C-100/86
ECLI:EU:C:1987:226
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- Súdny dvor Európskej únie
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- 61986CC0100
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CAUËT AND JOLIOT v COMMISSION
OPINION OF MR ADVOCATE GENERAL MISCHO delivered on 14 May 1987 *
Mr President, resold the mill to the French company Members of the Court, Sacilor for a price of FF 10 300 000.
1. The present case is the continuation of 4. Earlier, in the summer of 1985, the Case 48/86 which was an application for a applicants, relying on Article 15 (1) of declaration that the Commission decision of Decision No 234/84/ECSC, had applied to 13 January 1986 transferring Cockerill- the Commission for authorization to sell DRC's annual reference production and Cockerill-DRC SA's reference production quantities to Sacilor with effect from 1 and quantities to its Belgian parent company January 1985, on the basis of Article 15 (1) Cockerill-Sambre with effect from the of Commission Decision No 234/84/ECSC second quarter of 1985. That application of 31 January 1984, · was void. had been confirmed by the parent company.
2. Realizing that the legal basis for its A — Admissibility decision was incorrect, the Commission withdrew that decision and replaced it with a new one dated 10 March 1986, which had the same purpose but was based this time on Article 9 (4) of Decision No 234/84/ECSC. The applicants discontinued Case 48/86 and 5. 1. The Commission does not raise a brought the present action against the new formal objection of inadmissibility, but decision. expresses its regret that the applicant did not help to keep the case within reasonable bounds by continuing the litigation within Case 48/86 instead of bringing the present action, since the facts are still the same and there is no new aspect to the arguments 3. The relevant facts in the present case are adduced. essentially as follows: first, on 22 October 1985 the applicants, acting as liquidators of Cockerill-DRC SA, which had ceased all production activity at the beginning of the third quarter of 1985, sold a rolling mill to the German company Dorninger for a price 6. In this respect I would simply like to of FF 7 900 000; secondly, Dorninger remind the Court that in its order of 18 virtually immediately (on 4 November 1985) June 1986 removing Case 48/86 from the Register the Court noted that by with- "* Language of the Case: French. drawing its decision of 13 January 1986 it 1 — Commission Decision No 234/84/ECSC of 31 January was the Commission which had justified the 1984 on the extension of the system of monitoring and production quotas for certain products of undertakings in applicant in discontinuing the action. That is the steel industry (Official Journal 1984, L 29, p. 1). to say, if the applicant were obliged to
OPINION OF MR MISCHO —CASE 100/86
direct the action against the new decision of application to be brought only after the 10 March 1986 at the stage of the reply this decision which has allegedly caused the would 'mean that it was impossible for the harm has been declared void and after it has applicant to reply in writing to the defence been established that the Commission does of this decision which the Commission not intend to take the steps needed to would have put forward for the first time in redress the illegality found to exist. 3 its rejoinder' (paragraph 10 of the decision).
10. In any event, before there can be an obligation to make redress there must be The applicant cannot, therefore, be fault, which in this case can only be estab- criticized for having acted as it has. lished if the decision challenged was in fact unlawful.
7. 2. On the other hand, the Commission is justified in raising an objection of inadmissi- That issue must therefore be examined. bility with respect to the applicant's second claim, to the effect that the Court should 'order the Commission to use the powers B — The merits conferred upon it by the ECSC Treaty to take steps to ensure equitable redress for the harm resulting from the contested decision'. 11. The applicant relies on four grounds in its application for annulment. They are as follows : 8. To the extent that this application is merely a transcription of the third sentence (i) Sacilor was not, or was no longer, the of the first paragraph of Article 34 of the 'present owner' of Cockerill-DRG SA's ECSC Treaty it is superfluous. The rolling mill and the Commission had Commission's obligation to redress any therefore committed a manifest error. harm which the applicant may have suffered because of the decision in dispute is part of its more general obligation to take the (ii) Dorninger, the initial purchaser of the measures necessary to comply with a mill, was not an 'undertaking' within judgment annulling a decision. There is the meaning of the ECSC Treaty and therefore absolutely no need to stress the could not therefore acquire or transfer point. 2 the reference productions and quan- tities attached to it.
9. If the purpose of this application is to obtain immediate redress for such harm the (iii) Sacilor never used the plant for terms of Article 34 of the ECSC Treaty production but was utilizing the itself are a barrier to its admissibility, references so acquired to increase the because that article allows such an production of its other plant.
2 •— See for example the judgment of 23 February 1961 in Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v(iv) By refusing to allow the sale of the High Authority [1961] ECR 1, in particular at p. 17: 'If the Court entertains the application it may not dictate to the reference production and quantities to High Authority the decisions which should be consequent upon the judgment annulling the decision but the Court must confine itself to referring the matter back to the High 3 — Judgment of 10 June 1986 in Joined Cases 81 and 119/85 Authority". Usinorv Commission [1986] ECR 1777, at paragraph 24.
CAUËT AND JOLIOT v COMMISSION
Cockerill-Sambre the Commission of that provision. We must therefore analyse prevented the applicant from realizing what this concept covers. part of the assets of Cockerill-DRC SA and thereby caused it harm. 16. First of all, it is apparent that this would have been a case of pure and simple closure 12. The gist of all these arguments is that if the plant had been abandoned and had the Commission was wrong to apply Article gradually become unusable because of rust 9 (4) of Decision No 234/84/ECSC and and the effects of the weather. However, that Article 15 (1) of the decision was the that is not what happened. <" relevant provision.
17. Had the different components of the 13. Let us start by analysing this problem. plant been sold as spare parts or scrap metal The beginning of Article 9 (4) reads as then this too could have been regarded as a follows: 'Where a plant—a works or an permanent closure within the meaning of undertaking — undergoes a change of Article 15. That did not happen either. ownership, the new owner shall receive the plant's reference production and quantities and the relevant quotas . . . '. 18. In fact the plant was sold in its entirety to Dorninger.
14. In his order of 9 April 1986 in Case 48/86 R the President of the Court considered that under that provision the 19. It is therefore beyond dispute that from new owner of a plant automatically acquires the date of sale Cockerill-DRC SA was no the corresponding reference production and longer the owner of the plant; this is not quantities. He held that the final result of seriously disputed by Cockerill's liquidators. the successive sales of the rolling mill to Dorninger and Sacilor was that Sacilor became the owner of the mill, and 20. However, the liquidators maintain that concluded that the Commission had no alter- this is still a case of closure within the native but to transfer the reference meaning of Article 15 (1) because production and quantities to Sacilor Dorninger is not an undertaking for the (paragraphs 28 to 30). purposes of the ECSC Treaty. Thus it could acquire only the bare property in the plant, and not the relevant reference production and quantities. A fortiori it could not 15. Under Article 15 (1) 'where the under- transfer the reference production and quan- takings concerned so request in advance, the tities to Sacilor. Commission may authorize exchanges, sales or transfers of all or part of reference production or quantities if the plants corre- sponding to the reference figures to be 21. There is no provision in Decision No transferred were permanently closed or sold 234/84/ECSC from which it may be and transferred to a third country after 1 concluded that reference production and January 1980'. Mr Cauët and Mr Joliot quantities may only be transferred along consider that the present case is precisely a with the plant in cases where the plant is case of closure of plant within the meaning sold to another steel undertaking.
OPINION OF MR MISCHO —CASE 100/86
22. Article 9 (4) provides expressly that references so acquired to increase the when a plant undergoes a change of production of its other plant. ownership (impliedly, of whatever kind) the new owner receives the plant's reference production and quantities. As the Commission correctly stresses, the new 27. As the President of the Court noted in owner cannot derive any immediate his order of 9 April 1986 in Case 48/86 R advantage from it if he is not engaged in (at paragraph 31) the fact that Sacilor production with this plant. It follows indi- acquired the plant with the intention of rectly from the first subparagraph of Article dismantling it and not of using it for steel 9 (3) of Decision No 234/84/ECSC that an production 4 does not affect the question undertaking entitled to reference production whether the Commission was entitled under and quantities retains the benefit of the Article 9 (4) to adopt the contested decision. production quotas attributed to it or recovers that benefit only if it carries on or resumes production activities. 28. According to the fifth recital in the preamble to Commission Decision No 2177/83/ECSC of 28 July 1983, 5 which introduced the second subparagraph of 23. Had Dorninger decided to engage in Article 9 (3) and Article 9 (4) into the quota such an activity it would have been regarded system, the purpose of these provisions is to as a steel undertaking from that moment avoid any increase in references, in the onwards and from being the mere recipient interests of the market. of the reference production and quantities it would have become their user. 29. That purpose is not compromised if the purchaser of plant does not use it or immediately dismantles it but utilizes the 24. That did not happen in the present case, corresponding reference production and because some days after having purchased quantities to increase its total production on the plant Dorninger resold it to Sacilor. It other plant which it may have (the cannot be, and indeed is not, disputed that Commission calls this the 'closure Sacilor is a steel undertaking within the premium'). meaning of the ECSC Treaty.
30. The applicants further maintain that the decision of 10 March 1986 should be 25. Since the reference production and declared void because the Commission quantities were not 'extinguished'on the committed a manifest error as to the ground that the plant was the property of a identity of the new owner of the plant. The non-steel undertaking for some days, they rolling mill was in fact consigned not to could be transferred to Sacilor. Sacilor but to Dillinger Hüttenwerke in the Saarland.
4 •— See Sacilor's letter to the Commission of 13 November 1985, Annex 16 to the written observations of the Commission in Case 48/86 R. 26. The applicants go on to argue, 5 — Commission Decision No 2177/83/ECSC of 28 July 1983 however, that Sacilor did not produce on the extension of the system of monitoring and production quotas for certain products of undertakings in anything on the plant but was utilizing the the steel industry (Official Journal 1983, L 208, p. 1).
CAUËT AND JOLIOT v COMMISSION
31. This point seems to be accepted but it 35. This claim thus cannot be upheld either. too is not of such a nature as to call into question the validity of the decision adopted by the Commission on 10 March 1986. 36. Finally, the applicants argue that the Commission's decision caused them harm.
32. It is not disputed that at that point the 37. Since this contention cannot at this plant in question had undergone a change stage constitute an application for damages of ownership within the meaning of Article (see supra, issue of admissibility) there is no 9 (4). Consequently, Cockerill-DRC had need to determine whether the conditions ceased to be the holder of the plant's for any grant of compensation are fulfilled reference production and quantities and the (fault, harm, causation). corresponding quotas, and these had passed to the new owner. 38. It must be treated as an additional argument against the legality of the decision of 10 March 1986, in support of the claim 33. There was therefore no manifest error that that decision should be declared void. on the Commission's part on this vital point. It follows that even if the contested decision were to be declared void because of error as to the identity of the owner, such a decision 39. Given that in view of the circumstances could not have the effect of restoring to the Commission simply implemented the Cockerill-DRC SA the quotas corre- legal conclusions flowing automatically sponding to the rolling mill which it sold. from Article 9 (4) of Decision No 234/84/ECSC its decision of 10 March 1986 was not capable of causing harm to the applicant. 34. Furthermore, no proof has been furnished that Sacilor is not or is no longer the owner of the plant. Even if this were the 40. By selling Cockerill-DRC SA's plant the case the sole result would be that the liquidators also, by virtue of the applicable Commission would be under an obligation legislation, sold the corresponding reference to take a new decision on the basis of production and quantities; they were Article 9 (4) recording the transfer of therefore not in a position to dispose of the reference production and quantities them at a later date since to do so would be concerned to the new owner. Even if it were to 'circumvent such a transfer of references' certain that Dillinger Hüttenwerke had contrary to the last sentence of the first become the owner of the plant before 10 subparagraph of Article 9 (4). March 1986, the date of the contested decision, the applicant would still have no interest in applying to have the decision 41. If, therefore, harm was suffered it was declared void, whether on the ground that suffered as a result of Decision No the decision withdrew reference production 234/84/ECSC itself, Articles 9 (4) and 15 and quantities from the applicant, since at of which prevent an undertaking from sepa- that time it was no longer the owner of the rately transferring plant and the corre- plant, or on the ground that it allocated sponding reference production and quan- them to Sacilor. Only the 'true' owner tities. However, the applicant has not would have such an interest. alleged that either one of these provisions is
OPINION OF MR MISCHO —CASE 100/86
unlawful and at first reading it is difficult to lenged the Commission's decision of 27 see what foundation there could be for such September 1985 refusing that sale (see an allegation, Annex 13 to the Commission's written observations in Case 48/86 R). 42. Moreover, as the harm consists mainly in the fact that Cockerill-DRC SA's liqui- 43. It therefore appears to me that none of dators were not able to sell the references to the grounds put forward by the applicant Cockerill Sambre (who had offered them against the legality of the contested decision FF 1 500 000) they should in fact have chal- of 10 March 1986 can be upheld.
44. I therefore propose that the Court should dismiss the present application and order the applicant to pay the costs, including the costs relating to application 48/86 R in so far as that application concerned the suspension of the operation of the decision of 10 March 1986, such costs having been reserved until the judgment in Case 100/86 by the order of 18 June 1986 removing Case 48/86 from the Register.