Case T‑522/15 R

(publication by extracts)

CCPL — Consorzio Cooperative di Produzione e Lavoro SC and Others

v

European Commission

‛Application for interim measures — Competition — Cartels — Retail food packaging — Decision imposing fines — Bank guarantee — Application for suspension of operation — Prima facie case — Urgency — Balance of interests’

Summary — Order of the President of the General Court, 15 December 2015

Application for interim measures — Suspension of operation of a measure — Suspension of the obligation to constitute a bank guarantee as a condition for not demanding immediate recovery of a fine imposed for breach of the competition rules — Balancing of all the interests involved

Application for interim measures — Suspension of operation of a measure — Suspension of the obligation to constitute a bank guarantee as a condition for not demanding immediate recovery of a fine imposed for breach of the competition rules — Conditions for granting — Exceptional circumstances — Taking into consideration of the financial situation of the group to which the undertaking belongs

Application for interim measures — Suspension of operation of a measure — Suspension of the obligation to constitute a bank guarantee as a condition for not demanding immediate recovery of a fine imposed for breach of the competition rules — Conditions for granting — Exceptional circumstances — Burden of proof — Refusal of banks to provide such a bank guarantee — Admissibility as evidence of objective impossibility of obtaining such a financial instrument

Application for interim measures — Suspension of operation of a measure — Conditions for granting — Prima facie case — Suspension of the obligation to constitute a bank guarantee as a condition for not demanding immediate recovery of a fine imposed for breach of the competition rules — Plea that the Commission underestimated the gravity of the financial situation of the undertaking concerned — Prima facie existence of a sufficient probability of the EU judicature reducing the amount of the fines imposed — Plea not prima facie lacking in foundation

In the case of an interim application seeking dispensation from the obligation to constitute a bank guarantee as a necessary condition to avoid immediate recovery of fines imposed by the Commission for breach of the competition rules, the condition relating to a prima facie case is satisfied where there are several factors which suggest that, in the contested decision, the Commission underestimated the seriousness of the loss-making financial situation of the fined undertaking. In any event, the Court hearing the interim application cannot avoid the conclusion that the assessment of the considerations set out above calls for a close examination to be conducted by the Court when it comes to adjudicate on the substance in the main proceedings. In accordance with Article 261 TFEU and Article 31 of Council Regulation (EC) No 1/2003, the EU judicature has unlimited jurisdiction to review disputed fine determinations by the Commission. The Court with unlimited jurisdiction may, when exercising its power to vary decisions, take account of the legal and factual situation existing on the date it issues a ruling. The condition relating to a prima facie case is therefore satisfied where the Court hearing the interim application considers that there is, prima facie, a sufficiently high probability that the Court, when adjudicating on the substance, will grant the applicants a substantial reduction of the amount of the fines imposed by the Commission in the contested decision. (see paras 14, 34, 41-43)

Since the possibility of requiring the provision of a bank guarantee is a general and reasonable way for the Commission to act, only in exceptional circumstances can a fined undertaking obtain dispensation from the obligation to provide such a guarantee as a condition for the fines imposed not being recovered immediately. In order to prove that such exceptional circumstances exist, that undertaking must, in principle, adduce evidence either that it is objectively impossible for it to provide a bank guarantee or that such provision would imperil its existence. Those two exceptional circumstances are alternative and not cumulative. Consequently, in the case of an interim application seeking dispensation from the obligation to constitute such a guarantee, if the said undertaking is able to prove, to the requisite legal standard, that it is objectively impossible for it to provide a bank guarantee for the fines imposed, it is appropriate to acknowledge the urgency of the application for suspension of operation. Moreover, the said undertaking must be regarded as having demonstrated to the requisite legal standard that it is objectively impossible for it to provide a bank guarantee where it has been refused a bank guarantee by twelve financial institutions. (see paras 49-51, 66)

Where an application for interim relief is made, taking into account the strength of the group to which the party seeking interim measures belongs is based on the consideration that the objective interests of that party are not to be viewed independently from the interests of the persons who control it or who are members of the same group, bearing in mind that that approach applies, in the light of the shareholding structure of the group, even to minority shareholders with 50%, 40% or even 30% of the share capital of the company in question. However, the concept of a group does not apply in a cooperative environment where there is no sufficiently close convergence of interests between the cooperatives, on the one hand, and the ultimate parent company and the sister cooperatives, on the other. (see paras 69, 70)