C-284/82

JUDGMENT O FT H E COURT (SECOND CHAMBER) 9 F E B R U A R Y 1984 1

Acciaierie e Ferriere Busserà SpA ν Commission of the European Communities

( E C S C — Q u o t a system for steel p r o d u c t i o n — Force majeure)

Case 284/82

1. Community law — General principles — Force majeure — Concept

2. Procedure — Time-limit for instituting proceedings — Barring — Cases of force majeure — Concept — Limits (Statute of the Court of Justice of the ECSC, Art. 39, first and third paras)

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by Sergio Fabro, acting as Agent, with an address for service in Luxembourg at the office of Oreste Montalto, both members of its Legal Department, Jean Monnet Building, Kirchberg, defendant,

APPLICATION for a declaration that the individual decision of the Commission of 13 August 1982 imposing a fine on the applicant is void,

T H E C O U R T (Second Chamber)

composed of: K. Bahlmanm, President of Chamber, P. Pescatore and O. Due, Judges,

Advocate General: G. Reischl Registrar: H. A. Rühi, Principal Administrator

gives the following

the meaning of Article 58 of the ECSC examines the case without delay in the Treaty the Commission adopted general light of the objectives of the decision Decision No 2794/80/ECSC of 31 Oc­ and, where appropriate, adapts the tober 1980 (Official Journal, L 291, p. 1) provisions of the decision to the as amended by Decision No 3333/80/ particular case. ECSC (Official Journal, L 349, p. 21) establishing a system of steel production quotas for undertakings in the iron and steel industry. Article 9 of the decision provides that the Commission is to fine firms exceeding their production quota or that part thereof which under Article 7 (2) and (3) Under Articles 2 to 4 of the general may be delivered within the common decision the Commission fixes quarterly market. The fine is generally to be 75 production quotas for each undertaking European currency units [ECU] pel­ in respect of crude steel and for each of tonne of excess for ordinary steels and the four groups of rolled products, the 150 ECU per tonne of excess for special fourth of which concerns the products in steels. question in this case. The calculation of those quotas is based on the quarterly reference productions of each under­ taking. For that purpose for each month By letters dated 19 December 1980 and 6 of the relevant quarter, reference is made April 1981 the Commission informed to the same month during the period Busseni of its reference production and from July 1977 to June 1980 during production quota for the first and second which the total production of the four quarters of 1981 as a result of the groups of rolled products was the application of the abatement rates highest. The three months thus chosen, provided for in Article 5 of the general which are not necessarily consecutive, decision and amended the figures by constitute the reference period. The a letter dated 1 February 1982. The reference production figures are the decision allocating the production quota same, for crude steel and for each of the has never been challenged by Busseni four groups of rolled products, as the before the Court. production of the corresponding items during the reference period. However, in the cases provided for by Article 4 (3), (4) and (5) of the general decision the On 24 April and 18 May 1981 Busseni Commission may within certain limits asked for its quota for the first quarter of 1981 to be adjusted but never received increase the reference production and a reply from the Commission. consequently the quotas allocated to the undertakings in question.

of a hearing granted to its representatives II — W r i t t e n procedure and on 26 March 1982 Busseni did not deny conclusions exceeding the quota but disputed the extent. Following that correspondence the excess for the fourth quarter of 1981 Upon hearing the report of the Judge- was reduced from 4 576 tonnes to 3 398 Rapporteur and the views of the tonnes. Nevertheless as justification for Advocate General the Court invited the the excess Busseni cited the heavy applicant and the Commission to supply financial and social burdens which certain information which was given to forced it to maintain a production higher the Court by letters of 13 July 1983 from than that allocated by the Commission. the applicant and of 11 July 1983 from The Commission took the view that the Commission and which is reproduced Busseni's arguments were inadequate and below. by decision dated 13 August 1982 imposed on it a fine of 514 875 ECU, The Court thereupon decided to open that is, LIT 680 289 981, pursuant to the oral procedure without any Article 9 of the general decision. The preparatory inquiry. decision of 13 August 1982 was sent to Busseni from Brussels on 19 August 1982 by letter dated 17 August 1982 and the By order dated 22 June 1983 the Court acknowledgment of receipt was signed assigned the case to the Second by Busseni on 26 August 1982 in Nave Chamber. (Italy). The applicant claims in its application that the Court should :

Meanwhile Busseni had been under the 1. "Declare void the Commission Cassa Integrazione Guadagni [income decision of 13 August 1982 and as a supplement fund] pursuant to the Italian preliminary suspend the operation Law No 675 of 12 August 1977 and thereof; subjected to the system of concordato stragiudiziale [out-of-court settlement]. 2. In the alternative, reduce the fine; By order of the Tribunale [District Court], Brescia, dated 23 April 1982, the court-controlled management procedure 3. In the further alternative defer was started against Busseni. payment of the fine whatever the. outcome of the proceedings."

The Commission in the first place raises The applicants first submission is that it an objection that the action is was impossible for it to observe the inadmissible. It is of the opinion that the quotas allocated by the Commission. The applicant has not observed the period of undertaking encountered exceptional one month for bringing an action difficulties which should have led the commencing with the date of notification Commission to consider its case as soon of the individual decision in question as as possible pursuant to Article 14 of laid down in Article 39 of the Statute of general Decision No 2794/80. The the Court of Justice of the ECSC and undertaking experienced an extremely extended by 10 days in this present case serious crisis, leading in 1977 to heavy pursuant to Article 81 of the Rules of debts of approximately 19 000 million Procedure of the Court and Article 1 of lire, massive recourse to the Cassa Annex II thereto. Thus although the Integrazione Guadagni, a staff reorgani­ application should have been lodged at zation, the signature of an out-of-court the Registry before 6 October 1982 it settlement in 1978 and finally the did not arrive at the Court until 25 commencement of the court-controlled October 1982. The Commission denies management procedure under the that the applicant may rely on the fact Tribunale, Brescia. During that period that the undertaking was closed from 17 Busseni reduced its steel production from March to 13 September 1982 after being 121 804 tonnes in 1976 to 74 446 tonnes put under the Cassa Integrazione in 1981 which represents a catastrophic Guadagni pursuant to Italian Law No reduction in the quantity of steel 675/77 and that such closure constitutes produced, a situation which is corrob­ a case of force majeure within the orated by the reduction in its meaning of Article 39 of the Statute of consumption of energy. The reduction in the Court of Justice of the ECSC. The production made it impossible to meet Italian Law does not provide either for the normal commitments of production the dissolution of the company or the management or the commitments arising dismissal of its staff. On the contrary, the from the out-of-court settlement and undertaking retains its organization impossible to discharge the special intact and maintains its legal personality obligations. so that it is able to take all the legal

measures which are necessary, as is system would lose all effectiveness since proved by the declaration of the Pre- no one would observe it. fettura di Brescia from which it appears that the undertaking's management negotiated with the trade unions to fix the date for resuming work while the company was still under the Cassa As for payment of the fine the Integrazione Guadagni. Commission observes that its officers were authorized to grant considerable time for payment to undertakings which proved that they were experiencing economic difficulties. It follows that the Even if the validity of the applicant's Court cannot in any event agree to the arguments were accepted the application applicant's claims. would nevertheless have been out of time since if it were agreed that the period commenced to run on 13 September 1982 when the undertaking re-opened, The applicant contends in its reply that the application should have been lodged the objection of inadmissibility put at the latest on 23 October 1982 whereas forward by the Commission is it was not lodged until 25 October 1982. completely unfounded. Busseni was completely closed as a result of a very serious company crisis from 17 March to 13 September 1982 so that there were "unforeseeable circumstances" of "force On the substance the Commission majeure" within the meaning of Article confines itself to observing that the 39 of the Statute of the Court of Justice applicant's argument as to the existence of the ECSC, which provided sufficient of exceptional difficulties cannot exclude reason for not observing the time-limits. its liability for exceeding the production The article cited requires neither the quotas. If the Commission had auth- dissolution of the company nor the orized Busseni to exceed its quotas in the dismissal of its staff to satisfy the event of long-standing difficulties it aforesaid conditions. In this case the would have had had to do likewise with closure of the undertaking led to the a large number of other undertakings accumulation of six months' post, which which would have made the system of prevented the management from taking production quotas ineffective as a whole. cognizance of the notification of the The criterion of the exceptional nature Commission's decision for 18 days at of the economic difficulties must have a least after the re-opening of the company solid basis to be applicable in an on 13 September 1982. exceptional period.

additional days provided for by Article 1 In its rejoinder the Commission of Annex II to the Rules of Procedure, challenges the facts as presented by the on 24 October 1982. Since that day was applicant, namely that the closure of the a Sunday the period in fact expired on undertaking might be regarded as just­ 25 October 1982 when the application ification on the basis of force majeure or was lodged at the Court Registry. The unforeseeable circumstances, concepts action is therefore fully admissible from which are defined in the case-law of the the point of view of the time-limit. Court as external events independent of the will of the person owing the obligation and therefore unforeseeable as regards both their occurrence and their consequences. Although that definition covers a natural catastrophe or a strike, it cannot apply in this case since on the As to the substance, the applicant re­ one hand the event was not only fore­ asserts its argument that the exceptional seeable but requested by the applicant difficulties which it encountered and in and moreover since it is clear that all particular its insolvency justified the the company responsibilities were fully application by the Commission of Article performed, the administrators had a duty 14 of the general decision. If when the to carry on at least current management. matter was duly put to it the The Commission considers that the fact Commission did not consider it needed that the administrators did not even take to act thereunder, that constitutes an the trouble to open correspondence additional defect in the contested amounts to blatant negligence on the decision. part of the management.

IV — A n s w e r s to t h e questions 2794/80 under which the fine is to be 75 p u t by t h e C o u r t ECU per tonne of excess. It added however that in fact it ought to have The Court asked the applicant to provide applied the second paragraph of Article 9 it with the relevant documents governing since it was not a first offence since the the closure of its establishment and the excess arose in two quarters, that is to documents in relation of the out-of-court say the first and second quarters of 1981, settlement and the court-controlled so that according to its practice in the management procedure referred to in the exercise of its discretion the amount of application and any decisions of the the fine in relation to the excess for the national court following application of second quarter ought to have been that procedure and relating to the increased by 10% since the case involves management of the undertaking. The an undertaking with a negative balance. applicant placed before the Court its application of 17 April 1982 to the Tribunale Civile e Penale, Sezione Fall- V — Oral procedure imentare [Civil and Criminal District Court, Insolvency Division], Brescia, At the sitting on 22 September 1983 the pursuant to Article 187 of Royal Decree Commission of the European Communi- No 267 of 16 March 1942. ties, represented by S. Fabro, acting as Agent, presented oral argument. The Court also asked the Commission to explain the amount of the fine. The The Advocate General delivered his Commission answered that in this case it opinion at the sitting on 17 November applied Article 9 of Decision No 1983.

Admissibility

4 The Commission raises an objection that the application is inadmissible. It alleges in that respect that Busseni has not observed the period of one month from notification of the disputed decision, laid down by Article 39 of the Statute of the Court of the ECSC and extended by 10 days in the present case pursuant to Article 81 of the Rules of Procedure of the Court and Article 1 of Annex II thereto. The application which ought thus to have been made before 6 October 1982 did not in fact reach the Court until 25 October 1982.

5 Busseni on the contrary maintains that the application is fully admissible with regard to the time-limit. It was not able to make application within the pres­ cribed period because the undertaking was under the Cassa Integrazione Guadagni because, by order of the Tribunale, Brescia, of 23 April 1982 it had been placed under court-controlled management for two years with the appointment of a Commissario Giudiziale and because it had been completely closed from 17 March to 13 September 1982. In those circum­ stances the management of the company had been prevented from taking cognizance of the service of the decision at issue before a date which Busseni puts at 18 days at least after the re-opening on 13 September 1982 by reason ' of the accumulation of six months post.

6 In the applicant's view the closure represented a very serious crisis constituting unforeseeable circumstances or force majeure within the meaning of the third paragraph of Article 39 of the Statute of the Court of Justice of the ECSC and thus interrupted the running of the prescribed period.

10 The admissibility of the application thus depends solely on the question of the existence in this case of force majeure within the meaning of the third paragraph of Article 39 of the Statute of the Court of Justice of the ECSC.

1 1 It is apparent from the established case-law of the Court that apart from special cases in specific areas in which it is used, the concept of force majeure essentially covers unusual circumstances which make it impossible for the relevant action to be carried out. Even though it does not presuppose absolute impossibility it nevertheless requires abnormal difficulties, independent of the will of the person concerned and apparently inevitable even if all due care is taken.

DUSSENI ν COMMISSION

12 It must be observed that it is apparent from the file that the closure of the Busserà undertaking did not mean either the winding-up of the undertaking or the termination of the responsibility of its management for the normal conduct of business. The fact that it received the support of the Cassa Integrazione Guadagni, that it was placed by order of 23 April 1982 of the Tribunale, Brescia, under court-controlled management for two years, that a Commissario Giudiziale was appointed and that it adopted managerial measures in the interest of its re-opening sufficiently shows a considerable activity intended to secure its survival and preservation.

1 3 In consequence it must be stated that in this case there are no abnormal and inevitable difficulties or external events independent of the will of the management of the undertaking which might have justified a failure to open correspondence relating to the business of the undertaking.

1. Dismisses the application as inadmissible;

O P I N I O N O F MR REISCHL — CASE 284/82

2. Orders the applicant to pay the costs.

Bahlmann Pescatore Due

Delivered in open court in L u x e m b o u r g o n 9 February 1984.

J. A. Pompe K. Bahlmann Deputy Registrar President of the Second Chamber

1 — Translated from the German.