ORDER OF THE PRESIDENT OF THE GENERAL COURT
7 May 2010 (*)
(Interim measures – Competition – Commission decision imposing a fine – Bank guarantee – Application for suspension of operation of a measure – Financial loss – No exceptional circumstances – No urgency)
In Case T‑410/09 R,
Almamet GmbH Handel mit Spänen und Pulvern aus Metall, established in Ainring (Germany), represented by S. Hautbourg and C. Renner, lawyers,
applicant,
v
European Commission, represented by N. Khan, V. Bottka and N. von Lingen, acting as Agents,
defendant,
APPLICATION for suspension of the operation of the Commission Decision of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts
1 The applicant, Almamet GmbH Handel mit Spänen und Pulvern aus Metall, is a company established in Germany operating in the markets for calcium carbonide and magnesium granulates.
2 On 22 July 2009, the Commission adopted the Decision relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), in which it imposed a fine of EUR 3 040 000 on the applicant for its participation in a cartel.
3 By letter of 24 July 2009, the Commission notified the applicant of the contested decision. In that letter, the Commission also informed the applicant of the time-limit for payment of the fine of three months from the notification of the decision. In addition, it stated that, if the applicant decided to bring an action against that decision before the General Court, the Commission would recover the fine provisionally or require the provision of a bank guarantee covering the amount of the principal debt and the interest and accruals which would be due thereon.
4 On 14 August 2009, the applicant asked for a meeting with the staff of the Commission’s accounting officer in order to discuss the possibility of suspending payment of the fine, without having to provide a bank guarantee for the same sum. A meeting took place with staff of the Commission’s Directorate-General for Budget on 25 August 2009.
5 By a letter of 9 September 2009, the applicant sent the Commission information intended to demonstrate its inability to pay the fine imposed on it and asking if payment of the fine could be staggered. Following further requests from the Commission’s Directorate-General for Budget on 11 and 14 September 2009, the applicant sent the Commission several electronic messages supplementing the information provided in its letter of 9 September 2009. The applicant’s request for the suspension of payment of the fine was rejected on 16 October 2009.
6 On 27 October 2009, the applicant paid a sum of EUR 650 000 to the account specified by the Commission in the contested decision.
Procedure and forms of order sought by the parties
7 By application lodged at the Court Registry on 7 October 2009, the applicant brought an action for, in essence, annulment of the contested decision, and, in the alternative, reduction of the amount of the fine imposed upon it by the Commission.
8 By separate document lodged at the Court Registry on 6 November 2009, the applicant brought an application to obtain suspension of the operation of the contested decision. It claims, in essence, that the President of the Court should:
– suspend the operation of the contested decision, without requiring the applicant to provide a bank guarantee as a condition for suspending enforcement of the fine;
– order any other measure which is considered necessary;
– order the Commission to pay the costs.
9 By letter of 11 November 2009, the President of the Court put a number of questions to the parties.
10 On 13 November 2009, the parties lodged at the Court Registry their replies to the questions put by the President of the Court.
11 In its written observations on the application for interim measures, lodged at the Court Registry on 4 December 2009, the Commission contends, in essence, that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
12 It is clear from Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures.
13 Article 104(2) of the Rules of Procedure of the Court provides that an application 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 measures applied for. Thus, suspension of the operation of an act or other interim measures may be ordered 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 it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
14 Furthermore, in the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, in the light of 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 (orders of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
15 Having regard to the documents in the court file, the President of the Court considers that he has all the information needed in order to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties.
Arguments of the parties
Prima facie case
16 The applicant alleges that the Commission, first, infringed the applicant’s rights of defence by using against it documents which were seized ‘outside the scope of the Commission’s inspection decision of 10 January 2007’ and, second, did not establish, to the requisite legal standard, the existence of the infringement found in Article 1 of the contested decision. In addition, the applicant alleges that the Commission made a manifest error of assessment regarding the single and continuous nature of the infringement.
17 The applicant adds that the Commission infringed, first, paragraphs 23 to 26 of the ‘Leniency Notice’ by refusing it a reduction of the fine pursuant thereto, secondly, Article 81 EC and Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), as well as paragraph 32 of the ‘Guidelines on the method of setting fines’ by fixing the final amount of the fine at a level greater than 10% of its turnover. Thirdly, it maintains that the Commission infringed the principle of proportionality by fixing the amount of the fine imposed at an excessive level. Finally, it claims that the Commission made a manifest error of assessment in considering that the conditions of paragraph 35 of the ‘Guidelines on the method of setting fines’ were not satisfied.
18 The applicant submits that the pleas in law in support of its application for annulment establish serious doubts regarding the lawfulness of the contested decision and raise questions of principle. Those pleas cannot therefore be dismissed as unfounded without being examined in more detail in the main proceedings.
19 The Commission disputes all the applicant’s arguments and submits that the requirement relating to a prima facie case is not satisfied here.
Urgency
20 The applicant maintains in essence that, first, it is objectively impossible for it to provide a bank guarantee and, secondly, its continued existence is at risk if it is required to provide such a guarantee.
21 The applicant states that, in view of its financial situation, it is not in a position either to pay the whole fine or to provide a bank guarantee covering the entire fine. Next, it claims that it has no assets which could be sold or provided as collateral security. It also points out that it made a serious effort in making a payment on account of EUR 650 000, the amount of which corresponds to the provision it made in its accounts in 2007 with regard to the proceeding initiated by the Commission. It states, also, that two banks refused its requests to provide a bank guarantee covering the outstanding balance of the fine.
22 The applicant adds that, if it cannot pay the sum claimed by the Commission, it will have no choice but to make a declaration of insolvency even before recovery of the fine is enforced, since, under German law, an insolvent company has a period of three weeks from the date on which it becomes insolvent to make such a declaration, failing which its directors become personally liable. Subject to certain exceptions, the company’s directors are also prohibited from making payments on the company’s behalf from that date.
23 The applicant submits that there are exceptional circumstances arising from the risk of the serious and irreparable harm it would suffer if it were required to provide a bank guarantee for the amount outstanding after the payment on account.
24 The Commission submits, in essence, that the applicant has failed to mention the financial situation of its shareholders, sister companies and subsidiaries. In its submission, the applicant’s majority shareholder has access to sufficient resources to pay or finance the fine imposed and the commercial interests of that shareholder are linked to those of the applicant.
25 In addition, the Commission challenges some of the applicant’s statements as regards its own resources. It observes that, in the application for interim measures, the applicant states that its turnover was exceptionally high in 2008, but the Commission points out that the sales figure for 2007 was equivalent to that of 2008. It also expresses serious doubts as to the value which the applicant attributes to its own overseas assets. It adds that the applicant has demonstrated a lack of diligence, to the extent that it did not make sufficient provision to cover the Commission’s fine, but only a sum sufficient to cover the costs incurred in ‘defending [itself] against the Commission’.
26 Moreover, the Commission submits that the applicant has not shown that it was objectively impossible for it to obtain a bank guarantee, since the documents on which the applicant relies relate to credit facilities and not to bank guarantees, thus to different financial products.
The balance of interests
27 The applicant submits that the balance of the interests involved leans in favour of exemption from the obligation to provide a bank guarantee. First, its disappearance from the markets ‘for calcium carbide powder and magnesium granulates’ would be extremely damaging to the competitive structure of those markets. Second, recovery of the amount of the fine would be more difficult, even impossible, since, in any insolvency proceedings, the Commission would have to file its claim which would not be entitled to any priority.
28 The Commission disputes all the applicant’s arguments and submits that the balance of the interests involved leans heavily in favour of dismissing the application for suspension of the operation of the contested decision.
Findings of the President of the Court
29 In the circumstances of this case, it is appropriate to examine first whether the requirement of urgency is satisfied.
30 It is settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure (order of the President in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 18; orders of the President in Joined Cases T‑195/01 R and T-207/01 R Government of Gibraltar v Commission [2001] ECR II-3915, paragraph 95, and Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 82). However, it is not sufficient to allege that the operation of the act of which suspension is sought is imminent, but it is for the party seeking such relief to adduce substantial evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order of the President in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). Although it is not necessary for the imminence of the damage to be demonstrated with absolute certainty, its occurrence must nevertheless, in particular when it depends on several factors, be foreseeable with a sufficient degree of probability. The applicant is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67, and order in Neue Erba Lautex v Commission, paragraph 83).
31 Damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable, or even as being reparable only with difficulty, since it can, as a general rule, ultimately be the subject of financial compensation (orders of the President in Case C‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I-2865, paragraph 113, and Case T-339/00 R Bactria v Commission [2001] ECR II-1721, paragraph 94). However, an interim measure is justified if it appears that, without that measure, the applicant would be in a position that could imperil its existence before final judgment in the main action (order in Neue Erba Lautex v Commission, paragraph 84).
32 Finally, in order to determine whether the damage feared by the applicant is serious and irreparable and therefore justifies the suspension, as an exceptional case, of the operation of the contested decision, the judge hearing the application for interim measures must have hard and precise information, supported by detailed documents showing the applicant’s financial situation and enabling the judge to determine the precise effects which would follow, probably, if the measures sought were not granted (see, to that effect, order of the President in Case 378/87 R Top Hit Holzvertrieb v Commission [1988] ECR 161, paragraph 18; orders of the President in Case T‑163/00 R Carotti v Court of Auditors [2000] ECR-SC I‑A‑133 and II‑607, paragraph 8; Case T‑196/01 R Aristoteleio Panepistimio Thessalonikis v Commission [2001] ECR II‑3107, paragraph 32; and Case T‑420/05 R II Vischim v Commission [2006] ECR II‑4085, paragraphs 83 and 84; orders of the President of the Fourth Chamber (Extended Composition) in Case T‑86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-UnternehmenandHapag-Lloyd v Commission [1998] ECR II‑641, paragraphs 64, 65 and 67; and of the President of the Second Chamber in Case T‑143/99 R Hortiplant v Commission [1999] ECR II‑2451, paragraph 18).
33 In this case, the applicant is asking the President of the Court for dispensation from the obligation to provide a bank guarantee where that guarantee is the condition imposed in return for suspending enforcement of that part of the fine not covered by the payment on account to the Commission.
34 In that regard, it must be borne in mind that a request for dispensation from the obligation to set up a bank guarantee, where that guarantee is the condition imposed in return for staying enforcement of a fine imposed by the Commission, cannot be granted unless there are exceptional circumstances (order of the President in Case C‑361/00 P(R) Cho Yang Shipping v Commission [2000] ECR I‑11657, paragraph 88).
35 Indeed, the possibility of requiring the provision of a financial guarantee is a general and reasonable way for the Commission to act (order of the President in Case T‑79/03 R IRO v Commission [2003] ECR II‑3027, paragraph 25).
36 The existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking exemption from providing the requisite bank guarantee proves that it is objectively impossible for it to provide such a guarantee (see order in IRO v Commission, paragraph 26, and the case‑law cited), or that such provision would imperil its existence (see, to that effect, orders of the President in Case T‑295/94 R Buchmann v Commission [1994] ECR II-1265, paragraph 24, and Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 43).
37 In the present case, it is appropriate to examine, in the first place, whether the applicant has established, to the requisite legal standard, that it was objectively impossible for it to provide the requisite bank guarantee.
38 To prove that, the applicant asserts that, in view of its financial situation, it is not in a position to pay the whole fine or to provide the requisite bank guarantee.
39 In support of its assertion, the applicant provided, annexed to the application for interim measures, two letters of refusal from two different banks.
40 In that regard, it is appropriate to note that, first, the content of those two letters of refusal is brief and, second, that the explanations given by the applicant in the application for interim measures on the way its discussions with the two banks prior to their refusals proceeded are sibylline.
41 Yet, according to settled case‑law, an application for interim measures must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information, and the essential elements of fact and law on which it is founded must be set out in the application for interim measures itself (orders of the President in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52; and Case T‑85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37).
42 Admittedly, the relevance of banks’ letters of refusal cannot be excluded, as such, simply because they are few in number (see, to that effect, order of the President of 28 March 2007 in Case T‑384/06 R IBP and International Building Products France v Commission, not published in the ECR, paragraph 61). However, the content of such letters of refusal must enable the judge hearing the application for interim measures to determine the seriousness of the corresponding requests for bank guarantees and the context in which they were made.
43 As a rule, it is therefore for the applicant to provide, when lodging the application for interim measures, unequivocal and sufficiently complete information on the banks’ letters of refusal upon which it relies in order to prove that it was objectively impossible for it to provide the requisite bank guarantee. However, in exercise of the discretion under the first subparagraph of Article 105(2) of the Rules of Procedure, the judge hearing the application may decide to request that party to produce documents clarifying the banks’ letters of refusal annexed to the application for interim measures.
44 In this case, the judge hearing the application for interim measures asked the applicant for information as to the dates on which the contacts with those banks had taken place and as to the substance and formulation of the requests to those banks. In its reply, the applicant said it could not provide any documentary evidence, on the ground that the two banks had been contacted orally. It explained that, in view of the pre-existing financial relationships which it had with those two banks, they were very well informed of its financial situation, so that no written request relating to the provision of a bank guarantee was necessary.
45 So laconic a response does not enable the judge hearing the application for interim measures to determine in actual fact the seriousness and completeness of those requests for a bank guarantee.
46 In any event, as the applicant itself points out, it has been held that the relevance of the letters refusing to provide a bank guarantee must be assessed in the light of the objective financial situation of parties who have sought interim measures (order of the President in Case T‑11/06 R Romana Tabacchi v Commission [2006] ECR II‑2491, paragraph 102; see also, to that effect, order of the President in Cho Yang Shipping v Commission, paragraph 43).
47 Moreover, it is settled case‑law that, in assessing the ability of a company to furnish a bank guarantee, regard may be had to the group of companies to which it belongs and, in particular, to the resources available to that group as a whole (order of the President in Case C‑364/99 P(R) DSR‑Senator Lines v Commission [1999] ECR I‑8733, paragraph 49).
48 That approach is based on the idea that the objective interests of the company concerned are not autonomous in relation to those of the natural or legal persons with a controlling interest in it and that, consequently, the serious and irreparable nature of the damage alleged must be assessed at the level of the group comprising those persons. In particular, given that the interests at stake overlap, the company’s interest in its own survival must not be viewed in isolation from the interest of those controlling it in prolonging its life indefinitely (orders in DSR‑Senator Lines v Commission, paragraph 50; and HFB and Others v Commission, paragraph 62; and order of the President in Case T‑241/00 R Le Canne v Commission [2001] ECR II‑37, paragraph 40). The fact that the situation of the group to which the company belongs is taken into consideration does not at all signify that the fine or liability for the infringement may be attributed to third parties (order of the President in Romana Tabacchi v Commission, paragraph 111).
49 In this case, the application for interim measures contains no information as to the existence of any shareholders in the applicant.
50 The only information relating to its shareholders which has been communicated by the applicant is that in its letter of 8 March 2010 by which it informed the President of the Court of a change in its shareholders. In that letter, the applicant stated that Minmet Financing Company SA (‘Minmet’) was one of its shareholders, with, until 21 January 2010, 50% of its capital.
51 Applying the case‑law cited in paragraph 41 above, Minmet’s existence as a shareholder with 50% of the applicant’s capital should have been, first, revealed by the applicant when the application for interim measures was lodged and, second, dealt with in the applicant’s evidence of its inability to provide a bank guarantee.
52 It is difficult to understand, moreover, why that information, the essential nature of which could not be unknown to the applicant in the light of the settled case‑law on the point, was not communicated until it had become obsolete. In its letter of 8 March 2010, the applicant states that all the shares which Minmet held in its capital had been bought by a natural person.
53 That letter confirms, none the less, the existence, in the application for interim measures, of a major defect with regard to the evidence necessary for the consideration which the President of the Court must carry out in his capacity as judge hearing applications for interim measures.
54 Since the applicant mentioned, in its letter of 8 March 2010, the existence, among its shareholders, of two natural persons, namely Messrs B.R. and A.R., holding respectively 15% and 30% of its capital, it is appropriate to recall the case‑law cited in paragraph 41 above as regards the applicant’s obligation, in proceedings for interim relief, to make available, both to the defendant and to the judge hearing the application, the essential elements of fact and law on which the applicant relies, which must be set out in the application for interim measures itself.
55 It follows that an application for interim measures may not validly be supplemented by a document lodged subsequently by the applicant, possibly in response to observations from the other party to the proceedings, in order to remedy such deficiencies. To allow such ‘catch-up’ would be incompatible not only with the expeditiousness required in interim proceedings, but also and above all with the spirit of Article 109 of the Rules of Procedure, under which, where an application for an interim measure is rejected, the applicant may not make a further application unless the latter is ‘on the basis of new facts’ (orders of the President of 23 January 2009 in Case T‑352/08 R Pannon Hőerőmű v Commission, not published in the ECR, paragraph 31, and of 24 April 2009 in Case T‑52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraph 62). ‘New facts’ are to be understood as including facts which the applicant could not have pleaded when it lodged its application for interim measures and which are relevant to the determination of the case in question (see, to that effect and by analogy, orders of the President in Case T‑303/04 R II European Dynamics v Commission [2004] ECR II‑4621, paragraph 60, and Case T‑171/05 R II Nijs v Court of Auditors [2006] ECR-SC I‑A‑2‑11 and II‑A‑2‑47, paragraph 28).
56 In this case, everything indicates that the two natural persons holding respectively 15% and 30% of the applicant’s capital who are referred to in its letter of 8 March 2010 were already among its shareholders on the date that its application for interim measures was lodged. In fact, the Commission, in its observations, already made reference to those persons. Yet the applicant has not stated how it was prevented from mentioning that information when it lodged its application for interim measures. Therefore, their existence cannot be regarded as a ‘new fact’. Thus, if it was the applicant’s intention, in providing that information, to make up for the absence, from its application for interim measures, of a potentially decisive element, that attempt cannot be accepted.
57 Moreover, while the case‑law on taking the group into consideration has often been applied with regard to the majority shareholder (see, in particular, order in Pannon Hőerőmű v Commission, paragraph 47), the reasoning which underlies it does not make it impossible for it to retain, in an appropriate case, all its relevance with regard to minority shareholders. According to the particular case, and particularly the structure of the shareholders in a party seeking interim measures, the interests of certain minority shareholders may no less justify their financial resources being taken into account in the analysis of that party’s situation and, most particularly, in the assessment of whether a bank guarantee may be provided. Therefore, the production, in the application for interim measures, of information regarding them, for the purposes of establishing a true and global picture of the applicant’s situation, must, according to the circumstances of the case, be envisaged by the applicant.
58 In this case, when the application for interim measures was lodged, the structure of the shareholdings in the applicant seemed to consist of two principal shareholders, holding respectively 50% and 30% of its capital. While the 50% shareholder’s situation has already been dealt with as regards deficiencies in its presentation in these proceedings (see paragraphs 49 to 53 above), it must be pointed out that, in the present case, the existence of a natural person holding 30% of the applicant’s capital does not appear, at first sight, to be devoid of significance as regards the determination by the judge hearing applications for interim measures of the existence of particular circumstances justifying the adoption of the interim measures required by the applicant.
59 Yet the applicant did not take into account, in the analysis of its ability to provide a bank guarantee, the possibilities of financial support which that shareholder could have offered. More particularly, the applicant provided no explanation as to the latter’s lack of interest in ensuring its survival by participating in the efforts to provide such a guarantee.
60 Finally, in its letter of 8 March 2010, the applicant referred to the purchase by a natural person, namely Mr M.N., of all the shares held by Minmet. By that transaction, which took effect on 21 January 2010, that person became the third natural person with a shareholding in the applicant. The applicant also stated that that person had participated with its other shareholders in an increase of capital of EUR 50 000, taking its capital from EUR 450 000 to EUR 500 000. It stated, moreover, that that new shareholder had no other financial resources enabling him to contribute to the payment of the fine imposed on it or to participate in the efforts to provide a bank guarantee to cover the payment of that fine.
61 In that regard, the applicant’s mere assertion as to its or its shareholders’ financial resources cannot be sufficient to produce a true and global picture of its financial situation for the purposes of the examination which the judge hearing applications for interim measures is bound to undertake. Indeed, according to well-established case‑law, it should, for that purpose, have provided hard and precise information, supported by certified detailed documents (see, to that effect, orders of the President of 14 December 2007 in Case T‑387/07 R Portugal v Commission, not published in the ECR, paragraphs 30 and 31; Case T‑411/07 R Aer Lingus Group v Commission [2008] ECR II‑411, paragraphs 118 and 122; of 25 May 2009 in Case T‑159/09 R Biofrescos v Commission, not published in the ECR, paragraphs 23 to 25; and of 13 July 2009 in Case T‑238/09 R Sniace v Commission, not published in the ECR, paragraphs 25 and 26).
62 In this case, the applicant has provided, as the only document relating to that new shareholder, only his curriculum vitae. Such a document obviously cannot establish what are that shareholder’s financial resources. The lack of relevant information, for the purposes of the present proceedings, regarding that new shareholder therefore does not enable the judge hearing applications for interim measures to determine whether that shareholder could have participated in the efforts to provide a bank guarantee to cover the payment of the fine imposed on the applicant.
63 It follows that the applicant has not proved, to the requisite legal standard, that it was objectively impossible for it to provide a bank guarantee.
64 It is therefore appropriate to examine, in the second place, whether the applicant has established, to the requisite legal standard, that the provision of a bank guarantee would imperil its existence.
65 To prove that, the applicant asserts that, if it cannot pay the sum claimed by the Commission, it will have no choice but to file a declaration of insolvency even before recovery of the fine is enforced, since, under German law, an insolvent company has a period of three weeks from the date on which it becomes insolvent to make that declaration, failing which its directors will be personally liable. Subject to certain exceptions, the directors cannot make payments on the company’s behalf after that date. The applicant makes clear, also, that one of the banks with which it has credit lines reminded it of its obligation to retain 20% of its own capital, otherwise that bank would be entitled to exercise the exceptional right of terminating the credit contract.
66 It is settled case‑law that, in the context of the examination of the applicant’s financial viability, consideration may in particular be given, for the purposes of assessing its economic circumstances, to the characteristics of the group of which, by virtue of its shareholding structure, it forms part (see orders of the President in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12, and Case T‑192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 54, and the case‑law cited).
67 As has been previously pointed out, the total lack of information, in the application for interim measures, as regards the applicant’s shareholders makes it impossible for the judge hearing the application to undertake a concrete examination of the applicant’s financial situation and, consequently, of its viability.
68 As regards the applicant’s letter of 8 March 2010 relating to a change in its shareholders and, more specifically, to the substitution for Minmet of a natural person, it is appropriate to recall that the case‑law cited in paragraph 47 above applies not only to legal persons but also to natural persons who hold a substantial share in the company. Indeed, the fact that the principal shareholder in a company is a natural person who does not himself constitute a company appears to be without relevance (order in HFB and Others v Commission, paragraph 64; see also order in Le Canne v Commission, paragraph 42).
69 In that regard, the applicant confines itself to asserting that the new shareholder, who henceforth holds 50% of its capital, has no additional financial resources enabling him either to contribute to the payment of the outstanding amount of the fine imposed or to participate in efforts to provide a bank guarantee to cover the payment of that fine. That assertion is not, in fact, accompanied by any evidence other than that person’s curriculum vitae.
70 For the purposes of proceedings for interim relief, it is for the applicant to provide the decisive evidence enabling the Court to establish a true and global picture of its situation. It must therefore be held that the applicant has failed to make such evidence available to the judge hearing the application for interim measures.
71 It follows that the applicant has not established that the circumstances of this case are among those which can be characterised as exceptional, with the result that the alleged financial damage cannot be regarded, in the light of the material in the Court file, as serious and irreparable.
72 Consequently, the requirement of urgency is not satisfied in this case.
73 It follows from all the foregoing that the present application for interim measures must be rejected for lack of urgency, and it is not necessary to determine whether the other conditions for granting the interim measures sought, particularly that of the existence of a prima facie case, are satisfied.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 7 May 2010.