Court of Justice of the European Communities (including Court of First Instance Decisions)

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URL: http://www.bailii.org/eu/cases/EUECJ/1963/C5263.html
Cite as: [1963] EUECJ C-52/63

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61963J0023
Judgment of the Court of 5 December 1963.
Société anonyme Usines Emile Henricot and others v High Authority of the European Coal and Steel Community.
Joined cases 23, 24 and 52-63.
European Court reports
French edition 1963 Page 00441
Dutch edition 1963 Page 00461
German edition 1963 Page 00469
Italian edition 1963 Page 00437
English special edition 1963 Page 00217
Danish special edition 1954-1964 Page 00437
Greek special edition 1954-1964 Page 00999
Portuguese special edition 1962-1964 Page 00337

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1 . MEASURES ADOPTED BY INSTITUTIONS OF THE COMMUNITY - DECISIONS OF THE HIGH AUTHORITY - CONSTITUENT ELEMENTS
( ECSC TREATY, ARTICLE 14 )
2 . COSTS - NO FORMAL APPLICATION - CONSEQUENCES
( RULES OF PROCEDURE, ARTICLE 69 ( 2 ))

1 . ( A ) 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 IN-ESSENTIAL REQUIREMENT OF FORM LAID DOWN BY THE HIGH AUTHORITY FOR THE IDENTIFICATION OF ITS DECISIONS .
( B ) THE DECISION MUST APPEAR AS A MEASURE ADOPTED BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS, CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE LATTER GIVES ITS FINAL RULING IN A FORM WHICH ENABLES THE MEASURE IN QUESTION TO BE IDENTIFIED AS A DECISION .
ANY MEASURE, THEREFORE, WHICH, IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND WHICH IS NOT AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .
2 . IN THE ABSENCE OF ANY FORMAL APPLICATION FOR THE UNSUCCESSFUL PARTY TO BE ORDERED TO PAY THE COSTS, THE LATTER CANNOT BE MADE TO PAY THE COSTS INCURRED BY THE SUCCESSFUL PARTY .

IN JOINED CASES
23/63
SOCIETE ANONYME USINES EMILE HENRICOT, COURT - SAINT-ETIENNE ( BELGIUM ), REPRESENTED BY ITS BOARD OF DIRECTORS, ASSISTED BY G . VAN HECKE, ADVOCATE OF THE COUR D'APPEL, BRUSSELS, AND PROFESSOR AT THE UNIVERSITY OF LOUVAIN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, ADVOCATE, 84 GRAND' RUE,
24/63
SOCIETE ANONYME METALLURGIQUE D'ESPERANCE - LONGDOZ, LIEGE ( BELGIUM ), REPRESENTED BY ITS GENERAL MANAGER AND ITS SECRETARY-GENERAL, ASSISTED BY J . MERTENS DE WILMARS, ADVOCATE AT THE ANTWERP BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, ADVOCATE, 6 RUE WILLY-GOERGEN,
52/63
COMPAGNIE DES FORGES DE CHATILLON, COMMENTRY ET NEUVES-MAISONS, SOCIETE ANONYME, PARIS ( FRANCE ), REPRESENTED BY ITS VICE - CHAIRMAN AND GENERAL MANAGER, ASSISTED BY JEAN-PIERRE ARON, ADVOCATE AT THE COUR D'APPEL OF PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE CHAMBRE SYNDICALE DE LA SIDERURGIE FRANCAISE, 49 BOULEVARD JOSEPH-II, APPLICANTS,
V
HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY, REPRESENTED BY ITS LEGAL ADVISERS, PROFESSOR GIULIO PASETTI-BOMBARDELLA AND DOCTOR ITALO TELCHINI, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES AT 2, PLACE DE METZ, DEFENDANT,

IN THE MATTER ( AT THE PRESENT STAGE OF THE PROCEEDINGS ) OF THE ADMISSIBILITY OF THE APPLICATIONS MADE BY THE ABOVE-NAMED COMPANIES RESPECTIVELY, AS FOLLOWS :
( A ) APPLICATION FOR ANNULMENT OF THE INDIVIDUAL DECISIONS ADDRESSED TO THEM BY THE HIGH AUTHORITY CONTAINED IN LETTERS OF 5 AND 8 APRIL 1963 AND RELATING TO THE BASIS OF ASSESSMENT OF THE APPLICANTS' CONTRIBUTIONS TO THE EQUALIZATION SCHEME FOR IMPORTED FERROUS SCRAP AND THE FIXING OF THE SUMS PAYABLE IN CONSEQUENCE ( CASES 23, 24 AND 52/63 );
( B ) APPLICATION FOR ANNULMENT 'SO FAR AS IS NECESSARY' OF DECISION N . 7/63 OF THE HIGH AUTHORITY OF 3 APRIL 1963 ( CASE 23/63 );
( C ) SUBSIDIARY APPLICATION FOR DAMAGES BASED ON A WRONGFUL ACT OR OMISSION BY THE COMMUNITY ( CASES 23, 24 AND 52/63 );
( D ) FURTHER SUBSIDIARY APPLICATION FOR THE APPOINTMENT OF ONE OR MORE EXPERTS TO BE CHARGED WITH THE TASK OF SUBMITTING TO THE COURT A REPORT TO DETERMINE IN PARTICULAR THE DAMAGE SUFFERED ( CASE 24/63 );

IT IS ESTABLISHED THAT ON 5 AND 8 APRIL 1963 THE RELEVANT DEPARTMENTS OF THE HIGH AUTHORITY SENT REGISTERED LETTERS WITH FORMS OF ACKNOWLEDGEMENT OF RECEIPT TO THE UNDERTAKINGS S.A . USINES EMILE HENRICOT, S.A . METALLURGIQUE D'ESPERANCE-LONGDOZ AND COMPAGNIE DES FORGES DE CHATILLON, COMMENTRY ET NEUVES-MAISONS . THE LETTERS STATED THAT THE SAID UNDERTAKINGS WERE REQUESTED TO MAKE BY 31 MAY 1963 AT THE LATEST, CERTAIN PAYMENTS BY WAY OF CONTRIBUTION TO THE IMPORTED FERROUS SCRAP EQUALIZATION SCHEME .
FEARING THAT THE CONTENT OF THESE LETTERS WOULD BE REGARDED AS A DECISION WITHIN THE MEANING OF THE ECSC TREATY, THE RECIPIENT UNDERTAKINGS MADE AN APPLICATION FOR ANNULMENT OF THE ALLEGED DECISION WITH A SUBSIDIARY CLAIM FOR DAMAGES AGAINST THE HIGH AUTHORITY .
S.A . USINES EMILE HENRICOT MADE A FURTHER APPLICATION FOR THE ANNULMENT 'SO FAR AS IS NECESSARY' OF DECISION N . 7/63 OF 3 APRIL 1963 OF THE HIGH AUTHORITY .
AS A SUBSIDIARY POINT OF MINOR IMPORTANCE, S.A . METALLURGIQUE D'ESPERANCE-LONGDOZ REQUESTED THE COURT TO APPOINT ONE OR MORE EXPERTS TO REPORT ON VARIOUS QUESTIONS SPECIFIED BY THE COMPANY .
THE HIGH AUTHORITY HAS SUBMITTED THAT THESE APPLICATIONS ARE INADMISSIBLE .
ON THE ADMISSIBILITY OF THE APPLICATIONS FOR ANNULMENT
IN SUPPORT OF THESE OBJECTIONS ON THE GROUND OF INADMISSIBILITY THE HIGH AUTHORITY POINTS OUT THAT THE LETTERS OF 5 AND 8 APRIL 1963 DO NOT CONSTITUTE A DECISION AND CANNOT THEREFORE BE MADE THE SUBJECT OF AN APPLICATION . THE APPLICANT UNDERTAKINGS HAVE LEFT THIS MATTER TO THE DISCRETION OF THE COURT .
IT IS APPROPRIATE TO INQUIRE WHETHER THE LETTERS CONSTITUTE A DECISION WITHIN THE MEANING OF ARTICLE 14 OF THE TREATY . ACCORDING TO THE PROVISIONS OF THIS ARTICLE, THE HIGH AUTHORITY 'SHALL...TAKE' DECISIONS WHICH 'SHALL BE BINDING IN THEIR ENTIRETY '.
THE HIGH AUTHORITY IN ITS DECISION N . 22/60 HAS CONSIDERED IT NECESSARY TO ESTABLISH 'AS A MATTER OF OBLIGATION' THE FORM OF THESE DECISIONS AND HAS LAID DOWN THE CONDITIONS WITH WHICH IT UNDERTAKES TO MAKE SUCH MEASURES COMPLY .
IN A SUBSEQUENT 'COMMUNICATION' ( OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES, PP . 1250/60 ), THE HIGH AUTHORITY HAS PRESCRIBED THAT IF THESE FORMALITIES ARE NOT CARRIED OUT, THEN THE PARTIES CONCERNED MAY 'INFER THAT THE MEASURES IN QUESTION DO NOT ENTAIL ANY LEGAL OBLIGATIONS '.
ALTHOUGH IT IS DESIRABLE TO ENSURE OBSERVANCE OF THE REQUIREMENTS PRESCRIBED IN THE APPROPRIATE MANNER BY THE HIGH AUTHORITY, WHICH ENABLE GOVERNMENTS, INSTITUTIONS AND UNDERTAKINGS TO IDENTIFY DECISIONS FROM THEIR ACTUAL FORM, IT DOES NOT FOLLOW THAT A MEASURE SHOULD NOT BE CONSIDERED A DECISION, MERELY BECAUSE IT FAILS TO COMPLY WITH SOME INESSENTIAL REQUIREMENT OF FORM IF THE FUNDAMENTAL CONDITIONS UNDERLYING THE CONCEPT OF A DECISION WITHIN THE MEANING OF THE TREATY ARE OTHERWISE SATISFIED .
ACCORDING TO ARTICLE 14, DECISIONS SHALL BE TAKEN BY THE HIGH AUTHORITY, THAT IS TO SAY BY ITS MEMBERS SITTING AS A BODY . AS SUCH DECISIONS ARE 'BINDING IN THEIR ENTIRETY' HOWEVER, THEY MUST SHOW THAT THEY ARE INTENDED TO HAVE LEGAL EFFECTS UPON THOSE TO WHOM THEY ARE ADDRESSED .
IT FOLLOWS FROM THE NATURAL MEANING OF THE WORD THAT A DECISION MARKS THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, AND IS THUS THE DEFINITIVE EXPRESSION OF ITS INTENTIONS .
FINALLY, IT IS NECESSARY FOR THE LEGAL PROTECTION OF ALL THOSE AFFECTED THAT THEY SHOULD BE ABLE TO IDENTIFY BY ITS VERY FORM A DECISION WHICH INVOLVES SUCH SERIOUS LEGAL CONSEQUENCES, IN PARTICULAR A COMPULSORY TIME-LIMIT FOR EXERCISING THE RIGHT OF INSTITUTING PROCEEDINGS AGAINST IT . IN PARTICULAR, FOR A MEASURE TO AMOUNT TO A DECISION, THOSE TO WHOM IT IS ADDRESSED MUST BE ENABLED TO RECOGNIZE CLEARLY THAT THEY ARE DEALING WITH SUCH A MEASURE .
IT FOLLOWS THEREFORE FROM ALL THESE CONSIDERATIONS THAT A DECISION MUST APPEAR AS A MEASURE TAKEN BY THE HIGH AUTHORITY, ACTING AS A BODY, INTENDED TO PRODUCE LEGAL EFFECTS AND CONSTITUTING THE CULMINATION OF PROCEDURE WITHIN THE HIGH AUTHORITY, WHEREBY THE HIGH AUTHORITY GIVES ITS FINAL RULING IN A FORM FROM WHICH ITS NATURE CAN BE IDENTIFIED .
ANY MEASURE, THEREFORE, WHICH IN PARTICULAR, DOES NOT APPEAR TO HAVE BEEN DEBATED AND ADOPTED BY THE HIGH AUTHORITY AND AUTHENTICATED BY THE SIGNATURE OF ONE OF ITS MEMBERS, CANNOT BE REGARDED AS A DECISION .
IN THE PRESENT CASE, IN SPITE OF THE APPARENTLY PEREMPTORY NATURE OF THE LETTERS IN DISPUTE, THEY CANNOT BE CONSIDERED AS DECISIONS WITHIN THE MEANING OF THE TREATY . IN FACT, THERE IS NOTHING TO INDICATE THAT THE HIGH AUTHORITY, SITTING AS A BODY, HAD DISCUSSED AND RESOLVED UPON THEM . THE APPLICANTS WERE MERELY 'REQUESTED' TO MAKE PAYMENT, AND, ACCORDING TO THE 'EXPLANATORY NOTES' ENCLOSED WITH THE CONTESTED LETTERS, TO SUBMIT ANY OBSERVATIONS THEY MIGHT HAVE . CONSEQUENTLY THE APPLICATIONS ARE INADMISSIBLE .
THE APPLICATION MADE BY S.A . USINES EMILE HENRICOT FOR THE ANNULMENT 'SO FAR AS IS NECESSARY' OF DECISION N . 7/63 OF 3 APRIL 1963 MUST BE TREATED IN THE SAME WAY AS THE PRINCIPAL APPLICATION, AND ALSO BE DECLARED INADMISSIBLE .
ON THE INADMISSIBILITY OF THE APPLICATIONS FOR DAMAGES
THE APPLICANT COMPANIES SUBMITTED IN THEIR APPLICATIONS SUBSIDIARY CLAIMS FOR DAMAGES ON THE GROUNDS OF AN ALLEGED WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY . THE S.A . METALLURGIQUE D'ESPERANCE-LONGDOZ ALSO SUBMITTED A SUBSIDIARY APPLICATION FOR EXPERTS TO BE APPOINTED WHOSE MAIN TASK WOULD BE TO ASSESS THE DAMAGE IT HAD SUFFERED . HOWEVER, THE INADMISSIBILITY OF THE MAIN APPLICATIONS FOR ANNULMENT ON THE GROUND THAT THERE HAS BEEN NO DECISION ON THE PART OF THE HIGH AUTHORITY RULES OUT ANY CONSIDERATION OF THE SUBSIDIARY CLAIMS AND THUS RESULTS IN THE INADMISSIBILITY OF THE APPLICATIONS FOR DAMAGES .

UNDER 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 CONCLUSIONS OF THE SUCCESSFUL PARTY . SINCE THE DEFENDANT HAS NOT MADE ANY FORMAL SUBMISSIONS ON THIS MATTER, THE APPLICANTS CANNOT BE ORDERED TO PAY THE COSTS INCURRED BY THE DEFENDANT, NOTWITHSTANDING THAT THEY HAVE FAILED IN THEIR APPLICATIONS . THE DEFENDANT MUST THEREFORE BEAR ITS OWN COSTS .
UNDER ARTICLE 69 ( 3 ) OF THE RULES OF PROCEDURE MOREOVER, IT IS OPEN TO THE COURT TO ORDER EVEN A SUCCESSFUL PARTY TO PAY IN WHOLE OR IN PART THE COSTS INCURRED BY THE OPPOSITE PARTY . THE PEREMPTORY TONE OF THE LETTERS INVOLVED IN THE PRESENT PROCEEDINGS, ACCENTUATED BY THE MODE OF DESPATCH, AND THE SETTING OF A TIME-LIMIT FOR PAYMENT, WERE CAPABLE IN THEMSELVES OF CREATING UNCERTAINTY IN THE APPLICANTS' MINDS ABOUT THE NATURE OF THE SAID LETTERS . THE HIGH AUTHORITY, HAVING BY ITS OWN CONDUCT INDUCED THE APPLICANTS TO INSTITUTE PROCEEDINGS IN ORDER TO SAFEGUARD THEIR RIGHTS, MUST BEAR THE GREATER PART OF THE COSTS . IT IS APPROPRIATE THAT THE HIGH AUTHORITY SHOULD BEAR THREE-QUARTERS OF THE COSTS OF THE APPLICANTS .

THE COURT
HEREBY :
1 . RULES THAT THE APPLICATIONS SUBMITTED BY THE SOCIETE ANONYME USINES EMILE HENRICOT ( CASE 23/63 ), THE SOCIETE ANONYME METALLURGIQUE D'ESPERANCE-LONGDOZ ( CASE 24/63 ) AND THE COMPAGNIE DES FORGES DE CHATILLON, COMMENTRY ET NEUVES-MAISONS SOCIETE ANONYME ( CASE 52/63 ) ARE INADMISSIBLE;
2 . ORDERS THE HIGH AUTHORITY OF THE EUROPEAN COAL AND STEEL COMMUNITY TO BEAR ITS OWN COSTS AND THREE-QUARTERS OF THE COSTS OF THE APPLICANTS, AND THE APPLICANTS TO BEAR ONE - QUARTER OF THEIR OWN COSTS .