Keywords

Summary



Keywords

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1. Application for interim measures ° Conditions of admissibility ° Admissibility of main action ° Main action not prima facie inadmissible ° Admissibility

(EEC Treaty, Arts 185 and 186)

2. Application for interim measures ° Suspension of operation of a measure ° Interim measures ° Conditions for granting ° Prima facie case ° Rights of an undertaking to which a statement of objections was addressed, in the context of the application of the competition rules, in the event of transmission of that statement by the Commission to third parties

(EEC Treaty, Arts 185 and 186; Council Regulation No 17, Art. 20)

3. Application for interim measures ° Suspension of operation of a measure ° Interim measures ° Conditions for granting ° Serious and irreparable damage ° Damage likely to be suffered by an undertaking to which a statement of objections addressed, in the context of the application of the competition rules, as a result of the Commission authorizing third parties to use that document in proceedings before a national court

(EEC Treaty, Arts 185 and 186)

Summary

1. The judge hearing an application for interim measures may, at the stage of the proceedings at which he is involved, exclude any finding that the main action ° and thus also the application for interim measures ° is manifestly inadmissible if the measure against which the action is brought appears to him, on the basis of a series of consistent substantiating factors and contrary to the defendant' s allegations, to have the characteristics of a decision producing legal effects.

2. In order to establish the existence of a prima facie case, the judge hearing the application for interim measures must examine whether, having regard to the factual and legal circumstances of the case, the pleas in law and supporting arguments adduced by the applicant in support of his action on the merits are of a serious nature.

The question whether and to what extent the provisions of Article 20 of Regulation No 17 concerning business confidentiality and the principles governing the protection of business secrets apply to a situation in which the Commission transmits to third parties a statement of objections addressed to a number of undertakings in application of the competition rules, and whether, in the event of such transmission, the Commission is bound to ensure that such a document is used only in connection with the administrative procedure pending before it is a delicate question which requires close examination in the main proceedings, with the result that the arguments of an undertaking that its rights in the matter have been infringed by the Commission cannot be dismissed as prima facie devoid of foundation.

3. The urgency of an application for interim measures and the existence of a risk of serious and irreparable damage must be appraised in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for the interim measures. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences.

The risk of such damage must be considered to have been established in the event that the Commission authorizes third parties to produce and use before national courts, in connection with an action brought by them against the applicant, a statement of objections and minutes of a hearing which relate to competition law procedures concerning the applicant pending before the Commission.

First, a statement of objections is a preparatory document in which infringements of the competition rules are alleged before any proper hearing has taken place; secondly, the statement may contain information sent by the undertaking itself to the Commission which may constitute business secrets or be confidential in character; thirdly, the course of the procedure before the national courts may be such that other third parties could have access to that information; and, lastly, there is a risk that use of the statement of objections might undermine the principle of equality of the parties before the national court.

To avoid that risk, and bearing in mind that the judge hearing an application for interim measures cannot issue directions to individuals who are not parties to the dispute, and still less to national courts, an order must be made suspending the disputed authorization and directing the Commission to send a copy of the interim order immediately to the third parties to which it gave its authorization.