(aa)

In this respect it was alleged that the Commission should have examined the applicant's situation in the light of Article 14 of Decision No 1831/81 and adjusted its production quota. It was stated that the applicant was experiencing exceptional difficulties which made it impossible to adhere to the quotas. It had already had a serious crisis in 1977 as a result of extensive liabilities which had necessitated extensive recourse to the Cassa Integrazione Guadagni [income supplement fund] and led in 1978 to the conclusion of an out-of-court settlement.

It is true that the applicant, as it emphasizes, drew attention to that state of affairs even before the contested decision was adopted. I refer to its letter of 24 April 1981 to the Commission which it produced in earlier proceedings (Case 284/82 ( 4 )) in which inter alia it gave details of the sums still to be paid in respect of that settlement before the end of 1981. I also remind the Court of the applicant's letter of 9 December 1981, likewise produced in the earlier proceedings, in which it requested the Commission to adopt a decision under Article 14 of Decision No 2794/80 on account of the exceptional difficulties it was experiencing. Finally, I remind the Court of the applicant's letter of 17 December 1981 in which it contended once again that the reduction in production required of it would make it impossible to adhere to the settlement of 1978 and to continue to finance its production and in which it renewed its request, based on its extensive liabilities in respect of social insurance, for the application of Article 14 of Decision No 2794/80.

However, it is quite evident that such arguments cannot now be entertained in this case.

It is a well-established principle of the Court's case-law that it is not possible when challenging a decision to impose a fine to argue that the individual decision on which it is based and the failure to observe which is to be penalized is illegal. That was held by the Court as long ago as 1965 in its judgment in Case 36/64 ( 5 ); it was emphasized once again in its judgment in Case 265/82 ( 6 ) and was also referred to in its judgment in Case 10/83 ( 7 ) in relation to a case where the objection that a provision for the adjustment of the quota had not been applied was likewise not raised until the proceedings challenging the decision to impose a fine.

The applicant should therefore have sought to have the quotas adjusted under Article 14 of Decision No 1831/81 when it was notified of them, or should have done so at least when the Commission failed to respond to its second request (which may also be regarded as an implied application under Article 14 of Decision No 1831/81, adjusting on 1 February 1982 only the quota for the first quarter of 1981, as we heard in Case 284/82 ( 8 ) (which amounted without doubt to an implied rejection of the applicant's request in respect of the other quarters). As it failed to do so the decision fixing the quotas became final and is not now subject to review (even in relation to the fact that the restriction of the power to adjust the quotas contained in Article 14 of Decision No 1831/81 to undertakings whose total reference production is less than 60000 tonnes per year, of which the applicant is clearly not one, appears open to challenge).

(bb)

The first group of arguments also contains the applicant's reference to the fact that as early as 1977 it cut its workforce and reduced its production by closing down one rolling mill and restricting the production of a second. That fact has already been referred to in its letter of 18 May 1981 produced in Case 284/82 ( 8 ) and in its aforementioned letter of 17 December 1981. It also stated in the latter that its production was reduced by 40% because it was no longer possible to finance its previous production level.

The applicant adds the conclusion that the Commission should not have based its decision on the undertaking's production for the years from 1977 to 1980, in which production was considerably below the level of that in 1974 (as may be seen from its consumption of electricity and gas), but should have increased the reference production figure in accordance with Article 4 (5) of Decision No 2794/80 (particularly since the applicant made a profit in 1979) or Article 4 (3) thereof (in view of the applicant's below-average utilization of production facilities). Again, that is simply criticism by the applicant of the decisions fixing its quotas, a matte which likewise cannot be raised in proceedings relating to the imposition of a fine, since an application for such an increase made on 2 February 1983 is clearly out of time. (It is therefore possible to leave open the questions whether Article 6 of Decision No 1831/81 did in fact supersede Article 4 (5) of Decision No 2794/80, which the Commission disputes, whether the applicant could show a profit for 1979 and whether it cannot rightly be objected that the Commission was not in a position to know if the applicant's utilization of production facilities was more than 10 percentage points below the average rate of the other undertakings of the Community, because the applicant did not deliver a statement of its capacity for the years from 1977 to 1980.

(c)

That is sufficient to show that the main claim cannot be upheld.

(a)

With regard to the application for a reduction in the amount of the fine my submission may be brief because the only independent argument put forward in that respect was that enforcement of the decision to impose a fine would ruin the applicant and would render a positive conclusion to the proceedings before the Tribunale of Brescia impossible.

All that need be said in that connection has already been said in the opinion delivered in Case 234/82 ( 13 ). Substantial fines are essential for the effectiveness of the quota system. If no fine, or only a minimal fine, could be imposed where there were financial difficulties such efficacy would in fact no longer be secured. Further factors militating against admission of the arguments relied upon by the applicant are the fact that such a possibility would lead to discrimination and the fact that the rules would be difficult to apply in practice if the fines had to be adjusted to the financial situation of the undertaking in question. Moreover, that was evidently the view taken by the Court when it stated in its judgments in Cases 235/82 ( 14 ) and 10/83 ( 15 ) that the fact that payment of a fine would lead to the closure of a business did not justify a claim that the fine should be reduced.

Accordingly all that can be done by way of taking account of financial difficulties in paying a fine is to take advantage of the Commission's express willingness to grant a period within which to pay the fine if the existence of financial difficulties can be shown. The applicant has apparently not yet made an application to that effect,

(b)

My comments may be equally brief in relation to the alternative claim that the Court should grant an extension of the period for payment. Such a request could be granted only, if at all, in the context of proceedings for enforcement of a decision (if the Court were to suspend the operation of a decision, as appears to be possible under Article 89 of the Rules of Procedure). However, it may not be made in proceedings concerning a decision to impose a fine. That has already been made clear by the Court in its judgement in Case 235/82 ( 14 ) in which it was emphasized that the Court of Justice cannot issue instructions to the Commission to grant beneficial terms of payment.