3.

Greater difficulties would, on the other hand, be involved in determining the precise scope of the defence of necessity in Community law, on the basis of the legal principles common to the Member States, in particular if we inquired into the question how far it can claim a place in economic law, which is apparent only in certain countries, such as Germany, Belgium and the Netherlands. Further, it would be necessary to inquire whether the special nature of the quota system provided for in Article 58 of the ECSC Treaty excludes recourse to the plea of necessity when quotas are not observed, because, as the Commission submits, it would be incompatible with the object of that provision and would jeopardize the effectiveness of the quota system. However, there is no need to consider all those matters now, for in my view there are other reasons which show in the present case at least that there is no ground for declaring void the contested decision to impose a fine on account of the necessity in which the applicant found itself. (a) In that regard, it is only natural to refer to what was said in the judgment in Case 312/81, ( 9 ) which concerned a fine imposed when the applicant exceeded its quota for the first quarter of 1981. It was in fact held, in reply to a similar argument, that the award of a quota which was insufficient in relation to the undertaking's actual production capacity could not be taken into consideration (paragraph 44). The very high cost of the restructuring carried out by the undertaking since 1973 was due to a policy decision of the undertaking itself; necessity could not, however, be recognized if the perilous situation which was alleged to justify the unlawful act was brought about by the author of that act (paragraph 45). The quota system would be gravely compromised, or indeed set at nought, if every undertaking were able, by pleading an emergency situation 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 (paragraph 46). The matter is not however to be left there, since the applicant emphasized at the hearing that the findings in the judgment were in part due to a misunderstanding of its arguments in relation to its production capacity and were in part not correct because it is possible to rely on necessity in spite of having contributed to creating the danger which was to be averted. Moreover, the applicant had already argued at length in the written procedure against the assumption that the quota system would collapse if individual undertakings were allowed to exceed their quotas in reliance on necessity. (b) An essential condition for a plea of necessity is the existence of an actual, immediate danger to the applicant, a direct threat to its existence, which cannot be countered by means other than a breach of the law. That much may be regarded as having been established on the basis of the research into comparative law available to us and may thus be regarded as part of Community law. In neither respect has the applicant been able to show in the present proceedings that those conditions were satisfied in its case. (i) The applicant stated that, if it had kept to its production quota in the second quarter of 1981 instead of producing an amount equivalent of the average utilization of capacity of rolling-mills in the Community, it would have suffered an additional loss of DM 21000000. In doing so it relied on an opinion given in respect of the third quarter of 1981 which provided appropriate computations for the entire period of validity of Decision No 1831/81 (Official Journal 1981, L 180, p. 1), namely July 1981 to June 1982. Also to be taken into account were the losses arising from the quota system as a whole, that is the additional losses which the applicant would have incurred if it had observed the production quotas until June 1983 and which, according to the expert opinion it produced, were set at DM 500000000. It would have been impossible, in the applicant's view, to make good those losses since it had in any case already suffered heavy losses since 1974, which it had been able to make good only with considerable efforts and by disregarding the quotas. If it had incurred such losses it would have been doomed to collapse and therefore, to avoid that result, it was justified in disregarding the decisions fixing quotas. I join with the Commission in disagreeing with the applicant's view. It can remain open whether the figures given by the applicant are in fact correct. Of greater importance in judging the argument in relation to necessity was, as the applicant itself admitted, the position at the beginning of the second quarter of 1981, because the production programme for the quarter in question had to be determined at the beginning of March 1981. Therefore, since the conditions for acting out of necessity must be satisfied at the time the relevant actions are undertaken, the question is solely what the applicant's position was at that time. Consequently, no account can be taken of the alleged additional losses which were to be feared from a new quota system after the expiry of the system based on Decision No 2794/80, for it was not known in March 1981 whether there would in fact be a new system or what form it would take. If however the figure (feared loss: some 20 million German marks) given for the second quarter of 1981 is taken, then there is no ground for supposing that the applicant's existence was threatened or that jobs were in jeopardy to any appreciable extent. The applicant itself seems to accept as much, since it considered it necessary to take account of all the additional losses feared by it up to June 1983 and because it explained that it could not have withstood even a fifth of them, that is some 100 million German marks. It should also be noted that it has not proved the validity of its explanation that because of liquidity problems it would have come to the end of its resources very much earlier. It is also surprising that its experts did not inquire whether the losses might not have been compensated by positive results in other aspects of the company's operations or by exceptional profits and that in relation to the question of the applicant's solvency they explained only in a general way that the figures they found were ominous. It is also relevant in this connection, as the Commission rightly observed, that the applicant was able, according to its own admissions, to make good a loss of DM 1500000000 by September 1981 and that it has explained only in a vague way that afterwards, that is in Autumn 1981, it had scarcely any assets. That well justifies the conclusion, without any special expert opinion, that in the second quarter of 1981 there can on no account be said to have been a crisis threatening the applicant's existence. Necessity cannot therefore be pleaded in order to justify or excuse the infringement of the quotas which alone has to be dealt with in the present proceedings and thus to challenge the justice of the fine imposed on the applicant. (ii) As far as concerns the other relevant consideration — namely, that self-help on the ground of necessity is only permissible as a last resort, if no other means are available — it is necessary to bear in mind the possibility of an application under Article 14 of Decision No 2794/80, which could have been made not only, as we know from other cases, where the utilization of production capacity differed considerably from the average in the Community, but also on account of exports to nonmember countries. Indeed it is difficult to see why that possibility of lawfully expanding its production held out no prospect of success for the applicant on the ground that it could not obtain orders in nonmember countries, as was said in explanation of why no such application was made. Against that the Commission was able to point out that such efforts had been very successful in the case of other undertakings. In that regard, the applicant's statements at the hearing in Case 244/81 ( 10 ) may be recalled, to the effect that the applicant made no additional sales efforts in nonmember countries and that it would have pursued a quite different production policy if exports had not been fundamentally restricted by the production quotas. Moreover, we know from the hearing in this case that for the third quarter of 1981 the applicant made an application for an increase in its production quotas on account of additional exports, which, because of the absence of a provision in the quota system then in force corresponding to Article 14 of Decision No 2794/80, could not be successful. On the other hand, the Commission referred — rightly, in my view — to the possibility, not exploited by the applicant, of applying for interim measures in the proceedings relating to the applicant's production quotas for the second quarter of 1981, that is, attempting to obtain an increase in production by due legal process, to which recourse should be had before any self-help. If the applicant was really convinced that it was in a state of necessity (in Case 244/81 ( 11 ) relating to the third quarter of 1981, it used the argument of necessity to claim the minimum quota necessary for survival), that path could not at the time have appeared to offer no prospect of success. The fact that the Commission described the argument in those proceedings as invalid is no proper argument in defence for the applicant now.