61981O0060

IN JOINED CASES 60 AND 190/81 R ,

INTERNATIONAL BUSINESS MACHINES CORPORATION , ARMONK , NEW YORK 10504 , UNITED STATES OF AMERICA , REPRESENTED BY JEREMY LEVER , QUEEN ' S COUNSEL , OF THE BAR OF ENGLAND AND WALES , DAVID EDWARD , QUEEN ' S COUNSEL , ADVOCATE OF THE SCOTS BAR , JOHN SWIFT , CHRISTOPHER BELLAMY AND NICHOLAS FORWOOD , BARRISTERS OF THE BAR OF ENGLAND AND WALES , AND ANDREW SOUNDY , OF ASHURST , MORRIS , CRISP AND CO ., SOLICITOR OF THE SUPREME COURT OF ENGLAND AND WALES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF INTERNATIONAL BUSINESS MACHINES OF BELGIUM SA , 8 BOULEVARD ROYAL ,

APPLICANT ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , JOHN TEMPLE LANG , AND GOTZ ZUR HAUSEN , A MEMBER OF THE LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

AND

MEMOREX SA , 178 CHAUSSEE DE LA HULPE , 1170 BRUSSELS , REPRESENTED BY IVO VAN BAEL AND JEAN-FRANCOIS BELLIS , OF THE BRUSSELS BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS , 15 COTE D ' EICH ,

INTERVENER ,

1 THE APPLICATIONS IN CASES 60/81 R AND 190/81 R HAVE THE SAME SUBJECT-MATTER ; IT IS THEREFORE APPROPRIATE TO JOIN THEM AND TO GIVE THE DECISION REGARDING THEM IN A SINGLE ORDER .

2 ACCORDING TO ARTICLE 185 OF THE TREATY , ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED MEASURES BE SUSPENDED . IT MAY ALSO IN PURSUANCE OF ARTICLE 186 OF THE TREATY PRESCRIBE ANY NECESSARY INTERIM MEASURES .

3 ACCORDING TO ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE A SUSPENSION OF ENFORCEMENT AND THE DECISION ORDERING PROVISIONAL MEASURES ARE SUBJECT TO THE EXISTENCE OF CIRCUMSTANCES GIVING RISE TO URGENCY AND FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR SUCH MEASURES .

4 IT IS CLEAR FROM THE CONSISTENT CASE-LAW OF THE COURT THAT MEASURES OF THIS NATURE CANNOT BE CONSIDERED UNLESS THE FACTUAL AND LEGAL GROUNDS RELIED ON TO OBTAIN THEM ESTABLISH A PRIMA FACIE CASE FOR GRANTING THEM . IN ADDITION THERE MUST BE URGENCY IN THE SENSE THAT IT IS NECESSARY FOR THE MEASURES TO BE ISSUED AND TO TAKE EFFECT BEFORE THE DECISION OF THE COURT ON THE SUBSTANCE OF THE CASE IN ORDER TO AVOID SERIOUS AND IRREVERSIBLE DAMAGE TO THE PARTY SEEKING THEM ; FINALLY THEY MUST BE PROVISIONAL IN THE SENSE THAT THEY DO NOT PREJUDGE THE DECISION ON THE SUBSTANCE OF THE CASE .

5 IN SUPPORT OF ITS APPLICATIONS THE APPLICANT IN SUBSTANCE CLAIMS THAT A SUSPENSION OF ENFORCEMENT WOULD BE JUSTIFIED BECAUSE OTHERWISE :

( I ) IBM WILL BE FORCED TO LODGE A DEFENCE TO A STATEMENT OF OBJECTIONS DELIVERED BY THE COMMISSION WITHOUT LAWFUL AUTHORITY ;

( II)THE COMMISSION WILL HAVE BEEN PERMITTED TO CONTINUE TO ACT IN BREACH OF BINDING PRINCIPLES OF INTERNATIONAL LAW ;

( III)IBM WILL HAVE BEEN FORCED TO LODGE A DEFENCE TO A STATEMENT OF OBJECTIONS SO ILL-DEFINED AND OBSCURE AS TO JUSTIFY THE RAISING OF THE EXCEPTIO OBSCURI LIBELLI AND BREACH OF DUE PROCESS .

6 THE APPLICANT ' S ARGUMENTS AMOUNT IN SUBSTANCE TO CLAIMING THAT THE MEASURES CONTESTED IN THE MAIN PROCEEDINGS ARE VITIATED BY SUCH CLEAR AND SERIOUS DEFECTS THAT THOSE MEASURES APPEAR , EVEN AT FIRST SIGHT , AS LACKING ANY LEGAL BASIS AND IN REALITY CONSTITUTE AN EVIDENT NULLITY , KNOWN IN THE ADMINISTRATIVE LAW OF CERTAIN MEMBER STATES AS ' ' VOIES DE FAIT ADMINISTRATIVES ' ' . THE NATURE AND GRAVITY OF THESE ILLEGALITIES ALONE IMPLY , IT IS ALLEGED , THAT IT IS NECESSARY AND URGENT TO PUT A STOP IMMEDIATELY TO SITUATIONS OF THIS TYPE AND THAT THE JUDGE TO WHOM THE APPLICATION IS MADE HAS JURISDICTION TO DO SO .

7 WITHOUT PREJUDICE TO THE ADMISSIBILITY OR THE MERITS OF THE ACTIONS IN THE MAIN PROCEEDINGS , THE MEASURES UNDER CHALLENGE , HAVING REGARD TO THE NATURE OF THE COMPLAINTS MADE AGAINST THEM , DO NOT APPEAR TO BE MEASURES LACKING EVEN AN APPEARANCE OF LEGALITY , AND AS SUCH TO REQUIRE THEIR OPERATION TO BE SUSPENDED FORTHWITH .

8 IT WAS THEREFORE FOR THE APPLICANT TO DEMONSTRATE , WITH A VIEW TO THE AVOIDANCE OF SERIOUS AND IRREVERSIBLE DAMAGE TO ITSELF , THE NECESSITY AND URGENCY FOR THE COURT TO GRANT THE RELIEF SOUGHT .

9 THE FACTUAL AND LEGAL GROUNDS RELIED UPON BY THE APPLICANT ARE NOT , HOWEVER , SUCH AS TO ESTABLISH THESE BASIC CONDITIONS . THE CONTESTED MEASURES IN THE TWO MAIN ACTIONS ARE IN FACT MEASURES OF INQUIRY AND INVESTIGATION , WHICH PRECEDE A DECISION OF THE COMMISSION RELATING TO THE ISSUE WHETHER OR NOT THE APPLICANT IS OR HAS BEEN GUILTY OF CONDUCT PROHIBITED BY ARTICLE 86 OF THE TREATY .

10 THE PURSUIT OF ADMINISTRATIVE PROCEEDINGS OF THIS TYPE , ORGANIZED , AS THE COURT HAS EMPHASIZED ON VARIOUS OCCASIONS , WITH A VIEW TO PERMITTING UNDERTAKINGS TO MAKE KNOWN THEIR POINT OF VIEW AND TO ENLIGHTEN THE COMMISSION , DOES NOT INVOLVE FOR THE APPLICANT ANY OBLIGATION OTHER THAN THAT OF PARTICIPATING , WITH A VIEW TO THE DEFENCE OF ITS RIGHTS , IN THE COURSE OF THAT PROCEDURE . THAT OBLIGATION IS NOT OF SUCH A NATURE AS TO CAUSE IT , EITHER AS REGARDS ITS LEGAL POSITION OR AS REGARDS ITS INTERESTS , SERIOUS AND IRREVERSIBLE DAMAGE OF SUCH A KIND AS TO JUSTIFY THE MEASURES SOUGHT .

11 IT FOLLOWS FROM ALL THE CONSIDERATIONS SET OUT ABOVE THAT THE APPLICATIONS MUST BE DISMISSED .

12 COSTS MUST IN THE CIRCUMSTANCES BE RESERVED .

ON THOSE GROUNDS ,

THE PRESIDENT OF THE COURT ,

AS AN INTERIM MEASURE ,

HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES ARE DISMISSED .

2.COSTS , INCLUDING THOSE OF THE INTERVENTION , ARE RESERVED .