C-263/82

ORDER OF THE PRESIDENT OF THE COURT 11 NOVEMBER 1982 1

Klöckner-Werke AG v Commission of the European Communities

Case 263/82 R

Application for the adoption of interim measures — Suspension of operation — Suspension of the operation of a decision imposing afine — Conditions for granting — Lodging ofa security

(ECSC Treaty, Art. 39; Rules ofProcedure, Art. 86 (2))

In Case 263/82 R KLÖCKNER-WERKE AG, a steel undertaking having its registered office in Duisburg represented by Professor Bodo Borner of the University of Cologne, 83 Zülpicher Straße, D-5000 Cologne 41, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 B Rue Philippe-II,

ORDER

I — Summary of the facts On 15 May 1981 the applicant brought an action under Articles 33 and 36 of the ECSC Treaty to have that decision declared void in so far as it concerned In view of market developments and the rolled products in Group I. By its situation of the steel industry the judgment of 7 July 1982 (Case 119/81) Commission introduced, by general the Court dismissed that application. Decision No 2794/80/ECSC of 31 October 1980 (Official Journal, 291, p. 1), a system of monitoring and production quotas which was to apply Shortly afterwards the Commission from 1 November 1980 to 30 June 1981 found by Decision No 1191/82/ECSC but which has been extended until of 30 August 1982 that the applicant had the present time subject to various exceeded by 122 781 tonnes the amendments. production quota allocated to it for that quarter for rolled products in Group I and fined it 10 129 432 (ten million, one hundred and twenty-nine thousand four hundred and thirty-two) European According to Article 2 of the decision currency units or DM 23 909 916 the Commission is to fix quarterly (twenty-three million, nine hundred and production quotas for crude steel and for nine thousand nine hundred and sixteen four groups of rolled products. Article 3 Deutschmarks). The fine was to be paid (1) provides that the quotas must be within two months of notification of the fixed for each undertaking on the basis decision and to bear interest for late of reference production figures and by payment at 1 % per month or part application of abatement rates to those thereof. The decision was notified to the reference production figures. According applicant on 20 August 1982. to Article 3 (2) the Commission must inform each undertaking of its reference production figures and its production quotas resulting from the application of the abatement rates. II — Written procedure

ECSC of 13 August 1982 imposing on it Commission, the defendant, contended the fine in question is void. By a separate that the Court should dismiss the document registered at the Court on the application lodged by the applicant for same day it made an application under suspension of the operation of the Article 39 of the ECSC Treaty and decision of 13 August 1982 and order Article 83 et seq. of the Rules of the applicant to pay the costs. Procedure for an interim order suspending the operation of the contested decision. To support its claim the defendant contends that according to Article 39 of the ECSC Treaty, Article 83 of the Rules As the ground for its application for a of Procedure and a consistent line of suspension of operation the applicant, decisions of the Court there are three with reference to its main action, conditions for a suspension of operation: contends that the reason why it did not adhere to the quotas which the Commission allocated to it for the second quarter of 1981 was in order to (a) factual and legal grounds must be safeguard its very existence. If the adduced establishing a prima facie contested decision were to be enforced case for granting the application; before the Court has decided the main application, the danger for the applicant would be just as great. It explains that the Commission is prepared to postpone (b) the grant of suspension must be enforcement of the decision imposing the urgently required in the sense that it fine only on condition that security of an must be necessary for it to be amount equal to the fine is lodged. It granted before the Court's decision says that it cannot meet that condition on the main application in order to because the reduction of its credit limit prevent serious and irreparable which would result as much from the damage; furnishing of security as from paying the fine would cause it serious and irrep- arable damage. It further contends that if the Court were to permit the fine to be (c) the interim decision must be without enforced before giving its judgment prejudice to the decision on the main those with whom the applicant does application. business and its creditors in particular would draw conclusions from this not only about the outcome of the main action but also about the defendant's The defendant's view is that although the chances of collecting other fines relating last condition is satisfied the other two to quotas allocated for other quarters are not. The applicant's objection that over which the applicant is also in the contested decision is illegal because dispute with the Commission. The the applicant was constrained by applicant believes that in view of the necessity is inadmissible because, amount of the fines this might lead to assuming that it was so constrained, it considerable and irreparable damage. must have already been in that situation in the second quarter of 1981 and ought to have pleaded that fact in the action which it brought, unsuccessfully, against In its observations registered at the the Commission's decision of 6 April Court on 14 October 1982 the 1981 fixing the very same quarterly

2 The applicant has claimed that the Court should make an order suspending the operation of the decision of 13 October 1982 imposing on the applicant a fine of 10 129 432 (ten million, one hundred and twenty-nine thousand four hundred and thirty-two) European currency units, that is to say DM 23 909 916 (twenty-three million, nine hundred and nine thousand nine hundred and sixteen Deutschmarks). Although the Commission contends that the application should be dismissed, its written and oral observations reveal that it has no objection to the grant of the suspension requested

KLÖCKNER.WERKE v COMMISSION

provided that the applicant lodges a bank guarantee as security for the eventual payment of the fine and any interest which may accrue thereon as a result of the delay.

3 The policy of requiring security to be lodged is one which the Commission adopted in 1981 and which the President of the Court, in his order of 6 May 1982 in Case 107/82-R Allgemeine Elektricitäts-Gesellschaft AEG Telejunken v Commission, held to be justified unless there are exceptional circumstances.

4 The applicant seeks to obtain the suspension applied for without having to fulfil that condition. It contends in substance that requiring it to fulfil that condition would, like immediate enforcement, cause it serious and irrep- arable damage. In this regard it argues that those with whom it does business and its creditors in particular would draw adverse conclusions from that fact about the outcome of the main action as well as about the possibility of fines being imposed for the exceeding of quotas for other quarters which it has admitted.

hereby orders as follows: 1. The operation of Article 2 of the Commission's decision of 13 August 1982 shall be suspended on condition that the applicant first lodges a bank guarantee approved by the Commission as security for the payment of the fine imposed by the contested decision and for default interest calculated at 1% above the discount rate of the Deutsche Bundesbank.

2. The applicant shall be allowed a period of 15 days from notification of this order to lodge the said guarantee. During that period the Commission shall not undertake any measures of enforcement.

3. Costs are reserved.

Luxembourg, 11 November 1982

J. A. Pompe J. Mertens de Wilmars Deputy Registrar President