C-78/83

JUDGMENT OF 13. 12. 1984 — CASE 78/83

in the common market. It cannot rely which it must itself bear the con- on that factor to escape the im- sequences, attempt to modify on its position of a more severe penalty on own authority the operation of the the ground that it exceeded its rules embodied in Decision N o aggregate production quota at the 1831/81. If the application of those same time. rules places the undertaking at a disadvantage, the latter cannot be 3. An undertaking cannot, in order to remedied by failing to comply with neutralize the consequences of a the rules relating to the fixing of technical breakdown in respect of quotas.

In Case 7 8 / 8 3

U N I O N SIDÉRURGIQUE DU N O R D ET DE L ' E S T DE LA FRANCE " U S I N O R " , a c o m p a n y w h o s e registered office is at P u t e a u x ( H a u t s - d e - S e i n e , France), represented by L. F u n c k - B r e n t a n o , of t h e Paris Bar, with an address for service in Luxem- b o u r g at t h e C h a m b e r s of Marlyse N e u e n - K a u f fm a n , 21 R u e Philippe-II,

applicant,

v COMMISSION OF T H E EUROPEAN COMMUNITIES, r e p r e s e n t e d by F r a n k B e n y o n , a m e m b e r of its Legal D e p a r t m e n t , acting as Agent, 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 t h e Commission's Legal D e p a r t m e n t , Jean M o n n e t Building, Kirchberg,

gives the following

JUDGMENT

Facts and Issues

The facts of the case, the course of the France "Usinor" (hereinafter referred to procedure, the conclusions and the as "Usinor"), a public company with submissions and arguments of the parties limited liability whose registered office is may be summarized as follows: at Puteaux, Hauts-de-Seine, France, its production quotas and the parts of those quotas which could be delivered on the I — Facts common market in the fourth quarter of 1981.

held on 4 November 1982, the Com- of Categories lb, Id and V by 23 735, mission adopted on 24 March 1983 15 036 and 335 tonnes respectively and Decision C(83) 376/5 — concerning a had exceeded the parts of such fine imposed on Usinor, Paris, under production quotas which could be Article 58 of the ECSC Treaty — which delivered on the common market in was notified to Usinor by letter of respect of Categories lb, Ic, Id and V by 30 March 1983 and was received by it 30 912, 12 168, 18 759 and 3 767 tonnes on 5 April 1983. respectively; (3) the excess production and excess deliveries accounted for more than 10% of the quotas or the parts That decision is based in particular on thereof which could be delivered on the Article 12 of Decision No 1831/81, as common market, except for excess amended for the third time by Decision production and excess deliveries in N o 533/82/ECSC of 3 March 1982 respect of Categories lb and V; (4) (Official Journal 1982, L 65, p. 6). Usinor had already exceeded its production quotas during the third The first paragraph of Article 12 of quarter of 1981 and a fine had been Decision No 1831/81 provides that a imposed on it by decision of 13 August fine, generally of 75 ECU for each tonne 1982; (5) the infringements rendered in excess, is to be imposed on any under- Usinor liable to a fine, pursuant to taking exceeding its production quotas Article 58 of the ECSC Treaty, not or that part of such quotas which may be exceeding the value of the tonnages delivered on the common market. produced in disregard thereof; and (6) paragraphs 1 and 2 of Article 12 of Decision N o 1831/81 were to be applied. Paragraph 2 of the article provides that if an undertaking's production exceeds its quota by 10% or more, or if the under- In Article 2 of its decision, therefore, the taking has already exceeded its quota Commission imposed a fine on Usinor or quotas during one of the previous amounting to 6 312 236 ECU, equivalent quarters, the fine may be up to double to FF 42 388 525, which was to be paid that amount per tonne. The same rules within two months of 'the date of are to apply to any excess over the notification of the decision and was quantities which may be delivered on the subject to a surcharge of 1% per month common market. or part thereof in the event of any delay in payment after the expiry of those two months. The decision was enforceable The third paragraph of Article 12 under Article 92 of the ECSC Treaty. provides that the amount in question is to be increased by 1% for each month by which payment is delayed, with effect from- the date fixed in the decision imposing the fine. II — W r i t t e n p r o c e d u r e a n d c o n - c l u s i o n s of t h e p a r t i e s In its decision the Commission found that (1) the observations submitted by Usinor regarding the excess production On 3 May 1983 Usinor brought an and the excess deliveries were unac- action under Article 33 and the second ceptable; (2) the proceeding had made it and third paragraphs of Article 36 of the possible to establish that during the ECSC Treaty for a declaration that the fourth quarter of 1981 Usinor had Commission Decision of 24 March 1983 exceeded its production quotas in respect was void.

1. The operation of Article 2 of On 23 March 1984 Usinor informed the Commission Decision C(83) 376/5 of Court that it did not intend to raise 24 March 1983 shall be suspended any objections of illegality against the until the thirtieth day after noti- general decisions relating to the fication to the parties of the judgment allocation of quotas but intended to of the Court in Case 265/82 Usinor maintain its application in so far as it v Commission, on condition that the concerned the amount of the fine. applicant first provides a bank guarantee for the payment of the fine imposed by that decision together In the final version of its conclusions, with any default interest which may Usinor claims that the Court should: be calculated, for the purposes of this order, at 1% above the discount rate Declare void in part the Commission fixed by the Banque de France. Decision of 24 March 1983 and, more particularly, annul the supplementary fine imposed on the applicant for 2. The remainder of the application is repetition of an infringement, the fines dismissed. imposed on it for exceeding delivery quotas and the basic fines concerning 3. The costs are reserved. Categories lb (in part), Id and V;

Order the Commission to pay the costs, The written procedure in the main action including those relating to the pro- followed the normal course. ceedings concerning the application for interim measures.

On hearing the report of the Judge- For its part the Commission notified the Rapporteur and the views of the Court on 4 April 1984 that it intended to Advocate General, the Court decided to maintain the supplementary fine imposed open the oral procedure without any on the applicant for repetition of an preparatory inquiry. infringement.

Products in Category Id: Deliveries (18 759 tonnes) 1 406 925 140 692 140 693 1 688 310 Production (20% of 15 036 tonnes, i.e. 3 077 tonnes) 225 525 22 553 22 552 270 630

Products in Category V: Deliveries (3 767 tonnes) 282 525 28 252 310 777 Production (20% of 335 tonnes i.e. 67 tonnes) 5 025 502 5 527

Total in ECU 5 507 025 550 701 254 505 6 312 231 equivalent to FF (6.7153) 36 981 324 3 698 123 1 709 078 42 388 525

In t h e final version of its submissions, the (a) it is inappropriate t o impose a applicant challenges t h e contested d e - penalty for repetition of an infringe- cision essentially o n t h e following ment. T h e excess p r o d u c t i o n a n d g r o u n d s in s u p p o r t of its claim t h a t the excess deliveries in the fourth q u a r t e r C o u r t should r e d u c e the fine : of 1981 c o n c e r n categories of p r o -

USINOR / COMMISSION

The Commission considers that all the (c) The binding provisions of the applicant's submissions are unfounded. monitoring system and the system of production quotas applicable to certain products should be given a restrictive A — Supplementary fine for repetition of interpretation in accordance with the an infringement principle of proportionality and in order to ensure legal certainty for traders. The applicant contests the decision to penalize it for having exceeded its quotas In any event, there is no obligation on more than once. the part of the Commission to increase (a) The excess production and excess the fine since Article 12 provides merely deliveries in the fourth quarter of 1981 for the possibility of increasing it. as regards Categories lb, Ic, Id and V do not concern the same product as that (d) The arguments concerning the forming the subject-matter of the excess efficiency of the system which were put in the third quarter which concerns forward by the Commission in order to products in Category la. enable it to rely on the wording of the second paragraph of Article 12 are not Article 12 of Decision No 1831/81 in no persuasive. way provides that an excess in a given quarter as regards one or more products A fine of 75 ECU per tonne is a very constitutes a repetition of an infringe- severe penalty. Excess production or ment in relation to an excess in a excess deliveries are not the result of previous quarter as regards one or more deliberate planning: they are attributable products falling within a defferent to necessity, to a misinterpretation of the

relevant provisions or to a lack of contested decision was adopted, has coordination which cannot be ruled out particularly grave consequences because in large groups. it involves the application of the criterion of a repetition of an infringement Furthermore the Commission disregards throughout the entire period covered by the true state of the market when it Decision N o 1831/81. At the very least, maintains that a system restricting the the Commission should have notified all concept of repetition of an infringement undertakings before the first quarter of to cases in which quotas are exceeded 1981 of its new interpretation of the repeatedly in respect of the same product concept of repetition of an infringement. would leave large undertakings free to That interpretation cannot be applied choose which quotas for the different retroactively arid the fines accordingly categories of products they wish to imposed on the applicant (which amount exceed and enable them permanently to to 550 701 ECU) should therefore be destabilize the market in iron and steel cancelled. products. There is no demand on the market for all the products available The Commission points out that the enabling a multiple producer to exceed severe penalties provided for by the its quota at one time in respect of one second and third paragraphs of Article product and at another time in respect of 12 of Decision No 1831/81 are the only a different product. means of ensuring compliance with the quota system. (e) The Commission's interpretation leads to discrimination against multiple (a) In order to deter undertakings from producers and, more particularly, against creating by repeated and substantial integrated undertakings which comprise excess production or excess deliveries an for legal purposes a large number of imbalance between supply and demand industrial establishments under separate on the market during a period of crisis it management. It is virtually impossible for is necessary to be able to increase the such undertakings to avoid exceeding "normal" fine. The level and frequency their quotas at all as regards all cate- of excess during the period when gories of products during the same production quotas apply must be taken period. However, it is relatively simple into account when fines are set. In the for a producer manufacturing a single absence of such provisions, successive product or an undertaking comprising quota systems, which are introduced only one or a small number of factories every time for periods of limited to comply with the quotas allocated to it, duration and which regulate the market even if it manufactures products in strictly by dividing the year into quarters, several categories. are far less likely to succeed.

Those rates are well below the 100% (d) As regards the alleged legitimate limit which is permitted by Article 12 expectations of the steel undertakings, it and constitute the only "internal de- must be remembered that oral statements cisions" adopted by the Commission in by officials of the Commission and that respect. minutes drawn up by the undertakings' association are not binding on the Commission. In any event, the state- The penalties are intended to have a ments in question were allegedly made in deterrent effect. A system in which the spring of 1983 and are in no way heavier penalties are imposed only where connected with the applicant's excess the quota is exceeded repeatedly in production and excess deliveries in the respect of the same category of products fourth quarter of 1981. would not only discriminate between producers manufacturing a single product and multiple producers, but it would also create an absurd situation. Large undertakings would be free to B — Imposition of a double penalty choose which quotas for the different categories of products they wished to exceed and would thus permanently destabilize the market in iron and steel The applicant contends that the Com- products. mission unlawfully imposed a double penalty upon it for exceeding production quotas and quotas for deliveries on the common market. In its view, therefore, The contention to the effect that it is the contested decision should be declared particularly difficult for a multiple void as regards the excess over the producer to avoid exceeding its quotas at delivery quotas for Categories lb all as regards all categories of products (356 025 ECU), Id (225 525 ECU) and cannot be accepted. That view is gainsaid V (5 025 ECU). by the very conduct of the applicant.

penalizing products which form the (e) During discussions with represen- subject-matter of excess production since tatives of Eurofer (European Con- such excess was used entirely for federation of Iron and Steel Industries), deliveries on the common market. By- the Commission undertook not to penalizing the excess in both cases, the impose a double penalty. If the applicant Commission is penalizing the same tonne had entertained the slightest doubt in of products twice over. that regard, it would have acquired additional production quotas which would have enabled it to avoid being (b) The imposition of a double penalty penalized for exceeding its production under Decision No 1831/81 serves no quotas. It frustrates the legitimate purpose since the period of validity of expectations aroused in producers, in that decision has expired and the particular the members of Eurofer, by conduct of the undertakings can no the interpretation which they were given longer be influenced by it. of the system of penalties, to impose on them a double penalty which they could not foresee at the beginning of the (c) Since the rules laid down by Article fourth quarter of 1981. 58 of the ECSC Treaty constitute a derogation from the general rules, to be applied in special cases, the provisions concerning fines must be 'given a restrictive interpretation and the principle To accept the Commission's reasoning nulla poena sine lege must be applied would lead to the view that there is no particularly strictly. It is clear from the place for mutual trust and cooperation ninth recital in the preamble to Decision between the Commission and Eurofer. No 2794/80/ECSC of 31 October 1980 Relations based on mutual trust are establishing a system of steel production essential, however, if the quota system is quotas for undertakings in the coal to function properly since Eurofer serves and steel industry (Official Journal 1980, as a communication channel for the L 291, p. 1), from Article 9 of that Commission to ensure the success of the · decision and from Article 12 of Decision measures decided upon. No 1831/81, that no increase in the penalty is envisaged where both the production quota and the quota for deliveries on the common market have (f) The Commission adopted and in- been exceeded. formed traders of a course of action which it subsequently altered by taking a new approach retroactively.

USINOR / COMMISSION

JUDGMENT OF 13. 12. 1984 — CASE 78/83

part of that quota which may be statement allegedly made by an official delivered on the common market, where which is in no way binding on the its exports to non-member countries have Commission. Article 12 of Decision No fallen. Two different situations are 1831/81 provides for the imposition of a involved which do not necessarily fine in the event of any excess. coincide with one another. Where the Moreover, the concept of legitimate excess production and the excess expectation implies that individuals have deliveries coincide in a specific case, they every right to expect a favourable system may be classified as unequivocal in- under which they derive certain rights fringements liable to attract a more to be retained, if its abolition, with severe penalty. T o exceed the production immediate effect and without notice, quota at the same time as the part of the may be detrimental to their interests. In quota which may be delivered on the this case, however, the allegedly advan- common market constitutes a more tageous system from which the applicant serious infringement in respect of which claims to derive certain rights was not Article 12 provides for the imposition of introduced until after the applicant had two fines. Article 12 does not fix a exceeded its quotas and parts of quotas double fine in respect of a single in the fourth quarter of 1981. infringement.

It would be unfair to penalize an under- (e) At no time did the Commission taking which commits two infringements intend to ask Eurofer for a legal in- — excess production and excess de- terpretation of its decisions or for advice liveries — in the same manner as an regarding the imposition of fines. undertaking which commits a single infringement.

sheet). The quota system provides that general solution for undertakings which where an undertaking itself processes a were in a position similar to that of product in Category lb (coils for cold Usinor in the fourth quarter of 1981. It rolling) into products falling within therefore adopted Decision No 1619/ Category Ic, the production of coils for 83/ECSC of 8 June 1983 (Official cold rolling is not covered by the quotas Journal 1983, L 159, p. 56) which allocated to that undertaking since provides in particular that "in order to quotas were allocated to it exclusively in facilitate exchange of quotas between respect of the finished product falling undertakings it is necessaiy to establish within Category Ic. Since the applicant for transfer, quotas for products which was compelled to assign to sub-con- are not covered by the quota system tractors the quotas for Categoiy lb because their further processing has covering the galvanized sheet sub- taken place within the same under- contracted by them, the applicant did not taking". If the Commission had adopted report the coils for cold rolling which it Decision No 1619/83 sooner, the manufactured and in respect of which it applicant would have applied for the had not been allocated a quota. allocation of notional quotas for Category lb, to which it was not entitled (b) That approach is consistent with under the previous system.

The solution to the question of transfers of production (c) The applicant notified in due time which was finally adopted by the the Commission's inspectors who only Commission leads to the same result as made their position known belatedly, at the solution advocated by the applicant. a time when the applicant could no It would be quite anomalous to penalize longer obtain additional production the applicant for the excess recorded, quotas pursuant to Article 11 (4) of since the applicant was unable to avoid it Decision No 1831/81. and endeavoured to find a practical solution, in view of the absence of clear and precise legal provisions on the The difficulties which arose in the fourth matter. quarter of 1981 are attributable to the fact that the wording of Decision No 1831/81 is couched in excessively broad terms and to the Commission's failure to provide in due time, that is to say before (e) The fact that the applicant was able the expiry of the transitional period, to comply during the first quarter of information concerning the procedure 1982 with the instructions given by the which it wished to see followed. When Commission for the interpretation of the difficulties in question arose, no Decision No 1831/81 can be explained solution had yet been proposed by the by the fact that the Commission had Commission finally stated its position.

JUDGMENT OF 13. 12. 1984 — CASE 78/83

(f) None of the solutions belatedly "hypothetical" interpretation is unac- recommended by the Commission could ceptable. be adopted.

USINOR / COMMISSION

D — Excess over the quotas in respect of the applicant failed to inform the Com- Category Id mission of its position as regards monogal and merely exceeded its quotas.

The applicant contends that the excess over the quotas for Category Id consists As regards the application of Decision largely of monogal, an entirely new No 1619/83, an undertaking must product. The speed and the extent of the establish the existence of certain factors, development of that product prevented it in particular that its customers wish to from being taken into account when the purchase a product in Category Id rather reference quantities were fixed and than a product in Categories lb or Ic. rendered the excess inevitable inasmuch Moreover, any adjustment in Category as, on a market in recession, the Id involves a corresponding reduction in applicant would have been seriously at Categories Ib or Ic. fault had it failed to satisfy demand for the product. E — Excess over the quotas in respect of Category V The Commission belatedly recognized the problem raised by the transfer of demand to the new product and did not The applicant considers that Article 14 of adopt Decision No 1619/83 until it Decision No 1831/81, as amended by was too late; in that decision it Decision No 1832/81, discriminates acknowledged that the rapid growth in against some undertakings by reducing demand for that product constituted a their possibilities of applying for an radical change in the steel market, which adjustment of their reference production. caused unexpected difficulties with the It discriminates against integrated under- application of the quota system. takings whose quotas for each product are calculated on the basis of their aggregate production without taking It is contrary to the spirit and the letter account of the large number of small and of the Treaty and to Article 16 of medium-size undertakings which are Decision No 1831/81 to impose a fine under independent management even on the applicant in respect of the excess though for legal purposes they form part in question. of a single group.

days lost as a result of short-time work It was necessary to restrict the and social disputes. It did not qualify for exemptions for undertakings producing an adjustment of its references under the concrete reinforcing bars and other provisions of Article 2 (3) in conjunction merchant bars to a group of under- with those of Article 14 of Decision No takings which can be clearly dis- 1831/81. tinguished from the others both by the size of their plants and by their In view of the discriminatory nature of dependence on a limited range of those provisions, preventing the sole products. undertaking engaged in the manufacture of concrete reinforcing bars within the Contrary to the applicant's contention, Usinor group from taking advantage of its subsidiary was not faced with the possibilities of adjustment which are exceptional difficulties since its capacity available to competing undertakings utilization rate in the fourth quarter of operating under the very same con- 1981 was, more favourable than that of ditions, the Court should, in the exercise most of its competitors. of its unlimited jurisdiction, reduce the fine concerning the products in Category The applicant has not provided any jus- V, having regard to the circumstances in tification for a reduction of the fine which the quotas were exceeded. imposed in respect of the excess The Commission contends that the production and excess deliveries of objection of illegality raised against products in Category V. Article 14 of Decision No 1831/81 is inadmissible since the contested decision is not based on any aspect of that provision but is founded on Article 12. IV — O r a l P r o c e d u r e Moreover, the applicant failed to establish that the overriding principle The applicant, represented by L. Funck- embodied in Article 58 (2) to the effect Brentano, and the Commission of the that quotas must be determined on an European Communities, represented by equitable basis and the principles laid F. Benyon, presented oral argument and down in Articles 2, 3 and 4 of the Treaty answered questions put to them by the were not complied with in Decision N o Court at the sitting on 21 June 1984. 1831/81. The applicant has adduced no evidence in support of its contention that The Advocate General delivered his Decision No 1831/81 gives rise to Opinion at the sitting on 15 November discrimination. 1984.

4 It is clear from the detailed explanation of the fine, which was produced by Usinor and was not contested by the Commission, that it comprises three elements, namely the basic fines imposed where the quotas are exceeded in the various categories referred to (a distinction being drawn between the proportion of the fine imposed for excess production and the proportion imposed for excess deliveries), the supplementary fines imposed for repetition of an infringement and, finally, the supplementary fines imposed where certain quotas are exceeded by more than 10%.

5 By application lodged at the Court Registry on 10 June 1983, Usinor applied under the second paragraph of Article 39 of the ECSC Treaty and Article

JUDGMENT OF 13. 12. 1984 — CASE 78/83

83 (1) of the Rules of Procedure primarily for an order suspending the operation of the contested decision. The application was granted, subject to certain conditions by order of the President of the Court of 5 July 1983.

6 According to the final version of Usinor's submissions, following the oral procedure, the applicant challenged the contested decision on five grounds which may be summarized as follows :

(a) The supplementary penalty for repetition of an infringement has become devoid of purpose in the light of the judgment of 19 October 1983 in Case 265/82 between the same parties, in which the Court cancelled the fine imposed on Usinor for the third quarter of 1981.

USINOR / COMMISSION

8 In these proceedings Usinor put forward a number of arguments in which it sought to demonstrate that the imposition of that supplementary fine was unlawful. However, those arguments have ceased to be relevant since the Court cancelled the fine in question in its aforesaid judgment of 19 October 1983. Usinor contended that, consequently, there was no longer any basis for the imposition of a supplementary fine for repetition of an infringement.

9 However, in reply to a question put to it by the Court in that connection, the Commission refused to accept that argument. The Commission drew attention to the fact that the judgment of 19 October 1983 established that the quota for the third quarter had indeed been exceeded; the Court merely cancelled the fine in the light of the circumstances of the case.

10 That defence on the part of the Commission cannot be accepted. It is clear from the judgment of 19 October 1983 that in the Court's view only a "purely formal" infringement was committed as regards the third quarter of 1981. The Court therefore exercised its unlimited jurisdiction and cancelled the fine. It follows that, as far as the third quarter is concerned, the circums- tances in which the quota was exceeded are not sufficient to support the charge that there was a repetition of an infringement for the purposes of Article 12 of Decision No 1831/81 as regards the fourth quarter

1 1 The imposition of a supplementary fine on the applicant for repetition of an infringement which, according to the table submitted by it, amounts to 550 701 ECU, or FF 3 698 123, must therefore be declared unlawful.

15 First, it was necessary to distinguish a situation in which excess production was greater than excess deliveries on the common market (which arose in the Estel case) from the converse situation (which arose in this case where excess deliveries were greater than excess production). In the Estel case, the Court acknowledged that whilst delivery quotas were intended to ensure a balance on the domestic market, the purpose of production quotas was essentially to prevent surplus production which could be disposed of only by way of export. In this case, the excess over the delivery quotas was greater than the excess over the production quotas, which demonstrates that there was no excess as regards deliveries to non-member countries.

16 Secondly, the applicant relies on the principle of the protection of legitimate expectation on the ground that the Commission gave Eurofer (European Confederation of Iron and Steel Industries) certain assurances, which were passed on by Eurofer to its members, to the effect that the Commission intended to abandon the system of double penalties.

17 The applicant's first argument disregards the scope of the system of penalties established by the Commission pursuant to Article 12 of Decision N o 1831/81 whereby the largest excess, whatever its nature, is taken as a basis for the penalty, whilst the smallest excess is penalized by the imposition of a supplementary fine of 20%. If an undertaking such as the applicant exceeds its quota for delivery on the common market to a greater extent than its aggregate production quota, that undertaking clearly contributes towards the

20 The applicant contended that part of the excess over the quota for that category, namely a quantity of 4 034 tonnes, was attributable to the consequences of a technical fault which occurred in its galvanizing establishments. The applicant claimed that in order to satisfy its customers it was obliged to sub-contract sheet in Category lb to galvanizing undertakings and to assign production quotas in respect of Category Ic to them. Under the system established by Decision No 1831/81, as set out in detail in Ques- tionnaire No 313 which is annexed thereto, sheet which is galvanized in the same undertaking and which falls within Category Ic may be deducted from the quota allocated in respect of Category lb. The applicant therefore considered itself entitled to deduct the tonnage in question from that category since the galvanization was carried out in the above-mentioned circumstances by third parties acting on its behalf.

JUDGMENT OF 13. 12. 1984 — CASE 78/83

21 In that regard, the Commission contended in particular that the undertaking could have resolved that problem either by purchasing or by exchanging quotas in due time or by requesting permission to carry over unused quotas to the following quarter.

25 The Commission pointed out that since the applicant did not contest the amount of the parts of the quota allocated to it for the product in question it could no longer do so in these proceedings.

USINOR / COMMISSION

26 It is sufficient to state, in reply to the arguments put forward by the applicant, that the view that a desire to satisfy demand can relieve under- takings of the duty to comply with the system of rules laid down by the provisions relating to the establishment of production quotas is unacceptable in any circumstances. In that connection, it is appropriate to refer to the considerations set out in the judgment of this Court of 11 October 1984 in Case 103/83 between the same parties, in which the same question was raised.

27 Therefore this submission must also be rejected.

E x c e s s o v e r t h e q u o t a s in r e s p e c t of C a t e g o r y V

28 The applicant contended that the excess over the quotas for Category V was attributable to the operations of a small factory manufacturing a single product which, had it not been legally incorporated in the Usinor group, could have benefited from the adjustment provided for by Article 14 of Decision No 1831/81. It considered that Article 14, as amended by Decision No 1832/81, discriminated against some undertakings by reducing their possibilities of applying for an adjustment of their reference production.

33 Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, under the first subparagraph of Article 69 (3), where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part.

34 Since the applicant has been successful on one head, the parties must be ordered to bear their own costs.

On those grounds,

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

hereby:

1. Reduces the fine imposed on Union sidérurgique du Nord et de l'Est de la France "Usinor" by Commission Decision C(83) 376/5 of 24 March 1983 to 5 761 530 (five million seven hundred and sixžy-one thousand, five hundred and thirty) ECU, that is to say FF 38 690 402 (thirty-eight million six hundred and ninety thousand, four hundred and two) ;