61986O0121(01)

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1 . APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - INTERIM MEASURES - CONDITIONS FOR GRANTING

( EEC TREATY, ART . 186; RULES OF PROCEDURE, ART . 83 ( 2 ) )

2 . PROCEDURE - APPLICATION FOR MEASURES OF INQUIRY - PROCEDURE FOR THE ADOPTION OF INTERIM MEASURES INAPPROPRIATE

( RULES OF PROCEDURE, ARTS 45, 83 ( 2 ) AND 91 )

IN JOINED CASES 121 AND 122/86 R

ANONIMOS ETERIA EPICHIRISSEON METALLEFTIKON VIOMICHANIKON KAI NAFTILIAKON AE,

MAKEDONIKI LEFKOLITHI METALLEFTIKI VIOMICHANIKI KAI NAFTILIAKI ETERIA AE,

ELLINIKI LEFKOLITHI METALLEFTIKI VIOMICHANIKI NAFTILIAKI KAI EMBORIKI ETERIA AE, AND

MAGNOMIN GENIKI METALLEFTIKI ETERIA AE, METALLEFTIKI EMBORIKI KAI METAPYITTIKI,

COMPANIES INCORPORATED UNDER GREEK LAW, REPRESENTED BY P . BERNITSAS, OF THE ATHENS BAR, WITH AN AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ALOYSE MAY, 31 GRAND-RUE,

APPLICANTS,

V

COUNCIL OF THE EUROPEAN COMMUNITIES,

REPRESENTED BY ITS AGENTS, E . STEIN AND C . MAVRAKOS, MEMBERS OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J . KAESER, DIRECTOR OF THE LEGAL DEPARTMENT AT THE EUROPEAN INVESTMENT BANK, 100 BOULEVARD KONRAD-ADENAUER,

AND

COMMISSION OF THE EUROPEAN COMMUNITIES,

REPRESENTED BY ITS AGENTS, J . TEMPLE LANG AND D . GOULOUSSIS, MEMBERS OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,

DEFENDANTS,

APPLICATION PRINCIPALLY FOR AN INTERIM ORDER REQUIRING THE COMMISSION TO COMPLETE THE NON-CONFIDENTIAL FILE ON THE INVESTIGATION BY 31 DECEMBER 1986 . IN THE ALTERNATIVE, THE APPLICANTS REQUEST :

( I)*THAT THEY BE GIVEN AN OPPORTUNITY OF INSPECTING THE FILE AND REFUTING ANY NEW OR UNKNOWN DOCUMENTS ENTERED THEREIN; OR

( II)*THAT THE COURT SHOULD DISREGARD THE NEW EVIDENCE WHICH THE COMMISSION HAS SAID IS CONTAINED IN THE NON-CONFIDENTIAL FILE AND CONSEQUENTLY THAT THE COURT SHOULD CONSIDER AS EVIDENCE FOUNDED UPON BY THE COMMISSION ONLY THOSE ELEMENTS OF THE NON-CONFIDENTIAL FILE WHICH WERE MADE AVAILABLE TO THE APPLICANTS PRIOR TO 31 DECEMBER 1986 AND WHICH APPEAR IN THE ANNEX TO THEIR REPLY,

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

MAKES THE FOLLOWING

ORDER

1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 23 MAY 1986 THE FOUR GREEK UNDERTAKINGS NAMED ABOVE BROUGHT AN ACTION UNDER THE SECOND PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT DECISION NO 86/59/EEC BY WHICH THE COUNCIL TERMINATED ON 6 MARCH 1986 THE ANTI-DUMPING PROCEEDING CONCERNING IMPORTS OF DEAD-BURNED ( SINTERED ) NATURAL MAGNESITE ORIGINATING IN THE PEOPLES REPUBLIC OF CHINA AND NORTH KOREA ( OFFICIAL JOURNAL 1986, L 70, P . 41 ) AND ANY OTHER RELATED ACT, PRIOR OR SUBSEQUENT, IS VOID .

2 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON THE SAME DAY THEY ALSO BROUGHT AN ACTION AGAINST THE DEFENDANT INSTITUTIONS UNDER ARTICLE 178 AND THE SECOND PARAGRAPH OF ARTICLE 215 OF THE EEC TREATY FOR THE PAYMENT OF THE SUM OF 18*397*556*ECU, TOGETHER WITH INTEREST THEREON FROM THE DATE OF COMMENCEMENT OF THE ACTION UNTIL THE DATE OF PAYMENT, BY WAY OF COMPENSATION FOR THE DAMAGE WHICH THE ADOPTION OF DECISION NO 86/59 HAS ALLEGEDLY CAUSED THEM .

3 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 30 JANUARY 1987 THE APPLICANTS MADE AN APPLICATION UNDER ARTICLE 186 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE PRINCIPALLY FOR AN INTERIM ORDER REQUIRING THE COMMISSION TO COMPLETE THE NON-CONFIDENTIAL FILE ON THE INVESTIGATION BY 31 DECEMBER 1986 . IN THE ALTERNATIVE, THE APPLICANTS REQUEST :

( I)*THAT THEY BE GIVEN AN OPPORTUNITY OF INSPECTING THE FILE AND REFUTING ANY NEW OR UNKNOWN DOCUMENTS ENTERED THEREIN; OR

( II)*THAT THE COURT SHOULD DISREGARD THE NEW EVIDENCE WHICH THE COMMISSION HAS SAID IS CONTAINED IN THE NON-CONFIDENTIAL FILE AND CONSEQUENTLY THAT THE COURT SHOULD CONSIDER AS EVIDENCE FOUNDED UPON BY THE COMMISSION ONLY THOSE ELEMENTS OF THE NON-CONFIDENTIAL FILE WHICH WERE MADE AVAILABLE TO THE APPLICANTS PRIOR TO 31 DECEMBER 1986 AND WHICH APPEAR IN THE ANNEX TO THEIR REPLY .

4 THE DEFENDANTS SUBMITTED THEIR WRITTEN OBSERVATIONS ON 12 FEBRUARY 1987 . SINCE THE WRITTEN SUBMISSIONS OF THE PARTIES CONTAIN ALL THE INFORMATION NEEDED FOR THE PURPOSES OF ADJUDICATING UPON THE APPLICATION FOR INTERIM MEASURES, IT DID NOT APPEAR NECESSARY TO HEAR ORAL ARGUMENT FROM THE PARTIES .

5 BEFORE EXAMINING THE MERITS OF THIS APPLICATION IT IS APPROPRIATE TO RECALL THAT ON 23 MAY 1986 THE APPLICANTS MADE AN INTERLOCUTORY APPLICATION IN CASE 121/86 R FOR AN ORDER REQUIRING THE COUNCIL AND THE COMMISSION TO PRODUCE ALL THE DOCUMENTS RELATING TO COUNCIL DECISION NO 86/59 AND THAT THEIR AGENTS SHOULD DECLARE UNDER OATH THAT THEY HAD NO OTHER DOCUMENTS IN THEIR POSSESSION . BY ORDER OF 27 JUNE 1986 IN CASE 121/86 R ( EPICHIRISSEON AE V COMMISSION AND COUNCIL (( 1986 )) ECR 2063 THE PRESIDENT OF THE COURT DISMISSED THAT APPLICATION ON THE GROUND PRINCIPALLY THAT IN THE ABSENCE OF EXCEPTIONAL CIRCUMSTANCES WHICH MUST BE PROVED, WHICH THE APPLICANTS HAD NOT SUCCEEDED IN DOING IN THAT CASE, AN APPLICATION FOR INTERIM MEASURES WAS NOT IN PRINCIPLE AN APPROPRIATE PROCEDURE FOR OBTAINING THE PRODUCTION OF DOCUMENTS OF THE KIND REQUESTED .

6 ARTICLE 186 OF THE EEC TREATY PROVIDES THAT THE COURT OF JUSTICE MAY IN ANY CASES BEFORE IT PRESCRIBE ANY INTERIM MEASURES REQUESTED .

7 IN ORDER FOR INTERIM MEASURES OF THE KIND SOUGHT IN THIS CASE TO BE GRANTED, ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE REQUIRES THAT THE APPLICATION FOR INTERIM RELIEF STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND THE CIRCUMSTANCES GIVING RISE TO URGENCY .

8 THE COURT HAS CONSISTENTLY HELD THAT URGENCY WITHIN THE MEANING OF ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE IN REGARD TO AN APPLICATION FOR INTERIM MEASURES MUST BE ASSESSED ON THE BASIS OF WHETHER IT IS NECESSARY TO ADOPT SUCH MEASURES IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THOSE MEASURES .

9 THE APPLICANTS CONTEND THAT THEY HAVE STILL NOT BEEN ABLE TO INSPECT ALL THE DOCUMENTS IN THE NON-CONFIDENTIAL FILE ON THE INVESTIGATION CARRIED OUT BY THE COMMISSION BEFORE THE ADOPTION OF THE CONTESTED DECISIONS . THE COMMISSION IS CONSTANTLY ADDING TO THAT FILE NEW DOCUMENTS WHICH WERE NOT THERE WHEN THE APPLICANTS INSPECTED IT FOR THE FIRST TIME . THIS PRACTICE HAS THE EFFECT OF PROLONGING THE WRITTEN PROCEDURE INDEFINITELY SINCE IT COMPELS THEM TO REQUEST EXTENSIONS OF TIME FOR LODGING THEIR PLEADINGS IF THEY WISH TO BE ABLE TO MAKE OBSERVATIONS ON THE NEW DOCUMENTS . THIS DELAYS EXAMINATION OF THE CASE BY THE COURT AND CONSTITUTES AN INFRINGEMENT OF ARTICLE 8 OF COUNCIL REGULATION ( EEC ) NO 2176/84 OF 23 JULY 1984 ON PROTECTION AGAINST DUMPED OR SUBSIDIZED IMPORTS FROM COUNTRIES NOT MEMBERS OF THE EUROPEAN ECONOMIC COMMUNITY ( OFFICIAL JOURNAL 1984, L 201, P . 1 ), WHICH REQUIRES THE PARTIES TO THE PROCEEDING TO SUBMIT NON-CONFIDENTIAL SUMMARIES OF ALL THE CONFIDENTIAL DOCUMENTS LODGED, FAILING WHICH THE INFORMATION IN QUESTION MAY BE DISREGARDED .

10 THEY ALSO EMPHASIZE THE EXTREME URGENCY CREATED BY THIS SITUATION SINCE THE LAST OPPORTUNITY FOR CHALLENGING THE COMMISSION' S ASSERTIONS IN THE WRITTEN PROCEDURE IS 30 JANUARY 1987, THE DATE ON WHICH THE TIME ALLOWED FOR LODGING THEIR PLEADING EXPIRES . THEY CLAIM THAT THEIR INTERESTS ARE THEREFORE LIKELY TO SUFFER IRREPARABLE DAMAGE IN SO FAR AS THE DEFENDANT INSTITUTIONS COULD DISPUTE THEIR ARGUMENTS ON THE BASIS OF FACTORS AND DOCUMENTS OF WHICH THEY HAD NEVER BECOME AWARE AND NEVER COULD HAVE BECOME AWARE .

11 IN THE OBSERVATIONS WHICH IT HAS SUBMITTED IN THESE PROCEEDINGS THE COMMISSION HAS CONFIRMED THAT IT HAS NOT HITHERTO BEEN POSSIBLE FOR IT TO COMMUNICATE TO THE APPLICANTS ALL THE DOCUMENTS CONTAINED IN THE FILE ON THE INVESTIGATION WHICH IT CARRIED OUT BEFORE THE ADOPTION OF THE CONTESTED DECISION . IT STATES THAT THE DELAY IS DUE TO THE QUANTITY OF DOCUMENTS, THE CLASSIFICATION OF WHICH, PRIOR TO COMMUNICATION TO THE PARTIES CONCERNED, REQUIRES MANY DAYS OF WORK BY OFFICIALS IN THE DIRECTORATE-GENERAL FOR EXTERNAL RELATIONS .

12 THE COMMISSION FURTHER STATES THAT IT DOES NOT CONSIDER THAT IT HAS INFRINGED THE PROVISIONS OF ARTICLE 8 OF COUNCIL REGULATION NO 2176/84 IN THIS CASE . PARAGRAPH ( 4 ) OF THAT ARTICLE CREATES ONLY A RIGHT, NOT A DUTY, TO DISREGARD CONFIDENTIAL DOCUMENTS WHICH WITHOUT GOOD REASON ARE NOT ACCOMPANIED BY A NON-CONFIDENTIAL SUMMARY .

13 THE COUNCIL TAKES THE VIEW THAT THE APPLICATION FOR INTERIM MEASURES SHOULD BE DISMISSED IN SO FAR AS IT CONCERNS THE COUNCIL . THE SUBJECT OF THE APPLICATION HAS NOTHING TO DO WITH THE COUNCIL SINCE THE INVESTIGATION IS THE SOLE RESPONSIBILITY OF THE COMMISSION BY VIRTUE OF ARTICLE 7 OF REGULATION NO 2176/84 .

14 IT SHOULD BE NOTED THAT THE COMMISSION HAS INDICATED ITS INTENTION NOT TO BASE ITS VIEW ON DOCUMENTS WHICH HAVE NOT BEEN PREVIOUSLY COMMUNICATED TO THE APPLICANTS AND THAT IT HAS STATED THAT IT IS PREPARED TO MAKE AVAILABLE TO THEM, WITHIN A PERIOD TO BE FIXED BY THE COURT, THE DOCUMENTS WHICH HITHERTO THEY HAVE NOT BEEN ABLE TO INSPECT, SO AS TO ENABLE THEM TO ARGUE THEIR CASE .

15 IT MUST NEVERTHELESS BE POINTED OUT THAT IT FOLLOWS FROM THE VERY NATURE OF PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES AND FROM THE CONDITIONS TO WHICH THE GRANT OF SUCH MEASURES IS SUBJECT THAT IT IS NOT IN PRINCIPLE AN APPROPRIATE PROCEDURE FOR OBTAINING MEASURES OF THE KIND APPLIED FOR BY THE APPLICANTS . SUCH MEASURES ARE IN FACT AKIN TO MEASURES OF INQUIRY WHICH THE COURT MAY ORDER OF ITS OWN MOTION OR UPON APPLICATION BY ONE OF THE PARTIES, IN ACCORDANCE WITH ARTICLE 45 OF THE RULES OF PROCEDURE, IN THE PROCEEDINGS RELATING TO THE SUBSTANCE OF THE CASE .

16 THERE IS, FURTHERMORE, ANOTHER PROCEDURE AVAILABLE TO THE APPLICANTS IF THEY WISH TO OBTAIN THE AFOREMENTIONED MEASURES OF INQUIRY . THEY MAY MAKE APPLICATION BY A SEPARATE DOCUMENT FOR A DECISION ON A PROCEDURAL ISSUE, AS PROVIDED FOR IN ARTICLE 91 OF THE RULES OF PROCEDURE, REQUESTING THE MEASURES OF INQUIRY WHICH THEY SEEK . IF SUCH AN APPLICATION WERE GRANTED, THE ADVANTAGE OF THIS WOULD BE, SO FAR AS THE APPLICANTS ARE CONCERNED, THAT THEY COULD IN ANY EVENT, IF THEY CONSIDER IT NECESSARY, SUBMIT THEIR WRITTEN OBSERVATIONS ON THE NEW DOCUMENTS PRODUCED TO THEM BY THE COMMISSION .

17 IT FOLLOWS FROM THE FOREGOING CONSIDERATIONS THAT THE APPLICATION FOR INTERIM MEASURES DOES NOT SATISFY THE CONDITIONS LAID DOWN IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE .

On those grounds,

THE PRESIDENT

by way of an interim decision,

hereby orders as follows :

( 1 ) The application is dismissed;

( 2 ) Costs are reserved .

Luxembourg, 20 February 1987 .