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

ORDER OF THE PRESIDENT OF THE GENERAL COURT

13 September 2019 (*)

(Application for interim measures — State aid — Extension of time limit — No interest)

In Case T‑566/19 R,

Scandlines Danmark ApS, established in Copenhagen (Denmark),

Scandlines Deutschland GmbH, established in Hamburg (Germany),

represented by L. Sandberg-Mørch, lawyer,

applicants,

v

European Commission, represented by C. Georgieva-Kecsmar and S. Noë, acting as Agents,

defendant,

APPLICATION pursuant to Articles 278 and 279 TFEU seeking suspension of the formal investigation procedure in State aid case SA.39078 (2019/C) (ex 2014/N) — Denmark — Financing of the Fehmarn Belt Fixed Link project (OJ 2019 C 226, p. 5),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute, procedure and forms of order sought

1        The European Commission invited the interested parties in its decision of 14 June 2019, State aid SA.39078 (2019/C) (ex 2014/N) — Denmark — Financing of the Fehmarn Belt Fixed Link project (OJ 2019 C 226, p. 5) to submit comments within 1 month of publication of the decision in the Official Journal of the European Union.

2        On the day on which that decision was adopted, namely, 14 June 2019, the applicants, Scandlines Danmark ApS and Scandlines Deutschland GmbH, requested an extension of the time limit for submitting comments, on the ground that in July and August staff of the applicants in Denmark and Germany are on holiday.

3        On 17 June 2019, the Commission replied that this request was premature, since the aforementioned decision had not yet been published.

4        On 5 July 2019, the decision of 14 June 2019 was published in the Official Journal of the European Union.

5        On 9 July 2019, the applicants requested an extension of the time limit to 5 September 2019, given that staff are on holiday in July and the first half of August.

6        The Commission replied the same day that no extension of the time limit would be granted.

7        On 15 July 2019, the applicants requested the Commission to reconsider its position.

8        On 22 July 2019, the Commission replied that ‘on an exceptional basis’ the time limit was to be extended to 20 August 2019 (‘the contested decision’).

9        By application lodged at the Court Registry on 17 August 2019, the applicants brought an action against the Commission for annulment of the contested decision.

10      By separate document lodged at the Court Registry on the same day, the applicants brought the present application for interim measures, in which they claim that the President of the General Court should:

–        ‘instruct with immediate effect the Commission to suspend the formal investigation procedure in State aid Case SA. 39078; and/or issue an order with immediate effect prohibiting the Commission from adopting a final/positive decision, within the meaning of Articles 9(2), (3) and (4) of Council Regulation (EU) 2015/1589, or grant any other form of interim relief as may seem just and appropriate in the circumstances of the case, until the General Court has ruled on the application for interim measures’;

–        ‘instruct the Commission to suspend the formal investigation procedure in State aid Case SA. 39078; and/or issue an order prohibiting the Commission from adopting a positive decision, within the meaning of Articles 9(2), (3) and (4) of Council Regulation (EU) 2015/1589, concerning the measures covered by the decision to open the formal investigation procedure in State aid Case SA. 39078; or grant any other form of interim relief as may seem just and appropriate in the circumstances of the case, until the General Court has ruled in the main proceedings’; and

–        order the Commission to pay the costs.

11      The President of the General Court, taking the view that there was no scope for the immediate adoption of the requested measures, invited the Commission to submit its observations by 29 August 2019.

12      In its observations on the application for interim measures, lodged at the Court Registry on 29 August 2019, the Commission contends that the President of the General Court should:

–        dismiss the application for interim measures;

–        order the applicants to pay the costs.

13      It follows from the Commission’s observations that it did not grant another extension of the time limit and that the applicants submitted their comments ‘almost’ on time, on 20 August 2019, that is ‘a few minutes after midnight’.

 Law

14      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).

15      The first sentence of Article 156(4) of the Rules of Procedure requires applications for interim measures to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.

16      Accordingly, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative and, consequently, an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also required, when appropriate, to weigh up the competing interests involved (see order of the Vice-President of the Court of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).

17      In the context of that overall examination, the judge hearing the application has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, Case C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).

18      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.

19      The Commission having contested the admissibility of the application, it is appropriate to examine first whether the application for interim measures is admissible.

20      For the purposes of examining the admissibility of the application for interim measures, regard should be had to the settled case-law according to which it is necessary to ascertain, when deciding whether to grant interim measures, whether the applicant has established an interest in obtaining the measures requested (see order of 17 December 1996, Moccia Irme v Commission, T‑164/96 R, EU:T:1996:205, paragraph 26 and the case-law cited).

21      Since the time limit expired on 20 August 2019 and the applicants have submitted their observations, albeit not exactly on time, the main proceedings, by which the applicants sought the annulment of the contested decision setting the time limit of 20 August 2019, are, prima facie, in principle, devoid of purpose.

22      The applicants might have a continuing interest in pursuing the main proceedings if the Commission were to refuse to take into account the observations, which were submitted by the applicants not exactly within the time limit, or if they were able to argue that, due to the refusal to extend the time limit to 5 September 2019, their procedural rights were infringed.

23      In any event, none of those situations has yet arisen.

24      Since, at the current juncture, the main proceedings are, prima facie, devoid of purpose, the applicants have, in the circumstances, no valid interest in the formal investigation procedure in State aid case SA.39078 (2019/C) (ex 2014/N) being suspended.

25      It should be added that the applicants are, according to Article 160 of the Rules of Procedure, not barred from making a further application on the basis of new facts.

26      It follows, inasmuch as the application for interim measures is concerned and without prejudice to the findings in the main proceedings, that the applicants have not established an interest in obtaining the interim measures requested.

27      It follows from the foregoing that the application for interim measures must be dismissed as inadmissible, without it being necessary to rule on urgency or the condition relating to a prima facie case.

28      Pursuant to Article 158(5) of the Rules of Procedure, the costs must be reserved.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 13 September 2019.

*      Language of the case: English.

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