T-73/98
ECLI:EU:T:1998:170
- Súd
- Všeobecný súd Európskej únie
- IČS
- 61998TO0073
- Zdroj
- eur-lex.europa.eu ↗
PRAYON-RUPEL v COMMISSION
O R D E R O F T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE 15 July 1998*
In Case T-73/98 R,
Société Chimique Prayon-Rupel SA, a company incorporated under Belgian law, established in Engis (Belgium), represented by Bernard van de Walle de Ghelcke, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Freddy B rausch, 11 Rue Goethe,
applicant,
v
Commission of the European Communities, represented by Dimitris Triantafyl- lou, of its Legal Service, acting as Agent, with an address for service in Luxem- bourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,
defendant,
APPLICATION for an order suspending the operation of Commission Decision SG(98) D/631 (State aid Cases N 198/97 and N N 81/97 — Germany —
* Language of the case: French.
II - 2771
ORDER OF 15. 7. 1998 — CASE T-73/98 R
Financial assistance for Chemische Werke Piesteritz GmbH), and for other interim relief,
T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Procedure
1 By application lodged at the Registry of the Court of First Instance on 5 May 1998, Société Chimique Prayon-Rupel SA (hereinafter Trayon') brought an action under the fourth paragraph of Article 173 of the EC Treaty for the annulment of Commission Decision SG(98) D/631 'of 16 December 1997/22 January 1998' (State aid Cases N 198/97 and N N 81/97 — Germany — Financial assistance for Chemische Werke Piesteritz GmbH) (hereinafter 'the contested decision').
2 By separate document, lodged at the Court Registry on the same day, Prayon applied under Article 185 of the Treaty for an order suspending the operation of the contested decision until the Court has given a ruling on the substance of the case, and under Article 186 of the Treaty for such other relief as might be just and appropriate.
II - 2772
PRAYON-RUPEL v COMMISSION
3 By application lodged at the Court Registry on 8 June 1998, the Federal Republic of Germany, represented by Ernst Röder, Ministerialrat, acting as Agent, of the Federal Ministry of Economic Affairs, Bonn, applied for leave to intervene in the proceedings in support of the form of order sought by the Commission.
4 The application for leave to intervene was served on the parties to the main action in accordance with Article 116(1) of the Rules of Procedure.
5 By fax received at the Court Registry on 9 June 1998, Prayon stated that it had no objection to the application for leave to intervene. However, by another fax lodged on the same day, it asked that the Federal Republic of Germany be served only with an expurgated version of the originating application and the annexes thereto and went on to list the information which in its submission was secret or confi- dential.
6 The Commission submitted its written observations on the application for interim relief on 19 May 1998. By a separate document lodged on 10 June 1998, it stated that it had no objection to the application for leave to intervene, but submitted that there was no reason, at the stage of the proceedings for interim relief, to ask for information in the documents before the Court to be treated as confidential.
7 By fax dated 11 June 1998, the Court Registry invited Germany to attend the hear- ing and served on it the non-confidential version of the application for interim relief and the Commission's observations on that application.
8 The parties presented oral argument on 12 June 1998.
II - 2773
ORDER OF 15. 7. 1998 — CASE T-73/98 R
Background to the case
9 The contested decision states that Chemische Werke Piesteritz G m b H (hereinafter 'CWP') was incorporated in 1994 for the purpose of acquiring, as part of a priva- tisation operation, the 'phosphorous-based products' operating division of Stick- stoffwerke A G Wittenberg Piesteritz. The acquisition was coupled with a restruc- turing plan. At present CWP produces pure phosphoric acid and phosphates.
10 Pure phosphoric acid is manufactured using either a 'wet' process or a 'thermal' process (see page 4 of the contested decision). In the 'wet' process, pure phospho- ric acid is extracted from crude phosphoric acid by means of a chemical reaction. In the 'thermal' process currently used by CWP, pure phosphoric acid is obtained by combustion of elemental phosphorous.
1 1 It appears from the contested decision that financial difficulties and problems in obtaining a supply of elemental phosphorous constrained CWP to alter the initial restructuring plan. Since crude phosphoric proved to be easier to obtain and cheaper to process than elemental phosphorous, it was decided, under the new restructuring plan, to change the raw material used and, as a consequence, also the method of production. According to the contested decision, one of the two fur- naces that CWP had thus far been using will remain in service but will only be used for the combustion of phosphine gasses; the second will be replaced, as part of the restructuring operation, by the new chemical processor. C W P would start using the 'wet' process in 1999.
II - 2774
PRAYON-RUPEL v COMMISSION
12 The contested decision states (at page 4):
The major disadvantage of [the "wet" method] is, once again, the initial investment in equipment. However, in this case, it is not a question of installing entirely new equipment, but of simply replacing the chemical processor, and this will mean that much of the old equipment can be used.'
13 The financing of the restructuring plan is essentially carried out by the German public authorities. According to the contested decision, the State aid in question is estimated at DEM 25 500 000 and comprises various elements, namely the State's agreement to deferred payment of the purchase price for the operating division of Stickstoffwerke AG Wittenburg Piesteritz, an investment grant made by the Bundesanstalt für vereinigungsbedingte Sonderaufgaben (the entity which suc- ceeded the Treuhandanstalt) and by the Land Saxe-Anhalt, and the covering of losses by those two public authorities.
1 4 Those measures were notified by the German Government to the Commission as restructuring aid. According to the contested decision, the Commission then applied the Community guidelines for State aid for the rescuing and restructuring of companies in difficulty (OJ 1994 C 368, p. 12), according to which (see p. 7 of the contested decision), 'in order for it to be exempted under Article 92(3)(c) of the Treaty, ... State aid must satisfy the conditions set out in point 3.2 of these guidelines'.
15 By the contested decision, the Commission took the view that the conditions laid down by the guidelines were satisfied, those conditions being a return to viability with the help of the restructuring plan, the avoidance of undue distortion of com- petition, limitation of the aid to the strict minimum required and verification by the German authorities of the full implementation of the restructuring plan. The
II - 2775
ORDER OF 15. 7. 1998 — CASE T-73/98 R
Commission concluded that the aid in question could be exempted, at the exami- nation stage under Article 93(3) of the Treaty, under Article 92(3)(c) of the Treaty and Article 61(3)(c) of the Agreement on the European Economic Area. It there- fore decided to raise no objection to the proposed aid.
16 It is common ground that the applicant manufactures, using the 'wet' process, products that are entirely substitutable for those produced by CWP. Without mak- ing a formal complaint to the Commission, the applicant sent it certain infor- mation while the measures in question were in the process of being examined.
Law
On the application for leave to intervene
17 Since the application by the Federal Republic of Germany for leave to intervene was made in accordance with Article 115(1) and (2) of the Rules of Procedure, it must be granted, in accordance with the first paragraph of Article 37 of the E C Statute of the Court of Justice which applies to the Court of First Instance by virtue of the first paragraph of Article 46 of the statute.
On the request for confidential treatment
18 It is appropriate at the stage of these proceedings for interim relief to grant Prayon's request for certain information to be treated as confidential since that information is prima facie such as may be regarded as secret or confidential within the meaning of Article 116(2) of the Rules of Procedure.
II - 2776
PRAYON-RUPEL v COMMISSION
On the admissibility of the application for suspension of operation
19 The Commission submits that the application for suspension of the operation of the contested decision is inadmissible.
20 First, the Commission maintains that the applicant has no interest in obtaining a suspension pending delivery of the final judgment. If such relief were granted, this would not halt the financing of C W P or prevent any distortion of competition, since the German authorities could, in any event, continue to support CWP by recourse to rescue aid.
21 Secondly, the Commission submits that the applicant has failed to show that it is threatened by the aid authorised by the Commission. The difficulties Prayon is encountering in the sector in question are general in nature and existed before the contested decision was adopted. Consequently, the relief applied for would be of no real benefit to the applicant.
22 It is settled case-law that, when deciding whether to grant interim measures, it is necessary to ascertain whether the applicant has established an interest in obtaining the measures requested (see, in particular, the order of 17 December 1996 in Case T-164/96 R Moccia Irme v Commission [1996] ECR II -2261, at paragraph 26). In the present case, an order suspending the operation of the contested decision would have the consequence of preventing the payment of the State aid envisaged by the decision to a company which is a competitor of the applicant. Without prejudice to the determination of the question whether the conditions for granting a suspension have been satisfied, payment of the aid would therefore help to strengthen, or at least to prevent any weakening in CWP's position in the market concerned. It follows that the applicant does have an interest in obtaining suspen- sion of the operation of the contested decision.
II - 2777
ORDER OF 15. 7. 1998 — CASE T-73/98 R
23 The Commission's second objection must also be rejected. To hold, as does the Commission, that suspension of the operation of the contested decision would be of no real benefit to the applicant would amount to denying, at the stage of con- sideration of the issue of admissibility, the existence of the harm alleged by the applicant and to pre-judging the question whether there is the requisite urgency for the grant of an order suspending the operation of that decision.
On the application for interim relief
24 Under the combined provisions of Articles 185 and 186 of the Treaty and Article 4 of Council Decision N o 88/591/ECSC, EEC, Euratom of 24 October 1988 estab- lishing a Court of First Instance of the European Communities (OJ 1988 L 319, p. 1), as amended by Council Decision N o 93/350/Euratom, ECSC, E E C of 8 June 1993 (OJ 1993 L 144, p. 21), the Court of First Instance may, if it considers that the circumstances so require, order that operation of a contested measure be suspended or may prescribe any necessary interim measures.
25 Article 104(1) of the Rules of Procedure of the Court of First Instance specifies that an application to suspend the operation of any measure adopted by an institu- tion is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance. Article 104(2) provides that applications for interim measures must state the circumstances giving rise to the urgency and the pleas of fact and law establishing a prima fade case for the interim measures applied for. Those requirements are cumulative, so that an application for interim measures must be dismissed if one of them is absent (order of 14 October 1996 in Case C-268/96 P(R) S CK and FNK v Commission [1996] ECR I-4971, paragraph 30).
26 It is appropriate in this case to examine first of all the issue of urgency.
II - 2778
PRAYON-RUPEL v COMMISSION
Arguments of the parties
27 The applicant maintains that the cost of a new purification plant may be estimated at DEM 30 million, whereas the aid authorised by the contested decision and which is destined for the construction of such a plant is DEM 10 million. Further- more, the explanation contained in the contested decision to the effect that CWP would keep its second furnace for purely environmental purposes and not for use in the production process is not technically plausible.
28 From those considerations the applicant essentially deduces that the aid in ques- tion is operating aid which will enable CWP to continue to sell its products cheaply in the market, or alternatively that the aid will enable CWP to build a rudimentary purification plant for use in addition to its second furnace, which would result in an increase in CWP's production capacity in a market which already has excess capacity.
29 The effects of the distortions of competition resulting from such use of the aid could be almost immediate and, in any event, might be felt before the annulment proceedings are likely to be concluded. In this connection, the applicant contends that the proposed new plant is supposed to become operational in 1999. It is there- fore necessary to prevent the aid from being paid to CWP and the new plant from being built.
30 As to the procedures for verifying implementation of the restructuring plan which, according to the contested decision, consist in the preparation by the German authorities of an annual report, these, the applicant maintains, would take place too late and could not prevent the harm alleged by it from occurring.
31 As more particularly regards the seriousness of that harm, the applicant emphasises that CWP's activities in the market, which are to a large extent supported by State
II - 2779
ORDER OF 15. 7. 1998 — CASE T-73/98 R
aid, are already causing it considerable commercial damage. It is therefore in no doubt that the aid authorised by the Commission will be used by C W P to bolster its aggressive pricing policy in the market. The applicant maintains that the harm which it is currently suffering will be aggravated as a result and that it will be very difficult to reverse the trend in the level of prices in the future. The applicant con- cludes that the risk of harm is almost certain or is at least established with a suf- ficient degree of probability.
32 O n the question of urgency, the Commission states first of all that the party seek- ing the 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 irreparable effects for him (order of 8 May 1991 in Case C-356/90 R Belgium v Commission [1991] E C R 1-2423, paragraph 23). In the present case, however, the effects of the restructuring ought not to be felt until 1999. The application is therefore clearly premature.
33 Next, the Commission submits, there is no causal link between the measure the suspension of operation of which is sought and the harm alleged by the applicant (order of 19 August 1988 in Case 191/88 R Co-Frutta v Commission [1988] ECR 4551, paragraph 21). It is going too far — indeed it is impossible — to attribute the loss of part of the applicant's market share and clientele to the survival of CWP, let alone to an authorised aid measure which has yet to produce its effects.
34 Lastly, the applicant's fears are essentially based on a presumption that C W P will fail to implement the restructuring plan and that the German and Community authorities will fail to provide effective controls. Hypothetical, potential and unspecified harm cannot, however, constitute serious and irreparable damage (order of 15 June 1987 in Case 142/87 R Belgium v Commission [1987] E C R 2589, paragraph 21).
35 Furthermore, the applicant has not shown that the distortion of competition it fears will in actual fact cause it real harm. Any such distortion of competition, if it
II - 2780
PRAYON-RUPEL v COMMISSION
were to arise, would affect the entire market and all of CWP's competitors rather than affecting the applicant personally and tangibly (order of 20 September 1982 in Case 220/82 R Moselstahlwerk v Commission [1982] ECR 2971).
Findings of the President of the Court
36 According to settled case-law, the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is for the party seeking suspension of the operation of a contested decision to prove that it cannot wait for the outcome of the main proceedings without suffering damage that would entail serious and irreparable consequences (see, inter alia, the order of 12 May 1995 in Joined Cases T-79/95 R and T-80/95 R SNCF and British Railways v Commission [1995] ECR II-1433, paragraph 36).
37 The applicant maintains that the alleged risk of harm, consisting in the weakening of its competitive position, would arise from serious distortion of competition in the market due to an aggressive pricing policy on the part of C W P or an increase in CWP's production capacity in a market with excess capacity, which would, in any event, lead to a general lowering of price levels.
38 The arguments advanced by the applicant do not, however, support the conclusion that the risk of harm, which depends on the occurrence of a number of factors, has been established with a sufficient degree of probability (see, in particular, order of 29 June 1993 in Case C-280/93 R Germany v Council [1993] ECR I-3667, at para- graphs 32 and 34).
II - 2781
ORDER OF 15. 7. 1998 — CASE T-73/98 R
39 In this connection, it should be emphasised that, in the present case, the occur- rence of the damage presupposes, in particular, a flagrant disregard for the terms of the contested decision.
40 First, it presupposes that the State aid will not be used for the purposes for which it was granted or that the restructuring plan will not be implemented correctly. However, it appears from the contested decision that, taking account of the infor- mation supplied by Prayon during the examination procedure provided for by Article 93(3) of the Treaty, the Commission questioned the German Government on this matter. The contested decision states (at pages 12 and 13) that 'additional information received by the Commission shows that the doubts concerning the possibility of building such a small factory were without basis ... All the peripheral plant and equipment will remain unchanged'. The contested decision also states (at page 13) that 'present capacity is ... 40 000 t of P 2 0 5 per annum and will not be increased as a result of the restructuring'. It concludes: '[a]s regards the complaint about dumping underwritten by State aid, the additional information shows that the aid will be used both to cover losses arising from inefficient production due to the company's history and its traditional links with a supplier of raw materials who is no longer reliable, and in connection with investment needed for moderni- sation and ensuring the company's long-term viability. Because of these require- ments, the aid cannot be used to subsidise product prices'.
41 Secondly, the occurrence of the damage presupposes that the German authorities will not satisfy themselves of the correct implementation of the restructuring plan. However, those authorities 'have undertaken to check that CWP fully implements the restructuring plan ...' (page 16 of the contested decision). There is no reason to believe that that undertaking will not be complied with, unless it is presumed that the German authorities will not take all the appropriate steps to ensure that the obligations arising from the contested decision are carried out.
II - 2782
PRAYON-RUPEL v COMMISSION
42 It follows that the harm that might be caused to the applicant by the operation of the contested decision is hypothetical and based on the probability of uncertain future events.
43 It must be added, in light of the foregoing, that the behaviour which the applicant imputes to CWP cannot be regarded as a necessary consequence of the operation of the contested decision. Therefore the causal relationship between the contested decision and the harm alleged by the applicant cannot prima facie be considered to be established.
44 Since the requirement of urgency has not been satisfied, the application for suspen- sion of the operation of the contested decision must be dismissed, and there is no need to examine the other pleas and arguments relied on by the applicant to justify the grant of such relief.
45 Lastly, as regards the application for such other interim measure as may be just and appropriate, that too must be dismissed for the reasons set out above (at para- graphs 42 and 43).
O n those grounds,
T H E PRESIDENT O F T H E C O U R T O F FIRST INSTANCE
hereby orders:
1. The Federal Republic of Germany is granted leave to intervene in support of the form of order sought by the Commission.
II - 2783
ORDER OF 15. 7. 1998 — CASE T-73/98 R
2. The request by Société Chimique Prayon-Rupel SA for certain information contained in its application for suspension of the operation of the measure in question to be treated as confidential is allowed at the stage of these proceed- ings for interim relief.
3. The application for interim relief is dismissed.
4. The costs are reserved.
Luxembourg, 15 July 1998.
H. Jung B. Vesterdorf
Registrar President
II - 2784