61994B0088(02)

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Procedure ° Allocation of jurisdiction between the Court of Justice and the Court of First Instance ° Proceedings instituted by a natural or legal person on the basis of the fourth paragraph of Article 173 of the EC Treaty concerning the implementation of the competition rules applicable to undertakings and pending before the Court of First Instance ° Proceedings for the annulment of the same act, but instituted by a Member State, pending before the Court of Justice ° In the interest of the proper administration of justice for the Court of Justice to consider the arguments of the natural or legal person ° Disclaimer of jurisdiction by the Court of First Instance

(EC Statute of the Court of Justice, Art. 47, third para.)

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In Case T-88/94,

Société Commerciale des Potasses et de l' Azote, a company governed by French law, established in Mulhouse (France), and

Entreprise Minière et Chimique, a French public undertaking, established at Paris,

represented by Charles Price, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Lucy Dupong, 14A Rue des Bains,

applicants,

supported by

French Republic, represented by Edwige Belliard and Catherine de Salins, Assistant Director and Sub-Director respectively in the Legal Directorate of the Ministry of Foreign Affairs, and Jean-Marc Belorgey, head of mission in the same ministry, acting as Agents, with an address for service in Luxembourg at the French Embassy, 9 Boulevard Prince Henri,

intervener,

v

Commission of the European Communities, represented by Berend-Jan Drijber, of its Legal Service, acting as Agent, and Jacques Bourgeois, of the Brussels Bar, with an address for service in Luxembourg at the office of Georgios Kremlis, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Kali und Salz Beteiligungs-Aktiengesellschaft and Kali und Salz GmbH, companies governed by German law, established in Kassel (Germany), represented by Karlheinz Quack, Rechtsanwalt of Berlin, and Georg Albrechtskirchinger, Rechtsanwalt of Frankfurt am Main, with an address for service in Luxembourg at the Chambers of Marc Loesch, 11 Rue Goethe,

interveners,

APPLICATION for the partial annulment of: (1) Article 1 of the decision of the Commission of 14 December 1993 relating to a proceeding under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (IV/M.308 ° Kali+Salz/MdK/Treuhand), in so far as it makes the declaring of the concentration compatible with the common market conditional upon compliance with the conditions set out in paragraph 63 thereof, and (2) the decision, in so far as it has accepted the commitment mentioned in paragraph 65 thereof whereby Kali und Salz AG undertook to modify the corporate structure of Potacan by 30 June 1994,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),

composed of: B. Vesterdorf, President, D.P.M. Barrington, A. Saggio, H. Kirschner and A. Kalogeropoulos, Judges,

Registrar: H. Jung,

makes the following

Order

1 By application lodged at the Registry of the Court of First Instance on 28 February 1994, Société Commerciale des Potasses et de l' Azote and Entreprise Minière et Chimique brought an action under the fourth paragraph of Article 173 of the EC Treaty for the partial annulment of the decision of the Commission of 14 December 1993 relating to a proceeding under Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (IV/M.308 ° Kali+Salz/MdK/Treuhand)("the Decision").

2 By an application lodged at the Registry of the Court of Justice on 18 February 1994, the French Republic brought an action against the Commission in which it requested the Court of Justice to annul the same Decision (Case C-68/94).

3 By an Order of the President of the First Chamber of the Court of First Instance of 7 July 1994, the French Republic was granted leave to intervene in the present case in support of the form of order sought by the applicants.

4 By an Order of the President of the Second Chamber, Extended Composition, of the Court of First Instance of 19 January 1995, Kali und Salz Beteiligungs-Aktiengesellschaft and Kali und Salz GmbH were granted leave to intervene in the present case in support of the form of order sought by the defendant.

5 Following receipt of the letter of 18 November 1994 from the Registrar of the Court of First Instance asking for the applicants' views on the remainder of the proceedings before the Court of First Instance in the light of the action brought in Case C-68/94, the applicants, by a letter lodged at the Registry of the Court of First Instance on 5 December 1994, requested that, by virtue of the third paragraph of Article 47 of the EC Statute of the Court of Justice ("the Statute"), the Court of First Instance should decline jurisdiction in Case T-88/94 in order to enable the Court of Justice to give a decision in Case C-68/94, the understanding being that the applicants could then intervene in the proceedings before the Court of Justice.

6 By letter of 3 November 1994, lodged at the Registry of the Court of First Instance on 4 November 1994, the Commission informed that Court that it would endorse the request submitted by the French Republic in Case C-68/94 asking the Court of Justice not to suspend the proceedings pending the decision of the Court of First Instance on the present case. The Commission did not lodge any observations within the prescribed period on the request submitted by the applicants in Case T-88/94 that the Court of First Instance decline jurisdiction.

7 By letter of 27 December 1994, the French Republic stated that it supported the applicants' request that the Court of First Instance decline jurisdiction.

8 The interveners, Kali und Salz Beteiligungs-Aktiengesellschaft and Kali und Salz GmbH, have already requested in their application to intervene in the present case, lodged at the Registry of the Court of First Instance on 11 July 1994, that the Court of First Instance should decline jurisdiction in accordance with the third paragraph of Article 47 of the Statute.

9 According to the third paragraph of Article 47 of the Statute, where the Court of Justice and the Court of First Instance are seised of cases in which the same relief is sought, the same issue of interpretations raised or the validity of the same act is called in question, the Court of First Instance may, after hearing the parties, stay the proceedings before it until such time as the Court of Justice has delivered judgment. However, where applications are made for the same act to be declared void, the Court of First Instance may also decline jurisdiction in order that the Court of Justice may rule on such applications.

10 Since the Court of Justice has not suspended, pursuant to the third paragraph of Article 47 of the Statute, the proceedings in Case C-68/94, the Court of First Instance must decide whether to suspend the proceedings in Case T-88/94 or to decline jurisdiction.

11 It should first be noted that the applicants and the interveners have stated that they are in favour of the Court of First Instance declining jurisdiction to enable the two cases to be conducted simultaneously before the Court of Justice, while the defendant did not lodge any observations within the prescribed period.

12 Moreover, in the present case, the actions brought before the Court of Justice and the Court of First Instance call in question the validity of the same act, namely the decision of the Commission of 14 December 1993 (IV/M.308 ° Kali+Salz/MdK/Treuhand). It is true that the action brought by the applicants in the present case seeks only the partial annulment of the Decision. However, the Court of First Instance finds, first, that the proceedings before the Court of Justice raise the same questions of interpretation and call in question the same act and, secondly, that the subject-matter of the application made by the French Republic, seeking the complete annulment of the Decision, covers that of the application brought by the applicants in the present case, seeking the partial annulment of the Decision. The Court of First Instance considers, therefore, that the conditions laid down in the third paragraph of Article 47 of the Statute are met.

13 Since the second paragraph of Article 37 of the Statute precludes natural or legal persons from intervening in disputes between Member States, on the one hand, and institutions of the Community, on the other, the only possibility for natural or legal persons to put forward their arguments in disputes which concern them is to bring an action themselves, in cases in which they have standing to do so, before the competent court. Pursuant to that article, the President of the Court, by Order of 5 October 1994, dismissed as inadmissible the application to intervene in Case C-68/94 submitted by Kali und Salz Beteiligungs-Aktiengesellschaft and Kali und Salz GmbH.

14 Since the Court of Justice has not suspended the proceedings before it in Case C-68/94 it is in the interests of the proper administration of justice that the court with jurisdiction to hear the proceedings instituted by a Member State should be able to take into consideration the various pleas in law and arguments relied upon by the natural or legal persons concerned in support of their applications for annulment of the same act.

15 In this case, the mere suspension, pending delivery of judgment by the Court of Justice, of the proceedings pending before the Court of First Instance would not enable the Court of Justice to examine the pleas in law and arguments relied upon by the applicants and by the various interveners in Case T-88/94 against the contested decision.

16 In the light of the foregoing, the Court of First Instance should, in accordance with the third paragraph of Article 47 of the Statute, decline jurisdiction in Case T-88/94 and refer the file on the case to the Court of Justice in order to enable the latter to rule on the applications for annulment in both cases.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)

hereby orders:

1. The Court of First Instance declines jurisdiction in Case T-88/94, Société Commerciale des Potasses et de l' Azote and Entreprise Minière et Chimique v Commission of the European Communities, in order to enable the Court of Justice to rule on the application for annulment;

2. The costs are reserved.

Luxembourg, 1 February 1995.