61988O0303

++++

Interim measures - Suspension of operation - Conditions - Serious and irreparable damage suffered by the applicant

( EEC Treaty, Art . 185; Rules of Procedure, Art . 83(2 ) )

According to settled case-law, the urgency of an application for the suspension of operation of a measure is to be assessed in relation to the necessity for an order granting provisional suspension in order to avoid serious and irreparable damage being suffered by the party seeking it and it is for that party to produce evidence that he cannot wait until the end of the main proceedings without personally suffering damage which would have serious and irreparable consequences for him .

Those conditions are not fulfilled in a case in which a Member State which is seeking the suspension of operation of a Commission decision adopted on the basis of the first subparagraph of Article 93(2 ) of the Treaty requiring it to recover aid from the undertakings which received it . Even if it is supposed that the initiation of a recovery procedure could endanger the existence of the said undertakings, the damage caused would be to the undertakings themselves and not to the applicant Member State and, secondly, if the Member State wished to raise the issue of damage to its national economy in general, it would have to show, which it has not done, how the disappearance of undertakings representing together 2.5% of national production in their sector could give rise to such damage .

Furthermore, even if the undertakings were relying on a risk of damage specific to themselves, they would have to show that that risk resulted from the recovery measures actually taken by the State authorities pursuant to the Commission decision and that the remedies available under national law against such measures did not enable them to avoid such damage .

In Case 303/88 R

Italian Republic, represented by Luigi Ferrari Bravo, Head of the Department for Contentious Diplomatic Affairs in the Ministry of Foreign Affairs, assisted by Ivo M . Braguglia, avvocato dello Stato, with an address for service in Luxembourg at the Italian Embassy, 15 rue Marie Adélaïde,

applicant,

v

Commission of the European Communities, represented by its Legal Adviser, Antonino Abate, acting as Agent, with an address for service in Luxembourg at the office of Georgios Kremlis, a member of its Legal Department, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the suspension of the operation of the Commission' s decision of 26 July 1988 on aid granted by the Italian Government to ENI-Lanerossi,

the President,

by way of interim decision,

( the grounds of the order are not reproduced )

hereby orders as follows :

( 1 ) The application for the adoption of interim measures is dismissed .

( 2 ) Costs are reserved .