61962O0025(01)

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IN CASE 25/62 R2

PLAUMANN & CO ., HAMBURG 1, FRUCHTHOF, REPRESENTED BY HARALD DITGES, COLOGNE-MARIENBURG, VON-GROOTE-STRASSE 7, AND FOR THE ORAL PROCEEDINGS BY D . EHLE OF THE SAME ADDRESS, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR AUDRY, FEDERATION DES COMMERCANTS, 8 AVENUE DE L'ARSENAL, APPLICANT,

V

COMMISSION OF THE EUROPEAN ECONOMIC COMMUNITY, REPRESENTED BY HUBERT EHRING AND IN THE ORAL PROCEEDINGS BY CLAUS-DIETER EHLERMANN, LEGAL ADVISER TO THE EUROPEAN EXECUTIVES, ACTING AS AGENTS, ASSISTED BY PROFESSOR ERNST STEINDORFF OF THE FACULTY OF LAW OF THE UNIVERSITY OF TUBINGEN, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF HENRI MANZANARES, SECRETARY OF THE LEGAL DEPARTMENT OF THE EUROPEAN EXECUTIVES, 2 PLACE DE METZ, DEFENDANT,

APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IN CASE 25/62 ( REFUSAL TO AUTHORIZE THE FEDERAL REPUBLIC OF GERMANY TO SUSPEND IN PART CUSTOMS DUTIES ON 'CLEMENTINES, FRESH' AS REGARDS THIRD COUNTRIES ).

THE DECLARATION OF THE FEDERAL MINISTER OF FINANCE SET OUT ABOVE AND PRODUCED BY THE APPLICANT IN FACT REMOVES THE FOUNDATION FROM THE STATEMENT IN THE SECOND PARAGRAPH OF THE GROUNDS OF THE ORDER OF 31 AUGUST 1962 . THIS STATEMENT MUST ACCORDINGLY BE DISREGARDED FOR THE PURPOSE OF THE DECISION ON THE PRESENT APPLICATION .

1 . THE APPLICANT HAS STATED THAT IT WOULD BE IMPOSSIBLE TO PASS ON TO ITS CUSTOMERS THE EXCESS CUSTOMS DUTY WHICH IT WOULD HAVE TO PAY IF ITS APPLICATION WERE DISMISSED . THIS IS CONTESTED BY THE DEFENDANT .

HAVING REGARD TO THE RELATIVELY SMALL INCREASE IN THE SELLING PRICE OF CLEMENTINES IN THIS EVENT, AND TAKING ACCOUNT OF COMMERCIAL PRACTICES AND THE BEHAVIOUR OF CONSUMERS IN SHOPPING AT THE END OF THE YEAR - CIRCUMSTANCES WHICH IT MAY BE ASSUMED ARE KNOWN TO THE COURT - THE ARGUMENTS OF THE APPLICANT DO NOT APPEAR TO BE SUFFICIENTLY CONVINCING .

2 . THE APPLICANT HAS FURTHER STATED THAT DURING THE PERIOD IN WHICH IT ALLEGES THE INTERIM MEASURE WOULD HAVE ITS EFFECTS, THAT IS TO SAY, FROM 21 TO 31 DECEMBER 1962, IT WOULD STILL TAKE APPROXIMATELY ONE SIXTH OF ITS TOTAL IMPORTS OF CLEMENTINES SINCE 31 AUGUST 1962 . IT HAS FURTHER ARGUED THAT THE ADDITIONAL COSTS WHICH THIS INCREASE IN CUSTOMS DUTIES WOULD INVOLVE IN RESPECT OF IMPORTS MADE DURING THE LAST ELEVEN DAYS OF THE YEAR 1962 WOULD AMOUNT TO SOME 7 000 DM . THIS CLAIM IS DISPUTED BY THE DEFENDANT .

IT IS NOT NECESSARY TO GO INTO THE QUESTION WHETHER THE APPLICANT'S ARGUMENTS ARE CORRECT, FOR IF THEY WERE, QUITE APART FROM THE CONSIDERATIONS MENTIONED AT 1 . ABOVE, THE INTERIM MEASURE ASKED FOR BY THE APPLICANT WOULD PROCURE FOR IT ONLY A RELATIVELY SMALL BENEFIT .

3 . AS ALREADY SET OUT IN THE ORDER OF 31 AUGUST 1962, TO WHICH REFERENCE IS MADE, THE INTERIM MEASURE ASKED FOR WOULD ON THE CONTRARY HAVE FAR-REACHING LEGAL EFFECTS AND COULD BE JUSTIFIED ONLY BY WHOLLY EXCEPTIONAL CIRCUMSTANCES AND IF IT WERE HIGHLY LIKELY THAT THE APPLICANT WOULD OTHERWISE SUFFER SERIOUS DAMAGE, BUT IT HAS NOT BEEN PROVED THAT THIS WOULD BE SO .

4 . THERE IS A FURTHER POINT TO BE MADE . THE DEFENDANT, AS IT DID IN ITS OBSERVATIONS ON THE FIRST APPLICATION, EVEN NOW INSISTS, IN SUPPORT OF ITS CONCLUSIONS FOR THE DISMISSAL OF THE APPLICATION FOR THE ADOPTION OF THE INTERIM MEASURE, THAT IT IS IMPROBABLE THAT THE MAIN APPLICATION WILL BE FOUND TO BE EITHER ADMISSIBLE OR WELL-FOUNDED .

THIS ARGUMENT MISCONCEIVES THE PURELY PROTECTIVE NATURE OF INTERIM MEASURES, WHICH WOULD IN ANY EVENT APPLY IN THE PRESENT CASE . THE APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE IS NOT INTENDED TO PREJUDGE THE DECISION IN THE MAIN ACTION AND THE ARGUMENTS ON INADMISSIBILITY OR ABSENCE OF GROUNDS IN THE MAIN ACTION ARE IRRELEVANT AND MUST BE DISMISSED .

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES

HEREBY ORDERS :

1 . THE APPLICATION IS DISMISSED;

2 . THE COSTS ARE RESERVED .