Order of the President of the Court of 11 November 1982. - Klöckner-Werke AG v Commission of the European Communities. - Case 263/82 R.



European Court reports 1982 Page 03995



Parties

Subject of the case

Grounds

Operative part



Keywords

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - SUSPENSION OF THE OPERATION OF A DECISION IMPOSING A FINE - CONDITIONS FOR GRANTING - LODGING OF A SECURITY

( ECSC TREATY , ART . 39 ; RULES OF PROCEDURE , ART . 86 ( 2 ))

Parties

IN CASE 263/82 R

KLOCKNER-WERKE AG , A STEEL UNDERTAKING HAVING ITS REGISTERED OFFICE IN DUISBURG , REPRESENTED BY PROFESSOR BODO BORNER OF THE UNIVERSITY OF COLOGNE , 83 ZULPICHER STRASSE , D-5000 COLOGNE 41 , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1049 BRUSSELS , REPRESENTED BY ITS LEGAL ADVISER , NORBERT KOCH , ASSISTED BY PROFESSOR EBERHARD GRABITZ OF THE FREE UNIVERSITY OF BERLIN , 33 SCHWENDENERSTRASSE , D-1000 BERLIN 33 , 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 TO SUSPEND THE OPERATION OF THE COMMISSION ' S DECISION OF 13 AUGUST 1982 IMPOSING A FINE ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY ,

Grounds

1 ACCORDING TO ARTICLE 39 OF THE ECSC TREATY ACTIONS BROUGHT BEFORE THE COURT ARE NOT TO HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED AND MAY PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES . ARTICLE 86 OF THE RULES OF PROCEDURE OF THE COURT PROVIDES THAT THE ENFORCEMENT OF THE ORDER MAY BE MADE CONDITIONAL ON THE LODGING BY THE APPLICANT OF SECURITY , OF AN AMOUNT AND NATURE TO BE FIXED IN THE LIGHT OF THE CIRCUMSTANCES .

2 THE APPLICANT HAS CLAIMED THAT THE COURT SHOULD MAKE AN ORDER SUSPENDING THE OPERATION OF THE DECISION OF 13 OCTOBER 1982 IMPOSING ON THE APPLICANT A FINE OF 10 129 432 ( TEN MILLION , ONE HUNDRED AND TWENTY-NINE THOUSAND FOUR HUNDRED AND THIRTY-TWO ) EUROPEAN CURRENCY UNITS , THAT IS TO SAY DM 23 909 916 ( TWENTY-THREE MILLION , NINE HUNDRED AND NINE THOUSAND NINE HUNDRED AND SIXTEEN DEUTSCHMARKS ). ALTHOUGH THE COMMISSION CONTENDS THAT THE APPLICATION SHOULD BE DISMISSED , ITS WRITTEN AND ORAL OBSERVATIONS REVEAL THAT IT HAS NO OBJECTION TO THE GRANT OF THE SUSPENSION REQUESTED PROVIDED THAT THE APPLICANT LODGES A BANK GUARANTEE AS SECURITY FOR THE EVENTUAL PAYMENT OF THE FINE AND ANY INTEREST WHICH MAY ACCRUE THEREON AS A RESULT OF THE DELAY .

3 THE POLICY OF REQUIRING SECURITY TO BE LODGED IS ONE WHICH THE COMMISSION ADOPTED IN 1981 AND WHICH THE PRESIDENT OF THE COURT , IN HIS ORDER OF 6 MAY 1982 IN CASE 107/82-R ALLGEMEINE ELEKTRICITATS-GESELLSCHAFT AEG TELEFUNKEN V COMMISSION , HELD TO BE JUSTIFIED UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES .

4 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 . IN THIS REGARD IT ARGUES THAT THOSE WITH WHOM IT DOES BUSINESS AND ITS CREDITORS IN PARTICULAR WOULD DRAW ADVERSE CONCLUSIONS FROM THAT FACT ABOUT THE OUTCOME OF THE MAIN ACTION AS WELL AS ABOUT THE POSSIBILITY OF FINES BEING IMPOSED FOR THE EXCEEDING OF QUOTAS FOR OTHER QUARTERS WHICH IT HAS ADMITTED .

5 THAT ARGUMENT CANNOT BE ACCEPTED . HOW BUSINESS ASSOCIATES AND CREDITORS VIEW THE PROSPECTS IN THE MAIN ACTION AND THE CONSEQUENCES FOR THE APPLICANT OF ITS ATTITUDE TOWARDS OBSERVING THE QUOTAS ALLOCATED TO IT - IN SO FAR AS THAT CIRCUMSTANCE MAY BE TAKEN INTO CONSIDERATION AT ALL - CANNOT DEPEND ON WHETHER THE GRANT OF A SUSPENSION IS SUBJECT TO A CONDITION SUCH AS THAT SET BY THE COMMISSION , FOR WHICH THE RULES OF PROCEDURE EXPRESSLY PROVIDE , PARTICULARLY AS THE LODGING OF SECURITY IS , AS HAS ALREADY BEEN POINTED OUT , IN ACCORDANCE WITH THE GENERAL POLICY OF THE COMMISSION WHICH HAS BEEN FOUND TO BE REASONABLE .

6 MOREOVER , THE APPLICANT HAS NOT ADDUCED ANY OTHER CONTENTIONS WHICH WOULD JUSTIFY MAKING AN EXCEPTION IN ITS FAVOUR . THEREFORE THE LODGING OF SECURITY CANNOT CAUSE THE APPLICANT SERIOUS AND IRREPARABLE DAMAGE EITHER AS A RESULT OF THE EXPENSE WHICH IT INVOLVES OR OF THE EFFECT 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 13 AUGUST 1982 SHALL BE SUSPENDED ON CONDITION THAT THE APPLICANT FIRST LODGES A BANK GUARANTEE APPROVED BY THE COMMISSION AS SECURITY FOR THE PAYMENT OF THE FINE IMPOSED BY THE CONTESTED DECISION AND FOR DEFAULT INTEREST CALCULATED AT 1% ABOVE THE DISCOUNT RATE OF THE DEUTSCHE BUNDESBANK .

2 . THE APPLICANT SHALL BE ALLOWED A PERIOD OF 15 DAYS FROM NOTIFICATION OF THIS ORDER TO LODGE THE SAID GUARANTEE . DURING THAT PERIOD THE COMMISSION SHALL NOT UNDERTAKE ANY MEASURES OF ENFORCEMENT .

3 . COSTS ARE RESERVED .