Orders nº T-410/09 R of The General Court, May 07, 2010

• Resolution Date: May 07, 2010
• Issuing Organization: The General Court
• Decision Number: T-410/09 R

In Case T‑410/09 R,

Almamet GmbH Handel mit Spänen und Pulvern aus Metall, established in Ainring (Germany), represented by S. Hautbourg and C. Renner, lawyers,

applicant,

v

European Commission, represented by N. Khan, V. Bottka and N. von Lingen, acting as Agents,

defendant,

APPLICATION for suspension of the operation of the Commission Decision of 22 July 2009 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

Facts

1 The applicant, Almamet GmbH Handel mit Spänen und Pulvern aus Metall, is a company established in Germany operating in the markets for calcium carbonide and magnesium granulates.

2 On 22 July 2009, the Commission adopted the Decision relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F-1/39.396 – Calcium carbide and magnesium based reagents for the steel and gas industries) (‘the contested decision’), in which it imposed a fine of EUR 3 040 000 on the applicant for its participation in a cartel.

3 By letter of 24 July 2009, the Commission notified the applicant of the contested decision. In that letter, the Commission also informed the applicant of the time-limit for payment of the fine of three months from the notification of the decision. In addition, it stated that, if the applicant decided to bring an action against that decision before the General Court, the Commission would recover the fine provisionally or require the provision of a bank guarantee covering the amount of the principal debt and the interest and accruals which would be due thereon.

4 On 14 August 2009, the applicant asked for a meeting with the staff of the Commission’s accounting officer in order to discuss the possibility of suspending payment of the fine, without having to provide a bank guarantee for the same sum. A meeting took place with staff of the Commission’s Directorate-General for Budget on 25 August 2009.

5 By a letter of 9 September 2009, the applicant sent the Commission information intended to demonstrate its inability to pay the fine imposed on it and asking if payment of the fine could be staggered. Following further requests from the Commission’s Directorate-General for Budget on 11 and 14 September 2009, the applicant sent the Commission several electronic messages supplementing the information provided in its letter of 9 September 2009. The applicant’s request for the suspension of payment of the fine was rejected on 16 October 2009.

6 On 27 October 2009, the applicant paid a sum of EUR 650 000 to the account specified by the Commission in the contested decision.

Procedure and forms of order sought by the parties

7 By application lodged at the Court Registry on 7 October 2009, the applicant brought an action for, in essence, annulment of the contested decision, and, in the alternative, reduction of the amount of the fine imposed upon it by the Commission.

8 By separate document lodged at the Court Registry on 6 November 2009, the applicant brought an application to obtain suspension of the operation of the contested decision. It claims, in essence, that the President of the Court should:

– suspend the operation of the contested decision, without requiring the applicant to provide a bank guarantee as a condition for suspending enforcement of the fine;

– order any other measure which is considered necessary;

– order the Commission to pay the costs.

9 By letter of 11 November 2009, the President of the Court put a number of questions to the parties.

10 On 13 November 2009, the parties lodged at the Court Registry their replies to the questions put by the President of the Court.

11 In its written observations on the application for interim measures, lodged at the Court Registry on 4 December 2009, the Commission contends, in essence, that the President of the Court should:

– dismiss the application for interim measures;

– order the applicant to pay the costs.

Law

12 It is clear from Articles 278 TFEU and 279 TFEU, in conjunction with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures.

13 Article 104(2) of the Rules of Procedure of the Court provides that an application for interim measures must state the subject‑matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, suspension of the operation of an act or other interim measures may be ordered if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as it must, in order to avoid serious and irreparable harm to the applicant’s interests, be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).

14 Furthermore, in the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, in the light of the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).

15 Having regard to the documents in the court file, the President of the Court considers that he has all the information needed in order to rule on the present application for interim measures and that it is not necessary first to hear oral argument from the parties.

Arguments of the parties

Prima facie case

16 The applicant alleges that the Commission, first, infringed the applicant’s rights of defence by using against it documents which were seized ‘outside the scope of the Commission’s inspection decision of 10 January 2007’ and, second, did not establish, to the requisite legal standard, the existence of the infringement found in Article 1 of the contested decision. In addition, the applicant alleges that the Commission made a manifest error of assessment regarding the single and continuous nature of the infringement.

17 The applicant adds that the Commission infringed, first, paragraphs 23 to 26 of the ‘Leniency Notice’ by refusing it a reduction of the fine pursuant thereto, secondly, Article 81 EC and Article 23(2) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), as well as paragraph 32 of the ‘Guidelines on the method of setting fines’ by fixing the final amount of the fine at a level greater than 10% of its turnover. Thirdly, it maintains that the Commission infringed the principle of proportionality by fixing the amount of the fine imposed at an excessive level. Finally, it claims that the Commission made a manifest error of assessment in considering that the conditions of paragraph 35 of the ‘Guidelines on the method of setting fines’ were not satisfied.

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