61981CJ0039_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES 39, 43, 85 AND 88/81
HALYVOURGIKI INC ., A COMPANY INCORPORATED UNDER THE LAWS OF GREECE HAVING ITS REGISTERED OFFICE IN ATHENS ( CASES 39 AND 85/81 ),
AND
HELLENIKI HALYVOURGIA SA, A COMPANY INCORPORATED UNDER THE LAWS OF GREECE HAVING ITS REGISTERED OFFICE AT PIRAEUS AND ITS HEADQUARTERS IN ATHENS ( CASES 43 AND 88/81 ),
REPRESENTED BY ANDRE ELVINGER, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER, 15 COTE D ' EICH,
APPLICANTS,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, MICHEL VAN ACKERE, ACTING AS AGENT, ASSISTED BY FRANK BENYON, A MEMBER OF
ITS LEGAL DEPARTMENT, 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
APPLICATIONS FOR A DECLARATION THAT INDIVIDUAL DECISIONS BY WHICH THE COMMISSION FIXED THE APPLICANTS '
PRODUCTION QUOTAS FOR CRUDE STEEL AND ROLLED PRODUCTS FOR THE FIRST QUARTER OF 1981 ARE VOID,
Grounds
1 BY APPLICATIONS LODGED AT THE COURT REGISTRY ON 19 AND 20 FEBRUARY 1981 AND REGISTERED UNDER NOS 39/81 AND 43/81 THE GREEK STEEL UNDERTAKINGS HALYVOURGIKI INC . AND HELLENIKI HALYVOURGIA SA, BOTH INCORPORATED UNDER THE LAWS OF GREECE AND HAVING THEIR RESPECTIVE REGISTERED OFFICES AT ATHENS AND PIRAEUS, BROUGHT ACTIONS UNDER ARTICLE 33 OF THE ECSC TREATY FOR A DECLARATION THAT DECISIONS FIXING THEIR PRODUCTION QUOTAS FOR CRUDE STEEL AND ROLLED PRODUCTS FOR THE FIRST QUARTER OF 1981 ARE VOID . THOSE DECISIONS WERE ADOPTED ON 19 AND 20 JANUARY 1981 RESPECTIVELY PURSUANT TO COMMISSION
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 1980, L 291, P . 1 ) AND COMMISSION DECISION NO 3381/80/ECSC OF 23 DECEMBER 1980 FIXING THE RATES OF ABATEMENT FOR THE FIRST QUARTER OF 1981 ( OFFICIAL JOURNAL 1980, L 355, P . 37 ).
2 THE APPLICANTS '
MAIN CONTENTION IS THAT DECISIONS NO 2794/80 AND NO 3381/80, THE GENERAL DECISIONS ON WHICH THE CONTESTED INDIVIDUAL DECISIONS ARE BASED, ARE NOT APPLICABLE TO GREEK UNDERTAKINGS, OR AT ANY RATE ARE VOID AS AGAINST THEM, BECAUSE THEY WERE ADOPTED UNILATERALLY BY THE COMMUNITY WITHOUT THE COLLABORATION OF THE GREEK AUTHORITIES DURING THE INTERIM PERIOD BETWEEN THE SIGNING OF THE DOCUMENTS CONCERNING THE ACCESSION OF THE HELLENIC REPUBLIC TO THE COMMUNITIES - TO BE PRECISE, 24 MAY 1979, THE DATE OF THE DECISION ADOPTED BY THE COUNCIL OF THE EUROPEAN COMMUNITIES ON THE ACCESSION OF THE HELLENIC REPUBLIC TO THE EUROPEAN COAL AND STEEL COMMUNITY AND OF THE ACT ANNEXED TO THAT DECISION CONCERNING THE CONDITIONS OF ACCESSION ( OFFICIAL JOURNAL 1979, L 291, PP . 5 AND 17 ) - AND ACCESSION ITSELF, WHICH TOOK EFFECT ON 1 JANUARY 1981 .
3 IN THE ALTERNATIVE, THE APPLICANTS ARGUE THAT DECISION NO 2794/80 IS ILLEGAL BECAUSE IT FAILS TO STATE PROPERLY THE REASONS ON WHICH IT IS BASED AND BECAUSE IT INFRINGES ARTICLES 14, 58 AND 74 OF THE ECSC TREATY ; FURTHERMORE, THE APPLICATION OF CERTAIN CRITERIA LAID DOWN IN THAT DECISION IS SAID TO ENTAIL DISCRIMINATORY TREATMENT AGAINST GREEK UNDERTAKINGS IN RELATION TO OTHER UNDERTAKINGS IN THE COMMUNITY .
4 AFTER THE COMMISSION HAD, BY LETTERS DATED 13 MARCH 1981, AMENDED ITS ORIGINAL DECISIONS PURSUANT, IN PARTICULAR, TO ARTICLE 14 OF DECISION NO 2794/80, THE TWO COMPANIES, BY APPLICATIONS REGISTERED ON 13 APRIL 1981 UNDER NOS 85 AND 88/81, EXTENDED THE ACTIONS TO THOSE AMENDING DECISIONS . THEY CONSIDER THAT, ALTHOUGH THOSE AMENDMENTS ARE IN GENERAL FAVOURABLE TO THEM, THEY DO NOT DISPOSE OF ANY OF THE OBJECTIONS MADE AGAINST DECISIONS NO 2794/80 AND NO 3381/80 AND THE APPLICATION THEREOF TO GREEK UNDERTAKINGS .
THE APPLICATION OF DECISIONS NO 2794/80 AND NO 3381/80 TO GREEK UNDERTAKINGS
5 IN THE DECISIONS FIXING THE APPLICANTS '
PRODUCTION QUOTAS THE COMMISSION STATED THAT THE DECISIONS WERE ADOPTED ' ' ON THE BASIS OF THE ACT CONCERNING THE ACCESSION OF GREECE, IN PARTICULAR ARTICLE 2 THEREOF, AND PURSUANT TO ARTICLE 3 OF DECISION NO 2794/80/ECSC AND TO DECISION NO 3381/80/ECSC ' ' .
6 THE APPLICANTS CONSIDER THAT THE INDIVIDUAL DECISIONS ADOPTED WITH RESPECT TO THEM ARE VOID ON THE GROUND THAT THE GENERAL DECISIONS ON WHICH THEY ARE BASED ARE NOT APPLICABLE TO GREEK UNDERTAKINGS : ON THE ONE HAND, THOSE GENERAL DECISIONS, WHICH WERE ADOPTED BEFORE GREECE ' S ACCESSION ON 1 JANUARY 1981, ARE NOT ACTS OF THE COMMUNITY INSTITUTIONS AS ENLARGED BY THE ENTRY OF GREECE ; ON THE OTHER HAND, SINCE THOSE DECISIONS WERE ADOPTED AFTER THE DOCUMENTS CONCERNING THE ACCESSION OF GREECE WERE SIGNED, THEY HAVE NOT BEEN THE SUBJECT OF ANY UNDERTAKING OR RATIFICATION ON THE PART OF GREECE . IN THIS REGARD THEY SUBMIT THAT IT IS NOT POSSIBLE TO ACCEPT THAT THE REFERENCE TO THE ACTS OF THE INSTITUTIONS IN ARTICLE 2 OF THE ACT OF ACCESSION COULD INCLUDE FUTURE ACTS, WHICH, BECAUSE THEIR TERMS WERE NOT YET SETTLED, WERE NOT KNOWN TO THE PARTIES ON THE DATE ON WHICH THE INTERNATIONAL AGREEMENT WAS CONCLUDED .
7 IT IS ARGUED THAT, EVEN ON THE SUPPOSITION THAT THE GENERAL DECISIONS IN QUESTION MAY BE EXTENDED TO GREEK UNDERTAKINGS, THOSE UNDERTAKINGS ARE STILL JUSTIFIED IN CONTESTING THEIR APPLICABILITY .
THOSE DECISIONS WERE NOT DEALT WITH UNDER THE ADAPTATION PROCEDURE PROVIDED FOR IN ARTICLES 22 AND 146 OF THE ACT OF ACCESSION OR UNDER THE INFORMATION AND CONSULTATION PROCEDURE PROVIDED FOR IN THE AGREEMENT ANNEXED TO THE FINAL ACT SIGNED IN ATHENS ON 28 MAY 1979 ( OFFICIAL JOURNAL 1979, L 291, PP . 179 AND 191 ).
8 FINALLY, THE APPLICANTS CONTEND THAT, IN SO FAR AS DECISION NO 2794/80 IS BASED ON THE FINDING THAT THERE EXISTS A STATE OF MANIFEST CRISIS WITHIN THE MEANING OF ARTICLE 58, AS STATED IN THE PREAMBLE TO THAT DECISION, IT IS REPRESENTATIVE ONLY ' ' OF THE SITUATION IN THE COMMUNITY WITHOUT GREECE ' ' . THEY THEREFORE SUBMIT THAT THE DECISION IS BY ITS VERY NATURE INAPPLICABLE TO GREEK UNDERTAKINGS .
THE EFFECT OF DECISIONS NO 2794/80 AND NO 3381/80
9 ARTICLE 2 OF THE ACT OF ACCESSION 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 ' ' . IN ACCORDANCE WITH ARTICLE 2 OF THE DECISION OF THE COUNCIL OF 24 MAY 1979, GREECE ' S ACCESSION TO THE EUROPEAN COAL AND STEEL COMMUNITY TOOK EFFECT ON 1 JANUARY 1981 WITH THE DEPOSIT ON THAT DATE OF ITS INSTRUMENT OF ACCESSION . READ TOGETHER, THOSE TWO PROVISIONS SHOW THAT IT IS WITH REFERENCE TO 1 JANUARY 1981, RATHER THAN THE DATE OF THE COUNCIL ' S DECISION OR OF THE SIGNING OF THE DOCUMENTS CONCERNING ACCESSION, THAT IT MUST BE DETERMINED WHICH ACTS OF THE INSTITUTIONS ARE BINDING ON THE HELLENIC REPUBLIC AND APPLICABLE IN THAT STATE .
10 ARTICLES 22 AND 146 OF THE ACT OF ACCESSION ARE NOT RELEVANT TO THE ISSUE RAISED . THOSE PROVISIONS APPLY ONLY TO ACTS OF THE INSTITUTIONS THE ADAPTATION OF WHICH, RECOGNIZED TO BE NECESSARY WHEN THE DOCUMENTS CONCERNING ACCESSION WERE SIGNED, HAD TO BE CARRIED OUT DURING THE INTERIM PERIOD . AS REGARDS NEW MEASURES TO BE ADOPTED IN THAT PERIOD, THE INSTITUTIONS WERE AWARE OF THE IMMINENT ACCESSION OF GREECE, WHICH WAS GIVEN AN OPPORTUNITY TO ASSERT ITS INTERESTS WHERE NECESSARY, IN PARTICULAR THROUGH THE INFORMATION AND CONSULTATION PROCEDURE DESCRIBED IN AN AGREEMENT ANNEXED TO THE FINAL ACT ( OFFICIAL JOURNAL 1979, L 291, P . 191 ).
11 IT IS THEREFORE INCONTESTABLE THAT DECISION NO 2794/80 ADOPTED ON 31 OCTOBER 1980, AND DECISION NO 3381/80, ADOPTED ON 23 DECEMBER 1980, ARE AMONGST THE ACTS OF THE INSTITUTIONS WHICH ENTERED INTO FORCE, UNADAPTED, WITH RESPECT TO GREECE AND IN ITS TERRITORY WHEN ACCESSION BECAME EFFECTIVE ON 1 JANUARY 1981 PURSUANT TO ARTICLE 2 OF THE ACT OF ACCESSION .
12 IT SHOULD BE ADDED THAT ONLY IN THIS WAY IS IT POSSIBLE TO AVOID DISCONTINUITY IN THE COMMUNITY LEGAL SYSTEM IN ITS APPLICATION TO GREECE . THE SCHEME OF THE ACT OF ACCESSION SHOWS THAT THE ACCEDING STATE ACCEPTS ALL THE MEASURES ADOPTED BY THE INSTITUTIONS PRIOR TO THE TIME WHEN ITS ACCESSION TAKES EFFECT, WHEREAS THE APPLICANTS '
ARGUMENT WOULD LEAD TO THE CREATION OF A LEGISLATIVE
VACUUM IN REGARD TO THAT STATE EXTENDING OVER THE INTERIM PERIOD BETWEEN THE TIME WHEN THE DOCUMENTS CONCERNING ACCESSION WERE SIGNED AND THE TIME WHEN ACCESSION TOOK EFFECT .
THE INFORMATION AND CONSULTATION PROCEDURE
13 IT IS STATED IN THE FINAL ACT SIGNED IN ATHENS ON 28 MAY 1979 THAT ' ' THE PLENIPOTENTIARIES AND THE COUNCIL HAVE ALSO TAKEN NOTE OF THE ARRANGEMENT REGARDING THE PROCEDURE FOR ADOPTING CERTAIN DECISIONS AND OTHER MEASURES TO BE TAKEN DURING THE PERIOD PRECEDING ACCESSION WHICH HAS BEEN REACHED WITHIN THE CONFERENCE BETWEEN THE EUROPEAN COMMUNITIES AND THE HELLENIC REPUBLIC AND WHICH IS ANNEXED TO THIS FINAL ACT ' ' .
14 BY VIRTUE OF THE AGREEMENT ANNEXED TO THE FINAL ACT, ENTITLED ' ' INFORMATION AND CONSULTATION PROCEDURE FOR THE ADOPTION OF CERTAIN DECISIONS ' ', PROVISIONS WERE MADE IN ORDER TO ENSURE THAT THE GOVERNMENT OF GREECE WAS KEPT INFORMED OF ANY PROPOSAL OR COMMUNICATION FROM THE COMMISSION WHICH MIGHT LEAD TO DECISIONS BY THE COUNCIL OTHER THAN ADMINISTRATIVE DECISIONS .
15 EVEN IF IT IS ASSUMED THAT THAT OBLIGATION MAY BE TAKEN TO EXTEND TO THE DRAFT OF THE DECISIONS UNDER ARTICLE 58 OF THE ECSC TREATY, WHICH WERE TO BE ADOPTED BY THE COMMISSION ITSELF, SUBJECT TO THE ASSENT OF THE COUNCIL, THE EXPLANATIONS GIVEN BY THE COMMISSION SHOW IN ANY CASE THAT THE INFORMATION PROCEDURE WAS DULY FOLLOWED IN THE INTERIM PERIOD . THE APPLICANTS HAVE NOT ADDUCED ANY EVIDENCE TO SUGGEST THAT THE GREEK GOVERNMENT WAS NOT ABLE TO ASSERT ITS INTERESTS WITH REGARD TO THE DRAFT DECISIONS OF THE COMMISSION IN ACCORDANCE WITH THE PROVISIONS OF THE AGREEMENT ANNEXED TO THE FINAL ACT .
THE FINDING OF A STATE OF CRISIS
16 THE APPLICANTS '
ARGUMENT THAT THE FINDING OF A STATE OF CRISIS WAS NOT REPRESENTATIVE OF THE SITUATION IN THE COMMUNITY AFTER THE ACCESSION OF GREECE IGNORES THE FACT THAT THE EXISTENCE OF SUCH A CRISIS MUST BE ASCERTAINED IN THE LIGHT OF THE SITUATION IN THE COMMUNITY AS A WHOLE . THEREFORE THE INTRODUCTION OF MEASURES UNDER ARTICLE 58 MAY NOT BE RULED OUT EVEN IF UNDERTAKINGS IN SOME MEMBER STATES OR SOME REGIONS OF THE COMMUNITY ARE LESS
AFFECTED THAN OTHERS BY A WIDESPREAD STATE OF CRISIS . IN ANY CASE, IT HAS NOT BEEN PROVED THAT THE EFFECT OF GREECE ' S ENTRY INTO THE COMMUNITY WAS SUBSTANTIALLY TO ALTER THE GENERAL SITUATION OF THE MARKET FOR STEEL PRODUCTS IN THE COMMUNITY AS A WHOLE . THE ARGUMENT MUST THEREFORE BE REJECTED .
17 IT FOLLOWS FROM ALL THE FOREGOING CONSIDERATIONS THAT THE APPLICATION OF DECISIONS NO 2794/80 AND NO 3381/80 TO GREEK UNDERTAKINGS FROM 1 JANUARY 1981 CANNOT BE CONTESTED .
THE OBJECTIONS BASED ON ARTICLES 58, 74 AND 14 OF THE ECSC TREATY
18 UNDER THIS HEAD THE APPLICANTS PUT FORWARD A NUMBER OF ARGUMENTS WHEREBY THEY SUBMIT THAT THE COMMISSION HAS INFRINGED ARTICLES 58 AND 74 OF THE TREATY, THAT THE REASONS ON WHICH DECISION NO 2794/80 IS STATED TO BE BASED ARE INSUFFICIENT AND THAT GREEK UNDERTAKINGS HAVE BEEN DISCRIMINATED AGAINST . THEY DO NOT SPECIFY WHEREIN THE INFRINGEMENT OF ARTICLE 14 LIES, SO THAT THIS OBJECTION NEED NOT BE EXAMINED IN THE ABSENCE OF ANY CLARIFICATION .
THE RELATIONSHIP BETWEEN ARTICLES 58 AND 74
19 IN THE FIRST PLACE, THE APPLICANTS CONTEST THE VALIDITY OF DECISION NO 2794/80 ON THE GROUND THAT, CONTRARY TO THE PROVISIONS OF ARTICLE 58 ( 1 ) OF THE TREATY, THAT DECISION IMPOSED PRODUCTION QUOTAS ON UNDERTAKINGS WITHOUT ACCOMPANYING THE QUOTA SYSTEM WITH RESTRICTIONS ON IMPORTS OF STEEL PRODUCTS PURSUANT TO ARTICLE 74 OF THE TREATY .
20 ARTICLE 58 ( 1 ) STATES THAT IN THE EVENT OF A MANIFEST CRISIS AND IF THE MEANS OF ACTION PROVIDED FOR IN ARTICLE 57 PROVE TO BE INSUFFICIENT THE COMMISSION MUST ' ' ESTABLISH A SYSTEM OF PRODUCTION QUOTAS, ACCOMPANIED TO THE NECESSARY EXTENT BY THE MEASURES PROVIDED FOR IN ARTICLE 74 ' ' . IN SUCH A SITUATION ARTICLE 74 EMPOWERS THE COMMISSION TO MAKE RECOMMENDATIONS TO THE MEMBER STATES WITH A VIEW TO INTRODUCING APPROPRIATE RESTRICTIONS ON IMPORTS .
21 IT FOLLOWS FROM THE PROVISIONS CITED THAT IF PRODUCTION QUOTAS ARE IMPOSED THEY DO NOT NECESSARILY HAVE TO BE ACCOMPANIED BY IMPORT RESTRICTIONS . THE INTRODUCTION OF SUCH RESTRICTIONS DEPENDS ON THE COMMISSION ' S ASSESSMENT OF THE STATE OF THE STEEL MARKET AND OF THE NEED TO AFFORD THAT MARKET PROTECTION . THAT NEED DEPENDS IN TURN BOTH ON THE POSSIBILITY OF DISPOSING OF EXISTING PRODUCTION ON THE INTERNAL MARKET AND ON EXTERNAL TRADE . BUT IN THIS REGARD IT IS NECESSARY TO TAKE INTO ACCOUNT OBLIGATIONS ENTERED INTO BY THE COMMUNITY TOWARDS NON-MEMBER COUNTRIES AND THE REPERCUSSIONS WHICH THE INTRODUCTION OF IMPORT RESTRICTIONS MIGHT HAVE ON COMMUNITY EXPORTS IN GENERAL AND ON STEEL PRODUCTS IN PARTICULAR .
22 AS THE COURT HAS ALREADY STRESSED IN ITS JUDGMENT OF 18 MARCH 1980 IN JOINED CASE 154, 205, 206, 226 TO 228, 263 AND 264/78, 39, 31, 83 AND 85/79 SPA . FERRIERA VALSABBIA AND OTHERS ( 1980 ) ECR 907 AND IN ITS JUDGMENT OF 16 FEBRUARY 1982 IN CASE 258/80 RUMI ( 1982 ) ECR 487, THE TAKING INTO CONSIDERATION OF THOSE FACTORS REQUIRES THE ASSESSMENT OF A COMPLEX ECONOMIC SITUATION, WHICH MEANS THAT THE LINK ESTABLISHED BY ARTICLE 58 ( 1 ) BETWEEN THE INTRODUCTION OF PRODUCTION QUOTAS AND THE IMPOSITION OF RESTRICTIONS ON IMPORTS OF COMPETING PRODUCTS CANNOT BE IN ANY WAY AUTOMATIC . THE APPLICANTS HAVE NOT BEEN ABLE TO SPECIFY CIRCUMSTANCES WHICH MIGHT GIVE REASON TO BELIEVE THAT THE COMMISSION EXCEEDED THE DISCRETION WHICH ARTICLES 58 AND 74 OF THE TREATY ACCORD TO IT IN THIS MATTER .
THE ' ' EQUITABLE BASIS ' '
REFERRED TO IN ARTICLE 58 ( 2 )
23 IN THE SECOND PLACE, THE APPLICANTS CONTEND THAT THE PRODUCTION QUOTAS PROVIDED FOR BY DECISION NO 2794/80 WERE NOT ESTABLISHED ON AN ' ' EQUITABLE BASIS ' '
WITHIN THE MEANING OF ARTICLE 58 ( 2 ) OF THE TREATY . MORE PRECISELY, THEY BELIEVE THAT INSTEAD OF BEING ESTABLISHED WITH REFERENCE TO ACTUAL PRODUCTION THEY SHOULD HAVE BEEN FIXED ON THE BASIS OF THE PRODUCTION CAPACITY OF UNDERTAKINGS .
24 IN REPLY TO THAT ARGUMENT IT SHOULD BE POINTED OUT FIRST OF ALL THAT IT APPEARS FROM THE UNCONTESTED FIGURES PROVIDED BY THE COMMISSION THAT IN THE PERIOD UNDER CONSIDERATION THE APPLICANTS DID NOT EVEN MANAGE TO EXHAUST THE PRODUCTION QUOTAS ALLOCATED TO THEM, SO THAT THE QUESTION WHETHER THE QUOTAS WERE DETERMINED ON ONE BASIS RATHER THAN ANOTHER APPEARS TO BE IMMATERIAL IN THIS CASE .
25 MOREOVER, IT SHOULD BE OBSERVED THAT ARTICLE 58 ( 2 ) OF THE TREATY DOES NOT RESTRICT THE COMMISSION ' S FREEDOM TO CHOOSE THE BASIS UPON WHICH THE QUOTAS MAY BE EQUITABLY DETERMINED IN A GIVEN ECONOMIC SITUATION . IT FOLLOWS FROM THE EXPLANATIONS GIVEN DURING THESE PROCEEDINGS THAT THERE ARE NO REASONABLE GROUNDS FOR DENYING THAT THE COMMISSION ' S CHOICE OF THE CRITERION BASED ON UNDERTAKINGS '
ACTUAL PRODUCTION MAY CONSTITUTE AN ' ' EQUITABLE BASIS ' '
WITHIN THE MEANING OF ARTICLE 58 ( 2 ). INDEED THAT CRITERION, AS ADJUSTED BY ARTICLE 4 OF DECISION NO 2794/80, CONSTITUTES, IN THE FIRST PLACE AN OBJECTIVE BASIS OF ASSESSMENT WHICH AVOIDS THE UNCERTAINTIES INHERENT IN DETERMINING A FACTOR WHICH IS PARTLY CONJECTURAL, SUCH AS PRODUCTION CAPACITY ; SECONDLY, IT ENABLES TOTAL PRODUCTION TO BE REDUCED WITHOUT ALTERING THE POSITIONS OF THE UNDERTAKINGS ON THE MARKET AS BETWEEN EACH OTHER .
26 IT FOLLOWS FROM THE FOREGOING THAT THE COMPLAINTS OF AN INFRINGEMENT OF ARTICLES 58 AND 74 MUST BE REJECTED .
THE COMPLAINT OF DISCRIMINATION
27 THE APPLICANTS CONTEND FINALLY THAT THE APPLICATION OF DECISION NO 2794/80 LED TO DISCRIMINATION AGAINST GREEK UNDERTAKINGS BECAUSE THAT DECISION WAS BASED, FOR THE PURPOSE OF FIXING THE PRODUCTION QUOTAS, ON CRITERIA TO WHICH GREEK UNDERTAKINGS CANNOT BE SUBJECTED . IT IS ARGUED THAT THOSE CRITERIA RELATE TO A PERIOD IN WHICH THOSE UNDERTAKINGS WERE NOT YET SUBJECT TO THE RULES OF COMMUNITY LAW . MORE PRECISELY, THE APPLICANTS REFER IN THIS REGARD, FIRST, TO THE CRITERION ADOPTED BY ARTICLE 4 ( 3 ), CONCERNING THE AVERAGE RATE OF UTILIZATION OF PRODUCTION FACILITIES, SUBJECT TO THE CONDITION THAT THE UNDERTAKING ' ' UNDERTOOK TO COMPLY FROM JULY 1977 TO JUNE 1980 WITH THE DELIVERY PROGRAMMES ESTABLISHED BY THE COMMISSION ' ', AND, SECONDLY, TO THE INVESTMENT PROGRAMMES DULY REPORTED AND NOT THE SUBJECT OF AN UNFAVOURABLE OPINION OF THE COMMISSION WHICH ARE REFERRED TO IN ARTICLE 4 ( 4 ).
28 ON THIS POINT IT NEED ONLY BE OBSERVED THAT, UNDER THE SCHEME OF DECISION NO 2794/80, THE AIM OF BOTH THE PROVISIONS CITED - WHICH, MOREOVER, DID NOT APPARENTLY PLAY ANY PART IN DETERMINING THE APPLICANTS '
QUOTAS - IS TO HELP SOME UNDERTAKINGS BY RECTIFYING THE RESULTS OBTAINED BY TAKING INTO ACCOUNT THE REFERENCE PRODUCTION FIGURES DEFINED BY ARTICLE 4 ( 1 ) AND ( 2 ).
MORE PRECISELY, THE AIM OF THE PROVISIONS CITED BY THE APPLICANTS IS TO ADAPT THE REFERENCE PRODUCTION FIGURES OF SOME UNDERTAKINGS, HAVING REGARD TO THEIR PARTICIPATION DURING THE PERIOD UNDER CONSIDERATION IN VOLUNTARY REDUCTION PROGRAMMES AND TO THE RESTRICTIONS PLACED UPON THEM AS A RESULT OF THE CONTROL EXERCISED BY THE COMMISSION OVER NEW INVESTMENT . AS THOSE FACTORS COULD NOT HAVE AFFECTED GREEK UNDERTAKINGS PRECISELY BECAUSE THEY WERE NOT YET SUBJECT TO THE RULES OF THE COMMUNITY, THE MEASURES TAKEN TO ENABLE THE REFERENCE PRODUCTION OF UNDERTAKINGS BELONGING TO THE OLD COMMUNITY TO BE ASSESSED ON AN EQUITABLE BASIS CANNOT BE REGARDED AS DISCRIMINATION AGAINST THE GREEK UNDERTAKINGS .
29 THEREFORE THESE COMPLAINTS MUST ALSO BE REJECTED .
30 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICATIONS MUST BE DISMISSED .
Decision on costs
COSTS
31 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS .
32 AS THE APPLICANTS HAVE FAILED IN THEIR SUBMISSIONS THEY MUST BE ORDERED TO PAY THE COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATIONS ;
2 . ORDERS THE APPLICANTS TO PAY THE COSTS, INCLUDING THE COSTS INCURRED AS A RESULT OF THEIR APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES, LESS
THE COSTS WHICH OTHER PARTIES WERE ORDERED TO PAY BY ORDERS OF 16 SEPTEMBER AND 25 NOVEMBER 1981 .