JUDGMENT OF 12.7.1962 — CASE 14/61 HOOGOVENS v HIGH AUTHORITY

In Case 14/61

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

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of facts

The facts may be summarized as follows:

By its judgment of 22 March 1961 in Joined Cases 42 and 49/59 (Rec. 1961, pp. 109 et seq.) (hereinafter called ‘the SNUPAT judgment’), the Court annulled the implied Decision of the High Authority refusing to withdraw with retroactive effect the exemptions granted to the Hoogovens and Breda Siderurgica companies in connexion with the equalization of ferrous scrap. As a result of the Court's judgment, the High Authority proceeded to examine the steps necessary for complying with it, in accordance with Article 34 of the ECSC Treaty.

On 15 May 1961, at the request of the Hoogovens company, a meeting took place between representatives of the company and of the High Authority. The company's representatives put forward arguments which, they maintained, demonstrated legally and factually that there should be no withdrawal of the said exemptions retroactively (ex tunc).

On 14 June 1961 the High Authority took a Decision withdrawing with retroactive effect the exemption granted to the Hoogovens company; this Decision was communicated to the applicant by letter dated 21 June 1961.

The Decision was based on the following considerations:

“Whereas the Council of the Imported Ferrous Scrap Equalization Fund (le Conseil de la Caisse de péréquation des ferrailles importées) (hereinafter referred to as “the Fund”) decided at its meeting on 14 December 1956, pursuant to the unanimous proposal of the Council of the Joint Bureau of Ferrous Scrap Consumers (Office commun des consommateurs des ferrailles) (hereinafter referred to as “the OCCF”), to regard as Hoogovens' ‘own resources’ arisings delivered to it by Breedband whose factories were locally integrated with those of Hoogovens and in consequence to exempt Hoogovens from the payment of equalization contributions on those deliveries; and whereas the representative of the High Authority at the OCCF and the Fund made a reservation with regard to this decision; 'Whereas by a letter of 18 December 1957, addressed to the OCCF and published in the Official Journal of 1 February 1958, the High Authority withdrew its reservation; and whereas by a letter of 17 April 1958, addressed to the OCCF and published in the Official Journal of 13 May 1958, the High Authority set out the circumstances justifying the grant of the said exemption, namely the fact that the Hoogovens factories form a single industrial group with the Breedband works at IJmuiden; and whereas the High Authority added that any other undertaking in a similar condition of local integration could likewise claim the benefit of exemption; 'Whereas the Société nouvelle des usines de Pontlieue — Acieries du Temple, in its application of 28 October 1959 (Case 49/59) to the Court of Justice, criticized the High Authority for not having withdrawn, with retroactive effect from the date when it had been granted, the Decision to grant an exemption to Hoogovens; and whereas Hoogovens intervened in the case, arguing that the application should be dismissed as inadmissible or unfounded; 'Whereas the Court of Justice, by its judgment of 22 March 1961, annulled the implied Decision of the High Authority refusing to withdraw with retroactive effect the exemption granted to Hoogovens, and expressly declared the exemption to be illegal; whereas the Court referred the case back to the High Authority, so that it might proceed, in accordance with Article 34 of the Treaty, to take the steps necessary for complying with the annulment of the Decision; and whereas the Court, while conceding the importance of the principle of legal certainty, a principle which would be sacrificed where a withdrawal of exemption had to be applied with retroactive effect, declared that this principle could not be applied in an absolute manner, since in applying it one had also to apply the principle of legality; 'Whereas the High Authority, in giving effect to the judgment of the Court, is bound to withdraw the exemption granted, and whereas the Court held that the decision to withdraw or not to withdraw the said exemption with retroactive effects rests in the first place with the High Authority; 'Whereas the withdrawal of the exemption ex nunc could have no practical effect, since the equalization system has been abolished; 'Whereas since the withdrawal of exemption with retroactive effect was not in principle excluded, it is proper to weigh the public interest against the private interest involved; whereas the conflict between these two interests may be presented, according to the abovementioned judgment, as follows: on the one hand, the interest of Hoogovens in keeping the advantage which it had acquired in good faith, and which had enabled it to arrange its affairs in reliance on the continuance of this position; on the other hand, the interest of the Community in ensuring the proper working of the equalization scheme, which depends on the joint liability of all undertakings consuming ferrous scrap; this interest makes it necessary to ensure that other contributors do not permanently suffer the financial consequences of an exemption illegally granted to their competitors; 'Whereas in the present case preference should be given to the preservation of the principle of joint liability of all the undertakings, which requires them to share the burdens of equalization on a non-discriminatory basis; 'Whereas Hoogovens could not legitimately object to the selection of this principle on the ground that the burden thus imposed upon it was disproportionate to the advantages accruing to the other undertakings; Whereas the retroactive withdrawal of an illegal exemption has the effect only of removing an unjustified advantage and re-establishes equality between Hoogovens and other contributors, so that the total equalization burden imposed on Hoogovens is made proportionate to that of other undertakings; 'Whereas, on the other hand, the interest of other undertakings is not merely that they should not permanently suffer the financial consequences of an illegal exemption, but consists also in seeing that each competing undertaking bears a share of the total burden, proportionate to its consumption of bought ferrous scrap; 'Whereas, quite apart from these considerations, it is not possible to accede to the argument advanced by Hoogovens that any retroactive withdrawal can only take effect within a “reasonable period of time” which the case law of the Community recognizes as a period of the order of months rather than years; whereas so short a period has, in fact, been deemed appropriate only in the case of public authorities, whilst in the present case the matter at issue is rather a question of a period of limitation, of the order of several years; whereas, therefore, this argument is not relevant; 'Whereas Hoogovens' conviction that it was conclusively entitled to the benefit of the exemption could have had no foundation until the High Authority made its attitude known on 18 December 1957; whereas, however, even after that date Hoogovens could not reasonably exclude the possibility that the principle conceded by the High Authority might be put at issue by other undertakings; whereas, in fact, this principle was the subject of Applications 32 and 33/58, 42/58 and 42 and 49/59 and in these circumstances Hoogovens should have appreciated that the result of the disputes which were to follow might similarly affect its own exemption; 'Whereas moreover, as a result of the High Authority's aforementioned letters of 18 December 1957 and 17 April 1958, a certain number of undertakings made applications for exemption from the levy in circumstances similar to those of Hoogovens; and whereas since any exemption has been declared illegal by the Court of Justice, the High Authority is bound to reject these applications; 'Whereas it follows that the withdrawal ex nunc of the illegal exemption granted to Hoogovens would lead to a continuing discrimination between Hoogovens and those undertakings whose applications are rejected; 'Whereas the High Authority is disposed to allow Hoogovens, if need by, to spread the payment of its arrears of contributions on its illegally exempted tonnage over a period of time; and whereas a new calculation of contributions is to be made in consequence of this Decision; …”

On 23 March 1962, the company entitled Acieries du Temple, the legal successor of the Société nouvelle des usines de Pontlieue — Acieries du Temple (SNUPAT), made an application to intervene to have the main application dismissed and, by Order of the Court of 6 April 1962, permission to intervene was granted.

II — Conclusions of the parties

The applicant claims that the Court should:

‘annul the Decision of the High Authority of 14 June 1961 communicated to the applicant by letter of 21 June 1961; order the High Authority to pay the costs’.

In its reply the applicant states that it persists in the conclusions contained in its application; and that in addition it ‘requests the Court, pursuant to Article 45 of the Rules of Procedure and Articles 23 and 24 of the Statute of the Court of Justice, to order the High Authority to produce all documents relating to the dispute and in particular the minutes of the Meeting of 15 May 1961’.

The defendant contends that the Court should dismiss the application as unfounded, ‘with all the consequences in law arising therefrom, in particular with regard to the rules on costs and expenses’.

The intervener puts forward conclusions identical to those of the defendant.

III — Submissions and arguments of the parties

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

1. In general

The applicant declares that it admits the illegality of the exemption ‘within the framework of the present application’ and ‘without prejudice to the rights which may be available to it from the third party proceedings of Breedband’; by this it refers to the application originating third party proceedings made on 5 June 1961 by Breedband N.V. against the SNUPAT judgment.

It considers that the contested Decision is invalidated on the grounds of infringement of an essential procedural requirement, infringement of the Treaty and of the rules of law relating to its application together with abuse and/or misuse of powers.

The parties are at odds over the consequences to be drawn from the SNUPAT judgment. According to the applicant, this judgment:

did not decide that the refusal to withdraw the exemptions with retroactive effect was purely and simply illegal, and only condemneditbecause the ground on which it was based was contrary to the Treaty;

left open therefore the question whether the exemptions should be withdrawn ex tunc or ex nunc;

declared that such question must be resolved by taking account of the facts of the actual situation, that is to say, by deciding in the light of those facts whether the principle of legality or that of legal certainty should prevail in the present case;

placed these two principles on at least an equal footing and it might even be said that it seems inclined to favour the second.

The High Authority has misinterpreted both the contents of the judgment and the principles of respect for administrative morality (overheidsfatsoen) and of the proper management of the public service (behoorlijk bestuur). It has, moreover, acted contrary to the rules laid down by the previous decisions of the Court, according to which the High Authority must not pursue a course of action so rigidly that the interests of the persons subject to its authority are compromised beyond what is reasonable to expect. In fact, the contested Decision

puts forward the illegality of the exemptions as a ground sufficient by itself to justify and require withdrawal ex tunc;

fails to carry out an appraisal of the actual interests involved. Nowhere is there ‘made or even outlined’ an appraisal of the beneficial and harmful consequences in which the maintenance of the past effects of the exemption would involve the Community in comparison with those which withdrawal ex tunc would impose upon the applicant;

is guided by a system giving those who profit from an illegal administrative measure much less effective legal protection than that given by the least favourable of national legal systems. In fact all these systems, although using different techniques, are unanimous in placing ‘extremely severe’ obstacles in the way of retroactive withdrawal of illegal measures; as evidence of this assertion, the applicant has appended to the reply two opinions, one by Professor Amorth on Italian law, the other by Professor Weil on French law; it produces in addition copious extracts of case law and legal theory drawn from the Belgian, German and Dutch legal systems.

Finally, the applicant wonders whether it should have been considered that the two opposing groups of interests in this case are of equal importance and that a combined application of the two opposing principles leads to a solution which does not require the total sacrifice of the interests of one party to those of the other.

The defendant for its part considers that the contested Decision faithfully follows the lines of the SNUPAT judgment as well as the provisions of Article 34 of the ECSC Treaty. It quotes the grounds of the said judgment and deduces therefrom that, ‘after weighing up the interests in question, that is, the interest of the beneficiaries and the general interest, and finding that the second must prevail over the first’, the High Authority was obliged to withdraw with retroactive effect the exemptions from which Hoogovens benefited. The applicant merely avoids the issue by invoking the principles of administrative morality and of the proper management of the public service. The defendant analyses the scope covered, according to it, by the operative part of the SNUPAT judgment: what the Court annulled was the implied Decision of the High Authority refusing to withdraw with retroactive effect the exemptions granted to Breda Siderurgica and to Hoogovens and to fix on the basis of this withdrawal the contribution owed by SNUPAT; only a withdrawal ex tunc could result in the diminution of the contribution of that company.

The applicant wrongly deduces from the SNUPAT judgment that the principle of legal certainty prevails; the contrary is true. In fact, the judgment shows clearly that the principle of legality must prevail in all cases in which the public interest prevails over private interests. It must be borne in mind that the judgment expressly refuted an argument used by Hoogovens as intervener in the prior proceedings, claiming that the SNUPAT application either was of no significance (in that it referred to a withdrawal ex nunc), or else ran contrary to the principle of certainty (in that it referred to withdrawal ex tunc).

With regard to the principle of certainty, it coincided in this case with the actual interests of Hoogovens, which the High Authority, contrary to what was said by the applicant, did not fail to examine. But the High Authority had to appraise all the actual interests in question, not only those of Hoogovens.

The defendant criticizes the means of comparison chosen by the applicant: in the first place, Community law ‘does not follow the “points of agreement” of the national legal systems’, but has ‘an originality of its own’; in the second place, the problem of revoking administrative measures should not be examined in general, since the disputed Decision was taken under quite exceptional conditions, that is, following annulment by the Court, in connexion moreover with an application for withdrawal ex tunc. Having submitted these observations, the defendant examines in detail the case law and legal theory invoked by the applicant and by the professors consulted by the latter; it endeavours to show that these authorities in no way assist the argument of Hoogovens, since they are either incomplete or deal with cases which are not analogous to the case in question or, finally, that they do not state what the applicant wishes to deduce from them.

The intervener supports the line of argument of the defendant. It disputes in particular the interpretation in accordance with which the SNUPAT judgment placed the criteria of legality and of legal certainty on an equal footing; in fact, it gave a clear preference to the former. The contested Decision adheres faithfully to the letter and spirit of the said judgment, both with regard to its discretionary aspects and to those in which the High Authority's discretion was fettered.

The intervener refers to French case law and legal theory to show that under the French legal system decisions of a financial nature, such as those which the High Authority withdrew by the contested Decision, do not create vested rights, are ‘purely declaratory’ and may be withdrawn at any time, if they are illegal.

2. On the infringement of an essential procedural requirement

According to the applicant, the recitals in the preamble to the contested Decision do not in any event justify that Decision; they are irrelevant in fact and in law, which amounts to an absence of reasoning. The High Authority has failed to take account of the previous case law of the Court, which enjoined it to ‘state in the grounds of its Decision the essential points of the findings of fact on which the legal justification of its measure is based’.

In fact the contested Decision only states ‘general and abstract considerations’, without ‘referring expressly or by implication to Hoogovens' actual position in particular’. If the High Authority had carried out such an appraisal, it would certainly have arrived at a different result.

a) To the extent to which the Decision is based on the consideration that ‘the retroactive withdrawal of an illegal exemption has the effect only of removing an unjustified advantage and re-establishes equality between Hoogovens and other contributors’, there is a logical incompatibility between the recitals and the operative part of the Decision.

‘It is clear in fact that the maintaining of the past effects of an illegal decision results in the creation or maintenance of inequality between the undertaking which was the subject of that Decision and others with which it is not concerned. To postulate a rule that such inequality constitutes discrimination contrary to the Treaty and must consequently be abolished is not to combine the principle of legal security with the principle of legality; it is to suppress a priori one of the two factors in the proposition.’

b) To the extent to which the contested Decision is based on the consideration that the High Authority fails to indicate why, in this case, the interests of other undertakings are more important than those of the undertaking benefiting from the exemption. The applicant observes that, at the time of the meeting of 15 May 1961, its representatives had drawn the attention of the High Authority ‘to the fact that a retroactive contribution by Hoogovens of six million guilders, in relation to a total amount of 1464 thousand million guilders for the Caisse de péréquation (Equalization Fund), represented only 0.37 % and that the payment of that sum by Hoogovens constituted such a minimal advantage for each of its competitors that it was of no importance from the point of view of competition’. These were hard facts which the defendant was able and bound to examine. Indeed, in its statement of defence it writes that the defendant itself thus recognizes that it has omitted to carry out an examination of the actual interests involved. However, the High Authority wasobliged to carry out research on its own initiative not only into the factors militating in favour of withdrawal ex tunc, but also those capable of swaying the balance in the opposite direction. It is significant to note that, although the applicant had already offered on 17 April 1961 to. supply all the information which the High Authority might wish to obtain, the latter did not put a single question to the applicant. The absence of precise reasoning is once again illustrated by the fact that the contested Decision is practically a copy of the analogous Decision taken in the case of the Breda Siderurgica company; it appears therefore to be a ‘standard form’. Whilst it must be admitted that the two cases were comparable up to the moment theexemptions weregran ted, it does not at all follow that they were also comparable with regard to the effects of the retroactive withdrawal.

‘the interest of other undertakings is not merely that they should not permanently suffer the financial consequences of an illegal exemption, but consists also in seeing that each competing undertaking bears a share of the total burden proportionate to its consumption of bought ferrous scrap’,

‘the High Authority can only state … that the applicant limits itself to putting forward certain figures, without offering to prove them, so that the High Authority finds itself obliged for reasons which can be understood, to reserve its opinion as to this’;

c) Although the defendant, as a defence against the plea of insufficiency of reasoning, observes that the contested Decision falls within its discretionary power, it must be objected that this opinion ‘is only partially correct’. On the one hand, the High Authority did not have such a power with regard to the expediency of the withdrawal; in fact, after weighing up the interests, it was bound to draw the resultant conclusion. On the other hand, it is doubtful whether this power exists with regard to ‘the final appraisal of the respective weight of the interests in question and the seriousness of the damage which one or other of the possible solutions will cause to those interests’; as the judgment of the Court declares that such appraisal ‘in the first place falls within the competence of the High Authority’, this implies that legal supervision of this appraisal is not outside the jurisdiction of the Court.

The defendant cites the recitals in the preamble to the contested Decision to show that it was carefully reasoned and that the High Authority had duly examined the objections put forward by Hoogovens at the meeting on 15 May 1961. It invokes, moreover, the case law of the Court in support of the view that the preamble did not need to review all the stages of the administrative procedure, or to set out and refute in detail all the arguments in the case.

ad a) The defendant does not put forward any special arguments with regard to this, but it may be considered that the statements above under 1 constitute, in part, a reply to the complaints of the applicant.

ad b) The argument adduced from the slight effect which the contributions required would have on equalization as a whole does not take account of the authority of the SNUPAT judgment. In fact, the Court declared that the SNUPAT application was admissible and, therefore, recognized that that company had an interest to act in spite of the modest financial advantage to be expected if it were successful. In addition, the judgment also found it necessary ‘to ensure that other contributors do not permanently suffer the financial consequences of an exemption illegally granted to their competitors’. In its rejoinder, the defendant states that the reservation appearing in its statement of defence relates to the amount which the applicant would have to pay as a result of the withdrawal of the exemption. As the final accounts were not drawn up, the High Authority could not yet state the exact sum; its appropraite department, however, estimates this at approximately five million guilders, an amount substantially lower than Hoogovens' estimate. With regard to the similarity between the respective preambles to the Decisions in the Hoogovens and Breda Siderurgica cases, the essential factor is that the High Authority examined these two cases separately, which is shown in particular by the meeting on 15 May 1961. In addition, the grounds on which the two exemptions had been granted were the same and the SNUPAT judgment adopted an identical solution for the two undertakings.

ad c) The defendant does not dispute that the question of the validity of the contested Decision falls within the jurisdiction of the Court, but it maintains on the other hand that, although that Decision is based on an appraisal, it falls within the discretionary power of the High Authority. The SNUPAT judgment required it to withdraw the exemptions and the only question was the choice between withdrawal ex nunc and ex tunc. In order to be able to choose, it was necessary for the High Authority to make an appraisal of all the actual circumstances of the case, a discretionary operation which does not however preclude review of possible illegalities; on the other hand, once the appraisal was carried out, the High Authority was bound to deduce all the legal consequences therefrom. The intervener also considers that the contested Decision is carefully and correctly reasoned and that the grounds are accurate in fact and in law.

3. On infringement of the Treaty and of the rules of law relating to its application

A — On the balance of interests involved

a) The applicant maintains in the first place that the preamble to the contested Decision, when it states that ‘the interest of other undertakings … consists… in seeing that each competing undertaking bears a share of the total burden proportionate to its consumption of bought ferrous scrap’, identifies the public interest of the Community with the sum total of the individual interests of the undertakings, which runs contrary to the case law of the Court. The first element of the public interest which the High Authority was obliged to take into consideration under the terms of the SNUPAT judgment was the proper functioning of the equalization scheme. This functioning was not compromised by retaining the exemptions, in view of the very slight effect (0.37 %) of the amounts in question on the equalization charge as a whole. Continuing this line of argument, the applicant criticizes the reasoning of the contested Decision, according to which withdrawal ex nunc would have no useful effect, as the scheme has in the meantime been repealed. The applicant considers that precisely this factor is in favour of retaining the exemption: in fact, the problem of the proper functioning of the scheme can no longer arise in the future. The defendant replies: The SNUPAT judgment itself clearly identifies the interest of the competing undertakings with the interest of the Community, since it finds that the latter ‘makes it necessary to ensure that other contributors do not permanently suffer the financial consequences of an exemption illegally granted to their competitors’. The applicant forgets that the equalization scheme has not yet been finally wound up and that certain outstanding questions have still to be settled by the High Authority. In order that these decisions may be taken on an equitable basis, it is necessary ‘that Hoogovens' ferrous scrap should return to the distribution network’. Finally, the equalization system was a Community undertaking and ‘the success of the scheme reinforces future Community undertakings’. Hence respect for the principle of legality, and in particular for the rule of non-discrimination, compels added attention having regard in particular to the basic importance which the Court attaches to the strict observance of that rule. The intervener claims that, apart from very rare exceptions, the principle of legality, allied to the public interest, always prevails over the principle of legal certainty which attaches merely to private interests. In this case, the principle of equality of all undertakings in respect of taxation must be decisive; it required withdrawal ex tunc, which alone was capable of re-establishing that equality. Moreover, this principle was further strengthened by the principle of joint liability which is fundamental to the equalization scheme. Finally, it is necessary to stress that the levy has the nature of an addition to the price requiring that it be ‘very equally’ divided between the undertakings, failing which the rules of competition established by the Treaty would be infringed.

b) According to the applicant, the High Authority is in error in balancing the interests one against the other, since it wrongly invokes the principle of non-discrimination. In fact, the maintaining of past effects does not constitute discrimination; on the contrary, in the case of a retroactive withdrawal there would be a real loss to Hoogovens and an advantage ‘without reasonable basis’ for other undertakings. The benefit which other undertakings would derive from withdrawal ex tunc would be insignificant; as the Court has decided in its previous cases, alteration of the conditions of competition must be sufficiently significant to constitute discrimination. On the other hand, withdrawal ex tunc would constitute discrimination to the detriment of the applicant in comparison with other undertakings. In fact the period during which the exemption was in force was one of favourable market conditions which allowed those subject to equalization to pass on to the purchasers, in short, ‘not only their equalization … but also the minute excess of equalization which arose for them from the exemption of Hoogovens’. On the other hand the situation at the present moment on the thin sheet market has undergone a structural change; it appears from Hoogovens' quarterly report dated October 1961 that production profits have diminished by between 22 % and 23 %. If the applicant were required to pay the amount in question now, it would be obliged to reduce its profit margin. The defendant replies: To talk of discrimination to the detriment of the applicant ‘is in fact to reverse the roles’; on the contrary, the High Authority would be favouring Hoogovens in comparison with other undertakings by not requiring it to pay the levy. Payment of the disputed sums will not result in a deficit in the applicant's trading account; it is possible that it will diminish the profit margin, but this has also happened to Hoogovens' competitors. In order to refute the argument adduced from the fact that other undertakings were able to pass on the equalization expenses to their customers, the defendant maintains that the sale price is as a rule determined by supply and demand, so that in practice manufacturers are unable to pass on the equalization charges to the purchasers. During the period under consideration, Hoogovens did not sell its products more cheaply than its competitors, and its business was all the better for not paying the equalization levy; in this connexion the defendant quotes the applicant's turnover and net profits for the years 1958 to 1960.

c) The applicant states that the discrimination against it is all the clearer if account is taken of the fact that the overwhelming majority of its real competitors did not have to pay equalization. In fact, the products in which Hoogovens competed with other undertakings are the thin sheets produced by the Hoog-ovens-Breedband group; 97 % of these products are manufactured by undertakings which combine in a single legal entity a steel works and a wide-strip mill and are consequently not subject to equalization. The contested Decision is therefore wrong in taking into account the effects which the maintenance of the past exemption would have on the conditions of competition. The defendant replies that, even on the assumption — which is denied — that the real competitors of the applicant did not have to pay equalization, this factor would be invalidated by the finding of the SNUPAT judgment that ‘if interested parties choose … a given legal form in anticipation of certain advantages, they have no grounds for demanding that this legal form…should not be taken into account whenever its application is capable of operating to disadvantage’. Moreover, the majority of competing undertakings are far from using only their own ferrous scrap. The applicant replies that the passage quoted from the judgment has no bearing on the present problem which is whether the maintaining of the past effects of the illegality does or does not thereby occasion damage to Hoogovens' real competitors to the extent that the principle of legal certainty should be sacrificed to the principle of legality.

d) According to the applicant, the argument based on the amount of the applicant's turnover and profits for the years 1958 to 1960 is out of time, since it does not appear in the contested Decision. In addition, it is inadmissible to make the extent to which the applicant's legitimate confidence in the acts of a public authority must be protected dependent on the success of the party concerned. In any event, this argument would carry weight only if the High Authority had also appraised the financial positions of other undertakings — which is not the case. Finally, the defendant fails to take account of the fact that the data in question ‘incorporate ancillary activities having no bearing on the problem of the balance of interests of Hoogovens and its competitors in relation to the imposition of the equalization levy’. Moreover, the profits appearing in the balance sheets are not directly comparable between one country and another and certain adjustments must be made for the differences in calculation of cost prices in the conception of profit and in the taxation system. The defendant is astonished that the applicant, who attaches such importance to the appraisal of the actual situation, is unwilling to have the financial position of the undertaking concerned included in that appraisal. It is clear that the evaluation of the respective interests reaches different conclusions depending on whether repayment would jeopardize the existence of the company in question, or whether its only result would be a slight diminution in the margin of profit. The defendant stresses once again the provisional nature of the accounts which the SNUPAT judgment declared to be a factor which must influence the balance of interests. The argument in that case is strongly in favour of retroactive withdrawal; in fact, as the applicant knows, the figures fixed before 1961 for the contributions do not bind the High Authority, so that withdrawal of the exemptions would not prejudice a final decision. Finally, the defendant indicates that it has followed the suggestion of the judgment in phasing the payment of outstanding contributions over a period.

B — On the possibility of inexact or incomplete information

According to the applicant, the SNUPAT judgment attached great importance to the question whether the exemptions had or had not been obtained from inexact or incomplete information. At the meeting on 15 May 1961, the applicant's representatives solemnly affirmed that the information supplied by Hoogovens in 1956 was complete and exact and the High Authority's representatives confirmed this. If the High Authority refuses to take this factor into consideration, on the ground that it is not of primary importance, it disregards the authority of the judgment.

The defendant states that, for it, this problem is not of primary importance; in fact, an error or omission in the declarations would simply involve an alteration of the accounts.

C — On a ‘reasonable period of time’

a) The applicant refers to the case of Algera and Others v Common Assembly of the ECSC (Rec. 1957, pp. 89 et seq.) and rejects the concept that the idea of a reasonable period of time was binding only in the case of decisions relating to officials of the Community. The defendant considers that a difference exists between the case in question and that of officials which gave rise to the Algera judgment. But a still more important criterion separates the two cases: whereas in the Algera case the withdrawal was applied on the sole initiative of the institution taking the illegal decision, in the present case it is the result of a judgment of the Court which the institution is merely implementing. According to the intervener, both the French legal system and those of the other Member States of the Community recognize the following principles: an illegal administrative measure may be withdrawn at any time, if it has not created vested rights; even in that case, it may be withdrawn after a reasonable period of time, since Community law is more flexible than French law with regard to the fixing of such period of time. For the reasons stated above (1 in fine), the exemptions have not created vested rights, so that the reasonable period of time is not involved in this case.

b) According to the applicant, a period of limitation is not concerned here, contrary to what is maintained in the contested Decision. ‘The applicant is not in the position of a tax payer who has failed to pay a tax which was owing or which the administration has failed to charge. In this case, the competent authority took a decision expressly declaring that the levy should not apply, that is to say a decision conferring a subjective right.’ What is therefore concerned here is' definitely legal certainty and the inviolability of individual measures giving rise to rights and not the extinction of a tax debt by means of a period of limitation. On this point, the defendant refers to the opinion of the Advocate-General in the SNUPAT case (loc. cit., p. 179), which states in particular: ‘it is therefore rather a question of the period of limitation and in this respect, the order of magnitude of a “reasonable period of time” is several years, not several months’. The intervener takes up the same argument in support of his basic premise that there can be no question of vested rights in this case.

c) In connexion with the point from which to calculate the ‘reasonable period of time’, the applicant considers it necessary to go back to 1954, for the exemptions have been in force since that time. When the Société fiduciaire suisse raised the problem, the applicant requested both the High Authority and the Equalization Fund to confirm that their opinion on the nature of ‘own arisings’ of the ferrous scrap in question accorded with that of the applicant. ‘All the views and subsequent decisions both of the agencies in Brussels and of the High Authority only served to reinforce that conviction.’ The letter of 18 December 1957 (Official Journal of 1 February 1958, pp. 45 et seq.), whereby the High Authority withdrew the reservations previously expressed by its representative with regard to the exemptions granted both to the applicant and to the Breda Siderurgica company, was by its very nature retroactive to the point when the equalization scheme began to function. But even on the supposition that the starting point of the ‘reasonable period of time’ should only be fixed at the time the exemption was granted (14 December 1956), or, again, at the date of the letter of 18 December 1957, this is still a long way from the period of serves that the exemption goes back to Algera case. The defendant, on the other hand, observes that the exemption goes back to the date of the Decision of the High Authority communicated by the letter of 18 December 1957, and not to 1954. Nevertheless, since what is involved here is a withdrawal in implementation of a judgment of the Court, the ‘reasonable period of time’ is to be reckoned from the date of the judgment. Without prejudice to its principal argument that the criterion of ‘a reaonable period of time’ is not involved in this case, the intervener supports the method of calculation put forward by the defendant and points out that the withdrawal occurred shortly after the SNUPAT judgment.

d) The applicant rejects the argument that the applications made by other undertakings after the granting of the exemptions should have shaken its confidence in the validity of those exemptions. In fact, those disputes were based on the notion that the interpretation of the High Authority was not too wide, but too narrow; they could therefore only reinforce the opinion of the applicant. In the second SNUPAT application (Joined Cases 42 and 49/59), the High Authority itself defended the legality of the exemptions, and it even maintained that, on the supposition that the exemption were illegal, it was no longer possible to withdraw it since the reasonable period of time was long past. Why should the applicant have had less faith than the High Authority in the validity of the High Authority's arguments? According to the Algera judgment, ‘the adoption of an administrative measure creates a presumption as to its validity’; the applicant deduces from this that the period of time to be taken into consideration is that during which this presumption prevailed. The defendant maintains that, throughout the period when the exemptions were in force, numerous circumstances should have shaken Hoogovens'certainty as to the definitive nature of the exemptions: the High Authority's hesitations in ratifying the Decision taken in favour of the applicant by the agencies in Brussels; the lack of a reply to the requests made by other undertakings wishing to benefit from the same exemptions; the applications made by SNUPAT and by certain German undertakings; finally the grounds of the judgment of 17 July 1959. The intervener supports the defendant's line of argument. It is of the opinion that the applicant itself had little confidence in the legal value of the criterion of local integration, which is shown by the fact that in the SNUPAT proceedings its argument turned essentially on the alleged existence of an ‘association’ (maatschap) between it and the Breed-band company. The defendant considers that, by annulling the refusal to institute a retroactive withdrawal, the SNUPAT judgment considered such a withdrawal to be perfectly possible in this case.

D — On the responsibility of the High Authority

The applicant considers that the High Authority has completely neglected a decisive factor in favour of maintaining the exemptions, that is to say, its own responsibility. Since the High Authority has led the party under its authority into error, the principle of respect for administrative morality requires that it should bear the consequences thereof. Even if it is admitted that no wrongful act or omission has occurred, it is nonetheless true that the High Authority has committed an illegality. It arises from the decisions of the Court that the risk inherent in such an illegality cannot be made the sole responsibility of the party concerned under its authority.

The defendant considers that if the applicant complains today that it granted an exemption which it had itself solicited, it pushes ‘illogically a little too far, to say the least’. The behaviour of the High Authority was perfectly logical: once the exemption had been granted, it defended its legality before the Court; but when the SNUPAT judgment dismissed this argument, the High Authority could only comply. Nevertheless, the equalization scheme does not profit the High Authority; it is ‘simply a “clearing” operation whose final outcome is not to show either a profit or a loss’.

The intervener states that the applicant is not in a position to raise any complaints whatever against the High Authority.

4. Production of documents relating to the case; offers of proof

The applicant attaches considerable importance to the production by the defendant of all the documents relating to the case and in particular to the ‘minutes’ of the meeting of 15 May 1961 and the report made to the High Authority. It stresses that, under the terms of Article 23 of the ECSC Statute, the High Authority has an obligation independent of any order of the Court, and it declares that the conclusions of the application are to be understood ‘subject to the pleas and submissions appearing in the file of the High Authority’.

The production of these documents is necessary to show that the factors to which the representatives of the applicant company drew the attention of the High Authority at the time of the above-mentioned meeting have not been mentioned in the contested Decision; production will allow the Court to test ‘the actual motives’ for that Decision.

The applicant offers to prove ‘by all legal means, including witnesses, the facts and circumstances relied on … in support of the application’.

The defendant comments only on the account of the meeting of 15 May (it states that minutes were not drawn up). While disputing the efficacy of that document, it produces it as a schedule to its rejoinder.

IV — Procedure

The procedure followed the normal course.

Grounds of judgment

Admissibility

The application was made in due and proper form and within the appropriate time limit. No objection was raised on grounds of admissibility, either by the defendant or by the intervener and there is no reason for the Court to raise an objection of inadmissibility of its own motion. The application is therefore admissible.

I — On the scope of the judgment of 22 March 1961

1. In its judgment of 22 March 1961 in Joined Cases 42 and 49/59 Société Nouvelle des usines de Pontlieue — Aciéries du Temple (SNUPAT) v High Authority (Rec. 1961, pp. 109 et seq.) (hereinafter referred to as ‘the SNUPAT judgment’) the Court held that the High Authority, in continuing to regard local integration between the undertakings concerned as a ground for not applying the equalization levy, had misinterpreted the Treaty and the basic Decisions on the equalization scheme for imported ferrous scrap and that, in consequence, the High Authority had misinterpreted the Court's judgment of 17 July 1959, in Joined Cases 32 and 33/58 (SNUPAT v High Authority, Rec. 1958/1959, p. 275) which declared group ferrous scrap to be subject to the said equalization. The Court, in the SNUPAT judgment, found that such exemptions were illegal. This finding obliged the High Authority to take steps to withdraw the exemptions. The question, however, whether the withdrawal should be made retroactive or should take effect only ex nunc was not decided by the Court. The judgment declared that the question whether a withdrawal with retroactive effect was advisable would depend on an appraisal of the different factors set out in the judgment and held that the making of this appraisal was in the first place the duty of the authority empowered to withdraw exemptions. Hence the Court, being anxious not to ‘put itself in the place of the High Authority’ or to deprive the applicant either of the benefit of an administrative appraisal, or of the possibility of further legal action, confined itself to referring the matter back to the High Authority, so that, in accordance with Article 34 of the Treaty, the latter might proceed to make this appraisal and to take the decision whether or not to withdraw the irregular exemptions with retroactive effect.

2. Consequently, the defendant's argument that the Court, in its earlier judgment, had already ordered the retroactive withdrawal of the disputed exemptions, or had already decided that a withdrawal with retroactive effect was necessary in this case, must be dismissed. In fact, the implied Decision refusing to withdraw the disputed exemptions ‘with retroactive effect’ was annulled only because of the erroneous ground on which it was based. It cannot be inferred that withdrawal with retroactive effect was in any event obligatory. On the contrary, it is clear from the grounds of judgment that the decision whether it was appropriate in the particular case to withdraw the exemption ex nunc or ex tunc was referred back to the High Authority.

3. The High Authority has argued that the SNUPAT judgment recognized its discretionary power to withdraw exemptions with retroactive effect; this argument is correct in the sense that the judgment referred back to the High Authority the appraisal of the facts. However, this does not mean, as is apparent moreover from the SNUPAT judgment, that the legality of the Decision cannot be reviewed by the Court, as it has been in the present application. In other words, to recognize the High Authority's power of appraisal is not to deny the jurisdiction of the Court of Justice to see whether the Decision of the High Authority rests on a correct application of the Treaty, of the basic Decisions and of the rules recognized by the SNUPAT judgment, and whether it is accordingly justified in law. It must be seen, then, whether the complaints made against the disputed Decision are valid.

II — Complaints based on infringement of the Treaty and of the rules of law relating to its application and on misuse of powers

1. The High Authority was satisfied, on investigation of the facts, that the applicant could not be charged with having given any false or incomplete information; it follows that such a charge must be excluded from consideration and is not to be taken into account as justifying the disputed Decision. The applicant is wrong in alleging that the defendant has misunderstood the point of the SNUPAT judgment in failing to attach any weight to the abovementioned fact; moreover, as is clear from the SNUPAT judgment, this is one of the factors to be taken into consideration, but it cannot be claimed that, once it has been established that no false or incomplete information has been supplied, a withdrawal of the exemption ex tunc is automatically precluded.

2. The applicant impugns the defendant's evaluation of the conflicting interests involved, alleging that the High Authority has not taken proper account of the financial interests in question, in that it has not compared the burden imposed on the applicant by a retroactive withdrawal of exemption with the total amount of the equalization contributions. According to the applicant, such a comparison would show that the amount due from Hoogovens in respect of equalization represents only about 0.37 % of the total amount of the equalization contributions, so that the continuance of its exemption could not impair the regular functioning of the equalization scheme, which is the most important aspect of the public interest to be taken into account by the High Authority, according to the SNUPAT judgment. The Court cannot accede to this argument. In fact, a comparison of the burden imposed on one undertaking with the total amount of the contributions would straightaway exclude any withdrawal of an illegal exemption, since the sum total of contributions is always of overwhelming magnitude. This conclusion is contrary to the view adopted by the Court in its previous judgment. Moreover, to leave exemptions in force as far as the past is concerned would, without justification, afford the applicant an advantage of 5 to 6 million Dutch guilders over each of the other undertakings in the Community. This aspect of the balance of financial interests must not be overlooked.

3. The applicant alleges that the defendant has failed to appreciate that the withdrawal ex tunc involves a real loss for Hoogovens and ‘an advantage without reasonable foundation’ for other undertakings. According to the applicant, the period during which it enjoyed exemption was a period of favourable market conditions, which enabled equalization contributors to pass on the burden in the last resort to their customers, whilst now there has been a change in the structure of the thin sheet market which would make it impossible for the applicant to do likewise. In the opinion of the Court, this argument is irrelevant. It is reasonable to assume, in fact, that, while enjoying exemption during the period of favourable market conditions, which it now prays in aid, the applicant had the advantage over its competitors of either, on the one hand, making a larger profit on the sale of its products or selling them at lower prices and so being assured of a wider market or, on the other hand, using the economies thus effected for investments which increased its productive capacity. Consequently, it must be conceded that the present disadvantages had their compensation in the advantages enjoyed in the past. Moreover, even if the alleged disadvantage exists in principle, it must not be forgotten that a mere withdrawal ex nunc would have allowed the continuance of a considerably greater difference in treatment between the applicant and the other contributing undertakings. Accordingly, this complaint must also be dismissed.

4. The applicant further complains that the defendant did not limit its comparative investigation only to those undertakings which produce slabs for the manufacture of wide-strip rolled sheets; if it had so limited its investigation to the undertakings in direct competition with Hoogovens, which were set out in the list annexed to the application, it would have been revealed that 97.3 % of them are integrated undertakings not subject to equalization. The continuance of exemption as far as the past is concerned would therefore have caused them no injury. The Court is unable to accept this argument. (a) The interest of the Community, as the SNUPAT judgment has already laid down, requires that the other contributing undertakings shall not be made to suffer the effect of an exemption illegally granted to their competitors. One must not underestimate the importance in this case of the typical aspect of the financial arrangement covering undertakings which are to a large extent in a situation of mutual competition, actual or potential, direct or indirect, total or partial, temporary or permanent. (b) Moreover, even if the applicant's contention were in fact correct, it would still be the case that a mere withdrawal ex nunc would have left it with an illegal advantage, at least in relation to the few non-integrated undertakings among its ‘true competitors’. (c) Furthermore, it is quite clear that the undertakings described by the applicant as ‘true competitors’ do not use their own ferrous scrap exclusively; they are therefore liable on this account for the equalization levy, and consequently have an interest in seeing that other contributors are not illegally exempted. (d) Finally, it is contended that the disputed Decision involves a discrimination as between the applicant and its competitors which continue to enjoy the exemptions provided for by the basic Decisions regarding own resources. This contention is directed fundamentally against the very system set up by the said Decisions; and since the applicant has not challenged the legality of the basic Decisions, this complaint cannot be sustained. Moreover, the Court has several times already pronounced (in the SNUPAT judgment and in the judgment in Joined Cases 32 and 33/58 on 17 July 1959) upon the legality of the system which exempts own resources and imposes equalization on ferrous scrap circulating between different legal persons, although closely integrated. From all the foregoing considerations it follows that this complaint must also be dismissed.

5. The applicant alleges more generally that the defendant failed to make an appraisal of Hoogovens' actual and particular situation, as required by the SNUPAT judgment. It is certainly true that, in weighing the conflicting interests on which the choice between the ex nunc and ex tunc revocation of an illegal decision is to depend, it is important to bear in mind the actual situation of the parties concerned. It is clear, however, that this was done in the present case. In fact, it is evident from findings 2 to 4 above that in the disputed Decision full account was taken of the actual situation of the applicant as regards the financial interests in question, the particular consequences which a retroactive withdrawal would entail for the applicant and its competitive position. Moreover, it is clear that at the meeting on 15 May 1961 the High Authority received the representatives of the applicant, who laid before the defendant all their arguments in favour of the solution most advantageous to their interests. It appears, therefore, that the defendant, in arriving at its Decision, was in full possession of the facts of the case. In these circumstances, one cannot but conclude that the High Authority, in its appraisal of the situation, had regard to the possible effects of each of the alternative solutions. This complaint is therefore unfounded.

6. The applicant repeats the argument that a retroactive withdrawal would not be permissible in this case because the reasonable period of time within which such a withdrawal would be possible had long since expired. The SNUPAT judgment annulled the implied Decision refusing such withdrawal ‘because it is based on the notion, which is incorrect in law, … that the High Authority had no power to withdraw’ disputed exemptions with retroactive effect. It follows that the test of ‘the reasonable period of time’ is only one of the factors to be taken into consideration in weighing up the various interests, and that in this case it is of relatively little weight. Moreover, there is a distinction to be drawn, because the rule which requires that withdrawal must take place within a reasonable period of time varies in substance and extent according to the circumstances. In fact, this rule, which may be of considerable importance where it is a question of decisions creating individual rights, is of less significance where it is a question of purely declaratory decisions. There can be no doubt that the exemption granted to the applicant did not constitute a measure creating rights, as the High Authority has no power to grant derogations or exemptions from the payment of equalization contributions, but power only to declare that the obligation to pay the levy does not arise from the basic Decisions. Its Decision to regard group ferrous scrap recovered by an undertaking which is locally integrated with the consumer undertaking as own arisings was therefore only a declaratory measure. For this reason also, the question of ‘a reasonable period of time’ could not be of decisive importance in this case, but constituted only one element in the applicant's special interest in the respect for the principle of legal certainty, a principle which the High Authority was bound to, and did, take into account. However, the foregoing consideration does not mean that, even in these cases, the time factor has not a part to play; the competent authority can withdraw an exemption with retroactive effect only by taking into account the fact that the beneficiaries of the revoked Decision could assume in good faith that they would not have to pay contributions on the ferrous scrap in question, and could arrange their affairs in reliance on the continuance of this situation. Consequently, one must see whether the considerations set out in the preamble to the disputed Decision (thirteenth recital) are correct. The disputed Decision rightly states that: As to the period after this date, the applicant knew that the undertakings subject to the financial arrangement were showing a clear inclination to bring before the Court the question whether the Decisions relating to the institution and application of the equalization system were justified and, in particular, to make an issue of situations in which there was, or appeared to be, an element of discrimination. In these circumstances, the applicant could not — strictly speaking — feel certain at any time that the distinction made between ferrous scrap circulating within the Hoogovens-Breedband group and ferrous scrap circulating within other industrial groups would be upheld by the Court. It follows that this complaint is also unfounded.

‘Hoogovens' conviction that it was conclusively entitled to the benefit of the exemption could have had no foundation until the High Authority made its attitude known on 18 December 1957’.

7. The applicant alleges that the defendant did not take into consideration its own responsibility, arising from the fact that the High Authority had (wrongly) recognized that the ferrous scrap in question was not assessable and continued to maintain this position in the SNUPAT case. The applicant is estopped by its own conduct from putting forward such an argument, which amounts to venire contra factum proprium. Nevertheless, it is proper for the Court to examine the validity of that argument of its own motion. In this connexion, the Court is of the opinion that the attitude adopted by the High Authority until the SNUPAT judgment was certainly not a wrongful act or omission, since the correct interpretation of the basic Decisions on the distinction between bought ferrous scrap and own arisings has proved to be very debatable. Since the High Authority could not be charged with a wrongful act or omission, its attitude could not entitle the applicant to more favourable treatment. Moreover, the applicant's argument amounts to saying that the High Authority, which itself neither finances nor profits from the financial arrangement, should make the undertakings which it administers pay directly for the consequences of its own errors. For this reason, too, the said argument is unacceptable. Consequently, this complaint must likewise be dismissed.

8. It is evident from the considerations set out above that the disputed Decision correctly weighed the public interest against the private interests involved. The public interest is distinct from the private interest of the other undertakings consuming ferrous scrap. Such a concept would mean comparing only the private interests of the applicant and the private interests of the other undertakings. In fact, as the SNUPAT judgment has already recognized, the interest of the Community, that is to say, the public interest, requires ‘ensuring the proper working of the equalization scheme, which depends on the joint liability of all undertakings consuming ferrous scrap; this interest makes it necessary to ensure that other contributors do not permanently suffer the financial consequences of an exemption illegally granted to their competitors’. The withdrawal of the disputed exemptions with retroactive effect quite rightly takes account of this public interest which in this case prevails over the private interests of the applicant. It should be borne in mind, moreover, that by the disputed Decision the High Authority acted as leniently as possible in the circumstances, as it permitted the applicant to pay the arrears of contributions by instalments. The applicant is wrong, therefore, in alleging that the disputed Decision offends against the principles laid down by the judgment of the Court of 12 June 1958, in the case of Chasse v High Authority (Rec. 1959, p. 190). In the circumstances, the Court sees no reason in law to set aside the appraisal made by the High Authority.

III — The reasons given for the contested Decision

The applicant alleges that the contested Decision shows a lack or insufficiency of reasons, constituting an infringement of an essential procedural requirement.

This complaint cannot be accepted by the Court. Although the reasons may appear to be inadequately elaborated, careful examination shows them to be to the point; they are, therefore, sufficient to justify the disputed Decision.

A statement of reasons must be deemed adequate, under the terms of Articles 15 and 33 of the Treaty, when it enables both the parties concerned and the Court to discover the essential elements of the High Authority's reasoning. In this connexion, the contested Decision makes clear the reasons which led the defendant to give preference in this case to the principle of legality. Moreover, if the defendant did not think it necessary to take note of the effects — effects of some consequence, no doubt — which a withdrawal ex tunc would, on a concrete appraisal of the interests involved, entail for the applicant, that is easily explained by the fact that, in the opinion of the High Authority, the well-known prosperity of the applicant company reduced the relative importance of those effects in the context of the balance balance of interests.

This reasoning emerges clearly from the scheme of the contested Decision, both for the party to whom it was addressed and for the Court, so that the statement of reasons cannot be said to be substantially inadequate in this regard.

According to the applicant, there is a logical inconsistency between the operative part of the Decision and the recital that ‘the retroactive withdrawal of an illegal exemption has the effect only of removing an unjustified advantage and re-establishes equality between Hoogovens and other contributors’. The applicant considers that ‘to state as a matter of law that this inequality constitutes a discrimination which is contrary to the Treaty and should in consequence be abolished is not to weigh up the principle of legal certainty and the principle of legality: it is to ignore, a priori, one of these two principles’.

The applicant fails to appreciate, however, that the words cited, as appears from their context, are not intended, directly and by themselves, to justify the withdrawal, but are primarily intended to refute an actual or potential argument of Hoogovens, namely, ‘that a burden is thereby being imposed upon it which is disproportionate to the advantages which it entails for other undertakings’.

Looked at in this light, the recital impugned retains its full meaning and is consistent with the operative part of the Decision.

Consequently, this complaint must be dismissed.

According to the applicant, the defendant was wrong in supporting its Decision on the ground that ‘withdrawal … ex nunc could have no practical effect since the equalization system has been abolished’. The applicant argues that this circumstance should militate in favour of maintaining the exemption.

The Court cannot accept this argument.

The fact that in this case withdrawal ex nunc would allow the consequences of the illegality which was committed to remain in being is obviously an argument which militates in favour of withdrawal ex tunc.

This complaint must therefore be dismissed.

IV — Costs

Under the terms of Article 69 (2) of the rules of Procedure the unsuccessful party shall be ordered to pay the costs.

The unsuccessful party has failed in all its submissions in the present case.

It must therefore be ordered to bear the costs, including those of the intervention.

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 15, 33 and 34 of the Treaty establishing the European Coal and Steel Community; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the judgment of the Court of 22 March 1961; Having regard to the Rules of Procedure of the Court; THE COURT hereby:

1 Dismisses the application as unfounded;

2 Orders the applicant to pay the costs, including those of the intervention.