61978O0209

IN JOINED CASES 209 TO 215 AND 218/78 R

HEINTZ VAN LANDEWYCK S.A.R.L ., REPRESENTED BY ERNEST ARENDT , AVOCAT- AVOUE , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT HIS CHAMBERS , 34 RUE PHILIPPE II ,

FEDERATION BELGO-LUXEMBOURGEOISE DES INDUSTRIES DU TABAC A.S.B.L ., ( FEDETAB ), REPRESENTED BY LEON GOFFIN AND ANTOINE BRAUN , OF THE BRUSSELS BAR , OF 6 DREVE DES RENARDS , UCCLE ( 1180 BRUSSELS ) AND 116 AVENUE DE BROQUEVILLE , WOLUWE SAINT LAMBERT ( 1200 BRUSSELS ), RESPECTIVELY , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

ETABLISSEMENTS GOSSET , S.A ., REPRESENTED BY WALTER VAN GERVEN AND JEAN- FRANCOIS BELLIS , OF THE BRUSSELS BAR , 47 RUE DUCALE , 1000 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

B.A.T . BENELUX , S.A ., REPRESENTED BY PHILIPPE-FRANCOIS LEBRUN , OF THE BRUSSELS BAR , 31 RUE MONTOYER , BTE . 2 , 1040 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

COMPAGNIE INDEPENDANTE DES TABACS CINTA S.A ., REPRESENTED BY EDOUARD JAKHIAN AND BERNARD HANOTIAU , OF THE BRUSSELS BAR , OF 56 AND 82 RESPECTIVELY , AVENUE F . D . ROOSEVELT , 1050 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

WELTAB S.A ., REPRESENTED BY PIERRE VAN OMMESLAGHE , OF THE BRUSSELS BAR , 167 AVENUE MONTJOIE , 1180 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

JUBILE S.A ., REPRESENTED BY HANS G . KEMMLER , BARBARA RAPP-JUNG AND ALEXANDER BOHLKE , 8 MEISENGASSE , 6 FRANKFURT AM MAIN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

VANDER ELST S.A ., REPRESENTED BY HANS G . KEMMLER , BARBARA RAPP-JUNG AND ALEXANDER BOHLKE , 8 MEISENGASSE , 6 FRANKFURT AM MAIN , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

APPLICANTS ,

SUPPORTED BY :

ASSOCIATION DES DETAILLANTS EN TABAC A.S.B.L ., REPRESENTED BY JEAN-REGNIER THYS , OF THE BRUSSELS BAR , 356 AVENUE A . J . SLEYERS , 1200 BRUSSELS , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF THE SAID ERNEST ARENDT ,

AND

ASSOCIATION NATIONALE DES GROSSISTES EN PRODUITS MANUFACTURES DU TABAC , A TRADE ASSOCIATION , REPRESENTED BY JEAN-MARIE VAN HILLE AND NADINE FRANCOISE , OF THE GHENT BAR , 91 COUPURE , GHENT , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF FERNARD ENTRINGER , 2 RUE DU PALAIS DE JUSTICE ,

INTERVENERS ,

V

COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY ITS LEGAL ADVISER , B . VAN DER ESCH , ACTING AS AGENT , ASSISTED BY J . FR . VERSTRYNGE AND G . ZUR HAUSEN , MEMBERS OF THE LEGAL DEPARTMENT OF THE COMMISSION , WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF MARIO CERVINO , JEAN MONNET BUILDING , KIRCHBERG ,

DEFENDANT ,

1THE APPLICATIONS FOR THE ADOPTION OF INTERIM MEASURES SEEK A STAY OF EXECUTION OF ARTICLES 2 AND 3 OF THE COMMISSION DECISION .

2IN THE PREAMBLE TO THE DECISION ( RECITAL ( 123 )) THE COMMISSION ITSELF RECOGNIZES THE POSSIBILITY THAT COMPETITION MAY DRIVE CERTAIN TRADERS OUT OF THE MARKET IN QUESTION .

3ACCORDINGLY THE POSSIBILITY OF IMMEDIATE AND IRREVERSIBLE DAMAGE CANNOT BE EXCLUDED .

4IT IS ACCORDINGLY APPROPRIATE IN PURSUANCE OF ARTICLE 185 OF THE EEC TREATY TO ORDER THAT THE APPLICATION OF ARTICLES 2 AND 3 OF THE DECISION IN DISPUTE BE SUSPENDED PENDING JUDGMENT BY THE COURT IN THE MAIN ACTION WHICH CAN IN NO WAY BE PREJUDICED .

5SUCH STAY HOWEVER IN NO WAY MAKES PROVISIONALLY VALID ANY AGREEMENT OR CONCERTED PRACTICE DECLARED NULL AND VOID UNDER ARTICLE 85 ( 1 ) SUBJECT AS PROVIDED IN ARTICLE 85 ( 2 ), SINCE THE COURT TO WHICH APPLICATION IS MADE FOR THE ADOPTION OF INTERIM MEASURES CANNOT SUBSTITUTE ITS DISCRETION FOR THAT OF THE COMMISSION .

6EVERY MEMBER OF FEDETAB IS FREE TO DISREGARD AT ANY TIME THE RULES AGREED BY THE FEDETAB RECOMMENDATION OF 1 DECEMBER 1975 .

7IN THE CIRCUMSTANCES COSTS MUST BE RESERVED .

ON THOSE GROUNDS ,

THE PRESIDENT ,

AS AN INTERLOCUTORY DECISION ,

HEREBY ORDERS AS FOLLOWS :

( 1 ) THE APPLICATION OF ARTICLES 2 AND 3 OF COMMISSION DECISION NO . 78/670/EEC OF 20 JULY 1978 -

( IV/28.852 - GB-INNO-BM/FEDETAB ;

IV/29.127 - MESTDAGH-HUYGHEBAERT/FEDETAB AND

IV/29.149 - FEDETAB RECOMMENDATION ) -

SHALL BE SUSPENDED PENDING FINAL JUDGMENT BY THE COURT .

( 2 ) FEDETAB SHALL INFORM ALL ITS MEMBERS OF THE CONTENTS OF THIS ORDER .

( 3 ) COSTS ARE RESERVED .