Keywords
Summary

Keywords

1. Appeals Grounds Mistaken assessment of the facts Inadmissible

(Art. 225 EC; EC Statute of the Court of Justice, Art. 51)

2. Applications for interim measures Suspension of operation of a measure Suspension of the obligation to provide a bank guarantee as a condition for non-enforcement of the right to immediate payment of a fine Conditions for granting Serious and irreparable damage Consideration of the objective interests of an association of undertakings in its survival independently of the interests of its members Interests of the association not independent of those of its members Excluded

(Art. 242 EC)

Summary

1. The findings of the judge hearing an application for interim measures as to the binding character of the decisions of an association of undertakings with regard to its members cannot be challenged on appeal. Under Article 225 EC and Article 51 of the EC Statute of the Court of Justice, an appeal is to be limited to points of law and lies on grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellant or the infringement of Community law by the Court of First Instance.

( see paras 38, 45 )

2. Where a dispute concerns an infringement of the competition rules brought about by the decision of an association of undertakings and where, in that context, it is found that the objective interests of the association are not independent of those of its member undertakings, the interest which the association has in surviving cannot be assessed by the judge hearing an application for suspension of the operation of a Commission decision imposing a fine on that association independently of the interest of those undertakings.

To hold otherwise would, in practice, result in systematically granting suspension of operation to any association of undertakings which brings proceedings for annulment of a Commission decision imposing a fine on it calculated by reference to the combined turnover of its member undertakings.

Such an approach cannot be endorsed, in particular in the very specific context of an application for exemption from the obligation to provide a bank guarantee as a condition of the Commission's not immediately recovering a fine imposed by it. Such an application will only be granted in exceptional circumstances.

Moreover, a mere unilateral refusal on the part of the members of that association of undertakings cannot suffice to preclude the members' financial situation from being taken into account. The extent of the alleged harm cannot depend on the unilateral intention of the members of the association which seeks suspension where the interests of the association and those of its members are merged.

( see paras 42-44, 46 )