Order — ECLI:EU:T:1998:70
Date: 1998-04-02
Language of the case: German
Court formation: Fourth Chamber, Extended Composition
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: State aids;Competition
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;General
Procedure: Action for annulment;Application for interim measures - unfounded
Origin: Germany

summary information provided at the hearing does not enable the Commission to put forward an adequate defence. 48. According to the Commission, the applicants should in any event have specifically explained, with supporting figures, the consequences which the loss of that opportunity would entail for each of those undertakings and in respect of each of the aircraft concerned. The Commission disputes that the requirement to do so might give rise to serious problems of confidentiality, in any event in the second applicant's case. 49. At the hearing the Commission further claimed that the undertakings could rely on Paragraph 82f on a provisional basis for the purpose of their 1997 balance sheets in order to secure its definitive application by the national authorities when judgment has been given in the main proceedings. 50. As regards 1998, the occurrence of the harm is not sufficiently imminent to justify immediate measures (see Case T-88/94 R Société Commerciale des Potasses et de l'Azote and Entreprise Minière et Chimique v Commission [1994] ECR II-263, paragraph 39, and Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 38). The formal choice between the two depreciation methods need not be made for that year until the end of the year and the actual choice, according to the applicants' argument, should be made during the final quarter. It cannot be precluded, indeed it is probable, that judgment in the main proceedings will be given before then. If that were to appear unlikely the applicants could submit a fresh application for interim measures. 51. In that regard, the Commission denies that it has delayed the proceedings thus far and rejects the applicants' prediction of its future conduct. In particular, even supposing that the Court of First Instance were to find in favour of the applicants, the Commission would not automatically appeal, but would decide whether or not to do so only after carefully examining the grounds of the judgment. In any event, it would be obliged to adopt the measures to comply with such a judgment since, subject to any interim measures granted by the Court of Justice, an appeal by the Commission would not have suspensory effect. 52. The argument that the present application is urgent is contradicted by the fact that the amendments introduced by the 1997 Tax Law were intended to achieve budgetary savings, which shows that the damage which the applicants allegedly face is in reality pecuniary damage. It is also contradicted by the absence of any application for interim relief in Case T-25/96, by the belated nature of the present application as regards 1996 and even, in certain regards, 1997 and by the fact that the German rules are due to expire shortly. - Balance of interests 53. The applicants consider that pursuant to the third paragraph of Article 3b of the EC Treaty, which provides that any action by the Community is not to go beyond what is necessary to achieve the objectives of the Treaty, it is necessary to take account of the impact which a specific measure may have on one or the other party. 54. In the present case the applicants cannot be required to suffer the damage referred to above by definitively renouncing (for the last two tax years during which it is available) the opportunity to make use of the special depreciation facility. The Community would suffer no damage by waiting, after the adoption of the interimmeasure, for the judgment in the main proceedings, even if the main application were to be dismissed by the Court. Should that application be dismissed, it would mean that Paragraph 82f of the EStDV conferred a monetary advantage and therefore constituted State aid. The Commission could then order Germany to recover the aid and the Community would thereby be compensated for any damage associated with the interim measure. As regards the Community interest in there being no distortion of competition in the internal market (Article 3(g) of the EC Treaty) the applicants observe that to their knowledge during the 25 years that Paragraph 82f has been in force no competitor has ever complained to the competent authorities that German airlines were able to rely on it. 55. In the Commission's submission, the balance of interests does not favour granting the measure applied for. The fact that aid may be subsequently recovered does not prevent it from distorting competition in the mean time and does not even necessarily allow such distortion to be eliminated retroactively. Findings of the President 56. In the light of the explanations which the applicants provided at the hearing, the President notes that they are now asking the Court to order the Commission to authorise the German measure in issue on a provisional basis for 1997 and 1998 or, in the alternative, to order its authorisation for the benefit of the applicants alone. 57. Even supposing (having regard, in particular, to the content of the application for interim relief) that those measures were applied for in the proper form, the application must be dismissed, since the legal conditions governing the granting of the measures applied for are not met. 58. It is settled law that the condition relating to urgency within the meaning of Article 104(2) of the Rules of Procedure of the Court of First Instance must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for the interim measure. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences (see, for example, Case T-168/95 R Eridania and Others v Council [1995] ECR II-2817, paragraph 33). 59. The applicants' argument that the judge dealing with the matter should amend the requirements linked with that criterion on the ground that the contested decision is manifestly illegal cannot be upheld. 60. All the submissions which the applicants have put forward in order to show that there is a prima facie case in the main proceedings allege 'defects in the statement of reasons, including the complaint, on which particular emphasis is placed in thepresent context, that the contested decision contains no reference to the expert reports (see paragraphs 31 and 44 above). In the event that such defects were established, they would not by their nature preclude the possibility that the Commission's finding in the contested decision that the German measure constitutes State aid which is incompatible with the common market is materially justified under Article 92 of the EC Treaty. They are therefore incapable of showing that the applicants have a particular legitimate interest in obtaining an injunction ordering the Commission to grant provisional authorisation pursuant to Article 92. In any event, none of the applicants' submissions justifies, at first sight, the conclusion that they were prevented by the allegedly incomplete nature of the statement of reasons from expressing their views on that point. Each of those submissions highlights errors which the Commission is alleged to have committed in examining the case-file (i) by failing to use the expert reports, (ii) by reaching the conclusion that the German rules were selective or (iii) by failing to prove its assertions. 61. As regards the substantive legality of the contested decision, those three submissions cast doubt by implication, as does the third plea in law in the main proceedings (infringement of Article 92(1) of the EC Treaty) in express terms, on the classification of the national measure in issue as State aid. However, the question thus raised can only be resolved following a thorough examination by the court dealing with the substance of the case. That consideration applies, in particular, to the problem of whether the measure allows taxpayers to make savings, in particular in terms of interest. At the hearing the applicants themselves emphasised the importance which they attribute to the economic analyses in the three expert reports submitted during the administrative procedure. The parties disagree, moreover, as to the choice of the standard of comparison used to determine whether or not such savings are possible, which is another problem which cannot be solved without a thorough examination by the Court in the context of its assessment of the main application. The judge hearing the application for interim measures cannot anticipate that assessment. 62. In those circumstances, it is necessary, in accordance with the case-law cited above, to consider whether the applicants have sufficiently established the risk of serious and irreparable damage. 63. In that regard, it must be pointed out, first, that the risk must affect interests which are peculiar to them or, in the specific case of the applicant association, at the very least interests which it is called upon to protect (see Case T-213/97 R Eurocoton and Others v Council [1997] ECR II-1609, paragraph 46). 64. Second, to be able to determine whether the damage which the applicants fear is serious and irreparable and therefore provides grounds for, exceptionally, disapplying the contested decision, the judge hearing the application must have hard evidence allowing him to determine the precise consequences which theabsence of the measures applied for would in all probability entail for each of the undertakings concerned. 65. In the light of those criteria, the applicants should have provided detailed documentary evidence of, first, the aircraft purchased by each of the undertakings concerned which fall within the scope of the German provisions. By virtue of the amendments introduced by the 1997 Tax Law (see paragraph 16 above), the contracts relating to those purchases must have been concluded before 25 April 1996 and are therefore apparently identifiable for the entire remainder of the period during which the provisions are applicable. 66. The application for interim measures contains no such information. The mere assertion at the hearing that all the member undertakings of the first applicant bought a certain number of aircraft for a given sum, stated in approximate terms, does not suffice for the purpose of evaluating the actual material interest of each of the undertakings concerned. 67. Such precise, individual and substantiated information was all the more necessary because the applicants acknowledged at the hearing that in addition to the purchase of aircraft by airlines themselves, where their depreciation is shown in each airline's own accounts, leasing is of increasing importance owing to increases in manufacturers' prices. 68. The applicants should also have shown, on the basis of the figures relating to those purchases and at least approximately and with examples, the actual consequences which they expect if Paragraph 82f of the EStDV is not applied, as regards both differences in the undertakings' balance sheets and the harmful effects likely to result from those differences. They have not claimed that it would have been impossible to do so. Furthermore, since Paragraph 82f was applicable between 1965 and 1994 but has not been applicable since then, it cannot at first sight be ruled out that at least some of the undertakings whose interests are invoked in the present case could have compared the situations under both schemes. In those circumstances a mere reference to the advantage of being able to operate a flexible balance-sheet policy in order to maintain the confidence of third parties interested in the continuity and reliability of the undertaking is not an adequate explanation. 69. In so far as they rely on the confidential nature of the economic and accounting figures of the undertakings concerned (the second applicant and the members of the first applicant), their argument cannot be accepted. Such confidentiality cannot be invoked as against the Commission, which is bound by an obligation of professional secrecy (Article 214 of the EC Treaty). As regards confidentiality in the relations between the undertakings concerned, the applicants have provided no evidence that it would have been impossible to maintain confidentiality in regular interlocutory proceedings, in particular as regards the rights of the defence of each undertaking. 70. Furthermore, the specific circumstances in which the present application was submitted clearly disclose a number of factors which indicate that the matter is not urgent. 71. Paragraph 82f of the EStDV had no longer been applicable since the end of 1994 and it will no longer be applicable after 31 December 1998. The applicants have been unable to explain how the advantage which they associate with that provision is urgent as regards the acquisition of aircraft in 1997 and 1998 or, in particular, why they did not submit a similar application in respect of the 1995 and 1996 tax years in the context of Case T-25/96 or in the context of the main proceedings in the present case. 72. In so far as the applicants explain the date on which they chose to apply for interim measures by their fear of definitively losing that advantage, because of the danger that the advantage would no longer be available in any of the tax years under consideration, their argument cannot be accepted. As they themselves state, the present application was justified in order to enable them, within the period prescribed by national law and having regard to the irreversible nature of their choice, to choose straight-line depreciation for 1997 and 1998, while remaining assured of the possibility of subsequently making use of the special depreciation facility. However, that justification could have been invoked in the same way in relation to the corresponding periods for the previous years. The fact that the 1997 Tax Law brought forward the deadline for acquiring aircraft by one year does not affect that reasoning. Nor does the actual adoption of that Law, in December 1996, in itself explain why the application for interim measures was submitted almost one year later. 73. Furthermore, the applicants' assertion that the choice between the different types of depreciation must be made well before the official deadline if it is to form an effective part of the undertaking's 'balance-sheet policy tends at first sight to indicate that the present application comes too late to preserve for 1997 all the opportunities which the applicants associate with the German provisions. 74. Since the condition relating to urgency is therefore not met, the balance of interests cannot in the circumstances of the case favour the measure applied for. The applicants have not adduced any evidence giving rise to particularly obvious doubts as to the validity of the classification of the national measure as State aid (see paragraph 61 above). Furthermore, Articles 92 and 93 of the EC Treaty are intended to prevent such aid from distorting competition within the Community. The final sentence of Article 93(3) protects competition by preventing payment of the aid before the Commission has been able to satisfy itself that it is compatible with the common market. That procedure implies the exercise of a wide discretion on the part of the Commission (see Case C-169/95 Spain v Council [1997] ECR I-135, paragraph 18), whose role the judge hearing the application for interim measures cannot assume (see Case T-107/96 R Pantochim v Commission [1996] ECR II-1361, paragraph 44). In the present case the Commission, exercising thatpower, declared that the aid was incompatible with the common market. In the absence of sufficient evidence to establish a danger of serious and irreparable harm, therefore, the judge hearing the application for interim measures cannot disapply the rules on the protection of competition laid down in Articles 92 and 93 of the EC Treaty. That finding is not affected by the applicants' claim that the German rules have not hitherto been the subject of a complaint. 75. It follows from all the foregoing that the legal requirements governing the granting of interim measures are not met in the present case. The application must therefore be dismissed. On those grounds, THE PRESIDENT OF THE FOURTH CHAMBER (EXTENDED COMPOSITION) OF THE COURT OF FIRST INSTANCE replacing the President of the Court of First Instance in the present interlocutory proceedings, hereby orders: 1. The application for interim measures is dismissed. 2. Costs are reserved. Luxembourg, 2 April 1998. H. Jung P. Lindh Registrar President 1: Language of the case: German. ECR