Case T-117/05 R

Andreas Rodenbröker and Others

v

Commission of the European Communities

(Application for interim measures – Application for suspension of operation – Directive 92/43/EEC  – Urgency – None)

Summary of the Order

1.      Applications for interim measures – Conditions for admissibility – Application – Formal requirements – Statement of the pleas in law establishing a prima facie case for granting the measures sought – Brief presentation of the arguments – Admissibility – Conditions

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

2.      Applications for interim measures – Conditions for admissibility – Admissibility of main application – Irrelevance – Limits

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(1))

3.      Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency – Serious and irreparable damage – Burden of proof – Pecuniary damage affecting the material situation of the applicant – Damage foreseeable with a reasonable degree of probability – Consideration of the situation of persons other than the applicant – Not included

(Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))

1.      The conditions laid down in Article 104(2) of the Rules of Procedure require that the essential elements of fact and law on which an application is founded are set out in a coherent and comprehensible fashion in the application for interim measures itself. Nevertheless if, in spite of its lack of clarity and confused presentation, the application contains a series of pleas and arguments designed to prove that the conditions for establishing a prima facie case and urgency are satisfied, enabling the other party properly to present its observations and the judge hearing the application to examine them, the application cannot be declared inadmissible on the ground that it fails to comply with the conditions required by Article 104(2) of the Rules of Procedure.

(see paras 53-54)

2.      In principle the issue of the admissibility of the main action should not be examined in relation to an application for interim measures so as not to prejudge the substance of the case. Nevertheless, where, as in this case, it is contended that the main action to which the application for interim measures relates is manifestly inadmissible, it may prove necessary to establish whether there are any grounds for concluding prima facie that the main action is admissible.

(see para. 55)

3.      The urgency of an application for the adoption of interim measures must be assessed in the light of the extent to which an interlocutory order is necessary to avoid serious and irreparable damage to the party seeking the adoption of the interim measure. That party must furnish proof that he cannot await the conclusion of the main action without suffering damage of that nature.

In that connection although, in order to establish the existence of serious and irreparable damage, in proceedings for interim measures, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicants are required to prove the facts forming the basis of their claim that serious and irreparable damage is likely, in order to enable the judge hearing the application for interim measures to assess the likelihood that the damage will occur. Accordingly, the condition as to urgency is not satisfied where the alleged circumstances do not constitute an actual risk, but a future, uncertain and contingent risk.

Nor can damage alleged to have been suffered by persons other than the applicants be taken into account since damage deemed to establish urgency must be specific to the applicant. Similarly, damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, if it can ultimately be the subject of financial compensation.

(see paras 71-72, 74-76)