4.

Some further points remain to be considered, which the plaintiff raised subsequently in its reply and which relate partially to points raised in the application. (a) The applicant draws attention to the fact that Decision No 2794/80 came into effect on 1 October 1980 although it was only published in the Officiai Journal on 31 October 1980, and thus it had retroactive effect. Since that is not permissible, it maintains, the production for the month of October and orders received during that period must not be taken into account and in that case it will be seen that the applicant did not in fact exceed its quota. At the very least the export order received on 7 October 1980 ought not to be taken into account inasmuch as the deliveries made in respect of that order took place before Decision No 2794/80 was made public (at the beginning of November 1980); for that reason it would be appropriate at least to reduce the amount of the fine considerably. Once again it is not possible to accept the applicant's argument. There is already in existence a sufficiently clear body of case-law with regard to the retroactive effect of Decision No 2794/80 and the inclusion of October 1980 in the quota system. Thus it was emphasized in the judgment in Case 258/80 ( 5 ) that it was necessary to include the month of October in the system in order to prevent undertakings from increasing their production in that month in anticipation of the reductions subsequently to be applied (paragraph 12 of the decision). In addition the decision as drafted did not in fact have retroactive effect because the undertakings were able to comply with their production quotas for the first quarter by adjusting their production in the months of November and December, thereby avoiding any infringement; as we have seen, that was the case for the applicant. Furthermore, the Commission adequately respected the legitimate expectations of those concerned by means of the communication of 11 October 1980 (Official Journal, C 264, p. 2), whereby it gave notice of its intention to include the month of October in the system of quotas, and by means of the decisions published on the same date (Official Journal, L 268, p. 25) requiring the undertakings to supply information on their protection for October 1980 (paragraph 12). Accordingly, production prior to the publication of Decision No 2794/80 and export orders accepted in October cannot be left out of account and it is therefore certainly out of the question to conclude on the basis of the alleged retroactivity that the applicant had not infringed the quota system or had infringed it to a lesser extent than that determined by the Commission. (b) With regard to the export deliveries the applicant refers in addition to Article 14 of Decision No 2794/80, a provision which has become familiar as a result of a series of other actions. It claims that it would be possible to adjust the production quotas as regards the export deliveries with the assistance of that provision and it is of the opinion that the Commission should have considered that possibility because the applicant satisfied the conditions laid down in Article 14. It must be said that in the Commission's administrative practice, as has been ascertained in the meantime, an increase in production' quotas in respect of foreign orders was possible, and that it was certainly possible for the applicant's quotas to have been increased in that manner even though the orders in question were not direct but indirect export transactions conducted through an independent intermediary. However, the applicant failed to submit a request to that effect at the proper time and in particular it failed to state therein that it was in exceptional difficulties as a result of the quota rules. Accordingly, there is now no real possibility of considering that sensitive question in depth and in particular of determining to what extent an increase in the quota would have been possible, since in the Commission's administrative practice the amount of the export deliveries was not the only relevant consideration. In view of the facts which have come to light in the proceedings and the relatively generous administrative practice adopted by the Commission it might, on the one hand, be possible to state that in all probability a request made by the applicant under Article 14 of Decision No 2794/80 would have been successful; on the other hand, it might be the case that the failure to make a request under Article 14 was excusable given the novelty of the matter and the small size of the applicant undertaking. That might in turn justify a certain reduction in the amount of the fine. I am unable to make more than such general suggestions at present; I leave the determination of the amount of any reduction in the fine to the discretion of the Court. (c) In addition the applicant in this case, too, relied on Article 58 of the ECSC Treaty, according to which fines may be imposed up to a maximum of the value of the tonnages produced in disregard of the quota system, and alleged that the fine imposed on it was excessive having regard to the demonstrable profit per tonne which it could have obtained on its excess production. I have already said all that is necessary with regard to that question in the opinion I delivered in Case 234/82. It is clear to me that “the value of the tonnages” within the meaning of Article 58 is the market value of the products produced in excess and therefore neither the value added in each case nor the profit made by the producer. However, since the value of the concrete reinforcing bars in question is, as the Commission has shown, several times greater than the normal amount of the fine, it is not possible to speak of an infringement of Article 58 of the ECSC Treaty. Moreover there is no question of basing the amount of the fine on the profit made in a particular case on equitable grounds. That would not only make the system impracticable, since it is well known that profit margins vary considerably from one business or undertaking to another, but would also reduce its effectiveness considerably because undertakings operating on a small profit margin or at a loss would be able to exceed production quotas without any appreciable risk. It is not possible, therefore, to amend the decision imposing a fine by reference to the profit which has been made or even by reference to the fact that a small part of the applicant's production was produced on behalf of third parties. (d) Next, there remains to be examined the applicant's request to be granted a reasonable period within which to pay the fine: it proposes a period of 15 years and a rate of interest based on the rates applicable in the Benelux countries. Again, my comments on that matter may be very brief. According to the provisions of the contested decision the only question to be considered is whether it was correct to impose a fine, which in principle was immediately enforceable, on the applicant or whether there are grounds for amending the scope of the decision as is provided for in Article 36 of the ECSC Treaty. All other matters, including the possibility of payment by instalments, which the Commission is willing to accept, and the determination of the rate of interest applicable in such case, are matters for the Commission to décide in a further procedure which may then possibly be the subject of an application to the Court under Article 89 of the Rules of Procedure. However, until the Commission had made a final decision with regard to any relief as to payment, there is certainly no reason to comment on the matter in a judgment of the Court.