C-381/87

5. The applicant maintains essentially that 2. The ECSC provisions governing the the decision imposing the fine is not production quotas for a number of products properly reasoned. The alleged deficiency in of the steel industry is very familiar ground the statement of reasons does not relate to for the Court, which has had to interpret the finding that there has been an them on many occasions. 1 infringement but solely to the determination of the amount of the fine. In particular, Hoogovens claims that: Consequently, I can confine myself to pointing out that the contested individual decision is based on general Commission Decision No 234/84/ECSC of 31 January 1984 (Official Journal L 29, 1.2.1984, p. 1). It is noted in particular that the first (1) the Commission does not indicate in the paragraph of Article 12 of that decision decision either the circumstances or the provides as follows: 'A fine, generally of criteria which it took into account in ECU 100 for each tonne in excess, shall be order to determine the amount of the imposed on any undertaking exceeding its fine; production quotas or that part of such quotas which may be delivered in the common market'.

* Original language: Italian. 1 — See, in particular, the judgments of 10 December 1986 in (2) the Commission did not reveal those Case 41/85 Sideradriaw Commission [1986] ECR 3917, and of 24 September 1987 in Case 340/85 Porto Notaro v criteria so as not to show up the hidden Commission [1987] ECR 3575. flaw in the decision itself, that is to say

HOOGOVENS GROEP v COMMISSION

6. Let us consider the first limb of the argument. Is the decision in fact vitiated by an inadequate statement of reasons? Now, as my predecessor Mr Advocate General Reischl stated in his Opinion in Lucchini v Commission (judgment of 19 7. On a general level, it seems clear to me October 1983 in Case 179/82 [1983] ECR that the requirements of the statement of 3083), the discretion which the Commission reasons of a decision imposing a fine and has in fixing the amount of the fine where those of a decision holding that there has production and delivery quotas have been been an infringement are different. In order exceeded ensues from Article 58(4) of the validly to find that there has been an ECSC Treaty in conjunction with Article 9 infringement there must be, on the one of the relevant general decision (then hand, a set of findings of fact and of law Decision No 2794/80, in this case Article 12 which, on the other hand, must be of Decision No 234/84/ECSC, which has supported by a logical chain of reasoning, superseded it). From the observations of my clearly identifying the criteria employed. learned predecessor, and from the position Very clearly, the purpose of this is to enable adopted by the Court in particular in para­ the interested party to assess the correctness graphs 7 and 8 of the judgment in Lucchini, of the statements made and to enable the the legislative framework is clear. More Court to review the acts of the authority specifically, the Commission has placed a which issued the contested measure and, if self-imposed limit on the powers conferred need be, criticize it. on it by Article 58(4) of the ECSC Treaty by deciding that in all cases where quotas are exceeded it will impose a fine of, in general, ECU 100 for each tonne in excess, save in exceptional cases warranting the The standard of such a statement of reasons application of a different rate. The Court seems to me to be much higher than the made it clear that: 'The Commission was standard required of the reasons for setting validly entitled to exercise its discretion by a fine imposed at a particular level. fixing such a rule which meets the requirements of equality whilst leaving the possibility open to take account of excep­ tional situations'. 'As a result the view must be taken that no specific statement of reasons As a general rule, there is in fact a sanction (my emphasis) in relation to the rate of the laid down within the limit of which (and, in fine is necessary save in exceptional cases in some cases, even beyond which) the which the Commission applies a rate other competent authority can choose the than the normal rate.'

The rationale of this requirement is clear Decision No 234/84/ECSC. It appears from the Court's words and, in particular, obvious in this context that the Commission from the reference to the requirements of must provide an even more exhaustive equality. In other words, when the statement of the reasons which led it to Commission diverges from the 'standard impose a higher fine. But it appears evident rate' which in itself guarantees that equality, to me that a specific statement of it must provide a more precise statement of reasons — albeit a brief one — is necessary reasons in view of that requirement (a also in the case with which we are 'specific statement of reasons'). concerned here of a lower fine, even if only to obviate possible complaints of different treatment and, in the final analysis, of discrimination. This approach seems to me 8. This brings me to my first conclusion: it to the only one which can square with the is not necessary to have a specific statement ratio decidendi of the aforementioned of reasons when the Commission, taking the judgment in Lucchini. view that the seriousness of the infringement corresponds to the general rule because there are no circumstances justifying a departure from the 'standard rate', applies I repeat therefore that in such a case the that rate. This confirms my earlier obser­ undertaking on which the fine is imposed is vation, that is to say that the statement of entitled to know, in summary form, the the reasons for imposing a particular level of reasons why it qualifies for a reduction in fine in a particular case is subject, by reason the fine. It seems to me out of the question of its nature, to less strict requirements than that the Commission should have to do the statement of reasons relating to the anything other than indicate the reasons for infringement. the reduction in a sufficiently compre­ hensible way. Whilst it is true that a specific statement of reasons is not necessary for the straightforward imposition of the 'standard 9. At the same time, that conclusion rate', it is inconceivable that the application prompts me to give my views on two further of a more favourable rate to the under­ aspects. In the first place, does the taking should be subject to a duty to requirement for a specific statement of provide a statement of reasons going reasons apply in the abstract also where a beyond the requirements of comprehensi- rate lower than the 'standard rate' is bility and clarity for the undertaking and for chosen? Secondly, if so, has the the Court. Commission satisfied that requirement in this case?

ECU 50 for each tonne in excess should be performs that task. In this connection, I imposed'. disagree with the statement in the application which goes as far as to claim that the Commission's policy on the impo­ sition of files emerges from the preambles of the individual decisions. It is my belief that, provided that in making sure that the legis­ However, showing great candour, the lation which it adopts is complied with it Commission itself acknowledged at the does not apply it incorrectly — in particular hearing that this reason was perhaps too by failing to fulfil the duty to state reasons succinct. I agree. or to comply with the principle of equality — it does not have to give detailed information in each implementing decision of the reasons for which it did not apply the 'standard rate' to other undertakings. 12. I do not consider that the sentence referred to by the Commission satisfies, to the extent necessary in this case, the requirements — albeit reduced to minimum — to which the statement of reasons is subject. It does not seem to me that a mere reference to the details which emerged 14. On this basis I do not consider that in in the investigation carried out during this case the decision at issue provided a the infringement procedure enables sufficient statement of reasons as regards Hoogovens — even less the Court — to the criteria followed by the Commission — understand sufficiently clearly the reasons quite apart from any reference to fines for the reduction in the fine and, in imposed on competing undertakings by addition, enables legitimate doubts as to the other decisions. As justification it is existence of discrimination to be dispelled. sufficient to point out that a statement of the type 'in view of the details which emerged during the investigation carried out in the course of the infringement procedure' is, on the one hand, a truism (it is to be hoped that the Commission did base itself 13. In this connection I should like to make on the results of inquiries carried out and myself extremely clear. The fact that the not on hearsay or presumptions or, worse Commission imposes a number of fines on a still, on findings made in an anti-dumping number of steel undertakings, even if it does or competition investigation) and, on the so concurrently, does not give rise to an other, so general as not to afford any obligation on the Commission itself to make assistance in understanding the real reasons express comparisons in the various decisions for the reduction in the fine. between attenuating circumstances justifying reductions in the fines in the various cases. In that respect, I fully concur with the Commission's statement in the rejoinder. I would add that Article 58(4) of the ECSC Treaty gave the Commission the specific task of imposing fines where undertakings 15. Admittedly, the Commission argues that do not comply with decisions taken under the decision contains details from which that article. It was not instructed to write a Hoogovens could conclude, simply by manual describing the way in which it excluding two circumstances which it

the difficulties which Hoogovens had been experiencing for a long time as a result of the unfavourable ratio in its case between the part of the quota which may be delivered in the common market and the Therefore it is quite clear from the total production quota were effectually contested decision (second indent of the recognized by the Commission and led it to third recital) and in the light of Decision adopt Decision No 1433/87/ECSC of 20 No 1433/87/ECSC that the unfavourable May 1987; I/P ratio was rejected and not accepted as a relevant circumstance for reducing the fine. Consequently, the Commission's arguments seem more of an attempt to fill a gap (which moreover it recognizes to exist) in the the quota system applies on a quarterly basis statement of reasons in some way after the as a result of which one quarter cannot be event than a reasonable interpretation of the set off against another.' contested decision.

HOOGOVENS GROEP v COMMISSION

It seems to me therefore that Hoogovens is certain that the Court cannot reach such a right to maintain that it cannot be conclusion therefrom. This eliminates concluded from a reading of the contested radically and definitively any doubt as to decision that the reason for reduction in the the existence of a flaw in the statement of fine was the unfavourable I/P ratio. It is reasons.

17. To conclude, I consider that the contested decision is vitiated by a defective statement of reasons. It remains to be considered what consequences should flow from this finding. On the one hand, the applicant itself does not contest the existence of the infringement and admits that it exceeded the quotas as alleged: I therefore do not consider that it would be appropriate to cancel the fine altogether. On the other hand, the Commission failed in its duties by not speci­ fying sufficiently the criteria which it used as its basis for the reduction in the fine. In these circumstances, I suggest that the Court should apply the second paragraph of Article 36 of the ECSC Treaty and reduce the fine imposed on Hoogovens by an appropriate amount.