61961J0021

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1 . PROCEEDINGS - ACTION FOR FAILURE TO ACT - SILENCE OF THE HIGH AUTHORITY ESSENTIAL - LETTER REPEATING AND EXPLAINING THIS POSITION - ABSENCE OF AN EXPRESS DECISION

2 . PROCEEDINGS - ACTION FOR FAILURE TO ACT - DECISIONS OF THE HIGH AUTHORITY REFERRED TO IN ARTICLE 33 OF THE ECSC TREATY - INADMISSIBILITY

1 . A LETTER FROM THE HIGH AUTHORITY REPEATING AND EXPLAINING ITS PRIOR LEGAL POSITION DOES NOT CONSTITUTE AN EXPRESS DECISION OF REFUSAL BY IT AND CONSEQUENTLY DOES NOT INTERRUPT THE PERIOD AT THE END OF WHICH AN IMPLIED DECISION OF REFUSAL IS TO BE INFERRED FROM THE SILENCE OF THE HIGH AUTHORITY .

2 . AN APPLICANT CANNOT BE PERMITTED, BY USING THE PROCEDURAL ARTIFICE OF AN ACTION FOR FAILURE TO ACT, TO ASK FOR THE ANNULMENT OF A DECISION WHICH MIGHT HAVE BEEN DECLARED VOID IF PROCEEDINGS HAD BEEN INSTITUTED WITHIN THE TIME LIMIT LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 33 .

IN JOINED CASES 21 TO 26/61

MERONI & CO ., S.P.A ., HAVING ITS REGISTERED OFFICE AT MILAN, REPRESENTED BY ALDO MERONI ( 21/61 ),

ACCIAIERIA LAMINATOI DI MAGLIANO ALPI ( A.L.M.A .), S.P.A ., HAVING ITS REGISTERED OFFICE AT TURIN, REPRESENTED BY GIUSEPPE PASSALACQUA ( 22/61 ),

FER . RO ( FERRIERE ROSSI ), AN IRON AND STEEL UNDERTAKING, HAVING ITS REGISTERED OFFICE AT MAGLIANO ALPI ( CONI ), REPRESENTED BY GINO ROSSI ( 23/61 ),

MERONI & CO ., A LIMITED PARTNERSHIP, HAVING ITS OFFICES AT ERBY, REPRESENTED BY AGOSTINO ARTIOLI ( 24/61 ),

SOCIETA INDUSTRIALE METALURGICA DI NAPOLI ( SIMET ), S.P.A ., HAVING ITS REGISTERED OFFICE AT NAPLES, REPRESENTED BY PIO FANTINI ( 25/61 ), ACCIAIERIA FERRIERA DI ROMA ( FERAM ), S.P.A ., HAVING ITS REGISTERED OFFICE AT ROME, REPRESENTED BY ANTONIO FRIGERIO ( 26/61 ),

ALL ASSISTED BY ARLINO COTTRAU, A MEMBER OF THE TURIN BAR, ADVOCATE OF THE CORTE SUPREMA DI CASSAZIONE AT ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE II, APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY PROFESSOR GIULIO PASETTI, WITH AN ADDRESS FOR SERVICE AT ITS OFFICES, 2 PLACE DE METZ, LUXEMBOURG, DEFENDANT,

APPLICATION FOR 'A DECLARATION THAT THE HIGH AUTHORITY IS REQUIRED TO CONFIRM BY A DECISION THAT IT HAS INFRINGED ITS OBLIGATIONS UNDER THE TREATY BY EXEMPTING PRODUCERS OF STEEL WITHIN THE MEANING OF ANNEX III TO THE TREATY AND STEEL FOUNDRIES FROM EQUALIZATION PAYMENTS ON THE CONSUMPTION OF BOUGHT SCRAP AS RESPECTS THE PROPORTION OF SCRAP CONSUMPTION CORRESPONDING TO CRUDE STEEL PRODUCTION FOR FOUNDRIES, AND THAT IT IS THEREFORE REQUIRED TO RESCIND THESE PROVISIONS WHICH APPEAR TO BE DISCRIMINATORY',

P . 76

THE SECOND OF THE CONCLUSIONS OF THE APPLICANTS IN THE MAIN ACTION IS WORDED AS FOLLOWS :

'TO ANNUL FOR LACK OF COMPETENCE, INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, INFRINGEMENT OF THE TREATY AND MISUSE OF POWERS WITH REGARD TO THE APPLICANT, WITH ALL LEGAL CONSEQUENCES ARISING THEREFROM, THE IMPLIED DECISION OF REFUSAL WHICH IS TO BE INFERRED FROM THE SILENCE OF THE HIGH AUTHORITY WITH REGARD TO THE REQUEST BY THE APPLICANT FOR THE ABOLITION, AS FROM THE DAY WHEN THE EXEMPTIONS WERE GRANTED EXPRESSLY OR BY IMPLICATION ( OR MERELY TACITLY ALLOWED ), OF THE EXEMPTIONS FROM COMPULSORY PAYMENT OF EQUALIZATION CONTRIBUTIONS FOR SCRAP - IRON GRANTED TO OTHER UNDERTAKINGS USING BOUGHT SCRAP-IRON, REFERRED TO IN ARTICLE 80 OF THE TREATY, AND WHICH ARE IN A SIMILAR SITUATION .'

IT IS IMPORTANT AT THE OUTSET FOR THE COURT TO CONSIDER OF ITS OWN MOTION WHETHER THE HIGH AUTHORITY HAS FAILED TO ACT, THAT IS TO SAY WHETHER THERE IS AN IMPLIED DECISION OF REFUSAL .

A LETTER SIGNED BY MR ROLLMAN, DIRECTOR - GENERAL OF STEEL WITH THE HIGH AUTHORITY AND BY MR PECO, DIRECTOR, IS ANNEXED TO THE APPLICATION AND MUST BE TAKEN INTO CONSIDERATION .

THIS LETTER IS A REPLY TO THE FIRST SERIES OF FORMAL NOTICES SENT BY THE APPLICANTS TO THE HIGH AUTHORITY BETWEEN 4 AND 9 SEPTEMBER . THE LETTER IS DATED 27 OCTOBER 1961; AT FIRST SIGHT THEREFORE IT SEEMS TO INTERRUPT THE PERIOD OF TWO MONTHS AT THE END OF WHICH AN IMPLIED DECISION OF REFUSAL IS TO BE INFERRED FROM THE SILENCE OF THE HIGH AUTHORITY . A MORE DETAILED EXAMINATION OF THE CONTENTS OF THIS LETTER SHOWS THAT IT DOES NOT CONTAIN AN EXPRESS DECISION OF REFUSAL BUT A REPITITION AND EXPLANATION OF THE PRIOR LEGAL POSITION OF THE HIGH AUTHORITY .

IN PARTICULAR, THE THIRD PARAGRAPH OF THIS LETTER STATES :

'IN ANY CASE BEFORE THE HIGH AUTHORITY GIVES ITS VIEWS ON THE PROBLEM IN QUESTION, IT SEEMS TO BE APPROPRIATE THAT FURTHER AND BETTER PARTICULARS BE SUPPLIED OF THE CLAIMS PUT FORWARD .'

P . 77

THERE IS THUS NO EXPRESS DECISION OF REFUSAL BY THE HIGH AUTHORITY; IT IS NECESSARY THEREFORE TO ESTABLISH WHETHER THE PROCEDURE LAID DOWN IN ARTICLE 35 IS APPLICABLE .

FOR THIS PURPOSE IT IS NECESSARY TO ASCERTAIN WHETHER, AS THE DEFENDANT IN THE MAIN ACTION ALLEGES, THE IMPLIED DECISION OF REFUSAL INVOKED BY THE APPLICANT DOES NOT MERELY CONFIRM THE RULES IN FORCE . IN THIS CONNEXION THE DECISION, WHICH, ACCORDING TO THE APPLICANTS, THE HIGH AUTHORITY SHOULD HAVE TAKEN, MUST BE CONSIDERED .

THE FORMAL NOTICES BY LETTER SENT BY THE APPLICANTS TO THE HIGH AUTHORITY AS WELL AS THE APPLICATIONS THEMSELVES PERMIT THE TEXT OF THIS DECISION TO BE PRESUMED WITH SUFFICIENT ACCURACY . THE DESCRIPTION OF THE SUBJECT OF THE ACTIONS WITH WHICH THE APPLICANTS BEGIN THEIR APPLICATIONS READS AS FOLLOWS :

'THE APPLICANT ASKS THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES TO DECLARE THAT THE HIGH AUTHORITY IS REQUIRED TO CONFIRM BY A DECISION THAT IT HAS INFRINGED ITS OBLIGATIONS UNDER THE TREATY BY EXEMPTING PRODUCERS OF STEEL WITHIN THE MEANING OF ANNEX III TO THE TREATY AND STEEL FOUNDRIES FROM EQUALIZATION PAYMENTS ON THE CONSUMPTION OF BOUGHT SCRAP AS RESPECTS THE PROPORTION OF SCRAP CONSUMPTION CORRESPONDING TO CRUDE STEEL PRODUCTION FOR FOUNDRIES, AND THAT IT IS THEREFORE REQUIRED TO RESCIND THESE PROVISIONS WHICH APPEAR TO BE DISCRIMINATORY .'

IN THE PENULTIMATE PARAGRAPH OF THEIR FORMAL NOTICE DATED 8 SEPTEMBER 1961 THE APPLICANTS REQUESTED THAT :

'THE DISCRIMINATION IN QUESTION...BE REMOVED BY THE HIGH AUTHORITY'S TAKING A DECISION TO MAKE ALL PURCHASES OF SCRAP-IRON WITHOUT EXCEPTION, INCLUDING PURCHASES INTENDED FOR THE PRODUCTION OF STEELS REFERRED TO IN ANNEX III TO THE TREATY AND STEEL CASTINGS, SUBJECT TO EQUALIZATION PAYMENTS .'

THE PARAGRAPH PRECEDING THE CONCLUSIONS IN THE APPLICATIONS READS AS FOLLOWS :

'FINALLY THE APPLICANT LEAVES IT TO THE COURT OF JUSTICE TO DETERMINE WHETHER THE IMPLIED DECISION OF REFUSAL OF THE HIGH AUTHORITY TO RESCIND THE UNLAWFUL AND DISCRIMINATORY EXEMPTIONS CONTAINED IN PARAGRAPHS ( B ) AND ( D ) ( OF ARTICLE 10 ) OF DECISION 2/57 APPLIES TO THEM INDIVIDUALLY OR IS OF GENERAL APPLICATION .'

P . 78

THESE PASSAGES ARE SUFFICIENT PROOF THAT, IN ANY EVENT, THE DECISION WHICH THE APPLICANTS CLAIM THE HIGH AUTHORITY SHOULD HAVE TAKEN WAS TO RESCIND THE DECISIONS GRANTING THE EXEMPTIONS IN DISPUTE AND IN PARTICULAR PARAGRAPHS ( B ) AND ( D ) OF ARTICLE 10 OF DECISION 2/57, REPEATED IN THE SAME PARAGRAPHS OF ARTICLE 10 DECISION 16/58, AS WELL AS THE PRACTICES OF THE HIGH AUTHORITY HAVING THE SAME EFFECT BEFORE DECISION 2/57 WAS TAKEN .

AS REGARDS DECISION 2/57, THE APPLICATION MUST BE DISMISSED BECAUSE AN APPLICANT CANNOT BE PERMITTED, BY USING THE PROCEDURAL ARTIFICE OF AN ACTION FOR FAILURE TO ACT, TO ASK FOR THE ANNULMENT OF DECISIONS WHICH MIGHT HAVE BEEN DECLARED VOID IF PROCEEDINGS HAD BEEN INSTITUTED WITHIN THE TIME LIMIT LAID DOWN IN THE THIRD PARAGRAPH OF ARTICLE 33 .

AS REGARDS THE EXEMPTIONS ALLEGED BY THE APPLICANTS TO HAVE BEEN GRANTED FOR THE PERIOD BEFORE DECISION 2/57, THESE ARE NOT EXPRESSLY, OR AT ALL EVENTS NOT CLEARLY, REFERRED TO IN THE FORMAL NOTICES BY LETTER REFERRED TO ABOVE . THE APPLICANTS THEMSELVES EMPHASIZE THAT THESE EXEMPTIONS WERE WELL KNOWN, AND THEY DID NOT CONSIDER IT ADVISABLE AT THAT TIME TO GIVE THE HIGH AUTHORITY FORMAL NOTICE TO WITHDRAW THEM .

NOR DID THEY BRING AN APPLICATION FOR ANNULMENT OF THE EXEMPTIONS IN QUESTION WHEN ARTICLE 10 OF DECISION 2/57 MADE THEM APPARENT AND IT BECAME POSSIBLE TO COMMENCE PROCEEDINGS IN RESPECT THEREOF . AS THEY DID NOT COMMENCE PROCEEDINGS THEN, THEY ARE NOW PRECLUDED FROM DOING SO .

THE PRELIMINARY OBJECTION OF INADMISSIBILITY PUT FORWARD BY THE DEFENDANT IN THE MAIN ACTION MUST THEREFORE BE ALLOWED .

AS THE APPLICANTS IN THE MAIN ACTION HAVE FAILED BY REASON OF THE PRELIMINARY OBJECTION OF INADMISSIBILITY PUT FORWARD BY THE DEFENDANT IN THE MAIN ACTION, UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THEY MUST BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . RULES THAT THE PRELIMINARY OBJECTION OF INADMISSIBILITY PUT FORWARD BY THE HIGH AUTHORITY WITH REGARD TO APPLICATIONS 21/61, 22/61, 23/61, 24/61, 25/61 AND 26/61 IS ACCEPTED;

2 . ORDERS THE APPLICANTS IN THE MAIN ACTION TO PAY THE COSTS OF THE PROCEEDINGS .