61985CO0392_EN
Parties
Subject of the case
Grounds
Operative part
Parties
IN CASE 392/85 R
FINSIDER, A COMPANY INCORPORATED UNDER ITALIAN LAW AND HAVING ITS REGISTERED OFFICE AT 122 VIALE CASTRO PRETORIO, ROME, REPRESENTED BY SERGIO M . CARBONE, OF THE GENOA BAR, AND NICO SCHAEFFER, OF THE LUXEMBOURG BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE LATTER ' S CHAMBERS AT 12 AVENUE DE LA PORTE-NEUVE,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, GIULIANO MARENCO, ACTING AS AGENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, A MEMBER OF ITS LEGAL DEPARTMENT, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
Subject of the case
APPLICATION FOR THE SUSPENSION OF THE OPERATION OF COMMISSION DECISION NO C ( 85 ) 1603/9 OF 9 OCTOBER 1985 RELATING TO A FINE IMPOSED ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY,
Grounds
1 BY APPLICATION RECEIVED AT THE COURT REGISTRY ON 2 DECEMBER 1985, FINSIDER SPA BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 33 AND ARTICLE 36 OF THE ECSC TREATY IN WHICH IT SOUGHT A DECLARATION THAT THE COMMISSION ' S DECISION OF 9 OCTOBER 1985 IS VOID . BY THAT DECISION THE COMMISSION IMPOSED A FINE OF 2 165 350 ECU ON THE APPLICANT ON THE GROUND THAT IN THE SECOND QUARTER OF 1983 IT INFRINGED COMMISSION DECISION NO 1696/82/ECSC ON THE EXTENSION OF THE SYSTEM OF MONITORING AND PRODUCTION QUOTAS FOR CERTAIN PRODUCTS OF UNDERTAKINGS IN THE STEEL INDUSTRY ( OFFICIAL JOURNAL 1982, L 191, P . 1 ) BY EXCEEDING THE PRODUCTION QUOTAS ALLOCATED TO IT IN RESPECT OF PRODUCTS IN CATEGORY IA BY 27 613 TONNES AND THE PART OF THOSE QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET BY 37 785 TONNES . ARTICLE 2 OF THE DECISION OF 9 OCTOBER 1985 STIPULATES THAT THE FINE MUST BE PAID WITHIN TWO MONTHS OF THE NOTIFICATION OF THE DECISION AND THAT THE AMOUNT OF THE FINE WILL BE INCREASED, IN THE EVENT OF DELAY, BY 1% FOR EACH MONTH COMMENCED .
2 IN THE LETTER DATED 14 OCTOBER 1985 BY WHICH THE COMMISSION NOTIFIED ITS DECISION OF 9 OCTOBER 1985 TO THE APPLICANT, THE COMMISSION EXPLICITLY STATED THAT IF FINSIDER SPA WERE TO BRING AN ACTION BEFORE THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES, THE COMMISSION WOULD NOT TAKE ANY MEASURE TO RECOVER THE FINE WHILST THE PROCEEDINGS WERE PENDING BEFORE THE COURT, PROVIDED THAT THE APPLICANT SUPPLIED THE COMMISSION, NO LATER THAN THE FINAL DATE FOR THE PAYMENT OF THE FINE, WITH A BANK GUARANTEE COVERING THE AMOUNT OWED, NAMELY THE PRINCIPAL SUM PLUS INTEREST .
3 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 13 FEBRUARY 1986, THE APPLICANT SEEKS, UNDER THE SECOND PARAGRAPH OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE, THE SUSPENSION OF THE OPERATION OF THE COMMISSION ' S DECISION OF 9 OCTOBER 1985 UNTIL SUCH TIME AS THE COURT HAS DECIDED ON THE MAIN APPLICATION . IN THE ALTERNATIVE, IT SEEKS PARTIAL SUSPENSION OF THE OPERATION OF THE SAID COMMISSION DECISION TO THE EXTENT OF AT LEAST HALF THE AMOUNT OF THE FINE IMPOSED . IN THE FURTHER ALTERNATIVE, THE APPLICANT CLAIMS THAT THE OPERATION OF THE DECISION SHOULD BE COMPLETELY SUSPENDED, PROVIDED THAT THE APPLICANT SUPPLIES A BANK GUARANTEE TO COVER THE PROPORTION OF THE FINE IN RESPECT OF WHICH THE APPLICATION FOR SUSPENSION WOULD OTHERWISE BE DISMISSED .
4 THE DEFENDANT SUBMITTED WRITTEN OBSERVATIONS ON 23 FEBRUARY 1986 . SINCE THE PARTIES '
WRITTEN OBSERVATIONS CONTAIN ALL THE INFORMATION NEEDED TO DECIDE ON THE APPLICATION FOR INTERIM MEASURES AND SINCE THERE IS A WELL-ESTABLISHED BODY OF PREVIOUS DECISIONS OF THE COURT ON SUCH APPLICATIONS, IT HAS NOT BEEN CONSIDERED NECESSARY TO HEAR THE PARTIES '
ORAL ARGUMENTS .
5 BEFORE CONSIDERING THE MERITS OF THIS APPLICATION IT IS WORTH BRIEFLY SETTING OUT THE STAGES PRECEDING THE ADOPTION OF THE AFOREMENTIONED COMMISSION DECISION OF 9 OCTOBER 1985 .
6 BY LETTER OF 28 FEBRUARY 1983 THE COMMISSION NOTIFIED THE APPLICANT, PURSUANT TO THE PROVISIONS - IN PARTICULAR ARTICLE 5 - OF COMMISSION DECISION NO 1696/82, OF ITS PRODUCTION QUOTAS FOR THE SECOND QUARTER AND OF THE PART OF THOSE QUOTAS WHICH COULD BE DELIVERED ON THE COMMON MARKET IN THAT PERIOD .
7 ON THE BASIS OF DECLARATIONS MADE BY THE APPLICANT, THE COMMISSION FOUND THE QUOTAS TO HAVE BEEN EXCEEDED BY THE AMOUNTS MENTIONED IN PARAGRAPH 1 OF THIS ORDER, WHEREUPON THE APPLICANT WAS NOTIFIED OF THIS STATE OF AFFAIRS BY LETTER OF 24 JULY 1984 . IN THE LIGHT OF THE SUBSEQUENT CORRESPONDENCE BETWEEN THE APPLICANT AND THE COMMISSION AND THE MEETING OF 4 DECEMBER 1984 BETWEEN REPRESENTATIVES OF THE APPLICANT AND REPRESENTATIVES OF THE COMPETENT COMMISSION DEPARTMENTS IT APPEARS THAT THE APPLICANT ACCEPTED THAT THE FIGURES MENTIONED BY THE COMMISSION WERE CORRECT BUT CONSIDERED THAT THEY IN NO WAY SIGNIFIED THAT THE QUOTAS ALLOCATED TO IT BY THE COMMISSION HAD BEEN EXCEEDED . THE APPLICANT MAINTAINED THAT THE SUPPOSED EXCESS WAS IN FACT ENTIRELY ABSORBED IN THE STOCKS DULY REPORTED TO THE COMMISSION UNDER ARTICLE 2 ( 1 ) OF COMMISSION DECISION NO 1696/82 . THE COMMISSION REJECTED THOSE EXPLANATIONS AND CLOSED THE PROCEDURE BY ADOPTING THE AFOREMENTIONED DECISION OF 9 OCTOBER 1985 .
8 ACCORDING TO ARTICLE 39 OF THE ECSC TREATY, ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY, HOWEVER, IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED AND PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .
9 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE STIPULATES, AS REGARDS THE ADOPTION OF INTERIM MEASURES OF THE TYPE REQUESTED, THAT APPLICATIONS FOR INTERIM MEASURES MUST SPECIFY THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND ALSO THE CIRCUMSTANCES GIVING RISE TO URGENCY .
10 IT FOLLOWS FROM A CONSISTENT LINE OF DECISIONS OF THE COURT THAT THE URGENCY OF AN APPLICATION FOR INTERIM MEASURES, AS REQUIRED BY ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, IS TO BE ASSESSED IN THE LIGHT OF THE NECESSITY TO ADOPT SUCH MEASURES IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THEM .
11 IN THAT CONNECTION, THE APPLICANT ARGUES THAT THE IMMEDIATE PAYMENT OF A FINE OF THE MAGNITUDE IMPOSED ON IT BY THE COMMISSION, NAMELY 2 165 350 ECU, WOULD ADVERSELY AFFECT ITS FINANCIAL LIQUIDITY : IT IS WELL KNOWN THAT THE APPLICANT HAS BEEN MAKING LOSSES FOR SEVERAL FINANCIAL YEARS AND ITS BANK BORROWING HAS ATTAINED SUCH LEVELS THAT IT CAN NO LONGER BE INCREASED FURTHER . IT FURTHER CONTENDS THAT EVEN THE PRODUCTION OF A BANK GUARANTEE FOR AN AMOUNT EQUAL TO THE FINE IMPOSED ON IT WOULD BRING ABOUT A CORRESPONDING RESTRICTION IN THE BANK CREDIT LINES TO WHICH IT HAS ACCESS, THUS DEPRIVING IT OF THE RESOURCES REQUIRED BY ITS PRODUCTIVE ACTIVITIES AND HENCE JEOPARDIZING OR THREATENING ITS RETURN TO FINANCIAL EQUILIBRIUM . HAVING REGARD TO THE DISASTROUS FINANCIAL CONSEQUENCES WHICH WOULD ENSUE IF THE COMMISSION ' S DECISION OF 9 OCTOBER 1985 WERE IMPLEMENTED AND IN VIEW OF THE NON-SUSPENSORY NATURE OF THE ACTION FOR ANNULMENT BROUGHT BY THE APPLICANT AGAINST THAT DECISION, THE APPLICANT CONSIDERS THAT IT IS NECESSARY TO SUSPEND THE OPERATION OF THE DECISION IN ORDER TO PREVENT IT FROM SUFFERING SERIOUS AND IRREPARABLE DAMAGE .
12 IN THE WRITTEN OBSERVATIONS WHICH IT HAS SUBMITTED IN THESE INTERLOCUTORY PROCEEDINGS THE COMMISSION EXPRESSES THE VIEW THAT THE APPLICANT HAS FAILED TO SHOW THAT THE IMPLEMENTATION OF THE COMMISSION ' S DECISION OF 9 OCTOBER 1985 IS LIABLE TO CAUSE IT SERIOUS AND IRREPARABLE HARM . IN ACCORDANCE WITH ITS GENERAL PRACTICE THE COMMISSION NOTIFIED THE APPLICANT THAT IT WOULD NOT TAKE STEPS TO RECOVER THE PAYMENT OF THE FINE FORTHWITH IF THE MATTER WERE REFERRED TO THE COURT, PROVIDED THAT THE UNDERTAKING CONCERNED GAVE, NO LATER THAN THE DATE OF EXPIRY OF THE PERIOD FOR PAYMENT, A BANK GUARANTEE AS SECURITY FOR THE PAYMENT OF THE FINE AND ANY INTEREST DUE . IT THEREFORE CONSIDERS THAT THE APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE COMMISSION ' S DECISION IS PURPOSELESS, GIVEN THAT THE COMMISSION HAS ALREADY GRANTED THE APPLICANT THAT WHICH IT IS SEEKING FROM THE COURT .
13 AS REGARDS THE APPLICANT ' S REQUEST THAT IT ALSO BE EXEMPTED FROM HAVING TO PROVIDE A BANK GUARANTEE ON THE GROUND THAT THAT WOULD RESULT IN A CORRESPONDING RESTRICTION OF THE BANK CREDIT LINES AVAILABLE TO IT, THE COMMISSION CONTENDS THAT THE REQUIREMENT TO PROVIDE A BANK GUARANTEE OF AN AMOUNT CORRESPONDING TO THE FINE IMPOSED IS THE MINIMUM REQUIRED BY THE COMMUNITY PUBLIC INTEREST . TO GRANT EXEMPTION FROM THAT REQUIREMENT FOR SUCH A REASON WOULD DESTROY THE BALANCE STRUCK BY THAT GUARANTEE BETWEEN THE COMMUNITY PUBLIC INTEREST AND THE INDIVIDUAL INTERESTS OF THE UNDERTAKING CONCERNED, WHICH IN CONTESTING THE LEGALITY OF THE FINE IS SEEKING TO PROTECT ITS PRIVATE INTERESTS ALONE ; SUCH AN EXEMPTION WOULD, IN ANY EVENT, BE INCOMPATIBLE WITH ARTICLE 86 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT, WHICH PROVIDES THAT AN ORDER SUSPENDING THE OPERATION OF A DECISION MAY BE MADE CONDITIONAL ON THE LODGING BY THE APPLICANT OF SECURITY . IT ADDS THAT IT IS DIFFICULT TO IMAGINE WHAT PRACTICAL IMPACT THE OBLIGATION OF PROVIDING A BANK GUARANTEE IN RESPECT OF THE PAYMENT OF A FINE OF JUST OVER LIT 3 000 MILLION COULD HAVE ON AN UNDERTAKING WHOSE TURNOVER IN 1984 AMOUNTED TO LIT 12 525 000 MILLION .
14 IT APPEARS FROM THE DOCUMENTS BEFORE THE COURT THAT ALTHOUGH THE APPLICANT HAS NOT PAID THE FINE IT HAS SO FAR FAILED TO PROVIDE A BANK GUARANTEE ACCEPTABLE TO THE COMMISSION AS SECURITY FOR THE PAYMENT OF THE FINE AND ANY INTEREST DUE .
15 ALTHOUGH THE COMMISSION CONTENDS THAT THE COURT SHOULD DISMISS THE APPLICATION, IT IS CLEAR FROM ITS WRITTEN SUBMISSIONS THAT IT DOES NOT OBJECT TO THE ORDER FOR SUSPENSION BEING GRANTED, PROVIDED THAT THE APPLICANT PRODUCES A BANK GUARANTEE FOR PAYMENT OF THE FINE AND ANY INTEREST DUE .
16 THE REQUIRING OF SUCH A GUARANTEE REFLECTS A GENERAL POLICY ADOPTED BY THE COMMISSION IN 1981 AND HAS BEEN HELD TO BE JUSTIFIED, SAVE IN EXCEPTIONAL CIRCUMSTANCES, BY THE PRESIDENT OF THE COURT, IN PARTICULAR IN THE PRESIDENT ' S ORDERS OF 11 NOVEMBER 1982 ( CASE 263/82 R KLOCKNER-WERKE V COMMISSION ( 1982 ) ECR 3995 ) AND OF 20 APRIL 1983 ( CASE 348/82 R IRO V COMMISSION ( 1983 ) ECR 1237 ).
17 THE APPLICANT SEEKS TO OBTAIN THE SUSPENSION APPLIED FOR WITHOUT HAVING TO FULFIL THAT CONDITION . IT CONTENDS IN SUBSTANCE THAT REQUIRING IT TO FULFIL THAT CONDITION WOULD, LIKE IMMEDIATE ENFORCEMENT, CAUSE IT SERIOUS AND IRREPARABLE DAMAGE FOR THE REASONS SET OUT IN PARAGRAPH 11 OF THIS ORDER .
18 IN THIS CASE, NONE OF THE ARGUMENTS PUT FORWARD BY THE APPLICANT IS SUCH AS TO ESTABLISH EXCEPTIONAL CIRCUMSTANCES OF THE KIND REFERRED TO BY THE PRESIDENT OF THE COURT IN HIS AFORESAID ORDER IN KLOCKNER-WERKE V COMMISSION AND THEREFORE JUSTIFY AN EXCEPTION TO THE CONDITION WHICH, IN THE COMMISSION ' S SUBMISSION, THE SUSPENSION OF THE OPERATION OF A DECISION IMPOSING A FINE SHOULD BE SUBJECT . THE CRITERIA CONSTITUTING EXCEPTIONAL CIRCUMSTANCES WHICH WERE SET OUT BY THE PRESIDENT OF THE COURT IN HIS ORDER OF 15 MARCH 1983 ( CASE 234/82 R FERRIERE DI ROE VOLCIANO SPA V COMMISSION ( 1983 ) ECR 725 ) DO NOT APPLY HERE ; UNLIKE FERRIERE DI ROE VOLCIANO SPA, FINSIDER SPA IS NOT A SMALL UNDERTAKING WORKING AS A SUB-CONTRACTOR AND HAVING DIFFICULTIES IN OBTAINING A BANK GUARANTEE . ON THE CONTRARY, IT IS A LARGE PRODUCTION UNDERTAKING WHICH HAS NO DIFFICULTIES IN OBTAINING SUCH A GUARANTEE .
19 IT THEREFORE APPEARS THAT THE REQUIREMENT TO LODGE A BANK GUARANTEE AS SECURITY FOR PAYMENT OF THE FINE AND ANY INTEREST DUE IS JUSTIFIED . THE LODGING OF THAT SECURITY CANNOT CAUSE THE APPLICANT SERIOUS AND IRREPARABLE DAMAGE EITHER AS A RESULT OF THE EXPENSE WHICH IT INVOLVES OR AS A RESULT OF THE EFFECTS WHICH IT MAY HAVE ON THE APPLICANT ' S FINANCIAL POSITION .
Operative part
ON THOSE GROUNDS,
THE PRESIDENT,
BY WAY OF INTERIM DECISION,
HEREBY ORDERS AS FOLLOWS :
( 1 ) THE OPERATION OF ARTICLE 2 OF THE COMMISSION ' S DECISION OF 9 OCTOBER 1985 SHALL BE SUSPENDED, PROVIDED THAT THE APPLICANT FIRST LODGES A BANK GUARANTEE ACCEPTED BY THE COMMISSION AS SECURITY FOR THE PAYMENT OF THE FINE IMPOSED BY THE CONTESTED DECISION AND FOR ANY INTEREST DUE .
( 2)THE APPLICANT IS GRANTED A MAXIMUM PERIOD OF 15 DAYS STARTING FROM THE NOTIFICATION OF THIS ORDER IN WHICH TO PROVIDE THE COMMISSION WITH THE SAID GUARANTEE . DURING THAT PERIOD THE COMMISSION SHALL NOT TAKE ANY MEASURE TO ENFORCE ITS DECISION .
( 3)THE COSTS ARE RESERVED .