C-20/74

Kali-Chemie AG, a company governed by German law, having its registered office in Hanover D 3000, at 20, Hans-Böckler-Allee, represented by Philip

von Bismarck and others, its directors, assisted by Rolf C. Galler, Joachim Meyer-Landrut and Fritz Georg Miller, all of the Düsseldorf Bar, with an

address for service in Luxembourg at the chambers of Jacques Loesch, 2, rue Goethe,

applicant,

v

Commission of the European Communities , represented by its Legal Adviser, Rolf Wägenbaur, with an address for service in Luxembourg at the office of Pierre Lamoureux, Legal Adviser, 4, boulevard Royal,

basis of Article 85 of the EEC Treaty the Salz/Kali Chemie — OJEC of 23 Commission, by Decision of 21 January 1974, page 22), ordered the

1 — Language of the Case: German.

ORDER OF 3 . 4. 1974 — CASE 20/74 R

undertakings Kali und Salz AG Finally, KC invokes the element of

(hereinafter referred to as KS) and uncertainty surrounding the continued

Kali-Chemie AG (hereinafter referred to exploitation of the mine the production

Article 3 of the contested Decision, by operation must be rigorously examined. means of which the Commission ordered In this case, it seems highly debatable, in the undertakings to end the infringement its opinion, whether the applicant has the existence of which it alleges to have furnished sufficient evidence of the established. necessity and urgency of the interim This application comprises three measure applied for. arguments; the first points out the 'incalculable' The Commission states, first, that the risks which KC would take ambit of the Decision taken is clear and by continuing its sales to KS under it does not leave the applicant in any threat of possible Community penalties. legal uncertainty. KC points out, secondly, the dangerous alternative with which it is confronted Following this Decision, the applicant and which obliges it either to has, in the Commission's opinion, other stop, least in part, its production possibilities open to it than to cease entirely or at

of potash, or to create the conditions production or to search for new outlets necessary for it to market its own for the product in question, as

products, by tying up, for this purpose, distribution of the latter could be carried substantial investment disproportionate out on a parallel basis with that of other to the expected results. types of production which are at the

present time distributed directly by the KC is thus faced, in its opinion, with the applicant. need to make a choice and to take

decisions capable, in view of the risk As regards the position of the mine in which they involve, of causing it question, the new argument put forward irreparable damage due to the closure of bv the applicant could not be taken into mines, to certain problems relating to account in the Commission's Decision the labour force, which must be laid off and it has been so far impossible to

KC emphasized, separate sale of pure potash is possible firstly, the impossibility of pure potash and processed both within the Community and in third selling fertiliser at the same time; secondly, the countries.

fact that the potash in dispute cannot be The creation of storage capacity is a

compared with a product of marketable problem which can be solved in practice quality; and, lastly, the fact that without large scale investment. The fluctuations in production and sales Commission recognizes however that the prevent the creation of adequate storage investment necessary cannot be capacity. accurately calculated at the present time.

Law

1 The future of KC could be irreparably damaged if the Decision taken was immediately put into effect, since there is no ready safeguard against the

risks involved for the exploitation of the mine and those relating to the

the President

as an interim ruling,

ORDER OF 3. 4. 1974 — CASE 20/74 R

ORDERS

1. The operation of Article 3 of the Decision of the Commission of

21 December 1973 (IV/795-OJEC of 23 January 1974) is suspended until 15 July.