C-71/74
ECLI:EU:C:1974:103
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ORDER OF THE PRESIDENT OF THE COURT
OF 25 OCTOBER 1974 1
Nederlandse Vereniging voor de Fruit- en Groentenimporthandel, Nederlandse Bond van Grossiers in Zuidvruchten en ander
Geimporteerd Fruit v Commission of the European Communities
Case 71/74 R and RR
In Cases 71/74 R and RR
Nederlandse Vereniging voor de Fruit- en Groentenimporthandel, Nederlandse Bond van Grossiers in Zuidvruchten en ander Geimpor
teerd Fruit, represented by J. J. A. Ellis and B. H. ter Kuile, both advocates and avoués at The Hague, with an address for service in Luxembourg at the chambers of J. Loesch, advocate, 2, rue Goethe, .
applicants,
v
Commission of the European Communities, represented by its Legal Adviser, B. van der Esch, with an address for service in Luxembourg at the office of P. Lamoureux, Legal Adviser, 4, boulevard Royal,
defendant,
and
The Fruitunie Association, represented by R. A. de Jonge, advocate at Utrecht, with an address for service in Luxembourg at the chambers of E. Arendt, avocat-avoue, 34 B IV, rue Philippe II,
intervener,
The President of the Court of Justice of the European Communities
makes the following
1 — Language of the Case: Dutch.
ORDER OF 15.10. 1974 — CASE 71/74 R AND RR
ORDER
Facts
On the basis of a proceeding instituted It undertook not to act otherwise in this under Article 85 of the Treaty case.
establishing the EEC, the Commission The applicants request further that the took a Decision, on 25 July 1974 Court should suspend the operation of (IV/26.602 — Frubo, OJ L 237, of the contested Decision until it has given 29. 8. 1974, p. 16 et seq.), by which it judgment in the main action. declared that the provisions of Article 9 of an agreement concluded between the In support of this application they invoke the need for their Association, applicants relating to the sale by auction the fact that it has been in existance for of citrus and other fruit imported into the Netherlands constitute an infringe many years and the fact that even if they were to succeed in the main action the ment of Article 85 (1) of the Treaty. temporary suspension of the Associa The Decision rejected the applicants' tion's effectiveness would permanently request for exemption under Article 85 jeopardize its existence. (3) and ordered them and the associated There is also serious doubt concerning undertakings to bring the said the validity of the contested Decision. infringements to an end forthwith. Moreover, the matter is pressing, since On 23 September 1974, the applicants brought an action for the annulment of the marketing season for Spanish the said Decision. oranges is approaching and must be conducted in accordance with the By a separate document they made a traditional marketing system which, twofold application for suspension of otherwise, will 'collapse', resulting in a operation to cover, on the one hand, the rise in prices which until now have been period prior to the Court's interim lower than those in force generally in the decision, and, on the other hand, the EEC. period between the interim decision and No Community interest opposes the the Court's judgment in the main action. grant of the suspension, given the fact that the marketing system in issue has By statement of 30 September 1974, existed since 1952 and the fact that it Fruitunie made an application to took the Commission several years to intervene in the main action and in this reach its Decision. interim procedure. In conclusion, the applicants ask the The applicants made a first special Court, in its decision on the interim application to suspend the operation of application, to order the suspension of the Decision until the Court had reached operation of the Decision of the a decision in the interim procedure. Commission of the European Communi The Commission replied that it is not its ties of 25 July 1974 (No IV/26.602 — practice to force the parties concerned Frubo) 'until judgment has been formally to annul their agreements or to delivered in the action brought by the make them conform to the Treaty when applicants against this Decision, or at an interim application is pending against least until such time as the Court shall a decision declaring an agreement judge to be just and appropriate, subject incompatible with Article 85. to any decision in the matter which the
FRUIT- EN GROENTENIMPORTHANDEL v COMMISSION
Court may consider necessary, and to fact that its interest might be com order the Commission to bear the costs promised by an annulment of the of the interim procedure'. Decision or by suspension of its The Commission, defendant in the main operation. action in the interim procedure, claims The continuance of the agreement, even that it is not certain that an amendment on a temporary basis, would prevent the of the basic document of association intervener from operating independently during the case is likely to cause as an importer and would restrict its immediate and irreparable damage. freedom of supply. Moreover, in the defendant's opinion, This situation affects trade between the Court is being asked to substitute Member States, as is shown by the itself for the Commission and the contested Decision. suspension of operation of a decision of rejection cannot be equated with the The intervener is likely to suffer serious grant of an authorization which has been damage. refused by the executive. Accordingly, it concludes that the Court Even if the Court considers the should dismiss the application for Commission's argument incorrect, it is suspension of operation. not advisable in this case for the Court The applicants in the main action to adopt the measure requested, since oppose the request to intervene made by this would cause the wholesalers once Fruitunie on the grounds that the more to be liable to penalties under the submissions set out in the application to agreement. intervene do not seek to support the The Commission submits in conclusion submissions of one of the parties, but that the application should be dismissed seek to support the Decision in issue, and the applicants ordered to bear the and that the said request does not satisfy costs of the interim procedure. the procedural requirements laid down The intervener asserts that it has an by the Protocol on the Statute of the interest in the action by reason of the Court.
Law
1 The intervener's interest in the case results from the advantages which it can gain from the operation of a Decision freeing it from the agreement in issue.
2 This being so, it supports the submissions of the Commission.
3 Its intervention in this interim procedure is therefore admissible.
4 The aim of the interim application is to persuade the Court to decide in favour of the suspension of operation of the Commission's Decision, with the
ORDER OF 15.10. 1974 — CASE 71/74 R AND RR
result that the prohibited agreement should be regarded as temporarily valid until judgment is given in the main action.
5 However, it is outside the jurisdiction of the Court, within the context of an interim procedure, to substitute its own appraisal for that of the Commission and render provisionally valid an agreement which has been annulled on the basis of Article 85 (1) with the consequences prescribed by Article 85 (2).
6 In compliance with Article 185 of the EEC Treaty, the Court can, at most, grant a suspension of the operation of the contested Decision insofar as that suspension is established to be absolutely necessary, having regard to the urgency of the situation and to the irreversible nature of the damage which might ensue from immediate operation of the Decision before the Court's judgment in the main action, with regard to which such suspension is in any case without prejudice.
7 The Commission, moreover, has declared that 'it is not its practice to force the parties concerned formally to annul their agreements or to make them conform to the Treaty when an interim application is pending against a decision declaring an agreement incompatible with Article 85'.
8 It is therefore sufficient to suspend the operation of the Commission's Decision until the date of the Court's judgment, subject however to the non-application, during that period, of the clauses under which penalties may be imposed on the parties to the agreement.
9 At this stage, it is appropriate to reserve costs.
On those grounds,
The President
as an interim ruling,
FRUIT- EN GROENTENIMPORTHANDEL v COMMISSION
orders:
1. The intervention of the Fruitunie Association in this interim procedure is allowed;
2. The operation of Decision IV/26.602 — Frubo is suspended until the Court has given its judgment on the substance of the case;
3. However, the clauses under which penalties may be imposed on the parties to the agreement shall not apply during this period;
4. The costs are reserved.
Done and ordered in Luxembourg on 15 October 1974.
A. Van Houtte R. Lecourt
Registrar President