P . 418
IN THE INTERESTS OF THE GOOD ADMINISTRATION OF JUSTICE, THE PRESENT CASES, ALREADY JOINED FOR THE ORAL PROCEDURE BY THE ORDER OF 26 FEBRUARY 1960, SHOULD BE DECIDED AS CONNECTED CASES BY THE SAME JUDGMENT .
I - ON THE SCOPE OF THE CONCLUSIONS OF THE APPLICANTS
THE SCOPE OF THE CONCLUSIONS MADE TO THE COURT IN THESE CASES MUST FIRST BE SETTLED :
IN ITS APPLICATION THE APPLICANT MERONI, ERBY, CLAIMS IN PARTICULAR THAT THE COURT SHOULD :
'DECLARE THAT THE DEFENDANT IS LIABLE FOR HAVING FAILED TO AVOID THE SITUATION WHEREBY, THROUGH THE MEDIUM OF THE OCCF DURING THE PERIOD FROM 1954 TO 1957, CONSIDERABLE QUANTITIES OF FERROUS SCRAP WERE SOLD, SUPPORTED BY FRAUDULENT CERTIFICATES ISSUED BY THE HEAD OF THE IRON AND STEEL DEPARTMENT OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, TO THE EFFECT THAT THOSE QUANTITIES ORIGINATED FROM SHIP-BREAKERS' YARDS ( IN WHICH AFFAIR HANSA - ROHSTOFF OF DUSSELDORF APPEARS TO HAVE BEEN INVOLVED ) AND ON ANY OTHER GROUND WHICH MAY EMERGE IN THE COURSE OF PROCEEDINGS .'
THE APPLICANT MERONI, MILAN, CLAIMED IN ITS APPLICATION THAT THE COURT SHOULD :
'DECLARE THAT THE DEFENDANT IS LIABLE FOR HAVING FAILED TO AVOID THE SITUATION WHEREBY, THROUGH THE MEDIUM OF THE DUTCH REGIONAL OFFICE OF THE CAISSE DE PEREQUATION DURING THE PERIOD FROM 1954 TO 1957, CONSIDERABLE QUANTITIES OF FERROUS SCRAP WERE SOLD, SUPPORTED BY FRAUDULENT CERTIFICATES ISSUED BY THE HEAD OF THE IRON AND STEEL DEPARTMENT OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, TO THE EFFECT THAT THOSE QUANTITIES ORIGINATED FROM SHIP-BREAKERS' YARDS, AND FOR ALL OTHER ACTS OF FRAUD SUBSEQUENTLY DISCOVERED ( HANSA - ROHSTOFF OF DUSSELDORF ETC ).'
IN THESE CIRCUMSTANCES, THE QUESTION ARISES WHETHER THESE CONCLUSIONS HAVE VALIDLY BROUGHT BEFORE THE COURT ALL THE ACTS OF FRAUD AND IRREGULARITIES COMMITTED IN RELATION TO THE EQUALIZATION OF FERROUS SCRAP FROM 1954 TO 1957, OR ONLY THE ACTS OF FRAUD RELATING TO THE FALSE CERTIFICATES ISSUED BY THE ABOVE - MENTIONED DUTCH OFFICIAL, MR VAN DER GRIFT ( WHICH ACTS OF FRAUD ARE HEREINAFTER REFERRED TO AS 'THE VAN DER GRIFT AFFAIR ').
P . 419
UNDER THE TERMS OF ARTICLE 22 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC AND OF ARTICLE 38 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE APPLICATION SHALL STATE THE SUBJECT MATTER OF THE DISPUTE AND SHALL CONTAIN THE SUBMISSIONS (' CONCLUSIONS ') OF THE APPLICANT .
THE APPLICANT MUST THUS SET OUT THE PRECISE FACTS RELIED ON IN SUPPORT OF HIS CLAIM AND MUST PRESENT HIS CONCLUSIONS IN AN UNEQUIVOCAL MANNER .
IN THE ABSENCE OF SUCH EXACTNESS, THE COURT RISKS EITHER GIVING JUDGMENT ULTRA PETITA OR FAILING TO GIVE JUDGMENT ON ONE OF THE HEADS OF THE CONCLUSIONS .
FURTHERMORE, IN THE ABSENCE OF SUCH EXACTNESS, THE RIGHT OF THE DEFENDANT TO BE OBLIGED TO REPLY ONLY TO FACTS EXPLICITLY DEFINED AND TO REFUTE ONLY CLEAR AND PRECISE ALLEGATIONS WOULD BE DISREGARDED .
IN THE PRESENT CASE THE APPLICANTS HAVE NOT FULFILLED THESE DUTIES, ALTHOUGH THE COURT INVITED THEM TO DO SO IN THE COURSE OF THE ORAL PROCEDURE AND IN ITS ORDER ON THE REOPENING OF THE ORAL PROCEDURE .
WITH REGARD TO THE FACTS ON WHICH THEY WISH TO BASE THEIR APPLICATION THE APPLICANTS HAVE LIMITED THEMSELVES TO ADDING TO THE FILE VARIOUS PARLIAMENTARY DOCUMENTS AND TO REFERRING IN THE COURSE OF THE ORAL PROCEDURE TO ALL THE FACTS AND ARGUMENTS CONTAINED THEREIN . THEY HAVE, ON THE OTHER HAND, REFRAINED FROM DEFINING WHICH IRREGULARITIES DESCRIBED IN THESE DOCUMENTS CONSTITUTE A WRONGFUL ACT OR OMISSION ON THE PART OF THE HEAD OF THE APPROPRIATE DEPARTMENTS AND WHICH CAUSED THEM INJURY .
IF THE COURT ACCEPTED ARGUMENTS BY THE APPLICANTS MADE WITH SUCH A LACK OF PRECISION, IT WOULD DEPRIVE THE DEFENDANT TO A CONSIDERABLE EXTENT OF ITS OPPORTUNITIES, PROVIDED FOR IN THE RULES OF PROCEDURE, TO SUBMIT ITS DEFENCE WITH FULL KNOWLEDGE OF THE FACTS .
WITH REGARD TO THE CONCLUSIONS, IT DOES NOT EMERGE CLEARLY ENOUGH FROM THEM THAT THEY ENCOMPASS NOT ONLY THE VAN DER GRIFT AFFAIR BUT ALSO ALL THE ACTS OF FRAUD AND IRREGULARITY WHICH HAVE BEEN COMMITTED .
THE ARGUMENTS SET FORTH IN THE APPLICATIONS ARE RESTRICTED IN FACT TO THE VAN DER GRIFT AFFAIR ALONE .
THE APPLICANT MERONI, MILAN, QUOTES IN ITS CONCLUSIONS THE TONNAGE OF FERROUS SCRAP SOLD THROUGH 'THE MEDIUM OF THE DUTCH REGIONAL OFFICE OF THE CAISSE DE PEREQUATION '.
P . 420
IN THE CONCLUSIONS OF BOTH APPLICANTS REFERENCE IS MADE IN PARENTHESES TO HANSA-ROHSTOFF, AN UNDERTAKING OFTEN FOUND MENTIONED IN CONNEXION WITH THE VAN DER GRIFT AFFAIR .
IT FOLLOWS FROM THE FOREGOING THAT THE CONCLUSIONS CONTAINED IN THE APPLICATIONS MUST BE INTERPRETED AS REFERRING ONLY TO THE VAN DER GRIFT AFFAIR .
SUBSEQUENT PROCEDURE, FAR FROM WEAKENING THAT INTERPRETATION, IS SUCH AS TO CONFIRM IT .
IN FACT, AT THE HEARING, ALTHOUGH COUNSEL FOR THE APPLICANTS ASSERTED THAT THE CONCLUSIONS OF THE APPLICANTS ALWAYS RELATED TO ALL ACTS OF FRAUD, HE DID NOT HOWEVER FORMALLY AMEND OR CLARIFY THOSE CONCLUSIONS .
SUCH AN ASSERTION CANNOT TAKE THE PLACE OF AN AMENDMENT OF THE CONCLUSIONS, WHICH, EVEN IF ADMISSIBLE, IS SUBJECT TO THE STRICTEST REQUIREMENTS AS REGARDS ITS PRECISION AND CONTENT .
THE APPLICANTS HAVE OBSERVED THAT THEY HAD NOT BEEN IN A POSITION TO PUT FORWARD THE ARGUMENTS IN QUESTION AT AN EARLIER DATE . THAT OBSERVATION, HOWEVER, IS NOT RELEVANT SINCE THEY ARE ALWAYS FREE TO MAKE A FRESH APPLICATION .
FINALLY, THE APPLICANTS EMPHASIZE THAT IF THEY HAD DELAYED IN ENFORCING THEIR RIGHTS IN ACCORDANCE WITH ARTICLE 40 OF THE TREATY, THEY WOULD HAVE RUN THE RISK OF FINDING THEMSELVES BARRED BY THE PERIOD OF LIMITATION PROVIDED FOR IN ARTICLE 40 OF THE STATUTE OF THE COURT OF JUSTICE OF THE ECSC . THAT FEAR, HOWEVER, IS WITHOUT FOUNDATION .
THERE IS IN FACT NO DANGER THAT ACTIONS BASED ON IRREGULARITIES OTHER THAN THOSE RELATING TO THE VAN DER GRIFT AFFAIR WILL BE TIME - BARRED, AS IT HAS NOT YET BEEN POSSIBLE FINALLY TO FIX THE AMOUNTS TO BE PAID IN RESPECT OF THE EQUALIZATION LEVY ON FERROUS SCRAP .
THESE ARGUMENTS DO NOT HOWEVER MAKE IT POSSIBLE TO GIVE TO THE REFERENCES TO THE ACTS OF FRAUD, OTHER THAN THOSE COMMITTED IN THE VAN DER GRIFT AFFAIR - REFERENCES CONTAINED IN THE CONCLUSIONS AND IN THE COURSE OF THE ORAL PROCEDURE - THE WIDE INTERPRETATION THE BENEFIT OF WHICH THE APPLICANTS CLAIM . THOSE REFERENCES MUST RATHER BE INTERPRETED SOLELY AS A RESERVATION IN ORDER THAT THOSE OTHER INJURIOUS FACTS MIGHT BE TAKEN INTO CONSIDERATION, TO THE EXTENT TO WHICH SUCH FACTS AND CIRCUMSTANCES - WHICH MOREOVER ARE UNSUBSTANTIATED - RELATE ONLY TO THE VAN DER GRIFT AFFAIR .
P . 421
IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANTS' CLAIM RELATES ONLY TO THE VAN DER GRIFT AFFAIR, INCLUDING THE FACTS RELATING TO THAT AFFAIR WHICH EMERGED AFTER THE LODGING OF THE APPLICATIONS, BUT BEFORE THE OPENING OF THE ORAL PROCEDURE .
II - ON THE SUBSTANCE OF THE CASE
1 . LIABILITY OF THE HIGH AUTHORITY ON THE BASIS OF A GUARANTEE GIVEN BY IT
THE APPLICANTS INFER THE LIABILITY OF THE DEFENDANT FROM THE FACT THAT THE LATTER, IN ITS DECISIONS ESTABLISHING THE EQUALIZATION SCHEME, FORMALLY UNDERTOOK TO ENSURE A FAULTLESS SERVICE; THIS COMMITMENT EXTENDED ALSO TO IRON AND STEEL UNDERTAKINGS OF THE COMMUNITY . THIS EMERGES FROM THE EIGHT RECITAL OF THE PREAMBLE TO DECISION 14/55 IN WHICH THE HIGH AUTHORITY DECLARED THAT IT 'IS RESPONSIBLE FOR THE REGULAR FUNCTIONING OF THE FINANCIAL ARRANGEMENTS AND HENCE MUST ALWAYS BE IN A POSITION TO INTERVENE EFFECTIVELY '.
THE ESTABLISHMENT OF THE FINANCIAL ARRANGEMENTS AND THE PRINCIPLE ENUNCIATED IN THE RECITAL TO THE ABOVE-MENTIONED GENERAL DECISION, OF THE LIABILITY ASSUMED BY THE HIGH AUTHORITY FOR THE REGULAR FUNCTIONING OF THIS SCHEME, BELONG TO THE POLITICAL AND ADMINISTRATIVE SPHERE, AND CANNOT THUS CONSTITUTE AN OBLIGATION TO THE UNDERTAKINGS UNDER ITS AUTHORITY OR A GUARANTEE GIVING RISE TO OBJECTIVE, CONTRACTUAL OR LEGAL LIABILITY ON THE PART OF THE HIGH AUTHORITY, EVEN WHEN NO WRONGFUL ACT OR OMISSION CAN BE IMPUTED TO IT .
THE SUBMISSION MUST THEREFORE BE DISMISSED .
2 . LIABILITY FOR A WRONGFUL ACT OR OMISSION
THE APPLICATIONS ARE MOREOVER PRINCIPALLY BASED ON ARTICLE 40 OF THE ECSC TREATY WHICH ALLOWS THE INJURED PARTY TO BRING AN ACTION TO OBTAIN PECUNIARY REPARATION FROM THE COMMUNITY TO MAKE GOOD ANY INJURY CAUSED IN CARRYING OUT THE SAID TREATY BY A WRONGFUL ACT OR OMISSION ON THE PART OF THE COMMUNITY IN THE PERFORMANCES OF ITS FUNCTIONS .
( A ) THE OFFICIAL OF THE DUTCH MINISTRY FOR ECONOMIC AFFAIRS, WHO FRAUDULENTLY ISSUED THE CERTIFICATES IN QUESTION, WAS NOT SUBJECT TO THE CONTROL OF THE HIGH AUTHORITY AND DID NOT RECEIVE ORDERS FROM IT, BUT ACTED IN HIS CAPACITY AS A NATIONAL OFFICIAL .
IF, IN ACCORDANCE WITH THE SYSTEM APPLIED BY THE HIGH AUTHORITY, CERTIFICATES ISSUED BY THE DUTCH MINISTRY WERE RECOGNIZED AS SUPPORTING DOCUMENTS WITHOUT FURTHER CHECKING, IT CANNOT BE INFERRED FROM THIS THAT THE OFFICIAL WHOM THE MINISTRY HAD CHARGED WITH ISSUING THE SAID CERTIFICATES ACTED ON BEHALF OF OR IN THE NAME OF THE COMMUNITY . THE WRONGFUL ACT COMMITTED BY THIS OFFICIAL CANNOT THEREFORE BE IMPUTED TO THE DEFENDANT . NO OTHER PERSONAL WRONG COMMITTED BY A SERVANT OF THE DEFENDANT IN THE PERFORMANCE OF HIS DUTIES HAS BEEN ESTABLISHED .
P . 422
( B ) IT IS ALSO NECESSARY HOWEVER TO CONSIDER WHETHER THERE WAS A WRONGFUL ACT OR OMISSION ON THE PART OF THE DEFENDANT WITHIN THE MEANING OF ARTICLE 40 OF THE ECSC TREATY, BECAUSE OF ITS FAILURE TO PROVIDE A BETTER ORGANIZED SYSTEM FOR ISSUING THE CERTIFICATES OF ORIGIN FOR FERROUS SCRAP QUALIFYING FOR EQUALIZATION PAYMENTS, AND IN PARTICULAR BECAUSE OF ITS FAILURE TO PROVIDE FOR THE INVESTIGATION OF THE AUTHENTICITY OF THE SAID CERTIFICATES .
AT FIRST SIGHT, THE FACT THAT IT WAS POSSIBLE FOR THE ABUSES COMPLAINED OF TO CONTINUE FOR SEVERAL YEARS APPEARS TO INDICATE THAT THE ORGANIZATION WAS DEFECTIVE AND INSUFFICIENT . HOWEVER THAT CONCLUSION IS NOT JUSTIFIED IN THIS CASE . IN FACT, IN LEAVING TO THE COMPETENT NATIONAL AUTHORITY THE TASK OF ISSUING THE NECESSARY CERTIFICATES, THE DEFENDANT PURSUED THE COURSE WHICH APPEARED THE MOST APPROPRIATE AND THE MOST LIKELY TO AFFORD THE BEST GUARANTEE AGAINST ANY ABUSE . SINCE THE CERTIFICATES FORMED AT THE SAME TIME THE LEGAL BASIS, ACCORDING TO DUTCH LAW, FOR THE RE-EXPORT OF THE FERROUS SCRAP, IT WAS NATURAL TO ENTRUST THEIR ISSUE TO THE NATIONAL AUTHORITIES WHO, MOREOVER, WERE THE BEST QUALIFIED TO CARRY OUT THE NECESSARY CHECKS .
THE ISSUE OF THE CERTIFICATES HAD NOT BEEN LEFT TO A SUBORDINATE AUTHORITY BUT TO A MINISTRY . THE DUTCH REGULATIONS PROVIDED FOR AN EXTREMELY DETAILED PROCEDURE PRIOR TO THE ISSUE OF THE CERTIFICATES FOR CHECKING THE ORIGIN OF THE FERROUS SCRAP IN QUESTION; IT WAS IN FACT IMPOSSIBLE TO FORESEE THAT ACTS OF FRAUD COULD OCCUR IF THIS SYSTEM WERE APPLIED .
IN THESE CIRCUMSTANCES, THE DEFENDANT CANNOT BE BLAMED FOR HAVING ADOPTED THIS SYSTEM AND THE FACT OF ITS HAVING DONE SO CANNOT IN ANY CASE BE DESCRIBED AS A WRONGFUL ACT OR OMISSION .
THIS ALSO HOLDS GOOD WITH REGARD TO LACK OF SUPERVISION . IN FACT, IT WOULD HAVE BEEN EXCESSIVE TO CHECK CERTIFICATES COMING FROM A MINISTRY AND PURPORTING TO BE OFFICIAL DOCUMENTS, AT ANY RATE SO LONG AS THERE WAS NO INDICATION OF ABUSE WHICH COULD RAISE DOUBTS AS TO THEIR AUTHENTICITY .
THE ARGUMENT OF THE APPLICANTS THAT THE REPLY GIVEN BY THE HIGH AUTHORITY IN THE EUROPEAN PARLIAMENT TO THE QUESTIONS PUT BY MR VAN DER GOES VAN NATERS AND MR NEDERHORST AND THE LETTER OF 24 FEBRUARY 1958 ADDRESSED TO THE PRESIDENT OF THE EQUALIZATION FUND BY THE VICE-PRESIDENT OF THE HIGH AUTHORITY, MR SPIERENBURG, CONSTITUTED AN ADMISSION OF A WRONGFUL ACT OR OMISSION SHOULD BE REJECTED . ALTHOUGH IN FACT THESE STATEMENTS DID INQUIRE HOW AN IMPROVEMENT OF THE SYSTEM COULD AVOID SUCH DEFECTS IN FUTURE - AND IT WAS ONLY AFTER THE ACTS OF FRAUD THAT THOSE DEFECTS CAME TO LIGHT - THEY DO NOT CONSTITUTE AN EXPRESS ADMISSION THAT A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY HAD OCCURRED . THEY CANNOT MOREOVER TRANSFORM A COURSE OF ACTION BY THE DEFENDANT INTO A WRONGFUL ACT OR OMISSION - A DESCRIPTION WHICH SUCH A COURSE OF ACTION DOES NOT IN FACT DESERVE .
P . 423
IN ITS JUDGMENT IN THE FERAM CASE ( REC . 1958/1959, PP . 506 ET SEQ .), THE COURT HAD REFUSED A REQUEST FOR REPARATION FOR INJURY TO THE APPLICANT FERAM; THIS REQUEST WAS BASED ON THE SAME GROUND AS THE PRESENT APPLICATION, NAMELY THE EXISTENCE OF A WRONGFUL ACT OR OMISSION ON THE PART OF THE HIGH AUTHORITY COMPRISING ITS FAILURE TO PROVIDE A SUFFICIENT CHECK ON THE OPERATION OF THE EQUALIZATION SCHEME .
THE FACTS REFERRED TO BY THE APPLICANTS IN THE PRESENT DISPUTE, INASMUCH AS THEY RELATE TO THE VAN DER GRIFT AFFAIR, DO NOT CONTAIN ANY NEW FACTOR WHICH MIGHT LEAD THE COURT TO ABANDON ITS POSITION AS DEFINED IN THE FERAM CASE .
THE ACTION MUST, THEREFORE, BE DISMISSED AS BEING UNFOUNDED .
THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS RELATING TO THE VAN DER GRIFT AFFAIR .
THEY HAVE ALSO FAILED IN THEIR ATTEMPT TO BRING BEFORE THE COURT OTHER ACTS OF FRAUD DISCOVERED AFTER THE IRREGULARITIES RELATING TO THE SAID AFFAIR .
THEY WERE, HOWEVER, INDUCED TO MAKE THESE ATTEMPTS BY THE FACT THAT THEY WERE UNAWARE, OR MIGHT HAVE BEEN UNAWARE, THAT THE COURT WOULD RECEIVE CLAIMS MADE AFTER THE CLOSING OF THE ACCOUNTS OF THE EQUALIZATION SCHEME, WITHOUT HOLDING THEM TO BE OUTSIDE THE PERIOD OF LIMITATION .
THIS LACK OF AWARENESS, FOR WHICH THE APPLICANTS CANNOT BE BLAMED, INDUCED THEM TO INSTITUTE PROCEEDINGS FOR COMPENSATION WITHIN THE TIME WHICH THEY CONSIDERED APPROPRIATE .
THAT FACTOR CONSTITUTES AN EXCEPTIONAL CIRCUMSTANCE, WITHIN THE MEANING OF ARTICLE 69 ( 3 ) OF THE RULES OF THE COURT, FOR OFFSETTING THE COSTS AS WILL BE DEFINED BELOW IN THE OPERATIVE PART OF THE JUDGMENT .
THE COURT
HEREBY
1 . JOINS THE CASES ENTERED UNDER NUMBERS 46/59 AND 47/59 FOR THE PURPOSES OF THE PRESENT JUDGMENT BY REASON OF THEIR INTERCONNEXION;
2 . DISMISSES THE APPLICATIONS AS UNFOUNDED;
3 . ORDERS THAT THE COSTS BE SHARED, EACH PARTY BEARING ITS OWN COSTS .
