CFI, president, July 12, 1996, No T-52/96 R

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

Facts

1 The applicant, Sogecable SA, formerly Sociedad de Televisión Canal Plus SA, is a company governed by Spanish law whose capital is held in equal shares by Canal Plus SA ("Canal Plus France") and Promatora de Informaciones SA ("Prisa").

2 On 26 July 1995, Telefónica de España SA ("Telefónica"), a public undertaking providing telecommunications services, and its subsidiary Telecartera SA signed agreements with Sociedad de Gestión de Cable SA and Sociedad de Televisión Canal Plus SA ("Canal Plus España"), leading to a concentration in the form of the acquisition of joint control of Sociedad General de Cablevisión SA ("the Cablevisión concentration").

3 On 26 October 1995, in accordance with the national rules on competition, those undertakings notified that concentration to the competent Spanish authorities.

4 On the same day, Telefónica sent a letter to the directorate for "Restrictive practices, abuse of dominant positions and other distortions of competition II" in the Commission's Directorate-General for Competition ("DG IV") in the context of the examination of a complaint submitted by a competitor concerning that concentration. In that letter, to which were attached copies of the documents notified to the Spanish authorities, Telefónica stated that the Cablevisión concentration was a concentration within the meaning of Article 3 of Council Regulation (EEC) No 4064-89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 257, p. 13) but that in its view and that of Canal Plus España that concentration did not have a Community dimension within the meaning of Article 1 of that regulation.

5 By letter of 6 February 1996, the Director-General of DG IV informed Canal Plus España that, on the information available to the Commission, the Cablevisión concentration was a concentration with a Community dimension within the meaning of Regulation No 4064-89. He reminded them that the concentration must be notified as soon as possible in accordance with that regulation, and pointed out that the Commission had the power to impose fines and periodic penalty payments in the context of the procedure for the control of concentrations. On 7 February 1996, the Commission informed the competent Spanish authorities of the tenor of that letter.

6 In interviews with journalists on 8 and 9 February 1996, the spokesman for the Member of the Commission responsible for competition matters explained the content and scope of the decision of 6 February 1996.

7 On 1 March 1996, the Spanish authorities authorized the concentration under certain conditions, considering it to be a concentration affecting only the national market. On 11 March 1996, they sent a copy of their decision to the Commission.

8 On 29 March 1996, the Commission sent the undertakings concerned a statement of objections and set a date for the hearing of the parties provided for in Article 18 of Regulation No 4064-89. In that statement of objections, the Commission further pointed out its powers to take interim measures and impose periodic penalty payments under Regulation No 4064-89.

9 On 31 May 1996, Sogecable notified the Cablevisión concentration to the Commission in accordance with Article 4 (1) of Regulation No 4064-89.

Procedure

10 By application lodged at the Registry of the Court of First Instance on 16 April 1996, Sogecable brought an action seeking the annulment of the Commission's decision of 6 and 7 February 1996 and of the public statement of the spokesman for the Member of the Commission responsible for competition matters of 8 February 1996.

11 By a separate document lodged at the Registry on 26 April 1996, the applicant made the present interim application under Articles 185 and 186 of the EC Treaty, for suspension of the operation of the decision contained in the said statement of 8 February 1996 of the spokesman for the Member of the Commission responsible for competition matters, and for such interim measures as were necessary to ensure that the Commission did not adopt any act or decision concerning it under Articles 8, 13, 14 and 15 of Regulation No 4064-89 until such time as the Court had ruled on the validity of the decision contested in the main proceedings.

12 The Commission lodged its written observations at the Registry on 15 May 1996.

13 Applications to intervene in these interlocutory proceedings were submitted on 12 June 1996 by Cableuropa SA, Cable i Televisió de Catalunya SA, Santander de Cable SA and Jerez de Cable SA, and on 13 June 1996 by Antena 3 TV SA. The President of the Court of First Instance granted those applications on 14 June 1996.

14 Oral argument was heard from the parties on 14 June 1996.

Law

15 Under Articles 185 and 186 of the Treaty, taken together with Article 4 of Council Decision 88-591-ECSC, EEC, Euratom of 24 October 1988 establishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision 93-350-Euratom, ECSC, EEC of 8 June 1993 (OJ 1993 L 144, p. 21) and Council Decision 94-149-ECSC, EC of 7 March 1994 (OJ 1994 L 66, p. 29), the Court may, if it considers that circumstances so require, order that the application of the contested act be suspended or prescribe any necessary interim measures.

16 Article 104 (2) of the Rules of Procedure of the Court of First Instance provides that applications for any of the interim measures referred to in Articles 185 and 186 of the Treaty must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. The measures sought must be provisional in that they must not prejudge the decision on the substance (see, most recently, the order of the President of the Court of First Instance of 4 June 1996 in Case T-18-96 R SCK and FNK v Commission [1996] ECR II-0000, paragraph 15).

Arguments of the parties

Admissibility

17 The applicant submits that the interim application is admissible, first, inasmuch as the application for suspension concerns the decision contested in its main application, which was intended to have binding legal effects appreciably modifying its legal position. The main effects of that decision are to require Sogecable to notify the Cablevisión concentration to the Commission in accordance with Article 4 (1) of Regulation No 4064-89 and to suspend that concentration as provided for in Article 7 (1) of that regulation (in that regard, the applicant refers in its main application to Case C-312-90 Spain v Commission [1992] ECR I-4117 and Case T-3-93 Air France v Commission [1994] ECR II-121).

18 Secondly, the applicant submits that its application for interim measures under Article 186 of the Treaty is admissible inasmuch as it relates to the main case, in accordance with the second subparagraph of Article 104 (1) of the Rules of Procedure. The fact that the contested measure states that the concentration has a Community dimension is necessary for the adoption of all the acts referred to in Regulation No 4064-89 and the application for interim measures relates to those acts. The applicant refers in that connection to the interlocutory orders of 11 October 1973 in Joined Cases 160-73 R and 161-73 R Miles Druce v Commission [1973] ECR 1049 and of 16 March 1974 in Joined Cases 160-73 R II, 161-73 R II and 170-73 R II Miles Druce v Commission [1974] ECR 281, in which the President of the Court of Justice ordered interim measures relating to a future decision of the Commission on the authorization of a concentration under Article 66 of the ECSC Treaty.

19 The Commission contends that the interim application is inadmissible. Its main contention is that the act whose operation the applicant seeks to have suspended is not the act contested in the main action. In that action, the form of order which Sogecable seeks from the Court is the annulment of the Commission's decision contained in the letters of 6 and 7 February 1996, made public on the following day by the statements of the spokesman for the Member of the Commission responsible for competition matters. In the present interim application, however, the form of order sought is solely the suspension of the decision contained in the statements of 8 February 1996.

20 In the alternative, the Commission, supported by the interveners, considers that the interim application is inadmissible by reason of its link with the main application which is itself manifestly inadmissible. It submits that, contrary to the applicant's argument, the contested letters of 6 and 7 February 1996, the tenor of which was made public on the following day by the spokesman for the Member of the Commission responsible for competition matters do not constitute, either together or separately, a definitive act of the Commission within the meaning of the case-law cited by the applicant. Specifically, the letter of the Director-General of DG IV of 6 February does not constitute the definitive position of the Commission on the nature of the Cablevisión concentration but merely a communication from the Commission's services which, on the basis of the information available to them at that time, advised the parties to notify the concentration under Article 4 (1) of Regulation No 4064-89. The Commission's services could not adopt a definitive position until after that notification, as provided for in Articles 6 and 8 of Regulation No 4064-89.

21 The defendant further stresses that, in the present case, the obligation to suspend the concentration does not arise out of the position thus taken by the Commission's services but out of Article 7 of Regulation No 4064-89, which imposes on the undertakings concerned an obligation not to put the concentration into effect before its notification to the Commission, regardless of the manner in which it may be categorized by the Commission. The facts in the present case are thus different from those in the case concerning Cenemesa, to which the applicant refers (Spain v Commission, cited above), in which the Court explicitly held that the Commission's decision to treat the aid as new aid had legal effects, since the obligation to suspend payment of the aid followed not from the Treaty but from the Commission's decision containing that categorization. The Commission therefore has not adopted any decision requiring suspension of the concentration in issue but merely pointed out, in particular in the statement of objections of 29 March 1996, that such a decision could be adopted. In those circumstances, the defendant considers, in the light of Case 60-81 IBM v Commission [1981] ECR 2639, that even if the act in question may give rise to a unilateral change in the conduct of the undertakings concerned or of other undertakings, it is not actionable because it produces no legal effects other than those which flow automatically from Regulation No 4064-89.

22 Nor, the Commission goes on to state, can the provisional nature of the act be called into question either by the tenor of the letter of 7 February 1996 from the Director-General of DG IV to the President of the Competition Court in Spain, which merely contained information addressed to the competent Spanish authorities in competition matters, or by the statements of the spokesman for the Member of the Commission responsible for competition matters of 8 February 1996, which simply informed the press of the examination being carried out by the Commission's services and thus could not transform a preparatory act into a definitive act.

23 Finally, the Commission stresses that the present request for interim measures is in any event inadmissible since it seeks in reality to obtain the suspension of the procedure initiated by the Commission on the basis of Articles 4, 7, 8, 14 and 15 of Regulation No 4064-89. As was held by the President of the Court of First Instance in his order of 22 November 1995 in Case T-395-94 R II Atlantic Container Line and Others v Commission [1995] ECR II-0000, parties are not entitled to exercise the right conferred upon them by Articles 185 and 186 of the Treaty in order to seek the suspension both of a pending procedure and of any definitive decision which may be taken in the course of that procedure. In the defendant's submission, if it were possible to suspend a pending proceeding, not only would the Commission be prevented from carrying out the role assigned to it in the application of the Community competition rules but the system of allocation of powers set up by the Treaty would be seriously jeopardized.

24 The intervener Antena 3 TV has expressed similar views. In its submission, the application for interim measures should be declared inadmissible in so far as it seeks in reality to obtain a derogation from the obligation to suspend the concentration, which flows from the obligation to notify it. The Commission has the power, first, to examine, in the context of such a procedure, the interim measures requested by the parties in order to avoid serious harm being suffered by one or more of the undertakings concerned by a concentration and, secondly, to decide whether the concentration is subject to the obligation to notify. To seek interim measures from the Court before the Commission has reached a decision on a possible release from the obligation to suspend the concentration or on whether the concentration has a Community dimension would be tantamount to asking the Court to exercise an administrative power, which would affect the allocation of powers between the various Community institutions.

Urgency

25 With regard to urgency, the applicant submits that, in view of the present situation in which it appears to be guilty of two serious infringements of Community law by having failed to notify and suspend the Cablevisión concentration, it is liable to suffer serious and irreversible harm. First, the Commission's position with regard to the Community dimension of the Cablevisión concentration has a seriously adverse effect on its reputation, since the decision has been widely publicized, particularly in the press. Secondly, the contested decision seriously damages Sogecable's activity, since it has led to an immediate freezing of major business projects and has stopped others from joining a series of local telecommunications companies served by Cablevisión. Thirdly, the threat of suspension of Cablevisión's activities prevents it from acquiring new customers. Such a decision would thus cause it an irreversible disadvantage in its competitive position on the market for cable telecommunications services. In an emerging market such as that in issue, the expulsion of one operator can irremediably change the structure of the market and thus prejudice its competitive position.

26 The Commission denies the existence of the serious and irreparable harm alleged by the applicant. With regard to the alleged non-material damage, it points out that it has not stated in any public document that the applicant is guilty of the two infringements to which it refers. The defendant further doubts whether Sogecable, as a legal person, is capable of suffering non-material damage and states that in any event the alleged damage could always be made good by payment of compensation with interest.

27 With regard to the other damage alleged by the applicant, the defendant remarks that the applicant has not demonstrated either the existence or the consequences of the alleged climate of uncertainty. In particular, there is no evidence that the contested act may have hindered the entry of associates into the local companies. The Commission also notes that Sogecable has not shown the existence of any act in which it has expressed its intention of suspending the Cablevisión concentration and that in any event, even if such a decision were adopted, the applicant could always request that its operation be suspended.

28 The interveners concur in this last observation of the Commission. They add that Cablevisión and the other undertakings involved in the concentration in issue have in fact never stopped operating on the Spanish market.

Prima facie case

29 As regards its prima facie case, the applicant puts forward a single plea in law alleging infringement of Article 5 (4) of Regulation No 4064-89. It states that the Commission has treated the Cablevisión concentration as having a Community dimension as a result of considering, wrongly, that Sogecable is an undertaking jointly controlled by Prisa and Canal Plus France.

30 However, contrary to the defendant's view, only Prisa has the right to manage Sogecable's affairs, in the words of the fourth indent of Article 5 (4) (b) of Regulation No 4064-89. ...(1) The Commission therefore cannot apply that provision on the basis of mere presumptions.

31 In the alternative, the applicant states that, even if Prisa and Canal Plus France were accepted as having joint control over Sogecable, their respective turnovers cannot be aggregated with that of Sogecable to demonstrate the Community dimension of the Cablevisión concentration. The fourth indent of Article 5 (4) (b) of Regulation No 4064-89 applies only where control is exercised by a single undertaking, given that joint control should be taken into consideration only in cases specifically provided for by the legislature. The Commission's argument that the use of the plural "undertakings" in Article 5 (4) (c) of Regulation No 4064-89 entitles it to aggregate the turnovers of undertakings which jointly manage the affairs of the undertakings concerned is unfounded. Article 5 (4) (c) concerns only undertakings controlled by the undertaking taken into consideration for purposes of calculation, and cannot be extended to undertakings which control it.

Findings of the President

32 In order to determine whether the present application for interim measures is admissible and well founded, it is first necessary to delimit precisely the subject-matter of the measures sought.

33 In its interim application, Sogecable seeks, first, "suspension of the operation of the Commission's decision of 8 February 1996" and, secondly, the adoption of "such interim measures as are necessary to ensure that the Commission does not adopt any act pursuant to its assertion of competence contained in that decision and in particular that it does not adopt any act or decision (whether interlocutory, final or preventive) by virtue of Articles 8, 13, 14 and 15 of Regulation No 4064-89 until such time as the Court has ruled on the validity of the decision contested in the main proceedings".

34 With regard to the first head of claim, the applicant has specified, in response to questions put at the hearing, that it seeks suspension of the Commission's decision contained both in the letters of 6 and 7 February 1996 and in the statements of the spokesman reported in the press release from the FECHA agency of 8 February 1996. That decision concerns the finding that the Cablevisión concentration has a Community dimension and points out, by recalling the obligation to notify the concentration, that fines and periodic penalty payments can be imposed.

35 In fact, the only relevant decision in this case is the decision contained in the letter of 6 February 1996 in which the Director-General of DG IV informed Canal Plus España that the Commission's services considered, on the information available to them, that the Cablevisión concentration had a Community dimension and must be subjected to the control procedure under Regulation No 4064-89. The Director-General further reminded Canal Plus España of its obligation to notify that concentration under Article 4 of the regulation and of the Commission's power to impose fines and periodic penalty payments in the event, in particular, of a failure to notify. The letter of 7 February 1996, in which the Director-General informed the Spanish authorities of the tenor of the letter sent to the applicant, and the spokesman's statements, the purpose of which appears to have been to clarify the import of that decision informally for the press, appear at first view to be acts confirming the decision of 6 February 1996 and as such having no relevance in the examination of the present application for interim measures.

36 Since the act which the applicant seeks to have suspended is the decision of 6 February 1996 and since the undertakings concerned notified the Cablevisión concentration on 31 May 1996, the application for suspension concerns only the decision that the concentration must be subjected to the control procedure under Regulation No 4064-89.

37 With regard to the second head of claim, it is clear from the form of order sought in the interim application that the applicant wishes the President to take steps to prohibit the Commission from exercising, even provisionally, the powers which it is recognized as having under Regulation No 4064-89 with regard to the adoption of interlocutory, protective and final acts and decisions. That head of claim thus seeks in reality to obtain suspension of the administrative control procedure to which the Cablevisión concentration is being subjected. Its aim is therefore the same as that of the claim for suspension of the decision of 6 February 1996.

38 Without there being any need to decide whether the contested decision, even though of a manifestly preparatory nature, produces legal effects which seriously affect the applicant's interests and consequently render both the main application for annulment and the present interim application admissible (see, in that connection, IBM v Commission, cited above, paragraph 23), it must be considered whether the measures sought with a view to suspending the administrative procedure initiated by the Commission for the purpose of controlling the Cablevisión concentration are compatible with the principles governing the allocation of powers between the various Community institutions.

39 The Community judicature has jurisdiction to review acts adopted by the Commission as administrative authority, but that jurisdiction does not extend to the review of questions on which the Commission has not yet stated its position. The result of that would be to anticipate the arguments on the substance of the case and confuse the different stages of the administrative and judicial procedures, in a manner incompatible both with the system of the allocation of powers between the Commission and the Community Courts and with the requirements of the sound administration of justice and the proper course of the administrative procedure (see Case T-64-89 Automec v Commission [1990] ECR II-367, paragraph 46).

40 Thus, in a case such as the present, the judge hearing the interim application cannot in principle accede to a request for interim measures seeking to prevent the Commission from exercising its powers of inquiry and penalty immediately after the opening of an administrative procedure and even before it has adopted any interlocutory or definitive acts whose operation is sought to be avoided. If such measures were adopted, the judge hearing the interim application would not be reviewing the activity of the defendant institution but assuming the role of that institution in the exercise of purely administrative powers. Consequently, the applicant is not entitled in the present case to request under Articles 185 and 186 of the Treaty that the defendant institution be required to suspend the operation of the decision opening the administrative procedure and prohibited, even provisionally, from exercising its powers in the course of such a procedure (see the orders of the President of the Court of First Instance of 6 December 1989 in Case T-131-89 R Cosimex v Commission [1990] ECR II-1, paragraph 12; of 14 December 1993 in Case T-543-93 R Gestevisión Telecinco v Commission [1993] ECR II-1409, paragraph 24; and of 22 November 1995 in Atlantic Container Line, cited above, paragraph 39).

41 Such an entitlement could only be recognized if the application were to present evidence from which the judge hearing the interim application could find that there were exceptional circumstances justifying the adoption of the measures requested (see, in that connection, the order of the President of the Court of First Instance of 23 March 1992 in Joined Cases T-10-92 R, T-11-92 R, T-12-92 R, T-14-92 R and T-15-92 R Cimenteries CBR and Others v Commission [1992] ECR II-1571, paragraph 54).

42 In that regard, the applicant has not put forward any evidence of the existence of exceptional circumstances which might provide grounds for the adoption of the measures sought. The present application for interim measures cannot, therefore, be held admissible on that ground.

43 In the light of all the foregoing, and without there being any need to examine the merits of the interim application, it must be held that the conditions required in law for granting the measures sought are not met in the present case and that the application must therefore be dismissed.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The interim application is dismissed.

2. Costs are reserved.