Order — ECLI:EU:C:1999:609
Date: 1999-12-14
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Transport
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Appeal - unfounded;Application for interim measures - 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 — 
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) 
3. Applications for interim measures — Suspension of operation of a measure — 
Conditions for granting — Cumulative conditions 
(Art. 242 EC) 
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SUMMARY — CASE C-364/99 P(R) 
1. An application for dispensation from 
an obligation to provide a bank guar­
antee as a condition for non-enforce­
ment by the Commission of its right to 
immediate payment of a fine can be 
granted only in exceptional circum­
stances. 
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, which is a general and 
reasonable policy pursued by the Com­
mission. 
2. In assessing the ability of undertakings 
to furnish a bank guarantee, regard 
may be had to the group of under­
takings 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 autonomous in 
relation to those of the natural or legal 
persons with a controlling interest in it 
and that, consequently, the serious and 
irreparable nature of the damage 
alleged must be assessed at the level 
of the group comprising those persons. 
In particular, given that the interests at 
stake overlap, the undertaking's inter­
est in its own survival must not be 
viewed in isolation from the interest of 
those controlling it in prolonging its 
life indefinitely. 
In that connection a simple unilateral 
refusal of assistance by the principal 
shareholder cannot be enough to pre­
clude the financial situation of the 
group as a whole from being taken 
into account. The extent of the damage 
alleged cannot flow from the unilateral 
intent of the majority shareholder of 
the undertaking. 
3. In an application for interim measures, 
given the cumulative nature of the 
conditions for granting suspension of 
the operation of a measure, an applica­
tion for suspension must be dismissed if 
any one of them is absent. 
Accordingly, if the court hearing the 
application considers that the existence 
or imminence of serious and irrepar­
able damage has not been established, 
it is no longer obliged to balance the 
various interests at stake. 
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