JUDGMENT OF 2. 3. 1967 — JOINED CASES 25 AND 26/65 SIMET AND FERAM v HIGH AUTHORITY
In Joined Cases
THE COURT composed of: Ch. L. Hammes, President (Rapporteur), A Trabucchi, President of Chamber, A. M. Dormer, R. Lecourt and W. Strauß, Judges, Advocate-General: J. Gand Registrar: A. Van Houtte
gives the following
JUDGMENT
JUDGMENT
Issues of fact and of law
I — Facts
1. Case 25/65 (Simet)
2. Case 26/65 (Feram)
II — Conclusions of the parties
III — Procedure
IV — Submissions and arguments of the parties
A — Admissibility
1. The inadmissibility of both applications on the ground of their being out of time
2. Inadmissibility of Application 25/65 (Simet) on the ground of disparity between the submissions and the subject-matter of the dispute
3. Inadmissibility of the submissions directed against general Decision No 7/63
B — The substance of the case
1. The individual decisions
Case 25/65 (Simet)
Case 26/65 (Feram)
2. General Decision No 7/63
Grounds of judgment
I — Admissibility
1. The objection that the applications are out of time
2. The objection based on the discrepancy between the submissions and the subject-matter of Application 25/26 (Simet)
3. The objection relating to the submissions directed against general Decision No 7/63
II — The substance
The justification for resorting to an estimated assessment
III — Costs
I —. Facts
1. Case 25/65 (Simet)
2. Case 26/65 (Feram)
II —. Conclusions of the parties
1. The applicant Simet claims that the Count should, having dismissed any request, objection and allegation to the contrary:
2. The applicant Feram claims that the Court should, having dismissed any request, objection or allegation to the contrary:
3. The defendant High Authority in its statements of defence contends that the Court should dismiss the applications and order the applicants to bear the costs. In its rejoinder in Case 25/65 (Simet) it contends that the Court should:
III —. Procedure
IV —. Submissions and arguments of the parties
A —. Admissibility
1. The inadmissibility of both applications on the ground of their being out of time
2. Inadmissibility of Application 25/65 (Simet) on the ground of disparity between the submissions and the subject-matter of the dispute
3. Inadmissibility of the submissions directed against general Decision No 7/63
B —. The substance of the case
1. The individual decisions
(a). The applicant remarks that in its recitals the decision fixing its tonnage of ferrous scrap justifies resorting to an estimated assessment on the ground that Simet failed to produce a number of accounting documents, namely:
(b). The applicant observes that for years it has disputed the High Authority's statements of account and objected to their arbitrary character.
(c). The applicant disputes the relevance of the coefficient (ratio of 850 kWh to each metric ton of steel produced) on which the High Authority based its estimated assessment. It maintains that certain members of the committee of experts consulted by the High Authority were by no means in agreement with this ratio; moreover, other experts suggested different criteria.
(d). The applicant maintains that, contrary to the High Authority's assertions, the type of furnace which it uses does not have a capacity of between 6 and 7 metric tons, but of 5 metric tons at most. In support of this statement, it produces, as a schedule to its reply, the invoice relating to the purchase of the furnace which shows a capacity of 4 to 5 metric tons.
(e). The applicant maintains that the ratio between the specific charge of ferrous scrap and steel produced, determined by the High Authority at 1051 kg per metric ton, should not be assessed at more than 950 kg per metric ton.
(f). The applicant maintains that the general decisions on the equalization scheme make contributions entirely dependent upon the consumption of bought ferrous scrap. The High Authority therefore had no right to impose upon it contributions for the period from 1 June 1956 to 31 January 1957 during which Simet bought no ferrous scrap and engaged in no production activity.
(g). The applicant maintains that the High Authority, in exercising its powers under Article 47 of the Treaty, must respect certain guarantees to the benefit of which the undertakings are entitled. In particular, it is not entitled to rely on checks the results of which were never recorded in minutes and of which the applicant is therefore unaware.
(h). The applicant says that, even accepting the legality of using the coefficient kWh/t, the High Authority should have taken account:
2. General Decision No 7/63
(a). Both applicants maintain that general Decision No 7/63 infringed an essential procedural requirement, since the High Authority, before adopting it, failed to obtain the unanimous assent of the Council as it is required to do by Article 53 of the Treaty.
(b). The applicants point out that when the Council issued its opinion on general Decision No 14/55 setting up the equalization scheme it had expressly recommended to the High Authority that it should only increase the equalization contributions for very serious reasons and that it should avoid any undue increase in the consumption of ferrous scrap.
(c). The applicants put forward the following further arguments in support of the submission of misuse of powers:
(d). The applicants complain that the High Authority kept from the undertakings the actual amount of the equalization rate. In particular, Decision No 7/63, a measure designed to settle the accounts between a certain number of undertakings subject to the scheme, should have given each undertaking an accurate account of its debits or credits and enabled it to ascertain the debits or credits of the other undertakings as well as the method of calculation used to arrive at these figures.
(e). According to the applicants, since Decision No 7/63, on the High Authority's own admission, does not create any obligation to pay on the part of undertakings, it cannot serve as a basis for the contested individual decisions.
I —. Admissibility
1. The objection that the applications are out of time
2. The objection based on the discrepancy between the submissions and the subject-matter of Application 25/26 (Simet)
3. The objection relating to the submissions directed against general Decision No 7/63
(a). Under the second paragraph of Article 33 of the ECSC Treaty the only ground which an undertaking is entitled to plead in support of an application for the annulment of a general decision of the High Authority is misuse of powers. It cannot plead the four grounds for annulment set forth in the first paragraph of Article 33 unless it claims, by way of an objection, that the general decision on which the contested individual decision is based is illegal. The defendant maintains that in the present case the two applicants pleaded the four grounds in support of an application which sought no more than annulment of general Decision No 7/63.
(b). The defendant argues, as regards Case 25/65 (Simet), that its general Decision No 7/63 serves as a basis only for the individual decision of 11 February 1965 imposing the obligation to pay. The application, however, contains no submission or argument against the latter decision. Thus there is lacking in the present case that direct legal connexion between the contested individual measure and the general decision on which it is founded in the absence of which the illegality of the general decision cannot be pleaded.
II —. The substance
III —. Costs
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 5, 14, 15, 17, 33, 36, 47, 53, 78, 80 and 92; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities; THE COURT hereby:
I Annuls the two individual decisions of the High Authority dated 11 February 1965 and notified to the Società Industriale Metallurgica di Napoli (Simet) on 20 March 1965;
2 Orders the High Authority of the European Coal and Steel Community to pay the costs of the proceedings in Case 25/65;
3 Dismisses the application of the company Acciaierie e Ferriere di Roma (Feram);
4 Orders the company of Acciaierie e Ferriere di Roma (Feram) to pay the costs of the proceedings in Case 26/65.