Provisional text
ORDER OF THE PRESIDENT OF THE GENERAL COURT
14 March 2017 (*)
(Application for interim measures — Funding of a political party — Institutional law — Bank guarantee — No urgency)
In Case T‑48/17 R,
Alliance for Direct Democracy in Europe ASBL (ADDE), established in Brussels (Belgium), represented by L. Defalque, lawyer,
applicant,
v
European Parliament, represented by C. Burgos and S. Alves, acting as Agents,
defendant,
APPLICATION pursuant to Articles 278 and 279 TFEU for the grant of interim measures in the form of dispensation from the obligation to provide a bank guarantee as a condition for the pre-financing of the grant awarded by decision FINS-2017-13 of the Parliament of 15 December 2016, relating to the funding allocated to the applicant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and forms of order sought by the parties
1 On 21 November 2016, the European Parliament decided that the applicant, Alliance for Direct Democracy in Europe ASBL (ADDE), was liable for a sum of EUR 172 654.92 as a result of an allegedly unlawful use of the funds that had been paid to it for 2015 (‘the decision of 21 November 2016’).
2 In its decision FINS-2017-13 of 15 December 2016, the Parliament set the maximum amount of funding that it intended to pay to the applicant for 2017 at EUR 1 102 642.71, including the sum of EUR 363 872.09, which was to be paid to the applicant as pre-financing subject to the condition that it provide a first demand bank guarantee covering the pre-financing amount (‘the contested decision’).
3 Subsequently, the applicant contacted its usual bank. The exchanges between the applicant and that bank culminated in the latter’s letter of 20 January 2017 in which it stated:
‘On the basis of all of the information provided, we therefore cannot grant any form of bank guarantee.’
4 The summary of the factors taken into account by the bank in deciding whether to grant a bank guarantee includes the following two paragraphs:
‘During our meeting, you also confirmed to us that no further amounts would be received from the European Parliament and that this, in the terms used in your email of 13 January 2017, makes “it impossible for ADDE to operate”.
In the same email, you also indicate that the grant of a bank guarantee such as that required by DG Finance is not realistic.’
5 By application lodged at the Court Registry on 27 January 2017, the applicant brought an action for annulment of the decision of 21 November 2016 and of the contested decision.
6 By separate document, lodged at the Court Registry on 27 January 2017, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should exempt it from the obligation to provide a first demand bank guarantee to the Parliament.
7 In its observations on the application for interim measures, which were lodged at the Court Registry on 13 February 2017, the Parliament contends that the President of the General Court should:
– dismiss that application;
– reserve the costs.
Law
8 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
9 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must ‘state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
10 Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, 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. Those requirements are cumulative, so that the application for interim measures must be dismissed if one of them is not met. Where appropriate, the judge hearing such an application must also weigh the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
11 In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
12 Having regard to the material in the case file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
13 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
14 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the final future decision, in order to prevent a lacuna in the legal protection afforded by the EU judicature. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim relief. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
15 Where the harm referred to is of a financial nature, the interim measures sought are justified where it is apparent that in the absence of those measures, the applicant would be in a position that could jeopardise its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its business and, as the case may be, the characteristics of the group to which it belongs (see order of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited).
16 As regards, in particular, requests seeking dispensation from the obligation to provide a bank guarantee as a condition for not requiring immediate recovery of a fine imposed by the European Commission, it follows from the case-law that such a requests may be granted only in exceptional circumstances (see, to that effect, order of 30 April 2010, Ziegler v Commission, C‑113/09 P(R), not published, EU:C:2010:242, paragraph 43 and the case-law cited).
17 It is true that, in the present case, the obligation to provide a bank guarantee forms part of the legal framework concerning the funding of a political party.
18 However, that difference in the underlying legal framework does not preclude the application of the principles established in the case-law cited in paragraph 16 above to the present case. That is particularly true given that both the applicant and the Parliament have made statements to that effect.
19 As regards the Parliament’s qualification of its statement, namely that those principles must be applied particularly strictly in the present case, since the applicant seeks to obtain funds from the EU budget, it suffices to note that, even on the basis of principles such as those established by the case-law in the field of competition law, the applicant’s request could not succeed.
20 The existence of exceptional circumstances, as required by the case-law cited in paragraph 16 above, may, in principle, be regarded as established where the party seeking dispensation from the obligation to provide the requisite bank guarantee adduces evidence either that it is objectively impossible for it to provide such a guarantee or that such provision would imperil its existence (see, to that effect, order of 13 April 2011, Westfälische Drahtindustrie and Others v Commission, T‑393/10 R, EU:T:2011:178, paragraph 23).
21 The applicant has not established, or even alleged, that providing a bank guarantee would jeopardise its existence or adduced evidence that it is objectively impossible for it to provide such a guarantee.
22 On that last point, it must be recalled that, according to case-law, the content of refusal letters from banks must allow the judge hearing an application for interim measures to verify whether the relevant bank applications were serious and ascertain the context in which they were made. In principle, it is therefore for the party seeking the interim measures to provide, when it brings an application for interim relief, clear and sufficiently comprehensive information concerning the refusal letters from banks on which it relies in order to demonstrate that it was objectively impossible for it to provide the requisite bank guarantee (see, to that effect, order of 20 April 2012, Fapricela v Commission, C‑507/11 P(R), not published, EU:C:2012:231, paragraph 55).
23 However, the refusal letter from the only bank which the applicant approached contains, among the other considerations leading to that refusal, the following statement: ‘In the same email, you also indicate that the grant of a bank guarantee such as that required by DG Finance is not realistic.’
24 In those circumstances, it cannot be concluded that the steps taken by the applicant in order to obtain a bank guarantee were serious.
25 It follows from the foregoing that the application for interim measures must be rejected for lack of urgency, without it being necessary to examine whether the requirement of a prima facie case is satisfied, or to weigh up the interests at stake.
26 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 14 March 2017.