Order of the President of the Court of First Instance of 9 July 1999. - HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG e.a. v Commission of the European Communities. - Competition - Payment of fine - Proceedings for interim measures - Suspension of operation of a measure - Stay of enforcement. - Case T-9/99 R.



European Court reports 1999 Page II-02429



Summary



Keywords

1 Applications for interim measures - Suspension of operation of a measure - Interim relief - Conditions for granting - Urgency - Prima facie case - Cumulative requirements - Balancing of all the interests at stake - Discretion of the court hearing an application for interim measures

(EC Treaty, Arts 185 and 186 (now Arts 242 EC and 243 EC); Rules of Procedure of the Court of First Instance, Art. 104(2))

2 Applications for interim measures - Suspension of operation of a measure - Suspension of operation of a decision imposing a fine - Stay of enforcement

(EC Treaty, Arts 185 and 186 (now Arts 242 EC and 243 EC); Rules of Procedure of the Court of First Instance, Art. 104(2))

3 Applications for interim measures - Suspension of operation of a measure - Suspension of operation of a decision imposing a fine - Obligation to lodge a bank guarantee as a condition for postponing the immediate recovery of a fine - Conditions for granting - Exceptional circumstances - Risk that the undertaking may have to apply for winding-up proceedings - Not covered

(EC Treaty, Art. 185 (now Art. 242 EC); Rules of Procedure of the Court of First Instance, Art. 104(2))

Summary

1 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications relating to interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Those requirements are cumulative, so that an application for suspension of operation of a measure must be dismissed if one of them is not satisfied. It is also incumbent upon the court hearing applications for interim measures to balance the interests involved.

In the context of the overall examination of an application for suspension of operation and for other interim measures, the court has a wide 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 necessity of interim measures must be weighed.

2 An application for suspension of the enforcement of a decision imposing a fine becomes devoid of purpose where the Commission has not adopted any measure on the basis on Article 192 of the Treaty (now Article 256 EC) and where it has notified the undertakings concerned that, if they were to bring proceedings before the Court of First Instance, no action would be taken to recover the fine while the proceedings were pending before that court, provided that a bank guarantee was furnished. In those circumstances, an application seeking to prevent enforcement of a decision also implies suspension of the operation of that decision which, if granted, would prevent enforcement, as a precautionary measure.

3 An application for suspension of the operation of a decision, to the extent to which it imposes a fine for infringement of the competition rules, can be upheld only if there are exceptional circumstances. It is consequently necessary to appraise the urgency of the interim measures applied for by examining whether the enforcement of the contested measure prior to any decision on the substance would be liable to cause the parties seeking those measures serious and irreversible damage which could not be made good even if the contested decision were ultimately annulled by the Court.

In that context, the mere risk that the parties concerned might be obliged to apply for winding-up proceedings as a consequence of the obligation to provide a bank guarantee covering the outstanding amount of the fine, as a condition for the recovery of that amount not being immediately pursued, cannot constitute serious and irreversible damage, the object of such proceedings being, on the contrary, to seek to repair the situation of the undertakings concerned.