Opinion of Advocate General Gulmann delivered on 17 March 1993

1 Original language: Danish.

2 Case T-120/89 [1991] ECR II-279.

3 For a survey of the case-law see Charles Funck: Le régime de crise de la CECA dans les arrêts de la Cour de Justice des Communautés Européennes, Cahier de Droit Européen, 1989, No 3/4, p. 251.

4 See Decision No 2794/80 of 31 October 1980 establishing a system of steel production quotas for undertakings in the iron and steel industry, point 6 of the preamble (OJ 1980 L 291, p. 1).

5 [1988] ECR 4131.

6 Doc. COM(85)509. The Danish version of the communication is dated 8 October 1985.

7 See Decision No 3485/85, OJ 1985 L 340, p. 5.

8 [1988] ECR 4309.

9 Subsequently the Court also declared void Article 5 of the general Decision No 194/88, which superseded the said Decision No 3485/85 and the period of validity of which was the first six months of 1988; see the judgment in Joined Cases 218/87 and 223/87 and 72/88 and 92/88 Hoogovens Groep and Others v Commission [1989] ECR 1711.

10 In this connection see Judge Biancarclli's Opinion in Case T-120/89, where it is stated, towards the end of Part I: Throughout the currency of the quota system, situations of that kind were resolved fairly simply by the Commission's granting additional quotas to companies which had successfully pleaded their cases before the Court of Justice. That restitution in kind, moreover, is in conformity with the concept of equitable redress referred to in the first paragraph of Article 34 of the Treaty.

11 [1988] ECR 2181.

12 See paragraph 47 as regards the 1985 decisions not annulled. Paragraph 58 contains corresponding reasoning as regards the 1986 to 1988 decisions not annulled.

13 [1992] ECR I-359.

14 See section 17 of his Opinion. At the end of section 19 he said: Contrary to the Commission, I think that an action for damages under the first paragraph of Article 40 may be brought to make good an injury which has been caused by a decision, recommendation or an implied decision of refusal not declared void by the Court. Contrary to the Commission's contention, the saving clause contained in the first paragraph of Article 40 regarding the provisions of the first paragraph of Article 34 relates solely to the harm caused by the measures declared void, which are mentioned therein. With regard to measures which have not been declared void (except for measures assimilated to those declared void) that saving clause does not apply and the provisions of the first paragraph of Article 40 — of which it may be stated that in ECSC matters it contains the common rules of law as regards liability of the Community — is applicable in its entirety.

15 See section 20 of Advocate General Van Gerven's Opinion in the Finsider case.

16 See the judgment in Case C-30/91 P Lesteile [1992] ECR I-3755.

17 See paragraph 43 et seq. of that Opinion, at p. 4329.

18 In his Opinion Judge Biancarelli summarized the case-law of the Court as follows: Referring to settled case-law and relying in particular on Articles 3, 4 and 5 of the ECSC Treaty, which prohibit all discrimination as between the undertakings covered by the Treaty, the Court of Justice stressed the need, in a period of crisis, where, as a result of administrative control, quantitative competition between undertakings is de facto eliminated and where an artificial balance is created between supply of and demand for steel, to respect in full the principle of fairness laid down in Article 58 of the Treaty. As early as 1961 in its judgment in Meroni et Cie and Others v High Authority (Joined Cases 14/60, 16/60, 17/60, 20/60, 24/60, 26/60 and 27/60 and 1/61, [1961] ECR 161), the Court held that the High Authority must take particular care to ensure that the principle of equality in the field of public charges is always most scrupulously observed and from this it is inferred that the High Authority had been right to give precedence to the principle of distributive justice rather than to that of legal certainty. Similarly, in its judgment of 3 March 1982 (Case 14/81 Alpha Steel v Commission [1982] ECR 749), the Court recognized the Commission's freedom of choice concerning determination of the reference period, whilst at the same time making it clear that such a choice must not lead to breach of the principle whereby total production must be shared on an equitable basis between the various Community undertakings. That finding was confirmed by the judgment of 19 September 1985 (Joined Cases 63/84 and 147/84 Finsider v Commission [1985] ECR 2857) in which the Court laid particular emphasis on the criterion of equitable distribution of the production and delivery quotas between the various Community undertakings, by the judgment of the Court of 21 February 1984 Coined Cases 140/82, 146/82, 221/82 and 226/82 (Walzstahl-Vereinigung and Thyssen v Commission [1984] ECR 951) and, finally, by the judgment of 6 July 1988 (Case 236/86 Dillinger Hüttenwerke v Commission [1988] ECR 3761) in which the Court held expressly that the purpose of the quota system ... is ... to spread in the most equitable manner possible amongst all undertakings the limitations on production required by the steel crisis.

19 [1982] ECR 749.

20 [1983] ECR 2041.