Order of the President of the Court of First Instance of 22 November 1995. - Atlantic Container Line AB and others v Commission of the European Communities. - Competition - Maritime transport - Procedure for interim relief - Application for interim measures in the form of a preventive order suspending the operation of a future decision - Conditions of admissibility. - Case T-395/94 R II



European Court reports 1995 Page II-02893



Summary

Parties

Grounds

Operative part



Keywords

++++

Applications for interim measures ° Suspension of operation of a measure ° Provisional measures ° Application by undertakings having notified an agreement, seeking to forestall the application of a decision, not yet adopted, to withdraw immunity from fine ° Inadmissible

(EC Treaty, Arts 173, fourth para., 185 and 186; Rules of Procedure of the Court of First Instance, Art. 104(1))

Summary

By virtue of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application under Article 185 of the Treaty to suspend the operation of a measure adopted by an institution is admissible only if the applicant is challenging that measure in proceedings before the Court, and an application for the adoption of any other interim measure referred to in Article 186 of the EC Treaty is admissible only if it is made by a party to a case before the Court of First Instance and relates to that case.

Consequently, undertakings which have notified an agreement are, at least in principle, not entitled to seek in advance suspension of a decision which the Commission has intimated that it intends to adopt, withdrawing the immunity ensuing from such notification from fines in respect of breaches of the competition rules in the Treaty, even before it has been adopted and the parties concerned have brought an action for its annulment under the fourth paragraph of Article 173 of the Treaty.

As regards such undertakings, such a mere declaration has no binding effect against which they might be entitled to seek to protect themselves and, if a decision is actually taken, the legitimate interests of the undertakings concerned will be protected by their right to bring an action against it and to apply concurrently for interim relief in the form of suspension of its operation.

The fact that the notified agreement relates to practices already covered by an earlier agreement which the Commission has held to be illegal in a decision against which the undertakings concerned have brought annulment proceedings and suspension of whose operation they have been granted does not render their interim application any less premature and thus inadmissible. Their interim application, in so far as it concerns the possible withdrawal of the immunity from fine entailed by the notification of a new agreement, cannot be linked to the action brought against the decision relating to the previous decision, since a decision withdrawing immunity is adopted following completion of a specific procedure and its annulment may be sought. Furthermore, it is not until the decision withdrawing immunity has been taken that the question of its compatibility or otherwise with the suspension already granted to the undertakings of the requirement of bringing their previous agreement to an end could be examined in the context of an action seeking its annulment accompanied, if appropriate, by an application for its suspension.

In addition, a decision withdrawing immunity from fines, if adopted, could produce effects only in respect of the period following its notification and would not produce irreversible effects, such as obliging the undertakings concerned to bring their practices immediately to an end in order to avoid incurring heavy fines before a Court ruling could be obtained, so that there is no need for preventive interim measures.

Parties

In Case T-395/94 R II,

Atlantic Container Line AB, a company governed by Swedish law, established in Gothenburg, Sweden,

Cho Yang Shipping Company Ltd, a company governed by Korean law, established in Seoul,

DSR-Senator Lines GmbH, a company governed by German law, established in Bremen, Germany,

Hapag Lloyd AG, a company governed by German law, established in Hamburg, Germany,

MSC Mediterranean Shipping Company SA, a company governed by Swiss law, established in Geneva, Switzerland,

A.P. Moeller-Maersk Line, a company governed by Danish law, established in Copenhagen,

Nedlloyd Lijnen BV, a company governed by Netherlands law, established in Rotterdam, the Netherlands,

Neptune Orient Lines Ltd (NOL), a company governed by Singapore law, established in Singapore,

Nippon Yusen Kaisha (NYK Line), a company governed by Japanese law, established in Tokyo,

Orient Overseas Container Line (UK) Ltd, a company governed by English law, established in Levington, United Kingdom,

P & O Containers Ltd, a company governed by English law, established in London,

Polish Ocean Lines, a company governed by Polish law, established in Gdynia, Poland,

Sea-Land Service Inc., a company governed by Delaware law, established in Jersey City, New Jersey, United States of America,

Tecomar SA de CV, a company governed by Mexican law, established in Mexico DF,

Transportación Marítima Mexicana SA, a company governed by Mexican law, established in Mexico DF,

represented by John Pheasant, Nicholas Bromfield and Suyong Kim, Solicitors, with an address for service in Luxembourg at the Chambers of Loesch & Wolter, 11 Rue Goethe,

applicants,

supported by

Japanese Shipowners' Association, an association governed by Japanese law, having its head office in Tokyo, represented by Nicholas J. Forwood QC, of the Bar of England and Wales, and Philip Ruttley, Solicitor, with an address for service in Luxembourg at the Chambers of Arendt & Medernach, 8-10 Rue Mathias Hardt,

and

European Community Shipowners' Associations ASBL, an association governed by Belgian law, having its head office in Brussels, represented by Denis Waelbroeck, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Ernest Arendt, 8-10 Rue Mathias Hardt,

interveners,

v

Commission of the European Communities, represented by Bernd Langeheine and Richard Lyal, of its Legal Service, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of the Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Freight Transport Association Ltd, an association governed by English law, having its head office in Tunbridge Wells, United Kingdom,

Association des Utilisateurs de Transport de Fret, an association governed by French law, having its head office in Paris,

and

European Council of Transport Users ASBL, an association governed by Belgian law, having its head office in Brussels,

represented by Mark Clough, Barrister, of the Bar of England and Wales, with an address for service in Luxembourg at the Chambers of Aloyse May, 31 Grand-Rue,

interveners,

APPLICATION for an order preventing an anticipated decision of the Commission ° withdrawing from the applicants their immunity from fines in respect of practices prohibited, pursuant to Article 85 of the EC Treaty, by a Commission decision operation of which has been suspended under Article 185 of the EC Treaty, and continuing within the framework of a new agreement notified to the Commission ° from entering into effect as long as the Court of First Instance has not given final judgment on an application for its annulment.

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Grounds

Facts and procedure

1 By application registered at the Court of First Instance on 23 December 1994, 15 liner shipping companies which were parties to the Trans-Atlantic Agreement ("the TAA") brought an action under the fourth subparagraph of Article 173 of the EC Treaty for the annulment of Commission Decision 94/980/EC of 19 October 1994 relating to a proceeding under Article 85 of the EC Treaty (IV/34.446 ° Trans-Atlantic Agreement) (OJ 1994 L 376, p. 1, "the contested decision").

2 By separate application under Articles 185 and 186 of the EC Treaty, registered at the Court on the same date, the applicants also sought suspension of the operation of the contested decision.

3 By applications registered at the Court on 9 January 1995, the Freight Transport Association Ltd ("FTA") and the Association des Utilisateurs de Transport de Fret ("AUTF") sought leave to intervene in support of the Commission. By applications registered at the Court on 20 January 1995, the Japanese Shipowners' Association ("JSA") and the European Community Shipowners' Associations ASBL ("ECSA") sought leave to intervene in support of the applicants. Finally, by letter registered at the Court on 24 January 1995, the European Council of Transport Users ASBL ("ECTU") also sought leave to intervene in support of the Commission.

4 By order of 10 March 1995, the President of the Court of First Instance granted the abovementioned applications to intervene in the interim relief proceedings and ordered operation of Articles 1, 2, 3 and 4 of the contested decision, in so far as they prohibit the applicants from jointly exercising rate-making authority in respect of the inland portions within the Community of through-intermodal transport services, to be suspended until delivery of the final judgment of the Court of First Instance in the main action (Case T-395/94 R Atlantic Container Line and Others v Commission [1995] ECR II-595). That order, granting the application for suspension of the operation of the contested decision with regard to the fixing of rates for the inland portions of transport services on Community territory, was confirmed on appeal by order of the President of the Court of Justice of 19 July 1995 (Case C-149/95 P (R) Commission v Atlantic Container Line and Others [1995] ECR I-2165).

5 By application under Article 186 of the Treaty, lodged at the Registry of the Court of First Instance on 3 October 1995, the 15 applicant companies in Case T-395/94 submitted a second application for interim measures in the same case, in which they requested the President of the Court to address an order to the Commission to the effect "that a decision to withdraw immunity from fines from the applicants in respect of European intermodal authority be stated to become effective, if ever, only after final judgment by the [Court] on an application to be lodged expeditiously by the applicants under Articles 173 and 174 of the EC Treaty for the annulment of such decision" (point 1.26 of the application for interim measures). The applicants further requested that the Commission be ordered to pay the costs.

6 The Commission lodged written observations at the Court Registry on 13 October 1995. JSA and ECSA, intervening in support of the applicants, and FTA, AUTF and ECTU, intervening in support of the Commission, also lodged written observations at the Court Registry on the same day.

7 Oral argument was heard from the parties at the hearing on the application for interim measures on 18 October 1995.

8 Before examining this second application for interim measures, it is necessary to outline the essential facts of the case as set out in the abovementioned orders and in the observations submitted by the parties.

9 The TAA, which came into effect on 31 August 1992, was an agreement under which the applicants together provided westbound and eastbound international liner services across the Atlantic for the carriage of container cargo between northern Europe and the United States of America. It covered several aspects of maritime transport.

10 The TAA laid down, inter alia, the rates applicable to maritime transport and to through-intermodal transport, which includes both the maritime transport and the inland haulage, to or from the coast, of goods from or to a point inland. The rates applicable to through-intermodal transport, which concern in each case a single contract of carriage, thus cover both the sea and the inland portions.

11 On 19 October 1994, the Commission adopted the contested decision. Article 1 finds that the provisions of the TAA relating to price-fixing and capacity infringe Article 85(1) of the Treaty. Article 2 refuses the application of Article 85(3) of the Treaty or Article 5 of Council Regulation (EEC) No 1017/68 of 19 July 1968 applying rules of competition to transport by rail, road and inland waterway (OJ, English Special Edition 1968 (I), p. 302) to the provisions of the TAA referred to in Article 1. Article 3 requires the addressees of the decision to bring an end to the infringements referred to in Article 1, and Article 4 requires them to refrain in future from any agreement or concerted practice which may have the same or a similar object or effect as the agreements and practices referred to in Article 1.

12 In the mean time, following discussions with the Commission during the course of the administrative procedure preceding the adoption of the contested decision, the applicants had notified a modified version of the TAA, the Trans-Atlantic Conference Agreement ("the TACA"), to the Commission on 5 July 1994. After a number of amendments, the TACA entered into effect on 24 October 1994, replacing the TAA. The Commission had not yet, at that time, completed its examination of the TACA.

13 The TACA is currently being examined in a proceeding under Article 85 of the Treaty.

14 On 21 June 1995, the Commission sent the parties to the TACA a statement of objections dealing only with their agreement relating to the joint fixing of rates in respect of the inland portions within the European Community of through-intermodal transport services, setting out the reasons for which it had formed the preliminary view that it was an appropriate case in which to withdraw, in respect of those specific practices, the immunity from fines resulting from the notification of the TACA ("Statement of objections concerning Case No IV/35.134 ° Trans-Atlantic Conference Agreement" ("the statement of objections"), Annex 1 to the application for interim measures, points 46 and 47). In the statement of objections, the Commission indicated that it was disposed to adopt a decision withdrawing immunity from fines ° and stressed that such immunity resulted from the notification of the new agreement only if it was possible to apply by analogy the provisions of Article 15 of Council Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (OJ, English Special Edition 1959-1962, p. 87), paragraph 5 of which provides for such immunity in respect of acts taking place after notification to the Commission and prior to its decision granting or refusing exemption under Article 85(3) of the Treaty and paragraph 6 of which sets up a procedure for withdrawing such immunity ° because it considered, after preliminary examination, that the agreement on rates in respect of the inland portions within the Community of through-intermodal transport services both infringed Article 85(1) of the Treaty, Article 2 of Regulation No 1017/68 and Article 53(1) of the Agreement on the European Economic Area and failed to meet the conditions for exemption laid down in Article 85(3) of the Treaty, Article 5 of Regulation No 1017/68 and Article 53(3) of the Agreement on the European Economic Area.

Law

15 Under Articles 185 and 186 of the EC Treaty, taken together with Article 4 of Council Decision 88/591/ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and Council Decision 94/149/ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, order that the application of the contested act be suspended or prescribe any necessary interim measures.

Admissibility of the present application for interim measures

Arguments of the parties

16 The Commission, supported by the interveners FTA, AUTF and ECTU, claims that the present application for interim measures is inadmissible. It puts forward two pleas in law, which the said interveners endorse. First, it alleges that the applicants' request does not relate to the main application in Case T-395/94, for the annulment of the contested decision. Secondly, it argues that the application for interim measures is premature.

17 In the first of those two pleas, the Commission claims that this application for interim measures does not concern the decision contested by the applicants in Case T-395/94. The prima facie case relied on by the applicants has nothing to do with the prima facie foundation of their arguments in Case T-395/94 but refers solely to an "anticipated" decision of the Commission.

18 The Commission dismisses the applicants' argument that the anticipated decision withdrawing immunity would be incompatible with the order of the President of the Court of First Instance of 10 March 1995 suspending operation of Articles 1 to 4 of the contested decision in so far as they prohibit the applicants from jointly exercising rate-making authority in respect of the inland portions within the Community of through-intermodal transport services.

19 Such suspension, it asserts, covers only the prohibition of the conduct concerned and has no bearing on its lawfulness, as is clear from the order of the President of the Court of Justice in Cases 71/74 R and RR Fruit- en Groentenimporthandel v Commission [1974] ECR 1031, paragraph 5. To accept the contrary would imply prejudging the decision of the Court in the main proceedings.

20 Nor is a decision withdrawing immunity from fines injunctive in nature. In particular, the mere possibility that a fine may subsequently be imposed in respect of the period in question does not prevent the practices in question from continuing (see Case T-19/91 R Vichy v Commission [1991] ECR II-265, paragraph 20). The anticipated decision would not, therefore, be incompatible with suspension of the operation of the contested decision in so far as it prohibits those practices.

21 In addition, the interveners FTA, AUTF and ECTU submitted in their written observations and confirmed at the hearing that, in any event, even if the Court were to consider that the anticipated decision withdrawing immunity from fines is incompatible with the order of the President of the Court of First Instance of 10 March 1995 ° which they deny ° the judge hearing the application for interim measures should in their view cancel or at least vary that order under Article 108 of the Court' s Rules of Procedure, in order to take account of the change in circumstances constituted by the fact that the applicants themselves modified fundamental aspects of the TACA after that order had been made.

22 Having thus concluded that the application for interim measures under consideration bears no relation to the application for annulment which the applicants have submitted to the Court in Case T-395/94, the Commission further submits, in its second plea regarding inadmissibility, that it is premature and unnecessary.

23 In support of that submission, the Commission points out that it has adopted no measure capable of affecting the applicants' legal position. The only measure adopted in the context of the proceeding pending in relation to the TACA is the statement of objections, which cannot be challenged either in an action for annulment or in an application for interim measures, as was held by the President of the Court of Justice in Joined Cases 60/81 R and 190/81 R IBM v Commission [1981] ECR 1857 (paragraphs 9 and 10; see also Joined Cases T-10/92, T-11/92, T-12/92 and T-15/92 Cimenteries CBR and Others v Commission [1992] ECR II-2667, paragraph 42).

24 The Commission therefore disputes the applicants' contention that the Court has power to grant interim relief of the kind sought provided that a legal act reviewable under Article 173 of the Treaty is anticipated (point 4.4 of the application for interim measures). It submits that the cases to which the applicants refer both concerned measures which would immediately have created rights for third parties and would thus have produced effects which could not have been cured by a subsequent application for interim measures, submitted the following day.

25 In the present case, the only proper way of obtaining the interim relief sought is therefore to wait until the Commission adopts a decision withdrawing immunity from fines, then to bring an action against that decision and concurrently apply for suspension of its operation under Article 185 of the Treaty.

26 The applicants, and the interveners who support their arguments, consider that the conditions of admissibility set out in Article 104(1) of the Court' s Rules of Procedure are met. They claim that their application for interim measures relates to the application for annulment of the contested decision concerning the TAA in Case T-395/94. It seeks to enable them to continue to fix rates jointly in respect of the inland portions within the Community of through-intermodal transport services and thus to preserve the protection already granted by the President of the Court of First Instance in his order of 10 March 1995 suspending operation of Articles 1 to 4 of the contested decision in so far as they prohibit those practices, established under the TAA and continuing under the TACA. In reply to a question at the hearing, the applicants confirmed that this application for interim measures seeks specifically to deprive the anticipated decision withdrawing immunity from fines in the context of the procedure relating to the TACA of its effect as long as the Court has not ruled on an application for its annulment, in order to ensure that the suspension of the operation of the contested decision remains effective. In that regard, the applicants point out that in paragraph 33 of his order of 19 July 1995 the President of the Court of Justice found that Article 4 of the contested decision, relating to the TAA, which prohibits, inter alia, any future price agreement in respect of the inland portions within the Community of through-intermodal transport services, undeniably covered the TACA, which was an amended version of the TAA.

27 In support of the contention that their application is admissible, the applicants point out that, in Joined Cases 8/66 to 11/66 Cimenteries CBR Cementbedrijven and Others v Commission [1967] ECR 75, pp. 92 and 106, the Court of Justice, following the Opinion of Advocate General Roemer, stressed the importance of the right to submit a decision withdrawing immunity from fines for judicial review at the earliest possible opportunity in order to prevent it from obliging the parties, however righteous their cause might be, to abandon their agreement on account of the "serious threat of a fine" hanging over them.

28 The applicants further maintain that, provided that there is an anticipated legal act against which an action for annulment could be brought under the fourth paragraph of Article 173 of the Treaty, the Court has the power to order, as an interim measure, that such anticipated act should not become effective pending appropriate judicial review of its legality. They refer to the orders in Joined Cases 160/73 R II, 161/73 R II and 170/73 R II Miles Druce v Commission [1974] ECR 281 and Case 118/83 R CMC v Commission [1983] ECR 2583, in which the President of the Court of Justice held that the Court could issue, on a provisional basis, appropriate injunctions to the Commission in order to prevent the adoption of an act or defer the effective date of a decision to be taken by that institution in order to enable the persons affected to apply for effective judicial relief, so that no irreparable harm should be done.

29 In the present case, it is clear both from the statement of objections sent to the applicants in the course of the administrative procedure relating to the TACA and from a number of public statements by the member of the Commission responsible for competition matters that the Commission intends to adopt and enforce a decision withdrawing immunity from fines without waiting for the Court of First Instance to give final judgment in the main action brought against the contested decision relating to the TAA. It is clear that the anticipated decision, coupled with the "clearly articulated reality of substantial fines", is incompatible with the suspension of the operation of Articles 1 to 4 of the contested decision, inasmuch as it seeks to oblige the applicants forthwith to cease jointly exercising rate-making authority in respect of the inland portions within the Community of through-intermodal transport services. To do so would, however, cause serious and irreparable damage, as the President of the Court of First Instance acknowledged in his order of 10 March 1995 when he decided to suspend operation of those articles of the contested decision.

30 In that regard, the applicants and the parties intervening in their support specified, in reply to questions put to them at the hearing, that the pressure caused by the Commission' s announcement of its intention to withdraw immunity from fines was more particularly linked to the legal uncertainty surrounding, in the light of the order in Vichy v Commission, cited above, the question whether, once the decision to withdraw immunity from fines was taken, its operation could be suspended pursuant to Article 185 of the Treaty. That was why the applicants had chosen to seek without delay interim measures under Article 186 of the Treaty.

31 The applicants are therefore in an unprecedented and exceptional situation, since the Commission has never before withdrawn immunity from fines with regard to a practice in respect of the period during which an action for the annulment of the decision prohibiting that practice is pending before the Court. A fortiori, the Commission cannot withdraw immunity when suspension of the operation of such decision has been ordered under Article 185 of the Treaty.

32 In that regard, the intervener ECSA stresses that when the Court decides to suspend the operation of a Commission decision ordering an undertaking to cease certain practices in respect of which it considers that, prima facie, the applicant has good arguments for considering those practices not to be anti-competitive, the applicant automatically benefits from immunity from fines in relation to those practices until the Court gives judgment in the main action.

33 In the present case, therefore, there is no need for the applicants to wait for the Commission to adopt the decision withdrawing immunity from fines and challenge that decision in separate proceedings. ECSA points out that, on an application by an official who had challenged the Commission' s decision transferring him from Ispra to Brussels, for suspension of a vacancy notice for the post which he had previously held, the President of the Court of Justice dismissed the objection of inadmissibility put forward by the Commission on the ground that "it would be excessively formalistic in an application for the adoption of an interim measure to compel the parties to enter multiple pleadings when the facts of the case show that the subject-matter of the main application and of the application for the adoption of the interim measure are so linked as cause and effect that the second appears as the inevitable consequence of the first" (Case 18/65 R Gutmann v Commission [1966] ECR 135, p. 137).

34 The intervener JSA adds that, inasmuch as it disregards the order of 10 March 1995, the Commission' s declared intention to withdraw immunity from fines is contrary not only to Article 176 of the EC Treaty, which obliges it to refrain from taking any measure incompatible with that order, but also to the principles of legal certainty and the protection of legitimate expectations and to the principle of non bis in idem, embodied in particular in the European Convention on Human Rights. Those principles preclude the opening of new proceedings with regard to the same practices as were already in issue in the context of the TAA and the prohibition of which has been suspended by the said order.

35 JSA further submits that there is no practical difference between the practices protected by the order of the President of the Court of First Instance of 10 March 1995 and those in issue in Case T-86/95 R Compagnie Générale Maritime and Others v Commission, pending before the Court of First Instance, in which the Commission has accepted a voluntary stay of proceedings. The Commission' s intention to withdraw immunity from fines with regard to the TACA is therefore inconsistent, arbitrary and discriminatory in the light of its attitude in Case T-86/95 R.

Findings of the judge hearing the application for interim measures

36 In the circumstances of the case and in view of the arguments of the parties, it is necessary to examine the admissibility of the present application for interim measures.

37 In accordance with Articles 185 and 186 of the Treaty, which empower the Community judicature to prescribe interim measures in any cases before it, Article 104(1) of the Rules of Procedure of the Court of First Instance makes the admissibility of an application for interim measures subject to the following conditions. An application under Article 185 of the Treaty to suspend the operation of a measure adopted by an institution is admissible only if the applicant is challenging that measure in proceedings before the Court. In addition, an application for the adoption of any other interim measure referred to in Article 186 of the EC Treaty is admissible only if it is made by a party to a case before the Court of First Instance and relates to that case (see, for example, Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, paragraph 28).

38 In the present case, the applicants are seeking an interim order forestalling the application of a decision ° withdrawing the immunity from fines entailed by their notification of the TACA with regard to their agreement to fix rates jointly in respect of the inland portions within the Community of through-intermodal transport services ° which the Commission intends to adopt, as it has informed the applicants and confirmed in reply to a question put at the hearing, if the applicants do not amend the TACA in that regard and notify their new agreement once it has been brought into conformity with the conditions for exemption set out in Article 85(3) of the Treaty.

39 In that regard, the Commission' s communication of its intention to adopt, in the above circumstances, a decision withdrawing immunity from fines has no binding effect as regards the applicants. As long as a decision withdrawing immunity has not been adopted and produces no legal effects, therefore, the applicants are not entitled to exercise their right under Article 185 of the Treaty to seek suspension of the operation of that decision (see Case 136/79 National Panasonic v Commission [1980] ECR 2033, concerning a Commission decision ordering an investigation pursuant to Article 14(3) of Regulation No 17, paragraph 22). In principle, and unless there are exceptional circumstances, the same applies to their right to seek the adoption of other interim measures under Article 186 of the Treaty when the application for such interim measures seeks essentially to achieve the same result, namely the suspension of a future decision, as is the case here. A measure withdrawing immunity from fines, addressed to an undertaking which has notified an agreement, constitutes a decision against which an action for annulment may be brought under the fourth paragraph of Article 173 of the Treaty (see Joined Cases 8/66 to 11/66 Cimenteries CBR Cementbedrijven and Others, cited above, p. 90 et seq., and Case T-19/91 Vichy v Commission [1992] ECR II-415, paragraphs 15 and 16). The legitimate interests of the undertakings concerned are therefore protected by their right to bring an action against such a decision in due course and to apply concurrently for interim relief in the form of suspension of the operation of that decision.

40 Consequently, having regard to the conditions for the admissibility of applications for interim measures defined by Articles 185 and 186 of the Treaty and Article 104(1) of the Rules of Procedure, the applicants are, at least in principle, not entitled to seek in advance suspension of an anticipated decision withdrawing immunity from fines even before it has been adopted and the parties concerned have brought an action for its annulment under the fourth paragraph of Article 173 of the Treaty.

41 It is therefore necessary to examine whether, in the specific circumstances of the case, the considerations put forward by the applicants in favour of the admissibility of their application for interim measures none the less make it possible to find the application admissible even before the allegedly anticipated decision to withdraw immunity from fines has been adopted. In that examination, the judge hearing the application must consider each of the arguments by which the applicants seek to establish that the application is in fact linked to the actions which they have already brought against the contested decision relating to the TAA and to justify the lodging of the application, as a preventive measure, even before the anticipated decision has come into existence, by reason of the serious and irreparable damage which they would be in danger of suffering if the adoption of the interim measures sought were deferred.

42 The first question is whether this application for interim measures relates to the action for annulment brought by the applicants against the contested decision, relating to the TAA, in Case T-395/94, as they submit. According to the documents submitted in the case, corroborated by the concordant observations of the parties, the anticipated decision, which, if adopted, would withdraw the immunity from fines conferred on the applicants by their notification of the TACA, concerns a practice ° the joint fixing of rates in respect of the inland portions within the Community of through-intermodal transport services ° the prohibition of which in the context of the TAA has been suspended pursuant to Article 185 of the Treaty by the order of the President of the Court of First Instance of 10 March 1995. In particular, the Commission accepted, both in its written observations and at the hearing, that the TACA contains certain clauses relating to the abovementioned practices whose illegality has already been established, in the context of the TAA, by the contested decision. In reply to a question put to them at the hearing, the applicants confirmed that the TAA had not been amended on that specific point and that the TACA incorporated substantially the same mechanism and methods for fixing rates for those inland portions as had been prohibited within the context of the TAA by Articles 1 to 4 of the contested decision.

43 However, even if the anticipated decision withdrawing immunity from fines were to concern, if adopted, a practice prohibited by the contested decision, the anticipated decision would none the less concern that practice only as it is implemented in the framework of the TACA and would thus form part of a completely separate procedure from that which culminated in the adoption of the contested decision relating to the TAA. Its purpose would be to bring an end to the immunity from fines resulting from the notification of the TACA, which is currently the subject of a proceeding under Article 85 of the Treaty, quite separate from the previous proceeding relating to the TAA.

44 Moreover, even if the anticipated decision whose suspension is sought by the applicants as a preventive measure could be regarded as relating also to the TAA, it would in any event still be separable from the infringement proceeding which came to an end with the adoption of the contested decision (see paragraph 39 above). It has consistently been held that a decision withdrawing immunity from fines is adopted following completion of a specific procedure and its annulment may be sought under the fourth paragraph of Article 173 of the Treaty, separately from that of the final decision bringing the proceeding under Article 85 of the Treaty to an end.

45 The application for the preventive suspension of the anticipated decision thus cannot be regarded as relating to the application for the annulment of the contested decision. The fact that operation of the contested decision has been suspended in so far as the decision prohibits the continuation of the agreement on the joint fixing of rates in respect of the inland portions of transport services in no way affects that assessment.

46 In that connection, the applicants' argument that any decision withdrawing immunity from fines would conflict with the order suspending the operation of the contested decision is irrelevant for determining the admissibility of the present application for interim measures. For all the reasons set out above, the question whether such anticipated decision would be compatible with the order of the President of the Court of First Instance of 10 March 1995 ° which, by suspending the operation of Articles 1 to 4 of the contested decision, allows the applicants to continue to implement their agreement, prohibited by those articles, on the joint fixing of rates in respect of the inland portions of transport services ° relates solely to the substantive assessment of the validity of the anticipated decision. It is unconnected with the application for annulment of the contested decision, which brought the proceeding under Article 85 of the Treaty to an end as regards the TAA. It could only be examined in the context of an action for annulment brought against the decision withdrawing immunity from fines, if adopted. Judicial protection of the applicants' legitimate interests would thus be fully ensured by the possibility open to them in those circumstances of bringing such an action, which could be accompanied by an application under Article 185 of the Treaty for suspension of the operation of that decision.

47 For all those reasons, the present application for interim measures cannot be regarded as relating to the application for annulment of the contested decision relating to the TAA, the operation of Articles 1 to 4 of which has been suspended.

48 The second question to be examined is therefore whether, even though the measures sought do not relate to a decision challenged by the applicants before the Court, the present application none the less meets, as the applicants claim, the conditions under which individuals may submit a preventive application for interim measures with a view to forestalling the application of an anticipated decision.

49 It is clear from the case-law cited by the applicants that the possibility of entertaining such applications has been accepted only in cases where the unidentifiable or future decisions in issue would immediately create rights for third parties and produce irreversible effects, as the Commission submits. The order in Miles Druce concerned a takeover bid which would have resulted in the absorption of the company concerned before any judicial relief could have been obtained. In his order in CMC v Commission, the President of the Court of Justice did not uphold the Commission' s objection of inadmissibility, to the effect that it was impossible to identify a decision against which an action could be brought. He held that the applicants had a legitimate interest in seeking the adoption of an interim measure as soon as possible in order to prevent the creation of an irreversible de facto situation (paragraphs 45 and 52).

50 In the present case, by its very nature, a decision withdrawing immunity from fines, if adopted by the Commission, could never produce irreversible effects vis-à-vis third parties or vis-à-vis the applicants before any judicial relief could be obtained.

51 In particular, the applicants' claims that the risk of such a decision withdrawing immunity from fines, coupled with the Commission' s declared intention of imposing extremely heavy fines, could oblige them to cease implementing their agreement are unfounded.

52 If such a decision were adopted, the applicants would be entitled immediately to seek its annulment (see paragraphs 39 and 44 above). They would further be entitled to ask the Court, by separate application, to suspend the operation of the same decision under Article 185 of the Treaty. It would then be for the President of the Court hearing such an application for interim measures to consider, having regard in particular to the fact that the prohibition of the practice in issue by the contested decision has been suspended under Article 185 of the Treaty, whether the decision withdrawing immunity from fines has, prima facie, the effect of inducing or even requiring the applicants to put an end to that practice, namely the joint fixing of rates in respect of the inland portions within the Community of through-intermodal transport services.

53 The uncertainty which the applicants claim surrounds the question whether or not such an application for suspension of operation would be granted by the judge hearing it could not in any event serve as justification for enabling the parties concerned to anticipate that application. In concrete terms, the Commission' s anticipated decision withdrawing immunity from fines could produce its effects only in respect of the period following its notification to the parties concerned. As long as no such decision has actually been adopted, the mere intention of the Commission to withdraw the immunity from fines resulting from the notification of the TACA if the applicants do not notify a new agreement does not subject them to any threat of a fine in respect of the period following their notification of the TACA. Contrary to the applicants' arguments, therefore, the Commission' s announcement of a possible decision withdrawing immunity from fines cannot have the effect of obliging them to put an end to the practice concerned. The applicants therefore have no legitimate interest in obtaining a prospective order relating to the suspension of the anticipated decision.

54 Consequently, the present application, for deferment of operation of an anticipated decision withdrawing immunity from fines as long as the Court has not ruled on its validity, does not meet the conditions regarding admissibility laid down in Article 104(1) of the Rules of Procedure and is, in any event, clearly premature.

55 Moreover, in the light of the negotiations currently being conducted between the parties, a decision to withdraw immunity from fines does not appear to be imminent. It appears from the Commission' s written observations, and was confirmed at the hearing, that the Commission has stated that it is prepared to grant exemption to a system of cooperative arrangements, including rate-fixing in respect of the inland portions of through-intermodal transport services, amended by the applicants so as to make it comply with the objectives set out in a report which the Commission submitted to the Council of the European Union on 8 June 1994, in which it proposes a new approach reconciling the interests of both shippers and carriers by promoting more efficient organization of inland container haulage. Only if the TACA is not thus modified so as to render it compatible with Article 85(3) of the Treaty and then notified, the Commission declares, will it adopt a decision withdrawing immunity from fines. It appears from the applicants' reply to the statement of objections (Annex 2 to the application for interim measures, point 54) and from the correspondence between the parties produced before the Court, in particular the proposal sent by the applicants to the Commission on 17 October 1995 and produced at the hearing, that the applicants agree to amend the TACA in accordance with the objectives defined in the said report of 8 June 1994 and to notify the new agreement to the Commission under detailed arrangements to be agreed upon between the parties.

56 It follows from all the foregoing considerations that the present application for interim measures must be dismissed as inadmissible.

Operative part

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.

Luxembourg, 22 November 1995.