Order — ECLI:EU:C:2002:601
Date: 2002-10-18
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;Appeals
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible;Application for interim measures
Origin: Germany

Summary of the Order 
1. Applications for interim measures — Conditions of admissibility — Main application 
seeking annulment of a Commission decision ordering reimbursement of State aid — 
Existence of remedies in the national court against national enforcement measures — 
Irrelevant as far as the application for interim measures is concerned 
(Art. 242 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of 
Procedure of the Court of First Instance, Art. 104(1)) 
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SUMMARY — CASE C-232/02 P(R) 
2. Applications for interim measures — Suspension of operation of a measure — 
Application for suspension of operation of a Commission decision ordering reim­
bursement of State aid for restructuring — Application of particularly strict criteria as 
regards a prima facie case — Excluded 
(Art. 242 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of 
Procedure of the Court of First Instance, Art. 104(2)) 
3. Appeals — Pleas in law — Mistaken assessment of the facts — Inadmissible — 
Review by the Court of justice of the assessment of the evidence — Excluded 
(Art. 225 EC; EC Statute of the Court of Justice, Art. 51, first para.) 
1. The fact that an undertaking in receipt 
of State aid recovery of which has been 
ordered by the Commission may seek a 
remedy in the national court against 
national measures enforcing that 
decision cannot lead to an amendment 
of the rule set out in Article 104(1) of 
the Rules of Procedure of the Court of 
First Instance, according to which the 
sole condition for an application to 
suspend the operation of a measure 
adopted by an institution to be admiss­
ible is that the applicant must be 
challenging that measure in proceed­
ings before the Court of First Instance. 
Nor can it lead to a refusal to grant 
such an undertaking, which has in fact 
brought an action for annulment in the 
Court of First Instance against the 
Commission's decision, interim judicial 
protection before the Community judi­
cature. 
(see paras 32-33) 
2. The application of particularly strict 
criteria for acknowledging, when an 
application for suspension of operation 
of a Commission decision ordering the 
recovery of State aid for restructuring is 
being examined, that there is a prima 
facie case, on the ground that the 
condition of urgency, because of the 
aid beneficiary's insolvency problems, 
is always satisfied, is not justified. The 
fact that an undertaking may become 
insolvent does not necessarily mean 
that the urgency must be accepted 
because, when assessing an undertak­
ing's viability, the judge hearing the 
application for interim relief may 
assess its material circumstances by 
taking into consideration the character­
istics of the group to which it is linked 
by way of its shareholders. 
Furthermore, although it is true that 
suspension of the operation of a 
decision ordering recovery of incom­
patible aid may prolong the adverse 
effects of that aid on competition, the 
fact remains, conversely, that the 
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COMMISSION v TECHNISCHE GLASWERKE ILMENAU 
immediate implementation of such a 
decision will usually give rise to irre­
versible effects for the beneficiary 
undertaking, without its being possible 
a priori to exclude the possibility that 
continuance of the aid will finally be 
judged lawful owing to the defects 
which the aforementioned decision 
may contain. 
Lastly, an approach based on particu­
larly strict criteria might reduce interim 
judicial protection to an excessive 
extent and limit the broad discretion 
which the judge hearing an application 
for interim relief must have in order to 
exercise the powers conferred on him. 
(see paras 54, 56, 58-59) 
3. Under Article 225 EC and Article 51, 
first paragraph, of the EC Statute of the 
Court of Justice, any appeal must be 
limited to points of law and must lie on 
the grounds of lack of competence of 
the Court of First Instance, a breach of 
procedure before it which adversely 
affects the interests of the applicant or 
infringement of Community law by the 
Court of First Instance. The Court of 
First Instance alone has jurisdiction to 
make findings of fact, except where the 
documents before it caused it to make a 
material error in so doing, and to assess 
the facts as so found. 
Furthermore, the Court of Justice does 
not in principle have jurisdiction to 
examine evidence which the Court of 
First Instance has accepted in support 
of its finding or assessment of the facts. 
Where the general principles of law 
and rules of procedure governing the 
burden of proof and the taking of 
evidence have been observed, it is for 
the Court of First Instance alone to 
assess the weight to be attributed to the 
evidence adduced before it. 
(see paras 66-67) 
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