JUDGMENT OF 14. 6. 1967 — CASE 26/66 NEDERLANDSCHE HOOGOVENS v HIGH AUTHORITY

In Case 26/66

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

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

II — Conclusions of the parties

III — Submissions and arguments of the parties

A — Admissibility

B — The substance of the case

1. The submission of infringement of an essential procedural requirement

2. The submission of infringement of the basic decisions of the equalization scheme

3. The submission of infringement of Articles 3 (b), (c), (d), 4 (b) and 5 of the Treaty

C — Costs

IV — Procedure

Grounds of judgment

A — Admissibility

B — Substance

1. The submission of infringement of an essential procedural requirement

2. The complaints of infringement of the basic decisions

3. The complaint of discrimination

C — Costs

I —. Summary of the facts

II —. Conclusions of the parties

III —. Submissions and arguments of the parties

A —. Admissibility

B —. The substance of the case

1. The submission of infringement of an essential procedural requirement

(a). the disputed scrap was group scrap;

(b). between Hoogovens and Breedband there was a relationship with regard to rolling steel on contract on which the foregoing reason is also based.

2. The submission of infringement of the basic decisions of the equalization scheme

(a). The definition of own resources refers essentially to ferrous scrap which is the actual product of the undertaking's own activity, the result of its own work, as has been stated in the judgment in the Esperance-Longdoz case.

(b). The importance of technical and economic factors characterizing the position of the ferrous scrap is not lessened by the existence of contractual relations governed by private law, to which the case-law of the Court denies any conclusive value in the context of the equalization scheme.

(c). In any case, even on the supposition that relationships under private law could in this case be a conclusive factor, it does not therefore mean that the disputed scrap is bought scrap. In fact this scrap cannot constitute the subject-matter of legal relationships and thus of measures disposing of it before it has been produced. However, once it was produced, it became the property of Hoogovens and remained so until consumed by that undertaking. Consequently, the statement in the contested decision that the disputed scrap was transferred to Hoogovens contradicts both facts and law.

(a). The internal economic function of the re-use of ferrous scrap in the manufacturing cycle is not the sole factor to be borne in mind in deciding whether the ferrous scrap is own resources or bought scrap. The Court based the ratio legis for the exemption of ferrous scrap on the need to avoid fresh equalization contributions on ferrous scrap derived from other arisings, for which the same consumer has previously paid the contribution.

(b). The fact that the Court has ruled that relationships governed by private law are not such as to modify the actual situation with regard to ferrous scrap does not mean that no relationships under private law are of any importance in ascertaining the actual situation with regard to ferrous scrap. When it ruled that in certain cases relationships under private law have no conclusive validity, the Court only intended to prevent the undertakings liable for equalization from evading their obligations by legal subterfuges.

(c). The fact that the disputed scrap did not exist when the rotting contracts were signed does not preclude it from forming the subject of a legal transaction disposing of something which has yet to come into being.

3. The submission of infringement of Articles 3 (b), (c), (d), 4 (b) and 5 of the Treaty

C —. Costs

IV —. Procedure

A —. Admissibility

B —. Substance

1. The submission of infringement of an essential procedural requirement

2. The complaints of infringement of the basic decisions

3. The complaint of discrimination

C —. 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 Articles 3, 4, 5, 15, 33 and 53 of the Treaty establishing the European Coal and Steel Community; Having regard to the decisions of the High Authority concerning the ferrous scrap equalization scheme; 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, especially Article 69 (2) and (3); THE COURT hereby :

1 Dismisses Application 26/66 as unfounded;

2 Orders the applicant to bear two-thirds of the costs of the proceedings and the defendant to bear one-third thereof.