ORDER OF THE PRESIDENT OF THE GENERAL COURT

2 March 2011 (*)

(Application for interim measures – Competition – Commission Decision imposing a fine – Bank guarantee – Application for suspension of operation of a measure – Prima facie case – Financial loss – Exceptional circumstances – Urgency – Balance of interests – Partial and conditional suspension)

In Case T‑392/09 R,

1. garantovaná a.s., established in Bratislava (Slovakia), represented initially by M. Powell, Solicitor, A. Sutton and G. Forwood, Barristers, and subsequently by M. Powell and G. Forwood,

applicant,

v

European Commission, represented by J. Bourke and N. von Lingen, acting as Agents,

defendant,

APPLICATION for suspension of operation of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 (EC) and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute

1        The applicant, 1. garantovaná a.s. (‘the applicant’ or ‘Garantovaná’), is an investment company established in Bratislava (Slovakia).

2        On 22 July 2009, the Commission of the European Communities adopted Decision C(2009) 5791 final relating to a proceeding under Article 81 (EC) 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’), by which it imposed on the applicant, jointly and severally with Novácke chemické závody, a.s. (‘NCHZ’), a fine of EUR 19.6 million for having exercised decisive influence over the business policy of NCHZ – a direct participant in the cartel – at the time of the infringement.

3        By letter of 24 July 2009, the Commission notified the contested decision to the applicant. In that letter, it also informed the applicant that it had a period of three months starting from notification within which to pay the fine. The Commission also stated that, if the applicant decided to bring an action against that decision before the General Court, it would provisionally collect the fine or request a bank guarantee covering the principal sum and interest payable.

 Procedure and forms of order sought

4        By application lodged at the Court Registry on 2 October 2009, the applicant brought an action seeking annulment of the contested decision or, in the alternative, reduction of the fine which the Commission had imposed on it.

5        By separate document, lodged at the Court Registry on 13 October 2009, the applicant applied for suspension of operation of the contested decision. It requests the President of the Court:

–        pursuant to Article 105 of the Rules of Procedure of the General Court, to suspend, until the conclusion of the proceedings for interim measures, operation of Article 2 of the contested decision, under which it is obliged to pay a fine amounting to EUR 19.6 million and to dispense it from the obligation to provide a bank guarantee laid down by the Commission in its letter of 24 July 2009;

–        to suspend, until the conclusion of the main action, operation of Article 2 of the contested decision and, in particular, to dispense it from the obligation to provide a bank guarantee or to pay the fine;

–        order the Commission to pay the costs.

6        On 20 October 2009, the President of the Court ordered, on the basis of Article 105(2) of the Rules of Procedure, that the operation of Article 2 of the contested decision be suspended in so far as it concerns the applicant until the order terminating the proceedings for interim measures has been made.

7        In its written observations on the application for interim measures, lodged at the Court Registry on 6 November 2009, the Commission contends that the President of the Court should:

–        dismiss the application for interim measures;

–        order the applicant to pay the costs.

8        By letter of 16 November 2009, the President of the Court asked the applicant a series of questions, to which the applicant replied by letter of 23 November 2009. On 4 December 2009, the Commission lodged its observations regarding those replies. On 10 December 2009, the applicant submitted its observations on the Commission’s observations.

9        By separate document of 17 December 2009, an application for leave to intervene was made by Jaroslav Červenka, Milan Hošek, Roman Murar, Adrián Vološin, Milan Kasanický and Peter Fratič in their capacity as shareholders in Garantovaná. The Commission and the applicant lodged their observations on 5 and 7 January 2010 respectively.

10      By letters received at the Court Registry on 18 January, 2 February and 11 March 2010, the applicant explained the difficulties it was encountering in providing a bank guarantee. In its letter of 18 January 2010, it also submitted observations on the observations lodged by the Commission concerning the application for leave to intervene. By letter of 4 February 2010, the Commission submitted its observations on the applicant’s letter of 18 January 2010.

 Law

 The application to intervene lodged by Messrs Červenka, Hošek, Murar, Vološin, Kasanický and Fratič

11      Under Article 40, second paragraph, of the Statute of the Court of Justice of the European Union, which applies to the General Court by virtue of the first paragraph of Article 53 of the Statute, a person may intervene in a case before the General Court provided he can establish an interest in the result of the case.

12      On that point, it is settled case-law that the concept of interest in the result of a case must be understood as being a direct and present interest in the ruling on the forms of order sought (order in Case 111/63 Lemmerz-Werke v High Authority [1964] English special edition, p. 716; orders in Joined Cases C-151/97 P(I) and C-157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraphs 51 to 53; and in Case C‑186/02 P Ramondin and Ramondin Cápsulas v Commission [2003] ECR I‑2415, paragraph 7). It is necessary to determine, in particular, that the prospective intervener is directly affected by the contested measure and that his interest in the result of the case is established (see the orders in Case T‑138/98 ACAV and Others v Council [1999] ECR II‑1797, paragraph 14; and in Case T‑54/00 R Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR II‑2875, paragraph 15 and the case law cited). When the application for leave to intervene is made in proceedings for interim measures, the interest in the result of the case must be understood as being an interest in the result of the interim proceedings. In the same way as the result of the main proceedings, the result of the interim proceedings may adversely affect the interests of third parties or be favourable to them. It follows that, in interim proceedings, the interests of the party seeking leave to intervene must be appraised in the light of the consequences which granting the interim relief sought or rejecting that request may have on that party’s economic or legal position (order in Case T‑201/04 R Microsoft v Commission [2004] ECR II-2977, paragraph 33).

13      In this instance, the persons seeking leave to intervene invoke the right to intervene in their capacity as shareholders in the applicant. However, no document has been provided which establishes that that they actually have that capacity. Accordingly, the application to intervene must be regarded as manifestly incomplete.

14      Moreover, even if it were established that the persons seeking leave to intervene are shareholders, the President of the Court is not in a position to ascertain whether the interests of those shareholders would be affected. It is apparent from the documents before the Court that the applicant’s shares are held by three minority shareholders, Ahimsa Development Ltd (‘Ahimsa’), Aphotica Investments Properties (‘Aphotica’) and J&T Perspektiva sm. o.p.f., which hold 23.05%, 17.42% and 9.40% of the share capital respectively. The remainder of the applicant’s capital (50.13%) is held by more than 30 000 small shareholders, of whom the prospective interveners form part. However, a small shareholding in the applicant’s capital cannot, on its own and in the absence of other factors, confer on the prospective interveners an interest in the result of the case.

15      Even supposing that the prospective interveners hold the greater part of the 50.13% of the applicant’s share capital (which does not appear from the documents before the Court to be the case), it should in any event be recalled that the mere holding of a stake, even a significant one, in the capital of an undertaking that is party to a case is not in itself sufficient to characterise the existence of an interest in the result of that case (see the order of 29 October 2004 in Case T‑383/03 Hynix Semiconductor v Council, not published in the ECR, paragraph 71 and the case-law cited).

16      It is also settled case-law that it is necessary to distinguish between prospective interveners establishing a direct interest in the ruling on the specific act whose annulment is sought and those who can establish only an indirect interest in the result of the case by reason of similarities between their situation and that of one of the parties (see the order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 27 and the case-law cited). Otherwise, any person affected in an unspecified manner by a case could establish an interest in its result. Such an outcome would not be consistent with the requirements of procedural economy (order in Joined Cases T‑97/92 and T‑111/92 Rijnoudt and Hocken v Commission [1993] ECR II‑587, paragraphs 20 and 21).

17      In the present case, first, the prospective interveners in essence advance in support of their application the risk that would be posed to their investment if the interim relief sought by Garantovaná were not granted. In its application for suspension of operation, the applicant has made the same point about that risk, including in relation to the shareholders, in the context of the balance of interests to be taken into account by the judge hearing the application for interim measures. Second, as the Commission has correctly pointed out in its observations on the application to intervene, the arguments raised by the prospective interveners merely restate those put forward by the applicant in its application for interim measures.

18      Thus, first, the application for leave to intervene does not show that the prospective interveners have established, to the required legal standard, in what way their interest in the result of the case is different from that of the applicant. In that regard, it should be observed that proceedings for interim measures before the President of the Court would be likely to become considerably more cumbersome and protracted if all the shareholders of a company that has made an application for suspension of operation retained an independent right to intervene without having established a specific interest in the subject-matter of the proceedings such as to justify their intervention (see, by analogy, the order of the President of 5 February 2009 in Case C‑550/07 P Akzo Nobel Chemicals and Akcros Chemicals v Commission, paragraphs 12 to 14). Second, the prospective interveners have not shown, in this instance, that they have a direct and present interest in the result of the case. It would be contrary to the requirements of procedural economy to permit such shareholders – should they none the less be recognised as such – to intervene without demonstrating a specific interest in the result of the case (see, to that effect, the order of the President of 11 September 2006 in Case T‑367/05 UPC France v Commission, not published in the ECR, paragraph 15).

19      It follows that the application to intervene lodged by Messrs Červenka, Hošek, Murar, Vološin, Kasanický and Fratič must be dismissed.

 The application for interim measures

20      It is clear from Articles 278 TFEU and 279 TFEU, read in conjunction 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 application of a measure challenged before the General Court be suspended or prescribe any necessary interim measures.

21      Article 104(2) 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 measures applied for. Thus, 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. Where appropriate, the judge hearing such an application must also weigh up the interests involved (order in Case C‑445/00 R Austria v Council [2001] ECR I-1461, paragraph 73). Those conditions are cumulative, so that interim measures must be refused where either of them is absent (order in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).

22      Furthermore, in the context of that overall examination, the judge hearing the application enjoys a broad 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 analysed and assessed (order in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23; and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, paragraph 25).

23      Having regard to the material in the file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures, without it being necessary first to hear oral argument from the parties.

 Prima facie case

24      The applicant raises six pleas in law in support of its main action. Although there is no need to adjudicate on the merits, prima facie, of all the pleas put forward, it should be noted that, in its sixth plea, the applicant maintains that the Commission made a manifest error of assessment in dismissing the evidence that it provided in support of its request, made in accordance with paragraph 35 of the Guidelines on the method of setting fines imposed pursuant to Article 23(2)(a) of Regulation No 1/2003 (OJ 2006 C 210, p. 2; ‘the Guidelines’), concerning its inability to pay the fine. It claims that the Commission’s decision concerning that inability to pay also fails to state adequate reasons.

25      Paragraph 35 of the Guidelines states that in exceptional cases the Commission may, upon request, take account of the undertaking’s inability to pay in a specific social and economic context. In addition, paragraph 35 makes clear in fine that any reduction could be granted solely on the basis of objective evidence that imposition of a fine would irretrievably jeopardise the economic viability of the undertaking concerned and cause its assets to lose all their value.

26      In the present case, it is a matter of common knowledge that, at the time the contested decision was adopted, there was a particularly unusual economic and financial situation at both European and world level. In that regard, as the applicant points out in its application for interim measures, six of the eight undertakings to have been fined submitted observations to the Commission concerning their inability to pay the fine, relying on the economic crisis in general as well as on their own difficulties. Where the institutions have a discretion – which is undoubtedly the case as regards the implementation of paragraph 35 of the Guidelines – respect for the safeguards guaranteed by the European Union legal order in administrative procedures is of even more fundamental importance. Those safeguards include, in particular, the right of the persons concerned to have an adequately reasoned decision (see, to that effect, Case T-151/05 NVV and Others v Commission [2009] ECR II‑1219, paragraph 163 and the case-law cited). Having regard to the provision concerned and the context in which the request was made, the plea relating to breach of the obligation to state reasons incumbent on the Commission in that situation – a plea which entails defining the extent of that obligation in those circumstances – requires, prima facie, a thorough examination which it is not for the President of the Court to carry out in these proceedings.

27      Second, the actual wording of paragraph 35 of the Guidelines clearly suggests that any reduction in a fine following a request under that provision is necessarily related to the threat to the economic viability of the undertaking concerned and to the loss of all the value of its assets. As the Commission stated in the contested decision, the applicant had informed it of its intention to sell its assets and to terminate its activities. Consequently, the Commission’s assessment of the request, in the contested decision, which on that basis ruled out an analysis of the applicant’s viability, appears, prima facie, to raise a question of principle which warrants particular attention and which cannot be resolved in these interlocutory proceedings.

28      Accordingly, the abovementioned complaints appear, at first sight, to be sufficiently pertinent and serious to establish a prima facie case justifying the interim measures sought (see, to that effect, the orders in Case C‑296/93 R France v Commission [1993] ECR I‑4181, paragraph 17; in Case C‑120/94 R Commission v Greece [1994] ECR I‑3037, paragraphs 69 and 70; in Commission v Atlantic Container Line and Others, paragraphs 26 and 27; in Joined Cases T‑79/95 R and T‑80/95 R SNCF and British Railways v Commission [1995] ECR II‑1433, paragraph 35; and in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, paragraphs 185 and 186).

 Urgency

–       Arguments of the parties

29      The applicant remarks, first of all, that, since NCHZ has been declared insolvent by judgment of the Krajský súd (district court) of Trenčín (Slovakia) of 29 September 2009, it now falls to it to pay the whole of the fine.

30      The applicant goes on to submit that paying the fine would cause it serious and irreparable harm since it would be likely to drive it into insolvency. In that regard, it relies on the findings of an independent financial expert concerning its financial situation: according to those findings it would be impossible for it to pay the fine by means of an asset sale. The applicant also refutes any allegation of lack of diligence on its part with regard to the management of its financial resources, since it could not have assumed that the amount of the fine would be calculated by reference to 2007. It also notes that, since it is not the subsidiary of a parent or group and does not have a majority shareholder, there is no entity which can assist it with payment of the fine. It also submits that it sold its shares in NCHZ at a very low price because NCHZ had had to make reserves for the purpose of paying the fine. The applicant is therefore of the view that it has in actual fact already paid the fine through the loss in value of its shares in NCHZ.

31      Finally, the applicant claims that it is objectively impossible for it to provide a bank guarantee since it does not have sufficient assets that could be used as security for such a guarantee; nor does it have a parent or majority shareholder which would be able to stand as guarantor. In that regard, it also explains that it has approached five separate banks which have all refused its request.

32      As a preliminary point, the Commission submits that the only issue which must be considered is whether it is objectively impossible for the applicant to provide a bank guarantee, since the applicant has not argued that the very act of providing that guarantee would jeopardise its existence.

33      First, the Commission criticises the accounting documents and financial statements provided in support of the application for interim measures. It maintains that those documents were drawn up with a specific purpose and were intended for the Slovakian tax authorities and consequently do not provide a full picture of the applicant’s economic and financial situation.

34      Second, the Commission starts by contending that the applicant has not produced any information on the financial situation of the group to which it belongs. It disputes the applicant’s assertion that it does not belong to any group, is not the subsidiary of any company and has no majority shareholder. In its submission, the applicant is part of the J&T Finance Group (‘the J&T Group’), one of the strongest financial groups in Slovakia and the Czech Republic and the applicant’s interests are closely intertwined with those of the J&T Group.

35      The Commission goes on to dispute the applicant’s assertion that the insolvency of NCHZ means that it will have to bear the fine in its entirety. Furthermore, the applicant has not proved that it made a bona fide application for a bank guarantee. In the Commission’s submission, the letter sent to the banks contained – on the applicant’s own admission – little information and the applicant could have explored other ways of obtaining a bank guarantee, such as use of its long-term assets or the debt which it was owed as a result of the insolvency of the company 1.dochodkova. There is nothing in the application for interim measures to establish that any consideration was given to those possibilities.

36      Third, the Commission adds that there is no causal link between the fine and the risk of insolvency alleged by the applicant. First, the applicant has not shown that it was near to insolvency, as defined by the applicable law; second, the applicant’s financial situation is entirely of its own making and arises from a lack of diligence in the financial decisions it has made in relation to both the setting aside of provision and the tying up of its assets.

–       Findings of the President of the Court

37      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 relief (orders in Case C‑213/91 R Abertal and Others v Commission [1991] ECR I‑5109, paragraph 18; in Joined Cases T‑195/01 R and T‑207/01 R Government of Gibraltar v Commission [2001] ECR II-3915, paragraph 95; and in 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 sound evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). Whilst it does not have to be established with absolute certainty that the damage is imminent, its occurrence must nevertheless, in particular when it depends on several factors, be foreseeable with a sufficient degree of probability. The party requesting the interim relief is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; and in Neue Erba Lautex v Commission, paragraph 83).

38      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, be the subject of subsequent financial compensation (orders in Case C‑471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113; and in 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).

39      It follows that, in order to prove that it is exposed to serious and irreparable damage, the applicant is required to demonstrate to the judge hearing the application for interim measures that no solution exists other than, as an exception, to order such measures. Accordingly, that party has the task of exploring all the possibilities enabling it not to have to pay immediately the amount demanded (order in Case T‑30/10 Reagens v Commission [2010] ECR II‑0000, paragraph 33).

40      In this instance, in its letter of 24 July 2009 notifying the applicant of the contested decision, the Commission informed the applicant that, if it were to decide to bring an action for annulment of that decision before the General Court, the Commission would provisionally collect the fine or require a financial guarantee to be provided covering the amount of the principal debt and the interest payable. Therefore, having regard to the circumstances of the case and to the Commission’s invitation in its observations to proceed in that way, the President of the Court concludes that the subject-matter of this application may be regarded as restricted to an application to be dispensed from the obligation to provide a bank guarantee.

41      It is settled case-law that the possibility of requiring the provision of a financial guarantee is a general and reasonable way for the Commission to act (order in Case T‑79/03 R IRO v Commission [2003] ECR II‑3027, paragraph 25) and that the party seeking interim relief can be exempted only in exceptional circumstances from the obligation to provide a bank guarantee as a condition for the Commission’s not immediately recovering a fine imposed by it (orders in Case 107/82 R AEG-Telefunken v Commission [1982] ECR 1549, paragraph 6; in Case C‑361/00 P(R) Cho Yang Shipping v Commission [2000] ECR I‑11657, paragraph 88; in Case C‑7/01 P(R) FEG v Commission [2001] ECR I‑2559, paragraph 44; and in Reagens v Commission, paragraph 42).

42      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 the guarantee (see order in IRO v Commission, paragraph 26 and the case-law cited) or that provision of the guarantee would imperil its existence (see, to this effect, the orders in Case T‑295/94 R Buchmann v Commission [1994] ECR II‑1265, paragraph 24; and in Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 43).

43      In this case, the Commission correctly observes that the applicant has not put forward any argument that its existence might be imperilled by the very act of providing a bank guarantee and has merely produced evidence relating to the fact that it is objectively impossible for it to provide such a guarantee. It therefore falls to the President of the Court to consider whether the evidence produced by the applicant proves, to the required legal standard, that it was objectively impossible for it to provide a bank guarantee.

44      As a preliminary point, it should be recalled that the applicant was held liable, jointly and severally with NCHZ, for payment of a fine of EUR 19.6 million. In the absence of any agreement between the applicant and NCHZ as to how that amount might be divided between them, it appears that the bank guarantee may be regarded as acceptable by the Commission – and accordingly serve to prevent immediate payment of the fine – only if it covers the whole amount of the sum payable. Therefore, both the judicial declaration of NCHZ’s insolvency and the Commission’s confirmed intention of enforcing its debt as against the applicant are, at this stage, irrelevant for the purpose of the assessment which the President of the Court must make concerning whether it is objectively impossible for the applicant to provide such a bank guarantee.

45      In the first place, the applicant maintains that it does not have sufficient assets to provide such a guarantee. In support of its assertion, the applicant produces, first, a number of documents concerning its financial situation and a report prepared by an independent financial expert analysing those documents and, second, a number of letters from banks refusing its request for a bank guarantee.

46      As regards the documents concerning the applicant’s financial situation, it is settled case law that, in order to assess whether the damage alleged is serious and irreparable and thus justifies the suspension, by way of exception, of operation of the contested decision, the President of the Court must have specific and precise information, supported by detailed documents showing the financial situation of the applicant seeking the suspension of operation and enabling him to determine the precise effects which would follow, probably, if the measures sought were not granted (see, to that effect, orders of the President of 27 April 2010 in Case T‑103/10 P(R) Parliament v U, not published in the ECR, paragraph 37 and the case-law cited; and in Case T‑18/10 R II Inuit Tapiriit Kanatami and Others v Parliament and Council [2010] ECR II‑0000, paragraph 61).

47      It follows that, in order to justify the grant of the suspension of operation sought, an applicant is required to produce, with supporting evidence, a faithful overall picture of its financial situation. Furthermore, the judge hearing the application, where the other parties contest the application, cannot grant the application for interim measures on the basis of mere unsupported assertions from the applicant. Taking into consideration the fact that the grant of interim measures is strictly exceptional, such measures can be ordered only if those assertions are supported by conclusive evidence (see, to that effect, orders in Parliament v U, paragraph 39; and in Inuit Tapiriit Kanatami and Others v Parliament and Council, paragraph 62).

48      It must be added that an applicant must provide the faithful overall picture of his financial situation at the stage when the application for interim measures is lodged. According to settled case-law, an application for interim measures must be sufficient in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information, as the essential elements of fact and law on which it is founded must be set out in the application for interim relief itself (see, to that effect, the order in Parliament v U, paragraph 40 and the case-law cited).

49      In this instance, it should be observed at the outset that the Commission objects to the nature of the accounting documents and financial statements which have been provided. In its submission, the applicant should have provided the full standard reporting that any listed company publishes at the end of each quarter and at year end. Thus, the documents annexed to the application in these interim proceedings do not give a full overview of the applicant’s economic and financial situation at the material time. In response to a question from the President of the Court in that regard, the applicant stated that the documents provided are those required under the legislation applicable to companies quoted on the Bratislava Stock Exchange. The Commission has none the less continued to express doubts as to whether those documents were complete, pointing out their lack of transparency on a number of occasions. However, as the applicant observes in response to the doubts expressed by the Commission, it is noteworthy that some of the information regarded as missing or opaque is included in the documents annexed to the application for interim measures. It may therefore be concluded that the documents provided at the time the application for interim measures was submitted are complete and up to date as is required by the case-law cited above.

50      Furthermore, consideration of those documents and of the report of the financial expert shows a precise division, at the time the present application was lodged, of the applicant’s assets which reveals the limited amount of current assets and the extent of the long-term financial assets. The latter’s situation is expressly described and it appears that there is a maturity date on 11 July 2012. The applicant also provides information concerning the consequences of a sale before maturity of the shares which it holds in its subsidiary G1 Investments Ltd (‘G1’), the company which made the investments at issue.

51      The applicant may therefore be found to have provided the President of the Court with specific and precise information, supported by detailed and current documents, thereby providing a faithful overall picture of its financial situation.

52      However, in this instance, consideration of the assets alone does not persuade the President of the Court that it was objectively impossible for the applicant to obtain a bank guarantee. It is therefore necessary to consider the steps taken by the applicant vis-à-vis certain financial institutions.

53      As regards the letters from banks refusing the applicant’s request for a bank guarantee, the content of those 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 (order of the President of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraph 42). 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 (order in Almamet v Commission, paragraph 43).

54      In this instance, the applicant annexed to its application for interim measures five letters from various banks refusing its application for a bank guarantee. In its observations, the Commission contends that the applicant has not proved that it made a bona fide application for a bank guarantee.

55      First, the Commission contends that, in view of the economic context in which the applications were made, the sparse information supplied by the applicant in them explains why the banks that were contacted did not give a positive response.

56      In that regard, it should be borne in mind that, in an assessment of whether an application for a bank guarantee is serious, all the available evidence submitted to the judge hearing an application for interim measures must be taken into account. In this case, although it is true that the applications for bank guarantees provide scarcely any information and there is no explanation of the context in which the applicant’s dealings with the banks took place or of the background thereto, the fact remains (i) that, in four of the five requests, the applicant indicated how financial and accounting information concerning it could be obtained and (ii) it is apparent from the negative responses of the banks contacted that two of them expressly stated that they had thoroughly analysed the applicant’s accounting and financial documents in the light of its situation. In response to a question asked by the President of the Court on the basis of Article 105(2) of the Rules of Procedure, the applicant also explained that it had had a meeting on 22 September 2009 with one of the three other banks whose letters of refusal do not reveal the thorough nature of their analysis of its request for a bank guarantee. Although, as the Commission observes, the applicant has not described the precise content of the discussions which took place at the meeting, it must none the less be noted that, in its answer to the President’s questions, the applicant describes the topics of discussion which were raised with the banks and makes particular mention of the fact that the banks concerned asked for detailed information concerning its financial situation and cash flow which might be available should the guarantee be called upon. Those statements, although they are not supported by written documents, appear to be corroborated by the replies of certain banks which refer to a detailed analysis of the applicant’s financial situation in connection with its application for a bank guarantee. In view of the foregoing, the applicant has thus produced at least three refusals which, having regard to the case-law in this area, must be regarded as relevant (order in Case T‑11/06 R Romana Tabacchi v Commission [2006] ECR II‑2491, paragraphs 102 and 103).

57      Second, the Commission argues that, if the applicant had really wanted to obtain a bank guarantee, it could have offered to use its long-term assets, offering, for example, to pledge the promissory notes received for the loans as collateral for a bank guarantee.

58      However, in response to those arguments, the applicant explains, in its letter of 10 December 2009, that it has never owned such promissory notes, which, moreover, were never issued as consideration for the loans provided. It explains that the promissory notes to which the Commission refers were ultimately, through Bounty Commodities Ltd (‘Bounty’), transferred to three other debtor companies not as loan collateral but as the subject of the loan.

59      In response to those detailed explanations, the Commission, in its letter of 4 February 2010, merely repeated its argument that the applicant had the option of offering to use its long-term assets to obtain a bank guarantee but did not provide any matters challenging the substance of the applicant’s explanations. Thus, the Commission’s argument must, at this stage, be rejected.

60      Third, the Commission points out that the applicant had won recognition of its claim to around EUR 29.8 million following the collapse of a subsidiary. In its submission, it cannot be ascertained from the financial information provided in the application for interim measures how this debt, which could have been entered in the books, was treated for accounting purposes. This argument must, however, be rejected since, as the applicant points out, it is clear from the notes to the financial statements that it has produced that an adjustment was made to take account of the fact that it could not expect to benefit from that claim.

61      In view of the foregoing, the applications for a bank guarantee, submitted at the time when the application for interim measures was lodged, must be regarded as serious. The refusal of the banks to provide the applicant with a bank guarantee in order to avoid immediate payment of the fine imposed by the Commission in the contested decision thus serves to establish that it was objectively impossible for the applicant to provide such a guarantee.

62      It should be added that, on three occasions, the applicant informed the President of the Court that the approaches which it first made in November 2009 to 13 other banks had proved fruitless. Although clearly nothing prevented the applicant from contacting the 13 other banks at the same time as the five banks whose letters of refusal are annexed to this application, those approaches none the less cannot be regarded as belated, since similar approaches culminating in the same outcome had been made in good time. Nor can they be regarded as attempts to ‘catch up’, since they are not intended to remedy shortcomings, given that the earlier applications have been found to be serious (see, for illustrations of attempts to ‘catch up’, 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). Those additional letters of refusal are, therefore, to be taken into account as supplemental information in the same way as an answer by one of the parties to a question from the judge hearing an application for interim measures.

63      Furthermore, although it is settled case-law that the relevance of letters from banks refusing to provide a guarantee cannot be discounted as such, merely 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), it is clear that their probative value may, in certain cases, be strengthened by the production of a high number of such letters, as is the case here.

64      It must also be noted that, among the total of 18 banks contacted by the applicant, some were branches of banks operating at international level and others were banks operating only at national level. It is also apparent from an analysis of the content of those letters that it is likely that certain refusals were caused by the refocusing of the bank’s activities on key clients because of the difficulties linked to the economic and financial climate at that time or, simply, by the financial restrictions resulting from that. Thus the options open to the applicant were more restricted given the economic and financial situation at European and world level. Finally, those letters give additional examples of meetings between the banks and the applicant, during which the latter’s situation was examined in detail but which ended in its application for a bank guarantee being turned down, the guarantee being deemed too large in view of the applicant’s assets and the economic and financial context at the time the application was made.

65      Following an analysis of all the information provided, the President of the Court finds that the applicant has produced conclusive evidence tending to show that it does not have sufficient assets to provide a bank guarantee.

66      However, it is settled case-law that, in assessing the ability of a company to furnish a bank guarantee, regard is to 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 in Case C‑364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I‑8733, paragraph 49). That approach is based on the idea that the objective interests of the company concerned are not distinct from the interests of the natural or legal persons who control it, and that the serious and irreparable nature of the alleged damage must therefore be assessed at the level of the group composed by those persons. That confusion of interests constitutes a ground for, in particular, not assessing the interests of the company concerned in surviving independently of the interests which the persons who control it have in its survival (orders in DSR-Senator Lines v Commission, paragraph 50; in HFB and Others v Commission, paragraph 62; and 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 a 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 in Romana Tabacchi v Commission, paragraph 111).

67      In that context, the applicant, in second place, maintains that it is not the subsidiary of a parent company or of a larger group and that it does not have a majority shareholder. In that regard, the President of the Court notes that the Commission has expressed a number of doubts concerning that assertion. More specifically, it maintains that the applicant is part of the J&T Group and that its interests are closely intertwined with those of that group. It is therefore necessary to consider the probative value of all the material put forward in this respect and to do so in the light of the case-law cited in paragraphs 46 to 48 above.

68      As regards the question whether the applicant belongs to the J&T Group, it is first necessary to consider the composition of the applicant’s shareholders. The applicant states that its shareholders comprise three minority shareholders, Ahimsa, Aphotica and J&T Perspektiva which hold 23.05%, 17.42% and 9.40 % of its capital respectively. The remainder of the applicant’s capital, 50.13%, is, it claims, held by more than 30 000 small shareholders. The Commission considers that, in actual fact, the three minority shareholders are part of the J&T Group. In support of its claim, it cites expert reports which suggest that Ahimsa and Aphotica, two Cypriot companies, belong to the J&T Group. It also states that in the J&T Group’s 2007 annual report, the accounts of those two companies are consolidated with those of the group. J&T Perspektiva, an investment fund, is managed by J&T Asset Management which, in turn, is wholly owned by the J&T Group. The J&T Group therefore has a 49.87% shareholding in Garantovaná. As the remaining shareholding is highly dispersed, the J&T Group has a controlling shareholding in the applicant.

69      However, as the applicant notes in its replies to the questions asked by the President of the Court, the reports on which the Commission relies are based on data which do not reflect the current situation. Any contractual relationships which may have existed in 2007 between the J&T Group, on the one hand, and Ahimsa and Aphotica, on the other, were terminated on 31 August 2008 and there is no need to speculate about whether those relationships may have given rise to any control with regard to the applicant. The fact that those companies’ accounts were not consolidated in the J&T Group’s 2008 annual report confirms that the contractual relationships developed in that way, as is explained in a letter from the J&T Group annexed to the applicant’s replies to the questions raised by the President of the Court. That letter, dated 18 November 2009, a translation of which into the language of the case was submitted on 27 November 2009, provides an explanation of the reasons for the links which existed until the restructuring of the group, which, inter alia, put an end to the J&T Group’s relationship with the applicant’s two main minority shareholders. That information provides a satisfactory answer to the numerous allegations made by the Commission in its observations of 4 December 2009, which seek to establish the existence of lacunae in the application for interim measures so far as concerns the links between the applicant or its two principal minority shareholders and the J&T Group and, more specifically, (i) the existence of loans from the J&T Group to those two minority shareholders which financed the purchase of shares in the applicant’s share capital and (ii) the impact of a major restructuring of the J&T Group on the relationships the group had with the applicant through its two principal minority shareholders.

70      Second, the observations submitted by the Commission in the present proceedings draw attention to certain matters which, in its view, suggest that the applicant belongs to the J&T Group.

71      As a preliminary point, it should, however, be noted that the matters advanced by the Commission are not based solely on the existence of shareholder relationships but on a set of indicia to which probative value may not reasonably be given once certain key elements have been rebutted. In the absence of such key elements, the starting point has to be that the applicant does not enjoy the privileged relationships attributed to it and that it is therefore unable to obtain information which is not in the public domain or can do so only with difficulty.

72      The various indicia advanced by the Commission to establish that the applicant is part of the J&T Group must be examined in the light of those considerations. Those indicia may be divided into two categories.

73      First, the Commission emphasises the existence of links which may be described as ‘personal’. At the outset, the Commission advances certain indications of links between the applicant and the J&T Group. Thus, certain persons on the applicant’s board of directors, including its chairman, are alleged to have obvious links with the J&T Group. The two companies have the same address in Bratislava. The e-mail address used by one member of the applicant’s board during the administrative procedure is that of the J&T Group. However, the probative value of such indicia is not such as to persuade the President of the Court that the applicant belongs to the J&T Group. Indeed, without hard evidence, the mere fact that certain persons who are attached to one company are involved in another company is not a ground for concluding that the first company belongs to the second. It is in fact not unusual for the same people to be found in various investment companies without those companies together forming a group. Furthermore, the members of the applicant’s board to whom the Commission refers do not hold key positions within the J&T Group. Moreover, it is not inconceivable that, because of the links maintained by one of the members of the applicant’s board with the J&T Group, that member should have an e-mail address at the J&T Group. Nevertheless, all that may be concluded from that fact is that the person concerned is involved in a company other than the applicant, which in itself, as explained above, does not, in the present case, conclusively demonstrate that the applicant belongs to the J&T Group. Nor is it inconceivable that the address in Slovakia is the address of a business centre where a number of companies which are not connected with each other can all be found.

74      The Commission goes on to submit similar indicia concerning the links between the applicant’s two principal minority shareholders and the J&T Group. At the outset, it should be observed that the explanations which the applicant is able to provide about those indicia are necessarily limited, since the links concern minority shareholders. According to the Commission, Aphotica is wholly owned by Masterton Development Ltd, 100% of the voting rights in which are owned by Mr R.K., the uncle of Mr P.T., the latter being part of the management of the J&T Group and the son of Mr J.T., the owner of 50% of the share capital of Techno Plus, the ultimate holding company of the J&T Group. The Commission also states that the two Cypriot companies, Aphotica and Ahimsa, have two directors, one of whom, Ms A.T., is also a director of three other companies, two of which are part of the J&T Group. In that regard, it should be borne in mind that the fact that the same persons are found in various investment companies is not in itself a sufficient basis for concluding that those undertakings belong to a single group. Furthermore, although family links may, in some circumstances, support the contention that an undertaking forms part of a larger group, (see, to that effect, order of the President of 15 January 2009 in Case T‑199/08 R, Ziegler v Commission, not published in the ECR, paragraph 60), in the present case, those links appear too patchy to justify taking such an approach.

75      Second, the Commission advances indicia concerning links of a ‘financial’ nature. It refers first of all to financial links between the two principal shareholders in the applicant and the J&T Group. The indicia in question concern essentially the loans made by the J&T Group to the Cypriot companies with a view to them purchasing shares in the applicant’s capital. Having regard to the preliminary observation made in paragraph 71 above and taking account of the fact that since 31 August 2008 any contractual relationship between the applicant’s two principal minority shareholders and the J&T Group has ceased (see paragraph 69 above), this part of the Commission’s evidence must be discounted.

76      The Commission then puts forward indicia concerning links of the same nature between the applicant and the J&T Group. Thus, it mentions a number of pieces of documentary evidence, such as (i) the J&T Group’s 2007 annual report, which states that the applicant’s results are consolidated to a significant degree into those of the J&T Group and that the group has a holding in Garantovaná allowing it to exercise significant influence over the company, (ii) an article which appeared in the press on 25 April 2009 which refers to the fact that the applicant is part of the J&T Group and (iii) the expert’s report drawn up on 29 October 2009 for G1, the applicant’s wholly-owned subsidiary, which mentions that the subsidiary is part of the J&T Group. Apart from the fact that, as has been stated above, information taken from the J&T Group 2007 annual report is irrelevant, information from the abovementioned expert report has limited probative value since the central development in contractual relations in 2008 between the J&T Group, on the one hand, and Ahimsa and Aphotica, on the other, has not been taken into account. Since the sources on which the press article is based are not known, that piece of evidence is of very limited probative value.

77      The Commission also recalls that G1 invested the capital deriving from Garantovaná’s long-term financial assets, through the British Virgin Islands subsidiary, Bounty, in long-term loans to three companies. In that connection, it contends (i) that, in consideration for those loans, Bounty received promissory notes issued by J&T Private Equity, a wholly-owned subsidiary of the J&T Group, and (ii) that the three borrowers used the proceeds of the loans to finance projects in which the J&T Group was involved. It seems necessary at this stage of the analysis to draw attention to the particular complexity of the relationships at issue, which have been the subject of a great many exchanges of view during these proceedings. However, it is not for the judge hearing an application for interim measures to acquaint himself with every last financial transaction in order to analyse it from the perspective of whether the applicant was part of a larger group. In this case, the Commission has looked into the applicant’s situation on many occasions: to determine whether it had decisive influence over NCHZ and hence to find it jointly and severally liable for payment of the fine; to refuse its request under paragraph 35 of the Guidelines and, last, in the course of discussions relating to the financial guarantee which took place in parallel to these proceedings. The evidence put forward by the Commission, taken as a whole, is not so convincing that it may be concluded that no explanation other than the existence of financial links is possible. In fact, the matters advanced by the Commission could be explained by the fact that those companies’ business is capital-intensive investment and that they operate in similar and relatively small geographical areas. Therefore, it is not surprising that investments on that scale involve the same actors – but that does not mean that there are links between them permitting the inference that they form a group or a network within the meaning of the case-law.

78      It is thus not appropriate, in this instance, for the President of the Court to allow the mere suspicions put forward by Commission to prevail. When entities involved in proceedings before the Courts of the European Union as a result of their financial links with an undertaking which has infringed rules of European Union law are active in the sphere of finance and investments, it may not be presumed that the complexity of the financial operations comes about because of an intention to avoid the rules of competition law or to escape review by the judge hearing the application for interim measures. Although the objective difficulties encountered by the Commission in obtaining information about off-shore companies must be recognised and although, as a rule, it is for the applicant to shed light on the links that it may have with that type of company in order to mitigate those difficulties, it is also necessary to recall the considerations set out above, according to which where key elements on which the Commission has based its suspicions are rebutted, the starting point must be that, in view of the material in the file before the Court, the applicant does not enjoy the privileged relationships attributed to it and consequently cannot obtain information which is not in the public domain. The same may be true of information concerning the applicant’s minority shareholders in the present case.

79      In this instance, although, in view of the set of indicia put forward, it cannot be denied that certain links exist between these companies, which may in some circumstances give rise to a degree of influence, that influence, given the evidence submitted for review by the President of the Court, does not seem to amount to a link equating to membership of a group or a network within the meaning of the case-law concerning the assessment of the condition relating to urgency in an application for interim measures. Indeed, a distinction must be drawn between influence and membership, as the case-law neither equates them nor allows them to be equated.

80      In view of the foregoing, the documents before the President of the Court do not show that the applicant is the subsidiary of a parent company or that it belongs to a larger group or a network or that it has a major shareholder whose resources should be taken into account in the assessment of whether the applicant’s financial situation is such that it is objectively impossible for it to provide a bank guarantee.

81      As regards whether the applicant’s interests overlap with those of the J&T Group, in the current state of the case-law relating to the assessment of the financial resources of an applicant for interim measures, the concept of common interests is relevant only in so far as evidence of sufficient probative value has been produced in support of the contention that the applicant is the subsidiary of a parent company (order of the President of 29 October 2009 in Case T‑352/09 R Novácke chemické závody v Commission, not published in the ECR, paragraphs 53 to 55), has a majority shareholder (orders in DSR-Senator Lines v Commission, paragraphs 10 and 49 et seq.; in Romana Tabacchi v Commission, paragraph 111 et seq.; and in Almamet v Commission, paragraphs 47, 48 and 57), belongs to a group (order in Pannon Hőerőmű v Commission, paragraphs 47 and 48) or to a network (order of the President of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, paragraph 48).

82      In the present case, the evidence put forward by the Commission does not permit the President of the Court to call in question the applicant’s statement that it is not the subsidiary of a parent company or of a larger group and that it has no majority shareholder. Furthermore, the applicant does not appear to be part of a network the other members of which might have interests in common with it, a situation which should, in accordance with the case-law, prompt the President of the Court, in his capacity as judge in an application for interim measures, to take into account, in his assessment of the available financial resources that may be called on in support of a request for a bank guarantee, the ability to pay of those other members. The evidence produced by the Commission in that regard seeks to establish the existence of a deliberately concealed network by piecing together the personal and financial links which it alleges comprise the network. However, as the analysis above demonstrates, because of the circumstances of this case, there may be other rational and persuasive explanations for those links.

83      Moreover, it is clear from the foregoing that the applicant cannot be criticised for having omitted to mention the matters on which the Commission bases its objections. Valid reasons that omission have been advanced in the exchanges which have taken place in these proceedings. The application for interim measures is thus not insufficiently substantiated for the purpose of the assessment which the President of the Court must make concerning the condition relating to urgency.

84      In the third place, the Commission contends that the financial situation in which the applicant finds itself is wholly of its own making and reveals a lack of diligence with respect to the payment of the fine. First, it states that only 10 days before the date of the contested decision, the applicant decided to invest the bulk of its last-remaining assets in long-term loans. In addition, it submits that the three loan agreements entered into by the applicant’s subsidiary, G1, through its subsidiary Bounty, were concluded a few days before the date of the contested decision.

85      The applicant maintains that the adverse effects of enforcement of the contested decision are not the result of a lack of diligence on its part.

86      In that regard, it is settled case-law that urgency in ordering an interim measure must result from the effects produced by the disputed measure and not from a lack of diligence on the part of the applicant. The latter must, if it is not itself to bear the loss, as part of the risks of the undertaking, show reasonable diligence in limiting the extent of the loss (see the orders in Case T‑350/00 R Free Trade Foods v Commission [2001] ECR II‑493, paragraph 59 and the case-law cited, and in Nycomed Danmark v EMEA, paragraph 82 et seq.).

87      Although the chronology of events, particularly of the investments made at a time close to the adoption of the contested decision, is unfortunate, there is, however, nothing in the documents before the Court which reveals proof of misappropriation with a view to deliberately tying up assets in order to avoid payment of the fine. In that regard, the applicant maintains that the loan agreements had been concluded before notification of the contested decision and before the amount of the fine was known. Furthermore, as the applicant’s business is capital-intensive investment, it cannot be required to stop making investments and cannot be criticised for carrying on its business during the administrative procedure instigated by the Commission.

88      Second, the Commission complains that the applicant failed to act with due diligence when it omitted to make provision for EUR 19.6 million. In the applicant’s submission, provision of such an amount would have exceeded the limit of 10% of its turnover in the year 2008 (EUR 2.1 million).

89      The applicant cannot be criticised for having limited that provision to an amount representing a maximum of 10% of its turnover for the year 2008. Although the Commission argues that the applicant’s financial notes for 2008 show that it was aware (i) that NCHZ’s lawyers had recognised that the latter’s fine could amount to approximately EUR 10 million, (ii) that NCHZ was making provision on that basis and (iii) that Garantovaná could be held liable for that penalty, the fact remains that, as the applicant states, that calculation was not based on its turnover in 2008. Without its being necessary to adjudicate on the merits of the approach, a matter which falls to be examined by the Court hearing the main action, it is not in dispute that the applicant took the 2008 figure as its basis when estimating the amount of the fine. Therefore, even though those notes could bring to the applicant’s attention the possibility that a calculation different from its own might be made, it is not surprising that the applicant did not take that into account and make provision for an amount in excess of 10% of its 2008 turnover.

90      The Commission also brings to the attention of the President of the Court an article from the press reporting a statement made in April 2009 by the Chairman of the applicant’s board, which mentions the possibility of the fine being up to EUR 23 million. However, having regard to other articles from the press submitted by the applicant, it is apparent that there is a degree of ambiguity as regards both the probative value of the matters put forward by the Commission and the real meaning of the statements reported.

91      Consequently, as the case now stands, it cannot be concluded that the applicant failed to act diligently. The adverse effects of enforcing the contested decision thus result not from a lack of diligence on the part of the applicant but from the effects produced by the decision itself.

92      In view of the foregoing, the President of the Court concludes that the applicant has established to the required legal standard that it is objectively impossible for it to provide, in its current financial situation, a bank guarantee in order to avoid immediate payment of the fine imposed on it by the Commission in the contested decision. In accordance with settled case-law, referred to above, that impossibility amounts, in this case, to an exceptional circumstance which justifies dispensing the applicant from the obligation to provide such a guarantee. Accordingly, it must be concluded that this case is distinguished by particular features which establish urgency.

 The balance of interests

–       Arguments of the parties

93      As regards the balance of the interests at stake, the applicant asserts that, as well as its own interest in avoiding insolvency in the event that the fine is recovered, other interests are in play. In the first place, it mentions those of its shareholders, of which there are around 30 000, principally individuals, who would lose the total value of their holding were the applicant to become insolvent. According to the applicant, 1 610 shareholders, who consider themselves to be prejudiced by the contested decision, have expressed their concern by sending a petition to the Commission and to the Slovak authorities.

94      In the second place, the applicant states that, if it were to be obliged to pay the fine at this stage, it would be forced into insolvency and the Commission’s ability to recover the fine would thereby be seriously impaired. According to the financial expert’s report, the Commission, as a creditor, could recover only a small percentage of the full amount and only after lengthy proceedings before the Slovak courts. Conversely, if this application for suspension of operation were successful, the applicant should be in a position to pay the fine (if the latter is upheld on conclusion of the main action), since it is likely that the long-term loans will have matured at that time.

95      Last, the applicant acknowledges the importance of the interest of the European Union in the effective enforcement of the competition rules and, in particular, in the preservation of the deterrent effect of fines imposed by the Commission. However, in the applicant’s submission, the deterrent effect of the penalty would still be achieved if the decision were suspended. First, the contested decision was given wide publicity, which will not be mitigated if the suspension applied for is granted. Second, this application does not seek annulment of the fine but suspension of payment. If the fine were upheld on conclusion of the main action, the deterrent effect would still be achieved.

96      First, the Commission contends that, with regard to the protection of the effectiveness of the competition rules and the need to impose deterrent fines, that objective may be attained only by a fine, inasmuch as the contested decision concluded that the applicant had participated in restrictions of competition classified as among the most harmful. Furthermore, the mere publicity surrounding the case is not adequate to ensure the deterrent effect of a fine, which the Commission is entitled to impose with that end in view.

97      Second, with regard to the financial interests of the European Union, the Commission submits that, under Article 87 of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1, the ‘rules implementing the financial regulation’), the Commission may waive recovery of an established debt, such as the fine imposed in this case, only if certain restricted conditions are met. It is entirely of the view that those conditions are not met in this instance. Furthermore, dispensation from the obligation to provide a bank guarantee amounts to granting the applicant a credit without any guarantee, a risk which should normally be borne by the banks.

98      Third, the Commission disputes the argument that its ability to recover the fine will be weakened if the application for interim measures is rejected. First of all, the fine will not be enforced now, only a bank guarantee is requested. Second, the Commission stresses that it is particularly necessary to obtain a bank guarantee because of the imminent risk that the applicant will sell its last-remaining assets.

99      Fourth, the Commission asserts that public interest in the enforcement of the fine prevails over the interests of the applicant’s shareholders, damage to whom has not, in this instance, been proved. Moreover, in theory, it was those same shareholders who would have profited from the cartel.

100    Finally, the Commission submits that the judge hearing an application for interim measures may take into account the attitude of the parties in the context of the balance of interests. It contends, in that regard, that the applicant has not been particularly diligent with respect to its financial problems.

–       Findings of the President of the Court

101    According to settled case-law, the balance of interests requires the judge hearing the application to determine whether or not the interest of the applicant in obtaining the interim measures sought outweighs the interest in the immediate application of the contested act by examining, more specifically, whether the possible annulment of the act by the Court giving judgment in the main action would allow the situation brought about by its immediate implementation to be reversed and, conversely, whether suspension of operation of that act would be liable to prevent its full effect in the event of the main application being dismissed (see, to that effect, orders in Joined Cases 76/89 R, 77/89 R and 91/89 R Radio Telefis Eireann and Others v Commission [1989] ECR 1141, paragraph 15; and in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187 v Commission [2003] ECR I‑6887, paragraph 142; order of the President of 31 August 2010 in Case T‑299/10 R Babcock Noell v European joint undertaking for ITER and the Development of Fusion Energy, not published in the ECR, paragraph 64).

102    As a preliminary point, the applicant has been found, first, to have advanced a plea which appears, at first sight, to be sufficiently pertinent and serious to establish a prima facie case and, second, to have established to the required legal standard that it is objectively impossible for it to provide, in its current financial situation, a bank guarantee in order to avoid immediate payment of the fine imposed on it by the Commission in the contested decision. It thus follows from the second finding that, if the interim measures were not adopted, the applicant would be obliged to pay the fine, as the Commission is entitled to request enforcement of the contested decision.

103    It is therefore necessary to weigh, on the one hand, the applicant’s interest in avoiding – in the event that it is unable to arrange a bank guarantee – immediate recovery of the fine against, on the other hand, the European Union’s financial interest in being able to recover that sum and, more generally, against the public interest in preserving the effectiveness of the competition rules and the deterrent effect of fines imposed by the Commission (see, to that effect, the orders in Case 56/89 R Publishers Association v Commission [1989] ECR 1693, paragraph 35; in Case T‑245/03 R FNSEA and Others v Commission [2004] ECR II‑271, paragraph 119; and in Romana Tabacchi v Commission, paragraph 135).

104    In the first place, as regards its interest in avoiding immediate collection of the fine, the applicant has stressed the limited amount of its current assets. The obligation to pay the fine immediately would necessarily entail, as a consequence, the sale of the shares it holds in its subsidiary G1, which constitute its long-term investments. The applicant has provided the President of the Court with information concerning that possibility. It is apparent from those documents that Garantovaná could reasonably expect to recover between 29% and 42% of their book value, which would produce a total amount which, even if it were increased by other immediately available assets, would not cover the amount of the fine. In the light of the documents produced by the applicant, that default in payment would be likely to bring about the commencement of insolvency proceedings.

105    Although it is true that the commencement of insolvency proceedings does not necessarily constitute serious and irreparable damage (order in HFB and Others v Commission, paragraphs 56 and 57), the fact remains that, in the circumstances of the present case, enforcement of the contested decision would bring the applicant’s economic activity to an end. The applicant, as it carries out solely capital-intensive investment, is different from an undertaking engaged in manufacturing or the provision of services, whose activities may in some circumstances continue during insolvency proceedings.

106    Furthermore, although in certain situations the existence of cash-flow problems does not necessarily result in the liquidation of the undertaking because it may be possible to use other solutions which are permitted during insolvency proceedings (see, to that effect, the order in Case T‑9/99 R HFB v Commission [1999] ECR II‑2429, paragraph 34), in the present case, account must be taken not only of the shortage of cash funds but also of the difficulties encountered by the applicant when it applied for a bank guarantee. Those difficulties tend to establish, with a sufficient degree of probability, that there is no solution other than liquidation. At this stage and in view of the material in the file, the applicant’s creditors cannot be expected to adopt a more accommodating stance, as is suggested by the Commission’s statements following the liquidation of NCHZ.

107    In the second place, as regards the European Union’s financial interests, it is to be observed, first, that although the Commission contends that the conditions allowing it to waive recovery of an established debt, laid down by Article 87 of the rules implementing the Financial Regulation, are not met in this case, it provides no explanation in that regard.

108    Second, material relating to the difficulties the Commission would have in recovering its debt should the applicant go into liquidation has been put forward by the applicant and has not been specifically challenged by the Commission. In the event of the applicant’s insolvency, the unchallenged material in the file shows that the Commission’s recovery of the fine could take years and that, as the Commission would enjoy no priority as a creditor, the result of its action would be uncertain (see, to that effect, the order in Romana Tabacchi v Commission, paragraph 136). Similarly, if the shares held by the applicant in its subsidiary G1 were sold, certain material in the file shows that account must be taken not only of the time which such a transaction would require (estimated by the applicant to be a minimum of six months) but also of the fact that such a sale – which would take place against a background of urgency and necessity – could result in a total amount which would not cover all of the fine.

109    The long-term loans, however, will mature on 11 July 2012 and should, in the applicant’s submission, generate a gain of EUR 6.3 million which, added to the sum originally loaned, should bring the total amount of cash funds available at that date to EUR 36.5 million. In those circumstances, it is apparent that the Commission’s financial interests would not necessarily be best served by it immediately initiating enforcement proceedings rather than waiting for those loans to reach maturity.

110    In the third place, as regards the public interest attaching in particular to the preservation of the effectiveness of the competition rules and the deterrent effect of fines imposed by the Commission, first, the Commission merely recalls that the infringement committed by the applicant’s subsidiary is among the most harmful restrictions of competition and fails to show in what respect the grant of suspension would, in this instance, jeopardise the public interest. If the Commission’s reasoning were to be followed, an application for suspension of operation by an undertaking punished for an infringement of that type would automatically fail and the legal remedy represented by interlocutory proceedings would thus, in that situation, lose its whole raison d’être.

111    Second, as the Commission points out in its observations, considerable weight has always been given to the public interest in recovery of the fine. Indeed, if the Commission could not collect the fine imposed, both the effectiveness of the competition rules and the deterrent effect of the penalty would be impaired. In this instance, it has been shown that, if the fine were enforced now, there are serious doubts as to the Commission’s ability to recover the amount owed to it. It thus appears that the public interest would be as well or even better served if the long-term loans were allowed to reach maturity.

112    In view of the foregoing, the President of the Court considers the balance of interests to weigh in the applicant’s favour.

113    However, the Commission has drawn the attention of the President of the Court to the risks of simply suspending the contested decision without more. Consideration should thus be given to whether those risks are genuine in order to determine whether one or more conditions should be attached to the suspension so as to prevent them.

114    In its observations on the application for interim measures, the Commission submits that there is an imminent risk of the applicant divesting itself of the assets held as to 96% by its subsidiary G1, thereby leaving the applicant as an ‘empty shell’ and making recovery of the fine impossible. In response to a question from the President of the Court, the applicant has expressly denied that that is the case, satisfactorily rebutting the indicia on which the Commission based its assessment. However, as the Commission rightly remarks in its observations on the applicant’s replies, in the absence of any guarantee, the risk of the applicant transferring its assets continues to exist. Although Garantovaná denies that such fears are founded, the President of the Court cannot reasonably accept a mere statement of intention as a guarantee. In that regard, note should be taken of the applicant’s proposal to offer the Commission a pledge on the shares which it holds in its subsidiary without further consideration in order to prevent a sale taking place without the Commission’s prior consent and to ensure that the Commission has the status of privileged creditor with a right of preference. In its proposal the applicant also suggests that its subsidiary G1 should be party to that agreement so that it should not transfer its assets without the Commission’s prior consent. That proposal was rejected on the ground that the Commission, as a public institution, does not have a mandate to function as a commercial bank. In that regard, it points out that it does not have the necessary expertise to assess the value of the shares or to manage them and cannot accept such a proposal as a guarantee, as it concerns shares of uncertain value. By the same token, it cannot accept guarantees other than provisional payment of the fine or a bank guarantee.

115    Having regard to that situation, the President of the Court considers there to be a real risk of the contested decision being prevented from having full effect if the suspension requested by the applicant were ordered. A number of conditions should therefore be attached to that suspension.

116    In the first place, the applicant should be ordered not to divest itself of the assets in question without the Commission’s prior authorisation. To ensure that that measure is fully effective, provision should be made for that prohibition to apply also to the companies G1 and Bounty which are, directly or indirectly, wholly owned and controlled by the applicant.

117    In second place, in order to limit as much as possible the financial risks for the European Union without, however, jeopardising the effectiveness of the present order, the applicant should be ordered to pay immediately the amount which it claims it has set aside as provision.

118    In third and final place, to allow these measures to be monitored, the Commission should be supplied with adequate information and, accordingly, the applicant should be ordered to keep the Commission informed on a regular basis of the development of its activities and assets and to inform the Commission in good time on each occasion when circumstances arise which might have consequences for its future ability to pay the fine imposed on it in the contested decision.

119    The President of the Court concludes, first, that, without the interim measures provided for by this order, any judgment given in the main action to the applicant’s advantage would be prevented from having full effect and, second, that these measures are not an obstacle to such a judgment having full effect should the main action be dismissed and that they allow the applicant’s interests to be preserved should the Court adjudicating on the substance uphold its application.

120    In view of the foregoing, the applicant must be granted the dispensation it has requested until the earlier of the following two events occurs:

–        maturing of the long-term loans on 11 July 2012,

–        delivery of the judgment bringing the main proceedings to an end,

provided that:

–        upon notification of this order, the applicant undertakes not to transfer, either directly or indirectly, its shares in its subsidiary G1 without the Commission’s prior authorisation;

–        within a period of one month from notification of this order, the applicant provides to the President of the Court a written agreement pursuant to which neither its subsidiary G1 nor G1’s subsidiary, Bounty, may transfer their assets to a third party without the Commission’s prior authorisation;

–        upon notification of this order, the applicant pays to the Commission the sum of EUR 2.1 million, representing the provision which, in its reply to the President of the Court of 23 November 2009, it claims it has made;

–        within a period of one month from notification of this order, then every three months until delivery of judgment in the main action, and upon every event which might have an effect on its future ability to pay the fine imposed, the applicant provides the Commission with a written report on the development of its assets, and more specifically its long-term investments.

121    It should be observed, furthermore, that, under Article 108 of the Rules of Procedure, the judge hearing an application for interim measures may at any time vary or cancel an interim order on account of a change in circumstances (order in Case T-198/01 R Technische Glaswerke Ilmenau v Commission [2002] ECR II‑2153, paragraph 123). It follows from that case that, by a ‘change in circumstances’, what are especially envisaged are factual circumstances capable of altering the assessment made in each particular case of the criterion of urgency. According to the Court of Justice, that possibility reflects the fundamentally precarious nature in European Union law of measures granted in interim relief proceedings (orders in Case C‑440/01 P(R) Commission v Artegodan [2002] ECR I-1489, paragraph 62, and in FNSEA and Others v Commission, paragraph 129).

122    It will therefore be for the parties to contact the President of the Court if a change in circumstances such as to alter the assessment made in the present decision should arise.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for leave to intervene, lodged by Messrs Jaroslav Červenka, Milan Hošek, Roman Murar, Adrián Vološin, Milan Kasanický and Peter Fratič, is dismissed.

2.      The obligation on the applicant, 1. garantovaná a.s., to provide the European Commission with a bank guarantee in order to avoid immediate recovery of the fine imposed on it by Article 2 of Commission Decision C(2009) 5791 final of 22 July 2009, relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries) is suspended until the earlier of the following two events occurs:

–        maturing of the long-term loans on 11 July 2012,

–        delivery of the judgment bringing the main proceedings to an end,

provided that:

–        from notification of this order, the applicant does not transfer, either directly or indirectly, its shares in its subsidiary G1 Investments Ltd without the Commission’s prior authorisation;

–        within a period of one month from notification of this order, the applicant provides to the President of the General Court a written agreement pursuant to which neither its subsidiary G1 Investments nor G1 Investments’ subsidiary, Bounty Commodities Ltd, may transfer their assets to a third party without the Commission’s prior authorisation;

–        upon notification of this order, the applicant pays to the Commission the sum of EUR 2.1 million;

–        within a period of one month from notification of this order, then every three months until delivery of judgment in the main action, and upon every event which might have an effect on its future ability to pay the fine imposed, the applicant provides the Commission with a written report on the development of its assets, and more specifically its long-term investments.

3.      Costs are reserved.

Luxembourg, 2 March 2011.

E. Coulon       M. Jaeger

Registrar       President

* Language of the case: English.