ORDER OF THE PRESIDENT OF THE COURT

16 December 2010 ( )

(Appeal – Interim measures – Competition – Payment of a fine – Bank guarantee – Dismissal of an application for suspension of operation of a measure – Urgency)

In Case C‑373/10 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 16 July 2010,

Almamet GmbH Handel mit Spänen und Pulvern aus Metall, established in Ainring (Germany), represented by S. Hautbourg, avocat, and C. Renner, Rechtsanwältin,

appellant,

the other party to the proceedings being:

European Commission, represented by N. Khan, V. Bottka and N. von Lingen, acting as Agents,

defendant at first instance,

THE PRESIDENT OF THE COURT,

after hearing First Advocate General Bot,

makes the following

Order

1 By its appeal, Almamet GmbH Handel mit Spänen und Pulvern aus Metall (‘the appellant’) seeks to have set aside the order of the President of the General Court of the European Union of 7 May 2010 in Case T‑410/09 R Almamet v Commission (‘the order under appeal’), by which the General Court dismissed its application for interim measures which had sought an order, first, for suspension of operation of the Commission’s decision of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), imposing a fine of EUR 3 040 000 on the appellant and, second, for dispensation from the requirement that the appellant provide a bank guarantee as a condition for suspending enforcement of the fine.

Facts and the procedure before the judge hearing the application for interim measures

2 The facts and procedure before the judge hearing the application for interim measures are set out, in paragraphs 1 to 11 of the order under appeal, in the following terms:

‘1 The applicant, Almamet GmbH Handel mit Spänen und Pulvern aus Metall, is a company established in Germany operating in the markets for calcium carbonide and magnesium granulates.

2 On 22 July 2009, the Commission [of the European Communities] adopted the [contested decision], in which it imposed a fine of EUR 3 040 000 on the applicant for its participation in a cartel.

3 By letter of 24 July 2009, the Commission notified the applicant of the contested decision. In that letter, the Commission also informed the applicant of the time-limit for payment of the fine of three months from the notification of the decision. In addition, it stated that, if the applicant decided to bring an action against that decision before the General Court, the Commission would recover the fine provisionally or require the provision of a bank guarantee covering the amount of the principal debt and the interest and accruals which would be due thereon.

4 On 14 August 2009, the applicant asked for a meeting with the staff of the Commission’s accounting officer in order to discuss the possibility of suspending payment of the fine, without having to provide a bank guarantee for the same sum. A meeting took place with staff of the Commission’s Directorate-General for Budget on 25 August 2009.

5 By a letter of 9 September 2009, the applicant sent the Commission information intended to demonstrate its inability to pay the fine imposed on it and asking if payment of the fine could be staggered. Following further requests from the Commission’s Directorate-General for Budget on 11 and 14 September 2009, the applicant sent the Commission several electronic messages supplementing the information provided in its letter of 9 September 2009. The applicant’s request for the suspension of payment of the fine was rejected on 16 October 2009.

6 On 27 October 2009, the applicant paid a sum of EUR 650 000 to the account specified by the Commission in the contested decision.

Procedure and forms of order sought by the parties

7 By application lodged at the [General] Court Registry on 7 October 2009, the applicant brought an action for, in essence, annulment of the contested decision, and, in the alternative, reduction of the amount of the fine imposed upon it by the Commission.

8 By separate document lodged at the [General] Court Registry on 6 November 2009, the applicant brought an application to obtain suspension of the operation of the contested decision. It claims, in essence, that the President of the [General] Court should:

– suspend the operation of the contested decision, without requiring the applicant to provide a bank guarantee as a condition for suspending enforcement of the fine;

– order any other measure which is considered necessary;

– order the Commission to pay the costs.

9 By letter of 11 November 2009, the President of the [General] Court put a number of questions to the parties.

10 On 13 November 2009, the parties lodged at the [General] Court Registry their replies to the questions put by the President of the Court.

11 In its written observations on the application for interim measures, lodged at the [General] Court Registry on 4 December 2009, the Commission contends, in essence, that the President of the [General] Court should:

– dismiss the application for interim measures;

– order the applicant to pay the costs.’

The order under appeal

3 In the order under appeal, the President of the General Court, when assessing the urgency of the application, examined whether the requested suspension of operation was necessary to prevent serious and irreparable damage to the interests of the appellant. In his analysis, the President of the General Court, in paragraphs 34 to 37 of that order, held, inter alia, first that a request seeking dispensation from the obligation to set up a bank guarantee, where that guarantee is the condition imposed in return for staying enforcement of a fine imposed by a decision of the Commission, cannot be granted unless there are exceptional circumstances, which it is for the appellant to establish. Second, the President of the General Court stated that the existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking exemption from providing the required bank guarantee adduces evidence that it is objectively impossible for it to provide such a guarantee, or where such provision would imperil its existence.

4 On the basis of those considerations, the President of the General Court then examined the arguments and evidence submitted by the appellant, while stating, in paragraph 41 of the order under appeal, that an application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information, and the essential elements of fact and law on which it is founded must be set out in the application for interim measures itself. Having examined the arguments and evidence in the application for interim measures itself, the President of the General Court concluded that the appellant had not adduced evidence of the impossibility for it to provide the bank guarantee required by the Commission. Considering, therefore, that the condition of urgency had not been met, the President of the General Court dismissed the application for interim measures.

Forms of order sought

5 By its appeal, the appellant seeks the setting aside of the order under appeal, the suspension of operation of the contested decision in so far as it requires the appellant to provide a bank guarantee as a condition for not recovering immediately that part of the fine not covered by the payment which it has already made or, in the alternative, the referral of the case back to the judge hearing applications for interim measures before the General Court. Consequently, the appellant seeks an order that the Commission pay the costs.

6 The Commission contends that the Court should dismiss the appeal or, in the alternative, dismiss the application for interim measures and order the appellant to pay the costs.

The appeal

7 In support of its appeal, the appellant relies on four pleas alleging respectively:

– that the evidence submitted concerning its shareholders was wrongly presented;

– an incorrect legal classification of its letter of 8 March 2010;

– defective reasoning to the extent that the order under appeal is totally silent on the evidence provided regarding the situation of the appellant itself, and;

– a breach of the rights of the defence.

The third and fourth pleas

8 By its third and fourth pleas, which it is appropriate to consider in the first place, the appellant claims, in essence, that the President of the General Court did not take account of the arguments and evidence submitted by it in relation to its own financial situation and that of its shareholders and, therefore, failed to reason adequately the order under appeal as regards its financial capacity to provide a bank guarantee. Accordingly, the President of the General Court’s failure to reason adequately and failure to take account of all of the appellant’s arguments constitute a breach of its rights of defence.

9 In particular, the appellant considers, first, that the subject of the President of General Court’s analysis ought, first and foremost, to have been the financial resources of the company itself and not only the financial situation of its shareholders. Yet, the order under appeal contains no reference to the evidence adduced relating to the appellant’s financial situation. Instead, the order under appeal examines, from the outset, the personal financial situation of the appellant’s shareholders.

10 In that regard, the appellant claims that it presented in detail, in its application for interim measures, the reasons for which its financial situation did not allow it to provide a bank guarantee in respect of the remainder of the fine and also the reasons for which the provision of such a guarantee would threaten its existence.

11 The appellant explained, inter alia, that it could not turn to other third‑party finance, never mind have recourse to a bank guarantee, since, on the date of its reply to the statement of objections, its credit lines were the maximum which it could obtain as bank financing on the basis of its balance sheet.

12 Second, the appellant states that, even in relation to the financial situation of its shareholders, the President of the General Court did not take into account its arguments and evidence submitted as regards the financial situation of the minority shareholder Mr R., or that of its new shareholder Mr N.

13 As a preliminary point, it should be noted that the President of the General Court was right to hold that an application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information, and the essential elements of fact and law on which it is founded must be set out in the application for interim measures itself (order of the President of 30 April 2010 in Case C‑113/09 P (R) Ziegler v Commission, paragraph 13).

14 It is on the basis of that case‑law that the President of the General Court assessed the arguments and evidence submitted by the appellant to establish whether there were exceptional circumstances which might justify dispensation from the obligation to provide a bank guarantee as a condition for not recovering immediately the amount of the fine imposed by the Commission.

15 Thus, in paragraphs 37 to 63 of the order under appeal, the President of the General Court examined whether the appellant had established, to the requisite legal standard, that it was objectively impossible for it to provide the required bank guarantee. In the context of that examination, the President of the General Court, first, concentrated on the circumstances of the appellant itself and, in particular, on the two letters from two different banks refusing to grant a guarantee.

16 It is apparent from paragraph 44 of the order under appeal that the President of the General Court had asked the appellant for information as to the dates on which the contacts with those banks had taken place and as to the substance and formulation of the requests to those banks. Since the appellant stated that it could not provide any documentary evidence, on the ground that the two banks had been contacted orally, the President of the General Court concluded, in paragraph 45 of the order under appeal, that that laconic response from the appellant had not enabled him to determine in fact the seriousness and completeness of those requests for a bank guarantee.

17 In the second place, the President of the General Court recalled the case‑law according to which, in assessing the ability of a company to furnish a bank guarantee, regard may be had to the group of companies to which it belongs and, in particular, to the resources available to that group as a whole (see, inter alia, order of the President in Case C‑364/99 P(R) DSR‑Senator Lines v Commission [1999] ECR I‑8733, paragraph 49).

18 He also pointed out that that approach is based on the idea that the objective interests of the undertaking concerned are not autonomous in relation to those of the natural or legal persons who have a controlling interest in it or are members of the same group and that, consequently, the serious and irreparable nature of the damage alleged must be assessed at the level of the group comprising those persons. In particular, given that the interests at stake overlap, the company’s interest in its own survival must not be viewed in isolation from the interest of those controlling it, or members of the same group, in prolonging its life indefinitely (order in DSR‑Senator Lines v Commission, paragraph 50).

19 On that basis, the President of the General Court carried out, in paragraphs 49 to 62 of the order under appeal, a detailed analysis of the evidence relating to the appellant’s shareholders in order to ascertain whether that evidence was sufficient to establish that the financial situation of its shareholders prevented them from participating in efforts to provide a bank guarantee to cover payment of the fine imposed on the appellant.

20 In that regard, the President of the General Court first stated that the appellant’s application for interim measures contained no information as to the existence of any shareholders in the appellant. As is apparent from paragraph 50 of the order under appeal, the only information relating to its shareholders comes from a letter of 8 March 2010 by which the appellant, on its own initiative, informed the President of the General Court of the purchase by a natural person, Mr N., of all of the shares previously held by Minmet Financing Co. SA.

21 While it is true that the identity of the appellant’s shareholders and the shares held by those shareholders are apparent from that letter of 8 March 2010, it is nevertheless the case that the President of the General Court was correct when he stated, in paragraph 55 of the order under appeal, that an application for interim measures may not validly be supplemented by a document lodged subsequently by the applicant, possibly in response to observations from the defendant, in order to remedy such deficiencies.

22 Then, the President of the General Court examined the arguments and evidence relating to the financial situation both of the minority shareholder Mr R., and of the new majority shareholder Mr N., relied on by the appellant in its application for interim measures.

23 As regards the former, the President of the General Court stated that the appellant did not take into account, in its analysis of its capacity to provide a bank guarantee, the possibilities of financial support which that shareholder could have offered. More particularly, the President of the General Court observed that the appellant provided no explanation for that shareholder’s lack of interest in ensuring the appellant’s long‑term survival by participating in the efforts to provide a bank guarantee.

24 Lastly, as regards the latter shareholder, the President of the General Court correctly noted that the appellant’s mere assertion as to its or its shareholders’ financial resources cannot be sufficient to produce a true overall picture of its financial situation for the purpose of the examination which the judge hearing applications for interim measures is bound to undertake. According to the President of the General Court, the appellant ought, for that purpose, to have provided hard and precise information, supported by certified detailed documents.

25 However, as is apparent from paragraph 62 of the order under appeal, the only document, relating to that new shareholder, which was provided by the appellant was his curriculum vitae. Such a document obviously cannot establish what were the financial resources of that shareholder. The President of the General Court was therefore correct to conclude that the lack of relevant information relating to the new shareholder did not allow him to ascertain whether that shareholder could have participated in the efforts to provide a bank guarantee to cover payment of the fine imposed on the appellant.

26 In the light of all of the foregoing considerations, it must be held that, contrary to the assertions of the appellant, the President of the General Court examined, on the basis of the evidence in the application for interim measures, both the financial capacity of the appellant itself, and that of its shareholders, to provide the required guarantee.

27 It follows that the order under appeal is not vitiated by defective reasoning or, a fortiori, by defective reasoning which would constitute a breach of the rights of the defence.

28 The third and fourth pleas must therefore be rejected as unfounded.

The first and second pleas

29 By its first and second pleas, which it is appropriate to examine together, the appellant claims, first, that the President of the General Court wrongly presented the evidence, concerning its shareholders, which was submitted when it lodged its application for interim measures. In particular, the appellant claims that the President of the General Court wrongly presented the evidence concerning the existence and identity of its shareholders, distorted the evidence which had been submitted before him regarding the financial situation of the minority shareholder Mr R., who holds 30% of the capital, and wrongly presented the evidence concerning the financial situation of the new shareholder Mr N. In support of its line of argument, the appellant refers to a series of documents which it submitted in an annex to its application for interim measures.

30 Second, the appellant claims that, by holding that the letter of 8 March 2010 constituted a new application in an attempt to remedy the deficiencies of the application for interim measures, the President of the General Court made an incorrect legal classification of that letter and incorrectly applied Article 109 of the Rules of Procedure of the General Court to the circumstances of the case.

31 As has been recalled in paragraphs 15 and 16 above, the President of the General Court first examined whether the appellant had established, to the requisite legal standard, that it was itself not in a position to provide a bank guarantee and, in examining the requests which it made to two different banks to obtain such a guarantee, the President of the General Court concluded that the evidence provided by the appellant did not allow him to determine in fact the seriousness and completeness of those requests for a bank guarantee.

32 Further, it must be pointed out that the line of argument relied on by the appellant, alleging that the President of the General Court wrongly presented the evidence it had provided, relates solely to evidence produced in an annex to the application for interim measures, which concerns the financial situation of the appellant’s shareholders and their capacity to participate in efforts to provide a bank guarantee.

33 The same applies in relation to the alleged incorrect legal classification of the appellant’s letter of 8 March 2010. Irrespective of whether the President of the General Court in fact classified that letter as a new application, for the purposes of Article 109 of the Rules of Procedure of the General Court, attempting to remedy the deficiencies of the application for interim measures, it must be noted that the content of that letter was relevant only for establishing the financial situation of the appellant’s shareholders.

34 It follows that, even if the first and second pleas were well founded, they would not be capable of casting doubt on the main conclusion of the President of the General Court relating to the capacity of the appellant itself to provide a bank guarantee and could not, therefore, lead to the order under appeal being set aside.

35 Consequently, the first and second pleas must be rejected as ineffective.

36 In those circumstances, having regard to all the foregoing considerations, the appeal must be dismissed.

Costs

37 Under Article 69(2) of the Rules of Procedure of the Court of Justice, which applies to the procedure on appeal by virtue of Article 118 thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the Commission has applied for costs and the appellant has been unsuccessful, the appellant must be ordered to pay the costs.

On those grounds, the President of the Court hereby orders:

1. The appeal is dismissed.

2. Almamet GmbH Handel mit Spänen und Pulvern aus Metall shall pay the costs.

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