C-317/82
ECLI:EU:C:1983:173
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JUDGMENT OF 22. 6. 1983 — CASE 317/82
2. Article 14 of Decision 1696/82 does expression "category in question" not expressly impose an obligation on used in the aforesaid Article 14 refers the Commission to adjust reference not to all Categories la to Id but only productions of all categories la to Id to those mentioned at the beginning when the conditions in that article are of the provision, the abatement rates satisfied. That is true even though the of which are of a scale which may article provides for "suitable adjust- create exceptional difficulties for the ments to its reference production . . . undertaking. for the category in question". The
In Case 3 1 7 / 8 2
USINES GUSTAVE BOËL, a Belgian limited liability company having its registered office in Brussels,
FABRIQUE DE F E R DE MAUBEUGE, a French limited liability c o m p a n y having its registered office in Louvroil ( N o r d ) , France,
both represented b y E. G u t t of t h e Brussels Bar, with a n address for service in L u x e m b o u r g at t h e C h a m b e r s of J. Loesch, 2 R u e G o e t h e , applicants, v
COMMISSION OF T H E EUROPEAN COMMUNITIES, r e p r e s e n t e d b y its Principal Legal Adviser, D o n a l d W . Allen, a n d by its Legal Adviser, Etienne Lasnet, with an address for service in L u x e m b o u r g at t h e office of Oreste M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant,
A P P L I C A T I O N for a declaration that the Commission decision of 26 N o - vember 1982, notified b y telex message of t h e same d a y and confirmed b y letter of 3 D e c e m b e r 1982, o n a p r o c e d u r e for the application of Article 14 of Commission Decision 1 6 9 6 / 8 2 / E C S C of 30 J u n e 1982 o n t h e extension of t h e system of m o n i t o r i n g a n d production quotas for certain products of undertakings in t h e steel industry (Official J o u r n a l L 191, 1. 7. 1982, p . 1), is void,
BOĽL v COMMISSION
T H E C O U R T (Fifth C h a m b e r )
composed of: U . Everling, President of C h a m b e r , Lord M a c k e n z i e Stuart, O . D u e , Y. G a l m o t a n d C. K a k o u r i s , Judges,
Advocate G e n e r a l : S. R o z è s Registrar: J. A. P o m p e , D e p u t y Registrar
gives the following
JUDGMENT
Facts and Issues
I — S u m m a r y of t h e facts and The total reference production for Cate- written procedure gories IV, V and VI amounts to less than 100 000 tonnes and the abatement rate for one or more of these categories 1. Article 14 of Decision 1696/82/ exceeds 2 0 % . " ECSC of 30 June 1982 provides that:
"If by virtue of the scale of the abatement rates set in respect of a given 2. The applicants asked the Commission to apply that article to quarter, the quota system creates Categories la, lb, Ic and Id for the exceptional difficulties for an under- fourth quarter of 1982. More than 7 5 % taking, the Commission shall make of the products composing the total suitable adjustments to its reference reference production of products la to Id production and/or reference quantities had abatement rates in that quarter for the category in question, provided exceeding 20%. that the undertaking makes an application to this effect during the first two months of the relevant quarter in the The Commission nevertheless rejected following instances: the request in so far as it related to Category Ic "on the ground that The total reference production for Cate- products of Category Ic are not subject gories la to Id amounts to less than to an abatement rate of at least 20% for 1 000 000 tonnes a year and at least 7 5 % the current quarter". relates to products where the abatement rate for one or more of these categories In this case the abatement rate was 16% exceeds 2 0 % ; or (see Commission Decision 2585/82/
JUDGMENT OF 22. 6. 1983 — CASE 317/82
ECSC of 22. 9. 1982, Official Journal II — Conclusions of the parties L 275, 25. 9. 1982). 5. The applicants claim that the Court It is that decision of the Commission of should: 26 November 1982, notified by telex message of the same date and confirmed "Declare void the decision of the by letter of 3 December 1982 which is Commission of the European Com- the subject-matter of the applicant's munities of 26 November 1982 on a action for a declaration that it is void. procedure for the application of Article They rely on the single submission 14 of Decision 1696/82/ECSC of 30 of infringement of Article 14 of June 1982; Commission Decision 1696/82/ECSC of 30 June 1982 and Article 58 of the ECSC Treaty. Order the Commission of the European Communities to pay the costs."
The defendant contends that the Court 3. In a letter sent to the President of should: the Court and annexed to their application the applicants allege that following the Commission decision "Dismiss the application as unfounded; Fabrique de Fer de Maubeuge had to stop its production. Counsel for the Order the applicants to pay the costs." applicants therefore requested that the case be expedited pursuant to the last part of Article 55 (1) of the Rules of Procedure of the Court. III — Submissions and argu- ments of the parties during the written procedure The Commission answered the application by a defence received at the Court on 17 January 1983. 6. In the view of the applicants by refusing to adjust the reference production in respect of Category Ic In order "not to prolong the written products on the sole ground that such procedure to no purpose" the applicants products were not subject to an decided to waive their right to lodge a abatement rate of at least 2 0 % for the reply. current quarter the Commission infringed Article 14 of Decision 1696/ 82/ECSC by adding a condition which it does not contain. 4. Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General the Court decided to Application of that provision to products open the oral procedure without any in Categories la to Id is subject to three preparatory inquiry. conditions only:
(a) By virtue of the scale of the By order dated 23 February 1983 made abatement rates set in respect of a pursuant to Article 95 of the Rules of given quarter, the quota system must Procedure the Court decided to refer the create exceptional difficulties for an case to the Fifth Chamber. undertaking;
BOÜL v COMMISSION
(b) The total reference production for derogative decision, whilst the other Categories la to Id for such an principles and objectives laid down by undertaking must be less than the Treaty may be regarded as held in 1 million tonnes a year; abeyance for the limited period during which the said derogative decision remains in force".
(c) Where the total reference production for Categories la to Id is less than 1 million tonnes a year, at least 7 5 % The applicants infer that that reasoning' must relate to products where the applies not only to Article 58 of the abatement rate for one or more of ECSC Treaty but also to a measure these categories exceeds 20%. applying Article 58. The Commission has therefore infringed not only Decision 1696/82/ECSC but also Article 58 of the ECSC Treaty.
In view of the very terms of Article 14 of Decision 1696/82/ECSC of 30 June 1982 it is not necessary for the abatement rates for all categories of la to Id products to exceed 20%. Where the 8. For its part the Commission total reference production for Categories considers that the question is whether the la to Id amounts to less than 1 million expressions "suitable adjustments to its tonnes a year it is sufficient that 7 5 % reference production . . . for the category relates to products for which the in question" mentioned in Article 14 abatement rate exceeds 20%. refer to all the Categories la to Id where, of "the total reference production for Categories la to Id . . . at least 7 5 % relates to products where the abatement rate for one or more of these categories exceeds 2 0 % " or only to such of those 7. In its judgment of 18 March 1980 in categories of which the abatement rate Joined Cases 154, 205, 206, 226 to 228, exceeds 20%. In the Commission's view 263, and 264/78, 31, 39, 83 and 85/79 Article 14 allows it to adjust each [1980] ECR 907 paragraph 84 at category individually. p. 1009, the Court confirmed in respect of Article 58 of the ECSC Treaty that "as a result of the veiy nature of the exceptional measures provided for by the Treaty, which derogate in one or more Contrary to the applicant's contention, particulars from the normal working of Article 14 is not an exception to the the market and affect it more or less quota system but rather an adjustment in profoundly, such measures are circum- the event of exceptional difficulties scribed by mandatoiy conditions as to encountered by one or more under- form and substance which must be very takings and caused by the quota system strictly observed in order to ensure the itself. In the manifest and serious crisis legality of the decision, and amongst which has confronted the Community which are stated in an exhaustive manner steel industry since 1980 almost every the principles and objectives which must steel undertaking is experiencing necessarily govern the adoption of the difficulties.
JUDGMENT OF 22. 6. 1983 — CASE 317/82
The object of Article 14 is to provide when an undertaking is not even limited opportunities for adjusting quotas experiencing financial losses. when the system causes exceptional difficulties by virtue of the scale of the The Commission's argument is the only abatement rates. It is significant that the one reconcilable with the actual article begins by expressly stating: "If, by principles of Decision 1696/82/ECSC, virtue of the scale of the abatement rates that is to say with the calculation of the set in respect of a given quarter, the quotas by applying the abatement rates quota system creates exceptional by category to the reference production. difficulties . . .". Adjustments are therefore justifiable only by category when difficulties arise in that category. 9. Article 14 represents an easing of a system the very essence of which is to Moreover, to take account for each restrict production. By definition category of an abatement rate greater production must necessarily be reduced than 2 0 % ensures objective identification in proportion to the increase in the of the exceptional difficulties encoun- abatement rate. Conversely a lesser tered by an undertaking and suitable abatement rate involves a proportionately remedies (raising of the quotas). lesser reduction of production. There are therefore no exceptional difficulties caused by the quota system unless the IV — O r a l p r o c e d u r e abatement rate is raised. If the rate were low and the undertaking experienced At the sitting on 23 March 1983 the difficulties they would necessarily be applicants,·" represented b y E. Gutt of the structural and not due to the quota Brussels Bar, and the Commission, system. represented by E. Lasnet, acting as Agent, assisted by Mr Kutscher, an official of Directorate E Steel, a It would indeed be discriminatory to technical expert, presented oral argument adjust the reference production in and answered questions put by the individual cases only in order to make Court. allowance for difficulties. in other cate- gories. That might lead to arbitrary The Advocate General delivered, her allowances from one category to another opinion at the sitting on 4 May 1983.
Decision
1 By application lodged at the C o u r t Registry on 13 D e c e m b e r 1982 the limited liability c o m p a n y Usines Gustave Boël, incorporated u n d e r Belgian law, and the limited liability c o m p a n y Fabrique de Fer de M e u b e u g e , incor- p o r a t e d u n d e r French law, b r o u g h t an action u n d e r the second p a r a g r a p h of Article 33 of the E C S C T r e a t y for a declaration of the nullity of the
BOEL v COMMISSION
individual Commission decision of 26 November 1982 on a procedure for the application of Article 14 of Commission Decision 1696/82/ECSC of 30 June 1982 on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (Official Journal L 191, 1. 7. 1982, p. 1).
2 Article 14 of Decision 1696/82/ECSC provides:
"If, by virtue of the scale of the abatement rates set in respect of a given quarter, the quota system creates exceptional difficulties for an undertaking, the Commission shall make suitable adjustments to its reference production and/or reference quantities for the category in question, provided that the undertaking makes an application to this effect during the first two months of the relevant quarter in the following instances:
The total reference production for Categories la to Id amounts to less than 1 000 000 tonnes a year and at least 7 5 % relates to products where the abatement rate for one or more of these categories exceeds 20%; or
The total reference production for Categories IV, V and VI amounts to less than 100 000 tonnes and the abatement rate for one or more of these categories exceeds 2 0 % . "
3 By letters dated 6 October and 2 November 1982 the applicants asked the Commission to apply that provision to them for the fourth quartet of 1982 in respect of Categories la, lb, Ic and Id. According to the applicants the total reference production of Categories la to Id in their undertakings was less than 1 000 000 tonnes per annum and amounted for that quarter to more than 7 5 % of products the abatement rates for which exceeded 20%.
4 The Commission acceded to the request in respect of Categories la and lb the abatement rates of which were respectively 44% and 42% but did not accede to the applicants' request in respect of Categoiy Id in so far as that had a positive abatement rate. On the other hand it rejected the application in respect of Category Ic "on the ground that products of Category Ic are not subject to an abatement rate of at least 20% for the current quarter".
JUDGMENT OF 22. 6. 1983 — CASE 317/82
The abatement rate for products of Category Ic in the fourth quarter of 1982 had been fixed at only 16% by Commission Decision 2585/82/ECSC of 22 September 1982 (Official Journal L 275, 25. 9. 1982).
5 The action by the applicants therefore seeks to have the Commission decision declared void solely in respect of the refusal to adjust the reference production in respect of Category Ic products.
6 The applicants make the single submission of infringement of Article 14 of Commission Decision 1696/82/ECSC of 30 June 1982 and Article 58 of the ECSC Treaty. In their view by refusing to adjust the reference production in respect of Category Ic products on the sole ground that Category Ic products were not subject to an abatement rate of at least 20% for the current quarter the Commission added to Article 14 a condition which it does not contain. According to that article it suffices for 7 5 % of the total reference production of Categories la to Id to relate to products the abatement rates of which exceed 20% and it is not at all necessary for the abatement rates of each of the categories to exceed that threshold. In support of that submission the applicants claim that any measure applying Article 58 of the ECSC Treaty must be strictly observed since it constitutes a dero- gation from the normal working of the market.
7 That submission cannot be upheld. Article 14 of Decision 1696/82/ECSC, according to its wording, provides limited scope for adjusting the quotas solely when an undertaking experiences "exceptional difficulties" "by virtue of the scale of the abatement rates". In those circumstances the Commission is required to take into consideration the special situation in each case in order te determine whether the undertaking in question is confronted with exceptional difficulties resulting from the reductions in production imposed on it. Accordingly only difficulties which are the direct consequence of the establishment and application of the quota system may be considered when Article 14 is applied. It follows that it is only for categories the subject of a high abatement rate that an adjustment may in exceptional circumstances become necessary. Any other solution would have arbitrary results in so far
BOEL v COMMISSION
as it would allow the adjustment of reference production of categories least affected by the system of restriction of production solely in order to counteract the difficulties involved in aplying high abatement rates to other categories.
8 In this case it was possible for account to be taken of the difficulties experienced by the applicants as a result of the high abatement rates applied to Categories la and lb and not of any which they might have in respect of the relatively moderate abatement rate applied to Categoiy Ic.
9 It must further be observed that Article 14 of Decision 1696/82/ECSC does not expressly impose an obligation on the Commission to adjust reference productions of all Categories la to Id when the conditions in that article are satisfied. That is true even though the article provides for "suitable adjustments to its reference production . . . for the category in question". The expression "category in question" used in the aforesaid Article 14 refers not to all Categories la to Id but only to those mentioned at the beginning of the provision, the abatement rates of which are of a scale which may create exceptional difficulties for the undertaking.
io Finally in referring to a percentage of 20% both in the first and second indents, Article 14 of Decision 1696/82/ECSC makes it possible to determine objectively the threshold from which the quota system and in particular the fixing of abatement rates may cause for a categoiy of particular products difficulties such as may be taken into account.
1 1 As to the argument to the effect that Article 58 of the ECSC Treaty has been infringed, although it is true that any measure applying the system restricting production must be interpreted strictly, it must however be observed that the interpretation suggested by the applicants would result in unreasonably
JUDGMENT OF 22. 6. 1983 — CASE 317/82
enlarging the scope for adjusting the quota system and thus indirectly undermine the system for restricting production as a whole.
i2 It must therefore be declared that the Commission has correctly applied Article 14 of Decision 1696/82/ECSC and Article 58 of the ECSC Treaty. The application must therefore be dismissed.
Costs
u Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. Since the applicants have failed in their submission they must be ordered to pay the costs.
On those grounds,
T H E C O U R T (Fifth Chamber)
hereby:
1. Dismisses the application;
2. Orders the applicants to pay the costs.
Everling Mackenzie Stuart
Due Galmot Kakouris
Delivered in open court in Luxembourg on 22 June 1983.
For the Registrar
H. A. Rühi U. Everling Principal Administrator President of the Fifth Chamber