ORDER OF THE PRESIDENT OF THE GENERAL COURT
11 October 2012 (*)
(Application for interim measures – Competition – Concentrations – Electricity market – Decision authorising a concentration operation subject to compliance with certain commitments – Refusal to grant the postponement of the deadline set for fulfilling those commitments – Application for interim measures – Lack of urgency)
In Case T‑389/12 R,
Électricité de France (EDF), established in Paris (France), represented by A. Creus Carreras and A. Valiente Martin, lawyers,
applicant,
v
European Commission, represented by C. Giolito and S. Noë, acting as Agents,
defendant,
APPLICATION for interim measures in relation to Commission Decision C(2012) 4617 final of 28 June 2012 refusing to grant the applicant the postponement of the deadline fixed for fulfilling some of its commitments set out in Decision C(2009) 9059 of 12 November 2009, which authorises the concentration operation whereby Électricité de France was to acquire exclusive control of the assets of the Belgian undertaking Segebel (Case COMP/M.5549 – EDF/Segebel),
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Facts, procedure and forms of order sought
1 By Decision C(2009) 9059 of 12 November 2009, the Commission of the European Communities authorised, under Article 6(1)(b) and (2) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1), the concentration operation whereby the applicant, Électricité de France (EDF), was to acquire exclusive control of the assets of the Belgian undertaking Segebel, on condition that the applicant fulfil two commitments proposed by it to the Commission in order to dispel doubts as to the compatibility of the concentration with the common market (Case COMP/M.5549 – EDF/Segebel).
2 By the divestment in July 2011 of the Dils-Energie project relating to the development of a power plant, the applicant fulfilled its first commitment.
3 The second commitment provided that the applicant was required to divest another project relating to the development of a power plant, the Nest-Energie project, to a suitable purchaser, in the event that it did not take a final decision, by 30 June 2012, to itself invest in that project.
4 Relying on significant and permanent changes in the conditions on the electricity market in Belgium since the adoption of Clearance Decision C(2009) 9059, and which could not have been anticipated in 2009, the applicant contacted the Commission by letter of 14 May 2012, in which it claimed that it was impossible for it, or for any other market player, to take a final investment decision regarding the Nest-Energie project by the deadline fixed for 30 June 2012. The applicant therefore requested the Commission to grant it a postponement of that deadline until 31 December 2014.
5 By Decision C(2012) 4617 final of 28 June 2012, the Commission refused to grant the request for postponement, but granted the applicant an additional period of three and a half months, that is until 15 October 2012 (‘the contested decision’).
6 By application lodged at the Court Registry on 5 September 2012, the applicant brought an action for annulment of the contested decision.
7 By separate documents lodged at the Court Registry on the same day, the applicant applied for the case to be decided under an expedited procedure, pursuant to Article 76a of the Rules of Procedure of the Court, and brought this application for interim measures, in which it essentially claims that the President of the Court should:
– order the postponement of the date by which the applicant has to make a final investment decision or divest the Nest-Energie project pending a decision in the main proceedings;
– reserve the costs.
8 In its written observations on the application for interim measures, which were lodged at the Court Registry on 24 September 2012, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
9 It is apparent 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 the application of the act challenged before the General Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions are not to have suspensory effect, since acts adopted by the EU institutions are presumed to be lawful. It is therefore only by way of exception that the judge hearing the application for interim measures can order that the operation of an act challenged before the General Court be suspended or prescribe interim measures (see order of the President of the General Court of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stitching Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
10 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 for interim measures may order the 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 (fumus boni juris) 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
11 In addition, in the context of that overall examination, the judge hearing an application for interim measures 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 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 order of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing the application for interim measures must also weigh up the interests involved (order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
12 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on this application for interim measures and that it is not expedient first to hear oral argument from the parties.
13 In the circumstances of this case, it should first be examined whether the condition as to urgency is satisfied.
14 In that context, the applicant states that, since the investment in the Nest-Energie project is estimated at EUR 800 million, that project would be able to cover its annual fixed and variable costs but would certainly not cover the initial investment and reach the required investment profitability threshold. According to the applicant, the urgency created by the contested decision, which requires a divestiture process to be initiated by 16 October 2012, is obvious by its very nature, as it involves the disposal of certain assets by the applicant in favour of a (potential) competitor. Once the divestiture has been carried out, it is not possible to go back to the previous situation. The only legal manner would be to resort to damages, but the damages as such are nearly impossible to quantify since they would be carried over for the life of the missed investment for the applicant. Furthermore, an immediate divestiture would imply a serious risk of sale at a loss should a second divestiture phase be opened.
15 In that regard, it must be borne in mind that, according to settled case-law, 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 harm to the party requesting such measures (see order of the President of the General Court of 28 April 2009 in Case T‑95/09 R United Phosphorous v Commission, not published in the ECR, paragraph 32 and the case-law cited). It is for the party seeking such measures to prove that it cannot wait for the outcome of the main proceedings without suffering harm of that kind (order of the President of the General Court in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). While it does not have to be established with absolute certainty that the harm is imminent, its occurrence must nevertheless be foreseeable with a sufficient degree of probability (order of the President of the Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; and order of the President of the General Court in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 83).
16 Where the harm alleged is of a financial nature, the interim measures sought will be justified, according to well-established case-law, if it appears that, without such measures, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (see, to that effect, order of the President of the Court of Justice in Case C‑43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36, and order in United Phosphorus v Commission, paragraphs 33 to 35 and the case-law cited).
17 In order to assess whether the harm alleged is serious and irreparable and therefore justifies, exceptionally, that the interim measures sought be granted, the judge hearing the application for interim measures must have specific and precise particulars, substantiated by detailed documents showing an applicant’s financial situation and enabling the judge to determine the precise effects which would follow, probably, if the measures sought were not granted (see order of the President of the General Court of 12 May 2010 in Case T‑30/10 R Reagens v Commission, not published in the ECR, paragraph 45 and the case-law cited). An applicant is thus required to provide supporting documents and information that establish a faithful overall picture of its financial situation (see, to that effect, order of the President of the General Court of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61, upheld on appeal by the order of the President of the Court of Justice of 16 December 2010 in Case C‑373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).
18 Moreover, it is settled case-law that that faithful overall picture of the financial situation must be provided in the text of the application for interim measures itself. Such an application must be sufficiently clear and precise to allow, by itself, the defendant to prepare its observations and the judge hearing the application for interim measures to rule on the application, where necessary, without any further supporting information, as the essential elements of fact and of law upon which it is based must be set out in a coherent and comprehensible fashion in the text of the application for interim measures itself (order of the President of the General Court of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint undertaking for Fusion Energy, not published in the ECR, paragraph 17; see, also, to that effect, order of the President of the Court of Justice of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
19 In the present case, the alleged harm must clearly be categorised as harm of a purely financial nature, the applicant having merely expressed doubts as to its quantifiability.
20 It must be stated that, in the application for interim measures, the applicant has omitted to provide any information whatsoever on the size and turnover of its undertaking. Thus, it has not established a faithful overall picture of its financial situation, as required by the case-law.
21 Moreover, as the Commission rightly observed, the applicant is part of a group (‘the EDF group’) which operates on a worldwide scale. Accordingly, the requirement for the applicant to produce, with supporting evidence, a faithful overall picture of its financial situation extended to the EDF group as a whole, in order to enable the judge hearing the application for interim measures to assess the financial standing and solidarity which the applicant derived from its membership of the group. However, the applicant has not even mentioned that it belongs to the EDF group, and nor has it provided any details on the EDF group’s financial situation.
22 Therefore, in the absence of any relevant evidence in the application for interim measures, the applicant has failed to demonstrate that the alleged financial harm is sufficiently serious to justify the granting of the interim measures sought. In particular, the applicant has failed to establish that, in the absence of the interim measures sought, it would be in a position that could imperil its very existence or affect its market share substantially.
23 Accordingly, the President cannot, on the basis merely of the applicant’s unsubstantiated assertions, accept that the alleged urgency exists. Since interim measures are granted strictly by way of exception (see paragraph 9 above), they may be granted only where those assertions produce a faithful overall picture of the applicant’s financial situation and are based on evidence (see, to that effect, order in Babcock Noell v Joint undertaking for Fusion Energy, paragraph 57 and the case-law cited).
24 Consequently, the financial harm alleged by the applicant does not justify the granting of the interim measures sought.
25 For the sake of completeness, it should be added that the applicant does not claim that the alleged financial harm is equal to the cost, estimated at EUR 800 million, of the investment in the Nest-Energie project. The applicant instead submits that that project would not reach the required investment profitability threshold and refers to a serious risk of sale at a loss, claiming that the resulting harm would be difficult to quantify. It may be concluded from this, as the Commission rightly does so, that that harm, far from reaching the sum of EUR 800 million, is of a much smaller magnitude, since it amounts to sale at a loss and a drop in profitability expectations.
26 It is apparent from public sources, namely the 2011 report published by the EDF group on its website, that the worldwide turnover of the group amounted in 2011 to more than EUR 65 billion, which was also pointed out by the Commission. In the light of this financial power of the EDF group, it seems inconceivable that the harm caused to the applicant, either by the disposal of the assets of the company charged with the development of the Nest-Energie project, or by the final decision to pursue itself the investment in that project, can be categorised as serious, a condition required for the application of Article 279 TFEU.
27 It follows that the applicant has not established that the alleged harm is serious. It is therefore not necessary to examine whether that harm is irreparable.
28 It follows from all the foregoing that the application for interim measures must be dismissed for lack of urgency, without it being necessary to consider whether the other conditions for granting the interim measures sought are fulfilled in this case.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 11 October 2012.