Opinion of Mr Advocate General Van Gerven
Mr President,
Members of the Court,
1. Joined Cases C-363/88 and C-364/88, now before the Court, both concern proceedings for damages under the second paragraph of Article 34 and the first paragraph of Article 40 of the ECSC Treaty. The Società Finanziaria Siderurgica Finsider SpA and Italsider SpA, the applicants in Case C-363/88 (hereinafter referred to as Finsider-Italsider) and the Società Acciaierie e Ferriere Lombarde Falck SpA, the applicant in Case C-364/88 (hereinafter referred to as Falck, claim that, by refusing to adopt, for 1984 and 1985, the measures provided for in Article 15B(4) and (5) of Commission Decision No 234/84/ECSC and, for 1986, the measures provided for in Article 15B(4) of Commission Decision No 3485/85/ECSC, with a view to correcting the imbalance in traditional patterns of trade, the Commission was guilty of a wrongful omission. In addition the applicants claim that, by granting to a number of undertakings in the steel industry in other Member Sutes, under the second subparagraph of Article 10(1) of the said decisions, additional quotas for products intended for the production of small welded tubes without having regard to the principle embodied in the said Article 15B of conformity with traditional patterns of trade, the Commission committed an wrongful act. The consequence of these additional quotas was to accentuate still further the imbalance established in traditional patterns. The applicants are demanding from the Commission redress for the injury they claim to have suffered as a result of the said wrongful conduct and of the consequent reduction of their deliveries of steel products in categories la, lb and II on the Italian market during 1984, 1985 and 1986.
1. The factual and legal background
1.1 Arüde 15B of Commission Decision No 234/84/ECSC and the refusal to apply it for 1984
2. The purpose of the measures in question was to ensure, during the most critical period of the crisis in the iron and steel industry, the restructuring of the industry within a competitive context compatible with the solidarity imposed by the production quota system. With that object Article 15B of Commission Decision No 234/84 of 31 January 1984 provided as follows:
3. The European Independent Steelwork Association (EISA) brought before the Court on 20 February 1984 an application for a declaration that that article was void on the ground that it was incompatible with the principles of the common market in steel products and in particular with the principle of free movement of steel products and with the principle of the abolition of measures causing discrimination between producers, purchasers or consumers or interfering with the freedom of purchasers to choose suppliers. At the same time EISA also made an application for the suspension of the operation of Article 15B.
4. By order of 28 March 1984, the Court dismissed EISA's application for the suspension of the operádon of Article 15B. Two points may be noticed from the statement of the reasons on which the Court's decision was based. First, they show that the Court had some doubts as to the compatibility of Article 15B with Article 58 of the ECSC Treaty:
5. After establishing that deliveries of steel products in categories la, lb and II had been substantially altered in comparison with traditional deliveries, the Italian Government, by letters of 5 June, 3 August and 30 November 1984 and 25 February 1985 relating to the first, second, third and fourth quarters of 1984 respectively, submitted a complaint to the Commission in pursuance of the said Article 15B of Commission Decision No 234/84. It asked the Commission to take the measures provided for in Article 15B to correct the imbalance established in the traditional patterns of trade. In a letter of 11 March 1985, the Italian authorities repeated that request on the basis of dau relating to the whole year 1984.
6. In view of this refusal by the Commission to take the measures provided for in Article 15B with regard to the imbalance in the traditional patterns of trade established in 1984, Assider, the Italian steel industry federation, and the Iulian Government, on 31 May and 12 July 1985 respectively, brought an action before the Court under the third paragraph of Article 35 of the ECSC Treaty for a declaration that the implied decision of refusal was void.
1.2. The implied refusal to apply Artide 15B of Derision No 234/84 and of Decision No 3485/85 for 1985 and 1986 respectively
7. As emerged clearly from the data supplied by the Italian authorities to the Commission and as was substantially confirmed by the Commission, deliveries on the Italian market of steel products in categories la, lb and II by the steel undertakings of other Member States were altered to a significant extent in comparison with traditional deliveries. The Italian authorities therefore repeatedly requested the Commission to apply the said Article 15B of Decision No 234/84 and, after 1 January 1986, Article 15B of Decision No 3485/85 which replaced it. The latter Article 15B was identical to the Article 15B previously quoted with the exception of paragraph 5, which had been deleted in Decision No 3485/85/ECSC because, at the end of 1985, the Council and the Commission took the view that the iron and steel industry had already seen the worst of the crisis and that the power conferred by the said paragraph 5 to reduce quotas was no longer justified. Moreover, in view of the improvement in the situation of the European steel industry, Article 15B of Decision No 3485/85 was repealed in its entirety as from 1 January 1987.
1.3. The second subparagraph of Article 10(1) of Commission Decisions Nos 234/84 and 3485/85 and the granting of additional delivery quotas during the period from 1984 to 1986
8. The Commission not only refused to take the measures provided for in Article 15B of the abovementioned decisions to correct the imbalance in traditional patterns of trade. During the period from 1984 to 1986 it is alleged even to have encouraged the imbalance in the traditional patterns by granting to steel undertakings in other Member States under the second subparagraph of Article 10(1) of Decision No 234/84 or Decision No 3485/85 (whose wording is identical), additional delivery quotas for products intended for the production of small welded tubes, that is, a subcategory of category la.
9. The question raised by Article 10(1), which has given rise to considerable differences of opinion between the Commission on the one hand and certain Member Sutes and steel undertakings on the other, is whether Article 15B, which has been discussed above, and the principle of conformity with traditional patterns of trade embodied therein, applied also to the products intended for the production of small welded tubes, referred to in Article 10(1).
10. It may be seen from the annexes to the defences that the Commission had in fact informed the steel undertakings at the urne that Article 15B was also applicable to products intended for the production of small welded tubes. It thought therefore that the steel undertakings ought to offset an increase in the deliveries to the tube-manufacturers, which might create an imbalance in traditional patterns of trade, by a corresponding reduction in deliveries to other purchasers, in the same Member State, of products in category la (that is, the category to which products intended for the production of small welded tubes belonged). However, the opposition of the Member Sutes and undertakings referred to, without whose active participation the application of Article 15B as advocated in the memorandum was impossible — certainly after the Court's order of 28 March 1984 in Case 37/84 R— dissuaded the Commission from insisting on conformity with the traditional patterns of trade.As the applicants complain, the Commission, during the period from 1984 to 1986, therefore granted to undertakings additional quotas products intended for the production of small welded tubes without ensuring conformity with traditional patterns of trade, which, according to the applicants, considerably aggravated the imbalance in the said traditional patterns.
1.4. 77* claim for compensation
11. After the judgment in Joined Cases 167 and 212/85 Assider in which the Court declared void the implied decision refusing to apply Article 15B(4) of Decision No 234/84 for the year 1984 (see section 6 above) Assider and its members Finsider-Italsider and Falck, by letters of 29 May and 30 July 1987, informed the Commission of the amount of the injury they had suffered as a result of the failure to apply Article 15B for the years 1984, 1985 and 1986. They, asked the Commission, in pursuance of the first paragraph of Article 34 of the ECSC Treaty, to take steps to ensure, by the payment of damages, equitable redress for the harm resulting directly from the failure to apply Article 15B. By letters of 8 July, 7 November, 30 October and 10 November 1987, the Iulian Government put forward through administrative channels a similar claim for damages. It should be stated that at that time the Commission was no longer in a position to use the power conferred on it by Article 15B(5) to reduce quotas, since that paragraph had already been deleted as from 1 January 1986 and, moreover, the remainder of the article had also ceased to apply as from 1 January 1987.
12. In the following sections I shall consider first the legal basis of the proceedings for damages (below, sections 13 to 21) and secondly the question whether, in these cases, the conditions for liability on the part of the Community are met (below, sections 22 to 35).
2. The legal bans and admissibility of the actions
2.1. Imprecise nature of the leged basis f or the applicants' action for damages
13. As has already been mentioned, these actions for damages are based on the second paragraph of Article 34 and the first paragraph of Article 40 of the ECSC Treaty. The second paragraph of Article 34 provides:
14. In the legal basis relied on by the applicants as far as the second paragraph of Article 34 of the ECSC Treaty is concerned it is possible to note a further lack of precision arising from the wording of that article. I shall mention it briefly as it gives me the opportunity to explain the provisions of Article 34.
2.2 Legal basis for the action for damages where a Community measure is declared void (Article 34 of the ECSC Treaty)
15. According to the applicants, the grounds on which they rely in claiming redress, set out above at the end of section 13, are based in law on Article 34 or the first paragraph of Article 40 of the ECSC Treaty.
2.3 Legal basis for the action for damages relating to Community measures with the Mme content as a measure declared void
16. The question arises whether the same view must be taken with regard to the applicants' actions in so far as they claim redress for the harm resulting from the Commission 's implied refusal to apply, for 1985 and 1986, Article 15B(4) of Decision No 234/84 and of Decision No 3485/85 respectively although the Court did not declare that refusal void.
17. It seems to me that the Peine-Salzgitter judgment of the Court of First Instance correctly applies the solution already adopted by the Court in the Asteris judgment and that the same solution must be applied in this case to the Commission's implied refusal to apply Article 15B(4) of Decision No 234/84 and of Decision No 3485/85 with regard to the imbalance in traditional patterns of trade established for 1985 and 1986 respectively, which was essentially acknowledged by the Commission. Article 15B(4), quoted in section 2, requires the Commission, if it justifiably takes the view that there is an imbalance in traditional patterns of trade, to consult the Member States concerned and to request the undertakings in question formally to give a commitment in writing that they will correct the imbalance during the following quarter. There is no indication that in this respect the Commission adopted, for 1985 and 1986, an attitude different from that adopted in 1984, a year for which the Court, in the Assider judgment had on 9 April 1987 declared void the Commission' implied decision refusing to apply Article 15B{4). With regard also to the refusals to apply that article for 1985 and 1986, which were not expressly declared void, it is appropriate for the Court to determine therefore in this case whether those refusals involved a fault on the part of the Commission and whether they caused the applicants direct and special harm within the meaning of the first paragraph of Article 34 of the ECSC Treaty.
2.4 Legal basis for the action for damages relating to Community measures not declared void (and not comparable to measures declared void) (first paragraph of Article 40 of the ECSC Treaty)
18. What is at issue here is the injury which the applicants claim was caused to them, on the one hand by the implied refusal to apply Article 15(5) of Decision No 234/84 conferring on the Commission the power to reduce delivery quotas as regards the imbalance in the traditional patterns of trade established in 1984 and 1985 and, on the other hand by che granting during the period from 1984 to 1986 of additional delivery quotas under the second subparagraph of Article 10(1) of Decisions Nos 234/84 and 3485/85 without regard to the principle of conformity with traditional patterns of trade. For the purpose of reparation for this injury the applicants rely on the first paragraph of Article 40 of the ECSC Treaty in view of the fatt that this claim involves Commission decisions which the Court has not declared void and which in addition are not comparable to a decision which has been declared void.
19. In so far as the actions for damages brought by the applicants are based on the first paragraph of Article 40 of the ECSC Treaty, the question arises whether that article actually lends itself to such an action in relation to Commission decisions which have not been declared void (and which are not comparable to decisions declared void). In that respect the Commission contends that Article 34 of the ECSC Treaty deals exhaustively and restrictively with the Community's extra-contractual liability under the ECSC Treaty where the cause of the harm results from a decision, a recommendation or an implied decision of refusal by the Commission and that an action for damages under the first paragraph of Article 40 is excluded in such cases. The applicants deny that.
20. The restrictive interpretation of the possibility of proceedings envisaged in the first paragraph of Article 40 would moreover conflict with the fundamental requirement, consistently expressed in the Court's case-law in various fields, of appropriate protection by the courts. Moreover, such a restrictive interpretation would frequently have the effect of making impossible reparation for an injury caused by decisions or recommendations or by implied decisions. In fact, the time for making an application to have a measure declared void under Article 33 or, as the case may be, under Article 35 of the ECSC Treaty is very short (one month), whereas the harm arising from an act or omission will often not become apparent until after that brief period has passed. In addition there are circumstances in which an action to have a measure declared void makes little or no sense, because the decision concerned has already been fully implemented. Finally, undertakings and groups of undertakings may bring an application for a declaration that a general decision or recommendation or a failure to act is void only when, according to the second paragraph of Article 33, the measure concerned involves a misuse of powers affecting them.
21. That does not mean that there are no limits to the admissibility of an action for damages resulting from a measure which has not been declared void. It follows from the case-law of the Court relating to the second paragraph of Article 215 of the EEC Treaty, and more particularly from the Krohn judgment, previously cited, that an action for damages may not be diverted from its purpose and in particular cannot be used as a substitute for an action to have a measure declared void. That would be the position for example in a case in which:
3. Has die Commission committed a fault within the meaning of the first paragraph of Article 34 or a wrongful act or omission within the meaning of the first paragraph of Article 40 of the ECSC Treaty or both?
22. If the Court agrees with me and accepts the admissibility of the actions brought by the applicants, it will first need to consider whether in this case the Commission has committed a fault within the meaning of the first paragraph of Article 34, that is, a fault of such a nature as to render the Community liable, or a wrongful act or omission within the meaning of the first paragraph of Article 40, or both.
3.1 The concept of fault in the first paragraph of Article 34 and of wrongful act or omission in the first paragraph of Article 40 of the ECSC Treaty
23. Hitherto the Court has not made any decision as to the meaning of the concept of fault occurring in the first paragraph of Article 34. It is however clear that a declaration that a measure is void or the finding of a failure to act for one of the reasons mentioned in the provisions of Article 33, combined with those of Article 35, of the ECSC Treaty does not by itself involve the liability of the Community. In fact it is clear from the first paragraph of Article 34 that a declaration that a measure is void cannot give rise to damages except where the decision, recommendation or implied refusal declared void involves a fault of such a nature as to render the Community liable. It is also clear that the concept of fault in the first paragraph of Article 34 and the concept of wrongful act or omission on the part of the Community in the first paragraph of Article 40 have the same meaning. Moreover, there is nothing to indicate that the intention in the ECSC Treaty was to introduce two different concepts of fault. The first paragraph of Article 34 simply contains special rules of procedure in the event of a declaration that a measure is void but in my view does not extend to diverging, as regards the concept of fault, from the general rules for liability in Article 40.
24. The case-law of the Court is rather sparse also as regards the concept of wrongful act or omission in Article 40, though it does contain a few useful pointers. Thus in the Meroni judgment, previously cited, the Court stated:
25. This is not to proper place to make a comparison, as regards the concept of fault, between the rules for liability in the second paragraph of Article 215 of the EEC Treaty and those in the first paragraph of Article 34 and the first paragraph of Article 40 of the ECSC Treaty. I shall simply observe that it may be seen from the much more copious case-law relating to the second paragraph of Article 215 that where a Community authority is vested with a wide discretion for the purpose of carrying out a given policy —which will almost always, though by no means exclusively, be the case in the field of legislative measures — the Community cannot be rendered liable as a result of an illegal act unless the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers, that is to say, when it has acted in a manner inappropriate to any authority acting in a reasonable manner.
3.2 Do the implied refusals to apply Article 15B(4) of Decision No 234/84 or of Decision No 3485/8Í constitute a fault within the meaning of the first paragraph of Article 34 of the ECSC Treaty?
26. The implied refusal to apply Article 15B(4) of Decisions Nos 234/84 and 3485/85 (formally) was based on the restrictive interpretation already referred to (in section 3) which, during the period from 1984 to 1986, the Commission thought it should give to Article 15B and on which the Court relied in the EISA order made on 28 March 1984 in refusing the interim measure requested. In the Assider judgment, delivered on 9 April 1987, however, the Court stated that that interpretation was incorrect, at least as far as Article 15B(4) of Decision 234/84 was concerned. Retrospectively considered, therefore, the implied decisions of refusal relating to 1984, 1985 and 1986 must certainly be regarded as illegal.
3.3 Does the implied refusal to apply Artide 15B(S) of Decision No 234/84 constitute a wrongful act or omission within the meaning of the first paragraph of Article 40 of the ECSC Treaty?
27. If the Court agrees with the assessment I have made, it will be appropriate, in my view, to accept also that the implied refusal to apply Article 15B(5) of Decision No 234/84 — Decision No 3485/85 no longer contained any similar provision (see section 7 above) — cannot be regarded in these cases as a wrongful act or omission within the meaning, this time, of the first paragraph of Article 40.
3.4 Does the decision to grant additional quotas under the second subparagraph of Article 10(1) of Decisions Nos 234/84 and 3485/8Í constitute a wrongful act or omission within the meaning of the first paragraph of Article 40 of the ECSC Treaty?
28. As I have already mentioned (in section 8), Article 10(1) provides for the possibility for steel undertakings to increase their production and delivery quotas by a certain amount for hotrolled products (coming under category la) intended for the production of small welded tubes (first subparagraph). This possibility amounts to a right for the steel undertakings, it being understood that they must provide proof that the semi-finished products have actually been used for the production of small welded tubes (end of the first subparagraph). In addition the Commission may grant additional quotas on a duh/substantiated request by an undertaking, and may make it conditional on the production of a report drawn up by a firm of auditors certifying the actual receipt of the semi-finished products by the tube-manufacturing customer and their actual use for the production of small welded tubes (second subparagraph).
29. In my view that question should be answered in the negative. When, after attempting in good faith to ensure compliance also with the principle of conformity with traditional patterns of trade in the sector of the semi-finished products in question, the Commission found that that was not possible because certain Member Sutes and undertakings failed to cooperate, it was undoubtedly in a position to refrain from using the power available to it under the second subparagraph of Article 10(1). To use it would have meant that undertakings which had customers for those products and which had asked for additional quotas would have been unable to supply such customers except by making a parallel correction as regards other products (which they were refusing to do).
4. The injury and die causal fink
30. If, contrary to what I have suggested above, the Court were to take the view that the Commission did commit a manifest and grave fault either by refusing to apply Article 15B(4) or (5) or both, or by granting, in pursuance of the second subparagraph of Article 10(1), additional quotas to competing undertakings, the question then arises whether such faults caused the applicants harm causally related to the said faults. I shall therefore now examine this question in the alternative. I take as my starting point the fact that, under the first paragraph of Article 34 of the ECSC Treaty — and this point seems to me to apply equally to the first paragraph of Article 40 — the harm suffered must be special, that is, that it must specifically affect an identified or identifiable group of persons. The harm must also be real and certain (not merely hypothetical). Moreover, as required by the first paragraph of Article 34 and, in my opinion, the first paragraph of Article 40 also, the harm must be directly caused by the alleged fault of the Commission, which means immediately, without any other intervening factor. It is for the applicants to adduce proof of such harm and of such a causal link.
4.1 The existence of damage
31. I think it would be hard to contest that the actions of the Commission, which I am assuming to be manifestly and gravely wrongful, are of such a nature as to cause the applicants damage which is both real and special. As regards the implied decisions of refusal, that emerges from paragraph 16 of the Assider judgment (regarding the year 1984, but equally valid as regards 1985 and 1986), in which the Court stated:
4.2 Absence of a causal link
32. According to the applicants there is a causal link between the harm which the imbalance in the traditional patterns of trade caused them during the years 1984 to 1986 and the supposedly wrongful conduct of the Commission, which did not prevent that imbalance and indeed encouraged it.
33. However, the Commission contends that even if it had reduced the delivery quotas of the undertakings responsible for the imbalance in the traditional patterns, or even if it had refused to grant to those undertakings additional quotas for products intended for the manufacture of small welded tubes, Rnsider-Italsider's and Falck's share of the market would still have been reduced. Apan from the fact that a reduction of delivery quotas is no guarantee that the undertakings responsible for the imbalance in the traditional patterns would actually have reduced their exports to Italy, the Commission states that the probable effect of a reduction of imports intended for Italy from other Member Sutes would not have been an increase in Finsider-Italsider's and Falck's deliveries on the Italian market, but an increase in imports into Italy from third countries. Although the applicants deny that by reference to the rules, which they claim are strict, on imports from third countries, it may in fact be seen from the data supplied by the Commission that imports into Italy of steel products from the countries of Eastern Europe alone were able, as a result of agreements concluded by the Community with those countries, to grow by 300000 tonnes between 1984 and 1986 and that the Commission was unable to do anything about it. The possibility of an increase in imports into Italy from other third countries was even greater. In fact a considerable part of the quotas for imports into Italy allocated to the countries with which the Community had concluded agreements remained unused. In view of the fan that, apart from a few exceptions, the applicants had always refused during the period from 1984 to 1986 to adapt their prices to the lower prices of their competitors outside the Community, it was moreover obvious that in the event of a reduction of imports from other Member Sutes, imposed by the Commission, Italian purchasers of steel products would obtain supplies from producers outside the Community rather than from the applicants.
34. An assessment of the existence of a direct causal Link between the (assumed) faults of the Commission and the harm caused to the applicants must be made in concreto, that is, with regard to the actual circumstances which would in all probability have existed if there had been no fault, as compared with the situation assuming there had been a fault. So it is not only a question of whether, in the absence of fault on the Commission's part, there would have been a reduction in the deliveries of competing undertakings, or at least whether there would have been a possibility of such a reduction, (see section 32 above), but in addition whether the applicants could have taken advantage of such a reduction, or the possibility thereof, to increase their own deliveries. If the applicants, on whom the burden of proof rests, cannot manage to make it seem probable that they — and not third country undertakings, as the Commission asserts — would have been able to take advantage of the reduction (or chance of reduction) in quantities or of the absence of allocation of additional quotas to competing Community undertakings, they have not sufficiendy demonstrated that there is, in concreto, a direct causal link between the harm they have suffered and the Commission's assumed fault.
35. The fact that the applicants would not, in all probability, have succeeded in profiting from the said reduction or the said non-allocation of quotas may also be seen, according to the Commission, from the fact that the applicants, above all Rnsider-Italsider, were to a large extent themselves responsible for their loss of market share. In this respect the Commission refers to the damning report Review of Rnsider's 1982-1986 Operational Performance in reaching 1984-1986 Objectives, drawn up by McKinsey & Company at the request of the Italian Government and the Commission, and to its decision of 23 December 1988 concerning aid that the Iulian Government proposes to grant to the public steel sector, in which it sutes in particular:
36. It seems to me, having regard to the factors considered in sections 33 to 35, that the applicants have not succeeded in sufficiently demonstrating that there was a direct causal link between the injury they claim to have suffered as a result of the imbalance in traditional patterns of trade and the alleged faults of the Commission.
5. Conclusion
37. Having regard to the foregoing considerations, I propose that the Court declare the actions for damages brought by Finsider-Italsider and Falck under Articles 34 and 40 of the ECSC Treaty to be admissible but unfounded. In view of the discretion enjoyed by the Commission and regard being had to the complex economic and legal context in which the Commission had to exercise the powers conferred on it, there are not grounds for stating that it was guilty of manifest and grave disregard of the limits imposed on the exercise of its powers. Accordingly, in the circumstances of this case, the Commission cannot be charged with a fault or a wrongful act or omission within the meaning of the first paragraph of Article 34 or of the first paragraph of Article 40, as the case may be. Alternatively, the applicants have not succeeded in demonstrating sufficiently the existence of a direct causal link between the alleged faults and the harm suffered.
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).