Court of Justice 09-12-1965 ECLI:EU:C:1965:120

The High Authority is not guilty of a wrongful act or omission giving rise to a right to reparation

The defendant observes in the first place that the decisions of the Court do not constitute ‘arrêts de règlement’ (judgments producing quasi-legislative effects) and that the entitlement to reparation must be appraised “in concreto” in each case.

It is true that the case which was the subject of the judgment of 15 December 1961 and the present applications are analogous in certain aspects and that in the said judgment the Court ruled that the High Authority was guilty of a wrongful act or omission by its failure to supervise the authorities entrusted with the functioning of the equalization scheme. However in its judgment the Court found that the failure to supervise was aggravated because the promises of the transport parity grant were given when the High Authority was no longer restricting itself merely to carrying out checks, but had, by virtue of Decision No 13/58, taken over the management of the equalization scheme. Since the present disputes relate to facts prior to Decision No 13/58, the question can no longer be regarded as settled and the said judgment is not even a precedent upon which it is sufficient to rely. In these circumstances, the fact that the Court ruled in the said judgment that “by the very fact that it had authorized the equalization scheme, the High Authority was bound to exercise supervision over it” does not necessarily imply that it meant by this that any failure whatever in supervision at any time would constitute a wrongful act or omission sufficient to give rise to liability. In this sphere, only the failure to exercise a reasonable degree of care is sufficient to entail the liability of the High Authority. In this connexion the defendant recalls that in its judgment of 4 April 1960 in Cases Nos 4 to 13/59, Mannesmann and others v High Authority, the Court remarked that “the equalization scheme which was compulsorily applied to the many undertakings consuming ferrous scrap in the six countries of the Community always engenders the possibility of errors in the payment of equalization sums” (Rec. 1960, p. 281).

The applicants reply that they did not rely upon the judgment of 15 December 1961 as having the force of res judicata with regard to the present disputes. But they state that this judgment constitutes a precedent and that a mere perusal of several of its grounds supplies proof that the Court expressly referred to the High Authority's behaviour and failings with regard to all the facts which occurred before Decision No 13/58. The said judgment took into account “the size of the transport parity payments made to French undertakings (349 021 dollars)”, which figure corresponds to the matters forming the subject of the present applications, and the judgment refers to Decisions Nos 22/54 and 14/55, which certainly proves that the facts referred to in the judgment relate to the period before Decision No 13/58. The gravity of the wrongful act or omission of which the High Authority was guilty is established by the number of contracts which provided for compensatory “transport parity grants” and by the number of grants allowed and it is emphasized by the severity with which the judgment of 15 December 1961 censured the behaviour of the High Authority during the period before Decision No 13/58.

The defendant replies that in instances which, like the present one, took place in a period before Decision No 13/58, the Court must reconsider whether the High Authority was guilty of wrongful acts or omissions of such a kind as to entail its liability.

Recognition of a right to reparation meets with an insurmountable legal obstacle

The defendant states that in its judgment of 22 March 1961 in Joined Cases 42 and 49/59, in the case of SNUPAT v High Authority (Rec. 1961, p. 99 et seq.), the Court ruled that, when the High Authority has committed errors in law—in that case illegal exemptions from the equalization levy were at issue—of which it was unaware and which benefited certain undertakings, it must be ordered to rectify these errors at the cost of those who had provisionally benefited from them and consequently it must revoke, even with retroactive effect, the administrative measures which sanctioned the said errors. Consequently, when the High Authority itself notices these errors and rectifies them of its own accord, how can it be ordered to nullify the very effects of this rectification by returning to those concerned the very sums whose reimbursement by the undertakings formed the object of the rectification? This is precisely the paradoxical and indeed absurd result to which the applicants' claim would lead. In these circumstances, the claim to a right to compensatory reparation could not be admitted, without depriving of its effect the obligatory rectification of legal errors.

In Joined Cases 19/60, 21/60, 2/61 and 3/61, Fives-Lille-Cail and others v High Authority, the latter alleged that the ‘transport parity’ reimbursements constituted a violation of the essential principles of the ECSC Treaty, that is to say, equal access to the sources of production and non-discrimination, which imply respect for natural geographical differences. In its judgment of 15 December 1961 on these applications, the Court referred to the ‘virtues’ of the above line of argument (Rec. 1961, p. 592) and in his opinion (Rec. 1961, p. 605) the Advocate-General approved of it. The applicants, among which are two of the four undertakings which brought Applications 19/60, 21/60, 2/61 and 3/61, interpreted the decision of the Court in this way, since they limit themselves at the present time to pleading a wrongful act or omission. It thus appears that the ‘transport parity’ reimbursements were illegal and that the High Authority was bound to claim their return.

The applicants reply that the defendant's line of argument is contradicted by the express terms of Article 40 of the Treaty. According to this Article, any wrongful act or omission confers a right to pecuniary reparation, but the reparation is proportionate to the injury sustained and not to the factors causing the wrongful act or omission. Outside the relationship of cause and effect to be established between the wrongful act or omission and the injury to be compensated, the figures of the one do not necessarily correspond to those of the other. The amount of the indemnity might be equal to, greater or less than, the figures relating to the wrongful act or omission; it is moreover quite possible to imagine errors, irregularities and omissions, etc., which cannot be expressed in figures, but which could nevertheless justify pecuniary reparation.

The applicants add in support of these considerations that, contrary to what the defendant claims, the purpose of the actions is not specifically to claim the benefit of the ‘transport parity grants’; the applicants are concerned about one thing only: in furtherance of their obligation to comply with the final ground of the judgment of 15 December 1961, they must assemble, in order to submit them to the Court, all the factors for the examination undertaken in order to reply to the question put. Naturally, if in the course of the inquiry conducted by the Court, it appears necessary to amend the particulars to be used for quantifying the damage suffered, the applicants will do what is necessary; the amount of damages could thus differ from the sums representing the ‘transport parities’, as they appear in the applications submitted. This standpoint of the applicants is the best proof that their claims do not relate specifically to the parity reimbursements.

The existence of damage

The applicants allege that during the period when they received ‘transport parity grants’ they had the right to choose imported ferrous scrap in preference to shipyard scrap. Consequently they state that but for the ‘transport parity grants’ they would certainly have chosen imported ferrous scrap, as the predominant motive guiding them was always the most advantageous cost price.

In support of their allegations, they endeavour to show that there were sufficient resources to be found in:

1. ferrous scrap originating in third countries, especially the United States;

2. sea-freight space;

3. sufficient capacity of machinery for warehousing and unloading in the usual ports of importation;

4. foreign exchange for French undertakings.

• The figures produced by the applicants are intended to establish that the stocks of ferrous scrap had increased from 1954 to 1958, that the tonnage of shipyard scrap for which the ‘transport parity grants’ were given represents only 2,2 % of deliveries from third countries and that the supply of this additional tonnage could not present any difficulty.

• The applicants produce (Schedule 1 in all the applications) an attestation from the SITAM (Société Internationale de Transports Affrètements Manutensions Transit) dated 30 December 1962; from this they deduce that it was possible to freight an additional 160 000 metric tons of imported ferrous scrap for the French undertakings as a whole.

• The applicants produce certificates from the harbour masters concerned (Schedules 8 to 19 of all the applications).

• The applicants argue that each metric ton of imported ferrous scrap made available a metric ton of shipyard scrap which could have been exported, resulting in an equivalent return in foreign exchange.

The defendant replies as follows to the applicants' allegations.

1. The argument based on the increase in stocks is not conclusive, since the tonnage of stocks corresponds to a specified period of consumption and, if the consumption is increased, a proportional increase in stocks must follow accordingly.

2. The defendant then argues that, even if the total resources of imported ferrous scrap had been sufficient, as the applicants allege, the latter could not choose between shipyard scrap and imported ferrous scrap. To this end the defendant quotes the opinion of Mr Advocate-General Roemer in Joined Cases 19/60, 21/60, 2/61 and 3/61, Fives-Lille-Cail and others v High Authority :

   ‘The Caisse de Bruxelles and, later, the High Authority was able to determine what quantity of ferrous scrap qualified for equalization; it thus possessed a means of guidance. In particular, to keep the equalization rates as low as possible, it was in a position to grant shipyard scrap a privileged place with regard to equalization. It was only bound to ensure mat this scrap was not distributed in a discriminatory manner’ (Rec. 1961, p. 605).

   It thus appears that the existence of general resources for the supply of imported ferrous scrap is quite insufficient to prove that a particular undertaking at a particular moment could have made a free choice of that source and consequently refused the contract for shipyard scrap which was offered it. In support of this observation reference should not be omitted to the case of certain Italian undertakings which, after directly purchasing imported ferrous scrap without going through the OCCF and then claiming the equalization payment, met with a refusal which they were obliged to accept.

   It would thus be entirely wrong to think that the undertakings had a free choice. Moreover, for each period the tonnage of imported ferrous scrap capable of qualifying for equalization payments had maximum limits which could not be exceeded.

   Thus the defendant concludes that, as the applicants' certainty of obtaining imported ferrous scrap in place of the shipyard scrap offered them was quite unfounded, the very existence of the alleged damage has not been established,

3. With regard to the doubt as to the damage, the defendant further alleges that the importation of ferrous scrap involves hazards which do not exist in the purchase of shipyard scrap.

It adverts to the need to open irrevocable credits, the inconvenience in cases of dispute with foreign suppliers, possible quarrels with ship-owners and the possibility of demurrage on unloading.

It alleges finally that ferrous scrap from ship-breakers' yards has always been regarded as of better quality than imported ferrous scrap which has on several occasions given purchasers unpleasant surprises.

The applicants reply as follows :

1. With regard to the stocks, they maintain that it follows from the documents published by the High Authority, especially its Tenth General Report, that the requirements of imported ferrous scrap have always been covered to a large extent. Shipyard scrap consumed by the applicants represented 30 000 to 40 000 metric tons per year, that is to say, only 1 to 2 % of the amount of the imported tonnages; it would therefore have been no problem to replace it with imported ferrous scrap.

2. The defendant's reasoning, which endeavours to deduce from the special powers of the Brussels agencies an argument to establish the uncertainty of the damage suffered, is unfounded in fact and in law. In fact the Brussels agencies were regularly informed by their regional offices (in Germany, France, etc.) of the aggregate amount of the various countries' requirements. With regard to resources, on the basis of its periodic inquiries undertaken in the large producing markets (USA, North Africa, etc.), the OCCF drew up and submitted for the CPFI's approval a general statement of purchases to be negotiated by the OCCF on the various markets. All this work was of course carried out under the supervision of the High Authority. The total available tonnage was then distributed among the various countries, the distribution in each country being carried out by the regional office, according to the requirements made known by the various undertakings. No problem had ever been raised in this connexion between a specific firm and the Brussels agencies. The contracts concluded with the suppliers had in fact always met the stated requirements; in fact the question of an obligatory distribution, on the High Authority's own initiative, has thus never been raised.

   Besides it would have been legally impossible, in the absence of a declaration of a ‘serious shortage’ made in accordance with the mandatory procedure laid down in Article 59 of the Treaty; it is known that the High Authority has always been unwilling to have recourse to these exceptional measures with regard to coal, ferrous scrap and steel, etc. With regard to the ferrous scrap sector, the balance which was always achieved between supply and demand meant that the problem was not raised.

   The Italian undertakings to whom equalization payments were refused purchased directly without going through the OCCF, thus clearly violating the basic rules of the equalization scheme which allowed only the Brussels agencies, under the supervision of the High Authority, to negotiate purchases outside the Community. The example quoted by the defendant is thus quite foreign to the particular problem at issue here.

3. The difficulties in connexion with the quality of imported ferrous scrap referred to by the defendant especially concern that of non-American origin. Deliveries from the USA, which constitute 76 % of the ferrous scrap received from 1955 to 1958, contain a high proportion of good quality ferrous scrap; this involves moreover a marking up of prices which has never given rise to dispute.

   The applicants observe, with regard to the other hazards mentioned by the defendant, that a channel of commerce exposed to so many risks would consequently have played only a very small part in supplying the Community: in fact deliveries of imported ferrous scrap increased from 26 000 000 metric tons in 1955 to 39 000 000 metric tons in 1959.

The defendant replies that in claiming to have sustained damage it is insufficient to allege that at the time when the shipyard scrap was purchased it would have been possible to purchase imported ferrous scrap more cheaply, but that it is moreover necessary to prove:

1. that at the same time scrap was not purchased on the internal market at prices, “free works”, equal to or higher than those of the shipyard scrap in dispute;

2. that other scrap, treated as imported ferrous scrap, was not purchased from places equidistant to or further from the works than those in which the disputed ferrous scrap from ship-breakers' yards originated;

3. that no purchases were made of other shipyard scrap originating in places equidistant to or further from those in which the disputed scrap originates;

4. no purchases were in fact made of imported ferrous scrap at prices, ‘free works’ after equalization, equal to or higher than those for the disputed shipyard scrap;

5. since only a difference in the transport costs was initially invoked, that no imported scrap was purchased which was delivered to the same ports as those from which the disputed shipyard scrap originates.

• In order to explain the defendant's allegation, it should be noted here that in its rejoinder (p. 39) the defendant pointed out that the equalization price was calculated on the basis of the prices actually prevailing within the Common Market, in the course of the month of delivery.

  The defendant indicates that it is in possession of declarations of the average price ‘free works’ of all ferrous scrap bought each month, by each applicant, on the internal market. These declarations, checked at the works by the Société Fiduciaire Suisse, were used to fix the equalization prices.

  In the schedules to the rejoinder numbered 3 (Providence), 17 (Firminy), 22 (Beautor), 25 (Rouen), 31 (Châtillon) and 44 (Usinor), the defendant compares the cost ‘free works’ of internal ferrous scrap and that of shipyard scrap (without the payment of the ‘transport parities’) bought by the applicants at the same time: according to these figures, the cost of the shipyard scrap in dispute is lower than — and in the one instance of the applicant in Case No 41/63, Aciéries de Beautor the same as — the cost of internal ferrous scrap. The defendant observes that the average price, which it produces, with regard to internal ferrous scrap may be noticeably lower than that of less advantageous purchases. It further remarks that owing to lack of time it was unable to extend the comparison to the cases where internal ferrous scrap, acquired at less advantageous rates than shipyard scrap, was purchased at a difference in price lower than the amount of the injury claimed.

• The defendant points out that the applicants bought ferrous scrap from American military bases, without putting forward the slightest objection with regard to the transport costs, although they were equal to those of the shipyard scrap in dispute.

• The defendant observes that the applicant in Case No 51/63 (Forges d'Hennebont) accepted, without requesting the ‘transport parity’, considerable tonnages of ferrous scrap from the same ship-breaking yards as those which supplied the scrap in dispute, and that this took place every month without exception from February 1955 to December 1958.

• The defendant argues that, according to Schedules 83 to 105 to the rejoinder, the applicants themselves admit that they purchased imported ferrous scrap at a cost ‘free works’ in excess of that of the disputed shipyard scrap.

• The defendant alleges (Schedule 50 to the reply) that the applicant in Case No 51/63 (Forges d'Hennebont) accepted the imported ferrous scrap which it purchased in 1956 at exactly the same ports as those in which the disputed shipyard scrap emanated.

The amount of the damage

The applicants seek to calculate the difference between the price of the shipyard scrap purchased, without taking account of the ‘transport parity’, and the price of the same tonnage of imported ferrous scrap, presumed to have been received in the same period; according to them, this difference proves the existence of the damage and limits its amount, since this difference in price represents the additional charge finally imposed upon the applicants.

1. The cost price of the imported ferrous scrap, free on board ship to the port of delivery, is equal to the equalization price increased by the cost of transhipment from the ship into the wagon or barge and by the cost of transport from the usual port of importation up to the consumer's works. The transhipment costs are estimated at 2 dollars per metric ton as is noted in Decision No 18/63.

   The cost price of shipyard scrap, free on rail or barge on leaving the ship-breakers' yard, is equal to the same equalization price, increased by 2 dollars — to take account of the absence of transhipment costs — and by the cost of transport from the ship-breaker's yard to the consumers' factory.

   The difference between the cost price of shipyard scrap and that of imported ferrous scrap is thus equal to the difference between the cost of transporting the scrap from the ship-breaker's yard to the consumer's factory and the estimated cost of transporting the imported ferrous scrap from the usual port of importation to the consumer's works, taking account of the transport rates prevailing at each particular period.

   Applying this method of calculation to every case in question, each of the applicants gives the figures for the cost of transporting the disputed shipyard scrap, from which it subtracts the estimated figures arrived at, taking account of the transport costs prevailing at the time of delivery of the ferrous scrap in dispute, for the transport costs of an equivalent tonnage of imported ferrous scrap from the usual port of importation to the consumer's works: according to this method, the difference constitutes the amount of the damage.

   Case			1 Tonnage of shipyard scrap purchased (metric tons)	2 Cost of transport from the breaker's yard to the works (New French Francs)
   (1)	29/63	Providence …	11 108	285 652,15
   (2)	31/63	Maubeuge …	174	4 687,42
   (3)	36/63	Saulnes et Gorcy…	3 160	104 095,81
   (4)	39/63	Firminy …	7 172	159 389,32
   (5)	40/63	Pompey …	590	17 950,37
   (6)	41/63	Beautor …	542	9 229,90
   (7)	42/63	Rouen …	6 265	89 554,79
   (8)	43/63	Saint-Jacques …	1 738	56 274,91
   (9)	44/63	Châtillon …	6 857	165 951,22
   (10)	45/63	Porter-France …	770	17 519,45
   (11)	46/63	Union des Consommateurs …	246	7 839,08
   (12)	47/63	Fives-Lille-Cail …	5 075	121 724,06
   (13)	50/63	Usinor …	13 905	355 647,47
   (14)	51/63	Hennebont …	3 146	44 728,85

   Case			Costs of transport from the usual port of importation to the works (New French Francs)	Amount of the damage (New French Francs) Column 2—Column 3
   (1)	29/63	Providence …	85 282,44	200 369,71
   (2)	31/63	Maubeuge …	973,84	3 713,58
   (3)	36/63	Saulnes et Gorcy…	64 023,95	40 071,86
   (4)	39/63	Firminy …	38 158,81	121 230,51
   (5)	40/63	Pompey …	7 121,97	10 828,40
   (6)	41/63	Beautor …	3 509,39	5 720,51
   (7)	42/63	Rouen …	4 948,91	84 605,79
   (8)	43/63	Saint-Jacques …	52 665,73	3 609,18
   (9)	44/63	Châtillon …	31 388,76	134 562,46
   (10)	45/63	Porter-France …	11 699,64	5 819,81
   (11)	46/63	Union des Consommateurs …	2 921,92	4 917,16
   (12)	47/63	Fives-Lille-Cail …	62 222,40	59 519,66
   (13)	50/63	Usinor …	144 214,92	211 432,55
   (14)	51/63	Hennebont …	15 918,53	28 810,32

2. The applicants state that they are in a position to supply all the documents to prove the correctness of the foregoing calculations, that is :

   • The OCCF's promises before each order for shipyard scrap was signed;

   • The documents relating to the signing and handing over of the orders for the tonnages of shipyard scrap, the subject of the application;

   • The settlement of the CPFI, through the Union des Consommateurs de Ferraille of the sums with which the OCCF's commitments were concerned;

   • The applicants' costs for the transport of the tonnages of scrap in dispute from the ship-breakers' yards to the works;

   • The costs which the applicants would have had to bear for the transport of a tonnage of imported ferrous scrap equivalent to the disputed tonnage of shipyard scrap, from the port of importation to the works; in this connexion, each of the applicants designates, as the usual port of importation, the port or ports through which it received the imported ferrous scrap during the period when the equalization scheme functioned, as well as the means of transport (rail and/or waterway) whereby this imported ferrous scrap was sent on to their works.

3. The applicants submit that the foregoing evidence, which will be supplemented to the extent that the Court deems it useful, completely proves, in accordance with the judgment of 15 December 1961 (Fives-Lille-Cail), the existence of the damage and quantifies it precisely.

The defendant replies as follows to the arguments set forth in the applications.

1. The calculation effected by the applicants consists in subtracting the cost price of the imported ferrous scrap (equalization price, plus 2 dollars for transhipment costs, plus the cost of transport from the port to the works) from the cost price of the shipyard scrap (the equalization price, identical with the foregoing, plus 2 dollars, plus the cost of transport from the breaker's yard to the works), which results in claiming as damages the same amount as the ‘transport parity’. The judgment of 15 December 1961 (Fives-Lille-Cail) expressly laid down that it was inadmissible to identify the damage sustained with the amount of the ‘transport parity’ promised or paid (Rec. 1961, p. 592). Consequently the applicants have quite failed to establish that ‘the purchase of shipyard scrap in respect of which no transport parity grant is available would have been … more expensive than simply purchasing imported ferrous scrap’ (Rec. 1961, p. 593) or how much more expensive it would have been.

2. The aforementioned calculations have been prepared on the basis of figures which have not been proved and, although the applicants have declared that they are able to supply proof of them, they have at any rate failed to do so.

3. The defendant then alleges that the lump-sum of 2 dollars, granted to purchasers of imported ferrous scrap for the cost of transhipment from the ship to the wagon or barge, is far removed from a true estimate of the said costs, being merely in the nature of a grant, intended to compensate a part of the transhipment costs. These were at the expense of the purchasers of imported ferrous scrap, save for the deduction of the lump-sum of 2 dollars, since—with the exception of the period when Decision No 34/56 was in force, when the equalization price was calculated ‘free on rail or barge’—the equalization price was always calculated delivered cif port of entry, that is to say, on board ship to the dock at the port of importation.

In other words, in calculating the transhipment costs of imported ferrous scrap, the applicants have shown a uniform amount of 2 dollars, when they ought to have shown the actual transhipment costs, less 2 dollars per metric ton, reimbursable through the equalization scheme.

The defendant supports its argument with some examples drawn from its documents, which are necessarily incomplete, since the Brussels agencies only paid the transhipment costs during the period when Decision No 34/56 (Official Journal, 1956, p. 382) was in force.

Since, in the instances quoted, the costs of unloading the imported ferrous scrap, not reimbursed through equalization, covered the entire amounts of the “transport parity grants” claimed, and even exceeded them, the defendant deduces from this that the same situation must have obtained in the other periods in respect of which it does not have any documents, since, during these periods, the transhipment costs were paid by the consumers of imported ferrous scrap.

The defendant thus considers that it has at all events shown the inaccuracy of the calculations put forward by me applicants.

The applicants reply as follows:

1. With regard to the documentary evidence, they allege that the abundance and diversity of the documents to be collected made it impossible to gather them by the date when the applications were submitted; they declare that the required documents are annexed to their reply.

2. With regard to the methods of taking account of the costs of transhipment at the sea port, they allege that the problem of the “lump sum of 2 dollars” is much more complex than the defendant states. They refrain from broaching the question whether the “lump-sum of 2 dollars” is in the nature of a grant, intended to compensate part of the transhipment costs, or whether it is a realistic estimate of the said costs, or whether it is a realistic estimate of the said costs. They merely observe that if the equalization agencies, when they adopted from the beginning the “lump-sum of 2 dollars” in their negotiations with the undertakings as they did in all their accounting, might legitimately admit that this value represented the approximate average of the actual costs of transhipment, the undertakings, for their part, could thus only conform to a practice not of their making but established by the Community agencies.

3. The applicants find that as a consequence of the defendant's objections the problem is presented to them in an entirely different light. The High Authority considers that, in comparing the prices “free works” of the shipyard scrap in dispute and of the imported ferrous scrap, it is important to insert, instead of the “lump-sum of 2 dollars”, the amount of the actual costs of transhipment. The question of choice of the port of importation is consequently raised. In the method of calculation adopted in the applications, this choice made no difference, since the rate of 2 dollars had been adopted uniformly for all the ports of importation. Under the new method of calculation required as a result of the defendant's objection, the port to be selected, for the comparison to be valid, must be the one most frequently used by each of the applicants.

The schedules to the reply contain all the particulars which the applicants used in order to quantify the damage suffered by them, using the new method. The port of importation taken is the one from which each of the applicants received the greatest tonnage of imported ferrous scrap (Schedules 1 to 22A to the reply).

The amendment of the original calculations, as the result of adopting a single port of importation and substituting the actual amount of the transhipment costs for the “lump sum of 2 dollars” used in the applications, means that the damage sustained by each applicant must be worked out anew. The amount of such damage is given in the conclusions in the reply (see supra, conclusions of the parties, under A).

As a result of the said amendments to the initial calculations, 9 of the 23 original applicants had to admit that the disputed scrap from ship-breakers yards had been, for them, less expensive than imported ferrous scrap. Since they sustained no damage they later discontinued their actions.

The defendant replies that the method chosen by the applicants in their attempt to prove damage is subjective, biased and incomplete. Moreover, the applicants' calculations are invalidated by mistakes and omissions. The defendant says that it could not correct all the calculations of all the applicants so as to prove beyond any doubt that in none of the cases had any damage been suffered since it only has some of the necessary documents.

It states that damage has been proved in none of the cases. It considers that all the applicants obtained their shipyard scrap at ‘free works’ prices equal to or less than the average prices of ferrous scrap which they bought as a general rule.

The defendant first of all puts forward a general argument covering all the cases. It then seemed to it that it was necessary to summarize separately the objections which it raised to the calculations of each individual applicant, since each applicant must individually prove the damage sustained by it.

The causal connexion between the wrongful act or omission and the damage

The applicants allege that since their works were nearer to the ports of importation than to the ship-breakers' yards they normally had to use imported ferrous scrap. They consequently made it a condition of their acceptance of the disputed shipyard scrap that the OCCF should give an undertaking that scrap from such yards, free works, would not cost them more than imported ferrous scrap. Thus before the placing of each order the OCCF promised that the applicants would be compensated for the difference between the costs of transporting the ferrous scrap from the ship-breaker's yard to the works, on the one hand, and from the usual port of importation to the works, on the other hand.

The defendant replies that various considerations, for example the fact that shipyard scrap was always considered to be of better quality than imported ferrous scrap, rendered at the very least doubtful the assertion that the promised ‘transport parity’ payment was the sole reason why the undertakings concerned accepted the contracts for the purchase of shipyard scrap.

The applicants reply that American ferrous scrap, which constitutes three-quarters of the imported ferrous scrap, contains a large proportion of high quality ferrous scrap and that the resort to shipyard scrap was always subject to the assurance that it could be obtained at a price equal to the maximum for imported ferrous scrap.

The defendant replies that the applicants' assertion is made much more questionable by the withdrawal of nine of the twenty three original applicants, and by certain findings with regard to a number of the applicants who have pursued their applications.