Avis juridique important

Judgment of the Court of 10 December 1957. - Acciaierie Laminatoi Magliano Alpi (A.L.M.A.) v High Authority of the European Coal and Steel Community. - Case 8-56. European Court reports French edition Page 00179 Dutch edition Page 00193 German edition Page 00191 Italian edition Page 00179 English special edition Page 00095 Danish special edition Page 00049 Greek special edition Page 00163 Portuguese special edition Page 00163

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

++++

1 . PROCEDURE - LETTER SENT BY THE HIGH AUTHORITY - REGISTERED MAIL - DELIVERY TO EMPLOYEE OF THE ADDRESSEE UNDERTAKING - EFFECTS

2 . PRICES - PUBLICATION - SYSTEM - COMMUNICATION TO THE HIGH AUTHORITY OF PRICE LISTS AND CONDITIONS OF SALE

3 . PRICES - PUBLICATION - SYSTEM - OFFENCES - FINES

4 . PROCEDURE - ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION - FINE - REDUCTION - POWERS OF THE COURT

1 . IF, BEFORE IMPOSING A FINE ON AN UNDERTAKING, THE HIGH AUTHORITY GIVES THAT UNDERTAKING, BY WAY OF A REGISTERED LETTER, THE OPPORTUNITY TO SUBMIT ITS COMMENTS PURSUANT TO ARTICLE 36 OF THE TREATY, THE STATEMENT CONTAINED IN THAT LETTER BECOMES FULLY EFFECTIVE AS SOON AS THE POSTAL EMPLOYEE DELIVERS THAT LETTER IN DUE COURSE TO AN EMPLOYEE OF THE UNDERTAKING AT ITS REGISTERED OFFICE, THE EFFECT OF WHICH IS TO BRING THE LETTER WITHIN THE CONTROL OF THAT UNDERTAKING

( TREATY, ARTICLE 36 ).

2 . THE TREATY IS NOT INFRINGED WHEN THE HIGH AUTHORITY DETERMINES THE EXTENT AND MANNER OF PUBLICATION OF PRICE LISTS AND CONDITIONS OF SALE, PURSUANT TO ARTICLE 60 ( 2 ) ( A ) OF THE TREATY, LAYING DOWN, INTER ALIA, THAT THEY SHALL BE COMMUNICATED TO IT, ARTICLE 60 ( 2 ) ( A ) MUST BE VIEWED IN THIS CONNEXION AS A SPECIAL PROVISION IN RELATION TO ARTICLE 47

( TREATY, ARTICLES 47 AND 60 ).

3 . ARTICLE 64 ALSO COVERS OFFENCES AGAINST DECISIONS OF THE HIGH AUTHORITY REGULATING PUBLICATION OF PRICES AND CONDITIONS OF SALE PURSUANT TO ARTICLE 60 ( 2 ) ( A )

TREATY, ARTICLES 60 ( 2 ) ( A ) AND 64 .

4 . IF A DECISION OF THE HIGH AUTHORITY IMPOSING A FINE IS THE SUBJECT-MATTER OF AN ACTION, THE COURT IS EMPOWERED NOT ONLY TO ANNUL BUT ALSO TO AMEND THE DECISION TAKEN, BY REDUCING THE AMOUNT OF AN EXCESSIVE FINE, SINCE THIS IS AN ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION . IT HAS THIS POWER EVEN IN THE ABSENCE OF FORMAL CONCLUSIONS TO THAT EFFECT .

( TREATY, ARTICLE 36 ).

IN CASE 8/56

ACCIAIERIE LAMINATOI MAGLIANO ALPI ( ALMA ) SPA, HAVING ITS REGISTERED OFFICE IN TURIN, REPRESENTED BY ITS SOLE DIRECTOR, MARIO BELTRANDI, ENGINEER, ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND BEFORE THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 6 RUE ALPHONSE MUENCHEN, APPLICANT,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PROFESSOR GIULIO PASETTI-BOMBARDELLA, ADVOCATE, ACTING AS AGENT, ASSISTED BY ALBERTO TRABUCCHI, PROFESSOR AT THE UNIVERSITY OF PADOVA, ADVOCATE BEFORE THE CORTE DI CASSAZIONE, ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY OF 24 OCTOBER 1956 NOTIFIED TO THE APPLICANT BY REGISTERED LETTER OF 9 NOVEMBER 1956 IMPOSING ON THE APPLICANTS A FINE OF LIT 800 000,

P . 98

A - INFRINGEMENT OF ARTICLE 36 OF THE TREATY

THE APPLICANT COMPLAINS THAT THE HIGH AUTHORITY IMPOSED THE CONTESTED FINE WITHOUT HAVING PREVIOUSLY GIVEN IT THE OPPORTUNITY TO SUBMIT ITS COMMENTS PURSUANT TO THE FIRST PARAGRAPH OF ARTICLE 36 OF THE TREATY . IN THIS CONNEXION, IT CLAIMS THAT THE REGISTERED LETTER SENT BY THE HIGH AUTHORITY ON 4 NOVEMBER 1955, WHICH, WITHOUT ANY DOUBT, CONSTITUTED AN INVITATION SATISFYING THE REQUIREMENTS OF THE SAID PROVISION, NEVER ARRIVED AT MAGLIANO ALPI, WHERE THE WORKS OF THE APPLICANT COMPANY ARE SITUATED, SINCE THE ADDRESS CONTAINED SPELLING ERRORS .

IT IS UNNECESSARY TO EXAMINE WHETHER THIS COMPLAINT IS ALSO, OR EXCLUSIVELY, ONE OF INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, SINCE THE COURT IS OF THE OPINION THAT IT IS UNFOUNDED .

THE HIGH AUTHORITY HAS SUBMITTED TO THE COURT A PHOTOCOPY OF THE ACKNOWLEDGEMENT OF RECEIPT OF THE ABOVE-MENTIONED LETTER, BEARING THE SEAL OF ALMA, THE AUTHENTICITY OF WHICH HAS NOT BEEN CHALLENGED . IT HAS THEREFORE SHOWN THAT THE LETTER WAS DELIVERED TO AN EMPLOYEE OF THE APPLICANT AT A BUILDING SITUATED AT 33 CORSO REGIO PARCO, TURIN, BEING THE ADDRESS WHICH THE APPLICANT, IN ITS APPLICATION, STATES TO BE THAT OF ITS REGISTERED OFFICE .

P . 99

THIS BEING SO, IT IS OF LITTLE IMPORTANCE WHETHER THE LETTER - AS STATED BY THE APPLICANT - WAS NOT CONVEYED FROM TURIN TO MAGLIANO ALPI . SINCE IT IS ESTABLISHED THAT IT DULY ARRIVED AT THE APPLICANT'S REGISTERED OFFICE, APPLICATION MAY BE MADE OF A PRINCIPLE OF LAW RECOGNIZED IN ALL COUNTRIES OF THE COMMUNITY, NAMELY THAT A WRITTEN DECLARATION OF INTENT BECOMES EFFECTIVE AS SOON AS IT ARRIVES IN DUE COURSE WITHIN THE CONTROL OF THE ADDRESSEE .

THE SUBMISSION CONCERNING INFRINGEMENT OF ARTICLE 36 MUST THEREFORE BE REJECTED .

B - INFRINGEMENT OF ARTICLE 64 OF THE TREATY

ACCORDING TO THE APPLICANT, THE HIGH AUTHORITY FAILED TO APPRECIATE THE SCOPE OF ARTICLE 64 OF THE TREATY; IT CLAIMS THAT THE OFFENCE OF WHICH IT WAS GUILTY SHOULD HAVE BEEN PUNISHED ON THE BASIS OF ARTICLE 47 .

THIS ARGUMENT MUST BE REJECTED .

ACCORDING TO ARTICLE 64 FINES MAY BE IMPOSED UPON UNDERTAKINGS WHICH INFRINGE THE PROVISIONS OF CHAPTER V OF THE TREATY OR DECISIONS TAKEN THEREUNDER BY THE HIGH AUTHORITY . THAT CHAPTER COVERS OFFENCES AGAINST THE PROVISIONS CONCERNING PUBLICATION OF PRICE LISTS AND CONDITIONS OF SALE, CONTAINED IN ARTICLE 60 ( 2 ) ( A ), AS WELL AS OFFENCES AGAINST THE RULE OF NON-DISCRIMINATION . SINCE THE APPLICANT DID NOT FULFIL ITS OBLIGATION TO PUBLISH ITS PRICE LISTS, AS WELL AS INFRINGING THE HIGH AUTHORITY'S DECISIONS NOS 31/53, 2/54 AND 37/54, LAYING DOWN THE EXTENT AND MANNER OF SUCH PUBLICATION, THE HIGH AUTHORITY CORRECTLY APPLIED ARTICLE 64 TO IT .

CONTRARY TO THE APPLICANT'S BELIEF, THE TREATY IS NOT INFRINGED WHEN THE HIGH AUTHORITY DETERMINES THE EXTENT AND MANNER OF PUBLICATION OF PRICE LISTS PURSUANT TO ARTICLE 60 ( 2 ) ( A ) OF THE TREATY, LAYING DOWN, INTER ALIA, THAT THOSE LISTS SHALL BE COMMUNICATED TO IT . AS ITS AGENT HAS NOTED, ARTICLE 60 ( 2 ) ( A ) MUST BE VIEWED IN THIS CONNEXION AS A SPECIAL PROVISION IN RELATION TO ARTICLE 47 .

THE APPLICANT WRONGLY MAINTAINS THAT THE ARGUMENT ADDUCED BY THE HIGH AUTHORITY WOULD LEAD TO ABSURD CONSEQUENCES IN THAT IT WOULD ALLOW THE IMPOSITION OF VERY HEAVY FINES IN RESPECT OF INFRINGEMENTS OF PURELY PREVENTIVE PROVISIONS . IN FACT, ARTICLE 64 DOES NOT LAY DOWN A MINIMUM; IT THEREFORE ALLOWS AND REQUIRES THE HIGH AUTHORITY TO ASSESS THE AMOUNT OF THE FINE IN RELATION TO THE NATURE OF THE RULE INFRINGED . FURTHERMORE, THE RULES RELATING TO PUBLICATION OF PRICES ARE NOT OF MINOR IMPORTANCE, BUT ARE ON THE CONTRARY A FUNDAMENTAL PRINCIPLE OF THE COMMON MARKET .

THE SUBMISSION CONCERNING INFRINGEMENT OF ARTICLE 64 MUST THEREFORE ALSO BE REJECTED .

C - AMOUNT OF THE FINE

THE COURT HAS EXAMINED THE QUESTION WHETHER THE AMOUNT OF THE FINE SHOULD BE REDUCED .

IT NOTES THAT THE ACTION BEFORE IT IS ONE IN WHICH IT HAS UNLIMITED JURISDICTION ( SECOND PARAGRAPH OF ARTICLE 36 ) AND THAT, THEREFORE, IT IS EMPOWERED NOT ONLY TO ANNUL BUT ALSO TO AMEND THE DECISION WHICH HAS BEEN ADOPTED .

P . 100

ALTHOUGH THE APPLICANT HAS PUT FORWARD NO FORMAL SUBMISSION TO THIS EFFECT, THE COURT BELIEVES, THE ADVOCATE-GENERAL CONCURRING, THAT THAT PART OF THE APPLICATION STRESSING THE MODEST FINANCIAL CIRCUMSTANCES OF THE APPLICANT MAY BE INTERPRETED AS AN ALTERNATIVE SUBMISSION REQUESTING SUCH A REDUCTION . FURTHERMORE, EVEN IN THE ABSENCE OF ANY FORMAL SUBMISSION, THE COURT IS AUTHORIZED TO REDUCE THE AMOUNT OF AN EXCESSIVE FINE SINCE SUCH A RESULT WOULD NOT HAVE AN EFFECT ULTRA PETITA, BUT WOULD ON THE CONTRARY AMOUNT TO A PARTIAL ACCEPTANCE OF THE APPLICATION . IN ACCORDANCE WITH THE VIEWS EXPRESSED BY THE ADVOCATE-GENERAL THE COURT IS, HOWEVER, OF THE OPINION THAT THE AMOUNT OF THE FINE IS NOT EXCESSIVE IN THIS CASE . AS REGARDS THE GRAVITY OF THE OFFENCE, ACCOUNT SHOULD BE TAKEN OF THE IMPORTANCE OF THE PRINCIPLE OF THE PUBLICATION OF PRICES, ON THE ONE HAND, AND OF THE FACT, ON THE OTHER HAND, THAT THE APPLICANT PERSISTENTLY DISREGARDED THE RULES IN QUESTION FOR MORE THAN THREE YEARS, THEREBY BETRAYING CONSIDERABLE NEGLIGENCE AT THE VERY LEAST . FURTHERMORE, AS REGARDS THE APPLICANT'S FINANCIAL SITUATION THE COURT REFERS TO THE FIGURES QUOTED IN THE ADVOCATE-GENERAL'S OPINION . IT NOTES, MOREOVER, THAT THE ACCOUNTS FOR 1955 AND 1956 CONTAIN ITEMS ON THE DEBIT SIDE ENTITLED " EXTRAORDINARY RESERVE FUND ", AMOUNTING TO LIT 18 043 659 AND 18 621 034 RESPECTIVELY . THIS BEING THE CASE, NO MANIFEST INJUSTICE HAS BEEN ESTABLISHED AND THE COURT DOES NOT INTEND TO SUBSTITUTE ITS ASSESSMENT FOR THAT OF THE HIGH AUTHORITY .

THE COURT IS NOT UNAWARE OF THE DIFFICULTIES WHICH THE APPLICANT MAY ENCOUNTER AS THE RESULT OF THE COINCIDENCE OF ITS OBLIGATIONS TO PAY THE FINE AND DISCHARGE ARREARS IN RESPECT OF LEVIES . THE COURT RELIES ON THE HIGH AUTHORITY'S JUDGMENT REGARDING THE MANNER IN WHICH THE FINE IS TO BE PAID .

SINCE THE APPLICANT HAS FAILED IN ALL HEADS OF ITS APPLICATION IT MUST BEAR THE COSTS OF THE ACTION IN ACCORDANCE WITH ARTICLE 60 OF THE RULES OF PROCEDURE OF THE COURT .

THE COURT

HEREBY :

DISMISSES THE APPLICATION BROUGHT AGAINST THE DECISION OF THE HIGH AUTHORITY OF 24 OCTOBER 1956 IMPOSING ON THE APPLICANT A FINE OF LIT 800 000;

ORDERS THE APPLICANT TO PAY THE COSTS .