COMPETITION • EUROPEAN LAW • PROCEDURE
The acts of the EU institutions are presumed to be lawful, which excludes that actions brought against them may have a suspensory effects. Nevertheless, Article 278 TFEU authorizes the EU judicature , if the circumstances so require, to order a stay of enforcement of the disputed act. The stay of enforcement may be granted if it is established that its grant is justified prima facie in fact and in law (fumus boni juris) and that it is necessary to avoid serious and irreparable damage to the interests of the applicant after balancing the interests of the parties. These requirements are cumulative.
The “fumus boni juris” condition obliges the applicant to present arguments against the decision that are likely to raise prima facie doubts as to its validity, or, at the very least, pleas in law that are not prima facie unfounded, which make it necessary at this stage for the court to carry out a more thorough examination. The fact that the question raised by the undertaking is new is a factor of assessment. It is not necessary for the fumus boni juris to be particularly compelling when the application for stay of enforcement concerns interim measures.
In addition, the applicant must establish that the enforcement of the Commission’s decision would cause it serious and irreparable harm and that there are urgent grounds for exceptionally staying the enforcement thereof. In other words, the applicant must prove the risk it alleges in support of its application. The risk must not be of a purely hypothetical nature: the applicant must provide specific evidence that allows the court to assess the precise consequences if the stay is not granted. Financial loss does not in principle constitute irreparable harm, as long as pecuniary compensation is likely to restore the undertaking to the situation that existed prior to the occurrence of the harm. The situation is different, however, if the damage cannot be quantified. Irreparable harm is constituted by an infringement of the undertaking’s copyright, a risk of disclosure of business secrets, the compromise of a distribution system or the endangerment of the survival of the undertaking.
The court will grant or refuse a stay after weighing up the interests of the parties involved. For the suspension to be necessary, the harm suffered must be disproportionate to the interest that the application of the decision represents for the Union.
The court rules by reasoned order, which may at any time be amended or cancelled on account of a change in circumstances. The decision suspends the application of the contested act but does not produce any other effects. In particular, it does not predetermine the points of law or fact at issue nor does it invalidate in advance the outcome of the decision to be rendered subsequently in the main proceedings.
