61984CJ0027_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 27/84
WIRTSCHAFTSVEREINIGUNG EISEN- UND STAHLINDUSTRIE, WHOSE REGISTERED OFFICE IS IN DUSSELDORF, REPRESENTED BY J . SEDEMUND, RECHTSANWALT, COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, R . WAGENBAUR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF M . BESCHEL, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR A DECLARATION THAT THE COMMISSION ' S REFUSAL TO PUBLISH THE PRODUCTION QUOTA ADJUSTMENTS GRANTED TO THE VARIOUS STEEL UNDERTAKINGS IS VOID,
Grounds
1 BY AN APPLICATION RECEIVED AT THE COURT REGISTRY ON 25 JANUARY 1984, THE WIRTSCHAFTSVEREINIGUNG EISEN- UND STAHLINDUSTRIE ( ASSOCIATION OF GERMAN IRON AND STEEL PRODUCERS ), WHOSE REGISTERED OFFICE IS IN DUSSELDORF, BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY REQUESTING THE COURT TO DECLARE VOID THE COMMISSION ' S DECISION, WHICH WAS INDIVIDUAL IN CHARACTER AND WAS NOTIFIED TO THE APPLICANT BY LETTER OF 13 JANUARY 1984, REFUSING TO DISCLOSE TO THE APPLICANT THE FIGURES FOR EACH STEEL UNDERTAKING RESULTING FROM THE FIXING AND ADJUSTMENT OF PRODUCTION QUOTAS UNDER THE SYSTEM INTRODUCED PURSUANT TO ARTICLE 58 OF THE ECSC TREATY .
2 THE APPLICANT IS AN ASSOCIATION OF GERMAN STEEL UNDERTAKINGS WHOSE OBJECT IS TO PROTECT THE COLLECTIVE INTERESTS OF ITS MEMBERS . THE AIM OF THE PRESENT ACTION IS TO SECURE THE COMPLETE TRANSPARENCY OF THE SYSTEM OF PRODUCTION QUOTAS WHICH THE COMMISSION INTRODUCED IN 1980 AND HAS KEPT IN FORCE EVER SINCE . THE APPLICANT MAINTAINS THAT COMPLETE TRANSPARENCY OF THE QUOTA SYSTEM NECESSITATES THE COMMISSION ' S PUBLISHING FULL REFERENCE PRODUCTION FIGURES AND REFERENCE QUANTITIES FOR EACH STEEL UNDERTAKING TOGETHER WITH THE PRODUCTION AND DELIVERY QUOTAS ALLOCATED TO EACH UNDERTAKING AND ANY ADJUSTMENTS GRANTED .
3 BY A LETTER DATED 10 NOVEMBER 1983 THE APPLICANT ASKED THE COMMISSION TO PUBLISH ALL THOSE FIGURES IN THE OFFICIAL JOURNAL . IT ARGUED THAT UNDERTAKINGS SUBJECT TO THE PRODUCTION QUOTA SYSTEM OUGHT TO BE ABLE TO CHECK WHETHER, AND TO WHAT EXTENT, THE COMMISSION HAS COMPLIED WITH THE REQUIREMENTS LAID DOWN BY ARTICLE 58 OF THE ECSC TREATY, AND IN PARTICULAR THE REQUIREMENT THAT QUOTAS MUST BE DETERMINED ON AN EQUITABLE BASIS, WHEN FIXING QUOTAS AND GRANTING ANY ADJUSTMENTS THERETO .
4 IN ITS REPLY OF 13 JANUARY 1984, THE COMMISSION PROVIDED THE APPLICANT WITH A SUMMARY TABLE, SHOWING FOR EACH UNDERTAKING BELONGING TO THE EUROFER CONFEDERATION AND FOR EACH CATEGORY OF STEEL PRODUCTS REFERENCE PRODUCTION FIGURES AND REFERENCE QUANTITIES, THE PART OF THE QUOTAS WHICH MAY BE DELIVERED IN THE COMMON MARKET AND THE ADJUSTMENTS GRANTED IN RESPECT OF PRODUCTION QUOTAS IN THE THIRD QUARTER OF 1983, THE LATEST QUARTER FOR WHICH SUCH FIGURES WERE AVAILABLE . WITH RESPECT TO UNDERTAKINGS NOT BELONGING TO THE EUROFER CONFEDERATION, THE COMMISSION MERELY PROVIDED A TABLE GIVING THOSE DATA IN AGGREGATE FORM FOR ALL THOSE UNDERTAKINGS TOGETHER ; HOWEVER, IT STATED THAT IT WAS PREPARED TO DISCLOSE INDIVIDUAL FIGURES FOR THOSE UNDERTAKINGS, PROVIDED THAT IT COULD OBTAIN THEIR AUTHORIZATION, WHICH WAS REQUIRED BY VIRTUE OF THE SECOND AND FOURTH PARAGRAPHS OF ARTICLE 47 OF THE ECSC TREATY IN ORDER TO COMPLY WITH THE OBLIGATION OF BUSINESS SECRECY . ACCORDING TO THE COMMISSION, THE REASON FOR DRAWING A DISTINCTION BETWEEN THE TWO CLASSES OF UNDERTAKING WAS THAT EUROFER WAS AN ASSOCIATION OF LARGE STEEL UNDERTAKINGS AMONG WHICH A MEASURE OF TRANSPARENCY ALREADY EXISTED, WHEREAS THE SMALL NON-EUROFER UNDERTAKINGS WERE IN A MORE VULNERABLE POSITION .
5 IT IS AGAINST THAT REPLY THAT THE APPLICANT HAS BROUGHT THE ACTION NOW BEFORE THE COURT . IT VIEWS THE REPLY AS A REFUSAL TO COMPLY WITH ITS REQUEST, IN SO FAR AS THE COMMISSION DID NOT AGREE TO DISCLOSE :
( A ) IN RESPECT OF THE NON-EUROFER UNDERTAKINGS, FIGURES FOR EACH UNDERTAKING INDIVIDUALLY,
( B)IN RESPECT OF ALL STEEL UNDERTAKINGS, DATA RELATING TO QUOTA ADJUSTMENTS BROKEN DOWN ACCORDING TO THE VARIOUS APPLICABLE PROVISIONS, IN PARTICULAR ARTICLES 7 ( 3 ), 8 ( 2 ) AND ( 3 ), 10 ( 2 ), 11 ( 5 ), 13 ( SECOND INDENT ), 14, 14A, 14B, 14C, 14D, 14E, 15, 15A, 16 AND 17 OF COMMISSION DECISION NO 2177/83/ECSC OF 28 JULY 1983 EXTENDING THE QUOTA SYSTEM UNTIL 31 JANUARY 1984 ( OFFICIAL JOURNAL 1983, L 208, P . 1 ).
6 IN ITS DEFENCE, THE COMMISSION STATED THAT IT WAS PREPARED TO DISCLOSE, WITH A VIEW TO SECURING THE FULLEST POSSIBLE TRANSPARENCY OF THE QUOTA SYSTEM, THE REFERENCE PRODUCTION FIGURES AND REFERENCE QUANTITIES FOR ALL STEEL UNDERTAKINGS, INCLUDING THOSE NOT BELONGING TO EUROFER . IN ITS REJOINDER, THE COMMISSION STATED THAT IT HAD FULFILLED THAT UNDERTAKING BY SUPPLYING THE INFORMATION IN QUESTION TO EUROFER .
7 AT THE HEARING THE APPLICANT STATED THAT, AS A RESULT, THE REFUSAL IN QUESTION WAS LIMITED TO DISCLOSURE OF THE INFORMATION CONCERNING QUOTA ADJUSTMENTS . SINCE, IN THE MEANTIME, DECISION NO 2177/83 HAS BEEN REPLACED BY COMMISSION DECISION NO 234/84 OF 31 JANUARY 1984 EXTENDING THE QUOTA SYSTEM UNTIL 31 DECEMBER 1985 ( OFFICIAL JOURNAL 1984, L 29, P . 1 ), THE APPLICANT HAS AMENDED ITS CLAIMS SO AS TO COVER DISCLOSURE OF THE ADJUSTMENTS MADE AS A RESULT OF THE LATTER DECISION .
8 THE SUBJECT-MATTER OF THE DISPUTE HAS NARROWED FURTHER AS A RESULT OF THE STATEMENT MADE BY THE COMMISSION IN ITS REJOINDER TO THE EFFECT THAT IT WAS PREPARED TO PUBLISH THE INFORMATION RELATING TO THE QUOTA ADJUSTMENTS GRANTED TO UNDERTAKINGS BELONGING TO EUROFER . AS REGARDS UNDERTAKINGS NOT BELONGING TO THAT CONFEDERATION, THE COMMISSION INITIALLY PROVIDED THE CORRESPONDING INFORMATION IN AGGREGATE FORM BUT SUBSEQUENTLY DISCLOSED FIGURES FOR EACH NON-EUROFER UNDERTAKING INDIVIDUALLY, WITH THE EXCEPTION, HOWEVER, OF THE ADJUSTMENTS GRANTED PURSUANT TO ARTICLES 10, 14, 14C AND 16 OF THE RELEVANT GENERAL DECISIONS, DECISIONS NOS 2177/83 AND 234/84 .
9 AS FAR AS THOSE FOUR CLASSES OF ADJUSTMENT ARE CONCERNED, THE COMMISSION CONSIDERS THAT IT IS NOT ENTITLED TO DISCLOSE THE FIGURES RELATING TO INDIVIDUAL UNDERTAKINGS WHERE, AS IN THE CASE OF UNDERTAKINGS NOT BELONGING TO EUROFER, THE UNDERTAKINGS IN QUESTION ARE SMALL OR MEDIUM-SIZED . IT CONSIDERS THAT SUCH INFORMATION IS, BY ITS NATURE, A MATTER OF BUSINESS SECRECY ; CONSEQUENTLY, TO DISCLOSE IT WITHOUT THE AGREEMENT OF THE UNDERTAKINGS CONCERNED WOULD BE LIKELY TO EXPOSE THE COMMISSION TO ACTIONS FOR DAMAGES .
10 THE COMMISSION ARGUES THAT THE SUPPLEMENTARY QUOTAS PROVIDED FOR IN ARTICLE 14 OF THE TWO GENERAL DECISIONS AND THE QUOTA ADJUSTMENTS PROVIDED FOR IN ARTICLE 16 OF THE DECISIONS MAY BE GRANTED ONLY WHERE THE UNDERTAKING IN QUESTION IS IN ' EXCEPTIONAL DIFFICULTIES ' ; ACCORDING TO A WELL-ESTABLISHED PRACTICE, THE COMMISSION RECOGNIZES THAT SUCH DIFFICULTIES EXIST ONLY IN CASES WHERE THE UNDERTAKING IN QUESTION IS MAKING LOSSES . IF THE APPLICATION OF THOSE TWO PROVISIONS TO A SPECIFIC UNDERTAKING WERE DISCLOSED, THE UNDERTAKING IN QUESTION WOULD BE PLACED IN AN EMBARASSING SITUATION VIS-A-VIS ITS CREDITORS AND COMPETITORS . SIMILAR ARGUMENTS CAN, IT MAINTAINS, BE INVOKED AS REGARDS ARTICLES 10 AND 14C OF THE TWO GENERAL DECISIONS . THOSE PROVISIONS PROVIDE FOR QUOTA ADJUSTMENTS FOR UNDERTAKINGS FACED WITH THE PROBLEMS ASSOCIATED WITH THE MANUFACTURE OF CERTAIN SEMI-FINISHED PRODUCTS AND CERTAIN ORDERS FOR EXPORTS TO NON-MEMBER COUNTRIES . DISCLOSURE OF SUCH INFORMATION MIGHT REVEAL THE COMMERCIAL STRATEGY OF THE UNDERTAKING CONCERNED AND THUS BE OF ADVANTAGE TO ITS COMPETITORS .
11 THE APPLICANT MAINTAINS THAT BY ADOPTING THAT APPROACH THE COMMISSION HAS MISCONSTRUED THE SCOPE OF BUSINESS SECRECY, WHICH SHOULD BE INTERPRETED IN THE LIGHT OF THE PRIME IMPORTANCE ACCORDED TO THE PRINCIPLE OF PUBLICITY IN THE ECSC TREATY . PUBLICITY IS ALL THE MORE IMPORTANT IN RELATION TO PRODUCTION QUOTAS SINCE IT HELPS TO BRING ABOUT THE MARKET TRANSPARENCY REQUIRED BY THE ECSC TREATY AND MAKES IT EASIER FOR UNDERTAKINGS TO MONITOR THE COMMISSION ' S ADMINISTRATION OF THE QUOTA SYSTEM . THE APPLICANT ARGUES THAT SUCH MONITORING IS NECESSARY IN PARTICULAR BECAUSE THE PROLONGED APPLICATION OF THE QUOTA SYSTEM HAS TRANSFORMED IT INTO A COMMISSION-DIRECTED SYSTEM FROM WHICH THE MECHANISM OF THE MARKET IS EXCLUDED .
12 IT SHOULD BE BORNE IN MIND IN THE FIRST PLACE THAT, UNDER THE SECOND PARAGRAPH OF ARTICLE 47 OF THE ECSC TREATY, THE HIGH AUTHORITY - NOW THE COMMISSION, FOLLOWING THE ESTABLISHMENT OF A SINGLE COMMISSION OF THE COMMUNITIES - IS UNDER A DUTY NOT TO DISCLOSE INFORMATION OF THE KIND COVERED BY THE OBLIGATION OF PROFESSIONAL SECRECY, IN PARTICULAR INFORMATION ABOUT UNDERTAKINGS, THEIR BUSINESS RELATIONS OR THEIR COST COMPONENTS . THAT SAME PROVISION ALSO STIPULATES THAT, SUBJECT TO THAT RESERVATION, THE COMMISSION MUST ' PUBLISH SUCH DATA AS COULD BE USEFUL TO GOVERNMENTS OR TO ANY OTHER PARTIES CONCERNED ' .
13 THE PRESENT ACTION IS CONCERNED WITH THE EXTENT OF THE COMMISSION ' S DUTY TO PUBLISH SUCH DATA . THE DOUBTS INITIALLY EXPRESSED BY THE COMMISSION AS TO THE ADMISSIBILITY OF THE APPLICATION - WHICH WERE BASED ON THE PREMISE THAT THE COMMISSION ' S LETTER OF 13 JANUARY 1984 WAS MERELY A REPLY TO A REQUEST MADE BY THE APPLICANT FOR INFORMATION - ARE THEREFORE UNFOUNDED . WHAT THE APPLICANT IS ACTUALLY CHALLENGING IS THE REFUSAL TO DISCLOSE INFORMATION THE DISCLOSURE OF WHICH IT CONSIDERS TO BE OBLIGATORY UNDER ARTICLE 47 OF THE ECSC TREATY .
14 SECONDLY, THE APPLICANT HAS CORRECTLY DRAWN ATTENTION TO THE ESSENTIAL ROLE PLAYED BY PUBLICITY IN THE CONTEXT OF THE ECSC TREATY . ACCORDING TO ARTICLE 5 OF THAT TREATY, IN ORDER TO CARRY OUT ITS TASK THE COMMISSION MUST PROVIDE GUIDANCE FOR THE PARTIES CONCERNED BY OBTAINING INFORMATION . ACCORDING TO ARTICLE 3 ( B ), THE INSTITUTIONS OF THE COMMUNITY MUST ENSURE THAT ALL COMPARABLY PLACED CONSUMERS IN THE COMMON MARKET HAVE EQUAL ACCESS TO THE SOURCES OF PRODUCTION . IT HAS BEEN HELD IN A CONSISTENT LINE OF DECISIONS, BEGINNING WITH THE JUDGMENT OF 21 DECEMBER 1954 IN CASE 1/54 ( FRANCE V HIGH AUTHORITY, ( 1954 TO 1956 ) ECR 1 ), THAT SUCH EQUAL ACCESS MUST BE SECURED AND DISCRIMINATORY PRACTICES THWARTED BY MEANS OF THE DISCLOSURE OF THE RELEVANT INFORMATION TO UNDERTAKINGS . AS A RESULT, THE PRINCIPLE OF PUBLICITY AND THE PRINCIPLE OF NON-DISCRIMINATION ARE LINKED AS REGARDS THEIR PURPOSE .
15 CONSEQUENTLY, ALTHOUGH THE COMMISSION IS UNDER A DUTY, AS A RESULT OF THAT LINK BETWEEN THE PRINCIPLE OF PUBLICITY AND THE OBJECTIVES OF THE ECSC TREATY, TO PUBLISH INFORMATION LIKELY TO BE USEFUL TO UNDERTAKINGS, AND ALTHOUGH THE INFORMATION OBTAINED FROM UNDERTAKINGS BY THE COMMISSION, AFTER DUE VERIFICATION, IS ALSO SUBJECT TO THAT DUTY OF PUBLICATION, THE AUTHORS OF THE TREATY WERE AT PAINS TO ENSURE, IN ARTICLE 47, THAT BUSINESS SECRECY IS RESPECTED, THEREBY ENSURING PROTECTION FOR THE LEGITIMATE INTERESTS OF UNDERTAKINGS AND PROVIDING A QUID PRO QUO FOR THE OBLIGATION TO SUPPLY INFORMATION TO THE COMMISSION .
16 AS A RESULT, IN ORDER TO RESOLVE THE ISSUE RAISED IN THIS ACTION, IT IS NECESSARY TO BALANCE THE NEED FOR TRANSPARENCY OF THE COMMON MARKET IN STEEL PRODUCTS AGAINST THE NEED TO PROTECT THE BUSINESS SECRECY OF INDIVIDUAL UNDERTAKINGS . THE ONLY WAY OF STRIKING SUCH A BALANCE IS TO EXAMINE THE SPECIFIC SITUATION OF THE UNDERTAKINGS CONCERNED .
17 ACCORDINGLY, THE COMMISSION WAS NOT ENTITLED TO REFUSE TO DISCLOSE THE QUOTA ADJUSTMENTS GRANTED PURSUANT TO ARTICLES 10 AND 14C OF THE TWO GENERAL DECISIONS SOLELY ON THE GROUND THAT TO DO SO WOULD CONSTITUTE PER SE A BREACH OF BUSINESS SECRECY .
18 ON THE OTHER HAND, THE COMMISSION ' S ARGUMENT MUST BE ACCEPTED SO FAR AS CONCERNS THE QUOTA ADJUSTMENTS GRANTED PURSUANT TO ARTICLES 14 AND 16 OF THE TWO GENERAL DECISIONS . SUCH ADJUSTMENTS MAY BE GRANTED ONLY IN THE EVENT OF ' EXCEPTIONAL DIFFICULTIES '
SUFFERED BY THE UNDERTAKING CONCERNED, AND THE COMMISSION HAS STATED, WITHOUT CONTRADICTION, THAT IT USUALLY GRANTS SUCH ADJUSTMENTS ONLY WHERE THE EXCEPTIONAL DIFFICULTIES ARE OF A FINANCIAL NATURE . IN SUCH CASES PUBLICATION OF THE IDENTITY OF THE UNDERTAKING, OF THE QUOTA ADJUSTMENT GRANTED TO IT AND OF THE LEGAL BASIS FOR THAT ADJUSTMENT MIGHT SERIOUSLY AFFECT THE OPERATION OF THE UNDERTAKING OR EVEN ITS CONTINUED EXISTENCE .
19 IT FOLLOWS THAT, BY REFUSING TO DISCLOSE THE FIGURES RELATING TO THE QUOTA ADJUSTMENTS GRANTED TO EACH OF THE UNDERTAKINGS NOT BELONGING TO THE EUROFER CONFEDERATION PURSUANT TO ARTICLES 10 AND 14C OF DECISIONS NOS . 2177/83 AND 234/84 ON THE SOLE GROUND THAT SUCH DISCLOSURE WOULD CONSTITUTE PER SE A BREACH OF BUSINESS SECRECY, THE COMMISSION HAS MISINTERPRETED THE SCOPE OF ARTICLE 47 OF THE ECSC TREATY .
20 CONSEQUENTLY, THE CONTESTED DECISION IS UNLAWFUL AND MUST BE DECLARED VOID .
Decision on costs
COSTS
21 PURSUANT TO ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS ESSENTIALLY FAILED IN ITS SUBMISSIONS, IT MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER )
HEREBY
( 1 ) DECLARES THAT THE COMMISSION ' S DECISION WHICH WAS ADDRESSED TO THE APPLICANT BY LETTER OF 13 JANUARY 1984 IS VOID IN SO FAR AS IT REFUSES TO DISCLOSE THE FIGURES RELATING TO THE QUOTA ADJUSTMENTS GRANTED, PURSUANT TO ARTICLES 10 AND 14C OF DECISIONS NOS 2177/83 AND 234/84, TO EACH OF THE UNDERTAKINGS NOT BELONGING TO THE EUROFER CONFEDERATION ;
( 2)ORDERS THE COMMISSION TO PAY THE COSTS .