4.

I now turn to the alternative claim for a reduction of the fine. Sideradria relies on two arguments in support of that claim. It maintains in the first place that, in preparing its defence against the charges initially brought by the Commission, Sideradria's management realized that it had made a mistake. In the reference year, 1979, part of the production which it believed had been exported to markets outside the Community had in fact been sold in Italy. The Commission was immediately informed of that mistake but took no account of it in imposing the fine. Yet Sideradria maintains that a mistake was undoubtedly made, as is clear from its own tax returns. The relevant documents, which were produced before the Court as illustrations, show that the production sold in 1979 was to a large extent subject to VAT, that is, a tax to which transactions carried out on markets outside the Community are not liable under Italian law. However, when requested by the Court to explain that mistake and to demonstrate that the deliveries in question were actually effected in Italy, Sideradria was unable either to justify its conduct or to furnish the necessary proof. Moreover, the Commission has successfully disputed, on the basis of the relevant Italian legislation, the applicant's contention that the documents submitted rule out the delivery of the goods, which were ostensibly manufactured in Italy, outside the Common Market. In those circumstances, I do not consider that the facts relied upon by the applicant are sufficient to justify a reduction of the fine. The applicant's second argument is of a different nature. At the hearing, Sideradria recalled that on 19 December 1984 the Commission again dealt it a severe blow (once again for failure to comply with its delivery quotas), by imposing on it a fine of 768404 ECU. In stating the reasons for its decision, whilst emphasizing that Sideradria had repeated an infringement and that the second infringement was more serious than the first, the Commission claims to have calculated the fine at the rate of 20 ECU for each tonne sold in excess in view of the applicant's extremely serious financial position. Sideradria argues that since the financial circumstances which induced the Commission to treat the second infringement more leniently already existed at the time of the first infringement (which was penalized by the imposition of a fine of 75 ECU per tonne, increased by 10%), it is difficult to understand why the fine imposed in respect of the first infringement was not calculated at the rate of 20 ECU per tonne or, since at the time the undertaking had ‘a clean record’, at an even lower rate. That argument, although it has a certain appeal, is in my view unfounded. To be penalized a second time in respect of a fresh infringement of the delivery quota certainly does not have the effect of mitigating the gravity of the conduct with which the applicant is charged. On the contrary, it is a factor which is entirely unrelated to the facts on which the contested decision is based and it is in the light of those facts alone that the Court may review the penalty. In any event, although in 1982 Sideradria had a clean record and was in financial straits, it is also true that in its decision the Commission took account of those factors (see the last indent of the first recital) and that the fine was increased only because the quota had been exceeded by a substantial amount. Does it follow from that conclusion that the alternative claim must also fail? Not necessarily. I would remind the Court that during the administrative procedure the Commission acknowledged that the delivery quota allocated had not proved sufficient, although it attributed this to the figures reported by Sideradria and to the fact that the applicant could not benefit from other provisions for adjustment. The first ground is incontestable (as, in more general terms, is the existence of contradictions in the applicant's attitude towards the supervisory body). The second ground is also valid, but it leaves the Court some scope for granting equitable relief. The Commission did not include in Decision 1831/81 a provision (such as that subsequently introduced by the measure adopted on 23 September 1981) enabling it, in fixing delivery quotas, to avert the serious problems created for iron and steel undertakings by the system of calculation hitherto applied. Moreover, if Sideradria's otherwise extremely careless management deserves any credit at all, it is for having always promptly notified the Commission of its difficulties and for providing the latter with all the relevant information. Hence it is well known that from 1977 to 1980 Sideradria's production was interrupted for long periods and, for that very reason, sales could not be the subject of rational planning. That is why the selection of 1979 as the reference year for the determination of quotas, whilst not corresponding to Sideradria's new commercial policy, was the only possible course of action or, better still, an enforced choice. There is no doubt that, on the basis of the figures available to the Commission and in the absence of any other information from Sideradria, the quota could not be adjusted. However, it appears that in penalizing the applicant for exceeding its quota, the Commission did not take proper account either of the situation which I mentioned earlier (Sideradria referred somewhat emphatically to ‘a quirk of fate’ though in so doing it relied on sound arguments) or of the fact that it had itself ruled out, at least at the outset, any possibility of adjusting the quotas allocated to undertakings in difficulty (see, in that regard, the Court's judgment of 14 February 1984 in Case 2/83 Alfirv Commission [1984] ECR 799). In the light of those circumstances, I believe that Sideradria's alternative claim should be upheld. However, those circumstances do not justify a reduction which expunges or obscures the gravity of the infringement committed by the applicant. I therefore consider that a fine of 80% of the amount imposed by the Commission is equitable.