C-209/78

Établissements Gosset, S.A., represented by Walter van Gerven and Jean- François Bellis, of the Brussels Bar, 47 Rue Ducale, 1000 Brussels, with an address for service in Luxembourg at the Chambers of the said Ernest Arendt,

B.A.T. Benelux, S.A., represented by Philippe-François Lebrun, of the Brussels Bar, 31 Rue Montoyer, Bte. 2, 1040 Brussels, with an address for service in Luxembourg at the Chambers of the said Ernest Arendt,

Compagnie Independante des Tabacs CINTA S.A., represented by Edouard Jakhian and Bernard Hanotiau, of the Brussels Bar, of 56 and 82 respectively, Avenue F. D. Roosevelt, 1050 Brussels, with an address for service in Luxembourg at the Chambers of the said Ernest Arendt,

Weitab S.A., represented by Pierre van Ommeslaghe, of the Brussels Bar, 167 Avenue Montjoie, 1180 Brussels, with an address for service in Luxem­ bourg at the Chambers of the said Ernest Arendt,

Jubilf S.A., represented by Hans G. Kemmler, Barbara Rapp-Jung and Alexander Böhlke, 8 Meisengasse, 6 Frankfurt am Main, with an address for service in Luxembourg at the Chambers of the said Ernest Arendt,

1 — Languages of the Case French and German

Association Nationale des Grossistes en Produits Manufacturés du Tabac, a trade association, represented by Jean-Marie van Hille and Nadine Françoise, of the Ghent Bar, 91 Coupure, Ghent, with an address for service in Luxembourg at the Chambers of Fernard Entringer, 2 Rue du Palais de Justice,

interveners, v

Commission of the European Communities, represented by its Legal Adviser, B. van der Esch, acting as Agent, assisted by J. Fr. Verstrynge and G. zur Hausen, Members of the Legal Department of the Commission, with an address for service in Luxembourg at the office of Mario Cervino, Jean Monnet Building, Kirchberg,

defendant,

THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

acting in pursuance of the second paragraph of Article 85 and the second paragraph of Article 11 of the Rules of Procedure in place of the President of the Court, makes the following

As a result of a proceeding under Each has, by a separate document, Article 85 of the EEC Treaty the applied for a stay of execution of Article Commission on 20 July 1978 adopted 3 (1) (and in certain cases of Article 2) Decision No 78/670/EEC (IV.28.852 of the decision until the Court has given GB-INNO-BM/FEDETAB; IV/29.127 final judgment. Mestdagh-Hyghebaert/ FEDETAB; IV/­ By order of the Court of 26 October 29.149 — FEDETAB recommendation, 1978 the above-mentioned cases were Official Journal L 224, p. 29) finding joined for the purposes of the written that the applicants had infringed Article and oral procedure. 85 of the Treaty in one or more respects. By order of the same date the Court allowed the intervention of the Article 3 (1) of the decision requires the interveners in the said cases in support applicants to terminate without delay the infringement referred to in Article 2 of the applicants' claims. and in future to abstain from all acts The applicants and interveners allege whatsoever having the same object as essentially that in the event of there the said infringement. being no stay of execution of Article 3 Article 2 of the said decision declares (1) of the decision in dispute there will in the immediate future be a that the recommendation for cigarette sales in Belgium (hereinafter referred to considerable and irreversible upheaval in as "the FEDETAB recommendation") the conditions of the Belgian market in notified to the Commission by the cirgarettes to the great detriment of the applicants, which took effect on 1 manufacturers, wholesalers and December 1975 and having as its object: specialist retailers. The Commission takes the view that the 1. The division of the Belgian wholesalers and retailers into cate­ immediate cessation of the restrictive gories and the allocation to the latter practices prohibited by the Commission of different profit margins; would in no way risk causing irrep­ 2. The application to wholesalers and arable damage to the applicants. retailers of standard terms of In particular the immediate return to payment; and competition at the level of trade in 3. The granting to wholesalers and tobacco products would not endanger retailers of end-of-year rebates; any effective intermediary or any competitive producer and would involve constitutes an infringement of Article 85 individual adjustments only over a (1) of the Treaty and does not qualify period which would far exceed the for exemption under Article 85 (3) thereof. duration of proceedings before the Court

3 Accordingly the possibility of immediate and irreversible damage cannot be excluded.

4 It is accordingly appropriate in pursuance of Article 185 of the EEC Treaty to order that the application of Articles 2 and 3 of the decision in dispute be suspended pending judgment by the Court in the main action which can in no way be prejudiced.

5 Such stay however in no way makes provisionally valid any agreement or concerted practice declared null and void under Article 85 (1) subject as provided in Article 85 (2), since the court to which application is made for the adoption of interim measures cannot substitute its discretion for that of the Commission.

6 Every member of FEDETAB is free to disregard at any time the rules agreed by the FEDETAB recommendation of 1 December 1975.

7 In the circumstances costs must be reserved.

VAN LANDEWYCK v COMMISSION

(2) FEDETAB shall inform all its members of the contents of this order.

(3) Costs are reserved.

Luxembourg, 30 October 1978.

J. A. Pompe A. J. Mackenzie Stuart Assistant Registrar President of the Second Chamber Acting President of the Court