Orders nº T-11/06 of Court of First Instance of the European Communities, July 13, 2006

• Resolution Date: July 13, 2006
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-11/06

(Application for interim measures – Application for suspension of operation – Competition – Payment of a fine – Bank guarantee –Prima facie case – Urgency – Weighing up of interests – Partial and conditional suspension)

In Case T-11/06 R,

Romana Tabacchi SpA, established in Rome (Italy), represented by M. Siragusa and G. C. Rizza, lawyers,

applicant,

v

Commission of the European Communities, represented by É. Gippini Fournier and F. Amato, acting as Agents,

defendant,

Application for suspension of the operation of the Commission Decision of 20 October 2005 relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) in so far as it imposes a fine of EUR 2.05 million on the applicant, together with an application for an exemption from the obligation to provide a bank guarantee as a condition for that fine not being recovered immediately,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

Facts, procedure and forms of order sought

1 On 20 October 2005, the Commission adopted a decision relating to a proceeding pursuant to Article 81(1) EC (Case COMP/C.38.281/B.2 – Raw tobacco – Italy) (‘the Decision’). Under Article 1 of the Decision, the Commission established that seven of the major Italian processors of raw tobacco, including Romana Tabacchi SpA, had entered into agreements or participated in concerted practices aimed at fixing the conditions for the purchase of raw tobacco in Italy, in respect both of direct purchases from producers and purchases from third party packers. The Commission established, in particular, that the applicant had participated in such concerted practices from October 1997 to 5 November 1999 and from 29 May 2001 to 19 February 2002.

2 Article 2 of the Decision imposes on the applicant a fine of EUR 2.05 million, payable within three months of the date of notification of the Decision, which occurred on 10 November 2005.

3 The Decision was notified by letter of 9 November 2005, in which it was stated that, if the applicant brought an action before the Court of First Instance, the Commission would not take any steps to recover the fine while the case was pending before that Court, provided that interest accrued on the amount due from the date on which the period for payment expired and that an acceptable bank guarantee was provided by that date at the latest, that is by 10 February 2006.

4 By application lodged at the Court Registry on 19 January 2006, the applicant brought an action pursuant to the fourth paragraph of Article 230 EC for partial annulment of the Decision in so far as the calculation of the amount of the fine is concerned and, as a consequence, for a reduction of the fine.

5 By a separate document lodged at the Court Registry on the same day, pursuant to Article 242 EC and Article 104 of the Rules of Procedure of the Court of First Instance, the applicant brought the present action, firstly, for suspension of the operation of the Decision and, secondly, for an exemption from the obligation to provide a bank guarantee for payment of the fine as a condition for it not being recovered immediately.

6 On 10 February 2006, the Commission submitted its written observations on the application for interim measures.

7 At the request of the court ruling on its application for interim measures, on 3 March 2006 the applicant submitted additional observations, in respect of which the Commission lodged its own observations on 29 March 2006.

8 On 8 May 2006, the applicant lodged further documents from which it is apparent that, by letter of 20 April 2006, it proposed payment of the fine in instalments, which was rejected by the Commission by letter of 5 May 2006.

9 On 15 May 2006, the parties presented oral argument to the President of the Court of First Instance.

10 At the hearing, the parties undertook to examine the possibility of an agreed staggering of the payment of the fine and to inform the President of the Court of the outcome of their discussions.

11 By a separate document lodged at the Court Registry on 26 May 2006, which was subsequently amended on 30 May 2006, the applicant communicated to the President of the Court a proposal for staggered payments, which the Commission rejected by a document lodged at the Court Registry on 6 June 2006.

12 In its application, the applicant claims that the court ruling on its application for interim measures should:

– suspend the operation of the Decision, in so far as it imposes an obligation on the applicant to pay the fine, until delivery of the judgment bringing the main proceedings to an end;

– release the applicant from the obligation to provide, no later than 10 February 2006, a bank guarantee as a condition for the fine not being recovered immediately;

– order the Commission to pay the costs of these proceedings for interim relief;

– order any other measure which it considers necessary.

13 In its observations, the defendant contends that the Court ruling on the application for interim measures should :

– dismiss the application for interim measures;

– order the applicant to pay the costs.

Law

14 Pursuant to Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any necessary interim measures.

15 Article 104(2) of the Rules of Procedure prescribes that applications 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). The judge hearing an application for interim measures must also, where appropriate, balance the interests concerned (order in Case T-245/03 FNSEA and Others v Commission [2004] ECR II-271, paragraph 13).

Admissibility of the application

Arguments of the parties

16 The Commission contends that none of the pleas in law put forward by the applicant in its application satisfy the requirements laid down in Article 104 of the Rules of Procedure, in particular in so far as they are not adequately substantiated and do not state the essential facts on which the applicant relies.

17 The applicant considers, on the other hand, that an application for interim measures does not have to set out all the evidence relied on in the substantive action. Moreover, according to the applicant, Article 104 of the Rules of Procedure is intended to ensure legal certainty and the sound administration of justice and, in particular, to ensure that the defendant has the opportunity to submit its observations. In the present case, the Commission was not prevented from submitting its observations since it replied to the application for interim measures in considerable detail.

Assessment by the President of the Court

18 If, as the Commission claims, the applicant’s statement of the pleas in law on which it relies in the substantive proceedings does not meet the requirements as to clarity laid down in Article 104 of the Rules of Procedure, the application must be deemed inadmissible (see, to that effect, the order in Case T-236/00 Stauner and Others v Parliament andCommission [2001] ECR II-15, paragraph 34).

19 The Commission’s arguments on this point are to be considered in the course of the examination of each of the pleas in law put forward in support of the argument that there is a prima facie case.

20 It is therefore appropriate to defer the examination of the admissibility of the application for interim measures until the admissibility of the pleas in law relied on has been examined.

The subject matter of the application

Arguments of the parties

21 The Commission submits that the applicant’s action should be construed as having the sole purpose of obtaining a release from the obligation to provide a bank guarantee as a condition for the full amount of the fine imposed by that decision not being recovered immediately and that it is not therefore directed at suspending the operation of that decision.

22 The applicant has not submitted any observations in that regard.

Assessment by the President of the Court

23 In its application, the applicant seeks, firstly, suspension of the operation of the Decision, in so far as it imposes an obligation to pay the fine imposed by the Commission, pending the Court’s judgment in the main proceedings and, secondly, a release from the obligation to provide a bank guarantee as a condition for the fine not being recovered immediately.

24 It is not in dispute that, in its letter of notification of the Decision of 9 November 2005, the Commission informed the applicant that, if it brought an action before the Court of First Instance, no steps would be taken to recover the fine while the case was pending before that Court, provided that interest accrued on the amount due from the date on which the period for payment of the fine expired and that a bank guarantee acceptable to the Commission and covering both the amount of the principal sum and the interest and accruals becoming due thereon were provided at the latest by 10 February 2006.

25 Moreover, at the hearing, the Commission stated that, pending the decision of the court hearing the present application for interim measures, it had refrained from commencing enforcement of the Decision.

26 It follows from the foregoing that, as the Commission maintains, the only purpose of the applicant’s claim must be to be released from the obligation to provide a bank guarantee as a condition for the fine imposed by the Decision not being recovered immediately.

Prima facie case

Arguments of the parties

27 According to the applicant, the condition...