Case T-393/10 R

Westfälische Drahtindustrie and Others

v

European Commission

(Applications for interim measures – Competition – Commission decision imposing a fine – Bank guarantee – Application for interim measures)

Summary of the Order

1.      Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Serious and irreparable damage – Cumulative nature – Balancing of all the interests involved

(Arts 256(1) TFEU, 278 TFEU and 279 TFEU; Rules of Procedure of the General Court, Art. 104(2))

2.      Applications for interim measures – Suspension of operation of a measure – Suspension of the obligation to provide a bank guarantee as a condition for not proceeding to immediate recovery of a fine – Conditions for granting

(Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2))

3.      Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Prima facie case – Prima facie examination of the pleas in support of the main action

(Art. 278 TFEU; Rules of Procedure of the General Court, Art. 104(2))

4.      Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Balancing of all the interests involved

(Art. 278 TFEU)

1.      Pursuant to Article 278 TFEU and Article 279 TFEU in conjunction with Article 256(1) TFEU, the Court hearing an application for interim relief may, if it considers it necessary in the circumstances, order that application of a contested act be suspended or prescribe any necessary interim measures.

In accordance with Article 104(2) of the Rules of Procedure of the General Court, an application for the adoption of interim measures shall 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. It is thus open to the judge hearing an application to order the suspension of the 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 damage to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those requirements are cumulative, so that the application for interim measures must be dismissed if one of them is not met. In appropriate cases, the Court also weighs up the interests at stake.

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 for assessing the need for provisional measures.

(see paras 11-13)

2.      An application for an exemption from the obligation to provide a bank guarantee as a condition for the fine not being recovered immediately will be granted only in exceptional circumstances. The possibility of requiring the provision of a financial guarantee is expressly provided for with regard to applications for interim relief by the Rules of Procedure of the Court of Justice and of the General Court and is a general and reasonable way for the Commission to act.

The existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking dispensation from the obligation to provide the requisite bank guarantee adduces evidence that it is objectively impossible for it to provide such guarantee or that such provision would imperil its existence.

(see paras 22-23)

3.      The condition that there be a prima facie case is fulfilled where at least one of the applicant’s pleas in support of the main action appears at first sight to be relevant and not without foundation, or where the arguments which it makes cannot be discounted without a detailed examination, which is reserved for the Court making the decision on the merits.

A plea is prima facie well founded if it has been stated sufficiently precisely to enable the Commission to lodge a detailed pleading of several pages and enables the Court hearing the application for interim measures to determine that it does not appear at first sight to be totally without foundation and cannot in any event be dismissed without a detailed examination, which is reserved for the Court making the decision on the merits.

(see paras 54-55, 58, 61)

4.      In the examination of the application for interim measures, the risks of each of the possible solutions must be balanced against each other. In practice, that means in particular that the Court must examine whether the interest of the applicant in suspension of operation of the contested decision weighs more heavily than the interest in immediate implementation of that decision.

(see para. 62)