In Joined Cases C-363/88 and C-364/88,
Finanziaria Siderurgica Finsider SpA, in liquidation, having its registered office in Rome,
Italsider SpA, in liquidation, having its registered office in Genoa (Italy),
both represented initially by Cesare Grassetti and Guido Greco, Advocates at the Italian Corte di Cassazione, and subsequently by Guido Greco only, with an address for service in Luxembourg at the Chambers of Nico Schaeffer, 12 Avenue de la Porte-Neuve,
Acciaierie e Ferriere Lombarde Falck SpA, having its registered office in Milan, initially represented by Cesare Grassetti and Guido Greco, Advocates at the Italian Corte di Cassazione, and subsequently by Guido Greco alone, with an address for service in Luxembourg at the Chambers of Nico Schaeffer, 12 Avenue de la Porte-Neuve,
Commission of the European Communities, represented by its Legal Advisers, Rolf Waegenbaur and Gianluigi Campogrande, acting as Agents, assisted by Piero A. M. Ferrari, of the Rome Bar, with an address for service in Luxembourg at the office of Roberto Hayder, a representative of the Commission’ s Legal Service, Wagner Centre, Kirchberg,
APPLICATION under the second paragraph of Article 34 and the first paragraph of Article 40 of the ECSC Treaty for an order requiring the Commission of the European Communities to pay compensation for the damage suffered by the applicants by reason of the reduction of their deliveries of products in categories la, Ib and Il on the Italian market during 1984, 1985 and 1986,
composed of: O. Due, President, Sir Gordon Slynn, R. Joliet, FA. Schockweiler and F. Grévisse (Presidents of Chambers), G.F. Mancini, C.N. Kakouris, J.C. Moitinho de Almeida, G.C. Rodriguez Iglesias, M. Diez de Velasco and M. Zuleeg, Judges,
Advocate General: W. Van Gerven,
Registrar: J.A. Pompe, Deputy Registrar,
having regard to the Report for the Hearing,
after hearing oral argument from the parties at the hearing on 17 September 1991,
after hearing the Opinion of the Advocate General at the sitting on 19 November 1991,
gives the following
By applications lodged at the Court Registry on 14 December 1988, Finanziaria Siderurgica Finsider SpA (hereinafter referred to as "Finsider") and Italsider SpA (hereinafter referred to as "Italsider"), both companies in liquidation, on the one hand, and the company Acciaierie e Ferriere Lombarde Falck SpA (hereinafter referred to as "Falck"), on the other hand, brought an action under Article 34 and the first paragraph of Article 40 of the ECSC Treaty for a declaration that the Commission was liable for the damage they had suffered by reason of the reduction in their deliveries of iron and steel products of categories la, Ib and II on the Italian market during 1984, 1985 and 1986, and for an order requiring the Commission to pay them compensation together with interest at the legal rate, in reparation for the said damage.
By Decision No 234/84/ECSC of 31 January 1984 (Official Journal 1984 L 29, p. 1), the Commission extended the system of monitoring and production quotas for certain products of undertakings in the steel industry. The decision included an Article 15B which established a system designed to monitor the stability of traditional patterns of trade.
The system operated according to the following machinery. Every Member State could complain to the Commission if it found that during a given quarter deliveries of products on its national market of categories la (certain types of hot- rolled wide or narrow strip), Ib (certain types of cold or hot-rolled sheet), II (reversing-mill plate and wide flats) and II (heavy sections) had been “altered ... to a significant extent compared with traditional deliveries". If the Commission considered the complaint justified, it was to request the undertakings in question, in the words of Article 15B(4) "to give a commitment in writing that, during the following quarter, they will correct the imbalance in their traditional deliveries". If an undertaking refused to give such a commitment or did not honour it, the Commission might, under Article 15B(5), effect a binding reduction in the undertaking’ s quota which might be delivered in the common market "by a quantity not exceeding that which caused the imbalance in traditional deliveries."
That system was changed as from 1 January 1986, and the provision contained in Article 15B(5) was deleted, by Commission Decision No 3485/85/ECSC of 27 November 1985 on the extension of the system of monitoring and production quotas for certain products of undertakings in the steel industry (Official Journal 1985 L 340, p. 5). It was entirely abolished as from 1 January 1987 by Commission Decision No 3746/86/ECSC of 5 December 1986, amending Decision No 3485/85 (Official Journal 1986 L 348, p. 1).
By letters sent to the Commission between 30 November 1984 and 25 February 1985, the Italian Government on the one hand pointed out that the volume of deliveries in Italy of steel products referred to in Article 15B of Decision No 234/84 had been altered for the whole of 1984 to a significant extent compared with traditional deliveries, and on the other hand requested the Commission to bring into operation the corrective measures provided for in the said article.
That request met with an implied refusal which was challenged before the Court. By the judgment in Joined Cases 167 and 212/85 Assider and Italy v Commission  ECR 1701 the Court declared void “the Commission’ s implied decision refusing to adopt the measures provided for in Article 15B(4) of Decision No 234/84/ECSC".
Meanwhile the Italian Government had submitted to the Commission fresh complaints claiming successively, for each of the quarters in 1985 and 1986, that the alteration in deliveries of steel products on the national market compared with traditional deliveries had continued. These complaints had no more success than the previous ones in persuading the Commission to implement the provisions of Article 15B(4).
Following the judgment of the Court in Joined Cases 167 and 212/85 Assider and Italy v Commission, previously cited, the companies Finsider, Italsider and Falck asked the Commission to make good the damage they had allegedly suffered as a result of the Commission's failure to apply Article 15B in 1984, 1985 and 1986.
The Commission proposed to provide compensation on the basis of Article 10(1) of its Decision No 194/88/ECSC of 6 January 1988 (Official Journal 1988 L 25, p. 1), which re-enacted the provisions already contained in Article 10(1) of Decisions Nos 234/84 and 3485/85, and stated that it was willing to increase the companies’ quotas for the production of semi-finished products intended for the production of small welded tubes, but the companies did not regard those proposals as satisfactory and therefore brought this action before the Court.
Reference is made to the Report for the Hearing for a fuller account of the facts, the course of the procedure and parties' pleas in law and arguments which are mentioned or discussed hereinafter only in so far as is necessary for the reasoning of the Court.
The applicants state that their actions are based on Article 34 of the ECSC Treaty in so far as they concern the damage caused by the Commission decision declared void by the judgment in Joined Cases 167 and 212/85 Assider and Italy v Commission, previously cited, and on Article 40 of the Treaty in so far as they relate to compensation for the damage suffered as a result of the Commission’ s "constant general conduct".
The Commission, for its part, contends that it is not possible to rely, in the alternative or jointly, on both the aforementioned articles of the Treaty in a single application. It claims that in this case Article 34 is alone applicable since the fault relied upon is that resulting from a decision declared void by the Court.
According to the first paragraph of Article 34 of the Treaty: "If the Court declares a decision or recommendation void, it shall refer the matter back to the High Authority. The High Authority shall take the necessary steps to comply with the judgment. If direct and special harm is suffered by an undertaking or group of undertakings by reason of a decision or recommendation held by the Court to involve a fault of such a nature as to render the Community liable, the High Authority shall, using the powers conferred upon it by this Treaty, take steps to ensure equitable redress for the harm resulting directly from the decision or recommendation declared void and, where necessary, pay appropriate damages". The second paragraph of Article 34 provides that "If the High Authority fails to take within a reasonable time the necessary steps to comply with the judgment, proceedings for damages may be instituted before the Court".
It appears from the provisions quoted that where, following a declaration that one of its decisions is void, the Commission has not taken any steps to comply with the judgment, an undertaking which regards itself as having suffered direct and special harm by reason of that decision may apply to the Court for a declaration that the decision declared void involves a fault so as to obtain redress for the damage suffered.
Moreover, the existence of those specific provisions of Article 34 cannot debar the undertaking concerned, if faults other than that constituted by the decision declared void have contributed to the damage relied upon, from seeking a declaration that the Community is liable on the basis of the first paragraph of Article 40 of the Treaty, under which, "without prejudice to the first paragraph of Article 34, the Court shall have jurisdiction to order pecuniary reparation from the Community, on application by the injured party, to make good any injury caused in carrying out this Treaty by a wrongful act or omission on the part of the Community in the performance of its functions".
The Commission claims that Article 40 of the Treaty does not make it possible to have the Community declared liable on the basis of the illegality of decisions; however, nothing in the wording of that provision or in its general structure makes it possible to restrict its field of application in that way.
In this case, however well founded the proposals for redress which the Commission has put to the undertakings concerned may be, it has taken no direct steps to comply with the judgment in Joined Cases 167 and 212/85. The applicants are therefore entitled, on the basis of Article 34 of the Treaty, to seek to have the Community declared liable for any harm caused them by the decision, which they claim involves a fault, and which was declared void by the Court in that judgment.
They are also entitled to claim, by the same applications and on the basis of Article 40 of the Treaty, compensation for any damage they may have suffered by reason of any other faults committed by the Commission in applying the quota system and the system of stability of traditional patterns of trade.
Liability of the Community
It is appropriate, to make some observations in limine on the conditions in which the Community may be rendered liable on the basis of Articles 34 and 40 of the ECSC Treaty.
In the first place, according to their actual wording, the aforesaid Articles 34 and 40 of the ECSC Treaty require the existence of a fault before the Community may be rendered liable, and consequently the illegality of a decision alone is not enough.
In the second place, although the Treaty provides two distinct legal means for establishing Community liability, it does not contain, either in Article 34, which uses the expression “fault of such a nature as to render the Community liable", or in Article 40, which refers to “wrongful act or omission on the part of the Community", any details as to the nature of the fault required so as to render the Community liable.
However, the Court, when called upon to take a decision on the question of liability on the basis of Article 40, has not based its finding merely on the existence or absence of a fault, but has specified case by case the nature of the fault required by using descriptions such as "inexcusable mistakes" (judgment in Joined Cases 14, 16, 17, 20, 24, 26 and 27/60 and 1/61 Meroni v High Authority  ECR 161, at 171), "gravely neglected the duties of supervision" (judgment in Joined Cases 19/60, 21/60, 2/61 and 3/61 Fives Lille Cail v High Authority  ECR 281, at 297) or "lack of care" which was "increasingly obvious" (judgment in Joined Cases 29, 31, 36, 39 to 47, 50 and 51/63 Usines de la Providence v High Authority  ECR 911, at 937).
It may be seen from this case-law, read in the light of the Opinions of the Advocates General, that although the Court has not entirely followed the proposals of the Advocates General, who tended to define the gravity of the faults necessary to render the Community liable according to the nature of the activities in question (see, in particular, the Opinions of Mr Lagrange, delivered on 7 June 1961 in Meroni v High Authority  ECR 172, at 177 et seq., and of Mr Roemer, delivered on 19 April 1961 in Vioeberghs v High Authority  ECR 219, at 236 et seq.), it has nevertheless taken into account the characteristics of the activities in question in order to describe in each case the fault of such a nature as to render the Community liable.
Thus, in order to appraise the nature of the fault required to render the Community liable, whether on the basis of Article 34 or of Article 40, neither of which, as has been stated, gives any details in that connection, it is appropriate to refer to the areas and conditions in which the Community institution acts. In that respect it is necessary to take into account in particular the complexity of the situations which the institution must regulate, the difficulties of applying the legislation and the discretion available to the institution under that legislation.
Lastly, Community liability does not depend solely on the existence of fault as thus defined and injury, but also on a direct causal link between that fault and that injury, the burden of proof of which lies upon the applicant (judgments in Joined Cases 9 and 12/60 Vioeberghs v High Authority  ECR 197, at 217, and in Case 18/60 Worms v High Authority  ECR 195, at 206).
According to the applicants, the damage for which they claim redress arises from the fact that, during the three years 1984, 1985 and 1986, they were unable to deliver on the Italian market the quantities of products which were delivered by other Community undertakings over and above their traditional deliveries. They claim that damage to them therefore results from the alteration in the pattern of traditional deliveries, itself attributable to the Commission, which, by the faults it had committed, did not avoid but even encouraged that alteration.
The faults with which the Commission is charged consist in not taking the measures provided for in Article 15B(4) of Decision No 234/84 for the years 1984, 1985 and 1986 and in not applying the sanctions envisaged in Article 15B(5) for the years 1984 and 1985, during which Article 15(B)(5) was in force. It is claimed moreover that the granting, on the basis of Article 10(1) of that decision and subsequently of Decision No 3485/85, of additional quotas for the production of semi-finished products belonging to category la and intended for the production of small welded tubes, was essentially responsible for traditional deliveries on the Italian market being exceeded.
The Court must therefore consider whether the facts thus described may be regarded as constituting serious faults of such a nature as to render the Community liable and whether they are the immediate cause of the damage alleged.
The Commission’ s failure to act as regards Article 15B of Decision No 234/84
The applicants refer, in the first place, to the Court’ s declaration that the Commission' s implied refusal to adopt for 1984 the measures provided for in Article 15B(4) of Decision No 234/84 is void. But they also complain that the Commission did not adopt such measures for the two subsequent years and, as previously stated (in paragraph 26), that furthermore it did not apply the sanctions provided for in Article 15B(5) as long as it was in force.
In order to determine whether or not the Commission’ s failure so to act constitutes, in the circumstances of this case, a sufficiently serious fault in the light of the criteria laid down in the case-law cited above, it is important to recall that Article 15B introduced into the system of monitoring and production quotas a procedure for consultation with the Member States concerned and a method intended to maintain the stability of traditional deliveries of certain steel products amongst the Member States. That method, adopted in the very special context of handling a difficult crisis situation, called for sensitive application in the framework of a common market based on free trade in goods, with the quota system itself allowing undertakings the freedom to deliver their products in the Member State of their choice.
In that respect the Commission rightly points out that it could only tend to prudence in the application of these provisions inasmuch as, in paragraph 8 of the order given on the application for suspension of the operation of Article 15B of Decision No 234/84, which was issued less than two months after the system based on that article had been applied, the Court expressed doubts as to the validity of that article in the light of the Treaty (order in Case 45/84 R EISAv Commission  ECR 1759).
Moreover it is appropriate to point out that the provisions of Article 15B(4) of Decision No 234/84 did not provide for any coercive measures but simply for a request to the undertakings concerned to give a commitment to correct the imbalance in their traditional deliveries.
However, it appears from the documents before the Court that the undertakings responsible for exceeding the traditional deliveries on the Italian market contested the very principle of stability of traditional patterns of trade and especially whether semi-finished products for the production of small welded tubes were subject to that system. In letters sent to the Commission and at meetings with the Commission’ s officers they had expressed in advance their intention not to comply with the system.
Consequently, the Commission’ s action took place, not only in an uncertain legal context, but also in a factual situation which was such as to cast serious doubt upon the effectiveness of the application of the procedure provided for by Article 15B in order to secure a reduction in excess deliveries.
In spite of everything, the Commission did not remain inactive but on the contrary took positive steps to encourage self-discipline on the part of the undertakings, as may be seen from the documents before the Court, in particular from letters sent to the steel undertakings and records of meetings held with their representatives.
In those circumstances the declaration by the Court that the implied refusal to adopt the measures provided for in Article 15B(4) of Decision No 234/84 was void cannot, contrary to the applicants' assertion, suffice to render the Community liable. That declaration was in fact based solely on the Commission’ s failure to comply with its obligation, once it had come to the conclusion that the complaint before it was justified, to request the undertakings in question to give a commitment to correct, during the following quarter, the imbalance established in their traditional deliveries. In the circumstances set out above, such an illegality cannot be regarded as constituting a sufficiently serious fault to confer on the applicant undertakings a right to redress.
Admittedly, if the Commission had formally applied the procedure laid down by Article 15B(4), it would have been able, once that procedure had failed, to make use, at least until 31 December 1985, of its powers under Article 15B(5), which allowed it, in certain circumstances, to effect a binding reduction in delivery quotas.
However, it should be recalled that, in the aforementioned order given on the application for the suspension of the operation of Article 15B of Decision No 234/84, the Court, in dismissing the application for suspension, noted the commitments given by the Commission regarding the way in which it intended to apply that article (order in Case 45/84R EISA v Commission, previously cited, at paragraphs 12 and 13). According to those commitments, undertakings were not to be subject to a binding reduction in their quotas unless, apart from exceeding their traditional deliveries, they had, in addition, engaged in illegal practices, for example in pricing, and only after application of the sanctions provided for those infringements. Fines were, moreover, imposed in 1985 on several steel undertakings for infringement of Article 60 of the Treaty in relation to prohibited pricing practices.
In addition, the Commission, which, as the Court stated in paragraph 15 of the judgment in Joined Cases 167 and 212/85 Assider and Italy v Commission, previously cited, had a wide discretion in deciding whether to reduce the quotas, would have been entitled, before taking any such decision, to wait until it was in a position to assess the effectiveness of the specific sanctions applied before penalizing illegal practices. Moreover it could not but tend to adopt a prudent approach inasmuch as the aforesaid order in Case 45/84R contained, as has already been indicated, the Court’ s expression of doubt as to the validity of Article 15B in the light of the Treaty.
In view of all these aspects, the use by the Commission of its powers under Article 15B(5) was accordingly of a very hypothetical nature, nor can its failure to have recourse to them be regarded as a serious fault of such a nature as to render the Community liable.
In addition, a direct causal link between this double failure to act with regard to Article 15B(4) and (5) and the injury relied upon could be said to exist only if it were established that, if the Commission had applied those provisions, the undertakings responsible for the excess would have reduced the quantity of their deliveries to their traditional level and that the applicant undertakings for their part would have been able to increase their deliveries in due proportion.
On the one hand, it must be pointed out that, in view of the position adopted by the undertakings responsible for exceeding the traditional deliveries on the Italian market, the application of the procedure under Article 15B(4), which did not include any coercive measure, could not by itself lead to a reduction of the excess deliveries.
On the other hand, even on the supposition that the undertakings in question had agreed under Article 15B(4), or had been compelled, under Article 15B(5), to correct the imbalance in traditional deliveries, it is not established that the applicants would have been able to profit therefrom. In fact, as the Commission has pointed out, the Italian consumers of the steel products concerned would have been legally and factually in a position to obtain their requirements from suppliers in third countries rather than from the Italian undertakings, which were offering less advantageous price conditions during the material period.
In that respect it must be stated that, because semi-finished products for small tubes were excluded from the minimum price system under Article 4 of Decision No 3715/83/ECSC of 23 December 1983 (Official Journal 1983 L 373, p. 1), undertakings were authorized to align their prices on offers from third countries and to fix the sector discounts for that category of products freely. It may be seen from the statistics supplied by the Commission, which have not been effectively challenged by the applicant undertakings, which assert simply that a considerable price reduction was out of the question, that those undertakings resorted to such alignments only for a tonnage equivalent to 5% of the tonnage involved in alignments effected by the other non-Italian undertakings.
In view of those findings, taken as a whole, it is not established that the Commission’ s failure to act under Article 15B of Decision No 234/84 constitutes a sufficiently serious fault directly responsible for the injury relied upon.
The granting of additional quotas on the basis of Article 10(1) of Decisions Nos 234/84 and 3485/85
The applicants claim that the Commission granted to other undertakings, on the basis of Article 10(1) of Decisions Nos 234/84 and 3485/85, additional quotas for the manufacture of semi-finished products intended for the production of small welded tubes, and that they were for the most part responsible for the exceeding of traditional deliveries on the Italian market. Their arguments cannot be upheld.
In the first place, Article 10(1) sets up for those products only a special scheme characterized by two types of provision based on more liberal principles than those of the general scheme laid down by the remainder of the decision in question. Under the first subparagraph of Article 10(1), undertakings are authorized to increase their quotas and parts of quotas subject to certain limits on condition that, within a given period, they provide proof that the relevant deliveries have been used for the intended purposes. As regards the second subparagraph of that paragraph, on which the applicants companies rely, it allows the Commission, on a duly substantiated request by an undertaking, to increase by an amount greater than that authorized by the first subparagraph, the quotas and parts of quotas which may be delivered in the common market, but makes no mention of the need to comply with the system of stability of traditional patterns of trade. This latter subparagraph states only that the Commission may make the granting of such an adjustment conditional on the production, by and at the expense of the undertaking concerned, of a report drawn up by a firm of auditors certifying receipt of the undertaking’ s semi-finished products by the tube-manufacturing customer or customers and their actual use for the production in question.
In the second place, it may be seen from the documents before the Court, in particular letters sent to the steel undertakings or reports of meetings held with their representatives that, whilst taking into account the risk referred to by the applicants, the Commission clearly indicated to the undertakings that semi-finished products intended for the production of small welded tubes were to be taken into account in assessing compliance with the system of stability of traditional patterns of trade.
Finally, the Commission, striving to achieve a balance in the steel industry in the Community as a whole, could not, whatever precautions might be taken in that respect, necessarily expect that the grant of such quotas would in particular result in an increase in deliveries as compared with the traditional deliveries on the Italian market, especially because the undertakings which received the additional quotas could use them to deliver products on other markets.
It follows from all the foregoing considerations that the applicants have not demonstrated that the Commission committed a serious fault in the application of the abovementioned provisions nor, furthermore, have they established the existence of a direct causal link between any such fault and the damage for which they seek redress. Their applications must therefore be dismissed.
Decision on costs
Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’ s pleadings. Since the applicants have been unsuccessful they must be ordered to pay the costs.
On those grounds,
Dismisses the applications;
Orders the applicants to pay the costs.