[1]Avis juridique important
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                                 61982O0107(01)

   Order of the President of the Court of 6 May 1982. - Allgemeine
   Elektrizitäts-Gesellschaft AEG-Telefunken AG v Commission of the
   European Communities. - Case 107/82 R.
   European Court reports 1982 Page 01549
   Spanish special edition Page 00409

   [2]Parties
   [3]Subject of the case
   [4]Grounds
   [5]Operative part

Keywords

   APPLICATION FOR THE ADOPTION OF INTERIM MEASURES - SUSPENSION OF
   OPERATION - SUSPENSION OF THE ENFORCEMENT OF A DECISION INVOLVING A
   PECUNIARY PENALTY - CONDITIONS FOR THE GRANT

   ( EEC TREATY , ART . 185 AND THE FOURTH PARAGRAPH OF ART . 192 ; RULES
   OF PROCEDURE , ARTS 83 ( 2 ) AND 89 )

Parties

   IN CASE 107/82 R

   ALLGEMEINE ELEKTRICITATS-GESELLSCHAFT AEG-TELEFUNKEN AG , 1
   THEODOR-STERN-KAI , 6000 FRANKFURT AM MAIN 70 , REPRESENTED BY MARTIN
   HIRSCH AND FRITZ OESTERLE ( OF THE FIRM OF RECHTSANWALTE GLEISS , LUTZ
   , HOOTZ , HIRSCH & PARTNERS ), STUTTGART , WITH AN ADDRESS FOR SERVICE
   IN LUXEMBOURG AT THE CHAMBERS OF ERNST ARENDT , 34B RUE PHILIPPE-II ,

   APPLICANT ,

   V

   COMMISSION OF THE EUROPEAN COMMUNITIES , REPRESENTED BY CHRISTOPH BALL
   AND DR GOTZ ZUR HAUSEN , MEMBERS OF THE LEGAL DEPARTMENT OF THE
   COMMISSION , ACTING AS AGENT , WITH AN ADDRESS FOR SERVICE IN
   LUXEMBOURG AT THE OFFICE OF ORESTE MONTALTO , A MEMBER OF THE
   COMMISSION ' S LEGAL DEPARTMENT , JEAN MONNET BUILDING , KIRCHBERG ,

   DEFENDANT ,

Subject of the case

   APPLICATION FOR A SUSPENSION OF OPERATION AND , IN ANY CASE , OF THE
   ENFORCEMENT OF THE COMMISSION ' S DECISION OF 6 JANUARY 1982 (
   IV/28.748 - AEG-TELEFUNKEN ),

Grounds

   1 IT IS TRUE THAT ACCORDING TO ITS WORDING , THE APPLICATION FOR THE
   ADOPTION OF INTERIM MEASURES IS INTENDED TO PREVENT ENFORCEMENT WITHIN
   THE MEANING OF ARTICLE 192 OF THE TREATY AND THAT SUCH PROCEEDINGS ,
   WHICH MUST BE HEARD BEFORE THE NATIONAL COURTS , HAVE NOT YET BEEN
   INSTITUTED BY THE COMMISSION . HOWEVER , IT IS REASONABLE IN THE
   CIRCUMSTANCES OF THE CASE TO CONSIDER THAT THE APPLICATION ALSO SEEKS
   SUSPENSION OF THE OPERATION OF THE CONTESTED DECISION , WHICH , IF
   GRANTED , WOULD PREVENT ENFORCEMENT , AS A PRECAUTIONARY MEASURE .

   2 MOREOVER , IT IS EVIDENT THAT THE COMMISSION IS PREPARED TO SUSPEND
   OPERATION OF THE DECISION PURSUANT BOTH TO ARTICLE 83 AND TO ARTICLE 89
   OF THE RULES OF PROCEDURE , PROVIDED THAT A BANK GUARANTEE IS FURNISHED
   AND THAT THE APPLICANT AGREES TO PAY DEFAULT INTEREST IF , ON
   CONCLUSION OF THE MAIN PROCEEDINGS , IT IS STILL ORDERED TO PAY A FINE
   . FINALLY , IT APPEARS THAT THE SECURITY , WHICH ALSO COVERS THE
   INTEREST , HAS BEEN FURNISHED IN THE MEANTIME , WHICH EXPLAINS WHY THE
   ORIGINAL APPLICATION HAS BEEN CHANGED INTO AN APPLICATION FOR AN ORDER
   FOR THE RETURN OF THE BOND . ON 17 MARCH 1982 , THE APPLICANT ' S BANK
   SENT THE COMMISSION A LETTER IN WHICH IT DECLARED ITS WILLINGNESS TO
   STAND SURETY FOR THE APPLICANT VIS-A-VIS THE COMMISSION , IRREVOCABLY
   UNDERTAKING ' ' TO PAY THE MAXIMUM AMOUNT OF DM 2 445 780 ( TWO MILLION
   , FOUR HUNDRED AND FORTY-FIVE THOUSAND , SEVEN HUNDRED AND EIGHTY
   DEUTSCH MARKS ) PLUS INTEREST CALCULATED ON THE BASIS OF THE DEUTSCHE
   BUNDESBANK DISCOUNT RATE PLUS 1% ' ' , IN THE EVENT OF FAILURE BY THE
   APPLICANT TO FULFIL ITS OBLIGATION TO EFFECT PAYMENT AT THE APPROPRIATE
   TIME .

   3 THUS THE QUESTION ON WHICH THE PARTIES NOW DIFFER IS SOLELEY WHETHER
   OR NOT THE GRANT OF A SUSPENSION OF OPERATION MUST BE MADE SUBJECT TO
   THE TWO CONDITIONS INDICATED BY THE COMMISSION .

   4 DURING THE ORAL PROCEDURE , THE COMMISSION MAINTAINED THAT THE
   GUARANTEE FURNISHED BY THE APPLICANT ' S BANK ONLY PARTIALLY SATISFIED
   THE CONDITIONS ON WHICH IT AGREED VOLUNTARILY TO SUSPEND ENFORCEMENT OF
   THE CONTESTED DECISION . IN ITS VIEW , THE APPLICANT HAS NOT GIVEN THE
   REQUIRED COMMITMENT AS TO THE PAYMENT OF INTEREST .

   5 AT THE HEARING OF THE APPLICATION FOR THE ADOPTION OF INTERIM
   MEASURES , THE APPLICANT NEVERTHELESS EXPRESSED ITS CONSENT FOR A
   RECORD TO BE MADE OF ITS UNDERTAKING TO PAY INTEREST AS DETERMINED BY
   THE COMMISSION , SUBJECT NEVERTHELESS TO THE COURT ' S CONSIDERATION OF
   THE QUESTION WHETHER SUCH INTEREST MIGHT BE DEMANDED , A MATTER WHICH
   IT RESERVED THE RIGHT TO CONTEST , IF APPROPRIATE , IN THE COURSE OF
   THE MAIN PROCEEDINGS . THAT RESERVATION IS LAWFUL AND MUST BE ACCEPTED
   ; THE QUESTION WHETHER OR NOT INTEREST IS DUE DOES INDEED FALL WITHIN
   THE JURISDICTION OF THE COURT SEISED OF THE MAIN PROCEEDINGS .

   6 THE CIRCUMSTANCES ON THE BASIS OF WHICH THE COMMISSION HAS DEPARTED
   FROM ITS EARLIER POSITION REGARDING THE SUSPENSION OF MEASURES FOR THE
   COLLECTION OF FINES , IN CASES WHERE AN ACTION IS BROUGHT BY AN
   UNDERTAKING ON WHICH A FINE HAS BEEN IMPOSED , JUSTIFY THAT NEW
   ATTITUDE . IT IS APPROPRIATE , THEREFORE , UNLESS THERE ARE EXCEPTIONAL
   CIRCUMSTANCES , THE EXISTENCE OF WHICH THE APPLICANT HAS NOT
   DEMONSTRATED IN THIS CASE , TO MAKE THE GRANT OF THE SUSPENSION OF
   OPERATION CONDITIONAL UPON SATISFACTION OF THE TWO CONDITIONS IMPOSED
   BY THE COMMISSION . IT IS HOWEVER ALSO APPROPRIATE TO STATE THAT THOSE
   CONDITIONS HAVE BEEN SATISFIED BY THE APPLICANT IN CIRCUMSTANCES
   JUSTIFYING THE GRANT OF A SUSPENSION .

Operative part

   ON THOSE GROUNDS ,

   THE PRESIDENT ,

   BY WAY OF INTERIM DECISION ,

   HEREBY ORDERS AS FOLLOWS :

   1 . THE OPERATION OF ARTICLE 3 OF THE COMMISSION ' S DECISION OF 6
   JANUARY 1982 ( IV/28.748 AEG-TELEFUNKEN ) IS SUSPENDED SUBJECT TO THE
   MAINTENANCE OF THE SECURITY FURNISHED ON 17 MARCH 1982 IN FAVOUR OF THE
   COMMISSION .

   2.THIS ORDER CANCELS AND REPLACES THE ORDER OF 29 MARCH 1982 .

   3.THE COSTS ARE RESERVED .

References

   1. file:///../editorial/legal_notice.htm
   2. file:///tmp/lynxXXXX2Bn0pP/L110591-1057TMP.html#I1
   3. file:///tmp/lynxXXXX2Bn0pP/L110591-1057TMP.html#I2
   4. file:///tmp/lynxXXXX2Bn0pP/L110591-1057TMP.html#MO
   5. file:///tmp/lynxXXXX2Bn0pP/L110591-1057TMP.html#DI