61983J0083

ECSC - PRODUCTION - SYSTEM OF STEEL PRODUCTION AND DELIVERY QUOTAS - PRODUCTION IN EXCESS OF QUOTAS - FINE - DIFFERENT VIEW AS TO THE METHOD OF CALCULATING QUOTAS - WHETHER CIRCUMSTANCE AFFORDING A DEFENCE - NO - BREACH OF THE PRINCIPLE OF LEGALITY - NONE

( ECSC TREATY , ART . 58 ; GENERAL COMMISSION DECISION NO 1831/81/ECSC , ARTS 10 AND 12 )

IN CASE 83/83

ESTEL NV , A COMPANY INCORPORATED UNDER NETHERLANDS LAW , HAVING ITS REGISTERED OFFICE IN NIJMEGEN , NETHERLANDS , REPRESENTED BY T . R . OTTERVANGER , A NETHERLANDS ADVOCATE , 66 AVENUE DE CORTENBERG , BRUSSELS , AND BY F . SALOMONSON , ADVOCATE , 139 DE LAIRESSESTRAAT , AMSTERDAM , AS ITS AUTHORIZED AGENTS , WITH AN ADDRESS FOR SERIVE IN LUXEMBOURG AT THE CHAMBERS OF E . A . ARENDT , ADVOCATE , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , R . WAGENBAUR , ACTING AS AGENT , ASSISTED BY P . V . F . BOS , ADVOCATE , AMSTERDAM , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . BESCHEL , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR A DECLARATION THAT THE COMMISSION ' S DECISION DATED 24 MARCH 1983 IMPOSING A FINE UPON THE APPLICANT ( OFFICIAL JOURNAL C 99 , P . 2 ), IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 MAY 1983 , ESTEL NV , ( HEREINAFTER REFERRED TO AS ' ' ESTEL ' ' ), NIJMEGEN , BROUGHT AN ACTION , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 36 AND ARTICLE 33 OF THE ECSC TREATY , FOR A DECLARATION THAT THE COMMISSION ' S DECISION OF 24 MARCH 1983 , IMPOSING UPON IT A FINE OF 2 183 445 ECU , OR HFL 5 482 849 , WAS VOID .

2 THE STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION IS BASED RECITES THAT ESTEL EXCEEDED THE PARTS OF ITS PRODUCTION QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET BY 22 132 TONNES IN THE CASE OF PRODUCTS IN CATEGORY IB AND BY 4 334 TONNES IN THE CASE OF THOSE IN CATEGORY V , AND THAT EACH SUCH EXCESS CONSTITUTES A BREACH OF COMMISSION DECISION NO 1831/81/ECSC OF 24 JUNE 1981 ESTABLISHING FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY A NEW SYSTEM OF PRODUCTION QUOTAS IN RESPECT OF CERTAIN PRODUCTS ( OFFICIAL JOURNAL , L 180 , P . 1 ).

3 IT MUST BE REMEMBERED THAT THAT DECISION INTRODUCED , ON THE BASIS OF ARTICLE 58 OF THE ECSC TREATY , A SYSTEM OF STEEL PRODUCTION QUOTAS FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY . ARTICLE 5 OF THE DECISION PROVIDES THAT THE COMMISSION IS REQUIRED TO FIX EACH QUARTER FOR EACH UNDERTAKINGS ITS PRODUCTION QUOTA AND THE PART OF SUCH QUOTAS WHICH MAY BE DELIVERED IN THE COMMON MARKET ON THE BASIS OF ITS REFERENCE PRODUCTION AND REFERENCE QUANTITIES AND BY APPLICATION OF CERTAIN ABATEMENT RATES TO SUCH PRODUCTION AND QUANTITIES .

4 ARTICLE 11 ( 1 ) OF THE DECISION , AS AMENDED BY ARTICLE 1 ( 6 ) OF COMMISSION DECISION NO 1831/81 OF 3 JULY 1981 ( OFFICIAL JOURNAL , L 184 , P . 1 ), ALLOWS A TOLERANCE OF 3% WHERE A PRODUCTION QUOTA IS EXCEEDED , ' ' IT BEING UNDERSTOOD THAT PRODUCTION OF THESE CATEGORIES AS A WHOLE MAY NOT EXCEED THE SUM OF THE QUOTAS ASSIGNED TO EACH OF THESE CATEGORIES OF PRODUCTS ' ' .

5 THE FIRST PARAGRAPH OF ARTICLE 12 OF THE SAME DECISION PROVIDES THAT A FINE IS TO BE IMPOSED UPON UNDERTAKINGS EXCEEDING THEIR PRODUCTION QUOTAS OR THE PART OF SUCH QUOTAS WHICH MAY BE DELIVERED ON THE COMMON MARKET , AMOUNTING , GENERALLY , TO 75 ECU FOR EACH TONNE IN EXCESS ; THE SECOND PARAGRAPH PROVIDES THAT : ' ' IF AN UNDERTAKING ' S PRODUCTION EXCEEDS ITS QUOTA BY 10% OR MORE , OR IF THE UNDERTAKING HAS ALREADY EXCEEDED ITS QUOTA OR QUOTAS DURING ONE OF THE PREVIOUS QUARTERS , THE FINE MAY BE UP TO DOUBLE THAT AMOUNT PER TONNE . THE SAME RULES SHALL APPLY TO ANY EXCESS OVER THE QUANTITIES WHICH MAY BE DELIVERED ON THE COMMON MARKET . ' '

6 IN PURSUANCE OF DECISION NO 1831/81 , THE COMMISSION NOTIFIED ESTEL , BY LETTER OF 10 NOVEMBER 1981 , OF ITS PRODUCTION QUOTAS AND THE PART OF SUCH QUOTAS WHICH MIGHT BE DELIVERED ON THE COMMON MARKET FOR THE FOURTH QUARTER OF 1981 . IN A LETTER DATED 26 JANUARY 1982 , ESTEL MADE A REQUEST TO THE COMMISSION , UNDER ARTICLE 10 OF DECISION NO 1831/81 , FOR AN ADJUSTMENT TO THE QUOTA FIXED FOR THOSE OF ITS PRODUCTS IN CATEGORY IA WHICH WERE INTENDED FOR THE PRODUCTION IN THE COMMUNITY OF WELDED TUBES WITH A DIAMETER NOT EXCEEDING 406.4 MM , SO AS TO INCREASE IT BY 96 643 TONNES . HOWEVER , THE COMMISSION , IN ITS LETTER OF 8 MARCH 1982 , GRANTED ESTEL ONLY AN INCREASE OF 84 343 TONNES , THAT IS TO SAY 12 300 TONNES LESS THAN THE AMOUNT REQUESTED ; ESTEL DID NOT BRING LEGAL PROCEEDINGS TO CHALLENGE THAT DECISION .

7 BY LETTER DATED 6 OCTOBER 1982 , THE COMMISSION FIXED ESTEL ' S FINAL QUOTAS FOR THE FOURTH QUARTER OF 1981 , HAVING REGARD IN PARTICULAR TO THE ADJUSTMENT GRANTED BY LETTER OF 8 MARCH 1982 ; IN THE SAME LETTER , THE COMMISSION NOTIFIED ESTEL THAT IT HAD EXCEEDED ITS QUOTAS FOR THE FOURTH QUARTER OF 1981 AND THAT IT WAS THEREFORE LIABLE TO A FINE .

8 ON 24 MARCH 1983 , THE COMMISSION TOOK THE CONTESTED DECISION , FINDING THAT THE QUOTAS HAD BEEN EXCEEDED BY A FINAL AMOUNT OF 26 466 TONNES , THAT IS TO SAY BY 22 132 TONNES IN THE CASE OF PRODUCTS IN CATEGORY IB AND 4 334 TONNES IN THE CASE OF PRODUCTS IN CATEGORY V , AND IMPOSING UPON ESTEL A FINE OF 2 183 445 ECU BY VIRTUE OF ARTICLE 12 OF DECISION NO 1831/81 .

9 THE DECISION REFERRED TO THE FACT THAT ESTEL HAD ALREADY EXCEEDED ITS PRODUCTION AND DELIVERY QUOTAS DURING THE PREVIOUS QUARTER , AND INCREASED THE AMOUNT OF THE FINE FOR THE FOURTH QUARTER BY 10% IN RELATION TO THE NORMAL FINE OF 75 ECU , THEREBY RAISING IT TO 82.5 ECU PER TONNE .

10 IN THESE PROCEEDINGS , ESTEL IS CLAIMING PRINCIPALLY THAT THE CONTESTED DECISION FIXING THE FINE SHOULD BE DECLARED VOID IN WHOLE OR IN PART , AND , IN THE ALTERNATIVE , THAT THE FINE SHOULD BE REDUCED TO NIL OR TO SUCH AMOUNT AS THE COURT MAY THINK FIT . FOR THAT PURPOSE , ESTEL RELIES UPON SEVERAL SUBMISSIONS , ALLEGING AN INSUFFICIENT STATEMENT OF REASONS , IN THE ALTERNATIVE A BREACH OF THE PRINCIPLE OF LEGALITY , AND IN THE FURTHER ALTERNATIVE A BREACH OF THE PRINCIPLE NULLA POENA SINE CULPA AS WELL AS THE PRESENCE OF EXCEPTIONAL CIRCUMSTANCES .

11 ESTEL DOES NOT DISPUTE AN EXCESS OF 21 007 TONNES OUT OF THE EXCESS AMOUNT OF 26 466 TONNES ALLEGED AGAINST IT , ITSELF A NET QUANTITY PRODUCED BY SETTING OFF THE EXCESS AMOUNTS REGISTERED IN ALL CATEGORIES OF PRODUCTS TAKEN TOGETHER AGAINST THE UNUSED PORTION OF 5 056 TONNES IN CATEGORY IA IN CONSEQUENCE , THE ACTION RELATES ONLY TO THE IMPOSITION OF THE FINE FOR A PART OF AN EXCESS AMOUNTING TO 5 459 TONNES AND TO THE CORRESPONDING PART OF THE FINE .

ADMISSIBILITY

12 IN ITS DEFENCE THE COMMISSION RAISES , IN THE FIRST PLACE , AN OBJECTION OF INADMISSIBILITY . IT SUBMITS IN THAT CONNECTION THAT THE ACTION IS REALLY CONCERNED WITH THE LEGALITY OF THE COMMISSION ' S DECISION OF 8 MARCH 1982 ADJUSTING THE QUOTA INITIALLY ALLOTTED TO ESTEL FOR PRODUCTS IN CATEGORY IA . SINCE IT FAILED TO INSTITUTE PROCEEDINGS AGAINST THAT DECISION IN DUE TIME , ESTEL , IT CLAIMS , IS NO LONGER ABLE TO CHALLENGE THE QUOTA ADJUSTMENT MADE BY THE COMMISSION IN THE CONTEXT OF THIS DISPUTE .

13 IN THIS CONNECTION IT SHOULD BE POINTED OUT THAT ALTHOUGH IT IS TRUE THAT ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT , AN APPLICANT MAY NOT , IN PROCEEDINGS FOR A DECLARATION THAT AN INDIVIDUAL DECISION IS VOID , INVOKE THE ILLEGALITY OF ANOTHER INDIVIDUAL DECISION ADDRESSED TO HIM WHICH HAS BECOME DEFINITIVE , IN THIS CASE THE APPLICATION DOES NOT RELATE TO THE LEGALITY OF THE QUOTA ADJUSTMENT OR TO THE METHOD OF CALCULATION ADOPTED FOR THAT PURPOSE BY THE COMMISSION BUT SOLELY TO THE LEGALITY OF THE FINE IMPOSED UPON THE APPLICANT AND TO THE AMOUNT THEREOF , AS INDEED ESTEL HAS EXPRESSLY STATED .

14 THE OBJECTION OF INADMISSIBILITY MUST THEREFORE BE REJECTED .

SUBSTANCE

15 AS TO SUBSTANCE , ESTEL INVOKES IN THE FIRST PLACE , IN SUPPORT OF ITS ACTION FOR A DECLARATION OF NULLITY , ITS SUBMISSION THAT THE STATEMENT OF REASONS RELATING TO AN INFRINGEMENT OF ARTICLE 15 OF THE ECSC TREATY IS INSUFFICIENT . IN VIEW OF THE FACT THAT THE OTHER SUBMISSIONS IN THE CASE HAVE A DIRECT BEARING ON THE SUBSTANCE OF THAT SUBMISSION , IT WOULD BE APPROPRIATE TO RETURN TO IT AFTER THE OTHERS HAVE BEEN EXAMINED .

BREACH OF THE PRINCIPLE OF LEGALITY ( NULLA POENA SINE LEGE )

16 IN THAT SUBMISSION , ESTEL ARGUES THAT THE COMMISSION COMMITTED A BREACH OF THE PRINCIPLE OF LEGALITY BY BASING ITS CONTESTED DECISION EXCLUSIVELY UPON A METHOD OF APPLYING ARTICLE 10 OF DECISION NO 1831/81 WHICH IT DID NOT NOTIFY TO ESTEL UNTIL AFTER THE FOURTH QUARTER OF 1981 , AND WHICH DECISIVELY AFFECTS THE MEANING OF THE CONCEPT ' ' QUOTA ' ' , AS PROVIDED IN ARTICLE 12 OF THE ABOVE-MENTIONED DECISION .

17 IN THE FIRST PLACE IT SHOULD BE REMEMBERED THAT AS IS STATED IN ARTICLE 10 OF DECISION NO 1831/81 , THE COMMISSION IS ENTITLED TO ADJUST A QUOTA ON THE UNDERTAKING ' S REQUEST ACCOMPANIED BY PROOF THAT THE PRODUCTS CONCERNED IN CATEGORY I A ARE USED IN THE FORM OF HOT-ROLLED PRODUCTS FOR THE PRODUCTION IN THE COMMUNITY OF WELDED TUBES OF A DIAMETER NOT EXCEEDING 406.4 MM .

18 IT IS COMMON GROUND THAT ESTEL DID NOT EXCEED ITS DELIVERY QUOTA FOR PRODUCTS IN CATEGORY IA AND THAT THERE EVEN REMAINED AN UNUSED QUANTITY OF 5 056 TONNES IN THAT CATEGORY .

19 HOWEVER , ESTEL CLAIMS THAT IF THE COMMISSION HAD ADJUSTED ITS DELIVERY QUOTA FOR PRODUCTS IN CATEGORY IA UNDER ARTICLE 10 OF DECISION NO 1831/81 , FOLLOWING ESTEL ' S METHOD OF CALCULATION , BY 12 300 TONNES MORE , THEREBY INCREASING IT TO 96 643 TONNES ( INSTEAD OF 84 343 TONNES ), THE UNUSED QUANTITY IN THAT CATEGORY WOULD HAVE AMOUNTED TO 17 356 TONNES ( INSTEAD OF 5 056 TONNES ). THIS WOULD HAVE PRODUCED , BY WAY OF A SET-OFF IN ACCORDANCE WITH ARTICLE 11 OF THE ABOVE-MENTIONED DECISION , AN EXCESS OF 16 673 TONNES ( INSTEAD OF 22 132 TONNES ) FOR PRODUCTS IN CATEGORY IB . CONSEQUENTLY , THE TOTAL EXCESS WOULD HAVE AMOUNTED TO 21 007 TONNES ( 16 673 TONNES IN CATEGORY IB AND 4 334 TONNES IN CATEGORY V ) INSTEAD OF 26 446 TONNES , THUS REDUCING IT BY 5 459 TONNES .

20 ESTEL CLAIMS THAT FAILING A TIMELY NOTIFICATION BY THE COMMISSION OF ITS INTERPRETATION OF ARTICLE 10 , IT BELIEVED , AND WAS ABLE HONESTLY TO BELIEVE AT THE BEGINNING OF THE FOURTH QUARTER OF 1981 , THAT THE COMMISSION WOULD APPLY THE SAME METHOD AS ITSELF , PARTICULARLY IN VIEW OF THE FACT THAT THAT METHOD WAS REASONABLE AND TENABLE .

21 THE COMMISSION DID NOT FINALLY TAKE A VIEW AS TO THE METHOD TO BE APPLIED , IT IS CLAIMED , UNTIL MID-NOVEMBER 1981 , AND IT DID NOT NOTIFY ESTEL OF IT DEFINITIVELY UNTIL ITS LETTER OF 3 FEBRUARY 1982 .

22 SINCE THE METHOD FOR ADJUSTING THE QUOTA UNDER ARTICLE 10 REMAINED UNDETERMINED IN THE FOURTH QUARTER OF 1981 , ESTEL WAS UNABLE TO FORESEE THAT THE DELIVERY OF A QUANTITY OF PRODUCTS FOR RE-ROLLING MIGHT PRODUCE AN EXCESS OVER ITS DELIVERY QUOTA FOR WHICH IT MIGHT THEREFORE BE PENALIZED .

23 THE COMMISSION DENIES THAT ESTEL , IN SPITE OF THE COMMISSION ' S EXCHANGES OF VIEWS IN CORRESPONDENCE AND IN CONVERSATIONS WITH EUROFER - THE EUROPEAN CONFEDERATION OF IRON AND STEEL INDUSTRIES , OF WHICH ESTEL IS A MEMBER - AND WITH ESTEL ITSELF , DID NOT KNOW THE METHOD OF CALCULATION FOR THE ADJUSTMENT AT THE BEGINNING OF THE FOURTH QUARTER OF 1981 . INDEED , IN A LETTER DATED 29 SEPTEMBER 1981 , EUROFER CONFIRMED THAT ITS MEMBERS WOULD HAVE NO DIFFICULTY AS TO THE BASIS OF CALCULATION FOR THE ADJUSTMENT PROVIDED FOR IN ARTICLE 10 ; AND THE COMMISSION CLEARLY DEFINED ITS POSITION IN A LETTER DATED 10 NOVEMBER 1981 WHICH WAS SENT TO EUROFER AND , FINALLY , BY TELEX MESSAGE TO ESTEL ON 1 DECEMBER 1981 .

24 IN ANY EVENT , ESTEL COULD AND SHOULD HAVE KNOWN , THE COMMISSION CLAIMS , THAT THE METHOD OF CALCULATION FOR THE ADJUSTMENT HAD TO BE THE SAME AS THAT FOR THE INITIAL QUOTA ; AT THE LEAST , ESTEL KNEW THAT THE REFERENCE PRODUCTION AND DELIVERIES AS WELL AS THE PRODUCTION AND DELIVERY QUOTAS INITIALLY FIXED WERE DETERMINED ON A FLAT-RATE BASIS AND THAT THEY BORE NO RELATION TO ANY GIVEN CUSTOMERS , THAT IS TO SAY , THEY WERE NOT ' ' KUNDENORIENTIERT ' ' .

25 IN CONSEQUENCE , ESTEL ' S METHOD WAS NEITHER OBVIOUS NOR REASONABLE , SINCE THE INITIAL QUOTA HAD ALREADY INCLUDED AN AMOUNT FIXED FOR PRODUCTS FOR RE-ROLLING ; THEREFORE IF ESTEL HAD BEEN GIVEN ITS REQUESTED ADJUSTMENT OF 12 300 TONNES , IT WOULD HAVE OBTAINED THAT QUANTITY TWICE OVER . MOREOVER , ESTEL WAS MISTAKEN IN THINKING THAT DELIVERIES OF PRODUCTS FOR RE-ROLLING COULD GIVE RISE TO A SET-OFF UNDER ARTICLE 11 OF THE DECISION .

26 THE COMMISSION ALSO MAINTAINS THAT ESTEL IS TOO LARGE AN UNDERTAKING TO HAVE BEEN ABLE TO BE UNAWARE OF THE BASIC PRINCIPLES GOVERNING THE METHOD OF CALCULATION BOTH FOR THE QUOTAS AND FOR THEIR ADJUSTMENT . IF IT HAD IN FACT BEEN UNAWARE , ESTEL WOULD HAVE BEEN THE ONLY UNDERTAKING WHICH DID NOT GRASP THE CORRECT METHOD OF CALCULATION OF THE ADJUSTMENT IN DUE TIME .

27 IN THE ALTERNATIVE , THE COMMISSION SUBMITS THAT ESTEL IN FACT KNOWINGLY ASSUMED THE RISK OF A POSSIBLE EXCESS IN PRODUCTION , SINCE IT COULD HAVE REQUESTED THE COMMISSION FOR THE CORRECT INTERPRETATION OF ARTICLE 10 , AS OTHER UNDERTAKINGS DID .

28 THE COMMISSION CONCLUDES THAT THE FINE IMPOSED IN RESPECT OF THE EXCESS OF 5 459 TONNES IS NOT INCOMPATIBLE WITH THE PRINCIPLE OF LEGALITY AND THAT THE SUBMISSION WHICH RELATES TO IT IS THEREFORE UNFOUNDED .

29 THE COURT FINDS THAT THE QUESTION WHICH IS RAISED BY THIS CASE IS WHETHER THE IMPOSITION OF A FINE UPON ESTEL IS COMPATIBLE WITH THE PRINCIPLE OF LEGALITY , WHERE ESTEL WAS ABLE HONESTLY TO RELY ON A METHOD OF CALCULATION OTHER THAN THAT RECOMMENDED BY THE COMMISSION FOR THE ADJUSTMENT OF ITS QUOTA FOR THE FOURTH QUARTER OF 1981 , OR AT LEAST WHERE THERE WERE UNCERTAINTIES AS TO THE METHOD TO BE APPLIED .

30 WITH REFERENCE TO THE QUESTION WHETHER THE COMMISSION CORRECTLY APPLIED ARTICLE 10 OF DECISION NO 1831/81 , IT SHOULD BE OBSERVED THAT ESTEL DID NOT BRING PROCEEDINGS BEFORE THE COURT TO CHALLENGE THE VALIDITY OF THE COMMISSION ' S DECISION ADJUSTING ITS QUOTAS , AND THAT IT ACCEPTED THE COMMISSION ' S VIEW ON THAT POINT IN FEBRUARY 1982 .

31 AS REGARDS THE THIRD QUARTER OF 1981 , THE COURT HAS DECLARED IN ITS JUDGMENT OF 29 FEBRUARY 1984 IN CASE 270/84 ESTEL ( 1984 ) ECR 1195 , THAT THE COMMISSION SHOULD ITSELF HAVE INFORMED THE UNDERTAKINGS CONCERNED OF THE METHOD OF CALCULATION WHICH IT INTENDED TO APPLY , AND SHOULD HAVE DONE SO AT THE BEGINNING OF THE QUARTER . FURTHERMORE , THE COURT HAS FOUND THAT THE COMMISSION , SINCE IT DID NOT DO SO , CONTRIBUTED TO THE GENERAL UNCERTAINTY OVER THE CORRECT METHOD OF CALCULATION , AND CONSEQUENTLY IT REDUCED THE FINE IMPOSED UPON ESTEL .

32 HOWEVER , ALTHOUGH ESTEL MAY INDEED HAVE BEEN IN DOUBT DURING THE THIRD QUARTER OF 1981 REGARDING THE METHOD TO BE APPLIED IN CALCULATING THE ADJUSTMENT , IT NEVERTHELESS ACTUALLY KNEW , AT THE LATEST IN MID-NOVEMBER 1981 , THAT THE COMMISSION WOULD APPLY A METHOD DIFFERENT FROM ITS OWN .

33 THE FILE ON THE CASE SHOWS THAT SEVERAL EXCHANGES OF VIEW TOOK PLACE BETWEEN ESTEL AND EUROFER , ON THE ONE HAND , AND THE COMMISSION ON THE OTHER , RELATING TO THE CALCULATION OF THE QUOTA ADJUSTMENTS , AND THAT THE COMMISSION LET IT BE KNOWN IN DUE TIME WHAT IT CONSIDERED TO BE THE CORRECT METHOD OF CALCULATION .

34 EVEN IS IT WAS NOT POSSIBLE TO INFER AS MUCH FROM EUROFER ' S LETTER OF 29 SEPTEMBER 1981 ADDRESSED TO THE COMMISSION , IT IS NEVERTHELESS CLEAR FROM THE COMMISSION ' S LETTER OF 10 NOVEMBER 1981 ADDRESSED TO EUROFER THAT ESTEL MUST HAVE KNOWN THE METHOD WHICH THE COMMISSION DEEMED TO BE CORRECT . THE COMMISSION HAS REFERRED TO ITS VARIOUS EXCHANGES OF VIEW WITH ESTEL IN ITS TELEX MESSAGE OF 1 DECEMBER 1981 ADDRESSED TO ESTEL .

35 FURTHERMORE , EVEN IF ESTEL HAD NOT PROPERLY UNDERSTOOD THE COMMISSION ' S METHOD OF CALCULATION , IT KNEW AT LEAST THAT THE COMMISSION WOULD FOLLOW A DIFFERENT METHOD FROM THAT WHICH IT HAD ADOPTED ITSELF , AND IT COULD THEREFORE HAVE ASKED THE COMMISSION TO SUPPLY IT WITH DETAILS . IN ANY EVENT , ESTEL SHOULD NOT , IN THE EVENT OF ITS VIEWS DIFFERING FROM THOSE OF THE COMMISSION , HAVE SUBMITTED ITS OWN INTERPRETATION FOR THE COMMISSION ' S OPINION .

36 IT FOLLOWS THAT ESTEL KNOWINGLY ASSUMED THE RISK THAT IT MIGHT EXCEED ITS QUOTAS FOR THE FOURTH QUARTER OF 1981 . CONSEQUENTLY , IT CAN NO LONGER RELY ON EITHER ITS ALLEGED GOOD FAITH OR A POSSIBLE UNCERTAINTY ON THAT POINT .

37 THE SUBMISSION ALLEGING A BREACH OF THE PRINCIPLE OF LEGALITY MUST THEREFORE BE REJECTED .

BREACH OF THE PRINCIPLE NULLA POENA SINE CULPA

38 IN THE ALTERNATIVE , ESTEL SUBMITS THAT IN THE COURSE OF THE FOURTH QUARTER , IT COULD AND DID TAKE THE VIEW THAT IT WAS ENTITLED TO APPLY ITS OWN METHOD OF CALCULATING THE QUOTA ADJUSTMENT . SINCE IT HAD NEITHER DOUBTS NOR CAUSE FOR DOUBTS AS TO THE CORRECTNESS OF THAT METHOD , IT CONSEQUENTLY MADE AN EXCUSABLE MISTAKE , FOR WHICH IT CANNOT BE BLAMED , AS REGARDS THE CORRECT METHOD OF CALCULATION .

39 ACCORDING TO ESTEL , IT FOLLOWS FROM THE PRINCIPLE NULLA POENA SINE CULPA , A PRINCIPLE WHICH IS SAID TO FORM PART OF THE COMMUNITY LEGAL ORDER AS IS SHOWN BY THE REPORT BY PROFESSOR TIEDEMANN ANNEXED TO THE APPLICATION , THAT NO FAULT CAN BE IMPUTED TO IT FOR THOSE CASES IN WHICH THE QUOTAS WERE EXCEEDED , AND THAT THEREFORE NO FINE CAN BE IMPOSED UPON IT IN THIS CASE .

40 AGAINST THAT , THE COMMISSION ARGUES THAT A SYSTEM OF FINES MUST OF NECESSITY BE AUTOMATIC . IT FOLLOWS THAT IT LITTLE MATTERS WHETHER OR NOT ESTEL IS AT FAULT OR WHETHER IT HAS MADE AN EXCUSABLE MISTAKE .

41 AS THE COURT HAS ALREADY STATED WITH REFERENCE TO THE MAIN HEAD OF ESTEL ' S SECOND SUBMISSION , ESTEL , IN THE LIGHT OF THE FACTS RECITED ABOVE , DID IN FACT KNOWINGLY ASSUME THE RISK OF A POSSIBLE MISTAKE . THAT MISTAKE IS NOT EXCUSABLE , BECAUSE THE APPLICANT SHOULD NOT HAVE SUBSTITUTED ITS OWN INTERPRETATION FOR THE COMMISSION ' S OPINION .

42 IT ALSO FOLLOWS FROM THE FACTS THAT ESTEL COULD HAVE AVOIDED EXCEEDING ITS QUOTAS AND BEING FINED IN CONSEQUENCE , SINCE IT WAS STILL IN A POSITION TO ADAPT ITS PRODUCTION PROGRAMME EVEN ON THE SUPPOSITION THAT IT BECAME COGNIZANT OF THE COMMISSION ' S POSITION ONLY AS A RESULT OF THE LATTER ' S LETTER TO EUROFER DATED 10 NOVEMBER 1981 .

43 CONSEQUENTLY , IT MUST BE DECLARED THAT ANY MISTAKE MADE BY ESTEL REGARDING THE METHOD FOR THE ADJUSTMENT OF ITS QUOTAS IN ACCORDANCE WITH ARTICLE 10 OF DECISION NO 1831/81 WAS NOT EXCUSABLE , AND THAT THE COMMISSION HAS NOT COMMITTED A BREACH OF THE PRINCIPLE INVOKED .

44 THE SUBMISSION TO THAT EFFECT MUST THEREFORE ALSO BE REJECTED .

REDUCTION OF THE FINE

45 ESTEL ARGUES IN THIS CONNECTION THAT EXCEPTIONAL CIRCUMSTANCES , WHICH ARE PECULIAR TO THIS CASE , JUSTIFY THE REDUCTION OF THE FINE TO SUCH AMOUNT AS THE COURT MAY THINK FIT .

46 IT MAINTAINS IN PARTICULAR THAT THE COMMISSION IS REQUIRED TO TAKE INTO ACCOUNT EXTENUATING CIRCUMSTANCES , THE SERIOUSNESS OF THE INFRINGEMENT COMMITTED AND ESTEL ' S SHARE OF RESPONSIBILITY , NOT ONLY IN THE LIGHT OF THE SECOND PARAGRAPH OF ARTICLE 12 OF DECISION NO 1831/81 , BUT ALSO IN THE LIGHT OF THE FIRST PARAGRAPH OF THAT ARTICLE , AND THAT IT SHOULD HAVE ACTED ACCORDINGLY IN THIS CASE .

47 FOR ITS PART , THE COMMISSION TAKES THE VIEW THAT THAT SUBMISSION IS ALSO UNFOUNDED , SINCE THE FIRST PARAGRAPH OF ARTICLE 12 OF DECISION NO 1831/81 DOES NOT GIVE IT A MARGIN OF DISCRETION , AS TO THE FINE TO BE IMPOSED , WHICH WOULD ALLOW IT TO TAKE SUBJECTIVE FACTORS INTO ACCOUNT , SUCH AS THE DEGREE OF FAULT , CERTAIN EXCEPTIONAL CIRCUMSTANCES , OR THE SERIOUSNESS OF THE INFRINGEMENT .

48 WITH REGARD TO THE ALLEGEDLY AUTOMATIC NATURE OF THE FINE , THE COURT REFERS TO ITS ESTABLISHED CASE-LAW , ACCORDING TO WHICH THE COMMISSION IS ENTITLED AND EVEN , IN EXCEPTIONAL CASES , UNDER A DUTY TO VARY THE AMOUNT OF FINES ACCORDING TO THE CIRCUMSTANCES AND THE SERIOUSNESS OF THE INFRINGEMENT .

49 HOWEVER , IN THIS INSTANCE , THE APPLICANT HAS NOT GIVEN EVIDENCE SUFFICIENT IN LAW TO DEMONSTRATE THE EXISTENCE OF EXCEPTIONAL CIRCUMSTANCES JUSTIFYING A REDUCTION OF THE FINE . ON THE CONTRARY , AS THE COURT HAS NOTED IN ITS EXAMINATION OF THE PREVIOUS SUBMISSIONS , ESTEL CANNOT , AS REGARDS THE FOURTH QUARTER , RELY ON EITHER ITS ALLEGED GOOD FAITH AS TO THE PROPER METHOD OF CALCULATING THE QUOTA ADJUSTMENT , OR DOUBTS OR UNCERTAINTIES AS TO THE COMMISSION ' S POSITION .

50 THAT SUBMISSION MUST THEREFORE ALSO BE REJECTED .

INSUFFICIENT STATEMENT OF REASONS

51 IN SUPPORT OF ITS APPLICATION FOR A DECLARATION OF NULLITY , ESTEL ALLEGES THAT THE COMMISSION INFRINGED ARTICLE 15 OF THE ECSC TREATY BY FAILING TO PROVIDE A SUFFICIENT STATEMENT OF THE REASONS ON WHICH THE CONTESTED DECISION AND THE AMOUNT OF THE FINE WERE BASED .

52 IT FOLLOWS FROM THE RECITALS IN THE PREAMBLE AND TEXT OF THE CONTESTED DECISION THAT THE COMMISSION SATISFIED THE REQUIREMENTS OF A STATEMENT OF REASONS AS FAR AS THE MATERIAL POINTS OF THE CONTESTED DECISION ARE CONCERNED . BEYOND THAT , AS THE COURT HAS REPEATEDLY POINTED OUT , IT IS NOT OBLIGED TO DISCUSS , IN THE STATEMENT OF THE REASONS ON WHICH ITS DECISIONS ARE BASED , ALL THE OBJECTION WHICH MIGHT BE ADVANCED AGAINST THE VIEW WHICH IT HAS TAKEN .

53 SINCE THE COMMISSION HAS THEREFORE GIVEN ALL THE INDICATIONS WHICH ARE NECESSARY SO THAT ESTEL MAY ASCERTAIN ITS RIGHTS AND THE COURT MAY EXERCISE ITS POWER OF REVIEW , THAT SUBMISSION ALSO IS UNFOUNDED .

COSTS

54 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .

55 SINCE ESTEL HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .