Court of Justice of the European Communities (including Court of First Instance Decisions)

APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - SUSPENSION OF THE ENFORCEMENT OF A DECISION INVOLVING A PECUNIARY PENALTY - CONDITIONS FOR THE GRANT
( EEC TREATY , ART . 185 AND THE FOURTH PARAGRAPH OF ART . 192 ; RULES OF PROCEDURE , ARTS 83 ( 2 ) AND 89 )

IN CASE 107/82 R
ALLGEMEINE ELEKTRICITATS-GESELLSCHAFT AEG-TELEFUNKEN AG , 1 THEODOR-STERN-KAI , 6000 FRANKFURT AM MAIN 70 , REPRESENTED BY MARTIN HIRSCH AND FRITZ OESTERLE ( OF THE FIRM OF RECHTSANWALTE GLEISS , LUTZ , HOOTZ , HIRSCH & PARTNERS ), STUTTGART , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNST ARENDT , 34B RUE PHILIPPE-II ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY CHRISTOPH BALL AND DR GOTZ ZUR HAUSEN , MEMBERS OF THE LEGAL DEPARTMENT OF THE COMMISSION , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION FOR A SUSPENSION OF OPERATION AND , IN ANY CASE , OF THE ENFORCEMENT OF THE COMMISSION ' S DECISION OF 6 JANUARY 1982 ( IV/28.748 - AEG-TELEFUNKEN ),

1 IT IS TRUE THAT ACCORDING TO ITS WORDING , THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS INTENDED TO PREVENT ENFORCEMENT WITHIN THE MEANING OF ARTICLE 192 OF THE TREATY AND THAT SUCH PROCEEDINGS , WHICH MUST BE HEARD BEFORE THE NATIONAL COURTS , HAVE NOT YET BEEN INSTITUTED BY THE COMMISSION . HOWEVER , IT IS REASONABLE IN THE CIRCUMSTANCES OF THE CASE TO CONSIDER THAT THE APPLICATION ALSO SEEKS SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION , WHICH , IF GRANTED , WOULD PREVENT ENFORCEMENT , AS A PRECAUTIONARY MEASURE .

2 MOREOVER , IT IS EVIDENT THAT THE COMMISSION IS PREPARED TO SUSPEND OPERATION OF THE DECISION PURSUANT BOTH TO ARTICLE 83 AND TO ARTICLE 89 OF THE RULES OF PROCEDURE , PROVIDED THAT A BANK GUARANTEE IS FURNISHED AND THAT THE APPLICANT AGREES TO PAY DEFAULT INTEREST IF , ON CONCLUSION OF THE MAIN PROCEEDINGS , IT IS STILL ORDERED TO PAY A FINE . FINALLY , IT APPEARS THAT THE SECURITY , WHICH ALSO COVERS THE INTEREST , HAS BEEN FURNISHED IN THE MEANTIME , WHICH EXPLAINS WHY THE ORIGINAL APPLICATION HAS BEEN CHANGED INTO AN APPLICATION FOR AN ORDER FOR THE RETURN OF THE BOND . ON 17 MARCH 1982 , THE APPLICANT ' S BANK SENT THE COMMISSION A LETTER IN WHICH IT DECLARED ITS WILLINGNESS TO STAND SURETY FOR THE APPLICANT VIS-A-VIS THE COMMISSION , IRREVOCABLY UNDERTAKING ' ' TO PAY THE MAXIMUM AMOUNT OF DM 2 445 780 ( TWO MILLION , FOUR HUNDRED AND FORTY-FIVE THOUSAND , SEVEN HUNDRED AND EIGHTY DEUTSCH MARKS ) PLUS INTEREST CALCULATED ON THE BASIS OF THE DEUTSCHE BUNDESBANK DISCOUNT RATE PLUS 1% ' ' , IN THE EVENT OF FAILURE BY THE APPLICANT TO FULFIL ITS OBLIGATION TO EFFECT PAYMENT AT THE APPROPRIATE TIME .

3 THUS THE QUESTION ON WHICH THE PARTIES NOW DIFFER IS SOLELEY WHETHER OR NOT THE GRANT OF A SUSPENSION OF OPERATION MUST BE MADE SUBJECT TO THE TWO CONDITIONS INDICATED BY THE COMMISSION .

4 DURING THE ORAL PROCEDURE , THE COMMISSION MAINTAINED THAT THE GUARANTEE FURNISHED BY THE APPLICANT ' S BANK ONLY PARTIALLY SATISFIED THE CONDITIONS ON WHICH IT AGREED VOLUNTARILY TO SUSPEND ENFORCEMENT OF THE CONTESTED DECISION . IN ITS VIEW , THE APPLICANT HAS NOT GIVEN THE REQUIRED COMMITMENT AS TO THE PAYMENT OF INTEREST .

5 AT THE HEARING OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , THE APPLICANT NEVERTHELESS EXPRESSED ITS CONSENT FOR A RECORD TO BE MADE OF ITS UNDERTAKING TO PAY INTEREST AS DETERMINED BY THE COMMISSION , SUBJECT NEVERTHELESS TO THE COURT ' S CONSIDERATION OF THE QUESTION WHETHER SUCH INTEREST MIGHT BE DEMANDED , A MATTER WHICH IT RESERVED THE RIGHT TO CONTEST , IF APPROPRIATE , IN THE COURSE OF THE MAIN PROCEEDINGS . THAT RESERVATION IS LAWFUL AND MUST BE ACCEPTED ; THE QUESTION WHETHER OR NOT INTEREST IS DUE DOES INDEED FALL WITHIN THE JURISDICTION OF THE COURT SEISED OF THE MAIN PROCEEDINGS .

6 THE CIRCUMSTANCES ON THE BASIS OF WHICH THE COMMISSION HAS DEPARTED FROM ITS EARLIER POSITION REGARDING THE SUSPENSION OF MEASURES FOR THE COLLECTION OF FINES , IN CASES WHERE AN ACTION IS BROUGHT BY AN UNDERTAKING ON WHICH A FINE HAS BEEN IMPOSED , JUSTIFY THAT NEW ATTITUDE . IT IS APPROPRIATE , THEREFORE , UNLESS THERE ARE EXCEPTIONAL CIRCUMSTANCES , THE EXISTENCE OF WHICH THE APPLICANT HAS NOT DEMONSTRATED IN THIS CASE , TO MAKE THE GRANT OF THE SUSPENSION OF OPERATION CONDITIONAL UPON SATISFACTION OF THE TWO CONDITIONS IMPOSED BY THE COMMISSION . IT IS HOWEVER ALSO APPROPRIATE TO STATE THAT THOSE CONDITIONS HAVE BEEN SATISFIED BY THE APPLICANT IN CIRCUMSTANCES JUSTIFYING THE GRANT OF A SUSPENSION .

ON THOSE GROUNDS ,
THE PRESIDENT ,
BY WAY OF INTERIM DECISION ,
HEREBY ORDERS AS FOLLOWS :
1 . THE OPERATION OF ARTICLE 3 OF THE COMMISSION ' S DECISION OF 6 JANUARY 1982 ( IV/28.748 AEG-TELEFUNKEN ) IS SUSPENDED SUBJECT TO THE MAINTENANCE OF THE SECURITY FURNISHED ON 17 MARCH 1982 IN FAVOUR OF THE COMMISSION .

2.THIS ORDER CANCELS AND REPLACES THE ORDER OF 29 MARCH 1982 .
3.THE COSTS ARE RESERVED .