C-60/81

COMMISSION OF THE EUROPEAN COMMUNITIES, represented by its Legal Adviser, John Temple Lang, and Götz zur Hausen, a member of the Legal Department, with an address for service in Luxembourg at the office of Oreste Montako, a member of its Legal Department, Jean Monnet Building, Kirchberg, defendant, and

MEMOREX SA, 178 Chaussée de la Hulpe, 1170 Brussels, represented by Ivo Van Bael and Jean-François Bellis, of the Brussels Bar, with an address for service in Luxembourg at the chambers of Messrs Elvinger and Hoss, 15 Côte d'Eich, intervener, 1 — Language of the Case: English.

ORDER OF 7. 7. 1981 — JOINED CASES 60 AND 190/81 R

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

makes the following

ORDER

I — Previous history of the fication of the Commission's position dispute with regard to the facts and conclusions contained in the statement of objections and in the Commission's agreeing not to On 19 December 1980 the Director- make use of the right which it had General for Competition addressed to reserved to itself to put forward other the applicant a letter stating that the objections at a later stage. Commission, in pursuance of Article 86 of the EEC Treaty, had decided to By a letter of 13 April 1981 the initiate proceedings against it under Commission refused to accede to IBM's Article 3 of Regulation N o 17 of the requests. It did however extend until 31 Council of 6 February 1962 (Official August 1981 the period allowed for the Journal, English Special Edition 1959- written reply to the statement of 1962, p. 87) for infringement of Article objections. 86 of the EEC Treaty. Enclosed with that letter was the statement of For the purposes of this order the abuse objections provided for in Article 19 of of a dominant position alleged may be Regulation N o 17. At the same time the described as consisting in the fact that applicant was invited to make known IBM, to protect its position against before 30 April 1981 in writing or orally undertakings described as "plug its observations on the objections put compatible manufacturers" (manufac- forward with regard to it by the turers of peripheral devices with Commission. compatible plugs), which produce certain processing elements which may be used by the central processing units produced By a letter of 20 February 1981 IBM by IBM, has pursued the following called upon the Commission to withdraw policies : the statement of objections and to terminate the proceedings initiated (a) it has adopted a marketing policy against it or, in the alternative, to adopt consisting of supplying certain certain measures intended, according to products as a supplement at no IBM, to remedy if possible the defects separate charge ("bundling"), parti- vitiating the statement of objections and cularly the main memory or storage so as to permit IBM to exercise for its central processing units as well effectively its right to defend itself. These as the basic software; bundling measures were to consist in a clari- occurs when one product is supplied

with another at no separate price or 2. Order the Commission to pay the where one product is physically costs. attached to another and supplied at no separate price; In support of this application IBM puts forward essentially three submissions (b) on the announcement of new which may be summarized as follows : products for use with its compatible series of computer systems, IBM refuses to disclose details of any 1. Illegality of the contested measures by interface change until at least after reason of the Commission's failure to first customer shipment, if at all; meet minimum criteria required for a statement of objections. The lack of clarity of that statement and the inad­ (c) IBM refuses to supply certain equacy of the periods allowed for valuable software to users of IBM replying to it are incompatible •with computer systems unless such the fundamental principles relating to software is used with a central observance of the rights of the processing unit of IBM manufacture, defence. whether or not such unit was supplied by IBM. 2. Illegality of the decision to initiate the administrative procedure on the ground that that decision was not taken by the Commission acting II — Written procedure collegially or by an authority which had validly received a delegation to do so. In Case 60/81 3. Illegality of the contested measures on the ground of breach of principles of In its application, registered at the Court international law, namely the principle on 18 March 1981, the applicant claims of comity or non-interference in the that the Court should : internal affairs of the United States. This principle is opposed to the exercise of Community powers in a 1. Declare void : case in which, as here, the disputed conduct takes place for the most part outside the Community and is in addition the subject of judicial (a) the act or acts of the Commission proceedings in the United States. by which a proceeding was initiated against IBM pursuant to Article 3 of Regulation N o 17 of the Council and a statement of By a document registered at the Court objections was addressed to the on 10 April 1981 the Commission, in applicant; and/or pursuance of Article 91 (1) of the Rules of Procedure, raised an objection of inadmissibility against the application by (b) the statement of objections itself IBM. It claimed that the Court should in so far as by itself it constitutes declare the application inadmissible an act of the Commission; without joining the question of

1. Suspend the Commission's ad- 4. Order the Commission and/or the ministrative procedure in Case IV/ Community to pay the costs. 29.479 and/or By a separate document, registered at the 2. Suspend the application of the acts, Court on 22 June 1981, IBM put the validity of which IBM has forward, in pursuance of Articles 185 contested in the main proceedings; and 186 of the EEC Treaty and Article and/or 83 of the Rules of Procedure of the Court, an application for the adoption of interim measures in which it claimed that 3. Adopt any other necessary interim the Court should: measures. 1. (a) Suspend the Commission's ad- ministrative procedure in Case In its written observations on that IV/29.479; and/or application the Commission contended that the Court should dismiss it and (b) suspend the application of the order IBM to pay the costs. Memorex acts, the failure or refusal to put forward the same contention. withdraw which IBM has contested in its concurrent application; and/or In Case 190/81 (c) adopt any other necessary interim measures; In a second application, registered on 22 June 1981, IBM claimed that the Court 2. Order the Commission to pay the should: costs.

1. Declare that the Commission has By order of the President of the Court of infringed the Treaty by failing to act 30 June 1981 Memorex SA was also

IBM ν COMMISSION

According to the applicant the interim measures applied for are necessary to In Case 190/81 R preserve the jurisdiction of the Court of Justice to give a judgment having The applicant states that this second practical effect when it adjudicates on application for the adoption of interim the admissibility and the merits of the measures seeks the same interim relief as application in the main proceedings. that requested in Case 60/81 R and that They are equally necessary to prevent an the grounds for this application are administrative procedure continuing mutatis mutandis the same as those in the without lawful authority, to prevent a previous case to which it therefore refers. serious breach of international law In essentials what is sought is an order involving the Community as a whole and for the suspension of the administrative finally to prevent further damage to procedure initiated by the statement of IBM. objections of 19 December 1980.

In response the Commission first contests The Commission and the intervener put the admissibility of the application for forward essentially the same arguments the adoption of interim measures, since as those previously advanced. its inadmissibility follows from the inadmissibility established, in the Commission's opinion, with regard to the main proceedings. It claims that, IV — Oral procedure when the Commission raises an objection within the meaning of Article 91 of the Rules of Procedure against an The parties were duly summoned and application for annulment it is appro­ presented oral argument at the hearing priate that judgment should be given on of the application for the adoption of that objection before an application for interim measures on 6 July 1981.

5 In support of its applications the applicant in substance claims that a suspension of enforcement would be justified because otherwise:

(i) IBM will be forced to lodge a defence to a statement of objections delivered by the Commission without lawful authority;

(ii) The Commission will have been permitted to continue to act in breach of binding principles of international law;

IBM ν COMMISSION

(iii) IBM will have been forced to lodge a defence to a statement of objections so ill-defined and obscure as to justify the raising of the exceptio obscuri libelli and breach of due process.

6 The applicant's arguments amount in substance to claiming that the measures contested in the main proceedings are vitiated by such clear and serious defects that those measures appear, even at first sight, as lacking any legal basis and in reality constitute an evident nullity, known in the administrative law of certain Member States as "voies de fait administratives". The nature and gravity of these illegalities alone imply, it is alleged, that it is necessary and urgent to put a stop immediately to situations of this type and that the judge to whom the application is made has jurisdiction to do so.

11 It follows from all the considerations set out above that the applications must be dismissed.

Costs

12 Costs must in the circumstances be reserved.

On those grounds,

T H E PRESIDENT OF THE COURT,

as an interim measure,