61967CJ0029_EN
Parties
Subject of the case
Grounds
Decision on costs
Endorsements
Operative part
Parties
IN CASE 29/67
DE WENDEL ET CIE SA HAVING ITS REGISTERED OFFICE IN PARIS AT 1 RUE PAUL-BAUDRY, REPRESENTED BY THE CHAIRMAN OF ITS BOARD OF DIRECTORS EMMANUEL DE MITRY, ASSISTED BY JEAN-PIERRE ARON, ADVOCATE AT THE COUR D'APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF THE CHAMBRE SYNDICALE DE LA SIDERURGIE FRANCAISE, 49 BOULEVARD JOSEPH II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, GUY SAUTTER AND ERICH ZIMMERMAN, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT ITS OFFICES, 2 PLACE DE METZ,
DEFENDANT,
Subject of the case
APPLICATION FOR
- THE ANNULMENT OF A DECISION OF THE HIGH AUTHORITY OF 28 JUNE 1967 IN SO FAR AS IT IMPOSES UPON THE APPLICANT A FINE OF FF 160 000 UNDER ARTICLE 64 OF THE ECSC TREATY,
- THE ANNULMENT OF THE SECOND SENTENCE OF ARTICLE 2(1 ) OF DECISION NO 30/53 OF THE HIGH AUTHORITY OF 2 MAY 1953 ( OFFICIAL JOURNAL ECSC OF 4 MAY 1953, NO 6 ),
Grounds
P . 275
ADMISSIBILITY
THE APPLICATION, ACCORDING TO ITS WORDING, ON THE ONE HAND SEEKS THE ANNULMENT OF THE DECISION OF THE HIGH AUTHORITY TO THE EXTENT TO WHICH IT IMPOSES UPON THE APPLICANT A FINE OF FF 160 000 UNDER ARTICLE 64 OF THE ECSC TREATY AND ON THE OTHER HAND THE ANNULMENT OF THE LAST SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 2 OF DECISION NO 30/53 OF 2 MAY 1953, AS AMENDED BY ARTICLE 1 OF DECISION NO 1/54 OF 7 JANUARY 1954 .
THE APPLICATION, IN SO FAR AS IT RELATES TO THE SANCTION IMPOSED UPON THE APPLICANT, CONSTITUTES AN APPEAL IN WHICH THE COURT HAS UNLIMITED JURISDICTION UNDER THE SECOND PARAGRAPH OF ARTICLE 36 OF THE TREATY . IN FACT IT CHALLENGES THE IMPOSITION OF THE SANCTION ON THE APPLICANT AND DISPUTES ITS VALIDITY ON THE GROUND THAT IT IS ILLEGAL .
THIS APPLICATION IS ADMISSIBLE .
THE APPLICATION, IN SO FAR AS IT ASKS FOR THE ANNULMENT OF THE LAST SENTENCE OF THE FIRST PARAGRAPH OF ARTICLE 2 ( AS AMENDED ) IS OUT OF TIME AND IS ON THIS GROUND ALONE INADMISSIBLE . HOWEVER, IT APPEARS FROM THE CONTEXT OF THE APPLICATION THAT IT IN FACT RAISES AN OBJECTION OF ILLEGALITY WITHIN THE MEANING OF THE THIRD PARAGRAPH OF ARTICLE 36 OF THE TREATY . IT IS THEREFORE NECESSARY TO CONSIDER THIS OBJECTION AS A SUBMISSION SUPPORTING THE APPEAL IN WHICH THE COURT HAS UNLIMITED JURISDICTION .
P . 276
THE SUBMISSION OF INFRINGEMENT OF THE TREATY
A - THE DUTY NOT TO DISCRIMINATE
THE FINE WHICH IS THE SUBJECT-MATTER OF THE APPLICATION IS IMPOSED FIRST FOR DISCRIMINATORY PRACTICES PROHIBITED BY ARTICLE 60(1 ) OF THE TREATY AND BY ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53 .
THE PRACTICES IN RESPECT OF WHICH A FINE HAS BEEN IMPOSED CONSISTED IN THE ALLOWANCE OF DISCOUNTS INSPIRED IN PARTICULAR BY REASONS CONCERNING THE SHORT-TERM STATE OF THE MARKET, IN TRANSACTIONS ENTERED INTO BY THE APPLICANT WITH SIXTEEN FRENCH CONSUMERS .
THE APPLICANT COMPLAINS THAT BY IMPOSING A FINE THE CONTESTED DECISION INFRINGED THE BEFOREMENTIONED PROVISIONS AS WELL AS THE PRINCIPLE OF NON-DISCRIMINATION CONTAINED IN ARTICLE 4(B ) OF THE TREATY .
THE TRANSACTIONS WHICH THE CONTESTED DECISION REGARDED AS PROHIBITED PRACTICES DO NOT BELONG, ACCORDING TO THE APPLICANT, TO THE SAME CATEGORY AS THOSE SHOWN IN ITS PRICE LIST BUT SHOULD BE REGARDED AS TRANSACTIONS ' HAVING EXCEPTIONAL CHARACTERISTICS ', WHICH, FOR THIS REASON, DO NOT COME WITHIN THE SCOPE OF THE APPLICATION OF ARTICLE 60 . IT IS SAID THAT THERE ARE SEVERAL FACTORS IN EACH OF THESE TRANSCRIPTIONS WHICH DISTINGUISH THEM FROM THOSE IN THE CATEGORIES OF TRANSACTIONS SHOWN IN THE PRICE LIST AND WHICH GIVE THEM AN ' EXCEPTIONAL ' CHARACTER . THESE FACTORS ARE IN PARTICULAR THE LONGSTANDING RELATIONSHIPS BETWEEN THE PARTIES, THE SIZE OF THE DELIVERIES IN QUESTION, THE MEETING OF A HIGH PERCENTAGE OF THE REQUIREMENTS AND SUBSTANTIAL TECHNICAL COOPERATION .
UNDER THE PROVISIONS OF ARTICLE 60(1 ) OF THE TREATY DISCRIMINATORY PRACTICES INVOLVING THE APPLICATION BY A SELLER OF DISSIMILAR CONDITIONS TO COMPARABLE TRANSACTIONS ARE PROHIBITED . THIS PROHIBITION IS DEFINED BY ARTICLE 2 OF DECISION NO 30/53 ( AS AMENDED ) UNDER WHICH DEPARTURES FROM PRICES SHOWN IN THE PRICE LIST ARE ONLY PERMITTED IF THE TRANSACTION TO WHICH THEY ARE APPLIED DOES NOT FALL WITHIN THE CATEGORIES OF TRANSACTIONS COVERED BY THE PRICE LIST, OR IF, AS IN THE CASE OF A NUMBER OF TRANSACTIONS HAVING SPECIAL FEATURES IN COMMON, THE PRICES HAVE BEEN DEPARTED FROM ' UNIFORMLY '. THEREFORE A TRANSACTION WHICH IS NOT GOVERNED BY THE GENERAL CRITERIA FOR FIXING PRICES IS NOT PROHIBITED BY ARTICLE 60(1 ) OF THE TREATY, AS ANY DANGER OF DISCRIMINATION IS AVOIDED BECAUSE BY ITS VERY NATURE SUCH A TRANSACTION IS NOT COMPARABLE TO ANY OTHER . ON THE OTHER HAND ARTICLE 60(1 ) APPLIES TO TRANSACTIONS WHICH, ALTHOUGH AS COMPARED WITH NORMAL TRANSACTIONS THEY HAVE EXCEPTIONAL CHARACTERISTICS AND FOR THIS REASON OBTAIN THE BENEFIT OF SPECIAL CONDITIONS OF SALE, NEVERTHELESS REMAIN COMPARABLE ONE WITH ANOTHER .
P . 277
THE FACTORS RELATING TO THE LOYALTY OF CUSTOMERS AND TO THE QUANTITIES BOUGHT, WHICH ARE RELIED ON IN THIS CASE, ARE NOT SUCH AS TO MAKE A TRANSACTION NON-COMPARABLE .
SUCH FACTORS ARE OFTEN A TYPICAL FEATURE OF THE COMMERCIAL RELATIONS BETWEEN PRODUCERS AND THE PROCESSING INDUSTRY . IN ADDITION, WITH REGARD TO TECHNICAL COOPERATION, IT APPEARS FROM THE FACTS PUT FORWARD BY THE PARTIES THAT COMPARABLE TYPES OF COOPERATION EXIST OR ARE PROVIDED FOR IN MANY TRANSACTIONS . WITH REGARD TO THE OTHER TRANSACTIONS THIS COOPERATION IS NOT SPECIAL OR EXCEPTIONAL, SINCE ITS ONLY PURPOSE IS TO SECURE THE DELIVERY OF PRODUCTS CAPABLE OF MEETING THE NEEDS OF A SPECIALIZED PROCESSING INDUSTRY OR TO PERMIT THE BUYER TO CARRY OUT AN EFFECTIVE CHECK OF THE QUALITY OF THE PRODUCTS WITH WHICH HE IS SUPPLIED . IT CANNOT BE CONCLUDED AFTER TAKING ALL THESE MATTERS INTO CONSIDERATION THAT THE DISPUTED TRANSACTIONS HAVE ANY ' EXCEPTIONAL CHARACTERISTICS ' WHICH REMOVE THEM FROM THE CATEGORIES SHOWN IN THE PRICE LIST WITHIN THE MEANING OF ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53 .
THE FIRST ARGUMENT PUT FORWARD BY THE APPLICANT MUST THEREFORE BE REJECTED .
THE APPLICANT SUBMITS IN THE ALTERNATIVE THAT ALL THE CONTESTED DISCOUNTS ARE OF THE SAME ORDER OR MAGNITUDE AS THE PRICE REDUCTIONS GRANTED TO ALL THE OTHER CUSTOMERS; IT THEREFORE ACTED IN CONFORMITY WITH ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53 WHICH DOES NOT REGARD DEPARTURES FROM THE PRICE LIST AS A PROHIBITED PRACTICE IF THE SELLER CAN SHOW THAT THEY ARE APPLIED UNIFORMLY IN ALL COMPARABLE TRANSACTIONS . IN SUPPORT OF THIS VIEW IT ARGUES THAT IN THE COMPLICATED FIELD OF COMMERCIAL TRANSACTIONS TOO MUCH WEIGHT MUST NOT BE ATTACHED TO THE VARIOUS DESIGNATIONS OF PREMIUMS OR REBATES AS THEIR SIGNIFICANCE IS PURELY FORMAL; THE ONLY FACTOR TO CONSIDER IN ORDER TO DECIDE WHETHER THERE HAVE BEEN ANY DISCRIMINATORY PRACTICES IS THE FINAL PRICE WHICH IS IN FACT PAID BY ALL THE BUYERS IN A COMPARABLE SITUATION .
THE APPLICATION OF AN IDENTICAL OR SIMILAR FINAL PRICE TO SEVERAL COMPARABLE TRANSACTIONS DOES NOT OF ITSELF REMOVE THE POSSIBILITY OF DISCRIMINATION, FOR THE HARMONIZATION OF PRICES MAY BE ACHIEVED BY A COMBINATION OF VERY DIFFERENT FACTORS OR OF PREMIUMS GRANTED IN ACCORDANCE WITH ARBITRARY CRITERIA WHICH VARY FROM CASE TO CASE . THE PRINCIPLE OF NON-DISCRIMINATION IS ONLY OBSERVED TO THE EXTENT TO WHICH EACH OF THE FACTORS WHICH HAVE CONTRIBUTED TO THE FIXING OF A FINAL IDENTICAL PRICE HAS BEEN ESTABLISHED ACCORDING TO OBJECTIVE CRITERIA APPLIED UNIFORMLY TO ALL COMPARABLE TRANSACTIONS . ON THE OTHER HAND THE DISTINCTION BETWEEN THE DIFFERENT CATEGORIES OF PREMIUMS, FAR FROM BEING A PURELY FORMAL MATTER, MUST SATISFY OBJECTIVE CRITERIA AND REQUIREMENTS ARISING OUT OF THE NATURE OF EACH PREMIUM . LOYALTY OR QUANTITY REBATES GRANTED ACCORDING TO FEATURES PECULIAR TO EACH TRANSACTION ARE CONNECTED WITH THESE FEATURES IN SUCH A WAY THAT THEY DO NOT VARY PROVIDED THAT THE TRANSACTIONS ARE OF THE SAME KIND .
ON THE OTHER HAND REBATES ALLOWING FOR VARIATION IN CURRENT ECONOMIC TRENDS (' CONJUNCTURAL ' REBATES ) ARE NOT CONNECTED WITH SUCH FEATURES BUT ARE GRANTED BECAUSE OF MARKET CONDITIONS WHICH AFFECT OR ARE CAPABLE OF AFFECTING A TOTALITY OF TRADERS SO THAT THEY ARE INTENDED TO FLUCTUATE IN ACCORDANCE WITH PERIODICALLY RECORDED CHANGES IN THE MARKET CONDITIONS . MOREOVER, ONLY AN EXACT SPECIFICATION OF THE VARIOUS FACTORS WHICH CAUSE PRICES TO VARY TO THE ADVANTAGE OF CERTAIN TRANSACTIONS FROM THOSE SHOWN IN THE PRICE LIST CAN PREVENT DISCRIMINATION AGAINST OTHER BUYERS, WHO, ALTHOUGH THEY DO NOT BENEFIT FROM THESE ADVANTAGES, MAY BE IN A COMPARABLE SITUATION . IN PARTICULAR, CONJUNCTURAL REBATES ARE, FOR THE REASONS GIVEN ABOVE, AN EXAMPLE OF A DISCOUNT WHICH OTHER CONSUMERS COULD JUSTIFIABLY CLAIM . THEREFORE THE APPLICANT'S ARGUMENT THAT THE PRICE ADVANTAGES GRANTED TO BUYERS IN COMPARABLE SITUATIONS SHOULD BE CONSIDERED ' HAVING REGARD TO ALL DISCOUNTS TAKEN TOGETHER ' DOES NOT SATISFY THE REQUIREMENTS OF ARTICLE 60(1 ) OF THE TREATY .
P . 278
IN THIS CASE THE REASONS FOR THE ALLOWANCE OF CONJUNCTURAL DISCOUNTS MUST BE SOUGHT IN THE CRISIS WHICH AFFECTED THE COMMON MARKET IN STEEL AT THAT TIME . HAVING REGARD TO THE PRINCIPLE LAID DOWN IN ARTICLE 60(1 ) OF THE TREATY THE GRANTING OF CONJUNCTURAL DISCOUNTS IN SOME ONLY OF THE TRANSACTIONS REFERRED TO IN THE CONTESTED DECISION CAN ONLY BE PERMITTED IF IT CAN BE SHOWN THAT THESE TRANSACTIONS WERE NOT ALL COMPARABLE SO FAR AS CURRENT ECONOMIC TRENDS WERE CONCERNED . IN CONFORMITY WITH DECISION NO 30/53 THE ONUS IS ON THE SELLER TO SHOW THAT TRANSACTIONS SUBJECT TO PRICES OR CONDITIONS OF SALE WHICH ARE DISSIMILAR OR WHICH ARE NOT SHOWN IN THE PRICE LIST ARE NOT COMPARABLE TRANSACTIONS . SUCH EVIDENCE HAS NOT BEEN PRODUCED IN THIS CASE .
THEREFORE THE APPLICANT'S SECOND ARGUMENT MUST ALSO BE REJECTED .
B - THE DUTY OF PUBLICATION
THE FINE IMPOSED BY THE CONTESTED DECISION ALSO PENALIZES BREACHES OF THE OBLIGATION TO MAKE PUBLIC PRICE LISTS AND CONDITIONS OF SALE LAID DOWN IN ARTICLE 60(2 ) OF THE TREATY AND ARTICLE 2 OF DECISION NO 31/53 AS AMENDED AND SUPPLEMENTED BY DECISION NOS 32/53, 2/54, 32/56 AND 20/63 . THE BREACHES IN RESPECT OF WHICH THE FINE WAS IMPOSED RELATE TO DISCOUNTS WHICH WERE NOT MADE PUBLIC AND WERE GRANTED IN TRANSACTIONS CONCLUDED IN 1965 BETWEEN THE APPLICANT AND TWENTY-THREE CONSUMERS, NINETEEN FRENCH AND FOUR GERMAN .
THE APPLICANT SUBMITS THAT, SINCE THE FIRST SENTENCE OF ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53 PERMITS IN CERTAIN CIRCUMSTANCES EXCEPTIONS TO AND DEPARTURES FROM THE PRICE LIST, IT IS INCONSISTENT TO MAINTAIN THAT ACCORDING TO THE FOLLOWING SENTENCE THESE EXCEPTIONS AND DEPARTURES ARE SUBJECT TO THE PRICE PUBLICATION RULES, FOR IT IS IMPOSSIBLE TO REGARD AS EXCEPTIONS TO OR DEPARTURES FROM THE PRICE LIST PRICE ADVANTAGES WHICH HAVE TO BE SHOWN IN THAT PRICE LIST . THE APPLICANT'S CONCLUSION IS THAT THE SECOND SENTENCE DESTROYS THE VALIDITY OF THE WHOLE OF THE SAID ARTICLE 2 AND MUST BE ANNULLED .
IT FOLLOWS FROM ARTICLE 60(2 ) OF THE TREATY THAT PUBLICATION OF PRICES IS A METHOD OF ACHIEVING THE OBJECTIVES STATED IN THE FIRST PARAGRAPH . AS THIS METHOD PRESCRIBED BY THE TREATY IS MANDATORY THE OBLIGATION TO PUBLISH PRICE LISTS AND CONDITIONS OF SALE MUST BE REGARDED AS A STRICT RULE OF LAW TO WHICH NO EXCEPTION IS PERMITTED . BY VIRTUE OF THIS RULE UNDERTAKINGS IN THE STEEL INDUSTRY MUST PUBLISH ALL PRICES AND CONDITIONS OF SALE IN THEIR PRICE LISTS AND ANY SUBSEQUENT MODIFICATIONS . THE SECOND SENTENCE OF ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53, FAR FROM CONTRADICTING THE PREVIOUS SENTENCE, CONFORMS TO THIS RULE BY PROVIDING THAT AMENDMENTS OF PRICES AND CONDITIONS OF SALE INCORPORATED IN THE PRICE LIST SHALL BE MADE PUBLIC TO THE EXTENT TO WHICH THEY APPLY TO COMPARABLE TRANSACTIONS . ARTICLE 2(F ) OF DECISION NO 31/53, SUPPLEMENTED BY DECISION NO 2/54, CONFIRMS THIS REQUIREMENT BY PROVIDING EXPRESSLY THAT LOYALTY DISCOUNTS ALLOWED IN SUCH TRANSACTIONS SHALL BE MADE PUBLIC .
P . 279
THEREFORE, AS THE CONTESTED PREMIUMS WERE REGARDED AS LAWFUL UNDER THE FIRST SENTENCE OF ARTICLE 2 ( AS AMENDED ) OF DECISION NO 30/53 AND WERE APPLIED TO COMPARABLE TRANSACTIONS THEY SHOULD HAVE BEEN PUBLISHED IN CONFORMITY WITH THE BEFOREMENTIONED PROVISIONS AND IN ACCORDANCE WITH ARTICLE 60(2 ) OF THE TREATY .
THEREFORE THIS SUBMISSION MUST BE REJECTED .
MOREOVER, AS THE AMOUNT OF THE DISPUTED FINE WAS CALCULATED ON THE BASIS OF THE MINIMUM VOLUME OF ILLEGAL SALES RECORDED IT DOES NOT APPEAR TO BE UNDULY HIGH .
THUS IT IS NOT NECESSARY TO DECIDE THIS POINT .
THE SUBMISSION OF INFRINGEMENT OF AN ESSENTIAL PROCEDURAL REQUIREMENT .
IN ADDITION THE APPLICANT SUBMITS THAT THE STATEMENT OF THE REASONS UPON WHICH THE CONTESTED DECISION IS BASED IS INADEQUATE . IN SUPPORT OF THIS SUBMISSION IT ARGUES FIRST THAT THE DECISION DID NOT GIVE ANY REASON FOR THE DISTINCTION DRAWN BETWEEN THE PRICE ADVANTAGES GRANTED TO GERMAN CAR MANUFACTURERS, WHICH WERE REGARDED AS JUSTIFIED, AND THOSE GRANTED TO THE NINETEEN OTHER CUSTOMERS, WHICH WERE CONSIDERED TO BE PARTLY UNJUSTIFIED, AND, SECONDLY THAT IT HAS IN ADDITION NOT GIVEN ANY REASON FOR THE DISTINCTION BETWEEN PRICE VARIATIONS HELD TO BE JUSTIFIED AND THOSE HELD TO BE UNJUSTIFIED WITHIN THIS GROUP OF NINETEEN TRANSACTIONS .
THE FACT THAT THESE TWO COMPLAINTS HAVE BEEN RAISED TOGETHER IS SUFFICIENT TO SHOW THAT THE ALLEGATION THAT THE HIGH AUTHORITY DISTINGUISHED, AND EVEN DISCRIMINATED, BETWEEN GERMAN AND FRENCH UNDERTAKINGS IS WITHOUT ANY FOUNDATION, SINCE THE DECISION NOT ONLY REGARDED THE PRICE ADVANTAGES GRANTED TO THE GERMAN UNDERTAKINGS BUT ALSO THOSE ALLOWED TO SOME OF THE FRENCH UNDERTAKINGS AS JUSTIFIED . ON THIS POINT THE HIGH AUTHORITY ONLY HAD TO GIVE REASONS FOR THE SANCTION WHICH IT IMPOSED AND DID NOT HAVE TO GIVE THE REASONS WHICH HAD CAUSED IT TO REGARD THE APPLICANT'S CONDUCT IN CERTAIN CASES IN A MORE FAVOURABLE LIGHT .
THE STATEMENT OF THE REASONS UPON WHICH THE CONTESTED DECISION IS BASED GIVES THE GROUNDS WHICH COMPELLED THE HIGH AUTHORITY TO FIND THAT THE APPLICANT HAD INFRINGED ARTICLE 60 OF THE TREATY AND TO IMPOSE UPON IT THE DISPUTED FINE . FOR THE REASONS FOR A DECISION TO BE ADEQUATE, IT MUST CONTAIN THE FACTUAL AND LEGAL GROUNDS UPON WHICH IT IS BASED AND THERE IS NO NEED FOR IT TO DEAL WITH ANY OBJECTIONS WHICH MAY POSSIBLY BE RAISED AGAINST IT .
THIS SUBMISSION IS THEREFORE UNFOUNDED .
Decision on costs
UNDER ARTICLE 69(2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS . IN THIS CASE THE APPLICANT HAS FAILED IN ALL ITS SUBMISSIONS .
Endorsements
ON THOSE GROUNDS,
UPON READING THE PLEADINGS;
UPON HEARING THE REPORT OF THE JUDGE - RAPPORTEUR;
UPON HEARING THE PARTIES;
UPON HEARING THE OPINION OF THE ADVOCATE-GENERAL;
HAVING REGARD TO ARTICLES 2, 3, 4, 33, 36, 60 AND 64 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY;
HAVING REGARD TO THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE ANNEXED TO THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY;
HAVING REGARD TO THE RULES OF PROCEDURE OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, ESPECIALLY ARTICLE 69;
Operative part
THE COURT
HEREBY :
1 . DISMISSES THE APPLICATION AS INADMISSIBLE IN SO FAR AS IT SEEKS THE ANNULMENT OF THE SECOND SENTENCE OF ARTICLE 2 OF DECISION NO 30/53, AS AMENDED BY ARTICLE 1 OF DECISION NO 1/54 AND IN ALL OTHER RESPECTS AS UNFOUNDED;
2 . ORDERS THE APPLICANT TO BEAR THE COSTS .