CELEX: 61985CC0185
Language: en
Date: 1986-05-07 00:00:00
Title: Opinion of Mr Advocate General Mischo delivered on 7 May 1986. # Union sidérurgique du Nord et de l'Est de la France (Usinor) SA v Commission of the European Communities. # Guarantee lodged for certain steel products. # Case 185/85.

OPINION OF MR ADVOCATE GENERAL MISCHO
      delivered on 7 May 1986 (
            *1
         )
      
         Mr President,
      
      
         Members of the Court,
      
      I —
      The facts of the present case may be summarized as follows.
      Under the terms of an agreement concluded in 1969 between Laminoirs de Strasbourg SA (hereinafter referred to as ‘Laminoirs’), a wholly-owned subsidiary of Société union sidérurgique du nord et de l'est de la France ‘Usinor’ SA, and Straßburger Stahlkontor GmbH (hereinafter referred to as ‘SSK’) the latter company is to act as the exclusive distributor of Laminoirs products in the territory of the Federal Republic of Germany, including West Berlin.
      After carrying out an investigation at the premises of Laminoirs and SSK, the Commission charged Laminoirs with infringements of the pricing rules of the ECSC Treaty, committed through SSK.
      Having decided that the information gathered constituted ‘prima facie evidence of infringement’ for the purpose of Article 2(7) of Commission Decision No 3716/83/ECSC of 23 December 1983 (
            1
         ) and having notified Laminoirs of its objections in accordance with Article 36 of the ECSC Treaty, the Commission adopted individual Decision No 5462 of 2 May 1985 provisionally blocking the return of a portion (FF 2745641) of the guarantee lodged by Usinor in the second quarter of 1985.
      In the preamble to that decision the Commission states that ‘investigations carried out at the premises of SSK, a “selling agency” of Laminoirs within the meaning of the third indent of Article 1(2) of Decision No 30/53, (
            2
         ) as last amended by Decision No 1834/81/ECSC of 3 July 1981, (
            3
         ) have revealed that in the first quarter of 1984 SSK did not always observe the minimum prices fixed by Decision No 3715/83/ECSC adopted pursuant to Article 61 of the ECSC Treaty’.
      Usinor claims that the Court should:
      
               (i)
            
            
               declare the third indent of Article 1(2) of Decision No 30/53, as amended by Commission Decision No 1834/81/ECSC, void on the ground that the Commission misused its powers by extending to matters of pricing a definition borrowed from the rules on competition;
            
         
               (ii)
            
            
               declare individual Decision No 5462 of 2 May 1985 void on the grounds of illegality and misuse of powers since the Commission wrongly deemed SSK to be a ‘selling agency’ of Laminoirs;
            
         
               (iii)
            
            
               declare the same decision void on the ground that the Commission did not explain the criteria for determining the amount of the guarantee to be blocked.
            
         II —
      As matters of law, once the claim that Decision No 1834/81/ECSC should be declared void is dismissed as inadmissible (see Section A post), the case raises two major questions:
      
               (i)
            
            
               Was the Commission authorized under the provisions of the ECSC Treaty on prices, Article 60 et seq., to extend the liability of producer undertakings to the practices of their distributors which effect ‘direct sales’, when those distributors are controlled by the producer undertaking (Section B)?
            
         
               (ii)
            
            
               In the present case, was the Commission entitled to describe SSK as a ‘selling agency’ of Laminoirs/Usinor within the meaning of Decision No 30/53 (Section C)?
            
         Finally, the submission that Decision No 5462 contains an inadequate statement of reasons will have to be examined (Section D).
      A —
      There can be no doubt that the application is inadmissible in so far as it seeks the annulment of the third indent of Article 1(2) of Decision No 30/53, as amended by Decision No 1834/81/ECSC, because the one-month period which applicants are allowed under the third paragraph of Article 33 of the ECSC Treaty had expired long before the application was lodged.
      However, since the applicant also pleads the illegality of the third indent of Article 1(2) in support of its claim to have individual Decision No 5462 declared void, it may be supposed that the plea is really one of illegality.
      It is indeed undeniable that, as the applicant states, ‘there is... a legal connection between the contested individual decision and the general decision pursuant to which the individual measure was notified to the addressee’. (
            4
         )
      Such a plea of illegality could not, of course, lead to the annulment of the general decision at issue but only to that of the individual decision adopted thereunder.
      There remains the question whether that plea of illegality is well founded, which must now be examined.
      B —
      The applicant considers that the Commission misused its powers by using in the application of Article 60 of the ECSC Treaty a definition of ‘control of an undertaking’ contained in rules for implementing Article 66 of the ECSC Treaty, namely Decision No 24/54 of 6 May 1954. (
            5
         )
      Decision No 1834/81/ECSC adds to Article 1(2) of Decision No 30/53, which defines the term ‘selling agency’ for the purposes of that decision, a third indent which refers to:
      ‘distributor undertakings which are directly or indirectly controlled by a producer undertaking, within the meaning of Decision
         No 24/54 (
            6
         ) where they effect direct sales of products manufactured by the producer undertaking in question’.
      My immediate reaction is to say that we are faced with no more than a reference to existing legislation, which is a fairly common legal technique which is not open to challenge per se. As is explained in the last recital of its preamble, it is clear that Decision No 1834/81/ECSC refers to Decision No 24/54 solely for the purpose of defining ‘control of an undertaking’. In that respect it is of no importance that the two decisions are based on articles of the ECSC Treaty which have separate aims.
      It is also of no importance in this case that the legal remedies attached to the two articles are different. Just because Decision No 1834/81/ECSC, which is based on Article 60, borrows a legal definition from Decision No 24/54, which is based on Article 66, it does not follow that the latter article applies and that the legal remedies attached thereto should take precedence over the remedies attached to Article 60.
      In the present case the Commission in no way intended to give a decision on the question whether or not the agreement between Laminoirs and SSK constituted a ‘concentration between undertakings’ — lawful or unlawful — within the meaning of Article 66 of the ECSC Treaty.
      Nor do I think that the Commission wished to suggest, even by implication, that exclusive distributorship agreements might as such be regarded as a factor constituting a concentration between undertakings.
      In fact, the part played in the present case by the agreement between Laminoirs and SSK is not due to the fact that it is an exclusive distributorship agreement but to the fact that SSK obtains all its supplies from Laminoirs and to other circumstances characterizing the relations between the two firms. (We know that another firm is responsible for selling Laminoirs' products in a special sector of the German market.)
      But quite apart from that aspect of legal technique, the question naturally arises whether the Commission could, on the basis of Article 60 of the ECSC Treaty, extend the liability of producer undertakings as regards prohibited pricing practices to their selling agencies displaying the characteristics in question.
      The applicant contends that it could not do so, essentially on the following grounds.
      
               1.
            
            
               First of all, it maintains that the context of Article 66 of the ECSC Treaty is such that, in that context, a very broad definition of ‘control of an undertaking’ is perfectly legitimate. Since the undertakings participating in an illegal concentration are all necessarily at fault, ‘the legislature was entitled to define the control of one undertaking by another in a broad context of contractual relations, without there being any need for one undertaking to have power over the other’. (
                     7
                  )
               The applicant argues that the situation is different in the case of Article 60 since pricing infringements can be committed by a single undertaking without another undertaking being involved; another undertaking cannot be accused of those infringements unless it actually had the legal means to prevent the first undertaking from committing them.
               The first point to be noted in this regard is that the system established by the Commission is not only based on the existence of ‘a broad context of contractual relations’ between two undertakings.
               The situation envisaged by the Commission is where a producer undertaking involves in its direct sales a distributor undertaking which it controls (see the fourth recital in the preamble to Decision No 1834/81/ECSC).
               In the first place, therefore, direct sales must take place, that is to say that the goods must be dispatched by the producer undertaking direct to the customer of the distributor undertaking.
               Secondly, a further condition must be fulfilled.
               One is led to the conclusion that Decision No 1834/81/ECSC incorporated not only the criteria of ‘rights or contracts’ contained in points (1) to (5) of Article 1 of Decision No 24/54 but also the condition set out in the introduction to that article, namely that the ‘rights or contracts’ must, ‘either separately or jointly, and having regard to the considerations of fact or law involved, ... make it possible to determine bow an undertaking shall operate as regards production, prices, investments, supplies, sales and appropriation of profits’.
               The Commission is therefore required to consider, case by case, in the application of Decision No 30/53, whether the distributor undertaking may, as far as its pricing or sales policy is concerned, be regarded as an extension of the producer undertaking.
               It seems difficult to deny that the five situations defined in Article 1 of Decision No 24/54 may confer—at least in certain circumstances — such a power on the producer undertaking.
               It is thus hard to see how the Commission is supposed to have misused its powers in adopting in connection with Decision No 30/53 the ‘elements of control’ defined in Decision No 24/54, which, I repeat, does not provide for automatic determinations but for an examination of each individual case.
               I should also point out, as the Commission rightly does, (
                     8
                  ) that the applicant is also mistaken in arguing that the elements of control defined in Decision No 24/54 do not necessarily fit into ‘a broad context of contractual relations’; point (2) of Article 3(1) provides that control may be exercised by persons or undertakings who, while not being holders of rights or entitled to rights under the contracts referred to in Article 1, nevertheless have power to exercise the rights deriving therefrom.
               Finally, and as far as necessary, I would point out that in a previous case (
                     9
                  ) the same argument was used (
                     10
                  ) — albeit in a different context — in support of an application to the Court to have the Commission's refusal to increase the applicant's quotas for certain products declared void. The Court rejected that argument. It stated that in selecting, as the entity to which the quota system applied, a group of undertakings as referred to in Article 66 of the ECSC Treaty, the Commission had not exceeded the discretionary power conferred on it by Article 58 of the ECSC Treaty and in no way undermined the validity of the definition of an undertaking contained in Article 80 of the ECSC Treaty (paragraph 7 of the decision).
            
         
               2.
            
            
               The second reason put forward by the applicant is that Decision No 18 34/81/ECSC could be adopted only in conformity with the procedure laid down in Article 95 of the ECSC Treaty, since the Treaty, in Articles 60 and 61 dealing with prices, does not provide for the obligations incumbent on undertakings to be extended to other undertakings under their control.
               Although the last subparagraph of Article 60(1) expressly provides that the High Authority may define the practices covered by the prohibitions in Article 60(1), that authorization refers only to the nature of the practices, not to those who engage in them.
               That interpretation is borne out, in the applicant's view, by the wording of Article 63. That article, which likewise appears in the chapter on prices, provides in paragraph 2(b) as follows:
               ‘undertakings shall be held responsible for infringements of this obligation by their direct agents or by commission agents acting on their behalf’.
               Since no authorization is given for extending the list in that article, it is exhaustive and incapable of extension except by resorting to the procedures laid down in Article 95, which the Commission did in the case of independent dealers in adopting Decision No 1836/81/ECSC, (
                     11
                  ) which was adopted on the same day as Decision No 1834/81/ECSC.
               The force of that argument can be appraised only with reference to the context and the purpose of the decision in question.
               It should first be noted that Decision No 30/53 is based not only on Article 60 but also on Article 63(2).
               Even in its original version of 2 May 1953, Decision No 30/53 covered selling agencies generally, since it provided in Article 7 that ‘undertakings shall be held responsible for infringements of this obligation [i.e. the obligation to comply with the rules set out in Articles 2 to 6 of the decision] by their direct agents, selling agencies or commission agents’.
               At that time selling agencies were therefore assimilated, as it were, to direct agents or commission agents, which are mentioned in Article 63 (2) (b).
               Decision No 19/63 of 11 December 1963 (
                     12
                  ) then defined that concept of a selling agency in the way indicated in the first two indents of the new Article 1(2) of Decision No 30/53.
               The reasons for that further clarification were given in the third recital of the preamble to Decision No 19/63. (
                     13
                  )
               In Article 8 of Decision No 30/53, as amended by Decision No 19/63, the High Authority introduced the concept of ‘middlemen’, distinguishing two sub-categories. The first category includes agents and the second commission agents. The applicant has not challenged the legality of that decision which is not, however, based on Article 95 of the ECSC Treaty but on Articles 4, 60 and 63(2) of the Treaty.
               Finally, as part of the crisis measures which it was induced to adopt in the steel sector, the Commission considered it necessary to take stronger action on the sale prices of steel products and adopted Decision No 1834/81/ECSC (based on Article 60).
               The reasons for introducing a new category of selling agency in Decision No 30/53 (third indent of Article 1(2)) were stated in the fourth and fifth recitals of the preamble to Decision No 1834/81/ECSC:
               ‘Whereas over the last few years, in order to widen the distribution of their products, a large number of producer undertakings have taken over, directly or indirectly, control of distributor undertakings which do not necessarily distribute primarily the production of the undertakings which control them; whereas experience has shown that producer undertakings can avoid the prohibitions of discrimination concerning them simply by involving in their direct sales the distributor undertakings which they control;
               Whereas producer undertakings should be subject to the obligations deriving from Decision No 30/53 in respect of direct sales in all cases when they involve the distributor undertakings which they control’.
               The Commission therefore considers in effect that the direct sale by a producer undertaking of its products remains a sale effected by that undertaking, even when a selling agency acts as a middleman, so long as the producer undertaking is able to exercise control over the pricing policy of the selling agency in question.
               The clear aim of the further amendment of Decision No 30/53 was therefore to ensure that Article 60 remained effective by preventing producer undertakings from being able to evade their obligations by artificial means.
               As the Court has stated on several occasions, ‘writers and case-law agree in recognizing that the rules established by a treaty imply the principles without which these rules cannot effectively or reasonably be applied’. (
                     14
                  )
               In any event, it cannot be argued that this is a ‘case not provided for in [the] Treaty’ mentioned in Article 95.
               The basic obligation whose observance must be ensured is clear from the Treaty itself (‘Pricing practices contrary to Articles 2, 3 and 4 shall be prohibited ... ’ — first sentence of Article 60).
               The power to define in more detail ‘the practices covered’ by the prohibition laid down in Article 60(1) is conferred on the Commission by the last sentence that provision.
               The principle that undertakings are liable for infringements of pricing rules committed by middlemen who are under their control may also be inferred from the Treaty, namely from Article 63(2)(b), even though the actual wording of that article refers only to ‘direct agents or ... commission agents acting on their behalf’.
               Finally, it may be argued that, by empowering the Commission to define ‘the practices covered’ by the prohibition laid down in Article 60(1), the ECSC Treaty also conferred on it the power to define those practices by reference to certain special rules, according to which producer undertakings may be deemed to engage in them provided that ultimate responsibility for the misconduct may be imputed to them.
               It was therefore unnecessary to resort to Article 95.
               The situation changes completely when the true offenders are not the producer undertakings but distributor undertakings over which they have no control.
               Since ‘the steel market constitutes a whole in which dealers play an important role, in view of the fact that more than half of the steel marketed in the Community, either in direct sales or ex-stock, including material imported from non-Community countries, passes through their hands’, the Commission decided that ‘any action intended to affect prices must involve not only producers but also dealers’ (fifth recital in the preamble to Decision No 1836/81/ECSC). Accordingly, on the day on which it adopted Decision No 1834/81/ECSC, the Commission addressed Recommendation No 1835/81/ECSC (
                     15
                  ) to the Member States in order to oblige them to take the requisite measures to ensure that ‘undertakings engaged in the distribution of steel [i.e. independent distributors not controlled by a producer undertaking] observe rules on prices and conditions of sale similar to those imposed on the production undertakings by Article 60 of the Treaty and the implementing decisions taken pursuant thereto’ (third recital of the preamble to Recommendation No 1835/81/ECSC).
               For that purpose the Commission exercised the power expressly conferred on it by Article 63(3) of the ECSC Treaty.
               However, realizing that a certain amount of time would be needed by the Member States to implement that Recommendation, the Commission meanwhile adopted Decision No 1836/81/ECSC directly imposing those obligations on distributor undertakings (see the last recital of Recommendation No 1835/81/ECSC).
               In order to do so, the Commission had to apply the provisions set out in the first paragraph of Article 95 because, as it stated in the sixth recital of the preamble to Decision No 1836/81/ECSC, ‘the Treaty makes no provision for this case’, since, by virtue of Article 80, Article 60 applies only to undertakings engaged in production.
               Although set in the same context, the two decisions therefore have different objectives which justify the reference to two separate legal bases; whereas Decision No 1836/81/ECSC extends the ambit of the pricing rules beyond Article 60 so as to cover (independent) distributor undertakings, Decision No 1834/81/ECSC merely defines, within the confines of Article 60, the liability of producer undertakings for the acts of their selling agencies by defining the latter more precisely (for the reasons set out in the fourth recital, quoted above).
               The Community legislature was aware of that distinction to the point of expressly excluding ‘selling agencies as defined in Decision No 30/53’ from the scope of Decision No 1836/81/ECSC (see third indent of Article 1(1) thereof) and from Recommendation No 1835/81/ECSC (third indent of Article 2(1) thereof).
            
         C —
      That being so, are the requirements of that decision fulfilled in this case? In other words, is SSK the selling agency of Laminoirs within the meaning of Decision No 30/53 as amended by Decision No 1834/81/ECSC?
      As is apparent from the wording of the latter decision, a distributor undertaking may be treated as the selling agency of a producer undertaking only if two distinct conditions are met, namely,
      
               (i)
            
            
               the existence of ‘elements of control’ within the meaning of Decision No 24/54;
            
         
               (ii)
            
            
               the actual occurrence of direct sales.
            
         
               1.
            
            
               As regards control and the possibility for Laminoirs to determine how SSK shall operate as regards prices or sales, the following points should be made.
               The Commission believes that in the exclusive distribution agreement concluded on 30 June 1969 between Laminoirs and SSK it can detect the ‘element of control’ described in point (5) of Article 1 of Decision No 24/54.
               That provision refers to ‘contracts made with an undertaking concerning the whole or an important part of its supplies or outlets, where the duration of those contracts or the quantities to which they relate exceed what is usual in commercial contracts dealing with those matters’.
               It appears that:
               
                        (i)
                     
                     
                        the agreement between Laminoirs and SSK relates to an important part of SSK's supplies; it has not in fact been disputed that during a given reference period the sales of ECSC products supplied by Laminoirs accounted for 48% of SSK's total turnover, whilst the remaining 52% was accounted for by sales of non-ECSC products also supplied by Laminoirs;
                     
                  
                        (ii)
                     
                     
                        in duration the agreement in any event exceeds what is usual in commercial contracts dealing with such matters; it was concluded in 1969, initially for six years, and was renewable by tacit agreement for further periods of three years; by an amendment dated 25 January 1980 it was then extended until 31 December 1987, whereafter it may be renewed by tacit agreement for three-year periods; it will therefore have run for a period of at least 18 years;
                     
                  
                        (iii)
                     
                     
                        on SSK's headed documents and business letters, beneath the name of the company itself, appears the title ‘Verkaufsgesellschaft der Laminoirs de Strasbourg SA für Deutschland’; SSK therefore advertises itself as the selling agency for Laminoirs with its agreement or at least tacit consent;
                     
                  
                        (iv)
                     
                     
                        orders received from SSK's customers are acknowledged on a document bearing Laminoirs' name at its head which is addressed to them countersigned by SSK and accompanied by Laminoirs' general conditions of sale;
                     
                  
                        (v)
                     
                     
                        under Article 5 of the exclusive distribution agreement Laminoirs reserves the right to have SSK's employees accompanied by one of its own employees when they visit customers;
                     
                  
                        (vi)
                     
                     
                        under Article 7 SSK must send Laminoirs a duplicate invoice for every delivery of Laminoirs' products and generally must submit to Laminoirs the accounting documents relating to transactions involving Laminoirs' products;
                     
                  
                        (vii)
                     
                     
                        under Article 8 any circulars which SSK wishes to send to German customers about Laminoirs' products must be submitted to Laminoirs for approval.
                     
                  The applicant does not deny the existence of any of those elements but qualifies their importance and significance. It maintains that the contract does not exceed what is usual in commercial contracts dealing with those matters, either in terms of quantity or in duration, and that in the absence of participation by the producer undertaking in either the capital or the management of the distributor undertaking there is no control of SSK by Laminoirs.
               The applicant seeks to interpret each of the elements listed above in such a way as to deny their relevance in the attempt to link them together as evidence suggesting that SSK is indeed the selling agency for Laminoirs within the meaning of Decision No 1834/81/ECSC. Thus it is argued that the trade practices and the clauses set out above are quite normal in dealings between supplier and distributor.
               I take the view, however, that the very existence of all those elements, irrespective of their raison d'être or whether they are normal or not and of the extent to which they were applied, is sufficient to satisfy the conditions laid down in Decision No 1834/81/ECSC. Those elements are precisely of such a nature as to prove such close control of the distributor undertaking by the producer undertaking that the former may be considered to be really acting on behalf of the latter. In order to be relevant, those elements do not necessarily have to be accounted for by a specific or, as it were, pre-established relationship, such as belonging to a group of undertakings or the participation of one undertaking in the management or administration of the other, as the applicant maintains.
               The latter circumstances fall respectively under point (1) of Article 1 of Decision No 24/54 (‘Ownership or the right to use all or part of the assets of an undertaking’) and the second indent of Article 1(2) of Decision No 30/53 (as amended), which refers to ‘distributor undertakings ... administered by a producer undertaking ... ’.
               However, I have already concluded that the taking into consideration, as an element of control, of a contract which meets the criteria set out in the introduction and point (5) of Article 1 of Decision No 24/54, could not be considered illegal or a misuse of powers.
               Finally, during the hearing which the Commission accorded to the representatives of Laminoirs on 16 April 1985, one of those representatives stated that ‘if Laminoirs makes a direct sale it knows the price charged to the customer. The price is agreed since SSK lives on the commission paid by Laminoirs’ (see draft minutes of 8 May 1985 attached to the application; in its observations of 29 May 1985 Laminoirs did not dispute that minute).
               To sum up, it is therefore possible to conclude from all the elements mentioned above that it is possible for Laminoirs to determine how SSK shall operate as regards prices or sales, as is required by Article 1 of Decision No 24/54.
            
         
               2.
            
            
               As far as the existence of ‘direct sales’ is concerned, first of all, Decision No 30/53, as amended by Decision No 1834/81/ECSC, defines them in the following way:
               ‘A sale is “direct” when, under contracts of sale concluded between the producer undertaking and the distributor undertaking on the one hand and between the distributor undertaking and its customers purchasing the products on the other, the products are shipped directly from the producer undertaking to the customer of the distributor undertaking or in accordance with the instructions of the customer.’
               In this case the existence of ‘direct sales’ was explicitly acknowledged by Laminoirs in a letter of 30 January 1985 and during the hearing on 16 April 1985.
               Their existence is also proved by the fact that SSK does not have a warehouse, so that Laminoirs' products are always despatched by Laminoirs direct to SSK's customers.
               Finally, points (iv) to (vii) in part C.l above also tend to confirm the existence of that sales system.
               No conclusion may be drawn from the fact that the definition of ‘direct sales’ is the same in Decision No 30/53, as amended, as it is in Decision No 1836/81 /ECSC, which is concerned with dealers (Article 6(2)); the definition constitutes an objective concept which cannot vary according to the status of the contracting parties.
               What matters is that, even in the case of direct sales, dealers are not in the same situation of dependency as selling agencies within the meaning of Decision No 30/53.
               In conclusion, I am therefore of the opinion that the Commission was, in the light of the foregoing, entitled to take the view that SSK was the ‘selling agency’ for Laminoirs within the meaning of the third indent of Article 1(2) of Decision No 30/53, and in the circumstances did not therefore misuse its powers in adopting individual Decision No 5462 of 2 May 1985.
            
         D —
      The applicant further complains that the Commission did not adequately state the reasons for the decision, especially the bases used for calculating the amount of the blocked guarantee and that it merely referred to ‘internal criteria’ which are not set out elsewhere.
      The Commission, which gives particulars about those ‘internal criteria’, takes the view that, where a mere protective measure is adopted in order to make a subsequent sanction procedure more effective, the statement of reasons may be limited to the question whether the decision to block the guarantee is in principle well founded, since the suitability of the method of calculation used cannot in any event be appraised except in the light of the determination of the fine itself at a later stage.
      According to established case-law, ‘the purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested’. (
            16
         )
      In this instance, I believe that the statement of reasons for the contested decision meets those objectives. After referring to the legislation in force and stating the infringements objected to, the preamble to Decision No 5462 continues: ‘... according to Article 64 of the ECSC Treaty, those infringements may be penalized by a fine not exceeding twice the value of the offending sales; the extent of the prohibited underpricing is DM595817, or FF 1830427 when converted at the average exchange rate of the European currency unit in the first quarter of 1984; the Commission could, on the basis of its internal criteria for the fixing of fines for infringement of Article 61 of the ECSC Treaty, impose a fine of FF 2745641; consequently, it would be proper to block provisionally the return of the guarantee provided by Usinor for the second quarter of 1985 in an amount equivalent to the aforesaid amount’.
      The Commission thus clearly defined the reference criteria used for fixing the amount of the guarantee. Those criteria, which form the limits, so to speak, within which the blocked sum must be fixed, are Article 64 of the ECSC Treaty and the amount by which prices are alleged to have been undercut.
      The fact that it did not expressly state that it had increased that amount by 50% is not, in my view, an adequate ground for judging the statement of reasons to be insufficient. The rate of increase applied to the amount by which prices were undercut can be determined by a simple calculation.
      Furthermore, the ‘internal criteria’ referred to in the decision relate only to the fixing of the amount of the fine which the Commission might subsequently impose.
      Moreover, the adoption of the contested decision was preceded by a series of contacts, letters and hearings, so that the applicant, which was thus closely involved in the procedure culminating in that decision, certainly had the opportunity to gather all the necessary information on the Commission's relevant practices and methods. (
            17
         )
      Finally, Article 2(7) of Decision No 3716/83/ECSC, which served as the basis for the contested decision, merely requires that the amount of the guarantee blocked shall be ‘an appropriate amount’. That amount is certainly appropriate if it does not exceed the limits mentioned above.
      Consequently, in my view, the allegation that the statement of reasons is inadequate cannot be accepted either.
      III — Conclusion
      For all those reasons I propose that the Court should:
      
               (1)
            
            
               Dismiss as inadmissible the claim that it should declare void the third indent of Article 1(2) of Decision No 30/53, as amended by Decision No 1834/81/ECSC;
            
         
               (2)
            
            
               Dismiss as unfounded the claim that individual Decision No 5462 of 2 May 1985 should be declared void; and
            
         
               (3)
            
            
               Order the applicant to pay the costs.
            
         (
            *1
         )	Translated from the French.
      (
            1
         )	Commission Decision No 3716/83/ECSC of 23 December 1983 establishing a guarantee system for certain steel products and a system for the verification of the minimum prices (Official Journal 1983, L 373, p. 5).
      (
            2
         )	Decision No 30/53 of 2 May 1953 on practices prohibited by Article 60(1) of the Treaty in the common market for coal and steel (Official Journal, English Special Edition 1952-58, p. 9). For a codified version dated 20 January 1964, see Official Journal 1963, p. 2980.
      (
            3
         )	Commission Decision No 1834/81/ECSC of 3 July 1981 (Official Journal 1981, L 184, p. 7).
      (
            4
         )	Statement of Reply, p. 3.
      (
            5
         )	Decision No 24/54 of 6 May 1954 laying down, in implementation of Article 66 (1) of the Treaty, a regulation on what constitutes control of an undertaking (Official Journal, English Special Edition 1952*58, p. 16).
      (
            6
         )	Emphasis added.
      (
            7
         )	Application, p. 11.
      (
            8
         )	Statement of defence, p. 7.
      (
            9
         )	Judgment of 11 October 1984 in Case 103/83 Ulinor v Commission [1984] ECR 3483
      
      (
            10
         )	‘The Commission cannot apply the definition of a group of undertakings, laid down by the Treaty in tbe context of the rules governing mergers and concentrations, to situations other than those referred to in Article 66 and thereby ignore the provisions of the Treaty and the case-law of the Court.’ ([1984] ECR, at p. 3486).
      (
            11
         )	Commission Decision No 1836/81/ECSC of 3 July 1981 on the obligations of distributive undertakings to publish pricelists and conditions of sale and on practices prohibited for these undertakings (Official Journal 1981, L 184, p. 13).
      (
            12
         )	Decision No 19/63 of 11 December 1963 amending Decision No 30/53 of 2 May 1953 (Official Journal, English Special Edition 1963-64, p. 65).
      (
            13
         )	‘Whereas producer undertakings are also subject to this requirement where they do not sell their products themselves but employ selling agencies to do so; whereas, if it were not so, such separation between production and distribution operations would in so far as it exists have the effect of nullifying the prohibition on discrimination by producer undertakings.’
      (
            14
         )	Case 20/59 Italy v High Authority [I960] ECR 325. at p. 336; Case 8/55 Fédération charbonnière de Belgique v High Authority [1954-56] ECR 292, ai p. 299, Casc 25/59 Netherlands v High Authority [1960] ECR 355, al p. 372.
      (
            15
         )	Commission Recommendation No 1835/81/ECSC of 3 July 1981 to the Member States on the obligation to publish pricelists and conditions of sale and on prohibited practices in the steel trade (Official Journal 1981, L 184, p. 9).
      (
            16
         )	Judgment of 28 March 1984 in Case 8/83 Bertoli v Commission [1984] ECR 1649, paragraph 12 at p. 1660.
      (
            17
         )	In Bertoli, cited above, the Court once again stated that ‘the extent of the obligation to state reasons depends on the nature of the measure in question and on the context in which it was adopted’ (paragraph 13 of the Decision). In its judgment of 11 December 1980 in Case 1252/79 Lucchini v Commission [1980] ECR 3753, the Court held more particularly: ‘The statements of the reasons on which a decision imposing a fine for infringement of the ECSC rules on minimum prices is based, although succinct, must be considered to be sufficient where the undertaking to which it is addressed has participated in the procedure whereby the decision in question was -drawn up and has been informed of the method of calculating the disputed underpricing’ (paragraph 3 of the summary; see also paragraph 14 of the Decision).