C-62/84

applicant, v

C O M M I S S I O N O F T H E E U R O P E A N C O M M U N I T I E S , 200 R u e d e la L o i , B-1040 Brussels, represented by F r a n k Benyon, a m e m b e r of its Legal D e p a r t m e n t , with an address for service in L u x e m b o u r g at the office of Manfred Beschel, Jean M o n n e t Building, Kirchberg,

defendant,

A P P L I C A T I O N for the suspension of the operation of Commission Decision N o C ( 8 4 ) 1 0 4 / 1 of 26 J a n u a r y 1984 concerning a fine imposed o n t h e applicant u n d e r Article 58 of the E C S C T r e a t y ,

THE PRESIDENT O F THE C O U R T OF JUSTICE OF T H E EUROPEAN C O M M U N I T I E S

makes the following

An action was brought for a declaration In its application, the applicant contends that that decision was void (Case 62/84). essentially that as long as an infringe­ By letter of 30 January 1984, the ment is the subject of proceedings Commission informed the applicant that pending before the Court, the Com­ if it brought an action before the Court mission is not entitled to take account of of Justice of the European Communities it as a ground for finding that an — and in the light of the fact that it infringement has been repeated and for had already been penalized for an in­ consequently refusing to accept the fringement of Decision N o 1831/81/ provision of a guarantee rather than ECSC — the Commission would seek to immediate payment of the fine. recover 7 0 % of the principal amount payable. The applicant pointed out in reply that the previous decision referred Moreover, the Commission regards any to by the Commission in support of its new case of a quota being exceeded as demand for immediate payment of the the repetition of an infringement re­ fine was still the subject of proceedings gardless of the category of products in before the Court (Case 78/83) and that, respect of which the excess is recorded, consequently, only in respect of the fine whereas an infringement can be regarded for exceeding delivery quotas for as having been repeated only where a Category Ic, the legality of which was quota is exceeded on a subsequent not contested in Case 78/83, could the occasion within the same category of requirement of an immediate payment of products.

The applicant considers that the "In the context of its general policy measures sought will not prejudge the regarding fines the Commission is not decision to be given ón the substance of acting unlawfully in modifying that the case. Furthermore, the interim policy, in particular with regard to the measures sought are justified in fact and recovery of fines, in the light of the in law. The Commission's letter con- circumstances which lead it to take stitutes a real threat whose purpose can action". The Commission considers only have been to dissuade the applicant essentially that deferment of payment from bringing an action. In his order of pending the outcome of the legal 5 July 1983, Case 78/83 R (Usinor), the proceedings might facilitate the com- President of the Court considered that mission of further infringements. The "the damage inflicted on the applicant in measures sought are not, at first sight, requiring it to pay what is a considerable justified either in fact or in law. The sum, even for an undertaking of its size, applicant has not put forward a prima before the Court has established the facie case for concluding, that its existence of a first infringement would application is well founded and the be disproportionate in comparison with Commission sufficiently refuted that the Commission's interest, even though a application in its defence of 9 April. legitimate one, in reinforcing the Since the application for the adoption of deterrent effect of its decision by the interim measures has the same purpose immediate recovery of 70% of the fine". as the original action, the measures Finally, the interim measures sought are sought might prejudge the decision to be urgent because the decision of 26 given on the substance of the case. January 1984 provides for penalties in the event of failure to pay within the period notified ( 1 % per month of delay). The sum demanded is considerable. Short-term loans are out of the question, because of the credit control measures in force in France in 1984 and because of the group's debts. Immediate payment of the amounts in question would represent a greater financial burden than the provision of a guarantee of payment in Finally, the applicant has in no way the form of a promissory note in proved that the measures are a matter of accordance with the procedure accepted urgency, that is, that they are necessary by the Commission for the guarantee to prevent serious and irreparable system provided for in Decision No damage. It certainly does not seem 3716/83/ECSC. impossible for the applicant to obtain the necessary funds on a "longterm" basis, that is, by recourse to the shareholders. Moreover, the applicant knows that it can ask the Commission to allow payment by instalments on specified dates. If the Court granted the suspension sought in the present case, other undertakings would make similar applications and the measures would thus no longer constitute a penalty and a deterrent for undertakings which re- The Commission points out that in his peatedly commit infringements. The aforementioned order of 5 July 1983, the Commission draws attention to the fact President of the Court recognized that that, of 165 undertakings subject to the

USINOR v COMMISSION

4 The applicant denies that the excesses of which it is accused in respect of the first and second quarters of 1982, even if proved, constitute a second infringement. It points out in that connection that even though it has already been sanctioned by a previous decision imposing a fine upon it for excesses recorded during the fourth quarter of 1981, it has brought an action against that decision on which the Court has not yet delivered judgment. According to the applicant, as long as the Court has not upheld that fine, in whole or in part, it cannot be said that the applicant has committed a further infringement.

5 Oral argument in this case was presented on 21 June 1984 in relation to the dispute before the Court concerning quotas alleged to have been exceeded during the fourth quarter of 1981 (Case 78/83) and the Advocate General's opinion is listed to be delivered on 11 October 1984; judgment will be delivered within a foreseeable period after that date.

6 In those circumstances, and in the light of the stage of the procedure reached in Case 78/83, it is appropriate to suspend the operation of the contested decision, in any event until the Court has delivered judgment in that case, since that judgment might have an appreciable influence on the decision to be given in the present dispute.

7 It will be for the parties, after the Court has delivered judgment in Case 78/83, concerning an application for a declaration of the nullity of Commission Decision No C(83) 376/5 of 24 March 1983, to draw the necessary conclusions from that judgment with regard to the recovery of the fine to which this order relates and, if appropriate, to make a further application to the Court for the adoption of interim measures.

by way of interim decision,

hereby orders as follows :

1. The operation of Article 2 of Commission Decision No C(84) 104/1 of 26 January 1984 shall be suspended until the thirtieth day following the date of notification to the parties of the judgment to be delivered by the Court in Case 78/83, Usinorv Commission, on condition that the applicant provides a bank guarantee in advance guaranteeing payment of the fine imposed by that decision and for any default interest;

2. Formal note is taken of the applicant's offer to settle 70% of the part of the fine relating to excesses in delivery as regards Category Ic in the first half of 1982;

3. For the rest the application is dismissed;

4. The costs are reserved.