ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
29 October 2009 (*)
(Interim measures – Competition – Commission decision imposing a fine – Bank guarantee – Application for suspension of enforcement of a measure – Lack of urgency)
In Case T‑352/09 R,
Novácke chemické závody, a.s., established in Nováky (Slovakia), represented by A. Černejová, lawyer,
applicant,
v
Commission of the European Communities, represented by F. Castillo de la Torre and N. von Lingen, acting as Agents,
defendant,
APPLICATION for suspension of enforcement of the Commission decision of 22 July 2009 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium-based reagents for the steel and gas industries), in so far as it concerns the applicant,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 The applicant, Novácke chemické závody, a.s., was a company active in the chemical sector, established in Slovakia. It produced, inter alia, calcium carbide. It was an important supplier of calcium carbide granulates to undertakings active on the gas market and sold calcium carbide powder to an undertaking active on the steel market. From 2004 to 2007, it was more than 70% owned by 1. garantovaná, a.s., an investment holding company, which then transferred its holding to its Cypriot subsidiary, G 1 Investments Ltd. In 2008, Disor Holdings Ltd, established in Cyprus, acquired 100% of the applicant’s shares.
2 On 22 July 2009, the Commission of the European Communities adopted a decision relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium-based reagents for the steel and gas industries) (‘the contested decision’), according to which several undertakings, including the applicant and 1. garantovaná, its former parent company, infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) by participating in a cartel in the calcium carbide and magnesium sectors within the European Economic Area, which consisted of market sharing, fixing quotas, customer allocation, price fixing and the exchange of sensitive commercial information on prices, customers and sales volumes.
3 In the contested decision, the Commission criticised the applicant more specifically for having been directly involved in the abovementioned cartel between April 2004 and January 2007. With regard to 1. garantovaná, the Commission found that, during that period, it exercised decisive influence over the business policy of its subsidiary at the time, that is the applicant, with the result that those two companies constituted a single undertaking, which was the reason why 1. garantovaná was held responsible for the applicant’s unlawful conduct.
4 In point (e) of the first paragraph and in the second paragraph of Article 2 of the contested decision, the Commission imposed on the applicant and on 1. garantovaná a fine of EUR 19 600 000, specifying that the two companies are jointly and severally liable, and stated that that fine must be paid within three months of the date of notification of the contested decision and that, after the expiry of that period, interest was to be automatically payable at 3.5 percentage points above the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which the decision was adopted.
5 The contested decision was notified to the applicant on 27 July 2009. In the notification letter, the Commission offered the applicant the possibility of not paying the fine immediately on condition that it provided it with a bank guarantee.
6 By application lodged at the Registry of the Court of First Instance on 14 September 2009, the applicant brought an action seeking the partial annulment of the contested decision and, alternatively, the cancellation or reduction of the fine imposed on it.
7 By separate document, lodged at the Registry of the Court on the same day, the applicant introduced the present application for interim measures, in which it claims, essentially, that the President of the Court of First Instance should:
– suspend the enforcement of the contested decision, to the extent that it is ordered to pay the fine imposed, until the Court has ruled in the main proceedings;
– order the Commission to pay the costs.
8 In its written observations on the application for interim measures, lodged at the Registry of the Court of First Instance on 7 October 2009, the Commission contends that the President of the Court should:
– dismiss the application for interim relief;
– order the applicant to pay the costs.
9 In the course of the written procedure, the parties discussed the consequences of the following: first, the fact that, on 16 September 2009, the applicant filed a petition for the commencement of insolvency proceedings with the Slovak court having jurisdiction; second, the fact that those proceedings were opened on 29 September 2009; and third, the fact that, on 2 October 2009, the Slovak court having jurisdiction declared the applicant insolvent and appointed an administrator to manage its assets (‘the administrator’). The Slovak court’s decision was officially published.
10 By documents lodged with the Registry of the Court of First Instance on 23 September and 8 October 2009 respectively, 1. garantovaná and the Slovak Republic applied for leave to intervene in support of the form of order sought by the applicant.
11 By application lodged at the Registry of the Court on 2 October 2009, 1. garantovaná also brought an action against the contested decision (Case T‑392/09). By separate document lodged at the Registry of the Court of First Instance on 13 October 2009, it also made an application for interim measures (Case T‑392/09 R).
Law
12 Under Articles 242 EC and 243 EC, in conjunction with Article 225(1) EC, the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures.
13 Article 104(2) of the Rules of Procedure of the Court of First Instance 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 operation or enforcement of an act and interim measures may be ordered by the judge hearing the application for 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 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 applications for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
14 In addition, in the context of that overall examination, the judge hearing the application for interim measures 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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court of Justice 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 Lastly, it should be borne in mind that Article 242 EC lays down the principle that actions do not have suspensory effect (order of the President of the Court of Justice in Case C‑377/98 R Netherlands v Parliament and Council [2000] ECR I‑6229, paragraph 44, and order of the President of the Court of First Instance in Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 42). It is thus only exceptionally that the judge hearing the application for interim measures may order the suspension of operation or enforcement of an act contested before the Court of First Instance or prescribe interim measures.
16 Having regard to the documents in the case, the judge hearing the application for interim measures considers that he has all the material 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.
Purpose of the application for interim measures
17 The applicant claims that the enforcement of the contested decision should be suspended, as far as the fine imposed on it is concerned, until the Court has ruled in the main proceedings.
18 It is common ground that, in its letter of 24 July 2009 notifying the contested decision, the Commission, in essence, made an offer to the applicant that, should the applicant bring an action before the Court, it would not take any step to enforce the fine as long as the case was pending, on the condition that a bank guarantee covering the principal debt and the interest due was provided.
19 It follows that the application for interim measures can have no aim other than to obtain dispensation from the obligation to provide a bank guarantee as a condition for non-enforcement by the Commission of its right to immediate payment of the amount of the fine imposed by the contested decision (see, to that effect, orders of the President of the Court of First Instance in Case T‑398/02 R Linea GIG v Commission [2003] ECR II‑1139, paragraph 54, and Case T‑11/06 R Romana Tabacchi v Commission [2006] ECR II‑2491, paragraphs 23 to 26).
Merits of the application for interim measures
Arguments of the parties
– Prima facie case
20 While acknowledging that it has never denied the role played by its former management in the meetings of the cartel, the applicant raises three pleas all of which concern the amount of the fine imposed by the Commission. They allege, respectively, an infringement of the general Community principles of proportionality and equal treatment, a failure to take into account the inability of the applicant to pay the fine, and an infringement of Article 3(1)(g) EC.
21 First, the applicant criticises the excessive size of the fine resulting from the way it was calculated and its disproportionate nature in comparison to the fines imposed on the other members of the cartel. It contends that it was the cartel’s most passive member. Not speaking any foreign language fluently, its representatives were in general obliged to communicate through other cartel members. Also, as they had studied and obtained their professional positions under the former Communist regime which had complete control of the economy, they lacked any basic knowledge of competition law. Nevertheless, the amount of the fine imposed on it amounted to approximately one third of the total fine imposed on all cartel members and almost reached the maximum limit of 10% provided for under 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).
22 Second, the applicant criticises the Commission for not inquiring into its ability to pay the fine imposed and for not considering the fact that, by requiring that the fine be paid within three months of the date of notification of the contested decision, the undertaking would be declared insolvent and have to cease its activities.
23 Third, the applicant considers that its ‘elimination’ from the calcium carbide market would distort and eliminate competition on that market. Such ‘elimination’ would therefore amount to an infringement of the objectives of the Community laid down in Article 3(1)(g) EC. The disappearance of one of the most important players would further reduce competition on the relevant market. As the direct cause of the declaration of the applicant’s insolvency, the contested decision would therefore weaken competition rather then restoring it.
24 According to the Commission, the applicant has failed to satisfy the condition that it should have a prima facie case.
– Urgency
25 The applicant submits that, if the payment of the fine imposed on it is not suspended in the 30-day period following the date on which it became due, that is 27 October 2009, it will be obliged, under the relevant provisions of Slovak insolvency law, to apply for the commencement of liquidation proceedings on 27 November at the latest. Under Slovak law, the main objective of liquidation proceedings is to sell the assets of the company concerned, cease its activities and gradually close down its business. In practice, that procedure is ‘irretrievable from an economic point of view’. Admittedly, the liquidation proceedings can be legally discontinued in the event of rescue proceedings, the purpose of which is to help the company to recover. However, those rescue proceedings must be opened before the declaration of the debtor’s insolvency and with the creditors’ agreement, which would be virtually impossible in the present case.
26 The applicant states that, under Slovak law, the power to dispose of the assets of a company in liquidation is transferred to a liquidator who acts in the name and on the account of the insolvent company. The role of the liquidator in the running of the company is radically different from that of normal management: he does not act with a view to re-establishing the business operations of the insolvent company but has the sole objective of satisfying creditors’ claims and closing down the business.
27 The applicant also claims that it is one of the major players on the relevant market. It submits that if it were to be declared insolvent and had to leave that market as a direct consequence of the fine imposed by the Commission, competition on that market would substantially decrease. Therefore the fine, if due, would directly threaten the balance on the relevant market and, instead of restoring competition, decrease it. However, it is crucial to maintain a minimum level of competition on the relevant market, in the interests of the Community, the Member States and consumers.
28 The applicant also refers to the social effects the fine imposed would have on the whole region in which the undertaking is situated, claiming that its closure would lead directly to 2 000 job losses and to further thousands of job losses in companies with links to its business; the fine would also represent a threat to the region as a whole, since other large employers in the region – such as a power station and coalmines – are economically linked to the applicant. The domino effect resulting from the applicant’s insolvency would very probably result in ‘skyrocketing’ unemployment in the region and threaten its ‘general economic viability’.
29 The applicant maintains that it is a ‘subject of economic mobilisation’ and that, under the relevant Slovak legislation, it is obliged to secure the essential needs of the population and the operation of the armed forces in crisis situations. As a ‘subject of economic mobilisation’, its insolvency and ‘elimination’ from the relevant market would impair the situation of the population and armed forces in crisis situations and, therefore, impair the interests of the Slovak Republic.
30 Furthermore, according to the applicant, there is no other judicial or administrative procedure which it could pursue in order to avoid being declared insolvent once the fine imposed by the Commission became due. Moreover, no other institution or undertaking is willing or able to provide it with financial support, on account of its financial situation and the imminent threat of insolvency.
31 In that context, the applicant states that it decided not to make a formal approach to the Commission in order to reach agreement with it as regards payment of instalments, as even paying the fine by instalments would not prevent its insolvency. It also states that while it is true that the Commission offered it the possibility of not paying the fine if it provided the Commission with a bank guarantee, it would however have had no chance of obtaining such a guarantee from any bank whatsoever. The local banks know the situation very well and completely understand the consequences of the imposition of the fine. Thus, immediately after publication of the contested decision, a member of one of the largest groups of Slovak banks terminated cooperation on the advanced financing of its book debts and stopped negotiations on the possible factoring in relation to its suppliers. Another factoring institution made the extension of its contractual relations with the applicant beyond 30 September 2009 conditional on obtaining the suspension of the enforcement of the contested decision, and a Slovak bank demanded a higher guarantee. The same applied to foreign banks, who would follow the local banks by refusing the applicant financial support. A foreign company thus withdrew its offer of credit insurance. Nevertheless, the applicant states that it is not in possession of written proof to support its assertions, with the exception of the email regarding withdrawal of credit insurance.
32 With regard to the possibility of financing by the parent company, the applicant states that its sole shareholder, Disor Holdings, established in Cyprus, does not have sufficient funds to guarantee payment of the fine imposed. In order to carry out its rescue, Disor Holdings would have to increase the applicant’s registered capital by at least SKK (Slovak Crowns) 400 000 000 (approximately EUR 13 278 000). Therefore, along with the fine imposed by the Commission, Disor’s commitment to the applicant would amount to almost SKK 1 000 000 000 (approximately EUR 33 000 000). Disor Holdings could not therefore make or guarantee such an investment.
33 The applicant adds that it cannot offer any security for payment of the fine. All of the major assets of the company, including the buildings on which the production facilities are located, all relevant technology and machinery and all book debts have been secured in favour of the major Slovak banking and financing institutions. All that information is publicly available in the Slovak Central Notaries Register or Land Register. The applicant states that it could provide the Court, on request, with a complete description of all the secured assets.
34 The Commission responds that the applicant has failed to establish urgency.
Assessment by the judge hearing the application for interim measures
35 In the circumstances of the case, it should first be examined whether the condition as to urgency is satisfied.
36 In that regard, it should be borne in mind that the urgency of an application for interim measures must be assessed on the basis of the need for an interlocutory order in order to prevent serious and irreparable harm being caused to the party requesting the interim measures. That party must prove that it cannot wait for the outcome of the main proceedings without having to suffer harm of that kind (see orders of the President of the Court of First Instance in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, paragraph 187, and of 25 April 2008 in Case T‑41/08 R Vakakis v Commission, not published in the ECR, paragraph 52 and the case-law cited).
37 The harm alleged must be certain or, at the very least, established with a sufficient degree of probability, the applicant being required to prove the facts forming the basis of its claim that such harm is likely. Purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see, to that effect, order of the President of the Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; orders of the President of the Court of First Instance in Case T‑241/00 R Le Canne v Commission [2001] ECR II‑37, paragraph 37, and in Joined Cases T‑195/01 R and T‑207/01 R Government of Gibraltar v Commission [2001] ECR II‑3915, paragraph 101).
38 In addition, the circumstances capable of justifying urgency must, in principle, be proved on the basis of matters of fact or of law prevailing at the time when the application for interim measures was lodged, as set out in the application (order of the President of the Court of First Instance of 23 January 2009 in Case T‑352/08 R Pannon Hőerőmű v Commission, not published in the ECR, paragraph 29). It is settled case‑law that an application for interim measures must be sufficient to enable the defendant to submit its observations and the judge hearing the application to rule on that application, where necessary, without other supporting information, the essential elements of fact and law on which it is founded being set out in the application for interim measures itself (orders of the President of the Court of First Instance in the following cases: Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; Case 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).
39 In addition, the urgency must continue until the time when the judge hearing the application for interim measures makes his final decision (see, to that effect, order of the President of the Court of First Instance of 8 June 2009 in Case T‑173/09 R Z v Commission, not published in the ECR, paragraph 22).
40 In the present case, it should be noted that the applicant claimed, in its application for interim measures, that it would have to apply for the commencement of insolvency proceedings, if payment of the fine imposed on it were not suspended in the 30-day period following the date on which that payment became due, that is 27 October 2009, explaining that the main objective of the insolvency proceedings would be to sell its assets and stop its activities. It added that those proceedings were in practice ‘irretrievable from an economic point of view’.
41 It follows that the serious and irreparable harm which the applicant wishes to avoid consists of the obligation to institute insolvency proceedings before a court having jurisdiction and that the reason why it wished to avoid such a situation is that, once commenced, those proceedings would inevitably – as it has expressly stated – place its economic survival in jeopardy.
42 In fact, scarcely two days after making its application for interim measures and without waiting for a reaction of any kind from the judge who was to hear its application for interim measures, the applicant lodged its petition for the commencement of insolvency proceedings with the Court in Slovakia having jurisdiction, which decided, on 2 October 2009, to declare the applicant insolvent, publishing its decision on 7 October 2009 (see paragraph 9 above).
43 Since the applicant itself applied for the opening of national proceedings endangering its existence, granting the interim measures requested in the present proceedings could not dispel that danger (see, to that effect, order of the President of the Court of First Instance of 14 March 2008 in Case T‑1/08 R Buczek Automotive v Commission, not published in the ECR, paragraph 37). It cannot therefore be maintained that it is still necessary for the judge hearing the application for interim measures to make an interlocutory ruling in order to prevent the applicant from suffering the harm referred to in the application for interim measures, within the meaning of the case-law referred to in paragraph 36 above, since that harm has already occurred and could not be avoided by granting the interim measures sought. The purpose of interim proceedings is not to secure reparation of damage but to ensure the full effectiveness of the judgment on the substance (orders of the President of the Court of First Instance of 27 August 2008 in Case T‑246/08 R Melli Bank v Council, not published in the ECR, paragraph 53, and of 8 June 2009 in Case T‑149/09 R Dover v Parliament, not published in the ECR, paragraph 37).
44 It must therefore be held that, with regard to the alleged harm suffered and without it being necessary to decide whether it is serious and irreparable, the condition relating to urgency is not satisfied in the present case.
45 It should be added, for the sake of completeness, that that conclusion is in conformity with the subsequent progress of the insolvency proceedings which were opened at the applicant’s request, as explained in the applicant’s written submissions.
46 The applicant states, in a letter of 29 September 2009, that it had lodged a petition for the commencement of insolvency proceedings ‘to protect itself against creditors, including the Commission’ and to ‘seek protection against uncontrolled creditors’ steps towards it’. That goal seems to have been achieved in the present case since, as is apparent from the applicant’s letter of 7 October 2009, the Slovak court having jurisdiction declared the applicant insolvent on 2 October 2009, and on 7 October 2009 published that decision. In that letter, the applicant described the consequences of its insolvency. According to it, under Slovak insolvency law, first, all judicial and other proceedings relating to the assets falling within the insolvency – with the exception of four types of proceedings which are not relevant in the present context – must be stayed and, second, no enforcement proceedings relating to the assets falling within the insolvency may be started and, if already pending, must be discontinued with effect from the day on which the insolvency is declared.
47 Thus, it appears that the applicant succeeded, at national level, in obtaining protection of its property against enforcement of the contested decision which was equivalent to that which it sought initially in the present interlocutory proceedings.
48 It is true that, in its written submissions made after the application for interim measures, the applicant claimed that, despite the opening of insolvency proceedings in respect of it, the measures sought were still relevant, since the suspension of the enforcement of the contested decision, to the extent that the applicant is ordered to pay the fine imposed, could avoid the cessation of its activities, such suspension being an important factor for the administrator when taking decisions in the insolvency proceedings, in particular with regard to the possible rescue of the business. According to the applicant, it would still be possible to avoid the cessation of its activities and to relaunch its business in the context of a rescue process.
49 However, even assuming that urgency could exceptionally be established in the light of the fact that, notwithstanding the opening of insolvency proceedings against the applicant, the suspension requested could avoid cessation of its activities, and also assuming that the applicant would also be able to invoke, in that connection, as serious and irreparable damage, the loss of an opportunity to achieve the rescue of its business and, therefore, to ensure its economic survival, it is sufficient to point out that the applicant itself states that rescue proceedings must be started before the declaration of insolvency (see paragraph 25 above). In the present case, the applicant’s insolvency was declared on 2 October 2009 without rescue proceedings having been instituted. It follows that the harm linked to the loss of the opportunity to rescue the undertaking has already occurred and therefore that granting the interim measures requested would not make it possible to prevent the applicant from suffering such harm.
50 Moreover, the applicant itself considered it to be very unlikely that its business could be rescued. Thus, in its application for interim measures, it regarded as purely ‘theoretical’ the possibility of stopping the insolvency proceedings by instituting rescue proceedings. According to the applicant, such proceedings would have to be commenced with approval of the creditors, ‘which is almost impossible in the current case’. Furthermore, in the abovementioned letter of 29 September 2009, it stated that the cessation of its activities could be avoided ‘under certain conditions’, adding that ‘the strategy … of the [administrator] … cannot be predicted’.
51 It follows that the occurrence of harm linked to the loss of an opportunity to achieve such a rescue cannot be considered as certain or, at the least, sufficiently likely. What is at issue is rather purely hypothetical harm, in so far as it is based on the occurrence of future and uncertain events (see paragraph 37 above). Such harm cannot justify granting the interim measures requested.
52 In any case, since the aim of the present application for interim measures is to obtain dispensation from the obligation to provide a bank guarantee as a condition for non-enforcement of the fine imposed by the contested decision, it is settled case-law that such an application can be accepted only in exceptional circumstances, it being for the applicant to submit all the evidence necessary to show that those exceptional circumstances exist (see, to that effect, orders of the President of the Court of Justice in Case 86/82 R Hasselblad v Commission [1982] ECR 1555, paragraph 3, and of the President of the Court of First Instance in Case T‑191/98 R DSR-Senator Lines v Commission [1999] ECR II‑2531, paragraph 59). The possibility of requiring the lodging of a financial guarantee is expressly provided for in relation to applications for interim measures by the Rules of Procedure of the Court of Justice and the Court of First Instance, and corresponds to a general and reasonable Commission guideline. Also, 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 (see order in Linea GIG v Commission, paragraphs 54 and 55 and the case-law cited).
53 In that context, it is also settled case-law that, in order to assess whether a company is in a position to provide a bank guarantee, account should be taken of the group of undertakings to which it belongs and, in particular, the resources available, as a whole, to that group. That approach – which does not signify in any way that the fine or liability for the infringement may be attributed to third parties – is based on the idea that the objective interests of the undertaking concerned are not autonomous in relation to those of the natural or legal persons with a controlling interest in it or who are members of the same group and that the serious and irreparable nature of the damage alleged must therefore be assessed at the level of the group comprising those persons. In particular, given that overlapping of interests, the undertaking’s interest in its survival must not be viewed in isolation from the interest which those who have a controlling interest in it or who are members of the same group have in prolonging its life (order in Hasselblad v Commission, paragraph 4; orders of the President of the Court of Justice in Case C‑12/95 P, Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12, and in Case C‑364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I‑8733, paragraphs 49 and 50; order in Romana Tabacchi v Commission, paragraph 111).
54 In the present case, the applicant has stated that it could not provide a guarantee for payment of the fine, since all its major assets have been secured in favour of its banks (see paragraph 33 above). With regard to its parent company, Disor Holdings, which holds 100% of its shares, it has stated only that that company did not have sufficient funds to guarantee payment of the fine imposed. In order to rescue it, Disor Holdings would have to increase the applicant’s registered capital by approximately EUR 13 278 000. Taken together with the fine imposed by the Commisson, Disor Holdings’ commitments to the applicant would increase to approximately EUR 33 000 000. According to the applicant, Disor Holdings could neither make nor guarantee such an investment.
55 In that regard, it must be held that the applicant has confined itself to mere assertions, while failing to describe the financial situation of the group to which it belongs and which is controlled by its parent company. In particular, it has not provided any evidence concerning that situation. According to settled case-law, it should have provided specific and precise information supported by detailed documentary evidence, allowing the judge hearing the application for interim measures to assess, on the basis of sound evidence, the seriousness of the harm alleged having regard to the applicant’s membership of the Disor Holdings group (see, to that effect, order of the President of the Court of Justice in Case 378/87 R Top Hit Holzvertrieb v Commission [1988] ECR 161, paragraph 18; order of the President of the Fourth Chamber (Extended Composition) of the Court of First Instance in Case T‑86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1998] ECR II‑641, paragraphs 64, 65 and 67; order of the President of the Second Chamber of the Court of First Instance in Case T‑143/99 R Hortiplant v Commission [1999] ECR II‑2451, paragraph 18; orders of the President of the Court of First Instance in the following cases: Case T‑196/01 R Aristoteleio Panepistimio Thessalonikis v Commission [2001] ECR II‑3107, paragraph 32; Case T‑163/00 R Carotti v Court of Auditors [2000] ECR-SC I-A-133 and II‑607, paragraph 8; Case T‑420/05 R II Vischim v Commission [2006] ECR II‑4085, paragraphs 83 and 84; order 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; and orders 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).
56 Given that the applicant has failed to provide him with the required evidence and documentary proof, the judge hearing the application for interim measures is clearly unable to examine the seriousness of the alleged harm in any detail, as he cannot relate that harm to the overall material situation of the group to which the applicant belongs, in particular its total turnover.
57 Finally, to the extent that the applicant’s parent company appears to have accepted that it be declared insolvent rather than giving it the necessary financial support, it is settled case-law that a simple unilateral refusal of assistance by the principal shareholder of the company concerned cannot be enough to preclude the taking into consideration of the financial situation of the group as a whole to which it belongs (order of the President of the Court of First Instance of 14 March 2008 in Case T‑440/07 R Huta Buczek v Commission, not published in the ECR, paragraph 65). The extent of the alleged harm cannot depend on the unilateral intention of the parent company or of that of the other members of that group. A different conclusion can be drawn only if the applicant establishes that its group of companies is legally barred from giving it financial support (see, to that effect, orders of the President of the Court of Justice in DSR-Senator Lines v Commission, paragraphs 52 and 54, and in Case C‑7/01 P(R) FEG v Commission [2001] ECR I‑2559, paragraph 46; orders of the President of the Court of First Instance in the following cases: of 23 December 2008 in Case T‑468/08 R AES-Tisza v Commission, not published in the ECR, paragraphs 41 and 45; of 30 June 2009 in Case T‑550/08 R Tudapetrol Mineralölerzeugnisse Nils Hansen v Commission, not published in the ECR, paragraph 50; and of 2 July 2009 in Case T‑246/09 R Insula v Commission, not published in the ECR, paragraph 28). In the present case, the applicant has remained silent with regard to the possibility of such a legal bar.
58 It follows that the applicant has not shown that it was objectively impossible for it or another company in the group to which it belonged to provide the bank guarantee requested or that providing that guarantee would jeopardise its existence or that of that group.
59 It follows from all of the foregoing that the application for interim measures must be rejected on grounds of lack of urgency, without it being necessary to examine whether the other conditions for the grant of suspension of the enforcement of the measure, such as the possible existence of a prima facie case, are met. In those circumstances, it is not necessary to rule on the applications for leave to intervene submitted by the Slovak Republic and by 1. garantovaná.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is rejected.
2. The costs are reserved.
Luxembourg, 29 October 2009.