Order — ECLI:EU:C:1999:608
Date: 1999-12-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Appeal - unfounded
Origin: Germany

Summary of the Order 
1. Applications for interim measures — Suspension of operation of a measure — 
Suspension of the obligation to provide a bank guarantee as a condition for non-
enforcement of the right to immediate payment of a fine — Conditions for granting — 
Exceptional circumstances 
(Art. 242 EC) 
2. Applications for interim measures — Suspension of operation of a measure — 
Conditions for granting — Serious and irreparable damage — Risk that the under­
taking might have to apply for insolvency proceedings to be commenced — Assessment 
on a case-by-case basis 
(Art. 242 EC) 
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SUMMARY — CASE C-335/99 P(R) 
3. Applications for interim measures — Suspension of operation of a measure — 
Suspension of the obligation to provide a bank guarantee as a condition for non-
enforcement of the right to immediate payment of a fine — Conditions for granting — 
Serious and irreparable damage — Account taken of the financial situation of the 
group to which the undertaking belongs 
(Art. 242 EC) 
4. Applications for interim measures — Suspension of operation of a measure — Interim 
measures — Conditions for granting — Serious and irreparable damage — Standard of 
proof 
(Art. 242 EC) 
1. An application seeking waiver of the 
obligation to provide a bank guarantee 
as a condition for postponing recovery 
of a fine imposed by the Commission 
may be granted only in exceptional 
circumstances. 
In the context of applications for 
interim relief, express provision is 
made in the Rules of Procedure of both 
the Court of Justice and the Court of 
First Instance for requiring security to 
be lodged, consistent with the general 
policy of the Commission which has 
been found to be reasonable. 
2. In the context of the assessment of an 
application for interim relief, a situa­
tion in which an undertaking is com­
pelled to seek liquidation may consti­
tute serious and irreparable damage, 
since the very existence of the under­
taking would thereby be placed in 
jeopardy, and given the serious conse­
quences to which such proceedings give 
rise, hindering normal operations. Such 
an assessment must be carried out on a 
case-by-case basis, having regard to the 
facts of each case and the legal issues 
involved. 
3. In order to assess whether an under­
taking is in a position to provide a 
bank guarantee, regard must be had to 
the group of undertakings to which it 
belongs and, in particular, to the 
resources available to that group as a 
whole. 
That approach is based on the idea that 
the objective interests of the undertak­
ing concerned are not wholly distinct 
from those of the natural or legal 
persons which control it and that the 
serious and irreparable nature of the 
damage alleged must therefore be 
appraised at the level of the group 
comprising those persons. In particular, 
the fact that interests thus overlap is 
justification for not assessing the 
undertaking's interest in its own survi-
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HFB V COMMISSION 
val separately from the controlling 
group's interest in seeing it survive. 
In that connection no importance is to 
be attributed to the fact that the person 
who controls the undertakings by vir­
tue of being their principal owner is a 
natural person who is not himself an 
undertaking. 
4. Although in order to establish the 
existence of serious and irreparable 
damage it is not necessary for the 
occurrence of the damage to be demon­
strated with absolute certainty, it being 
sufficient to show that damage is 
foreseeable with a sufficient degree of 
probability, the applicants are required 
to prove the facts forming the basis of 
their claim that serious and irreparable 
damage is likely. 
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