61959J0033

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1 . PROCEDURE - APPLICATION - CONCLUSIONS - AMENDMENT - REQUIREMENTS OF FORM

2 . WRONGFUL ACT OR OMISSION - CERTIFICATES DRAWN UP BY A NATIONAL AUTHORITY RECOGNIZED AS SUPPORTING DOCUMENTS - WRONGFUL ACT COMMITTED BY A NATIONAL OFFICIAL IN DRAWING UP SUCH CERTIFICATES - ABSENCE OF CHECKING BY THE COMMUNITY

1 . AN AMENDMENT OF THE CONCLUSIONS, EVEN IF ADMISSIBLE, IS SUBJECT TO THE STRICTEST REQUIREMENTS AS REGARDS ITS PRECISION AND CONTENT AND MUST BE DONE IN A FORMAL MANNER .

2 . SEE SUMMARY OF THE JUDGMENT IN CASE 23/59, REC . 1959, P . 245 .

( A ) IF, AT THE TIME WHEN CERTIFICATES OF ORIGIN, RECOGNIZED BY THE HIGH AUTHORITY AS SUPPORTING DOCUMENTS, ARE DRAWN UP, A WRONGFUL ACT IS COMMITTED BY A NATIONAL OFFICIAL WHO ACTS NEITHER IN ACCORDANCE WITH ORDERS GIVEN BY THE HIGH AUTHORITY NOR ON BEHALF OF OR IN THE NAME OF THAT INSTITUTION BUT IN THE PERFORMANCE OF PURELY NATIONAL DUTIES, THE WRONGFUL ACT CANNOT BE IMPUTED TO THE HIGH AUTHORITY AND DOES NOT CONSTITUTE A PERSONAL WRONG FOR WHICH THE LATTER IS LIABLE .

( B ) IF, INSTEAD OF MAKING ITSELF RESPONSIBLE FOR DRAWING UP THE CERTIFICATES, THE HIGH AUTHORITY LEAVES THIS TASK TO THE NATIONAL AUTHORITY, THERE IS NO DEFECTIVE ORGANIZATION AND, CONSEQUENTLY, NO WRONGFUL ACT OR OMISSION IN THE PERFORMANCE OF ITS FUNCTIONS WITHIN THE MEANING OF ARTICLE 40 OF THE ECSC TREATY WHEN THE TASK IS ENTRUSTED TO A HIGHER AUTHORITY, SUCH AS A MINISTRY, WHICH APPEARS TO BE THE MOST APPROPRIATE AND THE MOST LIKELY TO AFFORD THE BEST GUARANTEE AGAINST ANY ABUSE AND WHEN THE NATIONAL REGULATIONS PROVIDE FOR AN EXTREMELY DETAILED PROCEDURE BEFORE THE SAID CERTIFICATES ARE DRAWN UP .

( C ) NOR, IN THESE CIRCUMSTANCES, DOES THE FACT THAT THE HIGH AUTHORITY REFRAINS FROM CHECKING THE AUTHENTICITY OF THE CERTIFICATES CONSTITUTE A WRONGFUL ACT OR OMISSION SO LONG AS THERE WAS NO INDICATION TO SUGGEST THE EXISTENCE OF AN ABUSE . ( ECSC TREATY, ARTICLE 40 .)

*/ EN.659J0023 /*.

IN CASE 33/59

COMPAGNIE DES HAUTS FOURNEAUX DE CHASSE, A LIMITED COMPANY GOVERNED BY FRENCH LAW, HAVING ITS REGISTERED OFFICE AT CHASSE-SUR - RHONE ( ISERE ), REPRESENTED BY THE CHAIRMAN OF ITS BOARD OF DIRECTORS, PIERRE CHOLAT, ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND OF THE CORTE DI CASSAZIONE IN ROME, AND BY NOEL CHAPUIS, ADVOCATE OF THE VIENNE ( ISERE ) BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 6 RUE ALPHONSE-MUNCHEN, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISERS, PROFESSOR GIULIO PASETTI, ACTING AS AGENT, AND WALTER BIGIAVI, PROFESSOR AT THE UNIVERSITY OF BOLOGNA, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR PECUNIARY REPARATION FOR AN INJURY ALLEGEDLY CAUSED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY;

P . 387

I - ON THE SCOPE OF THE CONCLUSIONS

THE QUESTION MUST FIRST BE SETTLED WHETHER THE CONCLUSIONS IN THE PRESENT APPLICATION REFER TO ALL THE ACTS OF FRAUD AND OTHER IRREGULARITIES COMMITTED IN CONNEXION WITH THE EQUALIZATION OF FERROUS SCRAP FROM 1954 TO 1957, OR ONLY TO THE ACTS OF FRAUD RELATING TO THE FALSE CERTIFICATES ISSUED BY MR VAN DER GRIFT, HEAD OF THE IRON AND STEEL DEPARTMENT OF THE MINISTRY FOR ECONOMIC AFFAIRS OF THE NETHERLANDS ( WHICH ACTS OF FRAUD ARE HEREINAFTER REFERRED TO AS 'THE VAN DER GRIFT AFFAIR ').

IN ITS APPLICATION THE APPLICANT CLAIMS IN PARTICULAR THAT THE COURT SHOULD :

'DECLARE THAT THE HIGH AUTHORITY OF THE ECSC IS LIABLE FOR HAVING FAILED TO AVOID THE SITUATION WHEREBY, DURING THE PERIOD FROM 1954 TO 1957, CONSIDERABLE QUANTITIES OF FERROUS SCRAP WERE SOLD, SUPPORTED BY FRAUDULENT CERTIFICATES ISSUED BY THE HEAD OF THE IRON AND STEEL DEPARTMENT OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, TO THE EFFECT THAT THESE QUANTITIES ORIGINATED FROM SHIP-BREAKERS' YARDS '.

THESE CONCLUSIONS DO NOT CONTAIN THE SLIGHTEST ALLUSION TO FACTS OTHER THAN THOSE RELATING TO THE VAN DER GRIFT AFFAIR .

P . 388

AT THE HEARING COUNSEL FOR THE APPLICANTS, WHILST ASSERTING THAT THE CONCLUSIONS OF THE PARTIES HAD ALWAYS RELATED TO ALL ACTS OF FRAUD, REFRAINED FROM FORMALLY AMENDING OR CLARIFYING THOSE CONCLUSIONS .

HOWEVER, SUCH AN ASSERTION BESIDES BEING PATENTLY INCORRECT AS HAS JUST BEEN SHOWN, CANNOT BE HELD IN ANY WAY TO TAKE THE PLACE OF AN AMENDMENT OF THE CONCLUSIONS, WHICH, EVEN IF ADMISSIBLE, IS SUBJECT TO THE STRICTEST REQUIREMENTS AS REGARDS ITS PRECISION AND CONTENT .

IT FOLLOWS FROM THE FOREGOING THAT IN THIS CASE ONLY CONCLUSIONS RELATING TO THE VAN DER GRIFT AFFAIR ARE PRESENTED TO THE COURT .

II - ON THE SUBSTANCE OF THE CASE

1 . LIABILITY OF THE HIGH AUTHORITY ON THE BASIS OF A GUARANTEE GIVEN BY IT

THE APPLICANT INFERS THE LIABILITY OF THE DEFENDANT FROM THE FACT THAT THE LATTER, IN ITS DECISIONS ESTABLISHING THE EQUALIZATION SCHEME, FORMALLY UNDERTOOK TO ENSURE A FAULTLESS SERVICE; THIS COMMITMENT EXTENDED ALSO TO IRON AND STEEL UNDERTAKINGS OF THE COMMUNITY . THIS EMERGES FROM THE EIGHTH RECITAL OF THE PREAMBLE TO DECISION 14/55 IN WHICH THE HIGH AUTHORITY DECLARED THAT IT 'IS RESPONSIBLE FOR THE REGULAR FUNCTIONING OF THE FINANCIAL ARRANGEMENTS AND HENCE MUST ALWAYS BE IN A POSITION TO INTERVENE EFFECTIVELY '.

THE ESTABLISHMENT OF THE FINANCIAL ARRANGEMENTS AND THE PRINCIPLE ENUNCIATED IN THE RECITAL TO THE ABOVE-MENTIONED GENERAL DECISION, OF THE LIABILITY ASSUMED BY THE HIGH AUTHORITY FOR THE REGULAR FUNCTIONING OF THIS SCHEME, BELONG TO THE POLITICAL AND ADMINISTRATIVE SPHERE, AND CANNOT THUS CONSTITUTE AN OBLIGATION TO THE UNDERTAKINGS UNDER ITS AUTHORITY OR A GUARANTEE GIVING RISE TO OBJECTIVE, CONTRACTUAL OR LEGAL LIABILITY ON THE PART OF THE HIGH AUTHORITY, EVEN WHEN NO WRONGFUL ACT OR OMISSION CAN BE IMPUTED TO IT .

THIS SUBMISSION MUST THEREFORE BE DISMISSED .

2 . LIABILITY FOR A WRONGFUL ACT OR OMISSION

THE APPLICATION IS MOREOVER PRINCIPALLY BASED ON ARTICLE 40 OF THE ECSC TREATY WHICH ALLOWS THE INJURED PARTY TO BRING AN ACTION TO OBTAIN PECUNIARY REPARATION FROM THE COMMUNITY TO MAKE GOOD ANY INJURY CAUSED IN CARRYING OUT THE SAID TREATY BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY IN THE PERFORMANCE OF ITS FUNCTIONS .

P . 389

( A ) THE OFFICIAL OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, WHO FRAUDULENTLY ISSUED THE CERTIFICATES IN QUESTION, WAS NOT SUBJECT TO THE CONTROL OF THE HIGH AUTHORITY AND DID NOT RECEIVE ORDERS FROM IT, BUT ACTED IN HIS CAPACITY AS A NATIONAL OFFICIAL .

IF, IN ACCORDANCE WITH THE SYSTEM APPLIED BY THE HIGH AUTHORITY, CERTIFICATES ISSUED BY THE DUTCH MINISTRY WERE RECOGNIZED AS SUPPORTING DOCUMENTS WITHOUT FURTHER CHECKING, IT CANNOT BE INFERRED FROM THIS THAT THE OFFICIAL WHOM THE MINISTRY HAD CHARGED WITH ISSUING THE SAID CERTIFICATES ACTED ON BEHALF OF OR IN THE NAME OF THE COMMUNITY . THE WRONGFUL ACT COMMITTED BY THIS OFFICIAL CANNOT THEREFORE BE IMPUTED TO THE DEFENDANT . NO OTHER PERSONAL WRONG COMMITTED BY A SERVANT OF THE DEFENDANT IN THE PERFORMANCE OF HIS DUTIES HAS BEEN ESTABLISHED .

( B ) IT IS ALSO NECESSARY HOWEVER TO CONSIDER WHETHER THERE WAS A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT WITHIN THE MEANING OF ARTICLE 40 OF THE ECSC TREATY, BECAUSE OF ITS FAILURE TO PROVIDE A BETTER ORGANIZED SYSTEM FOR ISSUING THE CERTIFICATES OF ORIGIN FOR FERROUS SCRAP QUALIFYING FOR EQUALIZATION PAYMENTS, AND IN PARTICULAR BECAUSE OF ITS FAILURE TO PROVIDE FOR THE INVESTIGATION OF THE AUTHENTICITY OF THE SAID CERTIFICATES .

AT FIRST SIGHT, THE FACT THAT IT WAS POSSIBLE FOR THE ABUSES COMPLAINED OF TO CONTINUE FOR SEVERAL YEARS APPEARS TO INDICATE THAT THE ORGANIZATION WAS DEFECTIVE AND INSUFFICIENT . HOWEVER THAT CONCLUSION IS NOT JUSTIFIED IN THIS CASE . IN FACT, IN LEAVING TO THE COMPETENT NATIONAL AUTHORITY THE TASK OF ISSUING THE NECESSARY CERTIFICATES, THE DEFENDANT PURSUED THE COURSE WHICH APPEARED THE MOST APPROPRIATE AND THE MOST LIKELY TO AFFORD THE BEST GUARANTEE AGAINST ANY ABUSE . SINCE THE CERTIFICATES FORMED AT THE SAME TIME THE LEGAL BASIS, ACCORDING TO DUTCH LAW, FOR THE RE-EXPORT OF THE FERROUS SCRAP, IT WAS NATURAL TO ENTRUST THEIR ISSUE TO THE NATIONAL AUTHORITIES WHO, MOREOVER, WERE THE BEST QUALIFIED TO CARRY OUT THE NECESSARY CHECKS .

THE ISSUE OF THE CERTIFICATES HAD NOT BEEN LEFT TO A SUBORDINATE AUTHORITY BUT TO A MINISTRY . THE DUTCH REGULATIONS PROVIDED FOR AN EXTREMELY DETAILED PROCEDURE PRIOR TO THE ISSUE OF THE CERTIFICATES FOR CHECKING THE ORIGIN OF THE FERROUS SCRAP IN QUESTION; IT WAS IN FACT IMPOSSIBLE TO FORESEE THAT ACTS OF FRAUD COULD OCCUR IF THIS SYSTEM WERE APPLIED .

IN THESE CIRCUMSTANCES, THE DEFENDANT CANNOT BE BLAMED FOR HAVING ADOPTED THIS SYSTEM AND THE FACT OF ITS HAVING DONE SO CANNOT IN ANY CASE BE DESCRIBED AS A WRONGFUL ACT OR OMISSION .

P . 390

THIS ALSO HOLDS GOOD WITH REGARD TO LACK OF SUPERVISION . IN FACT, IT WOULD HAVE BEEN EXCESSIVE TO CHECK CERTIFICATES COMING FROM A MINISTRY AND PURPORTING TO BE OFFICIAL DOCUMENTS, AT ANY RATE SO LONG AS THERE WAS NO INDICATION OF ABUSE WHICH COULD RAISE DOUBTS AS TO THEIR AUTHENTICITY .

THE ARGUMENT OF THE APPLICANT THAT THE REPLY GIVEN BY THE HIGH AUTHORITY IN THE EUROPEAN PARLIAMENT TO THE QUESTIONS PUT BY MR VAN DER GOES VAN NATERS AND MR NEDERHORST AND THE LETTER OF 24 FEBRUARY 1958 ADDRESSED TO THE PRESIDENT OF THE EQUALIZATION FUND BY THE VICE-PRESIDENT OF THE HIGH AUTHORITY, MR SPIERENBURG, CONSTITUTED AN ADMISSION OF A WRONGFUL ACT OR OMISSION SHOULD BE REJECTED . ALTHOUGH IN FACT THESE STATEMENTS DID ENQUIRE HOW AN IMPROVEMENT OF THE SYSTEM COULD AVOID SUCH DEFECTS IN FUTURE - AND IT WAS ONLY AFTER THE ACTS OF FRAUD THAT THOSE DEFECTS CAME TO LIGHT - THEY DO NOT CONSTITUTE AN EXPRESS ADMISSION THAT A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY HAD OCCURRED . THEY CANNOT MOREOVER TRANSFORM A COURSE OF ACTION BY THE DEFENDANT INTO A WRONGFUL ACT OR OMISSION - A DESCRIPTION WHICH SUCH A COURSE OF ACTION DOES NOT IN FACT DESERVE .

IN ITS JUDGMENT IN THE FERAM CASE ( REC . 1958 / 1959, PP . 506 ET SEQ .), THE COURT HAD REFUSED A REQUEST FOR REPARATION FOR INJURY TO THE APPLICANT FERAM; THIS REQUEST WAS BASED ON THE SAME GROUND AS THE PRESENT APPLICATION, NAMELY THE EXISTENCE OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY COMPRISING ITS FAILURE TO PROVIDE A SUFFICIENT CHECK ON THE OPERATION OF THE EQUALIZATION SCHEME .

THE FACTS REFERRED TO BY THE APPLICANT IN THE PRESENT DISPUTE, INASMUCH AS THEY RELATE TO THE VAN DER GRIFT AFFAIR, DO NOT CONTAIN ANY NEW FACTOR WHICH MIGHT LEAD THE COURT TO ABANDON ITS POSITION AS DEFINED IN THE FERAM CASE .

THE ACTION MUST, THEREFORE, BE DISMISSED AS BEING UNFOUNDED .

UNDER THE TERMS OF ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . IN THIS CASE THE APPLICANT HAS FAILED IN ITS PLEAS AND MUST THEREFORE BEAR THE COSTS OF THE PROCEEDINGS .

THE COURT

HEREBY

1 . DISMISSES THE APPLICATION AS BEING UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .