61984O0062

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF THE OPERATION OF A DECISION IMPOSING A FINE - CONDITIONS UNDER WHICH SUCH A SUSPENSION IS GRANTED - PROVISION OF A GUARANTEE

( ECSC TREATY , ART . 39 )

IN CASE 62/84 R

UNION SIDERURGIQUE DU NORD ET DE L ' EST DE LA FRANCE ( USINOR ), A PUBLIC LIMITED COMPANY WHOSE REGISTERED OFFICE IS AT LA DEFENSE , 9-4 , PLACE DE LA PYRAMIDE , PUTEAUX ( HAUTS-DE-SEINE ), REPRESENTED BY L . FUNCK-BRENTANO OF THE PARIS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF M . NEUEN-KAUFFMAN OF THE LUXEMBOURG BAR , 21 RUE PHILIPPE-II ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1040 BRUSSELS , REPRESENTED BY FRANK BENYON , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MANFRED BESCHEL , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

APPLICATION FOR THE SUSPENSION OF THE OPERATION OF COMMISSION DECISION NO C(84 ) 104/1 OF 26 JANUARY 1984 CONCERNING A FINE IMPOSED ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY ,

1 ACCORDING TO ARTICLE 39 OF THE ECSC TREATY ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED DECISION BE SUSPENDED AND PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURE .

2 THE APPLICANT CLAIMS THAT THE COURT SHOULD MAKE AN ORDER SUSPENDING THE OPERATION OF THE COMMISSION ' S DECISION OF 26 JANUARY 1984 WHICH IMPOSED ON IT A FINE OF 9 415 015 ( NINE MILLION FOUR HUNDRED AND FIFTEEN THOUSAND AND FIFTEEN ) EUROPEAN CURRENCY UNITS FOR EXCEEDING THE PRODUCTION OR DELIVERY QUOTAS ALLOCATED TO IT FOR THE FIRST AND SECOND QUARTERS OF 1982 IN RESPECT OF VARIOUS IRON AND STEEL PRODUCTS .

3 ALTHOUGH PROCEEDINGS WERE INSTITUTED FOR A DECLARATION THAT THAT DECISION WAS VOID , THE COMMISSION DECIDED , IN ACCORDANCE WITH WHAT IS NOW AN ESTABLISHED PRACTICE , TO ENFORCE PAYMENT OF 70% OF THE PRINCIPAL AMOUNT PAYABLE , IN VIEW OF THE FACT THAT THE APPLICANT HAD ALREADY BEEN PENALIZED FOR AN INFRINGEMENT OF GENERAL DECISION NO 1831/81/ECSC OF 24 JUNE 1981 . THE COMMISSION CONSIDERS THAT IT IS APPROPRIATE TO ADOPT A MORE SEVERE APPROACH WITH REGARD TO SUSPENDING ENFORCEMENT OF THE PENALTY UNTIL THE COURT HAS GIVEN JUDGMENT ON ACTIONS BROUGHT AGAINST DECISIONS IMPOSING FINES IN CASES WHERE A PENALTY HAS ALREADY BEEN IMPOSED FOR A FIRST INFRINGEMENT .

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 .

8 THE APPLICANT ALSO PROPOSES TO FURNISH ONLY A PROMISSORY NOTE AS SECURITY FOR PAYMENT OF THE FINE , A PROPOSAL THAT THE COMMISSION HAS ALREADY ACCEPTED IN RELATION TO THE SYSTEM PROVIDED FOR IN COMMISSION DECISION NO 3716/83/ECSC OF 23 DECEMBER 1983 ( OFFICIAL JOURNAL 1983 , L 373 , P . 5 ).

9 DECISION NO 3716/83/ECSC DEALS WITH A DIFFERENT SITUATION , IN WHICH IT IS NECESSARY TO GUARANTEE THAT ANY PENALTY WHICH MIGHT BE IMPOSED CAN BE ENFORCED RAPIDLY IN THE EVENT OF NON-COMPLIANCE WITH THE MINIMUM PRICES OR QUANTITIES WHICH MAY BE DELIVERED IN THE COMMON MARKET . ON THE OTHER HAND , WHERE A FINE HAS BEEN IMPOSED , THE REQUIREMENT OF A BANK GUARANTEE IS IN ACCORDANCE WITH THE GENERAL POLICY OF THE COMMISSION , WHICH HAS BEEN FOUND TO BE REASONABLE AND WAS RECOGNIZED AS JUSTIFIED IN THE ORDER OF THE PRESIDENT OF THE COURT OF 11 NOVEMBER 1982 ( CASE 263/82 R KLOCKNER-WERKE V COMMISSION ( 1982 ) ECR 3995 ).

ON THOSE GROUNDS ,

THE PRESIDENT ,

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 , USINOR V 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 .