Order of the President of the Court of 14 March 1973. - Istituto Chemioterapico Italiano S.p.A. et Commercial Solvents Corporation v Commission of the European Communities. - Joined cases 6 and 7/73 R.



European Court reports 1973 Page 00357



Parties

Grounds

Operative part



Parties

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IN JOINED CASES 6 AND 7/13 R

ISTITUTO CHEMIOTERAPICO ITALIANO SPA OF MILAN, REPRESENTED BY J . J . A . ELLIS, ADVOCATE AT THE HAGUE, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF ME J . LOESCH, 2, RUE GOETHE,

COMMERCIAL SOLVENTS CORPORATION OF NEW YORK ( N . Y .) USA, REPRESENTED BY B . H . TER KUILE, ADVOCATE AT THE HAGUE, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF ME J . LOESCH, 2, RUE GOETHE, APPLICANTS,

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS B . VAN DER ESCH AND A . MARCHINI CAMIA DEFENDANT

SUPPORTED BY

LABORATORIO CHIMICO FARMACEUTICO - GIORGIO ZOJA SPA, OF MILAN, REPRESENTED BY A . GRISOLI, ADVOCATE AT PAVIA, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG IN THE CHAMBERS OF ME E . ARENDT, 34/B/IV, RUE PHILIPPE-II, INTERVENER

Grounds

1 BY DECISION OF 14 DECEMBER 1972, THE COMMISSION, HAVING FOUND THAT THE CSC AND ICI COMPANIES HAD COMMITTED AN INFRINGEMENT OF ARTICLE 86 OF THE EEC TREATY, ENJOINED THEM, UNDER PENALTY OF A PERIODIC PENALTY PAYMENT, TO SUPPLY IMMEDIATELY TO THE ZOJA COMPANY A CERTAIN QUANTITY OF THE RELEVANT PRODUCTS, AND TO SUBMIT TO THE COMMISSION, WITHIN TWO MONTHS OF NOTIFICATION OF THE DECISION, PROPOSALS FOR SUBSEQUENT SUPPLIES TO ZOJA . THE DECISION ALSO IMPOSED JOINTLY ON THE CSC AND ICI COMPANIES A FINE OF 200 000 UNITS OF ACCOUNT, PAYABLE WITHIN THREE MONTHS OF THE NOTIFICATION .

2 ON 17 FEBRUARY 1973 THE SAID COMPANIES BROUGHT BEFORE THE COURT AN ACTION FOR ANNULMENT OF THIS DECISION .

3 ON THE SAME DATE EACH OF THEM SEPARATELY MADE AN APPLICATION FOR INTERIM MEASURES, SEEKING A SUSPENSION OF EXECUTION OF THE DECISION .

4 BY SEPARATE APPLICATIONS OF 22 FEBRUARY 1973 EACH COMPANY ASKED THAT IN VIEW OF THE URGENCY, THE EXECUTION OF THE DECISION SHOULD BE SUSPENDED UNTIL THE DATE OF THE ORDER TO BE MADE ON THE APPLICATIONS FOR INTERIM MEASURES .

5 BY ORDER OF 28 FEBRUARY 1973 THIS REQUEST WAS GRANTED .

6 AT THE PROCEEDINGS ON THE INTERIM MEASURES, THE ZOJA COMPANY APPLIED TO INTERVENE .

7 THE TWO APPLICATIONS FOR INTERIM MEASURES RELATE TO THE SAME DECISION, AND BOTH SEEK TO OBTAIN A SUSPENSION OF EXECUTION OF THE OBLIGATIONS TO WHICH THIS DECISION HAS BOUND THE APPLICANTS JOINTLY .

8 IT IS THUS APPROPRIATE, AFTER HEARING THE PARTIES, TO ORDER THAT THE CASES BE JOINED FOR THE PURPOSES OF THE PRESENT ORDER .

9 SINCE THE INTERESTS OF THE ZOJA COMPANY ARE DIRECTLY AFFECTED BY ANY ORDER OF SUSPENSION OF EXECUTION OF CERTAIN PROVISIONS OF THIS DECISION, IT IS APPROPRIATE, AFTER HEARING THE PARTIES, WHO RAISE NO OBJECTION TO THIS INTERVENTION, TO PERMIT THE INTERVENTION .

ON THE IMMEDIATE DELIVERY OF THE RELEVANT PRODUCTS

10 IT IS NOT DISPUTED THAT THE OBLIGATION IMPOSED ON CSC AND ICI BY ARTICLE 2 OF THE DECISION TO SUPPLY IMMEDIATELY 60 METRIC TONS OF NITROPROPANE OR 30 METRIC TONS OF AMINOBUTANOL IS IN THE PROCESS OF BEING CARRIED OUT .

11 IT IS APPROPRIATE TO TAKE NOTE OF THIS .

ON SUBSEQUENT SUPPLIES TO ZOJA

12 IN SUPPORT OF ITS APPLICATION FOR SUSPENSION OF EXECUTION OF THE INJUNCTION TO SUBMIT, WITHIN TWO MONTHS OF THE NOTIFICATION, PROPOSALS FOR SUPPLIS TO ZOJA, THE CSC COMPANY DECLARES THAT IT IS PREPARED TO COMPLY WITH ANY REQUEST BY ZOJA FOR AMINOBUTANOL ON CONDITION THAT THE QUANTITIES ORDERED ARE INTENDED FOR THE MANUFACTURE OF SPECIALITIES EXCLUSIVELY INTENDED FOR THE COMMON MARKET, SINCE ANY FURTHER DELIVERIES WOULD AFFECT THE MANNER IN WHICH THESE PRODUCTS ARE DISTRIBUTED ON THE WORLD MARKET .

13 THE QUESTION WHETHER, IN ORDER TO ESCAPE THE CONSEQUENCES OF A DECISION GIVEN ON THE BASIS OF ARTICLE 86 OF THE TREATY, AN UNDERTAKING CAN RELY ON ITS INTENTION TO LIMIT DELIVERIES, TO IMPOSE SUCH A LIMITATION ON THE UNDERTAKING IT IS SUPPLYING WITHIN THE COMMON MARKET, AND TO REQUIRE THE LATTER TO GIVE AN ASSURANCE THAT THE PRODUCT DELIVERED WILL REMAIN THERE, IS A MATTER FOR THE JUDGMENT ON THE MERITS, SINCE THE NECESSITY TO PROTECT SUCH PRACTICES DOES NOT RAISE ANY QUESTION OF URGENCY .

14 IN SUPPORT OF ITS APPLICATION, THE ICI COMPANY FOR ITS PART RELIES, FIRST, ON THE ARGUMENT THAT IT IS IMPOSSIBLE FOR IT TO SUBMIT PROPOSALS TO THE COMMISSION, SINCE IT COULD NOT COMPEL CSC TO DELIVER TO IT THE DISPUTED PRODUCTS, AND SECONDLY, ON THE IRREPARABLE DAMAGE WHICH WOULD BE CAUSED TO IT BY THE PENALTY PAYMENT IMPOSED ON IT .

15 HOWEVER SUBSTANTIAL THIS DAMAGE MAY BE, IT CAN ONLY BE APPRAISED, BY THE JUDGE DEALING WITH URGENT MATTERS, IN RELATION TO THE DAMAGE THE ZOJA COMPANY WOULD SUFFER IF IT WERE DEPRIVED OF SUPPLIS OR SUBJECTED TO RATIONING SUCH AS TO THREATEN ITS AUTONOMY .

16 IT DOES NOT APPEAR FROM THE FACTS OF THE CASE THAT, HAVING REGARD TO ITS RELATIONSHIP WITH CSC, ICI CANNOT AVAIL ITSELF WITH THIS COMPANY OF ANY MEANS OF MAKING PROPOSALS TO THE COMMISSION FOR SUBSEQUENT SUPPLIS TO ZOJA .

17 HOWEVER, IT IS EXPEDIENT TO TAKE ACCOUNT OF THE TIME TAKEN BY THE PRESENT PROCEDURE FOR INTERIM MEASURES, TO EXTEND UNTIL 2 APRIL THE TIME LIMIT LAID DOWN BY ARTICLE 2 OF THE DECISION, WITHIN WHICH CSC AND ICI MUST SUBMIT TO THE COMMISSION PROPOSALS FOR SUBSEQUENT SUPPLIES TO ZOJA, AND TO ORDER THAT THE LATTER COMPANY AND THE COMMISSION SHALL MAKE KNOWN TO THE COURT BEFORE 2 MAY THEIR OPINIONS ON THE PROPOSALS THUS RECEIVED .

ON SUSPENSION OF EXECUTION OF THE FINE

18 CSC SUBMITS THAT THE EXECUTION OF THE FINE, BY DEPRIVING IT OF 200 000 UNITS OF ACCOUNT FOR A LONG PERIOD, WOULD HAVE UNFAVOURABLE EFFECTS ON ITS RELATIONS WITH THE PUBLIC AND ITS SHAREHOLDERS AND WOULD INVOLVE THE RISK OF UNFORTUNATE REPERCUSSIONS ON THE BEHAVIOUR OF ITS SHARES ON THE MARKET .

19 ICI FOR ITS PART RELIES ON THE " INTOLERABLE " NATURE OF THE FINANCIAL BURDEN WHICH WOULD BE IMPOSED ON IT BY PAYMENT OF THIS FINE .

20 HAVING REGARD TO THE TIME LIMIT LAID DOWN ABOVE, AND SUBJECT TO COMPLIANCE WITH THE ABOVE-MENTIONED ORDER, IT IS APPROPRIATE TO POSTPONE UNTIL 2 MAY A DECISION ON THIS HEADING OF THE APPLICATION FOR INTERIM MEASURES AND TO SUSPEND UNTIL THAT DATE THE EXECUTION OF ARTICLE 3 OF THE DECISION .

Operative part

ORDERS :

1 . THE TIME LIMIT LAID DOWN BY ARTICLE 2 OF THE DECISION, WITHIN WHICH PROPOSALS FOR SUBSEQUENT SUPPLIES TO ZOJA MUST BE MADE, IS EXTENDED UNTIL 2 APRIL 1973;

2 . THE COMMISSION AND THE ZOJA COMPANY SHALL MAKE KNOWN TO THE COURT BEFORE 2 MAY THEIR OPINIONS ON THE PROPOSALS THUS RECEIVED;

3 . SUBJECT TO COMPLIANCE WITH THIS ORDER, A DECISION ON THE APPLICATION FOR SUSPENSION OF EXECUTION OF THE FINE IS POSTPONED UNTIL 2 MAY;

4 . RESERVES THE COSTS .