Opinion of Mr Advocate General Lenz
Mr President,
Members of the Court,
The applicant in the proceedings to which this opinion relates was notified on 6 August 1981 in accordance with Commission Decision No 1832/81/ECSC of 3 July 1981 including concrete reinforcing bars and merchant bars in the new system of production quotas established under Decision No 1831/81/ECSC (Official Journal 1981, L 184, p. 1) of the amount of its production quota for the third quarter of 1981 in respect of products falling within Categories V and VI (12975 tonnes). On 26 October 1981 it was also notified of the amount of its production quota in respect of those categories for the fourth quarter of 1981 (14087 tonnes) and that 12538 tonnes thereof could be disposed of in the Common Market. Those decisions have never been the subject of legal proceedings.
After checks had shown that the applicant had not adhered to those limits but had exceeded its production quota for the third quarter of 1981 in respect of products of Categories V and VI by 3125 tonnes and that for the fourth quarter of 1981 in respect of the same categories by 6079 tonnes and its delivery quota by 6565 tonnes, the Commission, by letters of 16 March and 22 June 1982, complained to the applicant and invited it to comment. The applicant responded in a telex message dated 13 May 1982 and a letter dated 29 June 1982, in which it relied on the statements it had made on 26 March 1982 when it was given an opportunity to state its case regarding overproduction in the first and second quarters of 1982, when it contended primarily that' financial and social commitments had forced it to exceed its production quota.
On 24 March 1983, as the Commission was not satisifed with that explanation, it adopted a formal decision imposing a fine. In the decision it repeated the aforementioned charges that the quotas had been exceeded and declared that the applicant's difficult financial situation could not provide justification therefor. Since the undertaking had a deficit in 1981 and since it had exceeded its quotas by more than 10 % it was also declared that it was appropriate to impose, in accordance with the second paragraph of Article 12 of Decision No 1831/81, a fine at the rate of 82.5 ECU per tonne in respect of the excess for the third quarter of 1981 and one at the rate of 90 ECU per tonne in respect of the excess for the fourth quarter of 1981. That resulted in a total fine of 958084 ECU (or Lit 1280536751) which had, moreover, to be paid within two months of notification of the decision and the fine would increase by 1 % for each month that it remained outstanding.
Busseni, which had at its own request been subject for two years to amministrazione controllata [courtsupervised management procedure] by a decision on 23 April 1982 of the Tribunale [District Court] of Brescia brought an action before the Court of Justice in respect of that decision claiming:
that the operation of the contested decision should be suspended;
that the decision of 24 March 1983 should be declared void; in the alternative, that the fine imposed by that decision should be reduced;
in the further alternative, that the periods within which the fines must be paid should be extended.
1. The application to suspend the operation of the contested decision
In my opinion those claims, which the Commission considers to be in part inadmissible and in part not wellfounded, call for the following observations.
1. The application to suspend the operation of the contested decision
The claim set out in the application that the operation of the contested decision should be suspended is clearly inadmissible. In that connection Article 83 (3) of the Rules of Procedure provides that the application is to be made by a separate document. It has also been held by the Court that failure to observe that provision renders the claim inadmissible. I refer the Court in that respect to its judgments in Cases 108/63 and 32/64.
2. The principal claim, that the contested decision should be declared void
The arguments put forward in support of this application fall into two groups. The first group relates to the correctness of the decision fixing the quotas, disregard of which was said to be the ground for the penalty imposed by the contested decision. The second group seeks to put forward reasons justifying or excusing the failure to comply with the production quotas so as to deprive the decision imposing the fines of its foundation.
(a) Lawfulness of the decision fixing the quotas
(b) The plea of necessity
It is possible to interpret the applicant's contentions at least in part as meaning that its existence would have been in jeopardy had it adhered to the production quotas (on the assumption that they were lawful) because it would then have utilized only between 20% and 25% of its facilities and would no longer have been able to comply with the settlement of 1978, to pay social insurance contributions or to finance its business. It had therefore to exceed its quotas in order to secure its survival. In other words the applicant contends that there was a crisis which justified its action or relieved it of fault.
Once again a brief examination of that contention shows that it does not provide grounds for declaring void the decision imposing a fine since similar arguments have been held to be irrelevant in a series of cases. One such case is Case 188/82, in which it was stated that necessity could not be relied upon as justification. That was also the position in Casse 263/82 in which it was emphasized that there was no place for such considerations in connection with Article 58 of the ECSC Treaty because otherwise the quota system, would have to be terminated. (Whether or not the quota system should be terminated is a matter for the relevant political authorities under the ECSC Treaty to decide, not the Court).
The same view is taken in Joined Cases 31, 138 and 204/82, in which it was stated that if a minimum capacity had to be guaranteed the objective laid down in Article 58 of the ECSC could not be attained, and finally in Case 10/83, in which it was emphasized that to admit reliance on economic difficulties as justification for exceeding a quota would lead to the collapse of the quota system.
3. The alternative claims that the fine should be reduced and the period for payment extended
C — By way of summary, I am of the opinion that the applicant's claims must be dismissed because they are in part inadmissible and in part not wellfounded. In the event of such a conclusion to the proceedings the applicant must pay the costs.
1 Translated from the German.
2 Judgment of 21 January 1965 in Case 108/63 Officine Elettromeccaniche Ing. A. Merlini v High Authority of the European Coal and Steel Community [1965] ECR 1.
3 Judgment of 17 June 1965 in Case 32/64 Government of the Italian Republic v Commission of the European Economic Community [1965] ECR 365.
4 Judgment of 9 February 1984 in Case 284/82 Acciaierie e Ferriere Busseni SpP v Commission of the European Communities [1984] ECR 557.
5 Judgment of 2 June 1965 in Cast 36/64 Société Rhénane d'Exploitation et de Manutention (SOREMA) v High Authority of the Europpean Coa! and Steel Community [1965] ECR 329.
6 Judgment of 19 October 1983 in Case 265/82 Union Sidérurgique du Nord et de l'Est de la france (Utinor) v Commission of the European Communities [1983] ECR 3105.
7 Judgment of 1 March 1984 in Case 10/83 Metalgoi SpA v Commission of the European Communities [19841 ECR 1271.
8 Judgment of 9 February 1984 in Case 284/82 Acciaierie e ferierre Bussent SpA v Commission o/the European Communities [1984] ECR 557.
9 Judgment of 9 February 1984 in Case 284/82 Acciaierie e ferierre Bussent SpA v Commission o/the European Communities [1984] ECR 557.
10 Judgment of 16 November 1983 in Case 188/82 Thyssen AC v Commission o/the European Communities [1983] ECR 3721.
11 Judgment of 14 December 1983 in Case 263/82 Klòckner-Werke AC v Commission of the European Communities [1983] ECR 4143.
12 Judgment of 15 December 1983 in Joined Cases 31/82, 138/82 and 204/82 Metallurgiki Halyps AE v Commission of the European Communities [1983] ECR 4193.
13 Judgment of 1 March 1984 in Case 10/83 Metalgoi SpA v Commission of the European Communities [1984] ECR 1271.
14 Opinion of 26 October 1983 delivered in Case 234/82 Fernere di Roè Voîciano SpA v Commission of the European Communities [1983] ECR 3940.
15 Judgment of 30 November 1983 in Case 235/82 Ferriere San Carlo SpA v Commission of the European Communities [1983] ECR 3123.
16 Judgment of 1 March 1984 in Case 10/83 Metalgoi SpA v Commission of the European Communities [1984] ECR 1271.
17 Judgment of 30 November 1983 in Case 235/82 Ferriere San Carlo SpA v Commission of the European Communities [1983] ECR 3123.