ORDER OF THE PRESIDENT OF THE GENERAL COURT
12 May 2010 (*)
(Application for interim measures – Competition – Commission decision imposing a fine – Bank guarantee – Application for suspension of operation of the decision – Financial loss – Absence of exceptional circumstances – No urgency)
In Case T‑30/10 R,
Reagens SpA, established in San Giorgio di Piano (Italy), represented by B. O’Connor, Solicitor, and L. Toffoletti, D. Gullo and E. De Giorgi, lawyers,
applicant,
v
European Commission, represented by J. Bourke and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION for suspension of operation of the Commission decision of 11 November 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/38.589 – heat stabilisers),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 The applicant, Reagens SpA, is a company established in Italy engaged in the production of tin stabilisers for polyvinyl chloride (PVC).
2 On 11 November 2009, the Commission adopted a decision relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (COMP/38.589 – heat stabilisers) (‘the contested decision’), in which it imposed a fine of EUR 10 791 000 upon the applicant for its participation in a tin stabiliser cartel.
3 The Commission notified the applicant of the contested decision by letter of 18 November 2009. In the letter, it also informed the applicant that it had a period of three months from the notification to pay the fine. It further explained that, if the applicant were to decide to bring an action against the decision before this Court, it would provisionally collect the fine or request the applicant to provide a bank guarantee covering the amount of the principal debt and the interest payable.
4 During the procedure preceding the adoption of the contested decision, the applicant submitted a request – rejected by the Commission – on the basis of point 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 on Fines’) in which it stated that it would be unable to pay the fine and that the fine, if imposed, would trigger the loss of value of all its assets.
5 On 8 January 2010 the applicant lodged with the Commission’s accounting officer a request, founded on its inability to pay the fine, seeking suspension of payment of the fine. Following receipt of that request, there was an oral exchange between the applicant and the staff of the Commission’s accounting officer concerning the possibility of providing a guarantee.
Procedure and forms of order sought
6 By application lodged at the Registry of the General Court on 29 January 2010, the applicant brought an action seeking, in essence, annulment of the contested decision in so far as it concerns the applicant or, in the alternative, reduction of the amount of the fine imposed.
7 By separate document, lodged at the Court Registry on the same day, the applicant made an application for suspension of operation of the contested decision. It requests the President of the Court, in essence, to:
– suspend the operation of the contested decision and in particular Article 2 thereof under which it is obliged to pay a fine amounting to EUR 10 791 000;
– suspend the payment of the fine and the payment of any interest thereon, under Article 105 of the Rules of Procedure of the General Court, until the conclusion of the proceedings for interim measures;
– inquire, pursuant to Article 65(b) of the Rules of Procedure and to Article 24 of the Statute of the Court of Justice of the European Union, into the evaluation by the Commission of the applicant’s request submitted under point 35 of the Guidelines on Fines and, in particular, into the finding that the payment of the fine would not put its creditworthiness at risk;
– adopt all the necessary measures to remove the effects of the Commission’s illegal conduct and take adequate steps to restore the applicant to its original position, or make any additional order which the President of the Court considers necessary;
– order the Commission to pay the costs.
8 On 10 February 2010 the President of the Court ordered 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.
9 In its written observations on the application for interim measures, lodged at the Court Registry on 4 March 2010, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
10 Under Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, 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 General Court be suspended or prescribe any necessary interim measures.
11 Article 104(2) of the Rules of Procedure 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, the judge hearing the application 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 the 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 an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
12 In addition, in the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be 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, not published in the ECR, paragraph 25).
13 Having regard to the documents in the case, the President of the Court considers that he has all the information needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties.
Arguments of the parties
Prima facie case
14 First, the applicant asserts that its participation in the infringement ceased in January 1996. The evidence put forward by the Commission for 1999 and 2000 does not show that it continued to participate in the infringement. In the absence of such evidence, the 10-year limitation period laid down by Article 25 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) applies in relation to the applicant. Nor does the evidence relating to 1998 show that it committed an infringement, so that the five-year limitation period laid down in Article 25 of Regulation No 1/2003 applies as the first formal act of the heat stabilisers investigation was in January 2003.
15 Second, the applicant submits that the Commission made a number of errors in applying its Guidelines on Fines. First of all, the Commission erred in the assessment of the gravity of the tin stabilisers infringement. Next, it infringed the principle of equal treatment by applying for the additional amount included in the basic amount of the fine a single percentage for all undertakings, without taking account of variations in their participation in implementing the infringement. Furthermore, the Commission misapplied the Guidelines on Fines by not accepting any mitigating factor in relation to the applicant. Finally, it did not apply properly in this instance point 35 of the Guidelines on Fines, relating to undertakings’ ability to pay.
16 The Commission contests all the applicant’s arguments and concludes that there is no prima facie case.
Urgency and balance of interests
17 The applicant states, by way of a preliminary comment, that it does not have sufficient cash to pay the fine imposed. It sets out a number of arguments in this regard, which can be summarised in five points.
18 First, the applicant describes the consequences that payment of the fine would have for it. Payment would put it into severe debt rendering ongoing production difficult, if not impossible. That would trigger a withdrawal of funding from its main bank providing long-term credit because of breach of the covenant relating to its debt to earnings ratio. That withdrawal would in turn trigger the withdrawal of all its funding, and therefore the cessation of its operations. According to the applicant, its assets would then become entirely worthless as there is no market for their sale owing to the overcapacity in the sector. Should the Court uphold the applicant’s action for annulment, it would not be in a position to recommence production as it would have been out of the market for too long and its assets would consequently have deteriorated. It adds that the decision by the Commission to impose a fine of only EUR 1 000 000 instead of EUR 21 644 578 on its principal competitor, because of the latter’s inability to pay the fine, confers a large competitive advantage on that undertaking.
19 Second, the applicant states that its disappearance from the market would have a severe social impact because of (i) the resulting loss of jobs and (ii) the unemployment affecting the regions where its production sites are located.
20 Third, it states that the Commission’s evaluation of its financial viability carried out in the context of its request under point 35 of the Guidelines on Fines did not take the impact of the fine into account. The applicant gives two reasons to explain this omission: (i) the decision refusing the request was most likely taken before the Commission had definitively decided on the level of the fine; and (ii) the applicant did not, when submitting its request under point 35 of the Guidelines on Fines, include the fine in its projected accounts and cash-flow needs.
21 Fourth, the applicant adds that, whilst it could theoretically pay the fine given the short-term credit facilities that it has with its banks, that solution would cause it to fall in default for the following three reasons: (i) its short-term debt would far exceed the total amount of the credit facilities currently offered to it; (ii) the sudden increase in debt would most likely trigger a demand by its banks for repayment of the short-term credit line itself; and (iii) its long-term credit arrangements agreed with its main bank providing long-term credit would be withdrawn.
22 Fifth, the applicant indicates that its main bank providing short-term credit is not prepared to lend it the money needed to pay the fine. This bank informed the applicant that it would be prepared to lend it EUR 6 000 000 on condition that the shareholders deposited EUR 3 300 000. However, the shareholders decided against this proposal on the ground that it does not solve the problem that the applicant must face.
23 Accordingly, the absence of short-term credit makes ongoing production impossible and the absence of long-term credit is tantamount to the applicant’s liquidation. The reality of this danger is apparent from the assessment of the applicant’s current financial position by the audit board in Italy which called for an emergency meeting to be held in this regard.
24 The applicant concludes that the interim measures sought are urgent as they must produce their effects before a decision is reached in the main action in order to avoid serious and irreparable harm to the applicant.
25 The Commission, in its observations, emphasises that the applicant did not make any attempt to obtain a financial guarantee before lodging its application for interim measures, although it was expressly offered that possibility in the letter notifying it of the contested decision. Furthermore, in order to fulfil the urgency criteria, the applicant needs to show that it was urgent to dispense it from the obligation to provide a bank guarantee. However, since the applicant envisaged only the payment of a fine, it has not shown that it is impossible for it to obtain such a guarantee or that provision of a guarantee will threaten its very existence.
26 It is true that on 11 February 2010 the applicant contacted the Commission’s accounting officer seeking, for the first time, the possibility of providing a bank guarantee. The accounting officer confirmed that possibility the following day. Nevertheless, the applicant did not act thereon, apart from an email stating that it had not been able to arrange to provide a financial guarantee. This statement was not however backed up by any documentary evidence.
27 The Commission adds that the applicant has sizeable equity, very low utilisation of the short-term borrowing facility available to it and good solvency. It is far from clear that the short-term facilities which the applicant has are needed entirely to fund its current business activities. Furthermore, the applicant merely contacted two banks, although it has regular financial relations with other financial partners. The contacts with the two banks were, moreover, with respect only to full payment of the fine and not to the provision of a bank guarantee. In addition, if the arrangement proposed by the main bank that provides the applicant with short-term credit had been accepted, more than 80% of the amount of the fine would have been covered, and the remainder could then have been supported by the cash generated by the business and by the existing short-term facilities. The position of the main bank that provides the applicant with long-term credit must also be qualified, inasmuch as that bank did not threaten to terminate the contract between it and the applicant but reserved the option to exercise that right of termination. Finally, the Commission observes that a mere unilateral refusal of assistance on the part of the applicant’s shareholders is not enough to exclude consideration of their financial situation and that the applicant has not shown appropriate diligence with respect to payment of the fine, in particular in that it did not take steps to make a provision for the purpose of ensuring payment.
28 As regards the balance of the interests involved, the applicant asserts that not only would grant of the interim relief sought not cause damage to either the Commission or the public interest but, on the contrary, it would preserve the public interest inasmuch as proper conduct of the procedures carried out by the Commission would be ensured, employment would be maintained and the applicant itself could continue contributing to the general social welfare. If relief were refused, on the other hand, the applicant would run the great risk of being driven out of business.
29 The Commission submits that, since the applicant participated for more than seven years in a category of infringement regarded as among the most serious, the safeguarding of the effectiveness of the competition rules and the need to ensure the deterrent effect of fines warrant that the application for suspension of the fine be rejected. So far as concerns the European Union’s financial interests, the Commission considers that the conditions under which recovery of an amount receivable, such as the fine imposed on the applicant, may be waived are not met in the present case. As regards the interests of the applicant’s employees and the importance of the preservation of the applicant’s business, the Commission submits that it has shown that there is no threat to the applicant’s survival.
Findings of the President of the Court
30 In the circumstances of the present case, it should first be examined whether the condition relating to urgency is satisfied.
31 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 and T‑207/01 Government ofGibraltar 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 (order in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67, and Neue Erba Lautex v Commission, paragraph 83).
32 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 (Neue Erba Lautex v Commission, paragraph 84).
33 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.
34 In the present case, it is not disputed that, in its letter of 18 November 2009 notifying the applicant of the contested decision, the Commission informed the applicant that it had three months from notification to pay the fine. The Commission also explained that, if the applicant were to decide to bring an action for annulment of the decision before this Court, it would provisionally collect the fine or require a financial guarantee to be provided covering the amount of the principal debt and the interest payable.
35 The Commission therefore clearly indicated two methods for the applicant to comply for the time being with the obligation to pay the fine imposed, should it bring an action challenging the decision.
36 Without there being any need to examine the applicant’s arguments designed to show that it is not possible to adopt the first method indicated, it must be stated, here and now, that the second method was, as at the date on which the application for interim measures was made, completely ignored by the applicant.
37 First of all, in the application for interim measures the applicant mentions only the risks which would follow from payment of the fine and does not contemplate those which would follow from the provision of a bank guarantee. Thus, in its preliminary comments, it states that the objective of its application is to show that the payment of the fine would trigger a ‘collapse’ of its short-term and long-term financing, jeopardising its very existence. When examining the condition relating to urgency, the applicant explains that it bases the application for interim measures on the fact that payment of the fine would put it into severe debt rendering ongoing production difficult, if not impossible. The same position is adopted in the conclusions which it seems to draw from the assessment by the audit board of its position, warning that payment of the fine would bring about its ‘collapse’.
38 Next, the comments prefacing the arguments in the application for interim measures on urgency confirm the lack of action relating to the provision of a bank guarantee. The applicant states there that it does not have sufficient cash to pay the fine imposed upon it and that the requests made by it to its banks have concerned the grant of loans to pay the fine. The letter expressing a partial refusal sent by the main bank that provides short-term credit to the applicant indeed concerns only the possibility of a loan and does not mention other possibilities of finance, such as a bank guarantee.
39 Finally, the applicant explains that its shareholders refused to follow the proposal of the main bank that provides it with short-term credit because the sum offered subject to a condition would not enable the problem that the applicant must face to be solved, a problem which it defines only as being payment of the fine and not the provision of a financial guarantee.
40 It must therefore be found that the applicant simply puts forward arguments designed to demonstrate that it is impossible for it to pay the fine, without thereby asserting that it would be impossible for it to provide the requisite bank guarantee.
41 The applicant has therefore failed to express a view, in the application for interim measures, on the possibility of providing a bank guarantee rather than paying immediately the sum demanded.
42 In this connection, it should be noted 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, in accordance with settled case-law, 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; and in Case C‑7/01 P(R) FEG v Commission [2001] ECR I‑2559, paragraph 44).
43 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 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).
44 Inasmuch as the applicant failed to take the slightest action as regards the provision of a bank guarantee, it cannot be considered that it would be objectively impossible for it to provide the requisite bank guarantee (see, to this effect, the order in Case T‑252/03 R FNICGV v Commission [2004] ECR II‑315, paragraphs 32 and 33), given that an implicit refusal of a bank guarantee cannot be inferred from the refusal by a financial institution of a request for a bank loan.
45 As regards the risk of the applicant’s liquidation, it is settled case-law that, in order to be able to determine whether the damage pleaded is serious and irreparable and therefore justifies, exceptionally, the suspension of the operation of the contested decision, the judge hearing the application for interim measures must have specific and precise particulars, supported by detailed documents, showing the financial situation of the party seeking interim relief and enabling the judge to determine the precise effects which would follow, probably, if the measures sought were not granted (see, to this effect, the orders in Case 378/87 R Top Hit Holzvertrieb v Commission [1988] ECR 161, paragraph 18; in Case T‑86/96 R Arbeitsgemeinschaft Deutscher Luftfahrt-Unternehmen and Hapag-Lloyd v Commission [1998] ECR II‑641, paragraphs 64, 65 and 67; in Case T‑143/99 R Hortiplant v Commission [1999] ECR II‑2451, paragraph 18; in Case T‑163/00 R Carotti v Court of Auditors [2000] ECR‑SC I‑A‑133 and II‑607, paragraph 8; in Case T‑196/01 R Aristoteleio Panepistimio Thessalonikis v Commission [2001] ECR II‑3107, paragraph 32; and in Case T‑420/05 R II Vischim v Commission [2006] ECR II‑4085, paragraphs 83 and 84).
46 However, in the absence of any information relating to the obtaining of a financial guarantee, it is clear that the applicant has not provided such specific and precise particulars, supported by documentary evidence, and therefore has not established a true and global picture of its financial situation, a fact which prevents the President of the Court from examining whether the provision of a bank guarantee would imperil its existence (see, to this effect, FNICGV v Commission, paragraph 34).
47 Nor did the applicant provide in the application for interim measures the slightest information concerning the financial position of its shareholders. It is settled case-law that consideration may be given, for the purposes of assessing a company’s economic circumstances, in particular its financial viability, to the characteristics of the group of which, by virtue of its shareholding structure, it forms part (see the orders in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12, and in Case T‑192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 54 and the case-law cited), even in the face of a unilateral refusal of assistance by its shareholders (see, to this effect, the order of the President of 14 March 2008 in Case T‑440/07 R Huta Buczek v Commission, not published in the ECR, paragraph 65 and the case-law cited).
48 It follows that the application for interim measures does not enable the President of the Court to examine whether the circumstances of the case demonstrate the requisite urgency.
49 It is true that, after making the application for interim measures, the applicant asked the staff of the Commission’s accounting officer for authorisation to provide a bank guarantee and informed the Registrar of the Court of its discussions with the Commission in this regard. Thus, by letter of 11 February 2010 – that is, nearly two weeks after making the application for interim measures – the applicant asked the Commission, for the first time, for authorisation to provide a bank guarantee. In two emails, of 12 and 23 February 2010, it informed the Commission’s accounting officer’s staff of the results of its attempts to obtain a bank guarantee. In a letter of 3 March 2010 to the Registrar of the Court, it summarised the content of its exchanges with the Commission regarding the difficulties encountered with a view to providing a bank guarantee.
50 In accordance with 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, and the essential elements of fact and law on which it is founded must be set out in the application for interim measures itself (order of the President of 30 April 2010 in Case C-113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
51 It follows that an application for interim measures may not validly be supplemented by a document lodged subsequently by the party seeking interim relief, possibly in response to observations from the other party to the proceedings, in order to remedy any deficiencies in presentation. To allow such ‘retrieval’ would be incompatible not only with the expeditiousness required in interim proceedings, but also and above all with the spirit of Article 109 of the Rules of Procedure, under which, where an application for an interim measure is rejected, the party seeking such relief may not make a further application unless the latter is ‘on the basis of new facts’ (order 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 order of the President of 24 April 2009 in Case T‑52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraph 62). ‘New facts’ are to be understood as including facts which the party seeking interim relief could not have invoked when it lodged its application for such relief and which are relevant to the determination of the case in question (see, to this effect and by analogy, the orders in Case T‑303/04 R II European Dynamics v Commission [2004] ECR II‑4621, paragraph 60, and in Case T‑171/05 R II Nijs v Court of Auditors [2006] ECR-SC I‑A‑2‑11 and II‑A‑2‑47, paragraph 28).
52 In the present case, the question as to whether or not it is possible for the applicant to provide a bank guarantee is undeniably an essential element which had to be set out in the body of the application for interim measures itself. It is not apparent from the material in the file that the applicant could not have taken steps to obtain such a guarantee before the application for interim measures was lodged. The pieces of information concerning that guarantee cannot therefore be classified as new facts for the purposes of the case-law cited in paragraph 51 above.
53 Accordingly, if it was the applicant’s intention, in providing that information after the application for interim measures was lodged, to make up for the absence, in the application, of mention of an essential element, namely its allegedly fruitless efforts to obtain a bank guarantee, that attempt cannot be upheld.
54 For the sake of completeness, the content of the emails of 12 and 23 February 2010 and of the letter of 3 March 2010 should be examined. In the first email, the applicant states that it has not been in a position to arrange a bank guarantee and that the indications from its regular banks are that such a guarantee will not be easy to obtain given its current financial position and the current state of the market in which it operates. In the second email, sent in response to a request from the staff of the Commission’s accounting officer, the applicant merely states that it has not been able to arrange a bank guarantee. In its letter of 3 March 2010, the applicant indicates that it informed the Commission, primarily orally but also in writing, that the conditions for obtaining a bank guarantee are very similar to those required for obtaining a loan to finance payment of the fine. The applicant states that it has had to face the same difficulties in relation to its attempts to pursue each of those options, while adding that it continues to explore different arrangements with its banks but that, so far, no bank has been willing to assist.
55 In this connection, it is sufficient to point out that the party requesting exemption from the obligation to provide a bank guarantee as a condition for the Commission’s not immediately recovering a fine imposed by it has the task of demonstrating the existence of exceptional circumstances, by proving that it is objectively impossible for it to provide the guarantee or that provision of the guarantee would imperil its existence (see paragraphs 42 and 43 above).
56 Both in its two emails of February 2010 and in its letter of March 2010, the applicant merely stated that it had so far not been possible for it to provide a bank guarantee. Such unsupported statements do not serve to prove to the requisite legal standard that it was objectively impossible for it to provide the requisite bank guarantee or that provision of the guarantee would imperil its existence.
57 Moreover, it does not seem inconceivable, in light of the proposal made by the main bank that provides the applicant with short-term credit, that that bank could have envisaged the grant of a bank guarantee for the whole of the sum payable, the obtaining of such a guarantee possibly being dependent upon a contribution from the applicant’s shareholders. In any event, the applicant has not shown that it explored that financing method further.
58 Nor has the applicant adduced any evidence in support of its assertion that provision of a bank guarantee would imperil its existence.
59 Accordingly, the applicant has not proved the existence of exceptional circumstances.
60 It follows from all of the foregoing that the application for interim measures must be dismissed for lack of urgency, and it is not necessary to determine whether the other conditions for granting the interim measures sought, particularly that of the existence of a prima facie case, are satisfied.
61 In those circumstances, there is no need to adopt the measures of inquiry sought by the applicant, those measures being irrelevant in that they relate to the requirement for a prima facie case. In any event, since the evaluation of the applicant’s insolvency was carried out before the contested decision was adopted, the question as to its merits is no longer relevant to the examination of urgency in the present proceedings for interim measures.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 12 May 2010.