Keywords

Summary



Keywords

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1. Applications for interim measures ° Suspension of operation of a measure ° Suspension of the operation of a decision imposing a fine ° Conditions for granting ° Serious and irreparable harm ° Account to be taken of the size and economic power of companies which are members of an association of companies and/or benefit from the services of a foundation required to pay the fine

(EC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104; Council Regulation No 17, Art. 15(2))

2. Applications for interim measures ° Interim measures ° Purpose ° Application for an order that the Commission grant a party access to the file in an administrative procedure regarding a competition matter concerning it ° Excluded

(EC Treaty, Art. 186)

Summary

1. In order to assess the risk of serious and irreparable harm which it is claimed will result from the immediate payment of fines imposed by the Commission both on an association of companies and on a foundation performing the same activities and pursuing the same objects as that association or from the provision of bank guarantees which the Commission requires from them in the alternative, the judge hearing the application for interim measures must take into account the size and economic power of the companies which are members of the association and/or benefit from the foundation' s services.

The ceiling on fines fixed by Article 15(2) of Regulation No 17, equivalent to 10% of turnover during the previous financial year, must be calculated by reference to the turnover achieved by each undertaking which is a party to the agreements and concerted practices in question and, where the infringement is a result of a decision of an association of undertakings, by all the member companies of the association, at least where its internal rules permit the association to hold its members liable. Such an approach is based on the idea that the influence which an association of undertakings has been able to exercise on the market does not depend upon its own "turnover", which reveals neither its size nor its economic power, but rather upon its members' turnover, which constitutes an indication of its size and economic power. Similarly, where the infringement is committed by a foundation which is not acting independently of the undertakings that contribute to its assets, it is appropriate to take into account the financial capacity of the undertakings benefiting from its services.

2. A direction to the Commission to allow an applicant to have sight of the file in the competition case in which it is involved falls, in principle, within the scope of measures of organization of procedure or measures of enquiry, which are within the jurisdiction of the Court of First Instance and not within the scope of interim measures adopted in proceedings for interim relief. If the Commission has refused to grant access to the file to a party to the administrative procedure, it is for the Court of First Instance to assess whether or not it is expedient to grant that party access thereto during the main proceedings, so as to enable it to ensure the conduct of its defence and to allow the Court to consider, with full knowledge of the facts, the pleas and arguments upon which it relies.