C-45/84

ORDER OF THE COURT 28 MARCH 1984 '

European Independent Steelworks Association v Commission of the European Communities

Case 45/84 R

Application for the adoption of interim measures — Suspension of operation Conditions for grant thereof— Urgency — None, because of undertakings given to the Court (ECSC Treaty, Art. 39; Rules of Procedure, Art. 82 (2))

In Case 45/84 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,

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 the Commission if it establishes, with regard to certain categories of steel products, that deliveries of products in one of those categories have been altered By Decision No 234 / 84 / ECSC of 31 during a quarter to a significant extent January 1984 (Official Journal L 29, compared with traditional deliveries. p. 1), adopted pursuant to articles 47 and After considering whether the complaint 58 of the ECSC Treaty, the Commission is justified, in accordance with the pro­ extended and amended the system of cedures laid down in the decision, the monitoring and production quotas for Commission may request the under­ certain products of undertakings in the takings in question to give a commitment steel industry, previously governed by in writing that, during the following Decision No 2177/83/ECSC (Official quarter, they will correct the imbalance Journal L 208, 31. 7. 1983, p. 1), which in their traditional deliveries. If an extended the system established by undertaking does not give such a Decision No 1696/82/ECSC (Official commitment, or if the commitment is Journal L 191, 1. 7. 1982, p. 1). Article not honoured, the Commission may, 15 B of the decision provides that any pursuant to that provision, reduce the Member State may submit a complaint to part of the undertaking's quota which

By application registered at the Court The first decision was, according to the on 20 February 1984, the European applicant, adopted in factual and legal Independent Steelworks Association circumstances which establish a prima brought an action claiming that Article facie case for the adoption of interim 15 B of the Commission Decision of measures and which are likely already to 31 January 1984 should be declared void. cause serious and irreparable harm to the By a separate document registered at the members of the applicant association, Court on the same day, the applicant and the same is a fortiori true of Article applied pursuant to Article 39 of the 15 B of Decision No 234/84. ECSC Treaty for the suspension of the operation of the provision in issue. By adopting Decision No 3717/83, introducing a system for supervising undertakings, the Commission seemed to By an order of 2 March 1984 the have subscribed to the policy adopted by President referred the matter to the full the Council and seemed ready to follow Court. it even to the extent of taking sanctions against undertakings which did not observe the traditional patterns of trade between Member States; Article 15 B of Decision No 234/84 confirms that II — Written procedure position and proves positively that the Commission intends to implement completely the decision adopted by the Council. It therefore becomes even more urgent to suspend the implementation of In its application for the adoption of that policy by the Commission before it interim measures the applicant claims results in a lasting renationalization of that the Court should order that the the steel market. operation of Article 15 B of Commission Decision No 234/84 be suspended and should reserve the costs. In support of its application the applicant argues that this The Commission insists that it is fully article completes the implementation by aware of the principles underlying the the Commission of the policy of freezing common market in steel products, the traditional patterns of trade between including the free movement of goods Member States, adopted by the Council and the abolition of measures causing on 22 December 1983. A first measure discrimination between producers, pur­ implementing that policy has already chasers or consumers, or interfering with been taken by the Commission in the tile freedom of purchasers to choose form of Decision No 3717/83, intro­ suppliers. The Commission is also aware ducing for steel undertakings and steel that the ECSC Treaty requires it to dealers a production certificate and an ensure the maintenance and observance accompanying document for deliveries of normal competitive conditions. In that of certain products; the applicant has regard it had been receiving information

for some time that certain undertakings, Commission intends to take as a benefiting in particular from aid schemes reference period the period between the covering operating losses, had been beginning of the second half of 1981 and tempted to change their traditional the end of the first half of 1982. It is not market and to conquer new markets, if disputed by the undertakings that that necessary at a loss. It seemed to the represented a normal period. Commission that normal competitive conditions would not be observed if steel undertakings could act in this manner, in so far as their actions were influenced The Commission describes the procedure by factors which entailed distortion of which is followed when it receives a competition. The restructuring of the complaint. It sets out in particular the market would also be imperilled if various reasons for which an undertaking undertakings were entirely free to take may modify its delivery patterns.

83. The implementation of Article 15 B is eries" is not defined in the decision the however in no real sense dependent on

the implementation of that decision. Both The function of Article 15 B is simply the Member State seeking to submit a to provide a supplementary counter- complaint and the Commission, which measure whose mere existence has a must examine it, may rely either on useful effect. Actual recourse to this existing statistics or on ad hoc infor weapon is called for in particular when mation of any kind. the sanctions referred to above have Decision No 3717/83 is not intended proved ineffective as a means of merely to serve as basis for the implemen combating infringements of the quota tation of Article 15 B of Decision system or of the price system.

There is adoption of interim measures is not no question of a freeze on trade between urgently required. Taking into account Member States. Recourse to Article 15 B the interpretation which should be given is linked to abnormal behaviour attri to Article 15 B, the existence of that butable to distortions of competition provision cannot cause serious and irre such as those inherent in certain aid parable damage to undertakings. Even if schemes. The article is not designed to the Court does not agree with the shackle a competitive undertaking which Commission on that point, no urgency receives no subsidies, observes the rules has been proved since in any event on prices and quotas and seeks for sanctions imposed by the Commission reasons of commercial strategy to deliver under Article 15 B can be challenged in its products in a Member State where it an action before the Court of Justice. has not previously made deliveries.

Some circumstances indicate entirely normal Ill — Oral procedure behaviour, while others indicate an infringement of other provisions of Community law, such as production Having been duly summoned, the parties quotas, minimum prices, competition law presented oral argument at the inter or the provisions concerning aid. locutory hearing on 20 March 1984.

4 Article 15 B of Decision No 234/84 provides that a Member State may submit a complaint to the Commission if it establishes, with regard to certain categories of steel products, that deliveries of products in one of those cate­ gories have been altered during a quarter to a significant extent compared with traditional deliveries. After examining whether the complaint is justified, in accordance with the procedures laid down in the decision, the Commission may request the undertakings in question to give a commitment in writing that, during the following quarter, they will correct the imbalance in their traditional deliveries. If an undertakings does not give such a commitment, or if the commitment is not honoured, the Commission may, pursuant, to that provision, reduce the part of the undertaking's quota which may be delivered in the common market for the following quarter by a quantity not exceeding that which caused the imbalance in traditional deliveries.

5 According to Article 39 of the. Treaty establishing the European Coal and Steel Community, actions brought before the Court do not have suspensory

EISA / COMMISSION

effect. The Court may, however, if it considers that circumstances so require, order that the application of the contested decision be suspended. It may also prescribe any other necessaiy interim measures.

6 According to Article 83 (2) of the Court's 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 such measures.

n Because of the influence which it is likely to have on the immediate actions of undertakings, the system so established is such that the requirement of urgency would normally be considered to have been met.

i2 However, during the interlocutory proceedings the Commission has made a number of statements with regard to the way in which it intends to apply the provision in issue. The Court has taken note of those statements.

13 The Commission has undertaken to apply Article 15 B according to the following conditions:

(a) First, Article 15 B will not be applied simply because an alteration in traditional deliveries has been observed; it will only be applied where the change in traditional deliveries may be ascribed to the action of under­ takings engaging in practices which are contrary to Community law.

(b) Secondly, the mere fact that the undertaking concerned is in receipt of aid authorized by the Commission may not give' rise to a quota reduction pursuant to Article 15 B.

(c) Thirdly, if the Commission's inquiry reveals infringements of other provisions of Community law such as those on prices, quotas, competition or State aid, it will first of all apply the sanctions provided for those infringements.

1. Note is taken of the undertakings given by the Commission;

2. The application is dismissed;

3. The costs are reserved.

Luxembourg, 28 March 1984.

P. Heim J. Mertens de Wilmars Registrar President