C-234/82
ECLI:EU:C:1983:76
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ORDER OF T H E PRESIDENT OF T H E C O U R T 15 MARCH 1983 1
Ferriere di Roè Volciano SpA v Commission of the European Communities
Case 234/82 R
Proceedings on application for the adoption of interim measures — Suspension of operation — Suspension of operation of a decision imposing a fine — Conditions governing grant — Provision of a security — Requirement to provide a bank guarantee not making it possible to escape the damage which would result from the operation of the decision — Grant of suspension justified (ECSC Treaty, Art. 39, Rules of Procedure, Art. 86 (2))
The conditions required for the contested decision pending judgment in suspension ; of the operation of a the main proceedings, and in particular Commission decision imposing a fine on where the applicant undertaking, because a steel undertaking are present and it is of its small size, may find difficulties in unnecessary to make such suspension obtaining the necessary credit and where, conditional on the prior provision of a have regard to the fact that it operates security where there are serious reasons exclusively as a subcontractor, the for taking the view that the requirement amount of the fine, calculated at a flat to provide a bank guarantee in order to rate per tonne, may represent a heavier obtain a suspension of the operation of burden for it than for an undertaking the decision would not permit the which realizes on its own behalf all applicant to escape the damage which the added value of the production would result from the operation of the concerned.
In Case 2 3 4 / 8 2 R
FERRIERE DI R O È V O L C I A N O S P A , whose registered office is at 24 Via Garibaldi, R o è V o l c i a n o , represented by Fabrizzio Massoni, A d v o c a t e of 273 Avenue du F r é , B-1180 Brussels, with an address for service in L u x e m b o u r g at the Chambers of A. Elvinger, A d v o c a t e , 15 C ô t e d'Eich,
applicant, v
1 — Language of the Case: French.
ORDER OF 15. 3. 1983 — CASE 234/82 R
COMMISSION OF THE EUROPEAN COMMUNITIES, 200 Rue de la Loi, B-1049 Brussels, represented by Sergio F a b r o , a m e m b e r of its Legal D e p a r t m e n t , with an address for service in L u x e m b o u r g at the office of Oreste M o n t a k o , a m e m b e r of its Legal D e p a r t m e n t , J e a n M o n n e t Building, Kirchberg, defendant,
A P P L I C A T I O N to suspend the operation of the Commission Decision of 13 August 1982 c o n c e r n i n g a fine imposed o n the applicant u n d e r Article 58 of the E C S C T r e a t y ,
T H E P R E S I D E N T OF T H E C O U R T OF JUSTICE OF T H E E U R O P E A N C O M M U N I T I E S
makes the following
ORDER
I — S u m m a r y of t h e f a c t s .products. According to Articles 6 to 10 those quotas are to be fixed for each undertaking on the basis of the reference production of that undertaking and the In the light of market trends and the application of abatement rates to the situation in the steel industry, the reference production. Article 5 provides Commission, by general Decision 2794/ that the Commission is to inform each 80/ECSC of 31 October 1980 (Official undertaking of its reference production Journal, L 291, p. 1), instituted a and the production quotas resulting from monitoring system and a system of an application of the abatement rates. production quotas for the period between 1 November 1980 and 30 June 1981. However, that system has been extended to the present time subject to By a letter dated 6 August 1981 the certain amendments, in particular by Commission informed the applicant of its Commission Decision 1831/81/ECSC of reference production and production 24 June 1981 (Official Journal, L 180, quotas for different types of steel p. 1), which was in turn amended by products in respect of the third quarter Commission Decision 2804/81/ECSC of 1981. of 23 September 1981 (Official Journal, L 278, p. 1). By Decision 1191(5)/82/ECSC of 13 August 1982 the Commission established According to Article 4 of Commis- that the applicant had exceeded the sion Decision 1831/81/ECSC the production quota allocated to it for the Commission is to fix production quotas third'quarter of 1981 by 1 012 tonnes in on a quarterly basis for several groups of respect of product Categories V
FERRIERE DI ROÈ VOLCIANO v COMMISSION
(reinforcing bars) and VI (merchant In its application the applicant states that bars) and therefore imposed a fine of it has brought an action for a declaration 75 900 (seventy-five thousand nine that that decision is void, but that it is hundred) European currency units, or not in a position to provide the bank 100 284 393 (one hundred million two guarantee required by the Commission hundred and eighty-four thousand three for suspension of the contested decision. hundred and ninety-three lire). That sum In support of its statement the applicant was to be paid within two months of the produces a copy of correspondence date of the notification of the decision between itself and two banking in- and was subject to a surcharge of 1% stitutions. per month or part thereof in the event of any delay in paying. The applicant was notified of that decision on or about 25 August 1982. In its observations lodged at the C o u r t Registry on 2 March 1983 the defendant, the Commission, contends that the Court should dismiss the application to suspend It should be added that by a letter dated the operation of its decision of 13 17 August 1982 the Commission in- August 1982 submitted by the applicant formed the applicant that, in the event of and that it should reserve the costs. proceedings' being brought before the Court in respect of the decision imposing the fine, it would be prepared to delay execution thereof on condition that a In support of its conclusions the bank guarantee was provided for defendant states in essence that it has not payment of the fine if it remained been shown to be necessary on either payable, together with default interest if factual or legal grounds to order appropriate. suspension.
On 17 September 1982 the applicant The applicant has not indicated that brought an action under Article 33 of the there is a sufficient likelihood that the ECSC Treaty claiming that the decision main action is admissible or well of 13 August 1982 imposing the fine founded. Although it takes the view that should be declared void. That action is it cannot be required, at the stage of the pending before the Court. interlocutory proceedings, to prove that the disputed decision is well founded, it adds that the documents which it has submitted in the main proceedings demonstrate that it is justified. II — W r i t t e n p r o c e d u r e
Furthermore the defendant contends that By application lodged at the Court the applicant has not shown that the Registry on 22 February 1983 the measure which it seeks is necessary in applicant applied under the second order to avoid serious and irreparable paragraph of Article 39 of the ECSC harm. Even if the documents submitted Treaty and Article 83 (1) of the Rules by the applicant show that it is not able of Procedure to suspend the operation to obtain a bank guarantee, that does not of Commission Decision 1191(5)/82/ lead to the conclusion that the payment ECSC. of the fine would amount, at this stage in
ORDER OF 15. 3. 1983 — CASE 234/82 R
the main proceedings, to serious and not yet requested the Commission to be irreparable harm. That is especially so in allowed to pay the fine by instalments, as view of the fact that the applicant has it is entitled to do.
Decision
1 According to Article 39 of the ECSC Treaty, actions brought before the Court do not have suspensory effect. The Court may, however, if it considers that the circumstances so require, order that application of the contested decision or recommendation be suspended and may prescribe any other necessary interim measures.
2 The applicant has claimed that the Court should order that the operation of the decision of 13 August 1982 imposing on it a fine of 75 900 (seventy-five thousand nine hundred) European currency units or 100 284 393 (one hundred million, two hundred and eighty-four thousand, three hundred and minety-three) lire be suspended. Although the Commission claims that the application should be dismissed, it may be seen from its written and oral observations that the Commission does not raise any objection to the grant of the suspension requested, on condition that the applicant provides a bank guarantee ensuring the payment of the fine, if it remained payable, together with default interest if appropriate. In adopting this view, the Commission is abiding by a course of action which it adopted in 1981 which may be regarded as justified, provided that consideration is given in appropriate cases to the question whether there are special reasons why it should not be followed.
3 The applicant seeks to obtain the suspension sought without being obliged to provide a guarantee. It claims that it is not in a position to furnish such a guarantee. In support of that claim, it has produced declarations which establish that that is indeed the case.
4 It may be seen from the written and oral observations of the parties that the admissibility of this application for the adoption of interim measures is not disputed and that the main action raises questions of law and of fact which
FERRIERE DI ROÈ VOLCIANO v COMMISSION
lead to the conclusion that the legal circumstances of the action and the application for the adoption of interim measures satisfy the conditions pre- scribed under Article 83 (2) of the Rules of Procedure.
5 It is moreover established that the applicant is a small processing undertaking with heavy financial burdens and that during the period concerned it was working solely as a subcontractor for other iron and steel undertakings. The defendant has conceded that for those reasons this case presents certain exceptional features.
6 It may be concluded that the provision of a bank guarantee creates special difficulties for the applicant in view of the fact that it is often much more difficult for a small undertaking to obtain the necessary credit. Furthermore, it would seem appropriate to take into consideration in the interlocutory proceedings, as an argument in favour of the suspension of the disputed decision, the fact that it is not possible to exclude the possibility that the fine, calculated at a flat rate per tonne in accordance with Article 12 of Decision 1831/81/ECSC, may represent a heavier burden for a processing under- taking, which plays a part in only a limited portion of the production process than for an undertaking which realizes on its own behalf all the added value of the production concerned.
7 There are therefore serious reasons for taking the view that the requirement to provide a bank guarantee in order to obtain a suspension of the operation of the decision imposing the fine would not permit the applicant to escape the damage which would result from the operation of that decision pending judgment in the main proceedings.
s In those circumstances, the conditions required for the suspension of the operation of the disputed decision are present and it is unnecessary, in this case, to make such a suspension conditional on the prior provision of a security.
9 In the circumstances, costs should be reserved.
ORDER OF 15. 3. 1983 — CASE 234/82 R
On those grounds,
THE PRESIDENT,
by way of interim decision,
hereby orders as follows :
1. The operation of Article 2 of the Commission Decision of 13 August 1982 concerning a fine imposed on the applicant shall be suspended until the delivery of judgment in the main proceedings.
2. The costs are reserved.
Luxembourg, 15 March 1983
P. Heim J. Mertens de Wilmars Registrar President