61975O0109(00)

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IN CASE 109/75 R

NATIONAL CARBONISING COMPANY LIMITED OF FULLARTON LODGE, MANSFIELD, NOTTINGHAMSHIRE, REPRESENTED AND ASSISTED BY A . P . GRAHAM-DIXON, QUEEN'S COUNSEL, OF THE INNER TEMPLE AND GRAY'S INN, C . W . BELLAMY, BARRISTER, OF GRAY'S INN, AND A . G . GROUND, SOLICITOR OF LINKLATERS AND PAINES, OF LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS . ELVINGER AND HOSS, 84 GRAND RUE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY JOHN TEMPLE LANG, LEGAL ADVISER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MR CERVINO, LEGAL ADVISER, BATIMENT CFL - GARE, DEFENDANT,

AND

NATIONAL COAL BOARD OF HOBART HOUSE, GROSVENOR PLACE LONDON, REPRESENTED AND ASSISTED BY CONRAD DEHN, QUEEN'S COUNSEL, OF GRAY'S INN, DAVID VAUGHAN, BARRISTER OF INNER TEMPLE AND RONALD V . COWLES, SOLICITOR, OF HOBART HOUSE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT, 34B RUE PHILIPPE II, INTERVENING,

ON THE ADMISSIBILITY OF THE INTERVENTION

1 NCB HAS MADE AN APPLICATION TO INTERVENE IN THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES . THE COMMISSION AND NCC HAVE NOT DISPUTED THAT IT HAS AN INTEREST IN INTERVENING .

2 NCB'S INTERVENTION IN SUPPORT OF THE COMMISSION IN THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES IS THEREFORE ADMISSIBLE .

ON THE NATURE OF THE MAIN ACTION

3 NCC HAS INSTITUTED PROCEEDINGS UNDER ARTICLE 35 FOR FAILURE TO FULFIL AN OBLIGATION . IT HAS, MOREOVER, MADE KNOWN, ORALLY AND IN WRITING, ITS INTENTION TO INSTITUTE PROCEEDINGS FOR ANNULMENT UNDER ARTICLE 33 IN RESPECT OF THE COMMISSION'S LETTER OF 16 OCTOBER 1975 .

4 THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES HAS NO JURISDICTION TO CONSIDER ACTIONS WHICH ARE PRESENTLY PENDING OR WHICH MAY BE BROUGHT OR TO PRE-JUDGE THE OUTCOME THEREOF .

ON THE SUBJECT-MATTER OF THE APPLICATION

5 THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IN SUBSTANCE SEEKS AN ORDER UNDER ARTICLE 39 OF THE ECSC TREATY AND IN ACCORDANCE WITH ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE FOR INTERIM MEASURES CONSISTING EITHER OF AN ORDER TO THE COMMISSION TO TAKE A DECISION ADDRESSED TO NCB OR ALTERNATIVELY OF AN ORDER ADDRESSED TO NCB TO REFRAIN FROM IMPLEMENTING A CERTAIN POLICY ON PRICES . THE DEFENDANT COMMISSION CONSIDERS THAT THE COMPLAINT AGAINST IT IS THAT OF A FAILURE TO FULFIL AN OBLIGATION WITHIN THE MEANING OF ARTICLE 35 OF THE ECSC TREATY .

6 IT IS FOR THE COURT AND NOT FOR THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES, IN THE FIRST PLACE TO RULE WHETHER THERE IS IN FACT A FAILURE TO FULFIL AN OBLIGATION OR WHETHER THE LETTER OF 16 OCTOBER 1975 BEARING THE SIGNATURE SCHLIEDER CONSTITUTES A DECISION OF REJECTION AND, IN THE SECOND PLACE, THEREFORE TO DEFINE THE NATURE OF THE DISPUTE AND OF THE FORM IN WHICH THE ACTION HAS BEEN BROUGHT . IN ANY EVENT, WHETHER THERE IS AN IMPLIED OR EXPRESS DECISION REFUSING THE ADMINISTRATIVE REQUEST OF 21 JULY 1975, IT MUST BE STATED THAT THE APPLICANT IS IN FACT ASKING THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES THAT NO EFFECT SHOULD BE GIVEN TO A NEGATIVE DECISION REFUSING, IN PARTICULAR, TO TAKE EMERGENCY MEASURES . TO GRANT SUCH AN APPLICATION WOULD AMOUNT, TEMPORARILY, TO A POSITIVE DECISION TAKEN BY THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES IN LIEU AND INSTEAD OF THE COMMISSION .

7 THE COMMISSION ITSELF, HOWEVER, HAS IN THE PRESENT CASE, BEFORE THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES, ADOPTED A POSITION WHICH MAKES IT APPARENT THAT IT CONSIDERS THAT 'THE APPLICATION ADDRESSED TO THE COURT IS NOT CLEARLY UNFOUNDED' AND THAT IT ACKNOWLEDGES THE PERILOUS POSITION IN WHICH THE TWO NCC COKING PLANTS ARE PLACED AND THE URGENCY OF THE MEASURES TO BE TAKEN AND WHICH IT NEVERTHELESS HAS FAILED TO TAKE ITSELF . WITH THIS IN MIND THE COMMISSION REFERRED IN ITS ORAL SUBMISSIONS TO THE POSSIBILITY THAT THERE MIGHT BE A 'MINOR' ABUSE OF A DOMINANT POSITION . IN ITS WRITTEN SUBMISSIONS IT STATED THAT 'THE SURVIVAL OF NCC'S TWO PLANTS, AND THE SURVIVAL OF NCC ITSELF AS PRODUCER OF DOMESTIC HARD COKE ARE AT STAKE' AND THAT 'THE BALANCE OF THE INTERESTS OF THE ENTERPRISES INVOLVED SEEM TO PERMIT INTERIM MEASURES '. HAVING MADE THIS FINDING, THE COMMISSION NONE THE LESS CONSIDERS THAT IT IS 'MORE APPROPRIATE THAT THE COURT SHOULD ORDER INTERIM MEASURES RATHER THAN THE COMMISSION' NOTWITHSTANDING, MOREOVER, THAT THE COMMISSION CONSIDERS THAT IT HAS 'AN INHERENT POWER TO ADOPT A TEMPORARY MEASURE TO PROTECT THE STATUS QUO '.

8 IN THESE CIRCUMSTANCES IT IS THEREFORE FOR THE COMMISSION TO ADOPT THE MEASURES WHICH IT CONSIDERS NECESSARY . IT WOULD IN FACT BE CONTRARY TO THE BALANCE BETWEEN THE INSTITUTION WHICH DERIVES FROM THE TREATY FOR THE JUDGE HEARING THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES TO SUBSTITUTE HIMSELF FOR THE COMMISSION IN THE EXERCISE OF A POWER WHICH BELONGS PRIMARILY, SUBJECT TO REVIEW BY THE COURT, TO THE COMMISSION WHICH HAS ALL THE INFORMATION REQUIRED FOR THIS PURPOSE OR THE MEANS OF OBTAINING IT . THE COMMISSION SHOULD BE PERMITTED TO TAKE THE MEASURES OF CONSERVATION IN QUESTION PROVIDED, HOWEVER, THAT THESE MEASURES ARE STRICTLY CONFINED TO THE PRODUCTION OF COKE NECESSARY TO KEEP THE PLANTS AT BARNSLEY AND ROTHERHAM IN OPERATION AND TO THE PRESERVATION OF THE JOBS WHICH WOULD BE THREATENED IF THE COKING PLANTS WERE TO CEASE PRODUCTION . IT IS FOR THE COMMISSION ALSO TO PRESCRIBE THE GUARANTEES WHICH SHOULD PROPERLY BE SOUGHT FROM NCC IN THE EVENT OF ITS FAILING IN ITS MAIN APPLICATION .

HAVING REGARD TO THE URGENCY OF THE MATTER,

BY WAY OF INTERIM RULING,

THE PRESIDENT OF THE COURT OF JUSTICE OF THE

EUROPEAN COMMUNITIES EUROPEAN COMMUNITIES

HEREBY DECLARES AND ORDERS :

1 . THE INTERVENTION OF NCB IN THE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES IS ADMISSIBLE;

2 . IT IS FOR THE COMMISSION TO TAKE THE MEASURES OF CONSERVATION WHICH IT CONSIDERS STRICTLY NECESSARY, AND SUBJECT TO ALL APPROPRIATE GUARANTEES, FOR THE PURPOSE OF KEEPING IN OPERATION THE TWO NCC PLANTS THREATNED WITH CLOSURE AND ONLY FOR THE SHORTEST TIME WHICH IT CONSIDERS TO BE NECESSARY FOR THE COMPLETION OF THE PROCEEDINGS IN THE MAIN ACTION;

3 . THE COSTS ARE RESERVED .