C-26/76

ORDER OF THE PRESIDENT OF THE COURT

OF 23 JULY 1976 <apnote>1</apnote>

Metro SB-Großmärkte GmbH & Co. KG

v Commission of the European Communities

Case 26/76 R

In Case 26/76 R

FIRMA SABA SCHWARZWÄ LDER APPARATE-BAU-ANSTALT AUGUST SCHWER SÖHNE, represented by Bodo Haggeney of the Stuttgart Bar, with an address for service in Luxembourg at the Chambers of Georges Reuter, 12 rue Notre Dame,

intervener,

J. MERTENS DE WILMARS, JUDGE AT THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

acting for the President of the Court pursuant to the second paragraph of Article 85, the second paragraph of Article 11 and Article 6 of the Rules of Procedure, makes the following

1 — Language of the Case: German.

ORDER OF 23. 7. 1976 - CASE 26/76 R

and to the distribution system applied by laid down in this respect. SABA (Schwarzwälder Apparate-Bau- Anstalt August Schwer und Sonne That decision was the subject-matter of GmbH) with regard to the electronic Application No 26/76 by Metro which equipment for the leisure market which considers that the result thereof is that, as the latter company places on the market. a wholesale supermarket, it is precluded from obtaining supplies of articles made By order of 5 May 1976, SABA was given under the trade name SABA although leave to intervene in Case 26/76 in because of the particular structure and support of the conclusions of the organization of its undertaking it would defendant. be able to resell those articles at an attractive price. The Commission established by the contested decision that the prohibition By a separate document of 8 July 1976, contained in Article 85 (1) of the EEC registered at the Court of Justice on 12 Treaty does not concern conditions of July 1976, Metro lodged an application sale for the domestic market and that for the adoption of interim measures the other agreements constituting the requesting: distribution system for SABA products — the provisional suspension of the were provisionally exempt under Article operation of the Decision of 15 85 (3) on condition that the SABA December 1975 until the Court has undertaking supplied the Commission given a final decision in this case; with certain information. and, in the alternative, — the adoption of such temporary The system thus permitted consists, in measures as the Court considers substance, in the establishment of a necessary in order to enable the network of selected distributors — applicant to obtain supplies of SABA wholesalers, sole distributors and equipment and resell them as a specialist retailers — who are subject to wholesale supermarket; certain conditions concerning supply, — in particular, a declaration that the after-sales service, suitable display of the restrictions placed on the supply to goods, achievement of an adequate consumers (Distribution Agreement turnover and regard for the distribution for SABA Wholesalers, clause 2 (2), channels on resale. which is at present in force) and to trade retailers (Distribution Agree­ In particular, German wholesalers may ment for SABA Wholesalers, clause 2 only resell to appointed retailers and (1)) are inoperative.

According to Metro, the measures sought decision of the Commission of 15 are urgent because, owing to the pressure December 1975 and for the adoption brought to bear by the SABA of interim measures, undertaking and changes in the practice — alternatively, request SABA pending of other undertakings which are judgment on the substance of the operating in the field of electronic case not to enforce against SABA equipment for leisure purposes, Metro is distributors who are willing to supply virtually unable to obtain SABA the applicant with SABA products equipment any longer and the range of the contractual rights prohibiting products which it can offer in that field those supplies to the said distributors. is thus greatly restricted.

1976. SABA refers to a decision of the It is therefore doubtful whether there is Oberlandesgericht, Hamburg, of 11 any urgency and whether irreparable December 1975 which it claims damage is caused in the absence of the established that Metro does not fulfil the measures requested since Metro's conditions required by German turnover in the field of electronic legislation for the definition 'wholesaler'. equipment for leisure purposes only represents a small proportion of its total Wholesale supermarkets may be

It claims that, according to Metro's own statements, Metro has been unable to It claims that the Court should: obtain supplies of SABA equipment — dismiss the applications for since January 1976 and that that fact has suspension of the operation of the not perceptibly worsened a supply

1 The application for the adoption of interim measures is, first, for the suspension, until the decision of the Court giving judgment in the main action, of the operation of the Decision of the Commission of 15 December 1975 by which the latter declares that there are no grounds under Article 85 (1) of the EEC Treaty for action on its part in respect of the conditions of resale for the domestic market applied by SABA and declares moreover that, pursuant to Article 85 (3) of the same Treaty, Article 85 (1) is temporarily inapplicable to various agreements relating to the distribution of electronic equipment for leisure purposes by which that same undertaking binds the wholesalers, sole distributors and specialist retailers which it appoints for the sale or resale of its products. That application is, alternatively, for the adoption of measures to enable the applicant to obtain provisionally supplies of SABA equipment and to resell it in its capacity as a wholesale supermarket.

2 The decision, the suspension of the operation of which is requested, does not only concern the relationship of SABA to the applicant but that of SABA to all distributors of the equipment which it places on the Community market.

Since a measure, which would have the effect of suspending all those relationships, would be outside the scope of an urgent interim measure intended to safeguard temporarily the interests of the applicant the principal application should therefore be dismissed.

3 With regard to the alternative application, it has not been established that it would be impossible for the applicant to comply, even temporarily, with the

Having regard to the urgency,

The President,

by way of an interim ruling,

hereby orders:

1. The application for the adoption of interim measures is dismissed.

2. The costs are reserved.