Order — ECLI:EU:C:2003:420
Date: 2003-07-24
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures;Appeals
Procedure: Action for annulment;Appeal - unfounded;Application for interim measures
Origin: Italy

Summary of the Order 
1. Applications for interim measures — Suspension of operation of a measure — 
Interim measures — Conditions for granting — Prima facie case — Serious and 
irreparable barm — Balancing of all the interests involved — Discretion of the judge 
hearing the application for interim measures 
(Arts 242 EC and 243 EC; Rules of Procedure of the Court, Art. 83(2); Rules of 
Procedure of the Court of First Instance, Art. 104(2)) 
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SUMMARY — CASE C-233/03 P(R) 
2. Applications for interim measures — Suspension of operation of a measure 
Suspension of the obligation to provide a bank guarantee as a condition for 
non-enforcement of the right to immediate payment of a fine — Conditions for 
granting — Exceptional circumstances — fudge's discretion as to whether to balance 
the interests — Applicant undertaking in liquidation — Risk of irreversible harm to 
the Community's interests 
(Art. 242 EC) 
3. Appeal — Grounds of appeal — Incorrect assessment of the facts — Inadmiss­
ible — Application in the case of an appeal against an interlocutory order — Not 
possible, unless the clear sense of the evidence has been distorted, to challenge the 
balancing of interests 
(Art. 225 EC; Statute of the Court of justice, Arts 57 and 58) 
1. The judge hearing an application for 
interim relief may order suspension of 
operation of an act, or other interim 
measures, if it is established that such 
an order is justified, prima facie, in fact 
and in law and that it is urgent in so far 
as, in order to avoid serious and 
irreparable harm to the applicant's 
interests, it must be made and produce 
its effects before a decision is reached 
in the main action. Where appropriate, 
the judge hearing such an application 
must also weigh up the interests 
involved. 
In the context of the overall examin­
ation that the judge must undertake, he 
enjoys a broad discretion and is free to 
determine, having regard to the specific 
circumstances of the case, the manner 
and order in which those various con­
ditions are to be examined, there being 
no rule of Community law imposing a 
pre-established scheme of analysis 
within which the need to order interim 
measures must be assessed. 
(see paras 26-27) 
2. While the presence of exceptional cir­
cumstances is necessary for the judge 
hearing the application for interim 
measures to order the suspension of 
operation of a Commission decision 
making the non-enforcement of the 
right to immediate payment of a fine 
subject to the provision of a bank 
guarantee, it does not necessarily result 
in the granting of that suspension. The 
determination of whether there are 
exceptional circumstances takes place 
at the level of the examination of 
urgency, so that a finding by the judge 
hearing the application for interim 
relief that suspension should be granted 
in order to avoid serious and irrepar­
able damage to the interests of the 
party seeking that relief does not pre­
vent him from considering the effects 
which a possible suspension might have 
on the interests of any other party to 
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LINEA GIG v COMMISSION 
the proceedings. In the light of the 
particular circumstances of each case, 
the judge must therefore be able to 
determine whether it is appropriate to 
weigh up the interests involved. 
In that respect, it may prove particu­
larly expedient to weigh up the inter­
ests where the applicant is in liqui­
dation. In such circumstances, granting 
suspension of operation of the decision 
imposing the fine might have harmful 
consequences for the Community's 
interests and affect them irreversibly. 
(see paras 29-31) 
3. Article 225 EC and Article 58 of the 
Statute of the Court of Justice, which 
limit appeals to points of law, to the 
exclusion of any appraisal of the facts, 
apply equally to appeals brought under 
the second paragraph of Article 57 of 
that statute against decisions of the 
Court of First Instance given in appli­
cations for interim relief. It follows 
that, save where the clear sense of the 
evidence has been distorted, the bal­
ancing of the interests which the judge 
hearing an application for interim relief 
has carried out cannot be challenged in 
appeal proceedings brought under the 
second subparagraph of Article 57 of 
the Statute. 
(see paras 34, 36-37) 
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