JUDGMENT OF 5. 12. 1963 — JOINED CASES 53 AND 54/63 LEMMERZ-WERKE v HIGH AUTHORITY

In Joined Cases

THE COURT composed of: A. M. Donner, President, Ch. L. Hammes and A. Trabucchi (Presidents of Chambers), L. Delvaux, R. Rossi, R. Lecourt and W. Strauß (Judge-Rapporteur), Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Facts

A — Case 53/63

B — Case 54/63

II — Conclusions of the parties

III — Submissions and arguments of the parties

1. On Admissibility

A — On the first head of the conclusions

B — On the second head of the conclusions

2. Costs

IV — Procedure

Grounds of Judgment

Admissibility of the application

The first head of the applications

The second head of the applications

Costs

I —. Facts

A —. Case 53/63

1. The applicant manufactures bicycle wheels and rims. To provide for its requirements, it constructed a steel works and rolling mill and during the summer of 1956 commenced production (at first by way of experiment).

2. The question arose as to the date from which it should pay levies to the Imported Ferrous-Scrap Equalization Scheme (set up by the High Authority in 1954 on the basis of Article 53 of the Treaty establishing the ECSC) for the scrap purchased by it. By a unanimous resolution of 8 May 1957, the Board of the Imported Ferrous Scrap Equalization Fund, (hereinafter referred to by the initial letters of its French tide, namely CPFI) exempted certain firms from any retroactive levy for the period prior to 1 February 1957. The applicant claims the benefit of this Decision; the High Authority opposes this claim.

3. On 3 April 1963 by Decision No 7/63 (Official Journal of the European Communities, pp 1091/63 et seq.) the High Authority altered the basis for calculation of the equalization levy. Article 6 of the Decision provides that a complete statement of account will be sent to each undertaking subject to the equalization scheme …; if the balance of the account is to the credit of the equalization scheme, payment of the amount due is to be made by the undertaking to the account of the High Authority at one of the banks mentioned below … by 31 May 1963. The statement of reasons for the Decision declares, inter alia, that the revision of resolutions made by the CPFI before Decision No 13/58… as well as other amendments now make it both possible and necessary to draw up fresh statements of account.

4. On 8 April 1963 the Directorate-General for Steel, Marketing Division, of the High Authority sent to the applicant a registered letter (with form of acknowledgment of receipt) signed by the Director-General, Rollman, and another Director, Peco, which stated:

5. By a letter of 6 May 1936, the High Authority through one of its members, Mr Hellwig, informed Wirtschafts-vereinigung Eisen und Stahl,

6. On 15 May 1963, the applicant instituted the present proceedings.

B —. Case 54/63

1. The applicants are small and medium-sized undertakings. Only a relatively small proportion of their production (ingot castings) comes within the jurisdiction of the ECSC. For this reason the defendant was originally of the opinion that the applicants would not have to contribute to the equalization scheme even for the quantities of bought scrap used for the ingot castings.

2. On 26 January 1957, the High Authority, by its General Decision No 2/57, (Official Journal of the European Communities, pp 61/57 et seq) required of the applicants equalization contributions for the proportion of bought scrap used for the production of ingot castings.

3. On 8 May 1957, the Board or the CPFI unanimously decided to grant the applicants and a certain number of other named undertakings in a similar position exemption from all contributions for the period prior to 1 February 1957 (the date upon which Decision No 2/57 entered into force). The representative of the High Authority raised no objection.

4. During the summer and autumn or 1961, the High Authority requested the applicants to make a declaration, supported by documentary evidence, of their purchases of scrap for the period from 1 April 1954 to 31 January 1957. The applicants complied with this request, subject to the reservation that they did not admit any obligation to contribute for the period prior to 1 February 1957.

5. See A 3 above.

6. See A 4 above (the letters arc identical in all respects save for the respective totals of contributions).

7. See A 5 above.

8. See A 6 above.

II —. Conclusions of the parties

1. The applicant in Case 53/63 claims that the Court should:

2. The conclusions of the applicants in Case 54/63 are identical.

3. The defendant contends in both cases that the Court should:

III —. Submissions and arguments of the parties

1. On Admissibility

(a). As regards Decision No 7/63 the defendant's Legal Adviser, Mr van der Esch, explained to representatives of the applicants during a conversation on 3 May 1963 that the Decision contained a revocation of the CPFI resolutions of 8 May 1957. The defendant apparently bases its orders for payment on the same view, since it expressly refers to the said resolution. It is true that the applicants are unable to draw such an inference from the Decision, but are obliged by the clearly contrary view held by the defendant to apply for an annulment.

(b). as far as the orders for payment of 8 April 1963 are concerned, it is true that the defendant's Decision No 22/60 of 7 September 1960 on the implementing of Article 15 of the ECSC Treaty (Official Journal of the European Communities, p. 1248/60 et seq.) and the Communication of the High Authority on the form of decisions and recommendations within the meaning of Article 14 of the Treaty (Official Journal of the European Communities 1960, p. 1250/60) are evidence against regarding these orders as decisions. However the application is necessary since neither the above-mentioned Decision nor the parties' view of the law is binding on the Court.

A —. On the first head of the conclusions

B —. On the second head of the conclusions

(a). The letters contain no more than a new statement of account which was made necessary chiefly by the adjustments made by Decision No 7/63 to the contribution rates. The explanatory note (cf. 1 A 4 above) which is an integral part of the orders for payment makes it clear that the latter do not constitute the final word of the defendant, but give undertakings the opportunity to examine the statements of account and if necessary to submit objections to the High Authority — perhaps successfully.

(b). The statements of account do not satisfy the requirements for decisions of the High Authority laid down by Decision No 22/60. Admittedly the Court has not previously been given the opportunity of determining the scope of this Decision. But the great majority of undertakings which received orders for payment, interpreting the legal situation correctly, acted as the High Authority had expected, that is to say that they either paid or raised objections, which are at present being dealt with in administrative proceedings.

(c). The statements of account cannot of themselves be made the subject of enforcement proceedings. That being so, it is inconceivable that they should nevertheless have the character of decisions, since the only possible content of such a decision would be an obligation to pay — which is always enforceable under the first paragraph of Article 92 of the ECSC Treaty.

(d). For the rest, the defendant refers to the letter from Mr Hellwig of 6 May 1963 (cf. 1 A 5 above).

(e). If the defendant had issued a formal decision immediately in each case, it would be setting in motion unnecessarily a cumbersome procedure contrary to the principles of good administration.

(f). The fact that the orders for payment are based on Decision No 7/63 means nothing. For general decisions to be implemented, it is not necessary to issue individual decisions automatically; rather these are only made when no agreement appears possible between the administration and the party concerned.

(g). Nor is the fact that the contested letters give a time-limit for payment of any significance. It can be explained by reference to the rules laid down in Decision No 7/61 (Official Journal of the European Communities, p. 653/61), according to which interest is not charged on arrears, but the amount due increases automatically according to the length of time which elapses before payment is made. That is why the amounts due cannot be fixed absolutely, but only by reference to a given date.

(h). Were the orders for payment to be regarded as decisions, the consequences would be prejudicial to all the parties concerned. Since the demands naturally do not contain a statement of reasons, they would have to be declared invalid without further examination of the merits on the ground that they infringed an essential procedural requirement, with the result that the defendant would thenceforth be obliged to issue a properly-reasoned decision. The High Authority would thus be compelled to do precisely what, in accordance with its view that the order for payment does not amount to a decision, it would do anyway, the only difference being that in such an event unnecessary delay would be caused. On the other hand, the view advanced by the defendant makes it possible to conclude the administrative procedure without a decision and without initiating new proceedings. This would not entail any disadvantage to the undertakings, since they could not in any case be compelled to make payment until the adoption by the defendant of an enforceable decision which could lawfully be contested in an application to the Court.

2. Costs

(a). Article 6 of Decision No 7/63, taken in conjunction with the contested letters of 8 April 1963 which quote that Decision, creates the impression that an individual decision is concerned. This Article states that a complete statement of account shall be sent to every undertaking liable to contribute. Subsequently the applicants received other statements of account which failed to take into consideration the previous exemptions. It is therefore understandable that the applicants should conclude that Decision No 7/63 might contain a revocation of these exemptions.

(b). As for the actual letters, both their content and the surrounding circumstances created the impression that a decision was concerned:

IV —. Procedure

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Coal and Steel Community, especially Articles 14, 15 and 33; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Communitv; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 91; THE COURT hereby:

1 Dismisses the applications as being inadmissible;

2 Orders the High Authority of the European Coal and Steel Community to bear its own costs and three-quarters of the costs of the applicants and orders the applicants to bear one-quarter of their own costs.