C-268/84

The applicant company did not contest the That decision was adopted under Article 58 existence of that excess and the Commission of the ECSC Treaty and Decision No was prepared to apply the abovementioned 1831/81/ECSC of 24 June 1981 (here- concession. The dispute between them arises inafter referred to as 'the general decision'), quite simply from a difference in their which implemented Article 58 and was assessment of the stocks of the products in amended by Decision No 533/82/ECSC. question held on 30 June 1981. Applicable with effect from 1 July 1981, that general decision, adopted for the purpose of overcoming the effects of the crisis caused 3. According to the Commission, that stock by overproduction in the steel industry, amounted to 1 273 tonnes which, when required the undertakings concerned not to deducted from the 2 218 tonnes of excess exceed, in respect of each category of deliveries, leaves a quantity of 945 tonnes in products, a certain production quota and to respect of which the contested fine, dispose of only a specified part of that calculated on the basis of 75 ECU per quota on the common market. In principle, tonne, was imposed. therefore, the delivery quota is drawn from the production quota. Ferriera Valsabbia claims that in addition to the 1 273 tonnes, it had in its warehouse on the relevant date a substantial quantity of There is an exception to that rule resulting products, including in particular 4 749 not from any legislative provision but from tonnes which were delivered outside the the practice of the Commission. The latter common market after 30 June 1981, prin- accepts that the delivery quota may excep- cipally to the Swiss undertaking Philipp tionally be exceeded in the case of stock Brothers. already held in each undertaking on 30 June 1981, the eve of the entry into force of the new rules. That 'concession' is somewhat in 4. After the presentation of the facts during the nature of a transitional measure making the written procedure and at the hearing on it possible for undertakings to avoid being 13 March 1986, a number of uncertainties * Translated from the French.

remained, concerning essentially the method admitted at the hearing, the goods in used by the Commission to arrive at the question are fungible or interchangeable. In figure of 1 273 tonnes. those circumstances, it cannot be stated that a specified and identifiable quantity of The further hearing on 23 September 1986, nearly 5 000 tonnes had, on 30 June 1981, ordered by the Court, cleared up those ceased to belong to the applicant by reason uncertainties and made it possible for the of the sale to Philipp Brothers. Moreover, dispute to be resolved. It became clear that there is no reason not to believe that the the the question of whether the invoices for goods which were the subject of that trans- the products sold to Philipp Brothers were action, delivered during the second half of definitive or pro forma invoices — I would 1981, were drawn, in whole or in part, from refer in this regard to the discussion stocks produced after that date. The contained in the Report for the Commission does not allege that the Hearing — was not as important as the applicant exceeded its production quota and parties had thought. that, it must be pointed out, renders nugatory the argument based on the fact The Commission had already stated that it that the goods were to be shipped to 'reconstituted' the stock held on 30 June non-member countries. Furthermore, it is 1981 on the basis of invoices and not of my understanding from the explanations delivery dockets. At the hearing, in the made at the hearing by the Commission's course of further explanations, it clearly representative that the country of desti- admitted that it did not contest that the nation was never taken into account in goods in question were physically part of assessing, in comparable situations, the the applicant's stocks on the abovemen- stock on hand on 30 June 1981. tioned date. It merely indicated that it had refused to take account of them on the The Commission, which, as I have following grounds: indicated, has never refused in principle to apply the aformentioned extra-statutory (i) they had already been sold to Philipp concession to Ferriera Valsabbia, cannot Brothers and no longer belonged to therefore, without infringing a rule which it Ferriera Valsabbia; itself has laid down, leave out of account the quantity of fungible goods covered by (ii) they were to be delivered to a the contract in question, notwithstanding non-member country. the fact that the contract was concluded before 30 June 1981, once it is common 5. That reasoning is unconvincing. As the ground that delivery took place after that Commission's representative in fact date.