61965J0049

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IN CASE 49/65

FERRIERE E ACCIAIERIE NAPOLETANE SPA, A LIMITED LIABILITY COMPANY, HAVING ITS REGISTERED OFFICE AT NAPLES, REPRESENTED BY GIOVANNI SCOTTO, CHAIRMAN OF ITS BOARD OF DIRECTORS, ASSISTED BY PIETRO GASPARRI, PROFESSOR AT THE UNIVERSITY OF PERUGIA AND CARLO SELVAGGI, BOTH WITH A RIGHT OF AUDIENCE BEFORE THE MAGISTRATURE SUPERIORI, 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 GIUSEPPE GUARINO, PROFESSOR AT THE UNIVERSITY OF ROME, AND ADVOCATE OF THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE INDIVIDUAL DECISION OF 19 MAY 1965, CONCERNING THE APPLICANT'S PECUNIARY OBLIGATIONS WITHIN THE FRAMEWORK OF THE SCHEME FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH,

P.80

ADMISSIBILITY

THE ADMISSIBILITY OF THE APPLICATION IS NOT DISPUTED BY THE DEFENDANT AND THERE ARE NO GROUNDS FOR THE COURT TO RAISE THE MATTER OF ITS OWN MOTION .

THE APPLICATION IS THEREFORE ADMISSIBLE .

SUBSTANCE

THE CONTESTED DECISION FOUND THAT THE APPLICANT HAD NOT PROVED THAT THE FERROUS SCRAP IN DISPUTE WAS ALLOY SCRAP, AND THAT ITS DECLARATIONS RELATING TO THE PURCHASE OF THAT FERROUS SCRAP WERE NOT CONFIRMED BY SUFFICIENT SUPPORTING DOCUMENTS .

THE APPLICANT CLAIMS IN THE FIRST PLACE THAT SUCH A REQUIREMENT INFRINGES THE GENERAL RULES OF THE TREATY WITH REGARD TO FINANCIAL ARRANGEMENTS AND THE PRINCIPLES OF LAW IN FORCE IN THE MEMBER STATES WITH REGARD TO THE BURDEN OF PROOF; SINCE THE GENERAL DECISIONS RELATING TO THE SCHEME FOR THE EQUALIZATION OF FERROUS SCRAP IMPOSED ON THE UNDERTAKINGS THE SOLE OBLIGATION OF DECLARING THEIR PURCHASES OF FERROUS SCRAP, THESE DECLARATIONS MUST BE HELD TO BE TRUE UNTIL THE CONTRARY IS PROVEN . MOREOVER THE HIGH AUTHORITY CANNOT AFTER SEVERAL YEARS REQUIRE THE PRODUCTION OF EVIDENCE WHICH IT COULD HAVE REQUIRED WHEN THE DISPUTED FACTS WERE NOTIFIED . IN THE ABSENCE OF SUCH A REQUEST, THE UNDERTAKING WAS ENTITLED TO CONSIDER THAT ITS DECLARATIONS COMPLIED WITH THE REQUIREMENTS AT THE TIME .

IN THESE CIRCUMSTANCES, THE HIGH AUTHORITY'S REQUIREMENT IS MOREOVER VITIATED BY MISUSE OF POWERS, SINCE IT IMPOSED A HIGHER CONTRIBUTION ON THE APPLICANT SOLELY BECAUSE THE LATTER DID NOT APPEND TO ITS DECLARATIONS DOCUMENTS WHICH IT WAS NOT REQUIRED TO PRODUCE .

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PURSUANT TO THE GENERAL DECISIONS ESTABLISHING THE EQUALIZATION SCHEME THE ' FERROUS SCRAP FROM ALLOY STEELS ' IS EXEMPT FROM CONTRIBUTIONS, SO LONG AS IT CONTAINS A SPECIFIED PERCENTAGE OF ALLOYING ELEMENTS .

IT IS CLEAR FROM QUESTIONNAIRE 2/50 OF THE ECSC, USED SINCE DECEMBER 1954 BY THE UNDERTAKINGS, THAT SINCE THE ESTABLISHMENT OF THE EQUALIZATION SCHEME THEY HAD BEEN IN A POSITION TO KNOW THESE PERCENTAGES .

THE APPLICANT SUPPLIED THE HIGH AUTHORITY WITH A CERTAIN AMOUNT OF INFORMATION WHICH, IN ITS OPINION WAS SUCH AS TO PROVE THAT THE FERROUS SCRAP IN DISPUTE WAS ALLOY SCRAP .

THAT INFORMATION WAS CONSIDERED INSUFFICIENT BY THE CONTESTED DECISION, ON THE GROUND THAT IT DID NOT FULFIL THE THREE CONDITIONS SET OUT IN RESOLUTION NO 17 OF THE COUNCIL OF THE IMPORTED FERROUS SCRAP EQUALIZATION FUND, WHICH ENTERED INTO FORCE ON 1 MAY 1958 .

UNDER THAT RESOLUTION ONLY FERROUS SCRAP PURCHASED BY UNDERTAKINGS PRODUCING ALLOY STEELS, CONTAINING A SPECIFIED PERCENTAGE OF ALLOYING ELEMENTS WITH THE PRICE OF THE ALLOYING ELEMENTS SEPARATELY SHOWN IN THE PURCHASE INVOICES AND WITH AN ENTRY FOR THEIR AVERAGE CONTENT IS DEEMED TO BE ALLOY SCRAP .

THE APPLICANT MAINTAINS THAT THE CRITERIA DEDUCED FROM THE NATURE OF THE STEELS PRODUCED AND FROM THE LEVEL OF THE PRICES OF THE ALLOY SCRAP CANNOT BE UPHELD IN THIS INSTANCE .

IN THIS CONNEXION IT CLAIMS THAT LARGE QUANTITIES OF ALLOY SCRAP WERE AT THE TIME BEING OFFERED ON THE MARKET IN NAPLES, AT PRICES IDENTICAL WITH THOSE OF ORDINARY SCRAP .

SINCE THE HIGHER PRODUCTION COST WHICH THE USE OF ALLOY SCRAP ENTAILS WAS OFFSET BY ITS EXEMPTION FROM THE EQUALIZATION CHARGE, THE PURCHASE OF ALLOY SCRAP AT THE SAME PRICE WOULD HAVE BEEN AS ADVANTAGEOUS AS THAT OF ORDINARY SCRAP .

IN SUPPORT OF THAT CLAIM THE APPLICANT PRODUCES A CERTIFICATE FROM THE NAPLES CHAMBER OF COMMERCE SHOWING THAT AT THE TIME LARGE QUANTITIES OF ALLOY SCRAP WERE ON OFFER ON THE MARKET THERE AT THE SAME PRICE AS ORDINARY SCRAP .

THE DEFENDANT HAS DISPUTED NEITHER THESE CLAIMS NOR THE VALIDITY OF THE SAID DOCUMENT .

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MOREOVER, IT HAS RECOGNIZED AS ALLOY SCRAP 864 METRIC TONS OF FERROUS SCRAP REGARDING WHICH THE APPLICANT HAS SHOWN THE CONTENT IN ALLOYING ELEMENTS, BUT WHICH DO NOT COMPLY EXACTLY WITH THE AFOREMENTIONED CRITERIA .

IN THIS CASE THE SOLE RELIABLE CRITERION FOR DECIDING THE ACCURACY OF THE APPLICANT'S DECLARATIONS REGARDING THE FERROUS SCRAP IN DISPUTE IS THUS THAT OF THE INDICATION OF THE AVERAGE CONTENT IN ALLOYING METALS .

IN THESE CIRCUMSTACES, IT MUST BE CONSIDERED WHETHER IN THIS CASE THE HIGH AUTHORITY WAS JUSTIFIED IN REQUIRING ABSOLUTE COMPLIANCE WITH THAT CRITERION, AS IT IS SET FORTH IN THE ABOVE - MENTIONED RESOLUTION NO 17 .

AS OPPOSED TO THE FRENCH TEXT, THE ITALIAN TEXT OF THE SAID RESOLUTION DOES NOT MENTION THE OBLIGATION ON THE UNDERTAKINGS TO INDICATE THE AVERAGE CONTENT IN ALLOYING METALS ON THE INVOICES RELATING TO PURCHASES OF ALLOY SCRAP .

IT IS AGREED THAT ONLY THE ITALIAN TEXT WAS NOTIFIED TO THE ITALIAN UNDERTAKINGS, WHICH INCLUDE THE APPLICANT . THE RESOLUTION PROVIDES MOREOVER THAT DECLARATIONS MADE BEFORE ITS ENTRY INTO FORCE WILL BE THE SUBJECT OF INVESTIGATION CASE BY CASE .

THE ACTUAL PROVISIONS OF THE ABOVEMENTIONED RESOLUTION ONLY RENDER IT BINDING ON THE UNDERTAKINGS CONCERNED FROM 1 MAY 1958 .

IT IS NOT THEREFORE POSSIBLE TO INSIST ON OBSERVANCE OF THE RESOLUTION WITH REGARD TO FERROUS SCRAP PURCHASED AND USED BEFORE THAT DATE .

THE APPLICANT'S DECLARATIONS REGARDING THE PURCHASE OF THE FERROUS SCRAP IN DISPUTE GO BACK TO A PERIOD BEFORE 1 MAY 1958 . THE HIGH AUTHORITY OUGHT THEREFORE TO HAVE CHECKED WHETHER THESE DECLARATIONS WERE WELL FOUNDED ON THE BASIS OF A VARIETY OF FACTORS PERTAINING TO THE CASE IN QUESTION, WITHOUT INSISTING ON A STRICT OBSERVANCE OF THE FORMALITIES DESCRIBED IN THE SAID RESOLUTION, AND ESPECIALLY ON THE INDICATION OF THE AVERAGE CONTENT IN ALLOYING METALS .

CONSEQUENTLY, SINCE THE CONTESTED DECISION REFUSED TO CONSIDER THE FERROUS SCRAP IN DISPUTE AS ALLOY SCRAP EXEMPT FROM EQUALIZATION, IT IS NOT JUSTIFIED AND MUST BE ANNULLED .

THE APPLICANT MOREOVER CLAIMS THAT THE HIGH AUTHORITY SHOULD BE ORDERED TO PAY SUCH COMPENSATION AS THE COURT CONSIDERS EQUITABLE .

THE APPLICANT SUPPLIES NO INFORMATION WITH REGARD TO THE EXISTENCE OR THE AMOUNT OF THE DAMAGE ALLEGED .

THIS PART OF THE CLAIM MUST THEREFORE BE REJECTED .

UNDER THE FIRST PARAGRAPH OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY'S PLEADING . THE DEFENDANT MUST THEREFORE BE ORDERED TO PAY THE COSTS OF THE PRESENT ACTION .

THE COURT

HEREBY :

1 . ANNULS THE DECISION OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY OF 19 MAY 1965 CONCERNING THE APPLICANT'S FINANCIAL OBLIGATIONS WITHIN THE FRAMEWORK OF THE SCHEME FOR THE EQUALIZATION OF IMPORTED FERROUS SCRAP AND SCRAP TREATED AS SUCH;

2 . ORDERS THE DEFENDANT TO PAY THE COSTS .