Order of the President of the Court of 9 April 1986. - J. Cauet and B. Joliot v Commission of the European Communities. - Steel - Sale of a rolling mill - Transfer of reference quantities and the corresponding quotas. - Case 48/86 R.



European Court reports 1986 Page 01237



Parties

Subject of the case

Grounds

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - CONDITIONS FOR GRANTING - MEASURES NOT TO PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE

( ECSC TREATY , ART . 39 ; RULES OF PROCEDURE , ART . 83 ( 2 ))

Parties

IN CASE 48/86 R

J . CAUET AND B . JOLIOT , IN THEIR CAPACITY AS LIQUIDATORS OF THE ASSETS OF COCKERILL-DRC SA , OF 4 RUE DU MARECHAL-JOFFRE , BP 56 , 59440 AVESNES-SUR-HELPE , FRANCE , REPRESENTED BY M . WAELBROEK AND A . VANDENCASTEELE , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , M . VAN ACKERE , 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 THE COMMISSION ' S DECISION OF 13 JANUARY 1986 AUTHORIZING THE TRANSFER TO THE SACILOR UNDERTAKING , AS FROM 1 JANUARY 1985 , OF COCKERILL-DRC ' S ANNUAL REFERENCE PRODUCTION AND QUANTITIES AND THEREFORE AT THE SAME TIME REDUCING TO ZERO THE REFERENCE PRODUCTION AND QUANTITIES ALLOCATED TO COCKERILL-DRC ,

Grounds

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 19 FEBRUARY 1986 , J . CAUET AND B . JOLIOT , IN THEIR CAPACITY AS LIQUIDATORS OF THE ASSETS OF COCKERILL-DRC , TO WHICH THEY WERE APPOINTED BY A JUDGMENT OF 30 JUNE 1983 OF THE TRIBUNAL DE GRANDE INSTANCE , AVESNES , BROUGHT PROCEEDINGS UNDER THE SECOND PARAGRAPH OF ARTICLE 33 OF THE ECSC TREATY FOR THE ANNULMENT OF THE COMMISSION ' S DECISION OF 13 JANUARY 1986 . BY THAT DECISION , ADOPTED PURSUANT TO ARTICLE 15 OF COMMISSION DECISION NO 234/84/ECSC OF 31 JANUARY 1984 ON THE EXTENSION OF THE SYSTEM OF MONITORING AND PRODUCTION QUOTAS FOR CERTAIN PRODUCTS OF UNDERTAKINGS IN THE STEEL INDUSTRY ( OFFICIAL JOURNAL 1984 , L 29 , P . 1 ), THE COMMISSION ORDERED THE TRANSFER OF COCKERILL-DRC ' S ANNUAL REFERENCE PRODUCTION AND QUANTITIES TO SACILOR AND THEREFORE REDUCED COCKERILL-DRC ' S ANNUAL REFERENCE PRODUCTION AND QUANTITIES FROM 79 952 TONNES AND 74 976 TONNES RESPECTIVELY TO ZERO , AS FROM 1 JANUARY 1985 .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON THE SAME DAY THE APPLICANTS REQUESTED , PURSUANT TO THE SECOND PARAGRAPH OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 33 OF THE PROTOCOL ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN COAL AND STEEL COMMUNITY , THE SUSPENSION OF THE OPERATION OF THE COMMISSION ' S DECISION OF 13 JANUARY 1986 UNTIL THE COURT DELIVERED ITS JUDGMENT IN THE MAIN PROCEEDINGS .

3 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 11 MARCH 1986 . THE PARTIES PRESENTED ORAL ARGUMENT ON 19 MARCH 1986 .

4 IT MUST FIRST BE STATED THAT , HAVING DISCOVERED THAT THE LEGAL BASIS ON WHICH IT HAD TAKEN ITS DECISION OF 13 JANUARY 1986 , AGAINST WHICH THE ACTION FOR ANNULMENT AND THIS APPLICATION FOR INTERIM MEASURES ARE DIRECTED , WAS INCORRECT , ON 10 MARCH 1986 THE COMMISSION WITHDREW THAT DECISION AND REPLACED IT BY A NEW DECISION ADOPTED PURSUANT TO ARTICLE 9 ( 4 ) OF DECISION NO 234/84 RATHER THAN ARTICLE 15 ( 1 ) OF THAT DECISION . THE LEGAL BASIS OF THE DECISION WAS CHANGED BECAUSE THE COMMISSION HAD BECOME AWARE THAT THERE HAD BEEN A CHANGE IN THE OWNERSHIP OF COCKERILL-DRC ' S PLANT , AN OCCURRENCE WHICH UNDER ARTICLE 9 ( 4 ) HAS AUTOMATIC CONSEQUENCES , NOT A REQUEST BY THE LIQUIDATOR OF COCKERILL-DRC FOR AUTHORIZATION UNDER ARTICLE 15 ( 1 ) TO TRANSFER THAT UNDERTAKING ' S REFERENCE PRODUCTION AND QUANTITIES TO SACILOR . THE NEW DECISION CONCERNS ESSENTIALLY THE SAME SUBJECT-MATTER AS THE DECISION OF 13 JANUARY 1986 , SINCE IT REFUSES TO AUTHORIZE THE TRANSFER OF COCKERILL-DRC ' S REFERENCE PRODUCTION AND QUANTITIES TO COCKERILL-SAMBRE BUT AUTHORIZES THEIR TRANSFER TO SACILOR , PURSUANT TO ARTICLE 9 ( 4 ), AS FROM THE FOURTH QUARTER OF 1985 . THE APPLICANTS AND THE DEFENDANT ARE THEREFORE AGREED THAT THE ACTION FOR ANNULMENT AND THE APPLICATION FOR INTERIM MEASURES MAY BE REGARDED AS VALIDLY BROUGHT AGAINST THE DECISION OF 10 MARCH 1986 AS WELL .

5 BEFORE CONSIDERING THE MERITS OF THE APPLICATION FOR INTERIM MEASURES , IT MAY BE HELPFUL TO SUMMARIZE THE EVENTS WHICH PRECEDED THE ADOPTION BY THE COMMISSION OF ITS DECISION OF 10 MARCH 1986 .

6 BY TWO LETTERS OF 19 SEPTEMBER 1983 AND 23 MARCH 1984 COCKERILL-SAMBRE INFORMED THE COMMISSION THAT BY AN ORDER DATED 30 JUNE 1983 THE TRIBUNAL DE GRANDE INSTANCE , AVESNES , HAD PLACED ITS FRENCH SUBSIDIARY , COCKERILL-DRC , IN RECEIVERSHIP AND HAD AUTHORIZED THE CONTINUATION OF ITS OPERATIONS UNDER THE SUPERVISION OF THE TRIBUNAL . COCKERILL-SAMBRE STATED THAT IT NO LONGER HAD ANY CONTROL OVER THE ACTIVITIES OF THAT SUBSIDIARY , A MANUFACTURER OF CATEGORY VI STEEL PRODUCTS SUBJECT TO QUOTAS , AND THAT IT COULD NO LONGER BE HELD RESPONSIBLE SHOULD THE SUBSIDIARY EXCEED ITS QUOTAS OR INCUR FINES .

7 BY A DECISION OF 24 OCTOBER 1984 PURSUANT TO ARTICLE 13 ( 2 ) OF DECISION NO 234/84 THE COMMISSION ASSIGNED TO COCKERILL-DRC ANNUAL REFERENCE PRODUCTION AND QUANTITES OF 79 952 TONNES AND 74 976 TONNES RESPECTIVELY , WITH EFFECT FROM 1 JULY 1983 , AND ALLOCATED QUOTAS TO IT ON THAT BASIS UNTIL THE END OF 1984 .

8 IT WOULD APPEAR FROM THE DOCUMENTS BEFORE THE COURT , ALTHOUGH IT IS NOT POSSIBLE TO BE CERTAIN OF THE EXACT DATE , THAT COCKERILL-DRC CLOSED ITS PLANT ON 26 DECEMBER 1984 . NEVERTHELESS , THE COMMISSION ALLOCATED QUOTAS TO IT FOR THE FIRST TWO QUARTERS OF 1985 ; THOSE QUOTAS WERE USED ONLY IN PART .

9 ON 7 FEBRUARY 1985 THE COMMISSION WAS INFORMED BY THE FRENCH MINISTER CONCERNED THAT , IN ACCORDANCE WITH AGREEMENTS BETWEEN COCKERILL-SAMBRE AND THE FRENCH GOVERNMENT , SACILOR WAS TO TAKE OVER COCKERILL-DRC ' S REFERENCE PRODUCTION AND QUANTITIES , AND THAT A REQUEST TO THAT EFFECT WOULD BE SENT TO THE COMMISSION . BY LETTER OF 25 FEBRUARY 1985 SACILOR ASKED THE COMMISSION TO AUTHORIZE , PURSUANT TO ARTICLE 15 ( 1 ) OF DECISION NO 234/84 , THE TRANSFER AGREED UPON WITH THE PARENT COMPANY COCKERILL-SAMBRE OF COCKERILL-DRC ' S REFERENCE QUANTITIES AND THEREFORE TO INCREASE ITS OWN CATEGORY VI REFERENCE QUANTITIES ACCORDINGLY AS FROM THE FIRST QUARTER OF 1985 .

10 BY LETTER OF 25 JUNE 1985 ONE OF THE TWO LIQUIDATORS OF COCKERILL-DRC APPLIED TO THE COMMISSION FOR THE TRANSFER OF COCKERILL-DRC ' S REFERENCE QUANTITIES AND THE CORRESPONDING QUOTAS TO COCKERILL-SAMBRE , PURSUANT TO ARTICLE 15 ( 1 ) OF DECISION NO 234/84 . THAT LETTER WAS CONFIRMED ON 28 JUNE 1985 IN THE SAME TERMS BY COCKERILL-SAMBRE .

11 SUBSEQUENTLY IT APPEARS THAT THE SAME LIQUIDATOR WROTE TWO LETTERS AT ALMOST THE SAME TIME . THE FIRST LETTER WAS SENT TO COCKERILL-SAMBRE ON 16 JULY 1985 AND INFORMED IT OF HIS INTENTION TO DRAW UP AN AGREEMENT TRANSFERRING TO COCKERILL-SAMBRE THE QUOTAS FOR THE LAST THREE QUARTERS OF 1985 , FOR A CONSIDERATION OF FF 1.5 MILLION . THE SECOND LETTER , SENT TO SACILOR ON 18 JULY 1985 , ACKNOWLEDGED SACILOR ' S OFFER TO PURCHASE THE WHOLE ROLLING MILL FOR FF 1.5 MILLION AND STATED THAT SACILOR WOULD HAVE THE FIRST RIGHT TO PURCHASE AT THAT PRICE .

12 ON 30 JULY 1985 SACILOR INFORMED THE COMMISSION BY TELEX THAT IT HAD BECOME THE OWNER OF COCKERILL-DRC ' S PLANT AND THEREFORE ASKED THE COMMISSION TO ALLOCATE TO IT ALL COCKERILL-DRC ' S REFERENCE QUANTITIES . BY LETTER OF 29 AUGUST 1985 COCKERILL-SAMBRE REPEATED THE SUBSTANCE OF ITS LETTER TO THE COMMISSION OF 28 JUNE .

13 ON THE BASIS OF THE INFORMATION AT ITS DISPOSAL THE COMMISSION CONCLUDED THAT THE LIQUIDATOR OF COCKERILL-DRC WAS IN THE PROCESS OF SELLING THE PLANT AND THE REFERENCE QUANTITIES ASSOCIATED WITH THE PLANT SEPARATELY TO TWO DIFFERENT COMPANIES , THE PLANT TO SACILOR AND THE REFERENCE QUANTITIES TO COCKERILL-SAMBRE , ALTHOUGH SUCH ACTION WAS EXPRESSLY FORBIDDEN BY ARTICLE 9 ( 4 ) OF DECISION NO 234/84 . BY LETTERS DATED 27 SEPTEMBER 1985 IT THEREFORE INFORMED THE LIQUIDATOR OF COCKERILL-DRC AND COCKERILL-SAMBRE THAT IT COULD NOT , FOR THE TIME BEING , GIVE EFFECT TO THEIR REQUESTS FOR THE TRANSFER OF COCKERILL-DRC ' S REFERENCE QUANTITIES TO COCKERILL-SAMBRE , SINCE IT APPEARED THAT THE PLANT HAD BEEN PURCHASED BY SACILOR . IN A FURTHER LETTER ALSO DATED 27 SEPTEMBER 1985 IT INFORMED SACILOR OF ITS INTENTION TO TRANSFER THE REFERENCE QUANTITIES TO SACILOR PURSUANT TO ARTICLE 9 ( 4 ) OF DECISION NO 234/84 UPON THE SUBMISSION BY SACILOR OF PROOF THAT IT HAD PURCHASED COCKERILL-DRC ' S PLANT AND THAT OWNERSHIP HAD PASSED TO IT .

14 ON 22 OCTOBER 1985 , WITH THE AUTHORIZATION OF THE TRIBUNAL DE GRANDE INSTANCE , AVESNES , THE LIQUIDATORS OF COCKERILL-DRC SOLD THE ROLLING MILL AND VARIOUS OTHER PARTS OF ITS PLANT TO DORNINGER , A GERMAN COMPANY , FOR THE SUM OF FF 7 900 000 . DORNINGER RESOLD THE ROLLING MILL TO SACILOR ALMOST IMMEDIATELY FOR THE SUM OF FF 10 300 000 . SACILOR THEREUPON MADE A FURTHER REQUEST TO THE COMMISSION , ON 13 NOVEMBER 1985 , FOR THE TRANSFER TO IT OF COCKERILL-DRC ' S REFERENCE QUANTITIES ; AS PROOF OF ITS PURCHASE OF THE ROLLING MILL , IT ATTACHED TO ITS REQUEST A COPY OF THE INVOICE MADE OUT BY DORNINGER IN SACILOR ' S NAME , WHICH STATED THAT PAYMENT HAD BEEN MADE ON 13 NOVEMBER 1985 . THE REQUEST ALSO CONTAINED AN UNDERTAKING ON THE PART OF SACILOR THAT IT WOULD NOT USE THE MILL FOR THE PURPOSE OF STEEL PRODUCTION AND WOULD DISMANTLE IT SHORTLY .

15 IN VIEW OF THAT CLARIFICATION , ON 13 JANUARY 1986 THE COMMISSION ADDRESSED AN INDIVIDUAL DECISION TO COCKERILL-DRC , PURSUANT TO ARTICLE 15 ( 1 ) OF DECISION NO 234/84 , AUTHORIZING THE TRANSFER OF ITS ANNUAL REFERENCE PRODUCTION AND QUANTITIES TO SACILOR AS FROM 1 JANUARY 1985 . ON THE SAME DAY , BY A DECISION ADDRESSED TO SACILOR , IT GRANTED A CORRESPONDING INCREASE IN SACILOR ' S ANNUAL REFERENCE PRODUCTION AND QUANTITIES AS FROM 1 JANUARY 1985 .

16 FOR THE REASONS SET OUT IN PARAGRAPH 4 OF THIS ORDER , THE COMMISSION SUBSEQUENTLY REVOKED ITS TWO DECISIONS OF 13 JANUARY 1986 AND REPLACED THEM WITH TWO NEW DECISIONS BASED ON ARTICLE 9 ( 4 ) OF DECISION NO 234/84 . IN ONE IT INFORMED COCKERILL-DRC THAT ITS REFERENCE PRODUCTION AND QUANTITIES WERE TRANSFERRED TO SACILOR AS FROM THE FOURTH QUARTER OF 1985 BY THE OPERATION OF ARTICLE 9 ( 4 ) AND THAT SINCE ITS PRODUCTION HAD CEASED DURING THE FIRST QUARTER OF 1985 THE ALLOCATION OF QUOTAS TO IT WOULD BE SUSPENDED AS FROM THE FOLLOWING QUARTER PURSUANT TO ARTICLE 9 ( 3 ) OF DECISION NO 234/84 . IN THE OTHER DECISION THE COMMISSION INFORMED SACILOR THAT COCKERILL-DRC ' S ANNUAL REFERENCE PRODUCTION AND QUANTITIES WERE TRANSFERRED TO IT AS FROM THE FOURTH QUARTER OF 1985 BY THE OPERATION OF ARTICLE 9 ( 4 ) AND THAT ITS CATEGORY VI QUOTA WAS INCREASED ACCORDINGLY .

17 UNDER ARTICLE 39 OF THE ECSC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT THE APPLICATION OF THE CONTESTED DECISION BE SUSPENDED AND PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .

18 IN ORDER FOR INTERIM MEASURES SUCH AS THOSE REQUESTED IN THIS CASE TO BE GRANTED , ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE REQUIRES THAT APPLICATIONS FOR SUCH MEASURES SHOULD STATE THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR .

19 THE APPLICANTS ARGUE IN THAT REGARD THAT THE DECISION ADOPTED BY THE COMMISSION ON 10 MARCH 1986 ON THE BASIS OF ARTICLE 9 ( 4 ) OF DECISION NO 234/84 IS MANIFESTLY ILLEGAL SINCE ARTICLE 9 ( 4 ) DOES NOT APPLY IN THE CIRCUMSTANCES OF THIS CASE .

20 IN ORDER TO ESTABLISH WHETHER OR NOT ARTICLE 9 ( 4 ) IS APPLICABLE TO CIRCUMSTANCES SUCH AS THOSE WHICH HAVE GIVEN RISE TO THESE PROCEEDINGS THE APPLICANTS CONSIDER THAT A DISTINCTION MUST BE MADE ACCORDING TO WHETHER THE UNDERTAKING WHICH OWNS A PLANT DECIDES TO SELL IT OR TO CLOSE IT .

21 IN THE FIRST CASE , IN SO FAR AS THE PLANT IS SOLD TO A PURCHASER WHO INTENDS TO USE IT FOR PRODUCTION , ARTICLE 9 ( 4 ), WHICH PROVIDES FOR THE AUTOMATIC TRANSFER OF REFERENCE PRODUCTION AND QUANTITIES WHERE A PLANT CHANGES HANDS , APPLIES . IN THE SECOND CASE , ON THE OTHER HAND , AN UNDERTAKING WHICH HAS CLOSED ITS PLANT REMAINS IN CONTROL OF ITS ASSETS AND IS ENTITLED TO SELL THEM . IN SUCH A CASE THERE IS THEREFORE NO AUTOMATIC TRANSFER OF REFERENCE PRODUCTION AND QUANTITIES . THEY WILL LAPSE IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 9 ( 3 ) OF DECISION NO 234/84 UNLESS ARTICLE 15 ( 1 ) OF THAT DECISION IS APPLIED . CONTRARY TO THE OPINION EMBODIED IN THE COMMISSION ' S DECISION OF 13 JANUARY 1986 , HOWEVER , WHERE AN UNDERTAKING ' S REFERENCE PRODUCTION AND QUANTITIES ARE SOLD AFTER ITS CLOSURE , ARTICLE 15 ( 1 ) DOES NOT ALLOW THE COMMISSION TO REQUIRE THE UNDERTAKING TO TRANSFER ITS REFERENCE PRODUCTION AND QUANTITIES TO A PARTICULAR UNDERTAKING WITHOUT A REQUEST TO THAT EFFECT FROM THE FIRST UNDERTAKING .

22 IN THE APPLICANTS ' VIEW , A NUMBER OF FACTS CLEARLY SHOW THAT IN THIS CASE THERE WAS NO CHANGE OF OWNERSHIP OF THE PLANT AS REFERRED TO IN ARTICLE 9 ( 4 ) BUT RATHER THE SALE , BY A COMPANY WHICH HAD TERMINATED ITS ACTIVITIES , OF ITS ASSETS . THE APPLICANTS REFER IN PARTICULAR TO THE FACT THAT COCKERILL-DRC WAS PLACED IN LIQUIDATION AT THE END OF DECEMBER 1984 AND FINALLY TERMINATED ALL ACTIVITY SHORTLY THEREAFTER . THEY FIND FURTHER SUPPORT FOR THEIR VIEW IN THE FACT THAT DORNINGER , THE FIRST PURCHASER OF COCKERILL-DRC ' S ROLLING MILL , BOUGHT IT NOT WITH A VIEW TO PRODUCTION BUT FOR RESALE , SINCE THAT COMPANY IS NOT A STEEL PRODUCER .

23 THE COMMISSION , ON THE OTHER HAND , TAKES THE VIEW THAT THERE CAN BE NO DOUBT WHATSOEVER THAT THE CIRCUMSTANCES IN QUESTION FALL WITHIN THE SCOPE OF ARTICLE 9 ( 4 ) AND THAT ITS DECISION OF 10 MARCH 1986 COULD THEREFORE LEGALLY BE ADOPTED ON THE BASIS OF THAT ARTICLE .

24 IT EMPHASIZES THAT AS SOON AS IT WAS CLEAR THAT THE LIQUIDATOR OF COCKERILL-DRC WAS IN THE PROCESS OF SELLING ITS PLANT AND ITS REFERENCE QUANTITIES TO TWO DIFFERENT UNDERTAKINGS THE COMMISSION HAD NO ALTERNATIVE BUT TO APPLY ARTICLE 9 ( 4 ), WHICH PROHIBITS SUCH ACTION ; OTHERWISE , IT WOULD BE GUILTY OF COMPLICITY IN THE UNLAWFUL TRANSFER OF REFERENCE QUANTITIES . AS SOON AS THE COMMISSION HAD RECEIVED PROOF THAT OWNERSHIP OF THE ROLLING MILL HAD PASSED TO THE STEEL PRODUCER SACILOR , THE ONLY COURSE OF ACTION OPEN TO IT WAS TO TRANSFER THE CORRESPONDING REFERENCE PRODUCTION AND QUANTITIES TO SACILOR UNDER ARTICLE 9 ( 4 ). THE FACT THAT SACILOR DID NOT ACQUIRE THE PLANT FOR THE PURPOSE OF PRODUCING STEEL IN NO WAY PRECLUDES THE APPLICATION OF ARTICLE 9 ( 4 ), SINCE AN UNDERTAKING WHICH ACQUIRES A PLANT WITHIN THE MEANING OF THAT ARTICLE IS ENTITLED EITHER TO USE IT FOR STEEL PRODUCTION OR TO DESTROY IT AND KEEP THE REFERENCE QUANTITIES AS A SUBSIDY FOR THE CLOSING DOWN OF CAPACITY .

25 BEFORE DETERMINING WHETHER THE APPLICANTS HAVE SUCCEEDED IN ESTABLISHING A PRIMA FACIE CASE , IT MUST BE BORNE IN MIND THAT ACCORDING TO A CONSISTENT LINE OF DECISIONS OF THE COURT INTERIM MEASURES MAY BE GRANTED ONLY IF THEY DO NOT PREJUDGE THE DECISION TO BE GIVEN ON THE SUBSTANCE OF THE CASE ( SEE IN PARTICULAR JOINED CASES 60 AND 190/81 R IBM V COMMISSION ( 1981 ) ECR 1857 , 1862 ).

26 IN THIS CASE IT APPEARS THAT THE FUNDAMENTAL POINT AT ISSUE BETWEEN THE PARTIES IS THE QUESTION WHETHER THE COMMISSION COULD LEGALLY ADOPT ITS DECISION OF 10 MARCH 1986 ON THE BASIS OF ARTICLE 9 ( 4 ) OF DECISION NO 234/84 .

27 IN THAT REGARD IT MUST BE EMPHASIZED , AS THE COMMISSION CORRECTLY POINTED OUT AT THE HEARING , THAT ARTICLE 9 ( 4 ) MUST BE READ IN CONJUNCTION WITH THE SECOND PARAGRAPH OF ARTICLE 9 ( 3 ) OF DECISION NO 234/84 , WHICH PROVIDES : ' IN THE CASE OF PERMANENT CESSATION OF ACTIVITY OR BANKRUPTCY , THE REFERENCE PRODUCTION AND QUANTITIES SHALL LAPSE AFTER 12 MONTHS , EXCEPT AS PROVIDED IN PARAGRAPH 4 . '

28 ON A FIRST READING OF THOSE TWO PROVISIONS IN COMBINATION IT APPEARS REASONABLE TO CONCLUDE THAT IN THE CASE OF PERMANENT CESSATION OF ACTIVITY THERE IS NO NEED TO CANCEL A PLANT ' S REFERENCE PRODUCTION AND QUANTITIES PROVIDED THAT THE OWNERSHIP OF THE PLANT IS TRANSFERRED WITHIN 12 MONTHS , IN WHICH CASE THE NEW OWNER AUTOMATICALLY ACQUIRES THE CORRESPONDING REFERENCE PRODUCTION AND QUANTITIES WITHOUT ANY FORMALITIES BEING REQUIRED .

29 IN THIS CASE THERE ARE NO DISCERNIBLE GROUNDS FOR NOT APPLYING THE PRINCIPLE SET OUT IN PARAGRAPH 28 OF THIS ORDER , SINCE ALL THE PREREQUISITES FOR ITS APPLICATION SEEM TO BE FULFILLED . IT HAS BEEN SHOWN THAT ON 22 OCTOBER 1985 THE LIQUIDATOR OF COCKERILL-DRC , A COMPANY WHICH HAD FINALLY TERMINATED ITS ACTIVITIES AT THE END OF 1984 , SOLD THE ROLLING MILL TO DORNINGER WITH THE AUTHORIZATION OF THE TRIBUNAL ; EIGHT WORKING DAYS LATER , ON 4 NOVEMBER 1985 , DORNINGER IN TURN SOLD THE MILL TO SACILOR . THE RESULT OF THOSE TWO SALES , EACH OF WHICH APPEARS ON THE FACE OF IT TO HAVE BEEN ENTIRELY LAWFUL , WAS THAT THE STEEL PRODUCER SACILOR BECAME THE OWNER OF THE PLANT WITHIN THE PERIOD OF 12 MONTHS REFERRED TO IN THE SECOND PARAGRAPH OF ARTICLE 9 ( 3 ).

30 IN THE FACE OF A SITUATION IDENTICAL TO THAT DESCRIBED IN ARTICLE 9 ( 4 ) THE COMMISSION HAD NO ALTERNATIVE BUT TO TRANSFER THE REFERENCE PRODUCTION AND QUANTITIES ASSOCIATED WITH THE ROLLING MILL TO THE MILL ' S FINAL PURCHASER , SACILOR .

31 THE FACT THAT SACILOR BOUGHT THE PLANT WITH THE INTENTION OF DISMANTLING IT , NOT OF USING IT FOR THE PRODUCTION OF STEEL , AS IS EVIDENT FROM THE CUSTOMS DOCUMENTS WHICH SHOW THAT IT SOLD THE VARIOUS COMPONENT PARTS OF THE MILL TO THE GERMAN COMPANY DILLINGER HUTTENWERKE , DOES NOT APPEAR RELEVANT IN THESE INTERLOCUTORY PROCEEDINGS SINCE IT DOES NOT AFFECT THE QUESTION WHETHER THE COMMISSION WAS ENTITLED UNDER ARTICLE 9 ( 4 ) TO ADOPT ITS DECISION OF 10 MARCH 1986 . IT DOES , HOWEVER , RAISE THE QUESTION , AS THE COMMISSION RECOGNIZED AT THE HEARING , WHETHER IT SHOULD NOT MAKE A NEW DECISION ON THE BASIS OF ARTICLE 9 ( 4 ) TRANSFERRING THE REFERENCE PRODUCTION AND QUANTITIES FROM SACILOR TO DILLINGER HUTTENWERKE .

32 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE SUBMISSIONS MADE BY THE APPLICANTS DO NOT CONSTITUTE A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR . IT DOES NOT , THEREFORE , APPEAR NECESSARY TO ASCERTAIN WHETHER THE REQUIREMENT OF URGENCY LAID DOWN IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE HAS BEEN MET .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT ,

BY WAY OF INTERIM DECISION ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION IS DISMISSED .

( 2 ) COSTS ARE RESERVED .