Judgment of the Court (Second Chamber) of 12 July 1984. - Acciaierie e Ferriere Busseni SpA v Commission of the European Communities. - ECSC - System of production quotas for ssteel - Fines for exceeding quotas. - Case 81/83.



European Court reports 1984 Page 02951



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . OBJECTION OF ILLEGALITY - ACTS WHOSE LEGALITY MAY BE CHALLENGED-INDIVIDUAL DECISION - COMMISSION ' S FAILURE TO ACT NOT CHALLENGED SUBSEQUENTLY BY AN ACTION BEFORE THE COURT - EXCLUSION

( ECSC TREATY , ART . 36 , THIRD PARAGRAPH )

2 . ECSC - PRODUCTION - STEEL PRODUCTION QUOTA SYSTEM - UNDERTAKING ' S PRODUCTION IN EXCESS OF ITS QUOTA - NECESSITY - PRINCIPLE NOT APPLICABLE

( ECSC TREATY , ART . 58 )

3 . ECSC - PRODUCTION - STEEL PRODUCTION QUOTA SYSTEM - UNDERTAKING ' S PRODUCTION IN EXCESS OF ITS QUOTA - FINE - SERIOUS ECONOMIC DIFFICULTIES IF QUOTA COMPLIED WITH - REDUCTION OF FINE - NOT POSSIBLE

( ECSC TREATY , ART . 58 )

Summary

1 . AN APPLICANT MAY NOT , IN THE COURSE OF AN ACTION FOR THE ANNULMENT OF AN INDIVIDUAL DECISION UNDER ARTICLE 33 OF THE ECSC TREATY , RELY ON THE SUBMISSION THAT ANOTHER INDIVIDUAL DECISION WHICH WAS ADDRESSED TO IT AND WHICH HAS BECOME FINAL IS UNALWFUL . SIMILARLY , AN APPLICANT MAY NOT , IN THE COURSE OF SUCH PROCEEDINGS , RELY ON THE FACT THAT THE COMMISSION HAS NOT COMPLIED WITH ITS DUTY TO ADOPT AN INDIVIDUAL DECISION IF IT HAS NOT BROUGHT AN ACTION BEFORE THE COURT CHALLENGING SUCH A REFUSAL TO ACT , AFTER HAVING RAISED THE MATTER WITH THE COMMISSION IN ACCORDANCE WITH ARTICLE 35 ON THE ECSC TREATY .

2 . THE ARGUMENT OF NECESSITY CANNOT BE ENTERTAINED IN RELATION TO THE QUOTA SYSTEM PROVIDED FOR BY ARTICLE 58 OF THE ECSC TREATY , WHICH IS BASED ON SOLIDARITY BETWEEN ALL COMMUNITY STEEL UNDERTAKINGS IN THE FACT OF THE MANIFEST CRISIS IN THE STEEL INDUSTRY AND WHICH SEEKS AN EQUITABLE DISTRI BUTION OF THE DETRIMENTAL EFFECTS OF UNAVOIDABLE ECONOMIC CIRCUMSTANCES .

3 . THE REQUEST THAT A FINE BE REDUCED CANNOT BE JUSTIFED ON THE GROUND THAT PAYMENT OF A FINE COULD LEAD TO SERIOUS FINANCIAL DIFFICULTIES FOR THE UNDERTAKING CONCERNED . THE SYSTEM OF PRODUCTION QUOTAS WOULD BE GRAVELY COMPROMISED IF EVERY UNDERTAKING WERE ABLE , BY PLEADING NECESSITY DUE TO SERIOUS ECONOMIC DIFFICULTIES , TO EXCUSE ITSELF FROM OBSERVANCE OF THE RESTRICTIONS AND TO EXCEED AT WILL THE PRODUCTION QUOTA ALLOCATED TO IT . THE CHAIN REACTION THEREBY RELEASED WOULD CULMINATE IN THE COLLAPSE OF THE SYSTEM , SO THAT ARTICLE 58 OF THE TREATY WOULD BECOME A DEAD LETTER .

Parties

IN CASE 81/83

ACCIAIERIE E FERRIERE BUSSENI SPA , AT PRESENT SUBJECT TO COURTCONTROLLED MANAGEMENT , AN UNDERTAKING HAVING ITS REGISTERED OFFICE AT NAVE ( BRESCIA , ITALY ), REPRESENTED BY ITS SOLE DIRECTOR , MAURIZIO BUSSENI , AND ADVISED BY FABRIZIO MASSONI , ADRIANO BARONE AND FERDINANDO PELIZZONI , AVVOCATI , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ANDRE ELVINGER , 15 COTE D ' EICH ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY SERGIO FABRO , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION REQUESTING THE COURT TO DECLARE VOID THE INDIVIDUAL DECISION OF 24 MARCH 1982 BY WHICH THE COMMISSION IMPOSED A FINE ON THE APPLICANT ,

Grounds

1 BY APPLICATION LODGED AT THE COURT REGISTRY ON 9 MAY 1983 ACCIAIERIE E FERRIERE BUSSENI SPA ( HEREINAFTER REFERRED TO AS ' ' THE APPLICANT ' ' ), AN UNDERTAKING HAVING ITS REGISTERED OFFICE AT NAVE ( ITALY ), BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 36 OF THE ECSC TREATY CHALLENGING THE INDIVIDUAL DECISION OF THE COMMISSION , DECISION NO C(83 ) 376/9 OF 24 MARCH 1983 , WHICH IMPOSED A FINE ON IT UNDER ARTICLE 58 OF THE ECSC TREATY AND UNDER ARTICLE 12 OF THE GENERAL DECISION OF THE 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 INTER ALIA BY DECISION NO 1832/81/ECSC OF 3 JULY 1981 ( OFFICIAL JOURNAL 1981 , L 184 , P . 1 ).

2 THE CONTESTED DECISION STATES THAT IN BREACH OF THE AFOREMENTIONED DECISION NO 1831/81 THE APPLICANT EXCEEDED BY 3 125 TONNES THE PRODUCTION QUOTA OF 12 975 TONNES ALLOCATED TO IT FOR THE THIRD QUARTER OF 1981 IN RESPECT OF PRODUCTS FALLING WITHIN CATEGORIES V AND VI , BY 6 079 TONNES THE PRODUCTION QUOTA OF 14 087 TONNES ALLOCATED TO IT FOR THE FOURTH QUARTER OF 1981 IN RESPECT OF PRODUCTS FALLING WITHIN CATEGORIES V AND VI AND BY 6 565 TONNES THE PART OF ITS QUOTA OF 12 914 TONNES WHICH COULD BE DELIVERED IN THE COMMON MARKET IN THE FOURTH QUARTER OF 1981 .

3 IN THE DECISION THE COMMISSION DECLARED THAT THE APPLICANT ' S PRODUCTION EXCEEDED BY MORE THAN 10% THE PRODUCTION QUOTAS AND THE PART OF THE QUOTA WHICH COULD BE DELIVERED IN THE COMMON MARKET AND THAT THE APPLICANT HAD ALREADY EXCEEDED ITS PRODUCTION QUOTA IN RESPECT OF PRODUCTS FALLING WITHIN CATEGORIES V AND VI DURING THE THIRD QUARTER OF 1981 , AND IT IMPOSED PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 12 OF THE AFOREMENTIONED DECISION NO 1831/81 A FINE WHICH WAS 10% ABOVE THE NORMAL RATE , THAT IS TO SAY A FINE OF ECU 82.5 FOR EACH TONNE IN EXCESS OF THE QUOTA IN RESPECT OF THE THIRD QUARTER OF 1981 AND A FINE WHICH WAS TWICE THAT AMOUNT ABOVE THE NORMAL RATE , THAT IS TO SAY A FINE OF ECU 90 FOR EACH TONNE IN EXCESS OF THE QUOTA IN RESPECT OF THE FOURTH QUARTER OF 1981 . THE TOTAL FINE THEREFORE AMOUNTED TO 958 084 ECU ( OR LIT 1 280 536 751 ) AND WAS TO BE PAID WITHIN TWO MONTHS OF NOTIFICATION OF THE CONTESTED DECISION .

4 THE QUOTAS WERE ALLOCATED TO THE APPLICANT BY INDIVIDUAL DECISIONS ADOPTED BY THE COMMISSION ON 6 AUGUST 1981 IN RESPECT OF THE THIRD QUARTER OF 1981 AND ON 26 OCTOBER 1981 IN RESPECT OF THE FOURTH QUARTER OF 1981 PURSUANT TO ARTICLE 58 OF THE ECSC TREATY AND THE AFOREMENTIONED DECISION NO 1831/81 AND WERE NOTIFIED TO IT , TOGETHER WITH ITS REFERENCE PRODUCTION FIGURES , BY LETTERS OF THE SAME DATES .

5 IT IS COMMON GROUND THAT THE APPLICANT DID NOT INSTITUTE PROCEEDINGS BEFORE THE COURT FOR A DECLARATION THAT THE SAID INDIVIDUAL DECISIONS WERE VOID WITHIN THE PERIOD LAID DOWN BY ARTICLE 33 OF THE ECSC TREATY .

6 BY THIS ACTION THE APPLICANT , WHILST NOT DISPUTING THAT IT HAS IN FACT EXCEEDED ITS QUOTAS AS THE COMMISSION ALLEGES , SEEKS PRIMARILY A DECLARATION THAT THE CONTESTED DECISION FIXING THE FINE IS VOID AND IN THE ALTERNATIVE A REDUCTION OF THE FINE , OR IN THE FURTHER ALTERNATIVE AN EXTENSION OF THE PERIOD WITHIN WHICH THE FINE MUST BE PAID . IN SUPPORT OF ITS APPLICATION THE APPLICANT PUTS FORWARD THREE SUBMISSIONS BASED ON EXCEPTIONAL DIFFICULTIES WITHIN THE MEANING OF ARTICLE 14 OF DECISION NO 1831/81 , INFRINGEMENT BY THE COMMISSION OF ARTICLE 4 OF DECISION NO 1794/80 , AND THE PRINCIPLE OF NECESSITY .

THE CLAIM THAT THE CONTESTED DECISION IMPOSING A FINE SHOULD BE DECLARED VOID

7 THE APPLICANT MAINTAINS IN ITS FIRST SUBMISSION THAT IT WAS IN FACT IMPOSSIBLE FOR IT TO COMPLY WITH THE QUOTAS ALLOCATED TO IT BECAUSE IT WAS EXPERIENCING EXCEPTIONAL ECONOMIC AND FINANCIAL DIFFICULTIES WHICH SHOULD HAVE LED THE COMMISSION TO ADJUST ITS REFERENCE PRODUCTION UNDER ARTICLE 14 OF DECISION NO 1831/81 , AS AMENDED BY ARTICLE 1 ( 8 ) OF DECISION NO 1832/81 .

8 IN SUPPORT OF THAT CONTENTION THE APPLICANT STATES THAT IT EXPERIENCED A PERIOD OF SEVERE DIFFICULTY MARKED IN 1977 BY SUBSTANTIAL DEBTS AMOUNTING TO APPROXIMATELY LIT 19 000 MILLION , BY A REDUCTION OF THE WORKFORCE FROM 269 TO 150 PERSONS AND BY LARGE-SCALE RECOURSE TO THE CASSA INTEGRAZIONE GUADAGNI ( INCOME SUPPLEMENT FUND ), WHICH RESULTED IN 1978 IN THE CONCLUSION OF AN OUT-OF-COURT SETTLEMENT AND FINALLY , IN 1982 , IN THE IMPOSITION OF A COURT-SUPERVISED MANAGEMENT PROCEDURE BY THE TRIBUNALE ( DISTRICT COURT ) OF BRESCIA . DURING THAT PERIOD IT CUT ITS STEEL PRODUCTION DRASTICALLY FROM 121 804 TONNES IN 1976 TO 74 446 TONNES IN 1981 ( INVOICED TONNAGE ).

9 THE APPLICANT MAINTAINS FURTHER , IN ITS SECOND SUBMISSION , THAT THE FINE INFRINGES ARTICLE 4 OF COMMISSION DECISION NO 2794/80 OF 31 OCTOBER 1980 ( OFFICIAL JOURNAL 1980 , L 291 , P . 1 ), WHICH IT ALLEGED WAS RE-STATED IN ARTICLE 6 OF DECISION NO 1832/81 , INASMUCH AS THE COMMISSION FAILED TO INCREASE ITS REFERENCE PRODUCTION FIGURES PURSUANT TO ARTICLE 4 ( 3 ) AND ( 5 ) EITHER ' ' TO A LEVEL WHICH CORRESPONDS TO A RATE OF UTILIZATION WHICH LIES 5 PERCENTAGE POINTS BELOW ( THE AVERAGE RATE OF UTILIZATION OF THE SAME FACILITIES OF THE OTHER UNDERTAKINGS OF THE COMMUNITY DURING THE YEARS 1977 , 1978 AND 1979 ) ' ' OR ' ' SO AS TO REACH THE TOTAL EQUIVALENT TO THE PRODUCTION OF THE CORRESPONDING QUARTER OF 1974 ' ' .

10 IN SUPPORT OF THAT SUBMISSION THE APPLICANT STATES THAT IN 1974 THE PRODUCTION IN RESPECT OF WHICH ECSC LEVIES WERE IMPOSED AMOUNTED TO APPROXIMATELY 180 000 TONNES , WHEREAS THE AVERAGE FOR THE THREE REFERENCE YEARS FROM 1977 TO 1979 WAS LESS THAN 120 000 TONNES . THE RATE OF UTILIZATION OF ITS FACILITIES WAS THUS BETWEEN 20% AND 25% AND THEREFORE BELOW THE GENERAL AVERAGE . IT ADDS THAT IN THE FINANCIAL YEAR ENDING IN 1979 IT REALIZED A DECLARED PROFIT OF LIT 414 460 000 IN RESPECT OF WHICH IT PAID LOCAL INCOME TAX TO THE PUBLIC AUTHORITIES EVEN THOUGH THE FINANCIAL STATEMENT SHOWED LIABILITIES OF LIT 11 837 406 .

11 THOSE TWO SUBMISSIONS OF THE APPLICANT RELATE IN FACT NOT TO THE LEGALITY OF THE CONTESTED DECISION IMPOSING A FINE ON IT BUT TO OTHER INDIVIDUAL DECISIONS ADOPTED BY THE COMMISSION ALLOCATING PRODUCTION QUOTAS TO THE APPLICANT AND TO THE COMMISSION ' S FAILURE TO ADOPT AN INDIVIDUAL DECISION ADJUSTING THE APPLICANT ' S PRODUCTION QUOTA OR INCREASING ITS REFERENCE PRODUCTION FIGURES .

12 IN THAT RESPECT IT MUST BE RECALLED THAT IT IS WELL-ESTABLISHED IN THE COURT ' S CASE-LAW THAT AN APPLICANT MAY NOT , IN THE COURSE OF AN ACTION FOR THE ANNULMENT OF AN INDIVIDUAL DECISION UNDER ARTICLE 33 OF THE ECSC TREATY , RELY ON THE SUBMISSION THAT ANOTHER INDIVIDUAL DECISION WHICH WAS ADDRESSED TO IT AND WHICH HAS BECOME FINAL IS UNLAWFUL .

13 SIMILARLY , AN APPLICANT MAY NOT , IN THE COURSE OF SUCH PROCEEDINGS , RELY ON THE FACT THAT THE COMMISSION HAS NOT COMPLIED WITH ITS DUTY TO ADOPT AN INDIVIDUAL DECISION IF IT HAS NOT BROUGHT AN ACTION BEFORE THE COURT CHALLENGING SUCH A REFUSAL TO ACT , AFTER HAVING RAISED THE MATTER WITH THE COMMISSION IN ACCORDANCE WITH ARTICLE 35 OF THE ECSC TREATY .

14 THE COMMISSION ' S INDIVIDUAL DECISIONS OF 6 AUGUST AND 26 OCTOBER 1981 ALLOCATING PRODUCTION QUOTAS TO THE APPLICANT HAVE BECOME FINAL SINCE THE APPLICANT FAILED TO BRING AN ACTION BEFORE THE COURT IN DUE TIME UNDER EITHER ARTICLE 33 OR ARTICLE 35 OF THE ECSC TREATY .

15 ALTHOUGH THE APPLICANT SENT VARIOUS COMMUNICATIONS TO THE COMMISSION EXPLAINING ITS ECONOMIC POSITION , AND EVEN IF THOSE COMMUNICATIONS COULD BE REGARDED AS REQUESTS PURSUANT TO ARTICLE 14 OF DECISION NO 1831/81 , ARTICLE 4 OF DECISION NO 2794/80 AND ARTICLES 35 ( 1 ) OF THE ECSC TREATY , THE COURT CONSIDERS THAT IT IS UNNECESSARY TO EXAMINE THEM FURTHER BECAUSE THE APPLICANT HAS , IN ANY EVENT FAILED TO BRING AN ACTION BEFORE THE COURT WITHIN THE PERIOD OF ONE MONTH LAID DOWN BY ARTICLE 35 ( 3 ) OF THE ECSC TREATY CHALLENGING THE COMMISSION ' S IMPLIED REFUSAL TO ACT .

16 IN THOSE CIRCUMSTANCES THE APPLICANT MAY NOT USEFULLY RELY IN THIS CASE ON THE ALLEGED ILLEGALITY OF THE INDIVIDUAL DECISIONS FIXING QUOTAS OR PARTS OF QUOTAS FOR THE THIRD AND FOURTH QUARTERS OF 1981 ; THE SUBMISSIONS MADE BY THE APPLICANT IN THAT RESPECT MUST THEREFORE BE REJECTED .

17 THE APPLICANT ' S THIRD SUBMISSION MAY BE UNDERSTOOD AS MEANING THAT IT WAS FORCED TO EXCEED THE QUOTAS ALLOCATED TO IT IN ORDER TO PRESERVE A MINIMUM LEVEL OF PRODUCTION BY THE UNDERTAKING SO AS TO PROTECT A VITAL LEGAL INTEREST , NAMELY ITS VERY EXISTENCE , AND THAT IT THEREFORE ACTED UNDER PRESSURE OF NECESSITY .

18 IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT THE ARGUMENT OF NECESSITY CANNOT BE ENTERTAINED IN RELATION TO THE QUOTA SYSTEM PROVIDED FOR BY ARTICLE 58 OF THE ECSC TREATY , WHICH IS BASED ON SOLIDARITY BETWEEN ALL COMMUNITY STEEL UNDERTAKINGS IN THE FACE OF THE MANIFEST CRISIS IN THE STEEL INDUSTRY AND WHICH SEEKS AN EQUITABLE DISTRIBUTION OF THE DETRIMENTAL EFFECTS OF UNAVOIDABLE ECONOMIC CIRCUMSTANCES ( CF . ESPECIALLY THE JUDGMENTS OF 16 . 11 . 1983 IN CASE 188/82 THYSSEN ( 1983 ) ECR 3721 , AND OF 14 . 12 . 1983 IN CASE 263/82 KLOCKNER ( 1983 ) ECR 4143 ).

19 SINCE THAT SUBMISSION , TOO , CANNOT BE UPHELD THE CLAIM THAT THE CONTESTED DECISION SHOULD BE DECLARED VOID MUST BE REJECTED .

THE CLAIM THAT THE FINE SHOULD BE REDUCED

20 IT IS CLEAR FROM THE FILE THAT THE THIRD SUBMISSION EXAMINED ABOVE RELATES NOT ONLY TO THE CLAIM THAT THE CONTESTED DECISION SHOULD BE DECLARED VOID BUT ALSO TO THE CLAIM THAT THE FINE SHOULD BE REDUCED .

21 THE COURT CONSIDERS , HOWEVER , THAT ALTHOUGH THE APPLICANT MAINTAINED THAT PAYMENT OF THE FINE IMPOSED ON IT WOULD CAUSE IT SUBSTANTIAL FINANCIAL DIFFICULTIES AND WOULD PREVENT IT FROM EMERGING FROM THE COURT-SUPERVISED MANAGEMENT PROCEDURE IN A FAVOURABLE POSITION , SUCH CIRCUMSTANCES DO NOT JUSTIFY A REDUCTION OF THE AMOUNT OF THE FINE .

22 AS THE COURT HAS CONSISTENTLY HELD ( CF . JUDGMENTS OF 11 . 5 . 1983 IN JOINED CASES 303 AND 312/81 , KLOCKNER ( 1983 ) ECR 1507 , 30 . 11 . 1983 IN CASE 235/82 , FERRIERE SAN CARLO ( 1983 ) ECR 3949 , AND 1 . 3 . 1984 IN CASE 10/83 , METALGOI ( 1984 ) ECR ( 1271 ), THE REQUEST THAT A FINE BE REDUCED CANNOT BE JUSTIFIED ON THE GROUND THAT PAYMENT OF A FINE COULD LEAD TO SERIOUS FINANCIAL DIFFICULTIES FOR THE UNDERTAKING CONCERNED . IN THAT RESPECT IT HAS HELD THAT THE SYSTEM OF PRODUCTION QUOTAS WOULD BE GRAVELY COMPROMISED IF EVERY UNDERTAKING WERE ABLE , BY PLEADING NECESSITY DUE TO SERIOUS ECONOMIC DIFFICULTIES , TO EXCUSE ITSELF FROM OBSERVANCE OF THE RESTRICTIONS AND TO EXCEED AT WILL THE PRODUCTION QUOTA ALLOCATED TO IT . THE CHAIN REACTION THEREBY RELEASED WOULD CULMINATE IN THE COLLAPSE OF THE SYSTEM , SO THAT ARTICLE 58 OF THE TREATY WOULD BECOME A DEAD LETTER .

23 MOREOVER , THE AFOREMENTIONED DECISIONS HAVE ESTABLISHED THAT ARTICLE 58 OF THE TREATY DOES NOT REQUIRE THE COMMISSION TO GUARANTEE FOR ANY UNDERTAKING , TO THE DETRIMENT OF OTHER COMMUNITY UNDERTAKINGS , WHATEVER MINIMUM LEVEL OF PRODUCTION THAT UNDERTAKING CONSIDERS NECESSARY ACCORDING TO ITS OWN CRITERIA OF PROFITABILITY AND DEVELOPMENT , OR TO ENSURE THE SURVIVAL OF THAT UNDERTAKING .

24 IT FOLLOWS FROM THE FOREGOING THAT THE CLAIM FOR A REDUCTION IN THE AMOUNT OF THE FINE MUST BE REJECTED .

THE CLAIM THAT THE COURT SHOULD EXTEND THE PERIOD FOR PAYMENT OF THE FINE BY ALL APPROPRIATE MEASURES

25 CLAIMS OF THIS SORT AMOUNTING TO A REQUEST THAT THE COURT ISSUE INSTRUCTIONS TO THE COMMISSION , WHICH ALONE HAS THE POWER TO GRANT TERMS OF PAYMENT TO UNDERTAKINGS WHICH HAVE BEEN FINED , ARE MANIFESTLY INADMISSIBLE .

Decision on costs

COSTS

26 ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT THE UNSUCCESSFUL PARTY IS TO BE ORDERED TO PAY THE COSTS IF THEY HAVE BEEN ASKED FOR . AS THE APPLICANT HAS FAILED IN ITS SUBMISSIONS , IT MUST BE ORDERED TO PAY THE COSTS .

Operative part

ON THOSE GROUNDS ,

THE COURT ( SECOND CHAMBER )

HEREBY :

1 . DISMISSES THE APPLICATION .

2 . ORDERS THE APPLICANT TO PAY THE COSTS .