61974O0071(00)

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IN CASES 71/74 R AND RR

NEDERLANDSE VERENIGING VOOR DE FRUIT - EN GROENTENIMPORTHANDEL, NEDERLANDSE BOND VAN GROSSIERS IN ZUIDVRUCHTEN EN ANDER GEIMPORTEERD FRUIT, REPRESENTED BY J . J . A . ELLIS AND B . H . TER KUILE, BOTH ADVOCATES AND AVOUES AT THE HAGUE, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF J . LOESCH, ADVOCATE, 2, RUE GOETHE, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, B . VAN DER ESCH, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF P . LAMOUREUX, LEGAL ADVISER, 4, BOULEVARD ROYAL, DEFENDANT,

AND

THE FRUITUNIE ASSOCIATION, REPRESENTED BY R . A . DE JONGE, ADVOCATE AT UTRECHT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, AVOCAT-AVOUE, 34 B IV, RUE PHILIPPE II, INTERVENER,

1 THE INTERVENER'S INTEREST IN THE CASE RESULTS FROM THE ADVANTAGES WHICH IT CAN GAIN FROM THE OPERATION OF A DECISION FREEING IT FROM THE AGREEMENT IN ISSUE .

2 THIS BEING SO, IT SUPPORTS THE SUBMISSIONS OF THE COMMISSION .

3 ITS INTERVENTION IN THIS INTERIM PROCEDURE IS THEREFORE ADMISSIBLE .

4 THE AIM OF THE INTERIM APPLICATION IS TO PERSUADE THE COURT TO DECIDE IN FAVOUR OF THE SUSPENSION OF OPERATION OF THE COMMISSION'S DECISION, WITH THE RESULT THAT THE PROHIBITED AGREEMENT SHOULD BE REGARDED AS TEMPORARILY VALID UNTIL JUDGMENT IS GIVEN IN THE MAIN ACTION .

5 HOWEVER, IT IS OUTSIDE THE JURISDICTION OF THE COURT, WITHIN THE CONTEXT OF AN INTERIM PROCEDURE, TO SUBSTITUTE ITS OWN APPRAISAL FOR THAT OF THE COMMISSION AND RENDER PROVISIONALLY VALID AN AGREEMENT WHICH HAS BEEN ANNULLED ON THE BASIS OF ARTICLE 85 ( 1 ) WITH THE CONSEQUENCES PRESCRIBED BY ARTICLE 85 ( 2 ).

6 IN COMPLIANCE WITH ARTICLE 185 OF THE EEC TREATY, THE COURT CAN, AT MOST, GRANT A SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION INSOFAR AS THAT SUSPENSION IS ESTABLISHED TO BE ABSOLUTELY NECESSARY, HAVING REGARD TO THE URGENCY OF THE SITUATION AND TO THE IRREVERSIBLE NATURE OF THE DAMAGE WHICH MIGHT ENSUE FROM IMMEDIATE OPERATION OF THE DECISION BEFORE THE COURT'S JUDGMENT IN THE MAIN ACTION, WITH REGARD TO WHICH SUCH SUSPENSION IS IN ANY CASE WITHOUT PREJUDICE .

7 THE COMMISSION, MOREOVER, HAS DECLARED THAT 'IT IS NOT ITS PRACTICE TO FORCE THE PARTIES CONCERNED FORMALLY TO ANNUL THEIR AGREEMENTS OR TO MAKE THEM CONFORM TO THE TREATY WHEN AN INTERIM APPLICATION IS PENDING AGAINST A DECISION DECLARING AN AGREEMENT INCOMPATIBLE WITH ARTICLE 85 '.

8 IT IS THEREFORE SUFFICIENT TO SUSPEND THE OPERATION OF THE COMMISSION'S DECISION UNTIL THE DATE OF THE COURT'S JUDGMENT, SUBJECT HOWEVER TO THE NON-APPLICATION, DURING THAT PERIOD, OF THE CLAUSES UNDER WHICH PENALTIES MAY BE IMPOSED ON THE PARTIES TO THE AGREEMENT .

9 AT THIS STAGE, IT IS APPROPRIATE TO RESERVE COSTS .

ON THOSE GROUNDS,

THE PRESIDENT

AS AN INTERIM RULING,

ORDERS :

1 . THE INTERVENTION OF THE FRUITUNIE ASSOCIATION IN THIS INTERIM PROCEDURE IS ALLOWED;

2 . THE OPERATION OF DECISION IV/26.602 - FRUBO IS SUSPENDED UNTIL THE COURT HAS GIVEN ITS JUDGMENT ON THE SUBSTANCE OF THE CASE;

3 . HOWEVER, THE CLAUSES UNDER WHICH PENALTIES MAY BE IMPOSED ON THE PARTIES TO THE AGREEMENT SHALL NOT APPLY DURING THIS PERIOD;

4 . THE COSTS ARE RESERVED .