Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE GENERAL COURT

18 September 2014 (*)

(Application for interim measures — State aid — Alcohol and spirits — Cancellation of a tax debt in a collective bankruptcy procedure — Decision declaring the aid incompatible with the internal market and ordering its recovery — Application for suspension of operation of a measure — New application — No new facts — Prima facie case not made out — Lack of any urgency)

In Case T‑103/14 R II,

Frucona Košice a.s., established in Košice (Slovakia), represented by K. Lasok, QC, B. Hartnett, J. Holmes, Barristers, and O. Geiss, lawyer,

applicant,

v

European Commission, represented by L. Armati, P.-J. Loewenthal and K. Walkerová, acting as Agents,

defendant,

APPLICATION for suspension of the operation of Commission Decision 2014/342/EU of 16 October 2013 on State aid SA.18211 (C 25/05) (ex NN 21/05), implemented by the Slovak Republic for Frucona Košice a.s. (OJ 2014 L 176, p. 38), in so far as it orders the Slovak Republic to recover the aid,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Facts, procedure and forms of order sought by the parties

1        The applicant, Frucona Košice a.s., is a company incorporated under Slovak law active in, inter alia, the alcohol and spirits production sector.

2        On 16 October 2013, the European Commission adopted Decision 2014/342/EU on State aid SA.18211 (C 25/05) (ex NN 21/05), implemented by the Slovak Republic for Frucona Košice a.s. (notified under document C(2013) 6261 (OJ 2014 L 176, p. 38); (‘the contested decision’). By that decision, the Commission found that State aid incompatible with the internal market had been granted to the applicant (Article 2 of the contested decision) and ordered the Slovak Republic to recover the aid from the applicant (Article 3 of the contested decision), specifying that repayment must be made without delay.

3        By application lodged at the Registry of the General Court on 17 February 2014, the applicant brought an action for the annulment of the contested decision.

4        By separate document, lodged at the Court Registry on 18 February 2014, the applicant brought an application for interim measures, in which it, in essence, sought suspension of the operation of Article 3(1) and (2) and Article 4 of the contested decision.

5        In its observations on the application for interim measures, the Commission contended that the Court should dismiss the application.

6        By order of 6 May 2014 in Frucona Košice v Commission, T‑103/14 R, EU:T:2014:255 (‘the order of 6 May 2014’), the President of the General Court dismissed the application for interim measures on the grounds that the applicant had not succeeded in satisfying the conditions relating to a prima facie case and of urgency, or in establishing that the interests at stake were weighted in its favour.

7        The applicant did not lodge an appeal before the Court of Justice against the order of 6 May 2014.

8        It did, however, lodge a new application for interim relief at the Court Registry on 28 July 2014, in which it claims, in essence, that the President of the Court should:

–        suspend the operation of Articles 3(1) and (2) and 4 of the contested decision pending judgment in the main action;

–        order any other interim measures deemed appropriate in the light of the circumstances of the case; and

–        order the Commission to pay the costs.

9        In its observations on the application for interim measures, which it lodged at the Court Registry on 22 August 2014, the Commission contends that the President of the Court should:

–        dismiss the application for interim measures as unfounded;

–        order the applicant to pay the costs.

 Law

10      Having regard to the material in the case-file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures, without there being any need first to hear oral argument from the parties.

11      Pursuant to Article 109 of the Rules of Procedure of the General Court, the rejection of an application for an interim measure does not bar the party who made it from making a further application on the basis of new facts.

12      According to settled case-law, ‘new facts’ within the meaning of that provision should be taken to mean facts which appear after the order dismissing the first application for interim measures was made or which the applicant was not capable of invoking in the first application or during the proceedings leading to the first order and which are relevant to the assessment of the case in question (see order of 13 October 2006 in Vischim v Commission, T‑420/05 R II, ECR, EU:T:2006:304, paragraph 54 and the case-law cited).

13      It must thus be assessed whether, in the present application for interim measures, the applicant — which did not lodge an appeal against the order of 6 May 2014 — has established that new facts exist which are capable of calling into question the assessments which led the judge hearing the application for interim measures to dismiss, by order, the first application for such measures.

14      As regards the condition relating to a prima facie case, it should be pointed out that, in paragraphs 21 and 22 of the order of 6 May 2014, the arguments raised by the applicant, by means of a general reference to the main action, were declared inadmissible. Certain assertions made in point 22 of the first application for interim measures were considered, in paragraph 46 of the order of 6 May 2014, to be confused and incoherent, and were thus also declared inadmissible. In so far as concerns the first plea raised in the context of the first set of interim proceedings, alleging an infringement of the rights of the defence, the judge hearing the application considered, in paragraphs 24 to 32 of the order of 6 May 2014, that that plea was not, at first sight, capable of establishing the existence of a prima facie case. The result was the same for the second plea, alleging an error of law vitiating recital 83 of the contested decision for failing to apply the private creditor test. The judge hearing the application concluded, in paragraphs 33 to 42 of the order of 6 May 2014, that the arguments raised could not be considered to reveal the existence of difficult legal issues or of a major legal disagreement the solution to which was not immediately obvious.

15      In point 19 of its new application for interim measures, the applicant states that it wishes to submit further detail in relation to the pleas on which it based its action for annulment. To that end, it reproduces, in points 20 to 178 of that application and over 30 pages, the entire action which it brought in the main action, including the footnotes, adding, first, responses to the defence lodged by the Commission in that same action and, second, its criticism of the order of 6 May 2014.

16      In doing so, far from producing new facts capable of calling into question the assessment made in the order of 6 May 2014 as to whether there was a prima facie case, the applicant attempts to remedy the deficiencies in the legal arguments which it raised in the context of the first set of interim proceedings and to increase the persuasiveness of its legal arguments as compared with its initial arguments. However, Article 109 of the Rules of Procedure was not conceived to enable an applicant, whose application for interim measures has just been rejected, to lodge one or more new applications for interim measures so as to initiate a legal debate with the judge hearing the applications. If such an applicant is not in a position to establish the facts which arose after the rejection of its first application for interim measures or which could not be raised during the proceedings which led to that rejection, the only channel available to it is to bring an appeal before the Court of Justice so as to challenge any errors of law which may have been committed at first instance.

17      It follows that the legal arguments raised by the applicant in its new application for interim measures in relation to whether there is a prima facie case are not based on any new facts within the meaning of Article 109 of the Rules of Procedure. In those circumstances, there are no grounds justifying a different assessment from that made in the order of 6 May 2014.

18      Consequently, in the light of the case-law pursuant to which the conditions for granting interim measures are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (order of 14 October 1996 in SCK and FNK v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30), the present application for interim measures cannot be upheld.

19      In those circumstances, it is superfluous to adjudicate on the arguments raised by the applicant in its new application in relation to the condition of urgency, in so far as, in the order of 6 May 2014, that condition was examined only for the sake of completeness (see paragraph 47 of that order). The result is that the new arguments cannot be regarded as relevant to the assessment of the case in question, within the meaning of the case-law cited in paragraph 12 above.

20      In any event, it should be noted that the judge hearing the application for interim measures found, in paragraphs 55 to 58 of the order of 6 May 2014, that the applicant had failed to establish urgency within the meaning of the case-law, which required the taking into consideration of the characteristics of the group to which the applicant belonged and pursuant to which it ought to have produced all the evidence that would have enabled an evaluation of the financial characteristics of the group of which it, as a public limited company, with its shareholders, formed part, or to have shown that its objective interests were independent of those of its shareholders. However, the applicant produced no evidence of this kind that would have permitted the judge hearing the application for interim measures to examine the relevance of the notion of ‘group’ in the circumstances of this case.

21      In its new application for interim measures, the applicant asserts that it has three shareholders, one being a Slovak investment company and the other two natural persons, stating that the position of the shareholders is as stated in the annexes to its application. It adds that its shareholders are not parties to the present proceedings and that their financial risk, as shareholders of a joint-stock company, is limited, since under Slovak law they are not liable for the debts of the company. Moreover, the objective interests of the applicant are distinct from those of its shareholders. The latter are not undertakings operating in the same markets as the applicant.

22      In that regard, suffice it to note that none of the information provided by the applicant on the characteristics of its shareholders or the nature of the economic and financial interests pursued by them can be regarded as constituting a fact which appeared after the adoption of the order of 6 May 2014 or which it was not capable of invoking during the proceedings leading to that order, within the meaning of the case-law cited in paragraph 12 above. Rather, it constitutes information which the applicant could have and — in the light of the settled case-law cited in paragraphs 52 to 54 of the order of 6 May 2014 — should have already have been brought to the attention of the judge hearing the first application for interim measures.

23      Moreover, instead of proving the facts forming the basis of the claim that serious and irreparable damage is likely in the light of the notion of ‘group’ (paragraphs 51 and 52 of the order of 6 May 2014), the applicant limited itself to producing, in the annexes to its new application for interim measures, brief unilateral statements from its three shareholders, pursuant to which their financial resources are tied up elsewhere, which prevents them from providing further financing to the applicant, without furnishing any form of documentary evidence to substantiate those assertions. In addition, those statements were not issued in tempore non suspect, but in July 2014, namely shortly before the new application for interim measures was lodged and with the apparent aim to satisfy the criteria of the notion of ‘group’ set out in the order of 6 May 2014. Furthermore, as rightly pointed out by the Commission, the fact that the applicant and its shareholders operate in different markets does not automatically mean that the interests of its shareholders are totally distinct from those of the company, since the applicant has not established that it was in competition with its shareholders and thus pursued strategic objectives which were the contrary of those of its shareholders (see, to that effect, order of 13 April 2011 in Westfälische Drahtindustrie and Others v Commission, T‑393/10 R, ECR, EU:T:2011:178, paragraph 40).

24      In those circumstances, there is no ground justifying an assessment of urgency different from the one set out in paragraphs 55 to 58 of the order of 6 May 2014. There is therefore no need to rule on the arguments raised in the new application for interim measures in the light of the reasoning which the judge hearing the application for interim measures added in paragraphs 59 to 65 of that order, concluding that there was no urgency on the ground that the applicant had failed to show that the relevant Slovak remedies were defective or on the applicant’s letter of 15 September 2014 referring to a decision concerning it which a Slovak judge had adopted in the meantime.

25      Finally, as regards the balancing of the interests at stake, the applicant, instead of submitting any ‘new facts’ within the meaning of Article 109 of the Rules of Procedure, merely states that ‘no factor has been identified in the present case’ that would weigh against the grant of the interim measures sought.

26      It results from all of the foregoing that the conditions laid down in Article 109 of the Rules of Procedure have manifestly not been satisfied. Consequently, the present application for interim measures must be rejected.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      Costs are reserved.

Luxembourg, 18 September 2014.

* Language of the case: English.

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