OPINION OF MR ADVOCATE GENERAL

VERLOREN VAN THEMAAT

DELIVERED ON 6 JULY 1983 ( 1 )

Mr President,

Members of the Court,

1. The principal facts

This case concerns an application by Thyssen AG, a German steel producer, to have declared void the Commission decision of 18 June 1982 imposing a fine of 288825 ECU on the applicant pursuant to Article 58 (4) of the ECSC Treaty for exceeding the production quota allocated to it for the first quarter of 1981. The applicant contends that the Commission was late in notifying it of the correct production quota for the fourth quarter of 1980, with the result that the applicant was no longer able to use the quota in full. The fact is that on 3 November 1980 a quota of 1159701 tonnes for products in Group 1 (rolled products) was allocated to the applicant. The quota seemed to have been miscalculated and the applicant informed the Commission of this on 11 November by telex. By a decision of 11 December 1980, which was notified to the applicant on 17 December, the Commission raised the quarterly quota to 1227736 tonnes. The applicant now contends that, as a result of that belated notification, it was unable to fulfil in their entirety certain orders for the supply of raw materials for the production of non-oriented electrical sheet by Stahlwerke Bochum AG (hereinafter referred to as “SWB”). In order to be able to fulfil those orders, the applicant exceeded its quota for the first quarter of 1981 by 3851 tonnes, as a result of which the Commission imposed a fine of 75 ECU for every tonne produced in excess of the quota, in accordance with the criterion set out in Article 9 of the Commission's general decision, Decision No 2794/80/ECSC of 31 October 1980 (Official Journal 1980, L 291, p. 1).

Relying on five submissions, the applicant seeks to demonstrate that the Commission should not have imposed a fine on it for exceeding the quota.

2. The meaning of Article 9 of Decision No 2794/80

Before I consider each of the applicant's submissions in turn, it is necessary in my opinion to investigate the meaning of Article 9 of Decision No 2794/80. The text of the first two paragraphs of that article is as follows:

“Firms exceeding their production quota or that part of this quota which, under Article 7 (2) and (3), may be delivered within the common market, shall be fined. This fine shall be fined. This fine shall generally be 75 ECU per tonne of excess for ordinary steels and 150 ECU per tonne of excess for special steels.

Where the production of an undertaking exceeds the quota by 10% or more or where the undertaking has already exceeded during one of the previous quarters its quota or quotas, the fines may be up to double these amounts per tonne. The same rules shall apply with regard to deliveries exceeding the quantities which may be delivered in the common market.”

In the second part of the second submission and in the third and fourth submissions, the applicant contended, in reliance upon arguments which are set out in the application and which I shall examine later, that the Commission should not have imposed a fine on it for exceeding the quota. In its reply, the applicant added that, since it was clear from those arguments that it was not at fault for exceeding the quota, no fine could be imposed on it by virtue of the principle nulla poena sine culpa. In response to the applicant's reliance on that principle and to its individual submissions, the Commission adamantly maintained that, pursuant to the aforesaid Article 9, it was under an obligation to impose a fine on an undertaking which exceeded its quota.

In its rejoinder, the Commission clarified its position by stating that, in its opinion, since the fine provided for by Article 9 is not in the nature of a penalty, any question of fault on the part of the undertaking is immaterial. At the hearing that point of view was reaffirmed and further clarified by the Commission in its answers to certain questions which were put to it by the Court. Both in its rejoinder and at the hearing the Commission contended, in that regard, that the fine provided for by Article 9 is not in the nature of a penalty because the provision in question contains an automatic mechanism which is aimed at eliminating the advantage acquired as a result of the unlawful production.

The Commission's argument is, in my opinion, untenable. Provision for the imposition of fines under the ECSC Treaty is made by the third paragraph of Article 47, the sixth paragraph of Article 54, Articles 58 (4), 59 (7), 64, 65 (5), 66 (5), (6) and (7) and 68 (6). In all those provisions of the Treaty, the word used is “fine”, which can only mean payment of a sum of money imposed by way of penalty (administrative sanction). The second paragraph of Article 36 confers unlimited jurisdiction on the Court in appeals against decisions imposing fines on the basis of the articles mentioned earlier and refers in that connection to “pecuniary sanctions”. These terms are also used in Articles 90 and 91. Moreover, the last sentence of Article 90 contains a variant of the principle of criminal law that two penalties may not be imposed for the same offence. These reasons alone justify the conclusion that the term “fine” cannot be interpreted as encompassing, in addition to fines imposed as penalties, certain purely administrative measures of a financial nature aimed at eliminating an advantage which has been acquired, as in the case of compensatory payments under a sales quota system. I would add that the fact that a fine has as its purpose to eliminate an unlawfully acquired advantage does not by any means necessarily imply that the fine cannot be in the nature of a penalty. Furthermore, there is no reason to view the fines imposed under the ECSC Treaty differently from those provided for in Article 87 of the EEC Treaty, as implemented by Article 15 of Regulation No 17. In its judgment in Case 45/69 (Boehringer Mannheim v Commission, [1970] ECR 769, at p. 805) the Court also referred to such fines as “penalties”.

It is not clear from the wording of the provisions of the ECSC Treaty which I have just cited whether fault or intent is required as a precondition for the imposition of fines, or whether the absence of fault constitutes an obstacle to their imposition. Only in the case of Article 65 (5) is fault expressly required, whilst in the case of the third paragraph of Article 47 and Article 66 it can be inferred from the practices described in those provisions. As regards the competition rules of the EEC Treaty, such a requirement is expressly laid down in Article 15 of Regulation No 17. In view of the fact that the principle nulla poena sine culpa is applicable in most of the Member States, as was argued by the applicant at great length during the hearing, that maxim must in my opinion also apply in the case of the fines provided for in the provisions of the ECSC Treaty to which I have referred. In that connection, I would also refer to the article by J.J. Jeschek entitled “Die Strafgewalt übernationaler Gemeinschaften” (Zeitschrift für die gesamte Strafrechtswissenschaft, Vol. 65 (1953), p. 510) and to the article by R. Winkler entitled “Die Rechtsnatur der Geldbuße im Wettbewerbsrecht der Europäischen Wirtschaftsgemeinschaft” (Tübingen, 1971, p. 87 et seq.). The Commission has itself conceded that if the fines concerned are in the nature of penalties, that principle is applicable to them.

In order to clarify matters, I would add that, given the nature of the economic practices in respect of which fines may be imposed under Article 58, it will be possible for an undertaking to prove that it is in no way at fault only in exceptional cases. In that respect, I consider it justified that Article 9 of the general decision should be based on a presumption of fault, but not that the Commission should seek to rule out even the possibility that such a presumption may be rebutted. Where action taken by an undertaking is entirely attributable to the administrative measures of a Community institution, which are contestable as such, an action based on unlawful conduct or on the breach of legitimate expectations or on the breach of the principle of proper administration, as recognized by the Court, will usually secure either a declaration that the administrative measure concerned is void or damages for maladministration on the part of the institution concerned. The need for a right to challenge the imposition of a fine on the ground of the complete absence of fault as a result of an act of maladministration by the Commission is not completely eliminated by the existence of a right to challenge the act itself but is greatly reduced. The practical significance of recognizing that there is a rebuttable presumption of fault in connection with the practices described is primarily, in my view, that it may affect the manner in which the amount of the fine is determined. In other words, it is impossible to rule out the possibility that either factors internal to the undertaking or external factors which helped to cause the infringement (including action by the Commission) may prevent the determination of the amount of the fine from being a completely automatic process.

In view of that interpretation of the provisions governing the imposition of fines under the ECSC Treaty, the question arises whether Article 9 of the general decision is compatible with Article 58 (4) of the ECSC Treaty. That problem consists of three related questions:

(1) Is the version of Article 9 which is in force compatible with Article 58 (4), which provides that the Commission “may impose” fines?

(2) Does Article 9 preclude the existence of a rebuttable presumption of fault? and

(3) Does Article 58 (4) rule out — quite apart from the issue of fault — the possibility of enacting, in addition to the provision made there concerning the maximum amount of the fine, a further provision stating the amount that must generally be imposed?

As regards that group of questions it must, in the first place, be stressed that Article 9 cannot constitute the legal basis for the decisions imposing fines adopted pursuant to the general decision. That is provided by Article 58 (4). Nor can that article, as the Commission maintained at the hearing, be regarded primarily as authorizing the Commission, in its capacity as a legislative body, to impose fines. It follows, in my opinion, that contrary to the Commission's contention, Article 9 constitutes merely a further stage — by which the Commission is bound — in the development of guidelines which it takes into account in exercising its powers under Article 58 (4). According to the clarification provided by the Commission at the hearing, those guidelines are principally (first paragraph of Article 9) directed at the elimination of an unlawfully acquired advantage. The second paragraph of Article 9 has a more far-reaching penal character. The Commission's power to lay down such guidelines for the purposes of the policy which it is to follow in applying Article 58 (4) can, in my view, either be inferred from the power which Article 58 as a whole confers on the Commission to establish a system of production quotas or be regarded as an implied power conferred by Article 58 (4) itself. The latter construction has the advantage that it also permits the adoption, where necessary, of further legislation implementing the other provisions of the ECSC Treaty concerning the imposition of fines. Unlike Article 58 (2), those provisions do not always expressly confer additional legislative powers upon the Commission. According to the clarification provided by the Commission at the hearing, it too regards Article 58 (4) as constituting the legal basis for Article 9 of the general decision.

Further, it cannot be inferred from the wording of Article 9 that a fine must automatically be imposed once the quota is exceeded, without there being any possibility of rebutting the presumption of fault implicit in that article. The term “generally”, used in the first paragraph of Article 9, -may in my opinion very appropriately be interpreted as referring not only to the amount of the fine but also to the imposition thereof and the same holds true for the term “may”, used in the second paragraph of that article. It would be illogical to confer a power upon the Commission to depart in certain cases from the provision embodied in Article 9 as regards the amount of the fine but not the actual imposition thereof. It is apparent from the second paragraph of that article that the degree of blameworthiness may well be a relevant factor when a fine is imposed.

As regards the third question which I have raised, I would add that the fixed fines which are usually imposed strike me as reasonable on the whole. Even where mitigating subjective factors are present in favour of the undertaking, the requirement that the quota system must operate effectively justifies in my opinion the elimination, as a rule, at least of the unlawfully acquired advantage. However, proof of the complete absence of fault or proof that the breach was caused by maladministration on the part of the Commission may, in certain cases, when combined with proof that the alleged advantage does not exist, lead to a different decision.

To summarize, therefore, I am of the opinion that the wording of Article 9 of the general decision does not necessarily rule out the implied existence of a rebuttable presumption of fault, which, in appropriate-cases, must be taken into account when deciding what fine, if any, to impose. I would regard a different interpretation as contrary both to the wording of Article 58 (4) and to the general legal principles concerning penal measures, including administrative sanctions. Against that background, I shall now go on to consider the submissions put forward by the applicant.

3 First submission: illegality of Decision No 2794/80

In its first submission, the applicant claims that the Commission's general decision, Decision No 2794/80, is unlawful inasmuch as it includes the raw materials for electrical sheet within the quota system. The Commission contends that this submission is inadmissible on the ground that there is no direct connection between the contested decision imposing the fine and the general decision. At the hearing that contention was clarified by the argument that no such connection exists since the applicant has not contested the legality of the quota fixed for the first quarter of 1981. I consider that view to be untenable. The quota fixed for that period would automatically become illegal if the general decision were declared unlawful in that respect. The decision imposing a fine applies to conduct which is prohibited by the general decision and which was further specified for the applicant by the fixing of its quota. Moreover, I cannot infer the existence of the requirement mentioned by the Commission from the wording of the third paragraph of Article 36 of the Treaty. In more general terms, I consider the interpretation of the third paragraph of Article 36 which is advocated by the Commission to be contrary to the application of that provision which was advocated by the Court in Case 9/56 (Meroni v High Authority, [1957 and 1958] ECR 133, at p. 140) and in Case 10/56 (Meroni v High Authority, [1957 and 1958] ECR 157, at p. 162).

As I said earlier, the first submission consists essentially in the contention that the Commission wrongly included electrical sheet within the quota system. In support of that contention, the applicant relies on a procedural defect which is said to reside in the fact that the Commission failed to gather sufficient information regarding the state of the relevant market, as required by Article 58 (2) of the Treaty. In paragraph 15 of the judgment in Case 258/80 (Rumi v Commission [1982] ECR 487) the Court held that the sole purpose of the requirement contained in Article 58 (2) is to enable undertakings to express their views regarding the Commission's intentions. The Commission need not consult every undertaking for that purpose. The applicant does not deny that such consultations took place. The fact that the Commission inclined towards a view which differed from that of the undertakings and trade associations is immaterial. Accordingly, that argument fails.

Next, the applicant advances four substantive arguments. First, it contends, there is no “manifest crisis” in the market sector concerned in view of the stability which has existed for years between supply and demand. Secondly, the establishment of quotas led to a serious shortage of the product in question, contrary to Article 3 (a) and (d) of the ECSC Treaty. Thirdly, there is discrimination, contrary to Article 4 of the ECSC Treaty, inasmuch as Article 6 of the general decision excludes from the quota system certain types of plate and tubes which are in a situation comparable to that of electrical sheet. Fourthly, the establishment of quotas for electrical sheet led to a decrease in employment and was thus contrary to the second paragraph of Article 2 of the ECSC Treaty.

As regards the first substantive argument, it must be stated at the outset that, under Article 58, the requirement of a “manifest crisis” must be satisfied in relation to the Community as a whole. In paragraph 16 of the judgment in Joined Cases 39, 43, 85 and 88/81 (Halyvourgikiv Commission [1982] ECR 593) the Court held that, for the application of Article 58, it is sufficient for the Commission to carry out a general assessment relating to the Community as a whole. The Commission need not therefore assess the state of every individual sector of the market. Moreover, the situation prevailing in one sector of the market may be better than that obtaining in another sector, without its affecting the existence of a “manifest crisis” in the market as a whole. The applicant has in no way demonstrated that this was the case. On the contrary, the answers given by the Commission in reply to the questions put to it by the Court and its explanations at the hearing do not provide any grounds for questioning the Commission's assessment of that complex economic situation, as the Court described the application of Article 58 in paragraph 22 of the judgment to which I have just referred. It is even possible to take the view, with regard to the application of Article 58, that the state of one sector of the market may be such that, taken in isolation, it fails to satisfy the requirement that a crisis must exist. However, if such a sector of the market were to remain outside the quota system, it is possible that the existing suppliers would be replaced by other manufacturers who would be able to use their unexploited capacity to increase the supply of the product not subject to quotas. In that connection I would also observe that the fact that Commission Decision No 1831/81/ECSC of 24 June 1981 (Official Journal 1981, L 180 at p. 1) excludes electrical sheet from the quota system cannot in itself be relied upon as an argument in support of the view that the quota previously established in respect of that product is unlawful. Even if it appears in retrospect that the application of Article 58 to the product concerned was questionable from an economic point of view, that does not necessarily make it unlawful since, as I have stated, Article 58 involves an assessment of the market as a whole. As regards that particular qualification of the Commission's discretion, I would refer to paragraph 24 of the Court's judgment in Case 43/72 (Merkur v Commission [1973] ECR 1055), which is comparable as far as this point is concerned.

With regard to the other substantive arguments, in which the Commission is charged with infringing certain basic provisions of the ECSC Treaty, namely Articles 2, 3 and 4 thereof, I would refer to paragraphs 82 and 83 of the Court's judgment in Case 154/78 (Valsabbia and Others v Commission [1980] ECR 907). In that case, the Court clearly held that Article 58 must be included amongst the group of measures which encroach upon the normal operation of the market. It follows that the degree of compliance with those basic provisions, which reflect the market economy on which the ECSC Treaty is founded, depends on the extent to which the normal operation of the market is displaced. The applicant has not demonstrated that the extent to which those provisions are displaced by the application of Article 58 is excessive. As regards the applicant's third substantive argument, I would also add that, under Article 4 of the ECSC Treaty, different products cannot be compared without further qualification. The Court expressly issued a similar warning in paragraphs 7 and 8 of its judgment in Joined Cases 117/76 and 16/77 (Ruckdeschel v Hauptzollamt Hamburg-St. Annen [1977] ECR 1753) with regard ţo the prohibition of discrimination laid down in Article 40 (3) of the EEC Treaty. As far as the argument regarding employment is concerned, I believe it is sufficient to state that Article 3 of the ECSC Treaty requires the Commission to act in the common interest, which, according to paragraph 49 of the Court's judgment in the Valsabbia case, does not rule out the possibility that it may act to the detriment of the individual interests of certain undertakings.

In conclusion, I am of the opinion that the applicant's first submission cannot be accepted.

4. First part of the second submission: the carrying over of the unused portion of the quota under Article 8 (2) of the general decision

This part of the applicant's second submission is based on the view that the purpose of the decision notified to it on 17 December 1980 was not to adjust the miscalculated quota allocated to it on 3 November 1980 but to allocate an additional quota to it. The applicant therefore claims that it acquired the right, as from 17 December 1980, to produce an additional 70076 tonnes (68035 tonnes plus a 3 % tolerance margin). Since, in the remaining part of the month of December it was only able to produce approximately 57700 tonnes, it claims that under Article 8 (2) of the general decision it was entitled to carry over the unused portion to the first quarter of 1981. The quantity produced in excess of the quota for that quarter was therefore covered by the portion carried over. The Commission rejects that argument on the ground that only one quota is involved; that quota was initially miscalculated, later adjusted and then used up in its entirety by the applicant.

The applicant's argument fails in my opinion, if only for arithmetical reasons. According to the documents submitted, the applicant produced 1251895 tonnes in the fourth quarter. Since the correct quota for the fourth quarter amounted to 1227736 tonnes, the permissible production limit for that period was exceeded, although production remained within the tolerance margin. Leaving aside the question whether the quota was miscalculated and later adjusted, or whether instead there was an initial quota followed by an additional quota, as the applicant contends, the fact remains that during that fourth quarter the quota could not in any event have been higher than 1227736 tonnes. Upon the expiry of that quarter, therefore, the applicant's total production had already entered the tolerance margin, which, as the Commission rightly emphasized, may not be carried over to the next quarter under Article 8 (2) of the general decision. More important than those arithmetical reasons, however, is, in my view, the fact that Article 3 of the general decision provides only for quarterly production quotas and not for quotas in respect of shorter periods or for a division between an initial quota and an additional quota. The Commission's notification of 17 December 1980 must, therefore, be regarded as a rectification of its earlier notification of 3 November 1980. The applicant also expected the miscalculated quota to be adjusted rather than a new, additional quota to be allocated to it for the period from 17 to 31 December 1980, as is borne out by its telex message of 11 November 1980.

5. Second part of the second submission: the carrying over of the unused portion of the quota in accordance with general legal principles

In the second part of this submission, the applicant contends primarily that it was in any event permissible to carry over the unused portion of the quota in accordance with the principle that the administration is bound by its own acts. In that connection, the applicant refers to previous decisions by the Commission concerning the carrying over of quotas on account of the belated notification of the volume of production permitted for a particular quarter. Since, when I considered the first part of this submission, it became apparent, in my opinion, that the applicant had crossed the threshold of the tolerance margin, it is inappropriate to compare this case with other cases in which quotas were carried over. In those cases, the quota had not been used up in full, with the result that the conditions laid down by Article 8 (2) for carrying over the unused portion to the next quarter were fulfilled. The Commission has rightly contended that those are the only circumstances in which a higher quota may be allocated for the next quarter since the general decision does not confer any discretion upon the Commission with regard to the establishment of the quota. It is therefore not necessary to consider the question whether the principle referred to by the applicant exists in Community law.

The applicant contends, in the alternative, that it was unable to use up its quota completely owing to the Commission's belated notification, that it sustained a loss in consequence and that in the first quarter of 1981 it endeavoured to make good the loss by exceeding its quota for that period. As I said earlier, the applicant allegedly exceeded the quota in order to supply its subsidiary SWB with raw materials for the production of non-oriented electrical sheet. It is stated in the application, and not denied by the Commission, that SWB stood in a special relationship with the applicant as regards the supply of that material. Failure to supply the quantity required would have led to a standstill in SWB's production, resulting in reduced deliveries to customers and affecting employment, since SWB had few, if any, possibilities of procuring the material elsewhere. The problem of providing SWB with a regular supply of raw material under the quota system had apparently existed since the introduction of that system in the fourth quarter of 1980 and, according to the applicant, whose remarks on this point have not been challenged, it was also the subjectmatter of negotiations with Commission officials, whose statements are relied on in the third submission. The applicant now contends that, owing to the Commission's belated notification, it was unable to take sufficient account, in its production programme for the fourth quarter of 1980, of the need to provide SWB with a regular supply of material, with the result that, in order to avoid serious losses, it was obliged to produce the quantity in question in the first quarter of 1981. The applicant thus sought to make good the loss and, since it was acting in good faith, it should not have been fined by the Commission.

Against those arguments, the Commission contends in the first place that under Article 9 of the general decision it is obliged to impose a fine whenever a quota is exceeded. That argument, in so far as it seeks to dissociate the imposition of a fine from a rebuttable presumption of fault on the part of the applicant, is unacceptable in my view, as I stated in paragraph 2. Further, the Commission denies that the applicant sustained a loss as a result of its inability to supply its subsidiary with raw materials in the fourth quarter and, even if the applicant did incur a loss, the Commission denies the existence of a causal link between the loss and its own belated notification of 17 December 1980. In my opinion, the Commission's contention that the applicant did not sustain a loss is correct only in so far as it actually exhausted its quota for the fourth quarter of 1980. On the other hand, the belated notification of the adjusted quota not only burdened the applicant with considerable administrative costs, but also prevented it from using up the tolerance margin. Although it is impossible to speak of a formal “right” in that respect, the applicant did indeed suffer material loss as a result of the Commission's conduct. Unlike the Commission, therefore, I am prepared to recognize the existence of that loss and the existence of a causal link between the loss and the belated quota adjustment. In that regard I would also have regard to the technical and labour law aspects of production programmes which are set out in the applicant's written answer to the question put to it by the Court. Admittedly, the Commission has demonstrated, on the basis of the applicant's daily production rate, that its production on 16 December 1980, which amounted to 1160238 tonnes, was still 34254 tonnes below the figure of 1194492 tonnes, representing the original quota (1159701 tonnes) plus the tolerance margin (34791 tonnes). In my opinion, however, a sensible producer who adopts a production programme cannot be expected, by prematurely using up his initial quota, to risk bringing production to a complete halt for a certain period in the event of a further delay on the part of the Commission in notifying him of the quota adjustment applied for. Still less can a prudent producer be expected, contrary to the view expressed by the Commission, to act unilaterally in anticipation of the granting of the adjustment applied for Information supplied by the Commission concerning the enquiry conducted by it in that regard confirms that the applicant acted sensibly in awaiting notification of the adjustment applied for. The applicant was right to treat the delay as evidence that the Commission was not absolutely convinced that an adjustment was justified. Accordingly, I consider the second submission to be well founded, inasmuch as the Commission, by its belated notification, at least contributed to the applicant's failure to produce the 3851 tonnes in question in the fourth quarter of 1980. If the applicant had fulfilled the order in question, it would have had to reduce other orders. Those considerations do not in essence affect the problems involved in this case.

6. Third submission: breach of the principle of the protection of legitimate expectation

In its third submission, the applicant contends that the imposition of a fine constitutes a breach of the principle of the protection of legitimate expectation and of the maxim nemo contra factum suum venire potest. It claims that it was led to believe, by certain remarks made by Commission officials, that a solution could be found to the problem of providing SWB with supplies. In that connection, the applicant refers, in particular, to the meeting which took place on 27 November 1980 and which held out the prospect of a “pragmatic solution”.

However the remarks of those Commission officials might be construed, the fact remains in any case that the applicant could not interpret them as meaning that the Commission would find a solution to the applicant's problem by infringing the provisions of the general decision. Tacit authorization to exceed the production quota for the first quarter of 1981, plus the tolerance margin, would have been contrary to Articles 3 and 9 of the general decision. An exception would have been permissible only on the basis of Article 14. To attribute any other meaning to those remarks would be to render them unlawful, as was held by the Court in comparable circumstances in paragraph 34 of its judgment of 11 May 1983 in Joined Cases 303 and 312/81 (Klòckner-Werke v Commission [1983] ECR 1507). Since it would have been impossible to exceed the production quota for the first quarter of 1981 with impunity, unless the relevant provisions of the decision had been expressly applied, it is clear that, although part of the responsibility must be borne by the Commission, the applicant itself must also be held responsible for exceeding the quota for the first quarter of 1981.

7. Fourth submission: breach of the principle of proportionality

In its fourth submission, the applicant contends that the circumstances in which it exceeded the production quota for the first quarter of 1981 are anomalous and should have been taken into account by the Commission in determining the amount of the fine. The applicant refers in particular to four factors: the small quantity produced in excess of the quota; the absence of a “manifest crisis” in the relevant market; maladministration by the Commission in connection with the notification of the production quota; and the remarks made by the Commission through its officials. As regards the extent to which those and other factors may be relevant to the imposition of a fine under Article 9 of the general decision, in relation to the question whether a rebuttable presumption of fault is involved, I would refer to my observations in paragraph 2 of this Opinion. As far as those factors themselves are concerned, it must be pointed out that the extent, whether slight or otherwise, to which the quota is exceeded is not relevant to the imposition of a fine, since tolerance margins are provided for in such cases by Article 8 of the general decision. Furthermore, paragraph 7 in the preamble to that decision clearly refers to small-scale infringements which do not constitute a threat to the system restricting production. My examination of the first submission showed that the application of Article 58 of the ECSC Treaty to the product in question was lawful. Thus I regard the Commission's maladministration in miscalculating the quota and in belatedly notifying the adjustment thereof to the applicant, with the result that the latter was able to produce less in the fourth quarter than would otherwise have been possible without attracting a fine, as the only factor which should have been taken into account with regard to the determination of the fine in the present case. In that connection, I also consider it significant that, owing to that act of maladministration on the part of the Commission, the applicant produced not more but less in the fourth quarter of 1980 and in the first quarter of 1981 than would have been the case had the correct quota been notified to it on time. In that respect, the presumption of an unfair advantage, on which Article 9 of the general decision is based, is not entirely applicable in the present case.

8. Fifth submission: infringement of essential procedural requirements and of fundamental rights

In its fifth submission, the applicant contends, in the first place, that an infringement of essential procedural requirements was committed by the Commission, inasmuch as the decision imposing the fine did not state all the reasons on which it was based, particularly as regards the Commission's attitude to the arguments put forward by the applicant during the administrative procedure. I intend to deal with this question briefly. In its judgment in Case 41/69 (ACF Cbemiefarma v Commission, [1970] ECR 661, at p. 690), the Court observed, in connection with a decision imposing a fine under Article 15 of Regulation No 17, that the Commission is not required to discuss all the issues of fact and of law which may have been touched on in the course of the administrative procedure. I recognize that the contested decision imposing a fine seems, according to the reasons set out in the preamble thereto and in the light of the clarification provided by the Commission, to proceed on an incorrect assumption regarding the nature of thè fine, as I stated in paragraph 2 of this Opinion. However, I would not have attached any importance to that assumption in relation to the validity of the decision imposing the fine if a more extensive statement of reasons would have led to the same result. Therefore the argument alleging a failure to state adequate reasons for the decision cannot succeed as a separate submission.

Next, the applicant contends that a breach of fundamental rights was committed, inasmuch as at the hearing which took place of 15 January 1982 a tape recording was made without its knowledge. Since the Commission has rightly pointed out that its decision was not based on that tape recording, which was used merely for the purpose of preparing a transcript of the proceedings which was sent to the applicant for its approval, that argument cannot in my opinion be accepted.

9. Conclusion

To summarize, I am of the opinion that the Commission's incorrect assumption regarding the nature of the fine imposed in the present case resulted in a miscalculation of the amount of the fine. Admittedly, when I considered the applicant's third submission I came to the conclusion that it could not be exonerated from all blame. Against that, however, it must be recognized that the applicant exceeded the quota in this case partly as a result of the Commission's excessive delay in notifying it of the initial. quota and in that respect the second part of the second submission and the fourth submission are well founded. Furthermore, owing to that belated notification, the applicant produced not more but less in the fourth quarter of 1980 and in the first quarter of 1981 than it could have produced with impunity if the correct quota had been notified to it on time. In that respect, the presumption of an unlawfully acquired advantage, on which Article 9 of Decision No 2794/80/ECSC is based, is not entirely applicable in the present case.

In the light of those two considerations viewed together, I am of the opinion that the fine imposed should be halved and that the parties should be ordered to bear their own costs.

( 1 ) Translated from the Dutch.