Judgment — ECLI:EU:T:2011:560
Date: 2011-10-05
Language of the case: Italian
Court formation: Third Chamber
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - successful
Origin: Italy

Summary of the Order 1. Applications for interim measures – Conditions of admissibility – Application – Formal requirements (Rules of Procedure of the Court of First Instance, Arts 44(1) and 104(3)) 2. Applications for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for a fine not being recovered immediately – Conditions for granting – Exceptional circumstances (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 3. Applications for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for a fine imposed for breach of the competition rules not being recovered immediately – Balancing of all the interests involved (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2)) 4. Applications for interim measures – Suspension of operation of a measure – Interim measures – Variation or cancellation (Rules of Procedure of the Court of First Instance, Art. 108) 1. Pursuant to Article 104(3) and Article 44(1) of the Rules of Procedure of the Court of First Instance, an application for interim measures must contain a summary of the pleas in law on which the application is based. That information must be sufficiently clear and precise to enable the defendant to prepare its defence and the Community judicature to decide the case, if appropriate, without other information in support. In order to ensure legal certainty and the sound administration of justice, if an action is to be admissible, the essential facts and law on which it is based must be apparent from the text of the application itself, even if only stated briefly, provided that the statement is coherent and comprehensible. (see para. 47) 2. An application for suspension of the obligation to provide a bank guarantee as a condition for a fine not being recovered immediately will be granted only in exceptional circumstances. The possibility of requiring the provision of a financial guarantee is expressly provided for with regard to applications for interim relief by the Rules of Procedure of the Court of Justice and of the Court of First Instance and is a general and reasonable way for the Commission to act. The existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking exemption from providing the requisite bank guarantee adduces evidence that it is objectively impossible for it to provide such guarantee or that such provision would imperil its existence. Regarding such impossibility, the relevance of letters refusing to provide a bank guarantee which the applicant produces must be assessed in the light of the applicant’s economic situation considered objectively, so that it cannot be excluded as such, simply because those letters are few in number. In order to assess the applicant’s ability to provide the guarantee in question, account should also be taken of the group of undertakings to which it belongs directly or indirectly, and of its shareholders, particularly with regard to the possibility of providing the security which the banks might require. Such a requirement arises, firstly, from the public interest in implementing Commission decisions and in safeguarding the financial interests of the Community and, secondly, from the benefits that may be derived by its shareholders from any anti-competitive conduct a company may engage in. The fact that the situation of the group to which a company belongs is taken into consideration does not at all signify that the fine or liability for the infringement may be attributed to third parties. (see paras 97-98, 102, 111, 118) 3. When the Court examines an application for suspension of the obligation imposed on an undertaking to provide a bank guarantee as a condition for a fine for breach of the competition rules not being recovered immediately, it must weigh, on the one hand, the applicant’s interest in avoiding – in the event that it is unable to arrange a bank guarantee – immediate recovery of the fine against, on the other hand, the Community’s financial interest in being able to recover that sum and, more generally, against the public interest in preserving the effectiveness of Community competition rules and the deterrent effect of fines imposed by the Commission. (see para. 135) 4. Under Article 108 of the Rules of Procedure of the Court of First Instance, the judge hearing an application for interim measures may at any time vary or cancel an interim order on account of a change in circumstances. By a ‘change in circumstances’, what are especially envisaged are factual circumstances capable of altering the assessment made in each particular case of the criterion of urgency. Furthermore, that possibility reflects the fundamentally precarious nature in Community law of measures granted in interim relief proceedings. (see para. 147)