61983J0076

1 . OBJECTION OF ILLEGALITY - MEASURES THE ILLEGALITY OF WHICH MAY BE PLEADED - INDIVIDUAL DECISIONS - EXCLUSION

( ECSC TREATY , ART . 36 , THIRD PARA .)

2.ECSC - PRODUCTION - STEEL PRODUCTION QUOTA SYSTEM - REQUEST FOR ADJUSTMENT OF QUOTAS - SILENCE OF THE COMMISSION - EFFECTS - TACIT CONSENT - NO

( ECSC TREATY , ART . 58 ; GENERAL DECISION NO 1831/81 , ART . 14 )

1 . AN APPLICANT MAY NOT , IN AN APPLICATION FOR A DECLARATION THAT AN INDIVIDUAL DECISION IS VOID , RAISE AN OBJECTION OF ILLEGALITY RELATING TO ANOTHER INDIVIDUAL DECISION ADDRESSED TO HIM WHICH HAS BECOME FINAL .

2 . THE SYSTEM OF RESTRICTIONS ON THE PRODUCTION OF STEEL UNDERTAKINGS ALLOWS OF ADJUSTMENTS TO INDIVIDUAL QUOTAS ALLOCATED TO PARTICULAR UNDERTAKINGS ONLY IN EXCEPTIONAL CASES , AND FOR SUCH AN ADJUSTMENT A POSITIVE DECISION GRANTING SUPPLEMENTARY QUOTAS IS INDISPENSABLE . THE COMMISSION ' S FAILURE TO REPLY TO A REQUEST FOR ADJUSTMENT CAN THEREFORE BE TREATED ONLY AS AN IMPLIED DECISION OF REFUSAL AND NOT AS TACIT CONSENT TO AN ADJUSTMENT .

IN CASE 76/83

USINES GUSTAVE BOEL , A LIMITED LIABILITY COMPANY INCORPORATED UNDER BELGIAN LAW , HAVING ITS REGISTERED OFFICE IN BRUSSELS ,

AND , IN SO FAR AS IS NECESSARY ,

FABRIQUE DE FER DE MAUBEUGE , A LIMITED LIABILITY COMPANY INCORPORATED UNDER FRENCH LAW , HAVING ITS REGISTERED OFFICE IN LOUVROIL ( NORD ), FRANCE ,

BOTH REPRESENTED BY ETIENNE GUTT , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JACQUES LOESCH , 2 RUE GOETHE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ETIENNE LASNET , 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 FOR A DECLARATION THAT THE COMMISSION DECISION OF 24 MARCH 1983 , NOTIFIED BY LETTER OF 30 MARCH 1983 , CONCERNING A FINE IMPOSED PURSUANT TO ARTICLE 58 OF THE ECSC TREATY ON THE UNDERTAKING USINES GUSTAVE BOEL AT LA LOUVIERE , IS VOID ,

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 29 APRIL 1983 , USINES GUSTAVE BOEL , A LIMITED LIABILITY COMPANY INCORPORATED UNDER BELGIAN LAW , AND FABRIQUE DE FER DE MAUBEUGE , A LIMITED LIABILITY COMPANY INCORPORATED UNDER FRENCH LAW , BROUGHT AN ACTION PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 33 AND THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY FOR A DECLARATION THAT THE COMMISSION DECISION OF 24 MARCH 1983 , NOTIFIED ON 30 MARCH 1983 TO THE UNDERTAKING USINES GUSTAVE BOEL SA , LA LOUVIERE , BELGIUM , IMPOSING A FINE OF 111 024 570 BELGIAN FRANCS ON THAT UNDERTAKING PURSUANT TO ARTICLE 58 OF THE ECSC TREATY WAS VOID , AND IN THE ALTERNATIVE , FOR THE REDUCTION OF THE AMOUNT OF THE FINE .

2 ARTICLE 1 OF THE CONTESTED DECISION STATES THAT ' ' THE BOEL UNDERTAKING ' ' HAS INFRINGED THE QUOTA SYSTEM ESTABLISHED BY COMMISSION DECISION NO 1831/81/ECSC OF 24 JUNE 1981 ( OFFICIAL JOURNAL , L 180 , P . 1 ) BY EXCEEDING THE PRODUCTION QUOTA FOR CATEGORY IC PRODUCTS BY 1 007 TONNES AND EXCEEDING THE PART OF THAT QUOTA WHICH MAY BE DELIVERED ON THE COMMON MARKET BY 3 878 TONNES IN THE THIRD QUARTER 1981 , AND BY EXCEEDING THE PRODUCTION QUOTA FOR CATEGORY IC PRODUCTS BY 12 943 TONNES AND EXCEEDING THE PARTS OF THE QUOTAS FOR CATEGORY IA AND IC PRODUCTS WHICH MAY BE DELIVERED ON THE COMMON MARKET BY 161 AND 14 921 TONNES RESPECTIVELY IN THE FOURTH QUARTER OF 1981 .

3 IN THEIR FIRST , THIRD , FOURTH , FIFTH , SIXTH AND SEVENTH SUBMISSIONS THE APPLICANTS CONTEST THE COMMISSION DECISIONS WHEREBY THEIR QUOTAS WERE FIXED OR ADJUSTMENTS TO THE QUOTAS WERE REFUSED , AND CHALLENGE THE LEGALITY OF THE GENERAL DECISIONS ON WHICH THE INDIVIDUAL DECISIONS WERE BASED . IN THE FIRST SUBMISSION THE APPLICANTS OBJECT THAT THE COMMISSION DEALT WITH FABRIQUE DE FER DE MAUBEUGE SA AND USINES GUSTAVE BOEL SA TOGETHER , ALTHOUGH THE TWO COMPANIES ARE DISTINCT . IN THE THIRD SUBMISSION THE APPLICANTS CHALLENGE THE EXTENSION OF THE QUOTA SYSTEM , AS PREVIOUSLY STRUCTURED , TO CATEGORY IC PRODUCTS AND IN THEIR FOURTH SUBMISSION THEY CONTEST THE CRITERION USED BY THE COMMISSION IN ASCERTAINING REFERENCE PRODUCTIONS . IN THE FIFTH AND SIXTH SUBMISSIONS THEY OBJECT THAT THE QUOTA SYSTEM IMPOSED BY THE COMMISSION DOES NOT INCLUDE A GENERAL EQUITABLE CLAUSE AND THAT IT APPLIES TO PRODUCTION FOR EXPORT AND TO DELIVERIES . IN THE SEVENTH SUBMISSION THE APPLICANTS CALL IN QUESTION THE COMMISSION ' S IMPLIED REFUSAL TO ADJUST THE REFERENCE PRODUCTIONS IN ACCORDANCE WITH ARTICLE 14 OF DECISION NO 1831/81/ECSC .

4 IN THE ABOVE-MENTIONED SUBMISSIONS THE APPLICANTS DO NOT DENY THAT THE QUOTAS WERE IN FACT EXCEEDED , BUT SIMPLY CHALLENGE THE LEGALITY OF INDIVIDUAL COMMISSION DECISIONS WHICH BECAME FINAL WHEN THEY WERE NOT CONTESTED WITHIN THE PERIOD PRESCRIBED BY THE TREATY . IT IS WELL-ESTABLISHED CASE-LAW THAT AN APPLICANT MAY NOT , IN AN APPLICATION FOR A DECLARATION THAT AN INDIVIDUAL DECISION IS VOID , RAISE AN OBJECTION OF ILLEGALITY RELATING TO ANOTHER INDIVIDUAL DECISION ADDRESSED TO HIM WHICH HAS BECOME FINAL . THAT BEING SO , THE APPLICANTS MAY NOT EFFECTIVELY RELY ON THE ILLEGALITY OF THE INDIVIDUAL DECISIONS WHICH FIXED THEIR QUOTAS OR PARTS OF QUOTAS FOR THE THIRD AND FOURTH QUARTERS OF 1981 , OR REFUSED TO ADJUST THEM , AND TO THAT EXTENT THE SUBMISSIONS MENTIONED ABOVE MUST BE REJECTED .

5 MOREOVER , THE APPLICANTS MAY NOT PLEAD THE ILLEGALITY OF THE PROVISIONS OF A GENERAL DECISION UNLESS THE CONTESTED INDIVIDUAL DECISION IS BASED ON THOSE PROVISIONS ( JUDGMENT OF 28 . 10 . 1981 , CASES 275/80 AND 24/81 KRUPP ( 1981 ) ECR 2489 ). THE PROVISIONS OF DECISION NO 1831/81/ECSC WHICH THE APPLICANTS ALLEGE ARE ILLEGAL DEAL NOT WITH THE IMPOSITION OF A FINE BUT SOLELY WITH THE FIXING AND ADJUSTMENT OF QUOTAS .

6 THE APPLICANTS MAY NOT RELY ON THE ARGUMENT THAT THEY HAD ALREADY EXCEEDED THE QUOTAS ALLOCATED TO THEM , IN ORDER TO JUSTIFY THE FACT THAT , LACKING A LEGAL INTEREST , THEY DID NOT WITHIN THE PRESCRIBED PERIOD CONTEST THE INDIVIDUAL DECISIONS FIXING THEIR QUOTAS OR REFUSING TO ADJUST THEM . THE APPLICANTS WERE IN NO WAY AUTHORIZED UNILATERALLY TO EXCEED THE PRODUCTION QUOTAS IMPOSED ON THEM BY THE COMMISSION .

7 FINALLY , THE COURT NOTES THAT IT HAS ALREADY HELD IN ITS JUDGMENT OF 31 MARCH 1965 ( CASE 21/64 MACCHIORLATI DALMAS ( 1965 ) ECR 175 ) THAT THE STRICT TIME-LIMIT FOR INSTITUTING PROCEEDINGS FOR A DECLARATION THAT A PROVISION IS VOID IS IN KEEPING WITH THE NECESSITY TO PREVENT THE LEGALITY OF ADMINISTRATIVE DECISIONS BEING CALLED IN QUESTION INDEFINITELY . HAVING REGARD TO THOSE CONSIDERATIONS , THE SUBMISSIONS REFERRED TO MUST BE DECLARED INADMISSIBLE IN THEIR ENTIRETY .

8 FOR THE SAME REASONS THE SECOND SUBMISSION IS INADMISSIBLE IN SO FAR AS IT ALLEGES THAT THE COMMISSION FAILED TO REPLY TO CERTAIN ASPECTS OF THE REQUESTS FOR ADJUSTMENT OF THE APPLICANTS ' QUOTAS FOR THE THIRD AND FOURTH QUARTERS OF 1981 AND FAILED TO STATE ADEQUATE REASONS FOR ITS DECISION ADJUSTING THE QUOTAS FOR THE THIRD QUARTER OF 1981 . IT IS , HOWEVER , ADMISSIBLE IN SO FAR AS IT IS BASED ON THE INADEQUACY OF THE STATEMENT OF REASONS FOR THE DECISION OF 24 MARCH 1983 CONTESTED IN THIS ACTION .

9 IT MUST , HOWEVER , BE POINTED OUT THAT THE GREAT MAJORITY OF THE ARGUMENTS TO WHICH THE APPLICANTS CLAIM THE COMMISSION DID NOT REPLY CONCERNED THE FIXING OF THE QUOTAS AND NOT THE IMPOSITION OF THE FINE . NO COMPLAINT MAY BE MADE AGAINST THE COMMISSION FOR FAILING TO REPLY TO POINTS EXTRANEOUS TO THE DECISION IN QUESTION . IN REGARD TO THE OTHER ARGUMENTS , THE COURT CONSIDERS THAT THE COMMISSION STATED IN ITS DECISION THE MAIN REASONS WHICH LED IT TO IMPOSE A FINE ON THE BOEL GROUP FOR EXCEEDING ITS QUOTAS AND THE SECOND SUBMISSION MUST THEREFORE ALSO BE REJECTED .

10 IN THEIR EIGHTH SUBMISSION THE APPLICANTS COMPLAIN THAT THE COMMISSION FAILED TO REPLY TO THE LETTER OF 28 OCTOBER 1981 IN WHICH THE USINES GUSTAVE BOEL SA REQUESTED THE ADJUSTMENT OF ITS PRODUCTION QUOTAS AND FINISHED BY SAYING THAT , UNLESS THE COMMISSION INDICATED OTHERWISE , IT WOULD CONSIDER THE COMMISSION TO BE IN AGREEMENT WITH THE PRODUCTION QUOTAS IT PROPOSED . THE APPLICANTS CLAIM THAT SINCE THE COMMISSION REMAINED SILENT THEY WERE JUSTIFIED IN CONCLUDING THAT THE COMMISSION HAD APPROVED THE PROPOSED QUOTAS .

11 IT SHOULD BE NOTED IN THIS REGARD THAT THE SYSTEM OF RESTRICTIONS ON THE PRODUCTION OF STEEL UNDERTAKINGS ALLOWS OF ADJUSTMENTS TO INDIVIDUAL QUOTAS ALLOCATED TO PARTICULAR UNDERTAKINGS ONLY IN EXCEPTIONAL CASES , AND FOR SUCH AN ADJUSTMENT A POSITIVE DECISION GRANTING SUPPLEMENTARY QUOTAS IS INDISPENSABLE . THE COMMISSION ' S SILENCE , REGRETTABLE THOUGH IT MAY BE , CAN THEREFORE BE TREATED ONLY AS AN IMPLIED DECISION OF REFUSAL AND NOT AS TACIT CONSENT TO AN ADJUSTMENT . THE EIGHTH SUBMISSION MUST THEREFORE ALSO BE REJECTED .

12 IN THEIR NINTH SUBMISSION THE APPLICANTS COMPLAIN THAT WITHOUT CONSULTING THE CONSULTATIVE COMMITTEE OR THE COUNCIL THE COMMISSION LAID DOWN EX POST FACTO ADDITIONAL RULES FOR THE FIXING OF FINES WHICH DO NOT APPEAR IN ARTICLE 12 OF THE GENERAL DECISION AND WHICH ARE BASED ON THE FACT THAT THE UNDERTAKING OPERATES AT A PROFIT . FURTHERMORE , THE APPLICANTS CLAIM THAT FABRIQUE DE FER DU MAUBEUGE SA MADE A LOSS AND THE COMMISSION FAILED TO TAKE ACCOUNT OF THAT FACT .

13 IT SHOULD BE OBSERVED THAT THE COURT HAS ALREADY CONSIDERED THAT IT IS JUSTIFIED TO ADJUST THE FINE ACCORDING TO THE UNDERTAKING ' S FINANCIAL SITUATION ( JUDGMENT OF 10 . 3 . 1980 , JOINED CASES 154 , 205 , 206 , 226 TO 228 , 263 AND 264/78 , 39 , 31 , 83 AND 85/79 FERRIERA VALSABBIA SPA ( 1980 ) ECR 1026 ). MOREOVER , CONTRARY TO THE APPLICANTS ' CONTENTION , THE CONSULTATIVE COMMITTEE AND THE COUNCIL NEED NOT BE CONSULTED WHERE IT IS MERELY A MATTER OF IMPLEMENTING DETAILED RULES FOR THE APPLICATION OF ARTICLE 12 OF DECISION NO 1831/81/ECSC IN THE EXERCISE OF THE DISCRETION WHICH THAT ARTICLE LEAVES TO THE COMMISSION . FINALLY , THE COMMISSION WAS NOT OBLIGED TO TAKE ACCOUNT OF THE FINANCIAL SITUATION OF BOEL ' S SUBSIDIARIES TAKEN INDIVIDUALLY SINCE ACCORDING TO ARTICLE 2 ( 4 ) OF DECISION NO 1831/81/ECSC A GROUP OF UNDERTAKINGS WHICH ARE CONCENTRATED WITHIN THE MEANING OF ARTICLE 66 OF THE TREATY IS TO BE CONSIDERED AS A SINGLE UNDERTAKING , EVEN IF THE UNDERTAKINGS ARE LOCATED IN DIFFERENT MEMBER STATES .

14 THE ACTION MUST THEREFORE BE DISMISSED IN ITS ENTIRETY .

COSTS

15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE APPLICANTS HAVE FAILED IN THEIR SUBMISSION THEY MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,

THE COURT ( FIRST CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANTS TO PAY THE COSTS .