Keywords

Summary



Keywords

1. Applications for interim measures — Conditions for admissibility — Admissibility of the main application — Court hearing the application for interim measures must, of its own motion, examine whether there is an interest in bringing the main proceedings — (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(1) and (2))

2. Actions for annulment — Interest in bringing proceedings — Interest assessed as on the date of bringing the action — Action brought by an undertaking in liquidation against a decision imposing a fine on it — Possibility that liquidation proceedings will continue beyond the date of the Community Court ' s decision — Admissible — (Art. 230 EC)

3. Applications for interim measures — Suspension of operation of a measure — Suspension of operation of a decision imposing a fine — Conditions for granting — Provision of a guarantee — Permissibility — Limits — Exceptional circumstances — (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

4. Applications for interim measures — Suspension of operation of a measure — Conditions for granting — Balancing of all the interests involved — Decision requiring payment of a fine by an undertaking in liquidation — Protection of the financial interests of the Community — Dismissal of the application for suspension — (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(1) and (2))

Summary

1. Since an application for interim relief cannot be examined if the action to which it relates is not admissible and since the lack of a legal interest in bringing proceedings is an absolute bar to proceedings, it is for the judge hearing the application to consider of his own motion whether the applicant has prima facie such an interest in bringing the main proceedings.

see paras 44-45

2. Legal interest in bringing proceedings for annulment, which is present only if the annulment of the measure is itself capable of having legal consequences for the applicant, is assessed as on the date on which the action is commenced.

Therefore, an undertaking seeking annulment of a Commission decision imposing a fine on it, even if it is the subject of liquidation proceedings initiated before the date on which the action was brought, has an interest in obtaining the annulment of the decision where it is possible that it may not yet be dissolved when the judge gives a ruling on the substance of the case. In those circumstances, annulment of the decision or reduction in the amount of the fine would have the legal effect, as the case may be, of extinguishing or reducing the amount of the Commission ' s claim.

see paras 46, 48-51

3. An application for interim measures seeking dispensation from an obligation imposed on an undertaking by the Commission to provide a bank guarantee as a condition for non-enforcement by the Commission of its right to immediate payment of a fine can be granted only in exceptional circumstances. In the context of applications for interim relief, express provision is made in the Rules of Procedure of both the Court of Justice and the Court of First Instance for requiring security to be lodged, which is a general and reasonable policy pursued by the Commission.

The presence of such exceptional circumstances may, as a rule, be regarded as established if the party seeking dispensation from an obligation to provide a bank guarantee proves that it is objectively impossible to provide that guarantee or that it is unable to provide a bank guarantee without placing its existence in jeopardy.

Where, in the context of liquidation, a sum equal to the amount of the fine cannot be frozen for the sole benefit of a bank, so that the bank would run the risk of never being paid, it must be concluded that provision of a bank guarantee for the undertaking in liquidation is objectively impossible.

see paras 54-55, 59

4. Where an application has been brought for suspension of the operation of a Commission decision requiring an undertaking in liquidation to pay a fine, the balancing of interests is weighted in favour of dismissal of the application where suspension would have the effect of preventing the Commission from bringing any action before the national court to recover the fine and to protect, as well as its own interests, the Community ' s financial interests, and this would, in fact, solely benefit the undertaking ' s other creditors.

Where there is a real risk that, were the main action to be dismissed, the undertaking ' s assets might then no longer be adequate to pay the fine and it is by no means guaranteed that the sum which it may have set aside for that purpose will be allocated solely to paying the amount owed to the Commission in the event that the main action is dismissed, it is necessary to maintain the effect of the decision in order not to prevent any measures which the Commission might intend to take for the purposes of recovering the amount of the fine imposed.

see para. 62