Srl Bensider and Others v Commission of the European Communities

Size: px

Start display at page:

Download "Srl Bensider and Others v Commission of the European Communities"

Ashlee Alexander
5 years ago
Views:

1 ORDER OF THE PRESIDENT OF THE COURT 23 MAY Srl Bensider and Others v Commission of the European Communities Case 50/84 R Application for the adoption of interim measures Suspension of operation conditions governing the grant of such a measure Main proceedings brought out of time (ECSC Treaty, Art. 39; Rules of Procedure, Art. 83 (2)) In Case 50/84 R SRL BENSIDER, whose registered office is at 99. Via Pionieri dell'aria, Roveredo in Piano (Italy). SA SIPROTOLE, whose registered office is at 38, Rue des Deux-Églises, 4108 Neupre (Belgium), SA Villevoye-Interol, whose registered office is at 13, Rue des Peupliers, 4430 Alleur (Belgium), SPRL HAIDONET HUBIN, whose registered office is at 71, Grand'Route, Tihange-lez-Huy (Belgium), JEAN MORSA, dealer in metallurgical products, residing at 23, Avenue du Cherét, 4920 Embourg-Chaudfontaine (Belgium), SOCIÉTÉ COOPÉRATIVE DY MÉTAL, whose registered office is at 172, Rue Georges-Moreau, 1070 Brussels (Belgium), SA CHARLEMETAL, whose registered office is at 347/ 1, Avenue des Croix de Guerre, 1120 Brussels (Belgium), represented by René Swennen, of the Liège Bar, with an address for service in Luxembourg at the Chambers of Jean Wagener, Avocat, 10 A, Boulevard de la Foire, v applicants, 1 Language of the Case: French. 2247

2 ORDER OF CASE 50/84 R COMMISSION OF THE EUROPEAN COMMUNITIES, 200, Rue de la Loi, 1049 Brussels, represented by its Legal Adviser, E. Lasnet, acting as Agent, with an address for service in Luxembourg at the Chambers of Manfred Beschel, a member of its Legal Department, Bâtiment Jean Monnet, Kirchberg, defendant, APPLICATION, pursuant to Article 39 of the ECSC Treaty, for suspension of the operation of Commission Decision No 3717 / 83 / ECSC of 23 December 1983, introducing for steel undertakings and steel dealers a production certificate and an accompanying document for deliveries of certain products, THE PRESIDENT OF THE COURT makes the following ORDER I Summary of the facts 1. By a decision dated 23 December 1983 the Commission introduced for steel undertakings and steel dealers a production certificate and an accompanying document for deliveries of certain products. The decision makes the delivery to other Member States of the products listed in Annex 1 thereto subject to the production of an accompanying document. That document is to be submitted to the appropriate customs office in the Member State of dispatch and, after being certified by that office, must be deposited with the home-use declaration at a customs office in the Member State of destination. Particular rules apply to the importation from non-member countries of products originating in the Community. 2. Where a delivery is made by a dealer a production certificate made out by the producer must also be submitted. The quantity exported is deducted from that certificate. After it has been used up completely, the steel dealer must transmit the certificate to the producer. 3. The preamble to the decision of 23 December 1983 shows that the production certificate and the accompanying document for deliveries were introduced in order to permit a full and accurate survey of patterns of deliveries within the Community as a basis for reliable statistics for each of the Member States with regard to certain steel products not only from other Member States but also from nonmember countries. For those purposes the Member States must transmit to the 2248

3 BENSIDER / COMMISSION Commission statistics based on data received from their customs authorities. 4. The decision provides, however, that failure to submit the said documents, or either of them, to the customs offices concerned is not to constitute an obstacle to the performance of the delivery in question provided that the steel undertaking or the dealers lodge with the competent customs office in the Member State of dispatch or, where appropriate, in the Member State of importation a deposit of 43 ECU per tonne of products. That deposit is to be reimbursed to them on submission of the documents in question, fully and correctly completed, and after completion of the formalities prescribed by the decision, within 15 working days of the lodging of the deposit (Articles 4 (3) and 6). 29 March 1984 in Case 37/84R, the applicants limited their request for a suspension to such products. 7. In support of their application, the applicants allege that the contested decision is vitiated by a misuse of powers in regard to them inasmuch as, whilst purporting to be a decision whose object is to ensure that reliable statistics are produced and that the steel undertakings are better informed about that part of production which is delivered by the steel dealers in the other Member States, it is in reality pursuing a secret objective, namely to verify the patterns of trade between the Member States in order to enable the latter to monitor the trends in that trade and, if it should depart from the traditional channels, to ensure that it returns to them. 5. By an application lodged at the Court Registry on 25 February 1984 the applicants sought a declaration that the Commission decision of 23 December 1983 was void. By a separate document, lodged on the same day at the Court Registry, the applicants applied, pursuant to Article 39 of the ECSC Treaty, for the suspension of the operation of that decision. II Written procedure 6. In their application for interim measures the applicants request the Court to suspend the operation of Commission Decision No 3717/ 83/ ECSC. Alternatively, they ask for a suspension limited to second steel products. In a later communication, following the order of the Court of 8. The applicants claim in the second place that the contested decision infringes Article 95 of the ECSC Treaty inasmuch as the powers conferred by that article on the Commission of the European Communities are limited by the express reference which it makes to the objectives of the Community set out in Articles 2, 3 and According to the applicants, Article 4 of the contested decision, by requiring steel dealers to have their deliveries to other Member States of the Community accompanied by a production certificate, infringes Article 4 (b) and (d) of the ECSC Treaty according to which measures or practices which discriminate between producers, between purchasers or between consumers, measures and practices which interfere with the purchaser's free choice of supplier, and restrictive practices which tend towards the sharing or exploitation of markets are recognized as incompatible with the common market for coal and steel. 2249

ORDER OF 23. 5. 1984 CASE 50/84 R 10. In support of those allegations the applicants produce a telex message dated 20 February 1984. 11.

4 ORDER OF CASE 50/84 R 10. In support of those allegations the applicants produce a telex message dated 20 February As regards the question of urgency, the applicants refer to the great difficulties encountered by steel dealers who, like the applicants, sell second products. They experience the greatest difficulty in obtaining production certificates from steelworks. They refer to the communications which they have addressed to the Commission of the European Communities. The decision constitutes an obstacle to the building up by private dealers of the stocks which are indispensable for the pursuit of their activity. Where a dealer buys a product he does not always know in which country he will sell it. Box 3 of the production certificate as drawn up by the Commission is provided for the entry of the country of destination. Furthermore, there are obstacles which have to do specifically with the customs sphere, inasmuch as only the original of the production certificate may be deposited with the customs. A certificate issued by a steelworks may relate to quantities of substandard products which the dealer, depending on his orders, divides among several customers. He is hampered by the fact that the production certificate wanders backwards and forwards between the customs office and his business premises. 12. Finally, the system introduced by the contested decision discloses the entire commercial network of a private dealer, to the great advantage of the producers. The production certificate, once cleared by the customs authorities, must be returned to the producer. The admissibility of the main application 13. The Commission submits that the main application is manifestly inadmissible. 14. The Commission points out that the main application was lodged at the Court Registry on 25 February 1984 and contends that it should have been lodged on 17 February 1984 at the latest in the case of six of the seven applicant undertakings, namely those resident in Belgium. The time-limit for instituting proceedings laid down in Article 33 of the ECSC Treaty in conjunction with Articles 80 and 81 of the Rules of Procedure and Annex II thereto is mandatory. 15. According to the Commission, in the case of the seventh applicant, Srl Bensider, which appears before the Court as a private limited company incorporated under Italian law and having its registered office in Italy, the time for instituting proceedings, taking into account the extension of 10 days on account of distance in. pursuance of Article 81 of the Rules of Procedure and of Article 1 of the Annex thereto, expired at the last moment of 25 February Thus in the case of Sri Bensider the application is not out of time. 16. However, in the Commission's view, it is also plainly inadmissible in the case of that company. Up to and including 25 February 1984, Sri Bensider had not been entered in the commercial register. Thus on that date it was not endowed with legal personality under the Italian law applicable in the matter. Accordingly it had not acquired the capacity to institute legal proceedings. 17. The Commission points out that the provisions of the Italian Civil Code, and in particular Articles 2331 and 2475 thereof, expressly state that a company acquires legal personality as a result of its entry in the commercial register. In a document lodged at the Court Registry the applicant undertakings set out their observations on the objection of inadmissibility which the Commission raised in the main proceedings and also their reply to the request by the President of the Court that they should 2250

5 provide proof that on the date on which the application in the main action was lodged Sri Bensider was either a duly constituted company (according to the law applicable in the place in which it had its registered office) or otherwise had the capacity to institute proceedings, including, therefore, those under Article 33 of the ECSC Treaty. 18. The applicants state inter alia that Srl Bensider was constituted by notarial act in its official place of residence, Pordenone, on 9 February It was entered in the commercial register of the Tribunale di Pordenone under No 6544 on 13 March 1984, after the main application in this case had been lodged at the Court Registry. By a general meeting held on 4 April 1984 Sri Bensider approved all the steps taken by its sole director, Mr Benedet Bruno, including the bringing of this case, before the date on which it was entered in the companies' register at the Tribunale di Pordenone. 19. According to the applicants the formalities involved in entry in the commercial register account for the fact this did not take place until 13 March. In accordance with current practice in Italy the steps taken by the sole director of the company before the latter was entered in the commercial register were approved and ratified by a subsequent general meeting held on 4 April That ratification operated with retroactive effect. BENSIDER / COMMISSION 20. It is therefore established, according to the applicants, that as from 9 February 1984, the date on which the company was constituted, it had the capacity to institute legal proceedings. 21. The applicants contend that the Commission is invoking before the Court of Justice a rule of Italian municipal law which appears neither in the ECSC Treaty nor in the Rules of Procedure of the Court. The subordination of the right to institute proceedings to prior entry in the commercial register is a feature of the legislation of various countries. The consequences attaching to that formality may vary from one legal system to another and the Rules of Procedure of the Court are silent on that particular point. It follows that the rule relied on by the Commission applies only before the Italian courts and not before the Court of Justice of the European Communities. 22. As regards the other applicants, the action has been brought by undertakings all of which have as their sole object the marketing of second steel products. The applicants were justified in instituting proceedings by means of a single application because their common rights of action are connected and are even indivisible. In those circumstances it is proper to apply to all the applicants a longer period, namely that which applies in the case of Sri Bensider. Decision 23 By virtue of Article 83 (2) of the Rules of Procedure of the Court, for the operation of a decision to be suspended and for other interim measures to be ordered there must be circumstances giving rise to urgency and factual and legal grounds establishing a prima facie case for those measures. 2251

6 ORDER OF CASE 50/84 R 24 As regards the six applicants resident in Belgium the main action was clearly brought after the period prescribed by the ECSC Treaty had expired. In those circumstances, to order the suspension of the operation of a Commission decision would provide a means of circumventing the mandatory rules laid down by the Treaty for instituting proceedings for a declaration of nullity. The application must therefore be dismissed as far as those applicants are concerned. 25 As regards the company Bensider, the main application was made within the prescribed period. In these proceedings relating to the application for interim measures it is unnecessary to rule, even provisionally, on Bensider's capacity to institute proceedings at the time when the main application was lodged at the Court Registry. It is sufficient to note that, even if the view most favourable to the company Bensider is adopted, that company was constituted on 9 February 1984 at the earliest. It bases its application for suspension on an alleged misuse of powers affecting it by the Commission in a a decision adopted by the latter on 23 December Since at that date the company Bensider did not exist the Commission could not have been guilty of a misuse of powers in affecting it. Accordingly, since that company has been unable to adduce factual and legal grounds establishing a prima facie case for a suspension of the operation of the contested decision, the application must also be dismissed in its case. On those grounds, THE PRESIDENT OF THE COURT, by way of an interim decision, hereby orders as follows : 1. The application is dismissed; 2. The costs are reserved. Luxembourg, 23 May 1984 P. Heim Registrar A. J. Mackenzie Stuart President 2252

ORDER OF THE PRESIDENT OF THE COURT 12 JULY 1983»

ORDER OF THE PRESIDENT OF THE COURT 12 JULY 1983» Société d'initiatives et de Coopération Agricole and Société Interprofessionnelle des Producteurs et Expéditeurs en Fruits et Légumes v Commission of the