61981CJ0258_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 258/81
METALLURGIKI HALYPS A.E ., A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE
LAWS OF GREECE, HAVING ITS REGISTERED OFFICE IN ATHENS, REPRESENTED BY IOANNIS
E . STAMOULIS, ALEKSANDROS LYKOUREZOS AND CHRISTOS D . ARVANITITS OF THE ATHENS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY FRANK BENYON AND GEORGES KREMLIS, MEMBERS OF ITS LEGAL DEPARTMENT, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE DECISION OF 12 AUGUST 1981 BY WHICH THE COMMISSION FIXED THE APPLICANT ' S REFERENCE PRODUCTION, REFERENCE QUANTITIES AND PRODUCTION AND DELIVERY QUOTAS FOR ROLLED PRODUCTS IN CATEGORIES V AND VI ( CONCRETE REINFORCING BARS AND MERCHANT BARS ) FOR THE THIRD QUARTER OF 1981 IS VOID,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 22 SEPTEMBER 1981 METALLURGIKI HALYPS AE, A LIMITED LIABILITY COMPANY INCORPORATED UNDER THE LAWS OF GREECE AND HAVING ITS REGISTERED OFFICE IN ATHENS, BROUGHT AN ACTION UNDER ARTICLE 33 OF THE ECSC TREATY TO HAVE DECLARED VOID THE DECISION OF 12 AUGUST 1981 BY WHICH THE COMMISSION, ACTING PURSUANT TO COMMISSION DECISION 1831/81/ECSC OF 24 JUNE 1981, A GENERAL DECISION 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 1980 L 180, P . 1 ), FIXED THE APPLICANT ' S REFERENCE PRODUCTION, REFERENCE QUANTITIES AND PRODUCTION AND DELIVERY QUOTAS FOR ROLLED PRODUCTS IN CATEGORIES V AND VI ( CONCRETE REINFORCING BARS AND MERCHANT BARS ) FOR THE THIRD QUARTER OF 1981 .
2 ON THE BASIS OF ITS SUBMISSIONS AS THEY NOW STAND THE APPLICANT CLAIMS, IN SUPPORT OF ITS ACTION AGAINST THE DECISION OF 12 AUGUST 1981, THAT GENERAL DECISION 1831/81 ON WHICH IT IS BASED IS NOT APPLICABLE TO GREEK UNDERTAKINGS BECAUSE IT FAILS TO HAVE REGARD, FIRST, TO THE TRANSITIONAL ARRANGEMENTS MADE IN THE ACT OF ACCESSION CONCERNING GREECE AND, SECONDLY, TO ARTICLES 1 TO 5 AND 58 OF THE ECSC TREATY AND THE GENERAL LEGAL PRINCIPLES GOVERNING THEIR APPLICATION .
APPLICATION OF DECISION 1831/81 TO GREEK UNDERTAKINGS
3 THE APPLICANT CLAIMS THAT THE APPLICATION OF THE PRODUCTION QUOTA SYSTEM TO GREEK UNDERTAKINGS IS CONTRARY TO THE OBJECTIVE OF THE TRANSITIONAL PROVISIONS FORMING PART OF THE ACT OF ACCESSION, EVEN IF IT MIGHT APPEAR TO BE JUSTIFIED ON A STRICTLY LITERAL INTERPRETATION OF ARTICLE 2 OF THE ACT .
4 IN THIS RESPECT IT RELIES MORE SPECIFICALLY ON ARTICLES 25 TO 34 CONCERNING THE GRADUAL ABOLITION OF IMPORT DUTIES BY 1 JANUARY 1986, ARTICLE 38 CONCERNING THE GRADUAL ABOLITION OF THE IMPORT DEPOSIT SYSTEM, ARTICLE 129 CONTAINING CERTAIN SPECIFIC TRANSITIONAL PROVISIONS FOR THE STEEL INDUSTRY, ARTICLE 130, WHICH IS THE GENERAL SAFEGUARD CLAUSE, PROTOCOL 3 ON THE GRANTING BY THE HELLENIC REPUBLIC OF EXEMPTION FROM CUSTOMS DUTIES ON THE IMPORTATION OF CERTAIN GOODS TO AID DEVELOPMENT OF THE ECONOMY AND, FINALLY, PROTOCOL 7 ON THE ECONOMIC AND INDUSTRIAL DEVELOPMENT OF GREECE .
5 THE APPLICANT TAKES THE VIEW THAT, TAKEN AS A WHOLE, THOSE PROVISIONS SHOW THAT DECISION 1831/81 CANNOT BE APPLIED PER SE TO GREEK UNDERTAKINGS SINCE ITS EFFECT IS TO REDUCE PRODUCTION, WHICH IS ALREADY INSUFFICIENT TO MEET GREECE ' S DEVELOPMENT NEEDS, AND IT NOT ONLY SLOWS DOWN INDUSTRIAL DEVELOPMENT BUT ALSO DISRUPTS THE OPERATION OF GREEK STEEL UNDERTAKINGS . IN THIS REGARD IT IS ARGUED THAT THE APPLICATION OF THE QUOTA SYSTEM TO GREEK UNDERTAKINGS IS CONTRARY TO THE GENERAL PRINCIPLES OF LEGAL CERTAINTY, PROTECTION OF LEGITIMATE EXPECTATION AND THE RIGHT TO PROPERTY .
6 THAT ARGUMENT OF THE APPLICANT FAILS TO TAKE ACCOUNT OF THE SCHEME OF THE ACT OF ACCESSION .
7 ARTICLE 2 OF THE ACT PROVIDES THAT ' ' FROM THE DATE OF ACCESSION, THE PROVISIONS OF THE ORIGINAL TREATIES AND THE ACTS ADOPTED BY THE INSTITUTIONS OF THE COMMUNITIES SHALL BE BINDING ON THE HELLENIC REPUBLIC AND SHALL APPLY IN THAT STATE UNDER THE CONDITIONS LAID DOWN IN THOSE TREATIES AND IN THIS ACT ' ' .
ARTICLE 9 ( 1 ) STATES THAT ' ' THE APPLICATION OF THE ORIGINAL TREATIES AND ACTS ADOPTED BY THE INSTITUTIONS SHALL, AS A TRANSITIONAL MEASURE, BE SUBJECT TO THE DEROGATIONS PROVIDED FOR IN THIS ACT ' ' .
8 IT APPEARS FROM THOSE PROVISIONS THAT THE ACT OF ACCESSION IS BASED ON THE PRINCIPLE THAT THE PROVISIONS OF COMMUNITY LAW APPLY AB INITIO AND IN TOTO TO NEW MEMBER STATES, DEROGATIONS BEING ALLOWED ONLY IN SO FAR AS THEY ARE EXPRESSLY LAID DOWN BY TRANSITIONAL PROVISIONS . NONE OF THE PROVISIONS MENTIONED BY THE APPLICANT HAS THE EFFECT OF DEROGATING FROM ARTICLE 58 OF THE ECSC TREATY .
9 IT SHOULD BE OBSERVED ON THIS POINT IN PARTICULAR THAT RECOURSE TO ARTICLE 130, THE SAFEGUARD CLAUSE, IS SUBJECT TO PRECISE CONDITIONS, SUBSTANTIVE AND PROCEDURAL, AND THAT NO INFERENCES MAY BE DRAWN FROM THAT ARTICLE IF THOSE CONDITIONS ARE NOT SATISFIED . AS TO PROTOCOL 7 ON THE ECONOMIC AND INDUSTRIAL DEVELOPMENT OF GREECE, THIS IS A DECLARATION ADDRESSED TO THE INSTITUTIONS OF THE COMMUNITY TO THE EFFECT THAT THEY SHOULD ' ' IMPLEMENT ALL THE MEANS AND PROCEDURES LAID DOWN BY THE EEC TREATY ' ' . THEREFORE THAT PROVISION MAY NOT BE USED AS A BASIS FOR THE LEGAL CONCLUSIONS WHICH THE APPLICANT DEDUCES FROM IT .
10 FINALLY, THE APPLICANT POINTS OUT THAT THE COMMISSION RECOGNIZED THE PARTICULAR SITUATION OF THE GREEK INDUSTRY AND INSERTED IN DECISION 1831/81 A NEW ARTICLE, ARTICLE 14 A, WHICH THEREAFTER ENABLED THE APPLICATION OF THE GENERAL DECISION TO BE ADAPTED TO THE PARTICULAR SITUATION OF GREEK UNDERTAKINGS .
11 FROM THE INFORMATION PROVIDED DURING THE PROCEEDINGS IT APPEARS THAT THE COMMISSION RECOGNIZED THE PARTICULAR NEEDS OF THE GREEK STEEL INDUSTRY AND, BY ARTICLE 14 A INSERTED INTO DECISION 1831/81, AGREED TO ALLOW AN APPROPRIATE ADJUSTMENT OF THE REFERENCE PRODUCTION FIGURES OF GREEK STEEL UNDERTAKINGS FACED WITH EXCEPTIONAL DIFFICULTIES AS SOON AS IT COULD OBTAIN SUFFICIENTLY PRECISE INFORMATION ABOUT THEIR SITUATION . THE INTRODUCTION OF THIS DEGREE OF FLEXIBILITY MAY NOT BE USED AS AN ARGUMENT FOR CONTESTING THE PRINCIPLE OF THE APPLICATION OF THE QUOTA SYSTEM TO THE GREEK UNDERTAKINGS DURING THE PREVIOUS PERIOD .
12 THE APPLICANT HAS FAILED TO SPECIFY HOW THE APPLICATION OF DECISION 1831/81 MIGHT HAVE ADVERSELY AFFECTED LEGAL CERTAINTY IN ITS REGARD OR ITS LEGITIMATE EXPECTATION . ON THIS MATTER IT NEED ONLY BE OBSERVED THAT THE EFFECT OF THE ACCESSION OF GREECE TO THE COMMUNITY WAS TO EXTEND THE WHOLE OF COMMUNITY LAW TO THE UNDERTAKINGS OF THAT STATE AND THAT THOSE UNDERTAKINGS MAY NOT CLAIM EXEMPTION FROM THE RULES AND CONSTRAINTS WHICH, DEPENDING ON THE CIRCUMSTANCES, MAY APPLY TO THEM AS A RESULT OF THE APPLICATION OF THAT LAW ON AN EQUAL BASIS WITH THE OTHER UNDERTAKINGS IN THE COMMUNITY .
13 SINCE THE PURPOSE OF DECISION 1831/81 IS TO SPREAD THE EFFECTS OF THE CRISIS IN THE MOST EQUITABLE MANNER POSSIBLE AMONG ALL UNDERTAKINGS IN THE COMMUNITY, THE FACT THAT THE RESTRICTIONS ON PRODUCTION NECESSITATED BY THE ECONOMIC SITUATION MIGHT AFFECT THE PROFITABILITY AND VERY EXISTENCE OF CERTAIN UNDERTAKINGS CANNOT BE CONSIDERED TO BE AN INFRINGEMENT OF THE RIGHT TO PROPERTY . THE APPLICANT MAY NOT CLAIM RESPECT FOR ITS RIGHT TO PROPERTY IN ORDER TO EVADE THE CONSTRAINTS IMPOSED UPON THE ENTIRE EUROPEAN STEEL INDUSTRY .
14 THERE ARE THEREFORE NO GROUNDS FOR CONTESTING THE APPLICATION OF DECISION 1831/81 TO GREEK UNDERTAKINGS .
COMPATIBILITY OF DECISION 1831/81 WITH THE PRINCIPLES CONTAINED IN ARTICLES 1 TO 5 AND 58 OF THE ECSC TREATY
15 THE APPLICANT CLAIMS THAT IF DECISION 1831/81 WERE HELD TO BE APPLICABLE TO GREEK UNDERTAKINGS IT WOULD ENTAIL CONSEQUENCES FOR THOSE UNDERTAKINGS WHICH WOULD BE INCONSISTENT WITH THE PRINCIPLES FORMING THE SUBJECT-MATTER OF THE INTRODUCTORY ARTICLES OF THE ECSC TREATY . IN ESSENCE IT CLAIMS IN THIS RESPECT THAT THE TAKING INTO CONSIDERATION OF A REFERENCE PERIOD WHICH PRECEDED THE ACCESSION OF GREECE AND WAS CHOSEN IN SUCH A WAY AS TO REFLECT THE POSITION OF THE UNDERTAKINGS IN THE COMMUNITY AS PREVIOUSLY CONSTITUTED WORKED TO THE DISADVANTAGE OF GREEK UNDERTAKINGS, WHOSE UTILIZATION RATE IN THAT PERIOD WAS SUBSTANTIALLY LOWER THAN THAT OF OTHER COMMUNITY UNDERTAKINGS . THE APPLICANT ' S UTILIZATION RATE WAS PARTICULARLY LOW BECAUSE ITS PLANT IS NEW . THE APPLICANT FURTHER ARGUES THAT BY MAKING IT IMPOSSIBLE FOR THE GREEK UNDERTAKINGS TO EXPAND AND IMPROVE THEIR PRODUCTION CAPACITY THE QUOTA SYSTEM PUTS THEM AT A DISADVANTAGE IN RELATION TO UNDERTAKINGS LOCATED
IN THE COMMUNITY AS PREVIOUSLY CONSTITUTED . IT BELIEVES THAT THOSE CIRCUMSTANCES CONSTITUTE A BREACH OF THE PRINCIPLE OF NON-DISCRIMINATION AND ADVERSELY AFFECT CONDITIONS OF COMPETITION .
16 FINALLY THE APPLICANT COMPLAINS THAT THE PRINCIPLE OF NON-RETROACTIVITY HAS BEEN INFRINGED INASMUCH AS AFTER GENERAL DECISION 1831/81 HAD ENTERED INTO FORCE THE COMMISSION WAS SLOW IN SENDING IT THE DECISION CONCERNING IT INDIVIDUALLY . THAT DECISION, DATED 12 AUGUST 1981, DID NOT REACH IT UNTIL WELL AFTER THE BEGINNING OF THE QUARTER IN QUESTION .
17 TO THE EXTENT TO WHICH THE APPLICANT ' S COMPLAINTS CONSIST OF ARGUMENTS WHICH MAY BE DEFINED AND CLASSIFIED IN LEGAL TERMS THEY CALL FOR THE FOLLOWING OBSERVATIONS .
18 AS THE COURT HAS REPEATEDLY INDICATED IN OTHER CONTEXTS ( SEE IN PARTICULAR THE JUDGMENTS OF 16 FEBRUARY 1982 IN JOINED CASES 39, 43, 85 AND 86/81 HALYVOURGIKI AND ANOTHER V COMMISSION ( 1982 ) ECR 593 AND OF 7 JULY 1982 IN CASE 119/82 KLOCKNER V COMMISSION ( 1982 ) ECR 000 ), THE PURPOSE OF THE SYSTEM OF PRODUCTION QUOTAS ESTABLISHED BY DECISION 2794/80 OF 31 OCTOBER 1980 ( OFFICIAL JOURNAL 1980, L 291, P . 1 ) AND RENEWED BY DECISION 1831/81 IS NOT TO GUARANTEE TO UNDERTAKINGS A MINIMUM LEVEL OF EMPLOYMENT OR SCOPE FOR DEVELOPMENT BUT TO SPREAD IN AN EQUITABLE MANNER THE EFFECTS OF THE STEEL CRISIS AMONG UNDERTAKINGS ACCORDING TO THEIR ACTUAL PRODUCTION . THE FACT THAT THE REFERENCE PERIOD TAKEN INTO CONSIDERATION PRECEDED THE ACCESSION OF GREECE IS NOT OF SUCH A NATURE AS TO GIVE RISE TO INEQUALITY OF TREATMENT TO THE DETRIMENT OF THE UNDERTAKINGS OF THAT STATE SINCE AT THE TIME UNDER CONSIDERATION THEY WERE TOTALLY FREE TO EXPAND THEIR INVESTMENT AND PRODUCTION PROGRAMMES . NOR, FOR THE REASONS GIVEN ABOVE, IS IT PART OF THE PURPOSE OF THE CONTESTED GENERAL DECISION TO ALTER THE CONDITIONS OF COMPETITION CREATED BY THE STRUCTURE, LEVEL OF DEVELOPMENT AND UTILIZATION RATE OF GREEK UNDERTAKINGS COMPARED TO THE OTHER UNDERTAKINGS IN THE COMMUNITY .
19 AS TO THE COMPLAINT THAT THERE WAS SOME DELAY IN THE COMMUNICATION OF THE CONTESTED INDIVIDUAL DECISION, IT SEEMS FROM THE EXPLANATIONS GIVEN BY THE COMMISSION DURING THE PROCEEDINGS THAT THE APPLICANT MUST BEAR ITS SHARE OF THE RESPONSIBILITY FOR THE DELAY SINCE IT WAS LATE IN COMMUNICATING THE INFOR
MATION FOR WHICH IT WAS ASKED . THE COMMISSION RIGHTLY OBSERVES THAT IN ANY CASE FROM THE DATE OF PUBLICATION OF DECISION 1831/81 THE APPLICANT WAS IN A POSITION TO CALCULATE, AT LEAST APPROXIMATELY, THE QUOTA WHICH WOULD BE ALLOCATED TO IT AND COULD HAVE ARRANGED ITS PRODUCTION PROGRAMME ACCORDINGLY .
20 IT THUS APPEARS THAT THERE ARE NO GROUNDS FOR UPHOLDING ANY OF THE COMPLAINTS AND THAT THE APPLICATION MUST THEREFORE BE DISMISSED .
Decision on costs
COSTS
21 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
22 AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( SECOND CHAMBER )
HEREBY :
1 . DISMISSES THE APPLICATION ;
2 . ORDERS THE APPLICANT TO PAY THE COSTS .