C-228/82

ORDER OF 29. 9. 1982 — JOINED CASES 229 AND 228/82 R

require amendments to be made to subsequent decision from becoming the agreement notified. Those ineffective. It is nevertheless necessary amendments may be designed not for those interim measures to be taken only to remove certain clauses but only in cases of proven urgency, in also to supplement or extend the order to prevent the occurrence of a scope of the agreement in question. situation likely to cause grave and 3. The Commission must be able, within irreparable harm to the party applying the bounds of the supervisory task for their adoption or intolerable conferred upon it in competition damage to the public interest. The matters by the Treaty and Regulation measures must be of a temporary and No 17, to take protective measures to conservatory nature and must be the extent to which they appear limited to what is necessary in the indispensable in order to prevent its given situation.

In Joined Cases

229/82 R,

FORD WERKE AG, 2 Ottoplatz, 5000 Cologne 21, Federal Republic of Germany, represented by P. Sambuc, Rechtsanwalt, of Messrs Boden, Oppenhoff & Schneider, Rechtsanwälte, 10 Burgmauer, 5000 Cologne, with an address for service in Luxembourg at the office of J.-C. Wolter, Advocate, 2 Rue Goethe,

and

BUREAU EUROPÉEN DES UNIONS DE CONSOMMATEURS (BELIC) [European Office of Consumer Unions], an international association governed by Belgian law, established by Royal Decree of 6 March 1981 and having its office at 29 Rue Royale, 1040 Brussels, represented by Stanley A. Crossick, solicitor, 34 Avenue de la Renaissance, Boîte 12, 1040 Brussels, with an address for service in Luxembourg at the Chambers of E. Arendt, 34b Rue Philippe-II,

intervener,

APPLICATIONS under Article 185 of the EEC Treaty for the suspension of the operation of the Commission's decision of 18 August 1982 (IV/30.696 — Distribution system of Ford Werke AG — Interim measure),

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

makes the following

ORDER

EEC Treaty. Notwithstanding the Republic of Germany. According to Ford contacts established between Ford AG AG, those vehicles have never been and the Commission since that time, the included in the sales programme for the Commission had still not taken a formal German domestic market. They were decision regarding that agreement by delivered either under the "Visit Europe May 1982. Accordingly, no individual Plan", in most cases directly to exemption had been granted in respect of consumers and in exceptional cases that agreement under the procedure through a German distributor who then provided for in Article 6 of Regulation received an agency commission or No 17 but, on the other hand, it had not against orders from German distributors, been decided that the distribution system under the "Special-Vehicle Ordering notified to the Commission constituted (SVO)" system for vehicles which do not an infringement of Article 85 (1) or that, form part of its sales programme but in if it had constituted such an respect of which it applies the conditions infringement, the system might not be of the Haupthändler-Vertrag to orders, the subject of an exemption granted when it is in a position to fulfil them.

At the hand drive vehicles, some constructed hearing the Commission nevertheless to British specifications and others clarified its position by acknowledging constructed to German specifications, that right-hand drive vehicles con- were also sold in the Federal Republic of structed to British specifications were not Germany. The demand for right-hand included in the sales programme for drive vehicles in the Federal Republic of Germany, but u maintained its point of Germany, which until 1979 was low, view regarding right-hand drive vehicles increased considerably because the prices constructed to German specifications. on the German market became considerably lower than those on the By a circular of 27 April 1982, Ford AG United Kingdom market, which partly as informed the German Ford distributors a result of monetary fluctuations, was that after 1 May 1982 it would no longer the reverse of the situation obtaining accept any orders which those distri- previously. butors might place with it for right-hand dnve vehicles and that the "Visit Europe Ford AG and the Commission give Plan" was to be maintained onlv for left- conflicting descriptions of the conditions hand dnve vehicles. Orders for right- on which right-hand dnve vehicles are hand dnve vehicles placed by tourists, marketed and the channels through diplomats and people travelling on which thev are distributed in the Federal business would in the future have to be

taken by Ford Personal Impon and Venrag is incompatible with the Export Ltd, London. prohibitions contained in Article 85 (1) and that, by reason of the measures contained in the circular of 27 April Following the circular of 27 April 1982 1982, it will not qualify for an exemption and after carrying out investigations at under Anicie 83 (3). It is stated that the the premises of Ford AG on 13 and 14 decision, as already indicated in the May 1982, the Commission decided on 2 statement of objections, constitutes an July 1982 "to initiate a proceeding under analogous application of Anicie 8 (3) of Article 85 of the Treaty" and sent a Regulation No 17. statement of objections to Ford AG. After hearing the parties on 23 July 1982, in accordance with Article 19 (1) By applications received at the Court and (2) of Regulation No 17, the Registry on 3 September 1982, Ford Commission adopted on 18 August 1982 of Europe Incorporated and Ford AG a decision headed "IV/30.696 — Distri­ (hereinafter referred to as "the bution system of Ford Werke AG — applicants"), brought two actions both Interim measure". That decision was seeking a declaration that the Com­ notified to Ford AG on 27 August 1982. mission's decision of 18 August 1982 is void. By separate documents, received on the same day at the Court Registry, the Pursuant to Article 1 of that decision, applicants submitted, pursuant to Article Ford AG is required to withdraw its 185 of the EEC Treaty and Article 83 circular. By virtue of the same article, it (1) of the Rules of Procedure, two is required to inform German Ford applications for the suspension of the dealers that right-hand drive vehicles still operation of the contested decision. form part of the company's agreed delivery range and is to refrain for the future from taking any measures having By order of 6 September 1982, made the same effect as the circular. The pursuant to Article 84 (2) of the Rules of decision is to enter into force 10 days Procedure, the President of the Court after notification and. by virtue of Anicie suspended the operation of Articles 1 3 thereof, is to apply until adoption of and 2 of the contested decision as a the decision concluding the proceeding. conservatory measure in Case 229/82 R According to Anicie 2 of the decision, a Ford Werke AG v Commission pending periodical penally payment of 1 0C0 the marking of an order concluding the European currency units is to be imposed proceedings regarding the application for on Ford AG for each day of delay in us the adoption ot interim measures in Case fulfilment of the obligations laid down in 229/82 R. Amele 1 of the decision.

(b) under Anicie 174 of the Treaty, suspension of the operation of its declare the decision void; decision and claimed that the Coun should dismiss those applications and (c) under Anicie 176 of the Treaty, order the applicants to pay the costs. require the Commission to take the necessary measures to comply with In suppon of their applications for the the judgment of the Coun of Justice; adoption of interim measures, the applicants claim that the interim measure (d) order the Commission to pay the constituted by the contested decision is costs; entirely novel and that the legal basis upon which the Commission relies for its (e) order any funher or other relief decision is without foundation. In that which the Coun may consider regard they claim essentially in the first appropriate. place that unilateral acts by undertakings which do not hold a dominant position do not infringe Article 85 (1) of the Treaty and that therefore the Com- In the applications for the adoption of mission has no power to prohibit them. interim measures, they claim that the They add that the supply by a manu- Coun should: facturer of all its products to all its dealers does not constitute a prerequisite (a) (i) suspend the operation of the for an exemption for a distribution decision in Case IV/30.696 until system under Article 85 (3) of the Treaty judgment by the Coun on the and that the Commission has no power applicants' main applications or to require an undertaking positively to until further order by the Coun, satisfy a prerequisite for an exemption, such suspension to take effect especially where no exemption has yet from the date of notification of been granted. They also allege that the the decision to Ford AG; Commission has tailed to observe the conditions laid down by the Coun in (it) suspend the operation of the Case 792/79 R Camera Care Limited v decision in Case IV/30.696 in Commission [1980] ECR 119 for the any event if the Coun feels that valid exercise of the power conferred it requires a period of time to upon it by Anicie 3 (1) of Regulation consider the application relating No 17 to adopt interim measures in thereto, until final determination exceptional cases. Moreover, for the of the application for a sus- reasons set out in the main applications, pension or until funher order of the contested decision should in any the Coun, event be declared void for grave pro- cedural irregularities. (b) order the Commission to pay the costs; The applicants claim, moreover, that the decision is causing grave and irreparable (c) order anv funher or other relief harm to the Ford Group and to third which the Court may consider pames whose interests have not been appropriale considered by the Commission either properly or at all. According to the applicants, such harm cannot be avoided Bv a document received at the Court otherwise than by suspension of the Registry on 17 September 1982. the operation of the contested measure and détendant replied to the applications for such suspension is a matter of urgency.

The applicants also allege that the siderable damage to consumers. The decision, being a provisional and Commission therefore, in its examination mandatory order, is insufficiently precise of the legitimate interests of the parties as regards the obligations which it concerned and of the urgency of imposes. intervention by it, has proceeded with sufficient care to enable interim measures to be adopted. The defendant contends that its decision is sufficiently precise and In its observations in response to the that the references in the applications for applications for the adoption of interim the adoption of interim measures to the measures, the defendant claims that even main applications are contrary to Anicie if the refusal to accept orders for right- 83 (3) of the Rules of Procedure. hand drive vehicles does not in itself constitute the equivalent of an agreement or practice prohibited by Article 85 (1) of the EEC Treaty, the measure adopted by Ford AG on 17 April 19S2 is By way of information, it adds that on sufficient to exclude the possibility of an 24 August 1982 it sent a statement of exemption pursuant to Article 85 (3) for objections to Ford which is intended to agreements which, for other reasons, are lead to a definitive decision on the prohibited by Article 85 (1). The application for an exemption under Commission is therefore authorized to Anicie 84 (3) of the EEC Treaty. adopt interim measures, either pursuant to Anicie 15 (6) of Regulation No 17 or on the basis of the considerations expounded in the order of the Court of 17 January 1980 in Case 792/79 R Camera Care Limited v Commission By orders of the President of the Court [1980] ECR 119. The Commission of 21 and 22 September 1982, the acknowledges, however, that it would Bureau Européen des Unions de have no power to adopt such measures if Consommateurs (BEUC) was allowed to Ford agreed to amend the provisions of intervene in support of the Commission's the distribution agreement notified in conclusions in the oral procedure 1976 which are incompatible with the relating to the applications for the prohibition laid down in Anicie 85 (1). adoption of interim measures. Appli- The defendant also contends that, as the cations to intervene in support of the interim measure was one which it was applicants' conclusions, from James A. empowered to adopt, the grounds relied Laidla* (Holdings; Limited and upon in the mam applications do not Stormoni Limned, were dismissed. have sufficient foundation to enable the Court to grant the suspension of its operation as requested. Moreover, the applicants have not furnished proof of the damage suffered by them as a result of the contested decision. They do not Ill — Oral procedure show in any event that that damage exceed* the normal consequences of the normal application of the competition The pames to the proceedings, having rules m the Treaty. On the other hand, been dulv summoned to appear, the practice followed by Ford AG, which presented oral argument at the hearing has been prohibited by the Commission, of the applications for the adoption of causes specific, immediate and con- interim measures on 23 September 1982.

4 It is clear from the consistent case-law of the Court that measures of this nature cannot be considered unless the factual and legal grounds relied on to obtain them establish a prtma facte case for granting them. In addition there must be urgency in the sense that it is necessary for the measures to be issued and to take effect before the decision of the Court on the substance of the case in order to avoid senous and irreversible damage to the party seeking them. Finally they must be provisional in the sense that they do not prejudge the decision on the substance of the case.

FORD v COMMISSION

5 In support of their applications, the applicants claim in essence that they are justified:

(a) because the contested decision has no legal basis;

(b) because the implementation of it before the Court has given its decision in the main actions is likely to cause the applicants grave and irreparable harm.

A — Ford W e r k e AG's application for suspension of the o p e r a t i o n of the d e c i s i o n

ORDER OF 29. 9. 1982 — JOINED CASES 229 AND 228/82 R

Commission is not puma facie prevented, when examining an application for an exemption in respect of a distribution network, from making the grant of the exemption conditional upon extension of the range of products distributed, the fact remains that certain questions arising in these proceedings may give rise to serious dispute. Moreover, the objections which it is possible to raise regarding the procedure selected by the Commission cannot be rejected without further consideration.

9 The foregoing considerations do not, however, of themselves justify the suspension of the operation of the contested decision and it is appropriate to consider in addition whether, as affirmed by the applicant, the upholding of that decision pending judgment by the Court is likely to cause it serious and irreparable damage.

ic In that respect, the applicant states by way of a preliminary observation that it is pan of the Ford group, to which Ford Britain also belongs, and that the assessment of the damage which it claims will occur must take into account the interests of the group as a whole and especially the interests which Ford Werke AG and Ford Britain have in common and which derive in particular from the fact that Ford Britain is by a clear margin Ford Werke AG's largest customer. Without prejudice to the judgment to be given in the main action, that view may be accepted, at the stage of the application for the adoption of interim measures, as being a necessarily provisional, but reasonable, appraisal of the interests involved.

M There is a serious risk that the detrimental effects of the contested decision might, if it were put into operation immediately, exceed those of a conser- vatory measure and in the meantime cause damage considerablv in excess of the inevitable bui short-lived disadvantages arising from such a measure. It is therefore appropriate to suspend the operation of the contested decision in a manner such that it is brought within the bounds oí a measure which maintains the situation which had come into being immediatelv before 2T April 1982, by keeping the flow of trade in question at approximatelv the same level as it had attained on that date. That level was not vet. as the applicant has admitted, of such a nature as to bring about the economic effects of which it declares itself to be apprehensive and which it considers uselt entitled to prevent.

15 That result mav be obtained bv requiring Ford ^vY. erke AG to continue to tulril orders trom German distributors tor rignt-hand üri\e vehicles, but oniv tor an aggregate number of vehicles ¡imued, as a temporary measure, to the level indicated above.

ORDER OF 29. 9. 1982 — JOINED CASES 229 AND 228/82 R

ib It appears nevertheless appropriate in that respect to draw a distinction between the various kinds of right-hand drive vehicles referred to in the circular of 27 April 1982. It is apparent from the statements made during the hearing that Ford Britain does not produce Capri and Granada models or the Escort Ghia and Escort XR3 models which it purchases only from Ford Werke AG. It may be reasonably considered that the effect of parallel imports of those vehicles or types of vehicles will be a matter of less concern than the importation of vehicles of the kinds produced both by Ford Britain and Ford Werke AG. That view must in any case be upheld in the case of the Capri and Granada models.

FORD v COMMISSION

and that the 4 800 vehicles shall be distributed amongst the various models in proportions substantially the same as prior to 27 April 1982 and delivered at reasonable intervals of time;

(c) in respect of Granada and Capri vehicles, to increase by 20% the delivery requirement determined under subparagraph (b) above, such supplementary quota to be in addition to the figure of 4 800 vehicles referred to above;

(d) to direct that the delivery requirement as so limited shall apply until a decision is taken by the Commission terminating the administrative proceedings pending or until delivery of the judgment in the main proceedings;

(e) to order the Commission to supervise the operation of this order and to order the applicants to furnish the Commission, on first being requested so to do, with all evidence in this respect and also to order the applicants to supply to the Commission and to the President of the Court monthly, beginning on 1 November 1982, statistics of orders received and deliveries effected for each model;

(f) for the rest, to dismiss the applications for the adoption of interim measures.

THE PRESIDENT,

by way of interim decision,

hereby orders as follows:

1. The operation of Article 1 of the Commission Decision of 18 August 1982 (IV/30.696 — Distribution system of Ford Werke AG — Interim measure) is suspended in so far as it requires Ford Werke AG to deliver right-hand drive vehicles, constructed to British specifications, in the Federal Republic of Germany, either directly or through the intermediary of its German distributors, or to execute orders placed by the latter.

2. The operation of the said provision is maintained as regards the requirement that Ford Werke AG shall execute orders placed by its German distributors in the same conditions as prior to 1 May 1982 for right-hand drive vehicles, constructed to German specifications, of Fiesta, Escort, Taunus, Capri and Granada models or of other models incorporated in the sales programme to which the Haupthändler- Vertrag relates, so, however, that the scope of that requirement shall be restricted inasmuch as it shall be limited to a total annual delivery of 4 820 vehicles. The 4 8C0 vehicles shall be distributed amongst the various models in proportions substantially the same as prior to 27 April 1982 and delivered at reasonable intervals of time.

3. In respect of Granada and Capri vehicles the delivery requirement as determined in paragraph (2) shall be increased by 2C:/c. This sup- plementarv quota shall be in addition to the figure of 4 8CC vehicles referred to above.

P. Heim J. Menens de Wilmars Registrar President