5.

Finally, two further points must be considered, to which the applicant did not refer in its application but which it raised in its reply. They concern the rate of interest payable by it and the maximum permissible fine, in particular in the light of Article 58 (4) of the ECSC Treaty, which provides: “The High Authority may impose upon undertakings which do not comply with decisions taken by it under this Article fines not exceeding the value of the tonnages produced in disregard thereof.” (a) With regard to the first point, in respect of which, as I have shown, the applicant has submitted a specific claim, it argued that there is no clear decision on that matter and it must be inferred that the Commission intends to fix a variable rate of interest according to the country concerned, that is to say, intends to treat undertakings in different Member States differently. On that point I can be brief. The contested decision states expressly that the fine will increase by 1% for each month that it remains outstanding, which amounts to an annual interest rate of 12% and not 22%, which was the rate the applicant feared would be applied to Italian undertakings. That is all that is important to the applicant and I can see no point in the Court's confirming once again that the Commission should adhere to that intention. Even if the Commission is considering varying the interest rate according to the country, there is no reason to examine the question now since it clearly concerns a draft decision which is still under scrutiny and which has, in any case, had no incidence on this case. Thus it can be stated without further enquiry that there would appear to be no reason for including in the judgment the declaration desired by the applicant. (b) With regard to the second point, the applicant contended in a letter to the Court of 5 October 1982, and again in its reply, that the fine imposed on it is contrary to Article 58 (4) of the ECSC Treaty, according to which the value of the tonnages produced in disregard of the Commission's decision is decisive. That provision was allegedly infringed because it was necessary to take account of the fact that the excess tonnages, like all the applicants' production, were produced on behalf of others and that the owners of the materials to be processed remained owners of the finished product. Thus the upper limit for the fine should have been the payment made to it for its processing work, that is to say a maximum rate of 57 ECU per tonne should have been applied on the basis of an average payment to the applicant for its processing work in 1981 of LIT 75307 per kg. The applicant's argument with regard to this point can hardly be accepted, leaving aside the question whether the submission made in its reply is inadmissible because it was made too late since the aforementioned letter to the Court was not signed by its legal representative. In my opinion, there has been no infringement of Article 58 of the ECSC Treaty, which prescribes the maximum fines, because “the value of the tonnages” must be taken to mean from its clear wording the market value prior to marketing of the finished products to which the quota relates and not the value added by the person carrying out processing work. That construction is supported by considerations pertaining to the practicability of the system, which would be greatly reduced if the Commission had to ascertain the value s added in each case, because that would necessitate investigating the different processing stages and taking into account the different productivity of undertakings. However, since the value of the products at issue in this case is, as the Commission has shown, several times greater than the fine provided for in Article 12 of Decision No 1831/81, it is not possible to speak of an infringement of Article 58 of the ECSC Treaty. Moreover, the Commission cannot be expected when fixing individual sanctions to take into account in each case the fact that undertakings such as the applicant only work on behalf of others and thereby, quite apart from the upper limit laid down in Article 58 of the ECSC Treaty, to satisfy the requirement of fairness. There is no justification for that since the fines which would normally be imposed were announced in the general decision governing the quota system and therefore every undertaking was aware, from the outset, what the risks of excess production were. A further important factor is that if the position were otherwise there would be discrimination against undertakings which carry out the same work as pure processors but to which the aforementioned consideration does not apply because they purchase semi-manufactured products and then sell the finished product on the market themselves. A final and not unimportant factor is the danger that the quota system might be circumvented and its effectiveness undermined by processors and their customers agreeing that any excess production should be ascribed to the latter rather than the former because lower fines would then be imposed.