C-260/82

ORDER OF THE PRESIDENT OF THE COURT 14 DECEMBER 1982'

Nederlandse SigarenwinkeĽers Organisatie v Commission of the European Communities

Case 260/82 R

Application for the adoption of interim measures — Suspension of operation — Conditions for granting (EEC Treaty, Art 135; Rules of Procedure, Art. 83 (2))

In Case 260/82 R

NEDERLANDSE SIGARENWINKELIERS ORGANISATIE, an association governed by Netherlands law, whose registered office is at Haarlem, with offices at The Hague, represented for the purposes of these proceedings by T. R. Otter- vanger of the Rotterdam Bar, with Chambers at 66 Kortenberglaan, Brussels, with an address for service in Luxembourg at the Chambers of E. A. Arendt, Advocate, Rue Philippe-II,

I — Summary of the facts the form of an annual bonus in addition to their normal percentage discounts. The term "specialist retailers" is defined The Nederlandse Sigarenwinkeliers more closely in Articles 1 to 3 of the Organisatie (Netherlands Tobacconists' agreement on the bonus scheme. It is Organization, hereinafter referred to as stated in the disputed decision that some the 'Tobacconists' Organization") is an 2 000 specialist retailers participate in the organization whose aim is to protect the scheme. interests of all those whose main income derives from the retail sale of tobacco articles (hereinafter referred to as In accordance with Article 2 of the "specialist retailers"). The Tobacconists' agreement, the bonus increased suc- Organization states that it has more than cessively to 60, 65 and, from 1 February 1 500 members while the Commission 1978, 75 cents per thousand cigarettes maintains that in 1979 there were bought for resale direct to the consumer approximately 4 000 retailers specializing by the specialist retailers from the parties in tobacco products in the Netherlands. to the agreement, whether direct or through one or more wholesalers. The On 4 December 1979, the undertakings parties to these proceedings state that affiliated to the Stichting Sigaret- those increases took place with the tenindustrie (association of cigarette agreement of the authorities, mostly in manufacturers and importers trading in conjunction with a general increase in the Netherlands, hereinafter referred to the retail selling price of cigarettes. The as the "Manufacturers' Association") total sum required by the Manufacturers' and Tabaksfabriek [tobacco factory] Association to pay the bonus is divided Grano concluded an agreement on a each year between the manufacturers "Bonusregeling Speciaalzaken" (special- and importers belonging to the bonus ist retailers' bonus scheme, hereinafter scheme in proportion to their sales referred to as the "bonus scheme"). through tobacconists' shops over the Despite the fact that neither the relevant period. In order to qualify for Tobacconists' Organization nor its the bonus the specialist retailers must members were parties to the agreement, satisfy certain conditions concerning the it is not disputed that the terms thereof range of products stocked, the display of are designed to grant special bonuses to products in the sales premises and so specialist retailers who satisfy certain forth and they must have annual sales of conditions. at least 1.5 million cigarettes sold at retail revenue stamp prices, purchased from one or more wholesalers or direct The parties to these interim proceedings from the manufacturers or importers. acknowledge that the agreement was concluded partly on the initiative of the Netherlands Minister for Economic Articles 6 and 12 of the agreement Affairs and the Tobacconists' Organi- provide that the bonus scheme is to be zation accepts the description of the administered by a Specialist Retailer bonus scheme contained in the disputed Committee, which must allocate the Commission decision. bonus each year. The members of the committee include three members The bonus scheme is designed to grant nominated by the parties to the specialist retailers an extra discount in agreement, on the recommendation of

the Tobacconists' Organization, which On 15 July 1982, the Commission succeeded the Federatie van Organisaties adopted a decision relating to a van Sigarenwinkeliers (Federation of proceeding under Article 85 of the EEC Tobacconists' Organization). Treaty (IV/29.525 and IV/30.000 — SSI). Article 1 (1) of the decision According to the disputed decision, the provides that the specialist retailers' bonus scheme constitutes an essential bonus scheme of 4 December 1974 and, element of a Master Agreement in so far as it requires the parties to concluded on 20 December 1976 observe the bonus scheme, the Master between the members of the Manufac- Agreement of 20 December 1976 turers' Association and Tabaksfabriek constitute an infringement of Article 85 Gruno. In the disputed decision it is (1) of the EEC Treaty. Article 3 of the stated that the aim of the Master decision states that the application for an Agreement was to create the essential exemption under Article 85 (3) of the conditions for a smoothly operating EEC Treaty is refused. Under Article 4, market, whilst leaving each of the parties the Manufacturers' Association and the free to make his marketing arrangements undertakings listed in Article 1 must as he saw fit, independently of his cease to apply to the agreement referred panners. It is further stated that the to in Article 1 without delay. In addition parties agreed to allow the Manufac- they are prohibited from taking any turers' Association to act as their action in the future with the same object spokesman in consultations with the or effect as those agreements. Government likely to lead to agreements, and with any other interested parties, regarding: II — Written procedure (a) final consumer prices and questions concerning excise duty and VAT revenue; By an application received at the Court Registry on 24 September 1982, the (b) the wholesaling function and Tobacconists' Organization brought an wholesalers' profit margins; action against the Commission under Article 173 of the EEC Treaty, in which (c) the retailing function and retailers' it claims that the Court should: profit margins; 1. Primarily, declare void wholly or at (d) public health and the parties' least in part Article 1 (1) and (2) advertising policy. and Anide 4 of the Decision of the Commission of the European Communities of 15 July 1982 (TV/ The Commission decision mentions that 29.525 and IV/30.000 — SSI), which under the Master Agreement the parties undertook inter alia not to negotiate is expressly addressed inter alios to the individually in any of the above fields applicant and was notified to it by except where a matter specifically letter of 16 July 1982; concerned them. In the alternative, declare void wholly or at least in pan Anides 3 and 4 of The Master Agreement of 20 December the above-mentioned decision; 1976, together with the agreement on the bonus scheme, as amended on 24 2. Additionally, adopt such further January 1977, was notified to the measures as the Coun may consider Commission in September 1977. appropriate;

3. Order the Commission of the sector. In addition, it maintains that the European Communities to pay the possibility of competition between manu- costs. facturers in the form of the individual and unrestricted grant of discounts or bonuses is excluded by the combined effect of the Wet Tabaksaccijns (Excise By a document received at the Court Duty (Tobacco Products) Law) and the Registry on 10 November 1982 the Prijzenbeschikkingen (Prices Orders). Tobacconists' Organization submitted an application for the adoption of interim measures directed against the Furthermore, the applicant maintains Commission, under Article 185 of the that because of the level of their incomes EEC Treaty and Article 83 of the Rules the harm which the removal of the bonus of Procedure, in which it claims that the would cause to retailers would be so Court should: great that many would lose all incentive and some would face financial ruin.

For that reason the applicant considers that, if a declaration that the decision is void is to 2. Adopt such other measures as the serve any purpose, it must be able to Court considers appropriate. continue to apply the bonus scheme now. In order to enable it to do this without infringing the compulsory provisions of 3. Order the Commission to pay the the decision, the applicant considers it costs. essential that the operation of the disputed decision be suspended. In support of its application for the adoption of interim measures, the The applicant is of the opinion that it is applicant refers to its application under even more necessary that the Court Article 173 of the EEC Treaty and to the should suspend the operation of the arguments which it put forward therein decision since the Commission refused to to show that Article 85 (1) of the EEC suspend the application of its decision on Treaty cannot apply to the bonus scheme the bonus scheme and, in the view of the or, in the alternative, that the scheme applicant, it is unlikely that it would be fulfils all the conditions required in order able to conclude individual alternative to qualify for a declaration of inap- agreements, equivalent to the bonus plicability under Article 85 (3).

NSO » COMMISSION

Decision

1 The Nederlandse Sigarenwinkeliers Organisatie (Netherlands Tobacconists Organization) claims in substance that the immediate operation of the prohibition on the application of the specialist retailers' bonus scheme would

ORDER OF M. 12. 1982 — CASE 260/82 R

entail grave and irreparable harm which could not be avoided even if, at a later stage, the consteted decision were to be declared void to the extent sought by the applicant.

2 In that regard the applicant maintains that a large proportion of its members are minor retailers for whom the bonus represents a significant pan of their incomes, even if the amount is relatively small.

3 The defendant, on the other hand, contends in substance that the specialist retailers' bonus scheme concerns major retailers and that the sums provided for under the scheme are not such as to afford reasonable grounds for the view that their non-payment undermines the specialist retailers' guarantee of subsistence. The defendant adds that the disputed decision allows the applicant to negotiate separately with individual manufacturers and importers so that it is not possible to suggest that grave and irreparable harm will be caused by the necessity of waiting until judgment has been given on the main application.

6 Since the possibility of a retroactive application of the bonus scheme after the disputed provisions have been declared void cannot be excluded, the specialist retailers concerned are left in a situation of uncertainty, until judgment has been given on the main application, as to whether they should continue to satisfy the conditions required by the bonus scheme or should introduce alternative agreements as quickly as possible. It may be regarded as very unlikely that they would be able to satisfy at the same time the conditions laid down in the disputed scheme and those which would be imposed in any alternative agreements.

7 It is, therefore, clear that the disadvantages inherent in the operation of the disputed provisions before judgment has been given on the main application are such as to justify a suspension of their operation.

8 At this stage of the proceedings, costs should be reserved.

On those grounds,

THE PRESIDENT,

by way of interim decision,