61982J0270

1 . OBJECTION OF ILLEGALITY - MEASURES WHOSE ILLEGALITY MAY BE PLEADED - INDIVIDUAL DECISIONS - NOT INCLUDED

( ECSC TREATY , ART . 36 , THIRD PARAGRAPH )

2 . ECSC - PRODUCTION - QUOTA SYSTEM FOR STEEL PRODUCTION - PRODUCTION IN EXCESS OF QUOTAS - FIXING OF A FINE - POWERS OF THE COMMISSION

( ECSC TREATY , ART . 58 ( 4 ); DECISION 1831/81 , ART . 12 )

3 . ECSC - PRODUCTION - QUOTA SYSTEM FOR STEEL PRODUCTION AND DELIVERY - PRODUCTION AND DELIVERY IN EXCESS OF QUOTAS - DOUBLE FINE - PERMISSIBILITY

( ECSC TREATY , ART . 58 ( 4 ); DECISION 1831/81 , ARTS 5 AND 12 )

1 . AN APPLICANT MAY NOT , IN THE COURSE OF PROCEEDINGS FOR THE ANNULMENT OF AN INDIVIDUAL DECISION , RAISE BY WAY OF OBJECTION THE ILLEGALITY OF ANOTHER INDIVIDUAL DECISION WHICH WAS ADDRESSED TO HIM AND WHICH HAS BECOME DEFINITIVE .

2.ALTHOUGH THE FINE WHICH MAY BE IMPOSED UNDER ARTICLE 12 OF THE GENERAL DECISION , DECISION 1831/81 , SHOULD NORMALLY BE FIXED AT AN AMOUNT OF 75 ECU PER EXCESS TONNE , THE COMMISSION MAY AND IS INDEED OBLIGED TO VARY THE AMOUNT OF FINES IN EXCEPTIONAL CASES ACCORDING TO THE CIRCUMSTANCES AND GRAVITY OF THE INFRINGEMENT .

3.ARTICLE 5 OF DECISION 1831/81 , IN CONJUNCTION WITH ARTICLE 12 OF THE SAME DECISION , IMPOSES TWO DISTINCT OBLIGATIONS ON THE UNDERTAKINGS CONCERNED , NAMELY AN OBLIGATION TO COMPLY WITH THE PRODUCTION QUOTAS AND AN OBLIGATION TO REFRAIN FROM EXCEEDING THE PORTION OF THOSE QUOTAS WHICH MAY BE DELIVERED WITHIN THE COMMON MARKET ; THOSE TWO RESTRICTIONS ARE INTENDED TO PROTECT TWO DISTINCT INTERESTS OF THE COMMUNITY . AN UNDERTAKING WHICH EXCEEDS BOTH QUOTAS AT THE SAME TIME THEREFORE COMMITS TWO DISTINCT INFRINGEMENTS OF THE DECISION IN QUESTION . IT FOLLOWS THAT IN THOSE CIRCUMSTANCES THE COMMISSION MAY IMPOSE TWO FINES TO BE CALCULATED SEPARATELY .

IN CASE 270/82

ESTEL NV , A COMPANY INCORPORATED UNDER THE LAW OF THE NETHERLANDS , WHOSE REGISTERED OFFICE IS IN NIJMEGEN ( NETHERLANDS ), REPRESENTED BY T . R . OTTERVANGER , A NETHERLANDS ADVOCATE , 66 AVENUE DE CORTENBERG , BRUSSELS , AND BY F . SALOMONSON AND J . D . KLEYN , ADVOCATES , 139 DE LAIRESSESTRAAT , AMSTERDAM , ACTING AS AUTHORIZED AGENTS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . A . ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ROLF WAGENBAUR , ACTING AS AGENT , ASSISTED BY THOMAS VAN RIJN , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 13 AUGUST 1982 IMPOSING A FINE ON THE APPLICANT ( OFFICIAL JOURNAL 1982 C 222 , P . 3 ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 30 SEPTEMBER 1982 , THE COMPANY ESTEL NV ( HEREINAFTER REFERRED TO AS ' ' ESTEL ' ' ), OF NIJMEGEN , BROUGHT AN ACTION UNDER ARTICLES 33 AND 36 , SECOND PARAGRAPH , OF THE ECSC TREATY FOR A DECLARATION THAT THE COMMISSION DECISION OF 13 AUGUST 1982 IMPOSING ON IT A FINE OF 3 655 590 ECU , THAT IS TO SAY HFL 9 520 472 IS VOID .

2 THE REASONS GIVEN FOR THE DECISION ARE BASED ON THE FACT THAT DURING THE THIRD QUARTER OF 1981 ESTEL EXCEEDED BY 30 909 TONNES THE PRODUCTION QUOTA FOR CATEGORY IA PRODUCTS , BY 13 842 TONNES THAT FOR CATEGORY IB PRODUCTS AND BY 19 951 TONNES THE PORTION OF THE PRODUCTION QUOTA FOR CATEGORY IA PRODUCTS WHICH COULD BE DELIVERED WITHIN THE COMMON MARKET ; THOSE QUOTAS HAD BEEN ALLOCATED TO ESTEL UNDER THE SYSTEM OF PRODUCTION QUOTAS INTRODUCED BY COMMISSION DECISION 1831/81/ECSC OF 24 JUNE 1981 ( OFFICIAL JOURNAL 1981 , L 180 , P . 1 ).

3 IT SHOULD BE NOTED THAT THAT DECISION INTRODUCED A SYSTEM OF STEEL PRODUCTION QUOTAS FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY , PURSUANT TO ARTICLE 58 OF THE ECSC TREATY . ARTICLE 5 OF THE DECISION PROVIDES THAT , EACH QUARTER AND FOR EACH UNDERTAKING , THE COMMISSION IS TO FIX PRODUCTION QUOTAS AND THE PORTION OF THOSE QUOTAS WHICH MAY BE DELIVERED WITHIN THE COMMON MARKET , ON THE BASIS OF REFERENCE PRODUCTIONS AND QUANTITIES , SUBJECT TO CERTAIN ABATEMENT RATES . THE FIRST PARAGRAPH OF ARTICLE 12 OF THE SAME DECISION PROVIDES THAT A FINE , GENERALLY OF 75 ECU FOR EACH EXCESS TONNE , IS TO BE IMPOSED ON UNDERTAKINGS WHICH EXCEED THEIR PRODUCTION QUOTAS OR THE PART OF THOSE QUOTAS WHICH MAY BE DELIVERED WITHIN THE COMMON MARKET ; 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 . ' '

4 BY LETTER OF 29 JULY 1981 THE COMMISSION , PURSUANT TO DECISION 1831/81 , INFORMED ESTEL OF ITS PRODUCTION QUOTAS FOR THE THIRD QUARTER OF 1981 AND OF THE PORTION OF THOSE QUOTAS WHICH COULD BE DELIVERED WITHIN THE COMMON MARKET . BY LETTER OF 24 NOVEMBER 1981 ESTEL ASKED THE COMMISSION TO INCREASE ITS PRODUCTION QUOTA FOR CATEGORY IA PRODUCTS BY 76 811 TONNES , PURSUANT TO ARTICLES 10 OF DECISION 1831/81 . HOWEVER , BY LETTER OF 3 FEBRUARY 1982 , THE COMMISSION GRANTED ESTEL AN INCREASE OF ONLY 66 263 TONNES , LEAVING A DIFFERENCE OF 10 548 TONNES . ON 13 AUGUST 1982 THE COMMISSION ADOPTED THE CONTESTED DECISION , FIXING THE FINAL FIGURES FOR THE EXCESSES OVER THE QUOTAS AND IMPOSING ON ESTEL A FINE OF 3 655 590 ECU , PURSUANT TO ARTICLE 12 OF THE GENERAL DECISION .

5 BY THE PRESENT ACTION THE APPLICANT CLAIMS PRIMARILY THAT THE DECISION IMPOSING THE FINE SHOULD BE DECLARED VOID , EITHER WHOLLY OR IN PART , OR , IN THE ALTERNATIVE , THAT THE FINE SHOULD BE REDUCED TO NIL OR TO SUCH AMOUNT AS THE COURT MAY THINK FIT . THE SUBMISSIONS PUT FORWARD IN SUPPORT OF THE APPLICATION CONCERN THE ABSENCE OF FAULT AND THE EXISTENCE OF SPECIAL CIRCUMSTANCES , THE BREACH OF GENERAL PRINCIPLES OF LAW AND FAILURE TO GIVE ADEQUATE REASONS FOR THE DECISION .

THE EXISTENCE OF SPECIAL CIRCUMSTANCES

6 THE APPLICANT MAINTAINS THAT BECAUSE OF THE SPECIAL CIRCUMSTANCES OF THIS PARTICULAR CASE NO FINE COULD BE IMPOSED , OR THE FINE SHOULD AT LEAST HAVE BEEN REDUCED . IN THAT CONNECTION THE APPLICANT ARGUES PRIMARILY THAT THE COMMISSION ' S IMPLIED COMPLAINT IN TWO ISOLATED CASES IN WHICH QUOTAS WERE EXCEEDED WAS MISCONCEIVED AND , IN THE ALTERNATIVE , THAT THE COMMISSION REFUSED , IN FIXING THE AMOUNT OF THE FINE , TO TAKE INTO ACCOUNT THE CIRCUMSTANCES WHICH LED TO THE QUOTAS BEING EXCEEDED , THE BLAME ATTACHING TO ESTEL AND THE DEGREE OF GRAVITY OF THE INFRINGEMENT ; WITH REGARD TO A THIRD ISOLATED CASE , THE APPLICANT AGAIN MAINTAINS THAT THE COMMISSION FAILED TO TAKE INTO ACCOUNT THE PARTICULAR CIRCUMSTANCES IN WHICH THE QUOTA WAS EXCEEDED , THE LOW DEGREE OF BLAME ATTACHING TO ESTEL AND THE DEGREE OF GRAVITY OF THE INFRINGEMENT .

7 IN THOSE ISOLATED CASES THE QUOTAS FOR THE FOLLOWING PRODUCTS WERE EXCEEDED : CATEGORY IA PRODUCTS USED BY BUYERS IN THE MANUFACTURE OF SMALL TUBES ( HEADING 1 BELOW ), CATEGORY IA PRODUCTS DELIVERED TO RE-ROLLING MILLS ( HEADING 2 BELOW ) AND CATEGORY IA AND IB PRODUCTS INTENDED FOR DELIVERY ON THE NORTH AMERICAN MARKET ( HEADING 3 BELOW ).

1 . PRODUCTS USED IN THE MANUFACTURE OF SMALL TUBES

8 IN ITS FIRST SUBMISSION , CONCERNING EXCESS PRODUCTION OF 10 548 TONNES , THE APPLICANT REFERS TO ARTICLE 10 OF THE GENERAL DECISION , DECISION 1831/81 , WHICH IS WORDED AS FOLLOWS :

' ' WITH REGARD TO PRODUCTS OF CATEGORY IA WHICH ARE USED IN THE FORM OF HOT-ROLLED PRODUCTS FOR THE PRODUCTION IN THE COMMUNITY OF WELDED TUBES WITH A DIAMETER NOT LARGER THAN 406.4 MM , THE COMMISSION SHALL , AT THE UNDERTAKING ' S REQUEST ACCOMPANIED BY PROOF OF USE FOR SUCH A PURPOSE , ADJUST THE QUOTA AND AUTHORIZE THE RELEVANT DELIVERIES . ' '

9 WITH REFERENCE TO THE METHOD OF CALCULATION TO BE USED IN ADJUSTING THE QUOTA , AS PROVIDED FOR IN THE ABOVE-MENTIONED ARTICLE , THE APPLICANT CLAIMS THAT IT WAS ENTITLED TO BELIEVE IN GOOD FAITH AT THE BEGINNING OF AND DURING THE THIRD QUARTER OF 1981 THAT THE COMMISSION WOULD APPLY THE SAME METHOD AS THE APPLICANT AND THAT IT NEITHER KNEW NOR COULD HAVE KNOWN THAT THE COMMISSION WOULD APPLY A DIFFERENT METHOD LESS FAVOURABLE TO THE APPLICANT UNTIL IT RECEIVED A TELEX MESSAGE FROM THE COMMISSION ON 1 DECEMBER 1981 . FURTHERMORE , THE APPLICANT MAINTAINS THAT THE COMMISSION ITSELF DID NOT ARRIVE AT A FINAL OPINION ON THE APPLICABLE METHOD UNTIL ABOUT THE MIDDLE OF NOVEMBER 1981 AND THAT IT ONLY INFORMED THE APPLICANT OF ITS OPININ IN A LETTER OF 3 FEBRUARY 1982 . THE COMMISSION THUS INFRINGED ARTICLE 36 OF THE ECSC TREATY AND ALSO SEVERAL GENERAL PRINCIPLES OF COMMUNITY LAW , NAMELY THE PRINCIPLES OF LEGALITY ( ' ' NULLUM CRIMEN SINE LEGE ' ' ), PROPORTIONALITY AND EQUALITY .

10 THE COMMISSION CONTENDS THAT NEITHER SUBJECTIVE CONSIDERATIONS SUCH AS ESTEL ' S ALLEGED GOOD FAITH , NOR THE SPECIAL CIRCUMSTANCES , NOR THE DEGREE OF BLAME , NOR THE GRAVITY OF THE INFRINGEMENT COULD BE TAKEN INTO ACCOUNT IN FIXING THE FINE SINCE , ACCORDING TO ARTICLE 12 OF THE GENERAL DECISION , THE FINE IS OF A STRICT AND AUTOMATIC NATURE , SO THAT THE COMMISSION FIXES IT WITH REFERENCE ONLY TO THE AMOUNT OF EXCESS PRODUCTION AND HAS NO DISCRETION IN DETERMINING THE AMOUNT OF THE PENALTY . IT MAINTAINS , IN THE ALTERNATIVE , THAT ESTEL KNOWINGLY TOOK THE RISK OF OVER-PRODUCING AND THAT IN ORDER TO AVOID THIS IT COULD HAVE ASKED THE COMMISSION FOR THE CORRECT INTERPRETATION OF ARTICLE 10 , AS OTHER UNDERTAKINGS DID . MOREOVER , THE COMMISSION HAD INFORMED EUROFER - A PRIVATE ASSOCIATION OF ORGANIZATIONS AND UNDERTAKINGS IN THE EUROPEAN STEEL INDUSTRY , WHOSE OBJECT IS COOPERATION BETWEEN ITS MEMBERS AND THE PROTECTION OF THEIR INTERESTS , PARTICULARILY VIS-A-VIS THE COMMISSION - OF THE METHOD OF CALCULATION IN A LETTER OF 10 NOVEMBER 1981 , WHICH REFERRED TO PREVIOUS DISCUSSIONS . FINALLY , THE COMMISSION MAINTAINS THAT ESTEL DID IN THE END ADMIT THAT THE COMMISSION ' S METHOD WAS CORRECT AND DID NOT DISPUTE THE QUOTAS .

11 IT SHOULD FIRST OF ALL BE NOTED THAT THE COMMISSION DECISIONS OF 29 JULY 1981 AND 3 FEBRUARY 1982 ARE NOW DEFINITIVE , SINCE THEY WERE NOT CHALLENGED WITHIN THE TIME-LIMITS LAID DOWN BY THE TREATY . THE COURT HAS CONSISTENTLY HELD THAT AN APPLICANT MAY NOT , IN THE COURSE OF PROCEEDINGS FOR THE ANNULMENT OF AN INDIVIDUAL DECISION , RAISE BY WAY OF OBJECTION THE ILLEGALITY OF ANOTHER INDIVIDUAL DECISION WHICH WAS ADDRESSED TO HIM AND WHICH HAS BECOME DEFINITIVE . THE APPLICATION IS THEREFORE RESTRICTED TO SUBMISSIONS AND ARGUMENTS DIRECTLY CONCERNING THE CONTESTED DECISION .

12 WITH REGARD TO THE ALLEGED AUTOMATIC NATURE OF THE FINE , IT SHOULD BE NOTED THAT THE COMMISSION MAY AND IS INDEED OBLIGED TO VARY THE AMOUNT OF THE FINES IN EXCEPTIONAL CASES ACCORDING TO THE CIRCUMSTANCES AND GRAVITY OF THE INFRINGEMENT . THE COURT HAS ALREADY HAD OCCASION , IN ITS JUDGMENT OF 16 NOVEMBER 1983 ( CASE 188/82 , THYSSEN , ( 1983 ) ECR 3721 ), TO HOLD , IN RELATION TO ARTICLE 9 OF DECISION 2794/80 , THAT ALTHOUGH THE FINE SHOULD NORMALLY BE FIXED AT AN AMOUNT OF 75 ECU PER EXCESS TONNE THE CIRCUMSTANCES AND GRAVITY OF THE INFRINGEMENT MAY JUSTIFY A DEPARTURE FROM THE GENERAL RULE AND THE IMPOSITION OF A REDUCED FINE . IN THE PRESENT CASE EXCEPTIONAL CIRCUMSTANCES DO JUSTIFY SUCH A DEPARTURE .

13 IN THAT REGARD IT MUST BE OBSERVED THAT THE ACTION CONCERNS THE FIRST QUARTER IN WHICH ARTICLE 10 OF DECISION 1831/81 - A COMPLETELY NEW PROVISION - WAS APPLICABLE , THAT THE WORDING OF THAT PROVISION GAVE NO INDICATION OF THE METHOD OF CALCULATION TO BE USED FOR ADJUSTING THE QUOTA AND THAT UNDER TAKINGS COULD NOT APPLY FOR ADJUSTMENT OF THE QUOTA AND AUTHORIZATION TO MAKE THE RELEVANT DELIVERIES UNTIL AFTER THE DELIVERIES HAD BEEN MADE , WITH THE RESULT THAT , IF THE COMMISSION ADJUSTED THE QUOTA , IT DID NOT DO SO UNTIL AFTER THE END OF THE QUARTER CONCERNED , AS IN THE PRESENT CASE .

14 IT FOLLOWS THAT DURING THE PERIOD IN QUESTION UNDERTAKINGS MAY HAVE BEEN IN A STATE OF UNCERTAINTY AS TO THE METHOD TO BE APPLIED FOR CALCULATING THE ADJUSTMENT , ALTHOUGH THE METHOD APPLIED BY THE APPLICANT WAS NOT THE ONLY REASONABLE ONE .

15 IN THOSE CIRCUMSTANCES 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 IN QUESTION . SINCE IT DID NOT DO SO , IT CONTRIBUTED TO THE UNCERTAINTY OVER THE CORRECT METHOD OF CALCULATION . ALTHOUGH ESTEL COULD HAVE AVOIDED EXCEEDING ITS QUOTA BY ASKING THE COMMISSION TO PROVIDE IT WITH THE METHOD OF CALCULATION , THE PROPER ADMINISTRATION OF THE STEEL-QUOTA SYSTEM IS CLEARLY THE COMMISSION ' S RESPONSIBILITY .

16 THERE ARE THEREFORE GROUNDS FOR FINDING , IN THE APPLICANT ' S FAVOUR , THAT A SITUATION EXISTED WHICH WARRANTED AN ASSESSMENT DIFFERENT FROM THAT OF THE COMMISSION WITH REGARD TO THE GRAVITY OF THE INFRINGEMENT AND THE FINE WHICH SHOULD BE IMPOSED FOR THE EXCESS PRODUCTION .

2 . PRODUCTS DELIVERED TO RE-ROLLING MILLS

17 THE APPLICANT SUBMITS THAT THE REASON FOR WHICH IT EXCEEDED THE QUOTAS FOR CATEGORY IA PRODUCTS DELIVERED TO RE-ROLLING MILLS WAS THAT ITS FORECAST DELIVERIES TO RE-ROLLING MILLS FOR THE THIRD QUARTER OF 1981 WERE LOWER THAN THE ACTUAL DELIVERIES WHICH IT WAS OBLIGED TO MAKE UNDER THE AGREEMENTS CONCLUDED WITHIN EUROFER AND THAT IT WAS NOT ABLE TO MAKE UP THE DIFFERENCE BY BUYING OR EXCHANGING QUOTAS . SINCE THIS EUROFER SYSTEM WAS NEW , ESTEL HAD NO MEANS OF KNOWING THAT THE FORECASTS WERE BINDING ON UNDERTAKINGS AND SERVED AS THE BASIS FOR THE DEFINITIVE PRODUCTION QUOTA FIXED BY THE COMMISSION . IN FIXING THE AMOUNT OF THE FINE , THE COMMISSION WAS THEREFORE OBLIGED TO TAKE INTO ACCOUNT ESTEL ' S MISTAKE AND THE FACT THAT THE EUROFER AND COMMUNITY SYSTEMS WERE INTERDEPENDENT .

18 THE COMMISSION ' S REPLY TO THAT SUBMISSION IS THAT THE FORECASTING SYSTEM IS A MATTER PERTAINING TO THE INTERNAL AFFAIRS OF EUROFER AND IS NOT SUBJECT TO THE COMMISSION ' S CONTROL ; IT WAS NOT FOR THE COMMISSION TO TAKE INTO ACCOUNT AN UNDERTAKING ' S POSSIBLE MISUNDERSTANDING OF THE SIGNIFICANCE OF THAT SYSTEM . FURTHERMORE , THERE WERE A NUMBER OF WAYS IN WHICH ESTEL COULD HAVE FULFILLED ITS OBLIGATIONS UNDER THE COMMUNITY QUOTA SYSTEM ; IT COULD , FOR EXAMPLE , HAVE TRANSFERRED AN ORDER TO ANOTHER SUPPLIER , EXCHANGED OR BOUGHT A QUOTA , DELIVERED THAT PART OF THE ORDER WHICH EXCEEDED THE QUOTA DURING THE FOLLOWING QUARTER OR DELIVERED SMALLER QUANTITIES TO BUYERS WHO WERE NOT REGULAR CUSTOMERS .

19 IT MUST BE ACCEPTED THAT ESTEL ' S PRODUCTION IN EXCESS OF ITS QUOTA WAS , AS THE COMMISSION HAS RIGHTLY MAINTAINED , DUE TO THE AGREEMENTS CONCLUDED WITHIN EUROFER AND TO ESTEL ' S UNCERTAINTY AS TO THE MEANING OF THOSE AGREEMENTS . ESTEL ' S QUOTAS WERE FIXED CLEARLY AND UNAMBIGUOUSLY BY THE COMMISSION SO THAT ESTEL COULD NOT BE IN ANY DOUBT AS TO ITS OBLIGATIONS UNDER COMMUNITY LAW . AS A RESULT A MISTAKE ON THE PART OF ESTEL CONCERNING THE VOLUME OF TRANSACTIONS WHICH IT WAS OBLIGED TO CARRY OUT UNDER THE EUROFER AGREEMENTS COULD IN NO WAY JUSTIFY A BREACH OF ITS OBLIGATIONS UNDER THE COMMUNITY PRODUCTION-QUOTA SYSTEM AND DOES NOT CONSTITUTE A CIRCUMSTANCE WHICH JUSTIFIES A REDUCTION IN THE FINE .

20 THE SUPPLEMENTARY ARGUMENT OF ESTEL TO THE EFFECT THAT THE EXCESS PRODUCTION WAS PART OF THE RESTRUCTURING OF THE STEEL INDUSTRY AND THAT IT DID NOT DISTURB THE MARKET CANNOT BE ACCEPTED IN RELATION TO A SYSTEM BASED ON THE ALLOCATION OF WELL-DEFINED PRODUCTION QUOTAS TO PARTICULAR UNDERTAKINGS , WITH A VIEW TO COMBATTING A MANIFEST CRISIS IN THE STEEL INDUSTRY .

21 THIS SUBMISSION MUST THEREFORE BE REJECTED .

3 . DELIVERIES ON THE NORTH AMERICAN MARKET

22 THE APPLICANT CLAIMS THAT THE COMMISSION WAS WRONG NOT TO TAKE INTO ACCOUNT , IN FIXING THE AMOUNT OF THE FINE , THE FACT THAT THE APPLICANT HAD EXCEEDED THE PRODUCTION QUOTA IN RESPECT OF DELIVERIES ON THE NORTH AMERICAN MARKET AS A RESULT OF SPECIFIC PROBLEMS CONNECTED WITH EXPORTATION TO THAT MARKET AND THAT WHEN THE CONTRACTS IN QUESTION WERE CONCLUDED THE CONTINUATION OF THE PRODUCTION QUOTA SYSTEM BEYOND 30 JUNE 1981 AND THE SPECIFIC CHARACTER OF THE SYSTEM WERE NOT FORESEEABLE . THE DELIVERIES IN THE AREA OF THE GREAT LAKES COULD ONLY BE MADE IN SUMMER SINCE THE CLIMATE OF THAT REGION IS SUCH AS TO RENDER BUYERS INACCESSIBLE THROUGHOUT THE REMAINDER OF THE YEAR . FURTHERMORE , ESTEL WAS NOT ABLE TO BUY OR EXCHANGE ENOUGH QUOTAS TO AVOID EXCESS PRODUCTION .

23 IT MUST FIRST BE POINTED OUT THAT PRODUCTION IN EXCESS OF QUOTAS DUE TO LARGE DELIVERIES OUTSIDE THE COMMUNITY DOES NOT JUSTIFY A FINE LOWER THAN WOULD BE APPROPRIATE IN THE CASE OF EXCESS PRODUCTION DUE TO DELIVERIES WITHIN THE COMMUNITY ITSELF . IN ANY EVENT , THE CONDUCT OF THE BUSINESS AND THE RISKS ARISING THEREFROM ARE THE RESPONSIBILITY OF THE UNDERTAKINGS THEMSELVES , AND IN PLANNING THEIR ACTIVITIES THEY MUST TAKE INTO CONSIDERATION ALL RELEVANT CIRCUMSTANCES , SUCH AS ANY PROBLEMS OF TRANSPORT LINKED TO THE CLIMATE OF THE COUNTRY OF DESTINATION . SUCH EXTERNAL CIRCUMSTANCES CANNOT THEREFORE RELIEVE THE APPLICANT OF ITS OBLIGATION TO OBSERVE THE QUOTAS . THE SYSTEM OF PRODUCTION QUOTAS , WHICH IS DESIGNED TO OVERCOME THE MANIFEST CRISIS IN THE STEEL INDUSTRY , WOULD BE SERIOUSLY UNDERMINED IF , BY PLEADING SUCH EXTERNAL CIRCUMSTANCES , UNDERTAKINGS COULD FREE THEMSELVES FROM RESTRICTIONS AND EXCEED AT WILL THE PRODUCTION QUOTA ALLOCATED TO THEM .

24 THIS SUBMISSION MUST THEREFORE BE REJECTED .

THE QUESTION OF THE ' ' DOUBLE PENALTY ' '

25 THE APPLICANT MAINTAINS THAT THE METHOD USED BY THE COMMISSION IN CALCULATING THE FINE RESULTED IN ESTEL ' S BEING PENALIZED TWICE FOR EXCESS PRODUCTION OF 3 930 TONNES . THE COMMISSION IMPOSED SEPARATE PENALTIES ON THE PRODUCTION IN EXCESS OF QUOTAS AND ON THE PRODUCTION IN EXCESS OF THE PORTION OF THOSE QUOTAS WHICH COULD BE DELIVERED WITHIN THE COMMON MARKET , THAT IS TO SAY NOT ONLY ON THE GREATER EXCESS BUT ALSO ON THE SMALLER EXCESS WHICH WAS ALREADY INCLUDED IN THE GREATER EXCESS . ACCORDING TO THE APPLICANT , CUMULATIVE PENALTIES OF THIS KIND ARE NOT COMPATIBLE WITH ARTICLE 12 OF DECISION 1831/81 . IF THEY DO NOT CONFLICT WITH THAT ARTICLE , THEY ARE , THE APPLICANT MAINTAINS , CONTRARY TO ARTICLE 58 ( 4 ) OF THE ECSC TREATY AND TO VARIOUS GENERAL PRINCIPLES OF COMMUNITY LAW , IN PARTICULAR THE PRINCIPLES OF SOUND ADMINISTRATION , JUSTICE AND FAIRNESS .

26 THE COMMISSION REPLIES THAT ARTICLE 12 DOES NOT PROVIDE FOR A DOUBLE FINE FOR A SINGLE INFRINGEMENT , BUT FOR TWO DISTINCT FINES FOR TWO SEPARATE INFRINGEMENTS , AND IS THEREFORE COMPATIBLE WITH ARTICLE 58 OF THE ECSC TREATY AND WITH THE GENERAL PRINCIPLES OF LAW . WITH REGARD TO THE SUPPOSED ILLLEGALITY OF ARTICLE 12 , THE COMMISSION RAISES AN OBJECTION OF INADMISSIBILITY AGAINST THIS SUBMISSION , IN SO FAR AS IT IS DIRECTED AGAINST DECISION 1831/81 AS A WHOLE AND IN PARTICULAR ARTICLE 5 .

27 IT MUST BE POINTED OUT THAT ARTICLE 5 OF DECISION 1831/81 , IN CONJUNCTION WITH ARTICLE 12 OF THE SAME DECISION , IMPOSES TWO DISTINCT OBLIGATIONS ON THE UNDERTAKINGS CONCERNED , NAMELY AN OBLIGATION TO COMPLY WITH THE PRODUCTION QUOTAS AND AN OBLIGATION TO REFRAIN FROM EXCEEDING THE PORTION OF THOSE QUOTAS WHICH MAY BE DELIVERED WITHIN THE COMMON MARKET . WHILST THE RESTRICTION OF DELIVERIES WITHIN THE COMMON MARKET SERVES TO RESTORE THE BALANCE OF SUPPLY AND DEMAND WITHIN THAT MARKET , THE RESTRICTION OF THE TOTAL PRODUCTION OF UNDERTAKINGS IS DESIGNED ESSENTIALLY TO AVOID SURPLUS PRODUCTION WHICH , BECAUSE OF THE CRISIS , COULD NOT BE DISPOSED OF EVEN BY WAY OF EXPORT . IT IS APPARENT THEREFORE THAT THE TWO RESTRICTIONS ARE INTENDED TO PROTECT TWO DISTINCT INTERESTS OF THE COMMUNITY ; THAT CONCLUSION IS CONFIRMED BY POINT 5 OF THE PREAMBLE TO THE DECISION .

28 CONSEQUENTLY , IT MUST BE ACKNOWLEDGED THAT AN UNDERTAKING WHICH FAILS TO FULFIL ITS ABOVE-MENTIONED OBLIGATIONS , BY EXCEEDING BOTH FIGURES AT THE SAME TIME , COMMITS TWO DISTINCT INFRINGEMENTS OF THE DECISION IN QUESTION . IT FOLLOWS THAT THE COMMISSION MAY IN THOSE CIRCUMSTANCES IMPOSE TWO FINES TO BE CALCULATED SEPARATELY .

29 IT FOLLOWS THAT THE APPLICANT ' S SUBMISSION CONCERNING AN ALLEGED DOUBLE PENALTY IS UNFOUNDED AND THAT IT IS THEREFORE UNNECESSARY TO CONSIDER THE ADMISSIBILITY OF THE ACTION , IN SO FAR AS THE UNLAWFULNESS OF ARTICLE 12 IS CONCERNED .

30 THIS SUBMISSION MUST THEREFORE ALSO BE REJECTED .

THE FAILURE TO GIVE ADEQUATE REASONS

31 IT IS CLEAR FROM THE FOREGOING THAT THE SUBMISSION BASED ON THE FAILURE TO GIVE ADEQUATE REASONS DOES NOT DIFFER FROM THE SUBMISSIONS ON SUBSTANTIVE ISSUES CONSIDERED BY THE COURT .

THE AMOUNT OF THE FINE

32 IN ACCORDANCE WITH PARAGRAPH 16 ABOVE , THE FINE IMPOSED BY THE COMMISSION SHOULD BE REDUCED , SOLELY IN SO FAR AS IT RELATES TO THE PRODUCTION OF 10 548 TONNES IN EXCESS OF THE PRODUCTION QUOTAS FOR CATEGORY IA PRODUCTS . THE TOTAL FINE SHOULD THEREFORE BE FIXED AT 3 260 040 ECU .

COSTS

33 ACCORDING TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . HOWEVER , UNDER ARTICLE 69 ( 3 ), WHERE EACH PARTY SUCCEEDS ON SOME HEADS AND FAILS ON OTHERS , OR WHERE THE CIRCUMSTANCES ARE EXCEPTIONAL , THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART .

34 SINCE BOTH THE APPLICANT AND THE COMMISSION HAVE SUCCEEDED IN SOME OF THEIR SUBMISSIONS AND FAILED IN OTHERS , THEY SHOULD BEAR THEIR OWN COSTS .

ON THOSE GROUNDS ,

THE COURT ( FOURTH CHAMBER )

HEREBY :

1 . REDUCES THE FINE IMPOSED ON THE APPLICANT TO 3 260 040 ECU , OR HFL 8 490 318 ;

2.DISMISSES THE REMAINDER OF THE APPLICATION ;

3.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .