61982CO0260_EN
Parties
Grounds
Operative part
Parties
IN CASE 260/82 R
NEDERLANDSE SIGARENWINKELIERS ORGANISATIE, AN ASSOCIATION GOVERNED BY NETHERLANDS LAW, WHOSE REGISTERED OFFICE IS AT HAARLEM, WITH OFFICES AT THE HAGUE, REPRESENTED FOR THE PURPOSES OF THESE PROCEEDINGS BY T . R . OTTERVANGER OF THE ROTTERDAM BAR, WITH CHAMBERS AT 66 KORTENBERGLAAN, BRUSSELS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . A . ARENDT, ADVOCATE, RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER B . VAN DER ESCH, ACTING AS AGENT, ASSISTED BY C . E . M . VAN NISPEN TOT SEVENAER OF THE BAR OF THE HAGUE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO, LEGAL ADVISER, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT .
Grounds
1 THE NEDERLANDSE SIGARENWINKELIERS ORGANISATIE ( NETHERLANDS TOBACCONISTS '
ORGANIZATION ) CLAIMS IN SUBSTANCE THAT THE IMMEDIATE OPERATION OF THE PROHIBITION ON THE APPLICATION OF THE SPECIALIST RETAILERS '
BONUS SCHEME WOULD
ENTAIL GRAVE AND IRREPARABLE HARM WHICH COULD NOT BE AVOIDED EVEN IF, AT A LATER STAGE, THE CONSTETED DECISION WERE TO BE DECLARED VOID TO THE EXTENT SOUGHT BY THE APPLICANT .
2 IN THAT REGARD THE APPLICANT MAINTAINS THAT A LARGE PROPORTION OF ITS MEMBERS ARE MINOR RETAILERS FOR WHOM THE BONUS REPRESENTS A SIGNIFICANT PART OF THEIR INCOMES, EVEN IF THE AMOUNT IS RELATIVELY SMALL .
3 THE DEFENDANT, ON THE OTHER HAND, CONTENDS IN SUBSTANCE THAT THE SPECIALIST RETAILERS '
BONUS SCHEME CONCERNS MAJOR RETAILERS AND THAT THE SUMS PROVIDED FOR UNDER THE SCHEME ARE NOT SUCH AS TO AFFORD REASONABLE GROUNDS FOR THE VIEW THAT THEIR NON-PAYMENT UNDERMINES THE SPECIALIST RETAILERS '
GUARANTEE OF SUBSISTENCE . THE DEFENDANT ADDS THAT THE DISPUTED DECISION ALLOWS THE APPLICANT TO NEGOTIATE SEPARATELY WITH INDIVIDUAL MANUFACTURERS AND IMPORTERS SO THAT IT IS NOT POSSIBLE TO SUGGEST THAT GRAVE AND IRREPARABLE HARM WILL BE CAUSED BY THE NECESSITY OF WAITING UNTIL JUDGMENT HAS BEEN GIVEN ON THE MAIN APPLICATION .
4 IN ADDITION, THE DEFENDANT STATES THAT IT APPRECIATES THE TECHNICAL COMPLICATIONS WHICH ARISE FROM THE SUSPENSION OF THE APPLICATION OF THE SCHEME ON 15 JULY 1982 AND, FOR THAT AND OTHER REASONS, IT RAISES NO OBJECTION TO THE SUSPENSION OF THE OPERATION OF THE FIRST PARAGRAPH OF ARTICLE 4 OF THE CONTESTED DECISION, IN SO FAR AS THAT SUSPENSION RELATES TO THE SPECIALIST RETAILERS '
BONUS SCHEME FOR 1982 . THE DEFENDANT ALSO ACCEPTS THAT, IF NO ALTERNATIVE SOLUTION TO THE BONUS SCHEME IS APPLIED, THE OPERATION OF THE DECISION WHICH PROHIBITS THE SCHEME CONSTITUTES A UNILATERAL ADVANTAGE FOR THE MANUFACTURERS TO THE DETRIMENT OF THE RETAILERS .
5 IT CANNOT BE DENIED THAT INDIVIDUAL NEGOTIATION OF ALTERNATIVE BONUS AGREEMENTS WITH MANUFACTURERS AND IMPORTERS WOULD TAKE SOME TIME . UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION, THE CONCLUSION OF SUCH AGREEMENTS MUST BE EXTREMELY UNLIKELY . EVEN IF SUCH AGREEMENTS COULD BE CONCLUDED, IT SHOULD BE BORNE IN MIND THAT THEY WOULD BE NECESSARY ONLY IF IN ITS JUDGMENT ON THE MAIN APPLICATION THE COURT REFUSED TO DECLARE THE
DISPUTED DECISION VOID . IF, ON THE OTHER HAND, THE COURT DECLARED THE DECISION VOID IN ITS JUDGMENT ON THE MAIN APPLICATION AFTER ALTERNATIVE AGREEMENTS HAD BEEN NEGOTIATED, IT IS POSSIBLE THAT IN THE MEANTIME THE MARKET STRUCTURE MIGHT HAVE GIVEN RISE TO A SITUATION IN WHICH A RETURN TO THE FORMER POSITION WITH A VIEW TO THE RENEWED APPLICATION OF THE DECISION ON THE DISPUTED BONUSES WAS SO DIFFICULT THAT A JUDGMENT OF THE COURT DECLARING THE DECISION VOID COULD HAVE NO USEFUL EFFECT .
6 SINCE THE POSSIBILITY OF A RETROACTIVE APPLICATION OF THE BONUS SCHEME AFTER THE DISPUTED PROVISIONS HAVE BEEN DECLARED VOID CANNOT BE EXCLUDED, THE SPECIALIST RETAILERS CONCERNED ARE LEFT IN A SITUATION OF UNCERTAINTY, UNTIL JUDGMENT HAS BEEN GIVEN ON THE MAIN APPLICATION, AS TO WHETHER THEY SHOULD CONTINUE TO SATISFY THE CONDITIONS REQUIRED BY THE BONUS SCHEME OR SHOULD INTRODUCE ALTERNATIVE AGREEMENTS AS QUICKLY AS POSSIBLE . IT MAY BE REGARDED AS VERY UNLIKELY THAT THEY WOULD BE ABLE TO SATISFY AT THE SAME TIME THE CONDITIONS LAID DOWN IN THE DISPUTED SCHEME AND THOSE WHICH WOULD BE IMPOSED IN ANY ALTERNATIVE AGREEMENTS .
7 IT IS, THEREFORE, CLEAR THAT THE DISADVANTAGES INHERENT IN THE OPERATION OF THE DISPUTED PROVISIONS BEFORE JUDGMENT HAS BEEN GIVEN ON THE MAIN APPLICATION ARE SUCH AS TO JUSTIFY A SUSPENSION OF THEIR OPERATION .
8 AT THIS STAGE OF THE PROCEEDINGS, COSTS SHOULD BE RESERVED .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT,
BY WAY OF INTERIM DECISION,
HEREBY ORDERS AS FOLLOWS :
1 . THE OPERATION OF ARTICLE 4 OF THE COMMISSION DECISION OF 15 JULY 1982 ( IV/29.525 AND IV/30.000 ) IS SUSPENDED IN SO FAR AS IT RELATES TO THE SPECIALIST RETAILERS '
BONUS SCHEME UNTIL THE COURT HAS GIVEN JUDGMENT ON THE MAIN APPLICATION IN CASE 260/82 .
2.THE COSTS ARE RESERVED .