61967J0003

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1 . MEASURES ADOPTED BY AN INSTITUTION - DECISIONS OF THE HIGH AUTHORITY - STATEMENT OF REASONS - PREPATORY INQUIRIES - IRRELEVANT OBJECTIONS - UNCERTAINTIES DUE TO APPLICANT'S OWN CONDUCT

( ECSC TREATY, ARTICLE 15 )

2 . ASSESSMENT TO CONTRIBUTION - ESTIMATED ASSESSMENT - POWERS OF THE HIGH AUTHORITY

( DECISION NO 13/58 OF THE HIGH AUTHORITY OF 24 JULY 1958, ARTICLE 2; OFFICIAL JOURNAL 1958, P.269

DECISION NO 16/58 OF THE HIGH AUTHORITY OF 24 JULY 1958, ARTICLE 15; OFFICIAL JOURNAL 1958, P . 275 )

1 . CF . PARAGRAPH 1, SUMMARY CASE 36/64, ( 1965 ) ECR 329 .

CF . PARAGRAPH 2, SUMMARY CASE 2/56, ( 1957 AND 1958 ) ECR 3 .

THE HIGH AUTHORITY IS UNDER NO OBLIGATION TO COMMUNICATE ALL THE DETAILS OF ITS PRELIMINARY INVESTIGATIONS, OR TO MAKE KNOWN ITS VIEWS ON WHOLLY IRRELEVANT OBJECTIONS .

A PARTY CANNOT PLEAD TO ITS ADVANTAGE ANY UNCERTAINTIES IN THE HIGH AUTHORITY'S ATTITUDE CAUSED BY THAT PARTY'S OWN CONDUCT .

2 . ARTICLE 12 OF DECISION NO 13/58 OF THE HIGH AUTHORITY AND ARTICLE 15 OF DECISION NO 16/58 OF THE HIGH AUTHORITY ARE DESIGNED TO ENABLE THE HIGH AUTHORITY, EITHER IN THE ABSENCE OF ANY DECLARATION OR WHERE A DECLARATION IS INCOMPLETE OR INSUFFICIENTLY PROVEN, TO MAKE GOOD BY ANY SUITABLE MEANS THE LACK OF A DECLARATION OR TO REMEDY THE OMISSIONS OR INACCURACIES IN DECLARATIONS SUPPLIED BY UNDERTAKINGS .

THE POWERS CONFERRED ON THE HIGH AUTHORITY TO CORRECT DECLARATIONS ARE NOT DISTINCT FROM THOSE WHICH IT MAY EXERCISE IN THE TOTAL ABSENCE OF A DECLARATION .

IN CASE 3/67

FONDERIE ACCIAIERIE GIOVANNI MANDELLI, A PARTNERSHIP HAVING ITS OFFICE IN TURIN, REPRESENTED BY ITS MANAGING PARTNER, WALTER MANDELLI, ASSISTED BY PROFESSOR MARIO GUILIANO OF THE UNIVERSITY OF MILAN, ADVOCATE OF THE MILAN BAR AND AT THE CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, ADVOCAT-AVOUE, 6 RUE WILLY-GEORGEN,

APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, TAKING THE PLACE OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY UNDER ARTICLE 9 OF THE TREATY OF 8 APRIL 1965 ESTABLISHING A SINGLE COUNCIL AND A SINGLE COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ITALO TELCHINI, ACTING AS AGENT, ASSISTED BY PROFESSOR GIUSEPPE SPERDUTI OF THE UNIVERSITY OF MILAN AND THE ROME BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2 PLACE DE METZ,

DEFENDANT,

APPLICATION FOR THE ANNULMENT OF TWO INDIVIDUAL DECISIONS OF THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY OF 7 DECEMBER 1966, THE FIRST FIXING THE AMOUNT OF BOUGHT SCRAP CONSUMED BY THE APPLICANT UNDERTAKING FOR THE PERIOD FROM 1 FEBRUARY 1957 TO 30 NOVEMBER 1958 AND THE SECOND DEMANDING PAYMENT FROM IT OF THE SUM OF LIT 137 910 340 BY WAY OF CONTRIBUTION TO THE EQUALIZATION SCHEME,

P . 30

THE APPLICATION CONCERNS TWO DECISIONS OF THE OF THE HIGH AUTHORITY OF 7 DECEMBER 1966, THE FIRST ESTABLISHING THE APPLICANT'S CONSUMPTION OF ASSESSABLE SCRAP DURING THE PERIOD FROM 1 FEBRUARY 1957 TO 30 NOVEMBER 1958, AND THE SECOND FIXING CONTRIBUTION DUE FROM THE APPLICANT TO THE EQUALIZATION SCHEME ON THE BASIS OF THAT CONSUMPTION . IN THE CIRCUMSTANCES THE COURT NEED ONLY EXAMINE THE FIRST OF THESE TWO DECISIONS, CONCERNING THE CONSUMPTION OF ASSESSABLE SCRAP .

THE APPLICANT OBJECTS TO THIS DECISION ON THE GROUND THAT IT INFRINGES, FIRST, AN ESSENTIAL PROCEDURAL REQUIREMENT IN THAT THE STATEMENT OF REASONS FOR IT WAS EITHER OMITTED OR INADEQUATE, AND SECONDLY, THE TREATY OR A RULE OF LAW RELATING TO ITS APPLICATION, AS REGARDS THE METHOD OF ASSESSMENT USED BY THE HIGH AUTHORITY .

1 . THE STATEMENT OF REASONS FOR THE DECISION FIXING THE TONNAGE OF ASSESSABLE SCRAP

THE APPLICANT MAINTAINS THAT THE REASONS GIVEN FOR THE CONTESTED DECISION ARE INADEQUATE, INCONSISTENT AND IRRELEVANT . IN PARTICULAR, IT POINTS OUT THE LARGE DISCREPANCY BETWEEN CERTAIN PRELIMINARY ASSESSMENTS OF THE CASE AND THE FINAL DECISION . IT ALSO ACCUSES THE HIGH AUTHORITY OF FAILING TO NOTIFY IT OF THE RESULTS OF CERTAIN CHECKS WHICH WERE CARRIED OUT, AND OF NOT HAVING EXPRESSLY MADE KNOWN ITS ATTITUDE TO ALL THE OBJECTIONS RAISED BY THE APPLICANT WHILE THE CHECKS WERE BEING CARRIED OUT . THE APPLICANT CLAIMS THAT THIS CONSTITUTES DISCRIMINATORY TREATMENT, IN VIEW OF THE HIGH AUTHORITY'S PRACTICE IN RELATION TO OTHER UNDERTAKINGS .

P . 31

( A ) THE STATEMENT OF REASONS FOR A DECISION IS SUFFICIENT WHERE ON THE ONE HAND IT ENABLES THOSE CONCERNED TO KNOW THE ESSENTIAL CONSIDERATIONS OF FACT AND OF LAW UPON WHICH THE HIGH AUTHORITY RELIES, AND ON THE OTHER HAND ENABLES THE COURT TO EXERCISE THE JUDICIAL REVIEW ENTRUSTED TO IT BY THE TREATY . THE HIGH AUTHORITY HAS GIVEN A CLEAR AND CONSISTENT STATEMENT OF THE REASONS FOR ITS DECISIONS AS REGARDS THE RECOURSE TO AN ESTIMATED ASSESSMENT, THE PROCEDURE FOLLOWED AND THE FACTS TAKEN INTO CONSIDERATION IN APPLYING THIS PROCEDURE . THESE ELEMENTS ARE SUFFICIENT TO ENABLE THE APPLICANT TO UNDERSTAND THE SCOPE OF THE DECISION CONCERNING IT AND TO DEFEND ITS INTERESTS, AS WELL AS TO ENABLE THE COURT TO EXERCISE ITS REVIEW .

( B ) THE DISCREPANCY FOUND BETWEEN THE PROVISIONAL INFORMATION COMMUNICATED TO THE APPLICANT DURING THE PRELIMINARY PROCEDURE AND THE DECISION OF 7 DECEMBER 1966 DOES NOT AFFECT THE VALIDITY OF THE DECISION, WHICH IS JUSTIFIED IN ITSELF . THE APPLICANT CANNOT PLEAD TO ITS ADVANTAGE DISCREPANCIES WHICH ARE DUE MAINLY TO THE DEFICIENCIES AND UNCERTAINTIES PRESENT IN THE INFORMATION WHICH IT SUPPLIED .

THE HIGH AUTHORITY WAS UNDER NO OBLIGATION TO COMMUNICATE TO THE APPLICANT ALL THE DETAILS OF ITS PRELIMINARY INVESTIGATIONS; ITS ONLY DUTY, UNDER THE TREATY, IS TO PROVIDE A FULL STATEMENT OF THE REASONS FOR ITS DECISION .

AS FOR THE OBJECTIONS TO THE RESULTS OF THE CHECKS CARRIED OUT BY THE HIGH AUTHORITY, THE REASONS GIVEN IN THE DISPUTED DECISION ARE SUFFICIENTLY EXPLICIT TO ENABLE THE APPLICANT TO KNOW THE EXTENT TO WHICH ITS OBSERVATIONS WERE TAKEN INTO ACCOUNT . THE HIGH AUTHORITY, FOR ITS PART, WAS NOT BOUND TO MAKE KNOWN ITS VIEWS ON WHOLLY IRRELEVANT OBJECTIONS CONCERNING THE METHOD OF ASSESSMENT USED . THIS IS THE CASE IN PARTICULAR WITH REGARD TO THE OBJECTIONS BASED ON THE OPERATION OF THE CASTINGS FOUNDRY .

THE CONDUCT OF THE HIGH AUTHORITY WAS JUSTIFIED BY THE CIRCUMSTANCES CREATED BY THE APPLICANT ITSELF, FOR ANY OTHER TREATMENT MIGHT HAVE GIVEN RISE TO DISCRIMINATION AGAINST THE UNDERTAKINGS WHICH SUPPLIED ACCURATE DECLARATIONS OF THEIR SCRAP CONSUMPTION, THUS ACCEPTING THE FULL BURDEN OF THEIR CONTRIBUTIONS TO THE EQUALIZATION SCHEME ESTABLISHED BY THE HIGH AUTHORITY .

ACCORDINGLY THE SUBMISSION OF INSUFFICIENT, INCONSISTENT AND IRRELEVANT REASONS CANNOT BE UPHELD .

2 . THE METHOD OF ASSESSMENT USED BY THE HIGH AUTHORITY

( A ) THE APPLICANT SUBMITS THAT, ACCORDING TO GENERAL DECISIONS NOS 13/58 AND 16/58, RECOURSE TO THE PROCEDURE OF ESTIMATED ASSESSMENTS FOR THE PURPOSE OF DETERMINING THE CONSUMPTION OF SCRAP SUBJECT TO CONTRIBUTION IS ONLY PERMITTED WHERE NO DECLARATIONS HAVE BEEN SUBMITTED BY THE UNDERTAKING, SO THAT THE HIGH AUTHORITY FAILED TO TAKE INTO ACCOUNT CERTAIN CRITERIA OF ASSESSMENT, RELATING IN PARTICULAR TO THE COMPANY'S CASTING FOUNDRY, THEREBY DISCRIMINATING AGAINST THE APPLICANT .

P . 32

ACCORDING TO ARTICLE 2 OF DECISION NO 13/58 OF 24 JULY 1958 AND ARTICLE 15 OF DECISION NO 16/58 OF THE SAME DATE, AS EXTENDED BY DECISION NO 18/58 OF 15 OCTOBER 1958, THE HIGH AUTHORITY IS ENTITLED, SHOULD UNDERTAKINGS FAIL TO DECLARE THE FACTORS FOR CALCULATING THE EQUALIZATION CONTRIBUTIONS, TO ESTIMATE THESE ON ITS OWN AUTHORITY . THE SAME PROVISIONS ALLOW THE HIGH AUTHORITY TO CORRECT ON ITS OWN AUTHORITY DECLARATIONS IN SUPPORT OF WHICH NO VALID PROOF CAN BE SUPPLIED .

THESE PROVISIONS ARE DESIGNED TO ENABLE THE HIGH AUTHORITY, EITHER IN THE ABSENCE OF ANY DECLARATION OR WHERE A DECLARATION IS INCOMPLETE OR INSUFFICIENTLY PROVEN TO MAKE GOOD BY ANY SUITABLE MEANS THE LACK OF A DECLARATION OR TO REMEDY THE OMISSIONS OR INACCURACIES IN DECLARATIONS SUPPLIED BY UNDERTAKINGS . THE POWERS CONFERRED ON THE HIGH AUTHORITY TO CORRECT DECLARATIONS ARE NOT DISTINCT FROM THOSE WHICH IT MAY EXERCISE IN THE TOTAL ABSENCE OF A DECLARATION .

IN THE COURSE OF THE SUCCESSIVE CHECKS WHICH THE HIGH AUTHORITY CAUSED TO BE CARRIED OUT IT WAS ESTABLISHED THAT THE APPLICANT WAS UNABLE TO PRODUCE THE ACCOUNTING AND OTHER DOCUMENTS ON THE BASIS OF WHICH IT WOULD NORMALLY HAVE BEEN POSSIBLE TO DETERMINE OR TO VERIFY THE CONSUMPTION OF ASSESSABLE SCRAP . THE HIGH AUTHORITY WAS THEREFORE ENTITLED TO HAVE RECOURSE TO THE PROCEDURE OF MAKING AN ESTIMATED ASSESSMENT .

THE METHOD OF ASSESSMENT USED IN THIS CASE - BASED ON AN ESTIMATE OF THE CAPACITY AND OPERATING TIMES OF THE FURNACES FOR THE PURPOSE OF CALCULATING THE UNDERTAKINGS AGGREGATE PRODUCTION OF STEEL AND OF THUS ESTABLISHING, AFTER SUBTRACTING THE CONSUMPTION OF THE CASTING FOUNDRY, THE PRODUCTION OF STEEL FOR INGOTS - WAS WELL ADAPTED TO GIVE A REASONABLE ASSESSMENT OF THE CONSUMPTION OF SCRAP SUBJECT TO CONTRIBUTION . MOREOVER, THE RESULT REACHED BY THE METHOD USED BY THE HIGH AUTHORITY COINCIDES LARGELY WITH THE INFORMATION SUPPLIED BY THE APPLICANT IN THE PRELIMINARY STAGES OF THE PROCEDURE . THE POSSIBILITY OF A DISCREPANCY BETWEEN THE RESULT ARRIVED AT BY SUCH A METHOD AND THE ACTUAL CONSUMPTION IS A RISK WHICH MUST BE BORNE BY THE APPLICANT, WHOSE CONDUCT IT WAS THAT INDUCED THE HIGH AUTHORITY TO HAVE RECOURSE TO THE ASSESSMENT PROCEDURE .

AS REGARDS IN PARTICULAR THE COMPLAINT OF DISCRIMINATION, THE HIGH AUTHORITY ONLY NEEDED TO ASSESS THE PRODUCTION OF THE FOUNDRY TO THE EXTENT REQUIRED IN ORDER TO ESTABLISH THE STEEL TONNAGES CORRESPONDING TO THE CONSUMPTION OF SCRAP EXEMPT FROM CONTRIBUTION . SINCE THESE TONNAGES WERE DETERMINED ON THE BASIS OF THE DECLARATIONS SUBMITTED BY THE UNDERTAKING TO THE HIGH AUTHORITY, THERE WAS NO NEED TO MAKE ANY FURTHER ASSESSMENT OF THE FOUNDRY'S OPERATION . THE COMPLAINT OF DISCRIMINATION IS THEREFORE WHOLLY UNJUSTIFIED .

P . 33

( B ) ALL THE FUNDAMENTAL DATA ON WHICH, AS A RESULT OF THE PROCEDURE ADOPTED FOR MAKING AN ESTIMATED ASSESSMENT, THE HIGH AUTHORITY'S DECISION IS BASED, ARISE FROM THE DATA SUPPLIED BY THE APPLICANT WHILE THE INSPECTIONS WERE BEING CARRIED OUT, AS IS EXPRESSLY STATED IN THE STATEMENT OF REASONS ITSELF AND, MORE PARTICULARLY, FROM ITS OBSERVATIONS ON THE INVESTIGATION CONDUCTED ON BEHALF OF THE HIGH AUTHORITY BY THE ENGINEER MR STUDER . THESE PARTICULARS DISCLOSED THE INACCURACY OF THE FIRST DECLARATIONS MADE BY THE UNDERTAKING WITH REGARD TO SCRAP BOUGHT . IN MAKING USE OF THE PARTICULARS THUS SUPPLIED BY THE APPLICANT, THE HIGH AUTHORITY ALSO TOOK INTO ACCOUNT VARIOUS FACTORS CAPABLE OF IMPROVING THE UNDERTAKING'S LIABILITY TO PAY CONTRIBUTIONS, EVEN TO THE EXTENT OF INCLUDING TONNAGES OF EXEMPT SCRAP CORRESPONDING TO SALES OF CASTINGS FOR WHICH NO INVOICES WERE ISSUED .

THE APPLICANT HAS BROUGHT NO EVIDENCE CAPABLE OF INVALIDATING THE INFORMATION SUPPLIED BY ITSELF TO THE HIGH AUTHORITY WHILE THE CHECKS WERE BEING CARRIED OUT, OR OF CASTING DOUBT ON THE APPROPRIATENESS OF THE TECHNICAL NORMS ADOPTED BY THE HIGH AUTHORITY . IN PARTICULAR, THE EXPLANATIONS WHICH IT HAS GIVEN CONCERNING THE RUNNING OF ITS CASTINGS FOUNDRY WERE NOT CAPABLE OF CALLING INTO QUESTION AGAIN THE DECLARATIONS OF THE PRODUCTION OF CRUDE STEEL FOR CASTINGS PREVIOUSLY SUBMITTED BY IT TO THE HIGH AUTHORITY . THE ONLY EXCEPTION TO THIS IS THE DATA SUPPLIED SUBSEQUENTLY CONCERNING SALES OF STEEL CASTINGS FOR WHICH NO INVOICES WERE ISSUED .

THE CRITICISMS LEVELLED AT THE METHOD OF ESTIMATED ASSESSMENT ADOPTED IN THIS CASE BY THE HIGH AUTHORITY THEREFORE CANNOT BE ACCEPTED .

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

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION; AND 2 . ORDERS THE APPLICANT TO BEAR THE COSTS .