Judgment — ECLI:EU:T:2007:154
Date: 2007-05-24
Language of the case: German
Court formation: First Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Dominant position
Concepts: Definition of abuse;Examples of abuse;Public undertakings
Procedure: Action for annulment - unfounded
Origin: Germany

Summary of the Order 
1. Applications for interim measures — Suspension of operation of a measure — 
Suspension of operation of a decision requiring an undertaking to put an end to an 
infringement of competition law — Conditions for granting — Prima facie case — 
Examination of complex legal questions by the judge hearing the application for 
interim relief — Limits 
(Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 
II - 3295 
SUMMARY — CASE T-151/01 R 
2. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Serious and irreparable damage — 
Standard of proof — Pecuniary damage 
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2)) 
3. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Urgency — Matters to be taken into 
consideration 
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2)) 
1. The question whether the contractual 
terms which an undertaking imposes 
on the participants in its system, when 
use of a trade mark does not coincide 
with the actual use of the service it 
provides, are essential to protect the 
essential function of the trade mark in 
question, or abusive, in that they are 
unfair within the meaning of Arti­
cle 82, second paragraph, (a) EC, is a 
complex matter. The in-depth analysis 
needed to resolve the problems raised 
by that matter cannot be carried out by 
the judge hearing the application for 
interim relief in an examination of the 
merits, prima facie, of the action in the 
main proceedings. 
(see para. 185) 
2. The urgency of an application for 
interim measures must be assessed in 
relation to the necessity for an interim 
order in order to prevent serious and 
irreparable damage to the party apply­
ing for those measures. It is for that 
party to prove that it cannot wait for 
the outcome of the main proceedings 
without suffering damage of that kind. 
It is not necessary for the imminence of 
the damage to be demonstrated with 
absolute certainty, it being sufficient to 
show that damage — especially if its 
occurrence depends on a series of 
factors — is foreseeable with a suffi­
cient degree of probability. However, 
the party seeking the suspension of 
operation of the measure or the interim 
relief is required to prove the facts 
forming the basis of its claim that 
serious and irreparable damage is 
likely. 
Furthermore, damage of a pecuniary 
nature cannot, save in exceptional 
circumstances, be regarded as irrepar­
able or even as reparable only with 
difficulty, since it can be the subject of 
subsequent financial compensation. In 
accordance with those principles, an 
interim measure would be justified if it 
appeared that, if it were not granted, 
the party who sought it would be put in 
II - 3296 
DUALES SYSTEM DEUTSCHLAND v COMMISSION 
a position likely to jeopardise its exis­
tence before a final judgment was given 
in the main proceedings. 
(see paras 187-188, 214) 
3. The urgency in granting an interim 
measure must result from the effects 
produced by the contested measure. 
For the purposes of that assessment, 
the response from the press to the 
decision whose suspension is sought 
and the possible harmful consequences 
of that for the applicant are irrelevant. 
(see para. 200) 
II - 3297