C-41/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, M. Van Ackere, assisted by F. Benyon, a member of its Legal Department, with an address for service in Luxembourg at the office of O. Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg,

defendant,

THE PRESIDENT OF THE COURT OF THE EUROPEAN COMMUNITIES

makes the following 1 — Language of the Case: French.

ORDER OF 20. 3. 1981 — CASE 41/81 R

ORDER

I — History of the dispute information and consultation procedure for the adoption of certain decisions. Under that procedure any proposal or 1. By general Decision 2794/80/ECSC communication from the Commission of 31 October 1980 (Official Journal which might lead to decisions by the L 291, p. 1), the Commission, consider- Council is to be brought to the ing that the Community was confronted knowledge of the Hellenic Republic after with a period of manifest crisis within the meaning of Article 58 of the ECSC being transmitted to the Council. Treaty, established a system of steel Consultations are to take place if they production quotas for undertakings in are requested by the Hellenic Republic. the iron and steel industry, ending on 30 June 1981. Since the accession of the 5. Under Article 42 of general Decision Hellenic Republic it has applied that 2794/80/ECSC the Commission is to fix system to the Greek iron and steel quarterly production quotas for crude undertakings. steel and iron for the four groups of products described in the said Article II 2. The Act concerning the Conditions and further described in Annex I to the of Accession of the Hellenic Republic decision. and the Adjustments to the Treaties (Official Journal 1979, L 291, p. 17) 6. Article 4 (1) and (2) of the general provides in Article 2 thereof that "from decision lays down general rules for the date of accession, the provisions of the calculation of quarterly reference the original Treaties and the acts production figures for both rolled adopted by the institutions of the products and crude steel. Communities shall be binding on the Hellenic Republic and shall apply in that It reads as follows: State under the conditions laid down in those Treaties and in this Act". Article 9 " 1 . For each month of the relevant (1) of the Act lays down that "the quarter, reference shall be made to application of the original Treaties and the same month during the period acts adopted by the institutions shall, as from July 1977 to June 1980, during a transitional measure, be subject to the which the total production of the derogations provided for in this Act". four groups of rolled products was the highest. The three months thus 3. Part Four of the Act of Accession chosen, which will not necessarily be concerns transitional measures. Although consecutive, shall constitute the that part contains various special reference period. provisions concerning iron and steel, especially Articles 32 to 34, it contains 2. The reference production figures no transitional measure as far as Article shall be the same, for crude steel and 58 of the ECSC Treaty is concerned. for each of the other groups of rolled products, as the production of 4. The Final Act in the documents the corresponding items during the concerning the accession lays down an reference period."

Rolled products

Group I Hot-rolled wide and narrow strip 27 · 73 %

Group II Reversing mill plate and wide flats 22 · 76 %

Group III Heavy sections (sheet piling, wide flanged beams, other beams and other sections, per- manent way material) 19·59%

Group IV Light sections (coiled wire rod, concrete rein- forcing bars and other merchant bars) 27·64%

The rate of abatement for crude steel is 10. By individual decision of 3 to correspond to the average abatement February 1981 the Commission fixed the rates of the four groups of rolled applicant's production quotas for the products weighted according to the period from 1 January 1981 to 31 March reference production of each of these 1981 as follows: groups of products (Article 5 (2)).

1. Dismiss the application by the applicant seeking suspension of the operation of the individual decision; II — W r i t t e n p r o c e d u r e 2. Reserve the costs. 1. By application received at the Court Registry on 20 February 1981 the applicant brought an action for Ill — Submissions and argu- annulment of the individual decision of 3 m e n t s of t h e p a r t i e s February 1981, in reliance, first, on the inapplicability of general Decision 2794/ A — The urgency and provisional nature 80/ECSC to the iron and steel under- of the suspension sought takings in the Hellenic Republic and, secondly, both on the unlawfulness of that decision for lack of an adequate According to the applicant it will be statement of the reasons on which it is impossible for a decision on its based and on infringement of Articles 58, application to be given before the end of 74 and 14 of the Treaty. the first quarter of 1981. It consequently risks serious loss against which it has been unable to make preparation. In past 2. On 20 February 1981 the applicant, years it has not in fact had the benefit of under Article 39 of the ECSC Treaty Community protection but has been

METALLURGIKI HALYPS v COMMISSION

As regards the applicant's observation that Greek production represents a small percentage of the Community market, the Commission's answer is that it is larger than Denmark's and almost fifteen The Commission emphasizes that because the judgment of the Court in the main times larger than Ireland's. The general proceedings will not be given until after decision moreover provided an exception the period for which the individual in Article 1 (2) (a) for small undertakings decisions fixing the quotas has expired, below certain thresholds, but the this fact is insufficient to give rise to applicant's production was far above urgency; were this not so, any request those thresholds. for suspension of the operation of measures would have to be accepted on that footing. What the applicant should show is that a serious loss would be suffered if the measures sought were not granted. It has shown nothing of the kind and has merely stated that it risks serious loss through the application of Finally, the Commission considers that the decision. The suspension must in fact suspension of the operation of the be necessary to avoid serious and irre- individual decision would inevitably parable loss. The fact that the applicant nullify any later decision in the main was not prepared for the introduction proceedings confirming the contested of the production quotas does not decision. The individual decision would necessarily mean that it will suffer a thus not in fact be suspended in its serious loss as a result of those measures. operation but annulled.

B — The applicability of the general Council required by Article 58 (1) of the decision and the information ECSC Treaty was sent to the Hellenic procedure Republic on 9 October 1980 but the latter did not ask for the consultation provided for. Consequently the decision The applicant considers that the general could not be the subject of consultations decision does not constitute an act which had not been asked for. adopted by the Community institutions as enlarged by the entry of Greece because it was adopted before 1 January C — The statement of reasons on which 1981. In its view neither Article 2 nor the general decision is based Article 146 of the Act of Accession provides a legal basis justifying the applicability of general Decision 2794/ The applicant after examining the recitals 80/ECSC to Greek iron and steel under- in the preamble to the general decision takings. and the provisions of the decision states that as regards Greek undertakings it is inapplicable as to its substance, objectives The Commission on the other hand and detailed rules. Thus the facts put maintains that under Article 2 of the Act forward in the statement of reasons and of Accession the "Community patri- the special arrangement set out in Article mony", that is to say, the original 4 (3) and (4) indicate the state of affairs Treaties and the acts adopted by the in the Community before Greece joined institutions of the Communities, is it. binding on Greece from the time of its accession which took place on 1 January 1981. Article 2 does indeed provide that The Commission's answer is that a the acts adopted by the Communities statement of the reasons on which a shall apply under the conditions laid general act is based cannot take account down by the Act concerning the of the special position of each under- Conditions of Accession but the adap- taking in the iron and steel industry in tations and derogations provided for do the perspective of each Member State, not concern acts adopted under Article old or new. The interests of the iron and 58 of the ECSC Treaty. As regards adap- steel industry of the Hellenic Republic tations of the acts of the institutions, were taken into account in the these are provided for only to the extent transitional measures contained in the to which they are necessary in order to Act concerning the Conditions of bring such acts into line with the Accession but that act did not provide provisions of the Act of Accession. In for derogations as regards the possible that matter adaptations of a technical application of Article 58 of the ECSC nature are involved which do not apply Treaty. in the present case. Therefore there can be no doubt that acts adopted between 28 May 1979 and 1 January 1981 are D — Alleged infringement of Articles 58 binding on Greece. (1) and 74 of the Treaty

mereiai policy to counteract dumping. Its of the Treaty. Indeed, if Article 4 (3) of failure to do so deprives the fixing of the general decision is not applicable to quotas of any real significance and undertakings which, not being within the renders it unlawful. Community, were unable to participate in the voluntary reduction programmes The Commission recalls that it entered and Article 4 (4) is not applicable to into and negotiated arrangements with undertakings whose investments for the non-member countries which export iron same reason could not form the subject and steel products and emphasizes that of an opinion of the Commission, an assessment of the application, simul- then the general decision discriminates taneously or otherwise, of Articles 58 between this latter category of under- and 74 constitutes a difficult choice of takings and the others. policy which falls within its discretion. The Commission recalls that Greek undertakings may benefit and have in fact benefited from the adaptation E — Alleged infringement of Article 58 provided for in Articles 4 (4) and 14 of (2) of the Treaty the general decision. There is therefore no discrimination.

The applicant considers that the general decision did not comply with the considerations of equity provided for in IV — Oral procedure Article 58 (2) of the ECSC Treaty. According to that article the Commission The parties were duly given notice to shall determine the quotas "on an attend the sitting on 19 March 1981 equitable basis, taking account of the concerning the adoption of interim principles set out in Articles 2, 3, and 4" measures.

5 The Commission applied the general decision to Greek undertakings with effect from 1 January 1981. By individual decision of 3 February 1981 it fixed quotas for the applicant for the first quarter of 1981 as follows:

Quota first quarter 1981 — tonnes

Rolled products Category IV 47 119 Total I-IV 47 119

Crude steel 43 904

6 By application, registered on 20 February 1981, the applicant brought an action under Article 33 of the ECSC Treaty in substance for the annulment of the individual decision of 3 February 1981. The application is based prin- cipally on the claim, first, that the general decision which forms the basis of the contested individual decision, is not applicable to the iron and steel undertakings of the Hellenic Republic and, secondly, that it is unlawful for lack of an adequate statement of the reasons on which it is based and for infringement of Articles 14, 58 and 74 of the ECSC Treaty.

7 On 20 February 1981 the applicant, under Article 39 of the ECSC Treaty and Article 83 of the Rules of Procedure of the Court, brought an application for the suspension of the operation of the contested decision.

ORDER OF 20. 3. 1981 — COMMISSION

On those grounds

by way of an interlocutory judgment,

THE PRESIDENT OF THE COURT

hereby orders as follows :

1. The Commission shall take steps to investigate as a matter of urgency the opportunities for adaptation of the quotas allotted to the applicant for the first quarter of 1981 in the light of Article 14 or any other provision of general Decision 2794/80/ECSC and of Decision 3381/ 80/ECSC supplementing and amending it.