Avis juridique important

Judgment of the Court of 13 July 1961. - Meroni & Co. and others v High Authority of the European Coal and Steel Community. - Joined cases 14, 16, 17, 20, 24, 26 and 27-60 and 1-61. European Court reports French edition Page 00321 Dutch edition Page 00335 German edition Page 00347 Italian edition Page 00309 English special edition Page 00161 Danish special edition Page 00257 Greek special edition Page 00615 Portuguese special edition Page 00615

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

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1 . LIABILITY OF THE ECSC - FINANCIAL ARRANGEMENTS - EQUALIZATION - NORMAL DISADVANTAGES - ABSENCE OF INJURY

( ECSC TREATY, ARTICLE 40, 53 )

2 . LIABILITY OF THE ECSC - CONDITIONS FOR THE APPLICATION OF ARTICLE 40 - ACTUAL AND SPECIFIC INJURY

3 . LIABILITY OF THE ECSC - WRONGFUL ACT OR OMISSION WITHIN THE MEANING OF ARTICLE 40 - INHERENT DEFECTS IN DECISIONS OF THE HIGH AUTHORITY - LIMITS OF JUDICIAL REVIEW

4 . FINANCIAL ARRANGEMENTS - EQUALIZATION - FINANCING

( ECSC TREATY, ARTICLE 45, 50, 51, 53 )

1 . THE DISADVANTAGES WHICH ARE BOUND TO BE INHERENT IN THE SYSTEM OF EQUALIZATION ARE NORMAL AND DO NOT AMOUNT TO AN INJURY GIVING RISE TO A CLAIM FOR REPARATION . UNCERTAINTY AS TO THE RATE OF EQUALIZATION, EVEN IF THE AMOUNT APPLICABLE FOR A SINGLE PERIOD HAS BEEN INCREASED BY A CONSIDERABLE AMOUNT, IS REGARDED AS SUCH A DISADVANTAGE PROVIDED THAT EXPERIENCED PRODUCERS HAVE BEEN ABLE TO TAKE THESE INCREASES INTO ACCOUNT IN THEIR ESTIMATES .

2 . AN APPLICATION BASED ON ARTICLE 40 PRESUPPOSES THE EXISTENCE OF A SUBSISTING AND SPECIFIC INJURY .

3 . WHEN AN APPLICATION IS MADE TO THE COURT UNDER ARTICLE 40 OF THE ECSC TREATY ALLEGING A WRONGFUL ACT OR OMISSION BY THE HIGH AUTHORITY, THE COURT CANNOT IN PRINCIPLE TREAT INHERENT DEFECTS IN DECISIONS OF THE HIGH AUTHORITY AS CONSTITUENT ELEMENTS OF THE ALLEGED WRONG .

4 . IF THE HIGH AUTHORITY IS TO AVOID INFRINGING ARTICLES 50 AND 51 OF THE ECSC TREATY AND DISCRIMINATING BETWEEN UNDERTAKINGS SUBJECT TO ITS JURISDICTION, IT CAN ONLY FINANCE EQUALIZATION BY THE LEVY INTRODUCED PURSUANT TO ARTICLE 53 AND THIS METHOD RULES OUT ANY SYSTEM PROVIDING FOR ANY DEFICIT TO BE COVERED BY THE FINANCIAL RESOURCES PROVIDED FOR BY ARTICLE 49 .

IN JOINED CASES 14, 16, 17, 20, 26 AND 27/60 AND 1/61

14/60, MERONI & CO ., INDUSTRIE METALLURGICHE, A LIMITED PARTNERSHIP, ERBA ( COMO ), REPRESENTED BY ITS DULY AUTHORIZED AGENT, AGOSTINO ARTIOLI,

16/60, ACCIAIERIA FERRIERA DI ROMA ( FERAM ), A COMPANY LIMITED BY SHARES, ROME, REPRESENTED BY ITS SOLE DIRECTOR, M . V . FRIGERIO,

17/60, FER . RO ( FERRIERE ROSSI ), AN INDIVIDUAL UNDERTAKING, MAGLIANO ALPI ( CUNEO ), REPRESENTED BY ITS OWNER GINO ROSSI, ENGINEER,

20/60, SOCIETA INDUSTRIALE METALLURGICA DI NAPOLI ( SIMET ), A COMPANY LIMITED BY SHARES, NAPLES, REPRESENTED BY PIO FANTINI,

24/60, FONDERIE OFFICINE MECCANICHE ( FOM ), A COMPANY LIMITED BY SHARES, TURIN, REPRESENTED BY ITS SOLE DIRECTOR, RICCARDO ALICE,

26/60, ACCIAIERIA LAMINATOI DI MAGLIANO ALPI ( ALMA ), A COMPANY LIMITED BY SHARES, TURIN, REPRESENTED BY ITS SOLE DIRECTOR, GIUSEPPE PASSALACQUA,

27/60, COMPAGNIE DES HAUTS FOURNEAUX DE CHASSE, A LIMITED COMPANY, LYON ( RHONE ) REPRESENTED BY THE CHAIRMAN OF ITS BOARD OF DIRECTORS, PIERRE CHOLAT,

1/61, MERONI & CO ., A COMPANY LIMITED BY SHARES, MILAN, REPRESENTED BY ITS SOLE DIRECTOR, DR ALDO MERONI, ENGINEER,

ALL ASSISTED BY ARTURO COTTRAU, ADVOCATE OF THE TURIN BAR AND AT THE CORTE DI CASSAZIONE AT ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES MARGUE, 20 RUE PHILIPPE II, APPLICANTS,

V

HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISER, PROFESSOR GIULIO PASETTI, ACTING AS AGENT,

ASSISTED BY PROFESSOR GIUSEPPE STOLFI, OF THE UNIVERSITY OF PAVIA, ADVOCATE AT THE CORTE DI CASSAZIONE AT ROME, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ, DEFENDANT,

APPLICATIONS FOR COMPENSATION FOR DAMAGE CAUSED BY AN ALLEGED WRONGFUL ACT OR OMISSION BY THE HIGH AUTHORITY

P . 166

I - THE LEGAL FOUNDATION OF THE APPLICATIONS AND THE SUBJECT-MATTER OF THE EXAMINATION BY THE COURT

THE APPLICANTS HAVE BASED THEIR APPLICATIONS ON ARTICLE 40 SINCE THEY PLEAD THAT THE HIGH AUTHORITY COMMITTED A 'WRONGFUL ACT OR OMISSION' AND ASK FOR PECUNIARY REPARATION TO MAKE GOOD THE WHOLE OF THE INJURY WHICH THEY CLAIM THEY SUFFERED BY REASON OF THE WRONG WHICH THEY HAVE ALLEGED .

THEREFORE THE PRESENT ACTIONS MUST BE DECIDED SOLELY UNDER THIS ARTICLE .

CONSEQUENTLY THE QUESTION WHETHER THE DECISIONS WHEREBY THE SYSTEM OF EQUALIZATION WAS CREATED AND MODIFIED ARE LAWFUL OR NOT MUST BE EXCLUDED FROM THE OUTSET AND THE ONLY QUESTION TO BE ANSWERED IS WHETHER THERE IS EVIDENCE OF A WRONGFUL ACT OR OMISSION DURING THE ADMINISTRATION OF THE FINANCIAL ARRANGEMENTS FOR WHICH THE DEFENDANT IS RESPONSIBLE .

II - ON THE EXISTENCE OF INJURY

THE COURT CANNOT ACCEPT THAT THE NORMAL DISADVANTAGES WHICH ARE BOUND TO BE INHERENT IN THE SYSTEM OF EQUALIZATION AMOUNT TO AN INJURY GIVING RISE TO A CLAIM FOR REPARATION AND IS REINFORCED IN ITS VIEW BECAUSE THESE DISADVANTAGES AFFECT EVERY COMMUNITY UNDERTAKING AND BECAUSE EQUALIZATION ON THE OTHER HAND GIVES SUBSTANTIAL ADVANTAGES TO ALL CONSUMERS OF FERROUS SCRAP, ESPECIALLY BY MAINTAINING THE PRICE OF COMMUNITY SCRAP AT A REASONABLE LEVEL AND BY PREVENTING MUCH LARGER FLUCTUATIONS OF THIS PRICE . IN THE PRESENT CASES IT HAS NOT BEEN SHOWN THAT THE DISADVANTAGE SUFFERED BY UNDERTAKINGS OWING TO THE FACT THAT THEY WERE FOR A TIME UNCERTAIN AS TO THE FINAL AMOUNT OF THEIR EQUALIZATION CONTRIBUTIONS IS GREATER THAN THE DISADVANTAGE NORMALLY INHERENT IN THE SYSTEM WHICH WAS CHOSEN .

P . 167

MOREOVER THERE CAN BE NO INJURY FOR WHICH THE DEFENDANT CAN BE HELD LIABLE IN SO FAR AS THE APPLICANTS COULD TAKE INTO ACCOUNT THE EQUALIZATION LEVY WHEN THEY FIXED THEIR SELLING PRICES IN SPITE OF THE UNCERTAINTY AS TO THE FINAL RATE . IN THIS CONNEXION IT MUST BE BORNE IN MIND THAT THE APPLICANTS KNEW THAT THE STATEMENTS OF ACCOUNT WERE ONLY PROVISIONAL AND THAT CONSEQUENTLY ANY ALTERATIONS TO THEM MIGHT TAKE THE FORM OF INCREASES .

THIS WAS BOUND TO CAUSE THEM, AS EXPERIENCED PRODUCERS, ACTING PRUDENTLY WHEN MAKING THEIR ESTIMATES, TO TAKE INTO ACCOUNT THAT THERE MIGHT BE SUCH INCREASES, MORE ESPECIALLY AS THE PRODUCER FREQUENTLY ONLY HAS ACCURATE KNOWLEDGE A POSTERIORI OF SOME OF HIS PRODUCTION COSTS COMPONENTS ( FOR EXAMPLE IN THE CASE OF RETROSPECTIVE PAY RISES OR SOCIAL SECURITY CHARGES, OF THE AMOUNT OF TAXES REFERABLE TO AN EARLIER PERIOD, OR OF POSSIBLE DIFFERENCES BETWEEN ACTUAL REPLACEMENT COSTS OF EQUIPMENT AND THOSE RESULTING FROM ESTIMATES FOR DEPRECIATION ETC .).

MOREOVER THE TABLES OF STATISTICS PRODUCED TO THE COURT BY THE PARTIES SHOW CLEARLY THAT IN MANY CASES THE SUCCESSIVE ALTERATIONS OF THE RATE APPLICABLE TO A SINGLE PERIOD DID NOT REFLECT A CONSTANT INCREASE BUT WERE CHARACTERIZED EITHER BY ALTERNATING RISES AND FALLS ( FOR EXAMPLE APRIL, SEPTEMBER TO DECEMBER 1955 ) OR EVEN BY PROGRESSIVE REDUCTIONS ( FOR EXAMPLE JULY TO DECEMBER 1956 ). THEREFORE THE APPLICANTS CLAIM THAT THEY WERE EXPOSED THROUGHOUT THE ENTIRE PERIOD WHEN THE FINANCIAL ARRANGEMENTS WERE OPERATING TO THE RISK OF UNDERESTIMATING THEIR COST PRICES . ON THE CONTRARY THEY WERE SOMETIMES LED TO OVERESTIMATE THEM SO THAT IT MUST LOGICALLY BE ADMITTED THAT THE DISADVANTAGE POINTED OUT WAS TO SOME EXTENT OFFSET BY A CERTAIN COMPENSATION WHICH WAS ALSO BUILT IN TO THE EQUALIZATION SCHEME . FINALLY, EVEN IN THOSE CASES WHERE THERE WERE FAIRLY LARGE INCREASES IN THE RATE APPLICABLE TO A SINGLE PERIOD THE COURT TAKES THE VIEW THAT THE EFFECT OF THE AMOUNT OF THESE INCREASES ON THE TOTAL PRICE OF SCRAP, THAT IS TO SAY ON THE COST PRICE, IS NOT SUCH THAT THEY WOULD BE PRESUMED TO EXCEED ANY REASONABLE ESTIMATE BY AN EXPERIENCED PRODUCER . IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE APPLICANTS HAVE NOT SHOWN THAT THERE HAS BEEN ANY INJURY GIVING RISE TO A CLAIM FOR COMPENSATION .

III - THE WRONGFUL ACT OR OMISSION

THE COMPLAINTS RAISED BY THE APPLICANTS ARE CONNECTED WITH TWO ASPECTS OF THE ATTITUDE OF THE HIGH AUTHORITY OR OF THE AGENCIES IN BRUSSELS, NAMELY :

P . 168

1 . THE 'DELAY' IN EFFECTING THE FIRST NOTIFICATIONS OF THE RATE APPLICABLE TO THE DIFFERENT ACCOUNTING PERIODS .

2 . THE FACT THAT FREQUENTLY THESE RATES HAVE BEEN ALTERED AT A LATER DATE AND SOMETIMES SUCCESSIVELY WITHOUT THE FINAL RATE HAVING BEEN FIXED TO THIS DAY .

1 . SO FAR AS THE FIRST OBJECTION IS CONCERNED THE DEFENDANT HAS RIGHTLY POINTED OUT THAT THE SYSTEM OF EQUALIZATION IN THE FORM GIVEN TO IT BY THE GENERAL DECISIONS OF THE HIGH AUTHORITY OF NECESSITY IMPLIES CALCULATIONS A POSTERIORI . IN FACT THE RATE OF EQUALIZATION COULD ONLY BE FIXED AFTER TAKING INTO ACCOUNT A SERIES OF FACTORS AND ESPECIALLY THE RESPECTIVE PRICES AND TOTAL QUANTITIES OF IMPORTED SCRAP AND SCRAP PURCHASED WITHIN THE COMMUNITY . IN ORDER TO KNOW WHAT THESE FACTORS WERE THE HIGH AUTHORITY DEPENDED PRIMARILY ON THE DILIGENCE SHOWN BY THE UNDERTAKINGS SUBJECT TO THE SCHEME IN DISCHARGING THEIR DUTY TO MAKE THE NECESSARY DECLARATIONS . IT IS WELL KNOWN THAT SOME UNDERTAKINGS DID NOT ALWAYS SHOW THE DESIRED DILIGENCE . THE APPLICANTS THEMSELVES HAVE NOT HOWEVER ALLEGED THAT THE ADMINISTRATION, BY FAILING TO REMIND THOSE SUBJECT TO IT OF THEIR DUTIES AS ENERGETICALLY AS IT SHOULD HAVE DONE, HAS BEEN NEGLIGENT .

THE PARTICULARS PRODUCED BY THE PARTIES SHOW THAT THE TIME TAKEN TO GIVE NOTIFICATION AMOUNTED RESPECTIVELY TO

117 DAYS FOR THE RUNNING-IN PERIOD OF THE SYSTEM OF EQUALIZATION ( APRIL TO JUNE 1954 ) AS FROM THE END OF JUNE; AN AVERAGE OF 57 TO 74 DAYS FOR THE REMAINING PERIOD OF THE SAME YEAR AND ALSO FOR EACH OF THE YEARS 1955 TO 1957;

AN AVERAGE OF 87 DAYS FOR 1958 EXCLUDING DECEMBER 1958 FOR WHICH THE PERIOD WAS 411 DAYS .

THE COURT TAKES THE VIEW THAT THESE PARTICULARS DO NOT JUSTIFY THE CONCLUSION THAT THERE HAS BEEN NEGLIGENT ADMINISTRATION IF ACCOUNT IS TAKEN OF THE COMPLICATED NATURE OF THE FACTORS TO BE TAKEN INTO CONSIDERATION . ALTHOUGH THE DELAY OF 411 DAYS IN NOTIFYING THE RATE APPLICABLE TO DECEMBER 1958 CAN BE REGARDED AS EXCESSIVE, IT MUST NEVERTHELESS BE ADMITTED THAT THIS SINGLE EXCEPTION IS NOT ITSELF SUFFICIENTLY SERIOUS TO JUSTIFY THE INFERENCE THAT THERE HAS BEEN A WRONGFUL ACT OR OMISSION . IN SHORT NO EVIDENCE OF UNDUE DELAYS HAS BEEN ADDUCED OR TENDERED .

2 . SO FAR AS THE VARIOUS LATER CORRECTIONS ARE CONCERNED IT IS ADVISABLE TO BEAR IN MIND THAT, FOR THE REASONS GIVEN ABOVE, THE DECISIONS WHEREBY THESE CORRECTIONS WERE PRESCRIBED AND THE DECISIONS OF WHICH THESE CORRECTIONS WERE, DIRECTLY OR INDIRECTLY, THE INEVITABLE CONSEQUENCE, DO NOT COME WITHIN THE PROVINCE OF REVIEW BY THE COURT IN THE CONTEXT OF THE PRESENT PROCEEDINGS . THEREFORE THE COURT MUST MERELY CONSIDER WHETHER THESE MODIFICATIONS WERE CAUSED BY CIRCUMSTANCES IN NO WAY CONNECTED WITH THE LEGAL STRUCTURE OF THE EQUALIZATION SCHEME OR BY A DEFICIENT ORGANIZATION OF THE DEPARTMENTS OR WORK OF THE ADMINISTRATION .

( A ) THE APPLICANTS PROCEED FROM THE PROPOSITION THAT, HAVING REGARD TO THEIR NUMBER, SCOPE AND THE PERIODS OVER WHICH THEY WERE SPREAD, THE CORRECTIONS, WHICH WERE MADE, AMOUNT IN THEMSELVES TO IRREFUTABLE EVIDENCE OF UNJUSTIFIABLY BAD ADMINISTRATION .

IN THE FIRST PLACE, HOWEVER, THE HIGH AUTHORITY WAS ENTITLED AND UNDER A DUTY, WHICH WAS PRECISELY IN THE INTERESTS OF THE UNDERTAKINGS SUBJECT TO THE EQUALIZATION SCHEME, TO ENSURE THAT THIS SCHEME FUNCTIONED AT ALL TIMES ON A BASIS OF FAIRNESS, LEGALITY AND ACCURACY AS TO THE FACTS . IT HAD ACCORDINGLY TO RECTIFY ANY MISTAKE OF LAW OR FACT AND ANY ASSESSMENT WHICH EXPERIENCE PROVED TO HAVE BEEN INACCURATE, INAPPROPRIATE OR INCOMPLETE .

IT SHOULD BE BORNE IN MIND THAT THE SCHEME IN QUESTION IS BASED PRIMARILY ON THE PRINCIPLE OF MAINTAINING A BALANCE BETWEEN THE CONTRIBUTIONS LEVIED AND THE AMOUNTS PAID OUT BY WAY OF EQUALIZATION;

THAT IF THE HIGH AUTHORITY WAS TO AVOID INFRINGING ARTICLES 50 AND 51 OF THE TREATY AND DISCRIMINATING BETWEEN THE UNDERTAKINGS UNDER ITS CONTROL IT COULD ONLY FINANCE THE EQUALIZATION FUND BY THE LEVY INTRODUCED PURSUANT TO ARTICLE 53 AND THIS RULED OUT ANY SYSTEM PROVIDING FOR A FIXED RATE TO BE DETERMINED FROM THE OUTSET AND FOR ANY DEFICIT TO BE COVERED WITH THE HELP OF THE FINANCIAL RESOURCES PROVIDED FOR BY ARTICLE 49;

THAT THE UNDERTAKINGS SUBJECT TO THE FINANCIAL ARRANGEMENTS ARE IN COMPETITION SO THAT THE HIGH AUTHORITY MUST TAKE PARTICULAR CARE TO ENSURE THAT THE PRINCIPLE OF EQUALITY IN THE FIELD OF PUBLIC CHARGES IS ALWAYS MOST SCRUPULOUSLY OBSERVED;

THAT IN SUCH CIRCUMSTANCES THE HIGH AUTHORITY CANNOT BE BLAMED FOR HAVING GIVEN PRECEDENCE ALBEIT AT THE COST OF NUMEROUS AMENDMENTS TO THE PRINCIPLE OF DISTRIBUTIVE JUSTICE RATHER THAN TO THAT OF LEGAL CERTAINTY .

CONTRARY TO THE VIEW OF THE APPLICANTS THE FACT THAT IT WAS NOT KNOWN WHEN THE LATER ALTERATIONS WOULD BE MADE AND WHAT THEIR SCOPE WOULD BE DOES NOT JUSTIFY THE FINDING THAT THE HIGH AUTHORITY IS LIABLE FOR A BREACH OF THE RULES RELATING TO PUBLICATION SET OUT IN ARTICLE 60, BECAUSE IT MADE IT IMPOSSIBLE FOR UNDERTAKINGS TO COMPLY WITH THESE RULES . IT IS DIFFICULT TO SEE HOW THE MERE FACT THAT UNDERTAKINGS DO NOT YET KNOW WITH ANY ACCURACY THE WHOLE OF THEIR FINAL COST PRICE WOULD PREVENT THEM FROM SELLING AT PRICES WHICH THEY HAD FREELY INSERTED IN THEIR PRICE-LISTS AND THIS WOULD BE EVEN LESS LIKELY AS THEY WERE FREE TO ALTER THESE PRICE-LISTS AS FREQUENTLY AS THEY THOUGHT WAS NECESSARY .

P . 170

( B ) ALTHOUGH IT IS NOT POSSIBLE TO CRITICIZE THE HIGH AUTHORITY FOR HAVING RECTIFIED ERRORS COMMITTED IN CALCULATING THE BASIS OF ASSESSMENT TO THE EQUALIZATION CONTRIBUTIONS IT IS HOWEVER NECESSARY TO CONSIDER WHETHER THESE ERRORS COULD HAVE BEEN AVOIDED BY GOOD ADMINISTRATION AS THEY MAY INDICATE THE EXISTENCE OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY OR THE BRUSSELS AGENCIES, WHICH AMOUNTS TO THE SAME THING .

UPON READING THE APPLICANTS' PLEADINGS IT APPEARS THAT THEY ATTRIBUTE THE ERRORS OR DEFECTS WHICH THEY REGARD AS CONSTITUTING A WRONGFUL ACT OR OMISSION PRIMARILY TO TWO FACTS : TO THE DELEGATION OF POWERS TO THE BRUSSELS AGENCIES AND THE WITHDRAWAL OF THIS DELEGATION CARRIED OUT PURSUANT TO THE MERONI JUDGMENTS ( CASES 9 AND 10/56 ), ON THE ONE HAND, AND TO THE FRAUDS WHEREBY THE BASIS UPON WHICH THE EQUALIZATION IS CALCULATED WAS FALSIFIED, ON THE OTHER HAND .

THE ARGUMENT BASED ON THE DELEGATION OF POWERS MUST BE DISREGARDED SINCE, AS HAS BEEN MENTIONED ABOVE, THE INTRINSIC DEFECTS OF GENERAL DECISIONS OF THE HIGH AUTHORITY CANNOT BE EXAMINED IN THE CONTEXT OF THE PRESENT CASES WHICH ARE BASED ON ARTICLE 40 .

LIKEWISE, THE ARGUMENT ON THE FRAUDS, WHICH ARE THE SUBJECT OF OTHER APPLICATIONS WHERE AN INJURY OF A DIFFERENT KIND IS ALLEGED, CANNOT BE CONSIDERED IN THIS CASE, SINCE THESE FRAUDS CERTAINLY HAVE NOT CAUSED THE INJURY ALLEGED IN THESE PROCEEDINGS . IN FACT AT THE TIME WHEN THE LAST CORRECTIONS, TO WHICH THE APPLICANTS HAVE DRAWN ATTENTION, WERE MADE ( DECISION N . 19/60 OF THE HIGH AUTHORITY, JO OF 24.8.1960 ) THE HIGH AUTHORITY STILL DID NOT HAVE IN ITS POSSESSION THE RESULTS OF THE ENQUIRY INTO THE SAID FRAUDS, SO THAT NONE OF THE CORRECTIONS MADE UNTIL THEN CAN BE CONSIDERED AS BEING EVEN IN PART A DIRECT AND ESSENTIAL CONSEQUENCE OF THESE FRAUDS . ON THE OTHER HAND, IN SO FAR AS THE APPLICANTS ARGUE THAT THE FRAUDS STILL PREVENT THE UNDERTAKINGS FROM KNOWING THE FINAL RATE, IT MUST BE SAID THAT IT IS IMPOSSIBLE AT THE PRESENT TIME TO ESTABLISH WHETHER AND TO WHAT EXTENT LACK OF THIS INFORMATION COULD CAUSE AN INJURY OF THE KIND ALLEGED IN THIS CASE ( THE DIFFERENCE BETWEEN A REASONABLE FORECAST OF FUTURE LEVIES AND THE ACTUAL AMOUNT OF THESE LEVIES ). THE APPLICATION OF ARTICLE 40 PRESUPPOSES THE EXISTENCE OF A SUBSISTING SPECIFIC INJURY .

THE FOREGOING CONSIDERATIONS SHOW THAT THE FACTS PUT FORWARD BY THE APPLICANTS AS THE POSSIBLE REASONS FOR THE CORRECTIONS DO NOT JUSTIFY THE CONCLUSION THAT THERE WAS A WRONGFUL ACT OR OMISSION WHICH COULD BE TAKEN INTO CONSIDERATION IN THE CONTEXT OF THE PRESENT PROCEEDINGS . THE COURT DOES NOT FIND THAT THERE ARE OTHER FACTORS WHICH CONSTITUTE A WRONGFUL ACT OR OMISSION AND MIGHT HAVE AN INFLUENCE ON THE SAID CORRECTIONS . IN PARTICULAR SOME OF THESE CORRECTIONS, OR AT LEAST THE PERIOD DURING WHICH THEY WERE MADE ARE PROBABLY EXPLAINED BY THE TEMPORARY UNCERTAINTY OF THE ADMINISTRATION AS TO THE NEED TO INCLUDE 'GROUP FERROUS SCRAP' IN THE EQUALIZATION ( CF . THE SIXTEENTH RECITAL OF DECISION N . 19/60, JO 1960, P . 1160/60, 1ST COLUMN ). THE HIGH AUTHORITY CANNOT HOWEVER BE CRITICIZED FOR HAVING WAITED FOR THE RESULT OF PENDING ACTIONS BEFORE FINALLY MAKING UP ITS MIND IN THIS CONNEXION . NOR DO THE OTHER RECITALS OF THE SAID DECISION, WHICH ARE DESIGNED TO JUSTIFY SOME OF THE CORRECTIONS OF WHICH THE APPLICANTS COMPLAIN, DISCLOSE ANY FACTS WHICH MIGHT AMOUNT TO PRIMA FACIE EVIDENCE OF NEGLIGENT ADMINISTRATION . FINALLY, AS A GENERAL OBSERVATION, IT MUST BE SAID THAT, TO THE EXTENT TO WHICH PREVIOUS ERRORS OR DEFECTS IN THE CALCULATION OF THE ACTUAL BASES OF ASSESSMENT TO THE EQUALIZATION LEVY, FOR EXAMPLE THE TOTAL AMOUNT OF SCRAP SUBJECT TO EQUALIZATION, MAY HAVE CALLED FOR CERTAIN CORRECTIONS, THOSE ERRORS AND DEFECTS DO NOT AMOUNT IPSO FACTO TO A WRONGFUL ACT AND OMISSION . THEY MAY JUST AS WELL BE FOR EXAMPLE THE RESULT OF DIFFICULTY OF SOLUTION OF INTRICATE LEGAL PROBLEMS OR OF THE CARELESSNESS OF THE UNDERTAKINGS THEMSELVES WHICH ARE SUBJECT TO THE HIGH AUTHORITY'S ADMINISTRATION . IN ANY CASE THE APPLICANTS HAVE NOT SPECIFICALLY DEMONSTRATED THAT THERE HAVE BEEN INEXCUSABLE MISTAKES .

THE FOREGOING CONSIDERATIONS TAKEN AS A WHOLE, LEAD TO THE CONCLUSION THAT THE APPLICANTS HAVE NOT PROVED THE EXISTENCE OF A WRONGFUL ACT OR OMISSION .

IV - WHETHER THE ACTIONS ARE TIME-BARRED AND WHETHER THE INJURY HAD THE NATURE OF SPECIAL DAMAGE

SINCE THE APPLICATIONS HAVE TO BE DISMISSED AS UNFOUNDED ON THE GROUNDS THAT THERE IS NO WRONGFUL ACT OR OMISSION AND ALSO THAT NO INJURY HAS BEEN SUFFERED THERE IS NO NEED TO RULE ON THE QUESTION WHETHER THE CLAIMS MADE BY THE APPLICANTS ARE IN PART TIME-BARRED .

FOR THE LIKE REASONS THERE IS NO NEED IN THESE CASES TO RULE WHETHER UNDER ARTICLE 40 OF THE TREATY THE DAMAGE IN RESPECT OF WHICH REPARATION IS CLAIMED MUST BE IN THE NATURE OF SPECIAL DAMAGE AND WHETHER THIS CONDITION IS SATISFIED .

UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . THE APPLICANTS HAVE FAILED IN ALL THEIR SUBMISSIONS AND MUST THEREFORE BEAR THE COSTS .

THE COURT

HEREBY :

1 . DISMISSES THE APPLICATIONS

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .