Opinion of Mr Advocate General Van Gerven delivered on 19 November 1991

1 Original language: Dutch.

2 Commission Decision of 31 January 1984 on the extension of ihe system of monitoring and production quotas for certain products of undertakings in the sted industry (OJ 1984 L 29, p. 1).

3 Conunisâon Decision of 27 November 1985 on the extension of the system of moiiitoring and — production quotas for certain products of undertakings in the steel industry (OJ 1985 L 340, p. 5).

4 With retard to the nuo legis of Anide ISB of Commission Decision No 234/84/ECSC of 31 January 1984, see Recial 9 to that decision, Monitoring of tradìtional patterns of trade (Article 15B), which referred to the Council meeting of 21 December 1983. See abo the repon for the hearing m Case 45/84 R EISA v Commission [1984] ECR 1759. at pp. 1761 and 1762.

5 Set the repon foi the heirinţ in Čaje /84 R EISA v Commission, (previously ched in footnote 3), at p. 1762.

6 Order in Cue 45/84 R, EISA v Commission [1984] ECR 1759 paragraph 13.

7 Ibid., paragraphs 12 to 14.

8 Ibid., paragraph 8.

9 Ibid., paragraph 14.

10 By Inter of 18 February 1985, Assidcr, the Italian steel industry federation, also asked for the application of the measures provided for in Article 15B of Commission Decision No 234/84, basing its request on data relating to the first, second and third quarters of 1984.

11 See the letter of 21 December 1984 (Annoi 5 to the applications) as regards the dau relating to the 6re three quarters of 1984 and the letter of 20 March 1985 (Annex 9 to the applications) as regards the dau relating to the fourth quarter of 1984.

12 Judgment in Joined Cases 167/83 and 212/85 Assidrr v Commission [1987] ECR 1701.

13 Ibid.. paragraph 17.

14 Ibid., paragraph 19. In fact, according to the Court, the measure provided for by Ankle 15B(4) is not in the nature of a penalty and consequently is not conditional on a finding that the undertakings responsible for the imbalance in the traditional patterns of trade have committed any infringement.

15 In paragraph 10 the Court stated: It must be pointed out that, although in their requests to the Commission the applicants sought to obtain the implementation of Article 15B of the aforesaid ECSC decision without giving further details, it is clear both from the applications themselves and from the proceedings before the Court that Assider, like the Italian Government, seeks only the annulment of the Commission's implied decision refusing to apply paragraph 4 of the article in question.

16 See the leners of 29 May, 7 August and 30 November 1985, 6 March, 31 March, 7 August and 1 December 1986 and 13 March 1987 (Annexes II to 18 to the applications).

17 See the letters of 9 January and 10 June 1986 and 11 November 1987 (Annexes 19 to 22 to the applications).

18 The imbalance in the traditional patterns of trade during 1984, 1985 and 1986 may be clearly seen from a summary table drawn up by the Italian authorities on the basis of data published by the Commission (see page 11 of the applications). The increase in deliveries of steel products in categories la and II by the steel undertakings of other Member States was 7.3% in 1984, 8.4% in 1985 and 12.2% in 1986. The increase in deliveries of steel products in category lb reached 5.2% in 1984, 3.9% in 1985 and 2.8% in 1986. In view of this increase in the deliveries by foreign steel undertakings, there was an equivalent reduction in deliveries by the Italian producers.

19 See Article 1(4) of Commission Decision No 3746/86/ECSC of 5 December 1986 OJ 1986 L 48, p. 1).

20 See paragraph 18 of the judgment in Joined Cases 167/85 and 212/85, previously cited in footnote 11.

21 See Annexes 3, 6, 8, 9, 12, 13, 15, 16, 22 and 29 to the defences. It may be seen from a memorandum of 25 June 1984 that the Commission thought that Article 15B applied also to products intended for the production of mull arelded tubes (Annex 3 to the defences).

22 See Annex 12 io the defences.

23 See, for example, the Commission letter of 6 February 1985 to Cockerill Sambre SA, Annex 16 to the defences.

24 See, on this subiect, the internal memorandum (of 13 December 1985) sent to the Commissioner responsible,On tne other hand it is open to you to encourage the undertakings to come to an agreement with regard to observance of the rules on traditional patterns of trade which we worked out in the context of Article 15B of the quota system. Our synem a certainly at the b'mh of legabry. Artide 15B is certainly not a hard and fast feature of the system of quotas. The Court left open the question whether Artide 15B is compatible with Article 58 of the ECSC Treaty. (See Annex 29 to the defences, p. 1, point 2). See abo a memorandum (of 3 January 1985) from the Commission's Legal Department to the Director General responsible in which it was stated that the application of Artide 10(1) as envisaged in the 12point memorandum would quickly give rise to applications to the Court (Annex 14 to the defences).

25 See p. 23 of the rejoinders.

26 For further details on this subject see the Opinion of Judge Biancarelli of 30 January 1991 in Case T-120/89 Stah/werke Peine-Salzgitter AG v Commission [1991] ECR II-279, at section IIA 3.

27 Union Sidérurgique du Nòrd et de f Ett de I Pance (USINOR) v Commission [1986] ECR 1777: As iemīdi the application for damages, dus arust also be declared inadmissible having regard to the voiding of Article 34 of the ECSC Treaty, which allows such an application to be brought only after the decision which allegedly caused the damage has been declared void and after it has been established that (he High Authority does not intend to take the steps needed to redress the illegality found to exist.

28 See that judgment, cited in footnote II, at paragraph 20 of the grounds of judgment.

29 See also, in this sense, in a similar case, the judgment of the Court of Fim Instance in Case T-120/89 rVne-Sâhgiœr v Commission [1991] ECR II-279 at paragraphs 66 to 69 and the Opinion of Judge Biancarelli in that case, previously cited in footnote 25, at paragraph II A 4.

30 Previously creed in footnote 28; paragraphs 41 to 49, and in particular paragraph 47.

31 Astern v Commission [1988] ECR 2181 at paragraphs 30 and 31.

32 See section 7 ibovt and footnote! 16 and 17.

33 See paragraph 15 of the judgment, previously cited in footnote U.

34 Joined Cases 9/60 and 12/60 Vhxbttghs v High Authority [1961] ECR 197, at p. 213. That case involved an applicant under Article 40 who did not even have the sums of an undertaking within the meaning of Artide SO of the ECSC Treaty and could not therefore bring an action to have a measure declared void (Anide 33) or for failure to act (Article 35) or, therefore, for damages under Ankle 34. The Court was therefore not called upon to decide as to the relationship herween Articles 34 and 40.

35 Joined Cases 19/60 and 21/60 and 2/61 and 3/61 Société Fives Lille Cail v High Authority [1961] ECR 281, at p. 296. It is clear that, by the statement that the grounds of the actions for damages are independent of those of the applications for annulment the Court merely wished to indicate that the fact that the application to have the decisions declared void had been declared inadmissible did not, in that case, have any effect on the admissibility of the action for damages under Article 40 because that action was based on other grounds.

36 Joined Cases 14/60, 16/60, 17/60, 20/60, 24/60, 26/60 and 27/60 and 1/61 Meroni & Co. v High Authority [1961] ECR 161, at p. 166. In these cases the Commission does not directly rely on the Meroni judgment. However, it quotes a passage from Mr Advocate General Lagrange's Opinion in Case 36/62 Aciéries du Temple v High Authority [1963] ECR 289 referring to the relevant points in the Meroni judgment. In my view it is open to doubt whether it is possible to see in these points, considered in their context, a confirmation of the Commission's point of view.

37 Joined Cases 81 and 119/85, previously cited in footnote 26. That judgment concerned an action under Article 33 for a declaration that an ECSC decision was void, combined with an action for damages under Article 34. No question with regard to Article 40 of the ECSC Treaty arose in that case.

38 For a discussion of academic writings, in which views are divided, on this question, see Judge Biancarelli's Opinion in Case T-120/89 Peine-Salzgitter, previously cited in footnote 25, at paragraphs IIB 1(c) and IIB 2(a).

39 After considering the question in depth, Judge Biancarelli came to the same conclusion in his Opinion previously cited in footnote 25. However, he added that in the event of the application in such a case of Article 40, the provisions of the first paragraph of Article 34 of the ECSC Treaty nevertheless remain applicable (section IIB 2(c)(2) of his Opinion). I cannot agree with his views on this point. In fact I think that the reference in Article 40 to the first paragraph of Article 34 should not be so understood. In my view that reference merely draws attention to the fact that, in the event of a decision's being declared void, the special rules of Article 34 apply.

40 See also Judge Biancarelli's Opinion, previously cited in footnote 25, at section IIB 2(c)(1) and the references made therein inter alia to Mr Advocate General Lagrange's Opinion in Meroni and the Opinion of Mr Advocate General Roemer in Vloeberghs.

41 See, for example the judgments in Case 53/85 AKZO Chemie v Commission [1986] ECR 1965, at paragraph 29 et seq.; in Case 294/83 Les Verts v Parliament [1986] ECR 1357, at paragraph 23; and in Case 222/86 UNECTEF v Heylens [1987] ECR 4097, at paragraph 14. For a previous judgment, see Case 6/60 Humblet v Belgium [1960] ECR 559, in which the Court declared that: In case of doubt, a provision establishing guarantees for the protection of rights cannot be interpreted in a restrictive manner to the detriment of the individual concerned.

42 Paragraph 32 of the ground} of judgment.

43 Sec the judgment, previously cited in footnote 33, at p. 213.

44 Sec paragraph 33 of the Krohn judgment, previously cried in footnote 41.

45 Sec in this rcţpect inter tla Ligrange: The non-contractual liability of ibe Community in the ECSC and in the EEC, 3 CML-Rev (1966), p. 10, at p. 27: Bebr, G-, The non-contractual tiabüity of the European Coal and Steel Community, in Schermen, Henkels and Mead, Non-contractual liabühy of the European Communities, Leiden, 1988, p. 39, at p. 44; and the Opinion, mentioned in footnote 25 above, of Judge Biancarrlli in Case T-120/89, Peme-Sabgitzer, at point IIIA.

46 See the judgment cited in footnote 35, at p. 168 (emphasis added).

47 Ibid., p. 171 (emphasis added).

48 See die judgment previously died in footnote 34, at p. 297 (emphasis added).

49 See the Peine-Salzgitter judgment, previously cited in footnote 28, at paragraph 86 et seq.. The position is obviously different in situations in which the authority has very precisely defined powers (compétence liée or Kmited delegation of powers), as is frequently the position in staff cases.

50 See, for example, the judgment in Joined Cases 83/76 and 94/76, 4/77, 15/77 and 40/77 HNL v Council and Commission [1978] ECR 1209, at paragraph 6.

51 I say formali because the Commission states that it applied that provision informally in the sense that, without addressing a formal request to the steel undertakings concerned, it consulted them as to the way in which they could corret the imbalance in the traditional patterns of trade. It appeared from that consultation that the undertakings were not prepared to commit themselves to such a correction, whereupon the Commission decided not to address to them the formal request envisaged in Article 15B(4).

52 See abo in this respect the Opinion of Mr Advocate General Mische, delivered on 10 February 1987, in which reference is also made, at p. 1721, to the dose link between paragraphs (A) and (5) of Article 1SB.

53 Judgment in Joined Casts 19/69, 20/69, 2Î/69 and 30/69 Rxha-Puix v Commission [1970] ECR 325 at paragraph 36.

54 According to the judgment of the Court of First Instance in the Peine-Sãlzgitter judgment, the adjective special relates to the importance of trte harm as well as to the fan that there is only a restricted and definable number of those suffering injury: see paragraph 131 of that judgment, previously cited in footnote 28.

55 See, for example, the judgments in Case 26/74 Roquette v Commission [1976] ECR 677 at paragraph 21 et seq., and in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle v Council and Commission [1981] ECR 3211 at paragraph 50.

56 See, for example, the judgments in Joined Cases 9/60 and 12/60 Vheberghs. previously cited in footnote 33, at pp. 216 and 217; in Case 36/62, Aciéries du Tempk v High Authority [1963] ECR 289 at p. 296; in Joined Cases 64/76 and 113/76, 167/78 and 239/78 and 27/79, 28/79 and 45/79 Dumortier Frères v Coanca [1979] ECR 3091 at paragraph 21 ; and the more recent Wílzmünle case, previously cited m footnote 54, at paragraph 51 et seq..

57 Previously cited in footnote II.

58 See Annex 30 to the refeneces, p. 1. It may be observed that the applicants claim that the damage is greater, but that the important feature of this statement by the Commission is the fact that the existence of damage vas accepted, whilst the Commission states, wrongly in my view, that that report does not amount to recognition of the existence of damage but simply reproduces the figures produced by the applicants.

59 See the Aakkr judgment, previously ched in footnote 11, at paragraph 15.

60 Sec, in this tease, Mr Adracate General Mischo'i Opinion prior to the Aaidcr judgment (pp. 1723 tod 1724), b which he nevertheless empiissi that a reduction in quotas would have amounted to a nurh/strong encouragement for the undertakings m question to restore the traditional patterns.

61 Sec the rejoinder in the Fmader-italsidcr att, p. 61 et seq., and the rejoinder in the Hick case, p. 60 et seq..

62 See the rejoinders, p. 47.

63 See the rejoinder in the fimacfer-fta/swriT case, p. 63, and the rejoinder in the Hkk case, pp. 61 and 62.

64 See dit joinder in the Finsider-Ialsider cue, pp. 71 and 72.

65 Sec lhe second and duid paragraphs of Pan I of the recitals (OJ 1989 L 86, p. 76).