JUDGMENT OF 16. 2. 1984 — CASE 76/83 BOËL v COMMISSION

In Case 76/83

THE COURT (First Chamber) composed of: T. Koopmans, President of Chamber, Lord Mackenzie Stuart and G. Bosco, Judges, Advocate General: S. Rozès Registrar: H. A. Rühi, Principal Administrator

gives the following

JUDGMENT

Facts and Issues

I — Summary of the facts and of the written procedure

In accordance with Articles 5 and 9 (2) of Commission Decision No 1831/81/ECSC of 24 June 1981 establishing for undertakings in the iron and steel industry a monitoring system and a new system of production quotas in respect of certain products (Official Journal, L 180, 1. 7. 1981, p. 1), the Commission wrote to Usines G. Boël SA (hereinafter referred to as “Boel”), La Louvière, informing that “undertaking” or “group of undertakings” of the production quotas and the parts of those quotas that could be delivered in the common market for the third quarter of 1981 (letter of 29 July 1981) and for the fourth quarter of 1981 (letter of 4 November 1981).

The production quotas for Category la products were adjusted and increased by decisions of the Commission pursuant to Article 10 of Decision No 1831/81/ECSC for the third quarter of 1981 (letter of 11. 2. 1982) and for the fourth quarter of 1981 (letter of 11. 3. 1982).

In accordance with Article 14 of Decision No 1831/81/ECS the commission also adjusted the production quot parts of quotas that could be delivered on the common market for the third quarter of 1981 in relation to Category la and lb products (letter of 22. 3. 1982).

By a letter sent to Usines G. Boël SA, La Louvière, on 10 August 1982, the Commission complained that Boël had exceeded its quota for Category Ic products and the part of that quota that could be delivered on the common market for the third quarter of 1981 and that it had exceeded its quota for Category Ic products and the parts of the production quotas for Category la and Ic products that could be delivered on the common market for the fourth quarter of 1981.

After examining Boël's observations the Commission, by a decision of 24 March 1983, imposed a fine of 2403043 ECU (BFR 111024570) on Boël for exceeding its quotas. It is the annulment of that decision that Boël seeks in this action dated 29 April 1983 and received at the Court Registry on the same day.

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 holding a preparatory inquiry.

By order of 19 October 1983, pursuant to Article 95 of the Rules of Procedure, the Court assigned the case to the First Chamber.

II — Conclusions of the parties

The applicants claim that the Court should:

Declare void the decision of the Commission of the European Communities of 24 March 1983 concerning a fine imposed on Usines Gustave Boël SA, La Louvière, pursuant to Article 58 of the ECSC Treaty;

In the alternative, reduce the amount of the fine;

Take formal note that the applicants reserve the right to claim compensation from the European Coal and Steel Community for the damage suffered by them as a result in particular of the charges related to the provision of the bank guarantee required by the Commission as security for the payment of fines which were unjustified in whole or in part;

Order the Commission of the European Communities to pay the costs.

The Commission contends that the Court should:

Dismiss the action as inadmissible;

In the alternative, dismiss it as unfounded;

Order the applicants to pay the costs.

III — Submissions and arguments of the parties in the course of the written procedure

A — Admissibility

In support of their action challenging the decision of 24 March 1983 the applicants make nine submissions. The Commission considers that the first seven submissions are inadmissible.

1. Admissibility of the first, third, fourth, fifth and sixth submissions The Commission considers that those submissions call into question decisions which imposed production quotas on the applicants for the third and fourth quarters of 1981 or whereby adjustments to the applicants' production quotas were either made or refused pursuant to Article 14 of the general decision. It argues that the applicants should have contested those decisions within one month following their notification and that, since they failed to do so, the applicants may no longer claim that those decisions, or indeed the general decision on which they were based, were illegal. In their reply the applicants take the view that in an action for a declaration that an individual decision is void they may assert that certain provisions of general decisions are illegal where the contested decision constitutes the implementation of those provisions and provided that the individual decision is based on the rules alleged to be illegal (judgment of 28. 10. 1981, Joined Cases 215/80 and 24/81 Krupp [1981] ECR 2489, at paragraph 32 of the decision). The decision of 24 March 1983 imposing a fine on the applicants was based on those articles of Decision No 1831/81/ECSC which are contested in the action. The applicants claim that in this action they may also assert that the decisions by which the Commission notified to them the production quotas for the third and fourth quarters of 1981 were illegal. The measure in question is not an individual decision but the notification to each undertaking or group, to the extent that it is concerned, of a general quarterly decision. Moreover the applicants applied to the Commission for adjustment of the quotas for the third and fourth quarters of 1981 as soon as those quotas were notified to them. Having made requests for increased quotas, to which the Commission had to reply, the applicants were obliged in their turn to wait for the reply. In view of the necessities of economic life and of the fact that the Commission was expressly asked to state its position immediately on receiving the request for increases in the quotas in the third and fourth quarters, the applicants produced amounts including the requested increases. If the applicants had brought an action at that time, after producing amounts including the increases requested, it would have had to be declared inadmissible on the ground that the applicants had no legal interest. It was only when the Commission notified the applicants of its individual decision imposing a fine that they acquired a real and existing interest enabling them to argue that the provisions of the general decisions, on which the individual decision imposing the fine was indubitably based, were illegal.In its rejoinder the Commission argues that the case-law stemming in particular from the Krupp case referred to above is not applicable to the present case. It is only with reference to individual decisions either allocating the “initial” quarterly quotas or adjusting those quotas pursuant to Article 14 of the general decision that the applicants may, by raising an objection of illegality, question a provision of the general decision, to the extent that there is a direct connection between the individual decision and the provision of the general decision which is contested. In the present case most of the submissions made in support of the application for a declaration that the decision imposing a fine for production in excess of quotas was void challenge the previous stage, that is, the setting or adjustment of the quotas. The impugned decision, in so faias it imposes a fine, is based solely on Article 12 of the general decision and for that reason the applicant may, in support of its application for annulment, raise an objection of illegality with regard only to that Article 12. In this respect the Commission refers to the judgment of the Court of 31 March 1965 (Case 21/64 Macchiorlati Dalmas [1965] ECR 175) in which the Court stressed that the strict time-limit for instituting proceedings provided for in Article 33 is in keeping “with the necessity to prevent the legality of administrative decisions being called in question indefinitely”. The Commission points out further that the decisions whereby the quarterly quotas are fixed and notified to each undertaking are individual decisions, whereas the decisions which fix the abatement rates each quarter are general decisions. Finally, with reference to the concept of a legal interest in bringing proceedings, the Commission notes that the applicants at their own risk took the initiative of adjusting their own quotas pursuant to Article 14 and they draw the conclusion that they no longer have a legal interest in challenging the legality of the Commission decisions notifying them of the production quotas or granting an increase in some of the quotas.

2. Admissibility of the second and seventh submissions In the Commission's view the submissions or parts of the second and seventh submissions which allege that the Commission failed to reply to certain aspects of the applicants' requests for adjustment of quotas for the third and fourth quarters of 1981 in the procedure under Article 14 of general Decision No 1831/81/ECSC, or failed to state adequate reasons for its decision on the adjustment of the quotas for the third quarter, are inadmissible. It argues that the applicants should have challenged the legality of the individual decision whereby the quotas for Category Ia and Ib products, were adjusted only for the third quarter of 1981 and any adjustment for Category I as a whole for the fourth quarter of 1981 was refused. The Commission rejected the said requests by implication with the exception of those concerning Category la and lb products for the third quarter of 1981 because for that quarter and for those two products the conditions of application of Article 14 were met, in particular the abatement rate in excess of 20%. The Commission concludes that the applicants should at that time have brought an action for failure to act pursuant to Article 35 of the ECSC Treaty. According to the applicants, the Commission's argument is contradictory. An action for failure to act does not lie in respect of an implied decision of refusal. Moreover an action for failure to act would have been declared inadmissible for lack ói a present and actual interest in taking proceedings. The applicants consider that the individual decision of 22 March 1982, which concerned only Category Ia and Ib products in the third quarter of 1981, in fact contained no reply to their request for the increase of their production quotas for Category Ic products for the third quarter of 1981 and of their production quotas for Category Ia, Ib, Ic and Id products for the fourth quarter of 1981. Furthermore, even admitting that the Commission's decision contained an implied reply to the applicants' requests, they had no legal interest at that time in challenging the legality of the refusal to increase the production quotas, since the applicants' production reached the levels proposed by them at the end of the quarters in question. With regard to the allegation of lack of legal interest, the Commission again asserts in its rejoinder that it is for the Commission, not the applicants themselves, to adjust production quotas pursuant to Article 14.

B — Substance

First submission (infringement of Article 12 of Decision No 1831/81/ECSC and of the general principles of law concerning legal certainty and the personal nature of sanctions): according to the applicants the excess production of Category Ic products found by the Commission should be ascribed to Fabrique de fer de Maubeuge SA, a company distinct from Usines Gustave Boël SA.

The fine was imposed on “Usines Gustave Boël at La Louvière” and covered excess production in Category Ic in particular. Products in that category are the responsibility of “Fabrique de fer de Maubeuge at Louvroil” (hereinafter referred to as “FFM”), a quite distinct company incorporated under French law, with a quotation on the Lille stock exchange. The Commission was aware of that distinction. In failing to take the distinction into account it disregarded the provisions and legal principles referred to in the submission, and its decision was therefore void.

The Commission considers that the provision in issue is not Article 12 but Article 2 (4) of Decision No 1831/81/ECSC. That provision is the legal basis for the Commission's allocation of quotas to “groups of undertakings”, in this case the Boël group.

It is to the person who has the power to control the production of the undertaking that the quota system should be addressed, to ensure in particular that the system is observed. In a Decision of 7 July 1975 on the establishment of Queensborough Steel Co. Ltd by Usines Gustave Boël SA and Helical Bar Ltd, the Commission has already found that the Boël undertaking has the power “to control, within the meaning of Decision 24-54 of the ECSC High Authority” FFM, among others, and that FFM “is therefore concentrated with Boël within the meaning of Article 66 (1)” of the ECSC Treaty.

Finally, the principle that sanctions should be personal is a principle of criminal law and does not apply in proceedings which are administrative in nature.

In its reply, Boël argues that Article 2 (4) of Decision No 1831/81/ECSC in no way provides that fines may be imposed on any undertaking of the group whatever, even on an undertaking which was not involved in the alleged non-observance of quotas in question. Although the notion of a “group” is recognized in Community law, the fact remains that a sanction, which may entail measures of enforcement, may be imposed only on legal entities recognized by the applicable national law, that is, on one or more specific legal or natural persons with regard to whom the sanction is justified.

The Court cannot accept that the Commission thus impose a sanction on Boël alone, which has no legal means of passing on all or part of the burden to another company in the group.

In its rejoinder the Commission argues that the exceeding of quotas in respect of which fines were imposed concerns the undertaking to which the production quotas were addressed. If the applicants were dissatisfied with the system they should have challenged the legality of Article 2 (4) of the general decision at the outset or that of the individual decisions fixing quarterly quotas for Boël and not for FFM.

As for the new argument that rules of national law make it impossible to apportion the burden of the fine between the applicants, that is one of the internal problems inherent to groups of undertakings, which cannot call in question the rule appropriate to the specific needs of the quota system and of the objectives to be attained by means of that system (judgment of 13. 7. 1962, Joined Cases 17 and 20/61 Klöckner and Hoesch ν High Authority, [1962] ECR 325).

Second submission (breach of the general legal principle of the rights of the defence embodied inter alia in Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, according to which the reasons on which a decision is based must be stated, and breach of Articles 5, 15, 33 and 36 of the ECSC Treaty): according to the applicants, certain arguments put by them to the Commission were not considered or refuted.

They argue in the first place that the Commission should have stated the grounds for its decision to impose a fine on Boel for FFM's exceeding the quotas. The Commission also failed to reply to Boël's request for the alteration of the quotas for Category Ic products for the third quarter or for products in Categories la to Id or the fourth quarter of 1981.

Furthermore, in its decision of 24 March 1983 the Commission did not reply to a number of submissions made by the applicants, who argued that they had not exceeded the quotas allocated to them.

The Commission considers that as regards the adjustment of the quotas it simply applied Article 14 of Decision No 1831/81/ECSC. It took the view that the conditions for the adjustment of the quotas were not fulfilled when the abatement rate for each category and subcategory of products for a given quarter did not exceed 20%; the applicants were aware of that.

The Commission points out, moreover, that it cannot be classed as a “tribunal” within the meaning of Article 6 of the European Convention on Human Rights (judgment of 12. 10. 1980, Joined Cases 209 to 215 and 218/78 Van Landewyck ν Commission [1980] ECR 3125, paragraph 81 of the decision).

As for the Commission's alleged failure to state adequate grounds for its decision of 24 March 1983, the Court has consistently held that while the Commission is obliged, pursuant to the provisions of the Treaties, to state the grounds for its decisions, indicating the elements of fact and of law which provide the legal justification for the measure and the considerations which prompted the decision, it is not required to refer to each point of fact and of law raised by each person concerned in the course of the administrative procedure. The Commission replied to all the submissions and gave legally adequate grounds for its decision as a whole. It did not however reply to each argument, in particular when an argument concerned the quota system rather than the fine.

In their reply the applicants deny knowing that the Commission was not obliged to reply to their requests, which allegedly did not fulfil the conditions laid down by Article 14 of Decision No 1831/81/ECSC. Furthermore, while it may perhaps be accepted that the Commission is not required to refer to each point of fact and of law raised by each person concerned in the course of the administrative procedure leading to a general decision, that is not true in the case of an individual decision adopted after a special procedure and dealing with a specific, concrete case. The Commission must furnish the undertaking with the means of ascertaining on what grounds its remarks have not been accepted.

In its rejoinder the Commission maintains that the question of the adjustments of quotas tends to be a matter of practice and of administration, particularly in cases where it considers that a request for adjustment cannot be met. Failure to reply amounts to an implied decision rejecting the request.

Third submission (breach of the general legal principles of the rights of the defence and of the prohibition of abuse of power): according to the applicants the Commission extended to Categoiy Ic products the quota system as previously structured without giving the undertakings concerned — FFM among them — the opportunity to review the reference period with regard to the production affected by the new measure.

The Commission gave as grounds for its decision fixing the quotas the fact that the reference period chosen pursuant to Decision No 2794/80/ECSC could not be changed. But that decision did not apply to Categoiy Ic products, which were not brought under the quota system until the following year. Before applying the quota system to those products by its Decision No 1831/81/ECSC, the Commission should therefore have consulted the undertakings concerned with regard to the retention or alteration of the reference period.

The Commission emphasizes that even if it is possible to rely on the “rights of the defence” with reference to the preparation of legislation, its decision was made in accordance with the conditions set out in Article 58 (2) of the Treaty, on the basis of studies carried out in conjunction with the undertakings and after consulting the undertakings. Furthermore it did not freeze the situation and “extend to Category Ic products the quota system as previously structured...”. Finally, the reference period was laid down on the basis of the references of the group as defined pursuant to Article 2 (4) of Decision No 1831/81/ECSC.

In their reply the applicants deny having been consulted by the Commission.

The Commission states that it consulted “undertakings” “in accordance with the requirements of Article 58 (2) of the Treaty” which does not imply that it must consult each undertaking individually (judgment of 16. 2. 1982, Case 258/80 Ritmi ν Commission [1982] ECR 487).

Fourth submission (breach of the general legal principle which prohibits discrimination, of Article 58 of the ECSC Treaty and Articles 6, 7 and 8 of Decision No 1831/81/ECSC): according to the applicants, the criterion used by the Commission in determining reference productions altered their traditional share of steel production, in contrast with the case of competing undertakings, some of whom were not even able to use up their whole production quotas for Categoiy Ic products.

The applicants therefore challenge the criterion used by the Commission in determining reference productions. According to the case-law of the Court, reference production should be based on the actual production of undertakings and not on their production capacity. The criterion used by the Commission altered the applicant's market position in relation to their competitors, to the detriment of the applicants.

As a result in the third and fourth quarters of 1981 quotas for Category Ic products proved to be higher than Community production, whereas FFM was continually hampered by its quotas. The applicants conclude from this that FFM suffered discrimination.

The Commission does not see how it discriminated in any way whatever. In the exercise of its discretion as recognized by the Court, the Commission tried to maintain a balance between all the undertakings affected by production restrictions. The system does not imply that the Commission must necessarily ensure that each undertaking retains its market share, quite apart from the difficulty of quantifying that share and its development.

The Commission also disputes the contention that FFM's excess production formed part of Community production. It questions the utility of the quota system if it were possible in advance to anticipate unauthorized exceeding of quotas.

In their reply the applicants state that they do not understand how it can be said that the production of Category Ic products was limited for each undertaking, when it is admitted that Community undertakings as a whole were not able to use up all the quotas allocated.

In its rejoinder the Commission maintains that the very essence of the system established on the basis of Article 58 of the ECSC Treaty was the limitation of production. The limitation is intended to affect every undertaking, in order to ensure solidarity in the face of the crisis in the steel industry.

Fifth submission (infringement of Articles 5, 15, 33, 36 and 58 of the ECSC Treaty and of the general legal principle which prohibits discrimination) : the applicants take the view that the quota system established by Decision No 1831/81/ECSC resulted in a clear worsening of their position, in comparison with the system under Decision No 2794/80/ECSC.

They state that Article 14 of Decision No 1831/81/ECSC (which provides for the adjustment of reference productions in the case of exceptional difficulties) includes no general equitable clause, in contrast with Article 14 of Decision No 2794/81/ECSC. On the contrary, the possibility of adjustment is now subject to restrictive conditions. Not only, therefore, did the applicants lose part of the market, but they became subject to a restriction of production without being able to rely on a general equitable clause which would have allowed them to obtain an adjustment of their quotas, in order to avoid the threat of going out of business. Moreover, no reasons were given for the decision to omit the general equitable clause. If such a clause had existed, the applicants could have benefited from it since the Commission has recognized on more than one occasion that the Boël group was in difficulties which endangered its survival and that the two applicants had to suspend their activities temporarily after the introduction of the quota system.

The Commission points out that the question of the conditions of application of Article 14 of Decision No 1831/81/ECSC was the subject-matter of Case 317/82, also between the applicants and the Commission. As point 7 of the explanatory notes in the preamble to Decision No 1831/81/ECSC shows, Article 14 was revised in particular to take account of medium-sized undertakings, such as the applicants, which may be “especially threatened with high abatement rates”. There can therefore be no question of discrimination against the applicants.

In their reply the applicants argue that Case 317/82 concerned only Article 14 of Decision No 1696/82/ECSC, which differs in wording from Article 14 of Decision No 1831/81/ECSC. Moreover it is contradictory to argue that Article 14 of Decision No 1831/81/ECSC was adopted in order to take account of medium-sized undertakings when it is more restrictive than the article it replaced.

In its rejoinder the Commission takes the view that as regards the requirements that for each category and subcategory of products the abatement rate exceed 20%, the reference to Case 317/82 is relevant and it cites paragraph 12 of the judgment of 22 June 1983. For the rest it maintains its previous observations.

Sixth submission (infringement of Articles 3 (f), 58, 61, 73 and 95 of the ECSC Treaty): the applicants take the view that by imposing production quotas which also cover production for export and by establishing a system of delivery quotas, the Commission exceeded the powers conferred on it; the procedure under Article 95 of the ECSC Treaty should have been used.

In adopting Decision No 1831/81/ECSC the Commission indirectly restricted exports; that was contrary to the division of powers established by the ECSC Treaty, Article 73 of which provides that the regulation of external trade is a matter for the Member States. The Commission has the power only to fix quotas for the level of sales expected on the common market, that is, for foreseeable Community demand, deducting from actual production the quantities which are proved to have been exported to non-member countries.

Furthermore, Article 58 of the ECSC Treaty provides only for the fixing of production quotas, not of delivery quotas. In adopting rules regarding the part of production quotas which may be delivered on the common market, the Commission therefore again exceeded the limits of its powers.

The Commission emphasizes that the arguments raised by the applicants have already been rejected by the Court, in particular in its judgment of 11 May 1983 (Case 244/81 Klöckner[1983] ECR 1451, at paragraphs 39 to 47 of the decision).

In their reply the applicants argue that the Commission has not replied to the submission of infringement of Articles 29 and 73 of the ECSC Treaty; the Commission disputes that allegation.

Seventh submission (breach of the general legal principle of the rights of the defence, of the general legal principle which requires the Commission to take a decision on each aspect of an application submitted to it, of Article 58 of the ECSC Treaty and of Articles 12 and 14 of Decision No 1831/81/ECSC): the applicants argue that in not acceding to the request for appropriate adjustment of the reference for the third quarter of 1981, in so far as the request related to Category Ic products, on the sole ground that Category Ic products were not subject to an abatement rate of at least 20% for that quarter, the Commission added a condition which was not included in Article 14 of Decision No 1831/81/ECSC of 24 June 1981, and thus infringed the provision it purported to apply.

They make the point that the Commission failed to give a decision on their requests for adjustment of the quotas for Category Ic products for the third quarter of 1981, and for products in Categories Ia to Id for the fourth quarter of 1981. The Commission probably gave no decision on those requests because it considered that the conditions of application of Article 14 were not met. If the general decision had contained a general equitable clause the applicants ought to have had their quotas adjusted.

In this respect the applicants again raise arguments similar to those which they put forward in Case 317/82 with reference to Article 14 of Decision No 1696/82/ECSC, concerning what they consider to be the appropriate interpretation of Article 14 of Decision No 1831/81/ECSC.

The Commission argues that the conditions of application of Article 14 were not met, as the applicants were well aware. For the rest it refers to its submissions in Case 317/82.

Eighth submission (breach of the general legal principle of the protection of legitimate expectations): the applicants argue that the Commission did not reply to a letter of 28 October 1981 which Boël concluded with the statement that “unless the Commission indicated otherwise”, Boël would consider that the Commission had agreed to the production quotas which Boël had proposed and the applicants were thus legitimately entitled to conclude that the Commission had approved the proposed quotas.

It was not until much later that the Commission told Boël that silence on the part of the Commission could not amount to a basis for derogation from the regulations in force. The applicants argue that an early reply from the Commission was all the more necessary in that it is trade usage to negotiate general contracts before the beginning of a quarter covering a given tonnage to be produced and delivered during that quarter.

The Commission denies that its silence can be treated as equivalent to assent. This is particularly true in the case of legislation applicable to all steel undertakings affected by the system. In the application of Article 14 of Decision No 1831/81/ECSC it is not appropriate for relaxations of the general quota system, which must be considered case by case, to be decided on the basis of a sort of tacit assent of the institution concerned where no reply is received from it.

Moreover the principle of legitimate expectation normally concerns rights that have been granted and not the mere possibility of enjoying supplementary rights.

The applicants argue, in their reply, that it is incorrect to maintain that silence on the part of the administration must in all cases be considered equivalent to rejection. The general legal principle recognized by the Member States of the “autonomie de la volonté” (power to enter into obligations by expressions of will) applies also in Community law. The clause “unless the Commission indicates otherwise” made it impossible for the Commission to remain silent if it disagreed.

In its rejoinder the Commission replies that reference to a “general legal principle” of the “autonomie de Ia volonté” is irrelevant in the case of public law-making and all the more so in a Community system of restriction of supply prompted by a serious crisis in the Community steel industry.

Ninth submission (breach of the general legal principles of legal certainty, of the imposition of a penalty on the person to whom it applies, of the obligation to state the grounds on which a decision is based in accordance with the law, of the protection of legitimate expectations, of the rule patere legem quam ipse fecisti, of Articles 5, 15, 33, 36 and 58 of the ECSC Treaty and Article 12 of Decision No 1831/81/ECSC): according to the applicants, the Commission may not unilaterally and after the fact add rules regarding the assessment of a fine which do not appear in Article 12 of Decision No 1831/81/ECSC, as it did in the present case by taking into account inter alia the fact that the undertaking was operating at a profit, that it had already exceeded its quota or quotas in a previous quarter and that the quotas were exceeded by 10% or more.

The applicants point out that the reasons given by the Commission for the amount of the fine included the following:

“In the case of undertakings operating at a profit the fine should be increased by 25%, that is, to 93.75 ECU per tonne in excess, if the undertaking has already exceeded its quota or quotas in a previous quarter or if the excess is 10% or more; In the case of undertakings operating at a profit, the fine should be increased by 50%, that is, to 112.50 ECU per tonne in excess, if the undertaking meets both conditions set out in the previous paragraph.”

Article 12 of Decision No 1831/81/ECSC provides that:

“A fine, generally of 75 ECU for each tonne in excess, shall be imposed on any undertaking exceeding its production quotas or part of such quotas which may be delivered on the common market. If an undertaking's production exceeds its quota by 10% or more, of if the undertaking has already exceeded its quota or quotas during one of the previous quarters, the fine may be up to double that amount per tonne...”

Having chosen those criteria, the Commission may not, after the event, apply other factors for fixing the fine as it did in the present case by taking into account inter alia the fact that the undertaking, operates at a profit. By subsequently amending the criteria laid down by Decision No 1831/81/ECSC, without consulting the Consultative Committee or obtaining the assent of the Council, the Commission infringed the provisions and principles referred to in the submission.

Moreover the Commission was guilty of discrimination by increasing the fine on the ground that the undertaking operates at a profit without taking into account the fact that it receives no special aid.

Furthermore the statement of the reasons on which the decision was based was inadequate.

Finally, in so far as Category Ic products are concerned the alleged infringements were not committed by the first applicant, on which the Commission imposed the fine, but by FFM. FFM did not operate at a profit in 1981 and had not already exceeded its quota or quotas in a previous quarter.

The Commission points out that in Article 12 of Decision No 1831/81/ECSC it laid down general outlines regarding the imposition of fines. The wording of the article shows that within those general outlines the Commission retains a degree of discretion. It cannot be criticized for failing to apply the criteria of Article 12 in all their rigour.

The applicant is complaining, in effect, that it was fined only 112.50 ECU for each tonne in excess of the quota instead of 150 ECU per tonne.

In any event, variation of the amount of the fine according to whether the undertaking's balance-sheet is positive or negative corresponds to treating differently situations which are not comparable. The notion is simple enough in itself not to require any substantial statement of reasons. It is justified by the reasons set out by the Court in its judgment of 18 March 1980 (Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Ferriera Valsabbia SpA [1980] ECR 907, paragraphs 157 to 159 of the decision). That judgment shows how such a distinction between undertakings according to their financial state with a view to adjusting the amount of the fine to the particular circumstances is based on the principle of solidarity.

Furthermore there was no need to consult the Consultative Committee and the Council inasmuch as it was merely a matter of implementing the detailed rules for the application of Article 12 of Decision No 1831/81/ECSC, in the exercise of the discretion which that article leaves to the Commission.

Finally, in the case of undertakings which are concentrated within the meaning of the ECSC Treaty, quotas are fixed for the group as such. In this case the decisions fixing quotas and imposing fines for exceeding quotas were addressed to the Boël group, not to FFM.

IV — Oral procedure

At the sitting on 24 November 1983, the applicants, represented by E. Gutt, of the Brussels Bar, and the Commission, represented by E. Lasnet, acting as Agent, and M. Gerin, acting as expert, presented oral argument and replied to questions put by the Court.

The Advocate General delivered her opinion at the sitting on 12 January 1984.

Decision

1. By an application lodged at the Court Registry on 29 April 1983, Usines Gustave Boël, a limited liability company incorporated under Belgian law, and Fabrique de fer de Maubeuge, a limited liability company incorporated under French law, brought an action pursuant to the second paragraph of Article 33 and the second paragraph of Article 36 of the ECSC Treaty for a declaration that the Commission decision of 24 March 1983, notified on 30 March 1983 to the undertaking Usines Gustave Boël SA, La Louvière, Belgium, imposing a fine of 111024570 Belgian francs on that undertaking pursuant to Article 58 of the ECSC Treaty was void, and in the alternative, for the reduction of the amount of the fine.

2. Article 1 of the contested decision states that “the Boël undertaking” has infringed the quota system established by Commission Decision No 1831/81/ECSC of 24 June 1981 (Official Journal, L 180, p. 1) by exceeding the production quota for Category Ic products by 1007 tonnes and exceeding the part of that quota which may be delivered on the common market by 3878 tonnes in the third quarter 1981, and by exceeding the production quota for Category Ic products by 12943 tonnes and exceeding the parts of the quotas for Categoiy Ia and Ic products which may be delivered on the common market by 161 and 14921 tonnes respectively in the fourth quarter of 1981.

3. In their first, third, fourth, fifth, sixth and seventh submissions the applicants contest the Commission decisions whereby their quotas were fixed or adjustments to the quotas were refused, and challenge the legality of the general decisions on which the individual decisions were based. In the first submission the applicants object that the Commission dealt with Fabrique de fer de Maubeuge SA and Usines Gustave Boël SA together, although the two companies are distinct. In the third submission the applicants challenge the extension of the quota system, as previously structured, to Category Ic products and in their fourth submission they contest the criterion used by the Commission in ascertaining reference productions. In the fifth and sixth submissions they object that the quota system imposed by the Commission does not include a general equitable clause and that it applies to production for export and to deliveries. In the seventh submission the applicants call in question the Commission's implied refusal to adjust the reference productions in accordance with Article 14 of Decision No 1831/81/ECSC.

4. In the above-mentioned submissions the applicants do not deny that the quotas were in fact exceeded, but simply challenge the legality of individual Commission decisions which became final when they were not contested within the period prescribed by the Treaty. It is well-established case-law that an applicant may not, in an application for a declaration that an individual decision is void, raise an objection of illegality relating to another individual decision addressed to him which has become final. That being so, the applicants may not effectively rely on the illegality of the individual decisions which fixed their quotas or parts of quotas for the third and fourth quarters of 1981, or refused to adjust them, and to that extent the submissions mentioned above must be rejected.

5. Moreover, the applicants may not plead the illegality of the provisions of a general decision unless the contested individual decision is based on those provisions (judgment of 28. 10. 1981, Cases 275/80 and 24/81 Krupp [1981] ECR 2489). The provisions of Decision No 1831/81/ECSC which the applicants allege are illegal deal not with the imposition of a fine but solely with the fixing and adjustment of quotas.

6. The applicants may not rely on the argument that they had already exceeded the quotas allocated to them, in order to justify the fact that, lacking a legal interest, they did not within the prescribed period contest the individual decisions fixing their quotas or refusing to adjust them. The applicants were in no way authorized unilaterally to exceed the production quotas imposed on them by the Commission.

7. Finally, the Court notes that it has already held in its judgment of 31 March 1965 (Case 21/64 Maccbiorlati Dalmas [1965] ECR 175) that the strict time-limit for instituting proceedings for a declaration that a provision is void is in keeping with the necessity to prevent the legality of administrative decisions being called in question indefinitely. Having regard to those considerations, the submissions referred to must be declared inadmissible in their entirety.

8. For the same reasons the second submission is inadmissible in so far as it alleges that the Commission failed to reply to certain aspects of the requests for adjustment of the applicants' quotas for the third and fourth quarters of 1981 and failed to state adequate reasons for its decision adjusting the quotas for the third quarter of 1981. It is, however, admissible in so far as it is based on the inadequacy of the statement of reasons for the decision of 24 March 1983 contested in this action.

9. It must, however, be pointed out that the great majority of the arguments to which the applicants claim the Commission did not reply concerned the fixing of the quotas and not the imposition of the fine. No complaint may be made against the Commission for failing to reply to points extraneous to the decision in question. In regard to the other arguments, the Court considers that the Commission stated in its decision the main reasons which led it to impose a fine on the Boël group for exceeding its quotas and the second submission must therefore also be rejected.

10. In their eighth submission the applicants complain that the Commission failed to reply to the letter of 28 October 1981 in which the Usines Gustave Boël SA requested the adjustment of its production quotas and finished by saying that, unless the Commission indicated otherwise, it would consider the Commission to be in agreement with the production quotas it proposed. The applicants claim that since the Commission remained silent they were justified in concluding that the Commission had approved the proposed quotas.

11. It should be noted in this regard that the system of restrictions on the production of steel undertakings allows of adjustments to individual quotas allocated to particular undertakings only in exceptional cases, and for such an adjustment a positive decision granting supplementary quotas is indispensable. The Commission's silence, regrettable though it may be, can therefore be treated only as an implied decision of refusal and not as tacit consent to an adjustment. The eighth submission must therefore also be rejected.

12. In their ninth submission the applicants complain that without consulting the Consultative Committee or the Council the Commission laid down ex post facto additional rules for the fixing of fines which do not appear in Article 12 of the general decision and which are based on the fact that the undertaking operates at a profit. Furthermore, the applicants claim that Fabrique de fer du Maubeuge SA made a loss and the Commission failed to take account of that fact.

13. It should be observed that the Court has already considered that it is justified to adjust the fine according to the undertaking's financial situation (judgment of 10. 3. 1980, Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Ferriera Valsabbia SpA [1980] ECR 1026). Moreover, contrary to the applicants' contention, the Consultative Committee and the Council need not be consulted where it is merely a matter of implementing detailed rules for the application of Article 12 of Decision No 1831/81/ECSC in the exercise of the discretion which that article leaves to the Commission. Finally, the Commission was not obliged to take account of the financial situation of Boël's subsidiaries taken individually since according to Article 2 (4) of Decision No 1831/81/ECSC a group of undertakings which are concentrated within the meaning of Article 66 of the Treaty is to be considered as a single undertaking, even if the undertakings are located in different Member States.

14. The action must therefore be dismissed in its entirety.

Costs

15. Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the applicants have failed in their submission they must be ordered to pay the costs.

On those grounds, THE COURT (First Chamber) hereby:

1 Dismisses the application;

2 Orders the applicants to pay the costs.