Orders nº T-352/09 of Court of First Instance of the European Communities, October 29, 2009

• Resolution Date: October 29, 2009
• Issuing Organization: Court of First Instance of the European Communities
• Decision Number: T-352/09

(Interim measures – Competition – Commission decision imposing a fine – Bank guarantee – Application for suspension of enforcement of a measure – Lack of urgency)

In Case T‑352/09 R,

Novácke chemické závody, a.s., established in Nováky (Slovakia), represented by A. Černejová, lawyer,

applicant,

v

Commission of the European Communities, represented by F. Castillo de la Torre and N. von Lingen, acting as Agents,

defendant,

APPLICATION for suspension of enforcement of the Commission decision of 22 July 2009 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium-based reagents for the steel and gas industries), in so far as it concerns the applicant,

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

makes the following

Order

Facts, procedure and forms of order sought by the parties

1 The applicant, Novácke chemické závody, a.s., was a company active in the chemical sector, established in Slovakia. It produced, inter alia, calcium carbide. It was an important supplier of calcium carbide granulates to undertakings active on the gas market and sold calcium carbide powder to an undertaking active on the steel market. From 2004 to 2007, it was more than 70% owned by 1. garantovaná, a.s., an investment holding company, which then transferred its holding to its Cypriot subsidiary, G 1 Investments Ltd. In 2008, Disor Holdings Ltd, established in Cyprus, acquired 100% of the applicant’s shares.

2 On 22 July 2009, the Commission of the European Communities adopted a decision relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/39.396 – Calcium carbide and magnesium-based reagents for the steel and gas industries) (‘the contested decision’), according to which several undertakings, including the applicant and 1. garantovaná, its former parent company, infringed Article 81 EC and Article 53 of the Agreement on the European Economic Area of 2 May 1992 (OJ 1994 L 1, p. 3; ‘the EEA Agreement’) by participating in a cartel in the calcium carbide and magnesium sectors within the European Economic Area, which consisted of market sharing, fixing quotas, customer allocation, price fixing and the exchange of sensitive commercial information on prices, customers and sales volumes.

3 In the contested decision, the Commission criticised the applicant more specifically for having been directly involved in the abovementioned cartel between April 2004 and January 2007. With regard to 1. garantovaná, the Commission found that, during that period, it exercised decisive influence over the business policy of its subsidiary at the time, that is the applicant, with the result that those two companies constituted a single undertaking, which was the reason why 1. garantovaná was held responsible for the applicant’s unlawful conduct.

4 In point (e) of the first paragraph and in the second paragraph of Article 2 of the contested decision, the Commission imposed on the applicant and on 1. garantovaná a fine of EUR 19 600 000, specifying that the two companies are jointly and severally liable, and stated that that fine must be paid within three months of the date of notification of the contested decision and that, after the expiry of that period, interest was to be automatically payable at 3.5 percentage points above the interest rate applied by the European Central Bank to its main refinancing operations on the first day of the month in which the decision was adopted.

5 The contested decision was notified to the applicant on 27 July 2009. In the notification letter, the Commission offered the applicant the possibility of not paying the fine immediately on condition that it provided it with a bank guarantee.

6 By application lodged at the Registry of the Court of First Instance on 14 September 2009, the applicant brought an action seeking the partial annulment of the contested decision and, alternatively, the cancellation or reduction of the fine imposed on it.

7 By separate document, lodged at the Registry of the Court on the same day, the applicant introduced the present application for interim measures, in which it claims, essentially, that the President of the Court of First Instance should:

– suspend the enforcement of the contested decision, to the extent that it is ordered to pay the fine imposed, until the Court has ruled in the main proceedings;

– order the Commission to pay the costs.

8 In its written observations on the application for interim measures, lodged at the Registry of the Court of First Instance on 7 October 2009, the Commission contends that the President of the Court should:

– dismiss the application for interim relief;

– order the applicant to pay the costs.

9 In the course of the written procedure, the parties discussed the consequences of the following: first, the fact that, on 16 September 2009, the applicant filed a petition for the commencement of insolvency proceedings with the Slovak court having jurisdiction; second, the fact that those proceedings were opened on 29 September 2009; and third, the fact that, on 2 October 2009, the Slovak court having jurisdiction declared the applicant insolvent and appointed an administrator to manage its assets (‘the administrator’). The Slovak court’s decision was officially published.

10 By documents lodged with the Registry of the Court of First Instance on 23 September and 8 October 2009 respectively, 1. garantovaná and the Slovak Republic applied for leave to intervene in support of the form of order sought by the applicant.

11 By application lodged at the Registry of the Court on 2 October 2009, 1. garantovaná also brought an action against the contested decision (Case T‑392/09). By separate document lodged at the Registry of the Court of First Instance on 13 October 2009, it also made an application for interim measures (Case T‑392/09 R).

Law

12 Under Articles 242 EC and 243 EC, in conjunction with Article 225(1) EC, the judge hearing the application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures.

13 Article 104(2) of the Rules of Procedure of the Court of First Instance 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 operation or enforcement of an act and interim measures may be ordered by the judge hearing the application for interim measures 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 applications for interim measures must be dismissed if any one of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).

14 In addition, in the context of that overall examination, the judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court of Justice 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 Lastly, it should be borne in mind that Article 242 EC lays down the principle that actions do not have suspensory effect (order of the President of the Court of Justice in Case C‑377/98...