OPINION OF MR ROEMER — CASE 1/63 MACCHIORLATI DALMAS v HIGH AUTHORITY

Mr President,

Members of the Court,

The proceedings in respect of which I have to give my opinion originate in a Decision of the High Authority of 14 November 1962. This Decision calls upon the undertaking Macchiorlati Dalmas to pay 7 million lire by way of surcharges for delay in payment and in respect of arrears of levy payments from January 1953 to December 1960.

The very extensive history of the Decision is set out in detail in the report of the hearing so that I need not now go into it in detail. Only the following need be mentioned: the applicant, an undertaking within the meaning of the ECSC Treaty and liable to levy since the beginning of 1953 by virtue of Decisions Nos 2/52 and 3/52, totally failed for several years to give the High Authority particulars of its production. When it began in 1955 to supply these particulars its production figures did not cover the entire period which had elapsed since 1953. It did not pay any levy contributions. So the High Authority, in a letter of 17 March 1958, sent it a statement of the amounts payable (levy and surcharges for delay in payment). An exchange of letters and several discussions followed, in the course of which the debtor made reservations concerning the figures communicated to it by the High Authority and efforts were made to settle their differences.

As no settlement was reached the High Authority took a Decision on 13 February 1959 calling upon the firm Macchiorlati Dalmas to pay the sum of 21541543 lire. This sum consists of the general levy payable up to 5 November 1958 (16060945 lire) and of the surcharges for delay in payment accrued up to that date. The Decision states in addition that for every month's delay in payment after 5 November 1958 surcharges for delay of 1 % of the outstanding levy would be payable.

The firm Macchiorlati Dalmas challenged the Decision by an application made on 8 April 1959. During the legal proceedings negotiations took place between it and the High Authority which resulted in the application of 28 April 1960 being withdrawn and removed from the Court register. Subsequendy (according to the statement of the High Authority of 26 April 1961, First Schedule to the Rejoinder) the firm Macchiorlati Dalmas paid the arrears of levy amounting altogether to 20645897 lire. It corresponded with the High Authority on the question of a remission of the surcharges for delay in payment. The High Authority by a letter of 18 June 1962 allowed the request for remission in part by reducing the surcharges from 9334514 lire to 7 million lire. In answer to a fresh request it stated by letter of 2 August 1962 that a total remission was out of the question. Finally the High Authority fixed a time limit within which its debtor was to submit proposals for payment. Upon the expiry of that time limit without any satisfactory result it took the Decision of 14 November 1962, which is the main subject of these proceedings.

The following conclusions are contained in the application:

The application is drawn up in such a way that the legality of the individual Decision of 13 February 1959, which was the subject matter of Case 22/59, must be examined as well as the general Decisions relating to the levy upon which this individual Decision is based.

In so far as the submissions put forward refer to general Decisions, they complain of infringement of the first paragraph of Article 36, Article 47 and Article 50 (1) and (2) of the ECSC Treaty; in so far as they are directed against the individual Decision they rely on the inadequacy of the statement of the reasons on which it is based, infringement of Article 6 of Decision No 3/52, misuse of powers and the fixing of unreasonably high penalties for delay.

The High Authority contends that all these claims should be dismissed as being inadmissible or at any rate unfounded. It considers that the complaints relating to the individual Decision of 13 February 1959 and the general Decisions upon which it is based are inadmissible; it submits that the complaints relating to the individual Decision of 14 November 1962 and the general Decisions upon which it is based are unfounded.

Legal consideration

Unlike the parties during the written procedure, I will to begin with refrain from defining the admissible issue in this action, that is to say from going into the question to what extent it is possible to go beyond the Decision which is directly contested and consider other individual and general Decisions in these proceedings. Instead I will deal at once with the submissions which direcdy relate to the contested Decision.

A — Submissions directed against the individual Decision of November 1962

I. In the first place the applicant submits that the demand for payment of surcharges for delay is unlawful, because in the course of the discussion held on 21 April 1960 it was given a binding assurance by the High Authority that these would be remitted. It relies therefore on a decision to remit them which must be deemed to have extinguished its debt.

II. In the second place the applicant criticizes the High Authority for baving (in its letter of 26 April 1961) rounded up individual sums in its calculation of the surcharges for delay in payment. This results in an average rate of about 1.1 %, which exceeded the limit permissible under Article 6 of Decision No 3/52.

III. Finally the applicant fails to find in the disputed individual Decision an exact and detailed statement of all the individual items for the various periods giving particulars of the dates when the respective levy payments fell due, or any reference to the provisions it has infringed or a statement of the reasons upon which the refusal was based. It concludes that the reasons upon which the Decision is based are inadequate both in law and in fact and that it must for this reason at least be annulled.

B — Complaints made against other Decisions

The applicant has in addition endeavoured to ensure the success of its application by challenging both the individual Decision of 13 February 1959 as well as the general Decisions on the levies.

It is open to the applicant to do so to the extent that the general Decisions provided the legal basis of the contested individual Decision. On this issue there have been since the Meroni case many decisions of the Court confirming this point.

I. However, in this case problems concerning the limits to be placed on the objection of illegality have arisen, for which the decisions of the Court to date do not provide any solution. They are the result of the attempt by the applicant to include in this case the Decision which was the subject-matter of Case 22/59, as well as general Decisions concerning the levies, which certainly influenced that individual Decision without, however, providing the legal foundation, in the sense of the Meroni judgment, of the Decision which is now contested. I will now examine these problems.

II. On the other hand, Article 36 and the generally recognized objection of illegality make it possible to examine those general Decisions which have formed the legal basis of the direcdy contested individual Decision or in respect of which surcharges for delay became payable because they were not observed, provided that there are no other procedural obstacles.

III. With regard to the general Decisions concerning the levy, according to the views I have just expounded only those complaints are admissible which relate to the legal basis of the surcharges for delay in payment, that is to say, to Article 6 of Decision No 3/52 and to Decision No 29/55, and I will now turn to these provisions.

C —. Having regard to the result of this examination, the principal conclusion of the applicant cannot succeed. There remains however for consideration its alternative application for a reduction of the surcharges. This claim is certainly admissible if — as I have endeavoured to show — the surcharges are classified as pecuniary sanctions.

D —. To summarize the results of my examination, I submit that the principal conclusion of the applicant seeking the annulment of the contested Decision should be dismissed, but that in accordance with Article 36 of the Treaty, the surcharges should be reduced.

1 Translated from the German.