Opinion of Mr Advocate General Darmon

Mr President,

Members of the Court,

1. In this action Ferriera Valsabbia SpA is primarily seeking the annulment of a decision of 27 September 1984 (hereinafter referred to as the contested decision) whereby the Commission of the European Communities imposed on it a fine of 70875 ECU.

2. In regard to products in Category V (concrete reinforcing bars), the Commission complained that Ferriera Valsabbia, during the first half of 1982, exceeded its delivery quota for the first quarter by 979 tonnes and that for the second quarter by 1239 tonnes. The total excess was therefore 2218 tonnes.

3. According to the Commission, that stock amounted to 1273 tonnes which, when deducted from the 2218 tonnes of excess deliveries, leaves a quantity of 945 tonnes in respect of which the contested fine, calculated on the basis of 75 ECU per tonne, was imposed.

4. After the presentation of the facts during the written procedure and at the hearing on 13 March 1986, a number of uncertainties remained, concerning essentially the method used by the Commission to arrive at the figure of 1273 tonnes.

5. That reasoning is unconvincing. As the Commission's representative in fact admitted at the hearing, the goods in question are fungible or interchangeable. In those circumstances, it cannot be stated that a specified and identifiable quantity of nearly 5000 tonnes had, on 30 June 1981, ceased to belong to the applicant by reason of the sale to Philipp Brothers. Moreover, there is no reason not to believe that the goods which were the subject of that transaction, delivered during the second half of 1981, were drawn, in whole or in part, from stocks produced after that date. The Commission does not allege that the applicant exceeded its production quota and that, it must be pointed out, renders nugatory the argument based on the fact that the goods were to be shipped to nonmember countries. Furthermore, it is my understanding from the explanations made at the hearing by the Commission's representative that the country of destination was never taken into account in assessing, in comparable situations, the stock on hand on 30 June 1981.

6. The applicant is thus entitled to have the contested decision declared void and it is therefore superfluous to consider the claims which it submitted in the alternative.

1 Translated from the French.