C-76/83

1. An applicant may not, in an quotas allocated to particular under­ application for a declaration that an takings only in exceptional cases, and individual decision is void, raise an for such an adjustment a positive objection of illegality relating to decision granting supplementary another individual decision addressed quotas is indispensable. The Com­ to him which has become final. mission's failure to reply to a request for adjustment can therefore be 2. The system of restrictions on the treated only as an implied decision of production of steel undertakings refusal and not as tacit consent to an allows of adjustments to individual adjustment.

In Case 76/83

USINES GUSTAVE BOËL, a limited liability company incorporated under Belgian law, having its registered office in Brussels,

and, in so far as is necessary,

FABRIQUE DE FER DE MAUBEUGE, a limited liability company incorporated under French law, having its registered office in Louvroil (Nord), France, 1 — Language of the Case: French.

JUDGMENT OF 16. 2. 1984 — CASE 76/83

gives the following

JUDGMENT

Facts and Issues

I — Summary of the facts and of ECSC of 24 June 1981 establishing for the written procedure undertakings in the iron and steel industry a monitoring system and a new In accordance with Articles 5 and 9 (2) system of production quotas in respect of of Commission Decision No 1831/81/ certain products (Official Journal, L 180,

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1. 7. 1981, p. 1), the Commission wrote ing its quotas. It is the annulment of that to Usines G. Boël SA (hereinafter decision that Boël seeks in this action referred to as "Boel"), La Louvière, dated 29 April 1983 and received at the informing that "undertaking" or "group Court Registry on the same day. of undertakings" of the production quotas and the parts of those quotas that could be delivered in the common The written procedure followed the market for the third quarter of 1981 normal course. (letter of 29 July 1981) and for the fourth quarter of 1981 (letter of 4 November 1981). Upon hearing the report of the Judge- Rapporteur and the views of the Advocate General, the Court decided to The production quotas for Category la open the oral procedure without holding products were adjusted and increased by a preparatory inquiry. decisions of the Commission pursuant to Article 10 of Decision N o 1831/81/ ECSC for the third quarter of 1981 By order of 19 October 1983, pursuant (letter of 11. 2. 1982) and for the fourth to Article 95 of the Rules of Procedure, quarter of 1981 (letter of 11. 3. 1982). the Court assigned the case to the First Chamber.

The Commission contends that the Court In their reply the applicants take the view should: that in an action for a declaration that an individual decision is void they may Dismiss the action as inadmissible; assert that certain provisions of general decisions are illegal where the contested decision constitutes the implementation In the alternative, dismiss it as un- of those provisions and provided that the founded; individual decision is based on the rules alleged to be illegal (judgment of 28. 10. 1981, Joined Cases 215/80 and 24/81 Order the applicants to pay the costs. Krupp [1981] ECR 2489, at paragraph 32 of the decision). The decision of 24 March 1983 imposing a fine on the applicants was based on those articles of III — Submissions and argu- Decision No 1831/81/ECSC which are m e n t s of t h e p a r t i e s in t h e contested in the action. course of the written procedure The applicants claim that in this action they may also assert that the decisions by A — Admissibility which the Commission notified to them the production quotas for the third and fourth quarters of 1981 were illegal. The In support of their action challenging the measure in question is not an individual decision of 24 March 1983 the applicants decision but the notification to each make nine submissions. The Commission undertaking or group, to the extent that considers that the first seven submissions it is concerned, of a general quarterly are inadmissible. decision. Moreover the applicants ap- plied to the Commission for adjustment of the quotas for the third and fourth 1. Admissibility of the first, third, fourth, quarters of 1981 as soon as those quotas fifth and sixth submissions were notified to them. Having made requests for increased quotas, to which the Commission had to reply, the The Commission considers that those applicants were obliged in their turn to submissions call into question decisions wait for the reply. which imposed production quotas on the applicants for the third and fourth quarters of 1981 or whereby adjustments to the applicants' production quotas were In view of the necessities of economic either made or refused pursuant to life and of the fact that the Commission Article 14 of the general decision. It was expressly asked to state its position argues that the applicants should have immediately on receiving the request for

In its rejoinder the Commission argues that the case-law stemming in particular Finally, with reference to the concept of from the Krupp case referred to above is a legal interest in bringing proceedings, not applicable to the present case. It is the Commission notes that the applicants only with reference to individual at their own risk took the initiative of decisions either allocating the "initial" adjusting their own quotas pursuant to quarterly quotas or adjusting those Article 14 and they draw the conclusion quotas pursuant to Article 14 of the that they no longer have a legal interest general decision that the applicants may, in challenging the legality of the Com­ by raising an objection of illegality, mission decisions notifying them of the question a provision of the general production quotas or granting an decision, to the extent that there is a increase in some of the quotas. direct connection between the individual decision and the provision of the general decision which is contested. In the present case most of the submissions made in support of the application for a declaration that the decision imposing a 2. Admissibility of the second and fine for production in excess of quotas seventh submissions was void challenge the previous stage, that is, the setting or adjustment of the quotas. The impugned decision, in so fai­ as it imposes a fine, is based solely on Article 12 of the general decision and for In the Commission's view the submissions that reason the applicant may, in support or parts of the second and seventh of its application for annulment, raise an submissions which allege that the objection of illegality with regard only to Commission failed to reply to certain that Article 12. aspects of the applicants' requests for

The applicants consider that the The fine was imposed on "Usines individual decision of 22 March 1982, Gustave Boël at La Louvière" and which concerned only Category Ia and covered excess production in Category Ic Ib products in the third quarter of 1981, in particular. Products in that category in fact contained no reply to their are the responsibility of "Fabrique de fer request for the increase of their de Maubeuge at Louvroil" (hereinafter production quotas for Category Ic referred to as "FFM"), a quite distinct products for the third quarter of 1981 company incorporated under French law, and of their production quotas for with a quotation on the Lille stock Category Ia, Ib, Ic and Id products for exchange. The Commission was aware of the fourth quarter of 1981. that distinction. In failing to take the

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distinction into account it disregarded recognized in Community law, the fact the provisions and legal principles remains that a sanction, which may entail referred to in the submission, and its measures of enforcement, may be decision was therefore void. imposed only on legal entities recognized by the applicable national law, that is, on one or more specific legal or natural persons with regard to whom the The Commission considers that the sanction is justified. provision in issue is not Article 12 but Article 2 (4) of Decision No 1831/81/ ECSC. That provision is the legal basis for the Commission's allocation of The Court cannot accept that the quotas to "groups of undertakings", in Commission thus impose a sanction on this case the Boël group. Boël alone, which has no legal means of passing on all or part of the burden to another company in the group.

JUDGMENT OF 16. 2. 1984 — CASE 76/83

Human Rights and Fundamental Free- European Convention on Human Rights doms, according to which the reasons on (judgment of 12. 10. 1980, Joined Cases which a decision is based must be stated, 209 to 215 and 218/78 Van Landewyck and breach of Articles 5, 15, 33 and 36 ν Commission [1980] ECR 3125, of the ECSC Treaty): according to the paragraph 81 of the decision). applicants, certain arguments put by them to the Commission were not considered or refuted.

The Commission considers that as In their reply the applicants deny regards the adjustment of the quotas it knowing that the Commission was not simply applied Article 14 of Decision N o obliged to reply to their requests, which 1831/81/ECSC. It took the view that allegedly did not fulfil the conditions laid the conditions for the adjustment of down by Article 14 of Decision N o the quotas were not fulfilled when the 1831/81/ECSC. Furthermore, while it abatement rate for each category and may perhaps be accepted that the subcategory of products for a given Commission is not required to refer to quarter did not exceed 2 0 % ; the each point of fact and of law raised by applicants were aware of that. each person concerned in the course of the administrative procedure leading to a general decision, that is not true in the case of an individual decision adopted after a special procedure and dealing The Commission points out, moreover, with a specific, concrete case. The that it cannot be classed as a "tribunal" Commission must furnish the under­ within the meaning of Article 6 of the taking with the means of ascertaining on

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what grounds its remarks have not been the Treaty, on the basis of studies carried accepted. out in conjunction with the undertakings and after consulting the undertakings. Furthermore it did not freeze the situation and "extend to Category Ic In its rejoinder the Commission maintains products the quota system as previously that the question of the adjustments of structured . . . " . Finally, the reference quotas tends to be a matter of practice period was laid down on the basis of the and of administration, particularly in references of the group as defined cases where it considers that a request pursuant to Article 2 (4) of Decision No for adjustment cannot be met. Failure to 1831/81/ECSC. reply amounts to an implied decision rejecting the request.

The Commission gave as grounds for its decision fixing the quotas the fact that Fourth submission (breach of the general the reference period chosen pursuant to legal principle which prohibits discrimi­ Decision N o 2794/80/ECSC could not nation, of Article 58 of the ECSC Treaty be changed. But that decision did not and Articles 6, 7 and 8 of Decision apply to Categoiy Ic products, which No 1831/81/ECSC): according to the were not brought under the quota system applicants, the criterion used by the until the following year. Before applying Commission in determining reference the quota system to those products by productions altered their traditional its Decision No 1831/81/ECSC, the share of steel production, in contrast Commission should therefore have with the case of competing undertakings, consulted the undertakings concerned some of whom were not even able to use with regard to the retention or alteration up their whole production quotas for of the reference period. Categoiy Ic products.

The Commission emphasizes that even if The applicants therefore challenge the it is possible to rely on the "rights of the criterion used by the Commission in defence" with reference to the determining reference productions. Ac­ preparation of legislation, its decision cording to the case-law of the Court, was made in accordance with the reference production should be based on conditions set out in Article 58 (2) of the actual production of undertakings

JUDGMENT OF 16. 2. 1984 — CASE 76/83

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and that the two applicants had to also cover production for export and by suspend their activities temporarily after establishing a system of delivery quotas, the introduction of the quota system. the Commission exceeded the powers conferred on it; the procedure under Article 95 of the ECSC Treaty should have been used. The Commission points out that the question of the conditions of application of Article 14 of Decision N o 1831/81/ ECSC was the subject-matter of Case In adopting Decision No 1831/81/ 317/82, also between the applicants and ECSC the Commission indirectly re­ the Commission. As point 7 of the ex­ stricted exports; that was contrary to the planatory notes in the preamble to division of powers established by the .Decision No 1831/81/ECSC shows, ECSC Treaty, Article 73 of which Article 14 was revised in particular to provides that the regulation of external take account of medium-sized under­ trade is a matter for the Member States. takings, such as the applicants, which The Commission has the power only to may be "especially threatened with high fix quotas for the level of sales expected abatement rates". There can therefore be on the common market, that is, for no question of discrimination against the foreseeable Community demand, de­ applicants. ducting from actual production the quantities which are proved to have been exported to non-member countries. In their reply the applicants argue that Case 317/82 concerned only Article 14 of Decision No 1696/82/ECSC, which differs in wording from Article 14 of Furthermore, Article 58 of the ECSC Decision No 1831/81/ECSC. Moreover Treaty provides only for the fixing of it is contradictory to argue that Article production quotas, not of delivery 14 of Decision No 1831/81/ECSC was quotas. In adopting rules regarding the adopted in order to take account of part of production quotas which may be medium-sized undertakings when it is delivered on the common market, the more restrictive than the article it Commission therefore again exceeded replaced. the limits of its powers.

Seventh submission (breach of the general The Commission argues that the legal principle of the rights of the conditions of application of Article 14 defence, of the general legal principle were not met, as the applicants were well which requires the Commission to take a aware. For the rest it refers to its decision on each aspect of an application submissions in Case 317/82. submitted to it, of Article 58 of the ECSC Treaty and of Articles 12 and 14 of Decision No 1831/81/ECSC): the applicants argue that in not acceding to the request for appropriate adjustment of Eighth submission (breach of the general the reference for the third quarter of legal principle of the protection of 1981, in so far as the request related to legitimate expectations): the applicants Category Ic products, on the sole ground argue that the Commission did not reply that Category Ic products were not to a letter of 28 October 1981 which subject to an abatement rate of at least Boël concluded with the statement that 20% for that quarter, the Commission "unless the Commission indicated added a condition which was not otherwise", Boël would consider that included in Article 14 of Decision No the Commission had agreed to the 1831/81/ECSC of 24 June 1981, and production quotas which Boël had thus infringed the provision it purported proposed and the applicants were thus to apply. legitimately entitled to conclude that the Commission had approved the proposed quotas.

The applicants point out that the reasons The applicants argue, in their reply, that given by the Commission for the amount it is incorrect to maintain that silence on of the fine included the following: the part of the administration must in all cases be considered equivalent to rejection. The general legal principle recognized by the Member States of the "In the case of undertakings operating at "autonomie de la volonté" (power to a profit the fine should be increased by enter into obligations by expressions of 25%, that is, to 93.75 ECU per tonne in will) applies also in Community law. The excess, if the undertaking has already clause "unless the Commission indicates exceeded its quota or quotas in a otherwise" made it impossible for the previous quarter or if the excess is 10% Commission to remain silent if it or more; disagreed.

quarters, the fine may be up to double The applicant is complaining, in effect, that amount per tonne. . . ." that it was fined only 112.50 ECU for each tonne in excess of the quota instead of 150 ECU per tonne. Having chosen those criteria, the Commission may not, after the event, apply other factors for fixing the fine as it did in the present case by taking into account inter alia the fact that the under- In any event, variation of the amount of taking, operates at a profit. By sub- the fine according to whether the under- sequently amending the criteria laid taking's balance-sheet is positive or down by Decision No 1831/81/ECSC, negative corresponds to treating dif- without consulting the Consultative ferently situations which are not compar- Committee or obtaining the assent of the able. The notion is simple enough in Council, the Commission infringed the itself not to require any substantial provisions and principles referred to in statement of reasons. It is justified by the the submission." reasons set out by the Court in its judgment of 18 March 1980 (Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Ferriera Moreover the Commission was guilty of Valsabbia SpA [1980] ECR 907, discrimination by increasing the fine on paragraphs 157 to 159 of the decision). the ground that the undertaking operates That judgment shows how such a at a profit without taking into account distinction between undertakings ac- the fact that it receives no special aid. cording to their financial state with a view to adjusting the amount of the fine to the particular circumstances is based Furthermore the statement of the reasons on the principle of solidarity. on which the decision was based was inadequate.

Decision

1 By an application lodged at the Court Registry on 29 April 1983, Usines Gustave Boël, a limited liability company incorporated under Belgian law, and Fabrique de fer de Maubeuge, a limited liability company incorporated under French law, brought an action pursuant to the second paragraph of Article 33 and the second paragraph of Article 36 of the ECSC Treaty for a declaration that the Commission decision of 24 March 1983, notified on 30 March 1983 to the undertaking Usines Gustave Boël SA, La Louvière, Belgium, imposing a fine of 111 024 570 Belgian francs on that undertaking pursuant to Article 58 of the ECSC Treaty was void, and in the alternative, for the reduction of the amount of the fine.

2 Article 1 of the contested decision states that "the Boël undertaking" has infringed the quota system established by Commission Decision No 1831/ 81/ECSC of 24 June 1981 (Official Journal, L 180, p. 1) by exceeding the production quota for Category Ic products by 1 007 tonnes and exceeding the part of that quota which may be delivered on the common market by 3 878 tonnes in the third quarter 1981, and by exceeding the production quota for Category Ic products by 12 943 tonnes and exceeding the parts of the quotas for Categoiy Ia and Ic products which may be delivered on the common market by 161 and 14 921 tonnes respectively in the fourth quarter of 1981.

3 In their first, third, fourth, fifth, sixth and seventh submissions the applicants contest the Commission decisions whereby their quotas were fixed or adjustments to the quotas were refused, and challenge the legality of the general decisions on which the individual decisions were based. In the first submission the applicants object that the Commission dealt with Fabrique de fer de Maubeuge SA and Usines Gustave Boël SA together, although the two companies are distinct. In the third submission the applicants challenge the

6 The applicants may not rely on the argument that they had already exceeded the quotas allocated to them, in order to justify the fact that, lacking a legal interest, they did not within the prescribed period contest the individual decisions fixing their quotas or refusing to adjust them. The applicants were in no way authorized unilaterally to exceed the production quotas imposed on them by the Commission.

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7 Finally, the Court notes that it has already held in its judgment of 31 March 1965 (Case 21/64 Maccbiorlati Dalmas [1965] ECR 175) that the strict time- limit for instituting proceedings for a declaration that a provision is void is in keeping with the necessity to prevent the legality of administrative decisions being called in question indefinitely. Having regard to those considerations, the submissions referred to must be declared inadmissible in their entirety.

8 For the same reasons the second submission is inadmissible in so far as it alleges that the Commission failed to reply to certain aspects of the requests for adjustment of the applicants' quotas for the third and fourth quarters of 1981 and failed to state adequate reasons for its decision adjusting the quotas for the third quarter of 1981. It is, however, admissible in so far as it is based on the inadequacy of the statement of reasons for the decision of 24 March 1983 contested in this action.

9 It must, however, be pointed out that the great majority of the arguments to which the applicants claim the Commission did not reply concerned the fixing of the quotas and not the imposition of the fine. N o complaint may be made against the Commission for failing to reply to points extraneous to the decision in question. In regard to the other arguments, the Court considers that the Commission stated in its decision the main reasons which led it to impose a fine on the Boël group for exceeding its quotas and the second submission must therefore also be rejected.

1 3 It should be observed that the Court has already considered that it is justified to adjust the fine according to the undertaking's financial situation (judgment of 10. 3. 1980, Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Ferriera Valsabbia SpA [1980] ECR 1026). Moreover, contrary to the applicants' contention, the Consultative Committee and the Council need not be consulted where it is merely a matter of implementing detailed rules for the application of Article 12 of Decision N o 1831/81/ECSC in the exercise of the discretion which that article leaves to the Commission. Finally, the Commission was not obliged to take account of the financial situation of Boël's subsidiaries taken individually since according to Article 2 (4) of Decision N o 1831/81/ECSC a group of undertakings which are concentrated within the meaning of Article 66 of the Treaty is to be considered as a single undertaking, even if the undertakings are located in different Member States.

14 The action must therefore be dismissed in its entirety.

Costs

15 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.

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On those grounds,

For the Registrar H. A. Rühi T. Koopmans Principal Administrator President of the First Chamber

O P I N I O N OF MRS ADVOCATE GENERAL ROZÈS DELIVERED O N 12 JANUARY 1984 1

Mr President, Maubeuge SA, Louvroil, have brought Members of the Court, proceedings in which the Court has unlimited jurisdiction under the second paragraph of Article 36 of the ECSC In an application made on 29 April 1983, Treaty against the Commission's decision Usines Gustave Boël SA, Brussels, and its of 24 March 1983, notified on 30 March French subsidiary, Fabrique de fer de to the undertaking Usines Gustave Boël I — Translated from the French.