C-258/80

O R D E R OF T H E PRESIDENT OF T H E C O U R T O F 16 DECEMBER 1980 '

S.p.A. Metallurgica Rumi v Commission of the European Communities

"System of production quotas for steel"

Case 258/80 R

Interlocutory proceedings — Powers of judge responsible /or granting interim relief — Jurisdiction to suspend or derogate from a general decision — Limits Interlocutory proceedings — Interim measures — Conditions for grant — Direct link with the decision at issue in the main action (ECSC Treaty, Art. 39; Rules of Procedure, Art. 83 (2))

In Case 258/80 R

ORDER

Facts and Issues

I — The background to the business secrecy of the undertakings dispute must be maintained.

1. By Decision N o 2794/80/ECSC of 3. By virtue of Articles 3, 4 and 5 of 31 October 1980 (Official Journal 1980, that general decision, the quotas for L 291, p. 1), the Commission, con- Group IV for the fourth quarter of 1980 sidering that by reason of the decline in were to be fixed by application of an demand for steel the Community was abatement rate of 17.39% on the basis of confronted with a period of manifest the reference production figures referred to crisis within the meaning of Article 58 of in Article 4. By virtue of Article 5 (2) of the ECSC Treaty and that the means of the decision, the rate of abatement in the action provided for in Article 57 were case of crude steel is to correspond to not sufficient to deal with that situation, the average abatement rates of the four established a system of production groups of rolled products weighted quotas for crude steel (Article 1) and according to the reference production of for four groups of rolled products each of those groups of products. (Article 2).

4. Article 4 provides that the quarterly Group IV covers light sections, which reference production figures for each include coiled wire rod, concrete undertaking shall be calculated as reinforcement bars and other merchant follows : bars, coming under lines 132, 133 and 134 respectively of the Eurostat ques- tionnaire. "(1) For each month of the relevant quarter, reference shall be made to the same month during the period from July 1977 to June 1980 during 2. Article 1 (4) of Decision N o 2794/80 which the total production of the provides for the quota system to be four groups of rolled products was managed by the Commission. It also the highest. The three months thus provides that the Commission may chosen, which will not necessarily obtain assistance from independent be consecutive, shall constitute the agencies or from experts and that the reference period.

tonnes tonnes tonnes tonnes % tonnes

Rolled products Group I 20.78 Group II 18.93 Group III 21.53 Group IV 36 390 40 466 35 833 112 689 17.39 93 092

Totali—IV 36 390 40 466 35 833 112 689 93 092

Steel 46 500 47 392 42 010 135 902 17.39 112 269

8. By letter of 3 November 1980 the the information needed to check that its Commission informed the applicant that production quotas were being observed

ORDER OF 16. 12. 1980 — CASE 258/80 R

9. The applicant refused to agree to the Taking note of these explanations, the checking of its production quotas on the applicant informed the Commission by a ground that the engineer engaged by the telex message dated 28 November 1980 Commission was an employee of a that: competing steel producer. By engaging that engineer as an expert for the purpose of executing the inspections "Having regard to the fact that the which had to be carried out at the technical experts will not have any power applicant's premises the Commission was of initiative and may be removed or failing to maintain the applicant's excluded from the inspection in the event business secrecy and that was contrary to of the company's having reason to Article 1 (4) of the decision of 31 apprehend damage to its interests October 1980. protected by the Treaty, we raise no further objections in view of those specific assurances." A report dealing with that refusal was drawn up and signed by the Commission's agents and by the rep- resentative of the applicant. II — W r i t t e n p r o c e d u r e

1. By an application dated 20 10. In a telex message sent to the November 1980, which was received at applicant on 26 November 1980 the the Court Registry on 24 December Commission confirmed that since it was 1980, the applicant brought an action in responsible for carrying out inspections it which it seeks a declaration that the must inevitably have recourse to the individual decision of 1 November 1980 services of experts on the steel industry. is void and in which it pleads, in The message further stated: substance, the illegality of the general

The applicant considers that the fixing of 2. On 28 November 1980 the applicant the quotas for steel and concrete submitted an application for the adoption reinforcement bars which were allocated of interim measures pursuant to Article to it for the fourth quarter of 1980 29 of the ECSC Treaty and Article 83 of the Rules of Procedure of the Court. retroactively takes into account its That application seeks an order: production in the month of October. It disputes the legality of this method of selecting the dies a quo, arguing that it (a) Suspending the operation of the calls in question legal situations which individual decision complained of, at had become final prior to the entry into least in so far as production (and force of the system and adversely affects sales) for the month of October 1980 expectations on the part of the are included in the quota system producers, which deserve protection. The established by Decision No 2794/ "declaration of intent" contained in the 80/ECSC replacing that system if communication from the Commission appropriate by a two-month quota which was published in the Official for November and December of the Journal of 11 October 1980 does not current year; invalidate that conclusion because it makes no reference to restrictions (b) Requiring the Commission to make applicable to sales within the ECSC. immediate use of the remedies which Article 74 of the ECSC Treaty places As regards urgency, there is no doubt at its disposal, all the conditions for that to await the outcome of the main the application thereof being satisfied action would entail delay extending in the present instance; beyond the date on which the general decision would cease to be applicable (30 (c) Restraining the Commission from June 1981). Hence the applicant would using, at least for the purpose of suffer serious and irreversible loss, since carrying out inspections and veri- the interruption of production and sales

The Commission stresses at the outset Further, the Commission considers that that the object of the interlocutory the individual decision under challenge is application is clearly the same as the not based on any discretionary power object of the main action and that that vested in the Commission because the fact alone is sufficient to justify its method prescribed for the calculation of refusal. the quotas is governed by detailed rules In reality the application does not seek contained in the general decision and the suspension of the contested decision consequently the irreparable damage but its annulment. Such an application is results from the general decision and inadmissible because the procedure for concerns all steel producers. obtaining the suspension of the operation of a measure cannot be transformed into a procedure for obtaining its annulment, In order to disprove the existence of the as that would confront the Court with an damage relied upon the Commission irreversible situation when it came to try produces a table showing both the the case on its merits. The Court had applicant's production in the fourth given a ruling to that effect in the Order quarter of recent years and the of the President of 28 March 1975 in production quotas fixed for the fourth Case 44/75 R Kónecke [1975] ECR 637. quarter of 1980:

(tonnes) 1977 1978 1979 Quotas

Steel 134 565 129 331 137 540 112 269

Rolled products 101 379 103 865 99 397 93 092

It concludes from this table that damage such as to justify suspending the reductions on such a scale cannot cause operation of a Community measure.

C — Protection of husiness secrets

As regards the choice of persons engaged to carry out the inspections, the According to the applicant company, the Commission considers that undertakings presence of employees of competing or are not entitled to reject an inspector. similar undertakings amongst the For their part, before each inspection the technical experts engaged to carry out inspectors undertake not to divulge the inspections on the premises of under- information constituting a business takings does not ensure the maintenance secret. Further, the possibility of having of business secrecy proclaimed on several recourse to independent experts to carry occasions in Decision No 2794/80. out inspections was recognized by the Court in the judgment of 16 December 1963 in Case 18/62 Barge v High Authority [1963] ECR 259. Analysing Article 1 (4) of that decision, the applicant submits that persons belonging to a similar or competing undertaking cannot be regarded as Finally, the Commission construes "third parties" or as "independent". Rumi's telex message of 28 November

ORDER OF 16. 12. 1980 — CASE 258/80 R

1980 as meaning that following the withdrawn the application for sus- explanations supplied by the Commission pension. the applicants accepted that the inspections in question might also be IV — Oral procedure carried out by independent agents. The applicant has thus shown that it has no Having deen duly invited to do so, the reason to apprehend serious and irre- parties presented oral argument at the parable damage and it has by implication hearing on 15 December 1980.

RUMI v COMMISSION

5 The applicant complains that, although General Decision N o 2794/80, which was implemented by the contested decision, did not come into force until 31 October 1980, October's production was included in the volume of the quotas, whereas no restriction on production existed during that month. It submits that if production and sales achieved in October 1980 were to continue to be included in the quotas allocated to it for the fourth quarter, it would be compelled — if it wished to avoid the risk of incurring the severe penalties applicable — to break off production and, as regards sales, not to honour orders which it is under an obligation to fulfil.

6 This first claim concerns, with regard to the fourth quarter of 1980, the fixing of quotas (Articles 3, 4 and 5 of Decision N o 2794/80) on the one hand and the restrictions on deliveries within the common market (Article 7) on the other. It is therefore necessary to deal with those two aspects separately.

ƒ — Fixing of the applicant's quotas

7 It is clear from the application for interim measures and from the expla- nations given at the hearing that, although expressed in general terms, the claim seeks in substance a decision that by way of derogation from General Decision N o 2794/80/ECSC the quotas allocated to the applicant should be calculated without including October's production, that is to say, they should be fixed for two months (November and December) instead of three and the production reference figures should likewise be calculated on the basis of the two most favourable corresponding mpnths during the period from July 1977 to June 1980. Thus this claim constitutes both a claim for suspension of operation of the decision and a claim for "necessary interim measures" within the meaning of Article 39 of the ECSC Treaty and Article 83 (2) of the Rules of Procedure.

u It should also be emphasized that in order to deal with exceptional situations Article 14 of Decision No 2794/80/ECSC provides that "where the production or delivery restrictions imposed by this decision or its implementing measures entail exceptional difficulties for an undertaking, it may refer the matter to the Commission, providing all appropriate supporting documentation. The Commission shall examine the case without delay, in the light of the objectives of this decision. Where appropriate, the Commission shall adapt the provisions of this decision".

i2 Although prior recourse to Article 14 does not in itself constitute a condition precedent for the admissibility of the application for interim measures, the fact that the applicant has not thought it necessary to refer the matter to the Commission with a view to obtaining an increase in its quotas, together with

RUMI v COMMISSION

the fact that in the present proceedings it has not adduced evidence showing a real danger of serious and irreversible damage if the disputed quotas continue to be applied to it, lead to the conclusion that the urgency and necessity of a suspensory order or of the measures requested have not been proved to the standard required by law.

1 3 The applicant stated, without however supplying any details in this regard, that its quotas would be exhausted by 19 December 1980 and that it would have to cease production on that date. The Commission, for its part, stated without being contradicted that the total production of steel and concrete reinforcement bars in October and November 1980 amounted to 157 359 tonnes. It thus appears that for the month of December the applicant had a reserve of 205 361 tonnes less 157 359 tonnes, that is to say, 48 002 tonnes.

ORDER OF 16. 12. 1980 — CASE 258/80 R

that the latter can fulfil any obligations which it may have towards its customers by drawing on the considerable stocks which, on its own admission, it possesses.

II — Restrictions on deliveries within the common market

is The application for suspension of the operation of General Decision No 2794/80/ECSC also relates to the restrictions on deliveries within the Community resulting from the application of Article 7 (2) thereof.

ie That claim must be rejected. An application for interlocutory relief may relate only to interim measures having a direct link with the decision which is at issue in the main action. That is not so in this case since the decision of 1 November 1980 does not relate to the implementation of Article 7 (2) of Decision No 2794/80/ECSC. From what was stated by the Commission at the hearing it appears that the restrictions on deliveries within the common market do not apply to products which, as in the applicant's case, were manufactured before 1 October 1980 and are held by an undertaking in stock.

iz Thus it is clear that the suspension sought and the measure requested in that regard are neither urgent nor necessary, the more so as they seek to amend General Decision No 2794/80/ECSC for the sole benefit of the applicant.

20 T h e third claim seeks, by w a y of interim relief, an o r d e r restraining the Commission from using experts w h o are in the employ of c o m p e t i n g or similar steel p r o d u c e r s for the purpose of carrying o u t the verifications a n d inspections provided for by General Decision No 2794/80/ECSC in relation to the applicant.

21 As the Commission has rightly observed, a claim for interim relief must have a direct link with the subject-matter of the main action. Such is not the case, since the decision of 1 November 1980 makes no provision whatsoever with regard to the verifications and inspections which the Commission may order in relation to the applicant undertaking.

22 It is clear from all the considerations set out above that, both as regards the suspension of operation and as regards the other measures applied for, the application must be dismissed.

Costs

23 It is appropriate, at this stage, to reserve the costs.

On those grounds,

Luxembourg, 16 December 1980.

A. Van Houtte J. Mertens de Wilmars Registrar President