ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
28 March 2007 (*)
(Interim measures – Application for suspension of operation – Competition – Payment of a fine – Bank guarantee – Lack of urgency)
In Case T‑384/06 R,
IBP Ltd, established in Tipton, West Midlands (United Kingdom),
International Building Products France SA, established in Sartrouville (France),
represented by M. Clough QC and A. Aldred, Solicitor,
applicants,
v
Commission of the European Communities, represented by F. Castillo de la Torre and V. Bottka, acting as Agents,
defendant,
APPLICATION for suspension of the operation of Article 2(c) and (d) of the Commission Decision of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 – Fittings) and, in particular, for dispensation from the obligation to provide a bank guarantee imposed by the Commission’s letter of 4 October 2006 notifying the applicants of the decision,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background to the dispute
1 On 23 November 2001 IBP Ltd was formed by Oystertec plc for the purpose of acquiring from Delta plc the former IBP holding company and shares in its subsidiaries, including International Building Products France. On 1 June 2005, Oystertec plc changed its name to Advanced Fluid Connections plc. International Building Products France is a wholly-owned subsidiary of IBP Ltd.
2 On 24 March 2006 Advanced Fluid Connections was placed in administrative receivership. On 25 March 2006 the administrators of Advanced Fluid Connection sold all its assets to Celestial Wing Ltd. Those assets included IBP Ltd, International Building Products France and International Building Products GmbH. At that time, Celestial Wing was a wholly-owned subsidiary of a private equity fund called Endless LLP. On 15 September 2006, Celestial Wing changed its name to Pearl Fittings Ltd and, on 18 September 2006, 74% of the ownership of Pearl Fittings was transferred to Hamsard 3008, a subsidiary of Sun Capital Partners Inc., and 26% was transferred to Endless LLP, both of which are equity funds.
3 On 20 September 2006, the Commission adopted a decision relating to a proceeding under Article 81 EC and Article 53 of the European Economic Area (EEA) Agreement (Case COMP/F-l/38.l21 – Fittings) (‘the contested decision’). In Article 1 the Commission found, inter alia, that a number of undertakings had infringed Article 81 EC and Article 53 of the EEA Agreement by participating, during various periods between 31 December 1988 and 1 April 2004, in a series of anti-competitive agreements and concerted practices in the market for copper and copper alloy fittings, which covered the whole EEA territory. The infringement consisted in fixing prices, agreeing on price lists, agreeing on discounts and rebates, agreeing on implementation mechanisms for introducing price increases, allocating national markets, allocating customers and exchanging other commercial information.
4 In Article 1 of the contested decision the Commission found that the applicants had participated in the anti-competitive agreements and concerted practices referred to above, as regards IBP Ltd from 23 November 2001 until 1 April 2004 within the undertaking Advanced Fluid Connections, called Oystertec at the material time, and with respect to International Building Products France from 4 April 1998 until 23 November 2001 within the undertaking Delta Engineering Holdings Ltd, a subsidiary of Delta, and from 23 November 2001 until 1 April 2004 within the undertaking Advanced Fluid Connections.
5 In Article 2 of the contested decision, the Commission imposed fines on the undertakings which had participated in the infringements mentioned in Article 1. IBP Ltd is jointly and severally liable with Advanced Fluid Connections to pay a fine of EUR 11.26 million (Article 2(c) of the contested decision). International Building Products France is jointly and severally liable with IBP Ltd and Advanced Fluid Connections to pay a fine of EUR 5.63 million (Article 2(c) and recital 666 of the contested decision), and jointly and severally liable with Delta and Delta Engineering Holdings to pay a fine of EUR 5.63 million (Article 2(d) of the contested decision).
6 The Commission notified the contested decision to the applicants by letter of 4 October 2006. In that letter, it stated that if the applicants instituted proceedings before the Court of First Instance no enforcement measures would be taken as long as the case was pending before the Court provided, in particular, that a bank guarantee acceptable to the Commission, covering both the principal sum and the interest or increased amount of the debt, was provided by the date of expiry of the period for payment. That expiry date was three months after the notification of the Decision to the applicants, namely 5 January 2007.
7 On 23 November 2006, the bank Burdale Financial Ltd informed IBP Ltd that it was unable to extend the undertaking’s funding line in view of the state of its assets and, in substance, that it was unable to cover the fine imposed by the contested decision by a bank guarantee.
8 By letter of 3 January 2007, the applicants informed the Commission that they were unable either to provide a bank guarantee or to pay the full amount of the fine and requested the Commission to consider agreeing to suspension of the operation of the contested decision until the outcome of the action for annulment against the contested decision instituted on 13 December 2006. By letter of 12 January 2007, the Commission stated that there was no reason to suppose that the applicants were unable to cover the fine by a bank guarantee.
9 By letter of 17 January 2007 sent to the Commission, the chairman of IBP Ltd stated that its shareholders had informed it, on 18 December 2006, that no funds would be made available to pay the fine or to provide a bank guarantee. A letter from a firm of chartered accountants describing IBP Ltd’s financial difficulties and raising the possibility of commencing insolvency proceedings was appended to that letter.
10 On 22 January 2007, the Commission indicated that Delta had paid the fine in respect of which it was jointly and severally liable with International Building Products France and, therefore, the latter no longer had to pay the fine of EUR 5.63 million laid down in Article 2(d) of the contested decision.
Procedure and forms of order sought
11 By application lodged at the Court Registry on 13 December 2006, the applicants brought an action for partial annulment of the contested decision on the basis of the fourth paragraph of Article 230 EC.
12 By separate document lodged at the Registry on 4 January 2007, the applicants made an application for suspension of the operation of Article 2(c) and (d) of the contested decision, on the basis of Article 242 EC and Article 104 et seq. of the Rules of Procedure of the Court of First Instance.
13 By document lodged at the Registry on 22 January 2007, the Commission submitted its observations on the application for interim measures.
14 By letter of 24 January 2007, the applicants sought cancellation of the hearing scheduled for 29 January 2007 and requested the judge hearing the application for interim measures to give a ruling solely on the basis of the parties’ written pleadings. On 25 January 2007 the judge cancelled the hearing scheduled in this case.
15 On 5 February 2007 the applicants lodged their observations on the observations lodged by the Commission on the application for interim measures. On 15 February 2007 the Commission lodged its own observations on the applicants’ observations.
16 By letter of 12 March 2007, the applicants lodged at the Registry the orders issued on 2 March 2007 by Mr Justice Richards of the High Court of Justice placing the applicants into administration and appointing two receivers to administer them during the period for which those orders are in force. The applicants have not specified the circumstances which led to the adoption of those orders.
17 The applicants claim that the President of the Court of First Instance should:
– declare the application for interim measures admissible and well founded;
– suspend the operation of Article 2(c) and (d) of the contested decision and, in particular, dispense the applicants from the obligation to provide a bank guarantee as stipulated in the Commission letter of 4 October 2006 notifying the applicants of the contested decision;
– order the defendant to pay the costs.
18 The Commission contends that the President of the Court of First Instance should:
– dismiss the application for interim measures;
– order the applicants to pay the costs.
Law
19 Under both Articles 242 EC and 243 EC and Article 225(1) EC, the Court of First Instance may, if it considers that the circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.
20 Article 104(2) of the Rules of Procedure provides that an application for interim measures is to 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. Those conditions are cumulative, so that applications for interim measures are to be dismissed if they fail to fulfil one of them. The judge hearing an application for interim measures also, where necessary, carries out a balancing of the interests concerned.
21 Moreover, in the course of the overall examination, the judge hearing an application for interim measures 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 Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court of Justice in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23, and Case C-364/98 P(R) Emesa Sugar v Commission [1998] ECR I-8815, paragraph 44)
22 Having regard to the information in the file and, in particular, to the applicants’ request not to proceed to a hearing, the judge hearing the application for interim measures considers that he has all the information necessary to give a ruling.
23 In this case it is appropriate to examine, first of all, the subject-matter of the application for interim measures and the Commission’s pleas of inadmissibility.
The subject-matter of the application
24 It must be observed that, in their application, the applicants claim that the operation of Article 2(c) and (d) of the contested decision should be suspended as regards the obligation to pay the fine imposed by the Commission until the Court gives a ruling on the action in the main proceedings and, in particular, that they should be dispensed from the obligation to provide a bank guarantee as a condition of avoiding immediate enforcement of the fine.
25 It is common ground that, in its letter of notification of the contested decision of 4 October 2006, the Commission made clear to the applicants that if they brought an action before the Court of First Instance it would not take any measure to recover the fine as long as the case was pending before the Court, in so far as the sum owed produced interest from the date of expiry of the period within which the fine was to be paid and that a bank guarantee acceptable to the Commission, and covering the amount of the principal debt together with interest and any increased amount of the debt, was provided by 5 January 2007 at the latest.
26 Furthermore, in its observations the Commission stated that pending the decision of the judge hearing the application for interim measures it had not yet commenced enforcement of the contested decision.
27 It follows from the foregoing that the subject-matter of the applicants’ application can only be to obtain dispensation from the obligation to provide a bank guarantee as a condition of avoiding immediate enforcement of the fine imposed by the contested decision.
Admissibility of the application for interim measures
Arguments of the parties
28 The Commission submits that the application for interim measures is inadmissible, at least in part.
29 First, a decision of the President of the Court of First Instance ordering the suspension of payment of the fine until delivery of the judgment in the main proceedings would be of no effect having regard to the letter notifying the contested decision. In so far as the possibility of providing a bank guarantee as a condition of avoiding immediate enforcement of the fine is offered to the applicants, it is only necessary to examine the application for a dispensation from the obligation to provide a bank guarantee in an amount equal to the amount of the fines imposed on the applicants, as stipulated by the Commission in its letter.
30 Second, the Commission submits that the application for interim measures is marred by internal contradictions and goes further, at least in part, than the action in the main proceedings. In so far as the applicants’ main argument in their action for annulment relates to the reduction of the fine for the period after 2001, and not its total annulment, the grant of a general suspension of the operation of the contested decision or a general dispensation from the obligation to provide a bank guarantee goes beyond the scope of the action in the main proceedings. Therefore, the application should be dismissed as inadmissible either wholly or at least in part.
31 Third, the applicants’ pleas in law are set out so briefly that it is very difficult for the judge hearing the application for interim measures correctly to determine the importance to be given to each plea in order to ascertain whether granting interim measures is prima facie justified. The fact that the action in the main proceedings is appended as an annex to the originating application does not compensate for that deficiency.
32 For their part, the applicants submit that their application for interim measures is admissible since it was made by separate act and it fulfils the formal conditions of main actions. Furthermore, the action is sufficiently substantiated, so that the Commission has not been prevented from submitting its observations in defence.
Findings of the President
33 First, as regards the Commission’s plea of inadmissibility relating to the applicants’ claim for suspension of the operation of Article 2(c) and (d) of the contested decision, it must be recalled that according to the construction of the application, in paragraph 27 above, its subject-matter can only be to obtain dispensation from the obligation to provide a bank guarantee. There is therefore no need to rule on the first plea of inadmissibility.
34 Second, as regards the connection between the subject-matter of the application for interim measures and the subject-matter of the action in the main proceedings, it is sufficient to state that it is clear from the action in the main proceedings that the applicants have applied for the complete annulment of the fines.
35 Therefore, there is in that regard a direct link between the action in the main proceedings and the application for interim measures.
36 Third, as regards the claim that the pleas in law and arguments submitted by the applicants are of a perfunctory nature, it must be recalled that, under Article 104(2) of the Rules of Procedure, applications ‘shall state … the pleas of fact and law establishing a prima facie case for the interim measures applied for’.
37 In this case, the application for interim measures contains a summary of the pleas of fact and law which, although brief, is clear and precise enough to establish a prima facie case for granting the interim measures, so that the pleas may be regarded as fulfilling the conditions in Article 104(2) of the Rules of Procedure.
38 The Commission’s pleas of inadmissibility must therefore be dismissed.
The merits of the application for interim measures
39 It is appropriate, in the first place, to examine whether the applicants have established that it was urgent to order the interim measures sought.
Arguments of the parties
40 The applicants take the view that the condition relating to urgency is satisfied in this case.
41 They submit, first, that taking account of their financial situation, which is seriously compromised, it is impossible for them to obtain a bank guarantee covering the amount of the fine and immediate enforcement of the contested decision is likely, with a sufficient degree of probability, to lead to their insolvency.
42 As evidence that it is impossible for them to provide the required bank guarantee the applicants refer to the letter of 23 November 2006 from Burdale Financial to IBP Ltd, from which it is apparent that the bank concerned refuses to grant them the bank guarantee sought.
43 A fortiori the applicants do not have the liquid assets or banking facilities allowing them to pay the fine in full, which is shown by their current cash flow forecasts. The banking facilities available to them enable the fine to be paid in full only on condition that they undertake further actions in order to avoid insolvency, which may involve selling properties in Spain and Poland.
44 Furthermore, in their supplementary observations, the applicants submit that the accountants’ report appended to the letter of 17 January 2007 concluded that their inability to complete the property transactions in Poland and Spain would very shortly place IBP Ltd in an untenable financial position.
45 Finally, the applicants’ shareholders have indicated that they will not support them financially in order to pay the fines or provide a bank guarantee. The applicants are not in a position to compel their shareholders to provide them with assistance.
46 Secondly, the applicants claim that the approach taken by the President of the Court of First Instance (order of 21 July 1999 in Case T-191/98 R DSR-Senator Lines v Commission [1999] ECR II-2531) and the President of the Court of Justice (order of 14 December 1999 in Case C-364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I-8733) regarding the possibility of providing a bank guarantee must not be applied to these proceedings.
47 In the first place that approach according to which, in assessing the ability of an undertaking to furnish a bank guarantee, the President is entitled to take account of the group of undertakings to which it belongs and, in particular, of the resources available to that group as a whole, disregards the legal significance of the Commission’s decision to address the contested decision to a limited number of undertakings. On that basis, that approach infringes the general principles of legal certainty and the protection of legitimate expectations with respect to the obligation to pay fines imposed by a Commission decision.
48 In the second place, the applicants claim that any requirement, which is imposed on an undertaking ordered to pay a fine, to provide a bank guarantee during the period in which it is bringing proceedings against the Commission decision, if it is enforced pending the outcome of those proceedings, constitutes an infringement of the right to a fair hearing, as recognised in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). On that basis, the applicants take the view that the approach followed in the orders in DSR-SenatorLines v Commission, paragraph 46 above, infringes the rights to a fair hearing and the presumption of innocence, recognised in Article 6(1) and (2) of the ECHR, since by taking into consideration the characteristics of the group to which, by virtue of their shareholding structure, they belong in order to determine whether it is possible to provide a bank guarantee, that approach will prevent them in practice from obtaining the interim measures sought. The applicants are not in a position to compel their shareholders to provide them with assistance. In those circumstances, the applicants are at risk of insolvency before delivery of the judgment in the main proceedings.
49 In support of their claim the applicants rely on the judgment of the European Court of Human Rights of 23 July 2002, Västberga Taxi Aktiebolag and Vulic v. Sweden (No 36985/97), which casts doubt on the approach in the case-law in dispute.
50 In the third place, the applicants take the view that the approach in dispute is inconsistent with a number of national laws. In their supplementary observations on urgency, they advocate the automatic grant of suspension of operation of competition decisions which is, in particular, the approach adopted in the United Kingdom under the Competition Act 1998. The applicants observe that Article 242 EC is a general provision, not a provision specifically drafted for competition law cases. The applicants further state that the Community judicature has not yet ruled on whether the specific circumstances of competition cases are such that the judge hearing an application for interim measures should automatically suspend the operation of a decision imposing the payment of a fine in order to maintain the right to a fair hearing.
51 The Commission, for its part, submits essentially that it is not urgent to order the interim measures sought.
Findings of the President
52 Having regard to the subject-matter of the application for interim measures, as defined (see paragraph 27 above), it is appropriate to examine whether the applicants have shown that it was urgent to dispense them from the obligation to provide a bank guarantee.
53 It is settled case-law that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Community Courts (see order of the President of the Court of Justice of 17 July 2001 in Case C‑180/01 P-R Commission v NALOO [2001] ECR I-5737, paragraph 52, and the case-law cited).
54 To achieve that objective, urgency must be assessed in relation to the necessity for an interim order in order to prevent serious and irreparable damage to the party applying for interim protection. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (see order of the President of the Court of First Instance of 15 November 2001 in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II-3295, paragraph 187, and the case-law cited).
55 It is not necessary for the imminence of the damage to be demonstrated with absolute certainty and it is sufficient to show that damage – especially if its occurrence depends on a series of factors – is foreseeable with a sufficient degree of probability. However, the applicant is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders of the President of the Court of First Instance in Duales System Deutschland v Commission, paragraph 54 above, paragraph 188, and Case T-34/02 R B v Commission [2002] ECR II-2803, paragraph 86).
56 It should be borne in mind in this case that a request for dispensation from the obligation to set up a bank guarantee, where that guarantee is the condition imposed in return for staying enforcement of a fine imposed by the Commission, cannot be granted unless there are exceptional circumstances (order of the President of the Court of Justice of 15 December 2000 in Case C-361/00 P(R) Cho Yang Shipping v Commission [2000] ECR I-11657, paragraph 88).
57 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 Court of First Instance and is a general and reasonable way for the Commission to act (order of the President of the Court of First Instance of 5 August 2003 in Case T-79/03 R IRO v Commission [2003] ECR II-3027, paragraph 25).
58 The existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking exemption from providing the requisite bank guarantee adduces evidence that it is objectively impossible for it to provide such guarantee (see order in IRO v Commission, paragraph 57 above, paragraph 26, and the case-law cited), or that providing a bank guarantee would jeopardise its existence (see, to that effect, orders of the President of the Court of First Instance of 21 December 1994 in Case T-295/94 R Buchmann v Commission [1994] ECR II-1265, paragraph 24, and of 28 June 2000 in Case T-191/98 R II Cho Yang Shipping v Commission [2000] ECR II-2551, paragraph 43).
59 In those circumstances it is appropriate to examine whether the applicants have established to the requisite legal standard that it was impossible for them to provide the required bank guarantee or that providing such a guarantee would jeopardise their existence.
60 In this case, in order to prove that it is impossible to provide the bank guarantee, the applicants have produced only one letter of 23 November 2006 from Burdale Financial, their ‘principal bankers’, by which the bank stated in general terms that it refused to grant the guarantee sought. In its letter, Burdale Financial states that the overall amount of credit already extended to the applicants made any further increase in their outstanding debt impossible.
61 It has been held that the relevance of letters refusing to provide a bank guarantee must be assessed in the light of the applicants’ economic situation considered objectively (see, to that effect, orders of the President of the Court of First Instance of 28 June 2000 in Cho Yang Shipping v Commission, paragraph 58 above, paragraph 43, and of 13 July 2006 in Case T-11/06 R Romana Tabacchi v Commission [2006] ECR II‑0000, paragraph 102), and that, therefore, the relevance of those letters cannot be discounted as such, simply because they are few in number. In this case, since the applicants do not deny that they are profitable, the production of a single letter is not sufficient to establish that it is impossible for them to provide a bank guarantee.
62 Further, the applicants claim that they do not have any assets capable of being liquidated immediately so that the bank guarantee may be provided.
63 In support of their claim, and although in their application for interim measures the applicants do not rule out their ability to pay the fine in full by selling their properties in Spain and Poland, they merely refer to an accountant’s report appended to the letter of 17 January 2007 which concludes that it is impossible for them to effect those property transactions.
64 It must be stated that they do not provide any evidence capable of proving the efforts made to effect the sale of those assets. They have also failed to show that it was impossible to mortgage their properties or at least that efforts were made to that end.
65 The President concludes that the applicants have not shown to the requisite legal standard that those properties could not be used as security in order to set up the required bank guarantee.
66 Furthermore, when assessing the applicants’ ability to provide the guarantee in question account should also be taken, in accordance with settled case-law, of the group of undertakings to which they belong directly or indirectly, particularly with regard to the possibility of providing the security which banks might require. That requirement derives, on the one hand, from the public interest in seeing Commission decisions implemented and the Community’s financial interests safeguarded and, on the other, from the potential advantages which might accrue for a company’s shareholders from its anti-competitive conduct. Taking into account the situation of the group to which the applicants belong does not in any way mean that third parties are treated as liable for the fine or responsible for the infringement (see orders of 21 July 1999, DSR-Senator Lines v Commission, paragraph 46 above, paragraph 64, and the case-law cited, and Romana Tabacchi v Commission, paragraph 61 above, paragraph 111).
67 That approach is based on the idea that the objective interests of the undertaking concerned are not autonomous in relation to those of the natural or legal persons with a controlling interest in it and that, consequently, the serious and irreparable nature of the damage alleged must be assessed at the level of the group comprising those persons. In particular, given that the interests at stake overlap, the undertaking’s interest in its own survival must not be viewed in isolation from the interest of those controlling it in prolonging its life indefinitely (order of 14 December 1999, DSR-Senator Lines v Commission, paragraph 46 above, paragraph 50).
68 In that connection, a simple unilateral refusal of assistance by the undertaking’s principal shareholder cannot be enough to preclude the financial situation of the group as a whole from being taken into account. The extent of the damage alleged cannot flow from the unilateral intent of the majority shareholder of the undertaking (order of 14 December 1999, DSR-SenatorLines v Commission, paragraph 46 above, paragraph 54).
69 Furthermore, it must be stated that the applicants have not submitted the slightest evidence regarding the financial situation of their shareholders which would enable a specific assessment of whether they have sufficient resources to stand as guarantors for the applicants to enable them to provide the required bank guarantee.
70 The only information provided by the applicants concerns the IBP Group, whose relationship with the applicants has not been described in the application for interim measures. It is clear, however, from the annexes to the Commission’s observations, and more particularly from an email from the applicants’ representatives to the Commission, that the applicant undertakings are part of the IBP Group. Furthermore, that document makes it clear that the IBP Group is only one of the components of their holding company Pearl Fittings.
71 It must be stated that the applicants do not provide any evidence as to Pearl Fittings’ financial structure or ability to pay. They also fail to provide financial information on Pearl Fittings’ two shareholder companies, namely Hamsard 3008, or its parent company Sun Capital Partners, on the one hand, and Endless LPP, on the other, which might enable the judge hearing the application for interim measures to conclude that it is impossible for the applicants to provide the required bank guarantee, taking account, in particular, of the characteristics of the group to which they belong by virtue of their shareholding structure.
72 Consequently, it follows from the foregoing that the applicants have not successfully established that it is impossible for them to provide the required bank guarantee.
73 For the sake of completeness, it must be stated that there is some evidence to suggest that the applicants’ shareholders could provide them with assistance in order to obtain the required guarantee in spite of their assertions.
74 It is clear from the annexes to the Commission’s observations, taken from the applicants’ internet site or press releases by their shareholders, that, in March 2006, the shareholders invested GBP 12.5 million in order to refinance the business of the applicants and one of their subsidiaries, Europower Ltd, and that at the time of their acquisition the shareholders envisaged a level of stabilised debt by those companies of approximately GBP 40 million together with excellent market prospects within a short period. On that basis, a turnover of GBP 145 million was forecast for Pearl Fittings in 2007, which is a sharp increase in comparison with 2005 when its turnover was GBP 80 million. Moreover, Pearl Fittings has made a profit of GBP 4 million. In addition, on the basis of those annexes, Endless LLP has capital of GBP 100 million available for capital investments while Sun Capital Partners has funds of USD 3.5 billion. Those figures are not contested by the applicants.
75 Furthermore, it is apparent from the information provided by the applicants that their debts fluctuate by up to GBP 25 million. It should also be observed that the investment fund Sun Capital Partners became a shareholder of the applicants on 18 September 2006, that is only two days after the contested decision was adopted, although it could not or should not have been ignorant of the likelihood that a fine would be imposed on them.
76 It should also be added that it is clear from the applicants’ own arguments, set out in their application for interim measures, that their shareholders are in a position to stand as guarantors so that the applicants may provide a bank guarantee. The applicants themselves acknowledge that, in accordance with the orders in DSR-Senator Lines v Commission, paragraph 46 above, they cannot obtain the interim measures sought. Therefore, the applicants implicitly acknowledge that their shareholders are able to provide the bank guarantee by standing as guarantors.
77 As regards the question of whether providing the bank guarantee is liable to jeopardise the applicants’ existence, it must be stated that, in their application for interim measures, they merely claim that it will be objectively impossible for them to provide a bank guarantee and that the enforcement of the contested decision would jeopardise their existence. Therefore, the applicants do not prove that if the interim measure applied for were not granted the act of providing the required bank guarantee would in itself jeopardise their existence (see, to that effect, order of the President of the Court of First Instance of 20 October 2003 in Case T‑46/03 R Leali v Commission [2003] ECR II-4473, paragraph 54).
78 It follows from all of the foregoing that the condition relating to urgency is not satisfied.
79 In addition, it must be stated that having regard to the finding that there is no urgent need to order interim measures for the applicants, particularly on account of the characteristics of the group to which they belong, they do not put forward any reasons to justify departing from that finding, specifically with respect to International Building Products France.
80 However, as the judge hearing the application for interim measures has examined the applicants’ arguments that there is an urgent need to dispense them from providing a bank guarantee, particularly on the basis of the case-law deriving from the orders of the President of the Court of Justice and the President of the Court of First Instance in DSR-Senator Lines v Commission, paragraph 46 above, according to which the assessment of the applicants’ factual situation may be effected by taking into consideration, inter alia, the characteristics of the group to which, by virtue of their shareholding structure, they belong, it is also appropriate to examine the applicants’ arguments that, in this case, that case-law should be not be applied on the ground that it is contrary to the fundamental principles of Community law.
81 The applicants submit that, in the first place, that case-law infringes the principles of the protection of legitimate expectations and legal certainty, in the second place, it deprives them of the right to a fair hearing and the presumption of innocence in the same way, moreover, as the mere requirement to provide a bank guarantee and, in the third place, it is inconsistent with a number of national laws because suspension is not granted automatically in actions in the field of competition.
82 The fact however remains that the applicants do not produce any serious evidence to support their argument that the Court should depart from its case-law and that of the Court of Justice.
83 As a preliminary point it must be recalled that taking account of the characteristics of the group to which the applicants belong, as required by the decisions of the Presidents of the Court of Justice and the Court of First Instance in order to assess their factual situation, constitutes the consideration for the possibility of obtaining suspension of the obligation to pay a fine imposed on an undertaking for infringement of the competition rules, coupled with the fact that it is open to such undertakings to show that exceptional circumstances warrant their being relieved of any obligation to set up a bank guarantee. That possibility takes account, in particular, of the fact that it has not yet been established by an independent and impartial tribunal that there has been such an infringement and that the amount of the fine has not yet been definitively determined (see, to that effect, order of 15 December 2000, Cho Yang Shipping v Commission, paragraph 56 above, paragraph 92).
84 In the light of the considerations set out, in paragraph 67 above, as regards the connection between the objective interests of undertakings and their shareholders, failure to consider the latter in order to assess the applicants’ factual situation would unduly compromise the public interest in seeing a decision implemented and the objectives of the contested decision attained. There would be a substantial risk, if a bank guarantee were not provided, that a group might organise the insolvency of the undertaking which is the addressee of a decision imposing fines on it, which would make that undertaking unable to pay the fine once the Court had given a ruling in the main proceedings. That public interest cannot be called into question by the fact that the shareholders of an undertaking on which a fine is imposed take the view that it is in their personal interest to allow that undertaking to commence insolvency proceedings rather than to stand as guarantors for the undertaking in order to provide a bank guarantee.
85 As regards, in the first place, the applicants’ arguments on the principles of the protection of legitimate expectations and legal certainty, it appears from their pleadings, if rather imprecisely, that the applicants argue essentially that while the Commission’s choice of addressees of its decisions is limited by the rules on imputability of fines, the judge hearing the application for interim measures in certain cases examines the financial situation of the shareholders of an undertaking on which a fine has been imposed. The applicants, when they received the statement of objections or even the contested decision, could not have expected the Court to take account of the financial capacity of their shareholders in assessing the possibility of providing a bank guarantee.
86 It must be recalled, first, that the right to claim the protection of legitimate expectations, which constitutes one of the fundamental principles of the Community, extends to any individual in a situation where the Community authorities, by giving him precise assurances, have caused him to entertain justified hopes (Case 265/85 Van den Bergh en Jurgens v Commission [1987] ECR 1155, paragraph 44, and Case T-220/00 Cheil Jedang v Commission [2003] ECR II-2473, paragraph 33).
87 Second, it must also be recalled that the principle of legal certainty, which is a general principle of Community law, requires, in particular, that all Community rules, particularly when they impose or allow the imposition of penalties, be clear and precise in order that the persons concerned may be able to ascertain unequivocally what their resulting rights and obligations are and may take steps accordingly (Case T-43/02 Jungbunzlauer v Commission [2006] ECR II-0000, paragraph 71).
88 The applicants do not produce the slightest evidence to show that consideration of the factual situation of the group to which an applicant belongs, in order to assess whether there are exceptional circumstances justifying dispensation from the obligation to provide a bank guarantee, infringes those principles.
89 The fact of the matter is that the arguments relied on by the applicants disregard both the fact that taking the applicants’ shareholders into consideration in order to assess the possibility of providing a bank guarantee does not by any means imply that the fine or responsibility for the infringement are imputed to third parties (see, to that effect, order in Romana Tabacchi v Commission, paragraph 61 above, paragraph 111) and that the liability to pay the fines decided on by the Commission does not prejudge the circumstances that the judge hearing the application for interim measures may take into account in order to assess the need to suspend an obligation to provide a guarantee to avoid payment of a fine.
90 The applicants’ arguments must therefore be rejected.
91 In the second place, as regards the alleged infringement of Article 6(1) and (2) of the ECHR, it must be observed that Article 6(2) EU provides that the Union is to respect fundamental rights, as guaranteed inter alia by the ECHR, as general principles of Community law. Therefore, fundamental rights form an integral part of the general principles of law, the observance of which the Court ensures (Case C-260/89 ERT [1991] ECR I-2925, paragraph 41).
92 In that connection, the applicants rely on the judgment in Västberga Taxi Aktiebolag and Vulic v. Sweden, paragraph 49 above, and in particular paragraph 120. Paragraph 120 states that ‘[a] system that allows enforcement of considerable amounts of tax surcharges before there has been a court determination of the liability to pay the surcharges is … open to criticism and should be subjected to strict scrutiny’. The applicants, relying on some academic writing, take the view that that finding may be extended to fines in the field of competition.
93 However, even assuming that that finding were capable of transposition, it would demonstrate at the very most that, in so far as an independent and impartial tribunal has not yet established the existence of an infringement of Community competition law and judicial proceedings intended to determine the appropriate amount of the fine imposed on account of that infringement have not been concluded, an obligation to pay the fine imposed, without suspension where proceedings are brought before the Court of First Instance, might be contrary to Article 6 of the ECHR or the corresponding fundamental principles of Community law (see, to that effect, paragraphs 118 and 120 of the judgment in Västerberga Taxi and, by analogy, as regards the right to a fair hearing, paragraphs 98 and 102).
94 It is sufficient to state that the applicants may indeed avoid payment of the fine imposed on them by providing a bank guarantee as a result of the opportunity afforded to them by the Commission itself (see, to that effect, the order of 15 December 2000 in Cho Yang Shipping v Commission, paragraph 56 above, paragraph 64) and that, in addition, if they had been able to demonstrate the existence of exceptional circumstances, such as, in particular, a genuine inability to provide such a guarantee, they could have obtained an order suspending the obligation to provide it from the judge hearing the application for interim measures.
95 Therefore, the applicants’ argument in that regard must be dismissed together with, for the reasons set out above, the argument that the enforcement of the obligation to provide a bank guarantee during the period in which the undertaking ordered to pay a fine is bringing proceedings against the Commission’s decision constitutes an infringement of the right to a fair hearing, as recognised in Article 6(1) of the ECHR.
96 In the third place, as regards the automatic suspensory effect that actions in the field of competition should have and which, the applicants argue, should be required by the Community case-law, it follows from Article 242 EC which empowers the Community judicature to order suspension of the operation of the contested act if it considers that the circumstances so require, that bringing an action before the Court of First Instance does not have suspensory effect. As the applicants themselves point out, Article 242 EC does not distinguish between actions in competition cases and other actions. That argument of the applicants must therefore be rejected. The fact that national procedures differ from the rule of law laid down in the Treaty is not relevant in that regard.
97 Therefore, without there being any need to examine the other conditions necessary for the grant of the suspension of operation applied for, the application for interim measures must, in accordance with the case-law cited in paragraph 21 above, be dismissed.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 28 March 2007.