CJEC, president, October 14, 1996, No C-268/96 P (R)

THE PRESIDENT OF THE COURT,

1 By application lodged at the Registry of the Court of Justice on 7 August 1996, Stichting Certificatie Kraanverhuurbedrijf (Foundation for the Certification of Crane-Hire Companies, "SCK") and Federatie van Nederlandse Kraanverhuurbedrijven (Netherlands Federation of Crane-Hire Companies, "FNK") brought an appeal under the second paragraph of Article 50 of the Statute of the Court of Justice of the EC against the order of the President of the Court of First Instance of the European Communities of 4 June 1996 in Case T-18-96 R Stichting Certificatie Kraanverhuurbedrijf and Federatie van Nederlandse Kraanverhuurbedrijven v Commission [1996] ECR II-0000 ("the order under appeal"), dismissing their application for interim measures.

2 By document lodged at the Registry on 26 August 1996, the Commission submitted its written observations to the Court of Justice.

3 According to the order under appeal, the Commission commenced an investigation, in response to complaints lodged by competitors, into the activities of SCK and FNK in order to determine whether they were not infringing the competition rules laid down in the Treaty on the market for the hire of mobile cranes (paragraph 3).

4 On 29 November 1995 the Commission adopted Decision 95-551-EC relating to a proceeding pursuant to Article 85 of the EC Treaty (IV/34.179, 34.202, 216 ° Stichting Certificatie Kraanverhuurbedrijf and the Federatie van Nederlandse Kraanverhuurbedrijven, OJ 1995 L 312, p. 79, "the contested decision"), which it addressed to the appellants. According to that decision (Articles 1 and 3), FNK had infringed Article 85 (1) of the Treaty by applying a system of recommended rates for hire transactions with non-affiliated undertakings and a system of internal rates for such transactions between FNK members, and SCK had infringed the same provision by prohibiting its affiliated firms from hiring cranes from firms not affiliated to SCK. The appellants were to terminate the infringements referred to forthwith if they had not already done so (Articles 2 and 4). Fines of ECU 11 500 000 and ECU 300 000 respectively were imposed on them (Article 5).

5 By application lodged at the Registry of the Court of First Instance on 2 February 1996, the appellants brought an action seeking, primarily, a declaration that the contested decision was non-existent, in the alternative, a declaration that it was void and, in the further alternative, its annulment in so far as it imposed fines on them (paragraph 9 of the order under appeal).

6 By a separate document lodged at the Registry of the Court of First Instance on the same day, amended by letter of 4 April 1996, the appellants applied under Article 185 of the Treaty for suspension of the operation of Article 5 of the contested decision, imposing fines on them, in order to be released not only from the obligation to pay those fines forthwith, but also from the obligation to provide an equivalent security. In the same document they applied for an interim order requiring the Commission to allow them to inspect the files opened in Cases IV/34.179, 34.202 and 34.216, together with the other files on which the contested decision was based (paragraph 10).

7 In the order under appeal, the President of the Court of First Instance dismissed the application for interim measures.

8 In the findings on which he based that decision, he stated first that it was necessary to assess the urgency of the measure requested by examining whether the mere provision of a bank guarantee could lead to serious and irreversible harm to SCK and FNK (paragraph 31). The appellants had claimed that the provision of a guarantee, with its associated expenses, would inevitably result in their dissolution, given their respective assets (paragraph 32).

9 He pointed out that where the competition rules are infringed as a result of a decision of an association of undertakings, the ceiling on the fine must be calculated by reference to the turnover of all the member companies of the association, at least where its internal rules permit it to hold its members liable (paragraph 33). On that basis, he examined the statutes and rules of SCK and FNK, and concluded: "The applicants'objective interests cannot therefore, prima facie, be considered to be independent of those of FNK's member companies and/or the companies which benefit from the services of SCK" (paragraph 34).

10 The President of the Court of First Instance therefore considered that the risk of serious and irreparable harm had to be assessed having regard to the size and economic power of the undertakings which were members of FNK or which benefited from the services of SCK (paragraph 35). He then observed that they both, including SCK, had sufficient financial resources to provide the required bank guarantee. With regard to SCK, he examined the documents before him in detail and found that, even though it was a foundation and should, as such, have acted independently, SCK in fact acted within the framework of FNK, carried on the same activities, and pursued the same objectives (paragraphs 36 to 39).

11 The application for interim measures was therefore dismissed on the ground that there was no serious and irreparable harm.

12 Finally, the order under appeal states that a measure such as that sought in the appellants'request for access to the files falls, in principle, within the scope of measures of organization of procedure or measures of inquiry, which are within the jurisdiction of the Court of First Instance, and not of interim measures adopted in proceedings for interim relief (paragraph 41).

13 Since the parties'written observations contain all the information necessary to rule on the appeal, there is no need to hear oral argument.

Arguments of the parties

14 In their appeal, the appellants put forward ten pleas in law challenging the order under appeal.

15 First, they consider that their plea alleging the non-existence of the contested decision was too important to be dismissed without any reasons being given in the order under appeal.

16 Secondly, as regards FNK, the order under appeal confuses two separate questions: the justification of the amount of the fine imposed and the existence of serious and irreparable harm in the event of immediate implementation of the contested decision. Even if the amount of the fine were justified, FNK would still be liable for it in its entirety and would be threatened with dissolution if forced to provide an equivalent bank guarantee. The order under appeal thus infringes Community law and does not contain a sufficient statement of reasons.

17 Thirdly, the appellants point out that the procedure before the Commission concerned two types of conduct: a system of recommended rates for hire transactions with non-affiliated undertakings and a system of internal rates for such transactions between FNK members, for whom they were not compulsory. In the order under appeal, however, FNK's ability to provide a bank guarantee was assessed on the basis of an obligation binding on all its member undertakings, even though those member undertakings had never been obliged to apply the internal rates. The reasoning in the order under appeal is thus groundless and inadequate.

18 Fourthly, with regard to FNK, the order under appeal does not sufficiently distinguish between the internal rates and the recommended rates. It thus infringes Community law and contains a faulty statement of reasons, since it is based on an inaccurate and, in any event, confused assessment of the facts.

19 Fifthly, for SCK as for FNK, the order under appeal confuses the justification of the amount of the fine with the existence of irreparable harm.

20 Sixthly, the fact that a foundation such as SCK is not an association of undertakings within the meaning of Article 85 (1) of the Treaty was disregarded; the order under appeal therefore infringes that provision and contains an insufficient statement of reasons on that point.

21 Seventhly, contrary to what is stated in the order under appeal, SCK's interest is separate from that of the undertakings with which it is connected in the context of its crane certification activity. The order thus cannot be justified by the facts on which it is based and contains an insufficient statement of reasons in that regard.

22 Eighthly, the assessment of SCK's links with FNK and FNK's members is incorrect because it was founded largely on factual data which were no longer valid during the period considered and because it did not take account of the conditions on which SCK's recognition by the Netherlands Certification Council is based. The order under appeal also contains an insufficient statement of reasons on that point.

23 Ninthly, the order under appeal infringes Community law and contains an insufficient statement of reasons inasmuch as it indicates that the financial capacity of FNK's members is to be taken into account when assessing SCK's financial situation, whereas they cannot be held liable for SCK's conduct.

24 Tenthly, the decision in the order under appeal dismissing the request for access to the files is based on an over-formalistic interpretation of the Rules of Procedure of the Court of First Instance and runs counter to the principle of economy of procedure.

25 The Commission submits, first, that the first and sixth pleas in law do not call into question the lack of urgency on which the rejection of the application for interim measures is based.

26 As regards the second and fifth pleas, the Commission considers that there is no confusion in the order under appeal between the justification of the amount of the fines and the existence of irreparable harm.

27 In so far as they call into question the assessment of the facts by the President of the Court of First Instance, the Commission considers that the third, fourth, seventh and eighth pleas should be declared inadmissible.

28 The ninth plea, concerning the alleged liability of FNK's members for SCK's conduct, is based, in the Commission's submission, on a misreading of the order under appeal.

29 Finally, as regards the request for access to the files, the Commission asserts that the appellants do not explain how the Rules of Procedure are alleged to have been misinterpreted in the order under appeal and that the request manifestly does not meet any of the criteria for the granting of interim measures.

Findings

The first and sixth pleas in law

30 It has consistently been held that 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.

31 In the present case, the application for interim measures was dismissed because there was no urgency for the measures sought. In the context of this appeal, therefore, pleas which relate to the existence of a prima facie case but do not call into question the lack of urgency of the measures sought cannot form grounds for setting aside, even partially, the order under appeal.

32 Consequently, the first and sixth pleas in law put forward by the appellants, which concern the assessment of the prima facie case for the interim measures sought, including the issue of the contested decision's non-existence, must be dismissed inasmuch as they cannot call into question the decision of the President of the Court of First Instance to dismiss the application for interim measures on the ground that there was no urgency.

The second and fifth pleas

33 In these two pleas, the appellants submit that two separate questions ° the justification of the amount of the fines imposed and the existence of irreparable harm ° were confused in the order under appeal.

34 In the order under appeal, when assessing the risk of serious and irreparable harm to the appellants, the President of the Court of First Instance examined whether only the financial situation of SCK and FNK was to be taken into consideration or whether the size and economic power of the companies which were members of FNK or which benefited from the services of SCK should also be taken into account.

35 In the context of that examination, he first pointed out that where Article 85 (1) of the Treaty is infringed as a result of a decision of an association of undertakings, the ceiling on the fine must be calculated by reference to the turnover of all the member companies of the association, at least where its internal rules permit it to hold its members liable (paragraph 33). He therefore examined whether that condition was met in the case of FNK and SCK (paragraph 34). He found: "The applicants' objective interests cannot therefore, prima facie, be considered to be independent of those of FNK's member companies and/or the companies which benefit from the services of SCK" (paragraph 34).

36 That association of the applicants' interests with those of the undertakings belonging to or served by them could then serve as a basis for the conclusion in paragraph 35 of the order under appeal that the risk of harm must be assessed having regard to the size and economic power of the companies which are members of FNK or which benefit from the services of SCK.

37 There is thus, contrary to the appellants'allegations, no confusion between the amount of the fines imposed and the existence of irreparable damage. Whilst the order under appeal does refer, at paragraph 35, to case-law of the Court of First Instance concerning the calculation of fines on associations of undertakings, that is only with a view to determining the extent to which the appellants' objective interests were independent of those of the undertakings belonging to or served by them.

38 The reasoning leading to the conclusion that the fines were to be calculated in relation to the turnover of the undertakings concerned and not of SCK and FNK alone can thus also justify assessing the risk of serious and irreparable harm in the same way.

39 The order under appeal does not, therefore, err in law on this point.

The third, fourth, seventh and eighth pleas in law

40 With regard to FNK, the appellants submit in their fourth plea that a distinction, or in any event a more adequate distinction, should have been drawn between the recommended rates and the internal rates, and in their third plea specifically that ability to pay the fine or provide the bank guarantee could only be assessed on the basis that all the undertakings belonging to FNK were obliged to apply jointly-fixed internal rates.

41 On the basis of a detailed description of the operation of the certification system provided by SCK, the appellants further submit in their seventh plea that the extent to which SCK is independent of the undertakings for which it provides certification was incorrectly assessed.

42 Finally, in their eighth plea, they claim that the order under appeal was based on facts which were not true or which were no longer true at the material time, that it contains an error regarding SCK's precise membership and that it did not sufficiently take account of the fact that SCK was recognized by the Netherlands Certification Council by reason of its neutrality and independence, guaranteed by the membership of its managing bodies.

43 In that regard, it must be borne in mind that, under Article 168a of the EC Treaty and Article 51 of the Statute of the Court of Justice of the EC, an appeal is limited to points of law and may lie only on grounds of lack of competence of the Court of First Instance, a breach of procedure before it which adversely affects the interests of the appellants or infringement of Community law by the Court of First Instance.

44 As was held in the order of 19 July 1995 in Case C-149-95 P(R) Atlantic Container Line and Others v Commission [1995] ECR I-2165, paragraph 18, those provisions apply equally to appeals brought under the second paragraph of Article 50 of the Statute of the Court of Justice of the EC.

45 Consequently, in so far as the third, fourth, seventh and eighth pleas in law directly call into question the assessment of the facts by the President of the Court of First Instance, they must be declared inadmissible.

46 The third plea could also be understood as alleging that the order under appeal is based on a materially and manifestly inaccurate fact, namely that all the undertakings belonging to FNK were obliged to apply jointly-fixed internal rates.

47 In that regard, the appellants do not dispute that application of the other system of rates drawn up by FNK, comprising recommended rates applicable to hire transactions with non-affiliated undertakings, was compulsory for all undertakings belonging to FNK. That finding is sufficient to conclude that FNK's interests could not, prima facie, be regarded as independent of those of all the undertakings affiliated to it.

The ninth plea in law

48 The appellants submit that it could not be concluded from an examination of the links between them that FNK's members could be held liable for SCK's conduct.

49 As the Commission rightly points out, this plea is based on a misreading of paragraph 38 of the order under appeal. There is no indication there that the undertakings belonging to FNK are liable for SCK's conduct. The President of the Court of First Instance did not rule on the question of civil liability but merely decided that, when assessing the risk of serious and irreparable harm, it was appropriate to take account of the financial capacity of the undertakings benefiting from SCK's certification services.

The tenth plea in law

50 The tenth plea alleges that the Rules of Procedure of the Court of First Instance were incorrectly interpreted in the order under appeal.

51 In the absence of any further detail in support of that allegation, however, the order under appeal does not appear to contain an error of law in so far as it decided that the request for access to the files fell within the scope of measures of organization of procedure or of measures of inquiry and that it was for the Court of First Instance to deal with the matter in the context of the main proceedings.

The statement of reasons in the order under appeal

52 With regard to the allegations concerning the statement of reasons in the order under appeal, which are set out in each of the ten pleas in law put forward in the appeal, it must be pointed out, with regard to the requirement to state the reasoning for an interlocutory order, that the judge hearing an application for interim measures cannot be required to reply explicitly to all the points of fact and law raised in the course of the interlocutory proceedings. It is sufficient that the reasons given validly justify his order in the light of the circumstances of the case and enable the Court of Justice to exercise its powers of review (see the order in Atlantic Container Line, cited above, paragraph 58).

53 In the present case, it follows from the foregoing, and in particular from paragraphs 33 to 38 above, that the statement of reasons in the order under appeal is sufficient to justify the decision taken and to enable the Court of Justice to exercise its powers of review.

54 The submissions alleging that the statement of reasons in the order under appeal is insufficient or defective must therefore be dismissed.

55 Since all the pleas in law have been found inadmissible or unfounded, the appeal must be dismissed.

Costs

56 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the appellants have been unsuccessful, they must be ordered to pay the costs.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1. The appeal is dismissed.

2. The appellants shall bear the costs.