61982CO0220_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 220/82 R
MOSELSTAHLWERK GMBH & CO . KG, BEING A COMPANY HAVING ITS REGISTERED OFFICE AT HAFENSTRASSE, TRIER, ( FEDERAL REPUBLIC OF GERMANY ), REPRESENTED BY E . ARENDT, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID E . ARENDT, 34 RUE PHILIPPE-II,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS PRINCIPAL LEGAL ADVISER, HEINRICH MATTIES, AND BY ITS LEGAL ADVISER, ETIENNE LASNET, ACTING AS AGENTS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO, A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE ADOPTION OF INTERIM MEASURES UNDER THE THIRD PARAGRAPH OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE,
Grounds
1 ON 19 AUGUST 1982 THE APPLICANT COMMENCED AN ACTION FOR A DECLARATION THAT THE INDIVIDUAL DECISION OF 6 JULY 1982 FIXING THE PRODUCTION QUOTA FOR WIRE ROD ALLOCATED TO IT FOR THE THIRD QUARTER OF 1982 IS VOID . ACCORDING TO THE APPLICANT, THE FIXING OF THE QUOTA AT SO LOW A LEVEL AS THAT RESULTING FROM DECISIONS NOS 1696/82 AND 1697/82 IS SUCH AS TO CAUSE IT IRREPARABLE DAMAGE BY CONDEMNING ITS BUSINESS TO CLOSURE .
2 THE APPLICANT DOES NOT DISPUTE THAT THE QUOTA AWARDED TO IT RESULTS FROM THE CORRECT APPLICATION OF THE CRITERIA LAID DOWN BY DECISION NO 1697/82 READ IN CONJUNCTION WITH DECISION NO 1696/82 . ITS ACTION CHALLENGING THE INDIVIDUAL DECISION RELATING TO IT IS BASED UPON THE OBJECTION THAT ARTICLE 14 OF DECISION NO 1696/82 IS ILLEGAL . THAT PROVISION ENABLES THE COMMISSION, IN CERTAIN CIRCUMSTANCES, TO MAKE AN ADJUSTMENT TO THE REFERENCE PRODUCTION AND TO THE REFERENCE QUANTITIES OR TO BOTH, THEREBY INCREASING THE QUOTAS ALLOCATED . HOWEVER, THE FINAL PARAGRAPH OF ARTICLE 14 PROVIDES THAT SUCH ADJUSTMENTS MAY BE MADE ONLY IN RESPECT OF UNDERTAKINGS WHOSE TOTAL REFERENCE PRODUCTION FOR CATEGORIES IV ( WIRE ROD ), V ( REINFORCING BARS ) AND VI ( MERCHANT BARS ) IS LOWER THAN 100 000 TONNES A YEAR .
3 SINCE THE APPLICANT ' S ANNUAL REFERENCE PRODUCTION FOR THE PERIOD UNDER CONSIDERATION IS MORE THAN 100 000 TONNES, IT IS, BY VIRTUE OF THE LIMIT SET BY ARTICLE 14, PRECLUDED ALTOGETHER FROM QUALIFYING FOR AN ADJUSTMENT OF ITS QUOTA . IT MAINTAINS THAT THE COMMISSION ' S SELF-IMPOSED LIMITATION ON ITS POWER TO GRANT SPECIAL RELIEF IS A BREACH OF ARTICLES 2, 3 AND 58 OF THE ECSC TREATY .
4 THE APPLICANT FURTHER ARGUES THAT THE LIMITATION OF ITS PRODUCTION WHICH THE DISPUTED QUOTA ENTAILS IS SUCH AS TO CONSTITUTE AN IMMEDIATE AND SERIOUS THREAT TO ITS ECONOMIC AND FINANCIAL STANDING EVEN BEFORE A DECISION CAN BE TAKEN ON ITS MAIN APPLICATION : INTERIM MEASURES SHOULD THEREFORE BE ADOPTED IN ORDER TO AVOID THAT SITUATION .
5 THUS, IN A DOCUMENT DATED 27 AUGUST 1982, THE APPLICANT REQUESTED THAT BY WAY OF INTERIM MEASURES PURSUANT TO ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE :
1 . THE COMMISSION SHOULD BE ORDERED TO TAKE SUCH PROTECTIVE MEASURES AS IT CONSIDERS NECESSARY IN ORDER TO ENSURE THAT MOSELSTAHLWERK ' S FACTORY, WHICH IS THREATENED WITH CLOSURE, CONTINUES TO OPERATE DURING THE MINIMUM FORESEEABLE PERIOD REQUIRED FOR THE CONCLUSION OF THE PROCEEDINGS ON THE MAIN APPLICATION ;
2 . A PANEL OF EXPERTS SHOULD IN ANY CASE BE SET UP WITH THE TASK OF GIVING ITS OPINION AS TO WHETHER ' ' COMPLIANCE WITH THE QUOTAS IMPOSED BY THE INDIVIDUAL DECISION OF 6 JULY 1982 INEVITABLY ENTAILS MAKING THE APPLICANT ' S BUSINESS UNPROFITABLE, THEREBY OBLIGING IT TO DISMISS ITS LABOUR-FORCE AND TO COMMENCE WINDING-UP PROCEEDINGS IN PURSUANCE OF GERMAN LEGISLATION ON INSOLVENCY . ' '
6 ACCORDING TO ARTICLE 39 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY, ACTIONS BROUGHT BEFORE THE COURT ARE NOT TO HAVE SUSPENSORY EFFECT . THE COURT MAY, HOWEVER, IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED . IT MAY PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .
7 UNDER ARTICLE 83 ( 2 ) OF THE COURT ' S RULES OF PROCEDURE ANY SUSPENSION OF A MEASURE AND ANY ORDER GRANTING INTERIM MEASURES ARE CONDITIONAL UPON THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND OF GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH MEASURES .
8 THE COURT HAS CONSISTENTLY HELD THAT MEASURES OF THIS NATURE MAY NOT BE CONTEMPLATED UNLESS THE FACTUAL AND LEGAL CIRCUMSTANCES RELIED UPON ESTABLISH A PRIMA FACIE CASE IN FAVOUR OF GRANTING THEM . FURTHERMORE, SUCH MEASURES MUST BE URGENT, IN THE SENSE THAT IT MUST BE NECESSARY FOR THEM TO BE ADOPTED AND TO HAVE EFFECT EVEN BEFORE THE COURT ' S DECISION ON THE MAIN APPLICATION IN ORDER TO PREVENT THE PARTY WHICH REQUESTS THEM FROM SUFFERING SERIOUS AND IRREPARABLE DAMAGE : FINALLY, THEY MUST BE TEMPORARY IN THE SENSE THAT THEY MUST NOT PREJUDGE THE DECISION ON THE MAIN APPLICATION .
THE CLAIM THAT THE UNDERTAKING SHOULD BE KEPT IN OPERATION
9 THE APPLICANT ASKS FIRST THAT THE COMMISSION BE ORDERED TO TAKE SUCH PROTECTIVE MEASURES AS IT ( THE COMMISSION ) CONSIDERS NECESSARY TO ENSURE THAT THE UNDERTAKING CONTINUES TO OPERATE WHILE THE PROCEEDINGS ON THE MAIN APPLICATION ARE PENDING .
10 AT THE HEARING THE APPLICANT EXPLAINED THAT THE BROAD WORDING GIVEN ABOVE WAS DESIGNED TO OBTAIN AN INCREASE IN ITS QUOTA OR, FAILING THAT, A LOAN FROM THE COMMISSION TO ENABLE IT TO MEET FINANCIAL COMMITMENTS WHICH WOULD BECOME ESPECIALLY ONEROUS IF IT HAD TO COMPLY WITH THE QUOTA ALLOCATED TO IT .
11 WITHOUT ITS BEING NECESSARY TO EXAMINE WHETHER THE MEASURES SOUGHT COULD IN PRACTICE BE TAKEN BY THE COMMISSION, THE APPLICATION MUST BE DISMISSED .
12 THE 40% ABATEMENT RATE APPLIED TO THE REFERENCE PRODUCTION WHICH THE COMMISSION DECIDED TO FIX IN VIEW OF THE MARKET CONDITIONS FOR WIRE ROD IS VALID FOR ALL THE 65 WIRE-ROD PRODUCERS WHICH ARE SUBJECT TO THE SYSTEM OF
PRODUCTION QUOTAS . OF THOSE 65 UNDERTAKINGS, 16 ARE INTEGRATED, WHEREAS 49 ARE SAID TO BE NON-INTEGRATED : 12 OF THOSE 65 UNDERTAKINGS HAVE AN ANNUAL REFERENCE PRODUCTION OF LESS THAN 100 000 TONNES . THESE STATISTICS, ADMITTED BY THE APPLICANT, DEMONSTRATE THAT THE LATTER IS, AS REGARDS THE ABATEMENT RATES IMPOSED AND THE IMPOSSIBILITY OF OBTAINING ANY EXEMPTION, IN THE SAME SITUATION AS MOST OF ITS COMPETITORS . THE APPLICANT UNDERLINED THE FACT THAT IT IS AN INDEPENDENT FAMILY FIRM PRODUCING EXCLUSIVELY WIRE ROD . THAT FACTOR IS, HOWEVER, NOT SUCH AS TO MODIFY ITS COMPETITIVE POSITION IN RELATION TO ITS BUSINESS RIVALS AND DOES NOT MAKE ITS SITUATION AN EXCEPTIONAL ONE IN THE PREVAILING MARKET CONDITIONS AS CREATED BY THE APPLICATION OF THE QUOTA SYSTEM .
13 MOREOVER, IT APPEARS FROM THE INFORMATION SUPPLIED BY THE COMMISSION THAT THE APPLICANT ACTUALLY FOUND ITSELF IN A MORE FAVOURABLE SITUATION, AS REGARDS THE DETERMINATION OF THE DISPUTED QUOTA, THAN THE MAJORITY OF ITS COMPETITORS . INDEED, ON THE BASIS OF ARTICLE 14 OF DECISION NO 2794/80/ECSC, THE APPLICANT HAD PREVIOUSLY OBTAINED INCREASES IN ITS QUOTAS, WHICH WERE TAKEN INTO ACCOUNT IN THE CALCULATION OF ITS REFERENCE PRODUCTION FOR THE PURPOSE OF FIXING THE QUOTA WHICH IT IS NOW DISPUTING .
14 THE RESULT IS - AND THIS FACT IS NOT DISPUTED BY THE APPLICANT - THAT IN SPITE OF A 40% ABATEMENT RATE THE PRODUCTION QUOTA ALLOCATED TO IT REPRESENTS IN EFFECT 70% OF ITS PRODUCTION CAPACITY, WHEREAS FOR MOST OF ITS COMPETITORS THE APPLICATION OF THAT RATE HAS REDUCED THEIR PERMITTED PRODUCTION TO APPROXIMATELY 45% OF THEIR CAPACITY .
15 FINALLY, IT APPEARS FROM THE ACCOUNTANCY DOCUMENTS SUBMITTED BY THE APPLICANT, THE PARTICULARS OF WHICH ARE CONFIRMED BY STATEMENTS MADE AT THE HEARING, THAT THE DIFFICULTIES WHICH IT CLAIMS IT MIGHT HAVE TO FACE DERIVE FROM ITS FINANCIAL STRUCTURE RATHER THAN FROM THE APPLICATION OF A QUOTA, WHICH, AS SUCH, ALMOST CERTAINLY PLACES IT IN A BETTER POSITION THAN MOST OF ITS COMPETITORS .
16 HENCE THE APPLICANT HAS FAILED TO ESTABLISH THAT THE DIFFICULTIES WHICH IT DESCRIBES - EVEN IF PROVED TO EXIST - AND THEIR POSSIBLE REPERCUSSIONS ARE CAUSED BY THE QUOTA WHICH WAS ALLOCATED TO IT .
17 THAT BEING SO, THE URGENT NECESSITY WHICH MUST BE SHOWN TO EXIST IF INTERIM MEASURES ARE TO BE GRANTED HAS NOT BEEN ESTABLISHED WITH REGARD TO THE SITUATION CREATED BY THE FIXING OF THE DISPUTED QUOTA .
THE CLAIM FOR AN EXPERT OPINION
18 IT FOLLOWS FROM THE ABOVE CONSIDERATIONS, AND FOR THE SAME REASONS AS THOSE WHICH OBLIGE THE COURT TO DISMISS THE FIRST HEAD OF CLAIM, THAT THERE ARE NO GROUNDS FOR ALLOWING THIS SECOND HEAD .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT,
BY WAY OF INTERIM DECISION,
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION IS DISMISSED .
2 . THE COSTS ARE RESERVED .