C-32/86
ECLI:EU:C:1987:71
- Súd
- Súdny dvor Európskej únie
- IČS
- 61986CC0032
- Zdroj
- eur-lex.europa.eu ↗
SISMA v COMMISSION
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 5 February 1 9 8 7 *
Mr President, and arguments until they arise in discussing Members of the Court, the submissions put forward by the applicant. In an action brought under the second paragraph of Article 36 of the ECSC There are three such submissions. I propose Treaty, the Società industrie siderurgiche to consider them in the order in which they meccaniche e affini SpA (hereinafter were presented. referred to as 'Sisma') is seeking a declaration that an individual decision of the Commission imposing on it, under Article 58 (4) of the ECSC Treaty and I — Breach of essential procedural Article 12 of Commission Decision N o requirements 234/84/ECSC, ' a fine of 85 650 ECU for exceeding its production quotas in respect of categories IV and VI during the first 1. The applicant emphasizes that the letter quarter of 1984 is void, or the amendment of notification indicates that the contested of the said decision. decision was adopted on 20 December 1985 although the copy enclosed therewith bears the date of 27 December 1985. It draws A fine of 27 850 ECU had previously been from that two conclusions: imposed on Sisma, by a decision of 18 June 1985 for exceeding its production quotas in (i) on the one hand, 'uncertainty as to respect of the same categories during the dates and time-limits, which is so often last quarter of 1983. Although that decision fatal for undertakings, should also be is not the subject of this action, it plays an fatal for the Commission'; important role in the parties' arguments and, therefore, in the resolution of the dispute. (ii) on the other hand, if the decision was actually adopted on 27 December 1985, that is to say, between the Christmas Let me also point out that the amount by and New Year holidays, 'the question which the production quota in respect of arises as to whether it was lawful for the category IV was exceeded, approximately Commission, a collective body, to 51 tonnes, is not really in dispute and is abandon the exercise of one of its referred to only incidentally in so far as powers, if in fact it did so, by delegating the applicant's submissions concern the it to third parties.' contested decision as a whole.
That line of argument cannot be accepted. Having made those general remarks I shall defer any further consideration of the facts It is clear first from the documents on the * Translated from the French. file and, in particular, from an extract from 1 — Commission Decision' N o 234/84/ECSC of 31 January the Official Journal, 2 that the contested 1984 on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (OJ 1984, L 29, p. 1). 2 — O J C 347, 31.12.1985, p. 1.
OPINION OF MR MISCHO — CASE 32/86
decision was actually adopted on 20 Treaty, an individual decision takes effect December 1985. only upon being notified. The period of time allowed for commencing proceedings only begins to run from 'the day following Even if it had been adopted on 27 the receipt by the person concerned of noti- December, that is to say, if the written fication of the measure' (Article 81 (1) of procedure had been completed on that day, the Rules of Procedure of the Court). it would be difficult for the applicant to establish that during the entire period in which the written procedure was being However, in this case, the decision was not carried out, the Members of the sent until 2 January 1986 and the Commission did not have an opportunity of Commission has made no suggestion that examining the proposal and, if necessary, Sisma's action is out of time. putting forward objections in regard to it. During the oral procedure, the applicant 3 also claimed that the 'sanction procedures' In the judgment of 28 May 1984, relied on approved by the Commission on 5 by the applicant, the question was whether September 1984 (Doc. SEC(84) 1365) did
the Commission, as a collective body, was not permit the latter to adopt by an accel- still entitled to impose a fine in regard to erated and simplified written procedure prices on the basis of Article 64 of the decisions fixing fines for quota ECSC Treaty after it had delegated its infringements. powers in that regard, subject to certain conditions and limits, to the Member responsible for such matters. The Court did It is plain that the part of that decision indeed expressly decide that the relevant dealing with sanctions in the context of the rules on the delegation of authority did quota system is badly drafted and not involve any abandonment by the ambiguous. Commission of its collective powers.
However, it did not cast doubt on those rules themselves. In its judgment of 23 In Part 1, which specifies the infringements September 1986 in Case 5/85 AKZO v which may be sanctioned by the accelerated Commission [1986] ECR 2585), it even and simplied procedure, the decision does expressly decided that such rules on the not mention the exceeding of quotas as such delegation of authority were compatible but merely cites very specific cases, namely with the principle of collective responsibility. a refusal to submit to investigations, false A fortiori, there can be no objection to rules declarations, absence of technical and which provide for the participation of all the accounting documents which are required to Members of the Commission in the be kept and refusal to communicate those adoption of a decision, albeit in the context documents. of an accelerated and simplified written
procedure. On the other hand, however, point 2 (b) of the same section fixes the rate (per tonne) of the fine for exceeding quotas by referring In the second place, the aforementioned to the articles of the five successive discrepancy in the dates in no way adversely Commission decisions providing for such affected the applicant. Under the second fines. They include Article 12 of Decision paragraph of Article 15 of the ECSC No 234/84/ECSC which is, along with Article 58, also cited in the passage in 3 — Case S/8) Bertolt v Commiiiion [1984] ECR 1649, in particular paragraphs 24 to 26. question, the basis of the contested decision.
SISMA v COMMISSION
Finally, the actual title of the document in particularly on Article 12 of Decision No question is as follows: 234/84/ECSC, which fixes the rate of fines to be imposed. However, that article has remained t unchanged since Decision No 2760/85/ECSC merely inserted an Article 'Sanctions procedure in the context of the 14D into Decision No 234/84/ECSC. steel production quotas system and anti- crisis measures 1983/84 — Exceeding of quotas/Failure to observe minimum prices, other price rules and the system of putting 3. Finally, the applicant claims that the up security. contested decision should be declared void on the ground that the statement of the reasons on which it is based is both insuf- ficient and contradictory. Recovery of fines imposed under Articles 58 and 64 of the ECSC Treaty.' It is insufficient because it fails to indicate both the production quotas allocated and Despite the ambiguity pointed out above, it the arithmetical calculation of the excess therefore seems to be sufficiently clear that complained of. the Commission also intended to apply the accelerated and simplified procedure to decisions fixing fines for the exceeding of It must however be noted that the contested quotas. The contested decision could decision expressly refers to the letters in therefore validly be adopted on that basis. which the quotas and the excesses for the first quarter of 1984 were communicated to Sisma and it also indicates both the amount 2. The applicant also complains that in the of the excesses complained of and the rate contested decision, the Commission referred of fine applied. Furthermore, Sisma could to 'Decision No 234/84/ECSC . . . as last have obtained more precise information at amended by Commission Decision No any time during the administrative 2760/85/ECSC'< although the latter had procedure which followed the communi- not yet come into force at the time of the cation of the letter of complaint, and, in excess complained of and has absolutely particular, during the hearing which took nothing to do with that excess. place on 26 April 1985.
It seems to me to be almost otiose to point However, a statement of reasons of that out that the general practice is to indicate type has already been held to be adequate the most recent amendment of the general by the Court, in particular in the judgment decision referred to in any individual of 28 March 1984 (Bertolt, cited above, decision adopted on the basis thereof. That paragraphs 12 to 17). in no. way means that in this case the Commission applied' Decision No 2760/85/ECSC retroactively to events Furthermore, the Court generally accepts which occurred before its entry into force. that the statement of the reasons on which a The contested decision is based more decision imposing a fine is based, although succinct, must be considered to be sufficient 4 — Commission Decision No 2760/85/ECSC of 30 September if the undertaking to which it was addressed 1985 amending Decision No 234/84/ECSC (OJ 1985, L 260, p. 7). participated in the procedure whereby it was
OPINION OF MR MISCHO — CASE 32/86
drawn up and was informed of the methods exceptional orders for the export of special of calculation used.5 products to the Soviet Union.
Sisma claims that those amounts should be Sisma also alleges that the statement of increased by two other quantities also reasons is contradictory in so far as it makes intended to be delivered to the Soviet the unsupported statement that Sisma had market, namely the 1 491 tonnes mentioned exceeded its production quotas during the earlier and 1 428 tonnes corresponding to fourth quarter of 1983 and that the an orderfor special, sections. According to additional quota of 1 491 tonnes allocated the applicant, that type of product is not in a letter dated 29 December 1983, but subject to the quota system. which reached Sisma on 9 January 1984, must be included in the quota for the last quarter of 1983. As I have already indicated, the additional quota of 1 491 tonnes was indeed allocated to the applicant, but for the fourth quarter That line of argument is not borne out by of 1983. However, the Commission's the facts since a fine actually was imposed decision, contained in a letter of 29 on Sisma for exceeding its production December 1983, did not reach the applicant quotas during the fourth quarter of 1983. until 9 January 1984. The question of whether the Commission was entitled to include the additional quota The applicant alleges that for that reason it at issue in the quota for the said quarter and was entitled to 'carry over' that quota to the whether it actually did so is linked to the first quarter of 1984. substance of this case. In so far as that argument implies that the Commission was not entitled to allocate, at None of the objections as to form raised by a date so close to the end of the quarter the applicant can therefore be accepted. concerned, an additional quota for that same quarter but ought to have allocated it for the following quarter, it amounts to a II — Breach of the Treaty and of Decision challenge to the validity of the decision of No 234/84/ECSC 29 December 1983, which has become definitive because it was not contested 1. In the first place, the applicant complains within the prescribed time-limits. However, that the Commission did not take into 'it follows from settled case-law that an consideration, when calculating the excess applicant may not, in the context of an complained of all the production quotas to application for annulment directed against which it was entitled during thé period in an individual decision, raise by way of question, that is to say, the first quarter of objection of illegality other individual 1984. decisions addressed to it which have become definitive'.6
In respect of products in category VI, those It also does not appear to me to be quotas amounted to 26 563 tonnes, necessary to consider the applicant's subsequently increased by 610 tonnes argument to the effect that in regard to the allocated under Article 14C of Decision No allocation of quotas, reference must be 234/84/ECSC for the purpose of covering made to the quarter in which production S — See, for example, the judgment of 11 December 1980 in 6 — See, for example, the judgment of 10 December 1986 in Case 1252/79 Luobini v Commission [1980] ECR 3753, Case 41/85 Sideradria v Commission [1986] ECR 3917, paragraph 14. paragraphs 5 and 10.
SISMA v COMMISSION
takes place and not that in which the complaint concerning that infringement, the products are delivered (reply, p. 8). applicant expressly admitted that 'that Furthermore, Sisma has not shown that it excess production actually occurred'. It is did not actually produce the said quantity of true that in the same letter, as well as at the 1 491 tonnes during the fourth quarter of hearing on 14 December 1984, it sought to 1983, whereas in its letter of 15 September explain the infringements by saying that it 1983, it applied for that quantity in respect believed it was automatically entitled to of the fourth quarter. On the contrary, the carry over, under Article 11 (3) (d) of fact that it exceeded its production quota Decision No 2177/83/ECSC, 7 which was during that quarter tends rather to suggest in force at the time and corresponds to the that it anticipated the Commission's decision same article in Decision No 234/84/ECSC, of 29 December 1983. the quantities allocated in respect of the preceding quarter and not used up because some of its plant had been closed for
restructuring. Moreover, leaving aside the fact that Article 11 (3) (d) does not apply to such a case, it is for the Commission to expressly authorize- a carryover under that With regard to whether the applicant was provision. entitled to itself 'carry over' the quota in question to the first quarter of 1984 notwithstanding the Commission's decision of 29 December 1983, it must be noted that the various hypotheses provided for in Article 11 (3) of Decision No Let me also point out that the reference 234/84/ECSC permit only production made by the applicant in its reply (p. 7) to quotas which have not been entirely the judgment of 16 November 1983 in exhausted to be carried over. Thyssen1 is not relevant to this case.
In that case, the Court also decided that the rules in force at the material· time limited the cases in which unused production quotas could be transferred (paragraph 8). Moreover, the decisive reason why it was However, it should again be observed that prepared to reduce the fine to a symbolic during the fourth quarter of 1983, Sisma amount was that the 'delay in notifying the not only used up its production quotas, definitive quota to Thyssen prevented it including the additional quota of 1 491 from producing in the final quarter of 1980 tonnes, but even allowing for the permitted the quantity which· it was entitled to tolerance of 3%, exceeded them by 462 produce' (paragraph 21), including the 3%
tonnes. The Commission's decision of 18 tolerance margin. I also note that even the June 1985 imposing a fine on it on that fact that the latter was admittedly in an basis has become definitive since no 'exceptional situation' was not sufficient to application was made to have it declared cause the Court to declare void the void. Commission's decision imposing a fine for exceeding the quota in the following quarter, but merely justified 'a different assessment from that made by the 7 — Commission Decision No 2177/83/ECSC of 28 July 1983 on the extension of the system of monitoring and production quotas for. certain products of undertakings in Furthermore, in its reply of 18 September the steel industry (OJ 1983, L 208, p. 1). 1984 to the Commission's letter of 8 — Case 188/82 Tbyilcnv Commiuion [1983] ECR 3721.
OPINION OF MR MISCHO — CASE 32/86.
Commission as regards the gravity of the second time in calculating the excess for the infringement and the fixing of the amount first quarter of 1984. of the fine' (paragraph 22).
With regard to the quantity of 1 428 tonnes In a more recent case, Case 41/85 of special sections, the situation seems to me Sideradria v Commission,9 the Court, in the to be equally clear. exercise of its unlimited jurisdiction under the second paragraph of Article 36 of the ECSC Treaty, considered it equitable to quash a fine imposed for exceeding a Sisma never applied for an additional quota production quota during the fourth quarter for that quantity under Article 14C of of 1982 on the ground that the applicant Decision No 234/84/ECSC. In its letter of had only one month during the preceding 19 March 1984 it merely informed the quarter to use the additional quotas Commission of the order it had received allocated very late by the Commission, and expressed the view that the manufacture namely by a decision of 19 August 1982 of those special sections should fall entirely (paragraph 12). It must also be noted that outside the quota system. that decision in fact allocated a retroactive increase in the production quotas granted for the entire period from the third quarter The Commission was therefore able to limit of 1981 to the third quarter of 1982 its reply to saying, in a letter of 22 May inclusive and at the same time, limited the 1984 signed by the Director of the Steel possibility of carryover to the third quarter Directorate, which neither party regarded as of 1982. In that case also, the applicant was a decision in the correct form, that in any unable, by reason of the late communication event the 1 428 tonnes represented too small of the Commission's decision, to use all the a quantity compared to the quota allocated additional quotas allocated. to the applicant to bring Article 14C into play and, moreover, no section, however special, could fall outside the quota system altogether. On the other hand,- Sisma, as I have just pointed out, actually exceeded during the fourth quarter of 1983 the whole of its production quota and the additional quota In that regard, it is wrong to claim, as the allocated by the decision of 29 September applicant does at pp. 7 and 9 of its 1983, increased by the tolerance margin of application, that the Commission's conduct 3 % ; furthermore, as can be seen from the was inconsistent in the sense that in documents produced by the Commission at December 1983, it regarded the sections to the Court's request, the Commission also be delivered to the USSR as special took account of that additional quota in products in respect of which additional calculating the said excess which, otherwise, quotas could be granted but refused to treat would have been even larger. later exports of similar products in the same way.
In those circumstances, the Commission was in no way required to take account of the In fact, the Commission's attitude has not same additional quota of 1 491 tonnes a varied. Even in December 1983, it regarded special products as coming within the quota 9 — Judgment of 10 December 1986, [1986] ECR 3917. system; otherwise, it would not have been
SISMA v COMMISSION
able, nor would it have felt it necessary, to for the categories referred to applies grant an additional quota. In May 1984, it 'irrespective of quality or choice'. refused — even supposing that its Director's letter is to be regarded as a genuine decision, quod non — to grant such a quota On the other hand, Article 10 (2) provides because in its view, the conditions laid down that the Commission may (but is not in Article 14C had not been fulfilled. required to, as the applicant claims) allocate additional quotas which may be delivered in the common market to undertakings which seek them and fulfil the conditions therein Furthermore, I do not see how the laid down. Since Sisma has not made such applicant's cause is served by putting an application and, furthermore, does not forward such a contradiction. If it wishes to appear to fulfil those conditions, it is not in claim. that it was entitled to an additional any event entitled to such additional quotas. quota in respect of the 1 428 tonnes as it had been for the 1 491 tonnes it should have submitted an express application or at the The Commission was, therefore, not very least regarded the Commission's letter required to take account of the 1 428 tonnes of 22 May 1984 as a decision refusing such of special sections in calculating Sisma's a quota and contested it before the Court. excess of its production quotas during the However, it did neither.10 first quarter of 1984.
It is probably for that reason that the For the sake of completeness, let me say applicant, in its reply, no longer lays any once again that in its reply (p. 9), the emphasis on that alleged contradiction but applicant also complains that the takes up the argument contained in its letter Commission granted its application of 10 of 19 March 1984 to the effect that it February 1984 concerning 4 452 tonnes only should have been able to produce the 1 428 on 17 April 1984, by the allocation of a tonnes of special sections freely, outside the supplementary quota of 610 tonnes for the quota system, or at the very least have been first quarter of 1984. It seems to conclude entitled to an additional quota under Article that because of that delay, it could not 10 (2) of Decision No 234/84/ECSC (p. 9). allocate those 610 tonnes to the first quarter In its abovementioned letter of 22 May of 1984 but was legitimately entitled to use 1984, the Commission relied on that article them during the following quarter. as the principal argument for 'emphasizing that even special products manufactured by a very small number of undertakings for Leaving aside the fact that the taking into very specific purposes are. subject to the account of those 610 tonnes was raised for quota system'. the first time in the reply and that it amounts to challenging an individual decision which had already become definitive, I must admit that I find that However, on the one hand, Article 4 (1) argument somewhat puzzling. Sisma's of Decision No 234/84/ECSC expressly application expressly indicated that the provides that the production quota system delivery was intended to take place during the first quarter of 1984 and dealt with the 10 — Let me point out, incidentally, that the Commission's allocation of additional quotas for that failure to reply to an application for adjustment can be treated only as an implied decision of refusal and not as quarter. The allocation of the said quota, tacit consent to the adjustment (cf. judgment of 16 February 1984 in Case 76/83 Boil v Commission [1984] even if it was only communicated to Sisma ECR 859, paragraph 11). during the second quarter of 1984, thus
OPINION OF M R MISCHO — CASE 32/86
served in reality to cover part of the arguments advanced by Sisma in its defence production during the first quarter which in the respective cases and express a view in was to be delivered to the Soviet Union regard to each point. It does not seem to me during that same quarter. therefore that the procedure was in any way 'automatic'.
Moreover, if the 610 tonnes are to be attributed to the second quarter of 1984, the It must be noted that in the contested excess for the first quarter of 1984 will decision the Commission took account, increase accordingly. among those points, of the fact that it did not inform Sisma in time that its interpre- tation of Article 11 (3) (d) of Decision No 234/84/ECSC was wrong. For that reason, 2. The applicant's second complaint is that it reduced the rate of fine from 50% to the Commission adopted the contested 25% of the standard rate of 100 ECU per decision 'automatically* without considering tonne of excess, provided for in the first in detail the special features of the case and paragraph of Article 12 of Decision No the position of the undertaking at issue. 234/84. Furthermore, it claims that 'irregularities in the Commission's conduct' not only led to a 'state of uncertainty' but also caused the However, independently of the fact that the applicant to make errors in respect of which conditions for the application of Article sanctions should not be imposed on it. It is 11 (3) (d) were in any event not fulfilled, referring there to the fact that the the Commission was in no way obliged to Commission informed it at a very late stage do so. The article in question presupposes a that it could not carry over quantities prior authorization from the Commission pursuant to Article 11 (3) (d) of Decision for an undertaking to carry over quantities No 234/84/ECSC, which is applicable only as provided for therein and Sisma made no if production quotas have not been used by such application. reason of force majeure or of a shutdown for repairs. Furthermore, even if there was negligence on the part of the Commission, it must be It is true, as the applicant emphasizes, that emphasized 'that a wrongful act on the part the first four indents of the fourth recital in of the Commission cannot justify a breach the preamble to the contested decision are of Community law by an undertaking'11 identical word for word to those of the and that even 'a concession on the part of decision of 18 June 1985, except for the the authorities cannot make an infringement indication of the quarter to which they legitimate'.12 refer. However, there is nothing abnormal in that because they merely refer to the legal basis of the fines and the determination of In its judgment of 21 March 198513 the the rate to be applied per tonne of excess. Court expressly decided that although such 11 — See the judgment in Case 188/82 Thyssen v Commission [1983] ECR 3721, paragraph 10. On the other hand, the second and third 12 — See the judgment in Case 8/83 Btrtolii Commission [1984] ECR 1649, paragraph 21. recitals in the preamble to the two 13 — Case 66/84 Ferriere di Borgaro SpA v Commission, [1985] Commission decisions reproduce the various ECR 927.
SISMA v COMMISSION
omissions on the part of the Commission I would first reiterate that the delay in 'do not alter the fact that the quota excess communicating the Commission's decisions in question constitutes an infringement of allocating additional quotas and the time the Community rules and cannot therefore taken by the Commission to reply to the justify the annulment of the contested applicant's letter of 19 March 1984, decision, they may be grounds for reducing although regrettable, did not prevent Sisma the fine' (paragraph 22). from pursuing its activities to the extent of exceeding its production quotas, including the additional quotas themselves, both At the very most, therefore, it is for the during the fourth quarter of 1983 and the determination of the rate of fine that first quarter of 1984. account must be taken of that part of the applicant's second submission — which was indeed done, as we shall see. In particular, with regard to the quota of 1 491 tonnes allocated for the fourth quarter of 1983, it must - therefore be The substantive submissions raised by the considered that the applicant in fact applicant are not enough for the Court to anticipated the decision of 29 December declare outright that the contested decision 1983. is void.
With regard to the quantity of 1 428 tonnes, Finally, it remains for me to consider the even if the time taken to reply might appear third submission advanced in the alternative excessive, it must be noted once again that in support of a reduction of the fine, namely no specific application was made to the that the Commission failed to take account Commission. If the applicant wished to of the existence of exceptional circum- produce the said quantity of special sections stances which justified a different outside the quota system, it had to bear the assessment of the seriousness of the consequences of its error, particularly since infringement and therefore, a merely additional 'quotas had been allocated to it in symbolic fine. the past for similar products. But if it hoped to obtain such quotas, it should, if it was to be faithful to its own logic, have awaited Ill — Failure to take account of exceptional the reaction of the Commission before circumstances commencing production. However, such a reaction could hardly have been given before the end of the current quarter since Finally, the applicant claims that if its Sisma's letter informing the Commission of complaints are not sufficient to cause the the receipt of the order in question was contested decision to be declared void, they dated only 19 March 1984. should however be taken into account as factors proving the existence of exceptional circumstances justifying a merely symbolic Finally, it seems to me that the alleged delay fine. on the part of the Commission could only have been damaging to the applicant in regard to the 610 tonnes allocated for the I must therefore also consider the first quarter of 1984 itself. The application applicant's complaints from that point of was dated 10 February 1984 and sought view, which unfortunately cannot be done the allocation of additional quotas for the without a certain amount of repetition. first quarter of 1984. However, the
OPINION OF MR MISCHO — CASE 32/86
Commission's decision allocating those justified an excess only if the quota finally quotas was adopted only on 17 April 1984 allocated had been less than 610 tonnes, and thus applied retroactively to the first which could not automatically be excluded quarter of 1984. It was therefore possible if it had proved to be necessary to apply the that, while awaiting that allocation, Sisma second and third sentences of Article produced more than was finally allocated to 14C (2). it. In those circumstances, since the delays on However, the applicant did not put forward the part of the Commission, even though that argument. On the contrary, as the repeated, neither prevented the applicant Court has seen, it relied on that delay to from producing during the first quarter of claim that it could no longer attribute the 1984 the quantity in respect of which it 610 tonnes to the first quarter of 1984. could be allocated quotas nor 'made it Rather strangely, however, it adds the detail impossible for the applicant to plan its that 'the goods had already been despatched production correctly so as to avoid during the month of March' (p. 8 of the exceeding the quota allocated to it for the reply). quarter in question', u the Commission was not bound for equitable reasons to take account of them in fixing the rate of the fine. On the other hand, a simple calculation on the basis of the indications contained in Article 14C (1) and (2) should have been In the second place, in regard to the sufficient to convince it that there was no Commission's failure to give the applicant possibility of obtaining an additional quota due notice of the correct interpretation of greater than 610 tonnes. Article 11 (3) (d) of Decision No 234/84/ECSC, I would point out that it took account of that fact by reducing the By decision of 14 February 1984, the rate of fine from 50 to 25 ECU per tonne of production quota for the first quarter of excess. 1984 was initially fixed at 26 563 tonnes and the part of that quota which could be delivered in the common market was fixed What is more, it had already taken account at 23 070 tonnes. However, under the said of that same fact when fixing the fine for provisions, the additional quota cannot be the excess found to exist in respect of the greater than the difference between the fourth quarter of 1983. quantity of the orders intended for t non-member countries and the part of the However, while the Commission may have quotas which the undertaking is not auth- taken an equitable approach to that orized to deliver in the common market, infringement, nothing obliged it to show the increased by 10%. In this case, it could same clemency a second time in regard to therefore in no circumstances be greater the infringement concerning the first quarter than 610 tonnes, which corresponds to of 1984. The installations in question were the difference between the 4 452 tonnes closed from 13 August to 3 October 1983, ordered and the threshold thus fixed that is to say, during the third quarter of (3 493 + 349 = 3 842 tonnes). 1983. A carryover to the first quarter of
14 — That ground justified a reduction in the fine in the Consequently, the delay in communicating judgment of 21 March 1985 in Case 66/84 Ferriere di Borgaro SpA v Commission [198S] ECR 927, paragraphs 21 the decision of 17 April 1984 would have to 23.
SISMA v COMMISSION
1984 was therefore also impossible on that It is-true that in that case the Court reduced basis. Moreover, it was by letter of 3 the fine to take account of the fact that, on November 1983 that Sisma informed the the one hand, the applicant had offered in Commission that it was going to carry over advance to offset the excess and voluntarily certain quantities and by letter of reduced its production (paragraph 26) and, 6 February 1984 that it informed the on the other, that the Commission left the Commission that it had done so. In those applicant in doubt as to whether it accepted · circumstances, the possibility of carryover its offer (paragraph 27). was limited to the fourth quarter of 1983.
In this case, the events which occurred were The applicant also complains that the exactly the reverse. Sisma seeks to justify Commission did not take account of the exceeding its quotas for the first quarter of fact that, following the abovementioned. 1984 by the fact that it had not exhausted restructuring work, which necessitated the all the quotas allocated to it during the temporary shutdown of certain installations, successive quarters of 1983. (Far from it had been unable to use approximately 'penalizing' itself, it 'sought justice' for 8 000 tonnes of production quotas allocated itself, so to speak.) to it during 1983.
However, since the applicant's misinterpre- However, in order to take account of diffi- tation of Article 11 (3) (d) consisted culties which undertakings might face if the precisely in the belief that it could carry quarterly nature of the scheme were over quantities on the basis of that provision adhered to too rigidly, the quota system by reason of the restructuring work carried contains several express provisions out during the third quarter of 1983, the permitting a certain flexibility. reduction in the fine granted on that basis may also be regarded as covering the excep- tional circumstances resulting from that work, which explained in part why the Thus, for example, it can be seen from the applicant was unable to use during 1983 all letter of complaint concerning the excess in the production quotas which had been respect of the fourth quarter of 1983 that allocated to it. the Commission did in fact take account of certain parts of quotas carried over from the third quarter of 1983 under Article In general terms, furthermore, as the Court 11 (3) (a) of Commission Decision No emphasized in its judgment of 19 October 2177/83/ECSC of 28 July 1983 (Official 1983,15 'the quarterly nature of the quota Journal 1983, L 208, p. 1). system... is an essential element of the scheme' (paragraph 20). During that third quarter, Sisma could also have availed itself of Article 11 (4) of the The Court concluded that 'a reduction in same decision, which provides that: the production for a subsequent quarter is TJndertakings may, each' of the under-. not capable of correcting a previous irregu- takings concerned having made a prior larity' (paragraph 22). ,6 declaration to the Commission, enter into arrangements with other undertakings 15 — Case 179/82 Luabiniv Commission [19SÌ] ECR 3083. during the current quarter for the exchange 16 — See also the judgment of 14 Febniary 1984 in Case 2/83 Alftrv Commission [1984] ECR 799, paragraph 12. or sale of quotas or the parts of quotas
OPINION OF MR MISCHO — CASE 32/86
which may be delivered in the common In those circumstances, I do not consider market pertaining to that quarter'. that the Commission made a wrongful use The same possibility was available to it of its discretion in regard to fixing the fine during the first two quarters of 1983 under and in particular that it did not take Commission Decision No 1696/82/ECSC sufficient account of the exceptional of 30 June 1982 (Official Journal 1982, situation confronting the applicant. L 191, p. 1).
Conclusion
It follows from the foregoing considerations that the applicant has not succeeded in showing that the contested decision of the Commission is unlawful or, at least, inequitable. I therefore suggest that the Court dismiss the application and order the applicant to pay the costs.