T-12/93

applicants,

v

Commission of the European Communities, represented by Francisco Enrique Gonzalez Diaz, of its Legal Service, and Géraud de Bergues, a national expert sec- onded to the Commission's Legal Service under the scheme for that purpose, act- ing as Agents, with an address for service in Luxembourg at the office of Nicola Annecchino, also of its Legal Service, Wagner Centre, Kirchberg,

defendant,

A P P L I C A T I O N for suspension of operation of the Commission decision of 22 July 1992 relating to a proceeding under Council Regulation (EEC) N o 4064/89 on the control of concentrations between undertakings (Case N o IV/M.190 — Nestlé/Perrier) (OJ 1992 L 356, p . 1),

* Language of the case: French.

1 By application lodged at the Registry of the Court of First Instance on 3 February 1993, the Comité Centrale d'Entreprise of Vittel SA, the Comité d'Établissement of Pierval and the Fédération Générale Agroalimentaire C F D T brought an action under the second paragraph of Article 173 of the E E C Treaty for the annulment of the Commission decision of 22 July 1992 relating to a proceeding under Council Regulation N o 4064/89 on the control of concentrations between undertakings (Case N o IV/M.190 — Nestlé/Perrier) (hereinafter 'the decision').

2 By a separate document lodged at the Registry of the Court of First Instance on 2 March 1993, the Comité Centrale d'Entreprise of Vittel SA and the Comité d'Étab- lissement of Pierval (hereinafter 'the applicants') also applied, under Articles 185 and 186 of the E E C Treaty, primarily for suspension of the operation of the con- tested decision and, in the alternative, for an order from the Court of First Instance that the decision be suspended, in so far as it requires the transfer of Pierval, until the proceedings on the substance are determined.

3 The Commission lodged its written observations on the present application for interim measures on 17 March 1993. The parties presented oral argument on 23 March 1993.

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ORDER OF 2. 4. 1993 — CASE T-12/93 R

4 The essential facts of the case before the Court of First Instance, as set out in the parties' pleadings and their oral arguments, may be summarized as follows.

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CCE VITTEL v COMMISSION

8 O n 3 March 1993, the Commission published a press release to the effect that the purchase proposal from the Castel group contributed decisively to meeting all the requisite conditions and announced that it would proceed to bring the matter to a close once the obstacles to the actual transfer of the sources were removed, partic- ularly regarding transfer to the Castel group of the rights to exploit the Vichy and Thonon sources, which were vested in the French State and the town of Thonon- les-Bains respectively.

Law

9 Under the combined provisions of Articles 185 and 186 of the E E C Treaty and Article 4 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the European Communities, the Court may, if it considers that circum- stances so require, order that application of the contested act be suspended or pre- scribe any necessary interim measures.

10 Article 104(2) of the Rules of Procedure of the Court of First Instance provides that applications for interim measures under Articles 185 and 186 of the E E C Treaty must state the circumstances giving rise to urgency and the pleas of fact and law establishing a prima fade case for the measures applied for. Those measures must be provisional in the sense that they do not prejudge the decision on the sub- stance of the case (see, most recently, the order of the President of the Court of First Instance in Joined Cases T-7/93 R and T-9/93 R Langnese-Iglo and Schöller v Commission [1993] ECR 11-131).

and to those of Vittel, in general, in that the transfer would undermine their right to maintenance of the assets of the undertaking, particularly since, in the circum- stances of this case, they regard the financial consideration for the transfer as deri- sory. Furthermore, as a result of the transfer, the employees of Pierval will no longer be able to enjoy the considerable social advantages conferred on them either by their individual contracts or by the collective agreement in force for Vittel. In the applicants' view, such damage would be irreparable since the transfer, if effected, would have irreversible legal repercussions, notwithstanding the existence of conditions precedent or subsequent. That damage, moreover, flows directly from the decision of the Commission which made its declaration that the concentration between Nestlé and Perrier was compatible with the common market conditional upon the transfer of various sources, including Pierval.

1 3 As regards the pleas of fact and law establishing a prima facie case for the grant of the measure applied for, the applicants refer to the pleas and arguments in their application in the main proceedings, in which their criticisms of the Commission are essentially that:

— it infringed Regulation N o 4064/89 by applying Article 2(3) to a market char- acterized as being predominantly oligopolistic;

— it erred in law by basing its decision not on the need to preserve a pre-existing competitive situation but on an endeavour to find ways of developing compe- tition;

— it exceeded its powers;

15 The Commission maintains, in support of its contention that the main application is manifestly inadmissible, that in so far as the applicants did not seek to avail them- selves of the procedural rights conferred by Regulation N o 4064/89, the contested decision cannot be of individual concern to them within the meaning of the second paragraph of Article 173 of the E E C Treaty. In those circumstances, the present application for interim measures should be dismissed as inadmissible. In the Com- mission's view, that conclusion is not affected by the order of 15 December 1992 (Case T-96/92 R CCE Grandes Sources and Others v Commission [1992] ECR 11-2579) in which the President of the Court of First Instance considered that the question of the extent to which a remedy is available to the recognized represen- tatives of the workers of an undertaking taking part in a concentration in order to protect their legitimate interests calls for a detailed examination, with the result that the judge hearing an application for interim measures cannot hold that the appli- cation is manifestly inadmissible. According to the Commission, unlike the appli- cants in CCE Grandes Sources and Others, none of the applicants in this case ful- fils the, if not essential then at least necessary, condition of having taken part in the proceedings provided for by the regulation.

16 As regards urgency, the Commission considers that the applicants have not dem- onstrated that the contested decision exposes them to certain and imminent dam- age. In particular, the Commission observes that it has not been established how the transfer of Pierval by Nestlé would necessarily weaken Vittel, since the strength of that undertaking must now be assessed in the context of the Nestlé group, to which it has belonged since 1987. The latter's position can only be enhanced by

18 The Commission, whilst denying any causal link between the alleged damage and the decision, also claims that, even if the Court of First Instance were to consider that the applicants had demonstrated the existence of circumstances giving rise to urgency, the weighing of the respective interests of the parties should lead to the application for interim measures being dismissed since those measures would affect not only its own interests but also those of the Nestlé group and of the future pur- chaser of Pierval, which are not parties to these proceedings.

19 As regards the existence of a prima facie case, the Commission considers that the pleas in annulment advanced by the applicants are inadmissible or at any rate unfounded. The defendant analyses in detail each of the pleas and arguments put forward by the applicants and observes that, for the most part, they are covered by

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CCE VITTEL v COMMISSION

21 Persons other than those to whom a decision is addressed may claim to be con- cerned within the meaning of the second paragraph of Article 173 of the E E C Treaty only if that decision affects them by reason of certain attributes which are peculiar to them, or by reason of circumstances in which they are differentiated from all other persons, and by virtue of those factors distinguishes them individ- ually just as in the case of the person addressed (Case 75/84 Metro v Commission [1986] ECR 3021).

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22 As the President of the Court of First Instance stated in his order in CCE Grandes Sources and Others, in its case-law on the locus standi of third parties in relation both to competition and State aid and to dumping and subsidies, the Court of Jus- tice has held (Case 26/76 Metro v Commission [1977] E C R 1875, Case 191/82 Fediol v Commission [1983] ECR 2913, and Case 169/84 Cofaz v Commission [1986] E C R 391) that the need to protect legitimate interests may also be a decisive criterion in deciding whether a natural or legal person with the right to submit observations in an administrative procedure may be regarded as directly or indi- vidually concerned by a decision in the same way as an addressee.

23 In this case, it must be noted that, by contrast with the corresponding provisions of the regulations governing the procedures for the application of Articles 85 and 86 of the Treaty, Article 18(4) of Regulation N o 4064/84 expressly gives the rec- ognized representatives of the workers of the undertakings concerned the right to be heard, in the same way as other natural and legal persons.

27 The present application for interim measures is intended primarily to secure sus- pension of the operation of the decision by which the Commission authorized the takeover of Perrier by Nestlé and, in the alternative, an order from the Court that the operation of the decision be suspended, to the extent to which is requires the transfer of Pierval, until determination of the proceedings on the substance of the case.

28 With regard to the application for suspension of the operation of the contested decision, it must first be noted that, as the President of the Court of First Instance stated in his order in CCE Grandes Sources, cited above, the effect of granting that request would be to suspend throughout the course of the proceedings before the Court the authorization given by the Commission for the concentration notified to it and, therefore, the exercise by Nestlé of its voting rights within the Perrier group, a result which would be liable seriously to upset the very functioning of the undertakings in the group.

29 As regards the application for an order suspending the operation of the decision, in so far as it requires the transfer of Pierval, until determination of the proceedings on the substance of the case, it must be emphasized that, according to the Com- mission itself (see the press release of 3 March 1993 mentioned in paragraph 8 above), the Commission intends 'to bring this matter to a close once the obstacles to the actual transfer of the sources have been removed, particularly regarding transfer to the Castel group of the rights to exploit the Vichy and Thonon sources by the French State and the town of Thonon-les-Bains'. It follows that fulfilment of the preconditions for authorization of the notified concentration is still depen- dent on decisions by the French State and the town of Thonon-les-Bains.

31 Regardless of whether the transfer of part of the assets of an undertaking is liable to cause serious and irreparable damage to its employees, such a transfer normally gives rise, as the Commission agreed at the hearing, to irreversible legal and econ- omic effects. Whilst it is true that the mere irreversibility of a situation does not of itself mean that the applicants will suffer serious and irreparable damage, the fact nevertheless remains that, in the present circumstances, the President must take account of the irreversible nature of the effects that might flow from the transfer of Pierval, particularly since it appears that fulfilment of all the preconditions for authorization of the concentration is still dependent upon approval by bodies not parties to these proceedings, namely the French State and the town of Thonon-les- Bains. It is necessary to ensure that the condition concerning the transfer of the assets of Pierval is not complied with before it has been established to a sufficient extent that all the other conditions laid down by the decision are actually capable of fulfilment and, consequently, to avert the possibility that such a transfer might prove to be devoid of purpose.

32 That conclusion is, at this stage, impervious to the Commission's argument that the applicants have no interest in bringing an action, since any finding that the above- mentioned conditions were incapable of being fulfilled would give rise to a decla- ration that the concentration was incompatible with the common market, thereby rendering the sale of Pierval devoid of purpose. Such an argument presupposes that Pierval will not in any circumstances be transferred before such a finding. H o w -

33 In those circumstances, and in order to prevent the creation of an irreversible sit- uation as regards the parties to the proceedings or third parties, it seems justified to direct, by way of interim measure, that the Commission inform the Court of First Instance, as soon as it is in possession of the relevant information, that all the conditions relating to the transfer of assets laid down in the decision have been ful- filled and, in particular, that the obstacles to transfer of the rights to exploit Vichy and Thonon have been removed. It is also necessary, by way of protective measure, to order suspension of the operation of the decision, in so far as it makes any dec- laration as to the compatibility of the notified concentration subject to compliance with the condition concerning the transfer of Pierval, until such time as the judge hearing the application for interim measures is able to give a decision in the light of the information to be supplied to him by the Commission.

O n those grounds,

T H E PRESIDENT O F T H E C O U R T O F FIRST I N S T A N C E

hereby orders:

1. The Commission shall inform the Court of First Instance, as soon as it is in possession of the relevant information, that all the conditions relating to the transfer of assets laid down in its Decision of 22 July 1992 relating to a pro- ceeding under Council Regulation (EEC) N o 4064/89 on the control of con- centrations between undertakings (Case N o IV/M.190 — Nestlé/Perrier) have been fulfilled and, in particular, that the obstacles to transfer of the rights to exploit Vichy and Thonon have been removed.

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