Opinion of Mr advocate-general Gand

Mr President,

Members of the Court,

The company Acciaiere e Ferriere di Solbiate was incorporated in 1955 by Emilio Bertone, the head of the Metalsider undertaking, and by his son Guido, who owned an interest in this undertaking. On the incorporation of the company, Metalsider was trading in metal products and ferrous scrap.

Solbiate states that it began its activities in the field of iron and steel in February 1957. At all events, its first ferrous scrap declarations were made during this year: it declared its initial stocks at 1 February 1957 to be 1300 metric tons and its consumption for the period February 1957 to November 19587866 metric tons. A provisional assessment for this period resulted in a credit of 4090686 lire in favour of Solbiate, but subsequent investigations revealed the company to have carried on activities in the field of iron and steel even before February 1957 and determined its consumption of ferrous scrap at 2434 metric tons for the period from June 1956 to January 1957 and at 13399 metric tons for the period from February 1957 to November 1958. A fresh assessment was notified to the company and then corrected on subsequent investigation. Finally, the High Authority fixed the consumption for these two periods at 1475 and 9102 metric tons respectively. On 19 May 1965 the High Authority made two individual decisions, one of which fixed the total assessable metric tonnage at 10577 metric tons whilst the other called upon the company to pay the sum of 5882957 lire.

These are the two decisions of which Solbiate requests the annulment in an application which contains a single conclusion and is based on one submission, that is, the infringement of Articles 3, 4, 5 and 6 of Decision No 2/59. At first the company had also requested you to annul, as far as is necessary, general Decisions Nos 2/57 and 7/63 and to refer the matter back to the High Authority for it to repay the sums overpaid with the relevant interest and to award damages. In support of its request for annulment, it had also raised the question whether the assessment notified to it was provisional or final and concluded that, if it were final, it was irregular in that it was based on a general measure of a provisional nature. In the opinion of the applicant, such an irregularity constitued a misuse of powers.

Following objections of inadmissibility made against certain points by the High Authority and the information provided by that body in respect of certain others, the applicant company restricted its criticism to the two related individual decisions of 19 May 1965 and relied solely on the infringement of Decision No 2/57.

The dispute is now clearly defined. The High Authority has treated as bought scrap the stocks which Solbiate had in its possession when it commenced its business activities.

The company maintained, first, that the equalization scheme only takes into consideration transfers of ownership made in consideration for a price, there being excluded all transactions which give rise to no payment and result solely in a transfer of ownership between two companies having the same members. This is all the more so when a new undertaking formed by the same family group succeeds that which was formerly the owner and which is ceasing to exist. More precisely, according to the applicant, in 1955 the two partners in Metalsider incorporated the Solbiate company and gave up their previous dealings in ferrous scrap to begin fresh activities in the field of iron and steel. It is this same family group which began by using stocks already available at Metalsider.

On a more legal level, the applicant claims to deduce from Article 4 of Decision No 2/57 that stocks of ferrous scrap in existence at the beginning of the first accounting period should not be taken into consideration in assessing the contribution payable. If those undertakings already in existence on the entry into force of the equalization scheme were not bound to pay contributions as regards the consumption of ferrous scrap derived from existing stocks, then, short of infringing the principle of non-discrimination, those undertakings which commenced their activities after the creation of the scheme should also not be bound to pay contributions as regards the stocks they had available when the furnaces were first charged.

The applicant's arguments are based on these three ideas, which do not require extensive treatment.

I am therefore of the opinion that

1 Translated from the French.