JUDGMENT OF 2. 3. 1967 — JOINED CASES 9 AND 58/65 SAN MICHELE v HIGH AUTHORITY

In Joined Cases 9 and 58/65

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

gives the following

JUDGMENT

Issues of fact and of law

I — Summary of the facts

By an individual decision of 13 November 1964, the High Authority fixed the provisional amount of the equalization debts owed by the San Michele undertaking at 144055664 lire.

This decision was contested by Application 9/65.

The San Michele undertaking was declared insolvent by decree of the Tribunale di Salluzzo dated 22 June 1965.

A new individual decision of 5 October 1965 fixed the amount of its debt at 237809302 lire.

This decision was contested by Application 58/65.

On 27 April 1965, the applicant, on the basis of Article 91 of the Rules of Procedure, requested proceedings to be suspended pending the judgment of the Corte Costituzionale Italiana on the legality of the ECSC Treaty within the Italian legal system, a question raised by the Tribunale di Torino in another action between the same parties.

By an order of 22 June 1965, the Court dismissed this application.

By a letter of 28 January 1966, the High Authority notified the applicant that in implementation of the general decision of 15 December 1965 (Decision No 19/65) it had fixed the final rates of the equalization contributions and that consequently the balance due by San Michele was increased to 252494640 lire.

On receipt of this letter, which indicated in a note that it did not constitute a decision but was an intimation that it would be enforceable if payment were not made, on 30 March 1966 the applicant raised an objection under Article 91 of the Rules of Procedure.

By an order of 2 June 1966, the Court reserved its decision on the objection for the final judgment.

On 30 June 1966 the applicant lodged a statement calling on the High Authority to produce the original of a document the photocopy of which was allegedly incomplete.

By an order of 13 July 1966, the Court took official note of the Registrar's finding that the photocopy produced in the proceedings corresponded to the original produced by the defendant.

The written procedure followed the normal course.

In a schedule to the reply, the applicant lodged three accounting documents: the journal (1957 to 1958), the balance sheet book (31 December 1956 to 31 December 1960) and the register summarizing the movement of stocks (1957 to 1965).

The parties were requested by a letter from the Registrar dated 9 November 1966 to state in writing, prior to the hearing in open court fixed for the following 23 November, whether the said accounting documents had been submitted to the High Authority's investigators before the contested decisions were adopted.

The applicant replied in the affirmative. The defendant replied that only the balance sheet book had been submitted to the investigators. At the hearing on 23 November 1966 the Judge-Rapporteur asked two questions in connexion with the contested decision, regarding the reference by it to the accounting documents and the defendant's reply to the Registrar's letter.

At the same hearing, the Advocate-General asked for the production of the report of Mr Chaudat, an inspector of the High Authority, and other inspection reports.

On 25 November 1966, the defendant lodged a report by the Société Anonyme Fiduciaire Suisse of checks carried out between 25 and 30 June 1958, and a report by Mr Chaudat relating to a check carried out by Mr Chaudat and Mr Astorri, the defendant's inspectors, between 2 and 9 October 1962.

II — Conclusions of the parties

The applicant claimed, in its Application 9/65, that the Court should:

‘1. Declare that the individual decisions of 13 November 1964 (notified to the applicant on 24 December 1964) are vitiated on the grounds of infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers and therefore annul them; 2. Declare that General Decision No 7/63 is vitiated on the grounds of infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers; order the defendant to bear the costs; By way of inquiry: 3. Order that all the documents concerning the declarations, calculations, checks and written evidence relating to the purchase of ferrous scrap by the applicant (documents in the hands of the High Authority) together with the reports drawn up by the inspectors of the ECSC, Mr Lepape, Mr Chaudat and Mr Astorri, and those drawn up by the Société Fiduciaire Suisse should be produced to the Court and notified to the applicant; 4. Allow the production of the annexed documents; 5. Admit proof by the evidence of witnesses and by inquiries for the purpose of obtaining the opinion of a technical expert, the matters for such proof being set out in detail below; 6. Summon as witnesses Mr Lepape, Mr Chaudat and Mr Astorri of the Inspection Directorate of the High Authority, Mr Rochat, Mr Montavon and Mr Egger of the Fiduciaire Suisse and Mr Lionello Renaldi, Mr Giacomo Aragno and Mr Armando Castelli of the Acciaierie San Michele undertaking together with Mr Gianni Delzanno, the director in charge of the legal affairs of the steelworks; Matters for proof by the evidence of witnesses 1. Is it true that the Acciaierie San Michele began its activities in the iron and steel industry on 1 February 1957 and that it was only from that date that it purchased ferrous scrap? 2. Is it true that the consumption of electricity before 1 February 1957 pertains to the limited company “ISAP”, which ran into difficulties and was succeeded at the end of 1956 by San Michele as a result of a composition? 3. Is it true that the Acciaierie San Michele's electric furnace and transformer were purchased in 1930? 4. Is it true that the Acciaierie San Michele undertaking's 4 metric ton capacity electric furnace operated eight hours a day (one shift) on working days? Matters, for proof by means of the opinion of a technical expert 5. The expert appointed by the Court should state what were the average prices prevailing in the Community for internal bought scrap between 1 April 1954 and 30 November 1958 and what were the average prices prevailing on the international market for imported ferrous scrap (taking into account the average tonnages of No 2 baled scrap and of American machine scrap, the prices of which were quoted at less than 10 dollars and less than 4 dollars per metric ton respectively) between 1 April 1954 and 30 November 1958’.

The defendant contended in its corresponding statement of defence that the Court should:

‘dismiss as unfounded the application of 16 January 1965 made by San Michele SpA against the two individual decisions of 13 November 1964 and order the applicant to pay the costs of the action’.

The applicant claimed in its Application 58/65 that the Court should:

‘declare the present application admisible; order all the documents relating to the present case to be transmitted to the Court and notified to the applicant, in accordance with Article 23 of the Protocol on the Statute of the Court of Justice; formally declare illegal ana contrary to the facts the assessment of the “supplementary” quantities of assessable scrap (17497 metric tons, that is, a sum of 122696963 lire) for which the applicant is made liable by the contested decision: consequently annul the decisions them-selves for infringement of an essential procedural requirement, infringement of the Treaty and misuse of powers; pursuant to the first paragraph or Article 40 of the ECSC Treaty, declare that the High Authority is guilty of a wrongful act or omission in that it wrongfully failed to prevent a considerable number of acts of fraud (involving roughly 350000 metric tons at the time of the 11th General Report) from being committed against the iron and steel undertakings throughout the duration of the obligatory scheme for the equalization of bought ferrous scrap (the High Authority itself admitted in its 9th and 11th General Reports that these frauds had taken place); remit the question for consideration by a committee of experts to be officially appointed by the Court and submit to it all questions whereby the injuries actually suffered by the undertakings coming under the equalization scheme may be calculated, even approximately; pursuant to the first paragraph of Article 40 of the ECSC Treaty, declare that the High Authority is liable by reason of a wrongful act or omission in that it failed to communicate punctually to the undertakings the amount—although still provisional—of the rate for the equalization of bought ferrous scrap, whilst obliging them throughout the period from 1 April 1954 to 31 March 1959 to publish their own price lists, without their being able to take any account of the equalization rate with which they were only to be charged, and then provisionally, seven, eight and even nine years later; also refer consideration of the second question to a committee of experts to be officially appointed by the Court and entrust them with calculating, after considering the applicant's price lists and invoices, whether the applicant was induced by the High Authority's negligence to sell the steel produced at a considerable loss; order the High Authority to bear the costs; Measures of inquiry submit the defendant to an examination on the following questions: What is the tonnage of ferrous scrap to date on which equalization was wrongly paid? What legal steps were taken against, and what administrative sanctions were imposed on, the servants of the Italian Regional Office (Campsider) who have themselves removed all the documents capable of validity proving the origin and source of the ferrous scrap taken into account for equalization by the Italian undertakings? What stage has been reached in the legal action which the High Authority declared it had taken against the Kingdom of the Netherlands for the injury caused to the Community by the illegal actions of the former's official, Mr Van der Grifth? On what date were proceedings commenced and what is the outcome? Has a further inquiry been made in connexion with the facts revealed by the interstate Commerce Commission of the United States in the case of Luria Brothers and Company Corporation, which was found to have participated in an anti-trust agreement with the Office Commun des Consommateurs de Ferraille (the Joint Bureau of Ferrous Scrap Consumers, hereinafter referred to by its French initials as “the OCCF”) and the Caisse de Péréquation des Ferrailles Importees (the Imported Ferrous Scrap Equalization Fund, hereinafter referred to by its French initials as “the CPFI”) of Brussels, for importing ferrous scrap from the United States? order the defendant to produce the following documents: copies or the quarterly reports sent to the High Authority by the Société Fiduciaire de Belgique in connexion with the quarterly checks and investigations which it carried out on the management of the OCCF and the CPFI of Brussels during the period from 1 April 1954 to 1 April 1959; copies of the annual accounts containing the “profit and loss accounts” of the OCCF and the check by the Société Fiduciaire de Belgique, and the certificate of the two permanent commissioners for the years 1954, 1955, 1956, 1957 and 1958; copies of the minutes or the annual general meetings of the OCCF and of the CPFI approving the accounts of those two bodies; copies of the letters sent on 26 April and on 26 September 1961 by the President of the High Authority to the Procureur-Generaal at the Gerechtshof, The Hague; copies of the reports of the accountants of the Société Fiduciaire Suisse received by the High Authority until the end of 1958 (see the reply to Written Question No 37, Official Journal 1963, b, 95, p. 1760 c, first paragraph of Question 2); a copy of the mandate which the High Authority gave on 24 January 1959 to the President of the CPFI, Brussels, (through the regional office), with an order requesting production on or before 20 February 1959 of the missing documents relating to the equalization of ferrous scrap; request from the Ministry of Justice of the Netherlands the “Note relating to questions of ferrous scrap” issued on 4 May 1962 by the Netherlands Minister of Justice’.

The defendant contended in its corresponding statement of defence that the Court should:

‘after joining the present case with Case 9/65, pending between the parties, dismiss the application lodged on 26 November 1965 by the liquidator of the Acciaierie San Michele as unfounded and order the applicant to pay the costs of the action’.

In their statements relating to Joined Cases 9 and 58/65, the parties maintained their previous conclusions.

III — Submissions and arguments of the parties

The date of the commencement of San Michele's activities

The applicant states that San Michele commenced production of steel on 1 February 1957 and not 1 May 1956, as asserted in the decision of 13 November 1964.

Although the contract for the supply of electricity was signed on 1 May 1956, it allowed for the supply of electricity used between that date and February 1957, ‘for all purposes except casting ferrous scrap’, that is to say, for the production of castings from ingots taken over from the I.S.A.P. in order to carry out certain orders previously accepted by that undertaking.

Further, the electricity supplied was used in connexion with the machinery, the equipment, the administration, the steelworks and the rolling mill.

Thus the contested decision is unjustified in attributing to San Michele a consumption of 4333 metric tons of ferrous scrap.

The defendant replied that from May 1956 electricity was not only supplied but actually consumed by the furnace.

In order to refute the applicant's statements, it is sufficient to note that no undertaking produces castings by smelting ingots which are ‘as such, semifinished products ready to be used for rolling’.

The decision thus properly took into account the ferrous scrap ‘consumed’ during the disputed period, whether the said scrap was purchased by the I.S.A.P. or otherwise.

On either of these two views, since no contribution was paid by the I.A.S.P., the obligation arises from the proper application of General Decisions Nos 14/55 (Article 3) and 2/57 (Articles 3 and 10).

The legality of making an estimated assessment in this case

On the basis of the Treaty, Article 2 of Decision No 13/58 and the case-law of the Court the applicant endeavours to show that the capacity of its furnace, the power of its transformer, the fact that it was carrying out certain alterations and consequently itself recovered a large quantity of own arisings and the fact that the electricity consumed also related to the production of ‘castings’, the raw material for which was exempted from any contribution and which required almost double the normal consumption of electricity, constituted genuine factors in the calculation which would enable the estimated assessment to be set aside.

The applicant amended the High Authority's calculations taking these facts, its previous declarations and its accounts into consideration.

The defendant replied that, faced with the undertaking's failure to co-operate and the lack of proper documents, it was obliged to make an estimated assessment on the basis of the information at its disposal, especially the information ultimately supplied by the Italian public authorities.

The accuracy of the estimated assessment

The applicant produced the following accounting documents in a schedule to the reply: the journal, the balance sheet book and the register summarizing the movement of stocks.

It is claimed that these documents furnish precise information, particularly with regard to the movements of stock, and by taking these factors into account it is possible to avoid using any inductive method.

The defendant emphasized the delay, which is in its opinion unjustified and is proscribed by Article 42(2) of the Rules of Procedure, in the production of these documents.

It set out the reasons why the three registers are ‘of no importance, or incomplete, or at variance with the purposes of the proceedings’.

It recognized however that the third document ‘might in principle achieve its desired purpose if the applicant had annexed to that document those on the basis of which it was compiled’.

It alleged that this register—‘which until then had never been submitted to the agents of the High Authority’—proved however that the undertaking's declarations were incorrect.

Moreover, the tonnages of ingots shown by the said document compared with the consumption of electricity notified by the Italian Embassy supposes a consumption coefficient equal to 1450 kilowatt hours per metric ton of steel produced.

There is moreover no trace of the consumption of ferrous scrap for steel castings which the applicant claimed to deduct from the relevant production.

The document is therefore incomplete and valueless.

The legality of the individual decisions

According to the applicant an essential procedural requirement was infringed because the contested decisions fail to mention the ‘essential elements in the findings of fact’ on which they were based.

It alleged that the High Authority misused its powers, since it employed them to obtain payment of unjustified contributions which were incorrectly calculated in order to compensate for its previous errors and wrongful acts or omissions.

It was also alleged that Articles 5, 36, and 47 of the Treaty were infringed as is established by the facts of the case and a reasonable interpretation of those provisions in relation to those facts.

The defendant replied that the decisions were taken on the basis of official documents.

It produced a letter from the Italian Embassy of 9 April 1965 indicating the applicant's total consumption of electricity from 1 May 1956 to 30 November 1958.

The misuse of powers alleged does not correspond to the interpretation placed on this concept by Community law.

With regard to the alleged infringement of the Treaty, the defendant observed that it used the only system of checking and induction possible by employing the criterion of the consumption of electricity and the facts established in the course of checks or supplied by the Italian public administration.

The case-law of the Court has refused, moreover, to treat an estimated assessment as equivalent to a sanction.

The applicant replied that it was permissible under Italian law to destroy invoices five years after their date of issue and that it could not understand why, although several checks were carried out by the inspectors of the High Authority and the Société Fiduciaire Suisse only the data obtained by the latter were taken into account.

These data were transmitted verbally, invalidating the statement of reasons for the decisions.

Furthermore, it is alleged that the High Authority has admitted, within the context of the decision of 13 November 1964, that the electricity invoices were submitted to the inspectors, in particular those sent by the High Authority in 1962, but that it relied on the information acquired in 1958 by the Société Fiduciaire Suisse.

The applicant listed the reasons obliging the High Authority to comply with the rules laid down by the national constitutions and preventing it from violating, by the methods of checking employed, the liberties guaranteed in particular by the Italian Constitution and at the same time by Article 86 of the Treaty.

With regard to the letter from the Italian Embassy of 9 April 1965, it is to be doubted whether the consumption of electricity attributed to the applicant ‘for’ the electric furnace was used exclusively by smelting purchased scrap.

The defendant replied that the confusion of complaints put forward shows that they are inconclusive.

It pointed to the difficulties encountered by its agents in the face of the divergent explanations given by San Michele in connexion with its consumption of electricity.

These divergences were resolved by the communication of 9 April 1965 from the Italian Ambassador to Luxembourg, relating to this consumption and demolishing San Michele's previous statements.

Since the figures thereby intimated related to the ‘consumption of electricity by the electric furnaces for the production of steel’, they cannot be broken down in order to take the rest of the undertaking's consumption into account.

The validity of the general decisions (objection of illegality against General Decisions Nos 7/61 and 7/63)

The applicant complains that General Decisions Nos, 7/61 and 7/63 are vitiated by the infringement of an essential procedural requirement, since they were adopted without the previous unanimous assent of the Council of Ministers.

The defendant replies that this argument has already been rejected by the Court in its judgments of 13 July 1965 (Rec. 1965, p. 836 et seq.).

The applicant maintains that General Decision No 7/61 wrongly exempted certain specialized producers and increased the burden of the undertakings by taking into account interest owed for a period of delay which was to be imputed to the High Authority.

The defendant replied that interest was charged to the undertakings which did not comply punctually with provisional orders to pay.

It disputed the amount of the interest complained of by the applicant and recalled that the Court had approved the system employed.

The judgment in Case 18/62 or 16 December 1963 (Rec. 1963, p. 529 et seq.) governs the question of exemptions.

The applicant contested General Decision No 7/63. on the ground of misuse of powers. It alleged that the High Authority authorized approximations and thus distorted competition, and that, furthermore, it infringed Articles 47 and 78 of the Treaty by its failure to publish data and the lack of supervision from which the High Authority's actions suffered.

The applicant claimed finally that the statement of reasons was defective because the decision ignored accounting factors.

The defendant replied by referring to the case-law of the Court (Case 108/63, Rec. 1965, p. 1, and Case 14/61, [1962] E.C.R. 253).

It insisted on the fact that a rate of equalization can only be based on averages . acceptable to the Community as a whole, on the obligation of professional secrecy, on auditors' checks and on the subjection of all undertakings to an identical system.

The claim for compensation

According to the applicant, there has been a wrongful act or omission causing an injury which can only be calculated exactly by an expert to be officially appointed by the Court. The expert should ‘calculate the delay in notifying the rates—which were moreover provisional—contained in the Annexes to Decision No 7/63 and establish whether, having regard to its sales from 1 February 1957 to 30 November 1958, the applicant could have marketed its products at a profit, even if infinitesimal’.

The applicant recalled that in this connexion the methods adopted by the High Authority prevented the proper implementation of Article 60 of the Treaty, as they rendered it impossible to publish beforehand the exact prices, since the administration had arrogated to itself ‘the power to decide, a posteriori and even so only approximately, one of the essential factors in the cost of production’ increasing ‘by over 50 % the cost of transforming the ferrous scrap into ingots’.

The defendant replied that the conditions laid down by Article 40 of the Treaty do not obtain, since the applicant does not consider itself ‘in a position to show, even approximately, the amount of damage which it alleges it has suffered’.

The defendant met the argument based on Article 60 by relying on the case-law of the Court (the judgments in Joined Cases 14, 16, 17, 20, 24, 26 and 27/60 and 1/61 of 13 July 1961, in Case 14/61 of 12 July 1962 and in Case 108/63 of 21 January 1965) and stated that the burden of the equalization contributions does not exceed 25 % at the most.

Grounds of judgment

The San Michele company has made an application against two individual decisions of 13 November 1964, whereby the High Authority, on the basis of an estimated assessment, fixed the tonnage of assessable ferrous scrap and from that the corresponding debt to the imported ferrous scrap equalization scheme.

The said company has also made an application against two other individual decisions of decisions of 5 October 1965 based on new facts relating to the consumption of electricity and fixing an increase in the tonnage and the contributions. The said applications seek the annulment of the said individual decisions, pleading the illegality of General Decisions Nos 7/61 and 7/63 and claiming compensation for a wrongful act or omission on the part of the High Authority.

Since these applications do not give rise to any dispute as to admissibility, they must be declared admissible.

The estimated assessment

Under Article 2 of Decision No 13/58 of 24 July 1958 and Article 15 of Decision No 16/58, of the same date, as amended by Decision No 18/58 of 15 October 1958, the High Authority is empowered to make an estimated assessment, if the undertakings fail to declare information for calculating the contributions to be paid under the financial arrangements known as the imported ferrous scrap equalization scheme. The High Authority is also empowered, in applying the same provisions, to amend by an estimated assessment declarations in support of which valid proof cannot be supplied.

It is clear from these provisions that the assessment and amendment on the High Authority's initiative are alternative and exceptional methods, which are applicable only in certain circumstances. In fact the High Authority is only empowered to substitute its own figures for those of the undertakings if the latter do not fulfil their obligation to supply it with information capable of proving the declarations made. In order to be entitled to make an estimated assessment, the High Authority must therefore prove that the undertaking has failed either to produce the information necessary for calculating its contributions or to supply proof in support of it.

It appears from the decision of 13 November 1964 that when the checks were carried out in June 1958 by the Fiduciaire Suisse the undertaking failed to produce the accounting documents which were required of it, that is to say, the books of stock received, the register of suppliers' invoices, the register of goods being processed, the balance sheet book and the journal.

In connexion with the checks carried out in October 1962 by the High Authority's inspectors, the said decision mentions that the same documents were requested, but that they were only ‘submitted in part’ (without more precise details) and that since the High Authority ‘did not have the above-mentioned accounting documents at its disposal’ it was obliged to make an estimated assessment.

The San Michele undertaking disputes these reasons and states that it produced to the agents of the Fiduciaire Suisse and to the High Authority's inspectors the register of invoices for bought ferrous scrap and the register of goods being processed, in addition to various accounting documents relating in particular to the receipts of ferrous scrap.

The parties are thus in disagreement on the facts.

No document lodged on the file definitely establishes either the existence or the contents of a formal demand addressed to the undertaking to supply the documents mentioned in the decision, or the accuracy of the San Michele undertaking's statements in connextion with the production of certain of these.

It is clear however from the ‘inspection report’ of 19 November 1962, drawn up by Mr Maurice Chaudat, the High Authority's inspector, that various accounting documents were submitted to him.

The said report in fact states:

‘There were presented to us for the period under review: the suppliers' invoices for 1957 and 1958, numbered and arranged in order, in accordance with Article 26 of the Decree Law of 9 January 1940 on the I.G.E. These invoices were numbered from 1 to 875 (1957) and from 1 to 841 (1958); the invoices for the purchase of ferrous scrap were filed in order with the purchase invoices. On the other hand the electricity invoices were arranged according to date, but apart from them. The sales invoices, also numbered but in two series, one for direct sales, the other for commission sales; copy of Declaration 2/50 615 and general assessment; balance sheet book, profit and loss accounts, balances and resolutions of the general meeting: register of goods being processed for 1958 (that for 1957 was missing); originals of the statements to the “Cassa Conguaglio per le tariffe elettriche” accompanied by receipts for registered letters.’

It therefore appears that the statement in the decision of 13 November 1964 that the High Authority did not have at its disposal the accounting documents which it requested is therefore not correct, or at any rate only partly correct, since two of them are referred to in Mr Chaudat's report (the balance sheet book and the register of goods being processed for 1958) and were accompanied by files of invoices for scrap properly numbered and arranged.

Without indicating that these documents had been produced, or explaining why they were rejected, and without discussing the figures, the said decision merely states that since the High Authority ‘did not have the abovementioned accounting documents at its disposal’ … it was ‘obliged’ to make an estimated assessment. No details are supplied nor are any reasons given showing in what way the High Authority was thus obliged, whereas in par-, ticular the accounting documents produced in Court appear to contain various matters calling for cross-checking or discussion.

The High Authority cannot merely reject any accounting document for the sole reason that it reveals figures lower than those obtained by means of the estimated assessment on the basis of the consumption of electricity.

Furthermore, the Chaudat report, itself emphasizes various points arising out of the accounting documents, the excessive obsolescence of equipment and ‘considerable’ recoveries of scrap which were not even mentioned in the statement of reasons for the decision.

The contested decisions must therefore be annulled as being based on incorrect reasons and for infringement of Article 2 of General Decision No 13/58 of 24 July 1958.

The objections of illegality with reference to General Decisions Nos 7/61 and 7/63.

Since the contested decisions must be annulled, it is unnecessary to give a ruling on the objections of illegality with reference to General Decisions Nos 7/61 and 7/63.

The claim for compensation

The applicant has claimed compensation for the alleged wrongful act or omission on the part of the High Authority, but without indicating the amount of damage which it has suffered.

The applicant has by no means proved that because it was for a time uncertain as to the final amount of its equalization contributions, the disadvantage from which the San Michele undertaking suffered exceeds the normal disadvantages unavoidably inherent in the equalization scheme, as it has been established and has functioned with a view to the general interest.

This head of the claim must therefore be rejected.

The application on a procedural issue in connexion with the High Authority's letter of 28 January 1966.

On 30 March 1966 the San Michele undertaking raised an objection under Article 91 of the Rules of Procedure against the letter of 28 January 1966, whereby the High Authority notified it that in implementation of General Decision No 19/65 of 15 December 1965 it had fixed the final rates of the equalization contributions and that consequently the balance of the debt owed by the San Michele undertaking was increased to 252494640 lire. By an order of 2 June 1966, the Court reserved its decision for the final judgment.

The annulment of the contested decisions renders the said letter and the procedural issue pointless.

It is therefore unnecessary to give a ruling in the matter.

Costs

Under Article 69 (2) of the Rules of Procedure, the unsuccessful party shall be ordered to pay the costs. The defendant has failed in respect of the principal head of the applications. It must therefore be ordered to pay the costs.

The costs of two of the three procedural issues raised by the applicant have been reserved. The defendant must bear the costs of the proceedings forming the subject of the order of 2 June 1966 since the High Authority's letter of 28 January 1966 is supplementary to the annulled decisions.

The applicant must bear the costs of the proceedings closed by the order of 13 July 1966, since the Court has taken note of the Registrar's finding that the original document conformed to the photocopy which the applicant alleged was incomplete.

The costs relating to these proceedings are estimated at 1/20 of the total costs of the 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 Treaty establisbing the European Coal and Steel Community and the general decisions concerning the imported ferrous scrap equalization scheme; 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 Article 69; THE COURT hereby:

1 Annuls the individual decisions of 13 November 1964 and 5 October 1965, fixing and amending the tonnage of assessable ferrous scrap and the debt of Acciaierie San Michele SpA under the imported ferrous scrap equalization scheme;

2 Orders the High Authority to pay 19/20 of the costs of the action and Acciaierie San Michele SpA to bear the remaining 19/20.