C-6/72
ECLI:EU:C:1972:22
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ORDER OF THE PRESIDENT OF THE COURT 21 MARCH 1972<apnote>1</apnote>
Europemballage Corporation and Continental Can Company Inc. y Commission of the European Communities<apnote>2</apnote>
Case 6/72R
In Case 6/72 R
(1) Europemballage Corporation, established at Wilmington (USA) and in Brussels (Belgium),
(2) Continental Can Company Inc., established in New York, represented respectively by their Presidents, Waldemar Friebel and C. B. Stauffacher, assisted by Alfred Gleiss and his associates, Advocates of the Stuttgart Bar, having chosen their address for service in Luxembourg at the Chambers of Georges Reuter, Avocat-Avoué, 7 avenue de l'Arsenal,
applicants,
v
Commission of the European Communities, represented by its Legal Advisers Bastiaan Van der Esch and Jochen Thiesing, acting as Agents, having chosen its address for service in Luxembourg at the office of its Legal Adviser, Émile Reuter, 4 boulevard Royal,
defendant,
Application for the adoption of interim measures ordering the suspension of the operation of Article 2 of the decision of the Commission of 9 December 1971 (Ref. IV/26811 -Continental Can Cy.) applying Article 86 of the EEC Treaty to the applicants.
The President of the Court of Justice of the European Communities
makes the following
1 — Language of the Case: German. — CMLR.
JUDGMENT OF 21.3.1972 — CASE 6/72R
ORDER
On the basis of Article 86 of the EEC impossible for them to comply with the Treaty the Commission, by a decision of contested decision and that the measure 9 December 1971 found on the one hand sought was one of urgency. that the Continental Can Company of The necessity for suspending the operation New York held, through its German of the decision is said to arise in particular subsidiary Schmalbach-Lubeca-Werke, a from the lack of clarity in the relationships dominant position in respect of a sub between the duty imposed by the first stantial part of the common market on the sentence of Article 2, to put an end to the market in light containers for preserves infringement, and the obligation, con and on the market in metal caps for glass tained in the second sentence, to submit jars, and on the other hand that it has proposals to the Commission before 1 July abused this dominant position through 1972. the purchase by its European subsidiary, Furthermore, the applicants consider that the Europemballage Corporation, of ap they are required, in carrying out the latter proximately 80% of the shares and con duty, voluntarily to relinquish rights before vertible debentures of the Netherlands the Court has decided upon the legality undertaking Thomassen & Drijver-Ver of the decision. blifa, thus practically eliminating com Their situation would be altered in an petition in a substantial part of the irreparable and irreversible manner by the common market. mere submission of proposals, which Under Article 2 of the same decision, would be impossible to keep secret. Continental Can is required to put an end The time allowed should not therefore to this infringement of Article 86 of the begin to run until after the expiry of a EEC Treaty and 'for this purpose it must period of six full months starting from the submit proposals to the Commission day on which the Court delivers its before 1 July 1972'. judgment. The decision was published in the Journal The applicants state that such an applica Officiel of the European Communities tion for suspension comes within the L 7 of 8 January 1972, page 25. framework of the case-law concerning By an application lodged at the Registry on proceedings for the adoption of interim 9 February 1972 and registered under No measures (Order in GEMA of 18 August 6/72, Continental Can and Europemballage 1971, JO of 28.9.1971, C95, p. 5). Corporation, have asked the Court to annul the disputed decision and to order The Commission of the European Com the Commission to pay the costs. munities, the defendant, by a document By a separate document, registered on 23 lodged at the Registry on 13 March 1972, February 1972, Continental Can and submitted that the application for the Europemballage, on the basis of the second adoption of interim measures should be sentence of Article 185 of the EEC dismissed.
Treaty and in accordance with Article 83 An action brought before the Court of the Rules of Procedure of the Court, normally has no suspensory effect. sought by way of an application for Suspension could be granted only if the interim measures, an order that the urgency of the measure requested were operation of Article 2 of the decision of 9 justified on factual and legal grounds. December 1971 should be suspended 'for In particular it should be proved that the six months as from the date of the judg implementation of the contested decision ment to be given by the Court in the main would lead to irreparable or at least to action'. very grave damage (Order in Geitling 19/59 In support of that application the applicants, R, Rec. 1960, p. 85; Order in Acciaierie after repeating the submissions set out in e Tubificio di Brescia 31/59 R, Rec. 1960, their main application, pleaded that it was p. 209; Opinion of Mr Advocate-General.
EUROPEMBALLAGE AND CONTINENTAL CAN v COMMISSION
Gand in FRG v Commission, Case 50/59 being conducted between the parties, the [1969] ECR 454 and 455). applicant companies having submitted to The case-law of the Court in this respect the Commission by letter of 24 February was recently declared and confirmed by 1972, proposals within the meaning of the abovementioned GEMA order, which Article 2 of the decision. refused suspension in respect of all The said proposals will be studied and the measures not appearing to be of such a situation does not therefore justify the character as to cause an irreversible grant of a suspension of the operation of paralysis of the company concerned. the measure. In the present case the period of six The parties were summoned to the hearing months allowed to Continental Can within of the application for the adoption of which to submit proposals does not require interim measures on 21 March 1972. it immediately to put an end to the in They replied to the questions which were fringement found. put to them by the judge hearing the Nothing decisive was put forward to proceedings for the adoption of interim support the opposite argument. measures.
On the contrary, negotiations are already
According to Article 185 of the Treaty 'actions brought before the Court of Justice shall not have suspensory effect'. It can only be otherwise if 'circumstances so require'. According to Article 83(2) of the Rules of Procedure suspension of the operation of any measure is subject to the existence of circumstances giving rise to urgency and grounds establishing a prima facie case for such a measure.
Subject to the discretion of the court hearing the case, Article 2 of the decision, at least until 1 July 1972, makes the execution of the duty to put an end to the infringement, contained in the first sentence, subject to the prior requirement, which follows from the second sentence, to submit proposals to the Commission before that date. The applicants do not therefore appear to be require to cease the infringement immediately, but only to make proposals for this purpose. In the present state of the procedure, the applicants therefore have until 1 July 1972 to carry out this duty to make proposals which, if they are satisfactory, will put an end to the infringement. If they have already put forward such proposals they can in any case until 1 July 1972 formulate new proposals should their first pro posals be rejected.
The obligation to submit proposals in no way prejudices their situation until 1 July 1972 and the outcome of the main action. Assuming them to be real, the uncertainties or threats with which the applicants are said to be faced are con stituted less by the decision itself, then the situation in which the undertakings have placed themselves in respect of Article 86. The suspension sought appears to be all the less necessary since there is nothing to indicate that the Court cannot give judgment on the application in good time and decide upon any appropriate measure.
JUDGMENT OF 21.3.1972 — CASE 6/72R
4 It therefore does not appear, either from Article 2 of the contested decision or from the file or from the oral submissions, that the applicants would suffer ir reparable damage to their rights if they were not granted an extension of time as from now. Consequently there are no grounds for depriving the contested decision of the force attaching to it under Article 185 of the Treaty.
5 There is therefore no reason to order the suspension of the operation of Article 2 of the contested decision.
Costs
6 The costs should, in the circumstances, be reserved.
On those grounds,
Upon reading the pleadings; Upon hearing the parties; Having regard to the Treaty establishing the European Economic Community, especially Articles 86 and 185; Having regard to the Protocol on the Statute of the Court of Justice of the Euro pean Communities, especially Article 36; Having regard to the Rules of Procedure of the Court of Justice of the European Communities, especially Articles 83 to 90,
The President of the Court of Justice of the European Communities,
by way of an interim ruling,
orders :
1. The application for the suspension of Article 2 of the decision of the Com mission of 9 December 1971 is dismissed;
2. The costs are reserved.
So done and ordered at Luxembourg on 21 March 1972.
A. Van Houtte R. Lecourt
Registrar President