CFI, president, August 2, 2006, No T-69/06 R

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

Facts, legal framework and procedure

1 Aughinish Alumina Ltd ('AAL' or 'the applicant') operates an alumina refinery on the south side of the Shannon estuary in Ireland. The applicant, whose parent company is Limerick Alumina Refining Ltd, forms part of the Glencore group, by which it has been wholly owned since 1999. It is the only company in the Shannon region which produces alumina.

2 The production of alumina requires the use of heavy mineral oils.

3 It is apparent from the Commission's decision and from the parties' written pleadings that, by letter of 28 January 1983, Ireland informed the Commission of a commitment that it had given to AAL's promoters in April 1970 in respect of an exemption from the excise duty on heavy fuel oil to be used in the production of alumina.

4 By letter of 22 March 1983, the Commission stated that, if the aid was about to be implemented only at that time, it could regard the letter of 28 January 1983 sent to it by Ireland as a notification for the purposes of Article 93(3) of the EEC Treaty (now Article 88(3) EC).

5 Ireland confirmed that such was the case by letter of 6 May 1983.

6 The Commission did not adopt any decision further to that correspondence.

7 The exemption was established by order of 12 May 1983 and was applicable to fuel oil imported or delivered from a refinery or bonded warehouse on or after 13 May 1983. The applicant first benefited from that exemption in September 1983.

8 Article 6 of Council Directive 92-82-EEC of 19 October 1992 on the approximation of the rates of excise duties on mineral oils (OJ 1992 L 316, p. 19), repealed as from 31 December 2003 by Council Directive 2003-96-EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (OJ 2003 L 283, p. 51), fixed the minimum rate of excise duty on heavy fuel oil at EUR 13 per tonne as from 1 January 1993.

9 Under Article 8(4) of Council Directive 92-81-EEC of 19 October 1992 on the harmonisation of the structures of excise duties on mineral oils (OJ 1992 L 316, p. 12), amended for the last time by Council Directive 94-74-EC of 22 December 1994 (OJ 1994 L 365, p. 46) and repealed as from 31 December 2003 by Directive 2003-96, the Council, acting unanimously on a proposal from the Commission, may authorise any Member State to introduce further exemptions or reductions for specific policy considerations.

10 Pursuant to that procedure, by a series of Council decisions, Ireland was authorised as from 1992 and for the last time in 2001 to continue to apply the exemption from excise duty in respect of alumina production in the Shannon region. Council Decision 2001-224-EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23) thus authorised Ireland to continue to apply the exemption from excise duties in respect of alumina production in the Shannon region until 31 December 2006, subject to a prior review by the Council, on the basis of a proposal from the Commission.

11 By letter of 17 July 2000, the Commission requested Ireland to notify the exemption which it was granting, for the purposes of examining whether it was in compliance with the State aid rules. Ireland responded to that request by letter of 18 October 2000.

12 By decision of 30 October 2001, the Commission initiated the procedure laid down in Article 88(2) EC with respect to the exemption from excise duty granted to AAL by Ireland. Similar procedures were initiated as regards alumina production in Sardinia (Italy) and in Gardanne (France) by decisions adopted by the Commission on 30 October 2001. Those decisions were published in the Official Journal of the European Communities of 2 February 2002.

13 Ireland adopted a position on the Commission's decision by letter of 8 January 2002. By letter of 18 February 2002, the Commission requested Ireland to send it evidence that a legally binding commitment had been given in respect of AAL prior to Ireland's accession to the EEC. Ireland responded to that request by letter of 25 April 2002. No further correspondence was exchanged between the Commission and the Irish authorities after that date.

14 On 27 October 2003, the Council adopted Directive 2003-96 restructuring the Community framework for the taxation of energy products and electricity, repealing, as stated in paragraphs 8 and 9 above, Directives 92-81 and 92-82 as from 31 December 2003.

15 Under Article 18(1) of Directive 2003-96, by way of derogation from the provisions of the Directive, Member States are authorised to continue to apply the reductions in the levels of taxation or exemptions set out in Annex II to that directive. Subject to a prior review by the Council, on the basis of a proposal from the Commission, it was provided that that authorisation is to expire on 31 December 2006 or on the date specified in Annex II. Point 7, sixth indent, of Annex II, entitled 'Reduced rates of taxation and exemptions from such taxation referred to in Article 18(1)', refers, inter alia, as regards Ireland, to the production of alumina in the Shannon region. Under Article 28(2) of Directive 2003-96, Member States were to apply the provisions of that directive from 1 January 2004, except, inter alia, the provisions laid down in Article 18(1), which might be applied by the Member States from 1 January 2003.

16 Furthermore, Article 26(2) of Directive 2003-96 states, first, that measures such as tax exemptions, tax reductions, tax differentiation and tax refunds within the meaning of the Directive might constitute State aid and in those cases have to be notified to the Commission pursuant to Article 88(3) EC and, second, that information provided to the Commission on the basis of the Directive does not free Member States from the notification obligation pursuant to Article 88(3) EC.

17 On 7 December 2005, the Commission adopted Decision C (2005) 4436 def. concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia, respectively implemented by France, Ireland and Italy ('the contested decision').

18 Article 1 of the contested decision states that the exemptions from excise duty granted by France, Ireland and Italy in respect of heavy fuel oils used in the production of alumina until 31 December 2003 constitute State aid within the meaning of Article 87(1) EC.

19 Article 2 of the contested decision provides that aid granted between 17 July 1990 and 2 February 2002, to the extent that it is incompatible with the common market, is not to be recovered as this would be contrary to the general principles of Community law.

20 Article 3 of the contested decision states that the aid granted between 3 February 2002 and 31 December 2003 is compatible with the common market within the meaning of Article 87(3) EC in so far as the beneficiaries pay at least a rate of EUR 13.01 per tonne of heavy fuel oils.

21 Article 4 of the contested decision states that the aid granted between 3 February 2002 and 31 December 2003 is incompatible with the common market within the meaning of Article 87(3) EC in so far as the beneficiaries did not pay a rate of EUR 13.01 per tonne of heavy fuel oils.

22 Under Article 5 of the contested decision, France, Ireland and Italy are to take all necessary measures to recover from the beneficiaries the incompatible aid referred to in Article 4 of that decision, including interest, and recovery is to be effected without delay and in accordance with the procedures of national law, provided that they allow the immediate and effective execution of that decision.

23 Finally, under Article 5(5) of the contested decision, France, Ireland and Italy are to order, within two months of the date of notification of the contested decision, the beneficiaries of the incompatible aid to repay the aid unlawfully granted plus interest.

24 By application received at the Registry of the Court of First Instance on 23 February 2006, AAL brought an action under Article 230 EC for annulment of the contested decision, in so far as it relates to the applicant.

25 By separate document, received at the Registry on 22 March 2006, AAL lodged the present application for interim measures, under Article 242 EC, seeking suspension of the operation of the contested decision, in so far as it relates to the applicant. AAL also applies for costs against the Commission.

26 The Commission submitted its written observations on the present application for interim measures on 29 March 2006. It contends that the application for suspension of operation should be dismissed and that the applicant should pay the costs.

27 AAL responded to those observations by document lodged at the Registry on 19 April 2006.

28 The defendant responded to AAL's observations by document lodged at the Registry on 3 May 2006.

29 In response to a request that it submit its observations on whether there is a prima facie case, by document lodged at the Registry on 7 June 2006 the Commission submitted for that purpose its defence in the main action.

30 The parties presented their oral explanations at a hearing on 12 June 2006.

Law

31 Under Article 242 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 act contested before it be suspended.

32 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. 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 of the Court of Justice in Case C 268-96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing the application must also balance the interests involved (order of the President of the Court of Justice in Case C 107-99 R Italy v Commission [1999] ECR I 4011, paragraph 59).

33 Furthermore, in the context of that overall examination, the judge hearing the application enjoys a broad 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 analysed and assessed (order 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).

Arguments of the parties

34 As regards the requirement of a prima facie case, AAL relies on six pleas in law in support of its application.

35 First, AAL claims that the Commission should have treated the aid in question as existing aid falling under Article 88(1) EC. Second, AAL submits, in substance, that the Commission failed to have regard to the relevant provisions on harmonisation of excise duties on mineral oils, in particular, the exemptions granted by the Council and the provisions of Directive 92-81 enabling the Commission to bring those exemptions to an end in the event of a distortion of competition. Third, AAL claims that, in adopting the contested decision, the Commission failed to take account of the fundamental requirements of Articles 3 EC and 157 EC. Fourth, AAL submits that the contested decision is contrary to the principles of protection of legitimate expectations and legal certainty. Fifth, AAL claims that the procedure under Article 88(2) EC lasted an excessively long time, with 43 months elapsing between the last communication with any of the three Member States and interested parties and the date of the contested decision, for reasons which are not given in that decision. That lapse of time is contrary to the principles of good administration and legal certainty. Sixth, and lastly, AAL submits that the Commission failed properly to analyse the relevant markets and their competitive structure. In circumstances where the Commission had itself earlier accepted that there was no distortion of competition, and in the light of the fact that the Council had authorised the exemptions until 31 December 2006, it was incumbent upon the Commission to demonstrate that it had carried out a thorough and accurate analysis which clearly demonstrated that there was an actual or threatened distortion to competition.

36 Initially, the Commission did not present any observation in respect of the applicant's arguments on the condition relating to a prima facie case, considering that the application was, in any event, manifestly unfounded as regards urgency and the balance of interests.

37 In response to a request from the President of the Court to submit its observations on whether there is a prima facie case, the Commission, by document lodged at the Registry on 7 June 2006, submitted for that purpose its defence in the main action. In that document, the Commission essentially rejects as unfounded all the pleas in law put forward by the applicant.

38 As regards urgency, AAL submits, in the first place, that pursuant to Article 5 of the contested decision it will be required to pay EUR 8 121 423.11 to Ireland. In addition, it will be required to pay a significant amount of interest. It considers that the payment of those sums will cause it serious and irreparable damage.

39 In that regard, AAL argues, in essence, that the requirement to pay the amounts indicated will place it in an extremely difficult financial position. It states that, according to the projected budget of its parent company, Limerick Alumina Refining Ltd, that company, and thus AAL, will make a net loss of USD 36.9 million (approximately EUR 30.4 million) in 2006. According to AAL, this is part of a short-term pattern. The requirement to pay a penalty of 8 million euros will place additional pressure on AAL's finances at a vulnerable period of its operation and could have a significant detrimental effect on its financial and competitive position. As its financial position is weakened, so too will be its competitive position vis-à-vis its global competitors.

40 AAL submits, essentially, that, in assessing its financial position, the Court should reconsider its case-law in respect of applicants forming part of an economic group. Although AAL forms part of the Glencore group, it is not the case that, if the business of AAL fails, the group will be able to find work for AAL's employees, since Glencore's interests are widely dispersed both geographically and in terms of subject-matter. In contrast to other group structures, individual trading groups within the Glencore group are, according to the applicant, treated as stand-alone businesses. AAL's viability is therefore assessed by the group independently of its parent company and of the other members of the group. AAL cannot expect to receive financial support from its group in order to pay the sums due under the contested decision.

41 AAL submits, in the second place, that the additional pressure placed on it by virtue of the repayment of the aid received could also have a detrimental effect on Glencore. If AAL has to close, the reduction in production capacity will have a significant effect on the alumina market and is likely to result in a significant price rise in alumina until additional capacity is built, that is for a period of four to five years. Glencore sells alumina produced by AAL under a series of long-term supply contracts with prices based on a percentage of the aluminium metal price. A loss of production units from AAL will force Glencore to source alumina from the spot market in order to fulfil its contractual obligations. The additional costs involved would be significant and could cripple Glencore financially.

42 AAL submits moreover, in the third place, that there are exceptional circumstances justifying the grant of suspension of operation of the contested decision, even if it is not established that AAL's existence is in danger.

43 First, the grounds of the action for annulment and, in particular, the refusal to treat the aid as existing aid, the misuse of powers and the breach of the fundamental principles of protection of legitimate expectations and legal certainty, raise immediate and particularly serious doubts as to the legality of the contested decision. The possibility of serious doubts as to a measure's legality justifying, on an exceptional basis, the adoption of interim measures was evoked by the Court in the cases which gave rise to the orders of the President of the Court of First Instance in Case T 295-94 R Buchmann v Commission [1994] ECR II-1265 (paragraph 27) and Case T 301-94 R LaakmannKarton v Commission [1994] ECR II 1279 (paragraph 30). Even though in those cases serious doubts were ultimately found not to exist, AAL claims that the doubts raised in the present case do justify suspending the operation of the contested decision.

44 Second, the present case is exceptional in that the enforcement of the contested decision is not the only Community interest at issue. The interest of the applicant in obtaining suspension of the operation of the contested decision in order to avoid serious financial damage coincides with the Community interest in preserving the effects of validly adopted Community measures, in the face of a Commission decision the legality of which is in doubt.

45 The Commission submits that the applicant has also failed to adduce any evidence to establish the urgency of the measure applied for.

46 In the first place, as regards taking account of Glencore's resources, the Commission submits that, in assessing whether an applicant is likely to suffer serious and irreparable harm of a pecuniary nature in the absence of interim relief, it is also appropriate, according to the Court's case-law, to take account of the situation and resources of the entire undertaking, not only those of the legal person that is the applicant (order of the President of the Court of First Instance in Case T 13-99 R Pfizer Animal Health v Council [1999] ECR II 1961).

47 The Commission rejects the applicant's arguments to the effect that the present case should be distinguished from previous cases. The Commission submits essentially that the applicant is wholly controlled by Glencore, whose internet site states that the group's turnover in 2005 was USD 91 billion and that it has shareholders' funds of USD 6.4 billion. Accordingly, the repayment of a debt of 8 million euros cannot cause harm, let alone serious and irreparable harm, to a group with such significant resources.

48 In the second place, the Commission submits that the threat of serious and irreparable damage has not been demonstrated, moreover, by the applicant.

49 First, the applicant's arguments are posited on the claim that the contested decision will place it in an extremely difficult financial position. However, no reliance can be placed in this respect on the 'Income Statement Budget 2006' submitted by the applicant, since no explanation is offered by it as to the basis on which those figures have been formulated.

50 Second, the Commission rejects as unsubstantiated the applicant's argument that Glencore will not be able to find work for AAL's employees within the group if AAL's business fails.

51 Third, the applicant's suggestion that its business would fail on account of a temporary liability to 8 million euros is belied, according to the Commission, by the assertion that the allegedly poor prospects for 2006 are only a short-term pattern.

52 Fourth, the Commission submits that the claim that AAL cannot expect to receive financial support from the group to which it belongs in order to pay the monies due is both implausible and irrelevant. Quite apart from Glencore's initial investment on purchasing the AAL plant in 1999, the group recently invested 100 million euros in a combined heat and power plant at the refinery. The plant's output, which was recently expanded, is approximately 1.8 million tonnes per annum. The Commission also states that Glencore presumably believes that the strong prices for commodities will be sustained, a view supported by the evolution of aluminium and alumina prices in recent years. It is therefore inconceivable, according to the Commission, that Glencore would allow the closure of a plant in which it has made recent substantial investments, which are also not readily transferable, according to AAL itself, simply because of a transient liability of 8 million euros.

53 Fifth, as to the applicant's assertion that the pressure of the payment of 8 million euros could cripple Glencore financially, the Commission takes the view that, in the light of the group's turnover, that claim is preposterous and improper.

54 Sixth, the Commission submits that, if the closure of AAL would force Glencore to purchase alumina at high prices on the spot market to meet its contractual obligations, that only serves to confirm its view that Glencore would have every reason to provide financial support to AAL to ensure that the recovery of 8 million euros did not jeopardise the continued operation of the applicant's plant.

55 In the third place, as regards AAL's argument relating to the consideration of exceptional circumstances which justify the suspension of operation of the decision even where AAL's existence is not in danger, the Commission submits that the applicant for interim relief must cumulatively satisfy the requirements of establishing a prima facie case, urgency and that the balance of interests lies in favour of granting interim measures. The applicant attempts to overcome its difficulties in demonstrating urgency and the existence of a balance of interests in its favour by recycling its claim to have shown a prima facie case as an aspect of urgency and the balance of interests.

56 The Commission submits in that regard that the references to the orders in Buchmann v Commission and Laakmann Karton v Commission (paragraph 43 above) are irrelevant.

57 In that connection, by reference to the order of the President of the Court of Justice in Case C 445-00 R Austria v Council [2001] ECR I 1461, in which it was held that 'the urgency which the applicant may … invoke must be taken into consideration a fortiori by the President of the Court because … the plea alleging infringement … seems particularly serious', the Commission submits in essence that that case law cannot be interpreted as meaning that a complete failure to establish urgency can be overcome by a sufficiently strong prima facie case.

58 Finally, the Commission submits that the Community interest in upholding the exemptions granted by the Council plainly does not form part of the test of urgency and that that factor must be considered in connection with the balance of interests.

59 As regards the balance of interests, AAL submits that there are exceptional circumstances justifying the grant of suspension of operation of the contested decision: in the first place, the strength of the prima facie case; in the second place, the Community interest in suspending the operation of the contested decision in order to preserve the effects of the decisions adopted by the Council and Directive 2003-96 pending judgment in the main action. In the third place, it is necessary to take account of the fact that the exemption had been notified to the Commission in 1983, some 17 years before the Commission adopted the contested decision. Ireland therefore acted diligently in order to prevent the occurrence of the alleged damage and AAL had a legitimate expectation that no aid would be recovered. In those circumstances, AAL submits that the balance of interests lies in suspending recovery of the aid until such time as the Court has reached a decision in the main action. In the fourth place, the grant of suspension of operation would not cause any damage, let alone serious and irreparable damage, to the Commission or the public interest.

60 The Commission submits that, in connection with an application for interim measures seeking the suspension of operation of the obligation imposed by the Commission to repay aid which it has declared to be incompatible with the common market, the Community interest must normally, if not almost always, take precedence over the interest of the recipient of the aid in avoiding enforcement of the obligation to repay it before judgment is given in the main proceedings (order of the President of the Court of First Instance in Case T 198-01 R TechnischeGlaswerke Ilmenau v Commission [2002] ECR II 2153, paragraphs 113 and 114).

61 Furthermore, the Commission submits that it has a wide discretion when examining aid under Article 87(3) EC (order of the President of the Court of First Instance in Case T 181-02 R Neue Erba Lautex v Commission [2002] ECR II 5081, paragraph 118). It considers in that regard that the contested decision takes full account of the existence of the derogations granted to Ireland by the Council in limiting recovery to aid paid after the date on which the applicant was informed of the Commission's formal investigation under Article 88(2) EC. The contested decision thus reflects a balance struck between the due enforcement of the State aid rules and the existence of those derogations.

62 The Commission therefore considers, in essence, that the evidence put forward by AAL in support of its application, in relation to a prima facie case, cannot substitute for the lack of urgency and require the Court to balance the interests involved solely by reference to the alleged prima facie case.

Findings of the President of the Court

63 In the light of the circumstances of the case, it is first necessary to determine whether the requirement of urgency is satisfied.

64 In that regard, it is apparent from settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the interim measure. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of this kind (see order in Neue Erba Lautex v Commission, paragraph 61 above, paragraph 82, and the case-law cited; orders of the President of the Court of First Instance in Case T 316-04 R Wam v Commission [2004] ECR II 3917, paragraph 26, and of 25 April 2006 in Case T 455-05 R Componenta v Commission [2006] ECR II-0000, paragraph 34).

65 It is not necessary for the imminence of the damage to be demonstrated with absolute certainty, it being sufficient, especially when the occurrence of the damage depends on the concurrence of a series of factors, to show that damage is foreseeable with a sufficient degree of probability. However, the applicant is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (see order of the President of the Court of Justice in Case C 278-00 R Greece v Commission [2000] ECR I 8787, paragraph 15; order in Neue Erba Lautex v Commission, paragraph 61 above, paragraph 83, and the case law cited; order in Componenta v Commission, paragraph 64 above, paragraph 34).

66 In the present case, the applicant submits that repayment of the aid received would place it in an extremely difficult position and that, if operation of the contested decision were not suspended, it would suffer pecuniary damage which would be serious and irreparable.

67 Although it is established that damage of a pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable, or even as being reparable only with difficulty, if it can ultimately be the subject of financial compensation, it is also settled case-law that an interim measure is justified if it appears that, without that measure, the applicant would be in a position that could jeopardise its existence before final decision in the main action or irremediably alter its position in the market (order in Neue Erba Lautex v Commission, paragraph 61 above, paragraph 84; orders of the President of the Court of First Instance in Case T 169-00 R Esedra v Commission [2000] ECR II 2951, paragraph 45; Case T 148-04 R TQ3 Travel Solutions Belgium v Commission [2004] ECR II 3027, paragraph 46; order in Wam v Commission, paragraph 64 above, paragraph 29).

68 It is as a consequence appropriate to determine first of all whether, in the present case, the applicant is in a position that could jeopardise its existence before final decision in the main proceedings.

69 As regards an alleged interference with the financial position of the applicant likely to endanger its existence, it must be recalled that the assessment of the material situation of an applicant may take into consideration inter alia the characteristics of the group to which it is linked by way of its shareholders (orders of the President of the Court of Justice in Case C 12-95 P TransaccionesMarítimas and Others v Commission [1995] ECR I-467, paragraph 12; Case C-43-98 P(R) Camar v Commission and Council [1998] ECR I-1815, paragraph 36; order of the President of the Court of First Instance of 4 April 2006 in Case T 420-05 R Vischim v Commission [2006] ECR II 0000, paragraph 81).

70 The applicant submits that, in this case, the President of the Court should depart from that case-law, having regard to the fact that, due to the structure of the Glencore group, by which AAL is wholly owned, Glencore might not provide it with financial support since, in particular, the individual trading groups within Glencore are treated as stand-alone businesses.

71 The applicant has however acknowledged, in its observations on the Commission's observations, that it cannot be excluded that Glencore will decide to provide the financial support which AAL might need. It states at most that this is uncertain.

72 In that regard, as the President of the Court recalled in paragraph 65 above, although the imminence of the damage need not be established with absolute certainty, the damage must none the less be foreseeable with a sufficient degree of probability (order in Neue Erba Lautex v Commission, paragraph 61 above).

73 Such is manifestly not the case here.

74 First of all, it is not disputed by AAL that Glencore has recently invested more than 100 million euros in a combined heat and power plant at AAL's refinery.

75 Second, the resources of the Glencore group, which are moreover not contested by the applicant, are such that it is not reasonably likely, in those circumstances, that the group would not come to the aid of its subsidiary in respect of a debt of a little over 8 million euros, even though the Court has not yet decided on the main application.

76 Finally, the applicant's argument to the effect that the consequence of the closure of its plant might be to oblige Glencore to source alumina from the spot market, at higher prices, in order to fulfil its contractual obligations demonstrates, contrary to AAL's submission, that Glencore would in actual fact have an interest in providing financial support to its subsidiary, at least pending judgment in the main proceedings.

77 Furthermore, the applicant has not adduced any sound evidence in support of its claim that the President of the Court should, in the present case, depart from the case-law according to which the assessment of the material situation of the applicant may take into consideration inter alia the characteristics of the group to which it is linked by way of its shareholders.

78 If consideration is given to the resources of the Glencore group, it must be stated, first, that the applicant has not adduced any evidence to show that its existence would be jeopardised by reason of the sum which it would be required to repay and, second, that the arguments which it puts forward in relation to the financial difficulties which Glencore might face are wholly unconvincing.

79 AAL submits, moreover, that, if its business failed, the future of its employees would be uncertain, since Glencore's interests are widely dispersed both geographically and in terms of subject-matter.

80 However, it is settled case-law that, in order to prove that the condition of urgency is satisfied, the applicant is required to demonstrate that the suspension of operation applied for is necessary for the protection of his own interests. In order to establish urgency, the applicant cannot plead harm to an interest which is not personal to him, such as harm to a general interest or the rights of third parties, whether individuals or a Member State. Such interests can be taken into account, where appropriate, only when the balance of the interests involved is being examined (see order in Wam v Commission, paragraph 64 above, paragraph 28, and the case-law cited; order in Componenta v Commission, paragraph 64 above, paragraph 35).

81 Apart from the fact that the risk claimed is at the very least hypothetical, the interest of AAL's employees is not the same as its own interest and cannot, therefore, be taken into consideration in order to establish the existence of serious and irreparable damage which is personal to the applicant (see, to that effect, order of the President of the Court of Justice in Case C-356-90 R Belgium v Commission [1991] ECR I 2423, paragraphs 23 and 24).

82 As to any irremediable effect on its competitive position, it must be found that the applicant has not adduced any conclusive evidence to substantiate its assertion, which must therefore be rejected.

83 AAL submits, finally, that there are exceptional circumstances justifying suspension of the operation of the contested decision. Those exceptional circumstances relate, first, to the existence of a particularly strong prima facie case and, second, to the Community interest in maintaining the validity and effects of Council measures by which exemptions from excise duty were granted to AAL.

84 As the Commission rightly states, although, in the light of Austria v Council, paragraph 57 above, the particularly strong nature of the prima facie case is not without influence on the assessment of urgency, these are, however, in accordance with Article 104(2) of the Rules of Procedure, two distinct conditions for obtaining suspension of operation, so that it is for the applicant to demonstrate the imminence of damage which is serious and reparable only with difficulty, if not irreparable. The mere demonstration of a prima facie case, even a particularly strong one, cannot therefore make up for a complete failure to demonstrate urgency.

85 The inevitable conclusion in this case is that the applicant has failed to demonstrate the existence of damage which is serious and reparable only with difficulty, so that the mere existence of a prima facie case, even a particularly strong one, assuming that it was demonstrated, would not be sufficient for its application to be allowed.

86 As to the interest in ensuring that the effects of Council measures are maintained pending judgment on the main application, such an interest can be taken into account, where appropriate, only when the balance of the interests involved is being examined (see order in Wam v Commission, paragraph 64 above, paragraph 28, and the case-law cited; order in Componenta v Commission, paragraph 64 above, paragraph 35). The applicant's argument in that respect cannot therefore be accepted since its purpose is to establish the existence of urgency.

87 In so far as the applicant pleads harm to the rights which it derives from the Council's decisions granting it an exemption from excise duties, it none the less fails to demonstrate that it would suffer serious and irreparable damage as a result.

88 In the light of the foregoing, since the applicant has not in any way substantiated its assertions as to the consequences of the operation of the contested decision, it must be found that AAL has not succeeded in establishing that, if the operation of that decision were not suspended, it would suffer serious and irreparable damage.

89 It follows that the condition as to the urgency of the application for suspension of operation is not sufficiently established. Consequently, the application for interim measures must be dismissed and it is not necessary to determine whether the other conditions for granting interim measures are met.

90 Although the applicant has not been able to demonstrate that it fulfilled the condition of urgency, the President of the Court none the less finds, having regard to all the evidence before him, that the application was still not vexatious and rejects the Commission's contention that the applicant should be ordered to pay the costs on that ground.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1. The application for interim measures is dismissed.

2. Costs are reserved.