Keywords

Summary



Keywords

1. Applications for interim measures – Suspension of operation – Interim measures – Conditions for grant – Prima facie case – Urgency – Serious and irreparable harm – Cumulative – Weighing up of all the interests involved

(Arts 242 EC and 243 EC)

2. Applications for interim measures – Suspension of operation – Judgment of the Court of First Instance under appeal — Right to effective judicial protection – Application for suspension of operation of the contested decision challenged at first instance – Admissibility

(Art. 242 EC)

3. Applications for interim measures – Suspension of operation – Judgment of the Court of First Instance under appeal – Suspension of operation of the decision unsuccessfully challenged before the Court of First Instance – Conditions – Prima facie case – Burden of proof borne by the applicant

(Art. 242 EC)

Summary

1. The judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing such an application must also weigh up the interests involved. The conditions thus imposed are cumulative, so that an application for interim measures must be dismissed if any one of them is absent.

(see paras 10-11)

2. The fact that an application for interim measures made in connection with an appeal against a judgment of the Court of First Instance rejecting an action for annulment of a Commission decision finding State aid to be incompatible with the common market and ordering its recovery seeks suspension of that decision and thus goes beyond suspension of operation of the judgment under appeal does not make that application inadmissible.

Given, first, that the judgment under appeal is, in so far as it dismisses the action in its entirety, comparable to a negative decision, in respect of which it cannot be envisaged that an application for suspension of operation, which would in no way alter the appellant’s situation, could be granted save in exceptional circumstances and, second, that the obligation to repay the unlawful aid stems from the decision challenged before the Court of First Instance, that application must for reasons connected with the right to effective judicial protection be declared admissible.

(see paras 12-14)

3. The fact that an application for interim measures made in connection with an appeal against a judgment of the Court of First Instance rejecting an action for annulment of a Commission decision finding State aid to be incompatible with the common market and ordering its recovery seeks suspension of the operation of that decision entails consequences for the assessment as to whether there is a prima facie case, which the applicant must prove, with the result that the latter bears a heavier burden of proof.

However solid the pleas in law and arguments put forward against the judgment under appeal may be, they cannot suffice to justify in law, prima facie, suspension of operation of the decision challenged before the Court of First Instance. In order to establish that the condition relating to a prima facie case is satisfied, the applicant must also succeed in showing that the pleas and arguments relied on against that decision before the Court of First Instance are such as to justify the grant of suspension sought despite the fact that a Community court has already examined them and held them to be unfounded.

(see paras 16-20)