Order — ECLI:EU:T:2001:143
Date: 2001-05-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Intervention
Procedure: Application for interim measures - unfounded
Origin: Italy

Summary of the Order 
1. Applications for interim measures — Suspension of operation of a measure — 
Interim relief — Conditions for granting — Prima facie case — Urgency — Cumu­
lative requirements — Balancing of all the interests at stake — Provisional nature of 
the measure 
(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2)) 
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SUMMARY — CASE T-53/01 R 
2. Procedure — Intervention — Persons concerned — Dispute concerning the condi­
tions for implementing the provisions of Articles 86 EC and 82 EC in the area of postal 
services — Application for leave to intervene lodged by an association of delivery 
agencies authorised to provide non-reserved postal services — Whether admissible 
(Arts 82 EC and 86 EC; EC Statute of the Court of Justice, Art. 37(2)) 
3. Applications for interim measures — Suspension of operation of a measure — 
Conditions for granting — Serious and irreparable damage — Financial damage —· 
Application lodged by the provider of a universal service, entrusted with a task of 
general economic interest 
(Arts 86(2) EC and 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 — 
Suspension of operation of a Commission decision concerning proceedings pursuant 
to Article 86 EC — Conditions for granting — Balancing of all the interests at stake 
(Arts 86 EC and 242 EC; Rules of Procedure of the Court of First Instance, 
Art. 104(2)) 
1. Article 104(2) of the Rules of Proce­
dure of the Court of First Instance 
provides that an application for interim 
relief is to specify the circumstances 
giving rise to urgency and the pleas of 
fact and law establishing a prima facie 
case for the interim relief applied for. 
Those conditions are cumulative, so 
that an application for interim relief 
must be dismissed if any one of them is 
absent. Where appropriate, the judge 
hearing the application for interim 
relief also weighs up the interests 
involved. The measure requested must 
further be provisional in the sense that 
it must not prejudge the points of law 
or fact in issue or neutralise in advance 
the effects of the decision subsequently 
to be given in the main action. 
(see paras 43-44) 
2. Under the second paragraph of Arti­
cle 37 of the EC Statute of the Court of 
Justice, applicable to the Court of First 
Instance by virtue of the first paragraph 
of Article 46 of the Statute, the right to 
intervene is subject to the requirement 
of establishing an interest in the out­
come of the case. 
Representative associations whose 
object is to protect their members in 
cases raising questions of principle 
liable to affect those members are 
allowed to intervene. 
In a case raising matters of principle 
relating to the conditions for imple­
menting the provisions of Articles 86 
EC and 82 EC in the area of new postal 
services with a guaranteed day or time-
certain delivery in Italy and, in parti-
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POSTE ITALIANE v COMMISSION 
cular, to the extent of that area which 
may be reserved by the operation of 
those provisions, an association of 
delivery agencies authorised to provide 
non-reserved postal services can estab­
lish such an interest. 
(see paras 46, 51-58) 
3. In the context of an examination of an 
application for suspension of operation 
of a measure by the court hearing that 
application for interim relief, damage 
of a purely pecuniary nature cannot, 
save in exceptional circumstances, be 
regarded as irreparable or even as 
reparable with difficulty, since it may 
be the subject of subsequent pecuniary 
compensation. 
An application for suspension of opera­
tion of a measure would be justified if 
it appeared that, if the suspension were 
not granted, the applicant would be in 
a situation which might jeopardise its 
very existence. 
Where an application is brought by a 
provider of a universal service, 
entrusted with a task of general eco­
nomic interest within the meaning of 
Article 86(2) EC, performance of 
which is essent ia l , the measure 
requested would also be justified if it 
was apparent that, if the measure were 
not granted, the provider would be 
prevented from carrying out success­
fully the task entrusted to it until 
judgment were given on the merits of 
the main application. Such proof 
would be furnished if it were shown, 
in the light of the financial conditions 
in which the task of general economic 
interest had been performed success­
fully up to that point, that the exclusive 
right concerned is absolutely necessary 
to the performance of that task by the 
holder of the right. 
(see paras 119-121) 
4. In the context of an application for 
suspension of operation of a Commis­
sion decision concerning proceedings 
pursuant to Article 86 EC it is for the 
court hearing the application to bal­
ance on the one hand, the applicant's 
interest in obtaining the interim relief 
requested and, on the other, the public 
interest in the implementation of the 
Commission's decision adopted under 
Article 86(3) EC, the interests of the 
Member State to which that measure is 
addressed and the interests of third 
parties who would be directly affected 
by a possible suspension of the con­
tested decision. 
(see para. 130) 
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