Opinion of Mr Advocate-General Roemer

Mr President,

Members of the Court,

In the oral procedure on 17 April 1964 the parties, at the suggestion of the Court, limited their submissions to the issue of admissibility and to the questions directly related thereto, and this accordingly also prescribes the limits of the subject matter of my opinion.

The facts of this case — so tar as they concern us today — are quite simple: in the course of the liquidation of the equalization scheme for ferrous scrap, which has so frequently engaged the attention of the Court, the High Authority adopted on 3 April 1963 Decision No 7/63 (published in the Official Journal of the European Communities of 6 April 1963, No 54, page 1091). Its aim is to arrive as closely as possible at the final statement of account of the equalization scheme. Its content, apart from fixing certain equalization prices, consists chiefly of the determination of the equalization contributions for the various equalization periods between April 1954 and March 1959. Pursuant to that Decision letters dated 8 April 1963 in identical language were sent to the applicants requesting payment of certain sums by way of equalization before 31 May 1963.

As the undertakings concerned for various reasons called in question the accuracy of the statements of account they decided to institute proceedings for

Alternatively they asked the Court

It should be noted that in Case 57/63, which differs from the others in this respect, there is no alternative claim for damages but only notice of an intention to make such a claim. Instead there is in this case an additional claim that the Court should find that the calculation of the amount of ferrous scrap on which the applicant is liable to pay the levy, based on the total amount of scrap in the tables annexed to Decision No 7/63, is unlawful as regards its form and does not correspond to the facts.

The High Authority takes the view that the applications are inadmissible. In particular it states, relying on the judgments in Cases 23, 24, 28 and 52 to 54/63 (of 5 December 1963), that the disputed letters of 8 April 1963 are not decisions which can be contested before the Court. Decision No 7/63 on the other hand must be regarded as a general decision, which can only be contested by pleading successfully a misuse of powers affecting the applicants. No such plea is contained in the applications.

That explains the arguments concerning the admissibility of the applications, to which I will now turn without any further introduction. In so doing I will follow the order of the conclusions, in other words I will deal first with those which seek the annulment of Decision No 7/63.

Legal Consideration

I — Conclusions seeking the annulment of Decision No 7/63

1. How is Decision No 7/63 to be classified under the ECSC Treaty? Is it a general decision or is it an individual decision, because — in the view of the applicants — it constitutes a mere collection of a number of individual decisions applicable to all undertakings using ferrous scrap?

2. This of course means that the only ground which can be admitted is the complaint of misuse of powers affecting them.

3. Solely in the interests of a lull treatment of this subject I would also like to call attention to the fact that rejection of my proposed suggestion for the classification of Decision No 7/63 would not produce a different result. In any case it is clear from the structure of this decision that it does not aim at a direct and final regulation of the legal position of each undertaking consuming scrap. Its only purpose is to fix a general rate for the contributions and in particular to leave the determination of the basis of the assessment for the subsequent administrative procedure, initiated by the letters of 8 April 1963 and which can be completed by the issue of an enforceable individual decision, if the High Authority and the undertakings concerned cannot resolve any possible differences. To come to any other decision and permit a discussion of the differences which have arisen immediately after the adoption of Decision No 7/63 would destroy the practical value of the administrative procedure, which in my opinion is an extremely sensible administrative arrangement. Individual undertakings have not from any point of view a sufficiently pronounced need for legal protection to allow them to take action against Decision No 7/63, which is another reason for dismissing the applications on the ground of inadmissibility.

II — Annulment of the individual statements of account contained in the letters of 8 April 1963

In the second head of their conclusions — annulment of the letters of 8 April 1963 — the applicants themselves concede that these letters do not have the characteristics of decisions which can be challenged separately under Article 33 of the Treaty. However they concede that the letters, being measures by which Decision No 7/63 is implemented, qualify as decisions against which proceedings can be conditionally instituted, because in their opinion their function is to make known and carry out in greater detail individual decisions which, as individual decisions, are already with others incorporated by implication in Decision No 7/63.

Having said this I need not go once again into the question of the legal classification of the letters containing the statements of account, which was exhaustively discussed in Cases 23, 24, 28, 52, 53 and 54/63. As has been laid down by the judgments of the Court, which on this point followed my opinion and whose findings have not in the meantime been upset by other arguments, the letters containing the statements of account cannot be regarded as decisions against which proceedings can be instituted, above all because they were not issued by the High Authority sitting as a body.

But this finding in effect also passes judgment on the various ways of challenging the Decisions which have emerged in these cases. An evaluation of Decision No 7/63 has shown that it was not the intention of the High Authority to determine once and for all and in such a way as to bind them the legal position of the individual undertakings. Decision No 7/63 only intended, by fixing the rate of contribution, to lay down a basis for the subsequent individual statements of account, which were to be discussed first in administrative proceedings, before any binding individual decisions were issued. It cannot therefore be said that Decision No 7/63 already contains all the individual decisions covering the various undertakings consuming scrap. There is therefore no doubt that the purpose of the letters of 8 April 1963 cannot be regarded as the publication of individual decisions which, together with Decision No 7/63, can be made the subject of legal proceedings. The second part of the conclusions must therefore also be dismissed on the ground of inadmissibility.

III — Alternative conclusions

The alternative conclusions which seek a declaration from the Court that there have been certain wrongful acts and omissions on the part of the High Authority and should order it to pay appropriate damages must in my opinion, having regard to the submissions in the applications looked at as a whole, be understood to mean that they can only be treated as being still on the record, if the Court recognizes the legality of Decision No 7/63, that is to say, if it decides the main head of the conclusions (see on this point the pleadings in the German version if the Court however confirms the legality of Decision No 7/63 … then in the alternative the very important question arises whether these mistakes must not be regarded as wrongful acts or omissions which create a right to compensation). In fact the applicants only have a right to claim compensation if the measures which are directly challenged are not annulled.

As however the conditions laid down by the applicants have not arisen (because for the time being the main issue of the application cannot be decided), it is unnecessary to give further consideration to the subject matter of the alternative conclusions. In these circumstances it is my opinion not even necessary that they should be expressly mentioned and dismissed in the operative part of the judgment.

IV — Costs

In the present proceedings the applicants have also put forward the claim that in the event of their applications' being dismissed the High Authority should nevertheless bear the costs, because it is the manner in which it drew up the contested measures which has caused the applications to be brought.

This claim can in principle be dealt with in the same way as the claim for costs in Cases 53 and 54/63. It must in this connexion be acknowledged that the High Authority, because of the manner in which it worded the letters of 8 April 1963, has given the impression that they were binding and enforceable decisions. With regard to the applications against Decision No 7/63 it must be admitted that the applicants have put forward perfectly reasonable arguments in support of their view that the Decision is an individual decision, a point of view which can be used in their favour to establish in law a case of special difficulty so as to bring into operation Article 69 (3) of the Rules of Procedure. Moreover it cannot be denied that by the wording of Decision No 7/63, in particular of Article 6, the High Authority has also to some extent helped to create in the mind of the applicant the false impression that this Decision could be contested as an individual decision.

In the present case it must moreover be borne in mind that, in the course of the written procedure, and indeed just after the final pleadings of the applicants were lodged (18 October 1963), a clarification of the right of action emerged from the judgment of the Court of 5 December 1963 in the related cases 23, 24, 28 and 52 to 54/63. After this date the further prosecution of the applicants' claims for annulment of the letters of 8 April 1963 and of Decision No 7/63 held out little prospect of success. It might therefore be legitimate to conclude from the fact that the applicants did not abandon their proceedings at that time that in law they should bear a greater proportion of the costs than the applicants in Cases 23, 24, 28, 52, 53 and 54/63 and for example should share the costs.

V — Conclusion

To sum up I submit that the applications be dismissed in their entirety as being inadmissible and that each party should bear its own costs.

1 Translated from the German.

2 Cases 8/55, Rec. 1955-1956, p. 199; 13/57, Rec. 1958 (janvier-juillet), p. 261; 36 to 38 and 40 and 41/58, Rec. 1958-1959, p. 337.

3 Case 8/55, Rec. 1955-1956, p. 248.