JUDGMENT OF 17. 7. 1959 — CASE 22/58 BOCHUMER VEREIN v HIGH AUTHORITY

In Case 22/58

THE COURT composed of: A. M. Donner, President, O. Riese, President of Chamber, L. Delvaux (Rapporteur), Ch. L. Hammes and N. Catalano, Judges, Advocate-General: M. Lagrange Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Conclusions of the parties

II — Statement of the facts

III — Submissions and arguments of the parties

1. Admissibility

2. The substance of the case

First submission: Lack of competence

Second submission: procedural defects

Third submission: infringement of the Treaty or of rules of law relating to its application

Fourth submission: misuse of powers

Grounds of judgment

Admissibility

Costs

I —. Conclusions of the parties

1. Annul the letter sent by the High Authority on 18 December 1957 to the OCCF and published in the Journal Officiel No 4 of 1 February 1958, p. 45 et seq., if and in so far as that letter constitutes a decision within the meaning of Articles 14 and 15 of the Treaty;

2. Order the defendant to pay the costs.

1. Take formal note that all the documents and communications relating to this case shall be sent to the High Authority, 2 place de Metz, Luxembourg;

2. Dismiss the application lodged by the applicants on 17 March 1958 as unfounded;

3. Order the applicants to pay the costs.

II —. Statement of the facts

III —. Submissions and arguments of the parties

1. Admissibility

2. The substance of the case

1. The previous decisions (Nos 22/54, 14/55 and 2/57) allow only those undertakings which buy scrap on the market to benefit from equalization. It is obvious that when own resources are recovered in other factories of the undertaking, they are entered in the accounts only with internal notional values fixed independently of the market and are not capable of forming the subject-matter of equalization, since the fact of prices being kept low cannot have any influence on notional values.

2. The letter complained of contains several contradictions.

3. The letter infringes the principle that laws and administrative measures should not be retroactive.

4. The letter infringes the previous Decisions Nos 22/54, 14/55 and 2/57, and in particular Article 3 (1) of Decision No 2/57, which provides for a contribution only in respect of bought scrap, and Article 4 (1) and (2), which allows undertakings within the meaning of Article 80 of the Treaty to deduct their own resources from their total consumption of scrap.

5. Under Article 5 of the Treaty, the High Authority must carry out its task with a limited measure of intervention. It can exert direct influence only upon the market and has no right to intervene in the internal deliveries of undertakings.

6. According to Article 80 of the Treaty, the applicants together with their subsidiaries constitute one single undertaking. The letter complained of infringes that article, by adopting the criteria of the company name or a legal person.

7. The applicants constitute an economic unit with their subsidiaries, and to a large extent also a legal unit. Therefore they are in a position comparable to that of undertakings in the same branch of production which have grouped their different works into a single legal person. Thus the letter complained of infringes Article 3 (b) of the Treaty, which ensures that comparably placed consumers have equal access to the sources of production, and Article 4 (b), which prohibits discrimination.

8. The applicants are also victims of discrimination in relation to the undertakings to which the OCCF granted an exemption, a measure approved by the letter complained of by virtue of the exceptional nature of the situations in question. In fact, the connexions between the subsidiaries belonging to the undertakings of the applicants are much closer than those between Hoogovens and Breedband, on the one hand, and between Breda Siderurgica and the companies controlled by Finanziaria Ernesto Breda, on the other. Furthermore, in the case of the applicants, scrap is recovered within a single undertaking within the meaning of Article 80 of the Treaty, which is not true of the undertakings which were granted the exemption.

1. The High Authority seeks by means of its letter to obtain a result which it can achieve only by taking a decision; by so doing, it is committing a misuse of powers.

2. The High Authority sought to amend its previous decisions without obtaining the assent of the Council of Ministers. Therefore, in order to disguise this intention, it claimed that the Brussels agencies had already previously applied the new criteria which it imposes. Such conduct constitutes a misuse of powers.

3. The High Authority knew that the economic structure of the applicants is identical to that of other undertakings which are not affected by the contribution imposed on own resources, since examples had expressly been submitted to it. By treating economically identical cases in a different way and thus knowingly discriminating between undertakings within the Community, the High Authority is committing a misuse of powers.

4. By means of the letter complained of, the defendant seeks to prejudice the unity of undertakings and to impose equalization contributions upon transactions of an internal nature; by arbitrarily describing a part of undertakings' own resources as bought scrap, it is disguising its true intention as an intervention upon the market.

5. The High Authority is committing a misuse of powers by imposing the contribution upon tonnages of scrap in respect of which the consumers do not qualify for equalization, after stating in its Decisions Nos 22/54, 14/55 and 2/57 that its principal aim was for all the undertakings benefiting from equalization to participate equally.

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to Articles 14, 15. 33 and 80 of the Treaty establishing the ECSC; Having regard to the Protocol on the Statute of the Court of Justice of the ECSC; Having regard to the Rules of Procedure of the Court of Justice of the ECSC, THE COURT hereby: