Court of Justice 03-04-1974 ECLI:EU:C:1974:33

Facts

Following a procedure initiated on the basis of Article 85 of the EEC Treaty the Commission, by Decision of 21 December 1973 (IV/795 — Kali und Salz/Kali Chemie — OJEC of 23 January 1974, page 22), ordered the undertakings Kali und Salz AG (hereinafter referred to as KS) and Kali-Chemie AG (hereinafter referred to as KC) to end the infringement constituted by the agreement concluded on 6 July 1970 between these two undertakings and relating to the sale by KS of pure potassic fertilisers produced by KC.

The two undertakings both brought an action for the annulment of this Decision of the Commission, which they lodged on 12 March 1974 at the Registry of the Court under numbers 19 and 20/74.

On 27 March KC made, by a separate document, an application for an interim measure to suspend the operation of Article 3 of the contested Decision, by means of which the Commission ordered the undertakings to end the infringement the existence of which it alleges to have established.

This application comprises three arguments; the first points out the ‘incalculable’ risks which KC would take by continuing its sales to KS under threat of possible Community penalties.

KC points out, secondly, the dangerous alternative with which it is confronted and which obliges it either to stop, entirely or at least in part, its production of potash, or to create the conditions necessary for it to market its own products, by tying up, for this purpose, substantial investment disproportionate to the expected results.

KC is thus faced, in its opinion, with the need to make a choice and to take decisions capable, in view of the risk which they involve, of causing it irreparable damage due to the closure of mines, to certain problems relating to the labour force, which must be laid off at the present time and reinstated later if the need should arise, to the tying-up of investment disproportionate to the expected result and to the irreversible nature both of decisions which have necessarily a long term effect, and of the loss of a secure clientele.

Finally, KC invokes the element of uncertainty surrounding the continued exploitation of the mine the production of which is in question in this case.

Having thus attempted to demonstrate the exceptional nature of the circumstances to which it is subject, KC explains that an urgent measure is necessary to suspend the operation of the Commission's Decision, as immediate operation of the latter would be likely to substantiate all the potential dangers set out above.

In its statement submitted on 2 April 1974, the Commission replies that according to the case law of the Court, the conditions for granting a stay of operation must be rigorously examined.

In this case, it seems highly debatable, in its opinion, whether the applicant has furnished sufficient evidence of the necessity and urgency of the interim measure applied for.

The Commission states, first, that the ambit of the Decision taken is clear and it does not leave the applicant in any legal uncertainty.

Following this Decision, the applicant has, in the Commission's opinion, other possibilities open to it than to cease production or to search for new outlets for the product in question, as distribution of the latter could be carried out on a parallel basis with that of other types of production which are at the present time distributed directly by the applicant.

As regards the position of the mine in question, the new argument put forward bv the applicant could not be taken into account in the Commission's Decision and it has been so far impossible to examine the validity of the experts' reports; the Commission therefore leaves the matter to the wisdom of the Court, while pointing out that this argument does not concern the legality of its Decision and on a preliminary reading it does not seem to be relevant.

The parties were heard on 3 April 1974. KC emphasized, firstly, the impossibility of selling pure potash and processed fertiliser at the same time; secondly, the fact that the potash in dispute cannot be compared with a product of marketable quality; and, lastly, the fact that fluctuations in production and sales prevent the creation of adequate storage capacity.

The Commission asserts that the separate sale of pure potash is possible both within the Community and in third countries.

The creation of storage capacity is a problem which can be solved in practice without large scale investment. The Commission recognizes however that the investment necessary cannot be accurately calculated at the present time.

Law

The future of KC could be irreparably damaged if the Decision taken was immediately put into effect, since there is no ready safeguard against the risks involved for the exploitation of the mine and those relating to the hurried reconversion of the undertaking.

It seems probable that such a reconversion would be irreversible.

Because of the possibilities offered by the Rules of Procedure of the Court the settlement of the main action can be expected to take place within a short time.