Avis juridique important

Order of the President of the Court of 14 December 1999. - HFB Holding für Fernwärmetechnik Beteiligungsgesellschaft mbH & Co. KG and Others v Commission of the European Communities. - Appeal - Order of the President of the Court of First Instance in proceedings for interim relief - Competition - Payment of the fine - Bank guarantee. - Case C-335/99 P (R). European Court reports 1999 Page I-08705

Summary

1 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 - Exceptional circumstances

(Art. 242 EC)

2 Applications for interim measures - Suspension of operation of a measure - Conditions for granting - Serious and irreparable damage - Risk that the undertaking might have to apply for insolvency proceedings to be commenced - Assessment on a case-by-case basis

(Art. 242 EC)

3 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 - Account taken of the financial situation of the group to which the undertaking belongs

(Art. 242 EC)

4 Applications for interim measures - Suspension of operation of a measure - Interim measures - Conditions for granting - Serious and irreparable damage - Standard of proof

(Art. 242 EC)

1 An application seeking waiver of the obligation to provide a bank guarantee as a condition for postponing recovery of a fine imposed by the Commission may be granted only in exceptional circumstances.

In the context of applications for interim relief, express provision is made in the Rules of Procedure of both the Court of Justice and the Court of First Instance for requiring security to be lodged, consistent with the general policy of the Commission which has been found to be reasonable.

2 In the context of the assessment of an application for interim relief, a situation in which an undertaking is compelled to seek liquidation may constitute serious and irreparable damage, since the very existence of the undertaking would thereby be placed in jeopardy, and given the serious consequences to which such proceedings give rise, hindering normal operations. Such an assessment must be carried out on a case-by-case basis, having regard to the facts of each case and the legal issues involved.

3 In order to assess whether an undertaking is in a position to provide a bank guarantee, regard must be had to the group of undertakings to which it belongs and, in particular, to the resources available to that group as a whole.

That approach is based on the idea that the objective interests of the undertaking concerned are not wholly distinct from those of the natural or legal persons which control it and that the serious and irreparable nature of the damage alleged must therefore be appraised at the level of the group comprising those persons. In particular, the fact that interests thus overlap is justification for not assessing the undertaking's interest in its own survival separately from the controlling group's interest in seeing it survive.

In that connection no importance is to be attributed to the fact that the person who controls the undertakings by virtue of being their principal owner is a natural person who is not himself an undertaking.

4 Although in order to establish the existence of serious and irreparable damage it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the applicants are required to prove the facts forming the basis of their claim that serious and irreparable damage is likely.