Summary
Parties
Grounds
Operative part
Keywords
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APPLICATION FOR INTERIM MEASURES - SUSPENSION OF OPERATION OF A DECISION - CONDITIONS - SERIOUS AND IRREPARABLE DAMAGE TO THE APPLICANT
( EEC TREATY ART . 185; RULES OF PROCEDURE ART . 83 ( 2 ) )
Summary
THE REQUIREMENT OF URGENCY LAID DOWN IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE FOR THE GRANT OF INTERIM MEASURES MUST BE ASSESSED IN THE LIGHT OF THE EXTENT TO WHICH AN INTERLOCUTORY ORDER IS NECESSARY IN ORDER TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THE ADOPTION OF THE INTERIM MEASURE . CONSEQUENTLY, THAT PARTY MUST FURNISH PROOF THAT HE CANNOT AWAIT THE CONCLUSION OF THE MAIN ACTION WITHOUT PERSONALLY SUFFERING DAMAGE WHICH WOULD HAVE SERIOUS AND IRREPARABLE EFFECTS FOR HIM .
Parties
IN CASE 142/87 R
KINGDOM OF BELGIUM, REPRESENTED BY ITS AGENT, R . HOEBAER, DIRECTOR AT THE MINISTRY OF FOREIGN AFFAIRS, EXTERNAL TRADE AND COOPERATION WITH DEVELOPING COUNTRIES, ASSISTED BY L . MATRAY AND C . HANOT, BOTH OF THE LIEGE BAR, AND BY G . SCHUBERT, OF THE COLOGNE BAR, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE BELGIAN EMBASSY, 4 RUE DES GIRONDINS,
APPLICANT,
V
COMMISSION OF THE EUROPEAN COMMUNITIES, REPRESENTED BY ITS AGENTS, A . ABATE AND H . VAN LIER, MEMBERS OF ITS LEGAL DEPARTMENT, WITH AN ADDRESS FOR SERVICE IN LUXEMBOURG AT THE OFFICE OF G . KREMLIS, JEAN MONNET BUILDING, KIRCHBERG,
DEFENDANT,
APPLICATION FOR THE ADOPTION OF AN INTERIM MEASURE SUSPENDING THE OPERATION OF THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 ( FILE NO C ( 87 ) 507 ) ON AID GRANTED BY THE BELGIAN GOVERNMENT TO A STEEL-TUBE UNDERTAKING IN SO FAR AS THE DECISION REQUIRES THE KINGDOM OF BELGIUM TO RECOVER THE SUMS REFERRED TO IN THE FIRST PARAGRAPH THEREOF FROM TUBEMEUSE SA ( HEREINAFTER REFERRED TO AS "TUBEMEUSE "),
THE PRESIDENT OF THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES
MAKES THE FOLLOWING
ORDER
Grounds
1 BY AN APPLICATION LODGED AT THE COURT REGISTRY ON 8 MAY 1987, THE KINGDOM OF BELGIUM BROUGHT AN ACTION UNDER THE FIRST PARAGRAPH OF ARTICLE 173 OF THE EEC TREATY FOR A DECLARATION THAT THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 ON AID GRANTED BY THE BELGIAN GOVERNMENT TO A STEEL-TUBE UNDERTAKING, WHICH WAS NOTIFIED TO THE GOVERNMENT ON 6 MARCH 1987, IS VOID . BY THAT DECISION, TAKEN PURSUANT TO THE FIRST SUBPARAGRAPH OF ARTICLE 93 ( 2 ) OF THE EEC TREATY, THE COMMISSION FOUND AS FOLLOWS :
THE GRANT OF AID AMOUNTING TO BFR 9*085 THOUSAND MILLION TO WHICH THE LETTERS OF THE BELGIAN GOVERNMENT OF 19 JULY 1984 AND 29 JULY 1985 RELATE WAS UNLAWFUL SINCE ITS GRANT TO TUBEMEUSE INFRINGED ARTICLE 93 ( 3 ) OF THE EEC TREATY, AND WAS INCOMPATIBLE WITH THE COMMON MARKET UNDER ARTICLE 92 OF THE EEC TREATY;
THE GRANT OF AID TO TUBEMEUSE AMOUNTING TO BFR 3*010 THOUSAND MILLION, TO WHICH THE LETTER OF THE BELGIAN GOVERNMENT OF 6 JUNE 1986 RELATES, WAS INCOMPATIBLE WITH THE COMMON MARKET UNDER ARTICLE 92 OF THE EEC TREATY AND WAS UNLAWFUL, AS REGARDS BFR 2*510 THOUSAND MILLION, SINCE THE GRANT OF SUCH AN AMOUNT INFRINGED ARTICLE 93 ( 3 ) OF THE EEC TREATY .
CONSEQUENTLY, IT REQUIRED THE KINGDOM OF BELGIUM TO RECOVER THE AID FROM TUBEMEUSE, AND INFORMED IT THAT THE STEPS TO COMPLY WITH THAT REQUIREMENT HAD TO BE TAKEN WITHIN TWO MONTHS OF THE DATE ON WHICH THE DECISION WAS NOTIFIED TO IT .
2 BY AN APPLICATION FOR INTERIM MEASURES LODGED AT THE COURT REGISTRY ON THE SAME DAY THE APPLICANT SOUGHT AN ORDER UNDER ARTICLE 185 OF THE EEC TREATY AND ARTICLE 83 OF THE RULES OF PROCEDURE SUSPENDING THE OPERATION OF THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 IN SO FAR AS IT REQUIRES THE KINGDOM OF BELGIUM TO RECOVER FROM TUBEMEUSE THE SUMS REFERRED TO THEREIN, UNTIL THE COURT HAS GIVEN JUDGMENT IN THE MAIN ACTION .
3 THE DEFENDANT SUBMITTED ITS WRITTEN OBSERVATIONS ON 27 MAY 1987 . THE PARTIES PRESENTED ORAL ARGUMENT ON 9 JUNE 1987 .
4 BEFORE CONSIDERING WHETHER THIS APPLICATION FOR INTERIM MEASURES IS WELL-FOUNDED, IT MAY BE HELPFUL TO PROVIDE A BRIEF DESCRIPTION OF THE VARIOUS STAGES PRECEDING THE ADOPTION BY THE COMMISSION OF ITS DECISION OF 4 FEBRUARY 1987 .
5 ON 19 JULY 1984 THE APPLICANT NOTIFIED THE COMMISSION IN ACCORDANCE WITH ARTICLE 93 ( 3 ) OF THE EEC TREATY OF ITS INTENTION TO INCREASE THE CAPITAL OF TUBEMEUSE, A TUBE MANUFACTURER IN THE LIEGE DISTRICT, BY BFR 1*800 MILLION AND TO SUBSCRIBE FOR CONVERTIBLE BONDS WITH CONDITIONAL PROFIT-SHARING AMOUNTING TO BFR 2*200 MILLION . THE COMMISSION ALSO DISCOVERED THAT TUBEMEUSE HAD ALREADY BENEFITED FROM OTHER ASSISTANCE FROM PUBLIC FUNDS WITHOUT ITS HAVING BEEN NOTIFIED THEREOF IN ACCORDANCE WITH ARTICLE 93 ( 3 ) OF THE EEC TREATY .
6 SINCE THE COMMISSION CONSIDERED AFTER AN INITIAL EXAMINATION OF THE CIRCUMSTANCES THAT THE AID WHICH AMOUNTED IN TOTAL TO BFR 9*085 THOUSAND MILLION COULD NOT BE REGARDED AS COMPATIBLE WITH THE COMMON MARKET WITHIN THE MEANING OF ARTICLE 92 OF THE EEC TREATY, IT DECIDED TO INITIATE THE PROCEDURE PROVIDED FOR BY THE FIRST SUBPARAGRAPH OF ARTICLE 93 ( 2 ) OF THE EEC TREATY AND GAVE NOTICE TO THE BELGIAN GOVERNMENT, THE OTHER MEMBER STATES AND THIRD PARTIES WITH AN INTEREST IN THE MATTER TO SUBMIT THEIR OBSERVATIONS . DESPITE THE INITIATION OF THAT PROCEDURE THE APPLICANT PROCEEDED ON 19 JULY 1984 TO GRANT THE AID PROPOSED IN ITS NOTIFICATION TO THE COMMISSION .
7 ON 6 JUNE 1986 THE BELGIAN GOVERNMENT ALSO NOTIFIED THE COMMISSION OF ITS PROPOSAL TO GRANT AID TO THE SAME UNDERTAKING FOR CONVERTING GUARANTEED LOANS OF BFR 3*010 THOUSAND MILLION INTO CAPITAL, IN RESPECT OF WHICH THE COMMISSION ALSO TOOK THE VIEW THAT IT WAS NECESSARY TO INITIATE THE PROCEDURE PROVIDED FOR BY THE FIRST SUBPARAGRAPH OF ARTICLE 93 ( 2 ) OF THE EEC TREATY . DESPITE THE INITIATION OF THAT PROCEDURE THE BELGIAN GOVERNMENT CONVERTED GUARANTEED LOANS OF BFR 2*510 THOUSAND MILLION INTO CAPITAL .
8 THE PROCEDURES WERE BROUGHT TO A CONCLUSION BY THE ADOPTION BY THE COMMISSION OF ITS DECISION OF 4 FEBRUARY 1987 .
9 IN ORDER TO HAVE A FULL VIEW OF THE PROBLEMS RAISED BY THIS APPLICATION FOR THE ADOPTION OF INTERIM MEASURES, IT IS ALSO NECESSARY TO PROVIDE A BRIEF DESCRIPTION OF THE PRESENT POSITION OF TUBEMEUSE WITH REGARD TO BELGIAN LAW, THE LEGAL CONSEQUENCES OF THAT POSITION AND THE SIGNIFICANCE OF THOSE CONSEQUENCES FOR THIS CASE .
10 AT THE MOMENT TUBEMEUSE IS SUBJECT TO A SCHEME OF COMPOSITION AS A RESULT OF AN APPLICATION IT MADE TO THAT EFFECT BEFORE THE TRIBUNAL DE COMMERCE (( COMMERCIAL COURT )), LIEGE, ON 21 OCTOBER 1986 . AS THAT APPLICATION WAS DECLARED ADMISSIBLE BY JUDGMENT OF 28 OCTOBER 1986 AND AS THE REPORT DRAWN UP BY THE BANKRUPTCY JUDGES APPOINTED BY THE COURT STATED THAT TUBEMEUSE SATISFIED THE LEGAL REQUIREMENTS FOR SECURING SUCH A SCHEME, THE COMPOSITION PROCEDURE TOOK ITS COURSE AND RESULTED IN THE TRIBUNAL DE COMMERCE, LIEGE, APPROVING THE SCHEME OF COMPOSITION BY JUDGMENT OF 10 MARCH 1987 AFTER ESTABLISHING THAT THE REQUIREMENTS OF MISFORTUNE AND GOOD FAITH ON THE PART OF TUBEMEUSE HAD BEEN SATISFIED, THAT 95.4% OF ITS CREDITORS REPRESENTING 82% OF ITS LIABILITIES HAD VOTED IN FAVOUR OF THE SCHEME AND THAT THE SCHEME TOOK ACCOUNT OF THE CREDITORS' INTERESTS . BY THAT JUDGMENT THE TRIBUNAL DE COMMERCE ALSO APPOINTED LIQUIDATORS CHARGED WITH THE SALE OF ITS ASSETS AND THE DISTRIBUTION OF THE PROCEEDS OF SUCH SALE . AN APPEAL AGAINST THE JUDGMENT APPROVING THE SCHEME WAS BROUGHT BY A NUMBER OF CREDITORS BUT AS THE JUDGMENT WAS PROVISIONALLY ENFORCEABLE THE PROCESS OF WINDING UP TUBEMEUSE NEVERTHELESS BEGAN .
11 AS REGARDS THE LEGAL EFFECTS OF THE SCHEME OF COMPOSITION, IT MUST BE EMPHASIZED THAT SUCH A SCHEME IS A COLLECTIVE WINDING UP OF A COMMERCIAL UNDERTAKING WHEREBY A DEBTOR, THE VICTIM OF MISFORTUNE, PROPOSES IN GOOD FAITH TO HIS CREDITORS THAT HE WILL RENOUNCE ALL HIS PROPERTY IN ORDER THAT THEY MAY BE PAID FROM THE PROCEEDS OF THEIR SALE WHICH IS CARRIED OUT BY LIQUIDATORS APPOINTED BY THE COURT . HOWEVER, THE DEBTOR' S RELEASE IS NOT TOTAL BECAUSE IF HIS CIRCUMSTANCES IMPROVE HE IS OBLIGED TO DISCHARGE THE RESIDUE OF THE AMOUNTS OWED . IF A SCHEME OF COMPOSITION IS SOUGHT AND APPROVED, AS IN THIS CASE, ONLY THOSE CREDITORS WITH SPECIAL PREFERENTIAL RIGHTS, IN THIS CASE THE PLEDGE HOLDERS, THE MORTGAGEES OR THE SPECIAL PREFERENTIAL CREDITORS MAY ENFORCE THEIR PLEDGE, MORTGAGE OR SPECIAL PREFERENTIAL RIGHT . BY CONTRAST, UNSECURED CREDITORS MAY NO LONGER ENFORCE THEIR RIGHTS BECAUSE THE FILING OF THE PETITION FOR A SCHEME OF COMPOSITION AUTOMATICALLY ENTAILS THE TEMPORARY SUSPENSION FOR THE DEBTOR' S BENEFIT OF ALL SUBSEQUENT ENFORCEMENT MEASURES ACCORDING TO ARTICLE 5 OF THE LAW OF 25 SEPTEMBER 1946 ON COURT COMPOSITIONS . ARTICLE 11 OF THE LAW PROVIDES ON THE OTHER HAND THAT DURING THE PROCEEDINGS FOR A COURT COMPOSITION THE DEBTOR MAY NOT DISPOSE OF OR MORTGAGE HIS PROPERTY, OR ENTER INTO ANY BINDING AGREEMENTS WITH REGARD TO IT WITHOUT THE CONSENT OF THE BANKRUPTCY JUDGE .
12 ACCORDING TO ARTICLE 185 OF THE EEC TREATY ACTIONS BROUGHT BEFORE THE COURT OF JUSTICE DO NOT HAVE SUSPENSORY EFFECT . THE COURT OF JUSTICE MAY, HOWEVER, IF IT CONSIDERS THAT CIRCUMSTANCES SO REQUIRE, ORDER THAT APPLICATION OF THE CONTESTED ACT BE SUSPENDED .
13 ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE PROVIDES THAT AN APPLICATION FOR INTERIM MEASURES MUST STATE THE FACTUAL AND LEGAL GROUNDS ESTABLISHING A PRIMA FACIE CASE FOR THE INTERIM MEASURES APPLIED FOR AND THE CIRCUMSTANCES GIVING RISE TO URGENCY .
14 IT IS NECESSARY TO EXAMINE IN THE FIRST PLACE THE CIRCUMSTANCES WHICH THE APPLICANT ALLEGES GIVE RISE TO URGENCY . THE COURT HAS CONSISTENTLY HELD THAT THE URGENCY OF AN APPLICATION IS SHOWN BY THE IMMINENCE OF SERIOUS AND IRREPARABLE DAMAGE .
15 IN THAT CONNECTION THE APPLICANT CONTENDS THAT THE ONLY WAY OPEN TO IT UNDER BELGIAN LAW TO GIVE EFFECT TO THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 IS TO SUBMIT A STATEMENT OF INDEBTEDNESS IN RESPECT OF THAT DECISION WITHIN THE FRAMEWORK OF THE PROCEEDINGS FOR A COURT COMPOSITION . IN LEGAL TERMS SUCH A STATEMENT OF INDEBTEDNESS MAY STILL BE SUBMITTED EVEN THOUGH THE TRIBUNAL DE COMMERCE, LIEGE, APPROVED THE SCHEME AND APPOINTED THE LIQUIDATORS BY ITS JUDGMENT OF 10 MARCH 1987 .
16 HOWEVER, IT EMPHASIZES THAT SUCH A STEP WOULD RAISE TWO PROBLEMS AND WOULD ENTAIL THE RISK THAT THE PROCEEDINGS FOR A COURT COMPOSITION WOULD BE ANNULLED AND THAT TUBEMEUSE WOULD IMMEDIATELY BECOME BANKRUPT, WHICH WOULD CAUSE IMMEDIATE AND IRREPARABLE DAMAGE NOT ONLY TO TUBEMEUSE BUT ALSO TO ITS CREDITORS .
17 THE FIRST PROBLEM RAISED BY SUCH A STATEMENT OF INDEBTEDNESS WOULD RELATE TO ITS ACCEPTANCE AS PART OF THE TOTAL LIABILITIES OF TUBEMEUSE . THERE IS A RISK THAT SUCH A STATEMENT WOULD BE REJECTED BY THE LIQUIDATORS OR, IN CASE OF DISPUTE, BY THE TRIBUNAL DE COMMERCE ON THE GROUND THAT IT IS IN BREACH OF BELGIAN PUBLIC POLICY . THE DEBT WHICH THE BELGIAN STATE WOULD CLAIM IN ORDER TO COMPLY WITH THE OBLIGATION TO RECOVER THE AID IMPOSED UPON IT BY THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 WOULD IN REALITY BE INTENDED TO ENABLE THE BELGIAN STATE, A SHAREHOLDER IN TUBEMEUSE, TO RECOVER THE CAPITAL IT INVESTED IN A COMPANY WHICH IS SUBJECT TO A SCHEME OF COMPOSITION, TO THE DETRIMENT OF THE COMPANY' S OTHER CREDITORS . IN THE OPINION OF THE BELGIAN STATE THERE IS NO DOUBT THAT SINCE BELGIAN LAW LAYS DOWN THE FUNDAMENTAL PRINCIPLE THAT A COMPANY' S CAPITAL CONSTITUTES THE COMMON SECURITY FOR THE CREDITORS, ANY RECOVERY OF A DEBT WHICH WOULD PUT A SHAREHOLDER AND THE COMPANY' S CREDITORS ON AN EQUAL FOOTING WOULD BE CONTRARY TO BELGIAN PUBLIC POLICY, WHEREAS THE CAPITAL INVESTED BY A SHAREHOLDER CAN BE RECOVERED IN BELGIAN LAW ONLY ONCE ALL THE CREDITORS HAVE BEEN SATISFIED AND NOT IN COMPETITION WITH THEM .
18 THE SECOND PROBLEM ARISES FROM THE PROCEEDINGS FOR A COURT COMPOSITION THEMSELVES AND THE RULES GOVERNING SUCH PROCEEDINGS . IF THE BELGIAN STATE WERE TO ENFORCE THE DEBT AGAINST TUBEMEUSE IT WOULD HAVE TO COMPLY WITH THE RULES OF BELGIAN LAW INCLUDING THOSE GOVERNING PROCEEDINGS FOR A COURT COMPOSITION . IT WOULD THEREFORE BE POSSIBLE FOR TUBEMEUSE AND ITS CREDITORS TO RELY ON THE VARIOUS JUDGMENTS GIVEN WITHIN THE FRAMEWORK OF SUCH PROCEEDINGS AGAINST THE BELGIAN STATE . CONSEQUENTLY, ACCORDING TO BELGIAN LAW THE COMMISSION' S DECISION COULD SERVE, WITH REGARD TO THE BELGIAN STATE, ONLY AS THE BASIS FOR AN UNSECURED DEBT OWED BY TUBEMEUSE SINCE A SHAREHOLDER SUCH AS THE BELGIAN STATE ENJOYS NO SPECIAL PREFERENTIAL RIGHTS AGAINST THE COMPANY TO RECOVER ITS CAPITAL CONTRIBUTION OR AMOUNTS OWED UNDER A LOAN . THE BELGIAN STATE WOULD THEREFORE BE IN THE POSITION OF AN UNSECURED CREDITOR WHOSE ENFORCEMENT MEASURES, IN COMMON WITH THOSE OF OTHER UNSECURED CREDITORS, WOULD BE SUSPENDED, AS WAS STATED IN PARAGRAPH 11 OF THIS ORDER, AS A RESULT OF THE INSTITUTION OF THE PROCEEDINGS FOR A COURT COMPOSITION . CONSEQUENTLY, IT WOULD IN FACT BE IMPOSSIBLE FOR IT TO RECOVER THE AID AT ISSUE .
19 THE BELGIAN STATE ALSO SUBMITS THAT EVEN IF ITS CLAIM BASED UPON THE COMMISSION' S DECISION WERE ACCEPTED AS PART OF THE SCHEME OF COMPOSITION THERE WOULD BE A RISK THAT SUCH A STATEMENT OF INDEBTEDNESS WOULD IN ANY EVENT LEAD TO THE DISSOLUTION OF THE COMPOSITION PROCEEDINGS AND TUBEMEUSE' S IMMEDIATE BANKRUPTCY, WHICH WOULD INEVITABLY CAUSE IMMEDIATE AND IRREPARABLE DAMAGE NOT ONLY TO THE COMPANY BUT ALSO TO ITS CREDITORS . THE SCHEME OF COMPOSITION ENABLES TUBEMEUSE' S ASSETS TO BE REALIZED IN BETTER CONDITIONS THAN IN THE CASE OF BANKRUPTCY INASMUCH AS IF THE COMPANY HAS TO BE DECLARED BANKRUPT UNSECURED CREDITORS WILL SEE THEIR CHANCES OF RECEIVING A DIVIDEND ON WINDING UP REDUCED TO NOUGHT .
20 THE LIKELIHOOD OF TUBEMEUSE' S BEING DECLARED BANKRUPT SHOULD THE BELGIAN STATE SUBMIT THE AFOREMENTIONED STATEMENT OF INDEBTEDNESS ARISES FROM THE FACT THAT AS AN APPEAL WAS BROUGHT AGAINST THE DECISION OF 10 MARCH 1987 BY CERTAIN CREDITORS THERE IS THE RISK THAT THE STATEMENT OF INDEBTEDNESS WOULD HAVE A DECISIVE EFFECT AS REGARDS THE REVIEW OF THAT JUDGMENT, WHICH NOT ONLY APPROVED, FOR THE CREDITORS' BENEFIT, THE SCHEME SUBMITTED TO IT BUT ALSO REJECTED AS UNFOUNDED THE OBJECTIONS TO THE SCHEME SUBMITTED BY CERTAIN CREDITORS IN RELIANCE ON THE PRINCIPLE RECOGNIZED BY THE BELGIAN COURTS THAT AN APPLICATION FOR APPROVAL OF A SCHEME OF COMPOSITION IS POINTLESS WHERE IT APPEARS THAT REALIZATION OF THE ASSETS WILL NOT BE SUFFICIENT TO DISCHARGE PREFERENTIAL CREDITORS AND THAT CONSEQUENTLY IT IS PROBABLE THAT ORDINARY CREDITORS ARE LIKELY TO RECEIVE NO DIVIDEND . THE BELGIAN STATE CONTENDS THAT SUCH A STATEMENT OF INDEBTEDNESS WOULD PROVIDE DEFINITIVE SUPPORT FOR THE SUBMISSIONS PUT FORWARD BY THE CREDITORS RAISING OBJECTIONS SINCE IT WOULD INCREASE TUBEMEUSE' S UNSECURED LIABILITIES TO SOME BFR 16*000 MILLION, OF WHICH ITS OWN CLAIM WOULD REPRESENT MORE THAN THREE-QUARTERS, WHEREAS PRIOR TO THE SCHEME' S APPROVAL THOSE LIABILITIES AMOUNTED TO BFR 4*046*871*237 AND THE BELGIAN STATE' S CLAIM AMOUNTED TO ONLY SLIGHTLY MORE THAN ONE-QUARTER THEREOF . THE COUR D' APPEL (( COURT OF APPEAL )), LIEGE, COULD CONSEQUENTLY NO LONGER CONFIRM THE JUDGMENT APPROVING THE SCHEME OF COMPOSITION BY REFERENCE TO THE INTERESTS OF UNSECURED CREDITORS .
21 FOR ITS PART, THE COMMISSION CONSIDERS IN THE WRITTEN OBSERVATIONS SUBMITTED IN THE COURSE OF THESE PROCEEDINGS FOR THE ADOPTION OF INTERIM MEASURES THAT THE APPLICANT HAS NOT SUCCEEDED IN SHOWING THAT THERE WAS THE RISK THAT IMPLEMENTATION OF ITS DECISION OF 4 FEBRUARY 1987 WOULD CAUSE SERIOUS AND IRREPARABLE DAMAGE TO TUBEMEUSE .
22 IN THAT CONNECTION IT POINTS OUT THAT ITS IMPLEMENTATION ENTAILS THE ADOPTION BY THE BELGIAN STATE OF AN ADMINISTRATIVE DECISION TO WITHDRAW THE ADMINISTRATIVE MEASURE BY WHICH THE AID AT ISSUE WAS GRANTED, AND SUBSEQUENTLY A DECISION TO RECOVER THE AID UNLAWFULLY GRANTED WHICH CONSTITUTES EVIDENCE OF INDEBTEDNESS WHICH SHOULD BE THE SUBJECT OF A STATEMENT OF INDEBTEDNESS IN THE CONTEXT OF THE COMPETITION PROCEEDINGS IN RESPECT OF TUBEMEUSE . TUBEMEUSE AND ITS LIQUIDATORS WOULD BE ABLE TO CHALLENGE THE DECISION TO WITHDRAW THE MEASURE AND THE DECISION TO RECOVER THE AID AS WELL AS THE STATEMENT OF INDEBTEDNESS . IN PARTICULAR, THEY COULD INSTITUTE ADMINISTRATIVE PROCEEDINGS BEFORE THE CONSEIL D' ETAT (( COUNCIL OF STATE )) AGAINST THE BELGIAN STATE' S DECISIONS TO WITHDRAW THE MEASURE AND TO RECOVER THE AID . SIMILARLY, INDEPENDENTLY OF ANY ACTION BROUGHT BY THE LIQUIDATORS ON THE BASIS OF ARTICLE 32 OF THE LAW OF 25 SEPTEMBER 1946 ON COURT COMPOSITIONS, THE POSSIBILITY IS ALWAYS OPEN TO TUBEMEUSE, AS CAN BE SEEN FROM ARTICLE 22 OF THE LAW READ IN CONJUNCTION WITH ARTICLE 29 THEREOF, TO DISPUTE BEFORE THE NATIONAL COURTS THE VALIDITY OF THE CLAIM PUT FORWARD BY THE BELGIAN STATE ON THE BASIS OF THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 . RELYING ON THE PRINCIPLES LAID DOWN IN CASE 310/85 R ( ORDER OF THE PRESIDENT OF THE COURT OF 6 FEBRUARY 1986, DEUFIL V COMMISSION (( 1986 )) ECR 537 ), THE COMMISSION SUBMITS THAT THE POSSIBILITY OPEN TO TUBEMEUSE OF INSTITUTING PROCEEDINGS UNDER NATIONAL LAW EITHER TO CHALLENGE THE MEASURE IN QUESTION OR TO DEFER EXECUTION WOULD ELIMINATE ANY RISK THAT TUBEMEUSE MIGHT SUFFER SERIOUS AND IRREPARABLE DAMAGE IF THE DECISION OF 4 FEBRUARY 1987 IS IMPLEMENTED .
23 ACCORDING TO WELL-ESTABLISHED CASE-LAW OF THE COURT, THE URGENCY OF AN APPLICATION FOR THE ADOPTION OF INTERIM MEASURES REFERRED TO IN ARTICLE 83 ( 2 ) OF THE RULES OF PROCEDURE MUST BE ASSESSED IN THE LIGHT OF THE EXTENT TO WHICH AN INTERLOCUTORY ORDER IS NECESSARY TO AVOID SERIOUS AND IRREPARABLE DAMAGE TO THE PARTY SEEKING THE ADOPTION OF THE INTERIM MEASURE . CONSEQUENTLY, THE PARTY SEEKING THE SUSPENSION OF THE OPERATION OF A MEASURE MUST FURNISH PROOF THAT HE CANNOT AWAIT THE CONCLUSION OF THE MAIN ACTION WITHOUT PERSONALLY SUFFERING DAMAGE WHICH WOULD HAVE SERIOUS AND IRREPARABLE EFFECTS FOR HIM .
24 IT MUST TO BE SAID THAT THAT ESSENTIAL REQUIREMENT HAS NOT BEEN SATISFIED IN THIS CASE . THE DAMAGE ALLEGED BY THE BELGIAN STATE IN THIS CASE RELATES, AS WAS STATED IN PARAGRAPH 19 OF THIS ORDER, TO THE DAMAGE WHICH TUBEMEUSE AND ITS CREDITORS WOULD SUFFER IF THE SUSPENSION APPLIED FOR WERE NOT GRANTED AND NOT TO THE DAMAGE WHICH THE BELGIAN STATE WOULD ITSELF SUFFER IF SUSPENSION WERE REFUSED .
25 IN REPLY TO A QUESTION PUT TO HIM AT THE HEARING, THE AGENT OF THE BELGIAN GOVERNMENT STATED THAT THE KINGDOM OF BELGIUM MIGHT INCUR DAMAGE INASMUCH AS IT MIGHT BE MADE LIABLE TO TUBEMEUSE' S CREDITORS IF THE COUR D' APPEL, LIEGE, DECLARED TUBEMEUSE BANKRUPT IN THE EVENT OF THE INCLUSION IN THE SCHEME OF COMPOSITION OF A STATEMENT OF INDEBTEDNESS INTENDED TO GIVE EFFECT TO THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 . IT APPEARS EVIDENT THAT, IN THE LIGHT OF THE CASE-LAW OF THE COURT OF JUSTICE, SUCH INDEFINITE FUTURE DAMAGE CANNOT IN ANY EVENT BE REGARDED AS SERIOUS AND IRREPARABLE DAMAGE .
26 IT SHOULD ALSO BE NOTED THAT EVEN IF TUBEMEUSE ITSELF HAD ALLEGED THAT THERE WAS A RISK THAT THE PROCESS OF RECOVERING THE AID INSTITUTED BY THE BELGIAN STATE IN IMPLEMENTATION OF THE COMMISSION' S DECISION OF 4 FEBRUARY 1987 WOULD CAUSE IT SERIOUS AND IRREPARABLE DAMAGE, IT WOULD ALSO HAVE HAD TO PUT FORWARD CIRCUMSTANCES OR ARGUMENTS SHOWING THAT THE MEANS WHEREBY IT COULD CHALLENGE THAT PROCESS UNDER BELGIAN LAW DID NOT ENABLE IT TO AVOID SUCH DAMAGE .
27 IT FOLLOWS FROM THE FOREGOING THAT THE APPLICANT HAS NOT PUT FORWARD ANY DECISIVE ARGUMENT ESTABLISHING THAT IT WOULD SUFFER SERIOUS AND IRREPARABLE DAMAGE IF THE INTERIM MEASURE APPLIED FOR WERE REFUSED .
Operative part
On those grounds,
The President
makes the following interim order :
( 1 ) The application is dismissed;
( 2 ) The costs are reserved .
Luxembourg, 15 June 1987 .
Full & Egal Universal Law Academy