Summary
Keywords
1 Applications for interim measures - Suspension of operation of a measure - Suspension of the obligation to provide a bank guarantee as a condition for non-enforcement of the right to immediate payment of a fine - Conditions for granting - Exceptional circumstances
(Art. 242 EC)
2 Applications for interim measures - Suspension of operation of a measure - Suspension of the obligation to provide a bank guarantee as a condition for non-enforcement of the right to immediate payment of a fine - Conditions for granting - Serious and irreparable damage - Account taken of the financial situation of the group to which the undertaking belongs
(Art. 242 EC)
3 Applications for interim measures - Suspension of operation of a measure - Conditions for granting - Cumulative conditions
(Art. 242 EC)
Summary
1 An application for dispensation from an obligation to provide a bank guarantee as a condition for non-enforcement by the Commission of its right to immediate payment of a fine can be granted only in exceptional circumstances.
In the context of applications for interim relief, express provision is made in the Rules of Procedure of both the Court of Justice and the Court of First Instance for requiring security to be lodged, which is a general and reasonable policy pursued by the Commission.
2 In assessing the ability of undertakings to furnish a bank guarantee, regard may be had to the group of undertakings to which it belongs and, in particular, to the resources available to that group as a whole.
That approach is based on the idea that the objective interests of the undertaking concerned are not autonomous in relation to those of the natural or legal persons with a controlling interest in it and that, consequently, the serious and irreparable nature of the damage alleged must be assessed at the level of the group comprising those persons. In particular, given that the interests at stake overlap, the undertaking's interest in its own survival must not be viewed in isolation from the interest of those controlling it in prolonging its life indefinitely.
In that connection a simple unilateral refusal of assistance by the principal shareholder cannot be enough to preclude the financial situation of the group as a whole from being taken into account. The extent of the damage alleged cannot flow from the unilateral intent of the majority shareholder of the undertaking.
3 In an application for interim measures, given the cumulative nature of the conditions for granting suspension of the operation of a measure, an application for suspension must be dismissed if any one of them is absent.
Accordingly, if the court hearing the application considers that the existence or imminence of serious and irreparable damage has not been established, it is no longer obliged to balance the various interests at stake.
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