Order of the President of the Court of 19 July 1995. - Commission of the European Communities v Atlantic Container Line AB and others. - Appeal - Order of the President of the Court of First Instance on an application for interim measures - Competition - Through intermodal transport. - Case C-149/95 P-R.



European Court reports 1995 Page I-02165



Summary

Parties

Grounds

Decision on costs

Operative part



Keywords

++++

1. Appeals ° Pleas in law ° Incorrect assessment of the facts ° Inadmissibility ° Application to appeals brought against an order on an application for interim measures

(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Arts 50, second para., and 51, first para.)

2. Applications for interim measures ° Suspension of operation ° Provisional measures ° Conditions for granting ° Prima facie case ° Serious and irreparable harm ° Power of assessment of the judge hearing the application

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2))

3. Applications for interim measures ° Suspension of operation ° Provisional measures ° Conditions for granting ° Urgency ° Imminent likelihood of serious and irreparable harm ° Concept

(EC Treaty, Arts 185 and 186; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2))

4. Applications for interim measures ° Suspension of operation ° Conditions for granting ° Balancing of all the interests involved ° Concept

(EC Treaty, Art. 185)

5. Appeals ° Pleas in law ° Insufficient statement of reasons ° Application as regards orders on applications for interim measures

Summary

1. Article 168a of the EC Treaty and the first paragraph of Article 51 of the EC Statute of the Court of Justice, under which an appeal may lie only on questions of law and may not extend to any assessment of the facts, apply equally to appeals brought under the second paragraph of Article 50 of the said Statute against decisions of the Court of First Instance on applications for interim relief.

2. The judge hearing an application for interim relief may order suspension of the 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. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.

In the context of that overall examination, the judge hearing the application 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 conditions 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.

3. To satisfy the condition that the applicant must be likely to suffer serious and irreparable harm in order for suspension of operation or other interim relief to be ordered, it is not necessary to establish with absolute certainty that the harm is imminent. It is sufficient that the harm in question, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability.

4. When, in the context of an application for suspension of operation in which it is alleged that the applicant is likely to suffer serious and irreparable harm, the judge hearing the application balances the various interests involved, he must examine whether the possible annulment of the contested decision by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed.

5. When deciding on an application for interim relief, the Court of First Instance cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify that order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review.

Parties

In Case C-149/95 P-R,

Commission of the European Communities, represented by B. Langeheine and R. Lyal, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of C. Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

appellant,

supported by

Freight Transport Association Ltd, an association governed by English law, having its head office in Tunbridge Wells, United Kingdom,

Association des Utilisateurs des Transports de Fret, an association governed by French law, having its head office in Paris,

European Council of Transport Users ASBL, an association governed by Belgian law, having its head office in Brussels,

and

Comité de Liaison Européen des Commissionnaires et Auxiliaires de Transport du Marché Commun (CLECAT), an association governed by Belgian law, having its head office in Brussels,

represented by M. Clough, Barrister, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

interveners,

APPEAL against the order of the President of the Court of First Instance of the European Communities of 10 March 1995 on the application for interim measures submitted to him in Case T-395/94 R between Atlantic Container Line AB and Others and Commission of the European Communities,

the other parties to the proceedings being:

Atlantic Container Line AB, a company governed by Swedish law, established in Gothenburg, Sweden,

Cho Yang Shipping Co., a company governed by Korean law, established in Seoul,

DSR-Senator Lines GmbH, a company governed by German law, established in Bremen, Germany,

Hapag Lloyd AG, a company governed by German law, established in Hamburg, Germany,

MSC Mediterranean Shipping Co., a company governed by Swiss law, established in Geneva, Switzerland,

A.P. Moeller-Maersk Line, a company governed by Danish law, established in Copenhagen,

Nedlloyd Lijnen BV, a company governed by Netherlands law, established in Rotterdam, the Netherlands,

Neptune Orient Lines Ltd (NOL), a company governed by Singapore law, established in Singapore,

Nippon Yusen Kaisha (NYK Line), a company governed by Japanese law, established in Tokyo,

Orient Overseas Container Line (UK) Ltd, a company governed by English law, established in Levington, United Kingdom,

P & O Containers Ltd, a company governed by English law, established in London,

Polish Ocean Lines, a company governed by Polish law, established in Gdynia, Poland,

Sea-Land Service Inc., a company governed by Delaware law, established in Jersey City, New Jersey, United States of America,

Tecomar SA de CV, a company governed by Mexican law, established in Mexico DF,

Transportación Marítima Mexicana SA, a company governed by Mexican law, established in Mexico DF,

represented by J. Pheasant, N. Bromfield and Suyong Kim, Solicitors, with an address for service in Luxembourg at the Chambers of Loesch & Wolter, 11 Rue Goethe,

supported by

Japanese Shipowners' Association, an association governed by Japanese law, having its head office in Tokyo, represented by Nicholas J. Forwood QC and Philip Ruttley, Solicitor, with an address for service in Luxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

and

European Community Shipowners' Associations ASBL, an association governed by Belgian law, having its head office in Brussels, represented by Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

interveners,

THE PRESIDENT OF THE COURT

after hearing the Advocate General, N. Fennelly,

makes the following

Order

Grounds

1 By application lodged at the Court Registry on 12 May 1995, the Commission brought an appeal under Article 168a of the EC Treaty and the second paragraph of Article 50 of the EC Statute of the Court of Justice against the order of the President of the Court of First Instance of 10 March 1995 in Case T-395/94 R, in which he granted in part an application for suspension of the operation of Commission Decision 94/980/EC of 19 October 1994 relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.446 ° Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1).

2 The factual background to the dispute is set out in the order under appeal in the following terms:

"15 The applicants are the fifteen liner shipping operators which were parties to the TAA, under which they together provided westbound and eastbound international liner services across the Atlantic for the carriage of container cargo between northern Europe and the United States of America. The TAA came into effect on 31 August 1992, replacing previous liner conference agreements. Four new members joined the TAA after it came into effect.

16 The TAA applies to several aspects of maritime transport. It contains, inter alia, rules on establishing freight rates, on service contracts (under which customers undertake to ship a minimum quantity over a given period in exchange for a rate lower than the normal) and on a capacity management programme (designed to limit the supply of transport in order to stabilize the market).

17 The TAA comprises two types of member. Those in the first category ("structured members") sit on the committees which monitor the application of the tariffs and service contracts. With two exceptions, those members also took part in the two liner conferences which preceded the TAA. Members in the second category ("unstructured members") do not sit on those committees and may enter into independent service contracts, unlike structured members. They may also take part in service contracts negotiated by the structured members, whereas structured members may not take part in contracts negotiated by unstructured members.

18 The TAA lays down the rates applicable to maritime transport and to through-intermodal transport, which includes both the maritime transport and the inland haulage, to or from the coast, of goods from or to a point inland. The rates applicable to through-intermodal transport, which concern in each case a single contract of carriage, thus cover both the sea and the inland portions.

19 The TAA was notified to the Commission on 28 August 1992. Pursuant to Article 12(1) of Council Regulation (EEC) No 4056/86 of 22 December 1986 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport (OJ 1986 L 378, p. 4), the applicants sought the application of Article 85(3) of the Treaty.

20 By letter of 24 September 1992, the Commission informed the applicants that it would examine the TAA also under the provisions of Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302).

21 Between 13 October 1992 and 19 July 1993, the Commission received a large number of complaints relating to the implementation of the TAA. Those complaints were lodged by exporters and associations of exporters established in various Member States of the Community and exporting to the United States of America, by various port authorities in Europe and by a number of forwarding agents and associations of forwarding agents. They included various allegations that the TAA was in breach of Articles 85 and 86 of the Treaty, with regard to the fixing of rates, by imposing unfair contract terms and by artificially limiting the supply of transport.

22 The complainants asked the Commission to adopt interim measures under Article 11(1) of Regulation No 4056/86. After opening the procedure provided for under Article 23 of that regulation, the Commission did not accede to those requests.

23 By letter of 10 December 1993, the Commission addressed a statement of objections to the applicants.

24 Following the discussions which took place during the course of the administrative procedure, the applicants notified a modified version of the TAA, the Trans-Atlantic Conference Agreement ("the TACA"), to the Commission. After a number of amendments, that new agreement entered into effect on 24 October 1994, replacing the TAA. The Commission had not yet, at that time, completed its examination of the TACA.

25 On 19 October 1994, the Commission adopted the contested decision. Article 1 finds that the provisions of the TAA relating to price-fixing and capacity infringe Article 85(1) of the Treaty. Article 2 refuses the application of Article 85(3) of the Treaty or Article 5 of Regulation No 1017/68 to the provisions of the TAA referred to in Article 1. Article 3 of the decision requires the addressees specified in Article 6 to bring an end to the infringements referred to in Article 1, and Article 4 requires them to refrain in future from any agreement or concerted practice which may have the same or a similar object or effect as the agreements and practices referred to in Article 1. Finally, Article 5 requires the addressees, within a period of two months, to inform customers with whom they have concluded service contracts or other contractual relations in the context of the TAA that such customers are entitled, if they so wish, to renegotiate the terms of those contracts or to terminate them forthwith."

3 By application registered at the Court of First Instance on 23 December 1994, fifteen liner shipping companies ("Atlantic Container Line AB and Others"), which were parties to the TAA, brought an action under Article 173 of the EC Treaty for the annulment of Decision 94/980/EC.

4 By separate application under Articles 185 and 186 of the EC Treaty, registered at the Court of First Instance on the same date, they also sought suspension of the operation of the contested decision.

5 In the order under appeal, the President of the Court of First Instance, inter alia, suspended the operation of Articles 1, 2, 3 and 4 of Decision 94/980/EC "in so far as they prohibit the applicants from jointly exercising rate-making authority in respect of the inland portions within the Community of through-intermodal transport services" (paragraph 4 of the operative part of the order).

6 In this appeal, the Commission requests the President of the Court of Justice to set aside that order in so far as it suspends the operation of Articles 1, 2, 3 and 4 of Decision 94/980/EC, dismiss the application for interim measures and order the applicants before the Court of First Instance to pay the costs of the interlocutory proceedings.

7 Atlantic Container Line AB and Others lodged written observations at the Registry on 15 June 1995. The Japanese Shipowners' Association and the European Community Shipowners' Associations ASBL, interveners in support of the applicants before the Court of First Instance, and the Freight Transport Association Ltd, the Association des Utilisateurs des Transports de Fret and the European Council of Transport Users ASBL, interveners in support of the Commission, all lodged written observations at the Court Registry on 16 June 1995.

8 By document lodged at the Court Registry on 21 June 1995, the Comité de Liaison Européen des Commissionnaires et Auxiliaires de Transport du Marché Commun ("CLECAT") applied for leave to intervene in support of the Commission.

9 CLECAT' s arguments in support of its application for leave to intervene reveal a prima facie interest in the result of the case, justifying the granting of its application, and it was duly notified thereof by letter of the Court Registry of 22 June 1995.

10 CLECAT submitted its written observations on the present appeal on 30 June 1995.

11 Since the parties' written observations contain all the information necessary to rule on the present appeal, there is no need to hear oral argument.

Admissibility

12 Atlantic Container Line AB and Others submit that the appeal is inadmissible for two reasons.

13 They argue, first, that the appeal was brought pursuant to Article 49 of the EC Statute of the Court of Justice and not in accordance with Article 50, the applicable provision.

14 In that regard, it must be held that the incorrect reference in the application to a provision of the EC Statute of the Court of Justice as constituting the basis for the appeal, when the Rules of Procedure of the Court do not require any such reference, was merely a clerical error, rectified, moreover, by the Commission by letter of 14 June 1995 to the Court Registry. That error, which has been without incidence on the subsequent course of the proceedings, is not a ground for finding the appeal inadmissible.

15 That argument must therefore be rejected.

16 Secondly, Atlantic Container Line AB and Others submit that the appeal is inadmissible, at least in part, because it is not limited to points of law as prescribed by Article 51 of the EC Statute of the Court of Justice.

17 In that regard, it must be borne in mind that, under Article 168a of the EC Treaty and the first paragraph of Article 51 of the EC Statute of the Court of Justice, an appeal may lie only on grounds relating to a breach of legal rules by the Court of First Instance, and may not extend to any assessment of the facts.

18 Since those provisions apply equally to appeals brought under the second paragraph of Article 50 of the EC Statute of the Court of Justice, this appeal must be limited to points of law alone, and may not call into question the way in which the President of the Court of First Instance assessed the facts when granting the interim measures.

19 The allegations of Atlantic Container Line AB and Others in that regard must nevertheless be examined in the context of the pleas in law put forward by the Commission in support of its appeal.

Substance

20 The Commission considers that the order is vitiated by a number of errors of law: as regards the assessment of whether a prima facie case and circumstances of urgency ° without which, under Article 104(2) of the Rules of Procedure of the Court of First Instance, an application to suspend the operation of a measure cannot be granted ° were established; as regards the balance of the competing interests involved; as regards the application of the principle of proportionality; and as regards the statement of reasons.

21 It must be borne in mind, in limine, that under Articles 185 and 186 of the EC Treaty, the judge hearing an application for interim relief may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures. In doing so, account must be taken of the conditions laid down in Article 83(2) of the Rules of Procedure of the Court

of Justice or Article 104(2) of the Rules of Procedure of the Court of First Instance, as further defined in the case-law.

22 It is thus open to the judge hearing an application to order the suspension of the operation of an act, or other interim measures, only 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 damage to the applicant' s interests, it must be made and produce its effects before a decision is reached in the main action. Such an order must further be provisional inasmuch as it must not prejudge the points of law or fact in issue or neutralize in advance the effects of the decision subsequently to be given in the main action.

23 In the context of that overall examination, the judge hearing the application 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 conditions are to be examined, there being no rule of Community law imposing a preestablished scheme of analysis within which the need to order interim measures must be analysed and assessed.

24 It is in the light of those considerations that it must be determined whether, having regard to the pleas in law put forward by the Commission, the order under appeal remained within those limits and is not vitiated by an error in law.

Prima facie case

25 The Commission submits that the order under appeal contains an error in the assessment of the factors establishing a prima facie case for the interim measures applied for. It argues that paragraph 49 of the order, finding that the pleas in law put forward by Atlantic Container Line AB and Others "appear, prima facie, to be relevant and in any event not entirely ungrounded", transforms the test of "fumus boni juris" into a test of "fumus non mali juris", thus weakening the requirement, since an applicant need no longer demonstrate that the allegations in the main action are, prima facie, well-founded but merely that the case must not be obviously unfounded.

26 In that regard, it must be noted that a number of different forms of wording have been used in the case-law to define the condition relating to the establishment of a prima facie case, depending on the individual circumstances. The wording of the order under appeal, referring to pleas in law which are not, prima facie, entirely ungrounded, is identical or similar to that used on a number of occasions by this Court or its President (see, inter alia, Case 56/89 R Publishers Association v Commission [1989] ECR 1693, paragraph 31; Case 246/89 R Commission v United Kingdom [1989] ECR 3125, paragraph 33; Case C-195/90 R Commission v Germany [1990] ECR I-2715, paragraph 19; Case C-272/91 R Commission v Italy [1992] ECR I-457, paragraph 24; and Case C-280/93 R Germany v Council [1993] ECR I-3667, paragraph 21). Such a form of wording shows that, in the opinion of the judge hearing the application, the arguments put forward by the applicant cannot be dismissed at that stage in the procedure without a more detailed examination.

27 It is clear from the case-law cited above that the judge hearing an application may consider that, in the light of the circumstances of the case, such pleas in law provide prima facie justification for ordering suspension of the application of an act under Article 185 or interim measures under Article 186.

28 The Commission further submits that the TAA constitutes a clear infringement of Article 85(1) of the Treaty, that the fixing of prices for inland transport is not covered by the block exemption in Regulation No 4056/86 and that it cannot grant an individual exemption since there is no benefit for consumers and the restriction in question is not indispensable.

29 The parties intervening in support of the Commission add that the way in which the condition relating to the establishment of a prima facie case was applied in the order under appeal results in arguments which are in reality unarguable being considered as founded prima facie. That is true in particular of the statement by Atlantic Container Line AB and Others that the relevant market for inland container transport in the context of through-intermodal transport is the market for maritime transport.

30 It must be noted that an assessment of the merits of the arguments of Atlantic Container Line AB and Others to the effect, principally, that agreements relating to the inland portions of through-intermodal transport are covered by the block exemption under Article 3 of Regulation No 4056/86, or that the TAA should in any event have been granted an individual exemption on the basis of Article 85(3) of the Treaty or on that, in so far as it may be applicable, of Article 5 of Regulation No 1017/68, involves an examination of complex questions of law, including the determination of the respective scopes of Regulation No 4056/86 and Regulation No 1017/68. Such questions require thorough consideration after hearing argument from both sides.

31 The Commission' s claim that the TAA constitutes a clear infringement of Article 85(1) of the Treaty is not relevant, since the question then arises whether that agreement may lawfully benefit from a block or individual exemption.

32 The Commission and the parties intervening in its support submit, finally, that the claim made by the applicants before the Court of First Instance and referred to in paragraph 49 of the order under appeal, to the effect that the Commission unlawfully applied to the TACA its conclusions with regard to the TAA, is irrelevant since the contested decision concerns only the TAA.

33 That allegation is erroneous. Article 4 of the contested decision, by requiring Atlantic Container Line AB and Others to refrain in future from any agreement or concerted practice which may have the same or a similar object or effect as the agreements and practices referred to in Article 1, undeniably covers the TACA, which is an amended version of the TAA.

34 The first plea in law must therefore be rejected.

Urgency

35 In a further plea, the Commission claims that the assessment of the condition relating to urgency in the order under appeal is vitiated by a number of errors of law which again lead to a weakening of the condition.

36 In the first place, the Commission considers that the order under appeal takes into consideration the mere possibility of harm as giving rise to urgency. However, it is settled law that the applicant must demonstrate that, on the balance of probabilities, it will suffer specific, serious and irreparable harm.

37 As regards that first argument, it must be noted that paragraph 50 of the order under appeal correctly pointed to the settled case-law to the effect that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for them.

38 In that regard, contrary to the Commission' s submission, the order does not take into consideration purely hypothetical damage but serious and irreparable harm which, in the light of the circumstances of the case, Atlantic Container Line AB and Others are likely to suffer as a result of the immediate implementation of the contested decision. Nor does it follow from the said case-law that it must be established with absolute certainty that the harm is imminent. It is sufficient that the harm in question, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability (see, inter alia, the order in Germany v Council, cited above, paragraphs 32 and 34).

39 The analysis in the order under appeal relating to that harm, and the evaluation of the evidence submitted to prove it, require an assessment of the facts which this Court is not empowered to review, since any appeal is limited to points of law alone.

40 The first argument must therefore be rejected.

41 Secondly, the Commission considers that an applicant for interim measures must demonstrate a causal link between the contested decision and the alleged harm. In the present case, that harm does not flow inevitably from the application of the contested decision. That decision does not compel the applicants to charge any particular rate for through-intermodal transport; furthermore, even if the alleged harm were attributable to the contested decision, the Commission has shown a way in which it could be avoided, namely by the transporters in question agreeing not to charge below cost for inland transport services. Such a solution could have been granted an individual exemption under Article 85(3) of the Treaty and could have been imposed by the judge hearing the application as an interim measure.

42 That argument must be rejected.

43 Even if the harm which Atlantic Container Line AB and Others were likely to suffer were ascribable principally to the conduct of the companies to which the contested decision was addressed inasmuch as they applied special rates for through-intermodal transport, such a situation could still not occur without the application of the contested decision. Moreover, in assessing the various circumstances giving rise to urgency put forward by the parties, the judge hearing the application is free to consider which among them are convincing in order to justify its decision. The possibility of taking another measure as an alternative to suspending the operation of the decision, to which the Commission refers, is thus only one of those circumstances, which the judge hearing the application may take into account but which cannot, alone, constrain it to dismiss the application for suspension.

44 In the third place, the Commission considers that paragraph 55 of the order under appeal presents as a general principle that major changes, as a result of the adoption of a decision, to the framework in which its addressees operate might lead to developments on the market that would subsequently be very difficult to reverse if the main action were successful. The Commission submits, in that regard, that there is no such general principle and that the case-law to which paragraph 55 refers relates solely to vertical distribution arrangements whose dismantling it would have been difficult to reverse since consumers would not have accepted a return to the old system, whereas the present case concerns a horizontal price-fixing scheme which could be reestablished without difficulty.

45 Paragraph 55 of the order under appeal reads as follows: "As has been held in the past in applications for interim measures, such situations, in which market conditions as a whole are modified by a Commission decision applicable within a relatively short period, involve a risk of serious and irreparable damage to the addressees of the decision, since they imply major changes to the framework in which they operate. Such changes might lead to developments on the market that would subsequently be very difficult to reverse if the main action were successful. Conversely, suspension of the operation of the decision is not such as to prevent its subsequently becoming fully effective should the main application be dismissed (see the orders in [Joined Cases 76/91 R, 77/91 R and 91/89 R] RTE and Others v Commission [[1989] ECR 1141], paragraphs 15 and 18; Case 56/89 R Publishers Association v Commission [1989] ECR 1693, paragraphs 34 and 35; Joined Cases T-24/92 R and T-28/92 R Langnese-Iglo and Schoeller v Commission [1992] ECR II-1839, paragraph 29; and Case T-29/92 R SPO and Others v Commission [1992] ECR II-2175, paragraph 31)."

46 That paragraph does not set out any general principle as to the condition relating to urgency; moreover, the references to the case-law which it contains serve only to illustrate the conclusions which the judge hearing the application reached on the basis of an assessment of the facts.

47 The second plea in law must therefore be rejected.

Balance of interests

48 In its third plea, the Commission and the parties intervening in its support claim that the President of the Court of First Instance did not take sufficient account of the interests of third parties, in particular those of European shippers and exporters who, as a result of the price increases imposed by Atlantic Container Line AB and Others, will suffer significant harm. Nor, the Commission adds, was account taken of the general interest of European industry and the economy at large.

49 The Commission considers that, in any event, the balance of interests cannot be carried out until it has been established that Atlantic Container Line AB and Others would suffer serious and irreparable harm if the contested decision were implemented immediately.

50 It is settled law that serious and irreparable harm, one of the criteria for establishing urgency, also constitutes the first element in the comparison carried out in assessing the balance of interests. More particularly, that comparison must lead the judge hearing the application to examine whether the possible annulment of the contested decision by the Court giving judgment in the main action would make it possible to reverse the situation that would have been brought about by its immediate implementation and conversely whether suspension of the operation of that decision would be such as to prevent its being fully effective in the event of the main application being dismissed (see, in particular, RTE and Others v Commission, cited above, paragraph 15).

51 In the present case, paragraph 55 of the order under appeal finds that suspension of the operation of the contested decision is not such as to prevent its subsequently becoming fully effective should the main application be dismissed but that, on the other hand, implementation of the Commission' s decision would give rise to difficulties of a different degree of gravity since it implies major changes to the framework in which Atlantic Container Line AB and Others operate, which might lead to developments on the transport market that would subsequently be very difficult to reverse if the main action were successful.

52 Those reasons sufficiently demonstrate that in the present case the judge hearing the application evaluated the competing interests involved by weighing against each other the public interest in seeing Commission decisions on competition matters implemented, the interest of the addressees of the decision in avoiding any serious and irreparable harm being caused to them and the need to maintain stability on the relevant market as a whole.

53 The third plea must therefore be rejected.

The principle of proportionality

54 In its fourth plea in law, the Commission submits that the order under appeal infringes the principle of proportionality inasmuch as the interim measures were not limited to what was strictly necessary in order to avoid the alleged harm. Not only was a less restrictive option ° that of agreeing not to charge below cost for inland portions of through-intermodal transport services ° open to the applicants before the Court of First Instance but, furthermore, suspension of the operation of Articles 1, 2 and 3 of the contested decision was not necessary in order to protect the interests of Atlantic Container Line AB and Others. In the Commission' s view, that suspension could have been confined to Article 4 of the decision, prohibiting any future recourse to any agreement or concerted practice which might have the same or a similar object or effect as the agreements and practices in issue.

55 In paragraphs 56 and 57 of the order under appeal, it is established, in the light of the specific circumstances of the case and in particular of the economic importance of the market for maritime transport, that major changes to the framework in which the applicants operate, such as the application of the contested decision would imply, might entail a risk not merely of causing serious and irreparable damage to the applicants but also of compromising the stability of the market. The Commission' s claims do not invalidate those findings which, in the opinion of the judge hearing the application, constitute a fundamental objection to the immediate implementation of the decision whose operation it was sought to suspend, even taking into account the alternative provisional measures put forward by the Commission.

56 In those circumstances, it is not possible to hold that the order under appeal shows any manifest error of assessment with regard to the principle of proportionality. The fourth plea must therefore be rejected.

Statement of reasons

57 In its fifth plea in law, the Commission submits that the order under appeal does not state sufficient reasons with regard to certain essential points, in particular the causal link between the contested decision and the alleged harm, the interests of third parties and the balance of interests in general.

58 In that regard, it must be pointed out that the judge hearing the application cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify that order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review.

59 In view of the considerations set out above, concerning specifically the questions of urgency and the balance of interests as examined in the order under appeal, the fifth plea must be rejected as unfounded.

60 The appeal must therefore be dismissed.

Decision on costs

Costs

61 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the pleas in law put forward by the appellant have been rejected, it must be ordered to bear the costs of the present appeal.

62 Under Article 69(4) of the Rules of Procedure, the Freight Transport Association Ltd, the Association des Utilisateurs des Transports de Fret, the European Council of Transport Users ASBL and CLECAT, which intervened in support of the Commission, must bear their own costs.

Operative part

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1. The appeal is dismissed.

2. The Commission shall bear the costs.

3. The Freight Transport Association Ltd, the Association des Utilisateurs des Transports de Fret, the European Council of Transport Users ASBL and the Comité de Liaison Européen des Commissionnaires et Auxiliaires de Transport du Marché Commun shall bear their own costs.

Luxembourg, 19 July 1995.