61963J0014

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1 . APPLICATION FOR ANNULMENT - LEGAL INTEREST IN TAKING PROCEEDINGS - ASSESSMENT

2 . COMMON MARKET - FERROUS SCRAP - EQUALIZATION - EFFECTS - COMMON CRITERION TO BE ADOPTED FOR THE COMMENCEMENT OF THOSE EFFECTS

3 . FERROUS SCRAP - EQUALIZATION WITHIN THE MEANING OF DECISION N . 22/54 - BOUGHT FERROUS SCRAP - CONCEPT - COMMUNITY ALLOCATION AS CRITERION

4 . COSTS - PAYMENT OF OWN COSTS - EXCEPTIONAL CIRCUMSTANCES

( RULES OF PROCEDURE, ARTICLE 69 ( 2 ))

1 . A LEGAL INTEREST IN MAKING AN APPLICATION FOR ANNULMENT IS ASSESSED AT THE DAY ON WHICH THE APPLICATION IS MADE .

2 . IT IS NECESSARY TO ADOPT A COMMON CRITERION TO DETERMINE THE COMMENCEMENT OF THE EFFECTS OF THE EQUALIZATION SYSTEM, BOTH FOR THE APPLICATION OF THE LEVY ON BOUGHT FERROUS SCRAP AND FOR THE ALLOCATION OF GRANTS FOR IMPORTED FERROUS SCRAP .

3 . THE FERROUS SCRAP SUBJECTED TO THE EQUALIZATION LEVY BY DECISION N . 22/54 IS THE FERROUS SCRAP PURCHASED FOR USE IN COMMUNITY PRODUCTION; THIS ALLOCATION TO COMMUNITY USE IS NOT DETERMINED UNTIL THE TIME OF RECEIPT BY UNDERTAKINGS .

4 . IF THE DEFECTIVE DRAFTING OF A MEASURE ADOPTED BY AN INSTITUTION HAS BEEN THE DECISIVE FACTOR IN THE MAKING OF AN APPLICATION, THIS AMOUNTS TO AN EXCEPTIONAL CIRCUMSTANCE ALLOWING THE COURT TO ORDER THAT THE PARTIES BEAR THEIR OWN COSTS .

IN CASE 14/63

FORGES DE CLABECQ, A LIMITED COMPANY GOVERNED BY BELGIAN LAW WITH ITS REGISTERED OFFICE AT CLABECQ, REPRESENTED BY ITS BOARD OF DIRECTORS AND ASSISTED BY MARCEL GREGOIRE, ADVOCATE OF THE BRUSSELS COUR D'APPEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF TONY BIEVER, AVOCAT-AVOUE, 83 BOULEVARD GRANDE-DUCHESSE CHARLOTTE, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, DR ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY PAUL ORIANNE, ADVOCATE AT THE BRUSSELS COUR D'APPEL, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR ANNULMENT OF AN INDIVIDUAL DECISION OF THE HIGH AUTHORITY OF 5 DECEMBER 1962, NOTIFIED TO THE APPLICANT ON 23 JANUARY 1963, INCLUDING IN THE TONNAGES USED AS THE BASIS FOR THE ASSESSMENT OF THE CONTRIBUTION 20 682 METRIC TONS OF FERROUS SCRAP WHICH THE APPLICANT CLAIMS TO HAVE BOUGHT BEFORE 1 APRIL 1954, THE DATE OF THE ENTRY INTO FORCE OF DECISION N . 22/54 OF 26 MARCH 1954, BUT WHICH IT RECEIVED AFTER THAT DATE;

ADMISSIBILITY

THE PARTIES HAVE NOT QUESTIONED THAT THE DISPUTED DECISION WAS ACTUALLY TAKEN BY THE HIGH AUTHORITY AS A BODY; THEY HAVE RAISED NO OBJECTION IN RESPECT OF THE REGULARITY OF THE NOTIFICATION OF THE SAID DECISION AND NO OBJECTION NEED BE RAISED BY THE COURT OF ITS OWN MOTION .

THE DEFENDANT ALLEGES THAT THE ONLY SUBMISSION ADVANCED BY THE APPLICANT, THE BREACH OF DECISION N . 22/54, IS EXPRESSED IN VAGUE AND LACONIC TERMS AND THAT AS A RESULT THE APPLICANT DOES NOT CONFORM TO ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE, ACCORDING TO WHICH THE APPLICATION MUST INCLUDE A BRIEF STATEMENT OF THE GROUNDS ON WHICH IT IS BASED .

THE APPLICATION CONTAINS CONCLUSIONS AND SUBMISSIONS IN SUPPORT OF THE ACTION AND, ALTHOUGH IT IS TRUE THAT THE APPLICANT HAS STATED THEM BRIEFLY, IT HAS NEVERTHELESS DONE SO IN A CLEAR AND ACCURATE MANNER .

THE FIRST OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .

THE DEFENDANT ALLEGES IN THE SECOND PLACE THAT THE APPLICANT IN ITS APPLICATION MERELY TENDERED PROOF, AS FAR AS NECESSARY, THAT THE TONNAGE OF DISPUTED FERROUS SCRAP HAD BEEN BOUGHT BEFORE 1 APRIL 1954, THE DATE UPON WHICH DECISION N . 22/54 ENTERED INTO FORCE, WITHOUT APPENDING TO IT THE FILE OF DOCUMENTS AS PROVIDED BY ARTICLE 37 ( 4 ) OF THE RULES OF PROCEDURE .

THE DISPUTED DECISIONS WAS CONFINED TO SETTLING A POINT OF LAW, BY INTERPRETING DECISION N . 22/54 .

THE SECOND OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .

THE DEFENDANT ALLEGES IN THE THIRD PLACE THAT THE ANNULMENT OF THE DISPUTED DECISION WOULD ENTAIL A REVISION OF THE EQUALIZATION CALCULATIONS AND, CONSEQUENTLY, A HEAVIER BURDEN ON THE APPLICANT THAN THE REDUCTION OBTAINED .

A LEGAL INTEREST IN MAKING AN APPLICATION FOR ANNULMENT IS ASSESSED AT THE DAY ON WHICH THE APPLICATION IS MADE, AND AT THAT TIME THE EXEMPTION OF THE DISPUTED TONNAGE OFFERED THE APPLICANT A CERTAIN ADVANTAGE .

THE THIRD OBJECTION OF INADMISSIBILITY MUST BE DISMISSED .

FOR THE ABOVE-MENTIONED REASONS THE APPLICATION IS ADMISSIBLE .

ON THE SUBSTANCE OF THE CASE

ACCORDING TO THE APPLICANT'S STATEMENT, ARTICLE 3 OF DECISION N . 22/54 OF THE HIGH AUTHORITY SETTING UP THE SYSTEM OF COMPULSORY EQUALIZATION PROVIDES THAT THE AMOUNT OF THE CONTRIBUTIONS IS TO BE CALCULATED PROPORTIONATELY TO THE TONNAGES OF FERROUS SCRAP BOUGHT DURING THE PERIOD FOR WHICH THE DECISION REMAINED IN FORCE, THAT IS TO SAY FROM 1 APRIL 1954 TO 31 MARCH 1955 .

THE APPLICANT ALLEGES THAT THE DISPUTED FERROUS SCRAP RECEIVED BY IT AFTER 1 APRIL 1954 HAD BEEN BOUGHT BEFORE THAT DATE AND THAT, IN CONSEQUENCE THIS SCRAP IS NOT SUBJECT TO EQUALIZATION CONTRIBUTIONS .

IN THE DISPUTED DECISION THE HIGH AUTHORITY HAS INTERPRETED ARTICLE 3 OF DECISION N . 22/54 IN SUCH A WAY THAT THE EXPRESSION 'TONNAGES OF FERROUS SCRAP BOUGHT' MEANS 'TONNAGES OF BOUGHT FERROUS SCRAP RECEIVED '.

IT IS NECESSARY TO ADOPT A COMMON CRITERION TO DETERMINE THE COMMENCEMENT OF THE RESULTS OF THE EQUALIZATION SYSTEM, BOTH FOR THE APPLICATION OF THE LEVY ON BOUGHT FERROUS SCRAP AND FOR THE ALLOCATION OF GRANTS FOR IMPORTED FERROUS SCRAP .

A MISTAKE IN CORRELATION IN THIS RESPECT WOULD LEAD IN FACT TO THE RIDICULOUS CONSEQUENCE THAT A QUANTITY OF FERROUS SCRAP IMPORTED FROM A THIRD COUNTRY, BOUGHT BY AN UNDERTAKING BEFORE 1 APRIL 1954 BUT IMPORTED AFTER THAT DATE, WOULD BENEFIT FROM EQUALIZATION WITHOUT BEING SUBJECT TO THE PAYMENT OF ANY CONTRIBUTION .

DECISION N . 22/54, WHICH PROVIDED FOR THE CREATION OF 'A PERMANENT SCHEME ALLOWING EQUALIZATION OF FERROUS SCRAP IMPORTED FROM THIRD COUNTRIES', COULD NOT HAVE HAD AS ITS AIM OR EFFECT THE INSTITUTION OF CONTRIBUTIONS ON CONFLICTING BASES, BOTH WITHIN THE FRAMEWORK OF ARTICLE 3 ALONE AND IN THE RELATIONSHIP BETWEEN ARTICLE 3 AND ARTICLE 2 .

ARTICLE 3 MAKES PROVISION IN THE SAME SENTENCE FOR THE CALCULATION OF CONTRIBUTIONS ON THE BASIS OF 'TONNAGES OF FERROUS SCRAP BOUGHT...WHETHER WITHIN THE COMMUNITY, OR ON IMPORTATION FROM THIRD COUNTRIES .'

THE SAID ARTICLE THEREFORE WAS MEANT TO BRING THE TWO CATEGORIES OF BOUGHT FERROUS SCRAP UNDER THE SAME RULES .

IT WOULD CONSEQUENTLY BE ILLOGICAL TO MAINTAIN DIFFERENT LEGAL CRITERIA FOR CONSTRUING THE CONCEPT OF BOUGHT FERROUS SCRAP ACCORDING TO WHETHER IT ORIGINATES FROM WITHIN THE COMMUNITY OR FROM THIRD COUNTRIES .

THE EXPRESSION 'TONNAGES OF FERROUS SCRAP BOUGHT' MUST ACCORDINGLY HAVE THE SAME MEANING IN BOTH CASES .

THE INTERPRETATION OF THIS EXPRESSION IN RESPECT OF IMPORTS IS GIVEN BY ARTICLE 2 WHICH THROWS LIGHT UPON AND COMPLETES THE CONCEPT OF BOUGHT FERROUS SCRAP BY REGARDING AS SUCH SCRAP THE IMPORT OF WHICH IS 'EFFECTED' DURING THE PERIOD IN WHICH THE DECISION REMAINED IN FORCE .

IF SUCH IS THE MEANING PLACED UPON THE EXPRESSION, 'TONNAGES...BOUGHT' IN THE CASE OF IMPORTATION, THE UNITY OF INTERPRETION OF THIS EXPRESSION IMPLIES THE IMPOSSIBILITY, BECAUSE OF THIS CONTEXT, OF GIVING IT A PURELY LITERAL INTERPRETATION .

IN ORDER TO SATISFY THE NECESSITY OF GIVING THE EXPRESSION 'TONNAGES...BOUGHT' ONE MEANING APPLICABLE TO BOTH THE CASES ENVISAGED IN ARTICLE 3, IT IS NECESSARY TO INTERPRET IT IN THE LIGHT OF ARTICLE 2 AND IN BOTH CASES TO GIVE IT A MEANING CONSONANT WITH THAT ARTICLE . THIS INTERPRETATION OF ARTICLES 2 AND 3 IS CONSISTENT WITH THE AIMS OF THE SYSTEM OF EQUALIZATION SET OUT IN DECISION N . 22/54 .

IT APPEARS FROM THE PREAMBLE TO THIS DECISION THAT THE IMPOSITION OF CONTRIBUTIONS, LIKE THE PAYMENT OF GRANTS, IS AIMED AT MAINTAINING THE PRICE OF FERROUS SCRAP AT A REASONABLE LEVEL AND AT ENSURING ALWAYS THAT THE NEEDS OF THE COMMUNITY ARE COVERED, BY MAKING POSSIBLE THE IMPORTATION OF THE NECESSARY QUANTITIES ORIGINATING IN THIRD COUNTRIES AT PRICES COMPARABLE TO THOSE IN FORCE WITHIN THE COMMUNITY .

IT WOULD NOT BE IN CONFORMITY WITH THESE AIMS TO SUBMIT TO THE EQUALIZATION LEVY ALL FERROUS SCRAP BOUGHT FOR WHATEVER REASON BY COMPANIES WHICH ARE UNDERTAKINGS FOR THE PURPOSES OF ARTICLE 80 OF THE TREATY, BUT IT IS NECESSARY TO PROVIDE FOR FERROUS SCRAP BOUGHT FOR USE IN COMMUNITY PRODUCTION .

IN FACT IT HAS ALREADY BEEN HELD THAT 'IT IS NOT PARTICIPATION IN THE FERROUS SCRAP MARKET WHICH GIVES RISE TO THE EQUALIZATION LEVY, BUT THE CONSUMPTION OF FERROUS SCRAP '.

IT IS EVIDENT FROM THE LOGIC OF THE SYSTEM DESCRIBED ABOVE AND CONFIRMED BY SUCCESSIVE DECISIONS ON EQUALIZATION THAT AN UNEXECUTED CONTRACT OF PURCHASE CANNOT BE SUBJECT TO EQUALIZATION .

THE ALLOCATION OF FERROUS SCRAP TO COMMUNITY USE IS NOT DETERMINED UNTIL THE TIME OF RECEIPT BY UNDERTAKINGS .

THIS POINT OF VIEW IS CONFIRMED BY PRACTICE AND CASE-LAW WHICH, IN CASE OF UNCERTAINTY CONCERNING THE TONNAGE OF FERROUS SCRAP LIABLE TO EQUALIZATION LEVIES, HAVE REFERRED REGULARLY TO THE CRITERION OF CONSUMPTION OF SCRAP BY THE UNDERTAKINGS REFERRED TO IN ARTICLE 80 OF THE TREATY .

ALTHOUGH IT IS TRUE THAT DECISION N . 22/54 REFERS TO PURCHASE, THIS REFERENCE IS EXPLICABLE PARTICULARLY BY THE NECESSITY NOT TO LEVY CONTRIBUTIONS ON FERROUS SCRAP PRODUCED BY THE CONSUMER UNDERTAKING ITSELF .

THE OBJECTS OF THE EQUALIZATION SYSTEM THUS CONFIRM, DESPITE THE FAULTY DRAFTING OF THE DECISION, THE NECESSITY TO GIVE THE EXPRESSION 'BOUGHT SCRAP', A SINGLE INTERPRETATION IN THE LIGHT OF ARTICLE 2 .

CONSEQUENTLY, TO DECIDE THE STARTING POINT FOR THE APPLICATION OF THE SYSTEM, IT IS NECESSARY TO REFER TO DELIVERY WHICH INDICATES THE PASSING OF THE FERROUS SCRAP UNDER THE EFFECTIVE CONTROL OF THE CONSUMER UNDERTAKING .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

NEVERTHELESS, PARAGRAPH ( 3 ) OF THE SAME ARTICLE ALLOWS THE COURT, WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, TO ORDER THAT THE PARTIES BEAR THEIR OWN COSTS .

IN THE PRESENT CASE THE DEFECTIVE DRAFTING OF ARTICLE 3 OF DECISION N . 22/54 WAS THE DECISIVE FACTOR IN THE MAKING OF THE APPLICATION .

IT FOLLOWS FROM THIS THAT THERE IS AN EXCEPTIONAL CIRCUMSTANCE IN WHICH THE PARTIES MAY BE ORDERED TO BEAR THEIR OWN COSTS .

THE COURT

HEREBY :

1 . DISMISSES APPLICATION N . 14/63 AS UNFOUNDED;

2 . ORDERS EACH PARTY TO BEAR ITS OWN COSTS .