COUNCIL REGULATION NO 17 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1963-64, P . 47 ) SINCE, CONTRARY TO THOSE PROVISIONS, THE COMMISSION DID NOT SUPPLY THE STATEMENT OF OBJECTIONS REQUIRED BY ARTICLE 2 ( 3 ) NOR DID IT AFFORD TO HOECHST THE OPPORTUNITY TO PUT FORWARD ITS ARGUMENTS ORALLY, AS REQUIRED BY ARTICLE 7 ( 1 ), EVEN THOUGH HOECHST HAD EXPRESSLY SO REQUESTED .
21 THE COMMISSION CONTENDS THAT THERE ARE TWO STAGES IN THE PROCEDURE FOR FIXING A PERIODIC PENALTY PAYMENT . FIRST, THE PENALTY PAYMENT IS PROVISIONALLY FIXED, BY WAY OF WARNING, AND IT IS THEN FIXED DEFINITIVELY . IN THE FIRST STAGE, A DECISION SUCH AS THE ONE IN POINT IN THIS CASE IS TAKEN IN ORDER TO COMPEL AN UNDERTAKING TO TAKE CERTAIN MEASURES OR PAY A PERIODIC PENALTY PAYMENT THE AMOUNT OF WHICH IS FIXED IN THAT DECISION . IF THE UNDERTAKING DOES NOT TAKE THE MEASURES, NOTWITHSTANDING THE THREAT OF SUCH A PERIODIC PENALTY PAYMENT, A SECOND DECISION IS ADOPTED FIXING THE DEFINITIVE AMOUNT OF THE PERIODIC PENALTY PAYMENT TO BE IMPOSED . IT IS ONLY IN THE SECOND STAGE THAT THE COMMISSION IS BOUND TO SATISFY THE AFORESAID ESSENTIAL PROCEDURAL REQUIREMENTS PRESCRIBED, FAILURE TO COMPLY WITH WHICH RENDERS THE DECISION VOID .
22 THE APPLICANT CLAIMS THAT THE BREACH OF THE FUNDAMENTAL RIGHT OF LEGAL PERSONS TO THE INVIOLABILITY OF THEIR COMMERCIAL PREMISES, UPON WHICH IT RELIES AS REGARDS THE DECISION ORDERING AN INVESTIGATION, ALSO AFFECTS THE DECISION IMPOSING PERIODIC PENALTY PAYMENTS, SINCE THE PURPOSE OF THOSE PAYMENTS IS TO IMPOSE BY FORCE A SEARCH WHICH IS UNLAWFUL AND UNCONSTITUTIONAL . CONSEQUENTLY, THE COMMISSION DECISION OF 3 FEBRUARY 1987 IMPOSING PERIODIC PENALTY PAYMENTS IS ALSO MANIFESTLY UNCONSTITUTIONAL .
23 IN ORDER TO ESTABLISH THE URGENCY OF ITS APPLICATION WITHIN THE MEANING OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE, THE APPLICANT REFERS PRIMARILY TO THE ORDER MADE BY THE COURT IN JOINED CASES 60 AND 190/81 R IBM V COMMISSION (( 1981 )) ECR 1857 . ON THE BASIS OF THAT DECISION, THE APPLICANT CONSIDERS THAT WHERE A MEASURE OF COMMUNITY LAW, THE SUSPENSION OF THE OPERATION OF WHICH IS REQUESTED, APPEARS ON A PRIMA FACIE APPRAISAL TO BE MANIFESTLY ILLEGAL, IT IS NOT EVEN NECESSARY TO EXAMINE THE MATERIAL OR NON-MATERIAL DAMAGE WHICH MAY RESULT FROM ITS APPLICATION . IN ITS SUBMISSION, A MANIFESTLY UNLAWFUL MEASURE ALWAYS GIVES RISE TO THE DANGER OF SERIOUS AND IRREPARABLE DAMAGE, IF ONLY BECAUSE ITS IMPLEMENTATION UNDERMINES CONFIDENCE IN THE LEGAL SYSTEM . THE SUSPENSION OF THE OPERATION OF SUCH A MEASURE IS THEREFORE JUSTIFIED PURELY IN THE INTERESTS OF THE CORRECT APPLICATION OF THE LAW . IF IT IS CLEAR FROM THE JUDGMENTS OF THE COURT THAT THE MANIFEST ILLEGALITY OF A MEASURE OF COMMUNITY LAW IS A SUFFICIENT BASIS FOR GRANTING A REQUEST FOR THE SUSPENSION OF ITS OPERATION, A FORTIORI THE SAME SHOULD APPLY WHERE SUCH A MEASURE IS ALSO MANIFESTLY UNCONSTITUTIONAL .
24 THE APPLICANT ALSO STRESSES