61979CO0792_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 792/79 R
CAMERA CARE LIMITED, A COMPANY ENGAGED IN THE REPAIR, HIRE AND SALE OF PROFESSIONAL PHOTOGRAPHIC EQUIPMENT, WITH ITS REGISTERED OFFICE IN BELFAST, NORTHERN IRELAND, REPRESENTED, FOR THE WRITTEN PROCEDURE, BY EMMANUEL
POLLARD, SOLICITOR, LONDON, AND, FOR THE ORAL PROCEDURE, BY MARK R . P . BARNES, BARRISTER, OF GRAY ' S INN, INSTRUCTED BY MR POLLARD, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF WEBBER, WENTZEL & CO ., 50 ROUTE D ' ESCH,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, JOHN TEMPLE LANG, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
HASSELBLAD ( GB ) LTD ., WITH ITS REGISTERED OFFICE IN WEMBLEY, ENGLAND, AND VICTOR HASSELBLAD A/B, AN UNDERTAKING MANUFACTURING CAMERAS AND PHOTOGRAPHIC ACCESSORIES, WITH ITS REGISTERED OFFICE IN GOTEBORG, SWEDEN, REPRESENTED BY WILLIAM T . STOCKLER, SOLICITOR, HAMBURG, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG C/O THE VEREINS- UND WESTBANK INTERNATIONALE S . A ., 25 BOULEVARD ROYAL,
INTERVENERS,
Subject of the case
APPLICATION FOR THE ADOPTION OF INTERIM MEASURES,
Grounds
1 THE APPLICANT, CAMERA CARE LIMITED, WHOSE REGISTERED OFFICE IS IN BELFAST ( NORTHERN IRELAND ) IS ENGAGED IN THE UNITED KINGDOM IN THE BUSINESS OF REPAIRING, HIRING AND SELLING PROFESSIONAL PHOTOGRAPHIC EQUIPMENT . ON 26 JUNE 1979 THE COMPANY BROUGHT A COMPLAINT BEFORE THE COMMISSION UNDER ARTICLE 3 OF REGULATION NO 17 OF THE COUNCIL OF 6 FEBRUARY 1962 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1959-1962, P . 87 ) AGAINST HASSELBLAD ( GB ) LIMITED WHOSE REGISTERED OFFICE IS IN WEMBLEY, UNITED KINGDOM, AND VICTOR HASSELBLAD A/B WHOSE REGISTERED OFFICE IS GOTEBORG, SWEDEN, ( BOTH HEREINAFTER REFERRED TO AS ' ' HASSELBLAD ' ' ) FOR INFRINGEMENT OF ARTICLES 85 AND 86 OF THE EEC TREATY .
2 THE APPLICANT COMPLAINS OF THE TERMINATION BY HASSELBLAD OF THE SUPPLY AGREEMENT WHICH HAD EXISTED BETWEEN THE PARTIES UNTIL THEN AND OF THE REFUSAL TO SUPPLY PHOTOGRAPHIC EQUIPMENT AND SPARE PARTS AS A RESULT . IT ALLEGES THAT BECAUSE OF THE SYSTEM OF AGREEMENTS EXISTING BETWEEN HASSELBLAD AND ITS DISTRIBUTORS IT FINDS IT IMPOSSIBLE TO OBTAIN CAMERAS OR SPARE PARTS FROM OTHER INTERMEDIARIES AND CONSEQUENTLY ITS SALE AND REPAIR BUSINESS IS IN JEOPARDY . AT THE END OF ITS COMPLAINT THE APPLICANT ASKED THE COMMISSION TO MAKE AN INTERIM DECISION ORDERING HASSELBLAD TO RESTORE SUPPLIES AT THE USUAL PRICE AND UPON THE USUAL CONDITIONS .
3 ON 27 AUGUST 1979 THE OFFICERS OF THE DIRECTORATE-GENERAL FOR COMPETITION SENT AN INTERIM REPLY TO THE APPLICANT, STATING THAT THEY HAD IMMEDIATELY COMMUNICATED THE COMPLAINT TO HASSELBLAD, REQUESTING THEIR COMMENTS, AND THAT THEY WERE PURSUING THEIR INQUIRY . THE LETTER ENDED WITH THE FOLLOWING SENTENCES : ' ' I REGRET THAT I CANNOT COMPLY WITH YOUR PROPOSAL TO MAKE AN INTERIM DECISION . THERE IS NO LEGAL BASIS IN COMMUNITY LAW FOR SUCH PROCEDURE ' ' .
4 FACED WITH THE REFUSAL BY THE COMMISSION TO ADOPT INTERIM MEASURES THE APPLICANT BROUGHT AN ACTION ON 5 NOVEMBER 1979 BASED ON BOTH ARTICLE 173 AND ARTICLE 175 OF THE TREATY SEEKING EITHER THE SETTING ASIDE OF THE COMMUNICATION REFERRED TO ABOVE OR A DECLARATION BY THE COURT THAT THE COMMISSION WAS IN BREACH OF THE TREATY FOR REFRAINING FROM MEETING THE REQUEST FOR THE ADOPTION OF INTERIM MEASURES .
5 IN AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES LODGED ON THE SAME DAY UNDER ARTICLE 186 OF THE TREATY, THE APPLICANT ASKED THE COURT AS A MATTER OF URGENCY TO MAKE AN INJUNCTION AGAINST THE COMMISSION ORDERING IT TO TAKE AN APPROPRIATE DECISION WITH REGARD TO HASSELBLAD OR, ALTERNATIVELY, TO TAKE URGENT MEASURES ITSELF .
6 IN ITS WRITTEN OBSERVATIONS ON THE SUBJECT OF THE APPLICATION FOR INTERIM MEASURES, THE COMMISSION EXPRESSED DOUBTS UPON THE ADMISSIBILITY OF THE MAIN ACTION . AT THE SAME TIME, HOWEVER, IT INDICATED THAT IT THOUGHT INTERIM MEASURES MIGHT BE JUSTIFIED AT THAT STAGE . ALTHOUGH IT BELIEVED IT POSSESSED THE POWERS NEEDED TO DO THIS, IN THE ABSENCE OF ANY CLEAR INDICATION ON THIS POINT IN REGULATION NO 17, IT DID NOT WISH TO TAKE MEASURES ON ITS OWN INITIATIVE AND CONSEQUENTLY REQUESTED THE COURT TO SETTLE THIS QUESTION OF PRINCIPLE AT THE OUTSET .
7 BY ORDER OF 26 NOVEMBER 1979 THE PRESIDENT OF THE COURT REFERRED THE APPLICATION FOR INTERIM MEASURES TO THE COURT UNDER THE FIRST PARAGRAPH OF ARTICLE 85 OF THE RULES OF PROCEDURE .
8 BY AN APPLICATION OF 10 DECEMBER 1979 THE HASSELBLAD COMPANIES APPLIED TO BE ALLOWED TO INTERVENE IN THE MAIN ACTION AND WITH REGARD TO THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES . THE COURT ALLOWED THE INTERVENTIONS BY ORDER OF 12 DECEMBER 1979 .
9 THE PARTIES PRESENTED ORAL ARGUMENT ON 9 JANUARY 1980 .
DEFINITION OF THE ACTION
10 BECAUSE OF THE DOUBT ABOUT THE LEGAL NATURE OF THE COMMUNICATION FROM THE OFFICERS OF THE COMMISSION WHICH IS AT THE ROOT OF THE CASE, THE APPLICANT HAS BASED ITS ACTION UPON BOTH ARTICLE 173 AND ARTICLE 175 OF THE EEC TREATY . ALTHOUGH THE ACTION CANNOT, FOR THE PURPOSES OF THE FINAL JUDGMENT, BE DEFINED AS RESTING UPON BOTH THESE ARTICLES, THERE SEEMS TO BE NO NEED TO RESOLVE THE QUESTION AT THIS STAGE .
11 HOWEVER THE ACTION MAY IN FACT BE DEFINED, IF IT WERE TO SUCCEED THE COMMISSION WOULD IN ANY EVENT BE REQUIRED UNDER ARTICLE 176 OF THE TREATY TO ' ' TAKE THE NECESSARY MEASURES TO COMPLY WITH THE JUDGMENT OF THE COURT OF JUSTICE ' ' . THE TWO ACTIONS HAVE IN FACT THE SAME OBJECT IN THAT THE APPLICANT ' S PURPOSE IS THAT THE COMMISSION SHOULD ADOPT THE INTERIM MEASURES SOUGHT BY THE APPLICANT .
POWER OF THE COMMISSION TO ADOPT INTERIM MEASURES
12 THE HESITATION SHOWN BY THE COMMISSION STEMS FROM THE FACT THAT REGULATION NO 17 DOES NOT EXPRESSLY CONFER UPON THE COMMISSION, AFTER RECEIVING APPLICATIONS UNDER ARTICLE 3 OF THE REGULATION OR WHEN PROCEEDING ON ITS OWN INITIATIVE UNDER THE SAME PROVISION, THE POWER TO ADOPT INTERIM MEASURES PENDING THE TIME WHEN IT IS IN A POSITION TO ADJUDICATE UPON THE SUBSTANCE OF THE CASE .
13 IT IS RECALLED THAT ARTICLE 3 ( 1 ) OF THE REGULATION PROVIDES THAT : ' ' WHERE THE COMMISSION, UPON APPLICATION OR UPON ITS OWN INITIATIVE, FINDS THAT THERE IS INFRINGEMENT OF ARTICLE 85 OR ARTICLE 86 OF THE TREATY, IT MAY BY DECISION REQUIRE THE UNDERTAKINGS . . . CONCERNED TO BRING SUCH AN INFRINGEMENT TO AN
END ' ' . PARAGRAPH ( 3 ) OF THE SAME ARTICLE ADDS THAT THE COMMISSION, BEFORE TAKING A DECISION UNDER PARAGRAPH ( 1 ), MAY ' ' ADDRESS TO THE UNDERTAKINGS . . . CONCERNED RECOMMENDATIONS FOR TERMINATION OF THE INFRINGEMENT ' ' .
14 IT IS OBVIOUS THAT IN CERTAIN CIRCUMSTANCES THERE MAY BE A NEED TO ADOPT INTERIM PROTECTIVE MEASURES WHEN THE PRACTICE OF CERTAIN UNDERTAKINGS IN COMPETITION MATTERS HAS THE EFFECT OF INJURING THE INTERESTS OF SOME MEMBER STATES, CAUSING DAMAGE TO OTHER UNDERTAKINGS, OR OF UNACCEPTABLY JEOPARDIZING THE COMMUNITY ' S COMPETITION POLICY . IN SUCH CIRCUMSTANCES IT IS IMPORTANT TO ENSURE THAT, WHILST INQUIRIES ARE BEING CARRIED OUT NO IRREPARABLE DAMAGE IS CAUSED SUCH AS COULD NOT BE REMEDIED BY ANY DECISION WHICH THE COMMISSION MIGHT TAKE AT THE CONCLUSION OF THE ADMINISTRATIVE PROCEDURE .
15 ALTHOUGH IT IS TRUE THAT, FROM THE POINT OF VIEW OF BOTH THE EFFICACY OF COMPETITION LAW AND THE PROTECTION OF THE LEGITIMATE INTERESTS OF THE MEMBER STATES OR UNDERTAKINGS CONCERNED, THE ADOPTION OF PROTECTIVE MEASURES MAY SEEM TO BE NECESSARY IN CERTAIN CIRCUMSTANCES, THE PROVISIONS OF REGULATION NO 17 MUST NEVERTHELESS BE EXAMINED TO SEE WHETHER THEY CAN ACCOMMODATE THIS LEGAL REQUIREMENT .
16 IT IS AS WELL TO OBSERVE ON THIS POINT THAT ARTICLE 3 OF THE REGULATION ENTITLES THE COMMISSION TO TAKE TWO TYPES OF ACTION IN ORDER TO BRING TO AN END ANY INFRINGEMENTS THAT IT FINDS : FIRST, THE COMMISSION MAY TAKE ' ' DECISIONS ' '
WHICH, ACCORDING TO ARTICLE 189 OF THE TREATY, ARE BINDING UPON THOSE TO WHOM THEY ARE ADDRESSED AND WHICH, ACCORDING TO ARTICLES 15 AND 16 OF REGULATION NO 17, MAY BE ACCOMPANIED BY FINES AND PERIODIC PENALTY PAYMENTS ; SECONDLY, BEFORE TAKING A BINDING DECISION, THE COMMISSION IS ALWAYS ENTITLED UNDER ARTICLE 3 ( 3 ) TO ADDRESS TO THE UNDERTAKINGS CONCERNED ' ' RECOMMENDATIONS FOR TERMINATION OF THE INFRINGEMENT ' ' . THE OBJECT OF THIS LAST PROVISION IS TO ENABLE THE COMMISSION TO INFORM THE UNDERTAKINGS CONCERNED OF ITS ASSESSMENT OF THE SITUATION WITH REGARD TO COMMUNITY LAW IN ORDER TO PERSUADE THEM TO COMPLY WITH ITS POINT OF VIEW WITHOUT IMMEDIATELY RESORTING TO LEGAL ENFORCEMENT . IT CANNOT, HOWEVER, BE CONSTRUED AS A LIMITATION UPON THE PRACTICAL WAYS IN WHICH THE POWER TO TAKE A DECISION, WHICH IS THE CORE OF ARTICLE 3, MAY BE EXERCISED .
17 AS REGARDS THE RIGHT TO TAKE DECISIONS CONFERRED UPON THE COMMISSION BY ARTICLE 3 ( 1 ), IT IS ESSENTIAL THAT IT SHOULD BE EXERCISED IN THE MOST EFFICACIOUS MANNER BEST SUITED TO THE CIRCUMSTANCES OF EACH GIVEN SITUATION . TO THIS END THE POSSIBILITY CANNOT BE EXCLUDED THAT THE EXERCISE OF THE RIGHT TO TAKE DECISIONS CONFERRED UPON THE COMMISSION SHOULD COMPRISE SUCCESSIVE STAGES SO THAT A DECISION FINDING THAT THERE IS AN INFRINGEMENT MAY BE PRECEDED BY ANY PRELIMINARY MEASURES WHICH MAY APPEAR NECESSARY AT ANY GIVEN MOMENT .
18 FROM THIS POINT OF VIEW THE COMMISSION MUST ALSO BE ABLE, WITHIN THE BOUNDS OF ITS SUPERVISORY TASK CONFERRED UPON IT IN COMPETITION MATTERS BY THE TREATY AND REGULATION NO 17, TO TAKE PROTECTIVE MEASURES TO THE EXTENT TO WHICH THEY MIGHT APPEAR INDISPENSABLE IN ORDER TO AVOID THE EXERCISE OF THE POWER TO MAKE DECISIONS GIVEN BY ARTICLE 3 FROM BECOMING INEFFECTUAL OR EVEN ILLUSORY BECAUSE OF THE ACTION OF CERTAIN UNDERTAKINGS . THE POWERS WHICH THE COMMISSION HOLDS UNDER ARTICLE 3 ( 1 ) OF REGULATION NO 17 THEREFORE INCLUDE THE POWER TO TAKE INTERIM MEASURES WHICH ARE INDISPENSABLE FOR THE EFFECTIVE EXERCISE OF ITS FUNCTIONS AND, IN PARTICULAR, FOR ENSURING THE EFFECTIVENESS OF ANY DECISIONS REQUIRING UNDERTAKINGS TO BRING TO AN END INFRINGEMENTS WHICH IT HAS FOUND TO EXIST .
19 HOWEVER, THE COMMISSION COULD NOT TAKE SUCH MEASURES WITHOUT HAVING REGARD TO THE LEGITIMATE INTERESTS OF THE UNDERTAKING CONCERNED BY THEM . FOR THIS REASON IT IS ESSENTIAL THAT INTERIM MEASURES BE TAKEN ONLY IN CASES PROVED TO BE URGENT IN ORDER TO AVOID A SITUATION LIKELY TO CAUSE SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THEIR ADOPTION, OR WHICH IS INTOLERABLE FOR THE PUBLIC INTEREST . A FURTHER REQUIREMENT IS THAT THESE MEASURES BE OF A TEMPORARY AND CONSERVATORY NATURE AND RESTRICTED TO WHAT IS REQUIRED IN THE GIVEN SITUATION . WHEN ADOPTING THEM THE COMMISSION IS BOUND TO MAINTAIN THE ESSENTIAL SAFEGUARDS GUARANTEED TO THE PARTIES CONCERNED BY REGULATION NO 17, IN PARTICULAR BY ARTICLE 19 . FINALLY, THE DECISIONS MUST BE MADE IN SUCH A FORM THAT AN ACTION MAY BE BROUGHT UPON THEM BEFORE THE COURT OF JUSTICE BY ANY PARTY WHO CONSIDERS HE HAS BEEN INJURED .
20 AS THE PRESIDENT OF THE COURT HAS INDICATED, IN THE CONTEXT OF THE ECSC TREATY, IN HIS INTERLOCUTORY ORDER OF 22 OCTOBER 1975 IN CASE 109/75R ( NATIONAL CARBONISING COMPANY, ( 1975 ) ECR 1193 ), IT IS IN ACCORDANCE WITH THE KEY PRINCIPLES OF THE COMMUNITY THAT ANY INTERIM MEASURES WHICH PROVE TO BE NECESSARY SHOULD BE TAKEN BY THE COMMUNITY INSTITUTION WHICH IS GIVEN THE TASK OF RECEIVING COMPLAINTS BY GOVERNMENTS OR INDIVIDUALS, OF MAKING INQUIRIES AND OF TAKING DECISIONS IN REGARD TO INFRINGEMENTS WHICH ARE FOUND TO EXIST, WHILST THE ROLE OF THE COURT OF JUSTICE CONSISTS IN UNDERTAKING THE LEGAL REVIEW OF THE ACTION TAKEN BY THE COMMISSION IN THESE MATTERS . IN THIS REGARD, THE RIGHTS OF THOSE CONCERNED ARE SAFEGUARDED BY THE FACT THAT IF INTERIM MEASURES DECIDED UPON BY THE COMMISSION ADVERSELY AFFECT THE LEGITIMATE INTERESTS OF ANY PARTY THE PERSON CONCERNED MAY ALWAYS OBTAIN THE REVISION OF THE DECISION MADE, BY THE APPROPRIATE JUDICIAL RECOURSE, APPLYING IF NECESSARY FOR EMERGENCY MEASURES UNDER ARTICLE 185 OR ARTICLE 186 OF THE EEC TREATY .
21 IT FOLLOWS FROM THESE CONSIDERATIONS THAT THE COMMISSION POSSESSES THE POWERS NEEDED TO MEET THE REQUEST OF THE APPLICANT IF IT THINKS THIS REQUEST IS JUSTIFIED IN THE CIRCUMSTANCES . THE APPLICANT MUST THEREFORE BE REFERRED BACK TO THE COMMISSION SO THAT IT MAY, WITHOUT PREJUDICE TO THE RIGHTS AND INTERESTS OF THE PARTY CONCERNED BY THE COMPLAINT, TAKE A DECISION UPON THE REQUEST FOR INTERIM MEASURES UPON THE CONDITIONS SET OUT ABOVE .
Operative part
ON THOSE GROUNDS
THE COURT
AS AN INTERLOCUTORY DECISION, HEREBY ORDERS AS FOLLOWS :
1 . IT IS FOR THE COMMISSION TO DECIDE BY VIRTUE OF ARTICLE 3 ( 1 ) OF REGULATION NO 17 WHETHER THERE ARE GROUNDS FOR ADOPTING INTERIM MEASURES PURSUANT TO THE APPLICATION MADE BY THE APPLICANT .
THE REMAINDER OF THE APPLICANT ' S CLAIMS ARE DISMISSED .
2 . COSTS ARE RESERVED .