Ordonnance du Tribunal

Case T-217/03 R

Fédération nationale de la coopération bétail et viande (FNCBV)
v
Commission of the European Communities

«(Interim proceedings – Competition – Payment of fine – Bank guarantee – Prima facie case – Urgency – Balance of interests – Partial and conditional suspension)»

Order of the President of the Court of First Instance, 21 January 2004

Summary of the Order

1.. Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Prima facie case – Urgency – Cumulative nature – Balancing of all the interests involved
(Arts 242 EC and 243 EC, Rules of Procedure of the Court of First Instance, Art. 104(2))

2.. Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Prima facie case – Jurisdiction of the court hearing the application for interim measures – Conditions for allowing, in order to determine the ceiling to be complied with when setting the amount of a fine for infringement of the competition rules imposed on an association of undertakings, the turnover of its members to be taken into account – Not included
(Art. 242 EC, Rules of Procedure of the Court of First Instance, Art. 104(2), Council Regulation No 17, Art. 15(2))

3.. Applications for interim measures – Suspension of operation of a measure – Exemption from the obligation to provide a bank guarantee as a condition for the fine not being recovered immediately – Conditions for granting – Exceptional circumstances
(Art. 242 EC)

4.. Applications for interim measures – Suspension of operation of a measure – Exemption from the obligation to provide a bank guarantee as a condition for the fine not being recovered immediately – Conditions – Serious and irreparable damage – Association of undertakings – Taking into account the financial situation of its members – Condition – Merging of the objective interests of the association and those of its members
(Art. 242 EC)

5.. Applications for interim measures – Suspension of operation of a measure – Exemption from the obligation to provide a bank guarantee as a condition for the fine imposed for infringement of the competition rules not being recovered immediately – Balancing of all the interests involved
(Art. 242 EC, Rules of Procedure of the Court of First Instance, Art. 104(2))

6.. Applications for interim measures – Suspension of operation of a measure – Interim measures – Variation or cancellation – Condition – Change in circumstances – Meaning
(Rules of Procedure of the Court of First Instance, Art. 108)

1. Under Article 104(2) of the Rules of Procedure of the Court of First Instance, an application for interim measures 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is absent. Where appropriate, the judge hearing such an application must also weigh up the interests involved. see para. 13

2. As regards a fine for infringement of the competition rules imposed on an association of undertakings, the conditions for allowing the turnover of its members to be taken into account when applying the 10% ceiling laid down in Article 15(2) of Regulation No 17 warrant detailed examination and assessment solely by the court adjudicating on the substance. see para. 59

3. An application for an exemption from the obligation to provide a bank guarantee as a condition for the fine not being recovered immediately will only be granted in exceptional circumstances. The possibility of requiring the provision of a financial guarantee is expressly provided for with regard to applications for interim relief by the Rules of Procedure of the Court of Justice and of the Court of First Instance and is a general and reasonable way for the Commission to act. The existence of such exceptional circumstances may, in principle, be regarded as established where the party seeking exemption from providing the requisite bank guarantee adduces evidence that it is objectively impossible for it to provide such guarantee. see paras 69-70

4. The judge hearing an application for an exemption from the obligation to provide a bank guarantee as a condition for a fine imposed on an association of undertakings not being recovered immediately is required to assess the damage to that association having regard to the financial situation of its members, where the objective interests of the association are not independent of those of the member undertakings. In order to determine the extent to which the objective interests of an association are independent of those of its members, the existence of internal rules enabling the association to hold its members liable may be taken into account. However, the objective interests of the association may merge with those of its members as a result of other circumstances, regardless of the existence or absence of such rules. see paras 77, 80

5. When hearing an application for suspension of operation of the obligation under which an association of undertakings must provide a bank guarantee in order for the recovery of a fine for infringement of the competition rules to be postponed, it is for the judge to weigh the association's interest in avoiding ─ in the event that it is unable to arrange a bank guarantee ─ immediate payment of the fine against the Community's financial interest in being able to recover that sum and, more generally, against the public interest in preserving the effectiveness of Community competition rules and the deterrent effect of fines imposed by the Commission. see para. 92

6. Under Article 108 of the Rules of Procedure of the Court of First Instance, the judge hearing an application for interim measures may at any time vary or cancel an interim order on account of a change in circumstances. By a change in circumstances, what are especially envisaged are factual circumstances capable of altering the assessment of the judge. Furthermore, that possibility reflects the fundamentally precarious nature in Community law of measures granted in interim relief proceedings. see para. 97

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
21 January 2004 (1)

((Interim proceedings – Competition – Payment of a fine – Bank guarantee – Prima facie case – Urgency – Balance of interests – Partial and conditional suspension))

In Case T-217/03 R,

Fédération nationale de la Coopération Bétail et viande (FNCBV), established in Paris (France), represented by R. Collin and M. Ponsard, lawyers, with an address for service in Luxembourg,

applicant,

supported byFrench Republic, represented by G. de Bergues and F. Million, acting as Agents, with an address for service in Luxembourg,

intervener,

Commission of the European Communities, represented by P. Oliver and O. Beynet, acting as Agents, with an address for service in Luxembourg,

defendant,

APPLICATION for dispensation from the obligation to provide a bank guarantee in order to avoid enforcement of the fine of EUR 480 000 imposed by Commission Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 ─ French beef) (OJ 2003 L 209, p. 12),

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

makes the following

Order
Facts and procedure

1 By Decision 2003/600/EC of 2 April 2003 relating to a proceeding pursuant to Article 81 of the EC Treaty (Case COMP/C.38.279/F3 ─ French beef) (OJ 2003 L 209, p. 12, hereinafter the decision) the Commission found that the applicant had infringed Article 81(1) EC by participating ─ with the Fédération Nationale de l'Industrie et des Commerces en Gros des Viandes (FNICGV), which like the applicant represents cattle slaughterers, and with four federations representing farmers, namely the Fédération Nationale des Syndicats d'Exploitants Agricoles (FNSEA), the Fédération Nationale Bovine (FNB), the Fédération Nationale des Producteurs de Lait (FNPL) and the Jeunes Agriculteurs (JA) ─ in an agreement aimed at suspending beef imports into France and setting a minimum purchase price for certain categories of beef (Article 1 of the decision).

2 It is apparent from the decision that on 24 October 2001, during a crisis caused by bovine spongiform encephalopathy (BSE), termed a mad cow crisis, the applicant and the FNICGV on the one hand and the FNSEA, the FNB, the FNPL and the JA on the other reached an agreement under which they set minimum prices and undertook to suspend or at least to limit beef imports into France. At the end of November and the beginning of December 2001 the same federations allegedly concluded a verbal agreement with a similar purpose.

3 In the decision the Commission considers that the conclusion of these two agreements (hereinafter the disputed agreements) constitutes a serious infringement of Article 81 EC. It imposes a fine of EUR 480 000 on the applicant (Article 3 of the decision).

4 Article 4 of the decision lays down that the fine is payable within three months of the date of notification of the decision. The letter of notice, dated 9 April 2003, stated that if the applicant brought an action before the Court of First Instance the Commission would take no recovery measure, provided that the claim bore interest from the date of expiry of the payment period and that an acceptable bank guarantee were provided by that date at the latest.

5 By application lodged at the Registry of the Court of First Instance on 19 June 2003, the applicant instituted proceedings under the fourth paragraph of Article 230 EC for the annulment of the decision and, in the alternative, for the cancellation or reduction of the fine.

6 By a separate document lodged at the Registry of the Court of First Instance on 2 July 2003, the applicant sought interim measures dispensing it from the obligation to provide the bank guarantee imposed as a condition for avoiding the immediate recovery of the amount of the fine imposed by the decision.

7 The Commission submitted its written observations on the application for interim measures on 17 July 2003.

8 By application lodged at the Registry on 7 October 2003, the French Republic applied to intervene in support of the form of order sought by the applicant. By order of 14 October 2003 the President of the Court of First Instance granted the French Republic leave to intervene and requested it to present its observations at the hearing.

9 In the light of the observations of the Commission, the President of the Court of First Instance authorised the applicant to produce certain additional documents, which were lodged at the Registry of the Court of First Instance on 16 October 2003.

10 The hearing before the President of the Court of First Instance was held on 17 October 2003.

11 At the hearing the parties undertook to examine the possibility of an agreed staggering of payment of the fine and to inform the President of the Court of First Instance of the outcome of their discussions. The parties notified the outcome of these discussions and certain related documents on 7 November 2003.

Law

12 By virtue of the combined provisions of Articles 242 EC and 243 EC on the one hand and Article 225(1) EC on the other, the Court of First Instance may, if it considers that circumstances so require, order that application of the contested act be suspended or prescribe any other necessary interim measures.

13 Under Article 104(2) of the Rules of Procedure of the Court of First Instance, an application for interim measures 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. 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) SCKand FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing such an application must also weigh up the interests involved (order of the President of the Court of Justice in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).

Arguments of the parties

The existence of a prima facie case

14 In order to demonstrate that the condition for the existence of a prima facie case is met, the applicant submits two pleas concerning procedure and four substantive pleas with a view to annulment of the decision.

15 As regards the pleas concerning procedure, the applicant claims infringement of the rights of the defence and infringement of essential procedural requirements owing to the failure to provide reasons in the statement of objections and in the decision on not exceeding the ceiling of 10% of turnover in determining the amount of the fine.

16 As to the substantive pleas, the applicant contends first that the Commission committed a manifest error of appraisal in that it did not demonstrate that a vertical agreement existed between the various federations of farmers and slaughterers after 30 November 2001. According to the applicant, the Commission relied solely on the statements of the farmers' federations without producing evidence from slaughterers' federations confirming their participation in this alleged agreement. Moreover, the Commission failed to analyse developments in market prices subsequent to 30 November 2001.

17 Secondly, the applicant maintains that the Commission committed a manifest error of appraisal in considering that the disputed agreements had a measurable effect on competition. In fact, according to the applicant, the Commission itself acknowledged that no such effect occurred during the period of the written agreement of 24 October 2001 and did not demonstrate that there were any effects after the cessation of that agreement. Furthermore, in the applicant's view the Commission's assessment that the purpose of the agreement of 24 October was anti-competitive disregarded the context of the crisis in which the agreement was concluded.

18 Thirdly, according to the applicant the Commission committed an error of assessment by concluding that Article 2 of Council Regulation No 26 of 4 April 1962 applying certain rules of competition to production of and trade in agricultural products (OJ, English Special Edition 1959-1962 (II), p. 129) was not applicable in the present case. Contrary to the Commission's contention, the applicant maintains that the agreement did not contravene the objectives of Article 33 EC, as it made it possible, in particular, to ensure a fair standard of living for the farming population and to stabilise markets.

19 Lastly, the applicant maintains that the Commission infringed Article 15(2) of Council Regulation No 17 of 6 February 1962, First Regulation implementing Articles [81] and [82] of the Treaty (OJ, English Special Edition 1959-1962 (I), p. 87), in that it gave no information on the turnover used in determining the fine and did not check whether the amount of the fine was within the limit of 10% of the applicant's turnover.

20 In the alternative, the applicant maintains that the fine imposed should be quashed or reduced. It contends in this regard that the Commission infringed Point 5(b) of the Guidelines on the method of setting fines imposed pursuant to Article 15(2) of Regulation No 17 and Article 65(5) of the ECSC Treaty (OJ 1998 C 9, p. 3). In addition, according to the applicant, the Commission infringed Article 15(2) of Regulation No 17 by fixing the applicant's fine at EUR 480 000. Finally, in the view of the applicant the Commission committed a manifest error of appraisal and law, first in characterising the applicant's conduct as a very serious infringement, secondly when taking account of extenuating circumstances, thirdly in its assessment of the secret nature of the agreement and fourthly in ascertaining the duration of the agreement, which expired on 30 November 2001 and not on 11 January 2002.

21 The Commission considers that none of the pleas submitted by the applicant meets the condition for the existence of a prima facie case.

22 It observes that the plea regarding the failure to provide reasons in the statement of objections and the pleas seeking the annulment or reduction of the fine are too general and can be understood only in the light of the pleadings in the main proceedings. As they do not meet the criteria set out in the order of the President of the Court of First Instance in Aden and Others v Council and Commission (Case T-306/01 R [2002] ECR II-2387, paragraph 52), they should be dismissed as inadmissible.

23 The Commission contends that the other pleas are unfounded in law.

Urgency

24 The applicant considers that the condition as regards urgency is met in the present case. It points out that its financial situation is such that it is unable to furnish a bank guarantee for the amount of the fine plus interest.

25 The applicant observes first that, in accordance with Article 2 of its articles of association, its object is primarily to provide intellectual and professional support for agricultural collective-interest companies, co-operatives, groupings of cattle and meat producers and the subsidiaries of such bodies and to represent its members in relation to public authorities and various professional and interprofessional organisations. Hence it does not engage primarily in any activity likely to generate income and, in accordance with Article 6 of its articles of association, its financial resources consist of subscriptions from its members and the grants it receives, mainly from the State, départements or municipalities.

26 It states that in 2002 it had an operating income of EUR 1.84 million. This income came mainly from members' subscriptions (EUR 716 987), various grants received (EUR 331 408), the apprenticeship tax (EUR 140 099) and annual research agreements (EUR 321 292). It points out that its operating expenses in 2002 amounted to EUR 1.84 million, which enabled it to achieve an operating profit of EUR 3 306 and a net profit of EUR 921 in the 2002 financial year.

27 The applicant asserts that it can also be seen from the 2002 balance sheet that it held own funds of EUR 162 980. The provisional budget for 2003 foresees an operating loss of EUR 197 000, which would reduce its own funds.

28 The applicant also produces two letters from two French banks, dated 11 and 13 June 2003, in which the latter notify their refusal to provide a bank guarantee. The letter dated 13 June 2003 states that the amount sought greatly exceeds the applicant's own funds and that the annual results for the last three financial years do not hold out the prospect that they will increase over the medium term.

29 According to the applicant, the gravity of its financial situation is also confirmed by two letters from its auditor, dated 26 May and 19 June 2003, from which it transpires that in view of uncertainty about the continued operation of the applicant the auditor had had to initiate the first stage of a ‘warning procedure’ in accordance with the French Commercial Code.

30 The applicant asserts that its inability to furnish the requisite bank guarantee is all the more evident from the fact that it is a federation organised in the form of an association. In contrast to a group of companies, there are no capital links between the federation and its members. Its situation is therefore different from that which gave rise to the case-law of the Court of First Instance on the power of a company from the same group to rectify the inability of the accused company to furnish a bank guarantee by doing so in the latter's stead.

31 Furthermore, as its articles of association do not permit it to bind its members, its members cannot be held liable for its actions.

32 The Commission considers that the applicant has not proved satisfactorily that the condition as to urgency is met in the present case.

33 It observes first that the documents provided by the applicant to justify its financial difficulties are of little evidential value. In fact, the tax form relating to its accounts for the 2002 financial year is, according to the Commission, simply a tax return and not a statement certified by the auditor. As for the 2003 budget, it is submitted on unstamped paper, without any author's signature or auditor's endorsement.

34 Even supposing that the figures presented by the applicant are correct, in the view of the Commission the applicant has not in any way explored the possibility of its members' assisting it in providing a bank guarantee. The estimates provided by the applicant to the Commission show that the turnover of the member undertakings in the cattle sector is EUR 1.475 billion. It is therefore clear, according to the Commission, that with the help of its members the applicant would be able to pay the fine or provide the necessary bank guarantee.

35 As regards the financial links between the