61985CJ0185_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 185/85
UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ( USINOR ) SA, HAVING ITS REGISTERED OFFICE AT PUTEAUX, 9-4, PLACE DE LA PYRAMIDE, LA DEFENSE, REPRESENTED BY LISE FUNCK-BRENTANO, OF THE PARIS BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MARLYSE NEUEN-KAUFFMANN, 21 RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, ROLF WAGENBAUR, AND BY MAURICE GUERRIN, A MEMBER OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGIOS KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ANNULMENT OF INDIVIDUAL COMMISSION DECISION NO 5462 OF 2 MAY 1985 PROVISIONALLY BLOCKING, PURSUANT TO ARTICLE 2(7 ) OF DECISION NO 3716/83/ECSC, THE RETURN OF A PORTION OF THE GUARANTEE LODGED BY USINOR IN THE SECOND QUARTER OF 1985, AND ALSO FOR THE ANNULMENT OF THE THIRD INDENT OF ARTICLE 1(2 ) OF COMMISSION DECISION NO 30/53 OF 2 MAY 1953 AS AMENDED MOST RECENTLY BY DECISION NO 1834/81/ECSC OF 3 JULY 1981 ( OFFICIAL JOURNAL 1981, L 184, P . 7 ),
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 14 JUNE 1985, UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE SA, ( HEREINAFTER REFERRED TO AS ' USINOR ' ), OF PUTEAUX ( HAUTS-DE-SEINE, FRANCE ), BROUGHT AN ACTION UNDER ARTICLE 33 OF THE ECSC TREATY SEEKING THE ANNULMENT OF INDIVIDUAL COMMISSION DECISION NO 5462 OF 2 MAY 1985 PROVISIONALLY BLOCKING, PURSUANT TO ARTICLE 2(7 ) OF DECISION NO 3716/83/ECSC, THE RETURN OF PART OF THE GUARANTEE LODGED BY USINOR IN THE SECOND QUARTER OF 1985, AND ALSO THE ANNULMENT OF THE THIRD INDENT OF ARTICLE 1(2 ) OF COMMISSION DECISION NO 30/53 OF 2 MAY 1953 ON PRACTICES PROHIBITED BY ARTICLE 60(1 ) OF THE TREATY IN THE COMMON MARKET FOR COAL AND STEEL, AS AMENDED BY COMMISSION DECISION NO 1834/81/ECSC OF 3 JULY 1981 ( OFFICIAL JOURNAL 1981, L 184, P . 7 ).
THE CONTESTED LEGISLATION
2 IN DECISION NO 3716/83/ECSC OF 23 DECEMBER 1983 ESTABLISHING A GUARANTEE SYSTEM FOR CERTAIN STEEL PRODUCTS AND A SYSTEM FOR THE VERIFICATION OF THE MINIMUM PRICES ( OFFICIAL JOURNAL 1983, L 373, P . 5 ), THE COMMISSION ARRANGED FOR CERTAIN PRODUCTS GOVERNED BY PRODUCTION QUOTAS TO BE SUBJECT TO A SYSTEM OF GUARANTEES DESIGNED TO ENSURE THAT UNDERTAKINGS COMPLIED WITH THE OBLIGATIONS ARISING INTER ALIA FROM THE SYSTEM OF MINIMUM PRICES . ARTICLE 2 ( 7 ) OF DECISION NO 3716/83 PROVIDES AS FOLLOWS : ' WHERE THE COMMISSION HAS, IN RESPECT OF THE PRODUCTS REFERRED TO IN ARTICLE 1, PRIMA FACIE EVIDENCE OF INFRINGEMENT OF THE . . . PRICE RULES UNDER THE ECSC TREATY, AND WITHOUT PREJUDICE TO THE PROCEDURE PROVIDED FOR IN ARTICLE 36 OF THE ECSC TREATY, IT SHALL SEND THE UNDERTAKING A REASONED OPINION PROVISIONALLY BLOCKING THE RETURN OF AN APPROPRIATE AMOUNT AND SHALL INFORM THE MEMBER STATE CONCERNED THEREOF . '
3 PURSUANT TO THE ABOVE PROVISION, ON 2 MAY 1985 THE COMMISSION ADDRESSED TO USINOR DECISION NO 5462, IN WHICH IT PROVISIONALLY BLOCKED THE SUM OF FF 2 745 641 FROM THE GUARANTEE LODGED BY USINOR FOR THE SECOND QUARTER OF 1985 . IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT IT WAS DECIDED TO BLOCK THAT AMOUNT ON ACCOUNT OF CERTAIN PRICES CHARGED DURING THE FIRST QUARTER OF 1984 BY STRASSBURGER STAHLKONTOR GMBH ( HEREINAFTER REFERRED TO AS ' SSK ' ). UNDER THE TERMS OF AN AGREEMENT CONCLUDED IN 1969, SSK IS THE EXCLUSIVE DISTRIBUTOR IN THE TERRITORY OF THE FEDERAL REPUBLIC OF GERMANY, INCLUDING WEST BERLIN, OF THE PRODUCTS OF A USINOR SUBSIDIARY, LAMINOIRS DE STRASBOURG SA ( HEREINAFTER REFERRED TO AS ' LAMINOIRS ' ).
4 THE COMMISSION CLAIMED TO HAVE PRIMA FACIE EVIDENCE, FOR THE PURPOSES OF DECISION NO 3716/83, THAT CERTAIN PRICES CHARGED BY SSK WERE CONTRARY TO THE PRICING RULES OF THE ECSC TREATY . THE COMMISSION OBSERVED, FIRST, THAT SSK WAS THE ' SELLING AGENCY '
OF LAMINOIRS WITHIN THE MEANING OF THE THIRD INDENT OF ARTICLE 1 ( 2 ) OF DECISION NO 30/53/ECSC AS LAST AMENDED BY DECISION NO 1834/81/ECSC OF 3 JULY 1981, AND, SECONDLY, THAT USINOR OWNED 100% OF THE CAPITAL OF LAMINOIRS, WHICH THUS FORMED PART OF USINOR ; ACCORDINGLY, IT CONCLUDED THAT THE GUARANTEE LODGED BY USINOR SHOULD BE BLOCKED IN RESPECT OF THE AMOUNT BY WHICH PRICES HAD BEEN UNDERCUT, INCREASED BY 50% .
5 DECISION NO 30/53 OF 2 MAY 1953, A GENERAL DECISION TO WHICH THE PREAMBLE OF INDIVIDUAL DECISION NO 5462 REFERS, SETS OUT THE PRACTICES FORBIDDEN BY ARTICLE 60(1 ) OF THE ECSC TREATY . AS AMENDED BY DECISION NO 1963, IT PROVIDES IN ARTICLE 1(2 ): ' WHERE COMMUNITY UNDERTAKINGS SELL . . . GOODS ( COVERED BY THE ECSC TREATY ) WITHIN THE COMMON MARKET THROUGH SELLING AGENCIES, THE OBLIGATIONS CREATED BY THIS DECISION SHALL APPLY TO TRANSACTIONS BY SUCH SELLING AGENCIES . '
THE TERM ' SELLING AGENCIES '
IS DEFINED IN THE THIRD INDENT OF THE SAME PARAGRAPH ( INSERTED BY DECISION NO 1834/81 ) AS COVERING INTER ALIA :
' DISTRIBUTOR UNDERTAKINGS WHICH ARE DIRECTLY OR INDIRECTLY CONTROLLED BY A PRODUCER UNDERTAKING, WITHIN THE MEANING OF DECISION NO 24/54, WHERE THEY EFFECT ' ' DIRECT SALES ' '
OF PRODUCTS MANUFACTURED BY THE PRODUCER UNDERTAKING IN QUESTION . A SALE IS ' ' DIRECT ' '
WHEN, UNDER CONTRACTS OF SALE CONCLUDED BETWEEN THE PRODUCER UNDERTAKING AND THE DISTRIBUTOR UNDERTAKING ON THE ONE HAND AND BETWEEN THE DISTRIBUTOR UNDERTAKING AND ITS CUSTOMER PURCHASING THE PRODUCTS ON THE OTHER, THE PRODUCTS ARE SHIPPED DIRECTLY FROM THE PRODUCER UNDERTAKING TO THE CUSTOMER OF THE DISTRIBUTOR UNDERTAKING OR IN ACCORDANCE WITH THE INSTRUCTIONS OF THE CUSTOMER . '
6 IT SHOULD BE NOTED THAT DECISION NO 24/54 OF 6 MAY 1954 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1952-58, P . 16 ), THE GENERAL DECISION TO WHICH DECISION NO 1834/81 REFERS, SERVES TO GIVE EFFECT TO ARTICLE 66(1 ) OF THE ECSC TREATY BY DEFINING WHAT CONSTITUTES ' CONTROL OF AN UNDERTAKING '
FOR THE PURPOSES OF THAT ARTICLE . ARTICLE 1 OF DECISION NO 24/54 SETS OUT THE ' RIGHTS OR CONTRACTS '
AFFORDING SUCH CONTROL, AMONGST WHICH ARE MENTIONED ( IN INDENT ( 5 )):
' CONTRACTS MADE WITH AN UNDERTAKING CONCERNING THE WHOLE OR AN IMPORTANT PART OF ITS SUPPLIES OR OUTLETS, WHERE THE DURATION OF THESE CONTRACTS OR THE QUANTITIES TO WHICH THEY RELATE EXCEED WHAT IS USUAL IN COMMERCIAL CONTRACTS DEALING WITH THOSE MATTERS ',
WHENEVER THOSE CONTRACTS, ' EITHER SEPARATELY OR JOINTLY, AND HAVING REGARD TO THE CONSIDERATIONS OF FACT OR LAW INVOLVED, . . . MAKE IT POSSIBLE TO DETERMINE HOW AN UNDERTAKING SHALL OPERATE AS REGARDS PRODUCTION, PRICES, INVESTMENTS, SUPPLIES, SALES AND APPROPRIATION OF PROFITS ' .
7 IN THIS ACTION THE APPLICANT CLAIMS THAT THE COURT SHOULD DECLARE VOID INDIVIDUAL DECISION NO 5462 FOR MISUSE OF POWERS AND FOR FAILURE TO PROVIDE A SUFFICIENT STATEMENT OF THE REASONS ON WHICH IT IS BASED ; IT FURTHER CLAIMS THAT THE COURT SHOULD DECLARE VOID THE THIRD INDENT OF ARTICLE 1(2 ) OF GENERAL DECISION NO 30/53/ECSC ( AS AMENDED ) FOR MISUSE OF POWERS . SINCE THE COMMISSION HAS SUBMITTED THAT THE ACTION IS INADMISSIBLE IN SO FAR AS IT IS DIRECTED AGAINST DECISION NO 30/53, CONSIDERATION SHOULD FIRST BE GIVEN TO THE ADMISSIBILITY OF THAT HEAD OF CLAIM .
ADMISSIBILITY OF THE CLAIM THAT THE THIRD INDENT OF ARTICLE 1(2 ) OF DECISION NO 30/53 SHOULD BE DECLARED VOID
8 THE COMMISSION ARGUES THAT THE APPLICANT WAS OUT OF TIME IN SEEKING THE ANNULMENT OF THE THIRD INDENT OF ARTICLE 1(2 ) OF DECISION NO 30/53 AS AMENDED BY DECISION NO 1834/81, ON THE GROUND THAT THE ACTION WAS NOT BROUGHT WITHIN ONE MONTH OF PUBLICATION OF THE LATTER DECISION, AS IS REQUIRED BY THE THIRD PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY .
9 THE APPLICANT DOES NOT DENY THAT THE ACTION WAS COMMENCED AFTER THE EXPIRY OF THE AFORESAID PERIOD, BUT MAINTAINS THAT THERE IS A DIRECT LEGAL LINK BETWEEN INDIVIDUAL DECISION NO 5462 AND GENERAL DECISION NO 30/53 ON WHICH IT IS BASED . THAT LINK, IT ARGUES, ENABLES THE ILLEGALITY OF THE LATTER DECISION TO BE PLEADED EVEN AFTER THE EXPIRY OF THE TIME LIMIT .
10 IN THAT REGARD IT IS SUFFICIENT TO POINT OUT THAT COMMISSION DECISION NO 1834/81 WHICH AMENDED THE BASIC DECISION NO 30/53 BY INTRODUCING THE DISPUTED PROVISION, WAS PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES OF 4 JULY 1981, WHEREAS THIS ACTION WAS NOT RECEIVED AT THE COURT REGISTRY UNTIL 14 JUNE 1985 . THE ACTION IS THEREFORE CLEARLY OUT OF TIME UNDER THE THIRD PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY, INASMUCH AS IT IS DIRECTED AGAINST THE CONTESTED PROVISION IN DECISION NO 30/53, AS AMENDED .
11 CONSEQUENTLY THOSE CLAIMS MUST BE REJECTED AS INADMISSIBLE, WITHOUT PREJUDICE TO THE POSSIBILITY THAT THE COURT MAY REFER TO THE SUBMISSIONS AND ARGUMENTS ADDUCED IN THEIR SUPPORT, WHEN CONSIDERING THE OBJECTION CONTAINED IN THE APPLICATION, THAT INDIVIDUAL DECISION NO 5462 IS UNLAWFUL AND SHOULD BE DECLARED VOID ; THAT OBJECTION IS DISCUSSED BELOW .
CLAIM THAT DECISION NO 5462 SHOULD BE DECLARED VOID
12 THE APPLICANT PUTS FORWARD THREE ARGUMENTS, OF WHICH THE FIRST WAS ORIGINALLY ADDUCED IN SUPPORT OF THE CLAIM ALREADY DEALT WITH ABOVE .
13 THE APPLICANT MAINTAINS FIRST THAT INDIVIDUAL DECISION NO 5462 IS VITIATED BY ILLEGALITY IN SO FAR AS ITS LEGAL BASIS - THAT IS, THE THIRD INDENT OF ARTICLE 1(2 ) OF GENERAL DECISION NO 30/53 AS AMENDED BY DECISION NO 1834/81 - IS ITSELF UNLAWFUL . FOR THE PURPOSE OF DEFINING ' SELLING AGENCY ', THE PROVISION IN QUESTION BORROWS THE CONCEPT OF ' CONTROL '
FROM DECISION NO 24/54, WHICH DEFINES WHAT CONSTITUTES CONTROL OF AN UNDERTAKING SOLELY IN TERMS OF CONCENTRATIONS BETWEEN UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 66 OF THE ECSC TREATY ; IT CANNOT THEREFORE SERVE AS A POINT OF REFERENCE FOR RULES ADOPTED IN ORDER TO GIVE EFFECT TO ARTICLE 60 OF THE TREATY, DEALING WITH PROHIBITED PRICING PRACTICES . THE APPLICANT THEREFORE TAKES THE VIEW THAT DECISION NO 1834/81 SHOULD HAVE BEEN ADOPTED IN ACCORDANCE WITH THE PROCEDURE UNDER ARTICLE 95 OF THE ECSC TREATY .
14 SECONDLY, THE APPLICANT DENIES THAT DECISION NO 5462 APPLIED THOSE GENERAL RULES PROPERLY WHEN IT DESCRIBED SSK AS THE ' SELLING AGENCY '
OF LAMINOIRS WITHIN THE MEANING OF THOSE PROVISIONS . THE APPLICANT ARGUES THAT THE TWO BASIC REQUIREMENTS FOR A ' SELLING AGENCY ', NAMELY THE EXISTENCE OF DIRECT SALES AND THE ACTUAL CONTROL BY THE PRODUCER UNDERTAKING OVER THE DISTRIBUTOR UNDERTAKING, ARE NOT MET . IT IS CLEAR IN PARTICULAR FROM THE FACT THAT ORDERS FOR LAMINOIRS PRODUCTS ARE ROUTED THROUGH SSK, WHICH ITSELF PREPARES THE INVOICES FOR THE ULTIMATE CUSTOMERS, THAT SALES ARE NOT DIRECT . SIMILARLY, LAMINOIRS DOES NOT EXERCISE ANY CONTROL OVER SSK WITHIN THE MEANING OF DECISION NO 24/54, SINCE NEITHER THE DURATION OF THE EXCLUSIVE DISTRIBUTORSHIP AGREEMENT BETWEEN LAMINOIRS AND SSK NOR THE QUANTITIES TO WHICH IT RELATES EXCEED WHAT IS USUAL IN COMMERCIAL CONTRACTS DEALING WITH THOSE MATTERS, AND SINCE, FURTHERMORE, THE AGREEMENT DOES NOT EMPOWER LAMINOIRS TO DETERMINE HOW SSK IS TO OPERATE, THERE BEING NO PARTICIPATION BY EITHER IN THE CAPITAL OF THE OTHER .
15 LASTLY, THE APPLICANT ARGUES THAT THE STATEMENT OF THE REASONS ON WHICH DECISION NO 5462 IS BASED IS INADEQUATE . THE DECISION DOES NOT SPECIFY WHAT CRITERIA WERE APPLIED FOR DETERMINING THE PROPORTION OF THE GUARANTEE TO BE BLOCKED, NOR IN PARTICULAR DOES IT EXPLAIN WHY THE AMOUNT BY WHICH PRICES HAD BEEN UNDERCUT WAS INCREASED BY 50% .
16 THE COMMISSION FOR ITS PART CONTENDS THAT, AS FAR AS GENERAL DECISION NO 30/53 IS CONCERNED, NEITHER THE DISPARITY BETWEEN THE OBJECTIVES PURSUED BY ARTICLES 60 AND 66 OF THE TREATY NOR THE FACT THAT THOSE ARTICLES PROVIDE FOR DIFFERENT LEGAL REMEDIES MEANS THAT A PROVISION IMPLEMENTING ARTICLE 66 - IN THIS CASE DECISION NO 24/54 - CANNOT SERVE AS A REFERENCE POINT FOR THE DEFINITION OF ' SELLING AGENCY ', FOR THE PURPOSES OF GIVING EFFECT TO ARTICLE 60 . ON THE CONTRARY, A UNIFORM DEFINITION IS ESSENTIAL BOTH IN THE INTERESTS OF LEGAL CERTAINTY AND IN ORDER TO AVOID INCONSISTENCIES IN THE APPLICATION OF COMMUNITY LAW . ACCORDING TO THE COMMISSION, IT FOLLOWS THAT DECISION NO 30/53, AS AMENDED, HAS AN ADEQUATE LEGAL BASIS IN ARTICLE 60 OF THE TREATY, READ IN CONJUNCTION WITH ARTICLE 63(2 ) THEREOF, ON BOTH OF WHICH IT IS BASED .
17 TURNING TO THE QUESTION OF THE APPLICATION OF THE GENERAL LEGISLATION AT ISSUE TO THIS CASE, THE COMMISSION SETS OUT THE VARIOUS ELEMENTS WHICH, IN ITS OPINION, SUPPORT THE CONCLUSION THAT SSK IS INDEED THE SELLING AGENCY OF LAMINOIRS . AS FAR AS DIRECT SALES ARE CONERNED, IT STRESSES THAT SSK HOLDS NO STOCKS, WITH THE RESULT THAT LAMINOIRS PRODUCTS ARE DISPATCHED DIRECT FROM THE PRODUCER TO THE ULTIMATE CUSTOMERS . LAMINOIRS '
CONTROL OVER SSK IS DEMONSTRATED NOT ONLY BY THE LARGE SHARE OF SSK ' S TOTAL TURNOVER ( 48% ) ACCOUNTED FOR BY LAMINOIRS PRODUCTS BUT ALSO BY THE EXCEPTIONALLY LONG DURATION - AT LEAST 18 YEARS - OF THE EXCLUSIVE DISTRIBUTORSHIP AGREEMENT . FURTHERMORE, THE AGREEMENT STIPULATES THAT ( A ) LAMINOIRS IS ENTITLED TO HAVE SSK ' S EMPLOYEES ACCOMPANIED BY ITS OWN EMPLOYEES ON VISITS TO CUSTOMERS, ( B ) ORDERS FROM SSK ' S CUSTOMERS ARE TO BE ACKNOWLEDGED BY LAMINOIRS, AND ( C ) SSK IS REQUIRED TO SEND LAMINOIRS THE DUPLICATES OF INVOICES RELATING TO LAMINOIRS PRODUCTS AND TO SUBMIT FOR LAMINOIRS '
APPROVAL ANY CIRCULARS TO ITS CUSTOMERS . THE ABOVE CLAUSES EFFECTIVELY ENABLE LAMINOIRS TO DETERMINE HOW SSK OPERATES .
18 LASTLY, THE COMMISSION CONTENDS THAT THE REASONS ON WHICH DECISION NO 5462 IS BASED ARE ADEQUATELY SET OUT, SINCE THE WORDING OF ARTICLE 64 OF THE ECSC TREATY ITSELF, WHICH ALLOWS FINES TO BE IMPOSED OF UP TO TWICE THE VALUE OF SALES EFFECTED IN DISREGARD OF THE RULES, SHOWS THE AMOUNT OF THE FINE TO BE QUITE APPROPRIATE . IN PURSUANCE OF THAT ARTICLE THE COMMISSION ' S POLICY IS TO INCREASE THE FINE BY 50% IN CASES OF SERIOUS INFRINGEMENT .
19 IN VIEW OF THOSE ARGUMENTS, CONSIDERATION SHOULD FIRST BE GIVEN TO THE SUBMISSION THAT THERE IS NO ADEQUATE STATEMENT OF THE GROUNDS ON WHICH DECISION NO 5462 IS BASED . SINCE A FUNDAMENTAL ELEMENT OF THAT DECISION IS THE FINDING THAT SSK IS THE SELLING AGENCY FOR LAMINOIRS, WHICH IS A PREREQUISITE IF INFRINGEMENTS COMMITTED BY SSK ARE TO BE IMPUTED TO USINOR, THE COURT SHOULD OF ITS OWN MOTION INQUIRE WHETHER THE STATEMENT OF REASONS IS ADEQUATE IN THAT RESPECT .
20 THE COURT HAS CONSISTENTLY HELD THAT THE STATEMENT OF REASONS FOR A DECISION ADVERSELY AFFECTING AN UNDERTAKING MUST BE SUCH AS TO ALLOW THE COURT TO REVIEW ITS LEGALITY AND TO PROVIDE THE UNDERTAKING CONCERNED WITH THE INFORMATION NECESSARY TO ENABLE IT TO ASCERTAIN WHETHER OR NOT THE DECISION IS WELL FOUNDED . THE REQUIREMENTS TO BE SATISFIED BY THE STATEMENT OF REASONS DEPEND ON THE CIRCUMSTANCES OF EACH CASE, IN PARTICULAR THE CONTENT OF THE MEASURE IN QUESTION, THE NATURE OF THE REASONS GIVEN AND THE NEED FOR INFORMATION OF THE UNDERTAKING TO WHICH THE MEASURE IS ADDRESSED .
21 AN EXAMINATION OF THE REASONS RECITED IN DECISION NO 5462 DISCLOSES THAT THOSE CONDITIONS ARE NOT SATISFIED . THE MATERIAL RECITALS IN THE PREAMBLE TO THAT DECISION MERELY STATE THAT SSK IS ' THE SELLING AGENCY OF LAMINOIRS DE STRASBOURG ', WITHIN THE MEANING OF THE LEGISLATION DEEMED APPLICABLE . THEY DO NOT, HOWEVER, SET OUT THE CONSIDERATIONS WHICH LED THE COMMISSION TO THAT CONCLUSION AND CONSEQUENTLY DO NOT FURNISH ANY ELEMENT OF FACT OR LAW WHICH MIGHT SUPPORT THAT CONTENTION . THAT APPROACH, WHICH AMOUNTS TO NO MORE THAN A REFERENCE TO THE PROVISIONS OF COMMUNITY LAW, NEITHER ENABLES THE UNDERTAKING TO WHICH THE DECISION IS ADDRESSED TO PREPARE ITS DEFENCE NOR ENABLES THE COURT TO EXERCISE FULLY THE POWERS OF REVIEW CONFERRED ON IT BY THE TREATY .
22 IT WAS ALL THE MORE NECESSARY TO SUPPLY FURTHER INFORMATION SINCE, ACCORDING TO THE DOCUMENTS BEFORE THE COURT, SSK IS BOUND TO LAMINOIRS BY AN EXCLUSIVE DISTRIBUTORSHIP AGREEMENT, AND AN AGREEMENT OF THAT KIND DOES NOT AS A RULE CREATE SO CLOSE A DEPENDENCE BETWEEN THE PARTIES AS TO WARRANT ITS BEING DESCRIBED AS AN ' ELEMENT OF CONTROL OF AN UNDERTAKING '
AS DEFINED BY DECISION NO 24/54 FOR THE PURPOSE OF APPLYING THE RULES ON CONCENTRATIONS BETWEEN UNDERTAKINGS . IT WAS THEREFORE ESSENTIAL THAT THE PREAMBLE TO THE CONTESTED DECISION SHOULD SET OUT CLEARLY THE GROUNDS ON WHICH THE COMMISSION CONSIDERED THAT THE PARTICULAR CIRCUMSTANCES OF THE CASE DICTATED A DIFFERENT VIEW, FOR THE ARGUMENTS OF THE PARTIES REHEARSED ABOVE REVEAL THAT THERE ARE COMPLEX CRITERIA TO BE TAKEN INTO ACCOUNT WHEN APPRAISING THIS ISSUE .
23 IT FOLLOWS THAT DECISION NO 5462 DOES NOT FULFIL THE OBLIGATION UNDER ARTICLE 15 OF THE ECSC TREATY TO STATE THE REASONS ON WHICH IT IS BASED, AND THAT IT MUST THEREFORE BE DECLARED VOID FOR INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, WITHOUT THERE BEING ANY NEED TO CONSIDER THE SUBMISSIONS PUT FORWARD BY THE APPLICANT .
Decision on costs
COSTS
24 UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS . SINCE THE COMMISSION HAS, IN THE MAIN, BEEN UNSUCCESSFUL, IT SHOULD BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FIFTH CHAMBER )
HEREBY :
( 1 ) DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT SEEKS THE ANNULMENT OF THE THIRD INDENT OF ARTICLE 1(2 ) OF COMMISSION DECISION NO 30/53 OF 2 MAY 1953 AS AMENDED BY COMMISSION DECISION NO 1834/81/ECSC OF 3 JULY 1981 ;
( 2)DECLARES VOID COMMISSION DECISION NO 5462 OF 2 MAY 1985 PROVISIONALLY BLOCKING, PURSUANT TO ARTICLE 2(7 ) OF DECISION NO 3716/83/ECSC, THE RETURN OF A PORTION OF THE GUARANTEE LODGED BY USINOR IN THE SECOND QUARTER OF 1985 ;
( 3 ) ORDERS THE COMMISSION TO PAY THE COSTS .