IT POSSIBLE FOR UNDERTAKINGS WHICH HAD RECEIVED OTHER FORMS OF NATIONAL AID WITH THE EXCEPTION OF THAT INTENDED TO COVER OPERATING LOSSES TO OBTAIN ADDITIONAL QUOTAS , DECISION NO 2748/83 INTRODUCED DISCRIMINATION AGAINST UNDERTAKINGS WHICH RECEIVED THE LATTER KIND OF AID AND THUS RESTRICTED THEIR ABILITY AND PRODUCTIVE CAPACITY IN RELATION TO ALL OTHER COMPETING UNDERTAKINGS . SUCH DISCRIMINATION IS SAID TO BE BASED ON AN ARBITRARY , FORMAL AND NOMINAL CRITERION WHICH EXCLUDES IN ADVANCE ANY ANALYSIS OF THE TRUE REASONS FOR THE GRANT OF THE AID IN QUESTION .
6 MOREOVER , DECISION NO 2748/83 TENDS TO EXCLUDE THE POSSIBILITY OF ADDITIONAL QUOTAS FOR UNDERTAKINGS WHICH HAVE THE WORST OPERATING RESULTS AND WHOSE NEEDS ARE THUS THE MOST URGENT . THE EFFECT OF THE DECISION WOULD THUS BE ENTIRELY THE OPPOSITE OF THE OBJECTIVE SOUGHT IN GIVING THE COMMISSION POWER TO DRAW UP A SCHEME OF ADDITIONAL QUOTAS FOR UNDERTAKINGS FOR WHICH THE SYSTEM OF QUOTAS HAD CREATED EXCEPTIONAL DIFFICULTIES . IN THOSE CIRCUMSTANCES THE APPLICANT CONCLUDES THAT THE DISCRIMINATION IS NOT ONLY CONTRARY TO ARTICLE 4 ( B ) OF THE TREATY BUT ALSO REPRESENTS A MISUSE OF POWERS IN ITS CASE .
7 THE COMMISSION CONTENDS THAT WHEN THE STEEL MARKET CRISIS BECAME WORSE , AND IN PARTICULAR WHEN UNFORESEEN DIFFICULTIES IN THE APPLICATION OF DECISION NO 2177/83 AROSE , IT BECAME NECESSARY PURSUANT TO ARTICLE 18 OF DECISION NO 2177/83 TO AMEND ARTICLE 14 THEREOF TO MAKE IT POSSIBLE TO GRANT ADDITIONAL QUOTAS TO UNDERTAKINGS WHICH HAD RECEIVED AID OTHER THAN THAT INTENDED FOR CLOSURE WHILE STILL EXCLUDING UNDERTAKINGS WHICH HAD RECEIVED AID TO COVER OPERATING LOSSES . THE LATTER KIND OF AID PRODUCED THE MOST DAMAGING EFFECT ON COMPETITION AND IS THE FARTHEST FROM THE TRUE OBJECTIVE PURSUED BY THE COMMISSION , NAMELY TO RESTRUCTURE UNDERTAKINGS . IN INTRODUCING A NEW CRITERION WHICH WAS OBJECTIVE AND GENERAL AND THUS NOT DISCRIMINATORY VIS-A-VIS THE APPLICANT , THE COMMISSION WAS MERELY EXERCISING ITS DISCRETION FOR THE PURPOSE OF AN EQUITABLE MANAGEMENT OF THE QUOTA SYSTEM .
8 AS THE COURT HAS SAID , INTER ALIA IN ITS JUDGMENT OF 13 JULY 1962 IN JOINED CASES 17 AND 20/61 KLOCKNER-WERKE V HIGH AUTHORITY (( 1962 ) ECR 325 ), FOR THE COMMISSION TO BE ACCUSED OF DISCRIMINATION , IT MUST BE SHOWN TO HAVE TREATED LIKE CASES DIFFERENTLY , THEREBY SUBJECTING SOME TO DISADVANTAGES AS OPPOSED TO OTHERS , WITHOUT SUCH DIFFERENTIATION BEING JUSTIFIED BY THE EXISTENCE OF SUBSTANTIAL OBJECTIVE DIFFERENCES . IN ORDER TO DETERMINE WHETHER THE DIFFERENT TREATMENT OF WHICH THE APPLICANT ACCUSES THE COMMISSION MAY CONSTITUTE A MISUSE OF POWERS IN ITS CASE , IT IS THEREFORE NECESSARY IN THE FIRST PLACE TO CONSIDER WHETHER THE TREATMENT IS BASED ON THE EXISTENCE OF OBJECTIVE AND SUBSTANTIAL DIFFERENCES HAVING REGARD TO THE AIMS WHICH THE COMMISSION MAY LAWFULLY PURSUE AS PART OF ITS INDUSTRIAL POLICY IN THE EUROPEAN STEEL INDUSTRY .
9 IT APPEARS FROM THE PREAMBLES TO BOTH COMMISSION DECISION NO 2320/81 OF 7