61980CO0258_EN
Parties
Grounds
Decision on costs
Operative part
Parties
IN CASE 258/80 R
S.P.A . METALLURGICA RUMI, WHOSE REGISTERED OFFICE IS IN BERGAMO ( ITALY ), REPRESENTED BY GIACOMO FUSTINONI AND GIUSEPPE MARCHESINI, ADVOCATES AT THE ITALIAN CORTE DI CASSAZIONE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF JEAN HOSS, 84 GRAND ' RUE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ALBERTO PROZILLO, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Grounds
1 ARTICLE 39 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY PROVIDES THAT ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . HOWEVER, THE COURT MAY, IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED DECISION TO BE SUSPENDED . IT MAY ALSO PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .
2 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT, THE GRANT OF AN APPLICATION TO SUSPEND THE OPERATION OF A MEASURE AND A DECISION ORDERING INTERIM MEASURES ARE SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH MEASURES .
3 AS THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES CONTAINS THREE DISTINCT CLAIMS, IT IS NECESSARY TO CONSIDER THEM SEPARATELY IN THE LIGHT OF THE CRITERIA SET OUT ABOVE .
A - THE APPLICATION FOR SUSPENSION
4 THE DECISION OF 1 NOVEMBER 1980, WHOSE OPERATION IT IS SOUGHT TO HAVE SUSPENDEND, INFORMED THE APPLICANT OF THE REFERENCE PRODUCTION FIGURES AND PRODUCTION QUOTAS FOR THE FOURTH QUARTER OF 1980 WHICH RESULT FROM THE APPLICATION OF THE GENERAL DECISION, DECISION NO 2794/80/ECSC, AND IT ACCORDINGLY FIXED THOSE QUOTAS AT 93 092 TONNES FOR ROLLED PRODUCTS IN GROUP IV AND AT 112 269 TONNES FOR STEEL .
5 THE APPLICANT COMPLAINS THAT, ALTHOUGH GENERAL DECISION NO 2794/80, WHICH WAS IMPLEMENTED BY THE CONTESTED DECISION, DID NOT COME INTO FORCE UNTIL 31 OCTOBER 1980, OCTOBER ' S PRODUCTION WAS INCLUDED IN THE VOLUME OF THE QUOTAS, WHEREAS NO RESTRICTION ON PRODUCTION EXISTED DURING THAT MONTH . IT SUBMITS THAT IF PRODUCTION AND SALES ACHIEVED IN OCTOBER 1980 WERE TO CONTINUE TO BE INCLUDED IN THE QUOTAS ALLOCATED TO IT FOR THE FOURTH QUARTER, IT WOULD BE COMPELLED - IF IT WISHED TO AVOID THE RISK OF INCURRING THE SEVERE PENALTIES APPLICABLE - TO BREAK OFF PRODUCTION AND, AS REGARDS SALES, NOT TO HONOUR ORDERS WHICH IT IS UNDER AN OBLIGATION TO FULFIL .
6 THIS FIRST CLAIM CONCERNS, WITH REGARD TO THE FOURTH QUARTER OF 1980, THE FIXING OF QUOTAS ( ARTICLES 3, 4 AND 5 OF DECISION NO 2794/80 ) ON THE ONE HAND AND THE RESTRICTIONS ON DELIVERIES WITHIN THE COMMON MARKET ( ARTICLE 7 ) ON THE OTHER . IT IS THEREFORE NECESSARY TO DEAL WITH THOSE TWO ASPECTS SEPARATELY .
I - FIXING OF THE APPLICANT ' S QUOTAS
7 IT IS CLEAR FROM THE APPLICATION FOR INTERIM MEASURES AND FROM THE EXPLANATIONS GIVEN AT THE HEARING THAT, ALTHOUGH EXPRESSED IN GENERAL TERMS, THE CLAIM SEEKS IN SUBSTANCE A DECISION THAT BY WAY OF DEROGATION FROM GENERAL DECISION NO 2794/80/ECSC THE QUOTAS ALLOCATED TO THE APPLICANT SHOULD BE CALCULATED WITHOUT INCLUDING OCTOBER ' S PRODUCTION, THAT IS TO SAY, THEY SHOULD BE FIXED FOR TWO MONTHS ( NOVEMBER AND DECEMBER ) INSTEAD OF THREE AND THE PRODUCTION REFERENCE FIGURES SHOULD LIKEWISE BE CALCULATED ON THE BASIS OF THE TWO MOST FAVOURABLE CORRESPONDING MONTHS DURING THE PERIOD FROM JULY 1977 TO JUNE 1980 . THUS THIS CLAIM CONSTITUTES BOTH A CLAIM FOR SUSPENSION OF OPERATION OF THE DECISION AND A CLAIM FOR ' ' NECESSARY INTERIM MEASURES ' '
WITHIN THE MEANING OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE .
8 IT IS NOT DISPUTED THAT IN SO FAR AS IT STATES THE REFERENCE FIGURES AND THE FIGURES WHICH CONSTITUTE THE UNDERTAKING ' S QUOTAS FOR THE FOURTH QUARTER OF 1980, THE DECISION OF 1 NOVEMBER 1980 DOES NOT IN ANY RESPECT INVOLVE THE EXERCISE OF A DISCRETIONARY POWER CONFERRED UPON THE COMMISSION . ON THE CONTRARY, IT INVOLVES THE AUTOMATIC APPLICATION OF THE PRECISE AND DETAILED CRITERIA LAID DOWN BY ARTICLES 3, 4 AND 5 OF GENERAL DECISION NO 2794/80/ECSC . IT IS THUS CLEAR THAT THE REAL PURPOSE OF THE CLAIM IS TO OBTAIN FROM THE
JUDGE RESPONSIBLE FOR GRANTING INTERIM RELIEF AN INDIVIDUAL DISPENSATION FROM THE TERMS OF GENERAL DECISION NO 2794/80/ECSC BY SUBSTITUTING, IN FAVOUR OF THE UNDERTAKING CONCERNED, CRITERIA FOR THE DETERMINATION OF THE QUOTAS DIFFERENT FROM THOSE APPLICABLE TO STEEL UNDERTAKINGS IN GENERAL .
9 SUCH JURISDICTION TO SUSPEND OR DEROGATE FROM A GENERAL DECISION, WHERE IT IS BY NO MEANS CERTAIN WHETHER THE APPLICANT IS ENTITLED TO SEEK TO HAVE THAT DECISION DECLARED VOID BY MEANS OF A MAIN ACTION UNDER ARTICLE 33 OF THE TREATY, MAY BE EXERCISED BY THE JUDGE RESPONSIBLE FOR GRANTING INTERIM RELIEF ONLY IN EXCEPTIONAL CIRCUMSTANCES AND WHERE IT IS APPARENT THAT FAILURE TO TAKE THE MEASURES REQUESTED WOULD CAUSE THE APPLICANT TO SUFFER DAMAGE SO SERIOUS AND IRREPARABLE THAT IT COULD NOT BE REDRESSED EVEN IF THE MEASURE CONTESTED IN THE MAIN ACTION WERE ANNULLED .
10 THAT IS PARTICULARLY TRUE IN THIS CASE SINCE BY VIRTUE OF THE SHORT PERIOD FOR WHICH THE DISPUTED QUOTAS WERE FIXED, NAMELY THE FOURTH QUARTER OF 1980, THE MEASURES REQUESTED WOULD THEMSELVES BE IRREVERSIBLE IN NATURE, PREJUDGING THE OUTCOME OF THE MAIN ACTION AND DESTROYING THE EQUALITY IN THE TERMS OF COMPETITION BETWEEN THE APPLICANT AND UNDERTAKINGS WHICH PRODUCE AND MARKET PRODUCTS IDENTICAL TO ITS OWN USE .
11 IT SHOULD ALSO BE EMPHASIZED THAT IN ORDER TO DEAL WITH EXCEPTIONAL SITUATIONS ARTICLE 14 OF DECISION NO 2794/80/ECSC PROVIDES THAT ' ' WHERE THE PRODUCTION OR DELIVERY RESTRICTIONS IMPOSED BY THIS DECISION OR ITS IMPLEMENTING MEASURES ENTAIL EXCEPTIONAL DIFFICULTIES FOR AN UNDERTAKING, IT MAY REFER THE MATTER TO THE COMMISSION, PROVIDING ALL APPROPRIATE SUPPORTING DOCUMENTATION . THE COMMISSION SHALL EXAMINE THE CASE WITHOUT DELAY, IN THE LIGHT OF THE OBJECTIVES OF THIS DECISION . WHERE APPROPRIATE, THE COMMISSION SHALL ADAPT THE PROVISIONS OF THIS DECISION ' ' .
12 ALTHOUGH PRIOR RECOURSE TO ARTICLE 14 DOES NOT IN ITSELF CONSTITUTE A CONDITION PRECEDENT FOR THE ADMISSIBILITY OF THE APPLICATION FOR INTERIM MEASURES, THE FACT THAT THE APPLICANT HAS NOT THOUGHT IT NECESSARY TO REFER THE MATTER TO THE COMMISSION WITH A VIEW TO OBTAINING AN INCREASE IN ITS QUOTAS, TOGETHER WITH
THE FACT THAT IN THE PRESENT PROCEEDINGS IT HAS NOT ADDUCED EVIDENCE SHOWING A REAL DANGER OF SERIOUS AND IRREVERSIBLE DAMAGE IF THE DISPUTED QUOTAS CONTINUE TO BE APPLIED TO IT, LEAD TO THE CONCLUSION THAT THE URGENCY AND NECESSITY OF A SUSPENSORY ORDER OR OF THE MEASURES REQUESTED HAVE NOT BEEN PROVED TO THE STANDARD REQUIRED BY LAW .
13 THE APPLICANT STATED, WITHOUT HOWEVER SUPPLYING ANY DETAILS IN THIS REGARD, THAT ITS QUOTAS WOULD BE EXHAUSTED BY 19 DECEMBER 1980 AND THAT IT WOULD HAVE TO CEASE PRODUCTION ON THAT DATE . THE COMMISSION, FOR ITS PART, STATED WITHOUT BEING CONTRADICTED THAT THE TOTAL PRODUCTION OF STEEL AND CONCRETE REINFORCEMENT BARS IN OCTOBER AND NOVEMBER 1980 AMOUNTED TO 157 359 TONNES . IT THUS APPEARS THAT FOR THE MONTH OF DECEMBER THE APPLICANT HAD A RESERVE OF 205 361 TONNES LESS 157 359 TONNES, THAT IS TO SAY, 48 002 TONNES .
MOREOVER, IT ALSO APPEARS THAT THE PRODUCTION OF CONCRETE REINFORCEMENT BARS IN OCTOBER 1980 ATTAINED AN EXCEPTIONALLY HIGH LEVEL COMPARED TO THE CORRESPONDING PRODUCTION FOR THE SAME PERIOD IN THE PREVIOUS FIVE YEARS AND THIS MAKES IT APPEAR PROBABLE THAT, IN ANTICIPATION OF THE DECISION WHICH WAS ABOUT TO BE TAKEN, THE APPLICANT DELIBERATELY PUSHED ITS PRODUCTION BEYOND ITS USUAL LIMITS .
14 IN THOSE CIRCUMSTANCES SPREADING OUT PRODUCTION OVER THE MONTHS OF NOVEMBER AND DECEMBER 1980 SO AS TO REMAIN WITHIN THE LIMITS OF THE QUOTAS DID NOT PRESENT THE APPLICANT WITH PROBLEMS SUCH AS WOULD JUSTIFY THE DISPENSATION WHICH IT SEEKS AND WHICH WOULD PLACE IT IN A MORE FAVOURABLE COMPETITIVE POSITION THAN ITS COMPETITORS . FURTHER, IT MUST BE NOTED THAT IT IS APPARENT FROM STATEMENTS MADE BOTH BY THE COMMISSION AND BY THE APPLICANT
THAT THE LATTER CAN FULFIL ANY OBLIGATIONS WHICH IT MAY HAVE TOWARDS ITS CUSTOMERS BY DRAWING ON THE CONSIDERABLE STOCKS WHICH, ON ITS OWN ADMISSION, IT POSSESSES .
II - RESTRICTIONS ON DELIVERIES WITHIN THE COMMON MARKET
15 THE APPLICATION FOR SUSPENSION OF THE OPERATION OF GENERAL DECISION NO 2794/80/ECSC ALSO RELATES TO THE RESTRICTIONS ON DELIVERIES WITHIN THE COMMUNITY RESULTING FROM THE APPLICATION OF ARTICLE 7 ( 2 ) THEREOF .
16 THAT CLAIM MUST BE REJECTED . AN APPLICATION FOR INTERLOCUTORY RELIEF MAY RELATE ONLY TO INTERIM MEASURES HAVING A DIRECT LINK WITH THE DECISION WHICH IS AT ISSUE IN THE MAIN ACTION . THAT IS NOT SO IN THIS CASE SINCE THE DECISION OF 1 NOVEMBER 1980 DOES NOT RELATE TO THE IMPLEMENTATION OF ARTICLE 7 ( 2 ) OF DECISION NO 2794/80/ECSC . FROM WHAT WAS STATED BY THE COMMISSION AT THE HEARING IT APPEARS THAT THE RESTRICTIONS ON DELIVERIES WITHIN THE COMMON MARKET DO NOT APPLY TO PRODUCTS WHICH, AS IN THE APPLICANT ' S CASE, WERE MANUFACTURED BEFORE 1 OCTOBER 1980 AND ARE HELD BY AN UNDERTAKING IN STOCK .
17 THUS IT IS CLEAR THAT THE SUSPENSION SOUGHT AND THE MEASURE REQUESTED IN THAT REGARD ARE NEITHER URGENT NOR NECESSARY, THE MORE SO AS THEY SEEK TO AMEND GENERAL DECISION NO 2794/80/ECSC FOR THE SOLE BENEFIT OF THE APPLICANT .
B - THE CLAIM FOR AN ORDER RELATING TO ARTICLE 74 OF THE ECSC TREATY
18 THE SECOND CLAIM SEEKS, BY WAY OF INTERIM MEASURE, AN ORDER REQUIRING THE COMMISSION ' ' TO MAKE IMMEDIATE USE OF THE REMEDIES WHICH ARTICLE 74 OF THE ECSC TREATY PLACES AT ITS DISPOSAL ' ' .
19 IT IS IMMEDIATELY APPARENT THAT SUCH A CLAIM DOES NOT SATISFY ANY OF THE CONDITIONS WHICH ARTICLE 39 OF THE TREATY AND ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PLACE ON THE JURISDICTION OF THE JUDGE RESPONSIBLE FOR INTERLOCUTORY
APPLICATIONS TO PRESCRIBE ' ' NECESSARY INTERIM MEASURES ' '
PENDING THE COURT ' S DECISION IN THE MAIN ACTION TO WHICH THE APPLICATION FOR INTERIM RELIEF RELATES .
C - THE PROTECTION OF BUSINESS SECRETS
20 THE THIRD CLAIM SEEKS, BY WAY OF INTERIM RELIEF, AN ORDER RESTRAINING THE COMMISSION FROM USING EXPERTS WHO ARE IN THE EMPLOY OF COMPETING OR SIMILAR STEEL PRODUCERS FOR THE PURPOSE OF CARRYING OUT THE VERIFICATIONS AND INSPECTIONS PROVIDED FOR BY GENERAL DECISION NO 2794/80/ECSC IN RELATION TO THE APPLICANT .
21 AS THE COMMISSION HAS RIGHTLY OBSERVED, A CLAIM FOR INTERIM RELIEF MUST HAVE A DIRECT LINK WITH THE SUBJECT-MATTER OF THE MAIN ACTION . SUCH IS NOT THE CASE, SINCE THE DECISION OF 1 NOVEMBER 1980 MAKES NO PROVISION WHATSOEVER WITH REGARD TO THE VERIFICATIONS AND INSPECTIONS WHICH THE COMMISSION MAY ORDER IN RELATION TO THE APPLICANT UNDERTAKING .
22 IT IS CLEAR FROM ALL THE CONSIDERATIONS SET OUT ABOVE THAT, BOTH AS REGARDS THE SUSPENSION OF OPERATION AND AS REGARDS THE OTHER MEASURES APPLIED FOR, THE APPLICATION MUST BE DISMISSED .
Decision on costs
23 IT IS APPROPRIATE, AT THIS STAGE, TO RESERVE THE COSTS .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT OF THE COURT,
BY WAY OF INTERLOCUTORY DECISION,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR INTERIM RELIEF IS REFUSED ;
2 . THE COSTS ARE RESERVED .