Judgment_paragraph 17 · Commission of the European Communities v Kvaerner Warnow Werft GmbH (C-181/02 P)

17In support of this line of argument and as an additional point, the Court referred to several judgments in paragraphs 105 and 106 of the contested judgment:105 Moreover, it has already been held by the Court of Justice and the Court of First Instance that although construction capacity — in the present case 85000 cgt per annum — is by its nature capacity for production purposes, that concept is not in itself the same as “actual production” [Alpha Steel v Commission [Case 14/81 [1982] ECR 749], paragraph 22; Joined Cases 311/81 and 30/82 Klöckner-Werke v Commission [1983] ECR 1549, paragraph 23; Joined Cases T-164/96 to T-167/96, T-122/97 and T-130/97 Moccia Irme and Others v Commission [1999] ECR II-1477, paragraph 138) or “maximum production achievable under optimum conditions” (Skibsværftsforeningen and Others v Commission, paragraph 174).106 According to that case-law, a capacity restriction may, as is apparent in the present case from the wording of the authorising decisions, relate to “production achievable under favourable normal conditions, given the facilities available” and not express an actual maximum production which may not be exceeded even under exceptionally favourable conditions. The Commission cannot convincingly argue that the capacity restriction imposed on the applicant, even though relating to “the production achievable under favourable normal conditions, given the facilities available”, nevertheless indicates a maximum actual production which may not be exceeded in any event ....If the capacity restriction reflects production achievable under favourable normal conditions, that in itself implies that the figure indicated by that restriction may be exceeded in periods of optimal conditions. Contrary to the Commission's assertions, that finding is not incompatible with the objective of Directive 90/684. That objective, reduction in excess capacity, is achieved by restricting the applicant's capacity at the level of its assembly lines, which ensures that in normal conditions 85000 cgt per annum will not be exceeded.’