SCHLIEDER CONSTITUTES A DECISION OF REJECTION AND, IN THE SECOND PLACE, THEREFORE TO DEFINE THE NATURE OF THE DISPUTE AND OF THE FORM IN WHICH THE ACTION HAS BEEN BROUGHT . IN ANY EVENT, WHETHER THERE IS AN IMPLIED OR EXPRESS DECISION REFUSING THE ADMINISTRATIVE REQUEST OF 21 JULY 1975, IT MUST BE STATED THAT THE APPLICANT IS IN FACT ASKING THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES THAT NO EFFECT SHOULD BE GIVEN TO A NEGATIVE DECISION REFUSING, IN PARTICULAR, TO TAKE EMERGENCY MEASURES . TO GRANT SUCH AN APPLICATION WOULD AMOUNT, TEMPORARILY, TO A POSITIVE DECISION TAKEN BY THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES IN LIEU AND INSTEAD OF THE COMMISSION .
7 THE COMMISSION ITSELF, HOWEVER, HAS IN THE PRESENT CASE, BEFORE THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES, ADOPTED A POSITION WHICH MAKES IT APPARENT THAT IT CONSIDERS THAT 'THE APPLICATION ADDRESSED TO THE COURT IS NOT CLEARLY UNFOUNDED' AND THAT IT ACKNOWLEDGES THE PERILOUS POSITION IN WHICH THE TWO NCC COKING PLANTS ARE PLACED AND THE URGENCY OF THE MEASURES TO BE TAKEN AND WHICH IT NEVERTHELESS HAS FAILED TO TAKE ITSELF . WITH THIS IN MIND THE COMMISSION REFERRED IN ITS ORAL SUBMISSIONS TO THE POSSIBILITY THAT THERE MIGHT BE A 'MINOR' ABUSE OF A DOMINANT POSITION . IN ITS WRITTEN SUBMISSIONS IT STATED THAT 'THE SURVIVAL OF NCC'S TWO PLANTS, AND THE SURVIVAL OF NCC ITSELF AS PRODUCER OF DOMESTIC HARD COKE ARE AT STAKE' AND THAT 'THE BALANCE OF THE INTERESTS OF THE ENTERPRISES INVOLVED SEEM TO PERMIT INTERIM MEASURES '. HAVING MADE THIS FINDING, THE COMMISSION NONE THE LESS CONSIDERS THAT IT IS 'MORE APPROPRIATE THAT THE COURT SHOULD ORDER INTERIM MEASURES RATHER THAN THE COMMISSION' NOTWITHSTANDING, MOREOVER, THAT THE COMMISSION CONSIDERS THAT IT HAS 'AN INHERENT POWER TO ADOPT A TEMPORARY MEASURE TO PROTECT THE STATUS QUO '.
8 IN THESE CIRCUMSTANCES IT IS THEREFORE FOR THE COMMISSION TO ADOPT THE MEASURES WHICH IT CONSIDERS NECESSARY . IT WOULD IN FACT BE CONTRARY TO THE BALANCE BETWEEN THE INSTITUTION WHICH DERIVES FROM THE TREATY FOR THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES TO SUBSTITUTE HIMSELF FOR THE COMMISSION IN THE EXERCISE OF A POWER WHICH BELONGS PRIMARILY, SUBJECT TO REVIEW BY THE COURT, TO THE COMMISSION WHICH HAS ALL THE INFORMATION REQUIRED FOR THIS PURPOSE OR THE MEANS OF OBTAINING IT . THE COMMISSION SHOULD BE PERMITTED TO TAKE THE MEASURES OF CONSERVATION IN QUESTION PROVIDED, HOWEVER, THAT THESE MEASURES ARE STRICTLY CONFINED TO THE PRODUCTION OF COKE NECESSARY TO KEEP THE PLANTS AT BARNSLEY AND ROTHERHAM IN OPERATION AND TO THE PRESERVATION OF THE JOBS WHICH WOULD BE THREATENED IF THE COKING PLANTS WERE TO CEASE PRODUCTION . IT IS FOR THE COMMISSION ALSO TO PRESCRIBE THE GUARANTEES WHICH SHOULD PROPERLY BE SOUGHT FROM NCC IN THE EVENT OF ITS FAILING IN ITS MAIN APPLICATION .
Operative part
HAVING REGARD TO THE