Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Since the oral proceedings in Cases 23, 24, 28 and 52/63 were for practical purposes dealt with in a single hearing, perhaps I may be allowed to present my opinion relating to these cases in a single statement. I think this is also justified in view of the fact that the principal legal point involved, that of admissibility, is identical in all four cases. The subsidiary conclusions, which were set out in different form in each case along with the main conclusions, will of course receive the appropriate individual treatment.

As in Cases 53 and 54/63 the applicant undertakings received letters dated 8 April 1963 from the High Authority, in which the Directorate-General for Steel, Marketing Division, calculated in connection with the liquidation of the equalization scheme for ferrous scrap the credits and debits of the undertakings in relation to the equalization scheme on the basis of Decision No 7/63 and requested them to remit certain sums of money to the High Authority by 31 May 1963 at the latest.

On various grounds, with which we need not concern ourselves at this stage of the proceedings, the undertakings consider the statements of account to be incorrect. They have, therefore, lodged applications with the principal aim of having these statements annulled.

The High Authority has not yet ex-pressed its view as to whether the objections are well founded, but — as in Cases 53 and 54/63 — contends that the applications are inadmissible on the ground that the letters are not in the nature of decisions. In the present cases, too, therefore, the Court will have to concern itself principally with the question whether the letters of 8 April 1963 can be regarded as decisions on which an application to the Court can be based.

1. The applicants are unanimous in leaving this question for the Court to determine as it sees fit. In particular they submit no arguments with regard to resolving this problem which would lead to any other resuit than that in Cases 53 and 54/63.

2. As to the subsidiary conclusions submitted in the various cases, they may be evaluated as follows:

3. Costs

Regarding the decision as to costs, the applicants in these actions ask that the High Authority be ordered to pay the costs in accordance with Article 69 (3) of the Rules of Procedure. Their arguments in support of these conclusions are substantially the same: they refer to the terms of the disputed letters, in particular the time-limit set therein, and the mention made of Decision No 7/63, Article 6 of which also contains a time-limit for payment. They refer to the terms of the explanatory note, which also speaks of demands for payment and which permits undertakings to present counter-proposals only to the extent that the High Authority has not yet adopted a position on certain questions. (The applicant in Case 52/63 notes, in particular, that on several occasions prior to receiving the letter of 8 April 1963 it had already expressed its views to the High Authority on questions of assessment such as those in dispute in the present proceedings and had already obtained a reply in a letter of 8 October 1962.) Furthermore all the conclusions refer to the previous decisions of the Court concerning the legal status of administrative measures taken by the High Authority. In addition the applicant in Case 24/63 submits that during the course of the period allowed for the institution of proceedings it asked the High Authority for an ex-planation and received the reply that the letter of 8 April 1963 did not constitute a decision; but there could be no guarantee that the Court would share this view. The applicant in Case 52/63 lasdy relies on contradictory statements by representatives of the High Authority in meetings of the liquidators of the equalization scheme for ferrous scrap and on advice given by the French Representative on the Liquidation Committee who suggested that proceedings be instituted against the letter of 8 April 1963.

The main points of these arguments agree with those submitted in Cases 53 and 54/63. In assessing them, I have admitted that the terms of the letter of 8 April 1963 could easily create the impression that administrative instructions of a mandatory nature were concerned, that is, that they constituted a decision of the High Authority, and I stressed the fact that all the other points of view bearing on the decision as to costs — patent disregard of the criteria contained in Decision No 22/60, previous judgments of the Court in similar cases, statements by members and officiais of the High Authority — are not capable of so reducing the impression created by the content of the disputed letter as to make the institution of proceedings unreasonable.

While this consideration affords sufficient basis for the same conclusions as to costs as in Cases 53 and 54/63, and also, indeed, in Case 23/63, where a letter of the High Authority of 5 April 1963 is likewise disputed, there are circumstances in some of the present cases which could have reinforced the applicants still further, if that were necessary, in their decision to institute proceedings. That is so where problems concerning assessment had already been discussed with the applicants by the departments of the High Authority in writing, from which it could be concluded that counter-proposals within the meaning of the explanatory note were no longer allowed, and that the High Authority's statement was accordingly final; and that is the case where the applicants were led to take proceedings by the information gathered from conflicting statements made by the representatives of the High Authority at meetings of the Liquidation Committee. Similarly, in the present case I have corne to the conclusion that it was the conduct of the High Authority which gave rise to the institution of proceedings and accordingly it must bear the costs of the proceedings.

I am therefore of the opinion that the applications should be dismissed on the ground of inadmissibility and the question of costs should be decided in favour of the applicants under Article 69 (3) of the Rules of Procedure.

1 Translated from the German.