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Judgment of the Court of 16 June 1966. - Compagnie des forges de Châtillon, Commentry & Neuves-Maisons v High Authority of the ECSC. - Case 54-65. European Court reports French edition Page 00265 Dutch edition Page 00230 German edition Page 00530 Italian edition Page 00382 English special edition Page 00185 Danish special edition Page 00197 Greek special edition Page 00291 Portuguese special edition Page 00357

Summary Parties Subject of the case Grounds Decision on costs Operative part

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MEASURES ADOPTED BY AN INSTITUTION - DECISION - CONSTITUENT ELEMENTS

( ECSC TREATY, ARTICLE 14 )

CF . PARA . 1(A ), SUMMARY, JOINED CASES 23, 24 AND 52/63, ( 1963 ) ECR 217 .

A MEASURE WHICH SATISFIES THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY RETAINS THE CHARACTER OF A DECISION EVEN THOUGH IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM LAID DOWN BY THE HIGH AUTHORITY FOR THE IDENTIFICATION OF ITS DECISIONS .

*/ 663J0023 /*.

IN CASE 54/65

COMPAGNIE DES FORGES DE CHATILLON, COMMENTRY ET NEUVES-MAISONS, A LIMITED COMPANY HAVING ITS REGISTERED OFFICE IN PARIS, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, PAUL BASEILHAC, ASSISTED BY JEAN-PIERRE ARON, ADVOCATE OF THE COUR D' APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE CHAMBRE SYNDICALE DE LA SIDERURGIE FRANCAISE, 49 BOULEVARD JOSEPH-II,

APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, GIUSEPPE MARCHESINI, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,

DEFENDANT,

APPLICATION

- FOR THE ANNULMENT OF THE INDIVIDUAL DECISION OF 21 JULY 1965, BY WHICH THE DEFENDANT CONTESTS THE APPLICANT'S RIGHT, WITHIN THE FRAMEWORK OF THE EQUALIZATION SCHEMES FOR IMPORTED FERROUS SCRAP, TO DEDUCT FROM THE BASIS OF ASSESSMENT OF THE EQUALIZATION CONTRIBUTION 13 831 METRIC TONS OF ARMCO PURE IRON SCRAP; AND

- FOR DAMAGES FOR AN ALLEGED WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT;

P.191

I - THE APPLICATION FOR ANNULMENT

FIRST SUBMISSION : INFRINGEMENT OF ARTICLE 53(B ) OF THE ECSC TREATY AND OF THE GENERAL DECISIONS OF THE HIGH AUTHORITY GOVERNING THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP

THE CONTESTED DECISION REGARDED THE MATERIAL IN QUESTION NOT AS FERROUS SCRAP WITHIN THE MEANING OF THE BASIC DECISIONS WHICH SUCCESSIVELY GOVERNED THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP ( HEREINAFTER REFERRED TO AS ' THE BASIC DECISIONS '), BUT AS A SEMI-FINISHED PRODUCT .

THIS DECISION THUS DENIED THE APPLICANT THE RIGHT TO DEDUCT TONNAGES OF THIS MATERIAL SOLD TO ITS CUSTOMERS FROM ITS BASIS OF ASSESSMENT TO THE EQUALIZATION CONTRIBUTION .

IN THIS SUBMISSION THE APPLICANT CONTENDS THAT THIS CLAIM IS UNFOUNDED .

P.192

FIRST, THE BASIC DECISIONS DO NOT DEFINE THE FERROUS SCRAP ' TO WHICH THEY REFER, EXCEPT FOR ' SCRAP FROM ALLOY STEELS ' WHICH IS OF NO RELEVANCE IN THIS CASE .

SECONDLY, DECISION NO 28/53, WHICH FIXES MAXIMUM PRICES FOR FERROUS SCRAP, ENUMERATES TWENTY-FIVE DIFFERENT CATEGORIES OF ' FERROUS SCRAP ' AND DEFINES THEM PRECISELY .

IT IS NOT DISPUTED THAT THE MATERIAL IN QUESTION DOES NOT FALL WITHIN ANY OF THESE CATEGORIES .

FURTHERMORE, THE PURPOSE OF THE BASIC DECISIONS IS THE SAME AS THAT OF DECISION NO 28/53, IN THAT THEY SEEK TO AVOID THE DANGER OF A SUBSTANTIAL INCREASE IN THE PRICE OF FERROUS SCRAP WITHIN THE COMMON MARKET .

THE RELATIONSHIP BETWEEN ALL THESE DECISIONS IS SHOWN IN PARTICULAR BY DECISION NO 21/54, WHICH RESCINDS DECISION NO 28/53 WITH EFFECT FROM 1 APRIL 1954 .

IN FACT, IT WAS ON THIS DATE THAT DECISION NO 22/54, WHICH WAS THE FIRST OF THE BASIC DECISIONS, CAME INTO FORCE .

MOREOVER, DECISIONS NOS 21/54 AND 22/54 WERE BOTH ADOPTED AT THE SAME MEETING OF THE HIGH AUTHORITY AND PUBLISHED IN THE SAME EDITION OF THE OFFICIAL JOURNAL OF THE ECSC .

IT MUST THEREFORE BE ADMITTED THAT THE CONCEPTS OF ' FERROUS SCRAP ', EMPLOYED BY DECISION NO 28/53 AND BY THE BASIC DECISIONS WHICH HAVE REPLACED IT, ARE THE SAME, WITH THE RESULT THAT THE MATERIAL IN QUESTION IS NOT COVERED BY THE BASIC DECISIONS .

THE APPLICANT FURTHER MAINTAINS THAT THIS MATERIAL MUST CONSTITUTE FERROUS SCRAP, FROM THE VERY FACT THAT IT IS INTENDED FOR RECASTING .

HOWEVER, NO PROVISION OF THE TREATY OR OF THE BASIC DECISIONS GIVES RISE TO SUCH AN INTERPRETATION OF ' FERROUS SCRAP '.

ON THE CONTRARY, THE LIST APPEARING IN ANNEX I TO THE ECSC TREATY REFERS, UNDER HEADING 4300 WHICH DOES NOT INCLUDE FERROUS SCRAP, TO ' CRUDE AND SEMI-FINISHED PRODUCTS OF IRON, ORDINARY STEEL OR SPECIAL STEEL, INCLUDING PRODUCTS FOR RE-USE AND RE-ROLLING ', WHICH SHOWS THAT IN THE MINDS OF THE AUTHORS OF THE TREATY MATERIAL USED FOR RE-CASTING MAY CONSTITUTE A SEMI-FINISHED PRODUCT .

FURTHERMORE, UNTIL 8 NOVEMBER 1957 THE APPLICANT ITSELF SOLD THE MATERIALS IN QUESTION ON THE BASIS OF PRICE LISTS NOTIFIED TO THE HIGH AUTHORITY WHICH DESCRIBED THEM AS ' SEMI - FINISHED PRODUCTS IN ARMCO PURE IRON FOR RECASTING '.

P.193

IT IS TRUE THAT THE APPLICANT NOW CLAIMS THIS DESCRIPTION TO BE INCORRECT . HOWEVER, AS IT IS THE COROLLARY OF THE RELATIVELY HIGH PRICE OF THE MATERIAL IN QUESTION AND AS IT WAS ACCEPTED BY THE APPLICANT'S CUSTOMERS, IT APPEARS TO HAVE BEEN IN ACCORDANCE WITH COMMERCIAL USAGE .

CERTAIN CUSTOMERS OF THE APPLICANT OR OF ITS SISTER COMPANY, WHICH SELLS SIMILAR PRODUCTS, OBJECTED TO THEIR RESPECTIVE SUPPLIERS SUBSEQUENTLY DESCRIBING THIS MATERIAL AS ' ARISINGS FROM BILLETS ', WHEN ACCORDING TO THE CUSTOMERS IT WAS SIMPLY ' BILLETS ' AND THEREFORE A TRUE SEMI-FINISHED PRODUCT WITHIN THE MEANING OF HEADING 4 300 OF ANNEX I TO THE TREATY .

IT MUST FINALLY BE NOTED THAT UNTIL 8 NOVEMBER 1957 THE APPLICANT PUBLISHED AND SENT TO THE HIGH AUTHORITY PRICE LISTS FOR THE MATERIAL IN QUESTION, ACCORDING TO THE PROVISIONS OF THE TREATY RELATING TO SEMI-FINISHED PRODUCTS .

THE APPLICANT FURTHER ALLEGES THAT THE DIFFERENCE BETWEEN THE RESPECTIVE PRICES OF THE MATERIAL IN QUESTION AND OF ORDINARY FERROUS SCRAP REMAINED MORE OR LESS CONSTANT DURING THE EQUALIZATION PERIOD, WITH THE RESULT THAT IT IS REASONABLE TO ACCEPT THAT THE FIRST PRICE WAS DEPENDENT UPON THE SECOND; AND THAT IT WOULD THEREFORE BE FAIR TO INCLUDE THE MATERIAL IN QUESTION IN THE EQUALIZATION SCHEME, AS ITS PURCHASERS BENEFITED FROM THE REGULATING EFFECT OF THE BASIC DECISIONS .

THE GRAPH WHICH THE APPLICANT PLACED ON THE FILE CANNOT SHOW THE PARALLEL ALLEGED, SINCE IT INDICATES SEVERAL PERCEPTIBLE DIVERGENCES IN THE EVOLUTION OF THE TWO PRICES IN QUESTION .

MOREOVER, THE APPLICANT HAS NOT DISPUTED THAT, AFTER THE EQUALIZATION SCHEME CAME TO AN END, THE PRICE OF THE MATERIAL IN QUESTION INCREASED CONSIDERABLY WHILST THAT OF ORDINARY FERROUS SCRAP REMAINED RELATIVELY STABLE .

THE APPLICANT'S ALLEGATIONS SHOW A DEFINITE PARALLEL BETWEEN THE PRICES WHICH IT HAD FIXED IN ITS PRICE LISTS, FIRST, FOR THIS MATERIAL AND, SECONDLY, FOR THE ' SEMI-FINISHED PRODUCTS IN ARMCO PURE IRON FOR RE-ROLLING ', THAT IS, FOR THE GENUINE BILLETS WHICH, IT ADMITS, DO NOT CONSTITUTE FERROUS SCRAP .

IN FACT, ACCORDING TO THE REPLY, THE DIFFERENCE BETWEEN THE PRICES WAS MAINTAINED AT A CONTANT 5 PER CENT OR, IN ABSOLUTE FIGURES, AT A MAXIMUM OF 2 000 OR A MINIMUM OF 1 950 FRENCH FRANCS .

THUS, TO FOLLOW THE APPLICANT'S ARGUMENT CONCERNING THE ALLEGED PARALLEL BETWEEN THE PRICE OF THE MATERIAL IN QUESTION AND THAT OF ORDINARY FERROUS SCRAP, IT IS NECESSARY TO ACCEPT THAT THE PRICE OF BILLETS INTENDED FOR RE-ROLLING AND, THEREFORE, FOR PURPOSES FOR WHICH ORDINARY FERROUS SCRAP IS NOT USED WAS DEPENDENT UPON THE PRICE OF FERROUS SCRAP .

P.194

FACED WITH SUCH AN UNLIKELY ARGUMENT IT IS NECESSARY TO ACCEPT THE MORE CONVINCING EXPLANATION FURNISHED BY THE DEFENDANT, TO THE EFFECT THAT THE PRICE OF THE PRODUCTS IN QUESTION ' WAS DETERMINED BY THE PRICE OF ORDINARY BILLETS, BUT REMAINED AT A SLIGHTLY LOWER FIGURE SINCE LESS CARE WAS REQUIRED IN THE ROLLING PROCESS AS THEY WERE INTENDED FOR RE-CASTING '.

FINALLY THE PRICE OF THIS MATERIAL WAS ALWAYS PERCEPTIBLY HIGHER THAN THE PRICE OF ORDINARY IMPORTED FERROUS SCRAP . IF THIS FACT IS NOT ITSELF SUFFICIENT TO EXCLUDE THE MATERIAL IN DISPUTE FROM THE APPLICATION OF THESE DECISIONS, IT IS NEVERTHELESS EVIDENCE IN FAVOUR OF THE ARGUMENT PUT FORWARD BY THE DEFENDANT .

IN FACT, IT DID NOT MEET THE PURPOSE OF THE EQUALIZATION SCHEME FOR THE CONTRIBUTION IN QUESTION TO BE IMPOSED UPON THE PURCHASERS OF A PRODUCT WHICH WAS APPRECIABLY MORE EXPENSIVE THAN THAT WHOSE PRICE WAS TO BE REDUCED BY THE EQUALIZATION SCHEME .

IT FOLLOWS FROM ALL THESE CONSIDERATIONS THAT THIS SUBMISSION IS UNFOUNDED .

SECOND SUBMISSION : INFRINGEMENT OF ARTICLE 15 OF THE ECSC TREATY

THE APPLICANT MAINTAINS THAT, AS THE GROUNDS FOR THE CONTESTED DECISION ARE INCORRECT FOR THE REASONS SET OUT IN CONNEXION WITH THE PRECEDING SUBMISSION, THE DECISION IS VITIATED BY THE INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .

IT FOLLOWS FROM THE ABOVE CONSIDERATIONS REGARDING THE FIRST SUBMISSION THAT THESE GROUNDS HAVE NOT BEEN PROVED TO BE INCORRECT .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

THIRD SUBMISSION : INFRINGEMENT OF ARTICLE 4(B ) OF THE ECSC TREATY

THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION DISCRIMINATED IN FAVOUR OF PURCHASERS OF THE MATERIAL IN QUESTION TO THE DETRIMENT OF PURCHASERS OF ORDINARY FERROUS SCRAP, WHO WERE OBLIGED TO CONTRIBUTE TO THE EQUALIZATION SCHEME .

IT FOLLOWS FROM THE PRECEDING CONSIDERATIONS CONCERNING THE FIRST SUBMISSION THAT SUCH FUNDAMENTAL DIFFERENCES EXIST BETWEEN THESE TWO CATEGORIES OF PRODUCTS THAT THE DIFFERENT TREATMENT ACCORDED THEM BY THE DEFENDANT CANNOT AMOUNT TO DISCRIMINATION .

IN PARTICULAR, SINCE, AS HAS JUST BEEN SHOWN, THE MATERIAL IN QUESTION DOES NOT CONSTITUTE FERROUS SCRAP WITHIN THE MEANING OF THE BASIC DECISIONS, THE DEFENDANT WAS NOT EMPOWERED TO SUBJECT IT TO THE PAYMENT OF THE EQUALIZATION LEVY ON THE BASIS THEREOF .

P.195

THUS, IN REALITY, THE APPLICANT'S COMPLAINT REFERS TO THE BASIC DECISIONS THEMSELVES .

ON THIS POINT, IT MEETS THE OBJECTIONS SET OUT IN RELATION TO THE PRECEDING CONSIDERATIONS .

THIS SUBMISSION MUST THEREFORE BE REJECTED .

FOURTH SUBMISSION : INFRINGEMENT OF THE GENERAL PRINCIPLES OF LAW APPLYING TO THE REVOCATION OF ADMINISTRATIVE MEASURES

THE APPLICANT COMPLAINS THAT THE CONTESTED DECISION REVOKED EX TUNC THE ' CPFI AGREEMENTS ' DATED 12 JUNE AND 12 AUGUST 1958 BY WHICH THE DESCRIPTION OF ' FERROUS SCRAP ' WAS ACCEPTED FOR THE MATERIAL IN QUESTION .

ALTERNATIVELY, IT MAINTAINS THAT EVEN IF THESE ' AGREEMENTS ' ARE ASSUMED TO BE ILLEGAL, THEY COULD NOT VALIDLY BE RESCINDED .

FIRST, THE APPLICANT HAD EVERY REASON TO HAVE CONFIDENCE IN THE STABILITY OF THE POSITION CREATED BY THESE ' AGREEMENTS '; SECONDLY, THEIR RESCISSION WAS NOT EFFECTED WITHIN A REASONABLE PERIOD OF TIME .

IT FOLLOWS FROM THE PRECEDING CONSIDERATIONS CONCERNING THE FIRST SUBMISSION THAT THE DECLARATIONS OF THE CPFI LED TO AN INCORRECT APPLICATION OF THE BASIC DECISIONS AND THUS CANNOT BE CONSIDERED VALID AND IN NO WAY CONSTITUTE GENUINE ' DECISIONS '.

A DECISION MUST IN FACT APPEAR AS A MEASURE EMANATING FROM THE COMPETENT AUTHORITY, INTENDED TO PRODUCE LEGAL EFFECTS AND CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THAT AUTHORITY, WHEREBY THE LATTER GIVES ITS FINAL RULING IN A FORM FROM WHICH ITS NATURE CAN BE IDENTIFIED .

IN THIS INSTANCE, CERTAIN OF THESE CONDITIONS ARE ABSENT .

FIRST, IT HAS IN FACT NEITHER BEEN ESTABLISHED NOR EVEN ALLEGED THAT THE STATEMENTS IN QUESTION RESULT FROM A FORMAL DISCUSSION ON THE PART OF THE CPFI .

MOREOVER, AS REGARDS IN PARTICULAR THE LETTER OF 12 JUNE 1958 HEADED ' INVESTIGATION BY THE SA FIDUCIAIRE SUISSE INTO YOUR TONNAGES SUBJECT TO CONTRIBUTION ', ONE READS :

' WE REFER TO THE REPORT DRAWN UP BY THE SA FIDUCIAIRE SUISSE CONCERNING THE INVESTIGATION INTO YOUR TONNAGES SUBJECT TO CONTRIBUTION . IN THIS RESPECT, MAY WE MAKE THE FOLLOWING OBSERVATIONS :

1 . ...

2 . PART OF YOUR ARMCO ARISINGS SOLD TO THIRD PARTIES WERE DEDUCTED AND PART WAS NOT DEDUCTED FROM THE TONNAGES SUBJECT TO THE LEVY...THE FERROUS SCRAP RESULTING FROM THE ARMCO PRODUCTS IS TO BE TREATED IN THE STATEMENTS AS ORDINARY FERROUS SCRAP . CONSEQUENTLY, THE 257 METRIC TONS ARE STILL DEDUCTIBLE ...

3 . ... '

THIS LETTER APPEARS TO BE MERELY A COMMUNICATION INVITING THE APPLICANT TO RECTIFY ITS STATEMENTS IN CONNEXION WITH THE EQUALIZATION SCHEME .

3 . ... '

THIS LETTER APPEARS TO BE MERELY A COMMUNICATION INVITING THE APPLICANT TO RECTIFY ITS STATEMENTS IN CONNEXION WITH THE EQUALIZATION SCHEME .

MOREOVER AS REGARDS THE LETTER OF 12 AUGUST, IT WAS DRAFTED AND NOTIFIED AFTER THE ENTRY INTO FORCE OF DECISION NO 13/58, IN ACCORDANCE WITH WHICH THE HIGH AUTHORITY, CONSIDERING, INTER ALIA, THAT ' IT IS NECESSARY FOR THE POWERS DELEGATED TO THE EQUALIZATION FUND...TO BE RESUMED BY THE HIGH AUTHORITY ', PROVIDED THAT ' THE RIGHT WHICH ( THE BASIC DECISIONS ) CONFERRED ON THE EQUALIZATION FUND...SHALL FALL TO THE HIGH AUTHORITY, WHICH MAY ENTRUST THE ADMINISTRATIVE WORK TO THE EQUALIZATION FUND OR ANY OTHER APPROPRIATE BODY '.

CONSEQUENTLY, AT THE DATE IN QUESTION, THE CPFI NO LONGER HAD THE POWER TO TAKE DECISIONS WHICH COULD BE REGARDED AS DECISIONS OF THE HIGH AUTHORITY .

THE HIGH AUTHORITY HAS THE POWER TO REVOKE DECISIONS AND MAY EVEN DO SO RETROACTIVELY, SUBJECT IN EXCEPTIONAL CASES TO CONSIDERATIONS OF LEGAL CERTAINTY .

THIS POWER IS EVEN GREATER WHEN THE ' REVOCATION ' CONCERNS NOT A FORMAL DECISION, BUT A SIMPLE STATEMENT .

IN THIS INSTANCE, THE APPLICANT WAS ONLY ABLE TO RELY FOR A RELATIVELY SHORT PERIOD ON THE MAINTENANCE OF THE POSITION ADOPTED BY THE CPFI .

UNDER THE TERMS OF ARTICLE 1(B ) OF THE ABOVE - MENTIONED DECISION NO 13/58, WHICH CAME INTO FORCE AFTER THE FIRST AND BEFORE THE SECOND OF THE LETTERS IN QUESTION, THE DEFENDANT RESERVED THE RIGHT TO ' RESCIND AS FAR AS IS NECESSARY ANY RESOLUTIONS ' OF THE AGENCIES IN BRUSSELS AND ' TO TAKE ANY MEASURES ENTAILED IN RESCINDING THEM '.

THE EFFECT OF THIS PROVISION WAS TO MAKE ALL THE MEASURES ADOPTED BY THESE BODIES APPEAR RATHER PRECARIOUS .

SECONDLY, BEARING IN MIND THE MAGNITUDE OF THE TASK OF RECONSIDERING ALL THESE MEASURES, THE BENEFICIARIES OF ANY FAVOURABLE STATEMENTS COULD NOT EXPECT A FINAL DECISION ON THESE STATEMENTS TO BE TAKEN IN A SHORT TIME .

ON 25 NOVEMBER 1959, A LETTER ADDRESSED BY THE MARKET DIVISION OF THE HIGH AUTHORITY TO THE APPLICANT'S SISTER COMPANY, WHICH HAD THE SAME GENERAL MANAGER, REFERRED TO A ' DISAGREEMENT BETWEEN YOU AND YOUR PURCHASERS ' ABOUT THE DESCRIPTION OF MATERIAL SIMILAR TO THE MATERIAL IN QUESTION .

P.197

BY LETTER OF 17 AUGUST 1961, THE HIGH AUTHORITY'S MARKET DIRECTORATE INFORMED THE APPLICANT THAT THE PROBLEM IN QUESTION WAS ' AT PRESENT UNDER FURTHER CONSIDERATION ' AND THAT THE COMPETENT DEPARTMENTS OF THE HIGH AUTHORITY ' PROVISIONALLY ACCEPT THE METHOD OF DECLARATION ADOPTED BY YOUR UNDERTAKING '.

BY LETTER OF 8 OCTOBER 1962 THE MARKET DIRECTORATE INFORMED THE APPLICANT OF ITS FINAL DECISION, WHICH IS IDENTICAL WITH THAT MAINTAINED BY THE DEFENDANT IN THE PRESENT CASE .

FINALLY, IT MUST BE BORNE IN MIND THAT, BY CONTINUING AN ADVANTAGE ILLEGALLY GRANTED TO AN UNDERTAKING WITHIN THE FRAMEWORK OF THE EQUALIZATION SCHEME, THE DEFENDANT WOULD NOT ONLY BE INCREASING THE BURDENS BORNE BY THE OTHER UNDERTAKINGS, OF WHICH AT LEAST SOME ARE COMPETITORS OF THE RECIPIENT UNDERTAKING, BUT ABOVE ALL PUT THE LATTER IN A PRIVILEGED POSITION .

IT FOLLOWS FROM THE ABOVE CONSIDERATIONS THAT THIS COMPLAINT MUST BE REJECTED .

AS NONE OF THE SUBMISSIONS PUT FORWARD BY THE APPLICANT HAS BEEN FOUND TO BE JUSTIFIED, THE APPLICATION FOR ANNULMENT MUST BE DISMISSED .

II - THE CLAIM FOR DAMAGES

IN THE EVENT OF THE APPLICATION FOR ANNULMENT BEING DISMISSED, THE APPLICANT, IN AN ALTERNATIVE PLEA, REQUSTS THE COURT TO ORDER THE PAYMENT OF SUCH DAMAGES AS WILL MAKE GOOD THE DAMAGE WHICH IT HAS SUFFERED BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT . IT CONSIDERS THIS WRONGFUL ACT TO CONSIST IN THE FACT THAT THE CPFI ' AUTHORIZED THE APPLICANT TO DEDUCT FROM THE BASIS OF ASSESSMENT OF ITS EQUALIZATION CONTRIBUTIONS THE TONNAGES IN DISPUTE, WITHOUT PREVIOUSLY ESTABLISHING THE LEGALITY OF THIS PROCEDURE '.

SECONDLY IT MAINTAINS THAT BUT FOR THIS ERROR IT WOULD HAVE SOLD THE MATERIAL IN QUESTION AT A HIGHER PRICE, COMPRISING THE RULING PRICE AS INCREASED BY THE EQUALIZATION CONTRIBUTION TO WHICH THIS MATERIAL WOULD HAVE BEEN SUBJECT HAD THE BASIC DECISIONS BEEN APPLICABLE TO IT, SINCE IF THE INFORMATION RECEIVED BY THE APPLICANT HAD BEEN CORRECT THAT PARTY WOULD HAVE BEEN AWARE BOTH OF THE ADVANTAGE TO ITS CUSTOMERS AS THE RESULT OF THE NON-ASSESSMENT OF THIS MATERIAL, AND OF THE DISADVANTAGE TO ITSELF IF IT WAS NOT DEDUCTIBLE .

IT IS FIRST NECESSARY TO CONSIDER WHETHER THE APPLICANT WAS INJURED BY THE ACTIONS OF THE CPFI WHICH ARE CRITICIZED IN THIS CASE .

AS THE ATTITUDE ADOPTED BY THE APPLICANT AFTER THE CPFI MADE ITS STATEMENTS DID NOT DIFFER FROM THAT ADOPTED EARLIER, IT APPEARS THAT THESE STATEMENTS DID NOT FORM THE BASIS OF ITS PRICING POLICY .

IN FACT, THE SAME POLICY WAS FOLLOWED PREVIOUSLY, THAT IS, DURING THE PERIOD WHEN ON ITS OWN ADMISSION THE APPLICANT HAD TO CONSIDER THE POSSIBILITY THAT THE PRODUCTS IN QUESTION WOULD NOT BE ACCEPTED AS ' FERROUS SCRAP '.

IN ADDITION, IT CANNOT BE PROVED THAT THE APPLICANT'S CUSTOMERS WOULD HAVE ACCEPTED WITHOUT FURTHER ADO AN INCREASE IN THE PRICE OF THE MATERIAL IN QUESTION .

FIRST, THE PRICE WHICH THE APPLICANT WAS ABLE TO OBTAIN WAS THE RESULT OF SUPPLY AND DEMAND . SECONDLY, THE CUSTOMERS, WHO HAVE ALWAYS MAINTAINED THAT THE MATERIAL IN QUESTION DID NOT CONSTITUTE FERROUS SCRAP, WERE NOT THE VICTIMS OF ANY ERROR .

THE CLAIM FOR DAMAGES MUST THEREFORE BE DISMISSED WITHOUT ITS BEING NECESSARY TO DECIDE WHETHER THE ACTIONS CRITICIZED CONSTITUTE A WRONGFUL ACT OR OMISSION OR TO ADMIT THE OFFERS OF PROOF MADE BY THE APPLICANT .

UNDER THE TERMS OF ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .

THE APPLICANT HAS FAILED IN ITS APPLICATION .

IT MUST THEREFORE BE ORDERED TO PAY THE COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATION FOR ANNULMENT AND THE CLAIM FOR DAMAGES AS UNFOUNDED;

2 . ORDERS THE APPLICANT TO PAY THE COSTS OF THE ACTION .