Order of the President of the General Court of 24 November 2011 – Éditions Jacob v Commission

(Case T-471/11 R)

Application for interim measures – Competition – Concentration of undertakings – Decision declaring the concentration compatible with the common market subject to sale of assets – Annulment by the General Court of the initial decision on the Commission’s approval of the purchaser of the sold assets – Application for suspension of operation of the decision on the further approval of the same purchaser – No urgency – Weighing of interests

1. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Order of examination and method of verification – Discretion of the court hearing the application for interim relief (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court , Art. 104(2)) (see paras 30-31)

2. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Financial loss – Irreparable alteration in market share – Included – Conditions – Assessment having regard to the size of the undertaking and the situation of the group to which it belongs (Arts 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 34-35, 67-70)

3. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Serious and irreparable damage – Non-material damage – Reputation of an undertaking adversely affected by non-selection of its tender – Decision of the Commission approving the selection made – No direct link between that decision and the damage claimed – No urgency (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 42-49)

4. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Serious and irreparable damage – Financial loss – Purely hypothetical loss – Not included (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see para. 59)

5. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Urgency – Serious and irreparable damage – Loss of opportunity by an undertaking because its tender not selected – Decision of the Commission approving the selection made – Decision capable of having aggravated that loss of opportunity – Loss capable of full reparation in the context of the action in the main proceedings or an action for compensation – Not irreparable in character (Arts 268 TFEU, 278 TFEU and 340 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 60-66)

6. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Balancing of all the interests involved – Visibility and prestige of the applicant undertaking presumed to have been adversely affected – Situation not capable of imperilling the existence of the applicant undertaking – Suspension capable of having a serious impact on the rights and interests of third parties – Requirement not met (Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2)) (see paras 74-78)

Re:

APPLICATION for suspension of operation of Commission Decision C(2011) 3503 of 13 May 2011 on the approval of Wendel Investissement SA as the purchaser of the assets sold in accordance with Commission Decision 2004/422/EC of 7 January 2004 declaring a concentration compatible with the common market and the functioning of the EEA Agreement (Case COMP/M.2978 – Lagardère/Natexis/VUP).

Operative part

1. The application for interim measures is dismissed.