Avis juridique important

Order of the President of the Court of 16 January 1975. - Johnson & Firth Brown Ltd v Commission of the European Communities. - Case 3-75 R. European Court reports 1975 Page 00001

Parties Grounds Decision on costs Operative part

++++

IN CASE 3/75 R

JOHNSON AND FIRTH BROWN LTD . OF SMITHFIELD HOUSE, BLONK STREET, SHEFFIELD, REPRESENTED BY PETER WEBSTER, QUEEN'S COUNSEL, OF THE MIDDLE TEMPLE AND INNER TEMPLE; FRANCIS JACOBS, BARRISTER, OF THE MIDDLE TEMPLE, AND DAVID F . HALL, SOLICITOR, OF LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS ELVINGER AND HOSS, 84 GRAND'RUE, APPLICANT,

V

COMMISSION OF THE EUROPEAN COMMUNITIES, 200, RUE DE LA LOI, BRUSSELS, REPRESENTED BY D . R . GILMOUR, LEGAL ADVISER, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF PIERRE LAMOUREUX, LEGAL ADVISER TO THE COMMISSION, 4 BOULEVARD ROYAL, DEFENDANT,

HAMBROS BANK LTD . AND JESSEL SECURITIES LTD ., OF LONDON, REPRESENTED BY RICHARD YORK, QUEEN'S COUNSEL, KONRAD SCHIEMANN, BARRISTER, BOTH OF GRAY'S INN AND THE INNER TEMPLE, AND MICHAEL LEE, SOLICITOR, OF LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF MESSRS WALTER AND LOESCH, 2 RUE GOETHE;

AND

BRITISH STEEL CORPORATION, REPRESENTED BY MARK WALLER, BARRISTER, OF GRAY'S INN, AND LAWRENCE COLLINS, SOLICITOR, OF LONDON, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE CHAMBERS OF E . ARENDT, 34 B RUE PHILIPPE II, INTERVENING,

1 ALTHOUGH CERTAIN OF THE GROUNDS ON WHICH THE SUBSTANTIVE APPLICATION IS MADE APPEAR, ON FIRST EXAMINATION, NOT TO BE MANIFESTLY WITHOUT FOUNDATION AND THUS MAKE IT IMPOSSIBLE TO DISMISS THE PRESENT APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, NEVERTHELESS IT IS NECESSARY THAT THE MEASURES APPLIED FOR SHOULD APPEAR TO BE URGENTLY REQUIRED .

2 IN THIS REGARD, THE APPLICATION FOR THE SUSPENSION OF OPERATION OF THE DECISION IN QUESTION IS INTENDED TO AVOID IRREVERSIBLE DAMAGE TO JFB IN THE EVENT OF THAT DECISION BEING DECLARED VOID BY THE COURT .

3 TO GRANT THE APPLICATION WOULD RESULT IN MAKING THE CREDITORS OF JSL, WHO ARE ENTITLED TO A CONSIDERABLE QUANTITY OF SHARES IN JFB, SUFFER DAMAGE AT LEAST AS SERIOUS AND AS IRREPARABLE AS THAT WHICH THE LATTER FOUNDS UPON .

4 THOSE CREDITORS MAY INDEED HAVE THE GREATEST INTEREST IN SELLING AS SOON AS POSSIBLE THE SHARES WHICH CONSTITUTE THEIR SECURITY AND THIS THEY WOULD BE PREVENTED FROM DOING IF THE OPERATION OF THE COMMISSION'S DECISION, WHICH IS, AFTER ALL, PROVISIONALLY ENFORCEABLE HAVING REGARD TO ARTICLE 39 OF THE ESCS TREATY, WERE TO BE SUSPENDED .

5 THE APPLICATION FOR SUSPENSION OF OPERATION OF THAT DECISION SHOULD ACCORDINGLY BE REFUSED .

6 IT REMAINS NONE THE LESS NECESSARY TO LIMIT THE DAMAGE WHICH JFB MIGHT SUFFER FROM THE PROVISIONAL OPERATION OF THE DECISION OF THE COMMISSION IF, BY REASON OF THE ASSUMPTION OF CONTROL BY BSC, THE SUBSTANTIVE APPLICATION WERE TO ESCAPE CONSIDERATION BY THE COURT OR IF IMPORTANT DECISIONS AS TO THE FUTURE OF THE UNDERTAKING WERE TO RESULT FROM THAT ASSUMPTION OF CONTROL .

7 IT IS THEREFORE APPROPRIATE TO MAKE THE OPERATION OF THE COMMISSION'S DECISION SUBJECT TO TWO CONDITIONS DESIGNED TO KEEP THE POSITION AS STABLE AS POSSIBLE IN THE INTERESTS OF ALL PARTIES UNTIL JUDGMENT ON THE SUBSTANTIVE APPLICATION - THAT IS TO SAY FIRST THE NON-EXERCISE BY BSC OF THE VOTING RIGHTS ATTACHED TO ANY SHARES THAT IT MAY ACQUIRE IN JFB AND ON OTHER HAND THE SUSPENSION OF OPERATION OF ARTICLE 2 ( 1 ) OF THE DECISION UNTIL THAT JUDGMENT IS DELIVERED .

8 IN THE CIRCUMSTANCES IT IS APPROPRIATE TO RESERVE COSTS .

THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN

COMMUNITIES HEREBY ORDERS :

1 . THE APPLICATION FOR SUSPENSION OF OPERATION OF THE DECISION OF THE COMMISSION OF 5 DECEMBER 1974 ( COM . 74 - 2087 ) IS REFUSED;

2 . HOWEVER, THE OPERATION OF THE COMMISSION'S DECISION SHALL BE SUBJECT, UNTIL JUDGMENT ON THE SUBSTANTIVE APPLICATION, TO TWO CONDITIONS : - THE NON-EXERCISE BY BSC OF THE VOTING RIGHTS ATTACHED TO ANY SHARES WHICH IT MAY ACQUIRE IN JFB;

- THE SUSPENSION OF THE OPERATION OF ARTICLE 2 ( 1 ) OF THE DECISION;

3 . THE COSTS ARE RESERVED .