Judgment of the Court of 12 July 1979. - Metallurgica Luciano Rumi SpA v Commission of the European Communities. - ECSC sales under list price. - Case 149/78.



European Court reports 1979 Page 02523

Greek special edition Page 00219

Spanish special edition Page 01227



Summary

Parties

Subject of the case

Grounds

Decision on costs

Operative part



Keywords

1 . ECSC - PRICES - PRICE LISTS - OBLIGATION TO PUBLISH - OBJECTIVE - SCOPE

( ECSC TREATY , ART . 60 ( 2 ) ( A ))

2 . ECSC - PRICES - PRICE LISTS - AMENDMENTS - OBLIGATION TO COMMUNICATE - SCOPE

( ECSC TREATY , ART . 60 ( 2 ) ( A ))

3 . COMMUNITY LAW - PRINCIPLES - FORCE MAJEURE - CONCEPT - DEFINITION - RULES

4 . ECSC - PRICES - LIST PRICES - ALIGNMENT - PERMISSIBLE - CONDITIONS

( ECSC TREATY , ART . 60 ( 2 ) ( B ))

5 . ECSC - PRICES - INFRINGEMENT OF THE RELEVANT PROVISIONS OF THE TREATY - FINES - FIXING - RULES

( ECSC TREATY , ART . 64 )

Summary

1 . THE PURPOSE OF PUBLICATION OF PRICE LISTS AND CONDITIONS OF SALE , FOR WHICH PROVISION IS MADE IN ARTICLE 60 ( 2 ) ( A ) OF THE ECSC TREATY , IS AS FAR AS POSSIBLE TO PREVENT PROHIBITED PRACTICES , TO ENABLE PURCHASERS TO LEARN EXACTLY WHAT PRICES WILL BE CHARGED AND BE ABLE THEMSELVES TO CHECK WHETHER ANY DISCRIMINATION HAS TAKEN PLACE AND TO ENABLE UNDERTAKINGS TO HAVE AN ACCURATE KNOWLEDGE OF THE PRICES OF THEIR COMPETITORS SO AS TO ENABLE THEM TO ALIGN THEIR PRICES . THAT PRINCIPLE OF COMPULSORY PUBLICATION IS OF A GENERAL NATURE AND IN NO WAY DEPENDS UPON THE SHORT-TERM ECONOMIC SITUATION .

2 . IT IS CLEAR FROM ARTICLE 60 ( 2 ) ( A ) OF THE ECSC TREATY THAT UNDERTAKINGS ARE OBLIGED TO NOTIFY THE COMMISSION OF ANY AMENDMENT TO THEIR PRICE LISTS , SUBJECT TO CIRCUMSTANCES OF FORCE MAJEURE .

3 . THE CONCEPT OF FORCE MAJEURE MUST BE DEFINED IN EACH CASE IN TERMS OF THE LEGAL FRAMEWORK WITHIN WHICH ITS APPLICATION IS INVOKED .

4 . IT IS CLEAR FROM ARTICLE 60 ( 2 ) ( B ) OF THE ECSC TREATY THAT ALIGNMENT CONSTITUTES AN EXCEPTION TO THE PRINCIPLE CONCERNING LIST PRICES AND THAT THE OFFER MADE TO THE CUSTOMER MUST BE ALIGNED ON A PRICE LIST BASED ON ANOTHER POINT WHICH SECURES THE BUYER MORE ADVANTAGEOUS TERMS . ALIGNMENT IS ACCORDINGLY PROHIBITED BETWEEN UNDERTAKINGS QUOTING ON THE BASIS OF THE SAME BASING POINTS . THAT PROHIBITION , WHICH HAS REGARD FOR THE GENERAL SYSTEM OF THE TREATY , IS INTENDED TO ENSURE COMPLIANCE WITH THE OBLIGATION TO MAKE PUBLIC PRICE LISTS AND CONDITIONS OF SALE AND TO MAINTAIN THE TRANSPARENCY OF THE MARKET .

5 . IN FIXING A FINE PURSUANT TO ARTICLE 64 OF THE ECSC TREATY THE COMMISSION AND THE COURT MUST TAKE ACCOUNT OF THE SERIOUSNESS OF THE INFRINGEMENT .

TO THAT END , IN THE CASE OF AN INFRINGEMENT OF THE OBLIGATION TO PUBLISH PRICE LISTS , ACCOUNT MUST BE TAKEN , WHERE APPROPRIATE , OF THE FACT THAT IN TIMES OF DISTURBANCE , ENTAILING RAPID CHANGES IN PRICES , THE PUBLICATION OF PRICE LISTS CANNOT SO EFFECTIVELY ENSURE THE TRANSPARENCY OF THE MARKET AS IN A PERIOD OF RELATIVE STABILITY , SO THAT THE DAMAGE CAUSED BY THE INFRINGEMENT APPEARS LESS SERIOUS THAN IF IT HAD TAKEN PLACE IN LESS UNSETTLED TIMES .

Parties

IN CASE 149/78

METALLURGICA LUCIANO RUMI , A LIMITED LIABILITY COMPANY , HAVING ITS REGISTERED OFFICE AT 2 VIA DEI CANIANA , BERGAMO , REPRESENTED BY CARLO RUMI , ITS CHAIRMAN AND MANAGING DIRECTOR , ASSISTED BY GIACOMO FUSTINONI , OF THE BERGAMO BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FERNAND FABER , 15 BOULEVARD ROOSEVELT ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ALBERTO PROZZILLO , ACTING AS AGENT , ASSISTED BY SERGIO FABRO , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

Subject of the case

APPLICATION FOR THE ANNULMENT OR IN THE ALTERNATIVE THE AMENDMENT OF THE INDIVIDUAL DECISION ADOPTED ON 30 MAY 1978 BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , HEREINAFTER REFERRED TO AS ' ' THE COMMISSION ' ' , IMPOSING A PECUNIARY SANCTION ON THE APPLICANT ON THE GROUND OF INFRINGEMENTS OF ARTICLE 60 OF THE ECSC TREATY AND OF THE DECISIONS ADOPTED IN IMPLEMENTATION THEREOF BY THE COMMISSION ,

Grounds

1 ON 22 JUNE 1978 METALLURGICA LUCIANO RUMI S.P.A ., HEREINAFTER REFERRED TO AS ' ' RUMI ' ' , LODGED AT THE COURT REGISTRY AN ACTION SUBJECT TO THE COURT ' S UNLIMITED JURISDICTION IN PURSUANCE OF ARTICLE 36 OF THE ECSC TREATY FOR THE ANNULMENT OR IN THE ALTERNATIVE THE AMENDMENT OF THE INDIVIDUAL DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES OF 30 MAY 1978 ORDERING IT TO PAY A FINE OF 65 135 UNITS OF ACCOUNT , CORRESPONDING TO A SUM OF LIT 68 840 000 FOR HAVING BREACHED ARTICLE 60 OF THE TREATY AND ITS IMPLEMENTING DECISIONS .

2 THAT DECISION IS BASED UPON THE FACT , WHICH IS NOT IN DISPUTE , THAT RUMI SOLD BETWEEN 15 APRIL 1977 AND 5 MAY 1977 ( THE DATE OF THE ENTRY INTO FORCE OF DECISION NO 962/77/ECSC OF 4 MAY 1977 ( OFFICIAL JOURNAL 1977 , L 114 , P . 1 ) FIXING MINIMUM PRICES FOR CERTAIN CONCRETE REINFORCEMENT BARS ) LARGE QUANTITIES OF REINFORCEMENT BARS IN FRANCE TO BE DELIVERED UNTIL THE SECOND QUARTER OF 1978 AT FIXED PRICES NOT IN ACCORDANCE WITH THE PRICES IN ITS PRICE LIST PUBLISHED ON 6 FEBRUARY 1976 WHICH WAS STILL IN FORCE THROUGHOUT THE PERIOD WHEN THOSE SALES TOOK PLACE .

3 ACCORDING TO THE DECISION THE IRREGULAR SALES AMOUNTED TO LIT 1 678 688 435.29 FOR A TOTAL OF 9 341.929 TONNES .

4 THE APPLICANT RELIES ON THREE SUBMISSIONS . BY THE PRINCIPAL OF THESE IT ENDEAVOURS TO SHOW THAT IT WAS NOT IN BREACH OF ITS OBLIGATION , PURSUANT TO ARTICLE 60 ( 2 ) ( A ) OF THE ECSC TREATY , TO MAKE PUBLIC ITS PRICE LISTS AND CONDITIONS OF SALE WITHIN THE COMMON MARKET BECAUSE , HAVING REGARD TO THE SITUATION ON THE MARKET IN REINFORCEMENT BARS , IT MAY CLAIM EXEMPTION IN VIEW OF THE EXISTENCE OF CIRCUMSTANCES OF FORCE MAJEURE . IT ALSO COMPLAINS THAT THERE HAS BEEN MISUSE OF POWERS BY THE COMMISSION .

5 THE APPLICANT CLAIMS THAT WHEN THE CONTESTED SALES WERE EFFECTED IT WAS CLEAR THAT ITS PRICE LIST , PUBLISHED ON 6 FEBRUARY 1976 , WAS NO LONGER IN ACCORDANCE WITH THE SITUATION ON THE MARKET AND COULD NO LONGER CONSTITUTE A POINT OF REFERENCE . MOREOVER , IT EXPLAINS THAT THE CRISIS IN THE SECTOR AND THE COMPETITION MADE IT IMPOSSIBLE TO MAINTAIN PRICES FOR MORE THAN TWO OR THREE SUCCESSIVE DAYS SO THAT IT FOUND ITSELF , OWING TO THE SWIFT DEVELOPMENTS ON THE MARKET , ' ' IN CIRCUMSTANCES OF FORCE MAJEURE ' ' WHICH PREVENTED IT FROM BRINGING ITS PRICE LIST UP TO DATE .

6 ACCORDING TO THE APPLICANT , SINCE THE COMMISSION FAILED TO TAKE ACCOUNT OF THAT SITUATION , IT HAS ADOPTED TOO RIGID AN INTERPRETATION OF THE TREATY , FROM WHICH IT HAS ITSELF DEPARTED ON SEVERAL OCCASIONS IN THE PAST , CONCEDING THE RIGHT TO MAKE QUOTATIONS AT LESS THAN LIST PRICES WITHIN THE LIMITS OF A GIVEN PERCENTAGE WITHOUT THE NEED TO MODIFY THE PRICE LIST ITSELF WHERE THERE ARE CIRCUMSTANCES OF AN EXCEPTIONAL NATURE , AND IT IS THAT SITUATION WHICH CONSTITUTES A CASE OF FORCE MAJEURE .

7 FURTHERMORE , FOR AN INFRINGEMENT WHICH RUMI DESCRIBES AS TRIFLING AND OF A PURELY FORMAL NATURE , CONSISTING SOLELY IN ITS FAILURE TO INFORM THE COMMISSION OF THE AMENDMENTS MADE TO ITS PRICE LIST , THE COMMISSION IMPOSED UPON IT A HEAVY FINE IN EXCESS OF THOSE IMPOSED AT THE SAME TIME ON OTHER UNDERTAKINGS WHICH WERE GUILTY OF INFRINGEMENTS OF A SUBSTANTIVE NATURE IN FAILING TO COMPLY WITH THE SYSTEM OF MINIMUM PRICES PRESCRIBED BY DECISION NO 962/77 . RUMI MAINTAINS THAT , CONSIDERED FROM THIS POINT OF VIEW , THE DECISION APPEARS TO BE VITIATED BY MISUSE OF POWERS .

8 IN VIEW OF THOSE OBJECTIONS IT IS NECESSARY TO RECALL THE FUNCTION OF THE PUBLICATION OF PRICES , WHICH CONSTITUTES ONE OF THE ESSENTIAL ELEMENTS , IN MATTERS OF COMPETITION BETWEEN UNDERTAKINGS AND OF TRANSPARENCY OF THE MARKET , OF THE ECSC TREATY .

9 IT DERIVES FROM ARTICLE 60 ( 2 ) ( A ) WHICH REQUIRES THE PRICE LISTS AND CONDITIONS OF SALE APPLIED BY UNDERTAKINGS WITHIN THE COMMON MARKET TO BE MADE PUBLIC .

10 THE PURPOSE OF THAT COMPULSORY PUBLICATION IS ( 1 ) AS FAR AS POSSIBLE TO PREVENT PROHIBITED PRACTICES ( 2 ) TO ENABLE PURCHASERS TO LEARN EXACTLY WHAT PRICES WILL BE CHARGED AND BE ABLE THEMSELVES TO CHECK WHETHER ANY DISCRIMINATION HAS TAKEN PLACE AND ( 3 ) TO ENABLE UNDERTAKINGS TO HAVE AN ACCURATE KNOWLEDGE OF THE PRICES OF THEIR COMPETITORS SO AS TO ENABLE THEM TO ALIGN THEIR PRICES .

11 THE OBJECTIVES OF PUBLICATION SHOW THAT FAILURE TO PUBLISH CONSTITUTES AN INFRINGEMENT OF SUBSTANTIVE LAW SINCE , IF PRICE LISTS ARE NOT MADE PUBLIC , THE MARKET CANNOT BE TRANSPARENT , WHICH IN TURN LEADS TO THE FOLLOWING CONSEQUENCES : VIOLATION OF THE PRINCIPLE OF NON-DISCRIMINATION AND THE INABILITY OF THE DEPARTMENTS OF THE COMMISSION TO SUPERVISE DEVELOPMENTS ON THE MARKET , PRICES AND COMPLIANCE WITH THE ARRANGEMENTS REGARDING COMPETITION .

12 RUMI COULD NOT HAVE BEEN UNAWARE OF THESE PRINCIPLES , WHICH THE HIGH AUTHORITY RECALLED IN ITS CIRCULARS OF 12 DECEMBER 1956 , 19 DECEMBER 1960 AND OF 20 DECEMBER 1962 AND WHICH HAVE BEEN UPHELD BY THE COURT ON A NUMBER OF OCCASIONS ( JUDGMENT OF 21 DECEMBER 1954 IN CASE 1/54 , GOVERNMENT OF THE FRENCH REPUBLIC V HIGH AUTHORITY ( 1954 ) ECR 9 ET SEQ .; JUDGMENT OF 12 JULY 1962 IN CASE 16/61 ACCIAIERIE FERRIERE E FONDERIE DI MODENA V HIGH AUTHORITY ( 1962 ) ECR 289 ).

13 LIKEWISE IT COULD NOT HAVE BEEN UNAWARE THAT ARTICLE 1 OF DECISION NO 2-54 OF THE HIGH AUTHORITY OF 7 JANUARY 1954 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1952-1958 , P . 15 ) WHICH AUTHORIZED MAXIMUM MEAN-PRICE VARIATIONS OF 2.5% IN THE FACE OF MINOR AND TEMPORARY FLUCTUATIONS IN THE MARKET WAS ANNULLED BY THE JUDGMENT OF 21 DECEMBER 1954 ( CASE 1/54 , GOVERNMENT OF THE FRENCH REPUBLIC V HIGH AUTHORITY , CITED ABOVE ).

14 THUS IT APPEARS THAT THE PRINCIPLE OF COMPULSORY PUBLICATION EMBODIED IN THE TREATY IS OF A GENERAL NATURE AND IN NO WAY DEPENDS UPON THE SHORT-TERM ECONOMIC SITUATION AND THAT THE APPLICANT WAS OBLIGED TO NOTIFY THE COMMISSION OF ANY AMENDMENT TO ITS PRICE LIST , SUBJECT TO CIRCUMSTANCES OF FORCE MAJEURE , WHICH CONCEPT MUST BE DEFINED IN TERMS OF THE LEGAL FRAMEWORK WITHIN WHICH ITS APPLICATION IS INVOKED AND WHICH , IN THE PRESENT CASE , INVOLVED THE VIRTUAL IMPOSSIBILITY OF INCLUDING IN A PRICE LIST CHANGES IN PRICES WHICH HAD OCCURRED .

15 IT WAS ESTABLISHED DURING THE ORAL PROCEDURE THAT THE OTHER UNDERTAKINGS HAD , AT MORE OR LESS REGULAR INTERVALS , PUBLISHED THEIR PRICE LISTS WITHOUT DIFFICULTY , WHICH SHOWS THAT A DILIGENT AND PRUDENT UNDERTAKING COULD COMPLY WITHOUT UNDUE SACRIFICE WITH THE OBLIGATION CONCERNING PUBLICATION , WHICH IS A BASIC PRINCIPLE OF THE SYSTEM ESTABLISHED BY THE ECSC TREATY .

16 FURTHERMORE , SHOULD FURTHER CONSIDERATION OF THIS ASPECT BE THOUGHT NECESSARY , IT MUST BE EMPHASIZED THAT THE APPLICANT , FAR FROM DEMONSTRATING THAT IT WAS IMPOSSIBLE FOR IT TO COMPLY WITH THE OBLIGATION TO PUBLISH ITS PRICE LISTS , HAS EVEN CONCEDED THAT IT COULD HAVE COMPLIED WITH THAT OBLIGATION BY POSTPONING CONCLUSION OF THE CONTRACT FOR TWO DAYS , HAD IT CONSIDERED THAT THAT WAS NECESSARY TO AVOID A BREACH OF COMMUNITY LAW .

17 WITH REGARD TO THE SECOND HEAD OF THAT PRINCIPAL SUBMISSION THE APPLICANT COMPLAINS THAT THE COMMISSION HAS EXTENDED THE CRITERIA SET OUT IN DECISION NO 962/77 TO A COMMERCIAL TRANSACTION PRIOR TO THE ENTRY INTO FORCE OF THAT DECISION , THEREBY MISUSING ITS POWERS .

18 HOWEVER , THE COMMISSION DID NOT REFER TO DECISION NO 962/77 EITHER DURING THE ADMINISTRATIVE PROCEDURE OR IN THE COURSE OF THE ACTION . THE FINE WAS IMPOSED FOR INFRINGEMENT OF ARTICLE 60 OF THE TREATY AND THE AMOUNT THEREOF IS WITHIN THE LIMITS LAID DOWN BY ARTICLE 64 OF THE ECSC TREATY .

19 IT MUST BE CONCLUDED FROM THE FOREGOING THAT THE PRINCIPAL SUBMISSION AS A WHOLE IS NOT WELL-FOUNDED .

20 IN A FURTHER SUBMISSION THE APPLICANT COMPLAINS THAT THE COMMISSION MANIFESTLY FAILED TO OBSERVE THE TREATY , IN PARTICULAR ARTICLE 60 ( 2 ) ( A ), AND FAILED TO PROVIDE A SUFFICIENT STATEMENT OF REASONS FOR ITS DECISION .

21 IT COMPLAINS THAT THE COMMISSION FAILED TO TAKE ACCOUNT OF THE EXCEPTIONAL NATURE OF THE TRANSACTION IN QUESTION , WHICH CONSTITUTES AN EXCEPTION TO THE PRINCIPLE OF PUBLICATION , BY FAILING TO TAKE INTO CONSIDERATION THE FOLLOWING TWO FACTS :

( A ) THAT IT MANUFACTURES A RIBBED REINFORCEMENT BAR HAVING A HIGH DEGREE OF ADHESION , DESIGNATED FE E 45 , WHICH DIFFERS FROM THE SMOOTH OR RIBBED REINFORCEMENT BARS USED IN THE OTHER MEMBER STATES ,

( B)THAT IT HAS ONLY ONE CUSTOMER FOR WHOM THE SAID PRODUCT IS SPECIALLY MANUFACTURED .

22 THOSE TWO FACTS , NAMELY PRODUCTION OF A SPECIAL TYPE OF BAR TO THE ORDER OF A SINGLE CUSTOMER , ARE , ACCORDING TO THE APPLICANT , OF FUNDAMENTAL LEGAL IMPORTANCE SINCE , IF THEY ARE TAKEN INTO CONSIDERATION , ' ' IT IS AUTOMATICALLY NECESSARY TO RULE OUT THE ARGUMENT THAT COMPARABLE TRANSACTIONS CAN EXIST IN RESPECT OF THAT SPECIAL PRODUCT , WHICH CONSEQUENTLY IS NOT COVERED BY THE OBLIGATION TO PUBLISH PRICES SINCE IT CANNOT FORM THE SUBJECT-MATTER OF COMPARABLE TRANSACTIONS ' ' .

23 THAT ARGUMENT IS BASED ON ARTICLE 2 OF DECISION NO 30-53 OF 2 MAY 1953 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1952-1958 , P . 9 ) ON PRACTICES PROHIBITED BY ARTICLE 60 ( 1 ) OF THE TREATY IN THE COMMON MARKET FOR COAL AND STEEL , WHICH WAS REPLACED BY ARTICLE 1 OF DECISION NO 72/440/ECSC OF 22 NOVEMBER 1972 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( 30-31 DECEMBER ), P . 19 ) WHICH PROVIDES THAT ' ' TRANSACTIONS SHALL BE CONSIDERED COMPARABLE WITHIN THE MEANING OF ARTICLE 60 ( 1 ) IF . . . THEY ARE CONCLUDED WITH PURCHASERS . . . WHO COMPETE WITH ONE ANOTHER ' ' .

24 THE APPLICANT CONCLUDES FROM THIS THAT THE PRODUCT FE E 45 CANNOT GIVE RISE TO A SITUATION OF COMPETITION WITH OTHER PURCHASERS WHO DO NOT EXIST , SINCE IT IS MANUFACTURED EXCLUSIVELY FOR A SINGLE CUSTOMER AND THAT ACCORDINGLY , ' ' WITH REGARD AT ANY EVENT TO THE ORDER G 20 RM OF 28 APRIL 1977 ' ' , THERE WAS NO BREACH OF THE OBLIGATION TO PUBLISH PRICES NOR , IN CONSEQUENCE , WAS THERE ANY UNDER-PRICING IN RELATION TO THE BINDING PRICE LIST , SINCE THERE WAS NO OBLIGATION TO PUBLISH .

25 THOSE ARGUMENTS FAIL TO TAKE ACCOUNT OF THE FACT THAT THE APPLICANT ENTERED THE PRODUCT FE E 45 IN ITS PRICE LIST AND CONDITIONS OF SALE WHICH WERE DULY COMMUNICATED TO THE COMMISSION AND ACCORDINGLY MADE PUBLIC WITHIN THE MEANING OF ARTICLE 60 ( 2 ) OF THE ECSC TREATY , WHILST THERE IS NO REQUIREMENT AS TO PUBLICITY IN RESPECT OF TRANSACTIONS WHICH ARE NOT COMPARABLE SINCE THEY CONSTITUTE CONTRACTS WHICH BY THEIR NATURE ARE EXCEPTIONAL AND THEREFORE DO NOT FALL WITHIN THE SCOPE OF THE PROVISIONS GOVERNING PUBLICATION .

26 THE PRESENCE OF THAT MATERIAL IN THE PRICE LIST THEREFORE INDICATED THAT IT WAS A PRODUCT OFFERED FOR SALE AND PLACED ON THE MARKET IN THE NORMAL WAY , WITH THE RESULT THAT RUMI WAS SUBJECT TO THE LEGAL OBLIGATION TO SELL IT AT THE PRICES STATED TO ANY PURCHASER WHO WISHED TO BUY IT .

27 THE FINE WAS IMPOSED PRECISELY BECAUSE THAT PRODUCT WAS SOLD AT A PRICE LOWER THAN THAT APPEARING ON THE PRICE LIST .

28 WITH REGARD TO THE OBJECTION THAT THERE WAS A FAILURE TO PROVIDE AN ADEQUATE STATEMENT OF REASONS THE APPLICANT MAINTAINS THAT , SINCE THE COMMISSION MADE NO MENTION IN THE PREAMBLE TO ITS DECISION OF THOSE FACTS OR OF THEIR LEGAL RELEVANCE , IT ' ' APPEARS ' ' THAT THAT DECISION IS VITIATED BY A LACK OF A STATEMENT OF REASONS .

29 THE OBJECTION OF A FAILURE TO STATE THE REASONS FOR THIS ASPECT OF THE DECISION IS LIKEWISE UNFOUNDED SINCE NO OBSERVATION CONCERNING ANOMALOUS TRANSACTIONS WAS SUBMITTED AT THE TIME OF THE INVESTIGATION OR DURING THE INITIAL INQUIRY ; THE ARGUMENTS CONCERNING SUCH TRANSACTIONS WERE PUT FORWARD BY THE APPLICANT ONLY IN THE COURSE OF THE WRITTEN PROCEDURE WHEREAS , IN VIEW OF THE VALIDITY OF THE COMMISSION ' S ATTITUDE CONCERNING THE SALES OF THE PRODUCT FE E 45 , IT COULD NOT HAVE FORESEEN THE OBJECTION WHICH WAS TO BE RAISED BY THE APPLICANT AND HAVE MET IT IN ADVANCE IN THE DECISION .

30 ACCORDINGLY , THE DECISION IS NOT IN BREACH OF ARTICLE 60 ( 2 ) ( A ) AND THE STATEMENT OF REASONS IS NOT DEFECTIVE WITH REGARD TO ITS APPLICATION OF THAT PROVISION .

31 FINALLY , THE APPLICANT ALLEGES IN A THIRD SUBMISSION THAT THE COMMISSION HAS MANIFESTLY FAILED TO OBSERVE ARTICLE 60 ( 2 ) ( B ) AND HAS MISUSED ITS POWERS .

32 THE APPLICANT REMARKS THAT , ACCORDING TO ARTICLE 60 ( 2 ) ( B ) OF THE ECSC TREATY , ALTHOUGH ANY INCREASE IS FORMALLY PROHIBITED , REDUCTIONS ARE PERMITTED PROVIDED THAT THEY DO NOT EXCEED ' ' THE EXTENT ENABLING THE QUOTATION TO BE ALIGNED ON THE PRICE LIST , BASED ON ANOTHER POINT WHICH SECURES THE BUYER THE MOST ADVANTAGEOUS DELIVERED TERMS ' ' . THE APPLICANT CLAIMS TO BE IN A POSITION TO ESTABLISH BY THE EVIDENCE OF WITNESSES THAT THE PRICES WHICH IT CHARGED IN THE TRANSACTIONS RECORDED BY THE COMMISSION ' S INSPECTOR ARE ALIGNED ON THE PRICES CHARGED BY OTHER PRODUCERS IN THE COMMUNITY ( FERALPI AND IRO ) IN COMPARABLE TRANSACTIONS AND CONCLUDES FROM THIS THAT IT WAS NOT IN BREACH OF ITS OBLIGATION TO REFRAIN FROM QUOTING PRICES LOWER THAN THOSE ON ITS LIST .

33 THESE ARGUMENTS MUST ACCORDINGLY BE CONSIDERED WITH REGARD TO ARTICLE 60 ( 2 ) ( B ) WHICH STATES THAT , FOR THE PURPOSES SET OUT IN PARAGRAPH ( 1 ) OF THAT ARTICLE , ' ' THE METHODS OF QUOTATION USED MUST NOT HAVE THE EFFECT THAT PRICES CHARGED BY AN UNDERTAKING IN THE COMMON MARKET , WHEN REDUCED TO THEIR EQUIVALENT AT THE POINT CHOSEN FOR ITS PRICE LISTS ' ' , RESULT IN REDUCTIONS BELOW THE PRICE SHOWN IN THE PRICE LIST IN QUESTION FOR A COMPARABLE TRANSACTION ' ' THE AMOUNT OF WHICH EXCEEDS . . . THE EXTENT ENABLING THE QUOTATION TO BE ALIGNED ON THE PRICE LIST , BASED ON ANOTHER POINT WHICH SECURES THE BUYER THE MOST ADVANTAGEOUS DELIVERY TERMS ' ' .

34 THAT PROVISION SHOWS THAT ALIGNMENT CONSTITUTES AN EXCEPTION TO THE PRINCIPLE CONCERNING LIST PRICES AND THAT THE OFFER MADE TO THE CUSTOMER MUST BE ALIGNED ON A PRICE LIST BASED ON ANOTHER POINT WHICH SECURES THE BUYER MORE ADVANTAGEOUS TERMS . ALIGNMENT IS ACCORDINGLY PROHIBITED BETWEEN UNDERTAKINGS QUOTING ON THE BASIS OF THE SAME BASING POINTS . THAT PROHIBITION , WHICH HAS REGARD FOR THE GENERAL SYSTEM OF THE TREATY , IS INTENDED TO ENSURE COMPLIANCE WITH THE OBLIGATION TO MAKE PUBLIC PRICE LISTS AND CONDITIONS OF SALE AND TO MAINTAIN THE TRANSPARENCY OF THE MARKET .

35 ACCORDINGLY RUMI , WHOSE BASING POINT IS MONTELLO , COULD NOT ALIGN ITSELF ON THE UNDERTAKINGS FERALPI AND IRO , WHOSE BASING POINTS ARE LONATO AND ODOLO RESPECTIVELY , WHICH ARE SITUATED IN THE SAME ZONE AND DO NOT ENTAIL MORE ADVANTAGEOUS DELIVERY TERMS FOR THE FRENCH CUSTOMER TO WHOM THE REINFORCEMENT BARS WERE SOLD .

36 IT IS CLEAR FROM THOSE CONSIDERATIONS THAT THE THIRD SUBMISSION MUST BE REJECTED , INCLUDING THAT ASPECT OF IT CLAIMING A MISUSE OF POWERS , IN SUPPORT OF WHICH NO ARGUMENT WAS ADDUCED .

37 IN THE EVENT OF THE ACTION FOR ANNULMENT BEING DISMISSED THE APPLICANT HAS , CLAIMED IN THE ALTERNATIVE THAT THE FINE , WHICH AMOUNTS TO 65 135 UNITS OF ACCOUNT , CORRESPONDING TO A SUM OF LIT 68 840 000 , IN RESPECT OF IRREGULAR SALES OF AN ESTIMATED VALUE OF LIT 1 678 688 435.29 , SHOULD BE REDUCED TO A NOMINAL SUM , CLAIMING THAT THE INFRINGEMENT RECORDED IS ' ' MILD IN CHARACTER AND PURELY FORMAL ' ' .

38 IN RELATION TO THE IMPOSITION OF THE FINE IN QUESTION THE COMMISSION STATES THAT IT APPLIED ARTICLE 64 OF THE ECSC TREATY WHICH AUTHORIZES IT TO IMPOSE ' ' UPON UNDERTAKINGS WHICH INFRINGE ( IN PARTICULAR , ARTICLE 60 ) . . . OR DECISIONS TAKEN THEREUNDER FINES NOT EXCEEDING TWICE THE VALUE OF THE SALES EFFECTED IN DISREGARD THEREOF ' ' AND THAT ACCORDINGLY ITS EXERCISE IN THE PRESENT CASE OF ITS DISCRETIONARY POWER DISPLAYED THE UTMOST RESTRAINT ' ' SINCE THE FINE IMPOSED IS EQUAL TO 15% OF THE AMOUNT WHEREBY THE LIST PRICES EXCEEDED THE PRICES CHARGED , THAT BEING THE PROPORTIONAL CRITERION CHOSEN , WHICH TAKES ACCOUNT OF THE NATURE AND GRAVITY OF THE INFRINGEMENT ' ' .

39 WHILST IT MUST BE HELD THAT THE INFRINGEMENTS OF WHICH THE APPLICANT WAS GUILTY ARE NOT PURELY FORMAL BUT AFFECT THE TRANSPARENCY OF THE MARKET ESTABLISHED UNDER THE GENERAL SYSTEM OF THE ECSC TREATY , WHICH EXCLUDES REDUCTION OF THE FINE TO A NOMINAL AMOUNT , REGARD MUST NEVERTHELESS BE HAD FOR THE SERIOUS DISTURBANCES ON THE MARKET IN REINFORCEMENT BARS AT THE TIME OF THE INFRINGEMENTS , WHICH AFFECTED IN PARTICULAR UNDERTAKINGS SUCH AS RUMI WHOSE ACTIVITY CONSISTS ALMOST EXCLUSIVELY IN THE PRODUCTION OF SUCH BARS . IT MUST BE RECOGNIZED THAT IN SUCH TIMES OF DISTURBANCE , ENTAILING RAPID CHANGES IN PRICES , THE PUBLICATION OF PRICE LISTS COULD NOT SO EFFECTIVELY ENSURE THE TRANSPARENCY OF THE MARKET AS IN A PERIOD OF RELATIVE STABILITY , SO THAT THE DAMAGE CAUSED BY RUMI ' S CONDUCT APPEARS LESS SERIOUS THAN IF IT HAD TAKEN PLACE IN LESS UNSETTLED TIMES .

40 THOSE CONSIDERATIONS LEAD THE COURT TO REDUCE THE FINE FROM 15% TO 10% OF THE AMOUNT WHEREBY THE LIST PRICES EXCEEDED THE PRICES CHARGED , THAT IS 43 423 UNITS OF ACCOUNT CORRESPONDING TO A SUM OF LIT 45 890 000 , SO THAT THE AMOUNT OF THE FINE IS PROPORTIONATE TO THE CONSEQUENCES OF THE INFRINGEMENTS COMMITTED .

Decision on costs

COSTS

41 SINCE THE APPLICANT HAS BEEN UNSUCCESSFUL IN ALL ITS SUBMISSIONS AS TO LAW IT MUST BE ORDERED TO PAY THE COSTS PURSUANT TO ARTICLE 69 OF THE RULES OF PROCEDURE .

Operative part

ON THOSE GROUNDS ,

THE COURT

HEREBY RULES :

1 . THE INDIVIDUAL DECISION OF THE COMMISSION OF THE EUROPEAN COMMUNITIES DATED 30 MAY 1978 , ORDERING METALLURGICA LUCANIO RUMI S.P.A . TO PAY A FINE IS AMENDED , THE AMOUNT OF THE FINE BEING REDUCED TO 43 423 UNITS OF ACCOUNT , CORRESPONDING TO A SUM OF LIT 45 890 000 .

2 . THE APPLICANT IS ORDERED TO PAY THE COSTS .