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

1 . OBJECTION OF ILLEGALITY - MEASURES OF WHICH THE ILLEGALITY MAY BE PLEADED - INDIVIDUAL DECISIONS - EXCLUSION
( ECSC TREATY , ART . 36 , THIRD PARA ,)
2 . ECSC - PRODUCTION - SYSTEM OF PRODUCTION QUOTAS FOR STEEL - EXCEEDING OF QUOTAS - ORDER FROM A NON-MEMBER COUNTRY - UNCERTAINTY ABOUT THE INCLUSION IN THE QUOTA SYSTEM OF THE PRODUCTS AT ISSUE - INCLUSION DECIDED LATER - FACTS IN JUSTIFICATION - NONE
( ECSC TREATY , ART . 58 ; GENERAL DECISIONS NO 1831/81 AND NO 1832/81 )

IN CASE 348/82
INDUSTRIE RIUNITE ODOLESI SPA , WHOSE REGISTERED OFFICE IS IN ODOLO ( BRESCIA , ITALY ), REPRESENTED BY DESIDERIO LEALI , MANAGING DIRECTOR , AND BY GINO ALBERTO BERGMANN , OF THE MILAN BAR , FABRIZIO MASSONI , OF THE BRUSSELS BAR , AND GEROLAMO PELLICANO , OF THE MILAN BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER , 15 COTE D ' EICH ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY SERGIO FABRO , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR A DECLARATION THAT COMMISSION DECISION NO C(82 ) 1631/3 OF 24 NOVEMBER 1982 CONCERNING A FINE IMPOSED ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY IS VOID ,

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 31 DECEMBER 1982 , THE COMPANY IRO - INDUSTRIE RIUNITE ODOLESI SPA , WHOSE REGISTERED OFFICE IS IN ODOLO , PROVINCE OF BRESCIA ( ITALY ), BROUGHT AN ACTION , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 33 AND THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY SEEKING A DECLARATION THAT COMMISSION DECISION NO C(82 ) 1631/3 OF 24 NOVEMBER 1982 CONCERNING A FINE IMPOSED ON THE UNDERTAKING IRO - INDUSTRIE RIUNITE ODOLESI SPA UNDER ARTICLE 58 OF THE ECSC TREATY IS VOID , OR , IN THE ALTERNATIVE , A REDUCTION OF THE FINE IMPOSED BY THAT DECISION OR , IN THE FURTHER ALTERNATIVE , DEFERMENT OF PAYMENT OF THAT FINE .

2 THE CONTESTED DECISION FINDS THAT THE APPLICANT HAD EXCEEDED THE PRODUCTION QUOTA ALLOCATED TO IT FOR THE THIRD QUARTER OF 1981 BY 4 999 TONNES IN RESPECT OF PRODUCT CATEGORIES V ( REINFORCING BARS ) AND VI ( MERCHANT BARS ) AND IMPOSES IN RESPECT OF THE EXCESS A FINE OF 374 925 ECU , OR LIT 503 601 959 .
3 THE APPLICANT DOES NOT DENY THAT THE QUOTA WAS EXCEEDED BUT CONTENDS THAT THAT WAS DUE TO THE CONTRADICTORY AND INEQUITABLE ATTITUDE OF THE COMMISSION WHICH , AFTER HAVING APPEARED TO ENCOURAGE EXPORT OF STEEL PRODUCTS TO NON-MEMBER COUNTRIES , SUDDENLY REFUSED TO ALLOW THE APPLICANT TO PRODUCE THE QUANTITIES NECESSARY TO FULFIL AN ORDER FOR DELIVERY TO A NON-MEMBER COUNTRY . THE COMMISSION REFUSED TO TAKE ACCOUNT OF AN ORDER FOR 30 000 TONNES OF REINFORCING BARS TO BE EXPORTED TO LIBYA WHEN IT DETERMINED , ON 4 AUGUST 1981 , THE APPLICANT ' S PRODUCTION QUOTA FOR THE THIRD QUARTER OF 1981 AND WHEN IT REFUSED , ON 7 AUGUST 1981 , THE APPLICATION TO ADJUST THE QUOTA TO THE SPECIAL CIRCUMSTANCES OF THE APPLICANT ' S UNDERTAKING , WHEREAS THE COMMISSION ITSELF HAD , AT THE TIME OF AN EARLIER LIBYAN ORDER IN 1980 , INFORMED THE APPLICANT THAT IT WAS ' ' IN THE INTEREST OF THE COMMUNITY STEEL INDUSTRY TO MAINTAIN THESE PATTERNS OF EXPORT ' ' .

4 ON THE BASIS OF THESE ALLEGATIONS OF FACT , THE APPLICANT CLAIMS FIRST OF ALL THAT THE COMMISSION WAS REQUIRED TO ADJUST ITS QUOTA , BOTH ON THE BASIS OF ARTICLE 14 OF GENERAL DECISION NO 2794/80/ECSC OF 31 OCTOBER 1980 ESTABLISHING A SYSTEM OF STEEL PRODUCTION QUOTAS FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY ( OFFICIAL JOURNAL L 291 , P . 1 ) AND ON THAT OF GENERAL DECISION NO 1831/81/ECSC OF 24 JUNE 1981 ESTABLISHING FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY A MONITORING SYSTEM AND A NEW SYSTEM OF PRODUCTION QUOTAS IN RESPECT OF CERTAIN PRODUCTS ( OFFICIAL JOURNAL L 180 , P . 1 ).

5 THE APPLICANT THEN INVOKES THE SAME CIRCUMSTANCES IN SUPPORT OF ITS CONTENTION THAT THE AMOUNT OF THE FINE IMPOSED UPON IT IS DISPROPORTIONATE TO THE OFFENCE COMMITTED . IT POINTS OUT THAT ITS UNDERTAKING , WHICH IS SMALL IN SIZE , COULD NOT HAVE SURVIVED THE LOSS OF THE LIBYAN CONTRACT WHICH THE ABANDONMENT OF THE NEW LIBYAN ORDER WOULD HAVE ENTAILED .

6 IT MUST BE POINTED OUT FIRST OF ALL THAT THE FIRST OF THESE TWO SUBMISSIONS AMOUNTS TO A CHALLENGE TO THE LEGALITY OF THE DECISIONS OF 4 AND 7 AUGUST 1981 BY WHICH THE COMMISSION RESPECTIVELY DETERMINED THE APPLICANT ' S PRODUCTION QUOTA FOR THE THIRD QUARTER OF 1981 AND REFUSED THE APPLICANT ' S REQUEST TO ADJUST THE QUOTA . HOWEVER , THOSE DECISIONS HAVE BECOME DEFINITIVE BY VIRTUE OF NOT HAVING BEEN CONTESTED WITHIN THE PERIODS PROVIDED BY THE TREATY . IT IS CLEAR FROM AN ESTABLISHED BODY OF CASE-LAW THAT AN APPLICANT CANNOT , IN THE COURSE OF AN APPLICATION DIRECTED AGAINST AN INDIVIDUAL DECISION , PUT FORWARD AN OBJECTION OF ILLEGALITY AGAINST OTHER INDIVIDUAL DECISIONS ADDRESSED TO IT , WHICH HAVE BECOME DEFINITIVE .

7 IN THOSE CONDITIONS , IT IS POINTLESS FOR THE APPLICANT TO PLEAD THE ILLEGALITY OF THE AFOREMENTIONED DECISIONS OF 4 AND 7 AUGUST 1981 . THE FIRST SUBMISSION MUST THEREFORE BE DISMISSED .

8 IN ITS SECOND SUBMISSION , THE APPLICANT ASKS THE COURT , IN EXERCISE OF THE UNLIMITED JURISDICTION CONFERRED UPON THE COURT BY THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY , TO REDUCE THE AMOUNT OF THE FINE IMPOSED UPON IT .

9 IT IS NECESSARY IN THIS CONTEXT TO EXAMINE THE FACTUAL CIRCUMSTANCES IN WHICH THE INFRINGEMENT AT ISSUE WAS COMMITTED . WHILST IT IS TRUE THAT THE APPLICANT DID NOT REQUEST THE ADJUSTMENT OF ITS QUOTA WHEN IT ACCEPTED THE LIBYAN ORDER IN APRIL 1981 AND THAT IT MADE SUCH A REQUEST ONLY TOWARDS THE MIDDLE OF JULY , REFERRING TO GENERAL DECISION NO 2794/80 WHICH HAD ALREADY EXPIRED , IT IS ALSO TRUE THAT DURING THE MONTHS OF MAY AND JUNE 1981 , WHEN THE APPLICANT WAS STARTING TO FULFIL THE LIBYAN ORDER , THE UNDERTAKINGS INVOLVED WERE UNCERTAIN WHETHER OR NOT REINFORCING BARS WOULD BE INCLUDED IN THE NEW SYSTEM OF PRODUCTION QUOTAS WHICH WOULD APPLY AFTER 30 JUNE 1981 . IT SHOULD NOT BE FORGOTTEN THAT REINFORCING BARS WERE ONLY FINALLY INCLUDED ON 3 JULY 1981 BY GENERAL DECISION NO 1832/81 INCLUDING THEM AND MERCHANT BARS IN THE NEW SYSTEM OF PRODUCTION QUOTAS ( OFFICIAL JOURNAL L 184 , P . 1 ), WHICH AMENDED GENERAL DECISION NO 1831/81 WHICH HAD ALREADY COME INTO FORCE ON 1 JULY .

10 THESE CIRCUMSTANCES ARE NOT HOWEVER SUFFICIENT TO EXONERATE THE APPLICANT FROM THE CRITICISMS MADE OF IT BY THE COMMISSION . ACCOUNT MUST BE TAKEN OF THE FACT THAT THE LIBYAN ORDER OF APRIL 1981 WAS FOR 30 000 TONNES , A QUANTITY CONSIDERABLY ABOVE THE QUARTERLY PRODUCTION QUOTA NORMALLY ALLOCATED TO THE APPLICANT . THE PRUDENCE REQUIRED OF EVERY UNDERTAKING OPERATING IN A REGULATED MARKET LIKE THAT IN STEEL PRODUCTS IN 1981 SHOULD HAVE CAUSED THE APPLICANT TO TAKE THE NECESSARY PRECAUTIONS AND TO APPLY AT ONCE FOR THE NECESSARY ADJUSTMENT OF THE QUOTAS ALLOCATED TO IT , SO AS TO BE ABLE TO CONTEST ANY UNJUSTIFIED REFUSAL . THE MERE FACT THAT THE COMMISSION , IN ITS EARLIER CORRESPONDENCE WITH THE APPLICANT , HAD REFERRED IN GENERAL TERMS TO THE ' ' INTEREST OF THE COMMUNITY STEEL INDUSTRY ' ' IN MAINTAINING THE PATTERNS OF EXPORTS TO NON-MEMBER COUNTRIES , IS NOT SUCH AS TO DISCHARGE THE APPLICANT FROM THAT OBLIGATION .

11 FINALLY , IT MUST BE NOTED THAT THE FINE IMPOSED WAS CALCULATED ON THE BASIS OF 75 ECU PER TONNE OF EXCESS , WHILST THE TOTAL EXCESS , BEING GREATER THAN 10% OF THE QUOTA , WOULD HAVE PERMITTED THE APPLICATION OF A HIGHER RATE OF FINE , PURSUANT TO ARTICLE 12 ( 2 ) OF GENERAL DECISION NO 1831/81 .
12 IN THE LIGHT OF THESE CIRCUMSTANCES , THE COURT CONSIDERS THAT THERE ARE NO GROUNDS FOR REDUCING THE FINE IMPOSED .

13 AS REGARDS THE APPLICANT ' S ALTERNATIVE CLAIM FOR A SUSPENSION OF THE PAYMENT OF THE FINE , FOR WHICH NO GROUNDS HAVE BEEN ADVANCED , IT IS SUFFICIENT TO NOTE THAT THE COMMISSION HAS DECLARED ITSELF PREPARED TO GRANT SPECIAL CONDITIONS OF PAYMENT TO UNDERTAKINGS FACING MAJOR ECONOMIC DIFFICULTIES . IT IS FOR THE APPLICANT TO MAKE A REASONED APPLICATION TO THE COMMISSION SO AS TO OBTAIN A POSTPONEMENT IF APPROPRIATE .

14 CONSEQUENTLY , THE APPLICATION MUST BE DISMISSED IN ITS ENTIRETY .

COSTS
15 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE , THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR IN THE SUCCESSFUL PARTY ' S PLEADING . THE APPLICANT , HAVING FAILED IN ITS SUBMISSIONS , MUST BE ORDERED TO PAY THE COSTS .

ON THOSE GROUNDS ,
THE COURT ( FIRST CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;

2 . ORDERS THE APPLICANT TO PAY THE COSTS .