61977O0121

IN CASE 121/77 R

1 . NACHI FUJIKOSHI CORPORATION , TOKYO , REPRESENTED BY ITS PRESIDENT , TOSHIO TAKAMATSU ,

2 . NACHI ( DEUTSCHLAND ) GMBH , DUSSELDORF , REPRESENTED BY ITS MANAGING DIRECTOR , MASAO TOMITA ,

3 . NACHI ( UK ) LTD ., BIRMINGHAM , REPRESENTED BY ITS MANAGING DIRECTOR , MINORU YOSHIDA ,

ASSISTED BY DR LOTHAR NAGEL , ADVOCATE IN DUSSELDORF , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MRS DANIELLE D ' HUART , 11 A , BOULEVARD PRINCE HENRI ,

APPLICANTS ,

V COUNCIL OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , PETER BRUCKNER , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICES OF MR VAN DEN HOUTEN , EUROPEAN INVESTMENT BANK , PLACE DE METZ ,

DEFENDANT ,

1 THE COUNCIL HAS NOT CONTESTED THAT THE APPLICANTS WOULD INCUR THE ADDITIONAL CHARGES TO WHICH THEY HAVE REFERRED IN THE EVENT OF THE DISMISSAL OF THEIR APPLICATION . IT HAS NOT BEEN POSSIBLE TO ESTABLISH CONCLUSIVELY WITHIN THE CONTEXT OF THE PRESENT PROCEEDINGS WHETHER IN THE EVENT OF THE APPLICANTS ' BEING SUCCESSFUL IN THE MAIN ACTION THIS EXPENDITURE COULD BE RECOUPED . HAVING REGARD TO THE PROBABLE DURATION OF THE PROCEDURE IN THE MAIN ACTION CHARGES OF THE AMOUNT QUOTED BY THE APPLICANTS CANNOT BE REGARDED AS NEGLIGIBLE .

2 IT IS HOWEVER NECESSARY TO DISTINGUISH BETWEEN THE PROPORTION OF THE AMOUNTS OWED WHICH HAS NOT YET BEEN PAID AND THAT WHICH HAS ALREADY BEEN PAID .

3 WITH REGARD TO THE PROPORTION WHICH HAS NOT YET BEEN PAID BY THE APPLICANT NACHI ( UK ) LTD . THE COUNCIL HAS NOT BEEN ABLE TO DEMONSTRATE THAT THE ADOPTION OF THE INTERIM MEASURES APPLIED FOR WOULD CAUSE APPRECIABLE DETRIMENT TO THE EUROPEAN ECONOMIC COMMUNITY IF THE APPLICANT WERE TO MAINTAIN THE EXISTING BANK GUARANTEE IN THAT AMOUNT . IT IS IN ADDITION NECESSARY TO TAKE INTO CONSIDERATION IN THE APPLICANT ' S FAVOUR WITH REGARD TO THAT PROPORTION THE FACT THAT THE PRESIDENT OF THE COURT OF JUSTICE HAS ALREADY GRANTED CORRESPONDING REQUESTS IN THE ORDERS OF 14 AND 20 OCTOBER 1977 IN CASES 113/77 R AND 113/77 R - APPLICATION TO INTERVENE AND 119/77 R .

4 ON THE OTHER HAND IT IS NECESSARY TO STATE WITH REGARD TO THE AMOUNTS ALREADY PAID BY NACHI ( UK ) LTD . AND NACHI ( DEUTSCHLAND ) GMBH AND COLLECTED BY THE NATIONAL CUSTOMS AUTHORITIES THAT AN ORDER FOR THE REPAYMENT OF THESE AMOUNTS WOULD GO BEYOND THE SUSPENSION OF THE APPLICATION OF ARTICLE 3 OF REGULATION NO 1778/77 . THIS IS BECAUSE THAT PROVISION HAS ALREADY BEEN APPLIED IN RESPECT OF THOSE AMOUNTS . IN ADDITION , THE CHARGES INCURRED BY THE PUBLIC BUDGET INVOLVED IN AN ORDER FOR REPAYMENT ARE HEAVIER THAN THE DAMAGES WHICH THE APPLICANTS WOULD INCUR IN THE EVENT OF THE DISMISSAL OF THEIR APPLICATIONS . FINALLY , IT IS NECESSARY TO TAKE INTO CONSIDERATION THE FACT THAT THE APPLICANTS COULD HAVE LODGED AN APPLICATION FOR THE SUSPENSION OF THE APPLICATION OF ARTICLE 3 OF REGULATION NO 1778/77 BEFORE PAYMENT OF THOSE AMOUNTS .

5 THE APPLICANTS HAVE FINALLY SUBSTANTIATED THE CIRCUMSTANCES GIVING RISE TO URGENCY AND THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES SOUGHT ( ARTICLE 83(2 ) OF THE RULES OF PROCEDURE OF THE COURT OF JUSTICE ) ONLY IN SO FAR AS THEIR APPLICATION CONCERNS THE AMOUNT OWED BUT NOT YET PAID BY NACHI ( UK ) LTD . THE APPLICATION OF ARTICLE 3 OF REGULATION NO . 1778/77 TO NACHI ( UK ) LTD . MUST THEREFORE BE SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NACHI AND OTHERS V COUNCIL ( CASE 121/77 ) WITH REGARD TO THIS AMOUNT , ON CONDITION THAT AND FOR SO LONG AS THAT COMPANY CONTINUES TO PROVIDE SECURITY FOR THE PERFORMANCE OF ITS OBLIGATION IN THE ABOVEMENTIONED AMOUNT . ON THE OTHER HAND IT IS NECESSARY TO DISMISS THE APPLICATIONS IN SO FAR AS THEY SEEK THE REPAYMENT OF THOSE AMOUNTS WHICH NACHI ( UK ) LTD . AND NACHI ( DEUTSCHLAND ) GMBH HAVE ALREADY PAID .

6 THE DECISION WITH REGARD TO COSTS SHOULD BE RESERVED FOR THE FINAL JUDGMENT IN CASE 121/77 .

ON THOSE GROUNDS ,

THE PRESIDENT ,

AS AN INTERLOCUTORY DECISION , HEREBY ORDERS AS FOLLOWS :

1 . THE APPLICATION OF ARTICLE 3 OF COUNCIL REGULATION ( EEC ) NO 1778/77 TO THE APPLICANT NACHI ( UK ) LTD . IS SUSPENDED UNTIL THE FINAL JUDGMENT IN THE CASE OF NACHI AND OTHERS V COUNCIL ( CASE 121/77 ) AS FAR AS CONCERNS THE SUM OWED BUT NOT YET PAID BY NACHI ( UK ) LTD . UNDER THE ABOVEMENTIONED PROVISION , ON CONDITION THAT AND FOR SO LONG AS NACHI ( UK ) LTD . CONTINUES TO PROVIDE SECURITY FOR THE PERFORMANCE OF ITS OBLIGATION IN THAT AMOUNT .

2 . IN ALL OTHER RESPECTS , THE APPLICATIONS ARE DISMISSED .

3 . THE DECISION WITH REGARD TO COSTS SHOULD BE RESERVED FOR THE FINAL JUDGMENT IN THE CASE OF NACHI AND OTHERS V COUNCIL ( CASE 121/77 ).