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

PROCEEDINGS ON APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF OPERATION - SUSPENSION OF OPERATION OF A DECISION IMPOSING A FINE - CONDITIONS GOVERNING GRANT - PROVISION OF A SECURITY - REQUIREMENT TO PROVIDE A BANK GUARANTEE NOT MAKING IT POSSIBLE TO ESCAPE THE DAMAGE WHICH WOULD RESULT FROM THE OPERATION OF THE DECISION - GRANT OF SUSPENSION JUSTIFIED
( ECSC TREATY , ART . 39 , RULES OF PROCEDURE , ART . 86 ( 2 ))

THE CONDITIONS REQUIRED FOR THE SUSPENSION OF THE OPERATION OF A COMMISSION DECISION IMPOSING A FINE ON A STEEL UNDERTAKING ARE PRESENT AND IT IS UNNECESSARY TO MAKE SUCH SUSPENSION CONDITIONAL ON THE PRIOR PROVISION OF A SECURITY WHERE THERE ARE SERIOUS REASONS FOR TAKING THE VIEW THAT THE REQUIREMENT TO PROVIDE A BANK GUARANTEE IN ORDER TO OBTAIN A SUSPENSION OF THE OPERATION OF THE DECISION WOULD NOT PERMIT THE APPLICANT TO ESCAPE THE DAMAGE WHICH WOULD RESULT FROM THE OPERATION OF THE CONTESTED DECISION PENDING JUDGMENT IN THE MAIN PROCEEDINGS , AND IN PARTICULAR WHERE THE APPLICANT UNDERTAKING , BECAUSE OF ITS SMALL SIZE , MAY FIND DIFFICULTIES IN OBTAINING THE NECESSARY CREDIT AND WHERE , HAVE REGARD TO THE FACT THAT IT OPERATES EXCLUSIVELY AS A SUBCONTRACTOR , THE AMOUNT OF THE FINE , CALCULATED AT A FLAT RATE PER TONNE , MAY REPRESENT A HEAVIER BURDEN FOR IT THAN FOR AN UNDERTAKING WHICH REALIZES ON ITS OWN BEHALF ALL THE ADDED VALUE OF THE PRODUCTION CONCERNED .

IN CASE 234/82 R
FERRIERE DI ROE VOLCIANO SPA , WHOSE REGISTERED OFFICE IS AT 24 VIA GARIBALDI , ROE VOLCIANO , REPRESENTED BY FABRIZZIO MASSONI , ADVOCATE OF 273 AVENUE DU FRE , B-1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF A . ELVINGER , ADVOCATE , 15 COTE D ' EICH ,
APPLICANT ,
V
COMMISSION OF THE EUROPEAN COMMUNITIES , 200 RUE DE LA LOI , B-1049 BRUSSELS , REPRESENTED BY SERGIO FABRO , A MEMBER OF ITS LEGAL DEPARTMENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF ITS LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,
DEFENDANT ,

APPLICATION TO SUSPEND THE OPERATION OF THE COMMISSION DECISION OF 13 AUGUST 1982 CONCERNING A FINE IMPOSED ON THE APPLICANT UNDER ARTICLE 58 OF THE ECSC TREATY ,

1 ACCORDING TO ARTICLE 39 OF THE ECSC TREATY , ACTIONS BROUGHT BEFORE THE COURT DO NOT HAVE SUSPENSORY EFFECT . THE COURT MAY , HOWEVER , IF IT CONSIDERS THAT THE CIRCUMSTANCES SO REQUIRE , ORDER THAT APPLICATION OF THE CONTESTED DECISION OR RECOMMENDATION BE SUSPENDED AND MAY PRESCRIBE ANY OTHER NECESSARY INTERIM MEASURES .

2 THE APPLICANT HAS CLAIMED THAT THE COURT SHOULD ORDER THAT THE OPERATION OF THE DECISION OF 13 AUGUST 1982 IMPOSING ON IT A FINE OF 75 900 ( SEVENTY-FIVE THOUSAND NINE HUNDRED ) EUROPEAN CURRENCY UNITS OR 100 284 393 ( ONE HUNDRED MILLION , TWO HUNDRED AND EIGHTY-FOUR THOUSAND , THREE HUNDRED AND MINETY-THREE ) LIRE BE SUSPENDED . ALTHOUGH THE COMMISSION CLAIMS THAT THE APPLICATION SHOULD BE DISMISSED , IT MAY BE SEEN FROM ITS WRITTEN AND ORAL OBSERVATIONS THAT THE COMMISSION DOES NOT RAISE ANY OBJECTION TO THE GRANT OF THE SUSPENSION REQUESTED , ON CONDITION THAT THE APPLICANT PROVIDES A BANK GUARANTEE ENSURING THE PAYMENT OF THE FINE , IF IT REMAINED PAYABLE , TOGETHER WITH DEFAULT INTEREST IF APPROPRIATE . IN ADOPTING THIS VIEW , THE COMMISSION IS ABIDING BY A COURSE OF ACTION WHICH IT ADOPTED IN 1981 WHICH MAY BE REGARDED AS JUSTIFIED , PROVIDED THAT CONSIDERATION IS GIVEN IN APPROPRIATE CASES TO THE QUESTION WHETHER THERE ARE SPECIAL REASONS WHY IT SHOULD NOT BE FOLLOWED .

3 THE APPLICANT SEEKS TO OBTAIN THE SUSPENSION SOUGHT WITHOUT BEING OBLIGED TO PROVIDE A GUARANTEE . IT CLAIMS THAT IT IS NOT IN A POSITION TO FURNISH SUCH A GUARANTEE . IN SUPPORT OF THAT CLAIM , IT HAS PRODUCED DECLARATIONS WHICH ESTABLISH THAT THAT IS INDEED THE CASE .

4 IT MAY BE SEEN FROM THE WRITTEN AND ORAL OBSERVATIONS OF THE PARTIES THAT THE ADMISSIBILITY OF THIS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES IS NOT DISPUTED AND THAT THE MAIN ACTION RAISES QUESTIONS OF LAW AND OF FACT WHICH LEAD TO THE CONCLUSION THAT THE LEGAL CIRCUMSTANCES OF THE ACTION AND THE APPLICATION FOR THE ADOPTION OF INTERIM MEASURES SATISFY THE CONDITIONS PRESCRIBED UNDER ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE .

5 IT IS MOREOVER ESTABLISHED THAT THE APPLICANT IS A SMALL PROCESSING UNDERTAKING WITH HEAVY FINANCIAL BURDENS AND THAT DURING THE PERIOD CONCERNED IT WAS WORKING SOLELY AS A SUBCONTRACTOR FOR OTHER IRON AND STEEL UNDERTAKINGS . THE DEFENDANT HAS CONCEDED THAT FOR THOSE REASONS THIS CASE PRESENTS CERTAIN EXCEPTIONAL FEATURES .

6 IT MAY BE CONCLUDED THAT THE PROVISION OF A BANK GUARANTEE CREATES SPECIAL DIFFICULTIES FOR THE APPLICANT IN VIEW OF THE FACT THAT IT IS OFTEN MUCH MORE DIFFICULT FOR A SMALL UNDERTAKING TO OBTAIN THE NECESSARY CREDIT . FURTHERMORE , IT WOULD SEEM APPROPRIATE TO TAKE INTO CONSIDERATION IN THE INTERLOCUTORY PROCEEDINGS , AS AN ARGUMENT IN FAVOUR OF THE SUSPENSION OF THE DISPUTED DECISION , THE FACT THAT IT IS NOT POSSIBLE TO EXCLUDE THE POSSIBILITY THAT THE FINE , CALCULATED AT A FLAT RATE PER TONNE IN ACCORDANCE WITH ARTICLE 12 OF DECISION 1831/81/ECSC , MAY REPRESENT A HEAVIER BURDEN FOR A PROCESSING UNDERTAKING , WHICH PLAYS A PART IN ONLY A LIMITED PORTION OF THE PRODUCTION PROCESS THAN FOR AN UNDERTAKING WHICH REALIZES ON ITS OWN BEHALF ALL THE ADDED VALUE OF THE PRODUCTION CONCERNED .

7 THERE ARE THEREFORE SERIOUS REASONS FOR TAKING THE VIEW THAT THE REQUIREMENT TO PROVIDE A BANK GUARANTEE IN ORDER TO OBTAIN A SUSPENSION OF THE OPERATION OF THE DECISION IMPOSING THE FINE WOULD NOT PERMIT THE APPLICANT TO ESCAPE THE DAMAGE WHICH WOULD RESULT FROM THE OPERATION OF THAT DECISION PENDING JUDGMENT IN THE MAIN PROCEEDINGS .

8 IN THOSE CIRCUMSTANCES , THE CONDITIONS REQUIRED FOR THE SUSPENSION OF THE OPERATION OF THE DISPUTED DECISION ARE PRESENT AND IT IS UNNECESSARY , IN THIS CASE , TO MAKE SUCH A SUSPENSION CONDITIONAL ON THE PRIOR PROVISION OF A SECURITY .

9 IN THE CIRCUMSTANCES , COSTS SHOULD BE RESERVED .

ON THOSE GROUNDS ,
THE PRESIDENT ,
BY WAY OF INTERIM DECISION ,
HEREBY ORDERS AS FOLLOWS :
1 . THE OPERATION OF ARTICLE 2 OF THE COMMISSION DECISION OF 13 AUGUST 1982 CONCERNING A FINE IMPOSED ON THE APPLICANT SHALL BE SUSPENDED UNTIL THE DELIVERY OF JUDGMENT IN THE MAIN PROCEEDINGS .

2 . THE COSTS ARE RESERVED .