1 TWELVE UNDERTAKINGS PRODUCING CONCRETE REINFORCEMENT BARS SUBMITTED APPLICATIONS , WHICH WERE RECEIVED AT THE REGISTRY OF THE COURT BETWEEN 14 JULY 1978 AND 26 MAY 1979 , SEEKING THE ANNULMENT AND IN THE ALTERNATIVE THE AMENDMENT OF THE INDIVIDUAL DECISIONS WHEREBY THE COMMISSION HAD IMPOSED UPON THEM FINES FOR INFRINGEMENTS OF GENERAL DECISION NO 962/77/ECSC OF 4 MAY 1977 FIXING MINIMUM PRICES FOR CERTAIN CONCRETE REINFORCEMENT BARS ( OFFICIAL JOURNAL L 114 , P . 1 ). ALL THOSE UNDERTAKINGS BASED THEIR APPLICATIONS ON ARTICLE 36 OF THE ECSC TREATY , RELYING IN THE FIRST PLACE ON THE ILLEGALITY OF GENERAL DECISION NO 962/77 WHICH THEY WERE ALLEGED NOT TO HAVE OBSERVED , AND , SECONDLY , ON A SERIES OF SUBMISSIONS CONCERNING THE INDIVIDUAL DECISIONS IMPOSING FINES .
2 BY AN ORDER OF 27 JULY 1979 THE COURT DECIDED PURSUANT TO ARTICLE 43 OF THE RULES OF PROCEDURE TO JOIN , FOR THE PURPOSES OF THE ORAL PROCEDURE , NINE OF THOSE CASES CONCERNING UNDERTAKINGS FROM THE BRESCIA REGION , NAMELY THE UNDERTAKINGS VALSABBIA ( 154/78 ), STEFANA FRATELLI ( 205/78 ), A.F.I.M . ( 206/78 ), ANTONIO STEFANA ( 226/78 ), DI DARFO ( 227/78 ), SIDER CAMUNA ( 228/78 ), RUMI ( 263/78 ), FERALPI ( 264/78 ) AND O.L.S . ( 39/79 ). AT THE HEARING ON 17 AND 18 OCTOBER 1979 THREE OTHER CASES WERE CALLED CONCERNING OTHER MANUFACTURERS OF CONCRETE REINFORCEMENT BARS , NAMELY THE UNDERTAKINGS MONTEREAU ( 31/79 ), MAXIMILIANSHUTTE ( 83/79 ) AND KORF INDUSTRIE ( 85/79 ). IN VIEW OF THE SIMILAR SUBJECT-MATTER AND RELATED NATURE OF THOSE TWELVE CASES , WHICH WERE CONFIRMED BY THE ORAL HEARINGS , THERE IS CAUSE TO JOIN THEM FOR THE PURPOSES OF THE JUDGMENT .
3 THE PARALLEL CONSIDERATIONS DEALT WITH IN THE COURSE OF THE WRITTEN PROCEDURE AND AT THE HEARING ALL CONCERN ONE OF THE TWO ASPECTS COMMON TO ALL THE CASES : THE RELIANCE ON THE ILLEGALITY OF THE GENERAL DECISION , PURSUANT TO THE THIRD PARAGRAPH OF ARTICLE 36 , AND THE ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION BROUGHT AGAINST THE INDIVIDUAL DECISIONS IMPOSING PECUNIARY SANCTIONS , UNDER THE SECOND PARAGRAPH OF ARTICLE 36 .
4 THE FIRST ASPECT RAISES THE QUESTION OF THE ADMISSIBILITY OF THE PLEA OF ILLEGALITY AND OF THE SUBMISSIONS OF MANIFEST FAILURE TO OBSERVE TREATY PROVISIONS AND MISUSE OF POWERS RELIED ON IN SUPPORT OF THAT PLEA . THEREFORE IT IS NECESSARY TO DISPOSE OF THIS PROBLEM AS A PRELIMINARY MATTER .
5 IT WILL THEN BE NECESSARY TO EXAMINE THE GROUNDS ON WHICH THE APPLICANTS IMPUGN THE LEGALITY OF GENERAL DECISION NO 962/77 , WHICH WILL HAVE TO BE EXAMINED BOTH WITH REGARD TO ARTICLE 61 , WHICH CONSTITUTES ITS LEGAL BASIS , WITH REGARD TO THE OTHER PROVISIONS OF THE ECSC TREATY AND IN THE LIGHT OF THE GENERAL PRINCIPLES OF LAW WHICH GOVERN THE INTERPRETATION AND APPLICATION OF THE SAID TREATY , AND , FINALLY , WITH REGARD TO ADHERENCE TO THE OBJECTIVES PRESUPPOSED BY THE USE OF THE POWERS WHICH THE COMMISSION EXERCISED IN ADOPTING THE SAID GENERAL DECISION .
6 ONLY AFTER THE LEGALITY OF THE GENERAL DECISION HAS BEEN EXAMINED WILL IT BE APPROPRIATE , WHERE NECESSARY , TO UNDERTAKE UNDER THE SECOND ASPECT , A STUDY OF THE INDIVIDUAL DECISIONS IMPOSING FINES . WITH REGARD TO THE LATTER , THE APPLICANTS , PLEADING FORCE MAJEURE , LEGITIMATE SELF-PROTECTION OR A STATE OF NECESSITY , ALL CLAIM JUSTIFYING CIRCUMSTANCES , AND IT WILL BE NECESSARY TO STUDY THE SCOPE OF THE LATTER IN COMMUNITY LAW AND THEIR POSSIBLE APPLICATION IN THE FIELD OF MINIMUM PRICES . IT WILL THEN BE NECESSARY TO CONSIDER WHETHER THE APPLICANTS WERE ABLE TO TAKE ADVANTAGE OF A LEGITIMATE OPTION TO ALIGN THEIR PRICES . FINALLY , IT WILL THEN BE POSSIBLE TO CONSIDER THE AMOUNT OF THE FINES THE IMPOSITION OF WHICH WAS THE CAUSE OF THESE ACTIONS .
PRELIMINARY CHAPTER
THE ADMISSIBILITY OF THE PLEA OF ILLEGALITY IN RELATION TO GENERAL DECISION NO 962/77 AND OF THE SUBMISSIONS AND ARGUMENTS RAISED BY THE APPLICANTS IN SUPPORT OF THE SAID PLEA
7 IT IS NECESSARY TO DISTINGUISH BETWEEN TWO ARGUMENTS PUT FORWARD BY THE COMMISSION IN ORDER TO DEMONSTRATE THE INADMISSIBILITY OF THE PLEA OF ILLEGALITY IN RELATION TO GENERAL DECISION NO 962/77 , RAISED BY ALL THE APPLICANTS . THE FIRST ARGUMENT , CONSTITUTING A GENERAL OBJECTION OF INADMISSIBILITY , PLEADED IN THE COMMISSION ' S WRITTEN CONCLUSIONS , CONCERNS ONLY THE CASES BROUGHT BY ANTONIO STEFANA ( 226/78 ), DI DARFO ( 227/78 ), SIDER CAMUNA ( 228/78 ) AND FERALPI ( 264/78 ). THE SECOND ARGUMENT , HOWEVER , CONCERNS ALL THE CASES IN WHICH , HAVING PLEADED ITS DISCRETIONARY POWER , THE COMMISSION CALLS IN QUESTION THE ADMISSIBILITY OF SUBMISSIONS WHICH WOULD ENTAIL AN EVALUATION BY THE COURT OF THE SITUATION RESULTING FROM ECONOMIC FACTS OR CIRCUMSTANCES . EVEN WHERE THAT ARGUMENT HAS NOT BEEN FORMALLY PLEADED , THE COURT MAY RAISE IT OF ITS OWN MOTION AS IT CONCERNS THE COURT ' S JURISDICTION . THESE TWO BRANCHES OF THE COMMISSION ' S ARGUMENT WILL HAVE TO BE EXAMINED SEPARATELY .
8 IT MAY BE OBSERVED THAT THE COMMISSION ' S FIRST ARGUMENT AMOUNTS TO A CONTENTION THAT THE APPLICANTS HAVE NOT PROVED THAT THE GENERAL DECISION INJURED THEIR INDIVIDUAL INTERESTS SPECIFICALLY AND DIRECTLY AND THAT THEREFORE , IN THE ABSENCE OF ANY INTEREST , THEY CANNOT CALL IN QUESTION THE LEGALITY OF THAT GENERAL DECISION .
9 IT IS NECESSARY TO DRAW A DISTINCTION BETWEEN , ON THE ONE HAND , AN INTEREST IN BRINGING PROCEEDINGS AGAINST AN INDIVIDUAL DECISION AND , ON THE OTHER HAND , AN INTEREST IN RAISING , IN THAT CONTEXT , A PLEA OF ILLEGALITY IN RELATION TO THE GENERAL DECISION WHICH CONSTITUTES THE LEGAL BASIS OF THE SAID INDIVIDUAL DECISION . IT IS BEYOND DOUBT THAT THE APPLICANTS MAY , BY MEANS OF AN ACTION IN WHICH THE COURT HAS UNLIMITED JURISDICTION UNDER THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY , ATTACK THE INDIVIDUAL DECISIONS IMPOSING PECUNIARY SANCTIONS ADDRESSED TO THEM . FURTHER , THE THIRD PARAGRAPH OF THAT ARTICLE PROVIDES THAT , IN SUPPORT OF SUCH AN ACTION , THEY MAY CONTEST THE LEGALITY OF THE GENERAL DECISIONS WHICH THEY ARE ALLEGED NOT TO HAVE OBSERVED ; BUT THEY MAY DO SO ONLY ' ' UNDER THE SAME CONDITIONS AS IN THE FIRST PARAGRAPH OF ARTICLE 33 ' ' , THAT IS TO SAY , IN THE FIRST PLACE , IN THE CIRCUMSTANCES IN WHICH A DECLARATION OF ILLEGALITY MAY BE SOUGHT , AND ON PROOF OF AN INTEREST IN TAKING LEGAL PROCEEDINGS . AS THE APPLICANTS HAVE PLEADED AN INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS , AN INFRINGEMENT OF THE LAW AND MISUSE OF POWERS , THEIR APPLICATIONS ARE ADMISSIBLE , SINCE THEIR PLEA OF ILLEGALITY CLEARLY MAKES SUBMISSIONS RELATING TO THE LEGALITY OF THE GENERAL DECISION , WHICH THEY ARE PERMITTED TO DO BY THE COMBINED EFFECTS OF ARTICLES 36 AND 33 . FURTHER , IT CANNOT BE DOUBTED THAT THEY HAVE AN INTEREST IN TAKING LEGAL PROCEEDINGS , SINCE THE APPLICATION OF THE DISPUTED GENERAL DECISION ON WHICH THE DECISIONS IMPOSING PECUNIARY SANCTIONS ARE BASED IS OF SUCH A NATURE AS TO ADVERSELY AFFECT THEIR INTERESTS . THEREFORE , ON THIS FIRST POINT , THE OBJECTION OF INADMISSIBILITY ENTERED BY THE COMMISSION MUST BE DISMISSED .
10 IN THE SECOND PLACE , THE REFERENCE IN ARTICLE 36 TO THE FIRST PARAGRAPH OF ARTICLE 33 CONCERNS IN PARTICULAR THE SECOND SENTENCE OF THAT PARAGRAPH , WHICH PROVIDES THAT ' ' THE COURT MAY NOT . . . EXAMINE THE EVALUATION OF THE SITUATION , RESULTING FROM ECONOMIC FACTS OR CIRCUMSTANCES , IN THE LIGHT OF WHICH THE HIGH AUTHORITY TOOK ITS DECISIONS OR MADE ITS RECOMMENDATIONS , SAVE WHERE THE HIGH AUTHORITY IS ALLEGED TO HAVE MISUSED ITS POWERS OR TO HAVE MANIFESTLY FAILED TO OBSERVE THE PROVISIONS OF THIS TREATY OR ANY RULE OF LAW RELATING TO ITS APPLICATION ' ' .
11 THE FIRST PART OF THE SECOND SENTENCE OF ARTICLE 33 THUS STATES THE LIMITS UPON THE POWER OF THE COURT , IN ITS EXAMINATION OF THE LEGALITY OF A MEASURE , TO REVIEW THE CHOICES OF ECONOMIC POLICY MADE BY THE COMMISSION ; THE SECOND PART REMOVES THOSE LIMITATIONS , PROVIDED THAT THE APPLICANT ALLEGES A MANIFEST FAILURE TO OBSERVE THE TREATY OR A MISUSE OF POWERS . ACCORDING TO THE CASE-LAW OF THE COURT ( JUDGMENT OF 21 MARCH 1955 IN CASE 6/54 GOVERNMENT OF THE KINGDOM OF THE NETHERLANDS V HIGH AUTHORITY OF THE ECSC ( 1954 TO 1956 ) ECR 103 ) ' ' ARTICLE 33 DOES NOT REQUIRE THAT THE OBJECTION RAISED BE SUPPORTED BY FULL PROOF IN ADVANCE ; THIS MOREOVER WOULD IMMEDIATELY ENTAIL THE ANNULMENT OF THE DECISION ' ' . THEREFORE , WHEN CONSIDERING THE ADMISSIBILITY OF THE ARGUMENTS INTENDED TO INDUCE THE COURT TO EXAMINE THE EVALUATION OF THE SITUATION RESULTING FROM THE ECONOMIC FACTS OR CIRCUMSTANCES OF THE CASE , IT IS NECESSARY AND SUFFICIENT THAT THE OBJECTIONS OF MANIFEST FAILURE OR MISUSE OF POWERS BE SUPPORTED BY APPROPRIATE EVIDENCE . A STRICTER REQUIREMENT WOULD AMOUNT TO CONFUSING THE ADMISSIBILITY OF THE ARGUMENT WITH THE PROOF OF ITS SUBSTANCE ; A MORE LIBERAL INTERPRETATION , WHEREBY THE MERE ASSERTION OF ONE OF THE CLAIMS REFERRED TO WOULD BE SUFFICIENT TO OPEN THE WAY TO REVIEW BY THE COURT OF THE ECONOMIC EVALUATION , WOULD REDUCE THAT CLAIM TO A MERE FORMALITY .
12 IN THIS CASE THE ARGUMENTS PURSUED IN THE COURSE OF THE WRITTEN AND ORAL PROCEDURES HAVE PROVIDED SUFFICIENT PROOF OF THE DIFFICULT NATURE OF THAT ISSUE TO COMPEL RECOGNITION OF THE FACT THAT THE GROUNDS RELIED ON ARE PRIMA FACIE SUPPORTED BY APPROPRIATE EVIDENCE . THAT FINDING IS SUFFICIENT , ON THIS POINT , TO RENDER THE ACTIONS ADMISSIBLE .
FIRST PART : THE LEGALITY OF GENERAL DECISION NO 962/77
CHAPTER 1 : WITH REGARD TO ARTICLE 61 OF THE ECSC TREATY
13 DECISION NO 962/77 WAS TAKEN ON THE BASIS OF ARTICLE 61 OF THE TREATY ; THE LEGALITY OF THE APPLICATION OF THAT ARTICLE IMPLIES COMPLIANCE WITH THE CONDITIONS OF FORM AND SUBSTANCE , WHICH MUST BE EXAMINED IN TURN .
SECTION 1 : COMPLIANCE WITH THE FORMAL CONDITIONS WHICH MUST BE OBSERVED WHEN A MEASURE IS ADOPTED UNDER ARTICLE 61
14 THE DECISION TO IMPOSE MINIMUM PRICES WITHIN THE COMMON MARKET WHICH MAY BE ADOPTED BY THE COMMISSION IS SUBJECT TO VARIOUS KINDS OF FORMAL CONDITIONS . FIRST , THAT DECISION MUST COMPLY WITH THE GENERAL CONDITIONS GOVERNING THE FORM OF ANY DECISION TAKEN UNDER THE ECSC TREATY , WHICH ARE LAID DOWN IN ARTICLES 5 AND 15 OF THE TREATY . SECONDLY , ARTICLE 61 ITSELF CONTAINS SPECIFIC REQUIREMENTS WHICH MUST BE SATISFIED BY THE STATEMENT OF REASONS ACCOMPANYING THE DECISIONS FOR WHICH THAT ARTICLE PROVIDES . FINALLY , ARTICLE 61 PRESCRIBES CERTAIN PARTICULAR FORMALITIES WHICH IT REQUIRES TO BE OBSERVED . THESE THREE SERIES OF CONDITIONS WILL BE EXAMINED IN TURN IN THE FOLLOWING THREE PARAGRAPHS .
PARAGRAPH 1 : COMPLIANCE WITH THE GENERAL CONDITIONS AS TO FORM ( ARTICLES 5 AND 15 OF THE TREATY )
15 ACCORDING TO ARTICLES 5 AND 15 OF THE ECSC TREATY , THE COMMUNITY MUST MAKE PUBLIC THE REASONS FOR ITS ACTION AND THE DECISIONS OF THE COMMISSION MUST STATE THE REASONS ON WHICH THEY ARE BASED AND REFER TO ANY OPINIONS WHICH WERE REQUIRED TO BE OBTAINED .
16 CERTAIN OF THE APPLICANTS SUBMIT THAT THE STATING OF REASONS CONSTITUTES A FUNDAMENTAL REQUIREMENT , ESPECIALLY IN THE CONTEXT OF A LEGISLATIVE MEASURE INVOLVING THE EXERCISE OF A DISCRETIONARY POWER . ACCORDING TO THEM , THE STATEMENT OF REASONS ACCOMPANYING DECISION NO 962/77 IS ' ' DISTORTED , INCOMPLETE AND INSUFFICIENT ' ' , AND NOT IN ACCORDANCE WITH THE AIMS OF THE TREATY . THE DECISION , IT IS ARGUED , RESTS ON A SERIES OF UNSUBSTANTIATED STATEMENTS AND FAILS TO TAKE INTO ACCOUNT THE ECONOMIC SITUATION AND THE CONDITIONS OF PRODUCTION OF THOSE APPLICANTS . ALSO , THE COMMISSION DID NOT MENTION THE FACT THAT THE CONSULTATIVE COMMITTEE REFERRED TO ARTICLE 54 AND NOT TO ARTICLE 61 AS A MEANS OF FINDING A SOLUTION TO THE CRISIS .
17 THE COMMISSION REJECTS THOSE ARGUMENTS , POINTING OUT THAT IN THE PREAMBLE TO THE DECISION THE STATEMENT OF REASONS OBSERVED THAT THE STEEL INDUSTRY HAD BEEN IN SERIOUS DIFFICULTIES FOR SOME YEARS AND THAT THE CONCRETE REINFORCEMENT BARS SECTOR WAS EXPERIENCING AN EVEN GREATER DETERIORATION THAN THE STEEL INDUSTRY IN GENERAL .
18 IT IS TRUE THAT THE GENERAL PROVISIONS OF ARTICLES 5 AND 15 OF THE TREATY LAY DOWN REQUIREMENTS WHICH MUST BE OBSERVED BY THE COMMISSION , BUT NEITHER THE FORM NOR THE EXTENT OF THOSE REQUIREMENTS IS SPECIFIED . ON A REASONABLE CONSTRUCTION , WHEN IT IS A QUESTION OF A MEASURE INTENDED TO APPLY GENERALLY , THOSE REQUIREMENTS OBLIGE THE COMMISSION TO MENTION IN THE REASONS ON WHICH ITS DECISION IS BASED THE SITUATION AS A WHOLE WHICH LED TO THE ADOPTION OF THE DECISION AND THE GENERAL OBJECTIVES WHICH IT SEEKS TO ATTAIN .
19 THEREFORE , THE COMMISSION CANNOT BE REQUIRED TO SPECIFY THE NUMEROUS , COMPLEX FACTS IN THE LIGHT OF WHICH THE DECISION WAS ADOPTED , AND A FORTIORI IT CANNOT BE REQUIRED TO PROVIDE A MORE OR LESS COMPLETE APPRAISAL THEREOF OR TO REFUTE THE OPINIONS EXPRESSED BY THE CONSULTATIVE BODIES .
20 THE STATEMENT OF THE REASONS ON WHICH DECISION NO 962/77 IS BASED SATISFIES THE REQUIREMENTS OF ARTICLES 5 AND 15 OF THE ECSC TREATY .
21 IN FACT , THAT STATEMENT OF REASONS STARTS BY NOTING THE EXISTENCE OF A STATE OF CRISIS IN THE STEEL INDUSTRY AND THE EFFECTS THEREOF ON PRICES ; IT MENTIONS THE FAILURE OF THE VOLUNTARY PLANNING OF DELIVERIES IN THE CONCRETE REINFORCEMENT BARS SECTOR AND IT INSISTS ON THE PARTICULAR DIFFICULTIES ENCOUNTERED BY THE MARKET FOR THAT PRODUCT .
22 THE COMPLAINT THAT THE STATEMENT OF REASONS DID NOT MENTION THE ECONOMIC SITUATION AND THE CONDITIONS OF PRODUCTION OF THE UNDERTAKINGS IN BRESCIA MUST BE DISMISSED ON THE GROUND THAT THE COMMISSION CONSIDERED MATTERS IN THE LIGHT OF THE SITUATION OF THAT SECTOR OF THE COMMUNITY INDUSTRY AS A WHOLE , IN VIEW OF THE GENERAL NATURE OF THE DECISION .
23 AS REGARDS THE PARTICULAR OBSERVATION CONCERNING THE FACT THAT CONSULTATIONS WITH THE CONSULTATIVE COMMITTEE TOOK PLACE IN THE CONTEXT OF ARTICLE 54 , RELATING TO COMMUNITY FINANCING OF UNDERTAKINGS ' INVESTMENT PROGRAMMES , INSTEAD OF IN THE CONTEXT OF ARTICLE 61 , THE RELEVANT INFORMATION IS INCOMPLETE , BEING BASED ON A RESOLUTION OF 17 MARCH 1977 OF THAT COMMITTEE , FAILING TO MENTION A LATER SESSION ON 19 APRIL 1977 , AT WHICH THE CONSULTATIVE COMMITTEE ADOPTED A FAVOURABLE ATTITUDE ON THE SPECIFIC QUESTION OF INTRODUCING MINIMUM PRICES FOR CONCRETE REINFORCEMENT BARS . BESIDES , THE LAST RECITAL OF THE PREAMBLE TO THE DECISION MENTIONS THE CONSULTATIONS WITH THE COUNCIL AND STUDIES CARRIED OUT IN CONJUNCTION WITH THE UNDERTAKINGS .
24 IT FOLLOWS FROM THESE FINDINGS THAT , ALTHOUGH THE STATEMENT OF REASONS GIVEN FOR DECISION NO 962/77 MAY HAVE BEEN CONCISE , IT WAS LEGALLY SUFFICIENT FOR A GENERAL DECISION AND THE REQUIREMENTS OF ARTICLES 5 AND 15 OF THE TREATY WERE SATISFIED .
PARAGRAPH 2 : COMPLIANCE WITH THE SPECIFIC REQUIREMENTS OF ARTICLE 61 AS TO THE STATEMENT OF REASONS
25 ARTICLE 61 PROVIDES THAT THE COMMISSION MAY ADOPT MINIMUM PRICES WITHIN THE COMMON MARKET ONLY IF IT FINDS THAT A MANIFEST CRISIS EXISTS OR IS IMMINENT AND THAT SUCH A DECISION IS NECESSARY TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 3 . IT PROVIDES FURTHER THAT IN FIXING PRICES , THE COMMISSION MUST TAKE INTO ACCOUNT THE NEED TO ENSURE THAT THE COAL AND STEEL INDUSTRIES AND THE CONSUMER INDUSTRIES REMAIN COMPETITIVE , IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN ARTICLE 3 ( C ). THOSE PROVISIONS OF ARTICLE 61 LAY DOWN THE CONDITIONS OF SUBSTANCE WHICH MUST BE SATISFIED BY THE DECISION TO FIX MINIMUM PRICES . HOWEVER , IT IS CLEAR THAT AS A RESULT THE REASONS GIVEN FOR THE DECISIONS MUST REFER TO THE FULFILMENT OF THOSE CONDITIONS , PRECISELY IN ORDER TO FACILITATE JUDICIAL REVIEW ON QUESTIONS OF SUBSTANCE .
26 THUS THE REASONS STATED FOR A DECISION FIXING MINIMUM PRICES MUST MENTION AND BRIEFLY GIVE EVIDENCE OF :
- THE EXISTENCE OR IMMINENCE OF A MANIFEST CRISIS ;
- THE NECESSITY FOR THE DECISION IN ORDER TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 3 ;
- THE MAINTENANCE OF THE COMPETITIVENESS OF THE PRODUCER AND CONSUMER INDUSTRIES IN FIXING THE PRICES .
27 DENYING THAT THE CONDITIONS OF SUBSTANCE WERE SATISFIED ( THIS ASPECT WILL BE CONSIDERED LATER ), THE APPLICANTS EMPHASIZE THE ALLEGED INSUFFICIENCY OF THE CORRESPONDING STATEMENT OF REASONS . CONSEQUENTLY , IT IS NECESSARY TO EXAMINE THAT STATEMENT .
28 THE EXISTENCE OF A MANIFEST CRISIS IS ALLEGED IN THE FIRST RECITAL OF THE PREAMBLE TO THE DECISION , IN WHICH THE COMMISSION STATES THAT THE STEEL INDUSTRY HAS BEEN IN SERIOUS DIFFICULTIES FOR SOME YEARS . IT DECLARES THAT SUPPLY IS IN CONSIDERABLE EXCESS OF DEMAND , THAT THE SHARE OF THE MARKET TAKEN BY IMPORTS HAS INCREASED SHARPLY AND THAT PRICES HAVE BEEN CUT TO WELL BELOW PRODUCTION COSTS . THE MENTION OF THOSE THREE ASPECTS OF THE CRISIS IS SUFFICIENT TO CONVEY AN IMPRESSION OF ITS SPECIAL CHARACTERISTICS AND THUS TO DEFINE IT ADEQUATELY FOR THE PURPOSES OF THE STATEMENT OF REASONS .
29 THAT THE DECISION WAS NECESSARY IN ORDER TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 3 IS PROCLAIMED BY THE FOURTH RECITAL , ON THE BASIS OF THE REASONS STATED IN THE SECOND AND THIRD RECITALS , THAT IS TO SAY THE PREVIOUS ATTEMPTS BY THE COMMISSION TO SECURE VOLUNTARY COMMITMENTS ON THE PART OF THE UNDERTAKINGS , THEIR FAILURE AND THE RESULTING DETERIORATION OF THE MARKET FOR CONCRETE REINFORCEMENT BARS AND OF THE FINANCIAL SITUATION OF THE UNDERTAKINGS . THAT ACCOUNT OF THE NECESSITY FOR THE DECISION IS SUFFICIENT TO PROVIDE A COHERENT STATEMENT OF REASONS ON THAT POINT .
30 FINALLY , WITH REGARD TO THE FIXING OF THE PRICES , THE NEED TO ENSURE THAT PRODUCER AND CONSUMER UNDERTAKINGS REMAIN COMPETITIVE IS REFERRED TO BY THE SIXTH RECITAL , WHICH EVINCES A CONCERN TO RETAIN ' ' FLEXIBILITY IN THE MARKET ' ' IN THE CHOICE OF BASIS PRICES EX BASING POINT AS MINIMUM PRICES , AND ALSO IN THE TENTH RECITAL , WHERE IT IS STATED THAT UNDERTAKINGS REMAIN FREE TO PUBLISH BASIS PRICES ABOVE THE MINIMUM PRICES SET . MOREOVER , IT MAY BE DEDUCED A CONTRARIO FROM THE ELEVENTH RECITAL THAT THERE EXISTS THE OPTION OF ALIGNMENT ON THE MOST FAVOURABLE COMMUNITY PRICES , PROVIDED THAT THEY ARE IN ACCORDANCE WITH THE DECISION ON MINIMUM PRICES . ON THIS POINT , ALTHOUGH THE STATEMENT OF REASONS COULD DOUBTLESS HAVE BEEN MORE EXPLICIT , IT IS NONE THE LESS SUFFICIENT .
31 THUS THE SPECIFIC REQUIREMENTS LAID DOWN BY ARTICLE 61 WITH REGARD TO THE STATING OF REASONS WERE COMPLIED WITH TO A DEGREE WHICH WAS SUFFICIENT IN LAW .
PARAGRAPH 3 : COMPLIANCE WITH THE SPECIAL FORMAL CONDITIONS LAID DOWN BY ARTICLE 61
32 UNDER ARTICLE 61 THE DRAFTING OF A DECISION CONCERNING THE INTRODUCTION OF A PRICES SYSTEM WHICH HAS THE EFFECT OF TEMPORARILY SUSPENDING THE NORMAL RULES GOVERNING THE WORKING OF THE ECSC COMMON MARKET IS SURROUNDED BY PROCEDURAL REQUIREMENTS DESIGNED TO ENSURE THAT SUCH MEASURES ARE ADOPTED CIRCUMSPECTLY AND WITH CAUTION , WHICH REQUIREMENTS MUST BE REGARDED AS ESSENTIAL AND WHICH THE COURT MUST THEREFORE EXAMINE WITH A VIEW TO ASCERTAINING WHETHER THEY WERE OBSERVED .
33 ARTICLE 61 REQUIRES IN THE FIRST PLACE THAT THE COMMISSION ' S DECISION FIXING MINIMUM PRICES BE TAKEN :
1 . ON THE BASIS OF STUDIES MADE JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS , IN ACCORDANCE WITH THE FIRST PARAGRAPH OF ARTICLE 46 AND THE THIRD PARAGRAPH OF ARTICLE 48 ;
2 . AFTER CONSULTING THE CONSULTATIVE COMMITTEE ; AND
3 . AFTER CONSULTING THE COUNCIL ,
AS TO THE ADVISABILITY OF SUCH A MEASURE AND THE PRICE LEVEL TO BE DETERMINED .
34 THE COURT NOTED ABOVE THAT MENTION WAS MADE IN THE LAST RECITAL OF THE PREAMBLE TO DECISION NO 962/77 OF THE RELEVANT STUDIES AND CONSULTATIONS . ACCORDING TO THE APPLICANTS , AN ESSENTIAL PROCEDURAL REQUIREMENT WAS NONE THE LESS INFRINGED BECAUSE THE SAID STUDIES AND CONSULTATIONS WERE NOT CARRIED OUT WITH SUFFICIENT CARE .
35 ( 1 ) THE ITALIAN APPLICANTS CONSIDER THAT , IN THE FIRST PLACE , THE COMMISSION DID NOT UNDERTAKE SERIOUS PRELIMINARY STUDIES , WHICH WOULD HAVE REVEALED IN PARTICULAR THAT 50% OF THE CONCRETE REINFORCEMENT BARS SECTOR WAS NOT IN CRISIS AND , SECONDLY , THAT IF STUDIES WERE MADE THEY WERE NOT MADE JOINTLY WITH THEM .
36 THE COMMISSION POINTS OUT THAT BY VIRTUE OF THE PROVISIONS OF THE ECSC TREATY , IN PARTICULAR ARTICLES 46 AND 48 THEREOF , IT CONDUCTS A CONTINUOUS STUDY OF MARKET AND PRICE TRENDS AND THAT UNDERTAKINGS ARE REQUIRED TO CONVEY TO IT PERIODICALLY INFORMATION ON THE AMENDMENT OF THEIR PRICE-LISTS AND THE LEVEL OF THEIR IMPORTS AND EXPORTS . BUT , IN ADDITION , IT HAS SINCE 1975 UNDERTAKEN SPECIFIC STUDIES CONCERNING PRICES ; THUS IN A COMMUNICATION OF 2 MAY 1975 ADDRESSED TO ALL STEELMAKING UNDERTAKINGS ( OFFICIAL JOURNAL C 100 , P . 1 ), THE COMMISSION , REFERRING TO THE DETERIORATION IN PRICES FOR IRON AND STEEL PRODUCTS IN THE COMMUNITY AND THE CONSEQUENT EFFECTS ON EMPLOYMENT , INFORMED THE UNDERTAKINGS THAT IT WAS TO STEP UP ITS CHECKS WITH REGARD TO OBSERVANCE OF THE PRICE RULES CONTAINED IN THE TREATY AND THAT IT WOULD KEEP A PARTICULARLY CLOSE EYE ON THE TRENDS IN STEEL IMPORTS INTO THE COMMUNITY AND THEIR EFFECTS ON PRICE LEVELS . FURTHER , THE COMMISSION REFERS TO ITS DECISION NO 1272/75 OF 16 MAY 1975 ( OFFICIAL JOURNAL L 130 , P . 7 ) ON THE OBLIGATION OF UNDERTAKINGS TO MAKE MONTHLY RETURNS OF THEIR PLANNED , ESTIMATED OR ACTUAL PRODUCTION OF CRUDE STEEL , ITS DECISION NO 1870/75 OF 17 JULY 1975 ( OFFICIAL JOURNAL L 190 , P . 26 ) RELATING TO THE REQUIREMENT THAT STEELMAKING UNDERTAKINGS DISCLOSE CERTAIN INFORMATION ON EMPLOYMENT ( NUMBER OF PERSONNEL EMPLOYED , RECRUITMENTS , REDUNDANCIES , MEASURES TO REDUCE WORKING TIME ), AND ITS DECISION NO 3017/76 OF 8 DECEMBER 1976 ( OFFICIAL JOURNAL L 344 , P . 24 ), CONCERNING THE OBLIGATION OF PRODUCER UNDERTAKINGS TO MAKE MONTHLY RETURNS , AS PROMPTLY AS POSSIBLE , OF DELIVERIES OF THE MAIN STEEL PRODUCTS , INCLUDING CONCRETE REINFORCEMENT BARS , EFFECTED BY THEM WITHIN THE COMMON MARKET AND OF THEIR EXPORTS TO NON-MEMBER COUNTRIES . IN THE FIELD OF PRICES , THE COMMISSION HAD CONTEMPLATED THE INTRODUCTION OF A MINIMUM PRICES SYSTEM AND ON 19 JANUARY 1976 THE CONSULTATIVE COMMITTEE DISCUSSED THE ADVISABILITY OF SUCH ACTION ( DOC . NO A/430/76 F ), WHICH WAS SUPPORTED BY A MAJORITY OF THE VOTES CAST ; IN THE LIGHT OF THAT VOTE EARLY IN 1976 , AND OWING ALSO TO A BRIEF IMPROVEMENT IN THE CONJUNCTURAL SITUATION , THE COMMISSION DID NOT PERSEVERE WITH THAT COURSE OF ACTION AND DECIDED THAT SATISFACTORY RESULTS COULD BE OBTAINED THROUGH NON-COMPULSORY INTERVENTION , GUIDING PRODUCTION AND PRICES POLICY BY MEANS OF VOLUNTARY COMMITMENTS UNDERTAKEN IN THE CONTEXT OF THE FORECASTING PROGRAMMES . IN THE CONTEXT OF THAT ECONOMIC CHOICE , THE COMMISSION PUBLISHED A GENERAL COMMUNICATION ( OFFICIAL JOURNAL C 303 OF 23 DECEMBER 1976 , P . 3 ) DESCRIBING THE LINES OF ACTION WHICH IT CONTEMPLATED FOLLOWING . THAT COMMUNICATION COVERED ALL ASPECTS OF THE PROBLEM : ANALYSIS AND MONITORING OF THE MARKET , INVESTMENTS , SPECIFIC CRISIS MEASURES RELATING TO PRODUCTION AND PRICES , RELATIONS BETWEEN THE COMMUNITY AND NON-MEMBER COUNTRIES ON THE STEEL MARKET AND SOCIAL AND REGIONAL PROBLEMS . THAT COMMUNICATION WAS FOLLOWED BY ANOTHER ISSUED PURSUANT TO ARTICLE 46 OF THE ECSC TREATY ( OFFICIAL JOURNAL C 304 OF 24 DECEMBER 1976 , P . 5 ) IN WHICH , AFTER RECALLING THAT IN ITS FORWARD PROGRAMME FOR THE FIRST QUARTER OF 1977 IT HAD MADE FORECASTS FOR DELIVERIES SUBDIVIDED INTO SIX CATEGORIES OF PRODUCTS , INCLUDING CONCRETE REINFORCEMENT BARS , THE COMMISSION ANNOUNCED ITS INTENTION TO MAKE DETAILED ESTIMATES OF DELIVERIES OF THOSE PRODUCTS FOR THE INTERIOR OF THE COMMUNITY , DIVIDING THEM BY UNDERTAKINGS OR GROUPS OF UNDERTAKINGS WHICH WOULD BE INVITED TO SIGN AN ' ' INDIVIDUAL AND CONFIDENTIAL ' ' ENGAGEMENT TO LIMIT VOLUNTARILY THEIR DELIVERIES TO THE LEVEL WHICH WOULD BE COMMUNICATED TO THEM .
37 IT EMERGES FROM THIS ACCOUNT OF THE COMMISSION ' S ACTION PRIOR TO DECISION NO 962/77 THAT THE IRON AND STEEL UNDERTAKINGS COULD NOT HAVE BEEN UNAWARE OF THE SPECIFIC MEASURES WHICH THE COMMISSION INTENDED TO TAKE AND THAT THUS INFORMED THEY WERE IN A POSITION , EITHER INDIVIDUALLY OR THROUGH THEIR TRADE ORGANIZATIONS , TO MAKE THEIR SUGGESTIONS KNOWN TO IT .
38 FINALLY , THE INDUSTRIAL ASSOCIATION OF THE PRODUCERS FROM BRESCIA , WHICH REPRESENTS 40 TO 50 UNDERTAKINGS , WAS ON SEVERAL OCCASIONS INVITED TO PREPARATORY WORKING MEETINGS IN WHICH TWO OF THEIR REPRESENTATIVES TOOK PART , NOTABLY TO THE MEETING ON 25 MARCH 1977 DURING WHICH A DOCUMENT ON THE PRODUCTION COSTS OF UNDERTAKINGS , THE PROBLEM OF PRICE LISTS , THE OBJECTIVE SOUGHT AND THE METHOD OF CALCULATING PRICES WAS DISCUSSED .
39 ( 2 ) THE CONSULTATIVE COMMITTEE WAS CONSULTED ON 19 APRIL 1977 AS TO THE ADVISABILITY OF INTRODUCING MINIMUM PRICES FOR CONCRETE REINFORCEMENT BARS WITHIN THE COMMON MARKET AND ON THE LEVEL OF THOSE PRICES ( DOC . NO A/1730/77 F .) AND THE DEBATE PRODUCED BROAD AGREEMENT ON THE NEED TO TAKE SUCH A MEASURE ; ONLY THE GERMAN PRODUCERS AND CONSUMERS OPPOSED IT .
40 ( 3 ) THE COUNCIL WAS CONSULTED ON THE SAME QUESTIONS AND APPROVED THE MEASURE UNANIMOUSLY .
41 FURTHER , THE EUROPEAN PARLIAMENT PASSED A RESOLUTION SUPPORTING THE POSITION OF THE COMMISSION IN TRYING TO OVERCOME THE EUROPEAN STEEL CRISIS ( OFFICIAL JOURNAL C 118 OF 16 MAY 1977 , P . 56 ).
42 IT FOLLOWS FROM ALL THOSE CONSIDERATIONS THAT THE PROCEDURAL REQUIREMENTS IMPOSED UPON THE COMMISSION BY THE TREATY WERE OBSERVED AND THAT THERE WAS NO DISREGARD OF ANY REQUIREMENT SUCH AS WOULD ENTAIL THE INVALIDITY OF THE MEASURE .
SECTION 2 : COMPLIANCE WITH THE CONDITIONS OF SUBSTANCE LAID DOWN BY ARTICLE 61
43 IN ORDER TO FIX MINIMUM PRICES IT IS NECESSARY THAT THE COMMISSION SHOULD : ( 1 ) RECOGNIZE THE EXISTENCE OR IMMINENCE OF A MANIFEST CRISIS , ( 2 ) RECOGNIZE THE NEED TO ADOPT SUCH A DECISION IN ORDER TO ATTAIN THE OBJECTIVES SET OUT IN ARTICLE 3 , AND ( 3 ) TAKE INTO ACCOUNT THE NEED TO ENSURE THAT THE STEEL INDUSTRY AND THE CONSUMER INDUSTRIES REMAIN COMPETITIVE , IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN ARTICLE 3 ( C ).
PARAGRAPH 1 : THE EXISTENCE OR IMMINENCE OF A MANIFEST CRISIS
44 THE ITALIAN APPLICANTS MAINTAIN THAT THE SMALL AND MEDIUM-SIZED UNDERTAKINGS MANUFACTURING CONCRETE REINFORCEMENT BARS WERE NOT IN A STATE OF CRISIS AT THE BEGINNING OF 1977 , BY VIRTUE OF THEIR STRUCTURE , THEIR DEGREE OF SPECIALIZATION AND THEIR CHOICE OF TECHNIQUE .
45 THOSE APPLICANTS MAINTAIN THAT THE JUDGMENT TO BE MADE ON THE EXISTENCE OF A ' ' CRISIS ' ' SHOULD COVER NOT ONLY THE DIFFICULTIES ENCOUNTERED BY THE LARGE IRON AND STEEL PRODUCING UNDERTAKINGS IN THE NORTH , BUT ALSO THE SATISFACTORY WORKING OF MORE THAN A THIRD OF THE CONCRETE REINFORCEMENT BARS SECTOR . THEY STATE THAT THAT SITUATION WAS A CONSEQUENCE OF THE EFFECTS OF FREE COMPETITION FROM WHICH THE MOST ADVANCED UNDERTAKINGS BENEFITED , LARGELY AS A RESULT OF THE TECHNOLOGICAL LEVEL WHICH THEY HAD ATTAINED , BUT THAT THERE WAS NO QUESTION OF A STATE OF CRISIS .
46 THE COMMISSION , FOR ITS PART , BEGINS BY CONSIDERING THE SITUATION OF THE IRON AND STEEL INDUSTRY WITHIN THE COMMUNITY AS A WHOLE .
47 IT WAS IN THE LIGHT OF THE ECONOMIC CIRCUMSTANCES AND OF THE STUDIES CARRIED OUT THAT , TAKING INTO CONSIDERATION THE RECESSION IN THE PRODUCTION OF CONCRETE REINFORCEMENT BARS IN THE COMMUNITY AS A WHOLE AND CONCLUDING THAT THE IRON AND STEEL INDUSTRY HAD BEEN IN SERIOUS DIFFICULTIES FOR SEVERAL YEARS ENTAILING THE LOSS OF 50 000 JOBS BETWEEN JULY 1975 AND THE END OF 1977 , THAT SUPPLY WAS CONTINUALLY EXCEEDING DEMAND , THAT THE SHARE OF THE MARKET TAKEN BY IMPORTS HAD GREATLY INCREASED AND THAT PRICES HAD BEEN REDUCED WELL BELOW PRODUCTION COSTS , THE COMMISSION , REALIZING THE CONSEQUENCES OF THOSE FACTORS , RECOGNIZED THE EXISTENCE OF A MANIFEST PRODUCTION CRISIS .
48 THE COURT FINDS THAT THE ESSENTIAL FEATURE OF THE ITALIAN UNDERTAKINGS ' APPLICATIONS LIES IN THEIR ASSESSMENT OF DECISION NO 962/77 EXCLUSIVELY IN THE LIGHT OF THE SITUATION OF THE SMALL-SCALE STEELWORKS IN ITALY .
49 THE COMMISSION IS INDEED UNDER AN OBLIGATION BY VIRTUE OF ARTICLE 3 OF THE TREATY TO ACT IN THE COMMON INTEREST , BUT THAT DOES NOT MEAN THAT IT MUST ACT IN THE INTEREST OF ALL THOSE INVOLVED WITHOUT EXCEPTION , FOR ITS FUNCTION DOES NOT ENTAIL AN OBLIGATION TO ACT ONLY ON CONDITION THAT NO INTEREST IS AFFECTED . ON THE OTHER HAND , WHEN TAKING ACTION IT MUST WEIGH UP THE VARIOUS INTERESTS , AVOIDING HARMFUL CONSEQUENCES WHERE THE DECISION TO BE TAKEN REASONABLY SO PERMITS . THE COMMISSION MAY , IN THE GENERAL INTEREST , EXERCISE ITS DECISION-MAKING POWER ACCORDING TO THE REQUIREMENTS OF THE SITUATION , EVEN TO THE DETRIMENT OF CERTAIN INDIVIDUAL INTERESTS .
50 CONSEQUENTLY , BY ANALYSING THE IMBALANCE BETWEEN PRODUCTION AND CONSUMPTION OF CONCRETE REINFORCEMENT BARS AS A STATE OF MANIFEST CRISIS , OBSERVING THAT THE GERMAN UNDERTAKINGS CONFIRMED THAT VIEW AND THAT THE ITALIAN UNDERTAKINGS WHICH DISPUTED IT WERE NOT ABLE TO ADDUCE SUFFICIENT PROOF OF THEIR ARGUMENT , THE COMMISSION DID NOT BASE ITS DECISION ON MATERIALLY INACCURATE FACTS OR CIRCUMSTANCES , OR ON A MISTAKE OF LAW , OR ON A MANIFESTLY ERRONEOUS ASSESSMENT OF THE SITUATION . THUS IT WAS ENTITLED TO RECOGNIZE THE EXISTENCE OF A MANIFEST CRISIS .
PARAGRAPH 2 : COMPLIANCE WITH ARTICLE 3 OF THE TREATY
51 THE APPLICANTS HAVE INSISTED THAT IN THEIR OPINION THE COMMISSION SIMULTANEOUSLY DISREGARDED ALL THE OBJECTIVES OF ARTICLE 3 LISTED IN PARAGRAPHS ( A ) TO ( G ), IN PARTICULAR PARAGRAPH ( C ) TO THE EXTENT TO WHICH THAT PROVISION REQUIRES IT TO ENSURE THE ESTABLISHMENT OF THE LOWEST PRICES , AN OBJECTIVE WHICH RUNS COUNTER TO THE FIXING OF MINIMUM PRICES . DECISION NO 962/77 IS , THEY ADD , A PROTECTIONIST MEASURE WHICH IS CONTRARY TO ECONOMIC PROGRESS , SINCE THE COMMISSION REQUIRES THAT HIGHER PRICES BE CHARGED FOR THE SAKE OF UNDERTAKINGS WHICH HAVE HIGHER PRODUCTION COSTS .
52 BY CALLING FOR THE SIMULTANEOUS OBSERVANCE OF PRACTICALLY ALL THE OBJECTIVES SET OUT IN ARTICLE 3 , THE APPLICANTS ARE POSTULATING AN EXCESSIVE AND CONTRADICTORY REQUIREMENT .
53 IN ITS JUDGMENTS OF 13 JUNE 1958 IN CASE 9/56 MERONI & CO V HIGH AUTHORITY ( 1957 AND 1958 ) ECR 133 AND OF 21 JUNE 1958 IN CASE 8/57 GROUPEMENT DES HAUTS FOURNEAUX ET ACIERIES BELGES V HIGH AUTHORITY ( 1957 AND 1958 ) ECR 245 , THE COURT NOTED THAT AS ARTICLE 3 LAYS DOWN NO FEWER THAN EIGHT DISTINCT OBJECTIVES IT IS NOT CERTAIN THAT THEY CAN ALL BE SIMULTANEOUSLY PURSUED IN THEIR ENTIRETY AND IN ALL CIRCUMSTANCES .
54 THE COURT INFERRED FROM THAT THAT IN PURSUIT OF THE OBJECTIVES LAID DOWN IN ARTICLE 3 OF THE TREATY , THE COMMISSION MUST PERMANENTLY RECONCILE ANY CONFLICT WHICH MAY BE IMPLIED BY THOSE OBJECTIVES WHEN CONSIDERED INDIVIDUALLY , AND WHEN SUCH CONFLICT ARISES MUST GRANT SUCH PRIORITY TO ONE OR OTHER OF THE OBJECTIVES LAID DOWN IN ARTICLE 3 AS APPEARS NECESSARY HAVING REGARD TO THE ECONOMIC FACTS AND CIRCUMSTANCES IN THE LIGHT OF WHICH THE COMMISSION ADOPTED ITS DECISION .
55 IF THE NEED FOR A COMPROMISE BETWEEN THE VARIOUS OBJECTIVES IS IMPERATIVE IN A NORMAL MARKET SITUATION , IT MUST BE ACCEPTED A FORTIORI IN A STATE OF CRISIS JUSTIFYING THE ADOPTION OF EXCEPTIONAL MEASURES WHICH DEROGATE FROM THE NORMAL RULES GOVERNING THE WORKING OF THE COMMON MARKET IN STEEL AND WHICH CLEARLY ENTAIL NON-COMPLIANCE WITH CERTAIN OBJECTIVES LAID DOWN BY ARTICLE 3 , IF ONLY THAT OBJECTIVE ( CONTAINED IN PARAGRAPH ( C )) WHICH REQUIRES THAT THE ESTABLISHMENT OF THE LOWEST PRICES BE ENSURED .
56 BY VIRTUE OF ITS DISCRETIONARY POWER THE COMMISSION DECIDED TO PURSUE THREE OBJECTIVES :
- TO ENABLE THE UNDERTAKINGS TO OBTAIN A MINIMUM LEVEL OF FINANCIAL RESOURCES IN ORDER TO CARRY OUT NECESSARY RE-STRUCTURING , IN APPLICATION OF ARTICLE 3 ( C );
- TO MAINTAIN THE LEVEL OF EMPLOYMENT SO AS TO AVOID A DETERIORATION IN THE WORKING CONDITIONS AND STANDARDS OF LIVING OF THE WORKERS , IN APPLICATION OF ARTICLE 3 ( E );
- IN THE LONG TERM , TO MAINTAIN SUFFICIENT PRODUCTION CAPACITY , IN APPLICATION OF ARTICLE 3 ( A );
THOSE BEING OBJECTIVES WHICH IT FOUND TO BE JUSTIFIED BY THE GENERAL INTERESTS OF THE TRADE IN VIEW OF THE ECONOMIC CIRCUMSTANCES AT THE RELEVANT TIME . THUS IT WAS PROPER FOR THE COMMISSION , FACED WITH THE STATE OF CRISIS IN THE CONCRETE REINFORCEMENT BARS INDUSTRY , WITHIN THE DECISION-MAKING FRAMEWORK CREATED FOR THE PURPOSE OF IMPLEMENTING AN IRON AND STEEL POLICY DESIGNED TO ALLEVIATE A MANIFEST STATE OF CRISIS , TO DETERMINE THE OBJECTIVES WHICH IT CONSIDERED APPROPRIATE FOR THE ESTABLISHMENT OF A SOCIAL AND STRUCTURAL PROGRAMME IN ACCORDANCE WITH THE SCALE OF THE PROBLEMS WHICH HAD ARISEN .
57 ALL THESE CONSIDERATIONS LEAD TO THE CONCLUSION THAT THERE EXISTS SUFFICIENT EVIDENCE TO MAINTAIN THAT - IN THE CIRCUMSTANCES OF THE CASE AND AT THE TIME WHEN THE DECISION WAS TAKEN - THAT DECISION COMPLIED WITH THE OBJECTIVES SET OUT IN ARTICLE 3 WHICH ACCORDED WITH THE ECONOMIC AND SOCIAL POLICY CHOSEN BY THE COMMISSION .
58 FOR THE PROJECTED DECISION TO BE LAWFUL IT IS ALSO NECESSARY THAT THE COMMISSION SHOULD HAVE RECOGNIZED THE NEED TO TAKE SUCH A DECISION IN ORDER TO OBTAIN THE OBJECTIVES SET OUT IN ARTICLE 3 .
59 THE ANTI-CRISIS POLICY IN THE IRON AND STEEL SECTOR IS BASED ON THE FUNDAMENTAL PRINCIPLE OF SOLIDARITY BETWEEN DIFFERENT UNDERTAKINGS , PROCLAIMED IN THE PREAMBLE TO THE ECSC TREATY AND GIVEN PRACTICAL EXPRESSION IN NUMEROUS ARTICLES , SUCH AS ARTICLE 3 ( PRIORITY ACCORDED TO THE COMMON INTEREST , WHICH PRESUPPOSES THE DUTY OF SOLIDARITY ), ARTICLE 49 ET SEQ . ( A SYSTEM OF FINANCING THE COMMUNITY BASED ON LEVIES ), ARTICLE 55 ( 2 ) ( GENERAL AVAILABILITY OF THE RESULTS OF RESEARCH IN THE TECHNICAL AND SOCIAL FIELDS ), ARTICLE 56 ( RECONVERSION AND READAPTATION AIDS ) AND ARTICLE 53 ( THE MAKING OF FINANCIAL ARRANGEMENTS ).
60 IN PURSUANCE OF THAT PRINCIPLE THE COMMISSION CONSIDERED TAKING NON-COMPULSORY MEASURES DESIGNED TO BRING THE SUPPLY OF IRON AND STEEL PRODUCTS MORE INTO LINE WITH DEMAND ; THOSE MEASURES - AS ALREADY EXPLAINED - RELIED INTER ALIA UPON COMMITMENTS BY COMMUNITY STEEL UNDERTAKINGS TO ADHERE TO THE DELIVERY LIMITS SET BY THE COMMISSION AND NOTIFIED TO EACH UNDERTAKING OR GROUP OF UNDERTAKINGS . IN CONTRAST TO THE POSITION FOR OTHER ROLLED PRODUCTS , FOR WHICH VOLUNTARY COMMITMENTS TO REDUCE PRODUCTION COVERED 90% OF THE AMOUNT FIXED BY THE COMMISSION , ONLY 50% OF THE DELIVERY TARGET SET FOR CONCRETE REINFORCEMENT BARS WAS COVERED BY VOLUNTARY COMMITMENTS , WHICH FIGURE WAS CLEARLY INSUFFICIENT TO ENABLE THE SECTOR TO ACHIEVE THE RECOVERY HOPED FOR . THAT LED TO A MORE PRONOUNCED DETERIORATION OF THE MARKET FOR CONCRETE REINFORCEMENT BARS . THUS THE NEED FOR A COMPULSORY SYSTEM OF PRICES FOR CONCRETE REINFORCEMENT BARS WAS DEMONSTRATED BY THE FAILURE OF THE SYSTEM OF VOLUNTARY COMMITMENTS AIMED AT REDUCING PRODUCTION , WHILST FOR THE OTHER ROLLED PRODUCTS THE COMMISSION PUBLISHED GUIDANCE PRICES ( OFFICIAL JOURNAL L 114 OF 5 MAY 1977 , P . 18 ).
61 CERTAIN APPLICANTS , IN PARTICULAR RUMI ( CASE 263/78 ), CONSIDER THAT THE COMMISSION MADE AN ERRONEOUS ASSESSMENT OF THE ECONOMIC SITUATION AMOUNTING TO A MANIFEST FAILURE TO OBSERVE THE RULES OF THE TREATY BY INTRODUCING A MINIMUM PRICES SCHEME WHEN ' ' IT SHOULD HAVE HAD RECOURSE TO ARTICLE 58 OF THE TREATY AND SET UP A SCHEME OF PRODUCTION QUOTAS IN CONJUNCTION WITH A RANGE OF ANCILLARY MEASURES ' ' .
62 IN ORDER TO REJECT THIS COMPLAINT OF FAILURE TO INTERVENE DIRECTLY IN THE FIELD OF PRODUCTION , IT IS SUFFICIENT TO NOTE THAT ARTICLE 58 MAKES THE INTRODUCTION OF A BINDING SYSTEM OF PRODUCTION QUOTAS CONDITIONAL UPON A FINDING THAT THE MEANS OF ACTION PROVIDED FOR IN ARTICLE 57 ARE NOT SUFFICIENT TO DEAL WITH THE CRISIS . THOSE INDIRECT MEANS OF ACTION INCLUDE INTERVENTION IN REGARD TO PRICES AS PROVIDED FOR IN THE TREATY AND THEREFORE THE INTRODUCTION OF A MINIMUM PRICES SCHEME UNDER ARTICLE 61 ( B ).
63 THUS , WITHOUT ITS BEING NECESSARY TO HAVE RECOURSE TO THE ARGUMENT THAT IN THIS FIELD THE COMMISSION HAS A WIDE DISCRETIONARY POWER AS REGARDS ECONOMIC CHOICES WHICH MAY BE CHALLENGED ONLY IF IT HAS MISUSED ITS POWERS OR MANIFESTLY FAILED TO OBSERVE THE PROVISIONS OF THE TREATY , IT IS SUFFICIENT TO OBSERVE , IN ORDER TO DECLARE THIS SUBMISSION UNFOUNDED , THAT THE COMMISSION COULD BE REQUIRED TO INTRODUCE A SYSTEM OF PRODUCTION QUOTAS ONLY IF IT WERE ESTABLISHED THAT THE CRISIS COULD NOT BE REMEDIED BY MEANS OF , INTER ALIA , INTERVENTION IN REGARD TO PRICES .
64 CONSEQUENTLY , BY WEIGHING THE DISADVANTAGES OF THE MINIMUM PRICES SCHEME AGAINST THE NECESSITY FOR THE MEASURE ADOPTED IN ORDER TO ATTAIN THE VARIOUS OBJECTIVES LAID DOWN BY ARTICLE 3 , THE COMMISSION DID NOT EXCEED ITS DISCRETIONARY POWER IN OPTING FOR THE SYSTEM CHOSEN .
PARAGRAPH 3 : THE LEVEL OF THE PRICES AS REGARDS COMPLIANCE WITH THE LAST PART OF ARTICLE 61 OF THE TREATY
65 THE LAST CONDITION CONCERNING THE PROPRIETY OF A DECISION ON MINIMUM PRICES RELATES TO THE FIXING OF THE LEVEL THEREOF .
66 THE PENULTIMATE PARAGRAPH OF ARTICLE 61 PROVIDES THAT : ' ' IN FIXING PRICES , THE ( COMMISSION ) SHALL TAKE INTO ACCOUNT THE NEED TO ENSURE THAT THE COAL AND STEEL INDUSTRIES AND THE CONSUMER INDUSTRIES REMAIN COMPETITIVE , IN ACCORDANCE WITH THE PRINCIPLES LAID DOWN IN ARTICLE 3 ( C ) ' ' . ACCORDING TO THAT ARTICLE IT IS NECESSARY TO ENSURE THE ESTABLISHMENT OF THE LOWEST PRICES , WHILE ALLOWING NECESSARY AMORTIZATION AND NORMAL RETURN ON INVESTED CAPITAL .
67 IN ORDER TO ACHIEVE THE OBJECTIVE OF PUTTING IN ORDER THE FINANCIAL SITUATION OF THE UNDERTAKINGS IN THE SECTOR IN CRISIS , WHILST OBSERVING THE OBJECTIVES OF ARTICLE 61 , THE COMMISSION CONSIDERED THAT :
( A ) THE MINIMUM PRICES MUST BE HIGHER THAN THE MARKET PRICES , BUT FIXED AT A LEVEL SUCH AS TO AVOID DISTORTIONS IN COMPETITION IN FAVOUR OF THE IRON AND STEEL INDUSTRY AND TO THE DETRIMENT OF OTHER ECONOMIC SECTORS , TO TAKE INTO ACCOUNT THE GENERAL OBJECTIVES OF ECONOMIC POLICY AND IN PARTICULAR THE INTERESTS OF UNDERTAKINGS CONSUMING STEEL AND THEIR COMPETITIVE SITUATION AND TO AVOID DISTURBANCES IN EXPORTS AND IMPORTS ;
( B ) IT WAS IMPORTANT TO TAKE INTO ACCOUNT PRODUCTION COSTS , WHICH VARY APPRECIABLY ACCORDING TO THE PRODUCTION TECHNIQUES EMPLOYED BY THE DIFFERENT UNDERTAKINGS , HALF OF WHOM USED IRON ORE , WHICH BETWEEN 1975 AND 1977 HAD INCREASED IN PRICE BY BETWEEN 8 AND 35% DEPENDING ON THE MEMBER STATE , WHILST THE OTHER HALF USED SCRAP IRON , WHICH HAD FALLEN IN PRICE BY BETWEEN 37 AND 47% DEPENDING ON THE MEMBER STATE .
68 BEARING IN MIND THE OBJECTIVES TO BE ATTAINED AND IN VIEW OF THE MAIN FACTUAL ELEMENT , NAMELY THE FIELD OF PRICES , THE ONLY AREA AMENABLE TO COMPETITION IN PRACTICE - DIFFERENCES IN QUALITY BEING VIRTUALLY INSIGNIFICANT IN THE CONCRETE REINFORCEMENT BARS SECTOR - IT SEEMED REASONABLE TO THE COMMISSION THAT THE PRICE TO BE ADOPTED SHOULD BE AT A LEVEL THE LOWEST PRICES , BETWEEN 165 AND 180 EUROPEAN UNITS OF ACCOUNT ( THE BRESCIANI ), BUT BELOW THE HIGHEST PRICES , 253 EUROPEAN UNITS OF ACCOUNT ( THE DANISH UNDERTAKINGS ).
69 FOR THE SAKE OF PRECISION THE COMMISSION CALCULATED THE BASIS PRICES PER TONNE ON 25 APRIL 1977 AND DECIDED TO FIX THE COMPULSORY MINIMUM PRICE AT THE EQUIVALENT IN THE NATIONAL CURRENCIES OF 198 EUROPEAN UNITS OF ACOUNT FOR PLAIN REINFORCEMENT BARS AND 205 EUROPEAN UNITS OF ACCOUNT FOR IMPROVED ADHESION BARS .
70 THE APPLICANTS HAVE CRITICIZED THE METHOD OF THE ARITHMETICAL AVERAGE USED TO FIX THE MINIMUM PRICES ; THEY CONSIDER THAT IN ORDER TO COMPLY WITH ARTICLE 3 ( C ) OF THE TREATY THE MINIMUM PRICE SHOULD HAVE BEEN FIXED ON THE BASIS OF THE LOWEST PROFITABLE PRICE FOR THE COMMUNITY UNDERTAKINGS , THAT IS , THE PRICE CORRESPONDING TO THE POINT AT WHICH SUPPLY MEETS DEMAND AND COMPLYING WITH THE CRITERIA LAID DOWN BY ARTICLE 3 WITH REGARD TO AMORTIZATION AND RETURN ON CAPITAL . IN FACT , SAY THE APPLICANTS , THE MINIMUM PRICES ADOPTED FAVOUR ' ' THE LESS COMPETITIVE OR UNPROFITABLE UNDERTAKINGS AND BRING INTO THE SYSTEM AN UNACCEPTABLE FORM OF DIRIGISTE PROTECTIONISM ' ' WHEREAS THE PROPER FUNCTION OF MINIMUM PRICES IS ' ' TO PREVENT CUT-PRICE SALES AND TO LIMIT THE RISK OF DANGEROUS SALES ON THE PART OF SPECULATORS INCLINED TO PRACTISE DUMPING ' ' .
71 WITH REGARD TO THESE CRITICISMS IT MUST BE POINTED OUT THAT THE METHOD USED TO FIX THE LEVEL OF THE PRICES IS A DISCRETIONARY AND TECHNICAL MATTER GOVERNED BY THE PRINCIPLE OF SOLIDARITY , ADHERENCE TO THE CRITERIA LAID DOWN BY THE PENULTIMATE PARAGRAPH OF ARTICLE 61 AND COMPLIANCE WITH THE FORMAL REQUIREMENTS CONSISTING IN CONSULTATIONS WITH THE CONSULTATIVE COMMITTEE AND THE COUNCIL .
72 ONLY WHEN THE ECONOMIC ASSESSMENT DISCLOSES A MANIFEST INFRINGEMENT OF A LEGAL RULE MAY THE COURT REVIEW THE CHOICES MADE BY THE COMMISSION UNDER THE LAST PARAGRAPH OF ARTICLE 36 AND , IN THIS PARTICULAR CASE , INQUIRE WHETHER THE PRICE LEVEL ADOPTED PREVENTED THE ATTAINMENT OF THE OBJECTIVES SET OUT IN ARTICLE 3 .
73 IN FACT , AS THE LEVEL OF PRODUCTION COSTS SHOWED APPRECIABLE DIFFERENCES WITHIN THE COMMUNITY , THE PRICES COULD NOT BE ALIGNED ON THE COSTS OF THE UNDERTAKINGS HAVING THE HIGHEST PRODUCTIVITY , FOR THAT APPROACH WOULD HAVE NULLIFIED THE USE OF MINIMUM PRICES IN VIEW OF THE OBJECTIVES WHICH ARE ACCORDED TO THEM BY THE TREATY AND THE SCHEME SET UP BY DECISION NO 962/77 .
74 AS REGARDS THE NEED TO ENSURE THE COMPETITIVENESS OF THE STEEL UNDERTAKINGS , IT MAY BE NOTED THAT ONLY THE UNDERTAKINGS IN BRESCIA HAD LIST PRICES LOWER THAN THE MINIMUM PRICES , WHILST THEIR COMPETITORS HAD LIST PRICES HIGHER THAN THE MINIMUM PRICES IMPOSED . BY SELLING EXACTLY AT THE MINIMUM PRICES , THE BRESCIA UNDERTAKINGS WERE STILL ABLE TO SELL AT PRICES LOWER THAN OR AT LEAST EQUAL TO THE PRICES OF THEIR COMPETITORS AFFECTED BY THE CRISIS ; MOREOVER , THE MINIMUM PRICES SYSTEM DID NOT CREATE APPRECIABLE DISTORTIONS IN TRADITIONAL TRADE PATTERNS IN RELATION TO THE TOTAL VOLUME OF TRADE IN THOSE PRODUCTS .
75 AS REGARDS THE CONSUMER INDUSTRIES , WHOSE INDUSTRIAL CAPACITY MUST ALSO BE ENSURED , NOT ONLY HAD THEY GIVEN THEIR AGREEMENT WITHIN THE CONSULTATIVE COMMITTEE TO THE SYSTEM INTRODUCED , BUT SINCE IT APPEARS THAT THE LEVEL OF THE MINIMUM PRICES IS LOWER THAN THE JAPANESE AND AMERICAN PRICES , THEIR INTERESTS WERE NOT ADVERSELY AFFECTED .
76 FINALLY , AS REGARDS THE FUNCTION ASCRIBED TO MINIMUM PRICES BY THE APPLICANT A.F.I.M . ( CASE 226/78 ), NAMELY TO PREVENT ' ' CUT-PRICE SALES ' ' , IT MAY BE OBSERVED THAT THAT AMOUNTS TO ATTRIBUTING TO ARTICLE 61 AN OBJECTIVE WHICH IT DOES NOT PURSUE .
77 THUS , TAKING INTO ACCOUNT THE COMPLEX NATURE OF THE ECONOMIC FORECASTS WHICH THE FIXING OF THE PRICE LEVEL ENTAILED , IT APPEARS THAT THE COMMISSION ' S EVALUATION TOOK ACCOUNT OF THE PRINCIPLES SET OUT IN ARTICLE 3 ( C ) OF THE TREATY .
78 CONSEQUENTLY , ON THE BASIS OF THIS GENERAL EXAMINATION OF THE EVALUATION OF THE SITUATION , RESULTING FROM ECONOMIC FACTS OR CIRCUMSTANCES , IN THE LIGHT OF WHICH DECISION NO 962/77 WAS TAKEN , THE CONCLUSION MUST BE DRAWN THAT THAT GENERAL DECISION DOES NOT DISPLAY ANY ILLEGALITY WITH REGARD TO ARTICLE 61 OF THE ECSC TREATY .
CHAPTER 2 : COMPLIANCE WITH THE OTHER ARTICLES OF THE TREATY AND WITH THE GENERAL PRINCIPLES RELIED ON BY THE APPLICANTS
SECTION 1 : COMPLIANCE WITH ARTICLES 2 , 4 AND 5 OF THE TREATY
79 THE APPLICANTS MAINTAIN THAT ARTICLES 2 , 4 AND 5 WERE MANIFESTLY DISREGARDED BY DECISION NO 962/77 . ARTICLES 2 AND 5 LAY DOWN IN BROAD TERMS THE TASK WHICH THE COMMUNITY IS CALLED UPON TO PERFORM AND ARTICLE 4 STIPULATES THE PRINCIPLE RESTRICTIONS CONNECTED WITH THE ESTABLISHMENT AND MAINTENANCE OF THE COMMON MARKET IN COAL AND STEEL ; IT IS ALLEGED THAT THE ATTAINMENT OF THE GENERAL AIMS SET OUT IN THOSE ARTICLES , TOWARDS WHICH ALL THE COMMUNITY ' S ACTIVITY MUST STRIVE , WAS FRUSTRATED BY DECISION NO 962/77 .
80 IN MAKING THAT SUBMISSION , THE APPLICANTS FORGET THAT BY PROVIDING FOR INTERVENTION BY MEANS OF COERCIVE ACTION IN CERTAIN DEFINED CIRCUMSTANCES THE TREATY DEROGATES FROM THE NORMAL RULES GOVERNING THE WORKING OF THE COMMON MARKET , WHICH ARE BASED ON THE PRINCIPLE OF THE MARKET ECONOMY .
81 IN THAT IT AUTHORIZED THE ADOPTION OF A MEASURE SUCH AS THE FIXING OF MINIMUM PRICES , THE COMMUNITY LEGISLATURE CLEARLY ACCEPTED THE POSSIBILITY OF DEROGATING TEMPORARILY FROM THE MECHANISMS OF COMPETITION , PROVIDED ONLY THAT THE OBJECTIVES SET OUT IN ARTICLE 3 ( C ) ARE ADHERED TO .
82 THUS IT IS APPARENT THAT THE CONDITIONS FOR THE APPLICATION OF ARTICLE 61 ARE ALREADY SATISFIED IF THE GENERAL DECISION ADHERES TO THE CONCORDANT OBJECTIVES LAID DOWN BY ARTICLE 3 . ALTHOUGH IT IS TRUE THAT , IN ADDITION TO ARTICLE 3 , ARTICLES 2 , 4 , AND 5 LAY DOWN THE FUNDAMENTAL OBJECTIVES OF THE COMMUNITY , IT IS WORTH NOTING THAT WHEN THE COMMISSION IS AUTHORIZED TO TAKE AN EXCEPTIONAL MEASURE IN DEROGATION FROM THE NORMAL WORKING OF THE MARKET THE PROVISIONS OF THE TREATY UNDER WHICH THE MEASURE IS TAKEN STIPULATE PRECISELY WHICH ARTICLES THE COMMISSION IS OBLIGED TO TAKE INTO ACCOUNT .
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
84 IT FOLLOWS THAT AS A RESULT OF THE VERY NATURE OF THE EXCEPTIONAL MEASURES PROVIDED FOR BY THE TREATY , WHICH DEROGATE IN ONE OR MORE PARTICULARS FROM THE NORMAL WORKING OF THE MARKET AND AFFECT IT MORE OR LESS PROFOUNDLY , SUCH MEASURES ARE CIRCUMSCRIBED BY MANDATORY CONDITIONS AS TO FORM AND SUBSTANCE WHICH MUST BE VERY STRICTLY OBSERVED IN ORDER TO ENSURE THE LEGALITY OF THE DECISION , AND AMONGST WHICH ARE STATED IN AN EXHAUSTIVE MANNER THE PRINCIPLES AND OBJECTIVES WHICH MUST NECESSARILY GOVERN THE ADOPTION OF THE DEROGATIVE DECISION , WHILST THE OTHER PRINCIPLES AND OBJECTIVES LAID DOWN BY THE TREATY MAY BE REGARDED AS HELD IN ABEYANCE FOR THE LIMITED PERIOD DURING WHICH THE SAID DEROGATIVE DECISION REMAINS IN FORCE .
85 THE TERMS OF ARTICLE 61 - REFERRING SOLELY TO ARTICLE 3 OF THE TREATY - MUST BE INTERPRETED AS MEANING THAT COMPLIANCE WITH THE OBJECTIVES AND PRINCIPLES LAID DOWN IN THAT ARTICLE OF ITSELF ENSURES THE LEGALITY OF A DECISION IMPOSING MINIMUM PRICES .
86 THEREFORE IT IS NOT NECESSARY TO DEAL IN DETAIL WITH THE ARGUMENTS ADVANCED BY THE APPLICANTS IN RELIANCE ON ARTICLES 2 , 4 AND 5 , SINCE COMPLIANCE WITH THE PRINCIPLES LAID DOWN IN THOSE ARTICLES IS NOT ABSOLUTELY ESSENTIAL FOR A FINDING THAT DECISION NO 962/77 WAS LAWFUL .
SECTION 2 : THE LEGALITY OF DECISION NO 962/77 IN RELATION TO THE GENERAL PRINCIPLES OF LAW
87 IT IS NECESSARY TO POINT OUT IN THE FIRST PLACE THAT THE OBJECT OF ARTICLE 61 IS TO ENABLE THE COMMUNITY TO OVERCOME SITUATIONS OF ECONOMIC CRISIS BY APPLYING THE PRINCIPLE OF SOLIDARITY .
PARAGRAPH 1 : AS REGARDS COMPLIANCE WITH THE RIGHT TO PROPERTY
88 ACCORDING TO CERTAIN APPLICANTS , THE MINIMUM PRICES SCHEME - IF IT HAD BEEN APPLIED - WOULD HAVE CREATED CONDITIONS SUCH THAT THE OPERATORS WOULD HAVE BEEN DEPRIVED OF THE BUSINESSES BELONGING TO THEM CONTRARY TO THE GUARANTEE GIVEN WITH REGARD TO THE RIGHT TO PROPERTY BY THE FIRST PROTOCOL TO THE CONVENTION FOR THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS .
89 AS THE COURT HAS ALREADY EMPHASIZED IN ITS JUDGMENT OF 14 MAY 1974 IN CASE 4/73 NOLD V COMMISSION ( 1974 ) ECR 491 THE GUARANTEE AFFORDED TO THE OWNERSHIP OF PROPERTY CANNOT BE EXTENDED TO PROTECT COMMERCIAL INTERESTS , THE UNCERTAINTIES OF WHICH ARE PART OF THE VERY ESSENCE OF ECONOMIC ACTIVITY . MOREOVER , IT SHOULD BE NOTED THAT NO CLOSURE OF AN UNDERTAKING AS A RESULT OF THE APPLICATION OF DECISION NO 962/77 HAS BEEN RECORDED .
90 THIS SUBMISSION MUST THEREFORE BE DISMISSED .
PARAGRAPH 2 : AS REGARDS COMPLIANCE WITH THE PRINCIPLE OF PROPORTIONALITY
91 THE APPLICANTS SUBMIT THAT THE APPLICATION OF DECISION NO 962/77 IMPOSED EXCESSIVE BURDENS ON THE MOST PRODUCTIVE UNDERTAKINGS AND THAT THE SACRIFICES THEREBY REQUIRED OF THOSE UNDERTAKINGS WERE DISPROPORTIONATE ON THE GROUND THAT THE DECISION WAS INADEQUATE AND INCOMPLETE :
- INADEQUATE , IN THAT THE MEMBER STATES WERE CONCURRENTLY PURSUING A POLICY OF SUBSIDIZING THEIR NATIONAL IRON AND STEEL INDUSTRIES , WHILST THE COMMISSION HAD AT THE SAME TIME DECIDED UPON THE CHANNELLING OF TRADE IN CONCRETE REINFORCEMENT BARS IN ITALY THROUGH THE UFFICIO COORDINAMENTO E RIPARTIZIONE ORDINI ( UCRO ) AND HAD BEEN TOO SLOW IN SETTING UP A SYSTEM OF CONTROL AND MONITORING TO SUPERVISE THE APPLICATION OF THE MEASURE , WHICH BECAUSE OF THE INFRINGEMENTS COMMITTED HAD LED TO THE ESTABLISHMENT OF MARKET PRICES LOWER THAN THE MINIMUM PRICES ;
- INCOMPLETE , IN THAT IT DID NOT INCLUDE DEALERS OR IMPORTS IN THE MINIMUM PRICES SYSTEM .
92 EACH OF THESE COMPLAINTS MUST BE EXAMINED SEPARATELY IN ORDER TO ASCERTAIN WHETHER IN FACT IT ALLEGES AN INADEQUACY OR AN INCOMPLETENESS IN THE GENERAL DECISION ; ONLY IN THE EVENT OF AN AFFIRMATIVE REPLY TO THAT PRELIMINARY QUESTION WILL THE COURT HAVE TO CONSIDER WHETHER THE INCOMPLETENESS OR INADEQUACY THUS ESTABLISHED WAS DISPROPORTIONATE .
( A ) THE EXAMINATION OF THE VARIOUS COMPLAINTS
( 1 ) THE COMPATIBILITY OF THE MEASURE WITH NATIONAL AID
93 ACCORDING TO THE APPLICANTS , THE FACT THAT IN SPITE OF DECISION NO 962/77 CERTAIN MEMBER STATES TOOK NATIONAL MEASURES GRANTING AID TO THEIR IRON AND STEEL INDUSTRIES PROVES THAT THAT DECISION WAS INADEQUATE .
94 IN REPLY THE COMMISSION STATES THAT DECISION NO 962/77 WAS INDEED NECESSARY , BUT INSUFFICIENT , FOR THE RE-ORGANIZATION OF THE WHOLE OF THE COMMUNITY IRON AND STEEL INDUSTRY ; THUS THAT DECISION , WHICH IS ITSELF ONLY A PART OF A BROADER ANTI-CRISIS PLAN , BY NO MEANS PREVENTS THE MEMBER STATES FROM ADOPTING MEASURES GRANTING AID FOR THE PURPOSE OF RESTRUCTURING THEIR NATIONAL IRON AND STEEL INDUSTRIES .
95 CONSEQUENTLY , THE EXISTENCE OF SEPARATE NATIONAL POLICIES DOES NOT PROVE THAT THE MEASURES TAKEN BY MEANS OF DECISION NO 962/77 ARE INADEQUATE AND INAPPROPRIATE IN RELATION TO THE OBJECTIVES LAID DOWN BY THAT DECISION ; THEREFORE THE APPLICANTS ' RELIANCE ON THAT COMPLAINT IS UNFOUNDED .
( 2 ) THE COMPATIBILITY OF THE MEASURE WITH THE CHANNELLING OF TRADE THROUGH THE UCRO
96 THE APPLICANTS INFER FROM THE CREATION OF THE UCRO NOT ONLY THAT THE COMMISSION ADMITTED THAT DECISION NO 962/77 WAS INADEQUATE , BUT FURTHER THAT THE CREATION OF THAT BODY ENTAILED THE REPEAL DE FACTO OF DECISION NO 962/77 AS REGARDS THE UNDERTAKINGS WHICH WERE MEMBER OF IT .
97 IT IS TRUE THAT THE COMMISSION AUTHORIZED THE AGREEMENT COORDINATING SALES OF CONCRETE REINFORCEMENT BARS BY CERTAIN ITALIAN STEEL UNDERTAKINGS BY DECISION NO 78/711/ECSC OF 28 JULY 1978 ( OFFICIAL JOURNAL L 238 , P . 28 ), BUT THE GENERAL DECISION EXISTING AT THE TIME OF THE CREATION OF THE UCRO COULD IN NO WAY BE REPEALED BY THE CREATION OF THAT BODY .
98 THEREFORE THE APPLICANTS ' RELIANCE ON THAT COMPLAINT IS UNFOUNDED .
( 3 ) THE LACK OF CONTROL
99 THE GERMAN AND FRENCH APPLICANTS SUBMIT THAT THE COMMISSION WAS TOO SLOW IN CONTROLLING THE ACTIVITIES FOR WHICH ACCORDING TO THEM THE BRESCIANI WERE ESSENTIALLY RESPONSIBLE , AND THUS IT DID NOT DURING THE FIRST MONTHS FOLLOWING DECISION NO 962/77 PREVENT THE BRESCIA UNDERTAKINGS FROM SELLING A PRICES BELOW THE MINIMUM PRICES , WITH THE RESULT THAT THOSE UNSUPPRESSED PRACTICES UNSETTLED MARKET PRICES , FORCING THE OTHER UNDERTAKINGS TO INFRINGE DECISION NO 962/77 ALSO .
100 BUT THE COMMISSION RIGHTLY POINTS OUT , IN THE FIRST PLACE , THAT THE FIRST INSPECTIONS WERE CARRIED OUT AS EARLY AS JUNE 1977 AND THAT EARLIER MONITORING WOULD HAVE BEEN INEFFECTIVE , ON THE GROUND THAT IT IS THE PRACTICE OF THE IRON AND STEEL INDUSTRY NOT TO ISSUE INVOICES IN RESPECT OF SALES UNTIL TWO MONTHS AFTER THE CONCLUSION THEREOF , AND SECONDLY THAT BY VIRTUE OF ITS POWERS AND THE MEANS AT ITS DISPOSAL IT COULD NOT CARRY OUT MORE INSPECTIONS .
101 IN FACT , BETWEEN JUNE 1977 AND SEPTEMBER 1979 IT CARRIED OUT 181 INSPECTIONS ( INCLUDING 19 IN JUNE AND JULY 1977 ), AND IN ADDITION IT EXAMINED 122 797 CERTIFICATES OF CONFORMITY DURING THE SAME PERIOD , WHICH ALSO ENABLED IT TO LEARN OF THE INFRINGEMENTS .
102 CONSEQUENTLY , IN THE CONTEXT OF THE SEARCH FOR POSSIBLE DEFECTS IN THE MINIMUM PRICES SYSTEM THIS COMPLAINT MUST BE DISMISSED ; AT MOST IT MAY BE RE-EXAMINED DURING THE DISCUSSION AS TO THE FACTS WHICH THE APPLICANTS CLAIM JUSTIFIED THEIR CONDUCT .
( 4 ) THE FAILURE TO APPLY THE MEASURES TO THE DEALERS
103 THE APPLICANTS ARGUE THAT BY NOT EXTENDING ITS DECISION NO 962/77 TO THE INDEPENDENT DEALERS THE COMMISSION PERMITTED THOSE DEALERS TO SELL BELOW THE MINIMUM PRICES QUITE LEGALLY , THE MORE SO AS THEY HELD STOCKS EQUIVALENT TO TWO MONTHS ' TURNOVER AND WERE ABLE TO CONTINUE TO OBTAIN SUPPLIES ON THE EXTERNAL MARKET SINCE IMPORTS WERE NOT SUBJECT TO THE LEGISLATION ON MINIMUM PRICES ; THAT PRACTICE WAS FURTHER FACILITATED IN THE CASE OF THE LARGE VERTICALLY INTEGRATED GROUPS IN WHICH THE PARENT PRODUCER COMPANY SELLS TO ITS DEALER SUBSIDIARY AT THE MINIMUM PRICES , WHILST THE LATTER RESELLS AT A LOSS BELOW THE MINIMUM PRICES ; THAT UNECONOMIC CONDUCT IS MADE POSSIBLE BY THE FACT THAT THE PARENT COMPANY BEARS THE LOSSES OF ITS SUBSIDIARY AND MAKES UP FOR THEM THROUGH ITS OWN PROFITABLE SALES .
104 IN ITS REPLY THE COMMISSION SUBMITS THAT ARTICLE 61 IS APPLICABLE ONLY TO UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 80 OF THE ECSC TREATY AND THAT IT THEREFORE CONCERNS ONLY PRODUCERS AND THEIR SALES ORGANIZATIONS ; CONSEQUENTLY , IN ORDER TO SUBJECT THE INDEPENDENT DEALERS TO THE MINIMUM PRICES , IT WOULD HAVE BEEN NECESSARY TO HAVE RECOURSE TO ARTICLE 95 OF THE TREATY , A MEASURE WHICH COULD BE CONSIDERED ONLY AT A SECOND STAGE .
105 IT IS SETTLED THAT THE COMMISSION HAS NEVER DISPUTED THAT THE DEALERS HELD STOCKS SUFFICIENT FOR TWO MONTHS , ENABLING THEM TO SELL BELOW THE MINIMUM PRICES , AND THAT 85% OF SALES IN THE COMMUNITY ARE MADE THROUGH THEM BUT IT DID NOT TAKE SUFFICIENT ACCOUNT OF THE FACT THAT THOSE DEALERS WOULD SELL A PART OF THEIR STOCKS BELOW THE MINIMUM PRICES .
106 ON THE OTHER HAND , THE ARGUMENT OF THE APPLICANT MAXIMILIANSHUTTE ( CASE 83/79 ) CONCERNING THE POSSIBILITY AVAILABLE TO THOSE DEALERS WHICH WERE SUBSIDIARIES OF PRODUCERS OF SELLING BELOW THE MINIMUM PRICES HAS BEEN ADVANCED IN A PURELY HYPOTHETICAL FORM , WITHOUT PROOF THAT A SINGLE DEALER ACTED IN THAT MANNER , IT BEING SUBMITTED THAT THE MERE FACT THAT SUCH A POSSIBILITY EXISTS IS ENOUGH TO PROVE THE INADEQUACY OF THE DECISION CONCERNED ; THAT ABSENCE OF PROOF LEADS TO THE DISMISSAL OF THE SUBMISSION AS REGARDS THOSE DEALERS WHICH ARE SUBSIDIARIES OF PRODUCERS .
107 IT IS ALSO SETTLED THAT WITH REGARD TO THE DETERMINATION OF PRICES BY THE INTERPLAY OF SUPPLY AND DEMAND A NEGLIGIBLE DISLOCATION IN SUPPLY IS A SIGNIFICANT DE-STABILIZING FACTOR ; CONSEQUENTLY , THE EXCLUSION OF THE DEALERS FROM THE MINIMUM PRICES SYSTEM CONSTITUTED A MEANS BY WHICH CUSTOMERS WERE ABLE TO BRING PRESSURE TO BEAR WITH REGARD TO THE LEVEL OF PRICES AND INDUCE THE PRODUCERS TO GRANT PRICES BELOW THE MINIMUM PRICES . THESE CIRCUMSTANCES OBLIGED THE COMMISSION TO EXTEND THE SYSTEM OF MINIMUM PRICES TO DEALERS BY DECISION NO 3002/77 OF 28 DECEMBER 1977 ( OFFICIAL JOURNAL L 352 , P . 8 ). THEREFORE THE APPLICANTS ARE CORRECT IN THEIR SUBMISSION THAT THE SYSTEM ESTABLISHED BY DECISION NO 962/77 WAS DEFECTIVE BY REASON OF ITS FAILURE TO REQUIRE THE INDEPENDENT DEALERS TO OBSERVE THE MINIMUM PRICES IMMEDIATELY .
( 5 ) THE FAILURE TO APPLY THE MEASURE TO IMPORTS FROM NON-MEMBER COUNTRIES , ENTAILING THE ATTENDANT POSSIBILITY OF ALIGNMENT
108 ACCORDING TO THE APPLICANTS , COMMUNITY PURCHASERS WERE ABLE TO OBTAIN SUPPLIES AT PRICES BELOW THE MINIMUM PRICES QUITE LEGALLY BY RECOURSE TO IMPORTS FROM NON-MEMBER COUNTRIES . ACCORDING TO THE GERMAN APPLICANTS , THE ITALIAN PRODUCERS HAD USED THE FREEDOM THUS GRANTED IN RESPECT OF SUCH IMPORTS TO SELL THEIR CONCRETE REINFORCEMENT BARS IN BAVARIA BELOW THE MINIMUM PRICES BY ROUTING THEM THROUGH SWITZERLAND , WHICH , IT IS ALLEGED , HAD A CONSIDERABLE INFLUENCE ON THE LEVEL OF PRICES IN BAVARIA , WHERE IT WAS NO LONGER POSSIBLE TO SELL AT THE MINIMUM PRICES ; FURTHER , THE FREEDOM ACTUALLY GRANTED TO THE COMMUNITY UNDERTAKINGS TO ALIGN THEIR PRICES ON OFFERS FROM NON-MEMBER COUNTRIES WHICH WERE LOWER THAN THE MINIMUM PRICES IS SAID TO HAVE LASTED UNTIL 14 MARCH 1978 , THE DATE OF DECISION NO 527/78 ( OFFICIAL JOURNAL L 73 , P . 16 ) PROHIBITING ALIGNMENT ON OFFERS ORIGNATING IN CERTAIN THIRD COUNTRIES .
109 IN REPLY TO THOSE COMPLAINTS THE COMMISSION POINTS OUT IN THE FIRST PLACE THAT IN THIS FIELD ARTICLES 74 AND 86 OF THE TREATY DO NOT EMPOWER IT TO TAKE MEASURES DIRECTLY PROHIBITING IMPORTS FROM NON-MEMBER COUNTRIES , AND THAT WITHIN THE FRAMEWORK OF ITS POWERS IT HAD ISSUED THREE RECOMMENDATIONS ON 15 APRIL 1977 - THAT IS , TWO WEEKS BEFORE DECISION NO 962/77 - ALL THREE OF WHICH WERE DESIGNED TO COMBAT IMPORTS ORIGINATING IN NON-MEMBER COUNTRIES ( RECOMMENDATIONS NO 77/382/ECSC , NO 77/329/ECSC AND NO 77/330/ECSC , OFFICIAL JOURNAL L 114 OF 5 MAY 1977 , PP . 4 , 6 AND 15 ).
110 THEREFORE THE COMMISSION CANNOT BE ACCUSED OF NOT HAVING TRIED TO COMBAT IMPORTS FROM NON-MEMBER COUNTRIES . IT IS IMPORTANT TO POINT OUT ALSO THAT IN ITS NEGOTIATIONS WITH NON-MEMBER COUNTRIES THE COMMISSION FACES CONSIDERABLE DIFFICULTIES AS A RESULT OF THE FACT THAT THE ECSC IS A NET EXPORTER OF STEEL ; IN SUCH CIRCUMSTANCES IT IS COMPELLED TO ENSURE THE CONTINUANCE OF COMMUNITY EXPORTS AT THE SAME TIME AS IT MUST ATTEMPT TO LIMIT IMPORTS INTO THE COMMUNITY , AND IT HAD REASON TO FEAR THAT BY TAKING NON-NEGOTIATED RESTRICTIVE DECISIONS WITH REGARD TO NON-MEMBER COUNTRIES IT MIGHT PROVOKE RETALIATORY MEASURES ON THEIR PART WHICH WOULD BE DETRIMENTAL TO THE GENERAL INTEREST .
111 AS REGARDS THE SPECIAL CASE OF IMPORTS OF ITALIAN CONCRETE REINFORCEMENT BARS VIA SWITZERLAND , THE COMMISSION MAINTAINS IN THE FIRST PLACE THAT SUCH IMPORTS WERE ABNORMALLY HIGH ONLY IN OCTOBER AND DECEMBER 1977 , AND NOT FROM JUNE TO SEPTEMBER 1977 , AND SECONDLY THAT IN THE CONTEXT OF MEASURES TAKEN AGAINST IMPORTS IT HAD CONCLUDED AN AGREEMENT WITH SWITZERLAND EARLY IN 1978 WHEREBY THAT COUNTRY UNDERTOOK TO OBSERVE THE MINIMUM PRICES IN CONNEXION WITH ITS EXPORTS OF CONCRETE REINFORCEMENT BARS TO THE COMMON MARKET .
112 THEREFORE IT APPEARS THAT IN THIS PARTICULAR CASE AND IN THE CIRCUMSTANCES AT THE TIME THE COMMISSION USED THE MEANS AT ITS DISPOSAL AND THAT IT CANNOT BE ACCUSED OF HAVING MADE NO EFFORT TO PROHIBIT SUCH IMPORTS FROM MAY 1977 , ESPECIALLY SINCE SUCH A PROHIBITION COULD BE LAID DOWN ONLY WITHIN A NEGOTIATED SYSTEM .
113 NONE THE LESS , THE FACT REMAINS THAT IMPORTS FROM NON-MEMBER COUNTRIES DISTURBED THE MARKET TEMPORARILY , INFLUENCING PRICES IN PARTICULAR , AND MORE SO AS CERTAIN COMMUNITY UNDERTAKINGS CLAIM TO HAVE ALIGNED THEIR PRICES ON OFFERS BELOW THE MINIMUM PRICES ORIGINATING IN NON-MEMBER COUNTRIES , SUCH OFFERS BEING LAWFUL .
114 IT MUST BE BORNE IN MIND THAT ARTICLE 6 ( 2 ) OF DECISION NO 962/77 WAS ALREADY DESIGNED TO DEAL WITH SUCH ALIGNMENTS ON OFFERS FOR CONCRETE REINFORCEMENT BARS FROM ANY COUNTRY WHICH IS NOT A MEMBER STATE OF THE COMMUNITY , WHICH ARE AUTHORIZED ONLY IN SO FAR AS THE DELIVERED PRICES ARE NOT LOWER THAN THE DELIVERED PRICES ' ' BASED ON A MORE FAVOURABLE COMMUNITY PRICE LIST ' ' ; IN EFFECT , THEREFORE , THAT PROVISION PREVENTED SALES BELOW THE MINIMUM PRICES , SINCE ALL COMMUNITY PRICE LISTS HAD TO CONTAIN PRICES IN ACCORDANCE WITH DECISION NO 962/77 .
115 DESPITE THAT ARTICLE , IT SEEMS THAT ALIGNMENTS WERE CARRIED OUT BELOW THE MINIMUM PRICES SINCE IN THE SECOND RECITAL OF THE PREAMBLE TO DECISION NO 527/78 THE COMMISSION ADMITTED THAT EXPERIENCE HAD SHOWN THAT COMPLIANCE WITH THOSE MINIMUM PRICES COULD NOT BE SECURED IF OFFERS AT LOWER PRICES AND FOR ONLY SMALL QUANTITIES COULD BE USED AS A BASIS FOR ALIGNMENTS AND THAT IT WAS THAT EXPERIENCE WHICH MADE IT NECESSARY TO ABOLISH THE OPTION OF ALIGNMENT ON OFFERS ORIGINATING IN CERTAIN NON-MEMBER COUNTRIES .
116 CONSEQUENTLY , IT MUST BE ACCEPTED THAT THE DE FACTO TOLERANCE OF ALIGNMENTS ON OFFERS IN RESPECT OF SMALL QUANTITIES ORIGINATING IN NON-MEMBER COUNTRIES , TOGETHER WITH THE ABSENCE OF RESTRICTIONS ON IMPORTS , MUST BE CONSIDERED TO HAVE BEEN A DEFECT IN THE MINIMUM PRICES SYSTEM .
( B ) THE DISPROPORTIONATE NATURE OF THE SACRIFICES DEMANDED , IN VIEW OF THE OMISSIONS THUS DISCLOSED
117 IT IS NOW NECESSARY TO EXAMINE WHETHER IN VIEW OF THE OMISSIONS ESTABLISHED THE OBLIGATIONS IMPOSED UPON THE UNDERTAKINGS CAST DISPROPORTIONATE BURDENS UPON THE APPLICANTS WHICH WOULD CONSTITUTE AN INFRINGEMENT OF THE PRINCIPLE OF PROPORTIONALITY . IN REPLY TO THE APPLICANTS ' ALLEGATIONS ON THIS MATTER , THE COMMISSION STATES THAT THE VALIDITY OF A GENERAL DECISION CANNOT DEPEND ON THE EXISTENCE OR ABSENCE OF OTHER FORMALLY INDEPENDENT DECISIONS .
118 THAT ARGUMENT IS NOT RELEVANT IN THIS CASE AND THE COURT MUST INQUIRE WHETHER THE DEFECTS ESTABLISHED IMPOSED DISPROPORTIONATE BURDENS UPON THE APPLICANTS , HAVING REGARD TO THE OBJECTIVES LAID DOWN BY DECISION NO 962/77 . BUT THE COURT HAS ALREADY RECOGNIZED IN ITS JUDGMENT OF 24 OCTOBER 1973 IN CASE 5/73 , BALKAN-IMPORT-EXPORT V HAUPTZOLLAMT BERLIN-PACKHOF ( 1973 ) ECR 1091 , THAT ' ' IN EXERCISING THEIR POWERS , THE INSTITUTIONS MUST ENSURE THAT THE AMOUNTS WHICH COMMERCIAL OPERATORS ARE CHARGED ARE NO GREATER THAN IS REQUIRED TO ACHIEVE THE AIM WHICH THE AUTHORITIES ARE TO ACCOMPLISH ; HOWEVER , IT DOES NOT NECESSARILY FOLLOW THAT THAT OBLIGATION MUST BE MEASURED IN RELATION TO THE INDIVIDUAL SITUATION OF ANY ONE PARTICULAR GROUP OF OPERATORS ' ' .
119 IT APPEARS THAT , ON THE WHOLE , THE SYSTEM ESTABLISHED BY DECISION NO 962/77 WORKED DESPITE THE OMISSIONS DISCLOSED AND IN THE END ATTAINED THE OBJECTIVES PURSUED BY THAT DECISION . ALTHOUGH IT IS TRUE THAT THE BURDEN OF THE SACRIFICES REQUIRED OF THE APPLICANTS MAY HAVE BEEN AGGRAVATED BY THE OMISSIONS IN THE SYSTEM , THAT DOES NOT ALTER THE FACT THAT THAT DECISION DID NOT CONSTITUTE A DISPROPORTIONATE AND INTOLERABLE MEASURE WITH REGARD TO THE AIM PURSUED .
GROUNDS CONTINUED UNDER DOC.NUM : 678J0154.1120 IN THOSE CIRCUMSTANCES , AND TAKING INTO CONSIDERATION THE FACT THAT THE OBJECTIVE LAID DOWN BY DECISION NO 962/77 IS IN ACCORDANCE WITH THE COMMISSION ' S DUTY TO ACT IN THE COMMON INTEREST , AND THAT A NECESSARY CONSEQUENCE OF THE VERY NATURE OF ARTICLE 61 OF THE ECSC TREATY IS THAT CERTAIN UNDERTAKINGS MUST , BY VIRTUE OF EUROPEAN SOLIDARITY , ACCEPT GREATER SACRIFICES THAN OTHERS , THE COMMISSION CANNOT BE ACCUSED OF HAVING IMPOSED DISPROPORTIONATE BURDENS UPON THE APPLICANTS .
CHAPTER 3 : THE COMPLAINT OF MISUSE OF POWERS
121 ACCORDING TO THE APPLICANTS , DECISION NO 962/77 IS VITIATED BY MISUSE OF POWERS SINCE THE COMMISSION PURSUED AN AIM DIFFERENT FROM THAT FOR WHICH ARTICLE 61 AUTHORIZES IT TO FIX MINIMUM PRICES WITHIN THE COMMON MARKET .
122 IN THEIR SUBMISSION , THE REAL AIM OF THE DECISION WAS TO PROTECT THOSE LARGE IRON AND STEEL CONCERNS WHICH WERE UNPROFITABLE ON THE CONCRETE REINFORCEMENT BARS MARKET , BY HELPING THEM TO RETAIN THEIR MARKET SHARE BY MEANS OF MINIMUM PRICES .
123 THEY SUBMIT THAT THE RESTRUCTURING OF THE SECTOR - THE AIM DECLARED BY THE COMMISSION IN DECISION NO 962/77 - SHOULD HAVE BEEN CARRIED OUT THROUGH THE LAWS OF THE MARKET , WHICH WOULD HAVE FORCED THE UNPROFITABLE UNDERTAKINGS TO CEASE PRODUCTION OF CONCRETE REINFORCEMENT BARS .
124 THROUGH THAT GENERAL DECISION APPLYING TO ALL UNDERTAKINGS - WITH WHOSE SITUATION IT IS WELL ACQUAINTED - THE COMMISSION THEREFORE HAS FAVOURED THE UNPRODUCTIVE UNDERTAKINGS TO THE DETRIMENT OF CONSUMERS AND THE EFFICIENT UNDERTAKINGS . THUS IT HAS RESTRAINED THE EXPANSION OF THE LATTER IN ORDER TO ' ' DESTROY ' ' THEIR ' ' SHINING EXAMPLE OF COMPETITION ' ' , BY BURDENING THEM WITH THE CONSEQUENCES OF A CRISIS EXPERIENCED BY OTHERS ' ' IN THE NAME OF AN ILL-DEFINED COMMUNITY SOLIDARITY ' ' .
125 IN SUM , THE APPLICANTS SEE IN THE MEASURE ADOPTED AN INTENTION TO APPLY A RETALIATORY MEASURE AGAINST THE EFFICIENT UNDERTAKINGS , AND PARTICULARLY THOSE IN THE BRESCIA AREA WHICH HAD NOT COMPLIED WITH THE COMMISSION ' S REQUEST TO ADOPT PRODUCTION QUOTAS .
126 THE COMMISSION OBSERVES THAT THE APPLICANTS EXAMINE THE MINIMUM PRICES DECISION ONLY WITH REGARD TO THEIR PERSONAL SITUATION ; THEY FORGET THAT THE TASK OF THE COMMUNITY INSTITUTIONS IS TO CONSIDER THE SITUATION OF THE COMMUNITY IRON AND STEEL INDUSTRY AS A WHOLE AND TO TAKE - IN ACCORDANCE WITH THE PRIORITIES LAID DOWN BY THE TREATY - GENERAL MEASURES DESIGNED TO RESOLVE THE PROBLEMS OF THE AREA OF ACTIVITY CONCERNED AS A WHOLE .
127 IT POINTS OUT THAT ITS OBJECTIVES WERE CLEARLY SET OUT AND IT OBJECTS TO THE ALLEGATIONS OF THE BRESCIANI .
128 FROM THE PREAMBLE TO DECISION NO 962/77 , THE PLEADINGS LODGED BY THE COMMISSION AND THE ORAL HEARINGS IT EMERGES THAT THE COMMISSION INTENDED BY THAT MEASURE TO REDRESS THE SITUATION OF THE CONCRETE REINFORCEMENT BARS MARKET , BY SEEKING IN PARTICULAR TO BRING ABOUT A BETTER BALANCE BETWEEN DEMAND AND THE ABUNDANT SUPPLY , AND ALSO BETWEEN PRICES , SO AS TO INCREASE THE AVERAGE RATE OF UTILIZATION OF THE PRODUCTIVE CAPACITY OF THE UNDERTAKINGS AS A WHOLE .
129 THE EFFECT OF THE DECISION CONCERNING MINIMUM PRICES ON THE SMALL AND MEDIUM-SIZED UNDERTAKINGS AND ITS REPERCUSSIONS WITH REGARD TO THE LARGE IRON AND STEEL CONCERNS ARE THE NECESSARY OUTCOME OF THAT MEASURE , WHICH WAS ADOPTED LAWFULLY IN A SITUATION HELD TO CONSTITUTE A MANIFEST CRISIS AND IN ACCORDANCE WITH THE OBJECTIVES SET OUT IN ARTICLE 3 OF THE TREATY , AS HAS ALREADY BEEN DEMONSTRATED . WHAT IS AT ISSUE IS AN INEVITABLE CONSEQUENCE OF A LAWFUL MEASURE AND NOT THE RESULT OF AN INTENTION TO HARM CERTAIN UNDERTAKINGS INDIVIDUALLY . MOREOVER , THE APPLICANTS HAVE NOT ASSEMBLED THE BODY OF CONCORDANT EVIDENCE WHICH MIGHT JUSTIFY A FINDING OF MISUSE OF POWERS .
130 THEREFORE THE APPLICANTS HAVE NOT ADDUCED PROOF THAT THE COMMISSION ' S POWERS WERE USED FOR ENDS OTHER THAN THOSE ENVISAGED BY ARTICLE 61 .
SECOND PART : THE LEGALITY OF THE INDIVIDUAL DECISIONS IMPOSING PENALTIES
131 THE INDIVIDUAL DECISIONS IMPOSING PENALTIES TAKEN BY THE COMMISSION UNDER ARTICLE 64 OF THE TREATY MUST COMPLY WITH THE REQUIREMENTS LAID DOWN BY THE TREATY WITH REGARD TO THE STATING OF REASONS ; FURTHER , THE COURT MUST CONSIDER THE SITUATION OF THE APPLICANTS WITH REGARD TO THE EXISTENCE OF POSSIBLE EXONERATING FACTORS AND THE POSSIBILITIES OF ALIGNMENT RELIED ON BY THE APPLICANTS .
CHAPTER 1 : THE FAILURE TO FURNISH AN ADEQUATE STATEMENT OF REASONS
132 THE APPLICANTS CLAIM THAT THE INDIVIDUAL DECISIONS ARE NOT ADEQUATELY REASONED , SINCE THE COMMISSION CONFINED ITSELF TO PRONOUNCING A FINE AUTOMATICALLY MERELY BY REFERENCE TO DECISION NO 962/77 . THUS WITH A SPURIOUS STATEMENT OF REASONS SUCH AS ' ' TAKING INTO ACCOUNT THE NATURE OF THE INFRINGEMENTS , THE AMOUNT OF SALES BELOW THE MINIMUM PRICES AND THE REAL TAXABLE CAPACITY OF THE UNDERTAKING . . . ' ' , THE COMMISSION WAS ABLE TO FIX THE FINE AT ANY LEVEL IT WISHED . THE APPLICANTS ALSO CRITICIZE THE COMMISSION FOR FAILING TO REPLY TO THE OBSERVATIONS SUBMITTED BY THEM DURING THE ADMINISTRATIVE PROCEDURE , WHICH , IT IS ARGUED , IS ALL THE MORE REPREHENSIBLE AS THE REQUIREMENT AS TO THE STATEMENT OF REASONS CONSTITUTES THE ONLY EFFECTIVE PROTECTION OF THE RIGHTS OF INDIVIDUALS .
133 THE COMMISSION ARGUES THAT WHEN THE STATEMENT OF THE REASONS ON WHICH AN INDIVIDUAL DECISION IS BASED MENTIONS THE ARTICLES OF THE TREATY AND THE GENERAL DECISIONS APPLIED , ESTABLISHES THE FACTS IN THE PREAMBLE AND PROVIDES A LOGICAL LINK BETWEEN THE OPERATIVE PART AND THAT WHICH HAS PRECEDED IT , THAT DECISION IS PROPERLY REASONED .
134 THE DRAFTING OF THE INDIVIDUAL DECISIONS SHOWS THAT THE COMMISSION USED THE SAME FORMULA FOR ALL THE UNDERTAKINGS : AFTER REFERRING TO THE PROVISIONS OF THE TREATY AND THE DECISIONS APPLICABLE , IT INDICATES THE CIRCUMSTANCES IN WHICH THE INFRINGEMENTS OF THE SAID PROVISIONS WERE FOUND TO HAVE TAKEN PLACE , THE MANNER IN WHICH THEY WERE BROUGHT TO THE NOTICE OF THE UNDERTAKINGS AND HOW THE LATTER SUBMITTED THEIR OBSERVATIONS . THE FACTS CONSTITUTING THE INFRINGEMENT ARE THEN SET OUT AND THE RESULTING FINE IS ANNOUNCED .
135 IN VIEW OF THAT FORMULA , IT MIGHT BE CONCLUDED THAT IF THE APPLICANTS COMPARED THE INDIVIDUAL DECISION PENALIZING THEM WITH GENERAL DECISION NO 962/77 THEY COULD NOT FAIL TO BE AWARE OF THE PRECISE INFRINGEMENTS OF WHICH THEY WERE BEING ACCUSED ; THEREFORE THE COMMISSION CANNOT BE ACCUSED OF FAILING TO SUPPLEMENT THE INDIVIDUAL DECISIONS BY STATING THE SPECIAL REASONS FOR THE GENERAL DECISION WHICH WAS IMPLEMENTED BY THEM , WHICH MUST HAVE BEEN KNOWN TO THE PERSONS CONCERNED . MOREOVER , THE BREADTH OF THE SUBMISSIONS RELIED ON BY THE APPLICANTS DURING THE WRITTEN AND ORAL PROCEDURE SHOWS THAT THE EXISTING STATEMENT OF REASONS DID NOT IN ANY WAY HANDICAP THE PRESENTATION OF THEIR DEFENCE .
136 THEREFORE THIS SUBMISSION IS UNFOUNDED .
CHAPTER 2 : EXONERATING FACTORS PLEADED
137 THE APPLICANTS HAVE PLEADED A NUMBER OF EXONERATING FACTORS , USING A VARIETY OF TERMS TO DESCRIBE THE CONSTRAINTS THREATENING THEIR EXISTENCE OR AT LEAST THE CONTINUITY OF THEIR OPERATIONS AND CLAIMING THAT THOSE CONSTRAINTS WERE PLACED UPON THEM AS A RESULT OF THE APPLICATION OF DECISION NO 962/77 . THEY CLASSIFY THOSE EXONERATING FACTORS UNDER THREE HEADS - LEGITIMATE SELF-PROTECTION , FORCE MAJEURE AND NECESSITY - WHICH MUST BE EXAMINED IN TURN .
LEGETIMATE SELF-PROTECTION
138 THE CONCEPT OF LEGITIMATE SELF-PROTECTION , WHICH IMPLIES AN ACT OF DEFENCE AGAINST AN UNJUSTIFIED ATTACK , CANNOT EXEMPT FROM LIABILITY COMMERCIAL OPERATORS WHO KNOWINGLY CONTRAVENE A GENERAL DECISION THE LEGALITY OF WHICH DOES NOT GIVE RISE TO DOUBTS EITHER TAKEN BY ITSELF OR IN RELATION TO THE ECONOMIC FACTS AND CIRCUMSTANCES IN THE LIGHT OF WHICH THE DECISION WAS ADOPTED . IN THIS CASE , AS GENERAL DECISION NO 962/77 HAS BEEN RECOGNIZED TO BE LAWFUL AS REGARDS THE CONDITIONS OF FORM AND SUBSTANCE LAID DOWN BY THE ECSC TREATY , THE APPLICANTS HAVE NO GROUNDS FOR RELYING ON LEGITIMATE SELF-PROTECTION , SINCE THAT EXONERATING FACTOR CANNOT BE PLEADED AGAINST A PUBLIC AUTHORITY ACTING LAWFULLY WITHIN THE LEGAL FRAMEWORK OF ITS POWERS .
FORCE MAJEURE
139 THE APPLICANTS STATE THAT AS A RESULT OF THE CONDUCT ' ' OF OTHER PRODUCERS ' ' WHO DID NOT COMPLY WITH THE DECISION ON MINIMUM PRICES THEY WERE PLACED IN A SITUATION OF FORCE MAJEURE WHICH COMPELLED THEM TO INFRINGE DECISION NO 962/77 IN ORDER TO AVOID EXCLUSION FROM THE CONCRETE REINFORCEMENT BARS MARKET .
140 BUT RECOGNITION OF CIRCUMSTANCES OF FORCE MAJEURE PRESUPPOSES THAT THE EXTERNAL CAUSE RELIED ON BY INDIVIDUALS HAS CONSEQUENCES WHICH ARE INEXORABLE AND INEVITABLE TO THE POINT OF MAKING IT OBJECTIVELY IMPOSSIBLE FOR THE PERSONS CONCERNED TO COMPLY WITH THEIR OBLIGATIONS AND , IN THIS CASE , LEAVING THEM NO ALTERNATIVE BUT TO INFRINGE DECISION NO 962/77 .
141 IT EMERGES FROM THE DOCUMENTS PUT IN EVIDENCE THAT OF 181 UNDERTAKINGS INVESTIGATED BETWEEN JUNE 1977 AND SEPTEMBER 1979 , ONLY 29 INFRINGED THE RULES ON MINIMUM PRICES . CONSEQUENTLY , IT APPEARS THAT A MAJORITY OF UNDERTAKINGS EFFECTIVELY ADJUSTED TO THE SITUATION , EITHER BY SEEKING NEW CUSTOMERS OR MANUFACTURING DIFFERENT PRODUCTS OR BY MAINTAINING PRODUCTION AT A CERTAIN LEVEL WHILST COMPLYING WITH THE MINIMUM PRICES . SINCE , THEREFORE , THE EXTERNAL CAUSE RELIED ON BY THE APPLICANTS DID NOT PLACE THEM IN A SITUATION FROM WHICH THERE WAS NO ESCAPE THE CONCEPT OF FORCE MAJEURE CANNOT BE APPLIED IN THEIR FAVOUR .
NECESSITY
142 THE APPLICANTS RELY ON THE STATE OF NECESSITY IN WHICH THEY CLAIM TO HAVE BEEN PLACED AND BY VIRTUE OF WHICH THEY WERE FORCED NOT TO COMPLY WITH THE OBLIGATIONS IMPOSED BY GENERAL DECISION NO 962/77 . IN PARTICULAR , THE ITALIAN APPLICANTS STATE THAT IN PRACTICE THEY HAD NO MEANS OF REDUCING THEIR FIXED COSTS IN VIEW OF THE RISKS OF STRIKES AND SOCIAL UPHEAVAL IN THE EVENT OF REDUNDANCIES AND THAT THEREFORE BECAUSE OF THE LOSS OF TURNOVER THEIR VERY EXISTENCE WAS THREATENED ; THE APPLICANTS MONTEREAU AND KORF CONSIDER THAT THEIR CONDUCT IS JUSTIFIED BY THE PRINCIPLE THAT ' ' NECESSITY MAKES THE LAW ' ' ; THE APPLICANT MAXIMILIANSHUTTE SUBMITS THAT THE ' ' ONLY SALVATION ' ' FOR ITS BUSINESS WAS TO RECOVER ITS MARKET SHARE BY SELLING BELOW THE MINIMUM PRICES AND CONSIDERS THAT THE STATE OF NECESSITY IN WHICH IT WAS PLACED WAS THE RESULT OF A NUMBER OF FACTORS INCLUDING BOTH THE DEFECTS AND INADEQUACIES OF THE SYSTEM AND THE FACT THAT MAXIMILIANSHUTTE COMPLIED WITH THE MINIMUM PRICES IN JUNE AND JULY , WHILST ITS COMPETITORS DID NOT DO SO . THUS WITH A VARIETY OF ARGUMENTS THE APPLICANTS ALLEGE THAT THEY WERE FACED WITH A SERIOUS THREAT JEOPARDIZING THE EXISTENCE OF THEIR BUSINESSES .
143 BUT WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER THE THREAT OF WHICH THEY HAVE SPOKEN WAS CAPABLE OF CREATING A STATE OF NECESSITY SUCH AS TO JUSTIFY THEIR CONDUCT , IT IS SUFFICIENT TO NOTE THAT NONE OF THE UNDERTAKINGS WHICH COMPLIED WITH GENERAL DECISION NO 962/77 WAS IN DANGER OF BANKRUPTCY OR LIQUIDATION AND THAT , ALTHOUGH SOME OF THE APPLICANTS RECORDED A FALL IN THE VOLUME OF THEIR SALES , THEIR EXISTENCE WAS NOT REALLY THREATENED .
144 AS REGARDS THE UNDERTAKING ANTONIO STEFANA , WHICH WAS PLACED IN A PARTICULARLY DIFFICULT FINANCIAL SITUATION , IT MUST BE NOTED THAT THAT SITUATION WAS DUE TO ITS CHOICE OF TIMING FOR STRUCTURAL RE-ORGANIZATION AND THEREFORE TO ITS ERRONEOUS EVALUATION OF AN UNFAVOURABLE ENONOMIC SITUATION WHICH WAS KNOWN TO ALL ; THAT PERSONAL CONDUCT DOES NOT ENTITLE IT TO RELY ON A STATE OF NECESSITY .
CHAPTER 3 : ALIGNMENT
145 THE APPLICANT FERALPI , IN COMPANY WITH THE OTHER ITALIAN APPLICANTS ON THIS POINT , SUBMITS THAT ITS CONDUCT WAS LAWFUL ON THE GROUND THAT IT SOLD CONCRETE REINFORCEMENT BARS AT MINIMUM PRICES RESULTING FROM ALIGNMENTS UNDERTAKEN IN ACCORDANCE WITH THE COMMUNITY RULES .
146 IN THIS REGARD FERALPI MAINTAINS IN THE FIRST PLACE - RELYING ON ARTICLE 6 OF DECISION NO 30/53 OF 2 MAY 1953 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1952-1958 , P . 9 ), AS AMENDED BY ARTICLE 2 OF DECISION NO 72/440/ECSC OF 22 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 30-31 DECEMBER ), P . 19 ) - THAT IT WAS ENTITLED TO ALIGN ITS PRICES ON PRICES ACTUALLY APPLIED BY OTHER COMMUNITY UNDERTAKINGS , AND NOT ONLY ON COMPETITORS ' LIST PRICES .
147 BUT THE COMMISSION RIGHTLY SUBMITS THAT THE SAID ARTICLE 6 PROVIDES THAT THAT RIGHT OF ALIGNMENT EXISTS ONLY FOR PRODUCTS FOR WHICH ' ' THERE EXISTS NO OBLIGATION OR THERE EXISTS ONLY A LIMITED OBLIGATION TO PUBLISH PRICES ' ' , THAT IS TO SAY FOR PRODUCTS LISTED IN ARTICLE 8 OF DECISION NO 31/53 OF 2 MAY 1953 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1952-1958 , P . 11 ), AS AMENDED BY DECISION NO 72/441/ECSC OF 22 DECEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 30-31 DECEMBER ), P . 22 ), WHICH LIST DOES NOT INCLUDE CONCRETE REINFORCEMENT BARS .
148 CONSEQUENTLY , AS REGARDS CONCRETE REINFORCEMENT BARS , ALIGNMENT ON COMMUNITY PRICES COULD BE VALIDLY UNDERTAKEN ONLY WITH REFERENCE TO A COMMUNITY COMPETITOR ' S LIST PRICES .
149 FERALPI GOES ON TO SUBMIT THAT UNTIL 15 MARCH 1978 - THE DATE OF THE ENTRY INTO FORCE OF DECISION NO 527/78/ECSC PROHIBITING ALIGNMENT ON OFFERS OF IRON AND STEEL PRODUCTS ORIGINATING IN CERTAIN THIRD COUNTRIES - IT WAS POSSIBLE FOR IT TO ALIGN ITS PRICES NOT ONLY ON SUCH OFFERS , BUT ALSO ON INTRA-COMMUNITY PRICES PREVIOUSLY ALIGNED ON OFFERS FROM THIRD COUNTRIES .
150 IN REPLY TO THAT ARGUMENT THE COMMISSION CONTENDS THAT AN ALIGNMENT ON OFFERS ORIGINATING IN THIRD COUNTRIES IS VALID ONLY IF THE UNDERTAKING NOTIFIED THE TRANSACTION IN WHICH IT CARRIED OUT SUCH AN ALIGNMENT WITHIN THREE DAYS OF THAT TRANSACTION , IN ACCORDANCE WITH ARTICLE 1 OF DECISION NO 23/63 OF 11 DECEMBER 1963 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1963-1964 , P . 74 ).
151 IF THE COMMISSION ' S ARGUMENT CONCERNED ONLY THE FORMAL VALIDITY OF THE ALIGNMENT OPERATION IT WOULD HAVE TO BE DISMISSED , SINCE THE ABSENCE OF NOTIFICATION DOES NOT CONSTITUTE AN INFRINGEMENT OF THE RULES ON MINIMUM PRICES .
152 HOWEVER , AS THE COMMISSION RIGHTLY MAINTAINS , THE APPLICANT SHOULD HAVE ADDUCED EVIDENCE OF ITS ALIGNMENT ON OFFERS ORIGINATING IN THIRD COUNTRIES ; SINCE SUCH EVIDENCE HAS NOT BEEN ADDUCED BY FERALPI , IT IS NOT POSSIBLE TO ACCEPT THE VALIDITY OF SUCH AN ALIGNMENT OR , A FORTIORI , THE VALIDITY OF AN ALIGNMENT ON AN INTRA-COMMUNITY OFFER WHICH WAS ITSELF PREVIOUSLY ALIGNED - ALTHOUGH THERE IS NO PROOF OF THAT - ON AN OFFER ORIGINATING IN A THIRD COUNTRY .
153 LASTLY , FERALPI SUBMITS THAT , AS REGARDS THE SALES EFFECTED IN THE FEDERAL REPUBLIC OF GERMANY , IT ALIGNED ITS PRICES ON LISTS PUBLISHED BY GERMAN UNDERTAKINGS AND THAT THEREFORE IT DID NOT COMMIT INFRINGEMENTS OF THE RULES ON MINIMUM PRICES , BUT AT MOST , IF THOSE ALIGNMENTS WERE IMPROPER , INFRINGEMENTS OF ARTICLE 60 OF THE ECSC TREATY .
154 IT IS NECESSARY TO POINT OUT IN THE FIRST PLACE THAT ARTICLE 6 ( 1 ) OF DECISION NO 962/77 DOES NOT PREVENT ALIGNMENTS ' ' ON MORE FAVOURABLE DELIVERED PRICES BASED ON THE PRICE-LISTS OF OTHER PRODUCERS IN THE COMMUNITY ' ' . HOWEVER , ALL THE PRICE-LISTS OF UNDERTAKINGS IN THE COMMUNITY MUST COMPLY WITH THE DECISION INTRODUCING THE MINIMUM PRICES AND NO ALIGNMENT ON COMMUNITY PRICES ENABLES SALES TO BE MADE BELOW THE MINIMUM PRICES . IT FOLLOWS THAT ANY SALE BELOW THE MINIMUM PRICES CONSTITUTES NOT ONLY AN IMPROPER ALIGNMENT ON OTHER COMMUNITY PRICES , CONTRARY TO ARTICLE 60 OF THE ECSC TREATY , BUT ALSO AN INFRINGEMENT OF THE RULES ON MINIMUM PRICES .
155 BY DEDUCTING FROM THE GERMAN PRICE-LIST ON WHICH IT CLAIMED TO HAVE ALIGNED ITS PRICES THE TRANSPORT COSTS FROM LONATO ( FERALPI ' S BASING POINT ) TO THE DESTINATION BASING POINT , FERALPI OBTAINED AN ' ' ALIGNED ' ' SELLING PRICE WHICH WAS LOWER THAN THE PRICE RESULTING FROM THE APPLICATION OF A COMMUNITY UNDERTAKING ' S LIST , A PRACTICE PROHIBITED BY ARTICLE 6 ( 1 ); CONSEQUENTLY THE SALES EFFECTED IN THE FEDERAL REPUBLIC OF GERMANY BELOW THE MINIMUM PRICES CONSTITUTE INFRINGEMENTS OF ARTICLE 61 OF THE ECSC TREATY .
THIRD PART : THE REDUCTION OF THE FINES
CHAPTER 1 : GENERAL
156 IN THE ALTERNATIVE THE APPLICANTS HAVE REQUESTED EITHER IN THEIR WRITTEN CONCLUSIONS OR DURING THE ORAL PROCEDURE A REDUCTION IN THE AMOUNT OF THE FINE .
157 IT MUST BE REMEMBERED THAT THESE INFRINGEMENTS WERE COMMITTED AT A TIME OF CRISIS , A CRISIS WHICH JEOPARDIZED THE EXISTENCE OF NUMEROUS UNDERTAKINGS IN THE SECTOR AND ENTAILED THE IMPLEMENTATION OF AN ANTI-CRISIS PLAN BASED MAINLY ON THE PRINCIPLE OF SOLIDARITY , WHICH ALONE COULD ENABLE THE SECTOR AS A WHOLE TO OVERCOME THAT CRISIS .
158 ADMITTEDLY , IT IS NECESSARY TO TAKE NOTE OF THE FACT THAT IN ORDER TO COMPLY WITH THAT PRINCIPLE THE MOST PRODUCTIVE UNDERTAKINGS HAD TO MAKE SACRIFICES , ESPECIALLY HAVING REGARD TO THE FREEDOM ENJOYED BY THE DEALERS AND IMPORTERS FORM NON-MEMBER COUNTRIES AS REGARDS PRICES THROUGHOUT 1977 , DURING WHICH PERIOD MOST OF THE INFRINGEMENT IN QUESTION WERE COMMITTED .
159 BUT BY DECIDING TO APPLY A RELATIVELY LOW COEFFICIENT FOR THE CALCULATION OF THE FINES , NAMELY 25 % OF THE VALUE OF THE UNDERPRICING IN THE CASE OF THE UNDERTAKINGS WITHOUT PARTICULAR FINANCIAL PROBLEMS , 10 % OF THAT VALUE IN THE CASE OF THE MEDIUM-SIZED UNDERTAKINGS OPERATING AT A LOSS , AND 1 % OF THAT VALUE IN THE CASE OF THE INSOLVENT UNDERTAKINGS , HAVING REGARD TO THE RATE WHICH IT MAY APPLY UNDER ARTICLE 64 OF THE TREATY - TWICE THE VALUE OF THE UNLAWFUL SALES - THE COMMISSION PROPERLY TOOK ACCOUNT OF THE CIRCUMSTANCES OF THE CASES .
160 CONSEQUENTLY , THE APPLICANTS ' CLAIMS FOR THE FINES TO BE REDUCED ARE UNFOUNDED , EXCEPT FOR THE CLAIMS WHICH ARE EXAMINED BELOW CONCERNING AN INCORRECT APPLICATION OF THE RATES FIXES BY THE COMMISSION OR REDUCTIONS IN THE VALUE OF THE UNDERPRICING .
CHAPTER 2 : PARTICULAR CASES
1 . ANTONIO STEFANA
161 THIS UNDERTAKING HAS SUBMITTED THAT AT THE TIME WHEN THE FINE WAS IMPOSED ON IT , ITS FINANCIAL SITUATION WAS EXTREMELY CRITICAL , WHICH SUBMISSION HAS NOT BEEN CALLED IN QUESTION BY THE COMMISSION ; CONSEQUENTLY , IN ACCORDANCE WITH THE CRITERIA LAID DOWN BY THE COMMISSION , THE RATE OF 10 % OF THE VALUE OF THE UNDERPRICING MUST BE APPLIED TO THAT UNDERTAKING AND NOT THE RATE OF 25 % , WITH THE RESULT THAT THE FINE IMPOSED UPON IT MUST BE REDUCED FROM 50 852 000 LIRE TO 20 340 800 LIRE .
2 . THE CLAIMS CONCERNING POSSIBLE REDUCTIONS IN THE VALUE OF THE UNDERPRICING
( A ) DI DARFO
162 THE APPLICANT RELIES IN THE FIRST PLACE ON A PROCEDURAL DEFECT , IN SO FAR AS IT WAS SUMMONED TO BRUSSELS TO GIVE FURTHER ORAL EXPLANATIONS ONLY ON 23 JUNE 1978 , WHILST THE MEETING WAS FIXED FOR 29 JUNE 1978 , AND ITS REQUEST FOR AN EXTENSION OF THE PERIOD OF NOTICE MET WITH A NEGATIVE REPLY ; FOR THOSE REASONS IT CLAIMS THAT THE INDIVIDUAL DECISION IMPOSING A PECUNIARY SANCTION , DATED 18 AUGUST 1978 , SHOULD BE ANNULLED , SUBMITTING THAT THE COMMISSION ' S REFUSAL PREVENTED IT FROM PROPERLY PRESENTING ITS CASE .
163 THE COMMISSION OBSERVES THAT IT IS NOT OBLIGED TO GRANT HEARINGS TO THE PARTIES AND THAT THERE CANNOT THEREFORE BE ANY BINDING PERIOD OF NOTICE ; CONSEQUENTLY , THERE IS NO PROCEDURAL DEFECT IN THIS RESPECT , NOR WAS DI DARFO PREVENTED FROM PROPERLY DEFENDING ITSELF .
164 ALTHOUGH IT IS TRUE THAT ARTICLE 36 OF THE TREATY , TO WHICH DI DARFO REFERS , MERELY REQUIRES THE COMMISSION TO GIVE THE PARTY CONCERNED THE OPPORTUNITY TO SUBMIT ITS COMMENTS BEFORE A PECUNIARY SANCTION IS IMPOSED , AND ALTHOUGH IN THIS CASE THE UNDERTAKING WAS ABLE TO SUBMIT WRITTEN OBSERVATIONS , IT MUST NONE THE LESS BE SAID THAT THE PERIOD OF NOTICE GIVEN BY THE COMMISSION TO DI DARFO - IN RELATION TO ITS INVITATION TO A HEARING AT BRUSSELS - COULD HAVE BEEN MORE GENEROUSLY CALCULATED SO AS NOT TO AFFECT THAT UNDERTAKING ' S OPPORTUNITY TO MAKE KNOWN ITS POINT OF VIEW IN GOOD TIME WITH REGARD TO CERTAIN DISPUTED DOCUMENTS . HOWEVER , THAT CONDUCT DOES NOT IPSO FACTO ENTAIL THE ANNULMENT OF THE CONTESTED DECISION , IN AS MUCH AS THE APPLICANT HAD PREVIOUSLY HAD AN OPPORTUNITY TO SUBMIT WRITTEN OBSERVATIONS , BUT THE DOCUMENTS WHICH IT FAILED TO RELY ON IN ITS WRITTEN OBSERVATIONS TO THE COMMISSION , AND WHICH IT CLAIMS TO HAVE WISHED TO SUBMIT AT THE HEARING WHICH IT WAS NOT ABLE TO ATTEND , MUST BE TAKEN INTO CONSIDERATION BY THE COURT .
165 THE APPLICANT GOES ON TO SUBMIT THAT INVOICES NOS 1626 , 1628 AND 1630 - ALL THREE OF 2 SEPTEMBER 1977 - DID NOT CONCERN CONCRETE REINFORCEMENT BARS , BUT ST 37 ROLLED PRODUCTS , AND THAT THOSE INVOICES ARE NOT THEREFORE COVERED BY DECISION NO 962/77 . BUT SINCE THE COMMISSION HAS RIGHTLY POINTED OUT THAT THE INVOICES BEAR A STAMP STATING : ' ' PARTIAL ALIGNMENT ON THE AFIM PRICE-LIST ' ' , AND THAT THAT PRICE-LIST CONCERNS ONLY CONCRETE REINFORCEMENT BARS , THE APPLICANT ' S ARGUMENT MUST BE DISMISSED .
166 FINALLY , IT SUBMITS THAT THE COMMISSION WRONGLY INCLUDED IN THE ALLEGEDLY UNLAWFUL SALES INVOICES IN RESPECT OF ORDERS WHICH WERE PLACED PRIOR TO THE IMPLEMENTATION OF DECISION NO 962/77 . THIS SUBMISSION RELATES TO TWO GROUPS OF ORDERS , ONE FOR GOODS SUPPLIED TO THE UNDERTAKING MARETTO BLEIN THROUGH THE INTERMEDIARY OF S.P.A . DARMA , MILAN , AND THE OTHER FOR GOODS SUPPLIED TO S.P.A . BARACLIT THROUGH THE INTERMEDIARY OF THE UNDERTAKING ALBANI DI MERATE .
167 THE COMMISSION HAS DISMISSED THIS ARGUMENT ON THE GROUND THAT THE ORDERS PUT IN EVIDENCE BY DI DARFO WERE NOT PRODUCED AT THE TIME OF THE INSPECTION . BUT THAT ARGUMENT ON THE PART OF THE COMMISSION IS UNFOUNDED SINCE IN THIS PARTICULAR CASE IT IS APPROPRIATE TO TAKE INTO CONSIDERATION THE DOCUMENTS WHICH THE UNDERTAKING FAILED TO SUBMIT IN CONNEXION WITH ITS WRITTEN OBSERVATIONS TO THE COMMISSION AND WHICH IT DID NOT HAVE AN OPPORTUNITY TO SUBMIT SUBSEQUENTLY .
168 DURING THE ORAL PROCEDURE THE COMMISSION PRODUCED ONE OF THE INVOICES ( NO 1514 ) IN RESPECT OF WHICH DI DARFO SUBMITTED THAT THE ORDERS WERE PRIOR TO 8 MAY 1977 ; ADMITTEDLY , THAT INVOICE IS DATED 2 AUGUST 1977 , BUT IT CAN IN NO WAY CONSTITUTE PROOF DISCREDITING THE DOCUMENT PRODUCED BY DI DARFO WHICH ESTABLISHED THAT THE ORDERS CONSTITUTING A CONTRACT - BY VIRTUE OF WHICH THE PARTIES WERE IN AGREEMENT AS TO THE PRODUCT SOLD AND THE PRICE - HAD ACTUALLY BEEN PLACED BEFORE 8 MAY 1977 .
169 CONSEQUENTLY , THE APPLICANT ' S ARGUMENT MUST BE ACCEPTED AND THE SALES RELATING TO THOSE ORDERS MUST BE EXCLUDED FROM THE LIST OF THOSE IN RESPECT OF WHICH FINES MAY BE IMPOSED ; SINCE THEY REPRESENT 3.4 % OF THE TOTAL THE FINE IMPOSED ON DI DARFO MUST BE REDUCED BY 3.4 % , THAT IS TO SAY FROM 27 830 000 LIRE TO 26 883 780 LIRE .
( B ) RUMI
170 THE APPLICANT SUBMITS THAT THE COMMISSION WAS WRONG TO CALCULATE THE VALUE OF THE UNDERPRICING BY REFERENCE TO THE PRICE OF DM 540 PER TONNE OF CONCRETE REINFORCEMENT BARS , ON THE GROUND THAT IT SOLD ITS CONCRETE REINFORCEMENT BARS BY ALIGNMENT ON THE BASING POINTS SAARBRUCKEN AND OBERHAUSEN AND THAT AS A RESULT OF TRANSPORT COSTS THE PRICE PER TONNE SHOULD HAVE BEEN REDUCED TO DM 451.87 ; THUS IT CONSIDERS THAT THE VALUE OF THE UNDERPRICING FALLS FROM 200 TO APPROXIMATELY 100 MILLION LIRE AND THAT THE FINE SHOULD BE CALCULATED ONLY IN RELATION TO THE LATTER SUM .
171 THE COMMISSION IS RIGHT TO POINT OUT , IN THE FIRST PLACE , THAT THE DOCUMENT PRODUCED IN SUPPORT OF THIS CLAIM RELATES TO SALES SUBSEQUENT TO THOSE TAKEN INTO CONSIDERATION FOR THE CALCULATION OF THE UNDERPRICING AND , SECONDLY , THAT THE FINAL DESTINATION OF THE GOODS IN QUESTION WAS THE NETHERLANDS ; IN THOSE CIRCUMSTANCES AN ALIGNMENT ON GERMAN BASING POINTS WAS CONTRARY TO ARTICLE 60 OF THE TREATY AND , AS THAT UNLAWFUL ALIGNMENT ENABLED THE APPLICANT TO SELL BELOW THE MINIMUM PRICES , IT ALSO CONSTITUTED AN INFRINGEMENT OF THE RULES ON MINIMUM PRICES , WITH THE RESULT THAT THE SUBMISSION RELIED ON BY RUMI MUST BE DISMISSED .
( C ) FERALPI
172 THE APPLICANT SUBMITS THAT THE COMMISSION WRONGLY ACCUSED IT OF HAVING CHARGED PRICES BELOW THE MINIMUM PRICES BY MEANS OF A GROUP OF INVOICES ON WHICH THE DISPUTED PRICES ARE ENTERED BY HAND , CLAIMING THAT SUCH ANNOTATIONS HAVE NO PROBATIVE VALUE SINCE THOSE INVOICES ARE EXTRANEOUS TO THE REAL CONTRACTUAL RELATIONSHIP .
173 THE COMMISSION HAS PRODUCED COPIES OF TELEX MESSAGES RELATING TO THE SALES IN QUESTION WHICH SHOW A DIFFERENCE BETWEEN THE SELLING PRICE EXPRESSED IN GERMAN MARKS , WHICH COMPLIES WITH THE RULES ON MINIMUM PRICES , AND THE AMOUNT INTENDED TO BE INDICATED ON THE INVOICE , WHICH IS EXPRESSED IN LIRE AND IS LOWER THAN THE MINIMUM PRICES .
174 AS THAT EVIDENCE WAS ALSO COROBORATED BY THE WRITTEN TESTIMONY OF THE COMMISSION ' S INSPECTOR , THAT SUBMISSION MUST BE DISMISSED .
175 THE APPLICANT ALSO SUBMITS THAT IT SOLD CONCRETE REINFORCEMENT BARS WITH AN EXTRA FOR QUALITY WHICH THE COMMISSION DID NOT TAKE INTO ACCOUNT IN CALCULATING THE VALUE OF THE UNDERPRICING .
176 IT MUST BE REMEMBERED THAT ARTICLE 2 OF DECISION NO 3000/77 STATES THAT MINIMUM PRICES SHALL BE BASIC PRICES , INCLUDING EXTRA FOR QUALITY , WHEREAS DECISION NO 962/77 HAD MERELY STATED IN ARTICLE 2 THAT THE MINIMUM PRICES SHOULD BE BASIS PRICES . IN THOSE CIRCUMSTANCES , AS FROM 1 JANUARY 1978 , ON WHICH DATE DECISION NO 3000/77 ENTERED INTO FORCE , THE MINIMUM PRICES INCLUDED EXTRAS FOR QUALITY , WHILST THE AMOUNT OF THOSE EXTRAS COULD BE ADDED TO THE MINIMUM PRICES IN DECISION NO 962/77 .
177 AS THE INFRINGEMENTS WERE COMMITTED BETWEEN 3 MARCH AND 3 MAY 1978 , THE UNDERPRICING MUST BE EQUAL TO THE DIFFERENCE BETWEEN THE MINIMUM PRICE ( INCLUDING EXTRAS FOR DIAMETER ) AND THE SELLING PRICE AT WHICH THE TRANSACTION WAS EFFECTED , WHICH INCLUDES THE BASIS PRICE AND THE EXTRAS FOR QUALITY .
178 CONSEQUENTLY , TAKING INTO CONSIDERATION THE SITUATION DESCRIBED ABOVE , THE COURT DECIDES THAT THE FINE SHALL BE REDUCED FROM 55 110 000 LIRE TO 50 000 000 LIRE .
179 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS .
180 UNDER ARTICLE 69 ( 3 ), WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS , OR WHERE THE CIRCUMSTANCES ARE EXEPTIONAL , THE COURT MAY ORDER THAT THE PARTIES SHOULD BEAR THEIR OWN COSTS IN WHOLE OR IN PART .
181 IN CASES 154/78 ( VALSABBIA ), 205/78 ( STEFANA FRATELLI ), 206/78 ( A.F.I.M .), 227/78 ( DI DARFO ), 228/78 ( SIDER CAMUNA ), 263/78 ( RUMI ), 264/78 ( FERALPI ), 31/79 ( MONTEREAU ) - INCLUDING THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - 39/79 ( O.L.S .), 83/79 ( MAXIMILIANSHUTTE ), 85/79 ( KORF ), THE APPLICANTS HAVE BASICALLY FAILED IN THEIR APPLICATIONS AND THEY MUST BE ORDERED TO PAY THE COSTS .
182 IN CASE 226/78 ( ANTONIO STEFANA ) THE COMMISSION HAS FAILED ON THE ALTERNATIVE APPLICATION FOR A REDUCTION IN THE AMOUNT OF THE FINE AND THE PARTIES MUST THEREFORE BEAR THEIR OWN COSTS .
ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . REDUCES THE FINES IMPOSED ON THE APPLICANTS AS FOLLOWS :
- IN THE CASE OF ANTONIO STEFANA ( 226/78 ) TO 19 042 EUROPEAN UNITS OF ACCOUNT , THAT IS 20 340 800 LIRE ;
- IN THE CASE OF DI DARFO ( 227/78 ) TO 25 168 EUROPEAN UNITS OF ACCOUNT , THAT IS 26 883 780 LIRE ;
- IN THE CASE OF FERALPI ( 228/78 ) TO 46 298 EUROPEAN UNITS OF ACCOUNT , THAT IS 50 000 000 LIRE ;
2 . DISMISSES THE REMAINDER OF THE APPLICATIONS ;
3 . ORDERS THE APPLICANTS IN CASES 154/78 ( VALSABBIA ), 205/78 ( STEFANA FRATELLI ), 206/78 ( A.F.I.M .), 227/78 ( DI DARFO),228/78 ( SIDER CAMUNA ), 263/78 ( RUMI ), 264/78 ( FERALPI ), 31/79 ( MONTEREAU ), 39/79 ( O.L.S .), 83/79 ( MAXIMILIANSHUTTE ) AND 85/79 ( KORF ) TO PAY THE WHOLE OF THE COSTS ;
4 . ORDERS THE PARTIES IN CASE 226/78 ( ANTONIO STEFANA ), TO BEAR THEIR OWN COSTS .
