Order of the President of the Court of 14 October 1977. - NTN TOYO Bearing Co., Ltd. v Council of the European Communities. - Case 113-77 R and affaire 113-77 R-INT.



European Court reports 1977 Page 01721



Parties

Grounds

Operative part



Parties

IN CASES 113/77 R AND 113/77 R-INT .,

NTN TOYO BEARING CO ., LTD ., OSAKA , ACTING ON ITS OWN BEHALF AND ON BEHALF OF ITS SUBSIDIARIES OR AFFILIATES NTN WALZLAGER ( EUROPA ) GMBH , ERKRATH , NTN-ROULEMENTS SIDAG S.A ., SCHWEIGHOUSE-SUR-MODER , AND NTN BEARINGS-GKN LTD ., BURNTWOOD , WALSALL , REPRESENTED BY DR . W . STOECKER AND MALTE SPRENGER , OF THE DUSSELDORF BAR , DR . WERNER VON SIMSON , PROFESSOR OF LAW , UNIVERSITY OF FREIBURG IM BREISGAU , AND MARTIN VON SIMSON , BARRISTER , OF THE MIDDLE TEMPLE , LONDON , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF DANIELLE D ' ITNART , 11 A , BOULEVARD PRINCE HENRI ,

APPLICANT ,

AND

( 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 ,

INTERVENERS ,

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

DEFENDANT ,

Grounds

1 ( 1 ) THE NSK GROUP HAS ESTABLISHED THAT IT HAS AN INTEREST IN THE RESULT OF CASE 113/77 R . IN THE PRESENT SITUATION IT CANNOT BE EXCLUDED THAT CONSIDERATIONS WHICH ARE OF DECISIVE IMPORTANCE FOR THE DECISION IN THIS CASE MAY ALSO BE OF SIGNIFICANCE FOR THE DECISION IN CASE 119/77 R .

2 THE APPLICATION OF THE NSK GROUP TO INTERVENE MUST THEREFORE BE ALLOWED .

3 THE ADMISSION OF THE NSK GROUP AS INTERVENERS IS CLOSELY RELATED TO THE APPLICATION LODGED BY THIS GROUP FOR THE ADOPTION OF INTERIM MEASURES AND TO ITS APPLICATION IN THE MAIN ACTION ( CASES 119/77 R AND 119/77 ). IT THEREFORE APPEARS APPROPRIATE TO RESERVE THE DECISION REGARDING THE COSTS OF THE INTERVENTION FOR THE FINAL JUDGMENT IN CASE 119/77 .

4 ( 2 ) THE COUNCIL HAS NOT CONTESTED THAT THE COMPETENT BRITISH , FRENCH AND GERMAN CUSTOMS AUTHORITIES ARE INSISTING THAT THE PAYMENTS REQUIRED UNDER ARTICLE 3 OF REGULATION NO 1778/77 SHALL BE MADE FORTHWITH . NOR HAS IT CONTESTED THAT THE NTN GROUP WILL INCUR THE ADDITIONAL CHARGES REFERRED TO BY NTN IN THE EVENT OF THE DISMISSAL OF THE LATTER ' S APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

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

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

7 ON THE OTHER HAND THE COUNCIL HAS 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 NTN GROUP WERE TO MAINTAIN THE EXISTING BANK GUARANTEES IN THE SUMS TO BE PAID IN ACCORDANCE WITH ARTICLE 3 OF REGULATION NO 1778/77 AND IF NTN WERE TO BE UNSUCCESSFUL IN THE MAIN ACTION .

8 NTN HAS 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 , AS FAR AS THE NTN GROUP IS CONCERNED , OF THE ABOVEMENTIONED ARTICLE 3 ( ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE ).

9 TO THAT EXTENT THEREFORE THE APPLICATION OF THE SAID ARTICLE MUST BE SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NTN V COUNCIL ( CASE 113/77 ) ON CONDITION THAT AND FOR SO LONG AS THE NTN GROUP CONTINUES TO PROVIDE SECURITY FOR THE PERFORMANCE OF ITS OBLIGATION IN THE AMOUNTS WHICH IT IS REQUIRED TO PAY IN PURSUANCE OF ARTICLE 3 OF REGULATION NO 1778/77 .

10 THE DECISION WITH REGARD TO COSTS SHOULD BE RESERVED FOR THE FINAL JUDGMENT IN CASE 113/77 .

Operative part

ON THOSE GROUNDS ,

THE PRESIDENT ,

AS AN INTERLOCUTORY DECISION , HEREBY ORDERS AS FOLLOWS :

1 . THE INTERVENTION OF NIPPON SEIKO K.K ., NSK BEARINGS EUROPE LTD ., NSK KUGELLAGER GMBH AND NSK FRANCE S.A . IN THIS INTERLOCUTORY PROCEDURE IS ALLOWED ;

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

2 . THE APPLICATION TO NTN , NTN WALZLAGER ( EUROPA ) GMBH , NTN-ROULEMENTS SIDAG S.A . AND NTN BEARINGS-GKN LTD . OF ARTICLE 3 OF COUNCIL REGULATION ( EEC ) NO 1778/77 IS SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NTN V COUNCIL ( CASE 113/77 ), ON CONDITION THAT AND FOR SO LONG AS THESE COMPANIES CONTINUE TO PROVIDE SECURITY FOR THE PERFORMANCE OF THEIR OBLIGATION IN THE AMOUNTS WHICH THEY ARE REQUIRED TO PAY IN PURSUANCE OF THE AFOREMENTIONED ARTICLE 3 ;

3 . COSTS OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES ARE RESERVED FOR THE FINAL JUDGMENT IN THE CASE OF NTN V COUNCIL ( CASE 113/77 ).