Keywords

Summary



Keywords

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1. Competition ° Administrative procedure ° Adoption of interim measures ° Application for interim relief as an adjunct to an action for annulment by a third party against a Commission decision authorizing a concentration and seeking, by means of interim measures, the grant of an injunction against the notifying undertakings ° Powers of the Commission ° Review by the Court ° Limits

(EC Treaty, Arts 85, 173 and 186; Council Regulations Nos 17, Art. 3(1), and 4064/89)

2. Application for interim measures ° Suspension of operation of a measure ° Suspension of the operation of a decision authorizing a concentration between undertakings subject to compliance with certain undertakings given by the parties to the transaction ° Conditions for granting ° Serious and irreparable damage ° Occurrence of damage dependent on future, uncertain events ° Balancing of all the interests involved

(EC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 4064/89)

Summary

1. Under the system which the EC Treaty establishes for the division of powers, it is for the Commission, if it considers it necessary in the context of the powers of control accorded to it in competition matters in particular by Article 85 of the Treaty in conjunction with Article 3(1) of Regulation No 17, to adopt interim measures addressed to the parties notifying a concentration under Regulation No 4064/89. The role of the Community judicature is to carry out a legal review of the Commission' s action in those matters and not to take the place of the Commission in the exercise of the powers conferred on it by the abovementioned provisions. Accordingly, an application to the Court of First Instance for interim measures in the form of orders addressed to the notifying parties cannot be granted in interim proceedings initiated by a third party undertaking as an adjunct to an action for annulment brought by it against the Commission decision authorizing a concentration subject to conditions.

In any event, in the case of interim proceedings brought in the context of an action for the annulment of a Commission decision, the application for interim measures is admissible, in principle, only if it falls within the framework of the final decision which can be taken by the court hearing the main action under Article 173, in conjunction with Article 176, of the Treaty and concerns the relations between the parties to the dispute, which precludes any application for orders to be addressed to third persons not parties to the main action.

It follows that the application seeks to obtain from the judge hearing the application interim measures which do not come within his jurisdiction and that, consequently, it must be rejected as inadmissible.

2. The urgent nature of an application for interim measures under Article 104(2) of the Rules of Procedure of the Court of First Instance must be assessed by reference to the need to order interim measures in order to avoid serious and irreparable damage to the party requesting those measures. It is for that party to adduce the evidence to show that it cannot await the outcome of the main proceedings without suffering damage leading to serious and irreparable consequences.

That is not shown in the case of an applicant which, in order to obtain a stay of the operation of a decision authorizing a concentration between undertakings, claims that its competitive position is weakened by the concentration envisaged and by the conduct which it believes one of the undertakings concerned and its potential clients will adopt when the concentration is achieved, because that conduct cannot be regarded as a necessary consequence of the operation of the decision of authorization and the damage alleged is entirely hypothetical and based on the unpredictable probability of future and uncertain events.

In any event, the grant of such a suspension presupposes a weighing of the applicant' s interest in the suspension sought and the public interest in the implementation of decisions concerning concentrations adopted by the Commission under Regulation No 4064/89 as well as the interests of third parties directly affected by the suspension. In view of the abovementioned regulation' s aim of ensuring effectiveness of control and legal certainty for the undertakings concerned and the serious consequences which the suspension could have for the undertakings which are parties to the concentration, the balance of interests is against the applicant.

For those various reasons, the application for interim measures must be rejected.