61973CJ0041(01)_EN
Parties
Subject of the case
Grounds
Decision on costs
Operative part
Parties
IN JOINED CASES
( 1 ) 41/73 - INTERPRETATION
SOCIETE ANONYME GENERALE SUCRIERE, HAVING ITS REGISTERED OFFICE AT PARIS, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, ASSISTED BY DOMINIQUE VOILLEMOT, ADVOCATE AT THE COURT D ' APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER, 12 RUE NOTRE-DAME,
( 2 ) 43 AND 44/73 - INTERPRETATION
SOCIETE BEGHIN-SAY, HAVING ITS REGISTERED OFFICE AT THUMERIES ( NORD ), FRANCE, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, ASSISTED BY BERNARD DU GRANRUT, ADVOCATE AT THE COUR D ' APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CASE POSTALE 39,
APPLICANTS,
( 1 ) COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS, GIORGIO PINCHERLE AND ERICH ZIMMERMANN, DOCTORS OF LAWS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF ITS LEGAL ADVISER, MARIO CERVINO, BATIMENT JEAN MONNET, KIRCHBERG,
( 2 ) NV CENTRALE SUIKER MAATSCHAPPIJ, HAVING ITS REGISTERED OFFICE AT AMSTERDAM, ASSISTED BY R . A . MORZER BRUYNS, ADVOCATE AT THE GERECHTSHOF, AMSTERDAM, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALEX BONN, 22 COTE D ' EICH,
( 3 ) RAFFINERIE TIRLEMONTOISE, A COMPANY LIMITED BY SHARES, ASSISTED BY G . VAN HECKE, PROFESSOR, ADVOCATE AT THE COUR DE CASSATION, BELGIUM AND A . DERINGER, ADVOCATE AT THE OBERLANDESGERICHT, COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 BIS, RUE PHILIPPE II,
( 4 ) SOCIETE ANONYME SUCRES ET DENREES, HAVING ITS REGISTERED OFFICE AT PARIS, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, ASSISTED BY THE SOCIETE CIVILE PROFESSIONNELLE LASSIER ET BUDRY AND BY JEAN-DENIS BREDIN, ADVOCATES AT THE COUR D ' APPEL, PARIS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, CENTRE LOUVIGNY, 34 BIS, RUE PHILIPPE II,
( 5 ) SUDDEUTSCHE ZUCKER AG, HAVING ITS REGISTERED OFFICE AT MANNHEIM,
( 6 ) SUDZUCKER-VERKAUF GMBH, HAVING ITS REGISTERED OFFICE AT OBERURSEL ( GERMANY )
THE FIFTH AND SIXTH DEFENDANTS BEING ASSISTED BY MESSRS GLEISS, LUTZ, HOOTZ AND HIRSCH, DOCTORS OF LAWS, ADVOCATES AT THE LANDGERICHT, STUTTGART AND THEIR PARTNERS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER, 12 RUE NOTRE-DAME,
( 7 ) FIRMA PFEIFER & LANGEN, HAVING ITS REGISTERED OFFICE AT COLOGNE, ASSISTED BY FERDINAND HERMANNS, DOCTORS OF LAWS, ADVOCATE AT THE AMTSGERICHT AND LANDGERICHT, COLOGNE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG C/O ANDRE ROBERT, 13 RUE JOSEPH TOCKERT,
( 8 ) COOPERATIVE VERENIGING ' SUIKER UNIE '
UA, HAVING ITS REGISTERED OFFICE AT ROTTERDAM,
( 9 ) ZUCCHERIFICIO DEL VOLANO S.P.A ., HAVING ITS REGISTERED OFFICE AT GENOA,
( 10 ) SOCIETA AGRICOLA INDUSTRIALE EMILIANA - AIE, HAVING ITS REGISTERED OFFICE AT BOLOGNA,
( 11 ) SOCIETA SADAM S.P.A ., HAVING ITS REGISTERED OFFICE AT BOLOGNA,
( 12 ) CAVARZERE PRODUZIONI INDUSTRIALI S.P.A ., HAVING ITS REGISTERED OFFICE AT PADUA,
( 13 ) SOCIETA ITALIANA PER L ' INDUSTRIA DEGLI ZUCCHERI, HAVING ITS REGISTERED OFFICE AT ROME,
( 14 ) ' ERIDANIA '
ZUCCHERIFICI NAZIONALE S.P.A ., HAVING ITS REGISTERED OFFICE AT GENOA,
( 15 ) UNIONE NAZIONALE CONSUMATORI, HAVING ITS REGISTERED OFFICE AT ROME,
DEFENDANTS,
Subject of the case
APPLICATIONS FOR THE INTERPRETATION OF PARAGRAPH 3 ( B ) OF THE OPERATIVE PART OF THE JUDGMENT OF THE COURT OF 16 DECEMBER 1975, GIVEN IN JOINED CASES 40 TO 48/73, 50/73, 54 TO 56/73, 111/73, 113/73 AND 114/73 (( 1975 ) ECR 1663 ) IN SO FAR AS THE SAID PARAGRAPH 3 ( B ) AFFECTS THE APPLICANTS .
Grounds
1 THE GENERALE SUCRIERE AND BEGHIN SAY COMPANIES - THE LATTER WAS FORMED AS A RESULT OF THE MERGER OF THE FORMER COMPANIES SAY AND BEGHIN - PURSUANT TO ARTICLE 40 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN ECONOMIC COMMUNITY AND ARTICLE 102 OF THE RULES OF PROCEDURE HAVE LODGED APPLICATIONS FOR INTERPRETATION, IN SO FAR AS THEY ARE AFFECTED, OF PARAGRAPH 3 ( B ) OF THE OPERATIVE PART OF THE JUDGMENT OF THE COURT OF 16 DECEMBER 1975 GIVEN IN JOINED CASES 40/73 ETC . ( SUIKER UNIE AND OTHERS V COMMISSION OF THE EUROPEAN COMMUNITIES ( 1975 ) ECR 1663 ) TO WHICH THE GENERALE SUCRIERE, SAY AND BEGHIN COMPANIES WERE PARTIES .
2 IN THIS JUDGMENT THE COURT ANNULLED OR VARIED IN PART THE COMMISSION DECISION OF 2 JANUARY 1973 ( OJ L 140, P . 17 ET SEQ .) WHICH, INTER ALIA, IMPOSED ON THE SAID COMPANIES AND SEVERAL OTHER UNDERTAKINGS UNDER ARTICLE 15 OF REGULATION NO 17 OF THE COUNCIL FINES EXPRESSED IN UNITS OF ACCOUNT AND IN NATIONAL CURRENCY FOR INFRINGING ARTICLES 85 AND 86 OF THE EEC TREATY .
3 MORE PARTICULARLY THE COURT HELD THAT THESE FINES SHOULD BE FIXED IN THE CASE OF GENERALE SUCRIERE AT ' 80 000 U.A . ( FF 444 335.20 ) ', IN THE CASE OF SAY AT ' 80 000 U.A . ( FF 444 335.20 ) '
AND IN THE CASE OF BEGHIN AT ' 100 000 U.A . ( FF 555.419 ) ' .
4 FOR THE PURPOSE OF ESTABLISHING PARITY BETWEEN EACH SUM EXPRESSED IN UNITS OF ACCOUNT ( HEREINAFTER REFERRED TO AS ' U.A . ' ) AND THE CORRESPONDING SUM IN NATIONAL CURRENCY THE COURT - AS THE COMMISSION DID IN ITS DECISION - TOOK INTO ACCOUNT ARTICLE 18 OF REGULATION NO 17 ACCORDING TO WHICH FOR THE PURPOSES OF APPLYING ARTICLE 15 THE U.A . SHALL BE THAT ADOPTED IN DRAWING UP THE BUDGET OF THE COMMUNITY .
5 THUS THE COURT APPLIED THE PROVISIONS BOTH OF ARTICLES 10 ( 1 ) AND 27 OF THE COUNCIL ' S FINANCIAL REGULATION OF 25 APRIL 1973 APPLICABLE TO THE GENERAL BUDGET OF THE EUROPEAN COMMUNITIES ( OJ L 116, P . 1 ) ACCORDING TO WHICH, ON THE ONE HAND, THE VALUE OF THE U.A . SHALL BE 0.88867088 GRAMMES OF FINE GOLD AND, ON THE OTHER HAND, THE FINANCIAL CONTRIBUTIONS FROM MEMBER STATES SHALL BE EXPRESSED IN U.A . AND SHALL BE CONVERTED INTO THE RESPECTIVE NATIONAL CURRENCIES ON THE BASIS OF THE RELATIONSHIP EXISTING BETWEEN THE WEIGHT OF FINE GOLD CONTAINED IN A U.A . AND THE WEIGHT OF FINE GOLD CORRESPONDING TO PARITY IN RESPECT OF EACH OF THOSE CURRENCIES AS DECLARED TO THE INTERNATIONAL MONETARY FUND .
6 ACCORDING TO THE APPLICANTS THE AMOUNT OF THEIR DEBTS IS TO BE DETERMINED BY THE SUM EXPRESSED BY THE COURT IN U . A ., THE SUM EXPRESSED IN NATIONAL CURRENCY ONLY BEING RELEVANT AS AN INDICATION OF THE AMOUNT, SO THAT THEY WERE ENTITLED TO PAY IN THE NATIONAL CURRENCY OF ANY MEMBER STATE WHATSOEVER, AND CONSEQUENTLY IN ITALIAN LIRE BY APPLYING THE BEFOREMENTIONED METHOD FOR THE PURPOSE OF CONVERTING THE U.A . INTO ITALIAN LIRE .
7 ALTHOUGH THE COMMISSION DOES NOT OBJECT TO THE APPLICANTS PAYING THEIR DEBTS IN A NATIONAL CURRENCY OF THE COMMUNITY OTHER THAN FRENCH FRANCS, IT IS NEVERTHELESS OF THE OPINION THAT THE AMOUNT OF THE DEBTS IS DETERMINED BY THE SUMS FIXED BY THE COURT IN THIS CURRENCY AND THAT CONSEQUENTLY, IF THE APPLICANTS WISH TO PAY IN ANOTHER NATIONAL CURRENCY, THE CONVERSION MUST BE CARRIED OUT AT THE EXCHANGE RATE ON THE FREE FOREIGN EXCHANGE MARKET APPLICABLE ON THE DATE OF PAYMENT .
8 THE ESSENCE BOTH OF THE APPLICANTS '
AND THE COMMISSION ' S CLAIM IS THAT THE COURT SHOULD INTERPRET ITS JUDGMENT IN ACCORDANCE WITH THE ARGUMENT PUT FORWARD BY EACH OF THEM .
9 ( 1 ) AS PROVIDED BY ARTICLE 15 ( 2 ) OF REGULATION NO 17 ' THE COMMISSION MAY . . . IMPOSE . . . FINES OF FROM 1 000 TO 1 000 000 U.A ., OR A SUM IN EXCESS THEREOF BUT NOT EXCEEDING 10 % OF THE TURNOVER IN THE PRECEDING BUSINESS YEAR OF EACH OF THE UNDERTAKINGS PARTICIPATING IN THE INFRINGEMENT . . . ' .
10 THIS PROVISION PREVENTS THE COMMISSION AND, SHOULD THE OCCASION ARISE, THE COURT, FROM FIXING FINES WHICH DO NOT FALL WITHIN THE LIMITS SO LAID DOWN .
11 TO THE EXTENT TO WHICH THIS PROVISION, FOR THE PURPOSE OF DEFINING THESE LIMITS, TAKES THE U.A . INTO CONSIDERATION THE COMMISSION AND THE COURT, IN ORDER TO CONVERT THE U.A . INTO NATIONAL CURRENCY, HAVE TO ADOPT THE METHOD FOUND IN ARTICLE 18 OF REGULATION NO 17 AND IN THE PROVISIONS TO WHICH IT REFERS .
12 NEVERTHELESS THERE IS NOTHING IN THE WORDING OF ARTICLE 15 OF THE REGULATION WHICH JUSTIFIES THE CONCLUSION THAT THE COMMISSION AND THE COURT ARE BOUND TO EXPRESS THE AMOUNT OF A FINE IN U.A . OR WITH REFERENCE TO A SUM EXPRESSED IN U.A .
13 A FIRST OBJECTION TO THIS CONCLUSION IS THAT FOR THE PURPOSE OF FIXING THE UPPER LIMIT OF THE FINES ARTICLE 15 REFERS NOT ONLY TO A SUM EXPRESSED IN U.A . BUT ALSO TO A SUM TO BE CALCULATED BY REFERENCE TO THE TURNOVER OF THE UNDERTAKING CONCERNED, WHICH CAN ONLY BE EXPRESSED IN A NATIONAL CURRENCY .
14 THE SAID CONCLUSION IN THE SECOND PLACE FAILS TO APPRECIATE THE INFERENCES WHICH MUST BE DRAWN FROM THE FACT THAT, UNDER THE PROVISIONS OF ARTICLES 187 AND 192 OF THE EEC TREATY WHEN READ TOGETHER, THE DECISIONS OF THE COMMISSION AND OF THE COURT IMPOSING A PECUNIARY OBLIGATION ON PERSONS OTHER THAN STATES SHALL BE ENFORCEABLE, AND ANY ENFORCEMENT WHICH MAY BE NECESSARY SHALL BE GOVERNED BY THE RULES OF CIVIL PROCEDURE IN FORCE IN THE STATE IN THE TERRITORY OF WHICH IT IS CARRIED OUT .
15 THUS, SINCE THE U.A . IS NOT A CURRENCY IN WHICH PAYMENT IS MADE, THE COMMISSION AND THE COURT ARE OF NECESSITY BOUND TO FIX THE AMOUNT OF THE FINE IN NATIONAL CURRENCY .
16 THESE CONSIDERATIONS ARE NOT INVALIDATED BY THE FACT THAT THE CHOICE OF THE APPROPRIATE NATIONAL CURRENCY MIGHT CREATE DIFFICULTIES FOR UNDERTAKINGS WHOSE BUSINESSES AND FINANCIAL OPERATIONS ARE SPREAD OVER SEVERAL MEMBER STATES OR FOR UNDERTAKINGS ESTABLISHED IN THIRD COUNTRIES .
17 IN SUCH CIRCUMSTANCES THE JUDGMENT MUST BE UNDERSTOOD AS MEANING THAT THE AMOUNT OF THE RESPECTIVE DEBTS OF THE APPLICANTS IS DETERMINED BY THE SUMS EXPRESSED IN FRENCH FRANCS, SINCE THE SUMS EXPRESSED IN U.A . HAVE ONLY BEEN MENTIONED TO MAKE IT POSSIBLE TO CHECK WHETHER THE PRESCRIBED LIMITS WITHIN WHICH THE FINES MUST FALL HAVE IN FACT BEEN OBSERVED .
18 THE ORDER IN WHICH THE JUDGMENT HAS IN EACH CASE MENTIONED THE TWO SUMS AND THE WAY IN WHICH IT HAS PLACED THEM SIDE BY SIDE ARE NOT CONCLUSIVE .
19 ( 2 ) CONSEQUENTLY THE COMMISSION COULD AND CAN REQUIRE THE APPLICANTS TO PAY THEIR DEBTS IN FRENCH FRANCS .
20 NEVERTHELESS NO LEGAL PROVISION PREVENTS THE COMMISSION FROM ACCEPTING PAYMENTS IN ANOTHER NATIONAL CURRENCY OF THE COMMUNITY .
21 AS FAR AS CONCERNS THE RATE TO BE APPLIED IN THIS CASE FOR THE PURPOSE OF CONVERTING ONE OF THESE CURRENCIES INTO ANOTHER THE APPLICANTS CANNOT RELY ON THE FACT THAT ARTICLE 18 OF REGULATION NO 17 REFERS TO THE PROVISIONS APPLICABLE TO THE BUDGET OF THE COMMUNITY .
22 SINCE IT IS A FACT THAT THE PARITIES OF THE VARIOUS NATIONAL CURRENCIES ADOPTED BY THESE PROVISIONS NO LONGER IN MOST CASES REFLECT THE ACTUAL POSITION IN THE MARKET, IT CANNOT BE ASSUMED THAT THEY APPLY BY ANALOGY TO CIRCUMSTANCES WHICH, AS IN THIS CASE, ARE NOT EXPLICITLY COVERED BY ANY LEGAL PROVISION .
23 ALTHOUGH THE COMMISSION IS ENTITLED TO ACCEPT PAYMENTS IN A NATIONAL CURRENCY OF THE COMMUNITY OTHER THAN THAT IN WHICH THE DEBT HAS BEEN DETERMINED, THE FACT REMAINS THAT IT MUST SEE TO IT THAT THE ACTUAL VALUE OF THE PAYMENTS MADE IN ANOTHER CURRENCY CORRESPONDS TO THAT OF THE SUM FIXED IN NATIONAL CURRENCY IN THE COURT ' S JUDGMENT .
24 THEREFORE THE CONVERSION OF THE TWO NATIONAL CURRENCIES IN QUESTION MUST BE EFFECTED AT THE EXCHANGE RATE ON THE FREE FOREIGN EXCHANGE MARKET APPLICABLE ON THE DAY OF PAYMENT .
25 THE APPLICANTS OBJECT TO THIS SOLUTION ON THE GROUND THAT IT WOULD LEAD TO DISCRIMINATION IN FAVOUR OF UNDERTAKINGS ESTABLISHED IN COUNTRIES WHICH HAVE SO-CALLED SOFT CURRENCIES .
26 THIS REASONING IS BASED ON THE SUPPOSITION, WHICH IT HAS JUST BEEN STATED IS MISTAKEN, THAT THE COMMISSION AND THE COURT HAVE TO FIX THE FINE IN U.A .
27 ( 3 ) THE APPLICANTS HAVE ONLY REQUESTED THAT PARAGRAPH 3 ( B ) OF THE OPERATIVE PART OF THE DISPUTED JUDGMENT SHOULD BE INTERPRETED IN SO FAR AS IT AFFECTS THEM .
28 HOWEVER AS PROVIDED FOR IN ARTICLE 102 ( 1 ) OF THE RULES OF PROCEDURE AN APPLICATION FOR INTERPRETATION ' MUST BE MADE AGAINST ALL THE PARTIES TO THE CASE IN WHICH JUDGMENT WAS GIVEN ' .
29 THIS MEANS THAT AN INTERPRETING JUDGMENT IS BINDING NOT ONLY ON THE APPLICANTS BUT ALSO ON ANY OTHER PARTY, IN SO FAR AS THAT PARTY IS AFFECTED BY THE PASSAGE IN THE JUDGMENT WHICH THE COURT IS ASKED TO INTERPRET OR BY A PASSAGE WHICH IS EXACTLY SIMILAR THERETO .
30 SINCE PARAGRAPH 3 ( B ) OF THE OPERATIVE PART OF THE JUDGMENT, WHICH HAS TO BE INTERPRETED, USES, AS FAR AS CONCERNS THE FORMER APPLICANTS SUIKER-UNIE, CENTRALE SUIKER MAATSCHAPPIJ, RAFFINERIE TIRLEMONTOISE, SUCRES ET DENREES, SUDZUCKER-VERKAUF GMBH AND PFEIFER & LANGEN, WORDING SIMILAR TO THAT WHICH IS THE SUBJECT-MATTER OF THESE APPLICATIONS - IN THAT IT MENTIONS THE AMOUNT OF THE FINE FIRST OF ALL IN U.A . AND THEN, IN BRACKETS, IN THE NATIONAL CURRENCY OF THE UNDERTAKING IN QUESTION, ACCORDINGLY IN NETHERLANDS GUILDERS, BELGIAN FRANCS, FRENCH FRANCS OR DEUTSCHMARKS AS THE CASE MAY BE - THE COURT ' S INTERPRETATION OF THIS SPECIFIC PARAGRAPH OF THE OPERATIVE PART OF THE JUDGMENT UNDER CONSIDERATION IS ALSO BINDING ON THE OTHER UNDERTAKINGS .
Decision on costs
COSTS
31 UNDER ARTICLE 69 ( 2 ) OF THE RULES OF PROCEDURE THE UNSUCCESSFUL PARTY SHALL BE ORDERED TO PAY THE COSTS AND WHERE THERE ARE SEVERAL UNSUCCESSFUL PARTIES THE COURT SHALL DECIDE HOW THE COSTS ARE TO BE SHARED .
32 IN THIS CASE THE GENERALE SUCRIERE AND BEGHIN-SAY COMPANIES AS WELL AS THE OTHER COMPANIES WHICH HAVE SUBMITTED OBSERVATIONS IN SUPPORT OF THE APPLICANTS '
CONCLUSIONS - NAMELY CENTRALE SUIKER MAATSCHAPPIJ, RAFFINERIE TIRLEMONTOISE, SUCRES ET DENREES, SUDDEUTSCHE ZUCKER AG, SUDZUCKER- VERKAUF GMBH AND PFEIFER & LANGEN - HAVE FAILED IN THEIR PLEAS .
33 IT IS THEREFORE APPROPRIATE TO ORDER THAT EACH OF THOSE COMPANIES SHALL BEAR ITS OWN COSTS AND ONE-EIGHTH OF THE COMMISSIONS ' S COSTS .
Operative part
ON THOSE GROUNDS,
THE COURT
HEREBY RULES :
1 . PARAGRAPH 3 ( B ) OF THE OPERATIVE PART OF THE JUDGMENT OF THE COURT OF 16 DECEMBER 1975 GIVEN IN JOINED CASES 40/73 ETC . ( SUIKER UNIE AND OTHERS V COMMISSION ( 1975 ) ECR 2026 ) IS TO BE INTERPRETED AS MEANING THAT :
( A ) THE AMOUNT OF THE DEBTS ARISING OUT OF THE FINES IMPOSED RESPECTIVELY ON EACH OF THE UNDERTAKINGS CONCERNED UNDER THE SAID PARAGRAPH 3 ( B ) IS TO BE DETERMINED BY THE SUM EXPRESSED IN THE NATIONAL CURRENCY OF EACH UNDERTAKING ; THEREFORE IN THE CASE OF THE APPLICANTS, THIS IS THE SUM EXPRESSED IN FRENCH FRANCS .
( B ) ALTHOUGH THE COMMISSION IS UNDER NO OBLIGATION TO DO SO, IT IS NEVERTHELESS ENTITLED TO ACCEPT PAYMENT BY EACH OF THE SAID UNDERTAKINGS IN A NATIONAL CURRENCY OF THE COMMUNITY OTHER THAN THE ONE DETERMINED IN ACCORDANCE WITH SUBPARAGRAPH ( A ) ABOVE AND IN THESE CIRCUMSTANCES THE CONVERSION OF ONE CURRENCY INTO THE OTHER MUST BE EFFECTED AT THE EXCHANGE RATE ON THE FREE FOREIGN EXCHANGE MARKET, APPLICABLE AT THE DATE OF PAYMENT .
2 . EACH OF THE GENERALE SUCRIERE, BEGHIN-SAY, CENTRALE SUIKER MAATSCHAPPIJ, RAFFINERIE TIRLEMONTOISE, SUCRES ET DENREES, SUDDEUTSCHE ZUCKER AG, SUDZUCKER-VERKAUF GMBH AND PFEIFER & LANGEN COMPANIES SHALL BEAR ITS OWN COSTS AND ONE-EIGHTH OF THE COMMISSION ' S COSTS .