C-160/73
ECLI:EU:C:1973:106
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ORDER OF THE PRESIDENT OF THE COURT
11 OCTOBER 1973 1
Miles Druce and Co Ltd
v Commission of the European Communities
Joined Cases 160 and 161/73 R
In Cases 160 and 161/73 R
Miles Druce and Company Limited, High Wycombe, Buckinghamshire, represented by B. H. ter Kuile, lawyer, of The Hague, and by A. J. C. Paines, solicitor, of London; address for service in Luxembourg at the chambers of Me Jacques Loesch, 2 rue Goethe,
applicant,
against
Commission of the European Communities, represented by its legal advisers, C. L. Close and E. Zimmermann; address for service in Luxembourg at the chambers of P. Lamoureux, its legal adviser, 4 boulevard Royal,
defendant,
supported by
Guest, Keen and Nettlefolds Limited, Smethwick, Warley, Worcestershire, represented by E. Gutt, lawyer, of Brussels, and by Michael M. Wheeler, Queen's Counsel, of Lincoln's Inn, London, address for service in Luxembourg at the chambers of Me Andre Elvinger, 84 Grand Rue,
intervener,
1 — Language of the Case: English.
ORDER of 11. 10. 1973 — joined cases 160 and 161/73 R
the President
makes the following
ORDER
Issues of fact
Miles Druce and Co., Limited, a No decision has yet been given on this. company incorporated under English On 27 June 1973 M.D. requested the law with its registered office at High Commission to take interim measures, Wycombe, Buckinghamshire, (referred to under Article 66 (5). as M.D.), has made two applications to the Court based on Articles 33 and 35 The Commission was of the opinion that it should refrain from adopting any such respectively of the ECSC Treaty. measures, however the facts might be The applications were filed in the Court interpreted in law, and that after Registry on 17 August 1973. deciding in accordance with Article The applications seek to have annulled, 66 (2) whether to find that there was a first, Decision IV/ce 73-01713 JV/cv concentration, it had merely to give or dated 18 July 1973 of the Commission withold its authorization for it and then and, second, the refusal contained in that adopt any necessary conservatory decision. measures.
By this Decision, addressed to M.D. on In view of G.K.N.'s voluntary 23 July 1973 in the form of a letter undertaking not to summon a general signed by Mr Verges of the meeting of M.D. for six months, on 18 Directorate-General of Competition, the July the Commission gave its express Commission refused to take the refusal, approved by the signature of Mr measures, either temporary or final, Verges of the Directorate-General of which M.D. had requested the Competition, to take the provisional Commission to take in two consecutive decisions requested by M.D. in repeated applications of 27 June and 17 July applications. 1973, with regard in particular to Guest, On 17 August 1973, M.D. submitted to Keen and Nettlefolds Ltd., (referred to the Court the two applications as 'G.K.N.'). mentioned above to have the As grounds for the applications, M.D. Commission's decision annulled, the first alleged that G.K.N. had acquired, during on the basis of Article 33 and the second the years 1972 and 1973, control of on the basis of Article 35 of the ECSC. approximately 39-9 % of the ordinary In subsidiary applications ('ex parte shares in M.D. and had declared its applications') lodged on 31 August 1973, intention of making a public offer of M.D. sought from the President of the purchase to obtain further shares. Court an interim order, by way of what On 18 June 1973 G.K.N. sought prior is described by M.D. as 'ex parte authorization from the Commission preliminary proceedings', to be obtained under Article 66 (1) of the ECSC Treaty immediately, without further formality, for the public offer of purchase relating and providing for certain conservatory to M.D. measures.
MILES DRUCE v COMMISSION
On receiving notification of this, the M.D_, which has been deprived of the Commission lodged a written reply on opportunity to extend operation of its 19 September 1973. services or to postpone its extension of Meanwhile G.K_N_, having been granted them, and the confidence of other businesses in M.D_ permission by a Court Order of 24 September 1973 to intervene in the main As further grounds for its application for action, filed its own observations on the interim measures, M.D_ points to the present proceedings on 27 September breach of law of which it will be the
1973. victim; the need to remedy, at the M.D_, the applicant, after stating the expense of the company which is at facts and the object of its request to the fault, a manifest infringement of the judge in the interim proceedings asks Treaty; the slowness of the Commis that, in accordance with Article 39 (3) of sion's administrative procedure; and, the Treaty, Article 33 of the Statute of lastly, the fact that no situation which is the Court and Article 83 of the Rules of unlawful can possibly be allowed to Procedure, all measures necessary be persist in producing its effects. taken pending judgment in the main M.D_ offers to produce any necessary
action. evidence for the facts on which it has On the understanding that its request is based its application. directed against both G.K_N_ and any A table showing the distribution of its third party acting on its behalf, M.D_ capital has been submitted by M.D_ claims that the Court should order, inter alia: Lastly, it claims that the Commission should be ordered to pay the costs of the '1. that G.K_N_ shall acquire no further interim proceedings. shares in M.D_; 2. that G.K_N_ shall not exercise the The defendant Commission points out voting rights attached to the 39-9 % that the requests made in the application for interim measures are identical with (or to any portion of that percentage) those in the main action. of paid-up share capital of M.D_ which it has already acquired; The alleged injury suffered by M.D_ 3. that G.K_N_ shall not exercise the could be remedied only by sale of M.D_ right it has under Section 132 of the shares currently held by G.K_N_, which Companies Act 1948 to call a could not be accomplished by way of interim measures. General Meeting of M.D_; 4. that G.K_N_ shall not propose any The undertakings given by G.K_N_ are resolution in the event of a General sufficient to preclude, for the time being, Meeting of M.D_ being held.' its participating in any of M.D_'s
decisions. M.D_ claims that the reason for the urgency of these measures lies in the The effectiveness of these undertakings absence of any guarantee or safeguard, could be ensured if need be by exercising especially with regard to the ineffectual the powers conferred on the and inappropriate undertaking given by Commission by Article 66 (5) and (6), G.K_N_ to the Commission, and in the and by the possibility of imposing financial sanctions. refusal made by the Commission, which alone is competent to take the desired There is no imminent threat of grave or action. irreparable damage. According to M.D_, the chief danger, Finally, the applications for 'ex parte apart from the situation already preliminary proceedings' are inadmis explained in the main action, lies in the sible since there is no provision for these degree of control held by G.K_N_ over in the Rules of Procedure of the Court.
ORDER OF 11. 10.1973 — JOINED CASES 160 AND 161/73 R
The Commission therefore contends that G.K.N. alleges that the Court has no the Court should jurisdiction to decide on the application '— reject the applications for an order made by M.D., since the Rules of for interim measures; Procedure make no provision for such applications. — declare that the ex parte applications are not admissible; G.K.N. supports the argument of the — order the applicant to pay the costs Commission as to the similarity between of these proceedings.' the main action and the applications for The intervener G.K.N., besides putting interim measures, and to the lack of forward certain arguments on the main urgency.
proceedings, claims that the application The alleged damage suffered by M.D. is for interim measures is inadmissible, a disadvantage normally present since by seeking measures to be taken whenever a takeover bid is made. against a third party to the action, M.D. is contravening Article 39 of the Treaty G.K.N.'s undertaking concerning the and the general principles of the law of neutrality it would maintain for the procedure common to all Member present is sufficient evidence of the fact States. that such damage is purely hypothetical, since under both national law in Britain G.K.N.'s intervention in the main action could not alter this legal situation. and Community law, no takeover of M.D. by G.K.N. can occur until further According to G.K.N., any order for action is taken by the latter. interim measures would be directly prejudicial to the decision in the main It is pointless to attempt to secure by action, since the two proceedings seek means of interim measures the practically the same end and it has not non-exercise of the voting rights of been found that the alleged shareholders of M.D. concentration exists. G.K.N. contends that the Court should: An order for interim measures would be more to M.D.'s advantage than success 'reject the requests for interim measures; in the main action, since the measures dismiss the application for an order that requested are not within the competence interim measures be taken; of the Court when deciding on an order M.D. to pay the costs of these application for annulment, as may be proceedings, including the costs of the seen from Article 34 ECSC. intervener.'
Issues of law
Admissibility
1 The aplications for interim measures have been described by M.D. by reference to the British procedure of 'ex parte preliminary proceedings' which allows conservatory measures to be taken merely on demand, without hearing all parties concerned.
MILES DRUCE v COMMISSION
2 In view of the circumstances and the documents in the file, however, the applications must be considered as applications for interim measures within the meaning of Article 39 of the ECSC Treaty and Article 33 of the Statute on the ECSC Court of Justice.
3 The applications thus comply with the requirements of Article 83 of the Rules of Procedure and are accordingly admissible.
4 Article 84 (1) has been followed in the normal manner and both parties have been heard in the written and oral procedure.
Urgency
5 According to Article 83 (2) of the Rules of Procedure the jurisdiction of the Court to order interim measures is subject to the establishment of 'circumstances giving rise to urgency'.
6 The applications for interim measures made under the summary procedure do not differ in substance from the object of the written applications in the main action submitted on 17 August 1973.
7 No event has occurred since that date which could present M.D. with an imminent threat.
8 It cannot be doubted that the British regulations which make the transactions feared by M.D. subject to authorization will be applied.
9 Moreover, G.K.N. has given an undertaking that it will not make use of the shares it holds in M.D. to summon a general meeting of that company's shareholders within the next six months.
10 No new circumstance has arisen to raise doubts concerning the maintenance of the status quo.
ORDER OF 11. 10.1973 — JOINED CASES 160 AND 161/73 R
11 After the declaration made by the Commission in court, it cannot be supposed that the Commission itself will not ensure the same.
12 If despite G.K.N.'s undertaking and the declaration made by the Commission the status quo should appear to be threatened for any reason whatsoever, it will be for the Commission, with due notice, to make an immediate decision on the matter under Article 66 of the Treaty, or, at the very least, on the interim measures provided for by Article 66 (5), third paragraph, without prejudice to any possible application of Articles 83 and 84 of the Rules of Procedure.
There is accordingly no urgency.
The application for interim measures made by M.D. must be refused, and costs reserved.
On those grounds
Having regard to Articles 39 and 66 of the Treaty establishing the ECSC; Having regard to Article 33 of the Statute of the ECSC Court of Justice; Having regard to Articles 83 and 84 of the Rules of Procedure; After hearing the parties to the main action and the intervening party;
the President
1. Dismisses the applications for urgent interim measures 160/73 R and 161/73 R;
2. Reserves the costs.
Luxembourg, 11 October 1973.
A. Van Houtte R. Lecourt
Registrar President