Order of the President of the General Court of 2 March 2011 – 1. garantovaná vCommission

(Case T-392/09 R)

Application for interim measures – Competition – Commission Decision imposing a fine – Bank guarantee – Application for suspension of operation of a measure – Prima facie case – Financial loss – Exceptional circumstances – Urgency – Balance of interests – Partial and conditional suspension

1. Procedure – Intervention – Application for interim measures – Conditions for admissibility – Interest in the result of the interim proceedings – Application to intervene by shareholders of a company which made an application for suspension – No independent right of each shareholder to intervene without the need to establish a specific interest having regard to the subject-matter of the dispute – Risk of overburdening the interim proceedings – Dismissal of application (Statute of the Court of Justice, Art. 40) (see paras 11-12, 14-16, 18)

2. Application for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Weighing-up of the interests – Discretion of the judge dealing with the application for interim relief (Art. 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 20-22)

3. Application for interim measures – Suspension of operation of a measure – Suspension of a decision fining an undertaking for a breach of the competition rules – Conditions for granting – Prima facie case – Concept – Commission not taking account of the contributory capacity of an undertaking in a particular social and economic context – Situation requiring an in-depth examination outside the scope of the interim proceedings – Inclusion within the concept (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 26-28)

4. Application for interim measures – Suspension of operation of a measure – Conditions for granting – Serious and irreparable damage – Burden of proof – Financial loss – Risk of insolvency – Duty to provide concrete and precise indications, supported by detailed evidence faithfully showing the overall financial situation of the applicant – Compliance at the time of making the application (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 37-39, 46-48)

5. Application for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for not proceeding to immediate recovery of a fine – 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 (Art. 278 TFEU) (see paras 40-42, 53, 56, 61-66)

6. Application for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for not proceeding to immediate recovery of a fine – Conditions for granting – Serious and irreparable damage – Taking into consideration of the financial situation of the group to which the undertaking belongs – Company, financial and personal links insufficient to establish belonging (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 73-74, 79-82)

7. Application for interim measures – Interim measures – Conditions for granting – Urgency – Account to be taken of a lack of diligence on the part of the applicant – Not permissible (Art. 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 86-87)

8. Application for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for not proceeding to immediate recovery of a fine imposed for breach of the competition rules – Balancing of all the interests involved – Cessation of the applicant’s business following the implementation of the contested decision – Financial interests and public interest of the Union being capable of being better protected where provisional measures granted – Preponderance of the interests of the applicant – Conditions enabling the full effect of the contested decision to be preserved (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 101-120)

9. Application for interim measures – Suspension of operation of a measure – Interim measures – Modification or setting aside – Condition – Change of circumstances (Rules of Procedure of the General Court, Art. 108) (see para. 121)

Re:

APPLICATION for suspension of operation of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries).

Operative part

1. The application for leave to intervene, lodged by Messrs Jaroslav Červenka, Milan Hošek, Roman Murar, Adrián Vološin, Milan Kasanický and Peter Fratič, is dismissed.

2. The obligation on the applicant, 1. garantovaná a.s., to provide the European Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries) is suspended until the earlier of the following two events occurs:

– maturing of the long-term loans on 11 July 2012,

– delivery of the judgment bringing the main proceedings to an end,

provided that:

– from notification of this order, the applicant does not transfer, either directly or indirectly, its shares in its subsidiary G1 Investments Ltd without the Commission’s prior authorisation;

– within a period of one month from notification of this order, the applicant provides to the President of the General Court a written agreement pursuant to which neither its subsidiary G1 Investments nor G1 Investments’ subsidiary, Bounty Commodities Ltd, may transfer their assets to a third party without the Commission’s prior authorisation;

– upon notification of this order, the applicant pays to the Commission the sum of EUR 2.1 million;

– within a period of one month from notification of this order, then every three months until delivery of judgment in the main action, and upon every event which might have an effect on its future ability to pay the fine imposed, the applicant provides the Commission with a written report on the development of its assets, and more specifically its long-term investments.