61972O0006

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IN CASE 6/72 R

( 1 ) EUROPEMBALLAGE CORPORATION, ESTABLISHED AT WILMINGTON ( USA ) AND IN BRUSSELS ( BELGIUM ),

( 2 ) CONTINENTAL CAN COMPANY INC ., ESTABLISHED IN NEW YORK, REPRESENTED RESPECTIVELY BY THEIR PRESIDENTS, WALDEMAR FRIEBEL AND C . B . STAUFFACHER, ASSISTED BY ALFRED GLEISS AND HIS ASSOCIATES, ADVOCATES OF THE STUTTGART BAR, HAVING CHOSEN THEIR ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER, AVOCAT-AVOUE, 7 AVENUE DE L' ARSENAL, APPLICANTS,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISERS BASTIAAN VAN DER ESCH AND JOCHEN THIESING, ACTING AS AGENTS, HAVING CHOSEN ITS ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ITS LEGAL ADVISER, EMILE REUTER, 4 BOULEVARD ROYAL, DEFENDANT,

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES ORDERING THE SUSPENSION OF THE OPERATION OF ARTICLE 2 OF THE DECISION OF THE COMMISSION OF 9 DECEMBER 1971 ( REF . IV/26811-CONTINENTAL CAN CY .) APPLYING ARTICLE 86 OF THE EEC TREATY TO THE APPLICANTS .

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES $MAKES THE FOLLOWING ORDER .

1 ACCORDING TO ARTICLE 185 OF THE TREATY " ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE SHALL NOT HAVE SUSPENSORY EFFECT ". IT CAN ONLY BE OTHERWISE IF " CIRCUMSTANCES SO REQUIRE ". ACCORDING TO ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE SUSPENSION OF THE OPERATION OF ANY MEASURE IS SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH A MEASURE .

2 SUBJECT TO THE DISCRETION OF THE COURT HEARING THE CASE, ARTICLE 2 OF THE DECISION, AT LEAST UNTIL 1 JULY 1972, MAKES THE EXECUTION OF THE DUTY TO PUT AN END TO THE INFRINGEMENT, CONTAINED IN THE FIRST SENTENCE, SUBJECT TO THE PRIOR REQUIREMENT, WHICH FOLLOWS FROM THE SECOND SENTENCE, TO SUBMIT PROPOSALS TO THE COMMISSION BEFORE THAT DATE . THE APPLICANTS DO NOT THEREFORE APPEAR TO BE REQUIRED TO CEASE THE INFRINGEMENT IMMEDIATELY, BUT ONLY TO MAKE PROPOSALS FOR THIS PURPOSE . IN THE PRESENT STATE OF THE PROCEDURE, THE APPLICANTS THEREFORE HAVE UNTIL 1 JULY 1972 TO CARRY OUT THIS DUTY TO MAKE PROPOSALS WHICH, IF THEY ARE SATISFACTORY, WILL PUT AN END TO THE INFRINGEMENT . IF THEY HAVE ALREADY PUT FORWARD SUCH PROPOSALS THEY CAN IN ANY CASE UNTIL 1 JULY 1972 FORMULATE NEW PROPOSALS SHOULD THEIR FIRST PROPOSALS BE REJECTED .

3 THE OBLIGATION TO SUBMIT PROPOSALS IN NO WAY PREJUDICES THEIR SITUATION UNTIL 1 JULY 1972 AND THE OUTCOME OF THE MAIN ACTION . ASSUMING THEM TO BE REAL, THE UNCERTAINTIES OR THREATS WITH WHICH THE APPLICANTS ARE SAID TO BE FACED ARE CONSTITUTED LESS BY THE DECISION ITSELF, THAN THE SITUATION IN WHICH THE UNDERTAKINGS HAVE PLACED THEMSELVES IN RESPECT OF ARTICLE 86 . THE SUSPENSION SOUGHT APPEARS TO BE ALL THE LESS NECESSARY SINCE THERE IS NOTHING TO INDICATE THAT THE COURT CANNOT GIVE JUDGMENT ON THE APPLICATION IN GOOD TIME AND DECIDE UPON ANY APPROPRIATE MEASURE .

4 IT THEREFORE DOES NOT APPEAR, EITHER FROM ARTICLE 2 OF THE CONTESTED DECISION OR FROM THE FILE OR FROM THE ORAL SUBMISSIONS, THAT THE APPLICANTS WOULD SUFFER IRREPARABLE DAMAGE TO THEIR RIGHTS IF THEY WERE NOT GRANTED AN EXTENSION OF TIME AS FROM NOW . CONSEQUENTLY THERE ARE NO GROUNDS FOR DEPRIVING THE CONTESTED DECISION OF THE FORCE ATTACHING TO IT UNDER ARTICLE 185 OF THE TREATY .

5 THERE IS THEREFORE NO REASON TO ORDER THE SUSPENSION OF THE OPERATION OF ARTICLE 2 OF THE CONTESTED DECISION .

6 THE COSTS SHOULD, IN THE CIRCUMSTANCES, BE RESERVED .

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES,

BY WAY OF AN INTERIM RULING,

ORDERS :

1 . THE APPLICATION FOR THE SUSPENSION OF ARTICLE 2 OF THE DECISION OF THE COMMISSION OF 9 DECEMBER 1971 IS DISMISSED;

2 . THE COSTS ARE RESERVED .