EQUAL TO THE VALUE OF THE EXCESS PRODUCTION . IT THEN STATES THAT UNDER ARTICLE 12 OF DECISION NO 1831/81 , THE FINE IS GENERALLY TO BE 75 ECU FOR EACH TONNE IN EXCESS AND THAT THE FINE MAY BE UP TO DOUBLE THAT AMOUNT IF AN UNDERTAKING ' S PRODUCTION EXCEEDS ITS QUOTA BY 10% OR MORE OR IF THE UNDERTAKING HAS ALREADY EXCEEDED ITS QUOTA OR QUOTAS DURING ONE OF THE PREVIOUS QUARTERS .
9 THE PREAMBLE TO THE CONTESTED DECISION GOES ON TO STATE THAT IN THE CASE OF UNDERTAKINGS WITH A NEGATIVE BALANCE SHEET THE FINE SHOULD BE INCREASED BY 10% TO 82.5 ECU FOR EACH TONNE IN EXCESS IF THE UNDERTAKING HAS ALREADY EXCEEDED ITS QUOTA OR QUOTAS DURING ONE OF THE PREVIOUS QUARTERS OR IF IT HAS EXCEEDED ITS QUOTAS BY 10% OR MORE . WITH REGARD TO THE PRESENT CASE , IT IS STATED THAT ' IN VIEW OF THE UNDERTAKING ' S STATE OF UNCERTAINTY IN THE FIRST QUARTER OF 1982 AND ITS WILLINGNESS TO OFFSET THE EXCESS PRODUCTION OF THE FIRST QUARTER AND THEREFORE TO RECTIFY THE SITUATION TO SOME EXTENT , THE FINE IMPOSED FOR THE EXCESS PRODUCTION WHICH WAS OFFSET , NAMELY 788 TONNES , SHOULD BE CALCULATED AT THE RATE OF 41.25 ECU PER TONNE , THAT IS AT HALF THE RATE APPLICABLE TO THE EXCESS PRODUCTION WHICH WAS NOT OFFSET , NAMELY 477 TONNES ' .
10 IN THIS ACTION , THE APPLICANT SEEKS TO HAVE THE CONTESTED DECISION FIXING THE FINE DECLARED VOID AND IN THE ALTERNATIVE TO HAVE THE FINE REDUCED . TO THAT END IT ADVANCES TWO SUBMISSIONS ALLEGING MISUSE OF POWER AND THE MANIFEST INJUSTICE OF THE DECISION .
MISUSE OF POWERS
11 ON THIS QUESTION , FERRIERE DI BORGARO CONTENDS THAT THE COMMISSION HAS , BY MEANS OF A DECISION IMPOSING A PENALTY FOR EXCEEDING A QUOTA , SOUGHT IN FACT TO PENALIZE AN INFRINGEMENT CONCERNING THE LEVY AND THE DUTY TO PROVIDE INFORMATION . IT ARGUES THAT THIS IS CLEAR FROM THE RECITALS OF THE PREAMBLE TO THE DECISION WHICH LINK THE FINDINGS RELATING TO THE INCORRECT DECLARATIONS OF PRODUCTION AND REFERENCE QUANTITIES TO THE FINDINGS THAT THE APPLICANT HAS ALSO FAILED TO DECLARE ITS PRODUCTION FOR THE PURPOSES OF THE LEVY AND HAS STOPPED PAYING THE LEVY .
12 THE COMMISSION , ON THE OTHER HAND , STATES THAT THOSE RECITALS SHOW IN FACT THAT THE INFRINGEMENTS CONCERNING THE LEVY AND THE DUTY TO PROVIDE INFORMATION WERE THE SUBJECT OF A SEPARATE DECISION . IN THE PASSAGE IN QUESTION IT SIMPLY WISHED TO MAKE CLEAR THAT THE INITIAL ALLOCATION OF INCORRECT QUOTAS WAS THE FAULT OF THE APPLICANT ITSELF WHICH HAD FAILED TO PROVIDE CORRECT INFORMATION .
13 IT IS CLEAR FROM THE ACTUAL WORDING OF THE RECITAL IN QUESTION , QUOTED ABOVE , THAT THE RECITAL WAS MEANT TO SUPPORT THE FINDING THAT THE INITIAL INCORRECT FIXING OF THE PRODUCTION QUOTA WAS THE DIRECT CONSEQUENCE OF THE APPLICANT '