T-96/92

ORDER OF 15. 12. 1992 — CASE T-96/92 R

Court and therefore to upset the func­ if it appears that, without them, the appli­ tioning of the undertakings concerned, cants would be exposed to a situation and where the grant of the interim mea­ liable to endanger their future. sures applied for in the alternative would prolong the existence of a dominant pos­ ition liable to entail irreversible repercus­ sions on competition in the sector con­ cerned, which the conditions and In the present case, the contested decision obligations imposed by the decision are cannot in principle have repercussions on specifically intended to bring to an end, it the rights of the employees of the under­ is incumbent on the judge hearing the takings concerned or expose them to the application for interim measures to bal­ risk of a loss such as to justify interven­ ance all the interests involved. Accord­ tion by the judge hearing the application ingly, account must be taken not only of for interim measures. Quite apart from the applicants' interests and of the Com­ the fact that the concentration authorized mission's interest in restoring effective is not accompanied by any dismissals, competition but also of the interests of Regulation No 4064/89 does not in any third parties, in particular the undertak­ way undermine the collective rights of the ings concerned, in order to obviate both workforce, and, by virtue of Articles 3 the creation of an irreversible situation and 4 of Directive 77/187 on the approx­ and serious and irreparable damage to any imation of the laws of the Member States of the parties to the proceedings or to a relating to the safeguarding of employees' third party or to the public interest. rights in the event of transfers of under­ takings, the transferor's rights and obliga­ tions under a contract of employment or In such circumstances, the grant of the an employment relationship are trans­ measures applied for can be justified only ferred to the transferee.

CCE GRANDES SOURCE AND OTHERS v COMMISSION

Comité d'Etablissement de la Source Perrier, a staff committee governed by Book IV of the French Labour Code,

Syndicat CGT de la Source Perrier, a trade union governed by Book IV of the French Labour Code,

and

Comité de Groupe Perrier, a staff committee governed by Book IV of the French Labour Code,

having their headquarters at Vergèze, represented by Jean Méloux, of the Montpel­ lier Bar, with an address for service in Luxembourg at the Chambers of Guy Thomas, 77 Boulevard Grand-Duchesse Charlotte,

ORDER OF 15. 12. 1992 — CASE T-96/92 R

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

makes the following

Order

Facts

1 By application lodged at the Registry of the Court of First Instance on 9 Novem­ ber 1992 the Comité Central d'Entreprise de la Société Générale des Grandes Sources, the Comité d'Etablissement de la Source Perrier, the Syndicat CGT de la Source Perrier and the Comité de Groupe Perrier (hereinafter 'the applicants') brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of the Commission's decision of 22 July 1992 relating to a pro­ ceeding under Council Regulation (EEC) No 4064/89 (IV/M.190 — Nestlé/Perrier, OJ 1992 L 356, p. 1).

3 The Commission submitted its written observations on the application for interim measures on 23 November 1992. The parties presented oral argument on 1 Decem­ ber 1992.

4 Before the merits of the application for interim measures are considered, it is appropriate to give the background to the present case and, in particular, the essen­ tial facts underlying the dispute before this Court, as set out in the parties' plead­ ings and described in their oral submissions at the hearing on 1 December 1992.

5 On 25 February, Nestlé SA ('Nestlé') notified to the Commission in accordance with Article 4(1) of Council Regulation (EEC) No 4064/89 on the control of con­ centrations between undertakings (OJ 1989 L 395, p . 1,) a public bid by Demilac, a jointly controlled subsidiary of Nestlé and Banque Indosuez, for the shares in Source Perrier SA ('Perrier'). Nestlé and Demilac gave an undertaking that, if the takeover bid was successful, they would sell one of the subsidiaries of Perrier, the Volvie company, to the BSN group.

6 After examining the notification, the Commission decided, on 25 March 1992, to initiate the procedure provided for by Article 6(l)(c) of Regulation No 4068/89 on the ground that the concentration notified raised serious doubts as to its compat­ ibility with the Common Market. In the Commission's view, the operation was liable to create a dominant position either for the Nestlé/Perrier grouping in its own right or for Nestlé/Perrier and BSN together.

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— Nestlé must sell to that competitor the brand names and the sources Vichy, Thonon, Pierval, Saint Yorre and certain other local sources and the bottling capacities relating to those sources;

— Nestlé must not provide any data that are less than one year old on its sales volumes to any trade associations or any other entity which might make them available to other competitors;

— Nestlé must administer separately all assets and interests acquired from Perrier until completion of the sale of the abovementioned brand names and sources;

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CCE GRANDES SOURCE AND OTHERS v COMMISSION

— during the aforementioned period, Nestlé may not make any structural changes within Perrier without prior Commission approval;

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Arguments of the parties

1 1 The applicants consider that the legal conditions for the requested interim measures to be granted are satisfied. In their view, the contested decision is unlawful and its immediate implementation would entail serious and irreparable damage to them.

12 In support of their view that the Decision is unlawful, the applicants refer to the pleas in law advanced by them in their application in the main proceedings, in which they submit, essentially, that the contested measure was adopted on conclu­ sion of a procedure vitiated by substantive defects, in breach of the fundamental principles of Community social law, the provisions of the Treaty and the regula­ tions implementing them.

13 The applicants maintain in particular that by confining itself, at the request of CGT, to an ordinary hearing of the latter's representatives on 2 July 1992, the Commis­ sion contravened the obligation imposed on it by Regulation No 4068/89 and by Commission Regulation (EEC) No 2367/90 of 25 July 1990 on the notifications, time limits and hearings provided for in Council Regulation (EEC) No 4068/89 on the control of concentrations between undertakings (OJ 1990 L 219, p. 5) to inform the recognized workers' representatives in writing of the nature and subject-matter of the case, to set a time-limit for them to give their views and to grant them access to the file. They also claim that the Commission failed to inform them that they could be assisted by a lawyer, as provided for by Article 14(3) of Regulation No 2367/90.

16 Finally, the applicants consider that the decision is vitiated by an error of law and a manifest error of appraisal of the facts. In their view the Commission acted ultra vires by, on the one hand, presuming that Nestlé and BSN had engaged in con­ certed action and, on the other, incorporated in its examination of the concentra­ tion notified the concepts of 'oligopolistic dominance' and 'duopoly' which are not envisaged in the Treaty or in Regulation No 4064/89. In any event, the Commis­ sion relied on mere hypotheses and unsubstantiated inferences in concluding that the concentration would undermine competition.

17 As regards the risk of serious and irreparable damage, the applicants claim that the authorization granted for the concentration notified will necessarily have direct effects in the social sphere, which are already apparent from the announcement by Nestlé at the end of September 1992 of a plan for the loss of 740 jobs in the course of 1993. They add that that plan for reduction of the workforce will necessarily be followed by other job losses not merely because of the substantial transfers of assets required of Nestlé by the Decision but also because of the duplication of organizational structure as between Nestlé and Perrier. The applicants state that the

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loss of jobs represents irreversible damage for each worker affected since, under French law, in the absence of a general right to by re-engaged after an unjustified or improper dismissal, the only remedy available is to seek compensation. In the applicants' view, even the annulment by the Court of the contested decision, in the main proceedings, would not restore to the persons affected the rights of which they had been deprived since they would have become unemployed in the mean­ time.

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20 The Commission considers that in any event the application does not disclose any circumstances giving rise to urgency or pleas of fact and law establishing a prima facie case for the interim measures applied for.

21 As regards urgency, the Commission considers that the applicants have neither determined the certain and imminent nature of the damage caused nor established a direct link between the damage and the decision. The Commission observes that any job losses, of indeterminate scope, which might accompany future transfers of assets of the Perrier group can amount to no more than 'future and uncertain dam­ age' within the meaning of the case-law of the Court of First Instance (order of the President of the Court of First Instance in Case T-19/91 Vichy v Commission [1991] ECR 11-265).

22 As regards the plan to eliminate 740 jobs in the course of 1993, the Commission argues that it is for the applicants to show that neither the national legislation nor the remedies available under national law would enable them to avoid the damage which might result from the implementation of that plan (order of the President of the Court of Justice in Case 142/87 R Belgium v Commission [1987] ECR 2589). It states in that regard that the French Labour Code imposes on an employer intend­ ing to lay off employees on grounds of redundancy a number of obligations vis- à-vis not only employees and their representatives but also the administrative authorities and that any default in that regard attracts penalties.

25 As regards the existence of a prima facie case, the Commission considers that the grounds of annulment relied on by the applicants are inadmissible or, at least, unfounded. In the case, more particularly, of the plea as to infringement of essen­ tial procedural requirements, the Commission states that the objections that no prior information was given and access to the file was denied are without substance. The Commission maintains that, without prejudice to the question whether the CGT may be regarded as a recognized workers' representative within the meaning of Article 18(4) of Regulation No 4064/89 or is one of the parties 'directly involved' to whom Article 18(3) of that regulation grants a right of access to the file, both the CGT and the other applicants were in a position to take advantage of the possibilities granted to them by the Community regulations on concentrations and that the Commission cannot be held responsible for the fact that the CGT did not ask to become involved in the procedure until it had reached a very advanced stage, for the fact that it did not seek access to the file or, finally, for the fact that it did not arrange to be represented by a lawyer at the meeting held by the Com­ mission. The Commission believes, on the contrary, that it gave very careful con­ sideration to the concerns expressed by the CGT representatives, as is clear from the fact that it responded rapidly to their request for information by organizing a meeting with them and inviting them to submit further observations in writing after that meeting, which they did.

27 The present application for interim measures is the first made to the Community judicature seeking, in particular, suspension of the operation of a decision adopted by the Commission by virtue of its powers under Regulation No 4064/89 on the control of concentrations between undertakings. That regulation makes it incum­ bent on the Commission to appraise in advance concentrations on a Community scale, having regard to the need to preserve and develop effective competition in the common market with a view to attainment of the internal market and enhance­ ment thereof. Accordingly, the Community legislature concluded that, whilst re­ organizations of undertakings within the Community, in particular concentrations, must be viewed positively because they respond to the needs of dynamic compe­ tition and can increase the competitiveness of European industry, improve condi­ tions of growth and raise the standard of living, care must also be taken to ensure that the process of reorganization does not result in lasting damage to competition (see the fourth and fifth recitals in the preamble to Regulation No 4064/89).

28 In that connection, it is clear from the 13th recital in the preamble to Regulation No 4064/89 that the Commission, in establishing whether or not concentrations are compatible with the common market, having regard to their effect on the structure

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of competition in the Community, must place its appraisal within the general framework of the attainment of the fundamental objectives set by Article 2 of the Treaty, including that of strengthening the economic and social cohesion of the Community referred to in Article 130a of the Treaty.

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33 In its case-law on the locus standi of third parties in relation both to competition and State aid and to dumping and grants, the Court of Justice has held that where a regulation confers on undertakings procedural rights entitling them to request the Commission to find an infringement of the Community rules or to submit obser­ vations in an administrative procedure, those undertakings may be able to institute proceedings in order to protect their legitimate interests (see the judgments of the Court of Justice in Case 26/76 Metro v Commission I [1977] ECR 1875, Case 191/82 FEDIOL v Commission [1983] ECR 2913, and Case 169/84 COFAZ v Commission [1986] ECR 391). The need to protect legitimate interests may also be a decisive criterion in deciding whether a natural or legal person may be regarded as directly or individually concerned by a decision in the same way as an addressee.

34 In the present case, Article 18(4) of Regulation No 4064/89, unlike the correspond­ ing provisions of the regulations laying down the procedures for the application of Articles 85 and 86 of the Treaty, expressly provides that recognized workers' rep­ resentatives of the undertakings concerned are entitled to be heard in the same way as other natural or legal persons showing a sufficient legitimate interest. Accord­ ingly, the question of the extent to which the recognized workers' representatives of an undertaking involved in a concentration may be entitled to bring proceedings to protect their legitimate interests calls for detailed examination.

38 As regards the request for an order from the Court that the Commission enjoin Nestle to defer any measure transferring the control of any unit within the Perrier group to any third party, it must also be pointed out that the effect of such a meas­ ure would be to suspend fulfilment of the commitments, described in paragraph 8 above, given by Nestle to the Commission, and, by that very fact, to prolong the existence of a dominant position liable to entail irreversible repercussions on com­ petition in the sector concerned, which the conditions and obligations imposed by the Decision are specifically intended to bring to an end. Indeed, compliance with those commitments, within the period laid down in the decision, is the precondi­ tion laid down by the Commission for its granting authorization for the concen­ tration notified to it to be carried out.

39 In view of that factual and legal situation, it is incumbent on the judge hearing the application for interim measures not only to balance the interests of the applicants against the Commission's interest in restoring effective competition (see the orders of the President of the Court of Justice in Case 45/87 R Commission v Ireland 87 [19783, Case 56/89 R Publishers Association v Commission [1989] ECR 1693, and of the President of the Court of First Instance in Cases T-24/92 R and T-29/92 R Langanese and Schöller v Commission [1992] ECR 11-1839) but also to have regard to the interests of third parties such as Nestle (order of the President of the Court of Justice in Case 92/78 R Simmenthal v Commission [1978] ECR 1129) in order to avoid both the creation of an irreversible situation and serious and irreparable damage to one of the parties to the proceedings or to a third party or to the public interest.

42 It has been consistently held by the Court of Justice that the urgency of an appli­ cation for interim measures must be assessed in the light of the extent to which an interlocutory order is necessary to avoid serious and irreparable damage to the party seeking the interim measure. The party seeking suspension of the operation of a measure must furnish proof that he cannot await the conclusion of the main action without personally suffering damage which would have serious and irrepa­ rable consequences for him (see the order of the President of the Court of Justice in Belgium v Commission, cited above, paragraph 23).

4 3 According to the applicants, the urgency for the suspension arises from the announcement made by Nestlé at the end of September 1992 of a plan for 740 job cuts in the course of 1993, which would be followed, the applicants maintain, by other job losses attributable not only to the substantial transfers of assets required by the contested decision but also to the existence within Nestlé of organizational units similar to those in the Perrier group. The applicants maintain in particular that the absence of any right under French law to be re-engaged after an unjusti­ fied or improper dismissal gives rise to irreversible damage, the only reparation made usually taking the form of compensation.

44 As far as the plan for job cuts is concerned, the documents before the Court show that at the staff committee meeting of 23 September 1992 the new management of Perrier informed the staff representatives of the intended implementation, in the

46 In view of the foregoing considerations, it must be concluded that, even if the alleged damage appeared sufficiently certain, it could not be attributed directly to the contested decision or its implementation.

47 Accordingly, without its being necessary to analyse the pleas in law advanced by the applicants in support of their claim in the main proceedings, it must be held that the conditions for the grant of the requested interim measures are not satisfied and that the application must be dismissed.

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On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

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