Keywords

Summary



Keywords

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Applications for interim measures ° Suspension of operation of a measure ° Provisional measures ° Application by undertakings having notified an agreement, seeking to forestall the application of a decision, not yet adopted, to withdraw immunity from fine ° Inadmissible

(EC Treaty, Arts 173, fourth para., 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(1))

Summary

By virtue of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application under Article 185 of the Treaty to suspend the operation of a measure adopted by an institution is admissible only if the applicant is challenging that measure in proceedings before the Court, and an application for the adoption of any other interim measure referred to in Article 186 of the EC Treaty is admissible only if it is made by a party to a case before the Court of First Instance and relates to that case.

Consequently, undertakings which have notified an agreement are, at least in principle, not entitled to seek in advance suspension of a decision which the Commission has intimated that it intends to adopt, withdrawing the immunity ensuing from such notification from fines in respect of breaches of the competition rules in the Treaty, even before it has been adopted and the parties concerned have brought an action for its annulment under the fourth paragraph of Article 173 of the Treaty.

As regards such undertakings, such a mere declaration has no binding effect against which they might be entitled to seek to protect themselves and, if a decision is actually taken, the legitimate interests of the undertakings concerned will be protected by their right to bring an action against it and to apply concurrently for interim relief in the form of suspension of its operation.

The fact that the notified agreement relates to practices already covered by an earlier agreement which the Commission has held to be illegal in a decision against which the undertakings concerned have brought annulment proceedings and suspension of whose operation they have been granted does not render their interim application any less premature and thus inadmissible. Their interim application, in so far as it concerns the possible withdrawal of the immunity from fine entailed by the notification of a new agreement, cannot be linked to the action brought against the decision relating to the previous decision, since a decision withdrawing immunity is adopted following completion of a specific procedure and its annulment may be sought. Furthermore, it is not until the decision withdrawing immunity has been taken that the question of its compatibility or otherwise with the suspension already granted to the undertakings of the requirement of bringing their previous agreement to an end could be examined in the context of an action seeking its annulment accompanied, if appropriate, by an application for its suspension.

In addition, a decision withdrawing immunity from fines, if adopted, could produce effects only in respect of the period following its notification and would not produce irreversible effects, such as obliging the undertakings concerned to bring their practices immediately to an end in order to avoid incurring heavy fines before a Court ruling could be obtained, so that there is no need for preventive interim measures.