61975O0044

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IN CASE 44/75 R

FIRMA KARL KOENECKE, 28 BREMEN 44, ZUM SEBALDSBRUECKER BAHNHOF 1, REPRESENTED BY ITS MANAGER, KARL KOENECKE, ASSISTED BY MESSRS . MODEST AND PARTNERS, ADVOCATES OF HAMBURG, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS LEGAL ADVISER, PETER KALBE, DEFENDANT,

1 THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SEEKS SUBSTANTIALLY THE SUSPENSION OF OPERATION OF REGULATIONS, AND ALTERNATIVELY AN ORDER TO THE COMMISSION TO AUTHORIZE THE PLACING OF THE DISPUTED GOODS IN FREE CIRCULATION DESPITE THE PROVISIONS OF THOSE REGULATIONS .

THESE TWO APPLICATIONS CONSTITUTE RESPECTIVELY A REQUEST THAT 'APPLICATION OF THE CONTESTED ACT BE SUSPENDED' WITHIN THE MEANING OF ARTICLE 185 OF THE EEC TREATY AND THE FIRST PARAGRAPH OF ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE AND A REQUEST FOR 'NECESSARY INTERIM MEASURES' WITHIN THE MEANING OF ARTICLE 186 OF THE EEC TREATY AND THE SECOND PARAGRAPH OF ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE .

2 THE JUDGE RESPONSIBLE FOR INTERIM MEASURES CANNOT - SAVE IN EXCEPTIONAL CIRCUMSTANCES MAKING IT POSSIBLE TO SINGLE OUT THE APPLICANT FROM OTHER PERSONS SUBJECT TO THE LAW - CONSIDER THE EFFECT OF A GENERAL PROVISION AS AMOUNTING TO THAT OF A MEASURE WITHIN THE MEANING OF ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE . IF IT WERE OTHERWISE, PROCEEDINGS BASED ON ARTICLE 185 WOULD MAKE IT POSSIBLE TO OBTAIN DE FACTO THE RESULT SOUGHT BY THE MAIN ACTION, WHILE THE OUTCOME OF THE LATTER REMAINS, AS IN THE PRESENT CASE, DOUBTFUL .

3 AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, WHEN IT MAY HAVE THE EFFECT OF STULTIFYING A SERIES OF REGULATIONS, PRESUPPOSES THAT THE APPLICANT MUST PROVE IN A PARTICULARLY CLEAR FASHION THAT HE IS CONCERNED DIRECTLY AND INDIVIDUALLY . IT IS ALSO NECESSARY TO TAKE INTO ACCOUNT THE PUBLIC INTEREST AND THE IMPACT OF SUCH AN INTERIM MEASURE ON ADMINISTRATIVE ACTION, ESPECIALLY WHEN, AS IN THE PRESENT CASE, SAFEGUARD MEASURES ARE INVOLVED .

AS REGARDS THE DANGERS OF DETERIORATION OF THE GOODS, THE APPLICANT HAS NOT SHOWN THAT IT IS IMPOSSIBLE TO HAVE RECOURSE TO THE METHODS OF INWARD PROCESSING OR OF PROCESSING OF THE IMPORTED PRODUCTS OR TO ANY OTHER METHOD OF AVOIDING OR MITIGATING POSSIBLE DAMAGE .

THE FACT THAT APART FROM SIMPLE ADMINISTRATIVE REPRESENTATIONS THE APPLICANT HAS TAKEN NO PRACTICAL STEPS IN THIS CONNEXION, WHEN IT WAS, AT LEAST SINCE 8 MARCH, INFORMED OF THE STATE OF THE REGULATIONS, CANNOT BE COMPENSATED FOR BY A DECISION OF THE JUDGE RESPONSIBLE FOR INTERIM MEASURES .

4 FINALLY, IT IS NOT POSSIBLE TO ORDER BY MEANS OF THIS PROCEDURE A MEASURE OF IMPORTATION WHICH, FAR FROM BEING OF A PROVISIONAL CHARACTER, WOULD IN REALITY BE IRREVOCABLE AND WOULD CONFRONT THE JUDGES RESPONSIBLE FOR THE SUBSTANTIVE DECISION WITH AN IRREVERSIBLE SITUATION .

5 IN THE PRESENT STATE OF THE PROCEEDINGS IT IS APPROPRIATE TO RESERVE THE COSTS .

ON THOSE GROUNDS,

AS AN INTERIM RULING,

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES ORDERS :

1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .

2 . COSTS ARE RESERVED .