JUDGMENT OF 17.7. 1959 — JOINED CASES 36 TO 38, 40 AND 41/58 SIMET v HIGH AUTHORITY

In Joined Cases,

THE COURT composed of: A. M. Donner, President, O. Riese and J. Rueff (Rapporteur), Presidents of Chambers, L. Delvaux, Ch. L. Hammes, R. Rossi and N. Catalano, Judges, Advocate-General: K. Roemer Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — History and subject-matter of the dispute

A. Origins to the judgments in Cases 9/56 and 10/56

In 1953, as supplies of ferrous scrap were insufficient, the High Authority proceeded to allocate them for a transitional period.

Prior to 26 March 1954, the High Authority had established a system of maximum prices.

That system was then abolished by Decision No 22/54, which introduced equalization machinery, the functioning of which was entrusted to the Office Commun des Consommateurs de Ferraille (OCCF) (Joint Bureau of Ferrous Scrap Consumers) and to the Caisse de Péréquation des Ferailles Importées (CPFI) (Imported Ferrous Scrap Equalization Fund). Those two organizations were generally known as ‘the Brussels agencies’.

On 26 March 1955, the High Authority adopted Decision No 14/55 which maintained the said machinery in being for a further year, while making a number of amendments to it.

On 20 July 1955, the system thus organized was supplemented by Decision No 26/55 ‘on detailed rules for implementing the financial arrangements designed to yield savings of ferrous scrap through the more efficient use of pig iron’.

The system was successively extended by Decisions Nos 24/56 and 31/56.

On 26 January 1957, Decision No 2/57 abolished that system, and, with the help of the same machinery, made provision for the equalization of the prices of imported and internal ferrous scrap and for achieving savings in ferrous scrap.

During 1954, 1955 and 1956, ‘Campsider’ (the office responsible for representing the Brussels agencies in Italy) periodically sent statements of account to the Meroni undertakings (registered offices at Erba and Milan respectively) from which it appeared that they owed a certain sum to the CPFI in Brussels.

Since the answers of those undertakings did not satify the High Authority, it adopted two decisions on 24 October 1956 in respect of them, according to which those undertakings were required to pay the CPFI Lit 23174181 and Lit 54819656 respectively. By applications dated 12 December 1956, and entered under Nos 1365 and 1366 respectively in the Registry, the undertakings Meroni, Erba, and Meroni, Milan, claimed that the Court of Justice of the European Coal and Steel Community should annul those individual decisions.

The Court delivered its two judgments on 13 June 1958, in which it declared that the applications were admissible and annulled the contested decisions.

B. From the judgments in Cases 9/56 and 10/56 to Applications Nos 36, 37, 38, 40 and 41/58.

The High Authority drew the consequences of the judgments in Cases 9/56 and 10/56 and, on 24 July 1958, adopted Decision No 13/58 ‘on the management of the financial arrangements instituted by Decisions Nos 22/54, 14/55, 26/55, 3/56 and 2/57, published in the Journal Officiel No 10 of 30 July 1958’.

The High Authority:

‘… Having regard to the fact that in order to rectify the present situation it is necessary: for the powers delegated to the Equalization Fund and to the Joint Bureau to revert to the High Authority, for the High Authority to be in a position to reconsider the decisions adopted by the Equalization Fund and the Joint Bureau, in order either to confirm or to overrule those decisions, for the High Authority to be empowered to delegate the task of enforcement to the Equalization Fund or to any other appropriate body; …’

revoked the powers delegated to the Equalization Fund and the Joint Bureau, reserving the right to delegate the ‘task of enforcement’ to the Fund or to ‘any other appropriate body’.

The High Authority also reserved the right to:

‘overrule in so far as necessary all deliberations of the Equalization Fund and of the Joint Bureau’

and to

‘adopt such measures as may be necessary where any such deliberation is overruled’.

Finally, that decision provided:

‘Where an undertaking fails to make the returns necessary for calculating the contributions, the High Authority shall have power to make an estimated assessment; the High Authority shall also have power to rectify on its own initiative returns in respect of which no supporting evidence is forthcoming’.

Five Italian undertakings took the view that Decision No 13/58 was in reality incompatible with the aforesaid judgments. They therefore lodged five almost identical applications for the annulment of the said decision before the Court of Justice.

The first three of those applications (Simet, Meroni, Erba, and Meroni, Milan), dated 3 September, were entered in the registry on 5 September, and the other two (Fer.Ro and Acciaierie San Michele), dated 16 September, were only entered in the Registry on 22 September.

The High Authority, taking the view that ‘in the new applications … it is clearly apparent that there is one sole purpose behind all these criticisms: to evade payment of the equalization contributions’ and putting a different interpretation on the text of the judgments in Cases 9/56 and 10/56, opposed all the applicants' conclusions.

II — Procedure

The procedure followed the normal course.

The conclusions of the five applications are identical and claim

‘while reserving the right to submit further documents, to call for any measure of inquiry and to put forward any further submission considered to have some favourable bearing on the case, that the Court of Justice of the European Coal and Steel Community, any claim, defence or allegation to the contrary notwithstanding, should: (a) Declare the present application admissible; (b) Annul Decision No 13/58, deliberated upon and adopted by the High Authority during its meeting on 24 July 1958 and published in the Journal Officiel (first year No 10) of 30 July 1958, on the management of the financial arrangements instituted by Decisions Nos 22/54, 14/55, 26/55, 3/56 and 2/57; (c) Order the defendant to bear the costs.’

By letter dated 17 April 1959, amended on 23 April 1959, the Registrar, in application of an order of the President of the Court dated 15 April 1959, requested the applicants to inform the Court, before the commencement of the oral procedure set down for 8 May 1959, as to the way in which and for what period the applicants supplied information on the ferrous scrap subject to the levy used by them.

By letters entered in the Registry on 6 May, the parties supplied the information requested.

At the hearing on 8 May 1959, the President of the Court ordered that the five applications in question be joined, and the report of the Judge-Rapporteur and the oral arguments of the parties were heard.

At the hearing on 23 May, the Advocate-General submitted his opinion to the effect that the applications in Cases 36, 37 and 38/58 should be dismissed as unfounded, and that the applications in Cases 40 and 41/58 should be declared inadmissible.

III — Submissions and arguments of the parties

The submissions and arguments of the parties may be summarized as follows:

A — Admissibility

(a) Were Applications Nos 40 and 41/58 lodged within due time?

The defendant raises an objection of inadmissibility against Applications Nos 40 and 41/58. According to the defendant, these applications were lodged at the Registry three days after the expiry of the period for bringing an application:

‘Since this is an application against a general decision, the period of 30 days laid down by Article 33 of the Treaty, and extended in the present case by five days (by virtue of the provisions of Article 84 (2) of the Rules of Procedure of the Court, applicable to the applicant undertaking as an Italian undertaking) starts to run on the fifteenth day after the publication of the decision in the Journal Officiel (Article 84(1) of the Rules of Procedure of the Court), that is to say, from 14 August 1958. By adding thereto the period of time allowed, namely 35 days, one finds that the date of expiry is 19 September, and therefore the application lodged on 22 September is no longer admissible’.

The applicants reply that the period expired on 20 and not 18 September because dies a quo non computatur. The applications instituting proceedings were posted on 19 September, which suffices because, according to the law of the six Member States, ‘a measure shall be deemed to be notified merely by putting it into the post’.

The High Authority argues that the application is barred by lapse of time because the second paragraph of Article 33 of the Rules of Procedure of the Court states that the pleadings ‘shall be lodged with the Registry within the prescribed period’. In addition, the applicants' assertion on the solution brought in the Member States to the problem of notification is only an unfounded assertion.

(b) May the applicants be heard to raise the four grounds for annulment described in Article 33 of the Treaty?

The answer to this question depends on the nature of Decision No 13/58. As regards this, the parties advance a number of arguments accompanied by long explanations. They may be summarized as follows:

1) The High Authority points out that: It also points out that the admission of ‘misuse of powers affecting them’ must be supported by ‘facts’ in evidence thereof. Yet no such facts are mentioned in the application.

‘according to the clear and continuous case-law of the Court, general decisions of the High Authority can only be contested by undertakings in the Member States on the sole ground of misuse of powers affecting them’.

2) The applicants defend six principal points: Their application is not based on Article 33, but on Article 34 of the Treaty, because its purpose is to ensure that the judgments in Cases 9/56 and 10/56 are respected. It is thus an autonomous application which is not subject to the restrictions contained in Article 33. The applicants have an interest in contesting a general decision which is to be the source of individual decisions concerning them. It appears from a study of comparative law that interested parties may contest regulations and not merely their individual application. Decision No 13/58 is general only in part, because in so far as it makes provision for: the Meroni undertakings and the undertakings which are ‘in analogous situations’ are, according to the judgments in Cases 9/56 and 10/56, faced with an individual decision indirectly concerning them. As soon as an examination of misuse of powers is accepted, it is useful to examine the other grounds as well. Furthermore, the wording of the second paragraph of Article 33 proves that as regards the admissibility of an application it suffices to allege a misuse of powers, without giving supporting‘reasons’ completely substantiating the allegation. If the interpretation of Article 33 given by the High Authority were to be accepted, there would be an unacceptable contradiction between Article 33 and Article 36, for the latter article accepts as a defence a ground which would be inadmissible by way of an application. The recent treaties establishing the European Economic Community and Euratom should influence the Court towards putting a liberal interpretation on the legal protection of the undertakings of the ECSC.

‘reconsidering the decisions adopted by the Equalization Fund and the Joint Bureau so as either to confirm them or to overrule them’,

3) The High Authority rejects all these arguments: It denies that Decision No 13/58 is in any way individual, even in part. The applicants have asserted this without putting forward any evidence in support of the assertion. The applicants have made arbitrary use of Article 34. It is only an application for damages which can be based on that article. The applicants do not prove they have an interest in bringing proceedings and ‘come forward, so to speak, as the animator(s) of some kind of popular action …’. The High Authority points out that in the judgments in Case 9/56 (Impresa Meroni & C, Industrie Metallurgiche SpA v High Authority) and Case 10/56, (Impresa Meroni & C, Industrie Metallurgiche, Societá in Accomandita Semplice v High Authority) the Court stated that: General Decision No 13/58, which is being contested, was not adopted in application of Article 34, but only in order to create a situation complying with the requirements resulting from the judgments of the Court. The applicants' argument based on a comparison between Articles 33 and 36 of the Treaty fails to recognize the nature of the ‘objection of illegality’. The comparison is irrelevant. The High Authority puts a wholly opposite interpretation on the articles of the new treaties quoted by the applicants in support of their line of argument:

‘the annulment of an individual decision as a result of the irregularity of the general decisions on which it is based only affects the effects of the general decision in so far as those effects take concrete shape in the annulled individual decision’.

‘A reading of Article 173 of the Treaty establishing the European Economic Community and of Article 146 of the Treaty establishing Euratom does not reveal anything other than that the High Contracting Parties intended to exclude the possibility for individuals to bring an action against general decisions.’

B — Substance

(a) Misuse of powers

1. Arguments of the applicants

The High Authority is committing a misuse of powers in seeking to camouflage as a general measure special provisions intended to strike exclusively at certain undertakings. The High Authority is committing a misuse of powers in knowingly adopting a vitiated decision, instead of abstaining from so doing, and in adopting it with the intention of forcing any future applicants to base their application on the third paragraph of Article 33, which does not permit the use of the four grounds of action which are authorized by Article 35 in case of failure to act.

The High Authority is committing a misuse of powers in confirming, while purporting to apply Article 34, the void decisions adopted in application of the irregular Decision No 14/55.

The High Authority is committing a misuse of powers in confirming, with the help of a new decision, methods which have been held unlawful. Estimated assessments have been held to be unlawful.

The High Authority is committing a misuse of powers in using illegal methods in order to put equalization into effect, despite the fact that the Treaty itself, in Article 47, makes provision for a system of fines and periodic penalty payments intended to force defaulters to comply. In acting thus, the High Authority wishes to avoid the possibility of review.

2. Arguments of the defendant

In order to apply General Decision No 13/58, the High Authority has to adopt individual measures, against which any undertakings interested can rely on the four grounds set out in the first paragraph of Article 33. This answers the first two arguments of the applicants.

General Decision No 13/58 revoked the ‘delegation of powers’ which the Court had declared illegal. The deliberations of the Brussels agencies, ‘confirmed’ by a ‘new measure’ of the High Authority, will derive their validity from the new measure.

‘The Court's criticism did not go to the substance itself of the deliberations of the Brussels agencies but to the way in which those deliberations were imposed on the undertakings, and henceforward there is no reason why the substance of those deliberations should not be made the contents of an implementing measure in good legal form’.

Estimated assessments were not condemned and a legal basis for them is only wanting as regards the delegation of powers to the Brussels agencies.

Estimated assessments render it possible to apply the equalization system in extreme cases. No system of fines (Article 47 of the Treaty) can replace the procedure necessary for equalization.

The High Authority could only be accused of acting arbitrarily in making an estimated assessment in respect of particular cases.

(b) Infringement of the Treaty

In their applications, the applicants simply stated that in their view

‘the High Authority, in the contested decision, had infringed Articles 3, 5, 8, 15, 34 and 47 of the Treaty’.

The applicants put forward further information only in respect of some of these heads of infringement of the Treaty.

However, the High Authority adopted Decision No 13/58. That decision infringes Article 34 of the Treaty in that:

i) it again is silent, in disregard of Articles 5 and 47 of the Treaty, as to the reasons for and the details of its action as regards equalization;

ii) it reiterates methods of valuation and of assessment ‘lacking any legal basis’ according to the judgments in Cases 9/56 and 10/56;

iii) there is reserved therein the power to ‘confirm’ the deliberations and decisions of the Brussels agencies ‘which the Court has so severely condemned in its judgments of 13 June 1958’.

The High Authority replies:

i) The annulment only affected individual decisions. As for the general decision, the Court did no more than state that it was illegal.

‘That intimation does not connote the legal obligation, contained in Article 34, to adopt a corresponding new general decision.’

ii) Decision No 13/58 did not:

‘confirm the deliberations of the Brussels agencies. In reality, the decision in question merely gives the High Authority power to overrule or to confirm those deliberations’.

iii) The applicants have not properly understood Decision No 13/58.

‘In effect, in the thinking of the authors of Decision No 13/58 it was clear that confirming or overruling depended on finding that the defects of form, at which the criticism of the Court had been directed, were or were not present in the previous procedure.’

According to the applicants, the High Authority has infringed Article 8 of the Treaty in having recourse:

‘to extraordinary, inopportune and dangerous measures, such as estimated assessments, whereas Community law has laid down appropriate and efficient rules in order that the right to information, to which the High Authority is entitled, shall be effectively available, by granting the High Authority the power to impose very heavy fines and severe periodic penalty payments (5 % of the average daily turnover per day of delay) on defaulting undertakings’.

To this the High Authority replies that:

‘the assertion is gratuitous and stands in contradiction to the fact that the basis of the system of equalization has been recognized on a number of occasions as being legitimate in nature’.

(c) Failure to state reasons — retroactive effect

The applicants are of the opinion that inadequate reasons are given for Decision No 13/58, because it is not clear whether the High Authority has intended to give it retroactive effect. Article 2 of the decision, according to the reasons given for it, only grants the power to make estimated assessments in cases to arise in the future.

In the reply, the applicants also stress the danger of retroactive effect, especially in a system where no parliamentary safeguards exist.

The High Authority replies that there cannot be any doubt: Decision No 13/58 is retroactive, because ‘its stated purpose is to make the general decisions accord with the judgments of the Court of Justice, in so far as the Court had acknowledged their legality’.

Furthermore, ‘the power to make estimated assessments is a power granted ex nunc and equally applies to past cases’ and ‘in view of the fact that the judgments of the Court call for a modification of the system, that modification must necessarily be of a retroactive nature’.

(d) Infringement of an essential procedural requirement

This ground is put forward in the pleadings under the heading ‘Infringement of the law’. Before adopting Decision No 13/58, the High Authority did not consult the Consultative Committee, because all that was involved was a modification to the existing procedure, itself created under Article 53(b) of the Treaty, which does not require that the said Committee be consulted.

The applicants are of the opinion that, in view of the importance of the decision to be adopted, the Consultative Committee ought to have been consulted, more particularly as the High Authority has been in the practice of doing so in similar cases.

Grounds of judgment

A — Admissibility

1. Were the applications lodged within the period prescribed by the Treaty and by the Rules of Procedure?

Applications Nos 36/58, 37/58, 38/58, 40/58 and 41/58 are identical, except as regards the date on which they were entered in the Register at the Registry.

Those applications seek the annulment of a decision of the High Authority of 24 July 1958, published in the Journal Officiel of 30 July 1958.

The third paragraph of Article 33 of the Treaty provides that applications shall be instituted within one month of the publication of the decision adopted.

Under Article 85 (1) of the Rules of Procedure of the Court of Justice of the European Coal and Steel Community, which remains applicable to the applications mentioned above in accordance with Article 111 of the Rules of Procedure of the Court of Justice of the European Communities, the period prescribed for instituting applications against decisions of the High Authority starts to run on the fifteenth day following the date of publication of the decision in the Official Journal of the European Communities.

Under Article 85 (2), the period is extended, on account of distance, by five days for parties residing in Italy.

Article 33 (3) of the Rules of Procedure of the Court provides that ‘as regards procedural time limits, the date of lodging at the Registry shall alone be taken into consideration’.

Applications Nos 40/58 and 41/58 were lodged at the Registry on 22 September 1958.

That date is subsequent to 18 September, the expiry date of the period resulting from the abovementioned articles.

In the reply, the applicants claim that ‘in order to establish the date on which a measure has been notified by post, the date of posting should alone be taken into consideration’.

The applicants' claim is in contradiction with the wording of Article 33 (3) of the Rules of Procedure of the Court.

If the applicants' claim were accepted, the extensions for distance provided for by Article 85 (2) of the Rules of Procedure of the Court would have no justification for, as regards lodging by post, all parties are in identical circumstances, whatever the distance may be which separates them from the Court.

For these reasons, it is established that Applications Nos 40/58 and 41/58 were lodged at the Registry after the expiry of the period prescribed by the Treaty and by the Rules of Procedure of the Court for bringing applications against decisions of the High Authority.

Contrary to the claim made by the applicants during the oral procedure, Applications Nos 40/58 and 41/58 cannot be considered as applications to intervene adad juvandum in Cases Nos 36/58, 37/58 and 38/58, in application of Article 34 of the Statute of the Court, as the conditions laid down by Article 71 of the Rules of Procedure of the Court are not satisfied.

For these various reasons, Applications Nos 40/58 and 41/58 are inadmissible.

Applications Nos 36/58, 37/58 and 38/58, lodged at the Registry on 5 September, were brought within the period prescribed by the Treaty and by the Rules of Procedure of the Court.

2. Is Decision No 13/58 general or individual in character?

Under the second paragraph of Article 33 of the; Treaty, undertakings may institute proceedings against decisions concerning them which are individual in character or against general decisions which they consider to involve a misuse of powers affecting them.

It is necessary to examine whether Decision No 13/58, at issue in the applications, is a decision concerning the applicants which is individual in character or a general decision.

The principal purpose of Decision No 13/58 is to correct irregularities found by the judgments in Cases 9/56 and 10/56 in Decision No 14/55 of 26 March 1955.

As the Court found in the judgment in Meroni v High Authority (9/56), Decision No 14/55 is a general decision.

Decision No 13/58, in so far as it permits a modification of Decision No 14/55, is clothed with the general character of the latter.

The general character of Decision No 13/58 results directly from its content, which establishes a series of legislative principles, lays down in abstract form the circumstances in which they are to apply and specifies the legal consequences flowing from them.

Decision No 13/58 contains general rules which, like the former general decisions on the equalization machinery which those rules are to alter, may be of importance in the same way for an indeterminate number of cases.

Those rules are to be applicable to all persons finding themselves in the circumstances specified for the application of such rules.

Therefore the applicants' assertion that Decision No 13/58, in so far as it authorizes the High Authority to reconsider decisions adopted by the Equalization Fund and the Joint Bureau, in order either to confirm them or to overrule them, ‘individually and directly concerns a small number of readily identifiable steel undertakings of the Community’ cannot be accepted.

For those reasons Decision No 13/58 is a general decision for the purposes of Article 33 of the Treaty.

3. Are Applications Nos 36/58, 37/58 and 38/58 against General Decision No 13/58 admissible?

Since Decision No 13/58 is a general decision, the applicants, according to Article 33 of the Treaty, may only institute proceedings against that decision if they consider it to involve a misuse of powers affecting them.

The applicants have claimed that Decision No 13/58 should be annulled for infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers affecting them.

Under the second paragraph of Article 33 of the Treaty, the latter submission alone may be raised.

B — Substance

Does Decision No 13/58 involve a misuse of powers?

The applicants raise the question whether:

‘the intention behind Decision No 13/58 was to dress with the trappings of a general decision an individual decision striking exclusively at undertakings which had been unable to import ferrous scrap from third countries and which, therefore, had not been able to set off what they owed for ferrous scrap bought within the Community against grants for imported scrap, and thus found themselves faced with bills for astronomical sums compared with their size and turnover’.

Contrary to the applicants' allegation, Decision No. 13/58 cannot be considered as having that purpose, because it was directed at establishing a legal basis for the financial arrangements with the judgments in Cases 9/56 and 10/56 of 13 June 1958 had found fault.

The applicants allege that in adopting Decision No 13/58 the High Authority intended to render it impossible for them ‘to bring before the Court an action for failure to act under Article 35’ and thus to oblige them ‘to contest the decision (adopted by way of the trappings of a general decision) by reference to the ground of illegality which is the hardest to prove, namely misuse of powers affecting them’.

In putting forward that complaint, the applicants again fail to recognize the above-mentioned purpose of Decision No 13/58.

Moreover, the earlier general decisions could only be rectified so as to accord with the principles stated by the Court in its judgments in Cases 9/56 and 10/56 by a general decision adopted in accordance with the procedure laid down in Article 53 (b) of the Treaty.

The applicants assert that the misuse of powers ‘is evident’ when the High Authority declares:

‘that in order to rectify the present situation it is necessary for… the High Authority to be in a position to reconsider the decisions adopted by the Equalization Fund and the Joint Bureau in order either to confirm or to overrule those decisions …’

By that provision the High Authority:

‘of its own will or because of an erroneous interpretation of Article 34 of the Treaty allows itself to be diverted towards other purposes which certainly have nothing to do with “the necessary steps to comply with the judgment”. For how would it be possible for the High Authority to confirm the decisions adopted by the CPFI and by the OCCF, which have been annulled by the Court of Justice on the grounds, first, that they enforced an obligation which had arisen in application of General Decision No 14/55, which is irregular, and, secondly, that they enforced obligations which had arisen under a procedure for which there was no legal basis.’

In that complaint, the applicants fail to recognize the actual scope of the judgments in Cases 9/56 and 10/56 which were not concerned with the substance of the deliberations of the Brussels agencies, but with the circumstances in which the decisions which followed therefrom had been applied to the undertakings.

The purpose of Decision No 13/58 is to make the financial arrangements established by Decisions Nos 22/54, 14/55, 26/55, 3/56 and 2/57 compatible with the requirements of the Treaty.

The applicant's claim is based on their fear that the High Authority will apply Decision No 13/58 in a way which they hold to be illegal.

Such a complaint could only be raised in respect of individual decisions having made such an application of Decision No 13/58.

The applicants see a manifest ‘misuse of procedure’ in the fact that by Decision No 13/58 the High Authority intended:

‘to make the unwarrantable equalization rates calculated by the Brussels agencies behind closed doors and stubbornly kept secret by the defendant continue in force (even today, after the severe condemnations of the Court of Justice in the judgments of 13 June 1958). The means consist in using, whatever the contortions involved, the statements of account conjured up out of the imagination, which the Court had considered as devoid of legal effect (it is still calling them now, in January 1959, by the euphemism “quasi-definitive”). Further, the means consist in persisting with a tenacity worthy of a better cause in not publishing the facts not covered by professional secrecy, which can be useful to the governments and to all interested parties’.

In submitting such complaints, the applicants again commit the error of interpretation already mentioned in respect of Decision No 13/58, and fail to recognize that the said decision does not in any way predetermine the circumstances in which it shall apply.

The applicants see further misuses of powers in the fact that by Decision No 13/58 the High Authority:

‘intended to introduce the power to proceed with retroactive effect by way of estimated assessments in calculating the equalization contributions due from undertakings which have not submitted returns as to their consumption of ferrous scrap within due time’.

In submitting that complaint, the applicants fail to recognize that in its judgment in Case 9/56 the Court did not declare that estimated assessments are illegal.

On the contrary, it found that a levy by way of an estimate was a remedy when undertakings failed to submit returns and was a necessary and inevitable consequence of the system of compulsory contributions.

It even stated that, if that remedy were not available, there would be no point in making it compulsory to contribute because every undertaking, in its own defence, would resort to avoidance by not submitting returns.

In its judgment in Case 9/56, the Court only ruled against a failure to state reasons for the estimated assessment, leaving the addressee ignorant of the way in which its debt had been calculated.

It is indeed the purpose of Decision No 13/58 to put estimated assessments on a legal basis, which had been lacking.

In putting estimated assessments on a legal basis, which had been lacking, the High Authority could not do otherwise than make use of such assessments in respect of undertakings which had failed to make returns as to their consumption of ferrous scrap for, if it had not made use of such assessments, the said undertakings would have been able, by persisting in defaulting, to avoid payment of the equalization contributions for which they were liable.

The applicants see an obvious misuse of powers in the fact that the High Authority has resorted ‘to extraordinary and dangerous measures such as estimated assessments’, instead of limiting itself to using the means provided for in Article 47 of the Treaty of exercising pressure and imposing fines in order to force defaulting undertakings to declare their consumption of ferrous scrap. It results from the considerations set out in the preceding paragraph that estimated assessments can legitimately be made on undertakings which fail to comply with the requirement to submit returns, without which the equalization system could not be put into practice.

Therefore the making of an estimated assessment cannot involve a misuse of powers.

For all the reasons mentioned above, Decision No 13/58 does not involve a misuse of powers.

C — Costs

The applicants have failed in all their submissions and must, therefore, bear all the costs.

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, 5, 8, 15, 33, 34, 35, 36 and 47 of the Treaty; 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 Coal and Steel Community and to the rules of the said Court on costs; Having regard to Decision No 13/58 of the High Authority of 24 July 1958, THE COURT hereby

1 Declares that the applications of the undertakings Fer. Ro (Ferriere Rossi), an undertaking trading as an individual, Magliano Alpi (Cuneo) (40/58) and Acciaierie San Michele SpA, Turin (41/58), for the annulment of Decision No 13/58 of 24 July 1958, published in the Journal Officiel of 30 July 1958, are inadmissible.

2 Dismisses the applications of the undertakings Società Industriale Metallurgica di Napoli (Simet), SpA, Naples (36/58), Meroni & C, Industrie Metallurgiche, a limited partnership, Erba (37/58), and Meroni & C, Industrie Metallurgiche, SpA, Milan (38/58), for the annulment of the abovementioned decision as unfounded.

3 Orders the applicant to bear the costs.