Court of Justice of the European Communities (including Court of First Instance Decisions)

1 . OBJECTION OF ILLEGALITY - PROVISIONS OF GENERAL DECISIONS WHICH MAY BE SO CHALLENGED - PROVISIONS CONSTITUTING THE BASIS FOR THE CONTESTED INDIVIDUAL DECISION
( ECSC TREATY , THIRD PARAGRAPH OF ARTICLE 36 )
2 . ECSC - PRODUCTION - SYSTEM OF PRODUCTION QUOTAS FOR STEEL - DECISION NO 2794/80/ECSC - RETROACTIVE NATURE
3 . MEASURES OF THE INSTITUTIONS - TIME FROM WHICH THEY TAKE EFFECT - PRINCIPLE THAT THEY MAY NOT BE RETROACTIVE - EXCEPTIONS - CONDITIONS
4 . ECSC - PRODUCTION - SYSTEM OF QUOTAS - OBLIGATION OF THE COMMISSION TO CARRY OUT STUDIES JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS - LIMITS
( ECSC TREATY , ART . 58 ( 2 ))
5 . ECSC - PRODUCTION - SYSTEM OF QUOTAS - CONCOMITANT ADOPTION OF MEASURES CONCERNING IMPORTS FROM NON-MEMBER COUNTRIES - POWER OF APPRAISAL OF THE COMMISSION
( ECSC TREATY , ART . 58 ( 1 ))

1 . ALTHOUGH , IN AN ACTION FOR A DECLARATION THAT AN INDIVIDUAL DECISION IS VOID , THE APPLICANT MAY SUBMIT THAT CERTAIN PROVISIONS OF THE GENERAL DECISIONS WHICH THE CONTESTED DECISION IMPLEMENTS ARE ILLEGAL , HE MAY DO SO ONLY IF THE INDIVIDUAL DECISION IS BASED ON THE RULES ALLEGED TO BE ILLEGAL .

2 . ALTHOUGH DECISION NO 2794/80/ECSC , FIXED PRODUCTION QUOTAS AS FOR THE STEEL INDUSTRY FROM 1 OCTOBER 1980 , WHEREAS IT DID NOT ENTER INTO FORCE UNTIL 31 OCTOBER 1980 , IT DID NOT HAVE GENUINE RETROACTIVE EFFECT SINCE THE UNDERTAKINGS WERE ABLE TO ADJUST THEIR PRODUCTION IN NOVEMBER AND DECEMBER TO TAKE ACCOUNT OF THEIR QUOTAS FOR THE QUARTER AND THEREBY AVOID ANY INFRINGEMENT .

3 . ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

4 . ALTHOUGH , PURSUANT TO ITS OBLIGATION UNDER ARTICLE 58 ( 2 ) OF THE ECSC TREATY TO CARRY OUT STUDIES JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN ORDER TO DETERMINE PRODUCTION QUOTAS , THE COMMISSION IS OBLIGED TO CONSULT UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN CONDUCTING SUCH STUDIES , THAT OBLIGATION DOES NOT IMPLY THAT IT MUST CONSULT EACH UNDERTAKING INDIVIDUALLY OR THAT IT MUST OBTAIN THE AGREEMENT OF THE STEEL PRODUCERS TO THE MEASURES PROPOSED .

5 . UNDER THE TERMS OF ARTICLE 58 ( 1 ) OF THE ECSC TREATY THE COMMISSION HAS POWER TO TAKE ' ' TO THE NECESSARY EXTENT ' ' THE MEASURES PROVIDED FOR IN ARTICLE 74 AT THE SAME TIME AS ANY MEASURE TAKEN ON THE BASIS OF ARTICLE 58 . THE APPRAISAL OF THE NECESSITY OF TAKING SUCH MEASURES IS A MATTER FOR THE COMMISSION , SUBJECT TO THE COURT ' S POWER TO REVIEW THE LAWFULNESS OF THE COMMISSION ' S EXERCISE OF ITS DISCRETION .

IN CASE 258/80
SPA METALLURGICA RUMI , WHOSE REGISTERED OFFICE IS IN BERGAMO , ITALY , IN THE PERSON OF ITS CHAIRMAN , CARLO RUMI , REPRESENTED BY GIACOMO FUSTIONI AND GIUSEPPE MARCHESINI , ADVOCATES AT THE CORTE DI CASSAZIONE OF THE ITALIAN REPUBLIC , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN HOSS , 84 GRAND-RUE ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALBERTO PROZZILLO , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR A DECLARATION THAT AN INDIVIDUAL DECISION OF THE COMMISSION CONCERNING THE FIXING OF PRODUCTION QUOTAS FOR CERTAIN STEEL PRODUCTS IS VOID ( ARTICLE 33 OF THE ECSC TREATY ),

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 24 NOVEMBER 1980 METALLURGICA RUMI SPA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY FOR A DECLARATION THAT THE COMMISSION ' S INDIVIDUAL DECISION OF 1 NOVEMBER 1980 FIXING THE APPLICANT ' S PRODUCTION QUOTAS FOR THE FOURTH QUARTER OF 1980 PURSUANT TO COMMISSION DECISION NO 2794/80/ECSC OF 31 OCTOBER 1980 ESTABLISHING A SYSTEM OF STEEL PRODUCTION QUOTAS ( OFFICIAL JOURNAL 1980 L 291 , P . 1 ) IS VOID .

2 THE APPLICATION IS NOT BASED ON AN ERRONEOUS FIXING OF THE APPLICANT ' S INDIVIDUAL QUOTAS . THE APPLICANT CONSIDERS THE CONTESTED DECISION UNLAWFUL , ON THE ONE HAND , BECAUSE IT IS IN APPLICATION OF VARIOUS ALLEGEDLY UNLAWFUL PROVISIONS OF THE GENERAL DECISION , DECISION NO 2794/80/ECSC , AND , ON THE OTHER HAND , BECAUSE , IN APPLYING ARTICLES 1 ( 4 ) AND 13 OF THAT GENERAL DECISION , THE COMMISSION FAILED TO ENSURE THAT THE INSPECTORS OR EXPERTS WHOM IT ENGAGED PROVIDED THE GUARANTEES OF INDEPENDENCE INDISPENSABLE TO THE PROTECTION OF THE BUSINESS SECRETS OF THE UNDERTAKINGS .

THE FIRST SUBMISSION
3 THIS SUBMISSION CONCERNS THE FACT THAT THE COMMISSION ENGAGED EMPLOYEES OF COMPETING UNDERTAKINGS TO CARRY OUT THE CHECKS AND VERIFICATIONS PRESCRIBED IN ARTICLES 1 ( 4 ) AND 13 OF DECISION NO 2794/80/ECSC , WITH THE ALLEGED RESULT THAT BUSINESS SECRETS WERE NOT PROTECTED . ACCORDING TO THE APPLICANT , SUCH EXPERTS MAY NOT BE CONSIDERED ' ' THIRD PARTIES ' ' OR ' ' INDEPENDENT AGENCIES ' ' WITHIN THE MEANING OF ARTICLE 1 ( 4 ) OF THE DECISION ; THE COMMISSION THEREFORE MISAPPLIED THOSE PROVISIONS .

4 THE APPLICANT , HOWEVER , HAS NOT CLAIMED THAT THERE WAS ANY BREACH OF ITS BUSINESS SECRECY DURING THE INSPECTIONS CARRIED OUT BY THE COMMISSION . THIS SUBMISSION MUST ACCORDINGLY BE REJECTED .

THE SECOND SUBMISSION
5 THE SECOND SUBMISSION CONCERNS THE PROVISIONS OF ARTICLE 7 ( 2 ) OF DECISION NO 2794/80/ECSC , ACCORDING TO WHICH UNDERTAKINGS MAY NOT EXCEED , FOR DELIVERIES WITHIN THE COMMON MARKET , THE RATIO WHICH EXISTED , BEFORE THE ENTRY INTO FORCE OF THE QUOTA SYSTEM , BETWEEN COMMUNITY DELIVERIES AND TOTAL DELIVERIES .

6 IT SHOULD BE POINTED OUT THAT ALTHOUGH , IN AN ACTION FOR A DECLARATION THAT AN INDIVIDUAL DECISION IS VOID , THE APPLICANT MAY SUBMIT THAT CERTAIN PROVISIONS OF THE GENERAL DECISIONS WHICH THE CONTESTED DECISION IMPLEMENTS ARE ILLEGAL , HE MAY DO SO ONLY IF THE INDIVIDUAL DECISION IS BASED ON THE RULES ALLEGED TO BE ILLEGAL .

7 IN THIS CASE THE INDIVIDUAL DECISION DOES NOT CONCERN THE IMPLEMENTATION OF ARTICLE 7 ( 2 ) OF THE GENERAL DECISION AND ITS LAWFULNESS DOES NOT DEPEND ON THE LAWFULNESS OF THAT PROVISION . THE APPLICABILITY OF THAT ARTICLE FLOWS DIRECTLY FROM THE GENERAL DECISION WITHOUT THE NEED FOR THE COMMISSION TO ISSUE INDIVIDUAL DECISIONS TO THE UNDERTAKINGS . THE ECSC TREATY DOES NOT PERMIT UNDERTAKINGS TO CHALLENGE BY MEANS OF A DIRECT ACTION SUCH PROVISIONS UNLESS A MISUSE OF POWERS HAS OCCURRED . ON THE OTHER HAND , IT PROVIDES FOR JUDICIAL REVIEW OF ANY DECISION OF THE COMMISSION IMPOSING A FINE ON AN UNDERTAKING WHICH HAS INFRINGED THE GENERAL DECISION . THIS SUBMISSION IS THEREFORE INADMISSIBLE .

THE THIRD SUBMISSION
8 IN THIS SUBMISSION THE APPLICANT ARGUES AS FOLLOWS : DECISION NO 2794/80/ECSC , WHICH DID NOT ENTER INTO FORCE UNTIL ITS PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES ON 31 OCTOBER 1980 , PRESCRIBED PRODUCTION QUOTAS FOR THE STEEL INDUSTRY FROM 1 OCTOBER 1980 . THE DECISION WAS RETROACTIVE AND THUS IN BREACH OF ONE OF THE GENERAL PRINCIPLES OF LAW GOVERNING THE APPLICATION OF THE TREATY . ITS EFFECT WAS THAT COMMERCIAL OPERATIONS CARRIED OUT IN OCTOBER 1980 WERE EX POST FACTO GIVEN LEGAL SIGNIFICANCE IN DETERMINING WHETHER AN UNDERTAKING ' S SUBSEQUENT BEHAVIOUR WAS LAWFUL OR NOT . IF PRODUCTION AND DELIVERIES IN THE MONTH OF OCTOBER EXCEEDED THE QUOTA ALLOCATED FOR THE QUARTER THE RETROACTIVE EFFECT OF THE PROVISIONS IN QUESTION WOULD EX POST FACTO RENDER UNLAWFUL ACTS WHICH WERE NOT UNLAWFUL AT THE TIME WHEN THEY WERE PERFORMED . WHILST IT IS TRUE THAT THE COMMISSION HAD ANNOUNCED ITS INTENTIONS , IT IS NO LESS TRUE THAT THE PRESS REPORTED DIFFERENCES WITHIN THE COUNCIL SO THAT THE ADOPTION OF THE COMMISSION ' S PROPOSAL APPEARED IMPROBABLE AND THE UNDERTAKINGS MAY NOT HAVE RECKONED WITH IT .

9 IT SHOULD BE POINTED OUT THAT THE APPLICANT HAS NOT INDICATED WHETHER CERTAIN UNDERTAKINGS IN FACT EXHAUSTED THEIR PRODUCTION QUOTAS FOR THE FOURTH QUARTER OF 1980 BEFORE THE ENTRY INTO FORCE OF DECISION NO 2794/80/ECSC . THAT HYPOTHESIS , WHICH APPEARS IMPROBABLE , DOES NOT IN ANY EVENT APPLY TO THE APPLICANT AND MAY ACCORDINGLY BE DISREGARDED .

10 IN THESE CIRCUMSTANCES DECISION NO 2794/80/ECSC DID NOT HAVE GENUINE RETROACTIVE EFFECT SINCE THE UNDERTAKINGS WERE ABLE TO ADJUST THEIR PRODUCTION IN NOVEMBER AND DECEMBER TO TAKE ACCOUNT OF THEIR QUOTAS FOR THE QUARTER AND THEREBY AVOID ANY INFRINGEMENT .

11 MOREOVER , ALTHOUGH IN GENERAL THE PRINCIPLE OF LEGAL CERTAINTY PRECLUDES A COMMUNITY MEASURE FROM TAKING EFFECT FROM A POINT IN TIME BEFORE ITS PUBLICATION , IT MAY EXCEPTIONALLY BE OTHERWISE WHERE THE PURPOSE TO BE ACHIEVED SO DEMANDS AND WHERE THE LEGITIMATE EXPECTATIONS OF THOSE CONCERNED ARE DULY RESPECTED .

12 THOSE TWO CONDITIONS ARE FULFILLED IN THE CIRCUMSTANCES OF THIS CASE . IT WAS NECESSARY TO INCLUDE THE MONTH OF OCTOBER IN THE SYSTEM IN ORDER TO PREVENT UNDERTAKINGS FROM INCREASING THEIR PRODUCTION IN OCTOBER IN ANTICIPATION OF THE REDUCTIONS SUBSEQUENTLY TO BE APPLIED . FURTHERMORE , THE COMMISSION RESPECTED THE LEGITIMATE EXPECTATIONS OF THE PERSONS CONCERNED BY MEANS OF THE COMMUNICATION OF 11 OCTOBER 1980 ( OFFICIAL JOURNAL C 264 , P . 2 ), WHEREBY IT GAVE NOTICE OF ITS INTENTION TO INCLUDE THE MONTH OF OCTOBER IN THE SYSTEM OF QUOTAS , AND BY MEANS OF THE DECISION PUBLISHED ON THE SAME DATE ( OFFICIAL JOURNAL L 268 , P . 25 ) REQUIRING THE UNDERTAKINGS TO SUPPLY INFORMATION ON THEIR PRODUCTION FOR OCTOBER 1980 . ALTHOUGH IN ITS COMMUNICATION OF 11 OCTOBER 1980 THE COMMISSION DID NOT IN FACT INDICATE WHAT THE LEVEL OF THE QUOTAS WOULD BE , WHICH MIGHT HAVE PREVENTED THE UNDERTAKINGS FROM ESTABLISHING THE PRECISE CONSEQUENCES OF THE COMMISSION ' S RECOMMENDATION AND ENSURING THAT THEIR PRODUCTION WAS NOT EXCESSIVE IN RELATION TO THE QUOTAS WHICH WERE TO BE ALLOCATED FOR THE QUARTER AS A WHOLE , IT NEVERTHELESS REMAINS THAT THE UNDERTAKINGS RECEIVED NOTICE OF THE COMMISSION ' S INTENTIONS .

THE FOURTH SUBMISSION
13 ACCORDING TO THE APPLICANT , THE COMMISSION FAILED TO SATISFY THE REQUIREMENT OF CONSULTING THE UNDERTAKINGS CONCERNED LAID DOWN BY ARTICLE 58 OF THE ECSC TREATY WHICH PROVIDES THAT THE COMMISSION MUST DETERMINE THE QUOTAS ON THE BASIS OF STUDIES MADE JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS . THE COMMISSION IMPOSED ITS OWN PROPOSALS AND THE ASSOCIATION OF ITALIAN STEEL PRODUCERS HAD NEITHER THE TIME NOR THE MEANS TO PUT FORWARD COUNTERPROPOSALS REGARDING THE METHOD OF CALCULATING THE QUOTAS AND THE RATE AT WHICH PRODUCTION WAS TO BE REDUCED .

14 THE COMMISSION ' S OBLIGATION TO CARRY OUT STUDIES JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS MUST RECEIVE A WIDER INTERPRETATION THAN THAT PLACED UPON IT BY THE APPLICANT . IN FACT THE COMMISSION OBTAINS INFORMATION ON THE GENERAL SITUATION IN THE STEEL INDUSTRY AND ITS VARIOUS SECTORS BY CONDUCTING CONTINUOUS STUDIES . IN THIS CONNECTION IT SHOULD BE RECALLED THAT , ACCORDING TO ARTICLE 46 OF THE ECSC TREATY , UNDERTAKINGS AND THEIR ASSOCIATIONS ARE ENTITLED TO PRESENT ANY SUGGESTIONS OR COMMENTS TO THE HIGH AUTHORITY ON QUESTIONS AFFECTING THEM . FURTHERMORE , THE APPLICANT , LIKE ANY OTHER STEEL PRODUCER , IS BOUND REGULARLY TO FURNISH THE COMMISSION WITH ITS PRODUCTION FIGURES AND PRICES . IN ADDITION THE COMMISSION CARRIED OUT SPECIFIC STUDIES CONCERNING THE REQUIREMENTS OF THE QUOTA SYSTEM . THESE VARIOUS FACTORS CONSTITUTE THE STUDIES WITHIN THE MEANING OF ARTICLE 58 ( 2 ) OF THE ECSC TREATY WHICH THE COMMISSION WAS ABLE TO TAKE INTO ACCOUNT .

15 ALTHOUGH THE COMMISSION IS OBLIGED TO CONSULT UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS IN CONDUCTING SUCH STUDIES , THAT OBLIGATION DOES NOT IMPLY THAT IT MUST CONSULT EACH UNDERTAKING INDIVIDUALLY OR THAT IT MUST OBTAIN THE AGREEMENT OF THE STEEL PRODUCERS TO THE MEASURES PROPOSED UNDER ARTICLE 58 . IN THIS CASE THE COMMISSION INFORMED THE STEEL PRODUCERS OF THE MEASURES WHICH IT ITENDED TO TAKE AND IT HELD MEETINGS WITH THE ASSOCIATIONS OF UNDERTAKINGS CONCERNED , INCLUDING THE ASSOCIATION OF ITALIAN PRODUCERS OF CONCRETE REINFORCING BARS , ALLOWING THEM TO BRING THEIR PROPOSALS TO THE COMMISSION ' S ATTENTION . THE APPLICANT WAS REPRESENTED AT ONE AT LEAST OF THESE MEETINGS , NAMELY THE MEETING ON 17 OCTOBER 1980 . THE COMMISSION THUS DISCHARGED ITS DUTY TO CONDUCT STUDIES JOINTLY WITH UNDERTAKINGS AND ASSOCIATIONS OF UNDERTAKINGS .

THE FIFTH SUBMISSION
16 THE APPLICANT COMPLAINS THAT THE COMMISSION FAILED TO TAKE THE MEASURES AGAINST IMPORT PROVIDED FOR BY ARTICLE 74 OF THE ECSC TREATY IF SUCH IMPORTS CAUSE OR THREATEN TO CAUSE SERIOUS INJURY TO PRODUCTION WITHIN THE COMMON MARKET OF LIKE OR DIRECTLY COMPETING PRODUCTS .

17 UNDER THE TERMS OF ARTICLE 58 THE COMMISSION HAS POWER TO TAKE ' ' TO THE NECESSARY EXTENT ' ' THE MEASURES PROVIDED FOR IN ARTICLE 74 AT THE SAME TIME AS ANY MEASURE TAKEN ON THE BASIS OF ARTICLE 58 . THE APPRAISAL OF THE NECESSITY OF TAKING SUCH MEASURES IS A MATTER FOR THE COMMISSION , SUBJECT TO THE COURT ' S POWER TO REVIEW THE LAWFULNESS OF THE COMMISSION ' S EXERCISE OF ITS DISCRETION .

18 IN THIS CONNECTION IT MUST BE EMPHASIZED THAT THE APPLICANT HAS NOT ADDUCED ANY EVIDENCE IN SUPPORT OF ITS SUBMISSION THAT THE COMMISSION MISUSED ITS DISCRETION . ON THE CONTRARY , EVEN BEFORE THE INTRODUCTION OF THE QUOTA SYSTEM , THE COMMISSION TOOK STEPS TO CONTROL THE LEVEL OF PRICES AND THE QUANTITY OF IMPORTS OF STEEL PRODUCTS FROM NON-MEMBER COUNTRIES . IN PARTICULAR , IT FIXED BASIC PRICES , CONCLUDED ARRANGEMENTS WITH NON-MEMBER COUNTRIES AND TOOK SUPERVISORY ACTION . AT THE TIME OF THE ADOPTION OF DECISION NO 2794/80/ECSC IT FURTHER INTENSIFIED THAT SUPERVISION AND REVIEWED THE BASIC PRICES . MOREOVER , ACCORDING TO THE FIGURES SUPPLIED BY THE COMMISSION , THE LEVEL OF IMPORTS FELL BETWEEN 1977 AND 1979 AND THAT TENDENCY CONTINUED BEFORE AND AFTER THE INTRODUCTION OF THE QUOTA SYSTEM . THEREFORE THE COMMISSION CANNOT BE ACCUSED OF NOT HAVING TRIED TO COMBAT IMPORTS FROM NON-MEMBER COUNTRIES .

19 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 .

20 IN VIEW OF THE FOREGOING THE APPLICATION MUST BE DISMISSED AS UNFOUNDED .

COSTS
21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY MUST BE ORDERED TO PAY THE COSTS .

22 SINCE THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS , INCLUDING THE COSTS OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

ON THOSE GROUNDS ,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION ;

2.ORDERS THE APPLICANT TO PAY THE COSTS , INCLUDING THE COSTS OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .