17 March 2023 (*)

(Interim measures – Articles 278, 279 and 299 TFEU – Appeal – Application for suspension of operation and for other interim measures – Debit notes issued by the European Commission for the recovery of grants awarded by contract – Urgency – Pecuniary damage)

In Case C‑781/22 P-R,

APPLICATION for suspension of operation and for other interim measures under Articles 278, 279 and 299 TFEU, brought on 23 December 2022,

LE, represented by M. Straus, advocaat,

appellant,

the other party to the proceedings being:

European Commission, represented by L. André, E. Garello and S. Romoli, acting as Agents,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, M. Szpunar,

makes the following

1.1 By its application for interim measures, LE requests the Court of Justice, pursuant to Articles 278, 279 and 299 TFEU, first, to order suspension of the operation of the judgment of the General Court of the European Union of 26 October 2022, LE v Commission (T‑475/20, not published, ‘the judgment under appeal’, EU:T:2022:672), by which the General Court dismissed its action for annulment of European Commission Decision C(2020) 3988 final of 9 June 2020 relating to the recovery of a principal amount of EUR 275 915.12 from it (‘the decision at issue’), and, second, to adopt any other just and appropriate interim measure.

2.2 That application was made in parallel with an appeal brought by LE on 23 December 2022 under Article 56 of the Statute of the Court of Justice of the European Union seeking to have the judgment under appeal set aside.

Background to the dispute

3.3 The background to the dispute is set out in paragraphs 2 to 29 of the judgment under appeal. It can, for the purposes of the present proceedings for interim measures, be summarised as follows.

4.4 On 28 June 2011, the Commission and the coordinator of a consortium of seven entities, which included the appellant, signed a grant agreement.

5.5 That coordinator informed the Commission of the existence of infringements allegedly committed by the appellant, following which an amendment to that agreement was concluded in order to terminate the appellant’s participation in that consortium.

6.6 After various exchanges with, inter alia, that coordinator and the appellant, the Commission, by debit notes Nos 3241801992, 3241803362 and 3241803343, sent on 21 March 2018, requested the appellant to pay the sums of EUR 264 041.31, EUR 10 910.01 and EUR 963.80 by 7 May 2018.

7.7 Since the payment reminder and the letters of formal notice were unsuccessful, the Commission adopted the decision at issue on 9 June 2020.

The procedure before the General Court and the judgment under appeal

8.8 By document lodged at the Registry of the General Court on 28 July 2020, LE made an application for interim measures seeking, inter alia, suspension of the operation of the decision at issue. That application was rejected by order of the President of the General Court of 27 November 2020, LE v Commission (T‑475/20 R, not published, EU:T:2020:574).

9.9 By application lodged at the Registry of the General Court on 9 August 2020, LE brought an action for annulment of the decision at issue, which was rejected by the judgment under appeal.

Forms of order sought by the parties

10.10 The appellant claims that the Court should:

–order suspension of the operation of the judgment under appeal and of the decision at issue;

–in the alternative, adopt any other just and appropriate measures; and

–order the Commission to pay the costs.

11.11 The Commission contends that the Court should:

–dismiss the application for interim measures; and

–order LE to pay the costs.

The application for interim measures

12.12 As a preliminary point, it should be noted, first, that it is open to the judge hearing the application for interim measures to dismiss an application for interim measures on the merits without first ruling on the plea of inadmissibility raised before him or her if the proper administration of justice justifies such dismissal (see, by analogy, judgments of 24 June 2015, Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce, C‑293/13 P and C‑294/13 P, EU:C:2015:416, paragraph 193, and of 28 January 2016, Quimitécnica.com and de Mello v Commission, C‑415/14 P, not published, EU:C:2016:58, paragraph 45).

13.13 In the present case, it is necessary to examine the merits of the present application for interim measures, without ruling on the objection of inadmissibility of that application raised by the Commission.

14.14 Second, Article 160(3) of the Rules of Procedure of the Court of Justice provides that applications for interim measures must 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’.

15.15 Accordingly, the judge hearing the application for interim measures may order interim relief only if it is established that such an order is justified, prime facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the appellant’s interests, it must be made and produce its effects before judgment is given on the merits. The judge hearing the application for interim relief must, where appropriate, also weigh up the interests involved. Those conditions are cumulative, so that an application for interim measures must be dismissed if one of them is not met (order of 8 April 2020, Commission v Poland, C‑791/19 R, EU:C:2020:277, paragraph 51 and the case-law cited).

16.16 In that regard, since that application is based not only on Articles 278 and 279 TFEU, but also on Article 299 TFEU, it follows from Article 165(1) of the Rules of Procedure that an application made under Article 299 TFEU is governed by the tenth chapter of Title IV of those rules of procedure and must, consequently, also meet the conditions set out in Article 160(3) of those rules of procedure.

17.17 In the context of the examination of those conditions, the judge hearing the application for interim measures has a wide discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of EU law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the Vice-President of the Court of 16 July 2021, ACER v Aquind, C‑46/21 P-R, not published, EU:C:2021:633, paragraph 16).

18.18 In the present case, it is appropriate to begin by examining the condition relating to urgency.

Arguments

19.19 LE claims that it has an urgent interest in applying for interim measures against the judgment under appeal because, if the decision at issue were to be enforced, it would face serious difficulties in presenting its arguments in the appeal proceedings as well as financial difficulties.

20.20 It submits that, since its business requires it to make substantial investments, it would face serious difficulties if it had to pay the amount claimed by the Commission and would no longer be able to ensure its defence.

21.21 In addition, the appellant claims that the General Court carried out only a very limited assessment of the relevant legal provisions and principles.

22.22 The Commission contends that LE does not claim that it would suffer serious and irreparable damage if the decision at issue were to be enforced, and it has not submitted any evidence which would enable a picture to be painted of its financial situation and of that of its shareholders. In particular, the only document which LE has produced for that purpose is merely a draft. Moreover, LE did not set out the reasons why the information contained in that document would make it possible to establish that the condition relating to urgency is met.

Assessment

23.23 According to the settled case-law of the Court, the purpose of interlocutory proceedings is to guarantee the full effectiveness of the future final decision, in order to ensure that there is no lacuna in the legal protection afforded by the Court. For the purpose of attaining that objective, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim protection. It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that nature. In order to establish the existence of such serious and irreparable damage, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty. It is sufficient to show that damage is foreseeable with a sufficient degree of probability (order of 17 December 2018, Commission v Poland, C‑619/18 R, EU:C:2018:1021, paragraph 60 and the case-law cited).

24.24 In that regard, in the first place, pecuniary damage cannot, save in exceptional circumstances, be regarded as irreparable, since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage (see, to that effect, order of the Vice-President of the Court of 3 June 2022, Romania v Parliament and Council, C‑547/20 R, EU:C:2022:446, paragraph 40 and the case-law cited).

25.25 In that respect, it is apparent from the Court’s settled case-law that, where the damage referred to is of a financial nature, the interim measures sought are justified, inter alia, where, in the absence of those measures, the appellant would be in a position that would jeopardise its financial viability before final judgment is given in the main action in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P-R, not published, EU:C:2021:972, paragraph 41 and the case-law cited).

26.26 In the present case, although LE claims that, in view of the enforceable effect of the judgment under appeal, by which the General Court dismissed its action for annulment against the decision at issue, the enforcement of that decision would cause it financial difficulties, it does not put forward any argument to establish that the damage on which it relies would be irreparable. In particular, it does not expressly claim that those difficulties would jeopardise its financial viability.

27.27 Even if the application for interim measures were understood as meaning that LE intended to refer to such a risk, where it states that enforcement of the decision at issue would prevent it from ensuring its defence, it must be borne in mind that, since the judge hearing the application for interim measures must have specific and precise information, supported by detailed documents showing that the undertaking concerned is in a position that would jeopardise its financial viability before final judgment is given in the main action, and enable the Court to examine the precise consequences likely to result from the measures requested not being taken, it is for LE to provide, with supporting documents, evidence and information making it possible to establish a true overall picture of its financial situation (see, to that effect, order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P-R, not published, EU:C:2021:972, paragraph 43 and the case-law cited).

28.28 That evidence includes information relating to the financial capacity of the shareholders of the undertaking concerned (order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P-R, not published, EU:C:2021:972, paragraph 44 and the case-law cited).

29.29 Moreover, in view of the need for expeditiousness which characterises, by their very nature, proceedings for interim measures, it may reasonably be required of the party seeking interim measures, save in exceptional cases, to present, from the moment of lodging its application, all the available evidence supporting that application, so that the judge hearing the application may assess its merits on that basis (order of the Vice-President of the Court of 30 November 2021, Land Rheinland-Pfalz v Deutsche Lufthansa, C‑466/21 P-R, not published, EU:C:2021:972, paragraph 45 and the case-law cited).

30.30 In the present case, the application for interim measures does not contain any precise information, evidenced by supporting documents, which would enable the current financial situation of LE and its shareholders to be assessed.

31.31 It is true that one of the annexes to that application contains certain data relating to LE’s accounting situation.

32

However, apart from the fact that those data appear in a document which is explicitly presented as being merely a draft which is subject to revision, it is not explained in the application for interim measures how those data should be interpreted in order to assess the effects of any implementation of the decision at issue on LE’s financial viability.

33

While it is true that the body of an application may be supported and supplemented on specific points by references to certain passages in documents annexed thereto, such annexes cannot make up for the absence of the essential arguments, which must appear in the body of the application itself (see, to that effect, order of the Vice-President of the Court of 30 November 2021, <i>Land Rheinland-Pfalz</i> v <i>Deutsche Lufthansa</i>, C‑466/21 P-R, not published, EU:C:2021:972, paragraph 49 and the case-law cited).

34

In those circumstances, it must be held that LE has not established that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable financial damage.

35

In the second place, in so far as LE also appears to base the urgency on the assertion that the judgment under appeal is vitiated by several errors of law, such an assertion, assuming it to be established, is capable of justifying the setting aside of that judgment but cannot suffice on its own to establish that any damage caused is serious and irreparable (see, to that effect, order of the Vice-President of the Court of 27 February 2018, <i>Czech Republic</i> v <i>Parliament and Council</i>, C‑482/17 R, not published, EU:C:2018:119, paragraph 38 and the case-law cited).

36

In the light of all the grounds set out above, it is apparent that LE has not established that the condition relating to urgency is met.

37

Having regard to the fact that the conditions for the grant of interim measures are cumulative, the application for interim measures must therefore be dismissed, without it being necessary to examine the conditions relating to a prima facie case and the weighing up of the interests.

Costs

38

In accordance with Article 137 of the Rules of Procedure, applicable to proceedings on appeal pursuant to Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings.

On those grounds, the Vice-President of the Court hereby orders:

Luxembourg, 17 March 2023.

Registrar

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Language of the case: English.