Order of the President of the Court of 20 October 1977. - Nippon Seiko KK and others v Council and Commission of the European Communities. - Case 119-77 R.



European Court reports 1977 Page 01867



Parties

Grounds

Operative part



Parties

IN CASE 119/77 R

( 1 ) NIPPON SEIKO K.K ., TOKYO ,

( 2 ) NSK BEARINGS EUROPE LTD ., LONDON ,

( 3 ) NSK KUGELLAGER GMBH , RATINGEN ,

( 4 ) NSK FRANCE S.A ., CLICHY ,

REPRESENTED BY JEREMY LEVER , QUEEN ' S COUNSEL , OF GRAY ' S INN , DAVID VAUGHAN , BARRISTER , OF THE INNER TEMPLE , LONDON , AND MESSRS COWARD CHANCE , SOLICITORS , LONDON , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . C . WOLTER , 2 , RUE GOETHE ,

APPLICANTS

V COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER BRUCKNER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR VAN DEN HOUTEN , EUROPEAN INVESTMENT BANK , PLACE DE METZ ,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , ROBERT CASPER FISCHER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , COMMISSION OF THE EUROPEAN COMMUNITIES , JEAN MONNET BUILDING ,

DEFENDANTS ,

Grounds

1 THE COUNCIL AND THE COMMISSION HAVE NOT CONTESTED THAT THE COMPETENT BRITISH , FRENCH AND GERMAN CUSTOMS AUTHORITIES ARE INSISTING THAT THE OUTSTANDING PAYMENTS REQUIRED UNDER ARTICLE 3 OF REGULATION NO 1778/77 SHALL BE MADE FORTHWITH . NOR HAVE THEY CONTESTED THAT THE SUBSIDIARIES WILL INCUR THE ADDITIONAL CHARGES REFERRED TO BY THE APPLICANTS IN THE EVENT OF THE DISMISSAL OF THE LATTER ' S APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

2 IT HAS NOT BEEN POSSIBLE TO ESTABLISH CONCLUSIVELY WITHIN THE CONTEXT OF THE PRESENT PROCEEDINGS , WHETHER , IN THE EVENT OF THE APPLICANTS ' BEING SUCCESSFUL IN THE MAIN ACTION , THIS EXPENDITURE WOULD BE WHOLLY RECOUPED .

3 HAVING REGARD TO THE PROBABLE DURATION OF THE PROCEDURE IN THE MAIN ACTION , CHARGES AT THE RATE QUOTED BY THE APPLICANTS CANNOT BE REGARDED AS NEGLIGIBLE .

4 ON THE OTHER HAND THE COUNCIL AND THE COMMISSION HAVE NOT BEEN ABLE TO DEMONSTRATE THAT THE ADOPTION OF THE INTERIM MEASURES APPLIED FOR WOULD CAUSE APPRECIABLE DETRIMENT TO THE EUROPEAN ECONOMIC COMMUNITY IF THE SUBSIDIARIES WERE TO MAINTAIN THE EXISTING SECURITY IN THE OUTSTANDING SUMS TO BE PAID IN ACCORDANCE WITH ARTICLE 3 OF REGULATION NO 1778/77 AND IF THE APPLICANTS WERE TO BE UNSUCCESSFUL IN THE MAIN ACTION .

5 THE APPLICANTS HAVE THUS SUBSTANTIATED THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE SUSPENSION OF THE APPLICATION TO THE APPLICANTS OF THE ABOVEMENTIONED ARTICLE 3 ( ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE ) AS FAR AS CONCERNS THE SUMS OWED BY THE SUBSIDIARIES UNDER ARTICLE 3 BUT NOT YET PAID BY THEM .

6 TO THAT EXTENT THEREFORE THE APPLICATION TO THE APPLICANTS OF THE SAID ARTICLE MUST BE SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NSK AND OTHERS V COUNCIL AND COMMISSION ( CASE 119/77 ) ON CONDITION THAT AND FOR SO LONG AS THE SUBSIDIARIES CONTINUE TO PROVIDE SECURITY FOR THE PERFORMANCE OF THEIR OBLIGATION IN THE OUTSTANDING AMOUNTS WHICH THEY ARE REQUIRED TO PAY IN PURSUANCE OF ARTICLE 3 OF REGULATION NO 1778/77 .

7 THE DECISION WITH REGARD TO COSTS SHOULD BE RESERVED FOR THE FINAL JUDGMENT IN CASE 119/77 .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT ,

AS AN INTERLOCUTORY DECISION , HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION TO NIPPON SEIKO K.K ., NSK BEARINGS EUROPE LTD ., NSK KUGELLAGER GMBH AND NSK FRANCE S.A . OF ARTICLE 3 OF COUNCIL REGULATION ( EEC ) NO 1778/77 IS SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NSK AND OTHERS V COUNCIL AND COMMISSION ( CASE 119/77 ) AS FAR AS CONCERNS THE SUMS OWED BY THE SUBSIDIARIES UNDER THE SAID ARTICLE BUT NOT YET PAID BY THEM , ON CONDITION THAT AND FOR SO LONG AS THE SUBSIDIARIES CONTINUE TO PROVIDE SECURITY FOR THE PERFORMANCE OF THEIR OBLIGATION IN THE SAID AMOUNTS ;

2 . COSTS ARE RESERVED FOR THE FINAL JUDGMENT IN THE CASE OF NSK AND OTHERS V COUNCIL AND COMMISSION ( CASE 119/77 ).