Judgment of the Court (Fifth Chamber) 15 January 1985
In Case 250/83
THE COURT (Fifth Chamber) composed of: O. Due, President of Chamber, C. Kakouris, U. Everling, Y. Galmot and R. Joliét, Judges, Advocate General: C. O. Lenz Registrar: H. A. Rühi, Principal Administrator
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:
1. The relevant regulations
1.1. On 1 February 1980 the Commission adopted a general decision, Decision No 257/80 establishing Community rules for specific aids to the steel industry (Official Journal L 29, p. 5), whereby a system of notification and approval of specific aids to the steel industry was introduced with a view to ensuring that such aid was directed to well-defined aims and in particular contributed to the restructuring of the sector, that its duration and extent was restricted and that it would not cause unacceptable distortion to competition. Decision No 257/80 was replaced by another general decision, Commission Decision No 2320/81 of 7 August 1981 (Official Journal L 228, p. 14). The preamble to the latter decision includes the following statement: Article 1 of Decision No 2320/81 provides inter alia that all aid to the steel industry financed by Member States or through State resources in any form whatsoever may be considered compatible with the orderly functioning of the Common Market only if it respects the general rules set out in Article 2 and satisfies the provisions relating to investment aid (Article 3), aid for closures (Article 4), aid for continued operation (Article 5), emergency aid (Article 6) and aid for research and development (Article 7).
‘II. In order to ensure that the essential restructuring of the industry is embarked on without delay and accomplished as quickly as possible, it is necessary to make provision for the progressive reduction and elimination of aids within fixed time-limits. These time-limits must apply not only to Member States' decisions to grant aid but also to the payment of the aid. It is appropriate also to differentiate between various forms of aid, with a view to placing greater time constraints on those which are likely to have more damaging effects on competition and to be less effective in promoting restructuring.’
1.2. When a period of manifest crisis within the meaning of Article 58 of the ECSC Treaty arose, the Commission introduced by means of Decision No 2794/80 of 31 October 1980 (Official Journal L 291, p. 1) a system of production quotas for the Community iron and steel industry. The system so established was extended on several occasions, inter alia by Commission Decision No 2177/83 of 28 July 1983 on the extension (up to 31 January 1984) of the system of monitoring and production quotas for certain products of undertakings in the steel industry (Official Journal L 208, p. 1). The quota system is based inter alia on the principle that all undertakings should have their effective production during the reference period subject to uniform rates of abatement. However, in view of the rigidity of that principle certain exceptions were provided for. In the first place, the first paragraph of Article 14 of Decision No 2177/83 provides inter alia that: In addition, Article 15a of the decision provides: Finally, Article 18 provides inter alia; By Decision No 2748/83 of 30 September 1983 amending for the second time Decision No 2177/83/ECSC on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (Official Journal L 269, p. 55) the Commission replaced the first indent of the first paragraph of Article 14 of Decision No 2177/83 by the following: The reasons for the amendment are given in the preamble to Decision No 2748/83 as follows : “Whereas the first paragraph of Article 14 of Decision No 2177/83/ECSC starts as follows: “If, by virtue of the scale of the abatement rate for a certain category of products set for a quarter, the quota system creates exceptional difficulties for an undertaking which, during the 12 months preceding the quarter in question: did not receive aids pursuant to Commission Decision No 2320/81/ECSC with the exception of aids for closures as provided for in Article 4 of that Decision”; ... Whereas this wording renders ineligible a number of undertakings which are experiencing exceptional difficulties although they have received certain aids pursuant to Commission Decision No 2320/81/ECSC, other than the aids for closures as provided for in Article 4 of that Decision; Whereas undertakings which have received aids authorized by the Commission with a view to covering operating losses must be excluded from the benefit of Article 14 since it would be unjustifiable to grant supplementary quotas to an undertaking in order to retrieve a situation of exceptional difficulties whilst, on the other hand, it has received aids granted with a view to covering operating losses for the same reason; Whereas, in the light of the numerous requests received from various undertakings since Decision No 2177/83/ECSC was adopted, it would appear inequitable not to allow those which have received aids to benefit from adjustments under Articles 14 and 14a, with the exception, however, of those undertakings which have received aids authorized by the Commission with a view to covering operating losses; Whereas, such being the case, the application of Decision No 2177/83/ECSC has therefore encountered an unforeseen difficulty within the meaning of Article 18 (1) thereof...’.
‘If, by virtue of the scale of the abatement rate for a certain category of products set for a quarter, the quota system creates exceptional difficulties for an undertaking which, during the twelve months preceding the quarter in question:
did not receive aids pursuant to Commission Decision No 2320/81/ECSC, with the exception of aids for closures as provided for in Article 4 of that decision,
...
the Commission shall, in respect of the quarter in question, make a suitable adjustment to the quotas and/or parts of quotas which may be delivered in the Common Market for the category or categories of products in question, provided that the undertaking makes an application to this effect...’.
‘1. The Commission may make a reduction in an undertaking's quotas if it establishes that an undertaking in question has received aids not authorized by the Commission pursuant to Decision No 2320/81 /ECSC or if the conditions under which aids were authorized have not been complied with. The undertaking in question shall not be entitled to an adjustment under Article(s) 14, ...’
‘If... the application of this decision encounters any unforeseen difficulties, the Commission shall carry out the necessary adjustments by general decision.’
‘— did not receive aids authorized by the Commission with a view to covering operating losses’.
2. Facts and procedures
By an application of 10 November 1983, received at the Court Registry on the same day, Finsider (Società finanziaria siderurgica per azioni), an Italian company, brought an action under the second paragraph of Article 33 of the ECSC Treaty for a declaration that Commission Decision No 2748/83 is void.
By an order dated 16 May 1984 the Court assigned the case to the Fifth Chamber.
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.
3. Conclusions of the parties
The applicant claims that the Court should:
a) Declare void the part of the contested decision referred to in the application;
b) Adopt any further measure, in the light of inter alia Article 34 of the ECSC Treaty, which it considers necessary; and
c) Order the Commission to pay the costs.
The Commission contends that the Court should:
Dismiss the action;
Order the applicant to pay the costs.
4. Submissions and arguments of the parties
Admissibility
With regard to the admissibility of the action the Commission relies on the wisdom of the Court.
Substance
The applicant claims that Decision No 2748/83 should be declared void on the following grounds:
1) The decision is vitiated by misuse of powers because it discriminates against the applicant;
2) It is illegal because it:
a) infringes Article 18 of Decision No 2177/83;
b) breaches essential procedural requirements and fails to state reasons;
c) infringes Decision No 2320/81 because it constitutes a misuse of powers;
d) breaches the principle of equal treatment provided for in Article 4 (b) of the ECSC Treaty.
4.1. Alleged unlawfulness of Decision No 2748/83 for misuse of powers by discriminating against the applicant
The applicant states that according to the original version of Article 14 of Decision No 2177/83 additional quotas were to be granted or refused on the basis of a criterion which did not cause unreasonable discrimination between the undertakings: additional quotas were to be refused to undertakings which had already received aid within the States to which they belonged, whereas it might be granted to their ‘unassisted’ competitors whose unfavourable position justified more favourable treatment.
After the adoption of Decision No 2748/83 the position was radically changed: the possibility of additional quotas was extended to all producers but discrimination was introduced (solely) with regard to undertakings which received aid to cover operating losses, thus restricting their productive capacity and their ability to compete with other undertakings.
The applicant considers that such discrimination between undertakings in the same sector in the common market shows that the contested decision constitutes a misuse of powers which is apparent even in the grounds for the decision cited by the Commission in the fourth recital in the preamble to the decision.
In the first place, the reference to ‘aids intended to cover operating losses’ as a criterion of discrimination between undertakings which ‘merit’ additional quotas and undertakings which do not ’merit’ them is certainly arbitrary, when the effect of the aid on the activity of the undertaking does not necessarily depend on the nature of the aid itself.
In the second place, the purpose and effect of Decision No 2748/83 are quite different from the aims which the Commission's power to lay down rules for additional quotas by means of decisions is intended to serve. The criteria for granting additional quotas must necessarily serve the aim of allowing the undertakings which have been caused exceptional difficulties by the quota system to receive additional quotas, in preference to other undertakings. The criterion adopted by Decision No 2748/83 is likely to exclude from entitlement to additional quotas undertakings which have the worst operating results, that is, undertakings which have suffered such exceptional difficulties that their losses have forced the State to intervene.
Moreover, the contested decision is intrinsically defective because it is unlawful to discriminate unjustifiably and unreasonably, as the decision does, against undertakings which more than any others are in a position requiring support and aid.
The Commission states that it has a wide discretion in determining the conditions for entitlement to additional quotas. It refers to the judgments of the Court of 11 May 1983 in Joined Cases 303 and 312/81 (Klöckner-Werke v Commission [1983] ECR 1507) and 22 June 1983 in Case 317/82 (Usines Gustave Boël v Commission [1983] ECR 2041).
Just as it does when it introduces or extends the general quota system, it took into account, for the purposes of applying the equity clause in Article 14, all the current economic, social and market circumstances. Based on that, the wording of Article 14 seeks to reconcile that assessment of the circumstances with the general aims expressed in the opening articles of the Treaty and with the fact that Article 14 is a derogation from the general rules. After Decision No 2177/83 was adopted, following a fresh worsening of the crisis and especially when it became clear that there were unforeseen difficulties in applying the decision, the Commission adopted Decision No 2748/83 which added a further condition to those already provided for in Articles 14 and 15a of Decision No 2177/83, namely that the undertakings had not received aid intended to cover operating losses.
The Commission considered that in view of the very limited amount of the reserve, the worsening of the crisis in the steel sector and the exceptional difficulties which the application of Article 14 of Decision No 2177/83 caused for certain categories of undertakings, additional quotas could be granted only to undertakings which had not received aid intended to cover operating losses. The Commission considers that such aid has the greatest adverse effect on competition and is farthest from the true aim pursued by the Commission, namely to restructure undertakings.
In conclusion, by introducing a new condition which was likewise objective and general and thus did not discriminate against the applicant, the Commission was merely exercising the discretion which it enjoyed.
4.2. Unlawfidness of Decision No 2748/83
4.2.1. Alleged infringement of Article 18 of Decision No 2177/83
a) The applicant submits tht the contested decision is based in particular on Article 18 of Decision No 2177/83. Inter alia, the Commission stated that the wording of the first indent of the first paragraph of Article 14 rendered ineligible a number of undertakings experiencing exceptional difficulties, and concluded that what had occurred was unforeseeable. In that respect the applicant points out that Decision No 2177/83 was adopted on 28 July 1983, yet as early as 29 June 1983 the Commission had adopted (cf. Official Journal L 227, p. 1) individual decisions relating to aid granted by States to iron and steel undertakings and thus was well aware of the various kinds of aid which the States were, and still are, intending to grant. It is apparent from those decisions that no State was (or is) intending to grant aid solely for the purpose of closing steel works. The Commission was thus well able to foresee that very few undertakings would be able to claim the application of Article 14 of Decision No 2177/83 and therefore benefit from the adjustments for which it provides. Consequently, Decision No 2748/83 is unlawful for infringement of Article 18 of Decision No 2177/83.
b) The Commission states that in the days following publication of Decision No 2177/83 it received numerous requests for adjustment of quotas from small and medium-sized undertakings which alleged that they were experiencing exceptional economic difficulties as a result of the quota system and the worsening of the crisis in the iron and steel market. On examining the situation of those undertakings the Commission found that since they had received aid, often of a modest or even derisory amount, for purposes other than to cover operating losses, they could not obtain an adjustment of their quotas, as they could have under the previous system. Only then did the Commission appreciate that the effect of the restrictions introduced by Decision No 2177/83 was to exclude from entitlement to adjustment of quotas undertakings which merited it, which were facing exceptional difficulties and which had obtained additional quotas in the past. Consequently, the Commission endeavoured to remedy the situation by adopting Decision No 2748/83. The Commission concludes that the adoption of Decision No 2748/83 was fully within its powers under Article 18 of Decision No 2177/83.
4.2.2. Alleged breach of essential procedural requirements (Article 33 of the Treaty) and failure to state reasons (Article 15 of the Treaty)
a) The applicant states that according to Article 15 of the Treaty all measures of the Commission must state the reasons on which they are based. Moreover, since Article 18 of Decision No 2177/83 is of an exceptional nature it requires a very precise statement of reasons. The Commission ought to have stated clearly what were the unforeseen difficulties in the application of Decision No 2177/83. In the present case the Commission confined itself to stating categorically that, since the wording of Article 14 of Decision No 2177/83
‘(i) renders ineligible a number of undertakings which are experiencing exceptional difficulties' and
ii) various undertakings had requested the application of Article 14, the application of Decision No 2177/83 ‘has encountered an unforeseen difficulty’ which justified the adoption of Decision No 2748/83, without attempting to explain what the ‘unforeseen’ difficulties were.
b) The Commission considers that the complaint of failure to state reasons is without foundation since the preamble to Decision No 2748/83 was sufficiently clear to allow the objectives pursued by the Commission to be understood. The Commission relies on the case-law of the Court, especially the judgment of 3 March 1982 in Case 14/81 (Alpha Steel v Commission [1982] ECR 749). In the present case the Commission set out succinctly the unforeseen difficulties which application of the contested decision encountered. It also explained that it was necessary to classify aid granted to undertakings differently from the way in which the previous decision had classified it and the Commission's classification of the various kinds of aid certainly falls within the limits of its discretion.
4.2.3. Alleged infringement of Decision No 2320/81
a) The applicant considers that although Decision No 2748/83 is apparently intended to govern production quotas it in fact seeks to establish an unacceptable hierarchy between the various kinds of aid. No such hierarchy is provided for in Decision No 2320/81, which treats all the aid referred to there, once authorized by the Commission and consequently considered compatible with the ECSC Treaty, as having the same value. Moreover, the Court in its judgment of 7 July 1982 in Case 119/81 (Klöckner-Werke v Commission [1982] ECR 2627) excluded any necessary link between aid and the fixing of quotas. Consequently, the contested decision seeks to amend Decision No 2320/81 in an unacceptable manner and is therefore, from that point of view, vitiated by misuse of powers.
b) The Commission states that the seriousness of the crisis affecting the steel market forced it to accept that aid was essential to overcome the enormous difficulties confronting all undertakings in the Community. However, to prevent aid, which was unfortunately indispensable, from being granted without coordination and involving greater distortion to competition than was strictly unavoidable, the Commission adopted Decisions Nos 257/80 and 2320/81 establishing Community rules for aids to the steel industry. In the latter decision the Commission stated clearly, especially in Section 2 of the preamble, that it did not put all aid in the same category. It is easy to infer from the wording of the decision that apart from emergency aid, the kind of aid which is regarded as most likely to damage competition is aid to facilitate continued operation, the frequency and amount of which must be limited to what is strictly necessary. The Commission states further that in Decision No 2177/83 it had already taken account of the aid being gratned to the steel industry. In the contested decision it merely refined its approach in view of the experience acquired and the exceptional difficulties encountered. Moreover, in the judgment of 7 July 1982 cited by the applicant the Court expressly recognized that when the Commission adopts measures pursuant to Article 58 it may take account of aid granted to steel undertakings, although it is not obliged to do so. The Commission concludes that it has neither amended nor misinterpreted Decision No 2320/81, as the applicant alleges.
4.2.4. Alleged breach of the principle of equal treatment laid down in Article 4 (b) of the Treaty
a) The applicant maintains that the Commission is guilty of a serious breach of the principle of equal treatment, which is the foundation of the iron and steel Community, by knowingly permitting undertakings in the Federal Republic of Germany alone to avail themselves of Decision No 2748/83, thereby causing serious damage to the applicant, which is obviously discriminated against in relation to those undertakings.
b) The Commission considers that the applicant's submission is as serious as it is gratuitous. The Commission repeats what it previously said in relation to the alleged discrimination between undertakings referred to by the applicant. It maintains further that the new Article 14 introduced by Decision No 2748/83 allows the grant of aid for modernization to a good many small and medium-sized undertakings, especially Italian, to the exclusion of the larger undertakings in all the Member States.
5. Oral Procedure
At the sitting on 9 October 1984 oral argument was presented by the applicant, represented by S. Carbone, and by the Commission, represented by O. Montako, acting as Agent.
The Advocate General delivered his opinion at the sitting on 27 November 1984.
Decision
1. By an application received at the Court Registry on 10 November 1983 the Società finanziaria siderurgica per azioni (Finsider), of Rome, brought an action under the second paragraph of Article 33 of the ECSC Treaty for a declaration that a general decision of the Commission, Decision No 2748/83 of 30 September 1983 amending for the second time Decision No 2177/.83/ECSC on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry, is void (Official Journal L 269, p. 55).
2. During the proceedings the applicant defined the purpose of the action. It seeks a declaration that the contested decision is void in so far as it prevents an undertaking in respect of which the quota system caused exceptional difficulties from benefiting from an adjustment of its quotas pursuant to Article 14 of the aforesaid Decision No 2177/83 when within the twelve months prior to the quarter in question it received national aid authorized by the Commission to cover its operating losses. That amendment of Article 14 excludes the grant of additional quotas even if the losses result from the fact that the undertaking was endeavouring to follow the Commission's industrial policy.
3. The applicant puts forward a number of submissions in support of its action. In substance it maintains that Decision No 2748/83 is unlawful by reason of: Misuse of powers with regard to the applicant in that the decision discriminates between undertakings in the same market sector of the steel industry, which is also contrary to Article 4 (b) of the ECSC Treaty. Infringement of Article 18 of Decision No 2177/83, on which the Commission based the contested decision. Misuse of powers with regard to the applicant in that the true aim of the contested decision is to amend Decision No 2320/81 on aid to the steel industry. Breach of essential procedural requirements, especially the obligation to state reasons provided for in Article 15 of the ECSC Treaty.
4. With regard to those submissions it must be borne in mind, first, that the action has been brought against a general decision under the second paragraph of Article 33 of the ECSC Treaty, according to which undertakings may institute proceedings against general decisions which they consider involve a misuse of powers affecting them. In consequence the submission of breach of essential procedural requirements may be dismissed straightaway since such a submission is obviously alien to the concept of misuse of powers. As for the other submissions, their substance must be considered before it may be determined whether or not they concern the concept of misuse of powers.
The alleged discrimination with regard to the applicant
5. The applicant states that Article 14 of Decision No 2177/83 in its original version established an objective criterion for entitlement to additional quotas, namely its restriction to undertakings which had not already received national aid other than aid for closure and that criterion did not cause unreasonable discrimination between the undertakings. By making it possible for undertakings which had received other forms of national aid with the exception of that intended to cover operating losses to obtain additional quotas, Decision No 2748/83 introduced discrimination against undertakings which received the latter kind of aid and thus restricted their ability and productive capacity in relation to all other competing undertakings. Such discrimination is said to be based on an arbitrary, formal and nominal criterion which excludes in advance any analysis of the true reasons for the grant of the aid in question.
6. Moreover, Decision No 2748/83 tends to exclude the possibility of additional quotas for undertakings which have the worst operating results and whose needs are thus the most urgent. The effect of the decision would thus be entirely the opposite of the objective sought in giving the Commission power to draw up a scheme of additional quotas for undertakings for which the system of quotas had created exceptional difficulties. In those circumstances the applicant concludes that the discrimination is not only contrary to Article 4 (b) of the Treaty but also represents a misuse of powers in its case.
7. The Commission contends that when the steel market crisis became worse, and in particular when unforeseen difficulties in the application of Decision No 2177/83 arose, it became necessary pursuant to Article 18 of Decision No 2177/83 to amend Article 14 thereof to make it possible to grant additional quotas to undertakings which had received aid other than that intended for closure while still excluding undertakings which had received aid to cover operating losses. The latter kind of aid produced the most damaging effect on competition and is the farthest from the true objective pursued by the Commission, namely to restructure undertakings. In introducing a new criterion which was objective and general and thus not discriminatory vis-à-vis the applicant, the Commission was merely exercising its discretion for the purpose of an equitable management of the quota system.
8. As the Court has said, inter alia in its judgment of 13 July 1962 in Joined Cases 17 and 20/61 Klöckner-Werke v High Authority ([1962] ECR 325), for the Commission to be accused of discrimination, it must be shown to have treated like cases differently, thereby subjecting some to disadvantages as opposed to others, without such differentiation being justified by the existence of substantial objective differences. In order to determine whether the different treatment of which the applicant accuses the Commission may constitute a misuse of powers in its case, it is therefore necessary in the first place to consider whether the treatment is based on the existence of objective and substantial differences having regard to the aims which the Commission may lawfully pursue as part of its industrial policy in the European steel industry.
9. It appears from the preambles to both Commission Decision No 2320/81 of 7 August 1981 establishing Community rules for aids to the steel industry (Official Journal L 228, p. 14) and the aforesaid Decision No 2177/83 extending the quota system that the rules pursue a common aim, namely to promote the restructuring needed to adapt production and capacity to foreseeable demand and to reestablish the competivity of the European steel industry. It is consistent with that aim that undertakings which have received a form of aid likely to delay the desired restructuring, namely aid intended to cover operating losses, should be excluded from the benefit of the additional quotas, the grant of which may likewise reduce their willingness to restructure. Moreover, the Commission cannot be reproached for imposing a precise and objective criterion leaving no room for consideration of the special circumstances which have led in each case to the operating losses covered by the national aid in question.
10. On the contrary, to have enabled undertakings which during the previous twelve months have received other kinds of national aid authorized by the Commission to obtain additional quotas does not constitute a misuse of power with regard to the applicant. Those other kinds of aid (investment aid, aid for closure or research and development) are in fact likely to encourage restructuring and improvement of competitivity. The distinction made by the contested decision between such aid and aid intended to cover operating losses is thus based on an objective and substantial criterion with regard to the aims which the Commission may lawfully pursue as part of its industrial policy.
11. It follows that the first submission must be rejected.
Alleged infringement of Article 18 of Decision No 2177/83
12. The applicant states that Decision No 2748/83 is based on Article 18 of Decision No 2177/83 which authorizes the Commission, if the application of Decision No 2177/83 encounters any unforeseen difficulties, to carry out the necessary adjustments by general decision. The Commission had been making individual decisions in relation to aid by the Member States to their respective steel undertakings as early as 29 January 1983. Before adopting Decision No 2177/83 it thus had full knowledge of the various kinds of aid which the States intended to grant and thus was in a position to foresee the number of undertakings which could not benefit from the adjustments provided for in Article 14 as originally drafted. Consequently, the difficulties cited by the Commission to justify the adoption of Decision No 2748/83 were not unforeseen and the decision was accordingly illegal for infringement of Article 18 of Decision No 2177/83.
13. The Commission, on the other hand, maintains that as soon as Decision No 2177/83 was adopted numerous applications for an adjustment of quotas were made to it by small and medium-size undertakings which alleged that they had excepţional financial difficulties as a result of the quota system and the intensification of the crisis. On considering the situation of those undertakings the Commission found that since they had received aid, often modest and for purposes other than to cover operating losses, they could no longer obtain an adjustment of their quotas. It was only then that the Commission became aware that the effect of Article 14 of Decision No 2177/83 was to exclude from the benefit of adjustment some undertakings which deserved it. In the circumstances the Commission concluded that the application of the said provision had in fact encountered unforeseen difficulties and that it was perfectly entitled to remedy the situation by adopting Decision No 2748/83 pursuant to Article 18 of Decision No 2177/83.
14. For the purpose of resolving this problem it must first of all be emphasized that the purpose of the amendment to Article 14 of Decision No 2177/83 is within the limits of the adjustments authorized by Article 18 thereof. The submission made by the applicants concerns only the actual circumstance which justifies the authorization, namely that the difficulties encountered were in fact unforeseen. Even if the Commission ought to have foreseen the difficulties in question when adopting Decision No 2177/83, its failure to do so cannot amount to a misuse of powers. It follows that the submission must be dismissed.
Alleged infringement of Decision No 2320/81
15. The applicant maintains that although the aim of Decision No 2748/83 is apparently to regulate production quotas, in fact it seeks to establish a hierarchy between the various kinds of aid which was certainly not contemplated by Decision No 2320/81. The real aim of Decision No 2748/83 is thus to amend the rules on aid and that amounts to a misuse of powers vis-à-vis the applicant.
16. That argument is obviously unfounded. In the first paragraph of Section II of the preamble to Decision No 2320/81 the Commission stated that it was appropriate to differentiate between various forms of aid, with a view to placing stricter time constraints on those which were likely to have more damaging effects on competition and to be less effective in promoting restructuring. In application of that principle Article 5 of the decision subjects the authorization of aid for continued operation to particularly strict conditions by comparison with those provided for other forms of aid, apart from emergency aid which could not be authorized after 31 December 1981. It is quite consistent with the assessment by the Commission of the various forms of aid that by means of the contested decision it introduced into the quota system a distinction between aid intended to cover operating losses and other forms of aid authorized by it.
17. In the circumstances it must be held that the applicant has not succeeded in showing that Decision No 2748/83 is vitiated by misuse of powers vis-à-vis the applicant. Consequently the action must be dismissed in its entirety.
Costs
18. Under Article 69 (2) of the Rules of Procedure the unsuccessful party is to be ordered to pay the costs. As the applicant has failed in its submissions it must be ordered to pay the costs.
On those grounds, THE COURT (Fifth Chamber) hereby:
1 Dismisses the application.
2 Orders the applicant to pay the costs.
1 Language of the Case: Italian.