C-50/84

SA SIPROTOLE, whose registered office is at 38, Rue des Deux-Églises , 4108 Neupre (Belgium),

SA Villevoye-Interol , whose registered office is at 13, Rue des Peupliers, 4430 Alleur (Belgium),

SPRL HAIDONET HUBIN, whose registered office is at 71, Grand'Route, Tihange-lez-Huy (Belgium),

JEAN MORSA, dealer in metallurgical products, residing at 23, Avenue du Cherét, 4920 Embourg-Chaudfontaine (Belgium),

SOCIÉTÉ COOPÉRATIVE DY MÉTAL, whose registered office is at 172, Rue Georges-Moreau, 1070 Brussels (Belgium),

SA CHARLEMETAL, whose registered office is at 347 / 1 , Avenue des Croix de Guerre, 1120 Brussels (Belgium),

defendant ,

APPLICATION , pursuant to Article 39 of the ECSC Treaty , for 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 ,

THE PRESIDENT OF THE COURT

makes the following

ORDER

I — Summary of the facts 2. 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 that certificate. After it has been used up completely, the steel dealer must transmit the certificate to the producer. 1. By a decision dated 23 December 1983 the Commission introduced for steel undertakings and steel dealers a production certificate and an ac­ companying document for deliveries of certain products. The decision makes the delivery to other Member States of 3. The preamble to the decision of the products listed in Annex 1 thereto 23 December 1983 shows that the subject to the production of an ac­ production certificate and the ac­ companying document. That document companying document for deliveries is to be submitted to the appropriate were introduced in order to permit a full customs office in the Member State of and accurate survey of patterns of dispatch and, after being certified by that deliveries within the Community as a office, must be deposited with the basis for reliable statistics for each of the home-use declaration at a customs office Member States with regard to certain in the Member State of destination. steel products not only from other Particular rules apply to the importation Member States but also from non- from non-member countries of products member countries. For those purposes originating in the Community. the Member States must transmit to the

8. The applicants claim in the second 5. By an application lodged at the place that the contested decision Court Registry on 25 February 1984 the infringes Article 95 of the ECSC Treaty applicants sought a declaration that the inasmuch as the powers conferred by Commission decision of 23 December that article on the Commission of the 1983 was void. By a separate document, European Communities are limited by lodged on the same day at the Court the express reference which it makes to Registry, the applicants applied, pursuant the objectives of the Community set out to Article 39 of the ECSC Treaty, for in Articles 2, 3 and 4. the suspension of the operation of that decision.

9. According to the applicants, Article 4 of the contested decision, by requiring steel dealers to have their deliveries to other Member States of the Community II — Written procedure accompanied by a production certificate, infringes Article 4 (b) and (d) of the ECSC Treaty according to which measures or practices which discriminate 6. In their application for interim between producers, between purchasers measures the applicants request the or between consumers, measures and Court to suspend the operation of practices which interfere with the pur­ Commission Decision No 3717 / 83 / chaser's free choice of supplier, and ECSC. Alternatively, they ask for a restrictive practices which tend towards suspension limited to second steel the sharing or exploitation of markets products. In a later communication, are recognized as incompatible with the following the order of the Court of common market for coal and steel.

10. In support of those allegations the Registry on 25 February 1984 and applicants produce a telex message dated contends that it should have been lodged 20 February 1984. on 17 February 1984 at the latest in the case of six of the seven applicant under 11. As regards the question of urgency, takings, namely those resident in the applicants refer to the great Belgium. The time-limit for instituting difficulties encountered by steel dealers proceedings laid down in Article 33 of who, like the applicants, sell second the ECSC Treaty in conjunction with

activity. Where a dealer buys a product having its registered office in Italy, the he does not always know in which time for instituting proceedings, taking country he will sell it. Box 3 of the into account the extension of 10 days on production certificate as drawn up by the account of distance in . pursuance of Commission is provided for the entry of Article 81 of the Rules of Procedure the country of destination. Furthermore, and of Article 1 of the Annex thereto, there are obstacles which have to do expired at the last moment of 25 specifically with the customs sphere, February 1984. Thus in the case of Sri inasmuch as only the original of the Bensider the application is not out of production certificate may be deposited time. with the customs. A certificate issued by a steelworks may relate to quantities of 16. However, in the Commission's substandard products which the dealer, view, it is also plainly inadmissible in the depending on his orders, divides among case of that company. Up to and several customers. He is hampered by including 25 February 1984, Sri Bensider the fact that the production certificate had not been entered in the commercial wanders backwards and forwards register. Thus on that date it was not between the customs office and his endowed with legal personality under the business premises. Italian law applicable in the matter.

The admissibility of the main application document lodged at the Court Registry the applicant undertakings set out their 13. The Commission submits that the observations on the objection of in main application is manifestly inad admissibility which the Commission missible. raised in the main proceedings and also 14. The Commission points out that the their reply to the request by the main application was lodged at the Court President of the Court that they should

provide proof that on the date on which 20. It is therefore established, ac­ the application in the main action was cording to the applicants, that as from lodged Sri Bensider was either a duly 9 February 1984, the date on which the constituted company (according to the company was constituted, it had the law applicable in the place in which it capacity to institute legal proceedings. had its registered office) or otherwise had the capacity to institute proceedings, 21. The applicants contend that the including, therefore, those under Article 33 of the ECSC Treaty. Commission is invoking before the Court of Justice a rule of Italian municipal law 18. The applicants state inter alia that which appears neither in the ECSC Srl Bensider was constituted by notarial Treaty nor in the Rules of Procedure of act in its official place of residence, the Court. The subordination of the Pordenone, on 9 February 1984. It was right to institute proceedings to prior entered in the commercial register of the entry in the commercial register is a Tribunale di Pordenone under No 6544 feature of the legislation of various on 13 March 1984, after the main countries. The consequences attaching to application in this case had been lodged that formality may vary from one legal at the Court Registry. By a general system to another and the Rules of meeting held on 4 April 1984 Sri Procedure of the Court are silent on that Bensider approved all the steps taken by particular point. It follows that the rule its sole director, Mr Benedet Bruno, relied on by the Commission applies only including the bringing of this case, before the Italian courts and not before before the date on which it was entered the Court of Justice of the European in the companies' register at the Communities. Tribunale di Pordenone. 22. As regards the other applicants, the 19. According to the applicants the action has been brought by undertakings formalities involved in entry in the all of which have as their sole object the commercial register account for the fact marketing of second steel products. The this did not take place until 13 March. In applicants were justified in instituting accordance with current practice in Italy proceedings by means of a single the steps taken by the sole director of the application because their common rights company before the latter was entered in of action are connected and are even the commercial register were approved indivisible. In those circumstances it is and ratified by a subsequent general proper to apply to all the applicants a meeting held on 4 April 1984. That rati­ longer period, namely that which applies fication operated with retroactive effect. in the case of Sri Bensider.

25 As regards the company Bensider, the main application was made within the prescribed period . In these proceedings relating to the application for interim measures it is unnecessary to rule , even provisionally, on Bensider's capacity to institute proceedings at the time when the main application was lodged at the Court Registry . It is sufficient to note that , even if the view most favourable to the company Bensider is adopted , that company was constituted on 9 February 1984 at the earliest. It bases its application for suspension on an alleged misuse of powers affecting it by the Commission in a a decision adopted by the latter on 23 December 1983 . Since at that date the company Bensider did not exist the Commission could not have been guilty of a misuse of powers in affecting it. Accordingly , since that company has been unable to adduce factual and legal grounds establishing a prima facie case for a suspension of the operation of the contested decision, the application must also be dismissed in its case.

On those grounds,

THE PRESIDENT OF THE COURT,

by way of an interim decision,

hereby orders as follows :

1. The application is dismissed;