Court of Justice 17-05-1984 ECLI:EU:C:1984:185

Legal background to the dispute and statement of the facts

Written procedure and conclusions of the parties

Upon hearing the report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.

By order of 18 January 1984 the Court assigned the case to the Second Chamber.

The applicant claims that the Court should:

1. Primarily declare void, wholly or at least in part, the Commission's decision of 24 March 1983 addressed to Estel NV;

   In the alternative, reduce to nil or to such amount as the Court shall think fit the fine imposed by the contested decision;

2. In either case make such further order as the Court shall think fit;

3. Order the Commission to pay the costs.”

The Commission contends that the Court should:

1. 1. Primarily dismiss Estel's claims; and

   2. order Estel to pay the costs.

2. In the alternative,

   Dismiss Estel's claim or claims as the Court shall think fit.”

Submissions and arguments of the parties

In the first submission made in its application, the applicant maintains that the Commission has infringed Article 15 of the ECSC Treaty by failing to state sufficient reasons, or at least intelligible reasons, for the contested decision, with respect to the fine imposed upon it in relation to an excess of 5 459 tonnes and the amount of that fine. The reasons on which the decision was based did not take into account the comments submitted by Estel both in writing and orally, including those submitted at the hearing by the Commission. Above all, the Commission has simply not considered the arguments relied upon by Estel, namely that the Commission should have taken account, in fixing the fine, of the fact that the relevant quotas had not yet been fixed in the fourth quarter, that there was no excess which could be attributed to Estel, and that there were exceptional circumstances requiring that the fine should be reduced. Again, the disputed decision does not contain any grounds for holding that this action relates to a case covered by the expression “generally” contained in Article 12 of Decision No 1831/81, or that a fine of 82.5 ECU per tonne exceeded, mounting to 2 183 445 ECU, is appropriate.

In its second submission, the applicant alleges that the Commission has breached the principle of legality by basing the contested decision, is so far as it relates to the part of the fine imposed for an excess of 5 459 tonnes over its delivery quota, exclusively upon a method of applying Article 10 of Decision No 1831/81 which it did not communicate to Estel until after the fourth quarter of 1981 and which has a decisive bearing on the meaning of the expression “quota” for the purposes of Article 12 of the above-mentioned decision.

In the alternative, the applicant argues that the Commission has breached the principle that there can be no penalty without fault (nulla poena sine culpa) by failing to take account of the fact that Estel has no responsibility as regards an excess of 5 459 tonnes over its delivery quota.

In the further alternative, the applicant maintains that the Commission was at fault in not taking into consideration the circumstances giving rise to the excess of 5 459 tonnes over its delivery quota, the seriousness of the breach committed, and the share of responsibility attributable to Estel.

In support of that submission, the applicant argues that Estel and the Commission have applied two different methods in adjusting the quota under Article 10. Estel took as its starting-point the deliveries of products for re-rolling made during the fourth quarter to customers having a higher demand for such products than during the reference period, and then requested an adjustment equal to the difference between the deliveries effected during the fourth quarter and those made to the same customers during the reference period, regard being had to the relevant abatement rate.

The Commission, however, adjusted the quota by basing its calculation on total deliveries of products for re-rolling and by taking into account total deliveries made during the reference period, in other words including deliveries to customers whose demand had not risen, and again by taking the abatement rate into account.

According to the applicant, the difference between the two methods of calculation in this case produced the following figures:

For details of the different methods and the reasons which led Estel to apply and to consider that it could apply a different method from that of the Commission, as well as for argument on the legal relevance of its own method, the applicant refers to the statement of its second submission in Case 270/82.

The applicant claims that although the application of Article 10 gave rise to a great deal of confusion during the third and even the fourth quarter of 1981, since it was a new provision, there was no mention of any difference between the two methods in the conversations and exchanges of correspondence between the steel industry and the Commission, and Estel was therefore able to reply on the assumption that at least that question was not in dispute.

Only in the last week of November 1981 did the Commission draw Estel's attention to the fact that it was recommending a different method. In. December 1981 and January 1982 Estel and the Commission discussed their difference of opinion concerning Article 10, and the Commission finally rejected the method advocated by Estel only in its letter of 3 February 1982 (in relation to the third quarter of 1981). Consequently, the applicant takes the view that no complaint can be made against it with reference to an excess of 5 459 tonnes over its quota.

Having regard to the fact that deliveries in Category la were 5 056 tonnes below the quota, and that a tolerance of 3% in excess is allowed by virtue of Article 11 (1) of Decision No 1831/71, the Commission calculated that the quota had been exceeded by 22 132 tonnes in Category lb and by 4 334 tonnes in Category V, and accordingly imposed a fine for a total excess of 26 466 tonnes. Estel is able to accept the fine for an amount of 21 007 tonnes but it disputes the fine imposed on account of an excess of 5 459 tonnes. If the Commission had allowed the quota adjustment requested by Estel for Category la, in accordance with Article 10 of Decision No 1831/81, it would have had to base its calculation for Category la on an amount for delivery which fell below the quota by 17 356 tonnes instead of 5 056 tonnes, so that 12 300 tonnes would still have been available to offset excess amounts in other categories. The effect of that set-off would have been that the quota in Category lb was exceeded by 16 673 tonnes, instead of 22 123 tonnes, that is, 5 459 tonnes less than the quantity for which a fine was imposed in the contested decision.

Since the manner in which the quota should be adjusted under Article 10 had not been determined, and Estel was unable to foresee that the delivery of a quantity of products for re-rolling might lead to its delivery quota being exceeded by 5 459 tonnes, the fine is contrary to the principle of legality.

Even if Estel had been aware throughout that fourth quarter — which it was not — that it was equally possible to apply different methods of calculation, the Commission should have refrained from imposing a fine, because Estel's method was “reasonable and perfectly tenable.” The fact that the Commission relied solely on its own method to determine the excess amounts for which a fine was imposed is equally contrary to the principle of legality, which forms part of the Community legal order. In support of that opinion, the applicant refers to a report by Professor Tiedemann of the University of Freiburg (Federal Republic of Germany), which is annexed to the reply in Case 270/82.

In the alternative, the applicant argues that the fine is contrary to the principle nulla poena since culpa. During the fourth quarter, Estel was able to consider and did consider that it was entitled to apply its own method, having regard to the reasonableness of the latter and the background to Article 10. Since Estel had thus made an excusable mistake as to the meaning of Article 10, it cannot be criticized for having exceeded the quota by 5 459 tonnes. With reference to the importance of the principle nulla poena since culpa in Community law, the applicant again refers to Professor Tiedemann's report.

Again in the alternative, the applicant maintains that the Commission should have taken account of extenuating circumstances, the seriousness of the breach committed, and Estel's share of responsibility — criteria which are set out at length in Professor Tiedemann's report. In the case before the Court, the exceptional circumstances which led to an excess of 5 459 tonnes justify at all events a reduction in the fine to such an amount as the Court may consider appropriate.

In its principal submission, the Commission advances an objection of inadmissibilitay against the action, arguing that Estel's application amounts in reality to a claim relating to the legality of the Commission's decision of 8 March 1982, which adjusted the quota initially allotted to Estel for products in Category la in accordance with Article 10 of Decision No 1831/81. However, since Estel failed to institute proceedings within the period of one month laid down by Article 33 of the ECSC Treaty, the decision of 8 March 1982 can no longer be challenged, nor can the Commission's point of view regarding adjustment of the quota be disputed in the proceedings in this case. In support of that argument, the Commission refers to the case-law of the Court and in particular to its judgment of 31 March 1965 in Case 21/64 Macchiorlati Dalmas v High Authority [1965] ECR 175, in which the Court stated that the strict time-limit for instituting proceedings laid down by Article 33 of the ESCS Treaty “is in keeping with the necessity to prevent the legality of administrative decisions being called in question indefinitely.” Moreover, the third paragraph of Article 36 of the ECSC Treaty is not applicable to this case, since it concerns an individual decision addressed to Estel.

On the substance, the Commission maintains that both Estel's submissions are unfounded. As regards Estel's fiist submission, the Commission considers that according to the case-law of the Court a decision need only set out the main points of law and of fact upon which it is based and which are necessary in order that the reasoning which has led the Commission to its decision may be understood, and that the reasons on which a decision is based are sufficiently stated if it contains an indication of the grounds of both fact and law on which it is founded, without its being necessary to discuss the objections which may be made against it. Furthermore, it is not under a duty to explain the reasons why it does not consider itself bound to act upon the comments made or upon facts which were not and could not have been relevant at the time at which the decision was taken.

The Commission takes the view that Article 12 of Decision No 1831/81 provides for a fine which is objectively determined in cases in which quotas are exceeded and that it cannot therefore take into account subjective factors such as the extent of blame or certain special circumstances. Consequently, the Commission has no margin of discretion in imposing the fine and hence is not bound to state further reasons for its decision on that point.

Similarly, the Commission has no discretionary power in fixing the fine pursuant to the first paragraph of Article 12, and it is therefore not bound to provide further reasons for its decision on that point. By contrast, the Commission considers that it has a certain discretion to increase the fine in certain cases under the second paragraph of Article 12. However, where an undertakning has already exceeded its quotas in the previous quarter, it is to be expected that an increase of 10% of the fine may be imposed upon that undertaking without any need for an additional statement of reasons for the increase. In the case in point, Estel had already exceeded its quotas in the third quarter of 1981.

Furthermore, the decision in dispute must be considered in the context of its relationship with Decision No 1831/81 and the decision of 8 March 1982. Taken together, all these decisions indicate without any amibuity the view which the Commission took as to the facts and the justification for the amount of the fine.

With reference to the applicant's second submission, the Commission raises the general objection that quotas exceeded and quotas unused, to which reference is made in Article 11 (which allows excess amounts in certain categories to be offset by quotas fixed for other sub-categories of Category I which remain unused) do not bear any relation to the adjustment provided for in Article 10. That provision authorizes adjustments to the quotas fixed for Category la only when and in so far as the quotas fixed for products for re-rolling, forming a part of such quotas, are insufficient to cover actual deliveries of products for re-rolling within the Community during the relevant quarter. If Estel had been granted the adjustment of an additional 12 300 tonnes which it requested, it would have obtained that additional amount twice over, first as a part of the delivery quota fixed initally for products for re-rolling, and secondly as a part of the adjustment. In the event, a quota of 96 643 tonnes (an adjustment of 84 343 tonnes added to 12 300 tonnes allotted as a delivery quota for products for re-rolling) would have been sufficient to cover actual deliveries of products for re-rolling. Estel sought to use certain unused quots in Category la, which had been intended to cover actual deliveries of products for re-rolling but which were not used for that purpose, to reduce an excess amount of 22 132 tonnes in Category lb by 5 459 tonnes to 16 673 tonnes, so as to moderate it a little.

The Commission considers that that amounts to conduct on Estel's part showing a lack of solidarity towards other steel undertakings, since it implies that Estel might have enjoyed a larger quota at the expense of other undertakings — a course of action diametrically opposed to the object which the quota scheme is meant to serve.

As regards the method which the Commission applied in calculating the adjustment to the quotas pursuant to Article 10 of Decision No 1831/81, the Commission states that it had to take into account the fact that the production and delivery quotas initially fixed already included a quantity designated for deliveries of products for re-rolling. In any event, the undertaking in question had the advantage of cover for all its products for re-rolling delivered on the Community market during the quarter at issue, determined partly with reference to the (unofficial) delivery quota included in the total delivery quota initially fixed for Category la and therefore representing average actual deliveries for a specified period, and partly with reference to an adjustment quota equal to the difference between the tonnage actually delivered and the same unofficial delivery quota (expressed as a percentage) fixed for products for re-rolling. It follows from the nature of the scheme itself that adjustments are always made after the event by virtue of the fact that the figures for products for re-rolling actually delivered on the Community market can be established only after the end of any quarter for the undertaking concerned.

The Commission does not agree that the method of calculating the adjustment was not known during the fourth quarter of 1981. The applicant knew or should have known the way in which that adjustment must be calculated and at least the fact that both the reference productions and deliveries and the (initial) production and delivery quotas as fixed were determined on a flat-rate basis and were therefore not “kundenorientiert” [based on individual customers' positions]. It follows that its method of calculating the adjustment was consistent with the method of calculation for the quota initially fixed. It is apparent from a letter from Eurofer dated 29 September 1981 and addressed to the Commission that the former, and by implication Estel, as a member of Eurofer, were not presented with any difficulty as to the basis of products for re-rolling who had requested adjustments used other factors as a basis of calculation or brought proceedings against the Commission's decision.

Finally, the Commission observes that Estel should have requested the Commission, as the authority which took Decision No 1831/81, for a precise interpretation of Article 10 immediately after the decision had been taken, as did other undertakings, and that Estel itself therefore assumed the risk involved in not doing so. Estel's method is scarcely reasonable, since it is prejudicial to other steel producers, and it is untenable since it conflicts with the whole scheme introduced by Decision No 1831/81. Estel therefore made the mistake of believing that its deliveries of products for re-rolling could give rise to a set-off under Article 11 whereas that would be contrary to the purpose of the adjustment provided for by Article 10. It follows that the fine imposed for the excess amount of 5 459 tonnes is not incompatible with the principle of legality.

With reference to the alternative head of claim in the second submission, the Commission stresses that in its opinion Article 12 of Decision No 1831/81 lays down a penalty fixed according to objective criteria and that it does not leave the Commission with any margin of discretion as to the imposition of that penalty. In any event, the fact that an undertaking has made a perfectly honest mistake in interpreting an article of the aforementioned decision does not constitute a circumstance which may be taken into consideration in applying Article 12. Should the Court conclude in favour of a different interpretation of Article 12, the Commission maintains that Estel may be accused of having knowingly exceeded its quota.

The Commission also contests the claim that it has breached the principle nulla poena sine culpa since at the material time, that is to say during the fourth quarter of 1981, Estel knew or should have known that it was exceeding the quotas which had been allotted to it and that such a course of action constituted an offence.

As regards the submission made in the further alternative by Estel, alleging that the Commission did not take into account the circumstances in which the excess at issue arose, its seriousness or the degree of fault on Estel's part, the Commission once again points out that the first paragraph of Article 12 of Decision No 1831/81 does not give it any margin of discretion which might enable it to reduce the fine. It is only when a fine is being increased in accordance with the second paragraph of Article 12 that it might where applicable take certain subjective factors into account. In view of the fact that it could as much as double the fine by virtue of that provision and that in the event it increased it by only 10 %, the Commission considers that it has already sufficiently allowed for the subjective factors.

Finally, the Commission stresses that, in its view, the action relates only to a part of the fine, namely that part which concerns the excess of 5 459 tonnes over the quotas and that no reason can be invoked to claim that the decision as a whole should be declared void or at any rate that the fine should be wholly remitted.

The applicant retorts in its reply that as regards the objection of inadmissibility raised by the Commission, it has not requested the Court to decide as to the legality of the method applied by the Commission in calculating the adjustment to the quotas in its decision of 8 March 1982. On the contrary, what it is disputing is solely the fine imposed and the amount thereof.

With regard to the substance, the applicant holds to its argument that the statement of the reasons on which the contested decision is based is inadequate. A more detailed statement of reasons was indispensable, since the Commission's argument that Article 12 of Decision No 1831/81 does not give it any margin of discretion as to the penalty to be imposed is not correct. For such an interpretation is not compatible either with the wording of Article 12 or with the Treaty, or with a number of general legal principles relating to penal sanctions, as Estel also showed in case 270/82. Similarly, the Commission should have stated the reason justifying an increase in the fine by 10 %, and it should not have confined itself to referring to the provisions of Decision No 1831/81 and its individual decision of 8 March 1982.

In connection with the first ground of claim in its second submission the applicant disputes the Commission's view that an unused amount made available by an adjustment under Article 10 cannot be used by way of set-off. On the contrary, the Commission has itself adjusted the quota for Category Ia in this case by an amount of 84 343 tonnes, which produced an unused quantity in that category of 5 056 tonnes; that tonnage could have been used to offset excess amounts in any of the other categories.

The applicant also disputes that it knew or should have known that its method of calculation was not a correct method; on the contrary, it has demonstrated both in this case and in Case 270/82 that the method of calculation which it relied upon was perfectly tenable. The letter from Eurofer dated 29 September 1981 does not deal with the question whether an adjustment must be a flat-rate adjustment or “kundenorientiert”. That question was never mentioned before 1 December 1981, except in a conversation which took place on 29 September 1981.

In its rejoinder, the Commission returns to its argument that Estel's application is essentially directed against the method of calculating the adjustment adopted by the Commission, and that it is therefore inadmissible, since Estel did not challenge the decision of 8 March 1982.

As to the first submission, the Commission rejects Estel's line of argument to the effect that it imposed a fine with reference to quotas which had not been fixed. On the contrary, the quota for Category Ia in the fourth quarter of 1981 had been objectively determined in advance. In addition, the Commission states that the increase of the fine above the normal level of 75 ECU is attributable to a qualified excess on the part of Estel, since it exceeded not only its production quota but also its delivery quota for the category at issue. The excess over each quota constitutes a separate infringement. By imposing a fine of 75 ECU in relation to the larger excess and a fine of 20 % in relation to the smaller excess, the Commission observed proportionality.

With reference to the second submission (the principle of legality), the Commission agrees with Estel in considering that the question which is raised by this case is whether Estel was entitled to adopt a different method of calculation from that recommended by the Commission; and it states that that was not the case, since the bases for the method of calculating the adjustment must be the same as for the method of calculating the initial quota. The Commission provided confirmation by telex message dated 1 December 1981, addressed to Estel, of its method of calculation under Article 10, which it had already explained to Estel on several occasions in the past in conversations at meetings and on the telephone.

As regards the alternative head of claim in the second submission (nulla poena sine culpa, the Commission puts the point that it does not consider that it would be able to ensure the proper functioning of the quota system unless it was empowered to apply a system of automatic fines, and that any other scheme would jeopardize legal certainty.

Oral procedure

At the sitting on 23 February 1984, Estel, represented by T. R. Ottervanger, Advocate, and the Commission of the European Communities, represented by R. Wägenbaur, Legal Adviser to the Commission, acting as Agent, and P. V. F. Bos, Advocate, presented oral argument.

The Commission asserted on that occasion that, in its opinion, Estel knew or should have known at the beginning of the fourth quarter of 1981 that its method of calculation, with regard to the adjustment of the quota under Article 10 of Decision No 1831/81, was incorrect, since it was evident that the calculation of the adjustment was determined by the method of calculation for the reference figures. In any event, Estel had actual notice of it after receiving the Commission's telex message of 1 December 1981, and Estel adapted in due time its production programme for products other than those in Category la.

Against that, Estel argued that even towards the end of November 1981, the Commission had not finally adopted as position on the matter of the method of calculation for the adjustment. It is true that the Commission informed Eurofer by letter of 10 November 1981 that the method based on percentages was applicable. However, that did not remove the differences of opinion with respect to the applicability of the method described as “kundenorientiert”. On the other hand, the discussion between the Commission and Estel on that subject did not begin until the end of November 1981, by which time the delivery contracts had already been concluded. In any event, the Commission should have notified its method of calculation to Estel at the beginning of the fourth quarter of 1981, and it did not do so clearly and definitively until after the end of that quarter.

The Advocate General delivered his opinion at the same sitting.

Admissibility

In its defence the Commission raises, in the first place, an objection of inadmissibility. It submits in that connection that the action is really concerned with the legality of the Commission's decision of 8 March 1982 adjusting the quota initially allotted to Estel for products in Category Ia. Since it failed to institute proceedings against that decision in due time, Estel, it claims, is no longer able to challenge the quota adjustment made by the Commission in the context of this dispute.

In this connection it should be pointed out that although it is true that according to a consistent line of decisions of the Court, an applicant may not, in proceedings for a declaration that an individual decision is void, invoke the illegality of another individual decision addressed to him which has become definitive, in this case the application does not relate to the legality of the quota adjustment or to the method of calculation adopted for that purpose by the Commission but solely to the legality of the fine imposed upon the applicant and to the amount thereof, as indeed Estel has expressly stated.

The objection of inadmissibility must therefore be rejected.

Substance

As to substance, Estel invokes in the first place, in support of its action for a declaration of nullity, its submission that the statement of reasons relating to an infringement of Article 15 of the ECSC Treaty is insufficient. In view of the fact that the other submissions in the case have a direct bearing on the substance of that submission, it would be appropriate to return to it after the others have been examined.

Breach of the principle of legality (nulla poena sine lege)

In that submission, Estel argues that the Commission committed a breach of the principle of legality by basing its contested decision exclusively upon a method of applying Article 10 of Decision No 1831/81 which it did not notify to Estel until after the fourth quarter of 1981, and which decisively affects the meaning of the concept “quota”, as provided in Article 12 of the above-mentioned decision.

In the first place it should be remembered that as is stated in Article 10 of Decision No 1831/81, the Commission is entitled to adjust a quota on the undertaking's request accompanied by proof that the products concerned in Category I a are used in the form of hot-rolled products for the production in the Community of welded tubes of a diameter not exceeding 406.4 mm.

It is common ground that Estel did not exceed its delivery quota for products in Category la and that there even remained an unused quantity of 5 056 tonnes in that category.

However, Estel claims that if the Commission had adjusted its delivery quota for products in Category la under Article 10 of Decision No 1831/81, following Estel's method of calculation, by 12 300 tonnes more, thereby increasing it to 96 643 tonnes (instead of 84 343 tonnes), the unused quantity in that category would have amounted to 17 356 tonnes (instead of 5 056 tonnes). This would have produced, by way of a set-off in accordance with Article 11 of the above-mentioned decision, an excess of 16 673 tonnes (instead of 22 132 tonnes) for products in Category Ib. Consequently, the total excess would have amounted to 21 007 tonnes (16 673 tonnes in Category lb and 4 334 tonnes in Category V) instead of 26 446 tonnes, thus reducing it by 5 459 tonnes.

Estel claims that failing a timely notification by the Commission of its interpretation of Article 10, it believed, and was able honestly to believe at the beginning of the fourth quarter of 1981, that the Commission would apply the same method as itself, particularly in view of the fact that that method was reasonable and tenable.

The Commission did not finally take a view as to the method to be applied, it is claimed, until mid-November 1981, and it did not notify Estel of it definitively until its letter of 3 February 1982.

Since the method for adjusting the quota under Article 10 remained undetermined in the fourth quarter of 1981, Estel was unable to foresee that the delivery of a quantity of products for re-rolling might produce an excess over its delivery quota for which it might therefore be penalized.

The Commission denies that Estel, in spite of the Commission's exchanges of views in correspondence and in conversations with Eurofer — the European Confederation of Iron and Steel Industries, of which Estel is a member — and with Estel itself, did not know the method of calculation for the adjustment at the beginning of the fourth quarter of 1981. Indeed, in a letter dated 29 Sep tember 1981, Eurofer confirmed that its members would have no difficulty as to the basis of calculation for the adjustment provided for in Article 10; and the Commission clearly defined its position in a letter dated 10 November 1981 which was sent to Eurofer and, finally, by telex message to Estel on 1 December 1981.

In any event, Estel could and should have known, the Commission claims, that the method of calculation for the adjustment had to be the same as that for the initial quota; at the least, Estel knew that the reference production and deliveries as well as the production and delivery quotas initially fixed were determined on a flat-rate basis and that they bore no relation to any given customers, that is to say, they were not “kundenorientiert”.

In consequence, Estel's method was neither obvious nor reasonable, since the initial quota had already included an amount fixed for products for re-rolling; therefore if Estel had been given its requested adjustment of 12 300 tonnes, it would have obtained that quantity twice over. Moreover, Estel was mistaken in thinking that deliveries of products for re-rolling could give rise to a set-off under Article 11 of the decision.

The Commission also maintains that Estel is too large an undertaking to have been able to be unaware of the basic principles governing the method of calculation both for the quotas and for their adjustment. If it had in fact been unaware, Estel would have been the only undertaking which did not grasp the correct method of calculation of the adjustment in due time.

In the alternative, the Commission submits that Estel in fact knowingly assumed the risk of a possible excess in production, since it could have requested the Commission for the correct interpretation of Article 10, as other undertakings did.

The Commission concludes that the fine imposed in respect of the excess of 5 459 tonnes is not incompatible with the principle of legality and that the submission which relates to it is therefore unfounded.

The Court finds that the question which is raised by this case is whether the imposition of a fine upon Estel is compatible with the principle of legality, where Estel was able honestly to rely on a method of calculation other than that recommended by the Commission for the adjustment of its quota for the fourth quarter of 1981, or at least where there were uncertainties as to the method to be applied.

With reference to the question whether the Commission correctly applied Article 10 of Decision No 1831/81, it should be observed that Estel did not bring proceedings before the Court to challenge the validity of the Commission's decision adjusting its quotas, and that it accepted the Commission's view on that point in February 1982.

As regards the third quarter of 1981, the Court has declared in its judgment of 29 February 1984 in Case 270/84 Estel [1984] ECR 1195, that the Commission should itself have informed the undertakings concerned of the method of calculation which it intended to apply, and should have done so at the beginning of the quarter. Furthermore, the Court has found that the Commission, since it did not do so, contributed to the general uncertainty over the correct method of calculation, and consequently it reduced the fine imposed upon Estel.

However, although Estel may indeed have been in doubt during the third quarter of 1981 regarding the method to be applied in calculating the adjustment, it nevertheless actually knew, at the latest in mid-November 1981, that the Commission would apply a method different from its own.

The file on the case shows that several exchanges of view took place between Estel and Eurofer, on the one hand, and the Commission on the other, relating to the calculation of the quota adjustments, and that the Commission let it be known in due time what it considered to be the correct method of calculation.

Even is it was not possible to infer as much from Eurofer's letter of 29 September 1981 addressed to the Commission, it is nevertheless clear from the Commission's letter of 10 November 1981 addressed to Eurofer that Estel must have known the method which the Commission deemed to be correct. The Commission has referred to its various exchanges of view with Estel in its telex message of 1 December 1981 addressed to Estel.

Furthermore, even if Estel had not properly understood the Commission's method of calculation, it knew at least that the Commission would follow a different method from that which it had adopted itself, and it could therefore have asked the Commission to supply it with details. In any event, Estel should not, in the event of its views differing from those of the Commission, have submitted its own interpretation for the Commission's opinion.

It follows that Estel knowingly assumed the risk that it might exceed its quotas for the fourth quarter of 1981. Consequently, it can no longer rely on either its alleged good faith or a possible uncertainty on that point.

The submission alleging a breach of the principle of legality must therefore be rejected.

Breach of the principle nulla poena sine culpa

In the alternative, Estel submits that in the course of the fourth quarter, it could and did take the view that it was entitled to apply its own method' of calculating the quota adjustment. Since it had neither doubts nor cause for doubts as to the correctness of that method, it consequently made an excusable mistake, for which it cannot be blamed, as regards the correct method of calculation.

According to Estel, it follows from the principle nulla poena sine culpa, a principle which is said to form part of the Community legal order as is shown by the report by Professor Tiedemann annexed to the application, that no fault can be imputed to it for those cases in which the quotas were exceeded, and that therefore no fine can be imposed upon it in this case.

Against that, the Commission argues that a system of fines must of necessity be automatic. It follows that it little matters whether or not Estel is at fault or whether it has made an excusable mistake.

As the Court has already stated with reference to the main head of Estel's second submission, Estel, in the light of the facts recited above, did in fact knowingly assume the risk of a possible mistake. That mistake is not excusable, because the applicant should not have substituted its own interpretation for the Commission's opinion.

It also follows from the facts that Estel could have avoided exceeding its quotas and being fined in consequence, since it was still in a position to adapt its production programme even on the supposition that it became cognizant of the Commission's position only as a result of the latter's letter to Eurofer dated 10 November 1981.

Consequently, it must be declared that any mistake made by Estel regarding the method for the adjustment of its quotas in accordance with Article 10 of Decision No 1831/81 was not excusable, and that the Commission has not committed a breach of the principle invoked.

The submission to that effect must therefore also be rejected.

Reduction of the fine

Estel argues in this connection that exceptional circumstances, which are peculiar to this case, justify the reduction of the fine to such amount as the Court may think fit.

It maintains in particular that the Commission is required to take into account extenuating circumstances, the seriousness of the infringement committed and Estel's share of responsibility, not only in the light of the second paragraph of Article 12 of Decision No 1831/81, but also in the light of the first paragraph of that article, and that it should have acted accordingly in this case.

For its part, the Commission takes the view that that submission is also unfounded, since the first paragraph of Article 12 of Decision No 1831/81 does not give it a margin of discretion, as to the fine to be imposed, which would allow it to take subjective factors into account, such as the degree of fault, certain exceptional circumstances, or the seriousness of the infringement.

With regard to the allegedly automatic nature of the fine, the Court refers to its established case-law, according to which the Commission is entitled and even, in exceptional cases, under a duty to vary the amount of fines according to the circumstances and the seriousness of the infringement.

However, in this instance, the applicant has not given evidence sufficient in law to demonstrate the existence of exceptional circumstances justifying a reduction of the fine. On the contrary, as the Court has noted in its examination of the previous submissions, Estel cannot, as regards the fourth quarter, rely on either its alleged good faith as to the proper method of calculating the quota adjustment, or doubts or uncertainties as to the Commission's position.

That submission must therefore also be rejected.

Insufficient statement of reasons

In support of its application for a declaration of nullity, Estel alleges that the Commission infringed Article 15 of the ECSC Treaty by failing to provide a sufficient statement of the reasons on which the contested decision and the amount of the fine were based.

It follows from the recitals in the preamble and text of the contested decision that the Commission satisfied the requirements of a statement of reasons as far as the material points of the contested decision are concerned. Beyond that, as the Court has repeatedly pointed out, it is not obliged to discuss, in the statement of the reasons on which its decisions are based, all the objection which might be advanced against the view which it has taken.

Since the Commission has therefore given all the indications which are necessary so that Estel may ascertain its rights and the Court may exercise its power of review, that submission also is unfounded.

Costs

Under Article 69 (2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs.

Since Estel has failed in its submissions, it must be ordered to pay the costs.