JUDGMENT OF 16. 12. 1963 — CASE 18/62 BARGE v HIGH AUTHORITY
In Case 18/62
THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabuccru (Presidents of Chambers), L. Delvaux (Rapporteur), R. Rossi, R. Lecourt and W. Strauß, 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 — As to admissibility
B — As to the substance of the case
I — The individual Decisions of 23 May 1962
1. With regard to the party to whom the Decisions are addressed
2. With regard to the checks carried out by the S. A. Fiduciaire suisse
3. As to the reason for the adjustment of the applicant's declarations on the basis of an estimate
4. With regard to the inductive findings and the opinion of experts on this method
5. Was the High Authority obliged before taking the Decisions to give the applicant the opportunity to submit her comments?
II — Article 10 (b) and (d) of general Decisions Nos 2/57 and 16/58
1. Submissions and arguments common to Article 10 (b) and (d)
2. As to Article 10 (b)
3. As to Article 10 (d)
III — General Decisions 18, 19 and 20/60
IV — Procedure
Grounds of judgment
On the substance of the case
As to the objection of illegality directed against Article 10 (b) and (d) of general Decisions Nos 2/57 and 16/58
As to the objection of illegality directed against general Decisions Nos 18/60, 19/60 and 20/60
Costs
I —. Conclusions of the parties
(a). Declare the present action admissible;
(b). Order the defendant, in accordance with Article 23 of the Protocol on the Statute of the Court, to produce before the Court all the documents relating to the question at issue and in particular the minutes of the alleged inspections carried out by the S. A. Fiduciaire Suisse at the Acciaieria ing. A. Leone and at the Ferriere di Borgaro;
(c). Declare null and void the individual Decisions taken on 23 May 1962 by the High Authority in respect of Mrs Emilia Barge, the widow of Leone and wife of Gualco, as such Decisions are vitiated by lack of competence, infringement of essential procedural requirements, infringement of the Treaty and misuse of powers;
(d). Order the defendant to pay the costs.
(1). Declare this application admissible;
(2). Alter examination of the defendant on the basis of the evidence presented in the application and in this reply, order the defendant, in accordance with Article 23 of the Protocol on the Statute of the Court, to produce in court the accounting documents and the minutes of the S. A. Fiduciaire Suisse;
(3). After an expert accounting report, made by experts to be chosen b; the Court of Justice of the European Communities, with regard t the accounting documents and different addenda which led to the findings and conclusions set out in Decisions Nos 18/60, 19/60 and 20/60 and in their annexes:
(4). Declare null and void the disputed decisions of the High Authority;
(5). Order the defendant to bear the costs of the action and of the experts' report;
(6). Declare this action to be without prejudice to any other right, action or other remedy before any other Community or national court.
II —. Summary of the facts
III —. Submissions and arguments of the parties
A —. As to admissibility
B —. As to the substance of the case
I —. The individual Decisions of 23 May 1962
1. With regard to the party to whom the Decisions are addressed
2. With regard to the checks carried out by the S. A. Fiduciaire suisse
(a). The High Authority has not proved that the delegation of powers in favour of the Fiduciaire Suisse was sanctioned by a decision as prescribed by Article 14 of the ECSC Treaty, which would have been subject to review by the Court. The High Authority has also infringed the fourth paragraph of Article 86 of the same Treaty, according to which:
(b). The applicant further submits that powers which may only be exercised by a person having the capacity of a public official cannot be delegated to private employees who do not possess such a quality. In other words the delegate of a public administration can only exercise the power of the delegator if he has himself the status of a public official.
(c). Lastly the applicant attacks the failure to draw up minutes at the time when checks were carried out by the Fiduciaire Suisse in July 1958 and October 1960 and points out that the defendant has not proved the alleged refusal to produce the accounting documents requested. Moreover the applicant was not invited to be present at these checks and in particular at the one at which the representatives of Ferriere di Borgaro were said to have declared that they had destroyed the books of account of the undertaking Acciaieria ing. A. Leone.
3. As to the reason for the adjustment of the applicant's declarations on the basis of an estimate
(a). The applicant disputes the consumption figure of 10137900 kWh for the period from 1 February 1957 to 31 January 1958, which, according to the disputed Decisions, had been calculated with the aid of the invoices of the electricity company, and invites the defendant to prove the consumption figure and to indicate the data used to arrive at it.
(b). The applicant also wholly disputes the consumption figure of 16220 metric tons of ferrous scrap for the period from 1 October 1955 to 31 January 1957, obtained by way of extrapolation from the data taken from the documents submitted for the period from February 1957 to January 1958. She points out in this respect that the furnace did not necessarily operate as intensively during the period to which the extrapolation relates as during the reference period, and that there may have been periods of running-in or inactivity.
(c). The applicant goes on to emphasize the differences between the letter sent to it by the defendant on 17 January 1962 (Schedule 6 to the application) and the disputed Decisions of 23 May 1962. She states that, despite the brief interval of three months separating these documents, the figures of the assessable tonnages and the corresponding debit balances contained in the letter of 17 January 1962 have been considerably increased in the Decisions of 23 May 1962 although those figures were calculated by the same inductive method. She submits from the above that there are no valid grounds for the Decisions.
4. With regard to the inductive findings and the opinion of experts on this method
5. Was the High Authority obliged before taking the Decisions to give the applicant the opportunity to submit her comments?
II —. Article 10 (b) and (d) of general Decisions Nos 2/57 and 16/58
1. Submissions and arguments common to Article 10 (b) and (d)
(a). According to the applicant Decisions Nos 2/75 and 16/58 do not indicate the reasons for exempting the producers of special steel or alloy steel and those producing steel castings from the payment of the equalization contribution.
(b). The applicant states that, in order to extend exemptions from payment of contributions retroactively to the period between 1 April 1954 and 31 January 1957, the High Authority was bound to take the advice of the Council of Ministers (Article 53) and to take a decision (Article 15) subject to review by the Court.
(c). The applicant alleges infringement of Articles 3 (b) and (c), 4 (b) and the third paragraph of Article 5 of the ECSC Treaty as well as of the fundamental principles of the equalization scheme and the Common Market. She refers in this respect to the opinion of Mr Advocate-General Lagrange in Joined Cases 42 and 49/59 SNUPAT v High Authority (Rec. 1961, p. 184). The defendant replies that these provisions of the Treaty have not been infringed in any way since the Decisions did not in fact derogate from the principle of equal treatment.
(d). Finally the applicant alleges that there was misuse of powers arising from discrimination between undertakings, intervention capable of distorting normal competition, and the retroactive extension of derogations to the period from 1 April 1954 to 31 January 1957.
2. As to Article 10 (b)
3. As to Article 10 (d)
III —. General Decisions 18, 19 and 20/60
(a). tor absence of reasoning, since all the global aspects contained in the Decisions are not justified either by their accounting factors or in the context of the Decisions themselves or by previous administrative measures to which one might refer;
(b). because the Decisions in dispute maintain the discrimination introduced into the equalization scheme by paragraphs (b) and (d) of Article 10 of Decisions Nos 2/57 and 16/58;
(c). for infringement or Articles j, 47 and the second indent of Article 60 (1) of the Treaty, as well as the clear failure to apply the principles enunciated with regard to publicity in the case law of the Court (Judgments of 13 June 1958 in Cases 9/56 and 10/56, Meroni v High Authority, Rec. 1958 (Janvier-juillet), pp. 14 to 86):
(d). for infringement of Article 3 (b) and (c), Article 4 (b), and Article 5 of the Treaty, by having taken measures causing discrimination between manufacturers (Article 10 (b) and (d) of Decisions Nos 2/57 and 16/58 and paragraph (e) of Decision No 18/60 which allows discrimination between purchasers of imported ferrous scrap and scrap treated as such and purchasers of ferrous scrap recovered internally, by conferring on the former a total indemnity of 5.5 units of account or 3437.50 lire per metric ton without extending the indemnity to the latter);
(e). for infringement of Article 17 of the Treaty, because a general report on the working of the financial arrangements during the period from 1 April 1954 to 31 March 1959 was never drawn up or published;
(f). for infringement of Article 78 of the Treaty, because an auditor's report on the legality of the operations of the ferrous scrap equalization scheme was never presented;
(g). for misuse of powers, because the High Authority carried out operations capable of distorting competition.
IV —. Procedure
On those grounds, 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 3, 4, 5, 17, 33, 36, 47, 53, 78 and 86 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 Communities; THE COURT declares the present application admissible and hereby:
1 Annuls the two individual Decisions of the High Authority of 23 May 1962, which have respectively as their object the fixing of the tonnage subject to equalization and the amount of the equalization contribution, in respect of the estimated assessment of the consumption of ferrous scrap for the period from 1 October 1955 to 31 January 1957;
2 Orders the applicant to pay the costs.