62000B0342

Applications for interim measures - Suspension of operation - Suspension of operation of a Commission decision relating to the control of concentrations - Conditions of granting - Serious and irreparable damage - Damage of a financial nature - Balancing of all the interests at issue

(Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2); Council Regulation No 4064/89)

$$In the context of an application for suspension of operation of a Commission decision refusing to approve undertakings as purchasers of certain assets divested in a procedure for the transfer of assets which is carried out pursuant to commitments entered into by the parties to a concentration, the damage resulting from being excluded from that procedure consists in a loss of profits caused by the fact that those undertakings do not have access to a given market.

Since such damage is of a pecuniary nature, it cannot, in principle, be regarded as irreparable, or even reparable only with difficulty, if it may be the subject of subsequent financial compensation.

The suspension sought would be justified, in those circumstances, only if it appeared that, without such relief, the undertakings concerned would be in a situation liable to jeopardise their very existence or irreparably modify their market shares.

Furthermore, even if damage consisting principally in definitive exclusion from the divesting procedure at issue and in the impossibility of obtaining a share of a given market could constitute serious and irreparable damage, the balancing of, on the one hand, the interest of the undertakings concerned in obtaining the interim relief sought against, on the other, the public interest in implementation of decisions adopted under Regulation No 4064/89 and the interests of third parties who would be directly affected by any suspension of operation of the decision at issue must lead to dismissal of such an application.

( see paras 46-48, 51 )

In Case T-342/00 R,

Petrolessence,

Société de gestion de restauration routière (SG2R),

established in Nancy (France), represented by F. Puel and M. Troncoso Ferrer, lawyers, with an address for service in Luxembourg,

applicants,

v

Commission of the European Communities, represented by W. Mölls and F. Siredey-Garnier, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for, first, suspension of operation of the Commission decision of 13 September 2000 rejecting TotalFina Elf's proposal concerning approval of the applicants as transferees of six motorway service stations and, second, an order requiring the Commission to instruct TotalFina Elf to suspend implementation of the commitment set out in point 36 of the annex entitled commitments proposed by TotalFina to the Commission decision of 9 February 2000 authorising the acquisition of the undertaking Elf Aquitaine by TotalFina, in so far as the commitment concerns the six petrol stations the transfer of which to the applicants had been proposed on 12 August 2000 by TotalFina Elf to the Commission,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts

1 By Commission decision of 9 February 2000 pursuant to Article 8(2) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 13), the acquisition of Elf Aquitaine by TotalFina was declared compatible with the common market and the functioning of the Agreement on the European Economic Area provided that a number of commitments annexed to that decision were fully complied with.

2 According to point 1 of the commitments entered into by the notifying party (TotalFina), that company was to divest assets in order to maintain effective competition on the affected markets. In particular, this involved divesting, within a given period 70 Elf, Total and Fina motorway service stations.

3 The transferees of the service stations had to be approved by the Commission and meet, for that purpose, the conditions set out in point 1 of the commitments. Those conditions are as follows:

(a) neither of the TotalFina or Elf groups shall have a material interest, either direct or indirect, in the transferee(s).

None the less, this provision shall not prevent those companies in which TotalFina or Elf holds material interests which the notifying party undertakes fully to divest in accordance with the present commitments from acquiring some or all of the assets [which are the object of the present commitments].

In this regard, the notifying party undertakes not to oppose, either directly or indirectly, the candidacy of one or other of such companies or the adoption by them of the measures necessary for implementing such candidacy;

(b) the transferee(s) shall be viable operators, either potentially or currently active on the markets in question, capable of maintaining or developing effective competition;

(c) the transferee(s) shall have obtained or shall be reasonably likely to obtain all the necessary authorisations for the acquisition and exploitation of the assets [which are the object of the present commitments].

4 In order to comply with that commitment, TotalFina Elf lodged with the Commission on 12 August 2000 a request for approval of purchasers for all the 70 service stations concerned. Among the proposed purchasers, TotalFina Elf had selected le Mirabellier, a trading name of the companies Petrolessence and Société de gestion de restauration routière (SG2R), for the transfer of six petrol stations.

5 By decision of 13 September 2000 notified to TotalFina Elf (hereinafter the contested decision), the Commission concluded that le Mirabellier inter alia did not meet one of the conditions set out in point 1(b) of the commitments for obtaining the required approval since, in the context of the proposed group of purchasers, its application did not allow effective competition to be maintained and developed, in particular vis-à-vis TotalFina Elf (paragraph 32 of the contested decision).

6 On 20 October 2000 TotalFina Elf submitted a new group of potential purchasers to the Commission for approval which did not include the applicants. The Commission approved those purchasers on 7 November 2000.

Procedure

7 By application lodged at the Registry of the Court of First Instance on 13 November 2000, the applicants brought an action before the Court pursuant to the fourth paragraph of Article 230 EC for annulment of the contested decision.

8 By separate document lodged at the Court Registry on the same day, the applicants made the present application seeking, first, suspension of operation of the contested decision in so far as it rejects TotalFina Elf's proposal for their approval as transferees of six motorway service stations and, second, an order requiring the Commission to instruct TotalFina Elf to suspend implementation of the commitment set out in point 36 of the annex entitled commitments proposed by TotalFina to the Commission decision of 9 February 2000 in so far as the commitment concerns the six service stations in question.

9 On 24 November 2000 the Commission submitted its observations on the application for interim relief.

10 Submissions of the parties were heard on 30 November 2000. After the hearing the President of the Court of First Instance requested the Commission to inform him of the identity of the purchasers in respect of the six motorway service stations concerned and to state whether the sale agreements concluded by them were of an irrevocable nature.

11 On 7 December 2000 the Commission provided the information requested, showing that TotalFina Elf had concluded agreements concerning the six service stations in issue subject to the sole condition precedent that the purchasers be approved by the companies holding the motorway concessions or the State. The Commission also made it clear in its reply that the six service stations had been awarded to five separate purchasers.

12 On 13 December 2000 the applicants lodged their observations on the information in question, to which the Commission replied on 21 December 2000. It is apparent from the Commission's reply that the approval procedure has been completed for one of the six service stations claimed by the applicants.

13 On 22 December 2000 the applicants lodged their observations on that further information provided by the Commission.

14 On 10 January 2001 the Commission submitted its response to those observations.

Law

15 Under the combined provisions of Articles 242 EC and 243 EC and Article 4 of Council Decision 88/591/ ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93/350/Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21), the Court may, if it considers that circumstances so require, suspend the operation of the contested measure or prescribe any necessary interim measures.

16 Under Article 104(1) of the Rules of Procedure of the Court of First Instance, an application to suspend the operation of a measure shall be admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. That rule is no mere formality but presupposes that the main action, to which the application for interim relief is an adjunct, may be examined by the Court of First Instance.

17 However, in accordance with settled case-law, to rule on admissibility at the interlocutory stage where an application is not, at first sight, clearly inadmissible would be tantamount to prejudging the decision of the Court of First Instance on the main action (order of the President of the Court of First Instance in Case T-196/98 R Peña Abizanda and Others v Commission [1999] ECR-SC I-A-5 and II-15, paragraph 10).

18 Article 104(2) of the Rules of Procedure provides that applications for interim measures must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. These conditions are cumulative, so that an application for suspension of operation must be dismissed if either of them is not fulfilled (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). The Court hearing the application will also where appropriate balance the competing interests (order of the President of the Court of Justice in Case C-107/99 R Italy v Commission [1999] ECR I-4011, paragraph 59).

Arguments of the parties

Admissibility

19 The Commission submits, first, that the applicants' request that the Court should order it to instruct TotalFina Elf to suspend implementation of the commitment in so far as it concerns the six service stations at issue is inadmissible.

20 In so far as that request, if granted, would mean the Commission extending the time-limit for implementing the commitments prescribed in its decision of 9 February 2000, it does not fall within the framework of the final decision on the main action (order of the President of the Court of First Instance of 27 February 1996 in Case T-235/95 R Goldstein v Commission, not published in the ECR, paragraph 38) which seeks merely to annul the contested decision.

21 Furthermore, even if the Commission has the power to order the notifying party to suspend implementation of commitments, it is clear from the order of the President of the Court of First Instance in Case T-322/94 R Union Carbide v Commission [1994] ECR II-1159, at paragraph 27, that the request made by the applicants is, in any event, inadmissible because it exceeds the powers of review of the Court of First Instance.

22 Second, in so far as the suspension of operation relates to a negative act and, in particular, would not have the consequence of requiring the institution concerned to adopt the measures ultimately sought by the applicants, it presents no interest for them and cannot therefore be ordered by the judge hearing the application for interim relief (order of the President of the Court of First Instance in Case T-213/97 R Eurocoton and Others v Council [1997] ECR II-1609, paragraph 41).

23 Third, in the Commission's submission the application for interim relief is inadmissible by reason of the fact that the main action is clearly inadmissible. Since the contested decision does not have the effect of definitively removing the applicants from the market in issue, it does not adversely affect them.

24 The applicants, for their part, contend that the application for interim relief is admissible.

Urgency and balancing of interests

25 The applicants submit that the process of selling off the service stations will result in TotalFina Elf and the approved undertakings deploying considerable resources. Because of the contested decision which has prevented them from purchasing the six service stations in issue, the applicants thus have no possibility of immediate access to the motorway fuel sales market. Nor will they be able to break into that market in the future, it being a market which is difficult to penetrate with a renewal rate of under 1.5%. The assessment by the Commission in the contested decision is the direct cause of the applicants' exclusion.

26 According to, inter alia, the order of the President of the Court of First Instance in Joined Cases T-24/92 R and T-28/92 R Langnese-Iglo and Schöller Lebensmittel v Commission [1992] ECR II-1839, to be definitively excluded from a virtually closed market, as in the present case, constitutes serious and irreparable damage. The fact that the applicants are not in a situation liable to threaten their existence is, in their submission, irrelevant.

27 The applicants also submitted at the hearing that they have suffered financial loss in terms of expenditure on administrative resources used in vain for the purpose of participating in the divesting procedure for the six service stations in issue. This loss amounts to a sum of between FRF 150 000 and FRF 500 000 for each of the six service stations.

28 The balance of interests favours grant of the relief sought. The grant of such relief affects neither the interests of the Community nor those of TotalFina Elf. With regard to the interests of the Community, the applicants observe that the relief sought concerns only six service stations which, from a Community point of view, would not alter conditions of competition on the market in question.

29 Nor are the interests of TotalFina Elf affected in so far as the applicants had been proposed by it as transferees of those six service stations.

30 For the applicants, however, possession of six service stations would allow them to enter the market, which might allow them to obtain several additional service stations when tenders are invited in 2005 for the renewal of concessions. That would contribute to strengthening competition in Europe. On the other hand, in the absence of interim relief the applicants would be prevented from obtaining the six service stations in question. Moreover, the applicants state that catering undertakings which have no service station linked to a motorway catering unit will disappear from the market.

31 Finally, limiting the scope of the relief sought to that which is strictly necessary to avoid the applicants' suffering serious and irreparable damage means that the balance of interests goes in their favour.

32 The Commission points out that even if the renewal rate for motorway service station concessions is low, it is wrong to plead, as the applicants do, that they will be excluded for good from the motorway fuel sales market. At worst, access to that market is delayed. In such a case, any resulting loss of profit constitutes financial loss which can qualify for compensation.

33 Nor can the indispensable causal link between the contested decision and the damage invoked be demonstrated in the present case. In this regard the Commission submits that the contested decision did not entail definitive exclusion of the applicants, who, like Agip, the other transferee for which approval was refused in the contested decision, might have been proposed again by TotalFina Elf in the new group of purchasers submitted to the Commission.

34 According to the Commission, the applicants' service-station application may be assessed only in the context of the group of purchasers proposed by TotalFina Elf. It is therefore not a question of the Commission individually examining applications by purchasers, but of assessing whether, in the context of the group and having regard to the other proposed purchasers, the application made by the applicants could satisfy the fundamental requirement of reestablishing conditions of competition at least analogous to those existing before the concentration.

35 The condition relating to urgency is therefore not met.

36 As to the balance of interests, the Commission submits that the interest of the applicants clearly cannot be compared to its own interest and to that of the parties to the concentration and of third parties approved as transferees (order of the President of the Court of First Instance in Case T-96/92 R CCE de la Sociéte générale des Grandes sources and Others v Commission [1992] ECR II-2579, paragraphs 38, 39 and 40).

37 For the Commission, it is a question of ensuring the reestablishment of effective competition. For TotalFina Elf, the interim relief sought might have serious consequences. TotalFina Elf would no longer be in a position to honour its commitments vis-à-vis the current purchasers of the six service stations in question with which it has concluded agreements subject to the sole condition precedent that they be approved by the companies holding the concessions or the State. In that case the conditions for authorising the concentration would then not be observed. TotalFina Elf would therefore run the risk of the concentration being called into question.

Findings of the President of the Court

38 It cannot be entirely ruled out that the main action is admissible in that, contrary to the Commission's submissions, the contested decision prima facie adversely affects the applicants. First, that decision rejects the request for approval of the applicants as transferees of the six service stations in question. Second, it was in view of the ground of the contested decision stating that the applicants would not have the capacity to maintain and develop effective competition, in particular vis-à-vis TotalFina Elf, that TotalFina Elf excluded the applicants from the group of transferees in the second request for approval, which the Commission granted.

39 Therefore, without it being necessary in the circumstances of the present case to rule on the pleas alleging that the application for interim relief is inadmissible other than the plea concerning manifest inadmissibility of the main action, it should be examined whether the condition relating to urgency is satisfied.

40 According to settled case-law, the urgency of an application for interim relief must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party seeking the relief. It is for that party to prove that it cannot await the outcome of the main proceedings without suffering such damage (orders of the President of the Court of First Instance in Case T-73/98 R Prayon-Rupel v Commission [1998] ECR II-2769, paragraph 36, and in Case T-169/00 R Esedra v Commission [2000] ECR II-2951, paragraph 43, and of the President of the Court of Justice in Case C-278/00 R Greece v Commission [2000] ECR I-8787, paragraph 14).

41 The damage alleged by the applicants consists, first, in their definitive exclusion from the divesting procedure in issue and the fact that it is impossible for them to gain access to the market, second, in the expense occasioned by their participation in that procedure and, third, in their quasi-exclusion from the motorway fuel sales market in the future.

42 As regards, first, the damage arising from their quasi-exclusion from the motorway fuel sales market in the future, it should be remembered that, even if the concession renewal rate in that market is low, new service stations will be built on sections of motorway to be opened. It is apparent from paragraphs 208, 209 and 210 of the decision of 9 February 2000 that, in the years 1995 to 1999, 33 invitations to tender for new service stations were issued by motorway operators, and 11 either resulted in no contract being awarded or were postponed. The applicants have not established that they will be prevented from participating in future tender procedures when concessions are renewed or new service stations built. In those circumstances it cannot be ruled out, in spite of the fact that the applicants' service-station application was in the end not taken into account by TotalFina Elf, that the applicants may, even before 2005, be able to enter the motorway fuel sales market.

43 So far as concerns, second, the alleged damage consisting in the expense occasioned by participation in the divesting procedure, that damage is of a purely pecuniary and quantifiable nature which may therefore be the subject of subsequent financial compensation if the applicants are successful in the main proceedings.

44 Third, as regards the damage resulting from their definitive exclusion from the divesting procedure, the applicants have not shown that the contested decision has caused them serious and irreparable damage. Participation in a procedure for the sale of assets in the context of a concentration such as the one in the present case inevitably involves risks for all the participants and the elimination of a candidate is not, in itself, sufficient to establish urgency.

45 After the Commission accepted TotalFina Elf's second request for approval of purchasers (see paragraph 6 above), TotalFina Elf concluded agreements for the six service stations concerned subject to the sole condition precedent that the purchasers be approved by the companies holding the concessions or the State. If the divesting procedure continues without the suspensions sought being ordered, the situation could indeed be irrevocable so far as concerns the applicants. However, it is always for the parties seeking interim relief to adduce the proof, as referred to in paragraph 40 above, of urgency of the application for relief.

46 In this connection, the alleged damage resulting from the fact that the applicants were excluded from the divesting procedure can be confined solely to the transfer of the six services stations in issue. As the applicants admitted at the hearing, that alleged damage consists in a loss of profit caused by the fact that they did not gain access to the market concerned. Even if the applicants did suffer such damage, it is of a pecuniary nature. According to settled case-law, such damage cannot, in principle, be regarded as irreparable, or even reparable only with difficulty, if it may be the subject of subsequent financial compensation (orders of the President of the Court of Justice in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 24, and of the President of the Court of First Instance in Case T-70/99 R Alpharma v Council [1999] ECR II-2027, paragraph 128, and in Esedra v Commission, cited above, paragraph 44).

47 The suspension sought would be justified in the circumstances of this case only if it appeared that, without such relief, the applicants would be in a situation liable to jeopardise their very existence or irreparably modify their market shares. From the responses to the questions put by the President of the Court at the hearing it is clear that the applicants are not in any way in a situation of that kind.

48 As to the alleged damage due to its being impossible for the applicants to obtain a share of the motorway fuel sales market, it should be noted that the facts in this instance are different from those giving rise to the order in Langnese-Iglo and Schöller Lebensmittel v Commission, cited above, since, in that case, the parties seeking interim relief were already present in the market concerned and were acting in order that conditions in that market not be modified by implementation of a Commission decision. By contrast, in the present case the applicants' position in the motorway fuel sales market is only potentially affected since they are not active in that market.

49 In the light of the above, the applicants have not succeeded in establishing that the alleged financial damage arising from their definitive exclusion from the divesting procedure in issue must be considered serious and irreparable.

50 It follows from the foregoing that the applicants have not succeeded in establishing that, if the interim relief sought were not granted, they would suffer serious and irreparable damage.

51 In any case, even if the alleged damage could constitute serious and irreparable damage, the balancing of, on the one hand, the applicants' interest in obtaining the interim relief sought against, on the other, the public interest in implementation of decisions adopted under Regulation No 4064/89 and the interests of third parties who would be directly affected by any suspension of operation of the decision at issue leads to dismissal of the present application.

52 In this regard, it should be remembered, first, that Regulation No 4064/89 was adopted primarily in order to ensure effectiveness of control of concentrations between undertakings, in the light of the need to maintain and develop effective competition in the common market, and to ensure legal certainty for the undertakings to which it applies (see, to this effect, Union Carbide v Commission, cited above, paragraph 36).

53 Furthermore, in circumstances such as those of the present case where the interim relief applied for may seriously affect the rights and interests of third parties, in particular of TotalFina Elf and of the purchasers of the six service stations, which, not being parties to the proceedings, have not been able to make their views known, such relief can be justified only if it appears that, without it, the applicants would be exposed to a situation liable to jeopardise their existence (order of the President of the Court of First Instance in Case T-12/93 R CCE Vittel and CE Pierval v Commission [1993] ECR II-785, paragraph 20).

54 In the present case it is common ground, as is apparent from paragraph 47 above, that the applicants are not exposed to a situation of that kind.

55 Since the condition regarding urgency is not met and the balance of interests favours not suspending operation of the contested decision, the present application must be dismissed without the need to consider the other arguments put forward by the applicants to justify grant of the relief sought.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim relief is dismissed.

2. Costs are reserved.