C-113/77

ORDER OF THE PRESIDENT OF THE COURT 14 OCTOBER 1977

NTN TOYO Bearing Co., Ltd. v Council of the European Communities

Case 113 /77 R and 113 /77 R-Int.

In Cases 113/77 R and 113/77 R-Int.,

Ntn Toyo BEARING Co., Ltd ., Osaka, acting on its own behalf and on behalf

of its subsidiaries or affiliates NTN Wälzlager (Europa) GmbH, Erkrath, NTN-Roulements Sidag S.A., Schweighouse-sur-Moder, and NTN Bearings-GKN Ltd., Burntwood, Walsall, represented by Dr. W. Stoecker and Malte Sprenger, of the Düsseldorf Bar, Dr. Werner von Simson, Professor of Law, University of Freiburg im Breisgau, and Martin von Simson, Barrister, of the Middle Temple, London, with an address for service in Luxembourg at the Chambers of Danielle d'ltnart, 11 A, Boulevard Prince Henri,

represented by Jeremy Lever, Queen's Counsel, of Gray's Inn, David Vaughan, Barrister, of the Inner Temple, London, and Messrs Coward

Chance, Solicitors, London, with an address for service in Luxembourg at the Chambers of J. C. Wolter, 2, Rue Goethe,

interveners,

v

Council of the European Communities , represented by its Legal Adviser, Peter

Bruckner, assisted by Mr Beseler, Counsel for the Commission of the

ORDER

Facts

1. Article 15 (1) (a) of Regulation (EEC) (EEC) No 261/77 of 4 February 1977 (OJ No 459/68 of the Council of 5 April L 34, 1977, p. 60): 1968 on protection against dumping or — Imposed a provisional anti-dumping the granting of bounties or subsidies by duty of 20 % on ball bearings, countries which are not members of the tapered roller bearings and parts of

European Economic Community (OJ, those two types of bearings, English Special Edition 1968 (I), p. 80) originating in Japan; provides as follows: — Ordered that the entry of those

products into free circulation should

be conditional upon the deposit of Where preliminary examination of the security for the amount of the matter shows that there is dumping and provisional duty. there is sufficient evidence injury of

way of provisional duty under the file, the competent British, French and

provisions of Regulations Nos 261/77 German customs authorities are insisting

and 944/77, in respect of products that the NTN Group shall pay forthwith manufactured and exported by — the amounts arising under the

among others — NTN TOYO aforementioned Article 3 of Regulation

Bearing Co. Ltd. (hereinafter referred (EEC) No 1778/77; to as 'NTN') and Nippon Seiko K.k. (hereinafter referred to as 'NSK'), The applicant is ready to maintain in 'shall be definitively collected to the force thesecurity provided, in pursuance extent that they do not exceed the of Regulations Nos 261/77 and 944/77, rate of duty fixed in this regulation', in the form of bank guarantees. In these

that is, 15 % (Article 3). circumstances there is no necessity to

event of NTN's succeeding in the main On 28 September 1977 NTN in addition action. It must be assumed that in that applied to the Court in pursuance of event the national customs authorities Articles 185 and 186 of the EEC Treaty would simply reimburse the sums paid for the adoption of interim measures but would not pay interest. ordering that the aforementioned Article 3 'is suspended and shall not be The Council contends that the enforceable before the Court has passed application should be dismissed. The its decision [in Case 113/77] ... with the applicant has failed to establish prima effect that the Commission may, without facie that it would suffer serious and undue delay, instruct the authorities of irreparable injury if the relief sought were the Member States to abstain from the not granted. The Council does not implementing of [the aforesaid Article 3] contest the statement that the NTN and to withdraw and any cancel request

Group would incur additional financing for (Case 113/77 R). payment'

costs if payment were to be made

The latter application was lodged both in forthwith. However, these additional

NTN's own name 'and on behalf of its charges are trifling in comparison with

subsidiaries and affiliates in the Common the turnover of the companies concerned

3. By a document dated 7 October aforementioned Article 3 and an

1977, lodged at the Court on the same application for the adoption of interim day, NSK and its subsidiaries NSK measures (Cases 119/77 and 119/77 R). Bearings Europe Ltd, NSK Kugellager GmbH and NSK France SA (hereinafter NTN states that it has no objection to

collectively referred to as 'the NSK the admission of the companies in Group'

applied in pursuance of Article question as interveners. The Council, 37 of the Protocol on the Statute of the however, contends that the application to Court of Justice of the EEC to intervene intervene should be dismissed. The NSK in Case 113/77 R in support of NTN. In Group has not, it is claimed, established addition they claimed in the oral any interest in the result of Case 113/77 procedure that the Council should be R as each of the two applications for the ordered to pay the costs of the adoption of interim measures must be intervention. adjudged on its own merits.

The abovementioned companies state 4. On 10 October 1977 the parties

thatthey have an interest in the granting Presented oral argument before the

which might it from granting a prevent of a considerable amount, of which

corresponding application from the NSK details were provided by NTN, would be Group. incurred by it or by the NTN Group until the delivery of judgment in the

On 10 October 1977 the NSK Group main action, Case 113/77. NTN asked

lodged with the Court an application for that the abovementioned details should

a declaration of the inapplicability of the be treated as confidential.

Decision

application lodged by this group for the adoption of interim measures and to

its application in the main action (Cases 119/77 R and 119/77). It therefore

appears appropriate to reserve regarding the decision the costs of the

intervention for the final judgment in Case 119/77.

4 (2) The Council has not contested that the competent British, French and

German customs authorities are insisting that the payments required under Article 3 of Regulation No 1778/77 shall be made forthwith. Nor has it contested that the NTN Group will incur the additional charges referred to by NTN in the event of the dismissal of the latter's application for the

adoption of the interim measures applied for would cause appreciable

detriment to the European Economic Community if the NTN Group were to maintain the existing bank guarantees in the sums to be paid in accordance

with Article 3 of Regulation No 1778/77 and if NTN were to be unsuccessful in the main action.

8 NTN has thus substantiated the circumstances giving rise to urgency and the factual and legal grounds establishing a prima facie case for the suspension of the application, as far as the NTN Group is concerned, of the abovementioned Article 3 (Article 83 (2) of the Rules of Procedure of the Court of Justice).

9 To that extent therefore the application of the said article must be suspended until the final judgment in the case of NTN v Council (Case 113/77) on condition that and for so long as the NTN Group continues to provide

security for the performance of its obligation in the amounts which it is

1. The intervention of Nippon Seiko K.K., NSK Bearings Europe

Ltd., NSK Kugellager GmbH and NSK France S.A. in this

interlocutory procedure is allowed;

Costs of the intervention are reserved for the final judgment in the case of NSK and Others v Council (Case 119/77);

2. The application NTN, NTN Walzlager (Europa) GmbH, to

NTN-Roulements Sidag S.A. and NTN Bearings-GKN Ltd. of Article 3 of Council Regulation (EEC) No 1778/77 is suspended until the final judgment in the case of NTN v Council (Case 113/77), on condition that and for so long as these companies

A. Van Houtte H. Kutscher

Registrar President