MERONI v HIGH AUTHORITY JUDGMENT OF 1. 6. 1961 — JOINED CASES 5, 7 AND 8/60

In Joined Cases 5, 7 and 8/60

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

gives the following

JUDGMENT

Issues of fact and of law

I— Conclusions of the parties

The first applicant (Case 5/60) claims:

‘Subject to the right, if necessary, to produce further documents, to ask the Court to prescribe further measures of inquiry and to submit new arguments if it deems it advisable to do so, that the Court, after it has rejected every preliminary objection, should, (a) Declare that this application is admissible; (b) Annul the decision of the High Authority of 28 October 1959 ordering the applicant to pay the sum of Lit. 3358438 by way of equalization of ferrous scrap for the months of October and November, together with interest for delay in payment of Lit. 76713 calculated to 30 September 1959; (c) Declare alternatively that there is in fact no such claim as the one made by the High Authority in its contested decision in that (even if it is admitted without any reservation that there is such a claim) it is more than offset by the applicant's claim which is liquidated, payable, not disputed and for a much greater amount; (d) Order the defendant to pay the costs.’

The second applicant (Case 7/60) claims:

‘Subject to the right, if necessary, to produce further documents, to ask the Court to prescribe further measures of inquiry and to submit new arguments if it deems it advisable to do so, that the Court, after it has rejected every preliminary objection, should, (a) Declare that this application is admissible; (b) Annul the decisions of the High Authority of 28 October 1959, served on the applicant by registered letters of 22 February 1960 numbered 63575 and 63576 respectively, ordering the applicant to pay the sum of Lit. 4627750 by way of equalization of ferrous scrap for the months of July, August September, October and November 1958, together with interest thereon amounting to Lit. 127244; (c) Order the defendant to pay the costs.’

The third applicant (Case 8/60) claims:

‘Subject to the right, if necessary, to produce further documents, to ask the Court to prescribe further measures of inquiry and to submit new arguments if it deems it advisable to do so, that the Court, after it has rejected every preliminary objection, should, (a) Declare that this application is admissible; (b) Annul the decisions of the High Authority of 28 October 1959, served on the applicant by registered letters of 22 February 1960 numbered 63880 and 63881 respectively, ordering the applicant to pay the sum of Lit. 6988825 by way of equalization of ferrous scrap for the months of July, August, September, October and November 1958, together with interest thereon amounting to Lit. 215513; (c) Order the defendant to pay the costs.’

The three applicant companies in their reply claim:

‘That the Court of Justice of the European Communities, after rejecting every contrary conclusion, objection or argument, should 1. Declare that the three applications are admissible; 2. Pursuant to Article 23 of the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community order the defendant to produce the documents and reports on the basis of which the weighted average of the prices of imported scrap and scrap treated as such and also of the price of domestic recovered scrap was fixed; 3. Declare that there is no statement of the reasons upon which Decisions Nos 20 to 58 of the High Authority, and consequently the individual decisions challenged by the applicants, are based; 4. In addition annul the contested decisions on the grounds of infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers; 5. Declare alternatively, and only if it should be necessary, that there is no such claim as the one made by the High Authority in the contested decisions, because, even if it is admitted without any reservation that there is such a claim, it has been offset by the applicant's claim which is liquidated, payable, not disputed and in the amount as the High Authority's claim; 6. Order the defendant to pay the costs.’

The defendant (with reference to Joined Cases 5, 7 and 8/60) contends that the Court should:

‘1. Reject each and every claim made in the applications lodged by the companies Meroni & Co., Milan (Case 5/60), FERAM, Rome (Case 7/60) and SIMET, Naples (Case 8/60); 2. Order the applicant companies to pay the costs and fees.’

II— Facts

The principal facts of this dispute may be summarized as follows:

By its judgments of 13 June 1958 in Case 9/56 brought by Meroni & Co., Milan, (the applicant in Case 5/60) and Case 10/56 brought by Meroni & Co., Erba, the Court annulled the individual decisions of the High Authority for enforcing the recovery of equalization contributions. In the grounds of these judgments the Court held that the High Authority had unlawfully delegated powers to the Caisse de Péréquation des Ferrailles Importees (Imported Ferrous Scrap Equalization Fund) and to the Office Commun des Consommateurs de Ferraille (Joint Bureau of Ferrous Scrap Consumers). Consequently the High Authority announced in its Decision No 13/58 of 24 July 1958 (JO of 30.7, 1958) that it would itself exercise the powers previously delegated to the Caisse de Perequation and the Office Commun.

The applications for the annulment of the said Decision No 13/58 lodged by the two companies Meroni (Milan) and Meroni (Erba) and by three other Italian iron and steel undertakings were dismissed by the judgment given by the Court in Joined Cases 36, 37, 38, 40 and 41/58.

The High Authority served the applicants Meroni and FERAM on 22 February 1960 and the applicant SIMET on 29 February 1960 with the decisions of 28 October 1959 confirming that they were liable to pay by way of equalization for imported scrap and scrap treated as such the following amounts respectively:

1) Meroni: Lit. 3358438 for the months October and November 1958 together with interest amounting to Lit. 76713 for delay in payment;

2) FERAM: Lit. 4627750 for the months August to November 1958 together with interest amounting to Lit. 127244 for delay in payment;

3) SIMET: Lit. 6988825 for the months July to November 1958 together with Lit. 215513 for delay in payment.

Meroni (Case 5/60), FERAM (Case 7/60) and SIMET (case 8/60) lodged their applications for the annulment of the abovementioned individual decisions on 30 March 1960, 4 April 1960 and 7 April 1960 respectively. In these applications they plead the illegality of the general decisions upon which the contested individual decisions are based.

On 18 May 1960 the Court ordered that the three cases 5/60, 7/60 and 8/60 should be dealt with jointly.

By its decisions of 27 October 1960, which it served on the applicants on the same day, the High Authority revoked the five individual decisions of 28 October 1959 which are the subject-matter of the present applications.

The recitals in the preamble to the decisions revoking the said individual decisions show that it seems to be advisable to incorporate the debts of the applicant companies within the wider framework of an individual decision including all the contributions payable by way of capital and interest on the basis of the factors and criteria arising out of Decisions Nos 18/60, 19/60, 20/60 and 21/60 and that there is no question of releasing the companies in question from the obligation to pay their equalization contributions.

By a letter of 3 December 1960 to the Registrar of the Court the applicants nevertheless gave notice of their intention to carry on the proceedings which they had commenced.

The High Authority notified the Court on 13 January 1961 that ‘since the action has ceased to have any purpose, because the contested decisions have been revoked, the High Authority offers to pay the costs of the opposite party up to the date when the revocation was notified, but calls attention to the fact that in any event the subsequent costs, including the costs incurred by the High Authority, will be claimed from the applicants’.

The applicants replied on 28 February 1961‘that it is for the Court of Justice to decide whether there is any point in continuing the oral procedure and that they leave it to the Court to make this decision’. They ask that in any event the High Authority be ordered to pay the whole of the costs including the costs incurred after the date when the decisions were revoked.

III— Procedure

The procedure in each of the cases in question took the normal course.

Grounds of judgment

The High Authority submits that by reason of the revocation of the contested decisions the action no longer has any purpose.

The applicants reply that it is for the Court to decide the question whether the effect of the revocation by the defendant of the contested decisions is that the action is without purpose.

Since the contested decisions have been revoked they have become inapplicable.

Therefore, the applications now have no purpose.

Consequently there is no ground for proceeding to judgment.

Costs

The defendant offers to pay the costs up to the date of revocation of the contested decisions and asks for the costs incurred subsequent to the said revocation to be borne by the applicants.

The applicants ask that the High Authority be ordered to pay the whole of the costs of the action.

Under Article 69 (5) of the Rules of Procedure where a case does not proceed to judgment the costs shall be in the discretion of the Court.

Under Article 69 (4) the costs should in principle be borne by the High Authority.

Nevertheless the costs incurred by the parties since the notification of the revocation of the contested decisions could have been avoided if the applicants had discontinued their applications at that time.

When the applicants were informed that the contested decisions had been revoked they were not bound to discontinue their applications.

However, from that moment onwards they no longer had an interest in continuing the proceedings; it would have been much more to their advantage to discontinue their applications.

Because they had no such interest, the costs incurred after the notification of the decisions revoking the individual decisions must be considered as costs which have been unreasonably incurred within the meaning of the second paragraph of Article 69 (3) of the Rules of Procedure and must therefore be borne by the applicants.

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 Article 33 of the Treaty establishing 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:

1 Declares that there is no ground for proceeding to judgment;

2 Orders that the High Authority shall bear the costs with the exception of the costs incurred after the notification of the decisions revoking the individual decisions which shall be borne by the applicants.