Judgment of the Court (Second Chamber) of 13 December 1984. - Union sidérurgique du Nord et de l'Est de la France "Usinor" v Commission of the European Communities. - Steel market - Fine for exceeding quotas. - Case 78/83.



European Court reports 1984 Page 04177



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ECSC - PRODUCTION - SYSTEM OF STEEL PRODUCTION QUOTAS - QUOTAS EXCEEDED - FINE - IMPOSITION OF A SUPPLEMENTARY FINE FOR A REPETITION OF AN INFRINGEMENT - CONDITIONS

( ECSC TREATY , ART . 58 ; DECISION NO 1831/81/ECSC , ART . 12 )

2 . ECSC - PRODUCTION - SYSTEM OF STEEL PRODUCTION AND DELIVERY QUOTAS - PRODUCTION AND DELIVERY QUOTAS BOTH EXCEEDED - FINE - DETAILED RULES

( ECSC TREATY , ART . 58 ; DECISION NO 1831/81/ECSC , ART . 12 )

3 . ECSC - PRODUCTION - SYSTEM OF STEEL PRODUCTION QUOTAS - QUOTAS EXCEEDED - TECHNICAL FAULT - JUSTIFICATION - NONE

( ECSC TREATY , ART . 58 ; DECISION NO 1831/81/ECSC )

Summary

1 . IF THE COURT CONSIDERED THAT , IN A GIVEN QUARTER , AN UNDERTAKING COMMITTED ONLY A ' ' PURELY FORMAL ' ' INFRINGEMENT OF THE RULES ON STEEL PRODUCTION QUOTAS AND IT THEREFORE EXERCISED ITS UNLIMITED JURISDICTION AND CANCELLED THE FINE IMPOSED ON THE UNDERTAKING FOR EXCEEDING ITS QUOTA , IT FOLLOWS THAT , AS FAR AS THAT QUARTER IS CONCERNED , THE CIRCUMSTANCES IN WHICH THE QUOTA WAS EXCEEDED ARE NOT SUFFICIENT TO SUPPORT THE CHARGE THAT THERE WAS A REPETITION OF AN INFRINGEMENT FOR THE PURPOSES OF ARTICLE 12 OF DECISION NO 1831/81 IN THE FOLLOWING QUARTER .

2 . THE SYSTEM OF PENALIZING AN UNDERTAKING FOR EXCEEDING BOTH THE PRODUCTION QUOTA AND THE DELIVERY QUOTA AT THE SAME TIME , ESTABLISHED BY THE COMMISSION PURSUANT TO ARTICLE 12 OF DECISION NO 1831/81 , CONSISTS IN TAKING AS A BASIS FOR THE PENALTY THE LARGEST EXCESS , WHATEVER ITS NATURE , WHILST THE SMALLEST EXCESS IS PENALIZED BY THE IMPOSITION OF A SUPPLEMENTARY FINE OF 20% . IF AN UNDERTAKING EXCEEDS ITS QUOTA FOR DELIVERY ON THE COMMON MARKET TO A GREATER EXTENT THAN ITS AGGREGATE PRODUCTION QUOTA , THAT UNDERTAKING CLEARLY CONTRIBUTES TOWARDS THE CREATION OF AN IMBALANCE IN THE COMMON MARKET . IT CANNOT RELY ON THAT FACTOR TO ESCAPE THE IMPOSITION OF A MORE SEVERE PENALTY ON THE GROUND THAT IT EXCEEDED ITS AGGREGATE PRODUCTION QUOTA AT THE SAME TIME .

3 . AN UNDERTAKING CANNOT , IN ORDER TO NEUTRALIZE THE CONSEQUENCES OF A TECHNICAL BREAKDOWN IN RESPECT OF WHICH IT MUST ITSELF BEAR THE CONSEQUENCES , ATTEMPT TO MODIFY ON ITS OWN AUTHORITY THE OPERATION OF THE RULES EMBODIED IN DECISION NO 1831/81 . IF THE APPLICATION OF THOSE RULES PLACES THE UNDERTAKING AT A DISADVANTAGE , THE LATTER CANNOT BE REMEDIED BY FAILING TO COMPLY WITH THE RULES RELATING TO THE FIXING OF QUOTAS .

Parties

IN CASE 78/83

UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ' ' USINOR ' ' , A COMPANY WHOSE REGISTERED OFFICE IS AT PUTEAUX ( HAUTS-DE-SEINE , FRANCE ), REPRESENTED BY L . FUNCK-BRENTANO , OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MARLYSE NEUEN-KAUFFMAN , 21 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY FRANK BENYON , 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 FOR A DECLARATION THAT THE COMMISSION DECISION OF 24 MARCH 1983 IMPOSING A FINE OF 6 312 231 ECU ON THE APPLICANT FOR EXCEEDING ITS PRODUCTION QUOTAS AND THE PARTS OF THOSE QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET IN THE FOURTH QUARTER OF 1981 IS VOID IN PART ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 MAY 1983 , THE UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ' ' USINOR ' ' ( HEREINAFTER REFERRED TO AS ' ' USINOR ' ' ), A COMPANY WHOSE REGISTERED OFFICE IS AT PUTEAUX , HAUTS-DE-SEINE , FRANCE , BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY SEEKING - ACCORDING TO THE FINAL VERSION OF ITS CONCLUSIONS - TO HAVE DECLARED PARTIALLY VOID COMMISSION DECISION C(83 ) 376/5 OF 24 MARCH 1983 IMPOSING A FINE OF 6 312 231 ECU ON THE APPLICANT FOR EXCEEDING ITS PRODUCTION QUOTAS AND THE PARTS OF THOSE QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET IN THE FOURTH QUARTER OF 1981 .

2 ACCORDING TO THE DOCUMENTS BEFORE THE COURT , ON 10 NOVEMBER 1981 THE COMMISSION NOTIFIED USINOR OF A DECISION FIXING ITS QUOTAS FOR THE FOURTH QUARTER OF 1981 , PURSUANT TO COMMISSION DECISION NO 1831/81/ECSC OF 24 JUNE 1981 , ESTABLISHING FOR UNDERTAKINGS IN THE IRON AND STEEL INDUSTRY A MONITORING SYSTEM AND A NEW SYSTEM OF PRODUCTION QUOTAS IN RESPECT OF CERTAIN PRODUCTS ( OFFICIAL JOURNAL 1981 , L 180 P . 1 ), AS AMENDED BY DECISION NO 1832/81/ECSC OF 3 JULY 1981 INCLUDING CONCRETE REINFORCING BARS AND MERCHANT BARS IN THE NEW SYSTEM OF PRODUCTION QUOTAS ( OFFICIAL JOURNAL 1981 , L 184 , P . 1 ) AND BY DECISION NO 2804/81/ECSC OF 23 SEPTEMBER 1981 ( OFFICIAL JOURNAL 1981 , L 278 , P . 1 ). THE DECISION FIXING THE QUOTAS WAS NOT CONTESTED BY USINOR .

3 ON 18 AUGUST 1982 THE COMMISSION NOTIFIED USINOR THAT IT HAD ESTABLISHED THAT THE PRODUCTION QUOTA FOR THE QUARTER IN QUESTION HAD BEEN EXCEEDED AS REGARDS PRODUCTS IN CATEGORIES IB ( ROLLED SHEET ), ID ( OTHER COATED FLAT PRODUCTS ) AND V ( REINFORCING BARS ) AND THAT THE PARTS OF THE QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET HAD BEEN EXCEEDED AS REGARDS PRODUCTS IN CATEGORIES IB , IC ( GALVANIZED SHEET ), ID AND V . THE COMMISSION GAVE USINOR AN OPPORTUNITY TO EXPLAIN ITS POSITION , AND ON 24 MARCH 1984 , ADOPTED THE DECISION WHICH IS THE SUBJECT-MATTER OF THESE PROCEEDINGS .

4 IT IS CLEAR FROM THE DETAILED EXPLANATION OF THE FINE , WHICH WAS PRODUCED BY USINOR AND WAS NOT CONTESTED BY THE COMMISSION , THAT IT COMPRISES THREE ELEMENTS , NAMELY THE BASIC FINES IMPOSED WHERE THE QUOTAS ARE EXCEEDED IN THE VARIOUS CATEGORIES REFERRED TO ( A DISTINCTION BEING DRAWN BETWEEN THE PROPORTION OF THE FINE IMPOSED FOR EXCESS PRODUCTION AND THE PROPORTION IMPOSED FOR EXCESS DELIVERIES ), THE SUPPLEMENTARY FINES IMPOSED FOR REPETITION OF AN INFRINGEMENT AND , FINALLY , THE SUPPLEMENTARY FINES IMPOSED WHERE CERTAIN QUOTAS ARE EXCEEDED BY MORE THAN 10% .

5 BY APPLICATION LODGED AT THE COURT REGISTRY ON 10 JUNE 1983 , USINOR APPLIED UNDER THE SECOND PARAGRAPH OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE PRIMARILY FOR AN ORDER SUSPENDING THE OPERATION OF THE CONTESTED DECISION . THE APPLICATION WAS GRANTED , SUBJECT TO CERTAIN CONDITIONS BY ORDER OF THE PRESIDENT OF THE COURT OF 5 JULY 1983 .

6 ACCORDING TO THE FINAL VERSION OF USINOR ' S SUBMISSIONS , FOLLOWING THE ORAL PROCEDURE , THE APPLICANT CHALLENGED THE CONTESTED DECISION ON FIVE GROUNDS WHICH MAY BE SUMMARIZED AS FOLLOWS :

( A ) THE SUPPLEMENTARY PENALTY FOR REPETITION OF AN INFRINGEMENT HAS BECOME DEVOID OF PURPOSE IN THE LIGHT OF THE JUDGMENT OF 19 OCTOBER 1983 IN CASE 265/82 BETWEEN THE SAME PARTIES , IN WHICH THE COURT CANCELLED THE FINE IMPOSED ON USINOR FOR THE THIRD QUARTER OF 1981 .

( B)THE DOUBLE PENALTY FOR EXCESS PRODUCTION AND EXCESS DELIVERIES IS CONTRARY TO ARTICLE 12 OF DECISION NO 1831/81 .

( C)PART OF THE EXCESS OVER THE QUOTA FOR CATEGORY IB CONCERNS PRODUCTION WHICH THERE WAS NO OBLIGATION TO REPORT .

( D)THE EXCESS OVER THE QUOTA FOR CATEGORY ID WAS THE INEVITABLE CONSEQUENCE OF AN UNFORESEEABLE INCREASE IN DEMAND FOR A NEW PRODUCT .

( E)IN VIEW OF THE DISCRIMINATORY NATURE OF ARTICLE 14 OF DECISION NO 1831/81 , AS AMENDED BY DECISION NO 1832/81 , THERE SHOULD BE A REDUCTION OF THE FINE AS REGARDS PRODUCTS IN CATEGORY V .

SUPPLEMENTARY FINE FOR REPETITION OF AN INFRINGEMENT

7 BY DECISION OF 13 AUGUST 1982 THE COMMISSION IMPOSED A FINE ON USINOR FOR EXCEEDING THE PRODUCTION QUOTA ALLOCATED TO IT FOR THE THIRD QUARTER OF 1981 IN RESPECT OF CATEGORY IA . IN ITS DECISION OF 24 MARCH 1983 RELATING TO THE FOLLOWING QUARTER , WHICH IS THE SUBJECT-MATTER OF THESE PROCEEDINGS , THE COMMISSION IMPOSED ON THE BASIS OF THE AFORESAID DECISION A SUPPLEMENTARY FINE OF 10% ON USINOR FOR REPETITION OF AN INFRINGEMENT , IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 12 OF DECISION NO 1831/81 .

8 IN THESE PROCEEDINGS USINOR PUT FORWARD A NUMBER OF ARGUMENTS IN WHICH IT SOUGHT TO DEMONSTRATE THAT THE IMPOSITION OF THAT SUPPLEMENTARY FINE WAS UNLAWFUL . HOWEVER , THOSE ARGUMENTS HAVE CEASED TO BE RELEVANT SINCE THE COURT CANCELLED THE FINE IN QUESTION IN ITS AFORESAID JUDGMENT OF 19 OCTOBER 1983 . USINOR CONTENDED THAT , CONSEQUENTLY , THERE WAS NO LONGER ANY BASIS FOR THE IMPOSITION OF A SUPPLEMENTARY FINE FOR REPETITION OF AN INFRINGEMENT .

9 HOWEVER , IN REPLY TO A QUESTION PUT TO IT BY THE COURT IN THAT CONNECTION , THE COMMISSION REFUSED TO ACCEPT THAT ARGUMENT . THE COMMISSION DREW ATTENTION TO THE FACT THAT THE JUDGMENT OF 19 OCTOBER 1983 ESTABLISHED THAT THE QUOTA FOR THE THIRD QUARTER HAD INDEED BEEN EXCEEDED ; THE COURT MERELY CANCELLED THE FINE IN THE LIGHT OF THE CIRCUMSTANCES OF THE CASE .

10 THAT DEFENCE ON THE PART OF THE COMMISSION CANNOT BE ACCEPTED . IT IS CLEAR FROM THE JUDGMENT OF 19 OCTOBER 1983 THAT IN THE COURT ' S VIEW ONLY A ' ' PURELY FORMAL ' ' INFRINGEMENT WAS COMMITTED AS REGARDS THE THIRD QUARTER OF 1981 . THE COURT THEREFORE EXERCISED ITS UNLIMITED JURISDICTION AND CANCELLED THE FINE . IT FOLLOWS THAT , AS FAR AS THE THIRD QUARTER IS CONCERNED , THE CIRCUMSTANCES IN WHICH THE QUOTA WAS EXCEEDED ARE NOT SUFFICIENT TO SUPPORT THE CHARGE THAT THERE WAS A REPETITION OF AN INFRINGEMENT FOR THE PURPOSES OF ARTICLE 12 OF DECISION NO 1831/81 AS REGARDS THE FOURTH QUARTER

11 THE IMPOSITION OF A SUPPLEMENTARY FINE ON THE APPLICANT FOR REPETITION OF AN INFRINGEMENT WHICH , ACCORDING TO THE TABLE SUBMITTED BY IT , AMOUNTS TO 550 701 ECU , OR FF 3 698 123 , MUST THEREFORE BE DECLARED UNLAWFUL .

DOUBLE PENALTY

12 IN ITS APPLICATION , USINOR ADVANCED A SERIES OF ARGUMENTS IN WHICH IT SOUGHT TO DEMONSTRATE THAT THE IMPOSITION BY THE COMMISSION OF A SUPPLEMENTARY PENALTY ON AN UNDERTAKING WHICH EXCEEDED IN RESPECT OF THE SAME CATEGORY ITS PRODUCTION QUOTAS AT THE SAME TIME AS ITS QUOTAS FOR DELIVERY ON THE COMMON MARKET WAS TANTAMOUNT TO PENALIZING THE UNDERTAKING TWICE OVER IN RESPECT OF THE SAME QUANTITIES OF STEEL .

13 THE APPLICANT ' S ATTENTION WAS DRAWN TO THE FACT THAT WHILST THESE PROCEEDINGS WERE IN PROGRESS THE COURT WAS MOVED TO REJECT A SIMILAR ARGUMENT WHICH HAD BEEN PUT FORWARD IN A PARALLEL CASE , NAMELY CASE 270/82 ESTEL V COMMISSION ( 1984 ) ECR 1195 , DECIDED BY JUDGMENT OF 29 FEBRUARY 1984 . IN THAT JUDGMENT THE COURT HELD THAT AN UNDERTAKING WHICH FAILS TO FULFIL ITS OBLIGATIONS BY EXCEEDING BOTH ITS PRODUCTION QUOTAS AND ITS DELIVERY QUOTAS AT THE SAME TIME COMMITS TWO DISTINCT INFRINGEMENTS WHICH ENTAIL THE IMPOSITION OF TWO FINES TO BE CALCULATED SEPARATELY .

14 AFTER TAKING NOTE OF THAT PRECEDENT , THE APPLICANT , WITHOUT CONTESTING THE JUDGMENT , INFORMED THE COURT THAT IT NONE THE LESS INTENDED TO MAINTAIN THIS SUBMISSION FOR TWO REASONS .

15 FIRST , IT WAS NECESSARY TO DISTINGUISH A SITUATION IN WHICH EXCESS PRODUCTION WAS GREATER THAN EXCESS DELIVERIES ON THE COMMON MARKET ( WHICH AROSE IN THE ESTEL CASE ) FROM THE CONVERSE SITUATION ( WHICH AROSE IN THIS CASE WHERE EXCESS DELIVERIES WERE GREATER THAN EXCESS PRODUCTION ). IN THE ESTEL CASE , THE COURT ACKNOWLEDGED THAT WHILST DELIVERY QUOTAS WERE INTENDED TO ENSURE A BALANCE ON THE DOMESTIC MARKET , THE PURPOSE OF PRODUCTION QUOTAS WAS ESSENTIALLY TO PREVENT SURPLUS PRODUCTION WHICH COULD BE DISPOSED OF ONLY BY WAY OF EXPORT . IN THIS CASE , THE EXCESS OVER THE DELIVERY QUOTAS WAS GREATER THAN THE EXCESS OVER THE PRODUCTION QUOTAS , WHICH DEMONSTRATES THAT THERE WAS NO EXCESS AS REGARDS DELIVERIES TO NON-MEMBER COUNTRIES .

16 SECONDLY , THE APPLICANT RELIES ON THE PRINCIPLE OF THE PROTECTION OF LEGITIMATE EXPECTATION ON THE GROUND THAT THE COMMISSION GAVE EUROFER ( EUROPEAN CONFEDERATION OF IRON AND STEEL INDUSTRIES ) CERTAIN ASSURANCES , WHICH WERE PASSED ON BY EUROFER TO ITS MEMBERS , TO THE EFFECT THAT THE COMMISSION INTENDED TO ABANDON THE SYSTEM OF DOUBLE PENALTIES .

17 THE APPLICANT ' S FIRST ARGUMENT DISREGARDS THE SCOPE OF THE SYSTEM OF PENALTIES ESTABLISHED BY THE COMMISSION PURSUANT TO ARTICLE 12 OF DECISION NO 1831/81 WHEREBY THE LARGEST EXCESS , WHATEVER ITS NATURE , IS TAKEN AS A BASIS FOR THE PENALTY , WHILST THE SMALLEST EXCESS IS PENALIZED BY THE IMPOSITION OF A SUPPLEMENTARY FINE OF 20% . IF AN UNDERTAKING SUCH AS THE APPLICANT EXCEEDS ITS QUOTA FOR DELIVERY ON THE COMMON MARKET TO A GREATER EXTENT THAN ITS AGGREGATE PRODUCTION QUOTA , THAT UNDERTAKING CLEARLY CONTRIBUTES TOWARDS THE CREATION OF AN IMBALANCE IN THE COMMON MARKET . IT CANNOT RELY ON THAT FACTOR TO ESCAPE THE IMPOSITION OF A MORE SEVERE PENALTY ON THE GROUND THAT IT EXCEEDED ITS AGGREGATE PRODUCTION QUOTA AT THE SAME TIME . SCRUTINY OF THE FIGURES SHOWS THAT IT IS PRECISELY BY MEANS OF ITS EXCESS PRODUCTION THAT USINOR HAS LARGELY SUCCEEDED IN MAINTAINING ITS EXPORTS TO NON-MEMBER COUNTRIES , IN SPITE OF THE FACT THAT IT SERIOUSLY EXCEEDED ITS QUOTAS FOR DELIVERY ON THE COMMON MARKET .

18 AS REGARDS THE ASSURANCES WHICH USINOR CLAIMS TO HAVE RECEIVED FROM THE COMMISSION THROUGH EUROFER , IT IS CLEAR FROM THE DOCUMENTS SUBMITTED TO THE COURT THAT ON A SPECIFIC OCCASION THE QUESTION OF THE IMPOSITION OF DOUBLE PENALTIES WAS ACTUALLY DISCUSSED DURING AN EXCHANGE OF VIEWS BETWEEN EUROFER AND THE OFFICERS OF THE COMMISSION . HOWEVER , IT IS APPARENT FROM THE SAME DOCUMENTS THAT AT NO TIME DID THE COMMISSION GIVE THE SLIGHTEST ASSURANCE CONCERNING THE APPLICATION OF THE SYSTEM OF PENALTIES ATTACHING TO THE QUOTA SYSTEM . IN ANY EVENT , AS THE COURT HAS REPEATEDLY EMPHASIZED , THE COMMISSION OR ITS OFFICERS CANNOT MODIFY THAT SYSTEM OR MITIGATE ITS HARSHNESS BY MEANS OF UNOFFICIAL STATEMENTS ( SEE IN PARTICULAR THE JUDGMENT OF 11 . 5 . 1983 IN JOINED CASES 303 AND 312/81 KLOCKNER ( 1983 ) ECR 1507 , PARAGRAPH 34 OF THE DECISION ).

19 THIS SUBMISSION MUST THEREFORE BE REJECTED .

EXCESS OVER THE QUOTAS IN RESPECT OF CATEGORY IB

20 THE APPLICANT CONTENDED THAT PART OF THE EXCESS OVER THE QUOTA FOR THAT CATEGORY , NAMELY A QUANTITY OF 4 034 TONNES , WAS ATTRIBUTABLE TO THE CONSEQUENCES OF A TECHNICAL FAULT WHICH OCCURRED IN ITS GALVANIZING ESTABLISHMENTS . THE APPLICANT CLAIMED THAT IN ORDER TO SATISFY ITS CUSTOMERS IT WAS OBLIGED TO SUB-CONTRACT SHEET IN CATEGORY IB TO GALVANIZING UNDERTAKINGS AND TO ASSIGN PRODUCTION QUOTAS IN RESPECT OF CATEGORY IC TO THEM . UNDER THE SYSTEM ESTABLISHED BY DECISION NO 1831/81 , AS SET OUT IN DETAIL IN QUESTIONNAIRE NO 313 WHICH IS ANNEXED THERETO , SHEET WHICH IS GALVANIZED IN THE SAME UNDERTAKING AND WHICH FALLS WITHIN CATEGORY IC MAY BE DEDUCTED FROM THE QUOTA ALLOCATED IN RESPECT OF CATEGORY IB . THE APPLICANT THEREFORE CONSIDERED ITSELF ENTITLED TO DEDUCT THE TONNAGE IN QUESTION FROM THAT CATEGORY SINCE THE GALVANIZATION WAS CARRIED OUT IN THE ABOVE-MENTIONED CIRCUMSTANCES BY THIRD PARTIES ACTING ON ITS BEHALF .

21 IN THAT REGARD , THE COMMISSION CONTENDED IN PARTICULAR THAT THE UNDERTAKING COULD HAVE RESOLVED THAT PROBLEM EITHER BY PURCHASING OR BY EXCHANGING QUOTAS IN DUE TIME OR BY REQUESTING PERMISSION TO CARRY OVER UNUSED QUOTAS TO THE FOLLOWING QUARTER .

22 THE COMMISSION ' S VIEW MUST BE ENDORSED . THE APPLICANT CANNOT , IN ORDER TO NEUTRALIZE THE CONSEQUENCES OF A TECHNICAL BREAKDOWN , ATTEMPT TO MODIFY ON ITS OWN AUTHORITY THE OPERATION OF THE RULES EMBODIED IN DECISION NO 1831/81 . ACCORDING TO THE EXPRESS AND CONSISTENT PROVISIONS OF ARTICLE 1 OF THE DECISION UNDER THE THIRD INDENT OF ' ' CATEGORY IB ' ' , OF ANNEX I UNDER NO 1 OF ' ' CATEGORY IC ' ' AND OF QUESTIONNAIRE NO 313 IN ANNEX II UNDER CODE NO 12203 , ONLY THE TONNAGES PROCESSED BY THE SAME UNDERTAKING MAY BE DEDUCTED FROM CATEGORY IB . IF IT PROVES IMPOSSIBLE , FOR WHATEVER REASON , TO CARRY OUT THE CONVERSION PROCESS IN THE SAME UNDERTAKING AND SHEET IS SUB-CONTRACTED TO THIRD PARTIES , IT FALLS WITHIN CATEGORY IB AND NOT WITHIN CATEGORY IC . IF THE APPLICATION OF THOSE RULES PLACES THE UNDERTAKING AT A DISADVANTAGE , THAT EFFECT IS ATTRIBUTABLE TO EVENTS IN RESPECT OF WHICH THE UNDERTAKING ITSELF MUST BEAR THE CONSEQUENCES . THE DISADVANTAGE CANNOT BE REMEDIED BY FAILING TO COMPLY WITH THE RULES RELATING TO THE FIXING OF QUOTAS .

23 THEREFORE THIS SUBMISSION MUST ALSO BE REJECTED .

EXCESS OVER THE QUOTAS IN RESPECT OF CATEGORY ID

24 THE APPLICANT CONTENDED THAT THE EXCESS OVER THE QUOTAS FOR THIS CATEGORY CONSISTED LARGELY OF MONOGAL , AN ENTIRELY NEW PRODUCT . THE SPEED AND EXTENT OF THE DEVELOPMENT OF THAT PRODUCT PREVENTED IT FROM BEING TAKEN INTO ACCOUNT WHEN THE REFERENCE QUANTITIES WERE FIXED AND RENDERED THE EXCESS INEVITABLE INASMUCH AS , ON A MARKET IN RECESSION , THE APPLICANT WOULD HAVE BEEN SERIOUSLY AT FAULT HAD IT FAILED TO SATISFY DEMAND FOR THE PRODUCT .

25 THE COMMISSION POINTED OUT THAT SINCE THE APPLICANT DID NOT CONTEST THE AMOUNT OF THE PARTS OF THE QUOTA ALLOCATED TO IT FOR THE PRODUCT IN QUESTION IT COULD NO LONGER DO SO IN THESE PROCEEDINGS .

26 IT IS SUFFICIENT TO STATE , IN REPLY TO THE ARGUMENTS PUT FORWARD BY THE APPLICANT , THAT THE VIEW THAT A DESIRE TO SATISFY DEMAND CAN RELIEVE UNDERTAKINGS OF THE DUTY TO COMPLY WITH THE SYSTEM OF RULES LAID DOWN BY THE PROVISIONS RELATING TO THE ESTABLISHMENT OF PRODUCTION QUOTAS IS UNACCEPTABLE IN ANY CIRCUMSTANCES . IN THAT CONNECTION , IT IS APPROPRIATE TO REFER TO THE CONSIDERATIONS SET OUT IN THE JUDGMENT OF THIS COURT OF 11 OCTOBER 1984 IN CASE 103/83 BETWEEN THE SAME PARTIES , IN WHICH THE SAME QUESTION WAS RAISED .

27 THEREFORE THIS SUBMISSION MUST ALSO BE REJECTED .

EXCESS OVER THE QUOTAS IN RESPECT OF CATEGORY V

28 THE APPLICANT CONTENDED THAT THE EXCESS OVER THE QUOTAS FOR CATEGORY V WAS ATTRIBUTABLE TO THE OPERATIONS OF A SMALL FACTORY MANUFACTURING A SINGLE PRODUCT WHICH , HAD IT NOT BEEN LEGALLY INCORPORATED IN THE USINOR GROUP , COULD HAVE BENEFITED FROM THE ADJUSTMENT PROVIDED FOR BY ARTICLE 14 OF DECISION NO 1831/81 . IT CONSIDERED THAT ARTICLE 14 , AS AMENDED BY DECISION NO 1832/81 , DISCRIMINATED AGAINST SOME UNDERTAKINGS BY REDUCING THEIR POSSIBILITIES OF APPLYING FOR AN ADJUSTMENT OF THEIR REFERENCE PRODUCTION .

29 THE COMMISSION CONTENDED THAT THE OBJECTION OF ILLEGALITY RAISED BY THE APPLICANT AGAINST ARTICLE 14 OF DECISION NO 1831/81 WAS INADMISSIBLE SINCE THE CONTESTED DECISION WAS NOT BASED ON ANY ASPECT OF THAT PROVISION BUT WAS FOUNDED ON ARTICLE 12 , RELATING TO PENALTIES .

30 IN THAT REGARD , IT IS SUFFICIENT TO POINT OUT THAT THIS SUBMISSION , WHATEVER ITS MERITS MAY BE , IS DIRECTED AGAINST THE DECISION FIXING THE QUOTAS AND THE APPLICANT THEREFORE HAS NO LOCUS STANDI TO CONTEST , IN PROCEEDINGS CHALLENGING THE IMPOSITION OF FINES FOR EXCEEDING THE QUOTA ALLOCATED TO IT , A DECISION WHICH IT DID NOT CONTEST WITHIN THE PRESCRIBED PERIOD . AS REGARDS THE SUBSTANCE OF THE PROBLEM , IT IS APPROPRIATE TO REFER ONCE AGAIN TO THE AFOREMENTIONED JUDGMENT OF 11 OCTOBER 1984 .

31 THEREFORE THIS SUBMISSION MUST ALSO BE REJECTED .

32 IT IS CLEAR FROM THE FOREGOING CONSIDERATIONS THAT THE FINE MUST BE REDUCED BY THE DEDUCTION OF THE SUPPLEMENTARY FINE IMPOSED ON THE APPLICANT FOR REPETITION OF AN INFRINGEMENT AND THAT ALL THE OTHER HEADS OF CLAIM MUST BE REJECTED .

Decision on costs

COSTS

33 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 .

34 SINCE THE APPLICANT HAS BEEN SUCCESSFUL ON ONE HEAD , THE PARTIES MUST BE ORDERED TO BEAR THEIR OWN COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . REDUCES THE FINE IMPOSED ON UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ' ' USINOR ' ' BY COMMISSION DECISION C(83 ) 376/5 OF 24 MARCH 1983 TO 5 761 530 ( FIVE MILLION SEVEN HUNDRED AND SIXTY-ONE THOUSAND , FIVE HUNDRED AND THIRTY ) ECU , THAT IS TO SAY FF 38 690 402 ( THIRTY-EIGHT MILLION SIX HUNDRED AND NINETY THOUSAND , FOUR HUNDRED AND TWO );

2.ORDERS THE PARTIES TO BEAR THEIR OWN COSTS , INCLUDING THOSE RELATING TO THE PROCEEDINGS CONCERNING THE APPLICATION FOR INTERIM MEASURES .