JUDGMENT OF 28. 3. 1984 — CASE 8/83 V JUDGMENT OF THE COURT (FOURTH CHAMBER)
In Case 8/83
THE COURT (Fourth Chamber) composed of: T. Koopmans, President of Chamber, K. Bahlmann, P. Pescatore, A. O'Keeffe and G. Bosco, Judges, Advocate General: P. VerLoren van Themaat Registrar: P. Heim
gives the following
JUDGMENT
Facts and Issues
The facts of the case, the course of the procedure and the conclusions, submissions and arguments of the parties may be summarized as follows :
I — Facts and written procedure
At the end of September 1981, two Commission inspectors carried out a check under Article 60 of the ECSC Treaty on sales effected by Bertoli SpA, Udine, between 1 July and 30 September 1981. At the time the inspectors established that, as regards first-grade products, discounts had been granted to customers without being published, that the price supplements had been published but had not been invoiced or had been invoiced only in part and that transport costs had not been invoiced. The price reductions established by the inspectors amounted to LIT 38807000 for 915 tonnes sold, corresponding to irregular sales to the value of LIT 324884000. In the case of the products defined by the applicant undertaking as “not of the first grade”, the inspectors established that infringements similar to those referred to above had been committed. The price reductions established amounted to LIT 47174000 for 710 tonnes sold, corresponding to irregular sales to the value of LIT 247347000.
Accordingly, by letter of 18 March 1982 sent pursuant to Article 36 of the ECSC Treaty, the Commission charged Bertoli with failing to comply, in connection with certain sales of steel products, with Article 60 of the ECSC Treaty and with the decisions adopted for its implementation. By letter of 6 April 1982, Bertoli submitted its written observations in which it contended that, in view of the applicant's marginal importance on the Italian market, it had been compelled to abide by the principle of supply and demand. It contended that since it was unable to apply its own price list, it had been obliged to carry out a partial alignment whilst maintaining higher prices than those of its competitors for comparable products. In support of its contentions, it forwarded to the Commission a photocopy of the invoices of the competitors in question.
On 21 June 1982, at the hearing requested by the applicant, it maintained its previous line of defence, arguing, in particular, that had it adhered to its price lists, it would have been forced to go out of business. It added that it was impossible for it to carry out the alignments when the contract was concluded and emphasized that as from 1 October 1981 (that is to say after the inspectors had visited the premises) it had adhered closely to its price lists. Taking the view that the explanation furnished by the applicant did not justify the infringements committed, the Commission, by decision of 9 December 1982, imposed upon it a fine of LIT 94579100, equal to 100% of the price reductions, increased by 10% since those reductions amount to more than 10% of the prices which should have been invoiced.
The applicant submitted its application on 13 January 1983.
The written procedure followed the normal course.
Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry. It put a number of questions to the Commission.
By order of 6 July 1983, the Court, finding that the Commission had not expressly requested that the case be decided in plenary session, decided, pursuant to Article 95 (1) and (2) of the Rules of Procedure, to assign the case to the Fourth Chamber.
II — Conclusions of the parties
The applicant claims that the Court should:
For the purposes of the preparatory inquiry,
Order the Commission to submit in these proceedings a copy of the decision adopted by it at the meeting of 4 June 1981 authorizing its Vice-President, Mr Davignon, to impose pecuniary sanctions on undertakings for infringing Article 60 of the ECSC Treaty;
As regards the substance,
Declare void the contested decision adopted by the Commission in relation to the applicant on 9 December 1982;
In the alternative,
Reduce the amount of the fine imposed on the applicant by calculating it on the basis of the criteria adopted by the Commission itself, which were in force when the check was carried out;
Order the Commission to pay the costs.
The defendant contends that the Court should:
Dismiss the applicant's claims;
Order the applicant to pay the costs.
III — Submissions and arguments of the parties
In its first submission alleging infringement of essential procedural requirements, the applicant contends that the decision contains an inadequate statement of the reasons on which it is based, inasmuch as it makes it impossible to trace the reasoning by which the Commission determined the price reductions and, consequently, the amount of the fine. The list of allegedly irregular transactions contained in the annexes to the decision does not reveal the stages in which the Commission calculated, for each sale considered, the amount of the contested price reductions. Furthermore, no mention is made of the arguments submitted by the applicant by way of defence.
In its second submission, the applicant contends that the ECSC Treaty and the rules of law relating to its application have been infringed. General Decision No 31/53 of the High Authority on the publication of price lists and conditions of sale applied by undertakings in the steel industry (Official Journal, English Special Edition 1952-1958, p. 11) makes it quite clear in Article 4 that the High Authority may publish such price lists and conditions of sale “by means of a special publication”. The need for such a publication is felt in particular by small and medium-sized undertakings, such as the applicant, which find it impossible to obtain the price lists of competitors. It was precisely in order to take account of that state of affairs and of the absence of the publicity provided for by Article 4 that the Commission showed not only in the distant past but also more recently — during the period in which the system of minimum prices was in force — a tolerant attitude towards alignments, even allowing general references, provided that it was able to verify the conditions of competition on which an undertaking had intended to align itself. That was the position in the case ol Bertoli which, although it had stated thai it had been obliged to align its prices or those charged by other Community producers so as not to be excluded fron the market, did not simply refer ir general terms to the need to adhere tc the principle of supply and demand bu also submitted copies of the invoices o its competitors showing that their price, were lower than those charged by thi applicant. The Commission did no conduct an inquiry in that respect no did it deny the existence of sales on th terms indicated in the invoices submittei but merely pointed out at the hearinj “that alignment is possible on the basi of the price lists applied by another givei producer but not on the basis of the prices of competitors”. Similarly the Commission did not attach any importance to the fact that products “which are not of the first grade” could not be sold on the same terms as those applicable to “first-grade” products, since such sales are unforeseeable and occasional and involve products which do not undergo the entire process of working but only certain stages thereof, which are to be determined case by case with the customer and are therefore to some extent specific in nature. That hardening in the Commission's attitude, compared to the tolerance previously shown to other undertakings, constitutes a breach of the principle of the protection of legitimate expectation, on which those concerned are entitled to rely, and of the principle of non-discrimination and equal treatment.
In its third submission, the applicant contends that the Commission is guilty of a misuse of power. The Commission established a set of generally applicable objective criteria for the determination of fines and, at a meeting on 4 June 1981, authorized its Vice-President, Mr Davignon, to impose fines on steel undertakings for infringing Article 60 of the ECSC Treaty. It was decided at the same time that the normal rate was to be approximately 25% of the price reductions, with an option to increase or reduce the rate restricted to 40%, according to the specific circumstances of each case. In so doing the Commission correctly restricted the wider powers conferred upon it by Article 64 of the ECSC Treaty, which, however, had the effect of making the criteria thus laid down binding upon it until it decided to modify them for reasons to be duly set out. To adopt a different attitude in a specific case must therefore be regarded as an arbitrary act. In the light of the maxim nullum crimen, nulla poena sine lege, even though the Commission has more recently modified its general criteria in order to intensify its repressive policy, it is under an obligation, whatever the date on which the penalty is imposed, to apply only the criteria in force at the time of the infringement, which is to say that in the present case it should not have looked beyond the end of the third quarter of 1981. Accordingly, even if the first and second submissions are not accepted, the fine imposed should be reduced to approximately 25% of the price reductions (see the judgment of the Court in Joined Cases 26 and 86/79 Forges cie Tby-Marcinelle et Monceau v Commission [1980] ECR 1083).
The Commission contends, in relation to the applicant's first submission, that its inspectors came to the conclusion that the irregularities were to be found in the invoices themselves. It is possible by examining the invoices annexed to the decision, to establish the discounts granted and the precise amount thereof. The underpricing stems from the fact that the applicant sells its products in accordance with its own price list, or aligns its prices on the Sisma or Piombino price list, and then grants a discount which is not justified by any price list. Moreover, in the case of certain invoices the applicant carries out mixed alignments, that is to say a single invoice may contain an alignment on the Sisma price list as regards one product and an alignment on the Piombino price list as regards another product. Furthermore, the decision is in no way vitiated by the Commission's failure to discuss in detail the arguments put forward by the applicant by way of defence. In the first place, the defendant's decision is an administrative measure which does not, as such, need to be accompanied by an extensive and complex statement of reasons in order to be valid; a concise statement of reasons based on essential and specific factors which are clearly apparent from ą reading of the text is sufficient. Secondly, the arguments set forth in the decision are those on which Bertoli's defence is based and, therefore, there is no breach of essential procedural requirements in the statement of reasons.
The Commission contends in relation to the applicant's second submission that the High Authority was never guilty of the slightest omission with regard to the implementation of what, according to Decision No 31/53, is a mere option and not a specific obligation. For some years an official publication (Serial No CB-AE-82-001-7A-C entitled “Iron and steel: basis prices” — a basic document concerning the situation as on 1 January and variations thereof which appears every month and sets out all the price variations occurring in the period in question, has been issued under the auspices of the Commission's Directorate General for the Internal Market and Industrial Affairs. Therefore, any undertaking, even a small one, can keep abreast of its competitors' prices merely by taking out a subscription to that publication. Furthermore, there is nothing to prevent an undertaking from contacting directly the relevant Commission departments, which are obliged to disclose at any time the information resulting from the price levels at their disposal. Moreover, the Commission denies the contention that it adopted a tolerant attitude towards alignments. Admittedly, there were times when checks to verify compliance by undertakings with Article 60 of the ECSC Treaty became less frequent, but that does not mean that the Commission is pursuing a specific policy to that effect; all it means is that there were not enough inspectors for the tasks to be accomplished since they had to carry out other checks. The Commission's officers have always been aware that, unless there is verification of compliance by undertakings with Article 60, market transparency cannot be achieved, with all the attendant consequences. Moreover, the Commission is unable to understand in what respect it acted unlawfully by pointing out that it was forbidden to carry out an alignment on market prices and that only list prices were lawful, since that is the very rule which ensures the absence of discrimination between purchasers. The Commission adds that in a circular issued in 1962, it reminded undertakings that it was appropriate to specify in commercial and accounting documents the actual price list on which the alignment was carried out. Failure to comply with that circular is in practice tantamount to carrying out an a posteriori alignment (which according to the Court is unlawful; see Case 16/61 Modena v High Authority [1961] ECR 289). Finally, at the hearing on 21 June 1982 Bertoli's representatives were asked to explain what they understood by “products which are not of the first grade”. Their reply was that such products were not second grade but that certain sales invoices contained special conditions for certain products. At that point it became abundantly clear that if an undertaking imposed special conditions for certain products, it was required to publish those conditions in its price list and that was precisely the reason for which Bertoli's infringement was penalized.
As far as the applicant's third submission is concerned, the Commission points out that the maxim nullum crimen, nulla poena sine lege cannot in any way be regarded as applicable in the present case and that it cannot understand how one of its decisions imposing a precuniary sanction can come within the scope of criminal law when it is obviously an administrative measure. Secondly, the Commission observes that since the delegation of powers to one of its Members constitutes a derogation from the principle that decisions taken by the Commission must be adopted collectively, the powers thus conferred are limited and can only be given a restrictive interpretation since the Commission may always revoke them, inasmuch as they are provisional and it retains the power to decide cases which fall outside the scope of day-to-day administration. Taking the view that the authorization conferred upon him was inapplicable in the present case, Mr Commissioner Davignon submitted to the Commission a proposal in writing to impose on Bertoli and three other undertakings a more severe penalty fixed at 100% of the amount by which they had undercut their price lists. The Commission accepted that proposal and, by decision of 9 December 1982, imposed the fines thus proposed. In that decision, the Commission merely applied Article 58 of the ECSC Treaty by virtue of its discretion. The Commission observes that at the same meeting the authorization conferred upon Mr Commissioner Davignon on 4 June 1981 was withdrawn. Accordingly, there was no abuse of power in the present case.
In its reply, the applicant maintains, is regards its first submission, that the annexes to the contested decision do not contain any of its own invoices or price lists. In particular, the position is undoubtedly aggravated by certain figures relating to the calculation of the alleged price reductions which amounts to more than LIT 1500000 to the detriment of the applicant. Moreover, the reasons stated in the decision according to which “the price reductions amount to mo:re than 10% of the prices which shou.d have been invoiced” are factually incorrect since not all transactions involved reductions of more than 10% and the “aggravating factor” of 10% is therefore unjustified as regards transactions below that limit.
As regards its second submission, the applicant points out that in the third quarter of 1981 it was obliged to apply the system of alignment — which in itself is lawful — and did so by deducing the conditions of sale from the invoices of its competitors, on the assumption that the prices specified in those invoices (transmitted to the Commission) corresponded to the price lists of the undertakings in question, since the applicant had no such price lists in its possession. The Court is not unaware of all the amendments to Decision No 31/53 (which in Article 5 authorizes undertakings to refrain from publishing certain conditions of sale in their price lists) and of the variable timing and nature of the checks carried out with regard to undertakings. In recent years the Commission has considered it more appropriate to verify compliance by undertakings with the rules on minimum prices and with the system of production quotas, as is apparent from the case-law of the Court. The applicant satisfied those criteria inasmuch as it did not exceed the quotas allocated to it and maintained its prices, even where it aligned them, at a level higher than that of the prices charged by the undertakings whose invoices it has submitted. The Commission considered it necessary to warn undertakings that as from 1 July 1981 and 1 October 1981, checks under Article 60 would be resumed and would be stricter. That is clear from the minutes of the hearing which took place on 21 June 1982.
As regards its third submission, the applicant contends that the Commission's conduct is manifestly unlawful in the light of the fundamental principles of administrative law applied at both national and Community level. In Cases 81/72 Commissions Council [1973] ECR 581 and 70/74 Commission v Council [1975] ECR 795, the Court held that it was a general rule of law that every administration is bound to observe rules which it has itself adopted, which are binding upon it at least until they are reviewed. Even the Commission must concede that the imposition of fines and penalty payments is a way of exercising a punitive power since the principle of the protection of legitimate expectation requires the administration to exercise the power in question subject to certain minimum guarantees which are certainly not inferior to those applicable in the criminal sphere. That did not happen in the present case. From 4 June 1981 to 9 December 1982, that is to say for almost a year and a half, the Commission maintained, in relation to the practice of underpricing, the rate which. had been defined as “the normal rate of the fine”, namely 25% of the price reduction, increased or decreased, within narrow limits, according to the circumstances of the case. However, even before June 1981, as is clear from the judgment of the Court in Case 149/78 Rumi v Commission [1979] ECR 2523, the practice was to impose penalties of those proportions. The conclusion must therefore be drawn that, precisely because the Court regarded those criteria as valid and had approved them, the Commission wished to confirm that “practice” by formally including it in the authorization conferred upon its Vice-President, Mr Davignon. In those circumstances it seems clear that an infringement committed in the third quarter could not be penalized on the basis of new, more stringent criteria which, according to the defendant, were introduced on 9 December 1982 and are in any event devoid of any retroactive effect. In the event of the unlikely dismissal of the application for a declaration that the contested decision is void, the decision should be amended and the amount of the fine should be substantially reduced.
The applicant, requests the inclusion of the following documents in the file:
The minutes of the hearing on 21 June 1982;
The authorization of 4 June 1981, subsequently withdrawn on several occasions;
the Written procedure in which a “more severe penalty” was proposed for the applicant;
The withdrawal of the authorization conferred upon Mr Commissioner Davignon; and
Any fresh such authorization.
In its rejoinder, the Commission argues that the list of invoices together with the relevant price reductions was in the possession of the applicant when the letter under Article 36 was sent to it and that it was in the applicant's own interest to check that letter in order to be able to make appropriate observations at the hearing. In fact the applicant did not dispute the accuracy of that evidence at the hearing but did so only in its reply. The applicant's objection is in any event misconceived since the figures in question are apparent from the invoices examined.
The Commission emphasizes in relation to the applicant's second submission that since in times of crisis compliance with the rules of the Treaty must necessarily be far stricter than when the market is stable and compliance with the quota system makes little sense if the rules on prices are infringed, it is difficult to understand how an undertaking can complain that the Commission has drawn the attention of steel producers to their well-established obligation to comply with ECSC rules on prices and how that can adversely affect their rights as the applicant maintains. As regards the reference to the authorization allegedly granted by the Commission to undertakings to refrain from publishing certain conditions of sale in their price lists, it must be pointed out that Commission Decision 72/441 /ECSC of 22 December 1972 amending Decision No 31/53 (Official Journal, English Special Edition 1972 (30/31 December), p. 22) provides in Article 5 that steel undertakings need not publish certain prices for certain types of products (of marginal importance) in their price lists, whilst requiring such undertakings to notify those prices to the Commission. Moreover, the Commission may always require an undertaking to publish its price list. In practice, the rules on the publication of prices are always complied with.
The Commission contends in relation to the applicant's third submission that the principle that a public authority's discretion is restricted by its own acts implies that there can be a limit to such restriction. In view of the fact that the administration can always modify its conduct — whenever the public interest so demands — it is difficult to understand why in the present case the Commission should not have been able to withdraw the authorization conferred upon a Commissioner. An authority is always entitled to change its mind for the simple reason that the right to do so forms part of its “power/duty” to administer. As regards the case-law referred to by the applicant, it is concerned with an entirely different matter, namely, the Staff Regulations of Officials. It is clear from the written procedure, on completion of which the contested decision was adopted, that in order to re-assert a degree of authority over the market, it appears necessary to penalize more severely infringements relating to prices. Moreover, it is proposed that the Commission should modify the new criteria suggested, and withdraw the authorization conferred upon Mr Vice-President Davignon on 4 June 1981 as a result of the modification of the relevant criteria, and that a proposal for the renewal of such authorization should be submitted to the Commission in the near future.
IV — Oral procedure
At the sitting on 16 November 1983 oral argument was presented by the parties.
The Advocate General delivered his opinion at the sitting on 18 januarv 1984.
Decision
1. By application lodged at the Court Registry on 14 January 1983, Officine Fratelli Bertoli SpA (hereinafter referred to as “Bertoli”) submitted an application pursuant to Article 36 of the ECSC Treaty by virtue of which the Court has unlimited jurisdiction, for a declaration that the Commission Decision of 9 December 1982 imposing a fine on the applicant for infringing Article 60 of the ECSC Treaty is void, or for the amendment thereof.
Background to the decision
2. At the end of September 1981, two Commission inspectors carried out a check under Article 60 of the ECSC Treaty on sales of steel products by Bertoli between 1 July and 30 September 1981.
3. The results of that check showed that, as regards both first-grade products and those defined by the applicant as products “which are not of the hrst grade”, discounts had been granted without being published, that the price supplements which had been published had not been invoiced, or had been invoiced only in part and that transport costs had not been invoiced.
4. As regards first-grade products, the price reductions established by the inspectors amounted to LIT 38807000 for 915 tonnes sold corresponding to sales deemed to be irregular to the value of LIT 32484000 As regards the other products, the price reductions amounted to LIT 47174000 lor 710 tonnes, corresponding to sales deemed to be irregular to the value or LIT 247347000.
5. By letter of 18 March 1982 the Commission referred to the findings made by its inspectors, charged Bertoli with failing to comply with Article 60 ol the ECSC Treaty and with the decisions adopted for its implementation, and requested it/pursuant to Article 36 of the ECSC Treaty, to submit its comments.
6. By letter of 6 April 1982 Bertoli contended that in view of its marginal importance on the Italian market, it had been compelled to abide by the principle of supply and demand and that, since it was unable to apply its own price list, it had been obliged to carry out a partial alignment on the prices of its competitors, whilst maintaining prices higher than those actually charged by them. In support of its contentions, it forwarded to the Commission photocopies of its competitors' invoices.
7. At the hearing on 21 June 1982 the applicant did not contest the facts alleged. In accordance with its previous line of defence, it argued that had it applied its price lists strictly, it would have been forced to go out of business and it observed that since 1 October 1981 it had adhered closely to those price lists.
8. Taking the view that the explanations furnished by the applicant did not expunge the infringements committed, the Commission, by decision of 9 December 1982, imposed upon it a fine of LIT 94579100, equal to 100% of the price reductions increased by 10% for reducing by more than 10% the prices which should have been invoiced.
9. In support of its application the applicant relies on the following submissions in support of its contention that the decision is unlawful: infringement of essential procedural requirements, infringement of the ECSC Treaty and of rules of law relating to its application, more particularly breach of the principles of the protection of legitimate expectation and equal treatment and, finally, misuse of powers.
First submission
10. According to the applicant, the decision is unlawful inasmuch as it contains an inadequate statement of the reasons on which it is based. It is impossible, in its view, to trace the reasoning by which the Commission determined the price reductions and, consequently, the amount of the fine. The list of irregular transactions contained in the annexes to the decision does not make it possible to trace the stages by which the Commission calculated for each sale the amount of the price reductions.
11. The Commission considers that submission to be unfounded. It is possible in its view, by examining the list of invoices annexed to the decision to establish the discounts granted and the precise amount thereof. The various calculations made by the Commission may easily be deduced from the annexes. No additional factor need be considered to justify the measure in question.
12. As the Court has stated in its consistent case-law, the purpose of the obligation to state the reasons on which an individual decision is based is to enable the Court to review the legality of the decision and to provide the person concerned with sufficient information to make it possible to ascertain whether the decision is well founded or whether it is vitiated by a defect which may permit its legality to be contested.
13. It may be recalled that in its judgment of 11 January 1973 in Case 13/72 Netherlands v Commission [1973] ECR 27, the Court held that the extent of the obligation to state reasons depends oh the nature of the measure in question and on the context in which it was adopted.
14. It must be observed in that regard that the contested decision was adopted following a check carried out on the premises of the applicant undertaking in the course of which, as is clear from the applicant's letter of 6 April 1982, there was an exchange of views between the management of the undertaking and the Commission's inspectors, and following an administrative procedure which the Commission initiated by the dispatch of a letter on 18 March 1982 informing the applicant in precise terms, and enclosing invoices as evidence of each transaction, of the infringements with which it was charged.
15. When it was requested, pursuant to Article 36 of the ECSC Treaty, to submit its comments concerning those infringements, the applicant in its aforementioned letter of 6 April 1982 and at the hearing on 21 June 1982 did not contest either the accuracy or even the legal basis of the charges laid against it and merely contended that, since it was compelled to abide by the principle of supply and demand, it had been obliged, in order to avoid the closure of its business, to refrain from applying to the letter its own price list or that of one of its competitors and had therefore aligned its prices on those actually invoiced by certain of its competitors.
16. Subsequently, in its letter of 21 July 1982, whilst conceding that an alignment was possible only on price lists and not on transactions, the applicant pleaded by way of defence the difficulties which it claimed to have encountered in receiving notice of those price lists in sufficient time.
17. In view of the circumstances in which the contested decision was adopted and of the fact that the annexes to that decision indicate for each transaction the amounts of the rebates granted, the price supplements and the transport costs, either not invoiced at all or invoiced only in part, the applicant, contrary to its assertions, was sufficiently informed of the factual elements on which the decision was based and was therefore able to ascertain whether it was well founded with a view to contesting its legality if necessary.
18. This submission must therefore be rejected.
Second submission
19. According to the applicant, the Commission's conduct has been characterized in recent years by alternating periods of legislative provisions and checks succeeded by periods of acquiesence and leniency. In its view, the hardening in the Commission's attitude undermined the principles of the protection of legitimate expectation and equal treatment. More particularly, the applicant contends that the Commission changed its policy regarding the monitoring of price alignments carried out by undertakings, by a transition from a system of acquiescence to a system of strict checks.
20. The Commission denies the applicant's contention that there was a time when it showed an acquiescent attitude towards alignment. The decrease at one point in the number of checks carried out to monitor compliance by undertakings with Article 60 of the ECSC Treaty was attributable to a shortage of staff and to the need to cany out other, more urgent checks but is by no means evidence of a specific intention on its part as a matter of policy to adopt a compliant attitude towards alignment. Furthermore, since compliance with the rules of the Treaty must, in times of crisis, be far stricter than when the market is stable, the fact that the Commission reminded undertakings that the economic crisis did not exempt them from the obligation to; comply with the rules contained in Article 60 and that it subsequently proceeded to carry out checks to ascertain whether its reminders had been heeded is quite consistent and does not adversely affect the rights of steel undertakings.
21. Even on the assumption that there was a period in which the Commission may to some extent have shown a certain laxity towards alignment, it must be stated, as the Court held in its judgment of 11 December 1980 in Case 1252/79 Lucchini [1980] ECR 753, that a concession on the part of the authorities cannot make an infringement legitimate.
22. Furthermore, it is clear from the documents before the Court that on several occasions in 1981 formal warnings were issued to producers and dealers to comply with the rules on prices. The applicant should therefore have expected the Commission to tighten and extend the system of checks carried out to monitor compliance with the prices notified by undertakings.
23. This submission must therefore be rejected.
Third submission
24. Taking the view that a misuse of powers also includes an abuse of power and ultra vires acts consisting in the arbitrary exercise by the administration of the powers vested in it, the applicant recalls that, by decision of 4 June 1981, the Commission had authorized its Vice-President to impose fines for the infringement of Article 60 of the ECSC Treaty at a basic rate to amount to approximately 25% of the price reductions, with the possibility of adjusting the rates upwards or downwards, by up to 40% of the value of the reductions, according to the specific circumstances of each case. Since the Commission thus restricted the wider powers conferred upon it by Article 64 of the ECSC Treaty, it was bound by the criteria laid down until such time as it decided to modify them. The Commission's failure to satisfy those criteria in its contested decision should, in the applicant's view, be regarded as arbitrary. Moreover, even if the Commission was entitled to modify its general criteria in order to intensify the serverity of its punitive action, it was under an obligation, by virtue of the principle nullum crimen, nulla poena sine lege, whatever the date on which the penalty was imposed, to refer to the criteria in force at the time of the infringement. Those considerations justify in the applicant's view a reduction of the fine to approximately 25%.
25. The Commission on the other hand contends that the principle of criminal law to which the applicant refers is not applicable to the Commission decision imposing a fine on the applicant since it is an administrative measure which, as such, does not come within the scope of the rules and principles of criminal law. Moreover, the delegation of powers to a Member of the Commission constitutes a derogation from the principle that decisions must be adopted collectively. The Commission retains the power to decide cases which fall outside the scope of day-to-day administration. That was the procedure followed in the present case, it is claimed. In its decision the Commission merely applied Article 64 of the ECSC Treaty by virtue of the discretion vested in it, and was not guilty of any abuse of power.
26. The applicant's argument must be rejected. It is sufficient to note in that connection that Article 64 of the ECSC Treaty authorizes the Commission to impose upon undertakings which infringe the provisions of Chapter V of the ECSC Treaty fines not exceeding twice the value of the sales effected in disregard thereof and that in the wording of the Commission decision of 4 June 1981 authorizing the Commission responsible for industrial affairs to impose fines within certain limits and subject to certain conditions where the rules of Article 60 are infringed there is nothing to support the view that the Commission has relinquished the powers conferred upon it by Article 64.
27. As regards the principle nulla poena sine lege, it is clear from the considerations set out above, without its being necessary to consider whether or not that principle applies to the imposition of administrative penalties, that the rate of the fine imposed on the applicant in the present case is not in excess of that provided for by Article 64 of the ECSC Treaty.
28. This submission must therefore be rejected.
Amount of the fine
29. Although the submission relied upon by the applicant in support of its application for a reduction of the fine imposed upon it cannot be accepted for the reasons specified above, certain circumstances peculiar to this case justify a reduction on equitable grounds. In the last 30 years, in spite of numerous checks carried out by the Commission, no penalty has ever been imposed on the applicant for infringing the rules on prices, levies or quotas. An additional factor is the uncertain nature of the notices issued by the Commission which, whilst warning the undertakings concerned that the system of checks to monitor compliance with the prices and conditions of sale imposed by Article 60 of the ECSC Treaty would be tightened and extended, did not draw their attention to the Commission's intention of penalizing more severely, as it was empowered to do, any infringements established. In those circumstances the Court considers that the amount of the fine fixed by the Commission is excessive. Accordingly, the fine must be reduced by 75%.
Costs
30. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. However, under the first subparagraph of Article 69 (3) where each party succeeds on some and fails on other heads, the Court may order that the parties bear their own costs in whole or in part. As the parties have both been unsuccessful in some of their submissions, they must be ordered to bear their own costs.
On those grounds, THE COURT (Fourth Chamber) hereby:
1 Fixes the fine imposed on the applicant at LIT 23644775;
2 Dismisses the remainder of the application;
3 Orders the parties to bear their own costs.