Judgment — ECLI:EU:T:2002:70
Date: 2002-03-20
Language of the case: German
Court formation: Fourth Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Competition;Agreements, decisions and concerted practices;Concerted practices
Concepts: Determining the amount of the fine;Definition of undertaking;Agreements of undertakings, decisions by associations of undertakings and concerted practices;Measures of inquiry and measures of organisation of procedure;Hearing of persons concerned and of third parties / Access to the file;Requests for information;Professional secrecy
Procedure: Action for annulment - unfounded;Action for annulment - successful;Appeal against penalty - unfounded;Application for measures of inquiry - unfounded;Application for measures of inquiry - decision unnecessary
Origin: Austria;Germany

summary auditor's report on their cash-flow and other information from banking
establishments. However, Doctor Reimnitz, the auditor who wrote the report,
stated at the hearing that he had not examined the 1998 accounts.
31 Although the balance sheets produced by the applicants indicate that, as at
31 December 1998, they had no longer sufficient liquid funds to pay the balance
of the fine and in fact were experiencing a cash-low deficit of about
DEM 5 525 000, the fact remains that three of them were in a position to pay
EUR 2 310 000 on 5 February 1999 — a payment which, moreover, is not
recorded in the figures produced — which suggests that the figures produced
failed to disclose substantial reserves or, at least, that there is real uncertainty on
this point.
32 The applicants also admitted at the hearing that the 'long-term — that is to say, a
term exceeding one year — liquid funds' of which they might avail themselves
II - 2445
ORDER OF 9. 7. 1999 — CASE T-9/99 R
had not been taken into account in the summary report. In that connection
Doctor Riemnitz observed that it was important to determine whether the long-
term survival of the undertaking was possible and whether or not the figures were
conducive to that hypothesis, so that the 'short-term liquidity' should not be the
only funds taken into account.
33 In view of the foregoing, it must be held that no conclusion can be drawn from
the unaudited figures produced by the applicants.
34 Doctor Reimnitz also stated that, under German law, the mere fact that, in certain
situations, the members or chief executive of a company are obliged to apply for
bankruptcy proceedings to be commenced does not mean that the application will
be accepted. Cash-flow difficulties do not necessarily lead to liquidation of the
undertaking and, concomitantly, the loss of jobs. The applicants confirmed that,
not only under German law but also under Austrian law, there is an alternative to
bankruptcy. Thus, where an undertaking is insolvent, it may, under the
supervision of the competent national court, enter into a scheme of arrangement
with its debtor, under which its debts are discharged.
35 Furthermore, in the group's consolidated balance sheet as at 31 December 1998,
annexed to the summary report, there is an item under liabilities entitled 'other
debts' amounting to about DEM 5 300 000, which are regarded as short-term. At
the hearing, the applicants mentioned the existence of set-off arrangements
between the controlled companies and the owner thereof involving a substantial
amount. Moreover, the applicants have not stated precisely who was their
creditor in respect of those debts. There is therefore uncertainty as to the extent to
which Mr Henss, who is directly or indirectly the principal owner of the five
undertakings, is a creditor of them.
II - 2446
HFB AND OTHERS V COMMISSION
36 Moreover, the applicants have not made any attempt to prove that Mr Henss, as
direct or indirect owner of the five undertakings, is not in a position to assist them
in providing a bank guarantee. By limiting the application for interim measures
lodged on 30 April 1999, the applicants have demonstrated that Mr Henss,
together with his wife and two other members, still possessed resources enabling
them to provide, through HFB KG and HFB Holding, a bank guarantee of the
order of EUR 1 500 000. In that connection, it would seem appropriate, as is also
clear from the case-law, to take account of the possibilities available to members
to assist the company in providing a bank guarantee (order in Buchmann v
Commission cited above, paragraph 26).
37 Furthermore, the applicants have produced no evidence to show that it is wholly
impossible to obtain a bank guarantee for the amount outstanding. Only
Isoplus — Rosenheim and Isoplus — Hohenberg have produced statements from
banking institutions confirming their refusal to grant such a bank guarantee.
Moreover, those two applicants approached only three banks with which they
had habitual dealings. The applicants did not see fit to produce similar statements
for the three other applicants, even though Isoplus — Sondershausen was, on
5 February 1999, in a position to pay EUR 770 000 to the Commission and,
according to their balance sheets as at 31 December 1998, HFB KG and HFB
Holding possessed liquid funds.
38 In view of the foregoing, the applicants have not produced evidence to show that
the risk of bankrupcy or liquidation is forseeable with a sufficient degree of
probability in the event of their having to provide a bank guarantee covering the
outstanding amount of the fine imposed. In that connection, it must be
emphasised that the mere risk that the applicants might be obliged to apply for
II - 2447
ORDER OF 9. 7. 1999 — CASE T-9/99 R
winding-up proceedings cannot constitute serious and irreversible damage (see, to
that effect, the order in Laakmann Karton v Commission, cited above, paragraph
28), the object of such proceedings being, on the contrary, to seek to repair the
situation of the undertakings concerned.
39 It is clear from the foregoing that the applicants have not shown that enforcement
of Decision 1999/60, the annulment of which they seek in their main action,
might cause them serious and irreparable harm which could not be remedied even
if the decision was annulled by the Court of First Instance.
40 The application for interim measures must therefore be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
II - 2448
HFB AND OTHERS V COMMISSION
2. Costs are reserved.
Luxembourg, 9 July 1999.
H. Jung
Registrar
B. Vesterdorf
President
II - 2449