61976O0026

IN CASE 26/76 R

FIRMA METRO SB-GROSSMARKTE GMBH & CO . KG , REPRESENTED BY HORST VON DER OSTEN OF THE DUSSELDORF BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ROBERT ELTER , 11 , BOULEVARD ROYAL ,

APPLICANT ,

V COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY DIETER OLDEKOP , A MEMBER OF THE LEGAL SERVICE OF THE COMMISSION OF THE EUROPEAN COMMUNITIES , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MARIO CERVINO , BATIMENT CFL , PLACE DE LA GARE ,

DEFENDANT ,

SUPPORTED BY :

FIRMA SABA SCHWARZWALDER APPARATE-BAU-ANSTALT AUGUST SCHWER SOHNE , REPRESENTED BY BODO HAGGENEY OF THE STUTTGART BAR , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF GEORGES REUTER , 12 RUE NOTRE DAME ,

INTERVENER ,

1 THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS , FIRST , FOR THE SUSPENSION , UNTIL THE DECISION OF THE COURT GIVING JUDGMENT IN THE MAIN ACTION , OF THE OPERATION OF THE DECISION OF THE COMMISSION OF 15 DECEMBER 1975 BY WHICH THE LATTER DECLARES THAT THERE ARE NO GROUNDS UNDER ARTICLE 85 ( 1 ) OF THE EEC TREATY FOR ACTION ON ITS PART IN RESPECT OF THE CONDITIONS OF RESALE FOR THE DOMESTIC MARKET APPLIED BY SABA AND DECLARES MOREOVER THAT , PURSUANT TO ARTICLE 85 ( 3 ) OF THE SAME TREATY , ARTICLE 85 ( 1 ) IS TEMPORARILY INAPPLICABLE TO VARIOUS AGREEMENTS RELATING TO THE DISTRIBUTION OF ELECTRONIC EQUIPMENT FOR LEISURE PURPOSES BY WHICH THAT SAME UNDERTAKING BINDS THE WHOLESALERS , SOLE DISTRIBUTORS AND SPECIALIST RETAILERS WHICH IT APPOINTS FOR THE SALE OR RESALE OF ITS PRODUCTS . THAT APPLICATION IS , ALTERNATIVELY , FOR THE ADOPTION OF MEASURES TO ENABLE THE APPLICANT TO OBTAIN PROVISIONALLY SUPPLIES OF SABA EQUIPMENT AND TO RESELL IT IN ITS CAPACITY AS A WHOLESALE SUPERMARKET .

2 THE DECISION , THE SUSPENSION OF THE OPERATION OF WHICH IS REQUESTED , DOES NOT ONLY CONCERN THE RELATIONSHIP OF SABA TO THE APPLICANT BUT THAT OF SABA TO ALL DISTRIBUTORS OF THE EQUIPMENT WHICH IT PLACES ON THE COMMUNITY MARKET .

SINCE A MEASURE , WHICH WOULD HAVE THE EFFECT OF SUSPENDING ALL THOSE RELATIONSHIPS , WOULD BE OUTSIDE THE SCOPE OF AN URGENT INTERIM MEASURE INTENDED TO SAFEGUARD TEMPORARILY THE INTERESTS OF THE APPLICANT THE PRINCIPAL APPLICATION SHOULD THEREFORE BE DISMISSED .

3 WITH REGARD TO THE ALTERNATIVE APPLICATION , IT HAS NOT BEEN ESTABLISHED THAT IT WOULD BE IMPOSSIBLE FOR THE APPLICANT TO COMPLY , EVEN TEMPORARILY , WITH THE CONDITIONS IMPOSED BY SABA FOR THE PURPOSES OF RECOGNITION AS A SABA WHOLESALER OR THAT COMPLIANCE WITH THOSE CONDITIONS UNTIL THE DECISION OF THE COURT GIVING JUDGMENT IN THE MAIN ACTION WOULD CAUSE IT IRREPARABLE DAMAGE .

4 AS SOON AS THE APPLICANT AGREED TO COMPLY WITH THOSE CONDITIONS , SABA WOULD BE IN BREACH OF ITS OBLIGATIONS UNDER THE DECISION OF 15 DECEMBER 1975 BY REFUSING TO DELIVER SUPPLIES OR BY PROHIBITING OTHER DISTRIBUTORS IN ITS NETWORK FROM SO DOING AND IT WOULD BE FOR THE COMMISSION TO TAKE ACTION , SUBJECT HOWEVER , TO METRO ' S HAVING RECOURSE , IF NECESSARY , TO THE LEGAL REMEDIES AFFORDED BY NATIONAL LEGISLATIONS .

5 THE APPLICATION MUST THEREFORE BE DISMISSED .

6 IN THE CIRCUMSTANCES , COSTS MUST BE RESERVED .

ON THOSE GROUNDS ,

HAVING REGARD TO THE URGENCY ,

THE PRESIDENT ,

BY WAY OF AN INTERIM RULING ,

HEREBY ORDERS :

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

2 . THE COSTS ARE RESERVED .