Opinion of Mr advocate-general Roemer

Mr President,

Members of the Court,

Under the liquidation of the scrap equalization scheme, the Directorate-General for Steel, Marketing Division, sent to the applicants in these proceedings, as well as to other undertakings within the Community, letters dated 8 April 1963. Pursuant to Decision No 7/63 of the High Authority relating to the revised rates of contribution for the equalization of imported ferrous scrap and ferrous scrap treated as such, these letters set out a statement of account of the credits and debits of the undertaking in relation to the equalization schemes with the aim of adjusting the present state of your account as closely as possible to the final state and requested the undertakings to make payment of the balance due to the High Authority by 31 May 1963 at the latest.

The applicants maintain that the statements of account and Decision No 7/63 upon which they are based are prejudicial to their legal position in so far as they do not take into account the resolutions granting exemptions passed by the administrative bodies in Brussels on 8 May 1957, and thus clearly constitute an unlawful revocation of the exemptions.

For this reason, they made applications to the Court of Justice on 15 May 1963 in which they presented the following conclusions:

To these applications, the High Authority replied with conclusions dated 13 June 1963, asking in conformity with Article 91 (1) of the Rules of Procedure that the Court should, as a preliminary point, decide on the admissibility of the applications and should declare them inadmissible. It maintained that the letters of 8 April 1963 did not constitute decisions which were open to challenge before the Court and that Decision No 7/63 did not deal with the particular cases of the applicants and so did not concern them individually.

In accordance with Article 91 (3) of the Rules of Procedure these conclusions were the subject of oral proceedings on 9 October 1963. At the present stage of the proceedings, my task is therefore to express my views on the admissibility of the applications.

it is clear that a judicial examination which is confined to the question of admissibility, and the outcome of which the High Authority considers of vital importance, will serve a useful purpose, as it is the first time since Decision No 22/60 of the High Authority was taken that the question has arisen whether a letter can be considered as a measure open to challenge before the Court. We remember that in many previous cases the nature of statements in the form of letters from the High Authority has played a part and placed a considerable strain on relationships between the High Authority and undertakings.

In an effort to avoid similar controversies and to contribute to an increase in legal certainty (cf. the communication in Official Journal of the European Communities, 1960, p. 1250), the High Authority in its Decision No 22/60 laid down certain criteria which were intended to make it possible to determine when pronouncements of the High Authority constituted a decision, a recommendation or an opinion within the meaning of Article 14 of the Treaty.

It is now for the Court to decide whether, nevertheless, there can exist difficulties of interpretation in particular cases or whether there can be a decision open to challenge before the Court even though the conditions of Decision No 22/60 are not fulfilled.

Legal consideration

1. Legal nature of the letters of 8 April 1963

In their written and oral submissions, the applicants admit that in their opinion the letters in question do not constitute decisions within the meaning of Articles 14 and 33. However, they consider that an application is necessary because Decision No 22/60 does not bind the Court, and thus does not provide absolute certainty and because the High Authority has often not considered itself bound to follow its previous opinions.

If one considers the external form rather than the contents of the letters of 8 April 1963, it is plain that they cannot be considered as decisions within the meaning of Decision No 22/60. They do not have headings which would designate them as decisions of the High Authority. They do not have any indication of the date of adoption of the decision by the High Authority nor do they contain a postscript to the effect that they are signed on behalf of the High Authority, and the text of the letter is not signed by a member of the High Authority (Articles 1 and 3 of Decision No 22/60). Instead, the heading of the letters mentions that they originate from the Directorate General for Steel, Marketing Division, and they are signed by a Director-General and a Director of the High Authority.

But even though the formula established by Decision No 22/60 is clearly not observed, it would be possible to contemplate ascribing to these letters the nature of a decision only if three conditions were fulfilled:

2. The application against decision No 7/63

However, that does not exhaust the subject-matter of the dispute. The applicants have in addition asked for the annulment of Decision No 7/63 in so far as it does not take into consideration the resolution of the Board of the Equalization Fund of 8 May 1957, which is said to have exempted the applicants from the equalization of ferrous scrap for a certain period. It is true that in their pleadings they admitted that they could not establish an express revocation of the resolution of 8 May 1957, either in General Decision No 7/63 or in the order for payment of 8 April 1963, and consequently they declare that they are doubtful whether this decision concerns them in this respect. But far from dispelling their doubts, a conversation with one of the Legal Advisers of the High Authority on 3 May 1963 served only to intensify them. In addition, they were induced to institute proceedings by the wording of the preamble to Decision No 7/63 in which the possibility of general amendments was announced, as also by the statement that the orders for payment of April 1963 must be based upon the fact that the exemption has been abolished.

With regard to this head of the conclusions, the representative of the High Authority stated that, at the time of their conversation with the Legal Adviser of the High Authority, the applicants were under a misapprehension. According to its wording and to the intention of the High Authority, Decision No 7/63 constitutes a general decision which was not intended to deal with the actual cases of the applicants and which consequently does not concern them individually.

For the purpose of considering the second head of the conclusions, it is first of all important to bear in mind the clarification which was obtained at the end of the oral proceedings, from a question put by the Court. The representatives of the applicants stated that Decision No 7/63 was contested only in so far as it contained an individual decision. If Decision No 7/63 must be regarded as a general decision and if the first head of the conclusions is dismissed as inadmissible there is no longer any necessity to deal with the second part of the conclusions.

This clarification is important because no objection can be raised to the admissibility of an application which relates to a general decision, when, and such is the case here, the complaint of a misuse of powers (détournement de pouvoir a leur égard) is submitted with all relevant particulars.

As regards the character of Decision No 7/63, it is clear from reading the operative part, the preamble and the annexes to that Decision, that it is not concerned with a particular obligation on the part of the applicants or of any other undertaking to contribute or with their exemption from contributions. The purpose of Decision No 7/63 is to create a basis for the issue of final statements of account to individual undertakings. Above all, it lays down what quantities of scrap should be considered for the purpose of equalization and what would be the resultant rate of contribution for different periods.

In the same way, the annexes to the Decision reveal only aggregate figures which say nothing concerning the fate envisaged by the High Authority for the applicants' scrap. Thus in reality there is nothing which would make it possible to describe even specific parts of Decision No 7/63 as individual in character. It will be impossible to say with any certainty whether General Decision No 7/63 affects the applicants in a detrimental way or if it does, then to what extent, unless or until individual decisions are taken for its implementation. The applicants will then be able to submit General Decision No 7/63, which will constitute the basis of the individual decisions, to judicial review by raising an objection of illegality. The clarification of the conclusions during the oral proceedings therefore enables us to dismiss also the second head of the conclusions without going into the substance of the application.

The applications are therefore inadmissible in their entirety.

3. Costs

Finally there remains the question of the burden of costs. It appears that the High Authority has not incurred any special costs and it has made no application for costs.

But the applicants ask that the High Authority should be ordered to pay their costs. This would be possible under Article 69 (3) of the Rules of Procedure if the successful party has unreasonably or vexatiously caused the opposite party to incur costs.

There are similar provisions in national procedure (para. 93 ZPO; paras. 155, 156 VGO; Lenoan, La Procedure devant le Conseil d'État, 1954, p. 198). As a general rule they are interpreted in the sense that an order for the payment of the costs of the opposite party is made when, having regard to all the circumstances so far as they are known, it was reasonable for legal proceedings to be instituted.

In Joined Cases 16 to 18/59 (Rec. 1960, p. 65), in spite of the fact that the applications were inadmissible, the Court ordered the High Authority to pay part of the costs because the latter by the clearly imperative wording of one of the grounds of the Decision had given the impression of a final opinion. Attempting to apply these principles to the present case, I arrive at the following conclusions:

4. To summarize, I have come to the conclusion that the applications presented are inadmissible, and should be dismissed for this reason, but that in accordance with Article 69 (3) of the Rules of Procedure, the High Authority must bear the costs.

1 Translated from the German.