(a)

The central feature of this case is the claim for the annulment of the decision of 20 February 1985 in so far as it refuses to increase the applicant's reference production in respect of Category Ic and Id products. This claim is based, inter alia, on the argument that Decision No 234/84 (like its predecessor) wrongly contained no provision such as Article 15 of Decision No 1696/82 enabling adjustments to be made to the reference production of undertakings whose plans to install a new production plant had not evoked a negative opinion from the Commission and which had already begun to implement the corresponding investment programme whilst Decision No 1696/82 was in force. The defendant takes the view that the applicant should have objected to that omission as soon as it became apparent in Decision No 2177/83; having failed to do so in due time, the applicant cannot raise the matter in 1985 in connection with the review of a perfectly normal decision on the allocation of quotas. Moreover, in the defendant's view, the application is in any event clearly inadmissible since the applicant failed to pursue the matter in due time by bringing an action under Article 35 of the ECSC Treaty after its request of 27 April 1984 had failed to evoke a favourable response within the prescribed period. The applicant contests that argument, in the first place, by reference to the limited right of action against general decisions which is conferred on undertakings by the second paragraph of Article 33 of the ECSC Treaty. Secondly, the applicant disputes the contention that its request of 27 April 1984 caused time to start to run for the purposes of Article 35 of the ECSC Treaty, on the ground that it did not constitute a formal demand that action be taken. Moreover, it contends that on 20 June 1984 the Commission undertook to examine its request. Since past experience has shown that such investigations last some considerable time (as is clear for instance from the decision given on 27 January 1986 in response to an application based on Article 10 (3) of Decision No 234/84), it cannot be assumed in the applicant's view that after two months of silence a decision had been taken to refuse its request. Rather, an (implied) rejection of that kind could be inferred only from the decision of 20 February 1985 (since it left the applicant's reference production unchanged as compared with 1984). The applicant maintains that it subsequently brought an action challenging that decision in due time, and indeed brought a further action (Case 119/85) when on 29 March 1985 its request was expressly rejected by the Commission. (aa) On this issue, I was initially inclined to accept the view of the Commission, which relies exclusively on the failure to challenge Decisions No 2177/83 and No 234/84. That is so particularly because it may be inferred from the applicant's reasoning that the limitation imposed by the second paragraph of Article 33 of the ECSC Treaty on the right to challenge general decisions has no effect in a case such as this (since the applicant contends that the Commission failed to adopt transitional measures to cover cases such as the applicant's, a contention which clearly falls within the term ‘a misuse of powers affecting [it]). It must however be borne in mind first of all that, according to the reply, the applicant's principal argument is that the correct interpretation of the aforesaid general decisions is that in cases such as this they permit the reference production to be adjusted by the method provided for in Article 15 of Regulation No 1696/82 (even in the absence of any express provisions to that effect). Hence that argument is in no way a criticism of those general decisions nor an assertion that they are unlawful. Moreover, in so far as the applicant does make such an assertion in the alternative, in the event of a different interpretation of the general decisions, it is doubtful whether such an objection of illegality raised against general decisions — for that is precisely what is at issue —; can be rejected on the ground that those decisions were not challenged in due time. The Court has in fact consistently held that in challenging an individual decision it is possible to rely on the illegality of a general decision on which that individual decision is based, even though the period for challenging the general decision has expired (see the judgments of the Court in Cases 9/56, 10/56 and 15/57). ( 1 ) Moreover, in contrast to the Commission's view, it can scarcely be disputed that a ’direct legal connection' (within the meaning of the Court's judgment in Case 21/64) ( 2 ) exists between the rejection of the applicant's request and the allegedly defective general decision, No 234/84, since, according to the applicant's alternative argument, its request was rejected because Decision No 234/84 did not contain a provision allowing for the adjustment of reference production such as Article 15 of Decision No 1696/82. (bb) I am certain, however, that the Commission is right in stating that legal proceedings were not instituted in due time, if the period is calculated from the date of the submission of the request in April 1984. — In that connection it is difficult, in the first place, to dispute the view that in its letter of 27 April 1984, which I considered earlier, the applicant effectively raised the matter with the Commission within the meaning of Article 35 of the ECSC Treaty. ( 2 ) In that letter the applicant clearly seeks the adoption of a favourable decision and, although no legal basis is expressly mentioned, that is immaterial because it is sufficiently clear that the reference to the provisions concerning an increase in reference production which were in force at the time when the implementation of the investment plan began is in fact a reference to Article 15 of Decision No 1696/82. In my view, therefore, it was made sufficientlyclear to the Commission that its inaction would be impugned (see the Court's judgment in Case 17/57). ( 3 ) Clearly there was no further need for a formal demand under the system established by the Treaty. If, however, a formal demand were considered necessary, reference could be made to the applicant's reminder of 5 July 1984 (once again, the proceedings would not have been instituted within the prescribed period if that were taken as the date from which time started to run). — It is also clear that the decision sought by the applicant was not adopted within two months of the submission of the request. According to the system of legal protection established by the Treaty, this means that after that period an implied decision of rejection is deemed to have been adopted, which should have been challenged within one month (in this case this would have meant the summer of 1984 and not the spring of 1985). That is how Article 35 of the ECSC Treaty should be interpreted, as can clearly be inferred from the judgments of the Court in Cases 42 and 49/59 ( 4 ) and 81/83. ( 5 ) — With regard to the applicant's reference to the letter of 20 June 1984 from a Commission director undertaking to carry out an examination (which would necessarily last some considerable time), I would endorse the Commission's view that this could not lead to an extension of the period for instituting proceedings with regard to the applicant's request, which alone is relevant at this stage. That is how the Court's judgment in Case 42/58 ( 6 ) should be understood; in that case the Court held that a letter from the director of the Market Division of the High Authority stating that a question was under study did not constitute a decision within the meaning of the Treaty and there was therefore an implied decision of refusal as meant by Article 35 (see also the judgment in Joined Cases 42 and 49/59 SNUPAT v High Authority [1961] ECR 53 at p. 74). In the sphere of Community staff law the Court has consistently held that failure to take a decision on a request or failure to answer a complaint after the expiry of certain specified periods also have legal effects, in relation to which action must be taken in due time. The Court has stressed quite categorically that the expiry of the prescribed period is tantamount to the adoption of an implied decision of rejection; it is that decision which must be challenged. However, an interim decision urging forbearance and undertaking to examine the matter cannot be regarded as a measure which extends the period for instituting proceedings because, in the interests of legal certainty, that period cannot be altered by the parties (see the Court's judgments in Cases 12/65, 52/64, 79/70 and 40/71). ( 7 ) I think it is also significant that the examination promised by the Commission, as was clearly apparent to the applicant, did not concern the request contained in the letter raising the matter with the Commission (the request for an increase in its reference production on account of the new plant brought into operation pursuant to the provisions which were in force at the start of the work on the plant). In that respect the legal position, which was known to the applicant, was quite clear (Article 15 of Decision No 1696/82 had deliberately been left out of the new provisions) and no further examination was necessary. Instead, as was explained at the hearing, it was necessary to ascertain whether the applicant could be assisted by recourse to flexible provisions that were in force (such as Article 15 (2) of Decision No 234/84, which permitted the transfer of the reference figures in the event of the closure of a plant), and in particular to deal with the question of the amendment of the rules applicable to galvanized sheet (namely the merger of Categories Ic and Id and the establishment of a new, more favourable reference production for the new joint category). Negotiations concerning the latter question were already in progress when the applicant submitted its request (as it expressly acknowledges in the reply in Case 119/85). They formed the subject-matter of a communication from the Commission to the Council dated 29 November 1984 and of a draft decision dated 21 December 1984 (which came to nothing, with the result that in the end the system adopted — embodied in Decision No 470/85 — was new only in part and permitted additional quotas to be granted for Category Id alone). However, although the applicant preferred to await the (uncertain) outcome of the other steps it had taken instead of pursuing its original request, there is no doubt that, following the definitive clarification of the situation and the expiry of the relevant period, it could not again take up its initial request for the allocation of an additional reference production on the basis of the rules previously in force. — Finally, it must also be stated that even if the applicant's interpretation of the effects of the letter of 20 June 1984 were adopted (and it were accepted that the applicant was right to await notification of the reference production for 1985, which in its view evidently constitutes the final limit of the period of examination), it is difficult to see how the proceedings can have been instituted within the prescribed period. In fact, the decision of 20 February 1985 (on which the applicant relies) was not the first measure from which it could deduce that its reference production had not been adjusted (and that its request for an adjustment had been rejected). That was already clear from an earlier decision relating to the first quarter of 1985, namely the decision of 31 December 1984 (Annex 2 to the application). Consequently, the applicant should, at the very latest, have reacted when that decision was adopted, without waiting for the adoption of the decision of 20 February 1985 (which admittedly replaced the first-mentioned decision, although only as regards the abatement rates for Category Ic, but in other respects, including reference production, merely confirmed the decision of 31 December 1984). (cc) The principal claim should therefore be considered inadmissible on the ground that it was submitted out of time.