C-37/84
ECLI:EU:C:1984:134
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ORDER OF THE COURT 28 MARCH 1984 '
European Independent Steelworks Association v Commission of the European Communities
Case 37/84 R
Application for the adoption of interim measures — Suspension of operation — Conditions for grant thereof (ECSC Treaty, Art. 39; Rules of Procedure, Art. 83 (2))
In Case 37/84 R
EUROPEAN INDEPENDENT STEELWORKS ASSOCIATION, an association of under takings formed under the law of Belgium, whose registered office is at 21 Rue Ducale, Brussels, represented by Michel Waelbroeck of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 34 Rue Philippe-II,
applicant, v
COMMISSION OF THE EUROPEAN COMMUNITIES, 200 Rue de la Loi, 1049 Brussels, represented by R. Wägenbaur of its Legal Department, acting as Agent, with an address for service in Luxembourg at the office of Manfred Beschel, Jean Monnet Building, Kirchberg, defendant,
APPLICATION pursuant to Article 39 of the ECSC Treaty for the suspension of the operation of Commission Decision No 3717/83/ECSC of 23 December 1983, introducing for steel undertakings and steel dealers a production certificate and an accompanying document for deliveries of certain products,
1 — Language of the Case: French.
ORDER OF 28. 3. 1984 — CASE 37/84 R
THE COURT
composed of: J. Mertens de Wilmars , President , T . Koopmans , K. Bahlmann and Y. Galmot ( Presidents of Chambers ), P . Pescatore , Lord Mackenzie Stuart , A. O'Keeffe , G. Bosco , O . Due , U . Everling and C . Kakouris , Judges ,
Advocate General : G. F. Mancini Registrar : H . A. Rühi , Principal Administrator
makes the following
ORDER
I — Summary of the facts Where a delivery is made by a dealer, a production certificate made out by the producer must also be submitted. The quantity exported is deducted from the production certificate. After it has been By Decision No 3717/83/ECSC of 23 used up completely the dealer must December 1983 (Official Journal L 373, transmit the certificate to the producer. p. 9) the Commission introduced for steel undertakings and steel dealers a production certificate and an ac companying document for deliveries of certain products. That decision makes the delivery to other Member States of the products listed in Annex I thereto subject to the production of an ac The preamble to the decision of 23 De companying document. The document is cember 1983 shows that the production to be submitted to the appropriate certificate and the accompanying customs office in the Member State of document were introduced in order to dispatch and, after being certified by that permit a full and accurate survey of office, must be deposited together with patterns of deliveries within the the home-use declaration at a customs Community as a basis for reliable office in the Member State of des statistics for each of the Member States tination. with regard to certain steel products imported not only from other Member States but also from non-member countries. For those purposes Member Particular rules apply to the import from States must transmit to the Commission a non-member country of products orig statistics based on data provided by their inating in the Community. customs services.
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The decision provides however that In support of its application the applicant failure to submit the said documents, or argues that tlie decision constitutes the either of them, to the customs offices first element of legislation designed to concerned is not to constitute an obstacle implement a policy adopted ultra vires by to the making of the delivery in question the Council. That Council policy will put provided that the steel undertaking or an end to the free movement of steel the dealers lodge with the competent products between Member States, by customs office in the Member State of freezing trade patterns between them, dispatch or, where appropriate, in the and will thus eliminate the common importing Member State, a deposit of 43 market in steel. ECU per tonne of products. The deposit is to be reimbursed on submission of the documents in question, fully and correctly completed, and after com pletion of the formalities prescribed by The applicant claims that the grant of the decision, within 15 working days of interim measures is prima facie justified the lodging of the deposit (Articles 4 (3) by the factual and legal circumstances of and 6). the case. The conclusions adopted by the Council on 22 December 1983 leave no doubt as to the intention of the Member By application registered at the Court States to obtain from the Commission on 13 February 1984 the European the freezing of the traditional patterns of Independent Steelworks Association trade between Member States. In so fai brought an action claiming that the as Commission Decision No 3717/83 Commission Decision of 23 December introduces, for the benefit of the 1983 should be declared void. By a Member States, a system for monitoring separate document registered at the trade between them, it demonstrates the Court on the same day, the applicant Commission's willingness to comply with applied pursuant to Article 39 of the the Council's decision. It is beyond ECSC Treaty for the suspension of the argument that the balance of powers operation of the decision in issue. between the institutions established by the ECSC Treaty is not such as to subordinate the Commission to the Council in this way. Furthermore the By an order of 2 March 1984 the objective pursued by the Council with President referred the matter to the full the Commission's assistance is clearly Court. contrary to the very idea of a common market in steel products.
II — Written procedure The matter is also urgent, because the Member States, through the Council, have shown that they intend to oppose In its application for the adoption of any alteration in traditional patterns of interim measures, the applicant claims steel deliveries, by calling upon the that the Court should order the sus Commission to alter the production pension of the operation of Commission quotas of undertakings which do not Decision No 3717/83 of 23 December observe the traditional patterns. The very 1983 and should reserve the costs. existence of the monitoring system
ORDER OF 28. 3. 1984 — CASE 37/84 R
introduced by the contested decision and guarantee system for certain steel the threats made in case of non- products and a system for the verifi observance of the traditional patterns cation of the minimum prices), was the have a dissuasive effect on steel under subject of full consultation between takings. None of those undertakings can the Commission and the Consultative take the risk of seeking new customers in Committee, associations of undertakings, the Community in order to increase its undertakings and dealers. Those consul sales, or even simply to maintain them in tations, which were marked by a high the event of a reduction in orders from degree of cooperation, led generally to its traditonal customers. The result of the the conclusion that the measures contested decision will be to deprive steel envisaged were necessary. The European undertakings of their commercial free Parliament also adopted a resolution dom at a time when it is indispensable on short-term measures, published in for their survival that they be able to Official Journal C 10 of 16 January adjust to market changes. 1984, at page 77.
The harm caused might be irreparable. The Commission observes that Article 46 The deliveries which the steel under of the ECSC Treaty obliges it to conduct takings of a Member State are not able a continuous study of market trends and to make by reason of the monitoring periodically to draw up programmes system will be made by other under indicating foreseeable developments. takings. Even if the Court declares Article 47 provides that the Commission the contested decision void, its im must obtain the information it requires to plementation while the proceedings are carry out its tasks. These provisions are pending before the Court will, by means sufficient to justify the adoption of of artificially created territorial pro Decision No 3717/83. tection, permit an increase in trade between producers and consumers within a given Member State and hence impede the interpénétration of national markets and the rebirth of a common market. The suspension of the operation of the contested decision is indispensable if it is According to the Commission, it became desired to prevent its implementation clear that it was necessary to investigate during the course of the proceedings allegations that some undertakings before the Court from resulting in a sought to derive unjustified advantages lasting renationalization of the steel from the quota system, particularly in market. conjunction with the grant of State aid, which is not yet completely forbidden by the rules on aid. Although the aggregate deliveries of undertakings are limited by the production quota system, under takings still have some freedom of In its observations the Commission states action, which could induce some of them that the contested decision, like the two to acquire new customers on strong other decisions adopted on the same day markets, at more remunerative prices, (Decision No 3715/83 fixing minimum but at the cost of considerable distortion. prices for certain steel products and Market trends vary within the Com Decision No 3716/83 establishing a munity, and for that reason steel prices
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may vary considerably from one region Some deliveries within the Community to another. In those circumstances are carried out via non-member producers may be tempted to win new countries (Switzerland, for example) ot markets, if necessaiy by disregarding the are declared to originate in non-member rules on pricing. In the Commission's countries. view the behaviour of undertakings which disturb other markets under the cloak of the Article 58 system and of a favourable system of aid, to the detriment of other undertakings, cannot be considered normal. In order to counteract those deficiencies the contested decision had to cover transactions of dealers as well as those of In order to be able to counter such undertakings. It deals with products from dealings, which are based at least in part non-member countries as well as those on distortions of competition, it is first from Member States and covers steel necessaiy to have a sufficiently accurate products which the Commission has knowledge of the deliveries which have found to be in a situation of manifest taken place in and between the Member crisis within the meaning of Article 58 of States. The information available for the Treaty. In order to enable reliable assessing trade patterns came previously statistics to be compiled, the information from two sources, namely national is collected by customs offices and then customs statistics and statistics based on summarized and sent to the Commission the declarations which producers must by the national authorities. The system is provide pursuant to Decision No 3483/ as little obstructive and "bureaucratic" as 82/ECSC (Official Journal L 370, 29. possible. Thus, it seemed possible to 12. 1982, p. 1). dispense with the collection of infor mation on deliveries made by an under taking within the Member State where it carries on business, since those figures The two sets of statistics did not agree can easily be calculated by simple and therefore did not provide a subtraction (total production less sufficiently reliable view of trade in steel quantities exported). In the event of products. The differences observed may documentation difficulties a delivery be explained by various factors: need not be prevented; the problem can be resolved by the lodging of a deposit.
Deliveries ex-stock by dealers are not covered by Decision No 3488/82, whereas they do appear in customs statistics. According to the Commission, the grant of interim measures is not prima facie justified. The purpose of the contested Information provided pursuant to De decision is clearly indicated in the fourth cision No 3483/82 might be incorrect. recital in the preamble. It is intended to permit a full and exact survey of patterns of deliveries within the Community in order to establish reliable statistics. That Customs statistics do not give an is an entirely legitimate objective. The accurate picture because of deliveries Commission is under a duty to in which are re-exported. vestigate allegations that some under-
ORDER OF 28. 3. 1984 — CASE 37/84 R
takings are trying to take advantage of there would otherwise be a possibility of national subsidies in order to break deflection of trade by some undertakings heavily into other markets. to the detriment of others. The seventh paragraph of the conclusions calls on the Commission to take all appropriate Although the establishment of a common measures under the Treaty where the market in steel products by definition evolution of trade patterns is not in requires that undertakings should be able accordance with the principle referred to. to sell their products throughout the The Commission also draws the Court's whole of the Community (the principles attention to the Council's conclusions of free movement of goods and equal regarding the accompanying certificate, access to the sources of production), the which make it clear, in the Commission's actions of undertakings must none the view, that the introduction of the less be supervised if they are influenced accompanying certificate is distinct from by the prospect of having operating the measures it might be required to take losses covered by national subsidies and if traditional delivery patterns where by the possibility of selling their products manifestly distorted. The implementation on the markets of other Member States of the decision on the accompanying at prices below their list prices, that is to certificate and the establishment of say, in breach of Article 60 of the ECSC reliable statistics on trade patterns should Treaty. not be confused with measures which the Commission might consider necessary in order to restore the situation.
The latter It is therefore necessary to create an are not even referred to, much less put instrument which will provide a complete into effect, by the contested decision. and reliable view of trade patterns. The contested decision is appropriate and sufficient to achieve that objective. The The Commission denies the charge of information given in Annexes III and IV subordination to the Council. At its of the decision provide the Commission meeting of 22 December 1983 the with full details of the quantities Council did no more than give its assent imported into each Member State from in accordance with Article 95.
It was other Member States and non-member with the full agreement of the countries. Although at first sight the Commission that the Council adopted Member States will thus obtain more the conclusions referred to above. On information on trade in steel products the following day the Commission than they are obliged to send to the adopted its decision in complete Commission, this is inevitable if it is independence. desired that the Member States should provide reliable information. Moreover, the Member States in fact already obtain this information by way of customs and The Commission also takes the view that tax documents. there is no urgent need for the adoption of interim measures.
The Commission refers to the distinction it has made The Commission draws the Court's between the collection of information on attention to the first three paragraphs of delivery patterns, sole object of the the conclusions adopted by the Council contested decision, and possible action of Ministers on 22 December 1983. by the Commission in the event of Referring to the principle of solidarity, serious disregard of traditional patterns. the Council considers that the stability Such action is not possible under of traditional trade patterns is in Decision No 3717/83/ECSC.
It is accordance with that principle since therefore not clear how the very
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existence of the monitoring system and of the decision would clearly prejudge the threats made can have a dissuasive the decision on the substance of the case. effect on steel undertakings. Nor does The best proof of that is the fact that in the contested decision deprive steel order to refute the arguments made in undertakings of their commercial free the application for suspension the dom. The applicant is far from having Commission has been obliged several shown that the application of Decision times to refer to the application for a No 3717/83 would cause it serious and declaration of nullity. irreparable harm. The suspension of the operation of the decision pending the decision on the substance of the case would, on the other hand, certainly Ill — Oral procedure cause harm to the Community steel market because the transparency desired Having been duly summoned, the parties would be attained only after considerable presented oral argument at the sitting on delay. The suspension of the operation 20 March 1984.
Decision
1 On 13 February 1984 the applicant brought an action claiming that Commission Decision No 3717 / 83 / ECSC of 23 December 1983 (Official Journal 1983, L 373 , p . 9 ), a general decision introducing for steel under takings and steel dealers a production certificate and an accompanying document for deliveries of certain products , should be declared void.
2 At the same time the applicant applied pursuant to Article 39 of the ECSC Treaty for the suspension of the operation of that decision.
3 The applicant argues in its main application that Decision No 3717 / 83 represents a misuse of powers . The declared objective of the decision is to permit a full and exact survey of patterns of deliveries within the Community as a basis for reliable statistics, whereas the true objective, according to the applicant, is different. The decision is the first step in the implementation of a policy adopted by the Council of freezing traditional patterns of trade , contrary to the fundamental principle of a common market and of the free access of users to the sources of production .
ORDER OF 28. 3. 1984 — CASE 37/84 R
4 The applicant argues that the Commission acted contrary to the rules of the Treaty establishing the balance of powers between the institutions, inasmuch as it complied with the will of the Council which, by carrying out tasks entrusted to the Commission, usurped its role.
5 The applicant claims that the Commission is also guilty of a misuse of powers in adopting a decision which in fact allows Member States to obtain more accurate information on trade patterns in their own interest rather than in that of the Commission.
6 The applicant argues that there is also urgency inasmuch as the very existence of the monitoring system introduced by the contested decision had a dissuasive effect on steel undertakings.
7 According to Article 39 of the Treaty establishing the European Goal and Steel Community, actions brought before the Court do not have suspensory effect. The Court may, however, if it considers that circumstances so require, order that application of the contested decision be suspended. It may also prescribe any other necessary interim measures.
8 According to Article 83 (2) of the Rules of Procedure, the Court may suspend the operation of a measure or grant other interim measures only where there are circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for the interim measures applied for.
9 According to the Commission's explanations, the information which it had at its disposal before the adoption of the contested decision for the purpose of determining whether there had been breaches of the rules of the Treaty, in particular breaches of pricing rules, of the rules prohibiting aid and of competition rules, consisted either of statistics on deliveries made by producers within the common market, collected pursuant to Decision No 3483/82 (Official Journal L 378, 23. 12. 1982), or of customs statistics provided by the Member States. Those statistics did not agree, inter alia because dealers were not required to provide delivery statistics. The collection of more reliable information on movements of steel products was indispensable for the supervision of the market.
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io Without there being any need to consider the objections which the applicant raises against the measures taken and the question whether its content is justified, it must be held that it is not urgent at this stage to order its suspension.
n The decision in question does no more than require the undertakings concerned to produce certain documents which make it possible to follow the development of intra-Community trade. Taken by itself such a measure is not likely to influence the behaviour of the undertakings in question in the area of production and sales. Consequently, its continued operation pending the Court's decision on the action for a declaration of nullity is not likely to cause harm to the applicant undertakings so as to justify suspension of its operation.
On those grounds,
THE COURT ,
by way of interim decision,
hereby orders as follows :
1. The application is dismissed;
2. The costs are reserved.
Luxembourg, 28 March 1984.
P. Heim J. Mertens de Wilmars Registrar President