JUDGMENT OF 17. 12. 1959 — CASE 1/59 MACCHIORLATTI DALMAS v HIGH AUTHORITY

In Case 1/59

THE COURT composed of: A. M. Donner, President, L. Delvaux (Rapporteur) and R. Rossi, Presidents of Chambers, O. Riese 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 — Summary of the facts

III — Submissions and arguments of the parties

A — Submissions and arguments of the applicant

B — Submissions and arguments of the defendant

Grounds of judgment

Admissibility

The substance

Existence of the infringement

The amount of the fine

Costs

I —. Conclusions of the parties

II —. Summary of the facts

III —. Submissions and arguments of the parties

A —. Submissions and arguments of the applicant

1. The applicant states that the reason why it failed to reply to the High Authority's registered letter of 16 January 1958 giving it particulars of the invoices which Mr. Lepape considered were not in order and inviting it to offer an explanation was that the firm's senior partner was ill. However, it asserts that this explanation had already been given by the firm's staff to Mr. Lepape while he was carrying out his investigation and it offers to call witnesses to prove this.

2. Article 1 of Decision No 1/54 allows the obligation to adhere to published price lists to be disregarded in two specific cases:

3. The invoicing which is criticized relates to specific sales at increased prices commonly applied in all iron and steel undertakings. Prices are marked up by a uniform amount.

4. The applicant examines in turn all the invoices which are criticized (pages 3 to 10 of the application) and provides an explanation for each of them.

5. In support of its assertions the applicant produces in addition to its price list a very large number of letters.

6. The applicant (reply, No 6) offers to prove by witnesses that, as indicated in its price lists, when it has received special orders from its purchasers it has invariably applied fixed price increases, of which it produces a detailed list.

B —. Submissions and arguments of the defendant

1. The defendant submits that, in the absence of an explanation by Macchiorlatti Dalmas e Figli, the High Authority had no other option but to impose the penalties' prescribed by the Treaty. The letter of 15 December 1958 which the applicant sent to the High Authority (Annex 3 to the statement of defence) is an extra-judicial admission wholly at variance with the case presented afterwards in its application; in it the applicant acknowledges in particular that it took account when fixing its prices of the financial standing and size of each customer and this amounts to discrimination prohibited by the Treaty.

2. An examination of the invoices mentioned in the contested decision reveals that the applicant's conduct was determined by the criteria mentioned in its letter of 15 December 1958 which contravene the Treaty. For example, the criterion of the financial standing and size of the customer was applied in the case of invoices Nos 9, 70, 72, 4, 63, 64 and 67.

3. The applicant did not apply the price increases uniformly. This is proved by comparing invoices 444 with 53, 12 with 441, 464 and 465, 4 with 63 and 64, 4 with 9, 70 and 72. Further, contrary to normal commercial practice, the increases were not specially mentioned on the invoices.

4. The applicant maintains that each invoice contains a number of special particulars which are however so commonly used in all iron and steel undertakings that they give rise to price increases the amount of which is thereby standardized quantitatively. If this were true it would mean either that the sales at issue are not subject to special conditions or that they infringe the obligation to publish such conditions according to the rules for the publishing of price-lists (Articles 60 and 64 of the Treaty).

5. The statements contained in Annexes 13 to 16 to the reply in no way prove the applicant's assertions, that is to say, that the sales were special or that it applied uniformly those prices or conditions which departed from the price list.

6. The applicant in its reply (No 6) does not offer to prove that every sale contained the special particulars set out in detail in its application but that in general it was in the habit of making certain increases if a particular client had certain special requirements. Only complete and positive proof that it applied the same price increases to every special sale can justify Macchiorlatti's charging prices which depart from or disregard the price list.

1. To prevent prohibited practices as far as this is possible;

2. To permit buyers to obtain accurate information on prices and also to participate in the detection of discrimination;

3. To allow undertakings to know the exact prices charged by their competitors and provide them with the opportunity of aligning their own prices on them.

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 36, 60, 64, 80 and 92 of the Treaty establishing the European Coal and Steel Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of the Court of Justice of the European Coal and Steel Community relating to costs, THE COURT hereby:

1 Dismisses the application;

2 Orders the applicant to bear the costs.