Opinion of Mr advocate general Capotorti

Mr President,

Members of the Court,

1. In the present case the jurisdiction of the Court is governed by Article 36 of the ECSC Treaty. The Court thus has unlimited jurisdiction: it is required on the one hand to rule on the lawfulness of a decision of the Commission which, on 30 May 1978, imposed a pecuniary sanction pursuant to Article 64 of the ECSC Treaty on Metallurgica Luciano Rumi S.p.A. of Bergamo and on the other hand to assess the appropriateness of the sanction, which amounts to 65135 units of account.

2. The applicant emphasizes that, having regard to the wording of Article 60 of the Treaty, of its internal logic and of the objective of publication of price lists, which have been made clear in the decisions of the Court of Justice, the provision prohibiting increases or reductions in relation to list prices relates exclusively to comparable transactions. According to the applicant the Fe E 45 high adherence reinforcement bars produced by it for the French market constitute a product which differs from all other types of bar produced for the other markets of the Community and cannot be sold on such markets. Furthermore, Rumi maintains that it has only a single customer in France, from whom it obtained the order of 28 April 1977. Those two circumstances mean that it is impossible for there to be comparable transactions concerning the bars in question. In this connexion the applicant recalls that the said Decision No 31-53 of the Commission, as amended by Decision No 72/440/ECSC, defined as being comparable, within the meaning of Article 60 (1) of the Treaty, transactions … concluded with purchasers … who compete with one another; in the present case, on the other hand, the special nature of the product precludes any competitive relationship between purchasers. The applicant accordingly concludes that, in connexion with order G 20 RM of 28 April 1977 (and indeed in connexion with the subsequent order G 21 RM of 2 May 1977) there was no breach of the obligation to publish prices laid down in Article 60 (2) of the ECSC Treaty, for the simple reason that the obligation did not arise in relation to the product in question.

3. In order to ascertain whether the applicant's argument to the effect that it is unnecessary to publish the price of a special product is well founded I shall attempt first of all to establish the purpose of such publication.

4. With regard to the submission of manifest failure to observe the provisions of Article 60 (2) of the ECSC Treaty the applicant advances a second argument: its price list was rendered wholly redundant by the exceptional situation on the market so that it should not be charged with a sale at a price at variance with the list but at the most with a breach of its obligation to publish a new list. However, that breach should not penalized since its commission was prompted by reasons of force majeure: the crisis in the sector made it impossible at the time of the conclusion of the contract in question to maintain a fixed price for more than two days, so that contracts, negotiations for which commenced on the basis of a fixed price, were concluded on that of a price varying in accordance with the fluctuations which the market underwent in the meantime.

5. I shall now consider the objection of misuse of powers. It was put forward — though not subsequently developed — by the applicant on the basis of the fact that the contract in question was concluded shortly before Decision No 962/77/ ECSC of the Commission of 4 May 1977 fixing minimum prices for certain concrete reinforcement bars was adopted and that the said contract stipulated prices lower than those minimum prices. The Commission, extending the criteria embodied in the said decision to cover a prior transaction, is therefore said to have misused its powers in that it penalized a lawful act.

6. In the alternative, the applicant advances a third argument in the context of its objection of infringement of Article 60. It maintains that the contested decision failed to have regard to the possibility of reducing selling prices in order to permit undertakings to align their prices on those of competitors, which is conferred, subject to certain restrictions, by Article 60 (2) (b). In fact that provision permits reductions below the prices on the published list provided that such reductions do not exceed the extent enabling the quotation to be aligned on the price list, based on another point which secures the buyer the most advantageous delivered terms. Rumi stated in the course of the administrative procedure before the Commission that the prices charged by it in the transactions referred to in the notification of objections were aligned on the prices charged in comparable operations by other manufacturers in the Community, in particular the undertakings Feralpi and IRO. The applicant, in its Telex of 17 April 1978 to the Commission, stated that it had effected those alignments on the basis of a communication made to us by competitors of their basic list price, which was subsequently confirmed by your publication Ghisa a Acciai. It further maintained that it had applied a basic price higher than the basic price of its competitor, thereby effecting a partial alignment which is approved by Zimmermann in Preisdiskriminierung at p. 310, in that the price finally stipulated was higher than the delivered price of the competitor on which we aligned ourselves. For example: concerning our sales in France which are at issue our basic prices of Lit 162917 and Lit 153965 respectively for the various zones in France are higher than the basic price on Feralpi's list, namely Lit 152500, and accordingly the final price is also higher.

7. Now that the foregoing has been dealt with I shall consider whether there is any foundation to the Commission's argument that an express intention to effect an alignment must be stated at the time the contract is concluded.

8. In the light of the above-mentioned considerations I take the view that if the prices charged by the applicant in the sales in question had been objectively justified in terms of the criterion of alignment, there would have been no infringement of Article 60 and accordingly the sanction prescribed by Article 64 would not have been lawfully imposed. At the most, even accepting the point of view of the Commission concerning the obligation to state the method employed in forming the price at the time of conclusion of the contract, Rumi could only have been charged with a purely formal infringement of a provision which is anything but precise and clear; accordingly there would be considerable doubt concerning the lawfulness of the fine imposed.

9. In those circumstances I consider it proper to reduce the amount of the fine. The Commission has explained in the hearing that it calculated the amount of the fine by reference to the general criterion of proportionality based on the extent of the departure from the prices on the list.

10. On the basis of all the considerations set out above I conclude by suggesting that the Court should reject the application for the annulment of the contested decision, halve the amount of the fine and order the defendant to pay, in addition to its own costs, one third of the costs incurred by the applicant.

1 Translated from the ltalian.