Opinion of Mr advocate-general Lagrange

Mr President,

Members of the Court,

In these cases, more than in any others which have come before the Court until now, the oral procedure took the form more of a sequel to and development of the written procedure than of a mere amplification of the submissions and arguments of the parties. There is indeed nothing surprising about this since it is a dispute which is mainly about the proof of damage resulting from a wrongful act or omission the existence of which it is hard to deny by reason of a preceding judgment, or rather to be more precise a previous judgment creating a precedent, namely the judgment in the case of Fives-Lille-Cail and others of 15 December 1961. Now this proof, the absence of which was the only reason for dismissing the first cases, has been difficult to establish and the efforts of the applicants to do so have gone on unceasingly up to and including the last hearing. The continuation of what is in reality a technical discussion, more likely to lend itself to exchanges of pleadings and written documents than to the making of speeches, into and throughout the oral procedure, has proved to be very useful since it has made it possible to define and to limit the points to be discussed, and has indeed done so in such a way that in my opinion the Court is now in a position to give judgment without having to call for an expert's report, although this seemed difficult to avoid during the first stages of the procedure.

However, while making every effort right up, to the end to dispute the probative value and the relevance of the evidence put forward by the applicant undertakings, the High Authority has not abandoned the positions of principle which it took up from the very beginning of the written procedure in its defence. It has even said that it stands by them entirely. Therefore the latest stage in the dispute should not make us forget the submissions of a general nature which the defendant puts forward in its defence, and I must start by an explanation of these.

I

1. First of all, as regards the wrongful act or omission, the High Authority, while declaring that it accepts the judgment of 15 December 1961, and while not disputing that it has the force of res judicata in regard to the present disputes, denies that it has committed any wrongful acts or omissions upon which a right to reparation may toe founded (last sentence of p. 8 of the statement of defence), but says that there are certain differences between the issues dealt with in that judgment and those which are now submitted to you. In particular the defendant stresses that part of the judgment in which the Court held that the High Authority's failure to exercise adequate supervision is further aggravated as regards the present disputes because in these cases the assurances with regard to the transport parities … were given to the applicants at a time when the High Authority no longer limited its activities to mere supervision of the equalization scheme, but had, by Decision No 13/58, taken over the administration of it (Rec. 1961, p. 591). The High Authority then stresses that the present disputes call in question, at least in part, assurances given by the authorities running the equalization scheme prior to Decision No 13/58.

2. The High Authority claims to establish the fact that in any event the recognition of a right to reparation is frustrated by an insurmountable legal difficulty. It is argued that this difficulty consists in its being impossible to conceive—without arriving at what the defendant calls a paradoxical, not to say absurd result—that the High Authority could foe ordered to pay damages precisely equal in amount to the payments improperly made to the applicants by way of the transport parity grant, which are payments that the High Authority is in duty bound to require them to return.

3. Before going into the questions relating to the various factors used to calculate the damage, I must still examine a number of aspects of a more general nature.

II

It now remains for me to examine whether the applicants have indeed furnished the proof which it is incumbent on them to provide in the circumstances which the Court has defined.

I must first of all state what the factors for comparison are, and it is indeed easy to do so: on the one hand, for the shipyard scrap actually received we have the amount of the charges for loading the scrap at the shipbreaker's yard, plus the transport charges from yard to works. On the other hand, for the same tonnage of imported ferrous scrap notionally received we have the amount of the transhipment charges at the port, plus the transport charges from port to works. The calculation of the first limb of the comparison, which is a matter of fact, does not involve any difficulty. It is otherwise as regards the second, which is necessarily based on matters of conjecture, and it is here that differences between the parties are found. I shall only examine those which remain at issue after the lodging of the documents annexed to the reply. The criticisms of the High Authority are set out in its written observations of 18 March 1964, supplemented by further written observations dated 30 April 1964, and counsel for the applicants has replied to both sets of observations in his oral arguments delivered at the last hearing, on 21 April 1964.

1. Choice of ports

2. Transhipment costs at the ports

In their original calculations, upon which the conclusions in their applications were based, the applicant companies confined themselves, as regards assessing the transhipment costs, to taking into account the increase of the equalization price by 2 dollars per metric ton laid down by Decision No 18/60 of 20 July 1960 (Official Journal of 24 August 1960, p. 1145) in several of its provisions. It was indeed reasonable to suppose that the point of this increase was to take the port handling charges into account on a flat-rate basis. However the High Authority disputed this method, asserting that the increase of 2 dollars only covered a part of the real costs in question. So the applicants yielded the point and endeavoured to calculate the real handling charges—and this, by the way, gives added importance to the choice of port.

Far from acknowledging the efforts thus made by the applicants to arrive as closely as possible at the actual situation, the High Authority uses them in support of an argument that in acting thus the applicants have altered the legal basis of their applications. This is not my opinion. The legal basis of the applications remains the same: no change has taken place in the kind of wrongful act or omission alleged. As for the damage for which reparation is demanded, this is still the damage resuiting from the fact that, according to the applicants, the purchase of the shipyard scrap, without the benefit of the transport parity grant, was more expensive than the purchase of an equivalent tonnage of imported ferrous scrap. All that has changed is that a new method has been used for calculating one of the factors to be taken into consideration for the assessment of the damage.

As to the tacts, the applicants have corrected their calculations to take into account certain criticisms which the High Authority made in the rejoinder (pp. 27 to 30). These corrections include: taking weighted averages into account, and no longer arithmetical ones; taking into account that part of the dispatch money which it is customary to give to the forwarding agent; and correcting errors as to parity exchange rates. It seems that there is no longer any room for disputes as to what the port handling charges really were.

3. Transport costs from port to works

4. Method of comparing the transport costs

The criticisms made by the High Authority about this seem to me to be directly refuted by the last set of oral arguments addressed to the Court (p. BF 1/6-2/1).

In conclusion I think that the applicants have furnished sufficient evidence to show how much it would normally have cost to import the same tonnage of ferrous scrap as the tonnage of shipyard scrap which in fact they did receive, and on which the transport parity grant had been improperly allowed.

If any doubts were still to remain in your minds on any given point, your right course would be to order measures of inquiry, and indeed the applicants have said that they are ready to accept this. But, given the state of the evidence put forward, it seems to me impossible to dismiss the applications purely and simply, as you did on 15 December 1961, for lack of proof or any offer of proof.

I am of the opinion:

1 Translated from the French.