JUDGMENT OF 5. 12. 1963 — CASE 28/63 HOOGOVENS v HIGH AUTHORITY

In Case 28/63

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

gives the following

JUDGMENT

Issues of fact and of law

I — Facts and procedure

The applicant company (hereinafter referred to as ‘Hoogovens’) carries out the rolling of steel ingots which are provided for this purpose by other undertakings, one of which is Breedband N.V. The scrap recovered during this operation is considered by Hoogovens as its own production and therefore exempt from equalization, and has been regularly declared as such to the bodies responsible for administering the equalization scheme without this being disputed by the latter.

On 15 June 1962, the High Authority informed the applicant that this scrap was, ‘if an actual agreement exists for rolling’, to be considered not as own scrap belonging to the applicant Hoogovens but to the factory giving the order, and should thus have been subjected to the levy as bought scrap.

By registered letter with form of acknowledgement of receipt, dated 8 April 1963, the Director and Director General of the Directorate General for Steel of the High Authority, pursuant to Decision No 7/63 and subject to the conditions contained therein, sent to the applicant a full statement of account setting out all its credits and debits inclusive of principal and interest, relating to the equalization scheme. This letter contains the following passage in particular :

‘In accordance with Article 6 of Decision No 7/63 you are requested to pay the sum of 8671348.34 Fl. to the High Authority at one of the banks listed in the above Article.’

Article 6 of Decision No 7/63 fixes the date for payment as 31 May 1963. The letter of 8 April 1963 also bears a reference ‘to be quoted when making payment’.

On 13 May 1963, Hoogovens lodged at the Court Registry an application for the annulment of both the decision contained in the High Authority's letter of 8 April 1963 and Article 6 of the High Authority's Decision No 7/63 of 3 April 1963 and for the High Authority to be ordered to pay the costs of the case.

The arguments put forward by the applicant in support of its application are essentially as follows:

The scrap resulting from rolling under contract constitutes its own resources which are not subject to the levy;

In any case, the High Authority is not entided to require from it in relation to this scrap a contribution to the rebate of interest in favour of other undertakings which have fulfilled their financial obligations with regard to the equalization scheme.

The High Authority is wrong to refuse to grant it a postponement of the time for payment of its contribution for the group scrap.

On 14 June 1963 the High Authority submitted a request under Article 91 (1) of the Rules of Procedure that the Court should give a preliminary ruling on the admissibility of the application. The Court allowed this request and the oral procedure took place on 10 October 1963. The Advocate-General delivered his opinion on 16 October 1963.

II — Conclusions of the parties as to admissibility of the application

At this stage in the proceedings where the only issue is that of admissibility the High Authority claims that the Court should:

‘declare inadmissible, by a decision under Article 91 (1) of the Rules of Procedure, the application made by the applicant on 8 April 1963 and order the applicant to pay the costs.’

The applicant in the main action, the defendant in so far as the present objection is concerned, claims that the Court should place on record that the defendant:

leaves it to the Court to decide whether the procedure referred to in Article 91 of the Rules of Procedure of the Court should be applied;

leaves it to the Court to decide whether either its subsidiary application or its principal application is admissible;

maintains its submission that the High Authority be ordered to pay the costs of the action.

III — Submissions and arguments of the parties as to admissibility of the application

The High Authority maintains that the application is inadmissible in so far as it relates to the letter of 8 April 1963 on the ground that the latter does not constitute a decision. It claims that the disputed letter is merely a statement of the amount payable by the applicant at the present stage of the liquidation of the equalization scheme, together with a request for payment of this sum. Merely fixing a balance payable by the applicant does not in itself constitute a decision within the meaning of Articles 14, 15 and 33 of the Treaty.

Firms to which such letters were sent could either agree with the statement of account and pay, or make known their objections; the High Authority only takes individual decisions, on which an application to the Court can be based, in cases where it considers itself unable to admit the complaints made and therefore to alter the statement of account.

The High Authority claims further that the letter in dispute does not comply with the formalities required for a decision and laid down by general Decision No 22/60 of the High Authority of 7 September 1960 on the carrying into effect of Article 15 of the Treaty (Official Journal of the European Communities of 29 September 1960, pp. 1248/60). It bears only the signatures of a Director and a Director-General There is nothing to show that it is a decision of the High Authority which is being notified. Furthermore, there is no statement of the reasons on which it is based.

The High Authority maintains that its view is the only one compatible with the principles of good administration and is also in accordance with the interests of the applicant. Maintenance of the requirement of legal certainty, which Decision No 22/60 is designed to ensure, is likewise in the interests of the applicant, and it is not impossible that there will be a satisfactory outcome of the examination of its complaints by the administration.

The applicant in the main action, the defendant in the present proceedings, states that it leaves it to the Court whether the letter of 8 April 1963 constitutes a decision open to appeal and requests only the placing on record of:

tne declaration by tne High Authority that the disputed letter is not in the nature of a decision, so that the statement of account contained therein cannot constitute the ‘final statement of account’ referred to in Article 6 of Decision No 7/63, nor can it therefore constitute formal notification;

the declaration of the High Authority that before making a decision it is prepared to consider the applicant's complaints at administrative level and to give its official view thereon, together with a statement of reasons.

The High Authority also considers that the conclusions in the application directed against Article 6 of Decision No 7/63 are inadmissible, since they relate to a general decision, and the hypothetical and meaningless reference to a misuse of powers cannot mitigate this defect.

The applicant in the main action, while stating that it disputes the argument of the High Authority, leaves this point to the Court to determine.

The applicant in the main action maintains its submission that the Court should order the High Authority to pay the costs of the action, even if it does not declare the action admissible.

It claims that both the case-law of the Court and the point of view adopted previously by the High Authority itself led it to the conclusion that the letter of 8 April 1963 was a decision and persuaded it that it was obliged, under penalty of being time-barred, to contest the legality of the letter within the time-limit set by the Treaty. The company claims that the confusion which has arisen as to the legal effect of the disputed letter is exclusively the fault of the High Authority, which should bear the consequences.

The High Authority contends that the applicant in the main action should be ordered to pay the costs.

Grounds of judgment

It is established that on 8 April 1963 the relevant departments of the High Authority sent to the applicant undertaking a registered letter with form of acknowledgement of receipt. The letter stated that the applicant was requested to pay by 31 May 1963 at the latest the sum of 8671348.34 Fl. by way of contribution to the imported ferrous scrap equalization scheme.

Fearing that the content of these letters would be regarded as a decision within the meaning of the ECSC Treaty, the recipient undertaking made an application for annulment of the alleged decision and, secondarily, for the annulment of Article 6 of the Decision of the High Authority No 7/63. The High Authority has submitted that the application is inadmissible.

I — On the admissibility of the application

In support of this objection on the ground of inadmissibility the High Authority points out that the letter of 8 April 1963 does not constitute a decision and cannot therefore be made the subject of an application. The applicant undertaking has left this matter to the discretion of the Court.

It is appropriate to inquire whether the letter constitutes a decision within the meaning of Article 14 of the Treaty. According to the provisions of this Article, the High Authority ‘shall… take’ decisions which ‘shall be binding in their entirety’.

The High Authority in its Decision No 22/60 has considered it necessary to establish ‘as a matter of obligation’ the form of these decisions and has laid down the conditions with which it undertakes to make such measures comply.

In a subsequent ‘communication’, (Official Journal of the European Communities, pp. 1250/60), the High Authority has prescribed that if these formalities are not carried out, then the parties concerned may ‘infer that the measures in question do not entail any legal obligations’.

Although it is desirable to ensure observance of the requirements prescribed in the appropriate manner by the High Authority, which enable governments, institutions and undertakings to identify decisions from their actual form, it does not follow that a measure should not be considered a decision, merely because it fails to comply with some inessential requirement of form, if the fundamental conditions underlying the concept of a decision within the meaning of the Treaty are otherwise satisfied.

According to Article 14, decisions shall be taken by the High Authority, that is to say by its members sitting as a body. As such decisions are ‘binding in their entirety’, however, they must show that they are intended to have legal effects upon those to whom they are addressed.

It follows from the natural meaning of the word that a decision marks the culmination of procedure within the High Authority, and is thus the definitive expression of its intentions.

Finally, it is necessary for the legal protection of all those affected that they should be able to identify by its very form a decision which involves such serious legal consequences, in particular a compulsory time-limit for exercising the right of instituting proceedings against it. In particular, for a measure to amount to a decision, those to whom it is addressed must be enabled to recognize clearly that they are dealing with such a measure.

It follows therefore from all these considerations that a decision must appear as a measure taken by the High Authority, acting as a body, intended to produce legal effects and constituting the culmination of procedure within the High Authority, whereby the High Authority gives its final ruling in a form from which its nature can be identified.

Any measure, therefore, which, in particular, does not appear to have been debated and adopted by the High Authority and authenticated by the signature of one of its members, cannot be regarded as a decision.

In the present case, in spite of the apparently peremptory nature of the letter in dispute, it cannot be considered as a decision within the meaning of the Treaty. In fact, there is nothing to indicate that the High Authority, sitting as a body, had discussed and resolved upon it. The applicant was merely ‘requested’ to make payment, and, according to the explanatory note' enclosed with the contested letter, to submit any observations it might have. Consequently the application is inadmissible.

The subsidiary application made by the applicant company against Article 6 of Decision No 7/63 of 3 April 1963 must be treated in the same way as the principal application and also be declared inadmissible.

II — Costs

Under the first paragraph of Article 69 (3) of the Rules of Procedure, the Court may order that the parties bear their own costs. The peremptory tone of the letter involved in these proceedings, accentuated by the mode of despatch, and the setting of a time-limit for payment, were capable in themselves of creating uncertainty in the applicant's mind about the nature of the said letter. The High Authority, having by its own conduct induced the applicant to institute proceedings in order to safeguard its rights, must bear the greater part of the costs. It is appropriate that these should be consolidated and that the High Authority should bear three-quarters thereof and the applicant one-quarter.

On those grounds, Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur; Upon hearing the parties; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the European Coal and Steel Community, especially Articles 14, 15 and 33; Having regard to the Protocol on the Statute of the Court of Justice of the European Coal and Steel Community; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 69 and 91; THE COURT hereby:

1 Rules that the application submitted by Koninklijke Nederlandsche Hoogovens en Staalfabrieken N.V. is inadmissible;

2 Orders the High Authority of the European Coal and Steel Community to bear three-quarters of the costs and the applicant to bear one-quarter.