Opinion of Mrs Advocate General Rozès

Mr President,

Members of the Court,

In an application made on 29 April 1983, Usines Gustave Boël SA, Brussels, and its French subsidiary, Fabrique de fer de Maubeuge SA, Louvroil, have brought proceedings in which the Court has unlimited jurisdiction under the second paragraph of Article 36 of the ECSC Treaty against the Commission's decision of 24 March 1983, notified on 30 March to the undertaking Usines Gustave Boël SA, La Louvière, Belgium, imposing on that undertaking a fine of BFR 111024570 pursuant to Article 58 of the ECSC Treaty.

The applicants seek a declaration that that decision is void or, in the alternative, the reduction of the amount of the fine, and ask that formal note be taken that the applicants reserve the right to claim compensation for the damage resulting from the provision of the bank guarantee required by the Commission in return for refraining from enforcing the fine pending the proceedings before the Court.

Article 1 of the contested decision states that in the third quarter of 1981 the undertaking Usines Gustave Boël of La Louvière exceeded its production quota for Category Ic products by 1007 tonnes and exceeded by 3878 tonnes the part of that quota which could be delivered on the common market, those quotas having been allocated to it under the system established by Commission Decision No 1831/81/ECSC of 24 June 1981. For the fourth quarter, the decision records production of 14943 tonnes in excess of the quota for Category Ic products and the exceeding of the parts of the production quotas for Categories la and Ic which could be delivered on the common market by 261 tonnes and 14921 tonnes respectively.

1. The applicants do not deny that the quotas were, in fact, exceeded but in support of their submissions directed against that first article they argue first that the excesses recorded for Category Ic products should be imputed to Fabrique de fer de Maubeuge SA, which is a company legally distinct from Usines Gustave Boël SA.

2. In a second submission the applicants complain that the Commission failed to state reasons, or adequate reasons, for its refusal to comply with their requests for adjustments to the quotas for the third and fourth quarters of 1981.

3. In another group of submissions (the third, fourth, fifth and sixth submissions) the applicants challenge the individual decisions which fixed reference productions and quantities and the production quotas or part of quotas which could be delivered on the common market for the undertaking Usines Gustave Boël, La Louvière, and the implied or express decisions refusing adjustment of the quotas pursuant to Article 14 of general Decision No 1831/81/ECSC.

4. In their seventh submission, the applicants question the Commission's refusal by implication to adjust their references for Category Ic products forthe third quarter of 1981 and for all Category I products for the fourth quarter of 1981.

5. In their eighth submission the applicants allege that the Commission failed to reply to the letter of 28 October 1981 in which Usines Gustave Boël SA, La Louvière, requested the adjustment of the production quotas of its undertaking and of Fabrique de fer de Maubeuge for the fourth quarter of 1981 and gave the Commission notice in the following terms: unless the Commission indicates otherwise, we shall consider you to be in agreement with the production quotas set out above and with the delivery quotas which follow from them. Since the Commission failed to reply, the applicants claim that they were legitimately entitled to conclude that it had approved the adjustments which they proposed and applied, and that those adjustments would not constitute excess production. They point out that since the Commission does not decide on requests for adjustment of quotas until after the end of the quarter for which they are made, undertakings have no option, if they wish to survive, but to exceed the quotas allocated to them and thus to render themselves liable to fines.

Finally, the applicants request a reduction in the amount of the fine and argue that the Commission did not have the power, unilaterally and retrospectively, to lay down additional detailed rules not included in Article 12 of Decision No 1831/81, in which pursuant to Article 58 (4) of the Treaty it had itself fixed the amount and rules for the determination of fines.

In particular the decision took into account the fact that the Boël group was operating at a profit and that the excesses amounted to more than 10% of the quotas or parts of the quotas which could be delivered on the common market (with the exception of the excesses of 1007 tonnes in Category Ic and of 161 tonnes in Category Ia); it failed, in contrast, to take into consideration the fact that the group had restructured itself without official aid, unlike other undertakings.

To the extent that those submissions are admissible I am of the view that they should be rejected on the basis of the considerations raised in the Court's judgments of 18 March 1980 in Valsabbia and of 11 May 1983 in Klöckner.

A final point worthy of mention is that Article 12 of Decision No 1831/81, interpreted in the light of Article 58 (4) of the ECSC Treaty, in no way precludes the Commission from modifying the amount of the fines having regard to the circumstances of the infringement. In the present case the Commission has in fact taken into account the past record of the undertaking.

In consequence the request for reduction of the fine does not appear to be justified, and there are no grounds for the Court taking formal note as requested.

I propose that the application be dismissed and that the applicants be ordered to pay the costs.

1 Translated from the French.

2 Official Journal, L 180, 1. 7. 1981, p. 1.

3 Most recently, in the judgment of 19. 10. 1983, Case 265/82 Üsinor [1983] ECR 3105, paragraph 7 of the decision.

4 For the purpose of this Decision, any group of concentrated undertakings within the meaning of Article 66 of the Treaty shall be considered as a single undertaking even if such undertakings are located in different Member States (Official Journal, L 180 1. 7. 1981, p. 1).

5 cf. Decision No 24/54 of the High Authority of 6. 5.1954, Official Journal, English Special Edition 1952-58, p. 16.

6 Commission Decision of 7. 7. 1975 on the setting up of Queensborough Steel Co. Ltd by Usines Gustave Boël SA and Helical Bar Ltd.

7 Judgment of 13. 7. 1962, Joined Cases 17 and 20/61 Klöckner and Hoesch [1962] ECR 325.

8 Judgment of 7. 7. 1982, Case 119/81 Klöckner [1982] ECR 2627, paragraph 21 et seq. of the decision; judgment of 11. 5. 1983, Case 244/81 Klõckner [1983] ECR 1451 at paragraphs 39 to 37 of the decision.

9 Judgment of 11. 5. 1983, Case 244/81, cited above, paragraph 27 of the decision.

10 Case 317/82 [1983] ECR 2041, paragraph 12 of the decision.

11 A fine had already been imposed on the undertaking Usines Gustave Boel SA, La Louvière on 24. 11. 1982 for exceeding by 2581 tonnes its production quota for Category I products notified to it for the second quarter of 1981.

12 Joined Cases 154, 205, 206, 226 to 228, 263 and 264/78, 39, 31, 83 and 85/79 Valsabbia and Others ν Commission [1980] ECR 907, paragraph 159 of the decision: ... by deciding to apply a relatively low coefficient for the calculation of the fines, namely ... 10% of [the] value [of the underpricing] in the case of the medium-sized undertakings operating at a loss ..., having regard to the rate which it may apply under Article 64 of the Treaty — twice the value of the unlawful sales — the Commission properly took account of the circumstances of the cases.

13 Case 244/81 Klöckner ν Commission [1983] ECR 1451, paragraphs 36, 37 and 38 of the decision.

14 Judgment of 16. 11. 1983, Case 188/82 Thyssen ν Commission [1983] ECR 3721, paragraph 20 of the decision.