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61982O0263(01)
Order of the President of the Court of 7 December 1982.
Klöckner-Werke AG v Commission of the European Communities.
Case 263/82 R II.
European Court reports 1982 Page 04225

IN CASE 263/82 R II
KLOCKNER-WERKE AG , A STEEL UNDERTAKING HAVING ITS REGISTERED OFFICE IN DUISBURG , REPRESENTED BY PROFESSOR BODO BORNER OF THE UNIVERSITY OF COLOGNE , 83 ZULPICHER STRASSE , D-5000 COLOGNE 41 , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF ERNEST ARENDT , 34 B RUE PHILIPPE-II ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1049 BRUSSELS ,
DEFENDANT .

1 BY DECISION 1191/82/ECSC OF 13 AUGUST 1982 THE COMMISSION OF THE EUROPEAN COMMUNITIES FOUND THAT KLOCKNER-WERKE AG HAD EXCEEDED BY 122 781 TONNES THE PRODUCTION QUOTA FOR ROLLED PRODUCTS OF GROUP I WHICH HAD BEEN ALLOCATED TO IT FOR THE SECOND QUARTER OF 1981 PURSUANT TO DECISION 2794/80/ECSC ( THE GENERAL DECISION ), AND FINED IT THEREFORE 10 129 432 ( TEN MILLION , ONE HUNDRED AND TWENTY-NINE THOUSAND FOUR HUNDRED AND THIRTY-TWO ) EUROPEAN CURRENCY UNITS , OR DM 23 909 916 ( TWENTY-THREE MILLION , NINE HUNDRED AND NINE THOUSAND NINE HUNDRED AND SIXTEEN ).

2 BY AN APPLICATION REGISTERED AT THE COURT ON 24 SEPTEMBER 1982 THE APPLICANT BROUGHT AN ACTION UNDER ARTICLE 33 OF THE ECSC TREATY FOR A DECLARATION THAT THE DECISION WAS VOID .

3 BY A SEPARATE DOCUMENT REGISTERED AT THE COURT ON THE SAME DAY IT MADE AN APPLICATION UNDER ARTICLE 39 OF THE ECSC TREATY AND ARTICLE 83 ET SEQ . OF THE RULES OF PROCEDURE FOR AN INTERIM ORDER SUSPENDING THE OPERATION OF THE CONTESTED DECISION . IN THE COURSE OF THE PROCEEDINGS CONCERNING THE APPLICATION FOR THE ADOPTION OF AN INTERIM ORDER THE COMMISSION STATED THAT IT HAD NO OBJECTION TO A SUSPENSION PROVIDED , HOWEVER , THAT IT WAS MADE SUBJECT TO PRIOR LODGING OF A SECURITY . THE APPLICANT , HOWEVER , SUBMITTED THAT THE APPLICATION SHOULD BE GRANTED WITHOUT ITS HAVING TO DO SO .

4 BY AN ORDER OF 11 NOVEMBER 1982 THE PRESIDENT OF THE COURT ORDERED THE OPERATION OF ARTICLE 2 OF THE COMMISSION ' S DECISION OF 13 AUGUST 1982 TO BE SUSPENDED ON CONDITION THAT THE APPLICATION FIRST LODGED A BANK GUARANTEE , APPROVED BY THE COMMISSION , AS SECURITY FOR THE PAYMENT OF THE FINE TOGETHER WITH DEFAULT INTEREST CALCULATED AT 1% ABOVE THE DEUTSCHE BUNDESBANK ' S DISCOUNT RATE . IN ADDITION , THE APPLICANT WAS ALLOWED 15 DAYS FROM THE NOTIFICATION OF THE ORDER TO LODGE THE GUARANTEE .

5 BY AN APPLICATION REGISTERED AT THE COURT ON 2 DECEMBER 1982 THE APPLICANT REQUESTED THE PRESIDENT OF THE COURT TO MODIFY THE ORDER OF 11 NOVEMBER 1982 AND TO SUSPEND THE OPERATION OF THE COMMISSION ' S DECISION UNCONDITIONALLY PENDING JUDGMENT ON THE SUBSTANCE OF THE CASE .

6 IN SUPPORT OF ITS REQUEST IT RELIES UPON A DECLARATION , REFERRED TO AS AN ' ' EIDESSTATTLICHE ERKLARUNG ' ' ( AFFIDAVIT ) MADE BY ITS FINANCIAL DIRECTOR AND A STATEMENT BY THE CHAIRMAN OF ITS BOARD OF DIRECTORS ( VORSTAND ) TO THE EFFECT THAT THE CREDITS AVAILABLE TO THE APPLICANT ARE WHOLLY TAKEN UP WITH FINANCING ITS BUSINESS AND MUST , IF THE UNDERTAKING IS TO CONTINUE IN BUSINESS , REMAIN THUS ASSIGNED .

7 EACH OF THE MATTERS PUT FORWARD BY THE APPLICANT IN SUPPORT OF THIS FRESH APPLICATION HAS ALREADY BEEN PUT FORWARD BY IT IN THE PROCEEDINGS RELATING TO THE PREVIOUS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES , WHEN THEY WERE CHALLENGED BY THE COMMISSION . THEY WERE TAKEN INTO CONSIDERATION IN THE ORDER OF 11 NOVEMBER 1982 , WHICH STATED AS FOLLOWS :
' ' THE APPLICANT HAS NOT ADDUCED ANY OTHER CONTENTIONS WHICH WOULD JUSTIFY MAKING AN EXCEPTION IN ITS FAVOUR . THEREFORE THE LODGING OF SECURITY CANNOT CAUSE THE APPLICANT SERIOUS AND IRREPARABLE DAMAGE EITHER AS A RESULT OF THE EXPENSE WHICH IT INVOLVES OR OF THE EFFECT WHICH IT MAY HAVE ON THE APPLICANT ' S FINANCIAL POSITION . ' '
8 IT MUST BE NOTED FURTHER THAT IN ITS FRESH APPLICATION THE APPLICANT DOES NOT SHOW , OR EVEN SEEK TO SHOW OR TO STATE , THAT IT HAS TAKEN STEPS TO TRY TO OBTAIN A BANK GUARANTEE .

9 PURSUANT TO ARTICLE 84 ( 2 ) OF THE RULES OF PROCEDURE THE PRESIDENT OF THE COURT MAY GRANT AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES EVEN BEFORE THE OBSERVATIONS OF THE OPPOSITE PARTY HAVE BEEN SUBMITTED . SINCE NO ARGUMENT HAS BEEN ADDUCED WHICH MIGHT REASONABLY LEAD THE PRESIDENT TO CONSIDER MODIFYING THE MEASURES CONTAINED IN THE ORDER OF 11 NOVEMBER 1982 , IT IS APPROPRIATE THAT A DECISION BE MADE , PURSUANT TO THE ABOVE-MENTIONED PROVISION , WITHOUT ITS BEING NECESSARY TO INVITE THE COMMISSION TO SUBMIT ITS OBSERVATIONS .

10 IN THE LIGHT OF THE FOREGOING IT IS APPROPRIATE THAT COSTS SHOULD NOT BE RESERVED BUT THAT THE APPLICANT SHOULD BE ORDERED FORTHWITH TO PAY THEM .

ON THOSE GROUNDS ,
THE PRESIDENT OF THE COURT
HEREBY ORDERS AS FOLLOWS :
1 . THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS DISMISSED .

2 . THE APPLICANT SHALL PAY THE COSTS .

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