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

COMPETITION - ADMINISTRATIVE PROCEDURE - TERMINATION OF INFRINGEMENTS - ADOPTION OF INTERIM MEASURES - POWERS OF THE COMMISSION
( EEC TREATY , ART . 87 ; REGULATION NO 17 OF THE COUNCIL , ART . 3 )

IN CASE 229/82 R
FORD WERKE AG , 2 OTTOPLATZ , D 5000 COLOGNE 21 , FEDERAL REPUBLIC OF GERMANY , REPRESENTED BY P . SAMBUC , RECHTSANWALT , OF BODEN , OPPENHOFF & SCHNEIDER , RECHTSANWALTE , 10 BURGMAUER , D 5000 COLOGNE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF J.-C . WOLTER , ADVOCATE , 2 RUE GOETHE ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B 1040 BRUSSELS , BELGIUM ,
DEFENDANT ,

APPLICATION FOR THE SUSPENSION OF THE OPERATION OF THE COMMISSION ' S DECISION OF 18 AUGUST 1982 ( IV/30.696 - DISTRIBUTION SYSTEM OF FORD WERKE AG - INTERIM MEASURES ),

1 BY COMMUNICATION OF 2 JULY 1982 , THE COMMISSION INFORMED FORD WERKE AG THAT IT HAD DECIDED TO INITIATE A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY IN REGARD TO THAT UNDERTAKING BECAUSE THE LATTER HAD ON 27 APRIL 1982 SENT TO GERMAN FORD DEALERS A CIRCULAR IN WHICH IT INFORMED THEM THAT , AFTER 1 MAY 1982 , IT WOULD NO LONGER ACCEPT ANY ORDERS FOR RIGHT-HAND DRIVE MOTOR CARS WHICH THOSE DEALERS MIGHT FORWARD TO IT .

2 ON 18 AUGUST 1982 , WHILST THAT PROCEDURE WAS STILL IN PROGRESS , THE COMMISSION ADOPTED A DECISION HEADED IV/30.696 - DISTRIBUTION SYSTEM OF FORD WERKE AG - INTERIM MEASURES . THAT DECISION WAS NOTIFIED TO THE APPLICANT ON 27 AUGUST 1982 .
3 ACCORDING TO ARTICLE 1 OF THE DECISION FORD WERKE AG IS REQUIRED TO WITHDRAW THE CIRCULAR OF 27 APRIL 1982 . ACCORDING TO THE SAME PROVISION FORD WERKE AG IS REQUIRED TO INFORM GERMAN FORD DEALERS THAT RIGHT-HAND DRIVE VEHICLES STILL FORM PART OF ITS AGREED DELIVERY RANGE AND TO REFRAIN FOR THE FUTURE FROM TAKING ANY MEASURES HAVING THE SAME EFFECT AS THE CIRCULAR . THE DECISION ENTERS INTO FORCE 10 DAYS FROM THE DATE OF ITS NOTIFICATION AND ACCORDING TO ARTICLE 3 IS TO APPLY UNTIL ADOPTION OF A DECISION CONCLUDING THE PROCEEDINGS INSTITUTED PURSUANT TO ARTICLE 85 OF THE EEC TREATY . ARTICLE 2 OF THE DECISION PROVIDES THAT A PERIODIC PENALTY PAYMENT OF 1 000 EUROPEAN CURRENCY UNITS PER DAY IS TO BE PAYABLE BY FORD WERKE AG FOR EACH DAY OF DELAY .

4 IN THE STATEMENT OF THE GROUNDS ON WHICH THE CONTESTED DECISION IS BASED THE COMMISSION INDICATES THAT THE DECISION IS WITHOUT PREJUDICE TO THE ONE WHICH IT WILL TAKE UPON THE CONCLUSION OF THE INVESTIGATION WHICH IS BEING CARRIED OUT . THE DECISION IS ALSO WITHOUT PREJUDICE TO THE CONDITIONS UNDER WHICH THE APPLICANT MIGHT OBTAIN AN EXEMPTION UNDER ARTICLE 85 ( 3 ) OF THE EEC TREATY . IT IS BASED ON THE PROBABLE EXISTENCE OF AN INFRINGEMENT OF ARTICLE 85 ( 1 ) WHICH , AS A MATTER OF URGENT NECESSITY AND BY WAY OF A CONSERVATORY MEASURE , MUST BE TERMINATED FORTHWITH .

5 BY APPLICATION LODGED AT THE COURT REGISTRY ON 3 SEPTEMBER 1982 THE APPLICANT HAS BROUGHT AN ACTION FOR A DECLARATION THAT THE COMMISSION ' S DECISION OF 18 AUGUST 1982 IS VOID . BY A SEPARATE DOCUMENT LODGED AT THE COURT REGISTRY ON THE SAME DAY THE APPLICANT APPLIED , IN PURSUANCE OF ARTICLE 185 OF THE EEC TREATY AND ARTICLE 83 ( 1 ) OF THE RULES OF PROCEDURE , FOR THE SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION .

6 ACCORDING TO ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE THE PRESIDENT OF THE COURT MAY GRANT THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES EVEN BEFORE THE OBSERVATIONS OF THE OPPOSITE PARTY HAVE BEEN SUBMITTED . SUCH A DECISION MAY BY VARIED OR CANCELLED EVEN WITHOUT ANY APPLICATION ' S BEING MADE BY ANY PARTY .

7 AS THE COURT HAS RECOGNIZED IN ITS ORDER OF 17 JANUARY 1980 MADE UPON AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES ( CASE 792/79R CAMERA CARE V COMMISSION ( 1980 ) ECR 119 ) IT IS OPEN TO THE COMMISSION TO ADOPT , IN PARTICULAR CIRCUMSTANCES , CERTAIN INTERIM MEASURES IN THE COURSE OF PROCEEDINGS UNDER ARTICLE 85 . HOWEVER , THIS IS THE FIRST TIME THAT THE COMMISSION HAS ISSUED A MEASURE OF THIS KIND ON ITS OWN INITIATIVE WHILST AN INVESTIGATION IS IN PROGRESS .

8 IN THOSE CIRCUMSTANCES , AND HAVING REGARD TO THE PARTICULAR FEATURES OF THIS DISPUTE , IT IS DESIRABLE IN THE INTERESTS OF THE PROPER ADMINISTRATION OF JUSTICE NOT TO PUT THIS MEASURE INTO EFFECT BEFORE THE PARTIES HAVE HAD THE OPPORTUNITY OF STATING THEIR VIEWS DURING THESE PROCEEDINGS RELATING TO AN APPLICATION FOR INTERIM MEASURES . IT IS THEREFORE NECESSARY TO SUSPEND , AS A CONSERVATORY MEASURE , THE OPERATION OF ARTICLES 1 AND 2 OF THE CONTESTED DECISION UNTIL THE MAKING OF THE ORDER TERMINATING THESE PROCEEDINGS .

ON THOSE GROUNDS ,
THE PRESIDENT ,
BY WAY OF INTERIM DECISION ,
HEREBY ORDERS AS FOLLOWS :
1 . THE OPERATION OF ARTICLES 1 AND 2 OF THE COMMISSION ' S DECISION OF 18 AUGUST 1982 RELATING TO A PROCEEDING UNDER ARTICLE 85 OF THE EEC TREATY ( IV/30.696 - DISTRIBUTION SYSTEM OF FORD WERKE AG - INTERIM MEASURES ) SHALL , AS A CONSERVATORY MEASURE , BE SUSPENDED UNTIL THE MAKING OF THE ORDER TERMINATING THESE PROCEEDINGS WITH REGARD TO THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES .

2.THE PROCEEDINGS WITH REGARD TO THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SHALL BE PURSUED IMMEDIATELY . THE COMMISSION SHALL LODGE ITS WRITTEN OBSERVATIONS BY 17 SEPTEMBER 1982 AT THE LATEST . THE HEARING OF THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SHALL TAKE PLACE ON FRIDAY 24 SEPTEMBER 1982 AT 9.30 A.M .

3.THE COSTS ARE RESERVED .