C-78/83

ORDER OF T H E PRESIDENT OF T H E COURT 5 J U L Y 1983 '

Union Sidérurgique du Nord et de l'Est de la France "Usinor" v Commission of the European Communities

Case 78/83 R

ECSC — Fines — Calculation — Criteria — Modification in the light of circumstances — Permissibility

Application for the adoption of interim measures — Suspension of operation — Suspension of operation of a decision imposing afine under the ECSC Treaty — Powers of the Court when considering the adoption of interim measures (ECSC Treaty, Art. 39)

In the context of its general policy Court from exercising the jurisdiction regarding fines under the ECSC Treaty reserved to it by Article 39 of the ECSC the Commission is not acting unlawfully Treaty to order the application of a in modifying that policy, in particular decision to be suspended if it considers with regard to the recovery of fines, in that circumstances so require and to the light of the circumstances which lead attach to any suspension any appropriate it to take action. conditions, regard being had to the The approach which it is thus persuaded special features of each case brought to adopt cannot, however, prevent the before it.

COMMISSION O F T H E EUROPEAN COMMUNITIES, 200 Rue de la Loi, B-1049 Brussels, represented by F. Benyon, a m e m b e r of its Legal D e p a r t m e n t , with an address for service in L u x e m b o u r g at the 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 to suspend the operation of Commission Decision C (83) 3 7 6 / 5 of 24 M a r c h 1983 concerning a fine imposed on the applicant u n d e r Article 58 of the E C S C T r e a t y ,

T H E P R E S I D E N T OF T H E C O U R T OF JUSTICE OF T H E E U R O P E A N C O M M U N I T I E S

makes the following

ORDER

By a letter dated 10 November 1981 the On 3 May 1983 the applicant brought an Commission informed the applicant of its action under Article 33 of the ECSC reference production and production Treaty claiming that the decision of 24 quotas for different types of steel March 1983 imposing the fine should be products in respect of the fourth quarter declared void. That action is pending of 1981, in addition to the proportion of before the Court. the quotas which might be delivered in the common market. By a letter and a telex message dated 26 May 1983 the applicant notified the By Decision C (83) 376/5 of 24 March Commission that it agreed to provide a 1983 the Commission stated that the bank guarantee in respect of the whole applicant had exceeded the production amount owed, whether principal or quota allocated to it for the fourth interest. quarter of 1981 in respect of products in Categories lb, Id and V by 23 735, By telex message dated 3 June 1983 the 15 036 and 335 tonnes respectively and Commission replied to that letter by had exceeded the proportion of the recalling the terms of its letter of 30 quotas which might be delivered in the March 1983 and pointing out that, in common market in respect of products in view of the fact that the applicant had Categories lb, Ic, Id and V by 30 912, already been fined for infringements of 12 168, 18 759 and 3 767 tonnes general Decision 1831/81/ECSC by respectively. By the same decision the Commission Decision C (82) 1191/8 of Commission therefore imposed a fine on 13 August 1982, it would proceed to the applicant amounting to 6 312 231 (six recover 70 % of the amount of the fine million three hundred and twelve and that it was prepared to delay thousand two hundred and thirty-one) execution in return for the provision of a European currency units or 42 388 525 bank guarantee only in respect of the (forty-two million three hundred and recovery of the balance of 30% and any eighty-eight thousand five hundred and surcharges. twenty-five) French francs. That sum was to be paid within two months of the date of the notification of the decision The Commission's decision of 13 August and was subject to a surcharge of 1% 1982, to which it referred in that telex per month or part thereof in the event of message, is the subject of an action any delay in payment. The applicant was brought by the applicant before the notified of that decision on 25 April Court on 27 September 1982 claiming 1983. that that decision should be declared void (Case 265/82), on which the Court has not yet given judgment. By a letter dated 30 March 1983 the Commission informed the applicant that, in the event of proceedings being brought before the Court in respect of II — W r i t t e n p r o c e d u r e the decision, it would proceed with recovery of 70% of the principal amount owed but would be prepared to delay By application lodged at the Court execution of the decision in respect of Registry on 10 June 1983 the applicant the remaining 30% and of any surcharge applied under the second paragraph of in respect of any delay provided that a Article 39 of the ECSC Treaty and bank guarantee was produced for Article 83 (1) of the Rules of Procedure payment of those sums. to suspend the operation of Commission

Decision C (83) 376/5/ECSC and, alter- established of substituting a guarantee natively, as appropriate, for the adoption for the payment of a fine if it is the of all necessary interim measures, such as subject or legal proceedings, the the deposit of a bank guarantee in Commission has no right to depart from respect of payment of the sum that practice "by imposing, in the recoverable. absence of a regulation, conditions which are more stringent on account of the fact that the applicant has already In its application the applicant states been fined". essentially that in order to justify its decision not to accept a suspension of the operation of its decision of 24 March Finally the applicant contends that his 1983 on the usual terms but only in application does not prejudge the respect of 30% of the fine the decision to be given in the main action Commission relies on the fact that the and that the measures requested are both applicant has previously committed a urgent and justified on factual and legal similar infringement, yet that previous grounds. infringement has not been established. In its observations lodged at the Court In fact the applicant has contested the Registry on 24 June 1983 the defendant Commission's decision of 13 August contends that the Court should dismiss 1982 imposing a fine for exceeding the the application for the adoption of quotas for the third quarter of 1981 and interim measures and that it should the Court has not yet given judgment in reserve the costs. the action. The Commission cannot, in order to show that the applicant has already committed a similar in- In support of its conclusions the fringement, rely on an alleged in- defendant refers to its policy with regard fringement which has been contested by to the recovery of fines and the reasons the applicant and on which the Court which led it to adopt specific rules for has not yet given judgment. the recovery of fines in the steel sector in the case of undertakings previously fined. Furthermore the applicant contends that the individual decision which is the subject of its action of 3 May 1983 for a The defendant states in essence that the declaration of nullity and of the present applicant was not entitled to a application for the adoption of an postponement of the recovery of the fine interim measure is wrong to describe the since the Commission has the power to alleged infringement in respect of the modify its policy according to which a fourth quarter of 1981, for the purpose suspension is granted in the event of of fixing the fine, as the repetition of an legal proceedings before the Court infringement because the excess provided that a bank guarantee is production of which it has been accused furnished in respect of the payment of relates to categories of products other the fine if it remains due and interest than those in respect of which it was thereon. fined by the decision of 13 August 1982 for exceeding the quota for the third The defendant contends, moreover, that quarter of 1981. since the application for the adoption of interim measures is based on the inter- The applicant goes on to object that, in pretation of the concept of a repetition view of the practice which has become of the infringement, it has the same

.3 The Commission is opposed to that request inasmuch as it is prepared to consent only to a suspension of the application of the decision in dispute in the main proceedings in respect of 30% of the amount of the fine imposed, together with any surcharge, and subject to production of a bank guarantee.

4 The Commission points out that although it has departed from its previous attitude, which was to accept, as a rule, a suspension of the immediate

ORDER OF 5. 7. 1983 — CASE 78/83 R

operation of a decision imposing a fine for exceeding quotas in the event of Court proceedings, subject to the provision of a bond, the reason for that departure was that it considered that in cases in which the same undertaking had already been fined once it was appropriate not only to increase the fines as provided in Article 12 of general Decision 1831/81/ECSC of 24 June 1981, but also to assert itself more strictly as regards the suspension of the operation thereof pending the judgment of the Court on applications against decisions imposing fines after penalties had already been imposed in respect of an earlier infringement. It adds that it embarked on that new policy in the light of the constant deterioration of the position on the steel market.

USINOR v COMMISSION

s In this case it appears that the dispute before the Court concerning quotas alleged to have been exceeded during the third quarter of 1981 involves the resolution of sensitive and complicated problems. In those circumstances the damage inflicted on the applicant in requiring it to pay what is a considerable sum, even for an undertaking of its size, before the Court has established the existence of a first infringement would be disproportionate in comparison with the Commission's interest, even though a legitimate one, in reinforcing the deterrent effect of its decision by the immediate recovery of 70% of the fine.

9 It is therefore appropriate to suspend the application of the contested decision (fourth quarter) at least until the Court has delivered judgment on the action relating to the alleged excess in respect of the third quarter.

io It will be for the parties, once the Court has delivered judgment in Case 265/82 concerning an application for a declaration of the nullity of Commission Decision C(82) 1191/8 of 13 August 1982, to draw the necessary conclusions from that judgment with regard to the recovery of the fine to which this order relates and, if appropriate, to apply to the Court for the adoption of interim measures.

On those grounds,

T H E PRESIDENT,

3. The costs are reserved.

Luxembourg, 5 July 1983.

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President