADOPTED BY COMMUNITY INSTITUTIONS - VALIDITY - CONDITIONS OF ESSENTIAL PROCEDURAL REQUIREMENTS - PROVISIONS RELATING THERETO - PROHIBITION ON THE EXTENSION OF THEIR APPLICATION

2 . FINANCIAL ARRANGEMENTS - EQUALIZATION OF FERROUS SCRAP - DISCRIMINATORY RULES - AMENDMENT - ABSENCE OF VESTED RIGHTS

( ECSC TREATY, ARTICLE 53 )

1 . CF . PARAGRAPH 5, SUMMARY IN CASE 111/63, ( 1965 ) ECR 677 .

A PROVISION WHICH LAYS DOWN THE ESSENTIAL PROCEDURAL REQUIREMENTS FOR THE VALIDITY OF CERTAIN DECISIONS MUST BE STRICTLY CONSTRUED .

*/ 663J0111 /*.

2 . CF . PARAGRAPH 9, SUMMARY IN CASE 111/63, ( 1965 ) ECR 677 .

IN THE EQUALIZATION SCHEME, WHICH IS BASED ON A CLOSE INTERDEPENDENCE BETWEEN THE CONTRIBUTIONS OF EACH PARTICIPANT, IT IS PERMISSIBLE TO ALTER SITUATIONS CREATED BY RULES WHICH, IF THEY ARE ALLOWED TO CONTINUE IN FORCE, WOULD CONFER UNJUSTIFIED BENEFIT ON CERTAIN UNDERTAKINGS COMPARED WITH OTHERS AND WOULD THEREFORE JEOPARDIZE THE OBJECTIVES OF THE SCHEME .

*/ 663J0111 /*.

IN CASE 39/64

SOCIETE DES ACIERIES DU TEMPLE, A COMPANY WHOSE REGISTERED OFFICE IS AT BILANCOURT ( SEINE ), REPRESENTED BY ITS DIRECTOR-GENERAL, EUGENE DE SEZE, ASSISTED BY JEAN DE RICHEMONT, ADVOCATE AT THE COUR D' APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUES, 20 RUE PHILIPPE-II,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISERS, ITALO TELCHINI AND GUISEPPE MARCHESINI, ACTING AS AGENTS, 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 22 JULY 1964 ORDERING THE APPLICANT TO PAY THE SUM OF FF 476 963.76 UNDER THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME, BY WAY OF SUPPLEMENTARY EQUALIZATION CONTRIBUTIONS,

P.772

THE ADMISSIBILITY OF THE APPLICATION HAS NOT BEEN DISPUTED BY THE DEFENDANT, AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION . THEREFORE THE APPLICATION IS ADMISSIBLE .

THE APPLICATION IS BROUGHT AGAINST THE INDIVIDUAL DECISION OF 22 JULY 1964 WHEREBY THE HIGH AUTHORITY CALLED UPON THE APPLICANT TO PAY CERTAIN SUMS DUE BY WAY OF INTEREST . BY RAISING THE OBJECTION OF ILLEGALITY IT ALSO CONTESTS INDIRECTLY GENERAL DECISIONS NOS 21/58, 19/60, 20/60, 7/61 AND 7/63 AT LEAST IN SO FAR AS THEY LAY DOWN RULES GOVERNING THE QUESTION OF INTEREST FORMING PART OF THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP .

A - THE SUBMISSIONS OF LACK OF COMPETENCE, INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT AND INFRINGEMENT OF THE TREATY

THE APPLICANT ASSERTS THAT THE GENERAL DECISIONS CALLED IN QUESTION BY THE PRESENT APPLICATION ARE ILLEGAL ON THE GROUND THAT THEY INTRODUCED RULES ON INTEREST NOT COVERED BY THE DECISIONS PREVIOUSLY ADOPTED WITH THE ASSENT OF THE COUNCIL IN ACCORDANCE WITH ARTICLE 53(B ) OF THE TREATY . IT FURTHER ARGUES THAT DECISION NO 7/61 ALSO ESTABLISHED A SUPPLEMENTARY CONTRIBUTION FOR SERVICING INTEREST CREDITED, AND THAT THE EFFECT OF THIS WAS TO ALTER THE STRUCTURE OF THE EQUALIZATION SCHEME AS APPROVED BY THE COUNCIL BY ALTERING THE BASIS OF ASSESSMENT TO CONTRIBUTION .

IT IS RELATIVELY UNIMPORTANT WHETHER THE HIGH AUTHORITY SHOULD HAVE OBTAINED THE ASSENT OF THE COUNCIL IN ORDER TO COMPLY WITH THE PROCEDURE FOLLOWED FOR DECISION NO 16/58, WHICH PROVIDES FOR THE CHARGING OF INTEREST ON OVERDUE PAYMENTS . THE REAL QUESTION IS WHETHER THE OBLIGATION TO OBTAIN THE ASSENT OF THE COUNCIL STEMS FROM THE TREATY ITSELF .

ACCORDING TO ARTICLE 53(B ) OF THE TREATY THE HIGH AUTHORITY MAY ' WITH THE UNANIMOUS ASSENT OF THE COUNCIL, ITSELF MAKE ANY FINANCIAL ARRANGEMENTS SERVING THE SAME PURPOSES '. SINCE THIS IS A PROVISION WHICH LAYS DOWN ESSENTIAL PROCEDURAL REQUIREMENTS FOR THE VALIDITY OF CERTAIN DECISIONS, IT MUST BE STRICTLY CONSTRUED . IT IS APPARENT FROM ARTICLE 53(B ) OF THE TREATY THAT THE ASSENT OF THE COUNCIL WAS ONLY NECESSARY IF THE INTRODUCTION OF CREDITED INTEREST AND THE CONTESTED SUPPLEMENTARY CONTRIBUTION AFFECTED OR ALTERED THE BASIS OF THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP .

P.773

THE SYSTEM OF CREDITING INTEREST WHICH WAS ESTABLISHED IN ORDER TO COMPENSATE THE CONTRIBUTOR UNDERTAKINGS CONCERNED FOR HAVING TO TIE UP CAPITAL AT DIFFERENT TIMES, IS TO BE SEEN AS A NECESSARY REQUIREMENT IN ORDER TO PREVENT SUCH UNDERTAKINGS FROM SUFFERING AN UNFAIR DISADVANTAGE WHEN OTHERS ARE LATE IN PAYING THEIR CONTRIBUTIONS . THIS SYSTEM DOES NOT ALTER THE ORIGINAL BASIS OF THE FINANCIAL ARRANGEMENTS FOR EQUALIZING FERROUS SCRAP, AND WAS ADOPTED SO THAT THE ARRANGEMENTS COULD FUNCTION CORRECTLY AND SO THAT THE OBJECTIVES TO WHICH THE COUNCIL HAD ASSENTED COULD BE ATTAINED . THEREFORE IT WAS NOT NECESSARY TO OBTAIN THE ASSENT OF THE COUNCIL UNDER ARTICLE 53(B ) OF THE TREATY BEFORE INTRODUCING THE SAID SYSTEM .

MOREOVER AS REGARDS THE SUPPLEMENTARY EQUALIZATION CONTRIBUTION, THE BASIS OF ASSESSMENT TO CONTRIBUTION, WHICH IS ASCERTAINED ACCORDING TO THE QUANTITIES OF FERROUS SCRAP PURCHASED, CONSTITUTES ONE OF THE MAIN ELEMENTS OF THE EQUALIZATION SCHEME AS APPROVED BY THE COUNCIL . THE ONLY REASON FOR THIS SUPPLEMENTARY CONTRIBUTION IS TO ENSURE THE PAYMENT OF CREDITED INTEREST . IT IS NOT INTENDED TO CONSTITUTE A NEW EQUALIZATION CHARGE, OR TO ALTER THE CRITERIA RELATING TO THE LEVYING OF CONTRIBUTIONS . WHAT IS MORE, SINCE THE SUPPLEMENTARY CONTRIBUTION IS CHARGED TO UNDERTAKINGS PROPORTIONATELY ACCORDING TO THE BASES OF THEIR RESPECTIVE ASSESSMENTS TO CONTRIBUTION, IT CANNOT POSSIBLY ALTER THIS BASIS OF ASSESSMENT WHICH CONTINUES TO DEPEND ON THE AMOUNTS OF FERROUS SCRAP CONSUMED . FURTHERMORE IT IS INTENDED, UNDER THE VERY SYSTEM WHICH WAS INTRODUCED BY DECISION NO 7/61, TO BE APPLIED, UPON THE FINAL CLOSURE OF ACCOUNTS, IN WHOLE OR IN PART IN THE PAYMENT OF THE CREDITED INTEREST . THEREFORE THE SAID CONTRIBUTION DOES NOT MODIFY OR ALTER ANY ESSENTIAL ELEMENT OF THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF FERROUS SCRAP IN THE FORM APPROVED BY THE COUNCIL . CONSEQUENTLY THE ASSENT OF THE COUNCIL WAS NOT NECESSARY IN THIS CASE .

FOR ALL THESE REASONS THE PRESENT SUBMISSIONS MUST BE REJECTED AS UNFOUNDED .

B - THE SUBMISSION OF MISUSE OF POWERS AND DISCRIMINATION

THE APPLICANT MAINTAINS, FURTHERMORE, THAT DECISION NO 7/61 IS DEFECTIVE BY REASON OF MISUSE OF POWERS BECAUSE IT DISCLOSES AN ILLEGAL MOTIVE OR A SERIOUS LACK OF PRUDENCE TANTAMOUNT TO DISREGARDING THE LEGAL OBJECTIVE AND LEADING TO INSTANCES OF DISCRIMINATION .

P.774

( A ) IN SUPPORT OF THIS SUBMISSION THE APPLICANT RELIES FIRST ON ARTICLE 5 OF DECISION NO 7/61, ACCORDING TO WHICH SUMS ALREADY PAID BY UNDERTAKINGS BY WAY OF INTEREST ON OVERDUE PAYMENTS ARE TO BE TREATED AS PAYMENTS ON ACCOUNT OF THE CONTRIBUTIONS BY WAY OF PRINCIPAL . THE APPLICANT THINKS THAT IT CAN DEDUCE FROM THIS PROVISION THAT THE SYSTEM OF INTEREST ON OVERDUE PAYMENTS HAS BEEN RETAINED, AND THAT THIS INTEREST, WHICH IS OWED BY CERTAIN UNDERTAKINGS, HAS TO BE SHARED OUT AS A CHARGE ON ALL THE UNDERTAKINGS SUBJECT TO THE SCHEME . THUS THESE UNDERTAKINGS AS A WHOLE WOULD BE REQUIRED TO BEAR THE CONSEQUENCES OF THE DELAY ON THE PART OF SOME OF THEIR COMPETITORS IN PAYING THEIR CONTRIBUTIONS .

THIS ASSUMPTION IS BASED ON A MISTAKEN INTERPRETATION OF DECISION NO 7/61 . THE PROVISION IN ARTICLE 5 WAS SHOWN TO BE NECESSARY PRECISELY BECAUSE THE SAID DECISION HAD TO REPLACE IN ITS ENTIRETY THE OLD SYSTEM OF INTEREST ON OVERDUE PAYMENTS BY THE PRESENT SYSTEM . THE NEW SYSTEM REQUIRES ALL THE UNDERTAKINGS SUBJECT TO THE SCHEME TO MAKE A SUPPLEMENTARY CONTRIBUTION IN ORDER TO SERVICE THE INTEREST . THEREFORE THE OLD ACCOUNTS RELATING TO INTEREST ON OVERDUE PAYMENTS WHICH CERTAIN UNDERTAKINGS HAD ALREADY PAID HAD TO BE CLOSED OFF SO THAT THESE UNDERTAKINGS SHOULD NOT HAVE TO PAY TWICE OVER . ACCORDINGLY, INSTEAD OF BEING REFUNDED THE SAID INTEREST ON OVERDUE PAYMENTS WAS CONSIDERED AS A PAYMENT ON ACCOUNT OF THE CONTRIBUTIONS STILL DUE .

IT FOLLOWS BOTH FROM THE ABOVEMENTIONED ARTICLE 5 AND FROM THE LOGIC OF THE SYSTEM THAT THIS ALLOCATION TAKES PLACE ON AN INDIVIDUAL BASIS BY WAY OF SEPARATE ACCOUNTS AND NOT BY MEANS OF INCLUDING THE WHOLE OF THE INTEREST ON OVERDUE PAYMENTS IN THE GENERAL STATEMENT OF ACCOUNT SHOWING THE TOTAL OF THE SUMS DUE BY WAY OF CONTRIBUTIONS . THEREFORE WHEN THE OLD ACCOUNT FOR INTEREST ON OVERDUE PAYMENTS RELATING TO ONE UNDERTAKING IS CLOSED OFF, THIS CANNOT HAVE ANY HARMFUL REPERCUSSIONS ON THE ACCOUNTS OF THE OTHER UNDERTAKINGS .

IN THESE CIRCUMSTANCES, THIS COMPLAINT OF DISCRIMINATION APPEARS TO BE UNFOUNDED .

( B ) THE APPLICANT ALSO ARGUES THAT THE AMOUNT OF THE SUPPLEMENTARY CONTRIBUTION FOR SERVICING INTEREST NECESSARILY DEPENDS ON HOW PROMPTLY THE UNDERTAKINGS PAY THEIR CONTRIBUTIONS, AND HOW QUICKLY THE HIGH AUTHORITY CARRIES OUT THE FINAL CLOSURE OF THE ACCOUNTS . THUS THIS SYSTEM, IT IS ARGUED, INTRODUCES SUBJECTIVE AND EMPIRICAL FACTORS INTO THE FINANCIAL ARRANGEMENTS FOR THE EQUALIZATION OF FERROUS SCRAP, AND HAS THE EFFECT OF MAKING ALL THE UNDERTAKINGS SUBJECT TO THE SCHEME BEAR THE CONSEQUENCES OF THE DELAY ON THE PART OF THE DEFAULTING UNDERTAKINGS .

P.775

UNDER THE OLD SYSTEM OF INTEREST ON OVERDUE PAYMENTS IT BECAME CLEAR THAT IT WAS OFTEN IMPOSSIBLE TO CHARGE SUCH INTEREST, AT LEAST IN RESPECT OF THE WHOLE OF THE CONTRIBUTIONS WHICH WERE IN FACT DUE . IT ALSO BECAME CLEAR THAT THE UNDERTAKINGS WHICH DID NOT PAY THEIR DEBTS ON TIME OFTEN ENJOYED THE SAME TREATMENT AS THAT GIVEN TO THE UNDERTAKINGS WHICH HAD PAID THEIR CONTRIBUTIONS BY THE DUE DATE OR EVEN EARLIER . FOR THIS REASON ALONE, THIS SYSTEM WAS CAPABLE OF ALTERING THE CONDITIONS OF COMPETITION AND COULD PLACE IN JEOPARDY THE PRINCIPLE OF EQUALITY OF TREATMENT . FURTHERMORE THE EFFECT OF THIS SYSTEM WAS TO MAKE THE UNDERTAKINGS WHICH HAD PAID THEIR CONTRIBUTIONS ON TIME SUFFER THE CONSEQUENCES OF THE DELAY IN WINDING UP THE FINANCIAL ARRANGEMENTS .

ON THE OTHER HAND, DECISION NO 7/61 PLACES ALL THE UNDERTAKINGS SUBJECT TO THE EQUALIZATION SCHEME IN AN IDENTICAL SITUATION, SO THAT THERE CAN BE NO QUESTION OF DISCRIMINATION ATTRIBUTABLE TO IT . IN REALITY IT IMPOSES ON ALL UNDERTAKINGS A SUPPLEMENTARY CONTRIBUTION, CHARGED PROPORTIONATELY TO THEIR BASIS OF ASSESSMENT TO CONTRIBUTION . UNDER THIS SYSTEM, INTEREST IS CREDITED TO THE UNDERTAKINGS WHICH HAVE PAID THEIR CONTRIBUTIONS FOR THE PERIOD FROM THE DATE OF PAYMENT UNTIL THE DATE OF THE FINAL CLOSURE OF THE ACCOUNTS . AS REGARDS THE UNDERTAKINGS WHICH HAVE MADE THEIR PAYMENTS PUNCTUALLY THE AMOUNT OF THIS INTEREST IS EQUAL TO THE SUPPLEMENTARY CONTRIBUTION REQUIRED TO SERVICE THE INTEREST .

IN THE OTHER CASES THE BALANCE RESULTING FROM THE DIFFERENCE BETWEEN THESE TWO AMOUNTS, WHETHER IT BE IN FAVOUR OF THE UNDERTAKING OR OF THE EQUALIZATION SCHEME, ENABLES THE UNDERTAKINGS SUBJECT TO THE SCHEME TO BE COMPENSATED FOR HAVING AT VARIOUS TIMES HAD TO TIE UP FUNDS .

FROM THIS FACT ALONE IT MUST BE CONCLUDED THAT THE CONTESTED SYSTEM IS BASED ON OBJECTIVE CRITERIA WHICH MAKE IT POSSIBLE TO ENSURE THAT ALL THE UNDERTAKINGS ARE TREATED ALIKE . FURTHERMORE, ALTHOUGH IT IS TRUE THAT THE AMOUNT OF INTEREST CREDITED INCREASES IN DIRECT PROPORTION TO THE DELAY IN ARRIVING AT A FINAL CLOSURE OF THE ACCOUNTS, THIS INCREASE DOES NOT INVOLVE AN UNFAIR DISADVANTAGE FOR THE DEBTOR UNDERTAKINGS WHICH HAVE TO BEAR IT . THESE UNDERTAKINGS HAVE CONTINUED TO HAVE AT HAND, BY REASON OF THEIR DELAY, WHETHER IN GOOD OR BAD FAITH, IN MAKING THEIR PAYMENTS, SUMS FOR WHICH THEY WERE ACCOUNTABLE . ACCORDINGLY IT IS FAIR THAT THEY SHOULD BEAR THE INCREASED CHARGE WHICH ARISES FROM THE NEED TO PREVENT THE CREDITOR UNDERTAKINGS FROM BEING PUT AT ANY DISADVANTAGE .

P.776

THUS THE CONTESTED SYSTEM SEEKS TO MAKE THE UNDERTAKINGS WHICH HAVE BENEFITED FROM THE ABOVEMENTIONED DELAYS BEAR THE CONSEQUENCES OF THEM WHILST PROTECTING THE CREDITS IN FAVOUR OF THE OTHER UNDERTAKINGS . IT DOES SO BY SHARING AMONG THOSE SUBJECT TO THE SCHEME THE BURDEN OF CONTRIBUTING TO THE SERVICING OF INTEREST AND BY INTRODUCING CREDITED INTEREST . THEREFORE THIS SYSTEM OFFERS AN OBJECTIVE SOLUTION WHICH MAKES IT POSSIBLE TO AVOID THE DISCRIMINATION CAUSED BY THE SYSTEM OF INTEREST ON OVERDUE PAYMENTS .

FOR ALL THESE REASONS THIS COMPLAINT OF DISCRIMINATION DOES NOT APPEAR TO BE JUSTIFIED .

( C ) THE APPLICANT ALSO MAINTAINS THAT THE CREDITING OF CERTAIN INTEREST GIVES THE RECIPIENT UNDERTAKINGS AN UNJUSTIFIED ADVANTAGE WHICH PLACES ADDITIONAL MEANS OF FINANCE AT THEIR DISPOSAL, AND FAVOURS THEM AS COMPARED WITH THE DEBTOR UNDERTAKINGS .

IN FACT HOWEVER THE GRANTING OF THIS INTEREST IS ONLY INTENDED TO RESTORE THE BALANCE WHICH HAD BEEN DISTURBED BY THE EARLIER SYSTEM . THE AIM OF EQUALIZATION, WHICH IS TO PLACE ALL THE UNDERTAKINGS SUBJECT TO IT IN A COMPARABLE SITUATION FOR EACH EQUALIZATION PERIOD, COULD NOT POSSIBLY BE ACHIEVED BY ANY MEANS OTHER THAN THE CREDITING OF INTEREST IN CASES WHERE DELAY OCCURS IN PAYING OVER SUMS DUE BY CERTAIN UNDERTAKINGS . FOR THESE REASONS NO UNFAIR ADVANTAGE IS GIVEN TO CERTAIN UNDERTAKINGS BY REASON OF THE CONTESTED SYSTEM . THEREFORE THE COMPLAINT OF DISCRIMINATION MUST, IN THIS CASE ALSO, BE REJECTED .

FOR ALL THESE REASONS THE SUBMISSION OF MISUSE OF POWERS WHICH HAS BEEN ALLEGED APPEARS TO BE UNFOUNDED .

C - THE SUBMISSION THAT THE STATEMENT OF REASONS WAS INADEQUATE

THE APPLICANT STATES THAT THE STATEMENT OF THE REASONS FOR DECISION NO 7/61 IS INCONCLUSIVE, BECAUSE IT DOES NOT EXPLAIN THE REASONS WHY IT WAS IMPOSSIBLE FOR THE HIGH AUTHORITY TO ELIMINATE THE DISADVANTAGES WHICH OCCURRED UNDER THE OLD SYSTEM OF INTEREST ON OVERDUE PAYMENTS, AND TO CHOOSE SOME SYSTEM OTHER THAN THE ONE CONTESTED .

RECITALS 5 TO 7 OF THE PREAMBLE TO THIS DECISION CLEARLY POINT OUT THE DISADVANTAGES CREATED BY CHARGING INTEREST ON THE OVERDUE PAYMENT OF PROVISIONALLY ASSESSED CONTRIBUTIONS AND ALSO THE NECESSITY, IN THE CASE OF ALL THOSE SUBJECT TO THE SCHEME, TO RELATE THE PAYMENTS TO ONE PARTICULAR REFERENCE DATE, WHEN THESE PAYMENTS HAD BEEN SPREAD OVER A PERIOD OF TIME IN DIFFERENT WAYS BY DIFFERENT UNDERTAKINGS TO THEIR ADVANTAGE OR DISADVANTAGE AS THE CASE MAY BE . RECITAL NO 8 OF THE PREAMBLE SETS OUT THE SITUATION WHICH RESULTS, IN THE OPINION OF THE HIGH AUTHORITY, FROM THE APPLICATION OF THE CONTESTED SYSTEM, AND WHICH WAS THE REASON WHY IT ADOPTED THIS SYSTEM . P.777

THIS STATEMENT OF REASONS THUS MAKES IT POSSIBLE TO LEARN OF THE CONSIDERATIONS WHICH LED THE HIGH AUTHORITY TO ADOPT DECISION NO 7/61, AND THE GROUNDS ON WHICH THAT DECISION IS BASED . THUS, SINCE THE REASONS GIVEN FOR THE SAID DECISION ARE SUFFICIENT IN LAW THE PRESENT SUBMISSION IS REJECTED AS UNFOUNDED .

D - THE SUBMISSION THAT THE INTEREST ON OVERDUE PAYMENTS WAS ILLEGAL

THE APPLICANT STATES THAT THE RETENTION OF INTEREST ON OVERDUE PAYMENTS, CONFIRMED BY ARTICLE 5 OF DECISION NO 7/61, IS CONTRARY TO THE GENERAL PRINCIPLE OF LAW ACCORDING TO WHICH INTEREST PAYABLE FOR DELAY IN PAYMENT IS ONLY DUE ON A DEBT WHICH IS CERTAIN, LIQUIDATED AND DUE . FURTHERMORE, SUCH INTEREST IS ONLY DUE FROM THE DAY WHEN THE DEMAND FOR PAYMENT IS MADE .

IN FACT DECISION NO 7/61 REFRAINED FROM PENALIZING DELAYS IN PAYMENT BY CHARGING INTEREST IN RESPECT OF THE DELAY, AND REPLACED THIS SYSTEM BY ONE PROVIDING FOR A SUPPLEMENTARY CONTRIBUTION TO SERVICE THE INTEREST CREDITED TO UNDERTAKINGS . IT IS CLEAR THAT ARTICLE 5 OF DECISION NO 7/61 IS NECESSARY PRECISELY BECAUSE THE SAID DECISION REPLACED THE OLD SYSTEM OF INTEREST ON OVERDUE PAYMENTS BY THE PRESENT SYSTEM . FURTHERMORE, ARTICLE 6 OF THIS DECISION EXPRESSLY REVOKED ARTICLE 5 OF DECISION NO 19/60, AND ARTICLE 6 OF DECISION NO 20/60, BOTH OF WHICH THE APPLICANT RELIES ON IN SUPPORT OF ITS ARGUMENT . FOR ALL THESE REASONS, SINCE THE CONTESTED DECISION DOES NOT PROVIDE FOR THE INTEREST ON OVERDUE PAYMENTS TO BE RETAINED, THE PRESENT SUBMISSION LACKS ANY SUBSTANCE AND MUST THEREFORE BE REJECTED .

E - THE SUBMISSION CONCERNING THE RETROACTIVE EFFECTS OF DECISION NO 7/61

FINALLY THE APPLICANT ARGUES THAT DECISION NO 7/61 IS IRREGULAR, INASMUCH AS IT PRODUCES, PARTICULARLY BY VIRTUE OF ARTICLES 3 AND 5 THEREOF, RETROACTIVE EFFECTS, AND THUS VIOLATES A FUNDAMENTAL PRINCIPLE OF LAW .

IN FINANCIAL ARRANGEMENTS SUCH AS THOSE IN QUESTION, WHICH ARE BASED ON A CLOSE INTER - DEPENDENCE BETWEEN EACH PARTICIPANT'S CONTRIBUTIONS, IT IS NECESSARY ABOVE ALL TO ENSURE EQUALITY OF TREATMENT FOR THOSE SUBJECT TO THE SCHEME BY ELIMINATING ANY POSSIBILITY OF DISCRIMINATION AMONG THEM . IN THESE CIRCUMSTANCES, THE RETENTION OF A SET OF RULES WHOSE EFFECT IS TO FAVOUR UNDULY CERTAIN UNDERTAKINGS AT THE EXPENSE OF OTHERS, ON THE GROUND THAT SUCH RULES HAD CREATED SETTLED SITUATIONS IN LAW OR VESTED RIGHTS, WOULD RUN COUNTER TO THE AIMS OF THE SAID FINANCIAL ARRANGEMENTS . THUS IT IS APPROPRIATE, AS PART OF THESE ARRANGEMENTS, TO ACCEPT THAT THE RESPONSIBLE AUTHORITIES HAVE THE POWER TO MAKE THE NECESSARY ALTERATIONS TO SUCH A SET OF RULES IN ORDER TO ELIMINATE THE POSSIBILITY OF ANY DISCRIMINATION .

FURTHERMORE AS THESE FINANCIAL ARRANGEMENTS ARE IN THE COURSE OF BEING WOUND UP, AND THE CONTRIBUTIONS OF EACH PARTICIPANT ARE ACCORDINGLY ASSESSED ON A PROVISIONAL BASIS, DISCRIMINATION OF THIS KIND CANNOT POSSIBLY BE RECTIFIED WITHOUT AFFECTING SITUATIONS CREATED BY THE PREVIOUS SET OF RULES WHICH IT WAS NECESSARY TO ALTER .

IT IS THEREFORE NECESSARY TO CONCLUDE THAT THE PRESENT SUBMISSION IS UNFOUNDED AND MUST BE REJECTED .

FOR THE REASONS SET OUT ABOVE, THE OBJECTION OF ILLEGALITY RAISED AGAINST GENERAL DECISIONS NOS 21/58, 19/60, 20/60, 7/61 AND 7/63 HAS FAILED TO ESTABLISH THAT THE CONTESTED INDIVIDUAL DECISION WAS ILLEGAL, SINCE ITS ARGUMENT IS BASED ON THE SAID OBJECTION .

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

THE COURT

HEREBY

DECLARES THE PRESENT APPLICATION ADMISSIBLE AND :

1 . DISMISSES THE APPLICATION AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO BEAR THE COSTS OF THE PROCEEDINGS .