JUDGMENT OF 10. 2. 1982 — CASE 74/81 FLENDER v COMMISSION

In Case 74/81

THE COURT composed of: J. Mertens de Wilmars, President, G Bosco, A Touffait and O. Due (Presidents of Chambers), P. Pescatore, Lord Mackenzie Stuart, A. O'Keeffe, T. Koopmans, U. Everling, A. Chloros and F. Grevisse, Judges, Advocate General: G. Reischl Registrar: A. Van Houtte

gives the following

JUDGMENT

Facts and Issues

I — Facts

II — Legislative background

III — Conclusions of the parties

IV — Arguments of the parties

1. Admissibility

2. The substance of the case

V — Oral procedure

Decision

Costs

I —. Facts

II —. Legislative background

1. Tube producers are not undertakings for the purposes of the ECSC Treaty, as defined by Article 80 of the Treaty.

2. Under Article 33 of the ECSC Treaty undertakings subject to the Treaty may institute proceedings to have individual decisions concerning them declared void on grounds of lack of competence, infringement of an essential requirement, infringement of the Treaty or of any rule of law relating to its application, or misuse of powers affecting them.

3. Article 36 provides that, in appeals against pecuniary sanctions and periodic penalty payments, the Court is to have unlimited jurisdiction based on all the grounds of action enumerated in Article 33.

4. Under Article 95. where a decision, although not provided for by the Treaty is necessary to attain one of the objectives of the Treaty, the decision may be taken by the Commission with the unanimous assent of the Council and after the Consultative Committee has been consulted. Any decision so taken is to determine what penalties, if any may be imposed.

III —. Conclusions of the parties

1. Declare Commission Decision 385/81/ECSC of 13 February 1981 concerning certain obligations to be fulfilled by Community producers ot steel tube, published in the Official Journal of the European Communities of 14 February 1981, (L 42. p 17 et seq.) void, or alternatively, void at least as against the applicants,

2. Order the defendant to pay the costs, even in the event of the application's being dismissed as inadmissible.

IV —. Arguments of the parties

1. Admissibility

(a). The applicants stress on the one hand that the second paragraph of Article 33 of the ECSC Treaty in principle gives undertakings subject to the ECSC Treat) the right to institute proceedings and, on the other hand that neither the ECSC Treaty nor general Community law, which is governed by the constitutional principles and legal traditions common to the Member States, recognizes executive measures which are exempt from the possibility of being challenged by the parties concerned subject to generally accepted conditions.

(b). The applicants state that the contested decisions must be classified as a general decision within the meaning of the second paragraph of Article 33. Moreover they acknowledge that, whilst individual decisions may be challenged on the standard grounds of lack of competence, infringement of procedural requirements or substantive provisions as well as misuse of powers and whilst the Court, in appeals against decisions imposing sanctions and periodic penalty payments has unlimited jurisdiction, the second paragraph of Article 33 of the ECSC Treaty only allows general decisions of the Commission to be contested on the ground of misuse of powers.

2. The substance of the case

V —. Oral procedure

1. By application lodged at the Court Registry on 7 April 1981, four undertakings, producers of steel tube, instituted proceedings under the second paragraph of Article 33 of the ECSC Treaty to have Commission Decision 385/81/ECSC of 13 February 1981 concerning certain obligations to be fulfilled by Community producers of steel tube (Official Journal 1981, L 42, p. 17) declared void.

2. The contested decision was adopted within the framework of a system instituted by Commission Decision 2794/80/ECSC of 31 October 1980 establishing a system of steel production quotas for undertakings in the iron and steel industry (Official Journal 1980, L 291, p. 1). Under that system, material for tube is exempted from quotas provided that it is actually used within the common market for the production of tubes. In addition, for some of that material, a special supervisory regime was established.

3. In the recitals in the preamble to the contested decision, the Commission states that the exemption and the special regime require the Commission to be informed of, and enabled to check, the actual use to which the material in question is put and that such a check can be carried out only among tube producers which, in this capacity, are not undertakings within the meaning of Article 80 of the Treaty. For those reasons, the Commission resorted to Article 95 of the ECSC Treaty so as to extend, by means of the contested decision, the application of the provisions of Article 47 of the Treaty to tube producers.

4. Article 1 of the contested decision required tube producers to furnish to the Commission, on a monthly basis, information about the production of tube and the origin of the material for such tube. Article 2 provides that the Commission, in the exercise of the powers conferred on it by Article 47 of the Treaty, is to verify the accuracy of the information provided by tube producers, and states that, in the event of non-compliance, the fines and penalty payments provided for in Article 47 of the Treaty are to apply.

5. By virtue of Article 3 the decision was to cease to apply at the same time as the system of production quotas and not later than 30 June 1981. Whilst the system of production quotas, which under Decision 2794/80/ECSC was to cease to apply as from the aforementioned date, was extended subject to essentially the same exceptions, the contested decision was not renewed or replaced by other verification measures imposed upon tube producers.

6. It is clear from the documents in the case that, during the period of validity of the contested decision, the applicants did not furnish any information and that the Commission confined itself to sending them a letter of reminder. The Commission did not carry out any verification or checks in the case of the applicants. Nor did it impose any fine or periodic penalty payment upon them.

7. In the written procedure, the applicants claimed that the decision should be declared void, submitting that there had been a misuse of powers affecting them, that the Commission had no competence in regard to them and that the decision was incompatible with the Treaty. The Commission contended that the application should be dismissed as inadmissible on the ground that the applicants, which are not undertakings within the meaning of the Treaty, may only contest individual decisions and in any event have not made out a prima facie case that the general decision, which they claim should be declared void, constituted a misuse of powers affecting them within the meaning of the second paragraph of Article 33 of the Treaty.

8. In the course of the oral procedure, the Commission emphasized that, in its opinion, the wording of the decision did not permit the mere failure to furnish the information required by Article 1 of the decision to be punished by the imposition of the fines and penalty payments provided for in Article 47 of the ECSC Treaty. Since the reference to Article 47 of the ECSC Treaty appears only in Article 2 of the decision, only non-compliance with the duty, imposed by that article, to allow verification work to be carried out in situ, is capable of attracting a penalty. The Commission, moreover, acknowledged that it no longer has the power to undertake verification work in situ under the decision. As a result, it stated that it would no longer take action against the applicants on the basis of the decision. The applicants have not raised any objection to that standpoint.

9. It must therefore be concluded that the action concerns a decision which has not had, and can no longer have, any adverse effects on the applicants and that accordingly it has ceased to have any purpose.

10. Under the terms of Article 69 (5) of the Rules of Procedure, where a case does not proceed to judgment the costs are to be in the discretion of the Court. In the circumstances of this case the parties must bear their own costs.

On those grounds, THE COURT hereby:

1 Declares that there is no need to give a decision on the application;

2 Orders the parties to bear their own costs.