Avis juridique important

Order of the President of the Court of First Instance of 7 July 1998. - Van den Bergh Foods Ltd v Commission of the European Communities. - Competition - Interlocutory proceedings - Intervention - Confidentiality - Suspension of execution. - Case T-65/98 R. European Court reports 1998 Page II-02641

Summary

Applications for interim measures - Suspension of operation of a measure - Suspension of a decision in the field of competition - Conditions for granting - Prima facie case - Serious and irreparable damage - Balance of interests - Effect of a discrepancy in the application of the competition rules as between the national courts and the Commission

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

The urgency of an application for suspension must be assessed in relation to the necessity to give an interim judgment in order to prevent serious and irreparable damage being occasioned to the party seeking suspension. In that regard, it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability.

Where the Commission has adopted a decision in which an exclusivity requirement contained in distribution agreements is held to constitute an infringement of the competition rules in the Treaty, any changes to the distribution system as a result of the revocation of the exclusivity requirement entailed by immediate execution of that decision are serious and irreparable, where the products are of a predominantly seasonal nature, inasmuch as competitors will make every effort to sell their products through outlets which had previously been less readily accessible. In such a situation, if the decision in question were to be annulled, the financial losses would be extremely difficult to quantify for the purposes of making reparation, in the light of unpredictable variations in sales of such products and, moreover, there are serious grounds for believing that the market developments to which immediate execution of the decision is likely to give rise would be very difficult, if not impossible, to reverse subsequently if the application in the main action were to be upheld.

Account must also be taken, when examining the application for suspension, of the fact that the question whether the same exclusivity requirement is lawful under the competition rules in the Treaty has also been raised in the national courts and that there is, prima facie, a contradiction between the views of the Commission and those of the national courts in the application of those rules.

Where the requirement relating to a prima facie case is met, the balance of interests inclines in favour of suspending execution of the decision in question where its immediate execution would entail the danger not only of causing the applicant serious and irreparable damage but also of furthering a situation of legal uncertainty as a result of a contradiction between the views of the Commission and those of the national courts in their application of the Treaty provisions.