Keywords
Summary

Keywords

++++

Application for interim measures ° Suspension of operation of a measure ° Total or partial suspension of a decision conditionally authorizing a concentration between undertakings ° Conditions for granting ° Serious and irreparable harm ° Need to balance all the interests ° Interim measures justified by the risk of unnecessarily creating an irreversible situation

(EEC Treaty, Art. 185; Rules of Procedure of the Court of First Instance, Art. 104(2))

Summary

Where an application is made for the suspension of the operation of a Commission decision on concentrations of undertakings in so far as it requires the parties to the transaction to withdraw from a marketing company in which they are associated with other undertakings in the same sector, and that application is made by one of the latter, consideration of the lawfulness of the decision, inasmuch as it significantly affects the rights of third parties not involved in either the concentration or the proceedings before the Commission, raises such complex problems that the judge hearing the application for interim measures is not in a position to exclude a prima facie justification for the interim measures.

As regards the risk of serious and irreparable harm to the applicant, its existence cannot be denied if, in the first place, it appears from the information supplied to the court that the withdrawal required by the decision would entail in practice the dissolution of the company because the other shareholders have no real possibility of avoiding dissolution if the two shareholders involved in the concentration withdraw, and when, in the second place, the dissolution of a company undoubtedly constitutes serious and irreparable harm both to itself and to its shareholders. That is so, in particular, when the company affords those shareholders access to international markets where a significant proportion of their products are sold, so that the shareholders would find it difficult, if not impossible, to recover on those markets, were the decision to be annulled, the position they held prior to the dissolution of the company.

In view of that risk to the applicant' s interests, it must be considered when weighing up all the interests involved that the Commission' s interest in restoring effective competition on the market would not be compromised by a temporary suspension of the requirement at issue. Such suspension, moreover, is not capable of damaging the undertakings involved in the concentration, who are free either to withdraw from the company immediately or to await judgment in the main proceedings.