UPON , IN VIEW OF THE FACT THAT THE ALLEGED EXCESS PRODUCTION TOOK PLACE DURING THE FOURTH QUARTER OF 1980 , ARE THOSE CONTAINED IN ARTICLE 4 ( 4 ) OF DECISION NO 2794/80 , WHICH STATES AS FOLLOWS :
' ' WHERE , FURTHER TO AN INVESTMENT PROGRAMME DULY REPORTED AND NOT THE SUBJECT OF AN UNFAVOURABLE OPINION , THE UNDERTAKING ACTIVATES A NEW PLANT AFTER 1 JULY 1980 , THE COMMISSION SHALL ADAPT APPROPRIATELY THE REFERENCE PRODUCTION OF THIS UNDERTAKING , PROVIDED IT FINDS THAT THE NEW PRODUCTION POSSIBILITY THUS ESTABLISHED BRINGS THE TOTAL PRODUCTION POSSIBILITIES FOR THE FOUR GROUPS OF PRODUCTS TO A LEVEL EXCEEDING BY AT LEAST 15 % THE TOTAL PRODUCTION POSSIBILITIES EXISTING FOR 1979 . ' '
25 THE COURT NOTES SECONDLY THAT IT IS CLEAR FROM THE EVIDENCE AND IN PARTICULAR FROM THE REPLIES GIVEN BY THE COMMISSION TO THE QUESTIONS ASKED BY THE COURT , WHICH WERE NOT CONTRADICTED BY THE APPLICANT , THAT ALTHOUGH THE LATTER REQUESTED THE COMMISSION SEVERAL TIMES TO VERIFY THE IMPROVEMENT IN ITS PLANT IT WAS ONLY ON 26 OCTOBER 1982 , AS A RESULT OF A FURTHER INSPECTION CARRIED OUT BY COMMISSION STAFF , THAT IT COULD BE ESTABLISHED THAT CERTAIN MODIFICATIONS HAD BEEN MADE TO THE PLANT BETWEEN AUGUST 1981 AND FEBRUARY 1982 AND THAT AS A RESULT THE APPLICANT ' S PRODUCTION CAPACITY HAD MORE THAN DOUBLED . IN THE CIRCUMSTANCES THE COMMISSION , BY A DECISION NOTIFIED TO THE UNDERTAKING ON 22 NOVEMBER 1982 , ADJUSTED THE UNDERTAKING ' S PRODUCTION QUOTAS WITH EFFECT FROM THE FOURTH QUARTER OF 1981 PURSUANT TO ARTICLE 13 OF DECISION NO 1831/81 .
26 IT FOLLOWS THAT THE APPLICANT IS IN NO RESPECT ENTITLED TO REQUEST AN ADJUSTMENT OF THE PRODUCTION QUOTA ALLOCATED TO IT FOR THE FOURTH QUARTER OF 1980 , THE ONLY ONE AT ISSUE IN THIS CASE , AND THAT THE AFOREMENTIONED SUBMISSION MUST BE REJECTED .
THE SIXTH SUBMISSION IN THE APPLICATION
27 FINALLY , THE APPLICANT MAINTAINS THAT THE CONTESTED DECISION IS UNLAWFUL BECAUSE IT DID NOT TAKE ACCOUNT OF ITS CONDUCT AFTER 31 OCTOBER 1980 AND IN PARTICULAR OF THE FACT THAT FERRIERE SAN CARLO CLOSED ITS WORKS DURING NOVEMBER AND DECEMBER 1980 IN ORDER NOT TO EXCEED THE PRODUCTION QUOTAS ALLOCATED TO IT .
28 THE COURT CONSIDERS THAT THIS SUBMISSION MUST BE REJECTED BECAUSE IN THE FIRST PLACE EVEN IF IT WERE PROVEN , THE FACT RELIED UPON BY FERRIERE SAN CARLO IS WHOLLY IRRELEVANT TO THE QUESTION OF THE LEGALITY OF THE CONTESTED DECISION , AND IN THE SECOND PLACE IT APPEARS FROM THE EVIDENCE THAT ITS STATEMENT IS IN FACT INCORRECT : DURING THE QUARTER IN QUESTION THE APPLICANT PRODUCED 3 166 TONNES IN OCTOBER , 2 194 TONNES IN NOVEMBER AND 2 439 TONNES IN DECEMBER . IT IS THEREFORE NOT REASONABLY POSSIBLE TO MAINTAIN THAT THE APPLICANT CEASED OPERATIONS DURING NOVEMBER AND DECEMBER 1980 .
29 IT FOLLOWS FROM THE WHOLE OF THE FOREGOING THAT