61983O0078

ECSC - FINES - CALCULATION - CRITERIA - MODIFICATION IN THE LIGHT OF CIRCUMSTANCES - PERMISSIBILITY

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - SUSPENSION OF OPERATION OF A DECISION IMPOSING A FINE UNDER THE ECSC TREATY - POWERS OF THE COURT WHEN CONSIDERING THE ADOPTION OF INTERIM MEASURES

( ECSC TREATY , ART . 39 )

IN THE CONTEXT OF ITS GENERAL POLICY REGARDING FINES UNDER THE ECSC TREATY THE COMMISSION IS NOT ACTING UNLAWFULLY IN MODIFYING THAT POLICY , IN PARTICULAR WITH REGARD TO THE RECOVERY OF FINES , IN THE LIGHT OF THE CIRCUMSTANCES WHICH LEAD IT TO TAKE ACTION .

THE APPROACH WHICH IT IS THUS PERSUADED TO ADOPT CANNOT , HOWEVER , PREVENT THE COURT FROM EXERCISING THE JURISDICTION RESERVED TO IT BY ARTICLE 39 OF THE ECSC TREATY TO ORDER THE APPLICATION OF A DECISION TO BE SUSPENDED IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE AND TO ATTACH TO ANY SUSPENSION ANY APPROPRIATE CONDITIONS , REGARD BEING HAD TO THE SPECIAL FEATURES OF EACH CASE BROUGHT BEFORE IT .

IN CASE 78/83 R

UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ' ' USINOR ' ' , A PUBLIC COMPANY WITH LIMITED LIABILITY , WHOSE REGISTERED OFFICE IS AT LA DEFENSE , 9-4 PLACE DE LA PYRAMIDE , PUTEAUX ( HAUTS-DE-SEINE ), REPRESENTED BY L . FUNCK-BRENTANO OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . NEUEN-KAUFFMAN , ADVOCATE , 21 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1049 BRUSSELS , REPRESENTED BY F . BENYON , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION TO SUSPEND THE OPERATION OF COMMISSION DECISION C ( 83 ) 376/5 OF 24 MARCH 1983 CONCERNING A FINE IMPOSED ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY ,

1 ACCORDING TO ARTICLE 39 OF THE ECSC TREATY ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED AND PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURE .

2 THE APPLICANT CLAIMS THAT THE COURT SHOULD MAKE AN ORDER TO SUSPEND THE OPERATION OF THE COMMISSION ' S DECISION OF 24 MARCH 1983 IMPOSING ON IT A FINE OF 6 312 231 ( SIX MILLION THREE HUNDRED AND TWELVE THOUSAND TWO HUNDRED AND THIRTY-ONE ) EUROPEAN CURRENCY UNITS OR 42 388 525 ( FORTY-TWO MILLION THREE HUNDRED AND EIGHTY-EIGHT THOUSAND FIVE HUNDRED AND TWENTY-FIVE ) FRENCH FRANCS FOR EXCEEDING THE PRODUCTION OR DELIVERY QUOTAS ALLOCATED TO IT FOR THE FOURTH QUARTER OF 1981 IN RESPECT OF VARIOUS STEEL PRODUCTS , UNTIL THE COURT HAS GIVEN JUDGMENT IN THE MAIN ACTION . IT HAS DECLARED ITSELF PREPARED TO PROVIDE A BANK GUARANTEE FOR THE PAYMENT OF THE FINES WHICH HAVE BEEN IMPOSED TOGETHER WITH ANY DEFAULT INTEREST CALCULATED AT 1% ABOVE THE DISCOUNT RATE FIXED BY THE BANQUE DE FRANCE .

3 THE COMMISSION IS OPPOSED TO THAT REQUEST INASMUCH AS IT IS PREPARED TO CONSENT ONLY TO A SUSPENSION OF THE APPLICATION OF THE DECISION IN DISPUTE IN THE MAIN PROCEEDINGS IN RESPECT OF 30% OF THE AMOUNT OF THE FINE IMPOSED , TOGETHER WITH ANY SURCHARGE , AND SUBJECT TO PRODUCTION OF A BANK GUARANTEE .

4 THE COMMISSION POINTS OUT THAT ALTHOUGH IT HAS DEPARTED FROM ITS PREVIOUS ATTITUDE , WHICH WAS TO ACCEPT , AS A RULE , A SUSPENSION OF THE IMMEDIATE OPERATION OF A DECISION IMPOSING A FINE FOR EXCEEDING QUOTAS IN THE EVENT OF COURT PROCEEDINGS , SUBJECT TO THE PROVISION OF A BOND , THE REASON FOR THAT DEPARTURE WAS THAT IT CONSIDERED THAT IN CASES IN WHICH THE SAME UNDERTAKING HAD ALREADY BEEN FINED ONCE IT WAS APPROPRIATE NOT ONLY TO INCREASE THE FINES AS PROVIDED IN ARTICLE 12 OF GENERAL DECISION 1831/81/ECSC OF 24 JUNE 1981 , BUT ALSO TO ASSERT ITSELF MORE STRICTLY AS REGARDS THE SUSPENSION OF THE OPERATION THEREOF PENDING THE JUDGMENT OF THE COURT ON APPLICATIONS AGAINST DECISIONS IMPOSING FINES AFTER PENALTIES HAD ALREADY BEEN IMPOSED IN RESPECT OF AN EARLIER INFRINGEMENT . IT ADDS THAT IT EMBARKED ON THAT NEW POLICY IN THE LIGHT OF THE CONSTANT DETERIORATION OF THE POSITION ON THE STEEL MARKET .

5 THE APPLICANT CLAIMS THAT THE COMMISSION IS ACTING ILLEGALLY BY THUS MODIFYING , WITHOUT GIVING ADVANCE WARNING TO THE UNDERTAKINGS CONCERNED , A PRACTICE WHICH IT HAD ITSELF ESTABLISHED . IN PARTICULAR IT DENIES THAT THE EXCESSES OF WHICH IT IS ACCUSED IN RESPECT OF THE FOURTH QUARTER OF 1981 , EVEN IF PROVED , CONSTITUTE A SECOND INFRINGEMENT ON ITS PART . IN THAT CONNECTION IT ASSERTS THAT ALTHOUGH FINES WERE IMPOSED ON IT BY AN EARLIER DECISION , NAMELY THAT OF 13 AUGUST 1983 IMPOSING ON IT A FINE OF 641 700 ( SIX HUNDRED AND FORTY-ONE THOUSAND SEVEN HUNDRED ) EUROPEAN CURRENCY UNITS OR 4 215 404 ( FOUR MILLION TWO HUNDRED AND FIFTEEN THOUSAND FOUR HUNDRED AND FOUR ) FRENCH FRANCS FOR EXCEEDING BY 8 556 TONNES THE PRODUCTION QUOTA FOR THE THIRD QUARTER OF 1981 , IT HAS BROUGHT BEFORE THE COURT AN ACTION AGAINST THAT DECISION ON WHICH JUDGMENT HAS NOT YET BEEN DELIVERED . ACCORDING TO THE APPLICANT , AS LONG AS THE COURT HAS NOT UPHELD THE FINE IN WHOLE OR IN PART , IT CANNOT BE SAID THAT THE APPLICANT HAS COMMITTED A PREVIOUS INFRINGEMENT .

6 IN THE CONTEXT OF ITS GENERAL POLICY REGARDING FINES THE COMMISSION IS NOT ACTING UNLAWFULLY IN MODIFYING THAT POLICY , IN PARTICULAR WITH REGARD TO THE RECOVERY OF FINES , IN THE LIGHT OF THE CIRCUMSTANCES WHICH LEAD IT TO TAKE ACTION .

7 THE APPROACH WHICH IT HAS THEREFORE FELT IT RIGHT TO ADOPT CANNOT , HOWEVER , PREVENT THE COURT FROM EXERCISING THE JURISDICTION RESERVED TO IT BY ARTICLE 39 TO ORDER THE APPLICATION OF A DECISION TO BE SUSPENDED IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE AND TO ATTACH TO ANY SUSPENSION ANY APPROPRIATE CONDITIONS , REGARD BEING HAD TO THE SPECIAL FEATURES OF EACH CASE BROUGHT BEFORE IT .

8 IN THIS CASE IT APPEARS THAT THE DISPUTE BEFORE THE COURT CONCERNING QUOTAS ALLEGED TO HAVE BEEN EXCEEDED DURING THE THIRD QUARTER OF 1981 INVOLVES THE RESOLUTION OF SENSITIVE AND COMPLICATED PROBLEMS . IN THOSE CIRCUMSTANCES THE DAMAGE INFLICTED ON THE APPLICANT IN REQUIRING IT TO PAY WHAT IS A CONSIDERABLE SUM , EVEN FOR AN UNDERTAKING OF ITS SIZE , BEFORE THE COURT HAS ESTABLISHED THE EXISTENCE OF A FIRST INFRINGEMENT WOULD BE DISPROPORTIONATE IN COMPARISON WITH THE COMMISSION ' S INTEREST , EVEN THOUGH A LEGITIMATE ONE , IN REINFORCING THE DETERRENT EFFECT OF ITS DECISION BY THE IMMEDIATE RECOVERY OF 70% OF THE FINE .

9 IT IS THEREFORE APPROPRIATE TO SUSPEND THE APPLICATION OF THE CONTESTED DECISION ( FOURTH QUARTER ) AT LEAST UNTIL THE COURT HAS DELIVERED JUDGMENT ON THE ACTION RELATING TO THE ALLEGED EXCESS IN RESPECT OF THE THIRD QUARTER .

10 IT WILL BE FOR THE PARTIES , ONCE THE COURT HAS DELIVERED JUDGMENT IN CASE 265/82 CONCERNING AN APPLICATION FOR A DECLARATION OF THE NULLITY OF COMMISSION DECISION C(82 ) 1191/8 OF 13 AUGUST 1982 , TO DRAW THE NECESSARY CONCLUSIONS FROM THAT JUDGMENT WITH REGARD TO THE RECOVERY OF THE FINE TO WHICH THIS ORDER RELATES AND , IF APPROPRIATE , TO APPLY TO THE COURT FOR THE ADOPTION OF INTERIM MEASURES .

ON THOSE GROUNDS ,

THE PRESIDENT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE OPERATION OF ARTICLE 2 OF COMMISSION DECISION C(83 ) 376/5 OF 24 MARCH 1983 SHALL BE SUSPENDED UNTIL THE THIRTIETH DAY AFTER NOTIFICATION TO THE PARTIES OF THE JUDGMENT OF THE COURT IN CASE 265/82 , USINOR V COMMISSION , ON CONDITION THAT THE APPLICANT FIRST PROVIDES A BANK GUARANTEE FOR THE PAYMENT OF THE FINE IMPOSED BY THAT DECISION TOGETHER WITH ANY DEFAULT INTEREST WHICH MAY BE CALCULATED , FOR THE PURPOSES OF THIS ORDER , AT 1% ABOVE THE DISCOUNT RATE FIXED BY THE BANQUE DE FRANCE .

2 . THE REMAINDER OF THE APPLICATION IS DISMISSED .

3 . THE COSTS ARE RESERVED .