61983CJ0008_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN CASE 8/83
OFFICINE FRATELLI BERTOLI SPA, UDINE, REPRESENTED BY ITS LEGAL ADVISER, ASSISTED BY FRANCO PASQUALI, ADVOCATE AT THE ITALIAN CORTE DI CASSAZIONE ( COURT OF CASSATION ), WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN-CLAUDE WOLTER, 2 RUE GOETHE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY SERGIO FABRO, A MEMBER OF ITS LEGAL DEPARTMENT, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION PRIMARILY FOR A DECLARATION THAT THE DEFENDANT ' S DECISION OF 9 DECEMBER 1982, NOTIFIED TO THE APPLICANT OF 15 DECEMBER 1982 AND IMPOSING A FINE ON THE LATTER FOR INFRINGING ARTICLE 60 OF THE ECSC TREATY IS VOID, OR FOR THE AMENDMENT THEREOF,
Grounds
1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 14 JANUARY 1983, OFFICINE FRATELLI BERTOLI SPA ( HEREINAFTER REFERRED TO AS ' ' BERTOLI ' ' ) SUBMITTED AN APPLICATION PURSUANT TO ARTICLE 36 OF THE ECSC TREATY, BY VIRTUE OF WHICH THE COURT HAS UNLIMITED JURISDICTION, FOR A DECLARATION THAT THE COMMISSION DECISION OF 9 DECEMBER 1982 IMPOSING A FINE ON THE APPLICANT FOR INFRINGING ARTICLE 60 OF THE ECSC TREATY IS VOID, OR FOR THE AMENDMENT THEREOF .
BACKGROUND TO THE DECISION
2 AT THE END OF SEPTEMBER 1981, TWO COMMISSION INSPECTORS CARRIED OUT A CHECK UNDER ARTICLE 60 OF THE ECSC TREATY ON SALES OF STEEL PRODUCTS BY BERTOLI BETWEEN 1 JULY AND 30 SEPTEMBER 1981 .
3 THE RESULTS OF THAT CHECK SHOWED THAT, AS REGARDS BOTH FIRST-GRADE PRODUCTS AND THOSE DEFINED BY THE APPLICANT AS PRODUCTS ' ' WHICH ARE NOT OF THE FIRST GRADE ' ', DISCOUNTS HAD BEEN GRANTED WITHOUT BEING PUBLISHED, THAT THE PRICE SUPPLEMENTS WHICH HAD BEEN PUBLISHED HAD NOT BEEN INVOICED, OR HAD BEEN INVOICED ONLY IN PART AND THAT TRANSPORT COSTS HAD NOT BEEN INVOICED .
4 AS REGARDS FIRST-GRADE PRODUCTS, THE PRICE REDUCTIONS ESTABLISHED BY THE INSPECTORS AMOUNTED TO LIT 38 807 000 FOR 915 TONNES SOLD, CORRESPONDING TO SALES DEEMED TO BE IRREGULAR TO THE VALUE OF LIT 324 884 000 . AS REGARDS THE OTHER PRODUCTS, THE PRICE REDUCTIONS AMOUNTED TO LIT 47 174 000 FOR 710 TONNES, CORRESPONDING TO SALES DEEMED TO BE IRREGULAR TO THE VALUE OF LIT 247 347 000 .
5 BY LETTER OF 18 MARCH 1982 THE COMMISSION REFERRED TO THE FINDINGS MADE BY ITS INSPECTORS, CHARGED BERTOLI WITH FAILING TO COMPLY WITH ARTICLE 60 OF THE ECSC TREATY AND WITH THE DECISIONS ADOPTED FOR ITS IMPLEMENTATION, AND REQUESTED IT, PURSUANT TO ARTICLE 36 OF THE ECSC TREATY, TO SUBMIT ITS COMMENTS .
6 BY LETTER OF 6 APRIL 1982 BERTOLI CONTENDED THAT IN VIEW OF ITS MARGINAL IMPORTANCE ON THE ITALIAN MARKET, IT HAD BEEN COMPELLED TO ABIDE BY THE PRINCIPLE OF SUPPLY AND DEMAND AND THAT, SINCE IT WAS UNABLE TO APPLY ITS OWN PRICE LIST, IT HAD BEEN OBLIGED TO CARRY OUT A PARTIAL ALIGNMENT ON THE PRICES OF ITS COMPETITORS, WHILST MAINTAINING PRICES HIGHER THAN THOSE ACTUALLY CHARGED BY THEM . IN SUPPORT OF ITS CONTENTIONS, IT FORWARDED TO THE COMMISSION PHOTOCOPIES OF ITS COMPETITORS '
INVOICES .
7 AT THE HEARING ON 21 JUNE 1982 THE APPLICANT DID NOT CONTEST THE FACTS ALLEGED . IN ACCORDANCE WITH ITS PREVIOUS LINE OF DEFENCE, IT ARGUED THAT HAD IT APPLIED ITS PRICE LISTS STRICTLY, IT WOULD HAVE BEEN FORCED TO GO OUT OF BUSINESS AND IT OBSERVED THAT SINCE 1 OCTOBER 1981 IT HAD ADHERED CLOSELY TO THOSE PRICE LISTS .
8 TAKING THE VIEW THAT THE EXPLANATIONS FURNISHED BY THE APPLICANT DID NOT EXPUNGE THE INFRINGEMENTS COMMITTED, THE COMMISSION, BY DECISION OF 9 DECEMBER 1982, IMPOSED UPON IT A FINE OF LIT 94 579 100, EQUAL TO 100% OF THE PRICE REDUCTIONS INCREASED BY 10% FOR REDUCING BY MORE THAN 10% THE PRICES WHICH SHOULD HAVE BEEN INVOICED .
9 IN SUPPORT OF ITS APPLICATION THE APPLICANT RELIES ON THE FOLLOWING SUBMISSIONS IN SUPPORT OF ITS CONTENTION THAT THE DECISION IS UNLAWFUL : INFRINGEMENT OF ESSENTIAL PROCEDURAL REQUIREMENTS, INFRINGEMENT OF THE ECSC TREATY AND OF RULES OF LAW RELATING TO ITS APPLICATION, MORE PARTICULARLY BREACH OF THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND EQUAL TREATMENT AND, FINALLY, MISUSE OF POWERS .
FIRST SUBMISSION
10 ACCORDING TO THE APPLICANT, THE DECISION IS UNLAWFUL INASMUCH AS IT CONTAINS AN INADEQUATE STATEMENT OF THE REASONS ON WHICH IT IS BASED . IT IS IMPOSSIBLE, IN ITS VIEW, TO TRACE THE REASONING BY WHICH THE COMMISSION DETERMINED THE PRICE REDUCTIONS AND, CONSEQUENTLY, THE AMOUNT OF THE FINE . THE LIST OF IRREGULAR TRANSACTIONS CONTAINED IN THE ANNEXES TO THE DECISION DOES NOT MAKE IT POSSIBLE TO TRACE THE STAGES BY WHICH THE COMMISSION CALCULATED FOR EACH SALE THE AMOUNT OF THE PRICE REDUCTIONS .
11 THE COMMISSION CONSIDERS THAT SUBMISSION TO BE UNFOUNDED . IT IS POSSIBLE IN ITS VIEW, BY EXAMINING THE LIST OF INVOICES ANNEXED TO THE DECISION TO ESTABLISH THE DISCOUNTS GRANTED AND THE PRECISE AMOUNT THEREOF . THE VARIOUS CALCULATIONS MADE BY THE COMMISSION MAY EASILY BE DEDUCED FROM THE ANNEXES . NO ADDITIONAL FACTOR NEED BE CONSIDERED TO JUSTIFY THE MEASURE IN QUESTION .
12 AS THE COURT HAS STATED IN ITS CONSISTENT CASE-LAW, THE PURPOSE OF THE OBLIGATION TO STATE THE REASONS ON WHICH AN INDIVIDUAL DECISION IS BASED IS TO ENABLE THE COURT TO REVIEW THE LEGALITY OF THE DECISION AND TO PROVIDE THE PERSON CONCERNED WITH SUFFICIENT INFORMATION TO MAKE IT POSSIBLE TO ASCERTAIN WHETHER THE DECISION IS WELL FOUNDED OR WHETHER IT IS VITIATED BY A DEFECT WHICH MAY PERMIT ITS LEGALITY TO BE CONTESTED .
13 IT MAY BE RECALLED THAT IN ITS JUDGMENT OF 11 JANUARY 1973 IN CASE 13/72 NETHERLANDS V COMMISSION ( 1973 ) ECR 27, THE COURT HELD THAT THE EXTENT OF THE OBLIGATION TO STATE REASONS DEPENDS ON THE NATURE OF THE MEASURE IN QUESTION AND ON THE CONTEXT IN WHICH IT WAS ADOPTED .
14 IT MUST BE OBSERVED IN THAT REGARD THAT THE CONTESTED DECISION WAS ADOPTED FOLLOWING A CHECK CARRIED OUT ON THE PREMISES OF THE APPLICANT UNDERTAKING IN THE COURSE OF WHICH, AS IS CLEAR FROM THE APPLICANT ' S LETTER OF 6 APRIL 1982, THERE WAS AN EXCHANGE OF VIEWS BETWEEN THE MANAGEMENT OF THE UNDERTAKING AND THE COMMISSION ' S INSPECTORS, AND FOLLOWING AN ADMINISTRATIVE PROCEDURE WHICH THE COMMISSION INITIATED BY THE DISPATCH OF A LETTER ON 18 MARCH 1982 INFORMING THE APPLICANT IN PRECISE TERMS, AND ENCLOSING INVOICES AS EVIDENCE OF EACH TRANSACTION, OF THE INFRINGEMENTS WITH WHICH IT WAS CHARGED .
15 WHEN IT WAS REQUESTED, PURSUANT TO ARTICLE 36 OF THE ECSC TREATY, TO SUBMIT ITS COMMENTS CONCERNING THOSE INFRINGEMENTS, THE APPLICANT IN ITS AFOREMENTIONED LETTER OF 6 APRIL 1982 AND AT THE HEARING ON 21 JUNE 1982 DID NOT CONTEST EITHER THE ACCURACY OR EVEN THE LEGAL BASIS OF THE CHARGES LAID AGAINST IT AND MERELY CONTENDED THAT, SINCE IT WAS COMPELLED TO ABIDE BY THE PRINCIPLE OF SUPPLY AND DEMAND, IT HAD BEEN OBLIGED, IN ORDER TO AVOID THE CLOSURE OF ITS BUSINESS, TO REFRAIN FROM APPLYING TO THE LETTER ITS OWN PRICE LIST OR THAT OF ONE OF ITS COMPETITORS AND HAD THEREFORE ALIGNED ITS PRICES ON THOSE ACTUALLY INVOICED BY CERTAIN OF ITS COMPETITORS .
16 SUBSEQUENTLY, IN ITS LETTER OF 21 JULY 1982, WHILST CONCEDING THAT AN ALIGNMENT WAS POSSIBLE ONLY ON PRICE LISTS AND NOT ON TRANSACTIONS, THE APPLICANT PLEADED BY WAY OF DEFENCE THE DIFFICULTIES WHICH IT CLAIMED TO HAVE ENCOUNTERED IN RECEIVING NOTICE OF THOSE PRICE LISTS IN SUFFICIENT TIME .
17 IN VIEW OF THE CIRCUMSTANCES IN WHICH THE CONTESTED DECISION WAS ADOPTED AND OF THE FACT THAT THE ANNEXES TO THAT DECISION INDICATE FOR EACH TRANSACTION THE AMOUNTS OF THE REBATES GRANTED, THE PRICE SUPPLEMENTS AND THE TRANSPORT COSTS, EITHER NOT INVOICED AT ALL OR INVOICED ONLY IN PART, THE APPLICANT, CONTRARY TO ITS ASSERTIONS, WAS SUFFICIENTLY INFORMED OF THE FACTUAL ELEMENTS ON WHICH THE DECISION WAS BASED AND WAS THEREFORE ABLE TO ASCERTAIN WHETHER IT WAS WELL FOUNDED WITH A VIEW TO CONTESTING ITS LEGALITY IF NECESSARY .
18 THIS SUBMISSION MUST THEREFORE BE REJECTED .
SECOND SUBMISSION
19 ACCORDING TO THE APPLICANT, THE COMMISSION ' S CONDUCT HAS BEEN CHARACTERIZED IN RECENT YEARS BY ALTERNATING PERIODS OF LEGISLATIVE PROVISIONS AND CHECKS SUCCEEDED BY PERIODS OF ACQUIESENCE AND LENIENCY . IN ITS VIEW, THE HARDENING IN THE COMMISSION ' S ATTITUDE UNDERMINED THE PRINCIPLES OF THE PROTECTION OF LEGITIMATE EXPECTATION AND EQUAL TREATMENT . MORE PARTICULARLY, THE APPLICANT CONTENDS THAT THE COMMISSION CHANGED ITS POLICY REGARDING THE MONITORING OF PRICE ALIGNMENTS CARRIED OUT BY UNDERTAKINGS, BY A TRANSITION FROM A SYSTEM OF ACQUIESCENCE TO A SYSTEM OF STRICT CHECKS .
20 THE COMMISSION DENIES THE APPLICANT ' S CONTENTION THAT THERE WAS A TIME WHEN IT SHOWED AN ACQUIESCENT ATTITUDE TOWARDS ALIGNMENT . THE DECREASE AT ONE POINT IN THE NUMBER OF CHECKS CARRIED OUT TO MONITOR COMPLIANCE BY UNDERTAKINGS WITH ARTICLE 60 OF THE ECSC TREATY WAS ATTRIBUTABLE TO A SHORTAGE OF STAFF AND TO THE NEED TO CARRY OUT OTHER, MORE URGENT CHECKS BUT IS BY NO MEANS EVIDENCE OF A SPECIFIC INTENTION ON ITS PART AS A MATTER OF POLICY TO ADOPT A COMPLIANT ATTITUDE TOWARDS ALIGNMENT . FURTHERMORE, SINCE COMPLIANCE WITH THE RULES OF THE TREATY MUST, IN TIMES OF CRISIS, BE FAR STRICTER
THAN WHEN THE MARKET IS STABLE, THE FACT THAT THE COMMISSION REMINDED UNDERTAKINGS THAT THE ECONOMIC CRISIS DID NOT EXEMPT THEM FROM THE OBLIGATION TO COMPLY WITH THE RULES CONTAINED IN ARTICLE 60 AND THAT IT SUBSEQUENTLY PROCEEDED TO CARRY OUT CHECKS TO ASCERTAIN WHETHER ITS REMINDERS HAD BEEN HEEDED IS QUITE CONSISTENT AND DOES NOT ADVERSELY AFFECT THE RIGHTS OF STEEL UNDERTAKINGS .
21 EVEN ON THE ASSUMPTION THAT THERE WAS A PERIOD IN WHICH THE COMMISSION MAY TO SOME EXTENT HAVE SHOWN A CERTAIN LAXITY TOWARDS ALIGNMENT, IT MUST BE STATED, AS THE COURT HELD IN ITS JUDGMENT OF 11 DECEMBER 1980 IN CASE 1252/79 LUCCHINI ( 1980 ) ECR 753, THAT A CONCESSION ON THE PART OF THE AUTHORITIES CANNOT MAKE AN INFRINGEMENT LEGITIMATE .
22 FURTHERMORE, IT IS CLEAR FROM THE DOCUMENTS BEFORE THE COURT THAT ON SEVERAL OCCASIONS IN 1981 FORMAL WARNINGS WERE ISSUED TO PRODUCERS AND DEALERS TO COMPLY WITH THE RULES ON PRICES . THE APPLICANT SHOULD THEREFORE HAVE EXPECTED THE COMMISSION TO TIGHTEN AND EXTEND THE SYSTEM OF CHECKS CARRIED OUT TO MONITOR COMPLIANCE WITH THE PRICES NOTIFIED BY UNDERTAKINGS .
23 THIS SUBMISSION MUST THEREFORE BE REJECTED .
THIRD SUBMISSION
24 TAKING THE VIEW THAT A MISUSE OF POWERS ALSO INCLUDES AN ABUSE OF POWER AND ULTRA VIRES ACTS CONSISTING IN THE ARBITRARY EXERCISE BY THE ADMINISTRATION OF THE POWERS VESTED IN IT, THE APPLICANT RECALLS THAT, BY DECISION OF 4 JUNE 1981, THE COMMISSION HAD AUTHORIZED ITS VICE-PRESIDENT TO IMPOSE FINES FOR THE INFRINGEMENT OF ARTICLE 60 OF THE ECSC TREATY AT A BASIC RATE TO AMOUNT TO APPROXIMATELY 25% OF THE PRICE REDUCTIONS, WITH THE POSSIBILITY OF ADJUSTING THE RATES UPWARDS OR DOWNWARDS, BY UP TO 40% OF THE VALUE OF THE REDUCTIONS, ACCORDING TO THE SPECIFIC CIRCUMSTANCES OF EACH CASE . SINCE THE COMMISSION THUS RESTRICTED THE WIDER POWERS CONFERRED UPON IT BY ARTICLE 64 OF THE ECSC TREATY, IT WAS BOUND BY THE CRITERIA LAID DOWN UNTIL SUCH TIME AS IT DECIDED TO MODIFY THEM . THE COMMISSION ' S FAILURE TO SATISFY THOSE CRITERIA IN ITS CONTESTED DECISION SHOULD, IN THE APPLICANT ' S VIEW, BE REGARDED AS ARBITRARY . MOREOVER, EVEN IF THE COMMISSION WAS ENTITLED TO MODIFY ITS
GENERAL CRITERIA IN ORDER TO INTENSIFY THE SERVERITY OF ITS PUNITIVE ACTION, IT WAS UNDER AN OBLIGATION, BY VIRTUE OF THE PRINCIPLE NULLUM CRIMEN, NULLA POENA SINE LEGE, WHATEVER THE DATE ON WHICH THE PENALTY WAS IMPOSED, TO REFER TO THE CRITERIA IN FORCE AT THE TIME OF THE INFRINGEMENT . THOSE CONSIDERATIONS JUSTIFY IN THE APPLICANT ' S VIEW A REDUCTION OF THE FINE TO APPROXIMATELY 25% .
25 THE COMMISSION ON THE OTHER HAND CONTENDS THAT THE PRINCIPLE OF CRIMINAL LAW TO WHICH THE APPLICANT REFERS IS NOT APPLICABLE TO THE COMMISSION DECISION IMPOSING A FINE ON THE APPLICANT SINCE IT IS AN ADMINISTRATIVE MEASURE WHICH, AS SUCH, DOES NOT COME WITHIN THE SCOPE OF THE RULES AND PRINCIPLES OF CRIMINAL LAW . MOREOVER, THE DELEGATION OF POWERS TO A MEMBER OF THE COMMISSION CONSTITUTES A DEROGATION FROM THE PRINCIPLE THAT DECISIONS MUST BE ADOPTED COLLECTIVELY . THE COMMISSION RETAINS THE POWER TO DECIDE CASES WHICH FALL OUTSIDE THE SCOPE OF DAY-TO-DAY ADMINISTRATION . THAT WAS THE PROCEDURE FOLLOWED IN THE PRESENT CASE, IT IS CLAIMED . IN ITS DECISION THE COMMISSION MERELY APPLIED ARTICLE 64 OF THE ECSC TREATY BY VIRTUE OF THE DISCRETION VESTED IN IT, AND WAS NOT GUILTY OF ANY ABUSE OF POWER .
26 THE APPLICANT ' S ARGUMENT MUST BE REJECTED . IT IS SUFFICIENT TO NOTE IN THAT CONNECTION THAT ARTICLE 64 OF THE ECSC TREATY AUTHORIZES THE COMMISSION TO IMPOSE UPON UNDERTAKINGS WHICH INFRINGE THE PROVISIONS OF CHAPTER V OF THE ECSC TREATY FINES NOT EXCEEDING TWICE THE VALUE OF THE SALES EFFECTED IN DISREGARD THEREOF AND THAT IN THE WORDING OF THE COMMISSION DECISION OF 4 JUNE 1981 AUTHORIZING THE COMMISSION RESPONSIBLE FOR INDUSTRIAL AFFAIRS TO IMPOSE FINES WITHIN CERTAIN LIMITS AND SUBJECT TO CERTAIN CONDITIONS WHERE THE RULES OF ARTICLE 60 ARE INFRINGED THERE IS NOTHING TO SUPPORT THE VIEW THAT THE COMMISSION HAS RELINQUISHED THE POWERS CONFERRED UPON IT BY ARTICLE 64 .
27 AS REGARDS THE PRINCIPLE NULLA POENA SINE LEGE, IT IS CLEAR FROM THE CONSIDERATIONS SET OUT ABOVE, WITHOUT ITS BEING NECESSARY TO CONSIDER WHETHER OR NOT THAT PRINCIPLE APPLIES TO THE IMPOSITION OF ADMINISTRATIVE PENALTIES, THAT THE RATE OF THE FINE IMPOSED ON THE APPLICANT IN THE PRESENT CASE IS NOT IN EXCESS OF THAT PROVIDED FOR BY ARTICLE 64 OF THE ECSC TREATY .
28 THIS SUBMISSION MUST THEREFORE BE REJECTED .
AMOUNT OF THE FINE
29 ALTHOUGH THE SUBMISSION RELIED UPON BY THE APPLICANT IN SUPPORT OF ITS APPLICATION FOR A REDUCTION OF THE FINE IMPOSED UPON IT CANNOT BE ACCEPTED FOR THE REASONS SPECIFIED ABOVE, CERTAIN CIRCUMSTANCES PECULIAR TO THIS CASE JUSTIFY A REDUCTION ON EQUITABLE GROUNDS . IN THE LAST 30 YEARS, IN SPITE OF NUMEROUS CHECKS CARRIED OUT BY THE COMMISSION, NO PENALTY HAS EVER BEEN IMPOSED ON THE APPLICANT FOR INFRINGING THE RULES ON PRICES, LEVIES OR QUOTAS . AN ADDITIONAL FACTOR IS THE UNCERTAIN NATURE OF THE NOTICES ISSUED BY THE COMMISSION WHICH, WHILST WARNING THE UNDERTAKINGS CONCERNED THAT THE SYSTEM OF CHECKS TO MONITOR COMPLIANCE WITH THE PRICES AND CONDITIONS OF SALE IMPOSED BY ARTICLE 60 OF THE ECSC TREATY WOULD BE TIGHTENED AND EXTENDED, DID NOT DRAW THEIR ATTENTION TO THE COMMISSION ' S INTENTION OF PENALIZING MORE SEVERELY, AS IT WAS EMPOWERED TO DO, ANY INFRINGEMENTS ESTABLISHED . IN THOSE CIRCUMSTANCES THE COURT CONSIDERS THAT THE AMOUNT OF THE FINE FIXED BY THE COMMISSION IS EXCESSIVE . ACCORDINGLY, THE FINE MUST BE REDUCED BY 75% .
Decision on costs
COSTS
30 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE, THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
HOWEVER, UNDER THE FIRST SUBPARAGRAPH OF ARTICLE 69 ( 3 ) WHERE EACH PARTY SUCCEEDS ON SOME AND FAILS ON OTHER HEADS, THE COURT MAY ORDER THAT THE PARTIES BEAR THEIR OWN COSTS IN WHOLE OR IN PART . AS THE PARTIES HAVE BOTH BEEN UNSUCCESSFUL IN SOME OF THEIR SUBMISSIONS, THEY MUST BE ORDERED TO BEAR THEIR OWN COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT ( FOURTH CHAMBER )
HEREBY :
1 . FIXES THE FINE IMPOSED ON THE APPLICANT AT LIT 23 644 775 ;
2 . DISMISSES THE REMAINDER OF THE APPLICATION ;
3 . ORDERS THE PARTIES TO BEAR THEIR OWN COSTS .