CJEC, president, May 6, 1982, No 107-82 R

THE COURT,

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-à-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 fulfill its obligation to effect payment at the appropriate time.

3 Thus the question on which the parties now differ is solely 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.

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.