C-792/79

ORDER OF 17. 1. 1980 — CASE 792/79 R

In Case 7 9 2 / 7 9 R

CAMERA CARE LIMITED, a c o m p a n y engaged in the repair, hire and sale of professional p h o t o g r a p h i c equipment, with its registered office in Belfast, N o r t h e r n Ireland, represented, for the written p r o c e d u r e , b y E m m a n u e l

CAMERA CARE v COMMISSION

Pollard, Solicitor, London, and, for the oral procedure, by Mark R. P. Barnes, Barrister, of Gray's Inn, instructed by Mr Pollard, with an address for service in Luxembourg at the office of Webber, Wentzel & Co., 50 Route d'Esch, applicant, v

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, John Temple Lang, acting as Agent, with an address for service in Luxem- bourg at the office of its Legal Adviser Mario Cervino, Jean Monnet Building, Kirchberg, defendant,

HASSELBLAD (GB) LTD., with its registered office in Wembley, England, and VICTOR HASSELBLAD A/B, an undertaking manufacturing cameras and photographic accessories, with its registered office in Göteborg, Sweden, represented by William T. Stockier, Solicitor, Hamburg, with an address for service in Luxembourg c/o the Vereins- und Westbank Internationale S. A., 25 Boulevard Royal, interveners, APPLICATION for the adoption of interim measures,

I — S u m m a r y of t h e facts (c) maintaining and applying provisions of supply agreements with certain dealers which restrict or prevent export from, in particular, France and Germany to the United Camera Care Limited, a company Kingdom. engaged in the repair, hire and sale of professional photographic equipment, whose registered office is in Belfast, asked the Commission by complaint In its application Camera Care Limited dated 26 June 1979 and received by the also asked the Commission to make an Commission on 5 July to open an interim decision requiring Hasselblad investigation under Article 3 of Regu- A/B and Hasselblad (GB) Limited to lation N o 17 of the Council of 6 bring to an end forthwith the practices February 1962, the First Regulation complained of and to make supplies of implementing Articles 85 and 86 of the Hasselblad products to the order of the Treaty (Official Journal, English Special applicant at the prices and upon the Edition 1959-1962, p. 87), to establish terms usually applied. whether Victor Hasselblad A/B, an undertaking manufacturing cameras and On 27 August 1979 the Commission photographic equipment, whose regis- informed Camera Care Limited that its tered office is in Göteborg, Sweden, complaint of 26 June had been receiving Hasselblad (GB) Limited, whose its attention and that it had advised registered office is in Wembley, England, Hasselblad (GB) Limited of its essential and Safveans A/B, whose registered points in requesting that company to office is in Goteborg, were in breach of supply certain supplementary information Articles 85 and 86 of the EEC Treaty. together with its comments. The Commission also informed Camera Care that it regretted it could not comply with its proposal to take interim measures According to Camera Care Limited the because under Community law there was infringements by the companies con- no legal basis for this. cerned consisted mainly of:

(a) to make a decision to the effect Treaty forthwith upon judgment in requested by the applicant the action by taking the measures namely, a decision addressed to specified in (1) (a) or alternatively Hasselblad AB and Hasselblad (1) (b) above. (GB) Limited, requiring them and each of them pending the outcome of its investigation to make supplies of Hasselblad products to the reasonable order Also on 5 November 1979 Camera Care of the applicant at the prices and Limited applied to the Court under upon the terms usually applied to Article 186 of the EEC Treaty, Article Hasselblad dealers in the United 36 of the Protocol on the Statute of the Kingdom and requiring them to Court of Justice of the EEC and Article refrain whether by themselves, 83 of the Rules of Procedure, for the their officers, servants or agents, adoption of interim measures. In and whether by the enforcement particular the applicant claimed that the of contractual stipulation or Court should, by way of interim relief: otherwise howsoever from preventing or in any way hindering or obstructing the supply or Hasselblad products to the applicant by any other (a) Order the Commission forthwith to person; make a decision addressed to Has- selblad A/B and Hasselblad (GB) Limited, requiring them or each of them pending the outcome of its or alternatively in failing investigation under Article 3 of Regulation No 17 or the final hearing of this action (whichever shall be sooner) to make supplies of all Hasselblad products including (b) to consider whether it is just and spare parts and repair tools to the proper that any (and if so what) reasonable order of the applicant at interim measures be taken for the prices and upon the terms usually the protection of the applicant's applied to Hasselblad dealers in the business pending the outcome of United Kingdom and further the defendant's investigation and restraining them and each of them to make an order or decision whether by themselves, their officers, accordingly; servants or agents and whether by the enforcement of contractual stipu- lation or otherwise howsoever from preventing or in any way hindering (2) Alternatively: to make an order or obstructing the supply of Has- setting aside the defendant's refusal selblad products to the applicant by to take all or any of the steps any other person; aforesaid;

On 10 December 1979, Hasselblad (GB) A remedy in damages under national law Limited and Hasselblad AB applied to against members of the Hasselblad group the Court under the second paragraph of would be inadequate. Article 37 of the Statute of the Court of Justice of the EEC to be allowed to intervene in the dispute between Camera The urgency of the matter therefore Care Limited and the Commission with arises from the continuing and regard to both the main action and the progressive accumulation of damage for application for interim measures. On which no compensation is available, from hearing the report of the Judge-Rap- the insecurity of present indirect supplies, porteur and the views of the Advocate the resulting possibility that the whole of General and noting the written obser- the applicant's business in the medium vations of the applicant in the main format market may be destroyed at very action and of the Commission, the Court short notice, and from the refusal of the allowed the intervention by order of 12 Commission even to consider the December 1979. possibility of interim measures.

CAMERA CARE v COMMISSION

— Interim measures are essentially measures to protect the status quo. The tasks of the Commission under the EEC Treaty and the need to protect undertakings injured by breaches of the Treaty suggest that the principle upheld — The Court has wide powers to make in the case-law of the Court in the orders dealing with aspects of the context of the ECSC Treaty, by which situation which might cause the Commission has the implied power difficulty. to take interim measures in cases of abuse of a dominant position, should also apply under the EEC Treaty. The Commission leaves this important (c) The question whether interim question to the Court. measures should be taken in this case needs to be considered separately in relation to the different breaches of Community law alleged by the applicant. (b) The principles which guide the The principal breach to be considered is Court in ordering interim measures the refusai to supply.

ORDER OF 17. 1. 1980 — CASE 792/79 R

The first requirement for interim sitting on 9 January 1980, dealing in measures, that there must be urgent particular, at the request of the Court, necessity to prevent serious and irre- with the question of the powers of the parable damage is fulfilled in this case. Commission to adopt interim measures; they also gave their answers to questions put by the Court.

(d) In conclusion, interim measures should, on balance, probably be ordered in this case. It is for the Court to decide whether interim measures should be The Commission was of the opinion that ordered by the Court itself, or by the it possessed an implied power to take Commission if the Court decides that the interim decisions, inherent in the powers Commission has power to order them. expressly conferred upon it, for the adoption of provisional conservatory measures, subject to review by the Court. It must be acknowledged to have this power, essentially for reasons of practicality: the Commission must be in a IV — O r a l p r o c e d u r e position to protect undertakings which are victims of breaches of the competition rules of the Treaty and to guarantee the efficacy of such provisions, The parties to the main action and the particularly in the event of a boycott or a interveners presented oral argument at a refusal to supply.

CAMERA CARE v COMMISSION

Hasselblad (GB) Ltd. and Victor Has- The argument relating to urgency cannot selblad A/B, the interveners, stated that be accepted: the Commission is entirely the concept of "interim measures" was in a position to adopt a definitive capable of being understood in a very decision at short notice and without broad sense and that accordingly a disregarding the right of the parties power on the part of the Commission in concerned to be heard. this field can result only from an express provision, whereas neither the EEC The Advocate General delivered his Treaty nor Regulation No 17 confers on opinion at a second sitting also held on 9 it the power to adopt interim measures. January 1980.

4 Faced with the refusal by the Commission to adopt interim measures the applicant brought an action on 5 November 1979 based on both Article 173 and Article 175 of the Treaty seeking either the setting aside of the communication referred to above or a declaration by the Court that the Commission was in breach of the Treaty for refraining from meeting the request for the adoption of interim measures.

5 In an application for the adoption of interim measures lodged on the same day under Article 186 of the Treaty, the applicant asked the Court as a matter of urgency to make an injunction against the Commission ordering it to take an appropriate decision with regard to Hasselblad or, alternatively, to take urgent measures itself.

6 In its written observations on the subject of the application for interim measures, the Commission expressed doubts upon the admissibility of the main action. At the same time, however, it indicated that it thought interim measures might be justified at that stage. Although it believed it possessed the powers needed to do this, in the absence of any clear indication on this point in Regulation No 17, it did not wish to take measures on its own initiative and consequently requested the Court to settle this question of principle at the outset.

7 By order of 26 November 1979 the President of the Court referred the application for interim measures to the Court under the first paragraph of Article 85 of the Rules of Procedure.

CAMERA CARE v COMMISSION

8 By an application of 10 December 1979 the Hasselblad companies applied to be allowed to intervene in the main action and with regard to the application for the adoption of interim measures. The Court allowed the interventions by order of 12 December 1979.

1 3 It is recalled that Article 3 (1) of the Regulation provides that: "Where the Commission, upon application or upon its own initiative, finds that there is infringement of Article 85 or Article 86 of the Treaty, it may by decision require the undertakings . . . concerned to bring such an infringement to an

ORDER OF 17. 1. 1980 — CASE 792/79 R

end". Paragraph (3) of the same article adds that the Commission, before taking a decision under paragraph (1), may "address to the undertakings . . . concerned recommendations for termination of the infringement".

H It is obvious that in certain circumstances there may be a need to adopt interim protective measures when the practice of certain undertakings in competition matters has the effect of injuring the interests of some Member States, causing damage to other undertakings, or of unacceptably jeopardizing the Community's competition policy. In such circumstances it is important to ensure that, whilst inquiries are being carried out no irreparable damage is caused such as could not be remedied by any decision which the Commission might take at the conclusion of the administrative procedure.

is Although it is true that, from the point of view of both the efficacy of competition law and the protection of the legitimate interests of the Member States or undertakings concerned, the adoption of protective measures may seem to be necessary in certain circumstances, the provisions of Regulation No 17 must nevertheless be examined to see whether they can accommodate this legal requirement.

is From this point of view the Commission must also be able, within the bounds of its supervisory task conferred upon it in competition matters by the Treaty and Regulation N o 17, to take protective measures to the extent to which they might appear indispensable in order to avoid the exercise of the power to make decisions given by Article 3 from becoming ineffectual or even illusory because of the action of certain undertakings. The powers which the Commission holds under Article 3 (1) of Regulation N o 17 therefore include the power to take interim measures which are indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist.

i9 However, the Commission could not take such measures without having regard to the legitimate interests of the undertaking concerned by them. For this reason it is essential that interim measures be taken only in cases proved to be urgent in order to avoid a situation likely to cause serious and irre­ parable damage to the party seeking their adoption, or which is intolerable for the public interest. A further requirement is that these measures be of a temporary and conservatory nature and restricted to what is required in the given situation. When adopting them the Commission is bound to maintain the essential safeguards guaranteed to the parties concerned by Regulation N o 17, in particular by Article 19. Finally, the decisions must be made in such a form that an action may be brought upon them before the Court of Justice by any party who considers he has been injured.

as an interlocutory decision, hereby orders as follows :

1. It is for the Commission to decide by virtue of Article 3 (1) of Regu- lation No 17 whether there are grounds for adopting interim measures pursuant to the application made by the applicant. The remainder of the applicant's claims are dismissed.

CAMERA CARE v COMMISSION

2. Costs are reserved.

Luxembourg, 17 January 1980.

A. Van Houtte H . Kutscher Registrar President

The Commission in its written obser- was not, in form or in substance, a vations on the application for interim decision of the Commission. On that measures took two points as to the point the Commission cited the opinion admissibility of the main application in of Mr Advocate General Mayras in so far as it is founded on Article 173 of Cases 109 and 114/75 N.C.C, v the Treaty. There was some discussion Commission [1977] 1 ECR 381, an this morning on the question whether opinion which, because of the subsequent those points could be relevant at this discontinuance of the proceedings, was stage. In my opinion they must be, not followed by a judgment of the because, if Your Lordships were to take Court. It seems to me that, as was the view that the main application was submitted on behalf of the applicant, that clearly inadmissible, the present opinion, in which Mr Advocate General application must fail, or at all events it Mayras very thoroughly considered the would be open to Your Lordships to relevant law, is a clear authority against reject it on that ground. the Commission's submission, because