Case T-308/02

SGL Carbon AG

v

Commission of the European Communities

(Agreements – Fines – Rejection of request for facilities for payment – Application for annulment – Inadmissibility)

Order of the Court of First Instance (Second Chamber), 29 April 2004 

Summary of the Order

1.     Actions for annulment – Actionable measures – Definition – Measures producing binding legal effects – Letter sent by an institution

(Art. 230 EC)

2.     Actions for annulment – Action seeking annulment of a decision confirming an earlier decision not contested in good time – Inadmissible – Meaning of a ‘confirmatory’ decision – Decision adopted after reconsideration of an earlier decision and on the basis of new evidence – Not included

(Art. 230 EC)

3.     Competition – Fines – Facilities for payment – Replacement of proceedings for interim relief by an administrative procedure for review of the payment arrangements for a fine – Not permissible

1.     Only acts which produce binding legal effects capable of affecting an applicant’s interests by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC; in order to ascertain whether an act produces such effects, it is necessary to look to its substance. In this respect, not every letter sent by a Community institution in response to a request from the person to whom it is addressed is a decision within the meaning of Article 230 EC, against which an action for annulment may be brought.

(see paras 39-40)

2.     An action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings is inadmissible. A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed.

However, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply. In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision. The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive.

If a request for reconsideration of a decision which has become definitive is based on substantial new facts, the institution concerned is required to comply with the request and an action brought against a decision refusing to reconsider a decision in such circumstances must be declared admissible. On the other hand, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it will be declared inadmissible.

These considerations also apply in a case where the institution did not refuse the request for reconsideration but replied to the applicant’s request by means of the contested measure, stating, however, that this reply was not a decision, as it merely confirmed an earlier decision that had become definitive.

(see paras 51-55)

3.     An administrative procedure for review of a decision of the Commission concerning the payment arrangements for a fine is neither comparable nor equivalent to proceedings for interim relief. Whereas the court hearing applications for interim relief would examine both the urgency and the prima facie soundness of the action in the light of the main proceedings brought against the decision imposing the fine, in the administrative review procedure the Commission would have to confine itself to assessing the question of urgency and the financial situation of the applicant. If one were to permit proceedings for interim relief to be replaced by such an administrative procedure, it would be possible to circumvent the provisions on judicial proceedings for interim relief, under which the assessment may not be based solely on the financial aspects of the case.

With regard to Article 7 of the Internal procedure provisions relating to the recovery of fines and penalties by the Commission under the EEC Treaty, under which the competent member of the Commission can grant additional, possibly staged payment deadlines in response to an appropriately reasoned written request from the addressee, although this provision created an autonomous administrative procedure, it has its place in the context of the actual recovery of fines set by the Commission. Appropriate judicial protection in relation to the refusal to grant the facilities for payment provided for in Article 7 is therefore to be provided in the context of proceedings for interim relief (Article 242 EC) or proceedings to suspend enforcement (the fourth paragraph of Article 256 EC) of the decision imposing a fine.

(see paras 65, 67)

ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)

29 April 2004 (*)

(Agreements – Fines – Rejection of request for facilities for payment – Application for annulment – Inadmissibility)

In Case T-308/02,

SGL Carbon AG, established in Wiesbaden (Germany), represented by M. Klusmann, lawyer,

applicant,

v

Commission of the European Communities, represented by G. Wilms and W. Mölls, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for annulment of the Commission decision of 24 July 2002 in so far as it rejects the applicant’s request for facilities for the payment of the fine imposed in a proceeding pursuant to Article 81 EC (COMP/E-1/36.490 – graphite electrodes) and imposes default interest in excess of 6.04%,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of: J. Pirrung, President, A.W.H. Meij and N.J. Forwood, Judges,

Registrar: H. Jung,

makes the following

Order

 Facts

1       The applicant, a German producer of graphite electrodes, was ordered by means of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/36.490 – graphite electrodes) (OJ 2002 L 100, p. 1; hereinafter the ‘decision imposing the fine’) to pay a fine of EUR 80.2 million for an infringement of Article 81 EC.

2       Under Article 4 of the decision imposing the fine, the applicant was required to pay the fine within three months of the date of notification of the decision, which was 24 July 2001. After expiry of that period, in other words from 24 October 2001 onwards, interest would be payable at the interest rate applied by the European Central Bank (ECB) plus 3.5 percentage points, that is to say at a rate of 8.04%.

3       The decision imposing the fine was notified to the applicant by letter dated 23 July 2001 stating the amount of the fine and the payment conditions, in particular the interest rate of 8.04% payable if the payment deadline was exceeded. The letter also stated that after the expiry of the payment period the Commission would take steps to recover the amount in question; if the applicant brought an action before the Court of First Instance, however, enforcement measures would not be taken, provided that the applicant undertook to pay interest at a rate of 6.04% and to provide a bank guarantee.

4       On 2 October 2001 the applicant brought an action before the Court of First Instance seeking annulment of the decision imposing the fine (Case T‑239/01). In that action it challenged, inter alia, the lawfulness of the interest rate of 8.04% set in Article 4 of the decision and of the more favourable interest rate of 6.04% set in the accompanying letter of 23 July 2001.

5       By letter dated 24 October 2001, the applicant asked the Commission to grant it facilities for payment. In that connection it claimed that, in view of its catastrophic economic and financial situation, enforcement of the decision imposing the fine would jeopardise the actual existence of the undertaking. It added that even if it were able to obtain several bank guarantees the implementation of those guarantees would deprive the undertaking of the credit lines needed to maintain its day-to-day business. It claimed that from an economic point of view it could not afford a loss of liquidity on the scale of the bank guarantees demanded. It therefore formally and expressly asked the Commission to forgo the provision of securities in full or in the alternative in part until the Court of First Instance had delivered a final decision on the main application. If the Commission refused this request, it would apply to the Court of First Instance for an interim order granting it the relevant facilities for payment, and hoped that in the mean time the Commission would refrain from enforcing the decision imposing the fine.

6       In its reply of 26 October 2001, the Commission informed the applicant that it would examine its request on 15 November 2001. On 5 November 2001 the applicant reiterated its expectation that no enforcement measures would be taken until 15 November and added that it would take no legal action until a decision on its request had been reached.

7       By letter dated 20 February 2002, the applicant notified the Commission, which up to that time had still not decided on its request, that its financial situation had deteriorated further. It asked for a meeting in order to explain the situation orally.

8       On 15 March 2002 the applicant sent to the Commission, at the latter’s request, a number of documents concerning its economic situation, in particular the latest management report for the 2001 financial year in German.

9       On the basis of a report in a German newspaper on 14 March 2002 that the applicant had overcome its economic and financial crisis, the Commission again asked it for information in this regard. In reply, on 30 April 2002 the applicant sent it the English version of its annual management report for the 2001 financial year and on 3 July 2002, after further telephone contacts, form 20‑F, which it had submitted to the United States Securities and Exchange Commission on 1 July 2002.

10     Subsequently, the Commission’s accountant, Mr Taverne, refused facilities for payment in a letter dated 24 July 2002 (hereinafter ‘the contested letter’), which the applicant received on 5 August 2002. After describing the various contacts between the applicant and the Commission, he wrote that the applicant’s balance sheet at 31 December 2001 and its report on form 20‑F, although they contained a number of points that gave rise to concern, did not give grounds for assuming that the company – in conjunction with its known principal shareholders and its banks – was not in a position to provide bank guarantees without having adverse effects on its future business. He stated that there was therefore no reason to derogate from the relevant rules and that consequently the applicant was obliged to comply with the payment conditions set out in the letter of 23 July 2001 and to pay interest on the fine at an annual rate of 8.04% from 24 October 2001 until the date on which the Commission received a bank guarantee; the rate of 6.04% applied only from that date onwards.

11     With regard to the setting of the interest rate, during the present proceedings before the Court of First Instance the Commission referred to the internal procedure provisions relating to the recovery of fines and penalties by the Commission under the EEC Treaty of 29 October 1986 (SEC(86) 1748; hereinafter ‘the recovery provisions’).

12     Under Article 6 of the recovery provisions, no recovery measures are taken while a case is pending before the Court of Justice provided that the addressee of the decision has agreed that his debt will bear interest after expiry of the payment period and has provided the Commission with a bank guarantee. If by the end of the payment period no payment has been made and no bank guarantee has been provided, the amount of the fine will automatically bear interest. The interest rate corresponds to that applied by the European Monetary Cooperation Fund plus 3.5 percentage points.

13     Under Article 7 of the recovery provisions, the competent member of the Commission, acting in conjunction with the member of the Commission responsible for the budget, is authorised, in response to an appropriately reasoned written request from the addressee of the decision, to grant additional, possibly staged payment deadlines, provided the applicant has agreed that from the end of the payment period until complete payment has been effected his debt will bear interest at an interest rate corresponding to that applied by the European Monetary Cooperation Fund plus 1.5 percentage points and on condition that he has provided a bank guarantee.

14     Article 8 of the recovery provisions, which relates to the enforcement procedure, provides that all payment arrangement requests made in the course of the enforcement procedure will be examined in accordance with Article 7.

15     After receiving the contested letter, the applicant sent the Commission by letter dated 29 August 2002 three bank guarantees to cover the fine of EUR 80.2 million plus interest at a rate of 6.04% from 24 October 2001 to the date of actual payment of the fine. The guarantees were dated 11, 12 and 22 October 2001. In this connection, the applicant explained that these were bank guarantees which it had obtained as a precaution before the expiry of the payment period specified in the decision imposing the fine but which at that time had not been validated; validation had not taken place until August 2002.

 Procedure and forms of order sought by the parties

16     By application lodged at the Registry of the Court of First Instance on 7 October 2002, the applicant brought the present action.

17     The applicant claims that the Court should:

–       annul the decision of 24 July 2002 in so far as it refuses to grant facilities for making payments;

–       annul that decision in so far as the default interest required by the decision for the period from 24 October 2001 to the date of receipt of the declaration of guarantee is set at a rate in excess of 6.04%;

–       in the alternative, reduce as appropriate the default interest laid down in the decision;

–       order the Commission to pay the costs.

18     The Commission contends that the Court should:

–       dismiss the action as inadmissible or, in the alternative, as unfounded;

–       order the applicant to pay the costs.

19     The applicant advances several pleas in support of its action. It claims that the Commission failed to state adequate grounds in the contested letter, committed errors in assessing its ability to pay and discriminated against it by comparison with the American company UCAR, which was also the subject of a penalty in the decision imposing the fine, since that company’s requests for facilities for payment were not refused, even though UCAR provided no bank guarantee to cover its fine.

20     In addition, the applicant asserts that the Commission set unlawful default interest, since both the rate of 8.04% and that of 6.04% were excessive. Furthermore, according to the applicant, during the long negotiations on the question of facilities for payment the Commission disregarded its own conduct, by which it granted de facto a stay of payment. Lastly, in the alternative, the applicant claims that the default interest should at least be greatly reduced because of the exceptionally long duration of the proceeding prior to dispatch of the contested letter.

 Admissibility

21     Under Article 113 of the Rules of Procedure, the Court, giving its decision in accordance with Article 114(3) and (4) of the Rules of Procedure, may at any time, even of its own motion, consider whether there exists any absolute bar to proceeding with an action, including, in accordance with settled case-law, the conditions governing the admissibility of an action which are laid down in the fourth paragraph of Article 230 EC (order of the Court of First Instance in Case T‑372/02 Internationaler Hilfsfonds v Commission [2003] ECR II‑4389, paragraph 33, and the case-law cited there).

22     In the present case, the Court of First Instance considers the information contained in the documents of the case to be adequate and has therefore decided to give its decision without opening the oral procedure.

 Arguments of the parties

23     According to the applicant, the contested letter was not merely a confirmation of the decision imposing the fine of 18 July 2001 and of the accompanying letter of 23 July 2001 but contains factual and legal material capable of producing binding legal effects such as to harm its interests by bringing about a substantial change in its legal situation.

24     In the applicant’s view, the contested letter contains two distinct normative elements that go further than the content of the decision imposing the fine. First, at a time well after 18 July 2001 it again refuses to grant any facilities for payment on the basis of a fresh examination of the facts. Secondly, according to the applicant, the demands as to interest payments are strengthened and go beyond the basic demands set out in the decision imposing the fine.

25     The applicant asserts that despite the provision of bank guarantees the Commission then demanded interest at a rate of 8.04% instead of the rate of 6.04% originally laid down for this situation. Since this new rate was set at the end of a separate and new decision-making process almost one year after the adoption of the decision imposing the fine, it constitutes a separate normative element. Hence, the Commission re-examined the substance in its entirety. The further deterioration in the applicant’s financial situation and ability to pay also allegedly constitutes a new fact by comparison with the situation at the time of adoption of the decision imposing the fine.

26     According to the applicant, by comparison with the decision imposing the fine, the contested letter therefore adversely affects the applicant in that it demands the payment of default interest at a rate of 8.04% from 24 October 2001 until the date of receipt of the guarantee declaration in August 2002, despite the fact that the Commission had agreed with the applicant that it would take no measures to recover the fine or securities in lieu thereof until a decision had been reached on the request for facilities for payment.

27     With regard to the rejection of its request to be exempted from providing a bank guarantee, the applicant disputes the Commission’s argument that it was not obliged to examine the possible grant of facilities for payment after the adoption of the decision imposing the fine. It points out that the Commission did indeed consider that its ability to pay and its solvency were to be examined carefully. An inherent element in the Commission’s power to grant facilities for payment is, according to the applicant, the possibility of examining the grant of such facilities in the course of an organised administration procedure.

28     According to the applicant, the purpose of the present proceedings is not to determine whether the Commission was obliged to examine the applicant’s ability to pay and to decide on granting facilities for payment but solely to clarify whether, given that the Commission actually carried out such an examination, the decision adopted was lawful. In the applicant’s view, where the Commission acts it must ensure that its actions comply with legal rules both during the procedure and when the decision is adopted. The applicant contends that this did not occur in the present case.

29     According to the applicant, it is remarkable that the Commission claims that it had no need to review the interest rate because the applicant had not contested it. The applicant points out that as early as 2 October 2001 it had brought an action against the lawfulness of the interest rate, inter alia. Furthermore, its request for facilities for payment, which was aimed at obtaining suspension of the enforcement of the decision imposing the fine and release from the obligation to provide guarantees, also included a request to examine the lawfulness of the basic findings. Ultimately, the lawfulness of the interest rates set by the Commission does not depend on whether the level set is contested by the addressees of the decision. Rather, according to the applicant, the Commission must of its own motion examine the lawfulness of its acts adversely affecting a person and always eliminate any unlawful aspects.

30     In the applicant’s view, the claim that it could and should have brought an action for interim relief is wrong. That claim appears cynical, since in accordance with the strict requirements of the case-law of the Court of First Instance the judicial suspension of execution of a Commission decision is possible only if an undertaking is proved to be close to insolvency. It is not reasonable to expect an undertaking in economic difficulties to shoulder the heavy cost of preparing such judicial proceedings. In addition, the negative publicity that would inevitably accompany the bringing of judicial proceedings by an undertaking on the brink of insolvency would be unbearable for such an undertaking, as it would be bound to have an adverse impact on the financial market, particularly for listed joint stock companies such as the applicant.

31     Finally, contrary to the assertions of the Commission, the applicant contends that the court hearing the application for interim relief is not the only body competent to decide on an undertaking’s chances of economic survival in the light of the penalties imposed on it by the Commission. It is not in any case competent to rule on the implementation of administrative decisions. In the applicant’s view, to transfer competence for the administration’s discretionary decisions to a judicial body contravenes the principle of the rule of law.

32     The Commission considers that the claim for annulment must be rejected as inadmissible in so far as it relates to the part of the contested letter refusing to release the applicant from the requirement to provide a bank guarantee. The Commission asserts that its statement in that part of the contested letter does not affect the applicant’s legal situation, as the relevant provisions give no legal protection to the interest of the Commission’s debtors to be released from the requirement to provide a guarantee, as under Community law there is no procedure under which the parties concerned can apply for such release.

33     According to the Commission, that does not prevent the Commission from dispensing with the requirement for a bank guarantee in individual cases, as it has a degree of discretion to take account of any overriding public interest in granting such an exception. An overriding public interest could exist, for example, if in the particular circumstances of a specific case waiving the requirement for a guarantee gave a better prospect of actually recovering the fine than if a guarantee were required. The Commission states, however, that its power to grant such a waiver does not give the debtor undertaking a subjective, legally enforceable right to oblige the Commission to act in its interest. Furthermore, the mere fact that the Commission exercised its discretion to examine the present case cannot in any way be interpreted as recognition of any subjective right to that effect.

34     According to the Commission, the applicant’s situation is comparable to that of an individual asking the Commission to take action against a Member State under Article 226 EC. In those circumstances as well, the Commission exercises its power solely in the public interest; individuals have no legally protected interest in the Commission’s taking action. Their legal position is therefore not affected if the Commission rejects their request.

35     According to the Commission, this does not leave the applicant entirely deprived of rights. It can apply to the court hearing applications for interim relief for release from the requirement to provide a bank guarantee. In that case, the court examines in detail whether, in that exceptional case, the applicant’s interest in such a release outweighs the public interest in the provision of a bank guarantee. In making that assessment, the court considers in particular whether the action in the main proceedings appears likely to succeed (prima facie case).

36     According to the Commission, the balance between the specific interests of the debtors of a fine and the Commission’s interest in the implementation of its competition policy and in the collection of its financial claims requires that legal protection relating to the decision imposing a fine be ensured by the possibility of bringing an action for annulment, while legal protection relating to enforcement of the fine while the main proceedings are pending is entrusted to the court hearing applications for interim relief.

37     The Commission maintains that the claim regarding the level of default interest owed by the applicant is inadmissible, as the contested letter merely reiterates the rules set out in Article 4 of the decision imposing the fine and reproduced in the accompanying letter of 23 July 2001. In the Commission’s opinion, the contested letter therefore has no normative content in that regard. As the applicant did not object to the interest rate at any time during the proceedings in question, there was no reason for the Commission to review it.

38     Contrary to the assertions of the applicant, the Commission considers that it is not obliged to carry out a comprehensive examination of the lawfulness of decisions imposing fines in response to a request relating expressly and solely to the grant of facilities for payment. According to the Commission, in its request of 24 October 2001, the applicant expressly requested only release from the requirement to provide bank guarantees. If the Commission were required systematically and of its own motion to carry out the examination proposed by the applicant, that would have the effect of challenging the finality of administrative decisions which have not been contested within the time‑limits, because the Commission would constantly have to review all its decisions.

 Findings of the Court

 The nature of the contested letter as a decision with regard to the level of default interest

39     In so far as the applicant seeks the annulment of the contested letter in that the Commission refused therein to reduce the excessive level of default interest, it must be pointed out that only acts which produce binding legal effects capable of affecting an applicant’s interests by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC; in order to ascertain whether an act produces such effects, it is necessary to look to its substance (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9).

40     Furthermore, not every letter sent by a Community institution in response to a request from the person to whom it is addressed is a decision within the meaning of Article 230 EC, against which an action for annulment may be brought (Case T‑277/94 AITEC v Commission [1996] ECR II‑351, paragraph 50, and order of the Court of First Instance in Case T‑5/96 Sveriges Betodlares and Henrikson v Commission [1996] ECR II‑1299, paragraph 26).

41     In the present case, the purpose of the applicant’s initial request of 24 October 2001 and its subsequent exchange of correspondence with the Commission was not in any way to challenge the rates of default interest set in the decision imposing the fine (8.04%) and in the accompanying letter of 23 July 2001 (6.04% subject to certain conditions). The economic and financial documents submitted by the applicant were sent to the Commission solely to persuade it to waive the requirement to provide a bank guarantee. Moreover, the question of the lawfulness of the default interest – both the normal rate of 8.04% and the more favourable rate of 6.04% – is already the subject of the proceedings between the parties registered under number T‑239/01.

42     In those circumstances, the contested letter cannot be interpreted as meaning that the Commission, on the basis of new facts, rejected a request for a reduction in the default interest. In the contested letter, it merely stated that there were no grounds for derogating from the rules in force since the applicant was able to provide bank guarantees without adverse effects on its future business. The Commission mentioned the interest rates of 8.04% and 6.04% only in reference to the applicant’s obligation to comply with the payment conditions mentioned in the accompanying letter of 23 July 2001 notifying the decision imposing the fine. In particular, in view of the wording of the contested letter it cannot be concluded that the Commission examined the lawfulness of those interest rates of its own motion.

43     Consequently, the contested letter does not constitute a decision regarding the setting of the rate of default interest.

44     With regard to the period for application of the more favourable interest rate of 6.04%, the applicant claims that for the period from 24 October 2001, the expiry date of the payment period, until the transmission of the three bank guarantees at the end of August 2002 (see paragraph 15 above), the Commission replaced this rate by the normal interest rate of 8.04%, even though it was thus in possession of securities that would have had the same effect as if the Commission had already received them in October 2001. The applicant therefore seeks the application of the more favourable interest rate of 6.04% as from 24 October 2001.

45     In this regard, it must be pointed out, however, that the bank guarantees mentioned by the applicant were not sent to the Commission until the end of August 2002, that is to say after the contested letter had been dispatched. Hence, in that letter the Commission cannot have made a determination regarding the transmission of the guarantees in question and therefore the legal effect of such transmission on the level of default interest. The contested letter could therefore not harm the applicant in this respect.

46     Although the contested letter informs the applicant that it is obliged to pay interest on the fine at a rate of 8.04% from 24 October 2001 until the date on which a bank guarantee is received by the Commission and at a rate of 6.04% thereafter, it merely reiterates in general and abstract terms the payment conditions laid down in Article 4 of the decision imposing the fine and in the accompanying letter of 23 July 2001. In particular, it does not state whether the submission of bank guarantees after expiry of the payment period is likely to have retroactive effects on the level of default interest. The contested letter was therefore not a decision in that regard.

47     As regards the subsidiary head of claim in which the applicant asks the Court to reduce the default interest set by the Commission, it is sufficient to note that it relates to only one of the methods of implementing the decision imposing the fine. The reduction applied for could therefore have been obtained only in the context of proceedings for interim measures under Article 243 EC and Article 104 of the Rules of Procedure of the Court of First Instance. However, the applicant has not brought such an action. In the context of the present action for annulment, this claim must in any case be declared to be inadmissible.

48     It follows that the action must be dismissed as inadmissible in so far as it relates to the default interest set in the decision imposing the fine and in the accompanying letter of 23 July 2001.

 The nature of the contested letter as a decision with regard to the refusal to grant facilities for payment

49     As regards the applicant’s objection to the Commission’s refusal in the contested letter to waive the provision of a bank guarantee, it must be stated that the requirement for such a guarantee and the payment terms linked to its provision were already set out in the accompanying letter of 23 July 2001, even though the applicant had drawn its very difficult financial situation to the Commission’s attention during the administrative proceedings before the adoption of the decision imposing the fine. In those circumstances, the Commission’s demand that the applicant provide a bank guarantee if it wished to prevent recovery of the fine must be regarded as producing binding legal effects capable of affecting the applicant’s interests by causing a distinct change in its legal situation (see, to that effect, IBM v Commission, paragraph 9).

50     As the requirement to provide a bank guarantee contained in the letter of 23 July 2001 was not challenged within the time-limit laid down in the fifth paragraph of Article 230 EC, it has become definitive as against the applicant (see, to that effect, Case T‑186/98 Inpesca v Commission [2001] ECR II‑557 (‘Inpesca’), paragraph 40, and the case-law cited there).

51     According to settled case-law, an action for the annulment of a decision which merely confirms a previous decision not contested within the time-limit for initiating proceedings is inadmissible. A measure is regarded as merely confirmatory of a previous decision if it contains no new factor as compared with the previous measure and was not preceded by a re-examination of the circumstances of the person to whom that measure was addressed (Inpesca, paragraph 44, and the case-law cited there).

52     However, the confirmatory or other nature of a measure cannot be determined solely with reference to its content as compared with that of the previous decision which it confirms. The nature of the contested measure must also be appraised in the light of the nature of the request to which it constitutes a reply (Inpesca, paragraph 45, and the case-law cited there).

53     In particular, if the measure constitutes the reply to a request in which substantial new facts are relied on, and whereby the administration is requested to reconsider its previous decision, that measure cannot be regarded as merely confirmatory in nature, since it constitutes a decision taken on the basis of those facts and thus contains a new factor as compared with the previous decision (Inpesca, paragraph 46). The existence of substantial new facts may justify the submission of a request for reconsideration of a previous decision which has become definitive (see, inter alia, Joined Cases 42/59 and 49/59 Snupat v High Authority [1961] ECR 53, Case 127/84 Esly v Commission [1985] ECR 1437, paragraph 10, and Case T‑58/89 Williams v Court of Auditors [1991] ECR II‑77, paragraph 24, and order of the Court of First Instance in Case T‑16/97 Chauvin v Commission [1997] ECR‑SC I‑A‑237 and II‑681, paragraph 37).

54     On the basis of that case-law, the Court ruled in Inpesca (paragraphs 48 and 49 and the case-law cited there) that if a request for reconsideration of a decision which has become definitive is based on substantial new facts, the institution concerned is required to comply with the request and that an action brought against a decision refusing to reconsider a decision in such circumstances must be declared admissible. On the other hand, if the request for reconsideration is not based on substantial new facts, an action against the decision refusing to reconsider it will be declared inadmissible.

55     These considerations also apply in the present case: the Commission did not refuse the request for reconsideration but replied to the applicant’s request by means of the contested letter; however, it stated that this reply was not a decision, as it merely confirmed an earlier decision that had become definitive, namely the accompanying letter of 23 July 2001.

56     The admissibility of this part of the action therefore depends on whether the factors adduced by the applicant in support of its request for reconsideration actually constitute ‘substantial new facts’.

57     In this regard, it is a fact that the information furnished by the applicant on the further deterioration in its financial situation was new, as this deterioration occurred after the dispatch of the accompanying letter of 23 July 2001 and neither the applicant nor the Commission could have had prior knowledge of it (see, to that effect, Inpesca, paragraph 50, and the case-law cited there).

58     The information in question is substantial if it is capable of substantially altering the applicant’s legal situation from that which prevailed when the earlier decision which has become definitive was adopted, that is to say in the present case on 23 July 2001 (see, to that effect, Inpesca, paragraph 51, and the case-law cited there).

59     Hence, it must be pointed out first that in the context of Case T‑239/01 the applicant expressly refrained from applying for interim relief under Article 104 of the Rules of Procedure in relation to the decision imposing the fine. In its request for reconsideration made on 24 October 2001, it announced first that it would initiate proceedings for interim relief if that request were refused and, second, asked the Commission not to enforce the decision imposing the fine until it had ruled on its request for reconsideration. The applicant repeated these two points in its letter of 5 November 2001. Before the Court it expressly stated that the costly preparation of proceedings for interim relief was too much to expect of an undertaking in economic difficulties such as it was facing.

60     Moreover, it is common ground that when the request for reconsideration was submitted, when the contested letter was dispatched and even when the present action was lodged the Commission had neither taken steps to recover the fine imposed on the applicant nor brought proceedings to enforce the decision imposing the fine pursuant to Article 256 EC and Articles 104 to 110 of the Rules of Procedure.

61     In those circumstances, the request, which the applicant submitted outside the ambit of proceedings for interim relief and in which the Commission is asked to grant it facilities for payment in the light of the deterioration of its financial situation, is to be regarded as premature, as at the various dates mentioned above the Commission could not have known what the financial situation of the applicant would be at the time of any recovery or enforcement (see, to that effect, Joined Cases 100/80 to 103/80 Musique Diffusion Française and Others v Commission [1983] ECR 1825, paragraph 135). As the applicant did not lodge an application for interim relief in view of imminent recovery measures, the Court has no need to decide, in the context of other proceedings, whether the weighing of the interests involved precludes the application of the payment conditions contested by the applicant, on the ground that the undertaking’s existence would otherwise be endangered, before delivery of the judgment in the main proceedings, which will rule on the lawfulness of the fine imposed on the applicant.

62     It must be added that in the decision imposing the fine (see recitals 184 and 185) the Commission has already refused to take account of the argument that the imposition of a fine could drive the applicant into insolvency. This approach is consistent with established case-law, according to which the Commission is not obliged to take account of an undertaking’s loss-making financial situation when determining the fine which it intends to impose (Joined Cases 96/82 to 102/82, 104/82, 105/82, 108/82 and 110/82 IAZ and Others v Commission [1983] ECR 3369, paragraph 55, Case T‑141/94 Thyssen Stahl v Commission [1999] ECR II‑347, paragraph 630, and Case T‑175/95 BASF v Commission [1999] ECR II‑1581, paragraph 158). Furthermore, the fact that a measure taken by a Community authority leads to the insolvency or dissolution of a particular undertaking is as such not prohibited under Community law, as the dissolution of an undertaking in its existing legal form does not mean that the human, tangible and intangible resources represented by the undertaking also lose their value (see, to that effect, Case 52/84 Commission v Belgium [1986] ECR 89, paragraph 14, and Case C‑499/99 Commission v Spain [2002] ECR I‑6031, paragraph 38).

63     Consequently, the financial information presented by the applicant to justify its request for reconsideration could not affect its legal situation as it was on 23 July 2001. As no provision of Community law obliges the Commission routinely of its own motion to examine the financial situation of its debtors, this information cannot be described as substantial in the present procedural context.

64     None of the arguments put forward by the applicant in this connection can be accepted.

65     In so far as the applicant wishes to replace judicial proceedings for interim relief by the administrative review procedure that it has chosen in the present case, it is sufficient to note that such an administrative procedure is neither comparable nor equivalent to proceedings for interim relief. Whereas the court hearing applications for interim relief would, in the present context, examine both the urgency and the prima facie soundness of the action in the light of the main proceedings brought against the decision imposing the fine, in the administrative procedure sought by the applicant the Commission would have to confine itself to assessing the question of urgency and the financial situation of the applicant. If one were to permit proceedings for interim relief to be replaced by such an administrative procedure, it would be possible to circumvent the provisions on judicial proceedings for interim relief, under which the assessment may not be based solely on the financial aspects of the case.

66     With regard to the applicant’s fears about the consequences of the disclosure of its poor financial situation if an application for interim measures were made, which disclosure would, in its view, be inevitable, it is sufficient to point out that Article 17(4) of the instructions to the Registrar of the Court of First Instance permits confidential data to be omitted from publications relating to cases pending before the Court. Moreover, those fears did not prevent the applicant from bringing the present action, despite the publications associated with it.

67     With regard to Article 7 of the recovery provisions, under which the competent member of the Commission can grant additional, possibly staged payment deadlines in response to an appropriately reasoned written request from the addressee (see paragraphs 11 to 14 above), it has to be stated that, although this provision created an autonomous administrative procedure, it has its place in the context of the actual recovery of fines set by the Commission. Appropriate judicial protection in relation to the refusal to grant the facilities for payment provided for in Article 7 is therefore to be provided in the context of proceedings for interim relief (Article 242 EC) or proceedings to suspend enforcement (the fourth paragraph of Article 256 EC) of the decision imposing a fine.

68     With regard to the infringement of the principle of equal treatment which the applicant also claims, in that the American company UCAR was granted facilities for payment that were denied to the applicant, it should be noted that this alleged discrimination against the applicant could have produced no effect before the dispatch of the contested letter, because the Commission had not yet recovered or enforced the fine imposed on the applicant. It is therefore sufficient that, if it considers it has grounds, the applicant can make its claim of discrimination by comparison with UCAR in subsequent proceedings, which, if it so wishes, it can bring at the appropriate time against the recovery or enforcement measures actually taken against it.

69     In any event, this complaint has no factual basis. In August 2001 the Commission had already refused a request from UCAR for waiver of the obligation to provide a bank guarantee. Furthermore, under its new name of GrafTech International Ltd, UCAR brought an action on 26 September 2003 for suspension of the enforcement of the decision by which the Commission had imposed a fine on it with a view to obtaining facilities for payment (Case T‑246/01 R).

70     Hence, the applicant has not demonstrated the existence of substantial facts that should have obliged the Commission to re-examine its accompanying letter of 23 July 2001 and to adopt a new decision that could be challenged by means of a separate action for annulment.

71     Consequently, the application must also be dismissed as inadmissible in so far as it relates to the refusal expressed in the contested letter to grant the facilities for payment sought by the applicant.

72     That conclusion is not contradicted by the fact that in the contested letter the Commission dealt with the substance of the new but not substantial factors presented in the request for facilities for payment. This treatment of the applicant’s request may be viewed as a sign of courtesy, but it cannot justify a derogation from the binding conditions for the admissibility of an action or deprive the Commission of the power to raise an objection of inadmissibility in the judicial proceedings. Still less does it release the Court from its duty to examine the abovementioned conditions of admissibility (see, by analogy, the settled case-law on Community officials, especially Case 227/83 Moussis v Commission [1984] ECR 3133, paragraph 13, and Case T‑257/97 Herold v Commission [1999] ECR‑SC I‑A‑49 and II‑251, paragraph 43).

73     Consequently, the action as a whole must be dismissed as inadmissible.

 Costs

74     Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful and the Commission has applied for costs, the applicant must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby orders:

1.      The action is dismissed as inadmissible.

2.      The applicant shall bear its own costs and pay those incurred by the Commission.

Luxembourg,  29 April 2004.

H. Jung

J. Pirrung

Registrar

President

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* Language of the case: German.