Case C-232/02 P(R)

Commission of the European Communities

v

Technische Glaswerke Ilmenau GmbH

‛Appeal — Order of the President of the Court of First Instance in interlocutory proceedings — State aid — Obligation to recover aid — Suspension of operation’

Order of the President of the Court, 18 October 2002   I-8980

Summary of the Order

1. Applications for interim measures — Conditions of admissibility — Main application seeking annulment of a Commission decision ordering reimbursement of State aid — Existence of remedies in the national court against national enforcement measures — Irrelevant as far as the application for interim measures is concerned

   (Art. 242 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(1))

2. Applications for interim measures — Suspension of operation of a measure — Application for suspension of operation of a Commission decision ordering reimbursement of State aid for restructuring — Application of particularly strict criteria as regards a prima facie case — Excluded

   (Art. 242 EC; Rules of Procedure of the Court of Justice, Art. 83(2); Rules of Procedure of the Court of First Instance, Art. 104(2))

3. Appeals — Pleas in law — Mistaken assessment of the facts — Inadmissible — Review by the Court of justice of the assessment of the evidence — Excluded

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

1.  The fact that an undertaking in receipt of State aid recovery of which has been ordered by the Commission may seek a remedy in the national court against national measures enforcing that decision cannot lead to an amendment of the rule set out in Article 104(1) of the Rules of Procedure of the Court of First Instance, according to which the sole condition for an application to suspend the operation of a measure adopted by an institution to be admissible is that the applicant must be challenging that measure in proceedings before the Court of First Instance. Nor can it lead to a refusal to grant such an undertaking, which has in fact brought an action for annulment in the Court of First Instance against the Commission's decision, interim judicial protection before the Community judicature.

   (see paras 32-33)

2.  The application of particularly strict criteria for acknowledging, when an application for suspension of operation of a Commission decision ordering the recovery of State aid for restructuring is being examined, that there is a prima facie case, on the ground that the condition of urgency, because of the aid beneficiary's insolvency problems, is always satisfied, is not justified. The fact that an undertaking may become insolvent does not necessarily mean that the urgency must be accepted because, when assessing an undertaking's viability, the judge hearing the application for interim relief may assess its material circumstances by taking into consideration the characteristics of the group to which it is linked by way of its shareholders.

   Furthermore, although it is true that suspension of the operation of a decision ordering recovery of incompatible aid may prolong the adverse effects of that aid on competition, the fact remains, conversely, that the immediate implementation of such a decision will usually give rise to irreversible effects for the beneficiary undertaking, without its being possible a priori to exclude the possibility that continuance of the aid will finally be judged lawful owing to the defects which the aforementioned decision may contain.

   Lastly, an approach based on particularly strict criteria might reduce interim judicial protection to an excessive extent and limit the broad discretion which the judge hearing an application for interim relief must have in order to exercise the powers conferred on him.

   (see paras 54, 56, 58-59)

3.  Under Article 225 EC and Article 51, first paragraph, of the EC Statute of the Court of Justice, any appeal must be limited to points of law and must lie on the grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the applicant or infringement of Community law by the Court of First Instance. The Court of First Instance alone has jurisdiction to make findings of fact, except where the documents before it caused it to make a material error in so doing, and to assess the facts as so found.

   Furthermore, the Court of Justice does not in principle have jurisdiction to examine evidence which the Court of First Instance has accepted in support of its finding or assessment of the facts. Where the general principles of law and rules of procedure governing the burden of proof and the taking of evidence have been observed, it is for the Court of First Instance alone to assess the weight to be attributed to the evidence adduced before it.

   (see paras 66-67)