61965J0051

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PROCEDURE - MEASURES OF INQUIRY - APPLICATION FOR ADOPTION OF SUCH MEASURES - CONDITIONS OF ADMISSIBILITY

( RULES OF PROCEDURE, ARTICLE 45 )

AN APPLICATION FOR THE ADOPTION OF MEASURES OF INQUIRY MADE BY A PARTY CANNOT BE ACCEPTED IF THAT PARTY OFFERS NO EVIDENCE WHATEVER TO JUSTIFY SUCH MEASURES .

IN CASE 51/65

ILFO - INDUSTRIA LAMINATI FERROSI ODOLESE SPA, HAVING ITS REGISTERED OFFICE AT ODOLO ( BRESCIA ), REPRESENTED BY DANTE DONINI, CHAIRMAN OF ITS BOARD OF DIRECTORS, ASSISTED BY PIETRO GASPARRI, PROFESSOR AT THE UNIVERSITY OF PERUGIA, ADVOCATE OF THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 6 RUE WILLY-GOERGEN,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY ALFONSO TESAURO OF THE NAPLES BAR, PROFESSOR AT THE UNIVERSITY OF NAPLES, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF TWO INDIVIDUAL DECISIONS DATED 19 MAY 1965 ADDRESSED TO THE APPLICANT AND FIXING RESPECTIVELY THE QUANTITY OF SCRAP ASSESSABLE AND THE AMOUNT OF THE EQUALIZATION CONTRIBUTION PAYABLE;

P.94

ADMISSIBILITY

THE DEFENDANT HAS NOT CHALLENGED THE ADMISSIBILITY OF THE APPLICATION AND NO GROUNDS EXIST FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

P.95

THE PRESENT APPLICATION IS THEREFORE ADMISSIBLE .

THE SUBSTANCE OF THE CASE

THE AMENDMENT OF THE CONTESTED DECISIONS

THE TWO INDIVIDUAL DECISIONS OF 19 MAY 1965, CONTESTED IN THE PRESENT APPLICATION, FIXED THE BASIS OF ASSESSMENT TO CONTRIBUTION IN THE CASE OF THE APPLICANT COMPANY AT 26 582 METRIC TONS FOR THE ACCOUNTING PERIODS FROM 1 APRIL 1954 TO 30 NOVEMBER 1958 AND THE AMOUNT OWED BY THE APPLICANT TO THE FINANCIAL SCHEME FOR EQUALIZATION AT 176 080 828 LIRE . IN THE LIGHT OF THE INVOICES ANNEXED TO THE REPLY CONCERNING THE PURCHASE OF 4 188.329 METRIC TONS OF MATERIALS FOR RE-USE, THE HIGH AUTHORITY PARTIALLY AMENDED THE OPERATIVE PART OF THESE DECISIONS BY REDUCING THE AMOUNT OF ASSESSABLE SCRAP TO 24 977 METRIC TONS AND THE SUM PAYABLE BY WAY OF EQUALIZATION TO 171 756 956 LIRE .

THESE AMENDMENTS ARE NOT THE RESULT OF THE ADOPTION OF NEW METHODS OF CALCULATIONS AS DISTINCT FROM THOSE USED IN THE CONTESTED DECISIONS, BUT RATHER ARE THE RESULT SOLELY OF THE BELATED PRODUCTION OF FRESH DOCUMENTS WHICH LED THE HIGH AUTHORITY TO RECONSIDER CERTAIN FACTORS IN THE BASIS OF ASSESSMENT TO CONTRIBUTION . AS, THEREFORE, THE ESSENTIAL QUESTIONS OF FACT AND LAW ON WHICH THE CONTESTED DECISIONS ARE BASED HAVE NOT BEEN AMENDED AS A RESULT OF THIS CORRECTION IN THE CALCULATIONS, THESE DECISIONS REMAIN VALID AND A RULING MUST BE GIVEN ON THE OTHER CLAIMS MADE BY THE APPLICANT .

THE FIRST SUBMISSION

THE APPLICANT MAINTAINS THAT THE HIGH AUTHORITY MISUSED ITS POWERS AND VIOLATED THE GENERAL PRINCIPLE PROHIBITING DISCRIMINATION BY APPLYING TO THE APPLICANT A METHOD OF ASSESSMENT BASED ON THE CONSUMPTION OF ELECTRICITY, ALTHOUGH IT HAD APPLIED TO OTHER UNDERTAKINGS, IN PARTICULAR TO THOSE NOT POSSESSING ELECTRIC FURNACES A METHOD BASED ON THE AVERAGE CONSUMPTION OF FERROUS SCRAP PER WORKING DAY . THE APPLICANT COMPLAINS THAT THE HIGH AUTHORITY DID NOT CHOOSE FROM AMONG THE VARIOUS INDUCTIVE METHODS OF CALCULATION THE ONE CAPABLE OF GIVING THE MOST ACCURATE RESULTS BUT THAT WHICH YIELDED THE MOST FAVOURABLE RESULTS FROM THE POINT OF VIEW OF BALANCING THE ACCOUNTS OF THE EQUALIZATION FUND .

THE APPLICANT REQUESTS THAT MEASURES OF INQUIRY BE INSTITUTED AND STATES THAT IT IS READY TO PRODUCE ALL THE NECESSARY DOCUMENTS IN ORDER TO PROVE IN PARTICULAR THAT THE APPLICATION OF THE METHOD OF CALCULATION BASED ON AVERAGE CONSUMPTION PER WORKING DAY WOULD HAVE YIELDED FIGURES FOR SCRAP CONSUMPTION LOWER THAN THOSE CALCULATED BY THE HIGH AUTHORITY AND VERY CLOSE TO THOSE DECLARED BY THE APPLICANT . THE APPLICANT MERELY ALLEGES THAT THE METHOD OF CALCULATION ADOPTED BY THE HIGH AUTHORITY HAS BEEN FOUND BY EXPERIENCE TO BE FAR FROM PERFECT, BY REASON OF THE DIFFERENT SITUATIONS OF UNDERTAKINGS EQUIPPED WITH ELECTRIC FURNACES, BUT BRINGS NO EVIDENCE TO JUSTIFY THIS CLAIM . IN THIS INSTANCE, ADOPTION OF THE METHOD OF CALCULATION BASED ON THE NUMBER OF WORKING DAYS COULD ONLY BE JUSTIFIED IF IT APPEARED FROM CERTAIN OR PROBABLE DATA THAT THEIR USE WOULD HAVE ENABLED THE BASIS OF ASSESSMENT TO CONTRIBUTION TO BE ASSESSED WITH GREATER ACCURACY .

P.96

THE DECLARATIONS AS TO SCRAP CONSUMPTION MADE BY THE APPLICANT ARE INCOMPLETE AND IMPRECISE AND DO NOT RENDER IT POSSIBLE TO CHALLENGE THE DEGREE OF PROBABLE ACCURACY OF THE RESULTS OBTAINED THROUGH THE METHOD OF CALCULATION CHOSEN BY THE HIGH AUTHORITY . IN SUPPORT OF ITS CLAIM, THE APPLICANT MERELY GIVES ONE EXAMPLE OF THE CALCULATIONS INVOLVED IN THE METHOD BASED ON THE NUMBER OF WORKING DAYS AND RESERVES THE RIGHT TO PRODUCE ANY OTHER NECESSARY DOCUMENTS, WITHOUT IN ANY WAY SPECIFYING THE NATURE OF THESE DOCUMENTS . FINALLY, THE APPLICANT REQUESTS MEASURES OF INQUIRY, IN PARTICULAR, AN EXPERT'S REPORT, BUT OFFERS NO EVIDENCE WHATEVER TO JUSTIFY SUCH MEASURES . THIS BEING SO, THE REQUEST FOR MEASURES OF INQUIRY MUST BE REJECTED .

MOREOVER, WITH REFERENCE TO THE COMPLAINT OF DISCRIMINATION, THE APPLICANT HAS PUT FORWARD NO EVIDENCE TO SHOW IN WHAT WAY, AS REGARDS THE APPLICATION OF THE METHOD OF CALCULATION BASED ON AVERAGE SCRAP CONSUMPTION PER WORKING DAY, ITS POSITION WAS COMPARABLE TO THAT OF THE UNDERTAKINGS WHICH BENEFITED FROM THE APPLICATION OF THIS METHOD .

THE COMPLAINTS OF MISUSE OF POWERS AND VIOLATION OF THE PRINCIPLE OF NON-DISCRIMINATION MUST, THEREFORE, BE DISMISSED AS UNFOUNDED .

THE SECOND SUBMISSION

THE APPLICANT MAINTAINS THAT THE DEFENDANT MISUSED ITS POWERS BY MISREPRESENTING THE FACTS AND GAVE INCORRECT REASONS FOR ITS DECISIONS . FIRST, IT CRITICIZES THE CRITERION OF 900 KWH PER METRIC TON ADOPTED BY THE HIGH AUTHORITY, AS WELL AS THAT OF 1 000 KWH FOR THE COMMISSIONING PERIOD OF THREE MONTHS, CONTENDING THAT THESE FIGURES AND THIS PERIOD WERE IMPROPABLE FOR A FURNACE OF 4 TO 5 METRIC TONS' CAPACITY . IT PUTS FORWARD ONLY ONE SPECIFIC ARGUMENT - NAMELY THAT THE DEFENDANT ADOPTED THE CRITERION OF 950 KWH FOR AN ASSESSMENT CARRIED OUT IN 1961 THROUGH THE SOCIETE FIDUCIAIRE SUISSE - AND OTHERWISE HAS MERELY REQUESTED CERTAIN CHECKS TO BE CARRIED OUT ON THE SPOT . SUCH AN ARGUMENT IS INSUFFICIENT TO QUESTION THE CRITERION ACTUALLY EMPLOYED, AND WHICH WAS ADOPTED IN 1962 BY A COMMITTEE OF EXPERTS, FOR FURNACES OF THE SAME CAPACITY AS THAT OF THE APPLICANT . SIMILARLY, CRITICISMS OF THE CRITERION OF 1 000 KWH AND OF THE DURATION OF THE COMMISSIONING PERIOD ARE BASED ON ALLEGATIONS TOO VAGUE TO BE ACCEPTED .

THE APPLICANT ALSO MAINTAINS THAT THE PERCENTAGES ACCEPTED BY THE HIGH AUTHORITY IN CALCULATING ARISINGS FROM ROLLING AND RECOVERIES OF SCRAP ARE NOT PLAUSIBLE . IN SUPPORT OF THIS CONTENTION, IT RELIES ON A PUBLICATION OF THE TERNI COMPANY WHICH SPECIFIES HIGHER PERCENTAGES . IN THE ABSENCE OF CONCRETE FACTORS PECULIAR TO THE APPLICANT UNDERTAKING ITSELF, SUCH AN ARGUMENT CANNOT INVALIDATE THE ASSESSMENTS MADE BY THE TECHNICAL DEPARTMENTS OF THE HIGH AUTHORITY .

THE OTHER COMPLAINTS MADE BY THE APPLICANT ARE TOO IMPRECISE TO JUSTIFY MEASURES OF INQUIRY .

FOR ALL THESE REASONS, THEREFORE, THIS SUBMISSION MUST BE DISMISSED .

THE CLAIM FOR DAMAGES

THE APPLICANT CLAIMS THAT THE HIGH AUTHORITY SHOULD BE ORDERED TO PAY SUCH DAMAGES AS THE COURT SHALL SEE FIT .

THE APPLICANT HAS NOT BROUGHT ANY EVIDENCE AS TO THE EXISTENCE OR THE AMOUNT OF THE DAMAGE ALLEGED .

THESE SUBMISSIONS MUST THEREFORE BE DISMISSED .

UNDER THE FIRST PARAGRAPH OF ARTICLE 69(3 ) OF THE RULES OF PROCEDURE, WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS .

AS IN THE COURSE OF PROCEEDINGS THE DEFENDANT AMENDED THE CONTESTED DECISIONS ON A POINT WHICH MIGHT HAVE JUSTIFIED THEIR ANNULMENT, IT IS APPROPRIATE TO ORDER THAT THE PARTIES SHALL BEAR THEIR OWN COSTS .

THE COURT

HEREBY :

1 . DISMISSES APPLICATION 51/65 AS UNFOUNDED;

2 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .