Opinion of Mr Advocate General

Mr President,

Members of the Court,

1. This application, which was lodged under the second paragraph of Article 36 of the ECSC Treaty, is principally for the annulment of the individual decision of 31 October 1979 whereby the Commission imposed on Acciaierie e Ferriere Lucchini SpA (hereinafter referred to as Lucchini) a fine for the infringement of general Decision No 3000/77/ECSC of 28 December 1977 establishing minimum prices for certain iron and steel products. In its application the applicant had in the first place contested that general decision, claiming that it was unlawful, but as a result of the judgment given by this Court on 18 March 1980 in Joined Cases 154/78 etc., Ferriera Valsabbia and Others (known as the concrete reinforcement bars cases) that claim was abandoned in the reply. What remains is, principally, the request for annulment of the abovementioned individual decsion on the ground of illegality consisting in defects pertaining to that decision; moreover, in the alternative, the applicant requests that the Court, in the exercise of its power to give a decision on the substance of the application conferred upon it by the abovementioned Article 36, should reduce the fine to a purely nominal level.

2. In relation to the first submission, it seems to me to be appropriate to emphasize that in all the sales involved the prices were determined by the alignment method permitted under Article 60 (2) (b) of the Treaty and Article 6 of the abovementioned Decision No 3000/77. This fact must always be borne in mind when moving on to establish whether or not Community law compels Lucchini to charge its German customers, in addition to the basic prices, the abovementioned extras for quality and quantity.

3. The Community rules have, according to the applicant company, been infringed also in that the Commission found that it had failed to apply in the sales at issue the extras for quantity or the additional charges for small deliveries. In this respect Lucchini states that it does not suffer any loss through supplying its own customers with merchant bars in limited quantities for each consignment because it does not provide for in its own pricelist and does not apply any extras for quantity. It states that this is also objectively justified by the fact that the specific uses to which the applicant's merchant bars are put generally involve orders for quantities of less than 5 tonnes. It is therefore in accordance with the requirements of the market not to increase the prices by any additional charge for small quantities. As regards, next, the extras for length, the applicant states that it considers the length of 4 metres, which other producers consider to be a high specification, as commercial quality.

4. The second submission consists, as I have already said, in the complaint that there has been a violation of general principles of law. In this context the applicant relies in the first place on the principle of the protection of legitimate expectation, basing itself on the Commission's permissive conduct towards undertakings which applied to the alignment method during the period in which the system of minimum prices was in force.

5. The other general principle relied upon by the applicant is that of the prohibition on discrimination. Lucchini maintains that it has been subject to discrimination on the part of the Commission since the Commission did not grant it the benefit (albeit in certain cases) of the restriction of the additional charge for small quantities to DM 60 per tonne already laid down in favour of traders and then extended to producers by Decision No 3139/78 of 29 December 1978. The applicant quotes in this connexion certain cases in which the Commission, in calculating the under-pricing complained of, referred to extras for quantity amounting to DM 140.

6. The applicant maintains, finally, that the Commission should have taken into account the state of necessity in which it was placed. It states that if it had applied the extras for quantity it would not only have lost the margin of penetration granted to it by the Commission for its exports within the Community territory but would have exceeded the price of foreign producers. This would have resulted in the loss of traditional markets within the Community which constitute a vital need for Lucchini.

7. It remains to consider the third submission which is that of the infringement of essential procedural requirements. According to the applicant, the contested individual decision, to the extent to which it relates to sales made in Germany, does not enable the reasoning process whereby the Commission established the under-pricing and, as a result, the fine, to be reconstructed. Lucchini observes that the table contained in Annex II to the decision on the abovementioned infringements indicates only total imports for each category of under-pricing and does not therefore enable the calculation of the under-pricing to be analysed or the individual amount of the extras for quality charged to be clarified.

8. For the reasons set out above, I consider that none of the submissions put forward by the applicant against the decision of the Commission of 31 October 1979 are well-founded. I therefore propose that the Court should dismiss the principal request made by Lucchini for the annulment of that decision. However, I have pointed out that certain circumstances which were decisive with regard to the conduct of the defendant may have been misleading and given rise to false expectations, in particular the ambiguous wording of Article 2 (1) of Regulation No 3000/77 and the wide derogations permitted by the Commission in the application of rules on alignment. Although they cannot detract from the validity of the contested decision, they justify in my opinion a reduction in the fine imposed on Lucchini: I propose that that reduction should be determined at at least one-third of the amount of the fine. The defendant should, correspondingly, bear one-third of the costs of the action whilst the remaining two-thirds should be borne by the applicant.

1 Translated from the Italian.