ORDER OF THE COURT OF FIRST INSTANCE (Fifth Chamber)
31 May 2006 (*)
(Competition – Agreements, decisions and concerted practices – Proceedings for the liquidation of the applicant – Legal interest in bringing proceedings – No need to adjudicate)
In Case T‑123/02,
Carrs Paper Ltd, established in Shirley (United Kingdom), represented by J. Grayston and A. Bywater, Solicitors,
applicant,
v
Commission of the European Communities, represented by W. Mölls and A. Whelan, acting as Agents, and by M. van der Woude and V. Landes, lawyers, with an address for service in Luxembourg,
defendant,
APPLICATION for annulment, or, in the alternative, for a reduction of the fine imposed on the applicant by Commission Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 – Carbonless paper) (OJ 2004 L 115, p. 1),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Fifth Chamber),
composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges,
Registrar: E. Coulon,
makes the following
Order
1 By Decision 2004/337/EC of 20 December 2001 relating to a proceeding pursuant to Article 81 EC and Article 53 of the EEA Agreement (Case COMP/E-1/36.212 – Carbonless paper) (OJ 2004 L 115, p. 1), the Commission found that 11 undertakings, including Carrs Paper Ltd, had taken part in a cartel in the carbonless paper sector. The applicant was ordered to pay a fine of EUR 1.57 million.
2 By application lodged at the Registry of the Court of First Instance on 16 April 2002, the applicant brought the present action.
3 Following the applicant’s letters of 3 May and 16 September 2005, the hearing in this case, fixed initially for 14 June 2005, was first postponed until 11 October 2005 and then until 24 January 2006.
4 However, in view of the applicant’s letter of 20 October 2005 and the order annexed to it, made by the High Court of Justice of England and Wales, Chancery Division (District of Birmingham) on 17 October 2005 ordering that Carrs Paper be wound up under the provisions of the Insolvency Act 1986, on 7 November 2005 the Court of First Instance decided that the last mentioned hearing would not take place.
5 In its letter of 9 November 2005, the defendant expressed doubts as to the immediate dissolution of the applicant ordered by the High Court, and informed the Court of First Instance of its intention to verify the position in that regard.
6 The applicant did not lodge any observations on the letter within the period allowed by the Court, which expired on 12 December 2005.
7 By letter of 12 December 2005, the Commission provided the Court with certain additional information to that which it had already sent in its letter of 9 November 2005, cited above.
8 In those circumstances, having regard in particular to the applicant’s failure to make any observations on the Commission’s letter of 9 November 2005, on 31 January 2006 the Court informed the parties of its intention to adopt an order under Article 113 of its Rules of Procedure that there is no need to adjudicate, and invited them to submit their observations in that regard.
9 By letter of 5 February 2006, the lawyers for the applicant pointed out that, since the applicant was the subject of insolvency proceedings in the United Kingdom, they were unable to receive instructions. As a result, they were unable to make observations on the questions put by the Court.
10 By letter of 15 February 2006, the defendant sent its observations to the Court on the question as to whether the proceedings had become devoid of purpose.
11 The defendant considers that the circumstances of the present case constitute de facto a discontinuance of proceedings within the meaning of Article 87(5) of the Rules of Procedure, since the applicant does not seem to be in a position to conduct the proceedings or to be represented before the Court.
12 The Commission contends that, should the Court not consider the circumstances of the present case to be tantamount to a discontinuance of proceedings, then in any event the case has become devoid of purpose. In its view, the applicant will indeed soon cease to exist and the Insolvency Service, which alone is competent to act on the applicant’s behalf in the current action, has no interest in pursuing the proceedings. The Commission points out, in this respect, that it seems very unlikely that the creditors would finance the conduct of the present proceedings, since there would be no gain on their part, no additional amount being able to be recovered from the Commission. Recovery of the fine imposed has never in fact been sought. Furthermore, the applicant has neither made a provisional payment nor provided a guarantee.
13 Whichever solution is adopted by the Court, the Commission considers that since it has consistently made every effort to exercise due care and is not responsible for the change of situation that has arisen, the applicant should be ordered to pay the costs. In the alternative, the defendant considers that in no circumstances should it be required to bear the costs incurred by the applicant.
14 The Court notes that the applicant was put into liquidation without the fine being recovered. The information gained by the Commission from the Insolvency Service has not made clear any interest on the latter’s part in pursuing the proceedings. In a letter of 14 February 2006, sent to the Commission’s legal representative in the insolvency proceedings, the Insolvency Service pointed out that the funds required to finance the litigation were not available (‘[t]he funding of the litigation would be a further problem in that there are no monies in the estate’). Furthermore, although the applicant’s lawyers claim that they are no longer in a position to receive instructions from their client, the Court sent them the letter of 31 January 2006 and the other letters mentioned above, since the Court was not informed of the appointment of another lawyer as the applicant’s representative (see, to that effect, the order of 23 March 2004 in Case T-216/99 Ter Huurne’s Handelsmaatschappij v Commission, not published in the ECR, paragraph 18).
15 Accordingly, having heard the parties, the Court declares of its own motion, under Article 113 of the Rules of Procedure, that the action has become devoid of purpose and that there is no need to adjudicate on it (see, to that effect, the order in Ter Huurne’s Handelsmaatschappij v Commission, paragraph 20, and the case-law cited therein).
Costs
16 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
17 In the present case, the applicant must be ordered to bear its own costs together with those of the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Fifth Chamber)
hereby orders:
1. There is no need to adjudicate on the present action.
2. The applicant is to pay the costs.
Luxembourg, 31 May 2006.