Opinion of Mr Advocate General Mancini

Mr President,

Members of the Court,

1. By an application lodged on 2 December 1985 Finsider SpA asked the Court to declare void or reduce the fine of 2165350 ECU imposed upon it by the Commission of the European Communities on 9 October 1985 for having exceeded production and delivery quotas in the second quarter of 1983 in respect of steel products of category la.

2. Finsider's request for the annulment of the contested decision is based on two submissions: (a) infringement of Articles 2, 4 and 11 (6) of Commission Decision No 1696/82/ECSC of 30 June 1982 (Official Journal 1982, L 191, p. 1), which extended the system of monitoring and production quotas introduced by Decision No 1831/81; and (b) misuse of powers on the grounds of discrimination and infringement of the principle of legitimate expectations.

3. The two arguments should be dismissed. The applicant, as we have seen, maintains that between 30 June 1981 and 30 June 1982 it had the right to accumulate, at least up to a certain ceiling, stocks of products of category la, which it was entitled to use subsequently to cover deliveries of such products effected in excess of the Community limits. I would observe that if that argument were justified, Finsider should have contested the legality of the delivery quotas laid down for it in respect of the second quarter of 1983. But it did not do so and, since the decision by which the Commission notified it of those limits has been definitive for some time, it cannot do so now by asking for a fine to be annulled (see the Court's judgment of 10 December 1986 in Case 41/85 Sideradriav Commission [1986] ECR 3917, paragraph 10). In any case, I am convinced that on the date at which general decision No 1831/81 was issued steel companies could not have stocks of products of category la nor could they build new stocks of such products.

4. Let us now turn to Finsider's request that the fine be reduced. The contested decision recognizes that the uncertain situation in the second quarter of 1983 with regard to the extension of the quota system warrants a reduction in the rate ... for that period [from 100 ECU to] 50 ECU per tonne in excess (p. 5, third recital). However, it must be pointed out that under the first paragraph of Article 12 of Decision No 1696/82 fines are to be calculated on the basis, not of 100 ECU, but of 75 ECU for each tonne in excess'. Accordingly, the Commission has erred and this should be corrected in accordance with the claim made by the applicant.

5. On the basis of the foregoing considerations I propose that the Court should:

1 Translated from the Italian.