61981O0020

IN CASE 20/81 R

1 . ARBED SA , WHOSE REGISTERED OFFICE IS IN LUXEMBOURG ,

2 . STAHLWERKE ROCHLING-BURBACH GMBH , WHOSE REGISTERED OFFICE IS IN VOLKLINGEN ( FEDERAL REPUBLIC OF GERMANY ),

3 . NEUNKIRCHER EISENWERK AKTIENGESELLSCHAFT , VORMALS GEBRUDER STUMM , WHOSE REGISTERED OFFICE IS IN NEUNKIRCHEN ( FEDERAL REPUBLIC OF GERMANY ),

REPRESENTED BY ARVED DERINGER AND JOCHIM SEDEMUND OF THE COLOGNE BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF GEORGES FABER , ARBED SA , AVENUE DE LA LIBERTE ,

APPLICANTS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY H . MATTHIES , LEGAL ADVISER , ASSISTED BY E . GRABITZ , PROFESSOR AT THE FREE UNIVERSITY OF BERLIN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF O . MONTALTO , A MEMBER OF THE LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

1 ARTICLE 39 OF THE TREATY ESTABLISHING THE EUROPEAN COAL AND STEEL COMMUNITY PROVIDES THAT ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . HOWEVER , THE COURT MAY , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED . IT MAY ALSO PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .

2 UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE OF THE COURT , THE GRANT OF AN APPLICATION TO SUSPEND THE OPERATION OF A MEASURE AND A DECISION ORDERING INTERIM MEASURES ARE SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH MEASURES .

3 BY GENERAL DECISION 2794/80/ECSC OF 31 OCTOBER 1980 ( OFFICIAL JOURNAL 1980 , L 291 , P . 1 ), A SYSTEM OF PRODUCTION QUOTAS FOR STEEL WAS ESTABLISHED FOR THE UNDERTAKINGS IN THE STEEL INDUSTRY . ACCORDING TO ARTICLE 2 ( 1 ) OF THAT DECISION , THE COMMISSION IS TO FIX QUARTERLY PRODUCTION QUOTAS FOR CRUDE STEEL AND FOR FOUR GROUPS OF ROLLED PRODUCTS .

4 ACCORDING TO ARTICLE 3 , THE COMMISSION IS TO FIX THESE QUOTAS FOR EACH UNDERTAKING ' ' ON THE BASIS OF THE REFERENCE PRODUCTION FIGURES , AS REFERRED TO IN ARTICLE 4 , OF THAT UNDERTAKING ' ' AND ' ' BY APPLICATION OF ABATEMENT RATES TO THESE REFERENCE PRODUCTION FIGURES AS REFERRED TO IN ARTICLE 5 ' ' . HOWEVER , ARTICLE 1 ( 3 ) OF THE DECISION PROVIDES THAT , AS REGARDS THE FIXING BOTH OF THE REFERENCE PRODUCTION FIGURES AND OF THE PRODUCTION QUOTAS RESULTING FROM THEM ' ' ANY GROUP OF CONCENTRATED UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 66 OF THE TREATY SHALL RANK AS A SINGLE UNDERTAKING , EVEN IF THESE UNDERTAKINGS ARE LOCATED IN DIFFERENT MEMBER STATES ' ' .

5 THE COMMISSION TOOK THE VIEW THAT THE UNDERTAKINGS ARBED SA , LUXEMBOURG , METALLURGIQUE ET MINIERE DE RODANGE-ATHUS SA , RODANGE , SIDMAR , GHENT ( BELGIUM ), STAHLWERKE ROCHLING-BURBACH GMBH , VOLKLINGEN , NEUNKIRCHER EISENWERK AG , NEUNKIRCHEN , LECH-STAHLWERKE GMBH , MEITINGEN-HERBERTSHOFEN , EISCHWEILER BERGWERKSVEREIN-HUTTENBETRIEBE , ESCHWEILER/AUE , AND TREFIL-ARBED DRAHTWERK KOLN GMBH , COLOGNE ( FEDERAL REPUBLIC OF GERMANY ), CONSTITUTE A GROUP FOR THE PURPOSES OF THE ABOVE-MENTIONED ARTICLE 66 AND , BY DECISION OF 19 DECEMBER 1980 , IT FIXED THE PRODUCTION QUOTAS FOR THE TOTALITY OF THE UNDERTAKINGS OF THIS GROUP AS FOLLOWS :

6 BY APPLICATION , REGISTERED AT THE COURT ON 4 FEBRUARY 1981 , THREE UNDERTAKINGS OF THE GROUP , NAMELY , ARBED SA , ROCHLING-BURBACH AND NEUNKIRCHER EISENWERK , INSTITUTED PROCEEDINGS UNDER ARTICLE 33 OF THE ECSC TREATY ESSENTIALLY FOR A DECLARATION THAT THE INDIVIDUAL DECISION OF 19 DECEMBER 1980 IS VOID TO THE EXTENT TO WHICH THE REFERENCE PRODUCTION FIGURES AND THE PRODUCTION QUOTAS COMMUNICATED FOR THE FIRST QUARTER OF 1981 ARE NOT FIXED AT A HIGHER RATE .

7 THESE PROCEEDINGS ARE ESSENTIALLY FOUNDED ON THE ASSERTION THAT ARTICLE 1 ( 3 ) OF THE GENERAL DECISION INFRINGES ARTICLES 4 ( B ), 58 ( 2 ) AND 80 OF THE ECSC TREATY IN THAT , FOR THE PURPOSES OF THE APPLICATION OF THE QUOTA SYSTEM , IT RANKS A GROUP OF UNDERTAKINGS AS A SINGLE UNDERTAKING . FOR THE PURPOSES OF CALCULATING THE REFERENCE PRODUCTION FIGURES AND THE PRODUCTION QUOTAS RESULTING FROM THEM , THE COMMISSION UNLAWFULLY AGGREGATED THE REFERENCE PRODUCTION FIGURES OF THE VARIOUS UNDERTAKINGS OF THE GROUP . THE ONLY METHOD IN CONFORMITY WITH THE TREATY WOULD BE TO FIX THESE REFERENCE PRODUCTION FIGURES AND PRODUCTION QUOTAS FOR EACH INDIVIDUAL UNDERTAKING IN TURN .

8 THE APPLICANTS ALSO CONTEND THAT IF THIS METHOD OF CALCULATION BY REFERENCE TO EACH INDIVIDUAL UNDERTAKING IN TURN HAD BEEN ADOPTED , THE RESULT WOULD HAVE BEEN , FIRST , THAT THE SUM OF THE REFERENCE PRODUCTION FIGURES OF THE UNDERTAKINGS OF THE GROUP WOULD HAVE EXCEEDED BY 54 252 TONNES PER QUARTER THOSE ALLOCATED TO THE GROUP AS A WHOLE AND THAT , AS A RESULT , THE SUM OF THE PRODUCTION QUOTAS OF THOSE SAME UNDERTAKINGS WOULD HAVE EXCEEDED BY 39 245 TONNES THE PRODUCTION QUOTAS ALLOCATED TO THE GROUP FOR THE FIRST QUARTER OF 1981 .

9 A FURTHER RESULT WOULD HAVE BEEN THAT THE APPLICANTS ARBED AND NEUNKIRCHER EISENWERK WOULD BE IN A POSITION TO RELY ON ARTICLE 4 ( 5 ) OF THE GENERAL DECISION WHICH , IN THE EVENT OF THE RESTRUCTURING OF AN UNDERTAKING , ALLOWS THE QUOTAS TO BE INCREASED . AS REGARDS ROLLED PRODUCTS , SUCH AN INCREASE WOULD AMOUNT , FOR THE FIRST QUARTER OF 1981 , TO MORE THAN 210 000 TONNES FOR ARBED AND ABOUT 34 000 TONNES FOR NEUNKIRCHER EISENWERK .

10 FINALLY , THE RESULT WOULD HAVE BEEN THAT THE APPLICANT ROCHLING-BURBACH GMBH COULD RELY ON ARTICLE 4 ( 3 ) WHICH , TOO , ALLOWS THE QUOTAS TO BE INCREASED BEYOND WHAT WOULD RESULT FROM THE APPLICATION OF ARTICLE 4 ( 1 ) ALONE . THIS INCREASE WOULD AMOUNT , FOR THE FIRST QUARTER OF 1981 , TO ABOUT 131 000 TONNES FOR ROLLED PRODUCTS AND ABOUT 163 000 TONNES FOR CRUDE STEEL .

11 THE INTERLOCUTORY APPLICATION SEEKS , BY WAY OF INTERIM RELIEF , AN ORDER REQUIRING THE COMMISSION TO INCREASE THE PRODUCTION QUOTAS BY TWO-THIRDS OF THE INCREASES CLAIMED IN THE APPLICATION IN THE MAIN ACTION .

12 IT IS COMMON GROUND BETWEEN THE PARTIES THAT THE THREE APPLICANTS FORM PART OF A GROUP OF CONCENTRATED UNDERTAKINGS WITHIN THE MEANING OF ARTICLE 66 OF THE TREATY . IT FOLLOWS THAT , HAVING REGARD TO THE RULE LAID DOWN IN ARTICLE 1 ( 3 ) OF GENERAL DECISION 2794/80/ECSC , THE COMMISSION DID NOT EXERCISE A DISCRETION IN THIS MATTER BUT APPLIED IN AUTOMATIC FASHION THE CRITERIA ESTABLISHED IN A PRECISE AND DETAILED MANNER BY ARTICLES 3 , 4 AND 5 OF THE GENERAL DECISION . THE PURPOSE OF THE APPLICATION IS THUS TO OBTAIN FROM THE JUDGE RESPONSIBLE FOR GRANTING INTERIUM RELIEF AN INDIVIDUAL DISPENSATION FROM THE TERMS OF GENERAL DECISION 2794/80/ECSC BY SUBSTITUTING , IN FAVOUR OF THE UNDERTAKINGS CONCERNED , CRITERIA FOR FIXING THE QUOTAS DIFFERENT FROM THOSE APPLICABLE TO ALL THOSE STEEL UNDERTAKINGS WHICH , LIKE THE APPLICANTS , FORM PART OF A GROUP WITHIN THE MEANING OF ARTICLE 1 ( 3 ) OF THE GENERAL DECISION . THIS REQUEST FOR A DEROGATION IS BASED ON THE IDEA THAT ARTICLE 1 ( 3 ), WHICH CONSTITUTES THE LEGAL BASIS OF THE INDIVIDUAL DECISION CONTESTED IN THE MAIN ACTION , IS ITSELF UNLAWFUL .

13 BY VIRTUE OF ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE , AS WELL AS OF A CONSISTENT LINE OF DECISIONS OF THE COURT , MEASURES OF THIS KIND MAY BE ADOPTED BY THE JUDGE HEARING THE APPLICATION FOR SUCH MEASURES IF IT IS ESTABLISHED THAT THEIR ADOPTION IS PRIMA FACIE JUSTIFIED IN FACT AND IN LAW , IF THEY ARE URGENT IN THE SENSE THAT IT IS NECESSARY , IN ORDET TO AVOID SERIOUS AND IRREPARABLE DAMAGE , THAT THEY SHOULD BE LAID DOWN , AND SHOULD TAKE EFFECT , BEFORE THE DECISION OF THE COURT ON THE SUBSTANCE OF THE ACTION AND IF THEY ARE PROVISIONAL IN THE SENSE THAT THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE , THAT IS TO SAY THAT THEY DO NOT AT THIS STAGE DECIDE DISPUTED POINTS OF LAW OR OF FACT OR NEUTRALIZE IN ADVANCE THE CONSEQUENCES OF THE DECISION TO BE GIVEN SUBSEQUENTLY ON THE SUBSTANCE OF THE ACTION .

14 AS REGARDS THE EXISTENCE OF SERIOUS AND IRREPARABLE DAMAGE , IT HAS BECOME APPARENT THAT EVEN IF THE APPLICANTS ' POINT OF VIEW REGARDING THE APPLICATION OF ARTICLE 4 ( 1 ) OF THE GENERAL DECISION WERE UPHELD , THE REFERENCE PRODUCTION FIGURES AND THE PRODUCTION QUOTAS RESULTING FROM THEM WOULD ONLY BE INCREASED , IN RESPECT OF ALL THE UNDERTAKINGS IN THE GROUP TO WHICH THE APPLICANTS BELONG , BY 54 252 TONNES AND 39 245 TONNES RESPECTIVELY FOR THE FIRST QUARTER OF 1981 . IT HAS EVEN BEEN STATED , IN A LATER COMMUNICATION FROM THE APPLICANTS , THAT THE INCREASE SO FAR AS THEY ARE CONCERNED WOULD ONLY BE 2 260 TONNES . A DIFFERENCE OF THIS MAGNITUDE , SPREAD OVER THREE MONTHS , CANNOT BE REGARDED AS BEING SUCH AS TO CAUSE SERIOUS AND IRREPARABLE DAMAGE TO UNDERTAKINGS OF THE SIZE OF THE APPLICANTS .

15 AS REGARDS THE ARGUMENT PUT FORWARD BY THE APPLICANTS ARBED AND NEUNKIRCHER EISENWERK , AND BASED ON THE PREMISE THAT A REFUSAL TO CONSIDER THEM AS SEPARATE UNDERTAKINGS DEPRIVES THEM OF THE BENEFIT OF THE APPLICATION OF ARTICLE 4 ( 5 ), IT MUST BE STATED THAT THESE TWO APPLICANTS HAVE NOT SUCCEEDED IN ESTABLISHING A PRIMA FACIE CASE , IN FACT AND IN LAW , FOR THE MEASURE APPLIED FOR .

16 THE COMMISSION EXPRESSLY DENIES THAT , EVEN TAKEN INDIVIDUALLY , THESE UNDERTAKINGS MAY RELY ON THE SAID PARAGRAPH ( 5 ).

17 FURTHERMORE , ACCORDING TO THE WORDING OF THAT PROVISION , ITS APPLICATION DEPENDS ON TWO CONCURRENT CONDITIONS , THAT IS TO SAY , THAT THE TOTAL PRODUCTION IN RESPECT OF THE FOUR GROUPS OF ROLLED PRODUCTS DURING A REFERENCE PERIOD FALLS SHORT OF PRODUCTION IN THE SAME QUARTER OF 1974 AND , SECONDLY , THAT THIS UNDERTAKING HAS ACHIEVED FOR THE YEAR ENDING IN 1979 ' ' A PROFIT WHICH IS SHOWN IN ITS ANNUAL REPORT OR REPORTED TO THE NATIONAL OFFICIAL AGENCY RESPONSIBLE FOR THE FILING OF THE ANNUAL ACCOUNTS OF COMPANIES ' ' .

18 THE ANSWER TO THE QUESTION WHETHER THE APPLICANTS MEET , IN PARTICULAR , THE SECOND OF THESE CONDITIONS IS SO MUCH THE SUBJECT OF CONTROVERSY THAT THE PREMISE NECESSARY FOR THE GRANT OF AN INTERIM MEASURE , NAMELY THAT THIS CONDITION MAY BE CONSIDERED AS PRIMA FACIE FULFILLED , IN LAW AND IN FACT , IS WHOLLY LACKING .

19 THE SAME APPLIES AS REGARDS THE APPLICANT ROCHLING-BURBACH ' S ARGUMENT THAT THE REFUSAL TO CONSIDER IT AS AN INDIVIDUAL UNDERTAKING DEPRIVES IT OF THE BENEFIT OF ARTICLE 4 ( 3 ) OF THE GENERAL DECISION . THE APPLICATION OF THE SPECIAL SYSTEM PROVIDED FOR BY ARTICLE 4 ( 3 ) DEPENDS ON THE FINDING BY THE COMMISSION THAT ' ' DURING THE PERIOD FROM JULY 1977 TO JUNE 1980 , THE AVERAGE RATE OF UTILIZATION OF THE PRODUCTION FACILITIES OF AN UNDERTAKING WAS 10 PERCENTAGE POINTS OR MORE BELOW THE AVERAGE RATE OF UTILIZATION OF THE SAME FACILITIES OF THE OTHER UNDERTAKINGS OF THE COMMUNITY DURING THE YEARS 1977 , 1978 AND 1979 ' ' .

20 THE COMMISSION EXPRESSLY DENIES THAT , EVEN CONSIDERED INDIVIDUALLY , THIS APPLICANT MEETS THE CONDITIONS WHICH WOULD ENABLE IT TO CLAIM THE BENEFIT OF THAT PROVISION . ACCORDING TO THE COMMISSION , THE AVERAGE RATE OF UTILIZATION OF THE PRODUCTION CAPACITY OF ROCHLING-BURBACH IS NOT , AS REGARDS ROLLED PRODUCTS , 10 PERCENTAGE POINTS BELOW THE AVERAGE RATE OF UTILIZATION REFERRED TO IN THE SAID PARAGRAPH ( 3 ), WHICH RULES OUT THE APPLICATION OF THAT PROVISION . THE APPLICANT ON THE OTHER HAND MAKES THE POINT THAT ITS PRODUCTION OF CRUDE STEEL IS AT A LEVEL WHICH , ACCORDING TO IT , MAKES IT POSSIBLE TO CALL FOR AN INCREASE IN QUOTAS BOTH FOR CRUDE STEEL AND FOR ROLLED PRODUCTS , EVEN IF , AS REGARDS THE LATTER , THE LEVEL OF MINUS 10 POINTS WERE NOT REACHED .

21 THE DISPUTE BETWEEN THE PARTIES ON THE INTERPRETATION TO BE GIVEN TO ARTICLE 4 ( 3 ) BEARS UPON THE ESSENTIAL FEATURES OF THAT PROVISION . IN THESE CIRCUMSTANCES , IT CANNOT BE FOUND THAT THE APPLICANT HAS SUCCEEDED IN ESTABLISHING A PRIMA FACIE CASE , IN LAW AND IN FACT , FOR THE PARTIAL APPLICATION OF PARAGRAPH ( 3 ), WHICH IT SEEKS BY WAY OF INTERIM RELIEF .

22 THE APPLICANTS HAVE RELIED ON THE FINANCIAL CONSEQUENCES AND THE CONSEQUENCES FROM THE POINT OF VIEW OF EMPLOYMENT WHICH , ACCORDING TO THEM , WOULD RESULT FROM THE INADEQUATE QUOTAS ALLOCATED TO THEM . IN THIS RESPECT , HOWEVER , THEY HAVE MERELY PROVIDED GENERAL INDICATIONS WHICH DO NOT WARRANT THE CONCLUSION THAT THE SACRIFICES AND DISADVANTAGES WHICH THEY WOULD INCUR WOULD BE OF A DIFFERENT ORDER OF MAGNITUDE FROM THE SACRIFICES AND DISADVANTAGES WHICH ARE THE INEVITABLE RESULT OF THE IMPLEMENTATION OF A QUOTA SYSTEM FOR THE STEEL UNDERTAKINGS AS A WHOLE AND IN PARTICULAR FOR THE NUMEROUS OTHER GROUPS OF UNDERTAKINGS TO WHICH ARTICLE 1 ( 3 ) HAS BEEN APPLIED .

23 FOR THE REASONS GIVEN ABOVE THE MEASURES APPLIED FOR CANNOT BE GRANTED .

24 NONE THE LESS , IT CANNOT PASS UNNOTICED THAT , IN A CASE SUCH AS THE PRESENT ONE , INVOLVING ECONOMIC MEASURES WHICH PRODUCE PARTICULARLY SEVERE EFFECTS BUT WHICH ARE SPREAD OVER SUCCESSIVE PERIODS OF SHORT DURATION , THERE IS A RISK THAT THE DECISION TO BE GIVEN ON THE APPLICATION IN THE MAIN ACTION MAY NOT , BECAUSE OF THE PASSAGE OF TIME , ENABLE FULL JUSTICE TO BE DONE . ALTHOUGH THIS CONSIDERATION IS NOT ENOUGH TO JUSTIFY , AT THE STAGE OF THE PROCEDURE FOR THE ADOPTION OF INTERIM MEASURES , THE GRANT OF MEASURES WHICH GO BEYOND THE CONTEXT WITHIN WHICH THAT PROCEDURE IS TO BE APPLIED , IT IS , HOWEVER , PROPER TO INVITE THE PARTIES TO CONSIDER TOGETHER WHETHER RECOURSE TO THE POSSIBILITIES OFFERED BY ARTICLE 41 ( 1 ) OF THE RULES OF PROCEDURE OF THE COURT FOR EXPEDITING THE WRITTEN PROCEDURE MAY , SO FAR AS IS POSSIBLE , MITIGATE THAT RISK .

25 IT IS APPROPRIATE , AT THIS STAGE , TO RESERVE THE COSTS .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE COURT ,

BY WAY OF INTERLOCUTORY DECISION ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATIONS ARE REFUSED .

2 . THE COSTS ARE RESERVED .

3 . THE PARTIES ARE REQUESTED TO CONSIDER TOGETHER THE POSSIBILITY OF RESORTING TO AN ABRIDGED WRITTEN PROCEDURE WITH A VIEW TO EXPEDITING THE PROCEEDINGS IN THE MAIN ACTION .