JUDGMENT OF 21. 1. 1965—CASE 108/63 MERLINI v HIGH AUTHORITY

In Case 108/63

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

gives the following

JUDGMENT

Issues of fact and of law

I — Statement of facts

By order of 23 February 1957, the Tribunale di Torino agreed to allow the applicant to enter into a provisional scheme of arrangement with its creditors. The arrangement was approved on 21 December 1957. Since the due dates for payments laid down in the arrangement were not complied with, the Tribunale di Torino, by judgment of 20 February 1960, pronounced the annulment of the arrangement and declared the applicant to be in a state of insolvency. At the commencement of the winding-up proceedings, the applicant proposed an arrangement on the following terms: the payment in full of the legal and administrative costs of the bankruptcy and of the preferential creditors together with a dividend of 40 % for the unsecured creditors. By an order of 5 May 1961, the judge in charge of the proceedings (giudice delegato) authorized the applicant to propose this arrangement which was approved by the Tribunale di Torino by its judgment of 4 September 1961.

For the period from April 1954 to February 1957 (when the Merlini company ceased to function in the iron and steel industry) the applicant had declared the purchase of 25763 metric tons of ferrous scrap. In order to prove the debt in the winding-up on the basis of the said declarations, the High Authority provisionally fixed the amount owed by the applicant by way of equalization contributions at 102649693,75 lire. By its judgment of 10 May 1963, the Tribunale di Torino excluded this claim against the assets ‘as it was not certain, liquid and due’.

Checks carried out in the meantime on the accuracy of these declarations led the High Authority to find that the assessable tonnage of ferrous scrap bought by the Merlini company during the period in question had amounted to 54263 metric tons (an earlier assessment, communicated to the administrator of the winding-up (curatore del fallimento) on 18 August 1961, having fixed the consumption of ferrous scrap at 40678 metric tons). This finding, based on the ratio of 950 kilowatt-hours per metric ton of liquid steel produced, was communicated to the administrator on 4 July 1962. In pursuance of the equalization provisions in force in 1962, the applicant's debt was thus increased to 238700861,00 lire, in accordance with the statement of account in the decision of 25 July 1963. By virtue of Decision No 7/63 laying down new criteria for calculation, the previous decision of 25 July 1963 was revoked and the Merlini company's debt was increased to 315018263,00 lire.

The result of the new calculations was brought to the attention of the applicant by two decisions of 30 October 1963, notified on 15 November 1963, one of which fixed the assessable tonnage of ferrous scrap bought by the Merlini company, whilst the other contained the order to pay the sums owed. These two individual decisions are the subject of the present application, filed on 20 December 1963.

II— Conclusions of the parties The applicant claims that the Court should:

‘As a preliminary measure, in accordance with Articles 39 and 33 and Annex II to the Treaty and with Article 83 (1) of the Rules of Procedure, order the operation of the presently contested decisions of 30 October 1963 to be suspended; Accept as prima facie admissible the relevant facts and submissions which may be submitted when the defendant's statement of defence is known; In accordance with Article 33 of the Treaty declare void the decisions of 30 October 1963 taken with regard to the applicant company; Order the defendant to pay the costs.’

The defendant contends that the Court should:

‘Dismiss the proceedings instituted on 14 December 1963 by the undertaking Officine Elettromeccaniche Ing. A. Merlini, a limited liability company in liquidation; having its registered office in Turin, and order it to pay the costs.’

III — Submissions and arguments of the parties

The applicant puts forward the following submissions in support of its conclusions :

Infringement of the rules of law arising from national laws;

Failure to state reasons;

Barring of the right to claim new debts for the period in question in view of the independent checks carried out;

Misuse or powers.

On admissibility

a) The defendant disputes the admissibility of the following submissions: The applicant does not define its position with regard to the merits of these objections.

1) Infringement of the rules of law arising from national laws, as this does not appear among the various grounds laid down in Article 33, of the Treaty, on which the present application is founded;

2) Barring of the right to claim new debts relating to the period in question, in the absence of any rule which could be used as an argument precluding the High Authority from pleading such a bar against the applicant for recovery of the sums due by way of equalization contributions.

b) The defendant finds that the applicant's Counsel inserted in the reply a statement in the form drawn up by the Merlini company, and added his signature to it, on the pretext that he had been unable to revise it owing to circumstances which had arisen in the meantime and in view of the expiry of the period of time for submitting the reply. The defendant considers that the statement in question does not conform to the provisions of Article 17; of the Protocol on the Statute of the Court of Justice and Articles 32 to 37 of the Rules of Procedure, and expresses reservations with regard to the admissibility of the submissions contained in it, arguing that, for that reason, it had not replied point for point to the arguments therein contained, which depart considerably from the position taken up in the application.

On the substance of the case

A — Infringement of the rules of law arising from national laws

The applicant states that, in its judgment of 4 September 1961 the Tribunale di Torino approved the scheme of arrangement proposed by the Merlini company under which ±e creditors were to be repaid their debts to the extent of 40 %, and observes that, by the contested decisions, the High Authority has created an enforceable right for the entire amount of its debt. It has thus adopted a measure plainly at variance with Italian fiscal law. It could not be maintained that the High Authority had limited and would limit itself at the stage of execution to collecting 40 % of its debt contained in the contested decision. The title was established after the approval of the arrangement, and the text of Article 4 of the contested decision states that it amounts to an enforceable order in the sense of Article 92 of the Treaty.

In the statement annexed to the reply, the applicant adds that the new rate of equalization provided for by Decision No 7/63, as opposed to that indicated in Decision No 19/60 includes the interest added under various provisions to the equalization debt and due — or so it is at least presumed — on 31 March 1963. By thus adopting the rate provided for by Decision No 7/63, the contested decision infringes Article 55 of the Legge Fallimentare Italiana (the Italian Bankruptcy Law), according to which when a debt against an undertaking in liquidation is concerned, interest may not be taken into account.

The defendant observes that its power to take enforceable decisions, recognized by the combined provisions of Articles 14, 15 and 92 of the Treaty, has its counterpart in the power of the Italian administration to make claims against private persons by enforceable orders. On the same ground as that administration the High Authority may take a decision for the entire amount of its claim, since no rule requires it to reduce its claim to 40 %. It has no intention of infringing the conditions laid down in the arrangement, since the recovery in full of the debt was excluded by Article 51 of the Italian Bankruptcy Law and Decision No 7/63 in itself contains a special provision intended to cover the increase in charges arising from the impossibility of recovering all debts for reasons similar to those set forth in the present dispute.

The defendant finally claims that the plea raised in the statement annexed to the reply is inadmissible, both because it amends the ‘petitum’ of the application by disputing the legality of the General Decision No 7/61 which governs the question of interest, and because it does not come within the jurisdiction of the Court to consider the legality of a decision of the High Authority in relation to Italian law. Under Article 3 of Decision No 7/61 interest owed to creditor undertakings is not to be made the liability of debtor undertakings alone, but of all the undertakings to whom the system applies, and forms a part of the cost of the equalization scheme on the same basis as the cost of its management.

B — Failure to state reasons

The applicant maintains that the two decisions of 30 October 1963 do not have a sufficient statement of reasons with regard to establishing both the quantities of assessable ferrous scrap and the contribution due and that it has consequently been unable to check the High Authority's statements of account, to draw up its observations or, if appropriate, to define the scope of the dispute.

Having observed that this submission is not precisely formulated, the defendant notes that the method followed in drawing up the disputed decision is identical to that employed in similar cases, in particular in the contested decisions in Case 18/62, where the Court did not find any failure to state reasons. Taking account of the powers accorded to the High Authority by Article 47 of the Treaty and of the obligation arising therefrom on undertakings to provide the High Authority with the facts necessary to accomplish its task, the reason for the estimated assessment which it made is to be found in the Merlini company's failure to produce its accounting documents as can be seen from the fourth, fifth and seventh recitals of the decision. Moreover, the fact that the applicant had perfectly well understood the reasoning followed by the High Authority when the latter made its assessment proves that the contested decisions adequately state the reasons on which they are based.

C — Preclusion of the right to claim new debts for the period in question

The applicant begins by observing that the High Authority should from the outset have taken as its basis of assessment the quantity of ferrous scrap which it declared. As the winding-up proceedings were under way the High Authority was precluded from instructing its inspectors to carry out a new check. In fact such checks were only permitted before the Merlini company ceased its operations in the iron and steel industry and thus, owing to the winding-up, was unable to supply the required information for the check. Owing to this fact alone, the defendant is precluded from making assessments on the basis of the said checks. Moreover, once the quantity of assessable ferrous scrap was fixed at 40678 metric tons, the High Authority was not entitled to increase it to 54263 metric tons. The High Authority was thus estopped from increasing the earlier debt from a sum of approximately 102000000 lire to approximately 315000000 lire, more than six years after the date when the undertaking ceased operations in the iron and steel industry.

According to the defendant, the provisional nature of the initial assessments is in no way due to an administrative blunder by the High Authority but to the fact that they were based on the quantities declared by the Merlini company, and on the rates in force at the time when it was urgendy required to prove the debt in the winding-up of the applicant company. The establishment of the amounts of the contributions made before the solution of all the problems posed by the liquidation of the equalization scheme could not therefore be considered as definitive. In its decisions the Court has recognized that these said amounts are only of a provisional nature pending the final liquidation. The defendant thus refers to the basic principle of the equalization scheme and to the case-law of the Court to demonstrate the legality of the earlier assessments. Consequently, no discrimination was committed against the Merlini company, which is in the same position as the other undertakings which declared their consumption of ferrous scrap to be lower than it really was and which, after the checks of 1958, failed to produce the accounting documents relating to their purchases of ferrous scrap. After correcting the declarations with a first assessment, the High Authority was obliged to make an estimated assessment of the consumption, particularly by extrapolation, a process recognized as a proper one by the Court itself. The disparity existing between the rates respectively fixed by Decisions Nos 19/60 and 7/63 is far from unjustified. In fact the charges for the costs of management and of supervision taken into consideration in Decision No 19/60 only related to the costs incurred by the Caisse de Bruxelles to which were added the charges for the costs of management of the Caisse de Luxembourg, mentioned in Decision No 20/60, with which the applicant must be acquainted. To these sums are still to be added those which became due on the same grounds in the course of the three years elapsing between the calculation of the rates established in Decisions Nos 19/60 and 20/60 and the calculation in Decision No 7/63.

D — Misuse of powers

1. Error in the assessment of the quantities of assessable ferrous scrap

The applicant observes in the first place that the increases made by the High Authority in its declarations of consumption of ferrous scrap are quite arbitrary and constitute a misuse of powers. Any estimated or provisional assessment must be subject to rules capable of precluding arbitrariness, which is precisely the principle infringed in this case. In Case 18/62, the Court accepted calculations on the basis of the ratio between electricity consumed and ferrous scrap used, since in that case there were no other criteria available in consequence of the alleged destruction of the undertakings accounting documents. Since the Merlini company properly filed its declarations and did not destroy any documents, it could not be subject to a system of assessment which assumes an absence of documents and is not intended to apply where a dispute is founded on documents. In the second place the very source from which the High Authority obtained the figure relating to the consumption of electricity (41086060 kilowatt-hours) was not notified to the applicant. It is impossible to presume that the High Authority derived the information relating to the consumption of electricity from the ‘Consumi B’ forms sent to the I.S.A. (Industrie Siderurgiche Associate, of Milan), since in the contested decisions it refers to the assessments carried out by ‘the inspectors of the High Authority’. Moreover, these inspectors could not have obtained the said figures for the period from August 1954 to November 1956 (namely 28 months) from the ‘Consumi B’ forms which were in the possession of the Merlini company, both because these forms were only delivered subsequently and because the only forms sent by the undertaking to the High Authority relate to another period (January 1955 to April 1956, namely 16 months) and to another consumption of 23654000 kilowatt-hours. The abstract and theoretical criterion adopted by the High Authority (the parameter of electricity/ferrous scrap used) in no way takes into account the irregularity of the rhythm of production from one month to the next, but limits itself to a fictional division of an aggregate figure by the number of months in the entire period under consideration. Even if for the sake of argument the accuracy of the consumption of electricity fixed by the High Authority for the period from August 1954 to November 1956 is admitted, together with the ratio of 950 kilowatt-hours per metric ton of liquid steel produced, the quantities of ferrous scrap consumed by the Merlini company would nevertheless be less than those alleged by the High Authority, since a large proportion of the electricity was used for the production of electrical apparatus, for castings, for the operation of a sand extraction plant and for the requirements of furnaces for reheating, for annealing or for baking cores or moulds, all operated electrically. During the period in question, the undertaking produced ferrosilicon for its own use, giving rise to a considerable consumption of electricity, and, since for a certain period the supply company cut off the electricity owing to the imminent bankruptcy of the Merlini company, its principal furnace was hired to the S.A.C.S. company. All this information could have been supplied in good time to the High Authority, if it had enabled the applicant to inform itself of the basic factors in the contested decision.

The defendant justifies the increases made in the Merlini company's declarations by referring to the decision of the Court in Case 18/62, and more precisely to the passages ruling on the legality of the indirect calculation applied by the High Authority (the parameter of electricity consumed/ferrous scrap used) and on the consequences following upon a failure by undertakings to observe the provisions of Article 47 of the Treaty. When the checks were carried out in September 1958, the Merlini company did not comply with the request for documentary evidence for the purposes of verifying the correspondence between the declared consumption of ferrous scrap and the actual consumption (which request moreover did not exceed the requirements of Article 2214 of the Italian Civil Code) and in consequence the estimated assessments carried out by the High Authority are entirely justified.

The High Authority notified the undertaking of the outcome of the checks and that it had been necessary to make the calculation on the basis of the consumption of electricty. The letter of 18 August 1961, to which was annexed the particulars relating to the calculation carried out, was followed by that of 14 February 1962 containing additional details and by that of 4 July 1962 containing the factors upon which the contested decision was founded. The undertaking did not react in any way to these communications, all addressed to the administrator of the winding-up (who under Italian law administers the insolvent debtor's assets). It has therefore not been proved that a misuse of powers has been committed against the applicant, either as regards Decision No 13/58, or a fortiori as regards the individual decision of 30 October 1963.

2. Error in fixing the equalization rate applicable

After stating that large undertakings were better placed to supply themselves with ferrous scrap from third countries—since purchases made outside the Common Market had to be made by payment in advance and the purchaser had to have a bonded warehouse at its disposal — the applicant declares that these undertakings naturally had an interest in wording their declarations so as to derive the maximum advantage from the recovery of the expenses relating to these purchases, with the consequence that the smaller undertakings, which were obliged to supply themselves from within the Common Market, were by no means on an equal footing. Only an infringement of the prohibition against dominant positions could, according to the applicant, raise the equalization contribution to a rate as high as that indicated by the last statements of account. In its reply, the applicant submits a series of technical considerations and tries, in reliance upon a certain number of material factors, to show how the large undertakings attempted, at the expense of the small ones, to derive the maximum profit from the equalization scheme (declaration of a price lower than the actual price) with the aim of maintaining equalization prices at very low levels.

The defendant observes in the first place that the amount of the charge imposed on all the undertakings is in direct relation to their consumption of ferrous scrap and thus to their corresponding economic and productive capacity. In the second place it is not quite correct to allege that only large undertakings were able to supply themselves with ferrous scrap imported from third countries, as several other Italian undertakings, even smaller than the Merlini company, had requested and obtained enormous quantities of such ferrous scrap, which met up to 50 % of their total requirements. The applicant was unable to supply itself from the market in third countries only because it did not have the necessary funds and it was impossible for it to obtain loans from the banks. The observation that large undertakings obtained favourable conditions for their purchases of ferrous scrap outside the Common Market is not only unwarranted but does not take account of the fact that the High Authority has no power to regulate competition in this connexion, since suppliers of ferrous scrap in third countries are not undertakings coming under the ECSC. Finally, the documents produced by the applicant are insufficient to prove the argument that the average weighed price of ferrous scrap purchased within the Common Market was miscalculated by the High Authority.

IV— Procedure

The written procedure followed the normal course.

On hearing the report of the Judge-Rapporteur and after hearing the Advocate-General, the Court invited the parties to submit certain evidence relating to various points of fact, and the applicant and the defendant lodged notes in reply thereto on 13 and 15 July 1964 respectively. On 28 September 1964, the defendant in addition submitted certain written observations in connexion with the information produced by the applicant in the latter's note lodged on 13 July 1964. In the course of the oral procedure the Court put additional questions to the parties.

On 2 December 1964 the Advocate-General delivered his opinion that the application should be dismissed and the applicant ordered to pay the costs.

Grounds of judgment

The admissibility of the application

The application was made in the correct form and in due time.

In its application the applicant submitted that the operation of the contested decisions should be suspended. However in accordance with Article 83 (3) of the Rules of Procedure any application for the adoption of an interim measure shall be made in a separate document. In this case the application for suspension must therefore be declared inadmissible.

In its rejoinder, the defendant objects to the admission of certain documents produced by the applicant by way of reply.

The applicant merely refers to an annexed statement which, as its counsel has admitted, was drafted by his client, and goes beyond the bounds of the application and the statement of defence by raising fresh submissions and arguments.

The requirements of Article 20 of the Statute of the Court of Justice annexed to the ECSC Treaty and Articles 37 et seq. of the Rules of Procedure do not permit the said statement to be accepted as a reply.

On the submissions

1. Infringement of rules of law derived from national laws

The applicant contests the disputed decisions on the ground that they infringe rules of law deriving from national laws and in particular from the Italian Law on Bankruptcy because of the fact that, by the said decisions, the High Authority created an enforceable title to the entire amount of its debt.

The defendant claims that the submission is inadmissible, since Article 33 of the Treaty, on which the application is based, only recognizes the grounds of infringement of the Treaty or of any rule of law relating to its application. In any event, the fixing, pursuant to Article 92 of the Treaty, of the full amount of the debt would in no way release the High Authority, when it in fact proceeds to enforcement, from the limitations and conditions of the arrangement approved in accordance with the national law applicable, so that its claims would be reduced to the percentage fixed by the said arrangement. On the other hand the fixing of this amount would form a necessary condition for calculating that percentage.

Compliance with national laws on the enforcement of claims in bankruptcy should be ensured, if the need arises, not by way of action under Article 33, but on the basis of Article 92 of the Treaty itself. In fact the second paragraph of the said Article is clarified by the more detailed but essentially identical provisions of the Treaties of Rome, that is to say, Article 192 of the EEC Treaty and Article 164 of the EAEC Treaty which in their final paragraph require that the courts of the country concerned shall have jurisdiction over complaints that enforcement is being carried out in an irregular manner. The application of Article 92 of the Treaty will thus enable the applicant if need be to request the protection of its rights deriving from national laws in respect of the conditions under which the present claim is enforced.

The submission is therefore inadmissible.

2. Failure to state reasons

The applicant considers that the two decisions of 30 October 1963 do not contain a statement of reasons sufficient to show how the quantities of ferrous scrap allegedly consumed and the rate of contribution adopted have been calculated.

The said decisions however give a clear and pertinent summary of the data on which they were based. The information to which the decisions refer was notified in advance to the applicant by letters of 18 August 1961, 14 February 1962 and 4 July 1962 which the applicant does not deny receiving and of which, moreover, it makes use itself in the application.

This submission must consequently be dismissed.

3. Preclusion of the right to present fresh claims in accordance with the new findings

The applicant claims that the High Authority was precluded from carrying out checks and inspections in September 1958, that is to say, after the applicant became bankrupt and ceased to operate its business. The High Authority is moreover said to be estopped from fixing the total amount of contributions due on the ground that it had earlier asked for a smaller sum.

The defendant argues that this submission is inadmissible, as such estoppel of a claim for the recovery of the sums due by way of equalization contributions does not exist in law. However the fact that such a rule is not mentioned in written law is not sufficient proof that it does not exist. Consequently this submission cannot be dismissed from the outset as inadmissible and the applicant's arguments must be considered.

With regard to the first head of the submission, there is nothing to prove that the powers of checking and supervision vested in the High Authority with regard to undertakings end when the latter cease to operate their business. On the contrary, it is obvious that these powers remain vested in it in so far as they relate to normal verification and checking of the operation of that business. This also holds good in the case of bankruptcy.

Moreover it cannot be claimed that the High Authority was guilty of excessive delay in its exercise of these powers with regard to the applicant. The checks in question were carried out in September 1958, two months after publication of Decision No 13/58 whereby the High Authority resumed the exercise of the powers unlawfully delegated to the agencies of the equalization scheme. The applicant wrongly considers that the said decision re-established the equalization scheme with retroactive effect, which, it alleges, is legally impossible with regard to an undertaking which has in the meantime ceased production. The judgment in case 9/56 (Meroni v High Authority) only found the previous rules on equalization illegal with regard to the provisions for the delegation of powers contained in them and did not touch upon the basic rules concerning the functioning of the scheme and the obligations on the part of undertakings. Thus Decision No 13/58 did not create new obligations but limited itself to reorganizing the exercise of the powers necessary for the proper functioning of the scheme.

Therefore, even if the checks in question had been carried out earlier, they would in all probability have been effected by the agencies of the said scheme and thus, in order to regularize them, it would have been necessary for the High Authority to repeat them after the issue of Decision No 13/58.

This complaint must therefore be dismissed.

With regard to the second head of the submission, it follows from the nature of the equalization scheme that the fixing of contributions remains essentially provisional until the final closure of accounts. Only then is it possible finally to establish the total sum of the expenses of administering the scheme and the contributions payable by each of the undertakings subject to it. Consequently the notification of certain sums due by way of equalization contributions does not estop the High Authority from reconsidering the amounts. It has not been disputed that the claim for a sum of 102649693,75 lire as a debt in the winding-up was purely provisional.

In the circumstances, the second head of the submission is unfounded.

4. Misuse of powers

a) The applicant commences by disputing the High Authority's right to make an estimated assessment in this case. According to Article 13 of Decision No 16/58 the High Authority is entitled to amend declarations which cannot be supported by valid proof. It is not disputed that in the case of the checks carried out in September 1958 the Merlini company was unable to supply the documents necessary to prove its earlier declarations. This complaint must therefore be dismissed.

b) In the absence of any documentary evidence, the defendant founded its estimated assessment on the consumption of electricity for production purposes and on the capacity of the undertaking's furnaces. In the course of the written procedure the applicant limited itself to stating that the particulars contained in the contested decisions were inaccurate both with regard to the consumption of electricity and to the ratio between it and the consumption of ferrous scrap, but it refrained from supporting its allegations by any proof. It was only in response to repeated questions from the Court that it finally produced an incomplete register, part of which was torn, headed ‘Meter Readings’, in an endeavour to establish that a considerable proportion of the electricity consumed was used for purposes other than the production of liquid steel. At the same time, in order to prove that a proportion of the electricity consumed was used by third parties, it produced a copy of a contract whereby it had hired a large furnace to another undertaking from 20 October 1956. However the figures for consumption of electricity entered in the said register appear as a whole to be identical if not higher than the amounts set forth in the disputed decisions. The assertion that these amounts do not correspond to the quantities in fact used for the production of liquid steel is contradicted by the replies which the applicant itself gave to the ‘Consumi B’ questionnaires relating to the consumption of electricity for the purposes of steel production, sent to the I.S.A. of Milan, and on which the High Authority partially based its assessment. The applicant explained this contradiction as arising from an error committed when the questionnaires were completed, but it was unable to furnish any evidence of this whatever. It is moreover common ground first that the quantity of ferrous scrap assessed by the defendant on the basis of the supplies of electricity corresponds to the capacity of the undertaking's small furnaces, excluding the large furnace in question, and secondly that when checks were made in September 1958 the High Authority's agents were informed that the said large furnace had never been in operation, so that they did not take it into consideration in calculating the undertaking's capacity. When the Court requested either production of the statements of account drawn up in connexion with the other party to the contract regarding the consumption of electricity or the production of documents relating to the payment of rent — which according to the contract was calculated in terms of the use of the large furnace — the applicant was unable to produce this evidence. Consequently the complaint must be dismissed.

c) The applicant takes strong exception to what in its view are the excessively high rates of equalization laid down for the consecutive years for the period 1954-1957 and claims that the increase in the rates from 1.65 lire per kilogramme of ferrous scrap purchased in March 1954 to 12 lire per kilogramme in March 1957 is only explicable through errors committed by the bodies running the equalization scheme which the High Authority ought to have put right. Such an allegation is not sufficient of itself for the rate to be considered illegal, the more so since the defendant explains that on the contrary this was not a permanent increase in the rate, but that it was increased and diminished in terms of the fluctuating prices on the world market of ferrous scrap. This complaint cannot therefore be upheld.

d) The final complaint is that the defendant failed to take into account the activities of the large iron and steel complexes which were interested in obtaining ferrous scrap on the world market and which led to the distortion of data relating to the internal market. The applicant did not supply any evidence in support of its allegations. This complaint must also be dismissed. The present submission of the applicant therefore cannot succeed and the application must be dismissed as unfounded.

Costs

Under the first paragraph of Article 69 (2) of the Rules of Procedure the unsuccessful party shall be ordered to pay the costs if they have been asked for in the successful party's pleadings. The applicant must therefore be ordered to pay the costs of the present action.

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 second paragraph of Article 33 and to Articles, 36, 53 and 92 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, especially Article 20; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 37 to 45 and 69; THE COURT hereby:

1 Dismisses Application 108/63 as unfounded;

2 Orders the applicant to pay the costs of the action.

1 Translator's Note: Article 20 appears to be meant.