| | CFIR-109 (Rules of Procedure)Further application    
| CFI (Rules of Procedure) | Article 109 | | Rejection of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts. |
| Case | Pte | Ref | Text | T-303/04-R2
European Dynamics | 32 | CFIR-109 | 32. Under Article 109 of the Rules of Procedure, [r]ejection of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts'. | T-303/04-R2
European Dynamics | 52-56 | CFIR-108
CFIR-109 | 52. It should be observed at the outset that, in the present application, which constitutes a new application in the context of the same main action as the first application, the applicant invokes Articles 108 and 109 of the Rules of Procedure and seeks interim measures which are identical to those sought in the first application, that is suspension of the operation of the award decision and the letter giving reasons.
53. However, the first application was dismissed by the Court of First Instance by the Order of 10 November.
54. To the extent that in the present application the applicant invokes, without explaining why, Article 108 of the Rules of Procedure, it should be noted that, according to that provision, on application by a party, an order may at any time be varied or cancelled on account of a change in circumstances. This provision is, however, applicable in situations where an order prescribing interim measures is in place. It cannot be applied to situations where an application has been dismissed, such situations being governed by Article 109 of the Rules of Procedure (see to that effect the order of the Court of Justice of 14 February 2002 in Case C440/01 P(R) Commission v Artegodan [2002] ECR I1489, paragraphs 62 to 64).
55. According to Article 109 of the Rules of Procedure, rejection of an application for an interim measure shall not bar the party who made it from making a further application on the basis of new facts'.
56. Since the first application was dismissed and the present application is based on the alleged existence of new facts, it follows that it can be declared admissible only if the conditions prescribed in Article 109 of the Rules of Procedure are met (see to that effect the order of the President of the Court of First Instance of 8 October 2001 in Case T236/00 R II Stauner and Others v Parliament and Commission [2001] ECR II2943, paragraph 46). | T-303/04-R2
European Dynamics | 57-61 | CFIR-109 | 57. It is for the applicant to show that the conditions allowing the making of a further application, set out in Article 109 of the Rules of Procedure, are met.
58. The applicant has not, however, shown that those conditions are met in the present case.
59. It should be observed, as a preliminary point, that the applicant does not attempt to show clearly why the facts presented in the present application should be considered as new facts' within the meaning of Article 109 of the Rules of Procedure.
60. New facts' within the meaning of Article 109 of the Rules of Procedure should be taken to mean facts which appear after the order rejecting 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 appreciation of the case in question (see to that effect the order in Stauner and Others v Parliament and Commission ,cited above, paragraph 49; see also the order of the Court of Justice of 14 February 2002 in Case C440/01 P(R) Commission v Artegodan [2002] ECR I1489, paragraphs 63 and 64, the order of the President of the Court of First Instance of 4 April 2002 in Case T198/01 R Technische Glaswerke Ilmenau v Commission [2002] ECR II2153, paragraph 123, and the order of the President of the Court of First Instance of 21 January 2004 in Case T245/03 R FNSEA and Others v Commission [2004] ECR II-0000, paragraph 129, discussing the meaning of change in circumstances' in Article 108 of the Rules of Procedure of the Court of First Instance).
61. None of the data put forward by the applicant in the present application can be regarded as new facts within the meaning of Article 109 of the Rules of Procedure. | T-303/04-R2
European Dynamics | 62-65 | CFIR-109 | 62. In essence, the applicant relies on the new reports and, in addition, reiterates certain arguments, already put forward in the first application, regarding the importance of Lot ESP 5 for its overall operations and budget and the effects that the allegedly incorrect implementation of Lot ESP 5 could have on its operations, staff and budget.
63. The arguments in paragraph 3 of the present application regarding the fall in revenue of the applicant from EUR 16 million in 2001 to EUR 10 million in 2003, were already contained in the first application and were expressly rejected in the Order of 10 November as evidence supporting the allegation that the applicant's existence could be put in danger (paragraphs 51 and 75 to 76). Apart from the fact that, as in the first application, the applicant does not even attempt to show how such a fall in revenue could put its existence in danger, it is obvious that financial data dating from 2003 and already produced in the first application cannot constitute new facts within the meaning of Article 109 of the Rules of Procedure.
64. The same considerations apply as regards the arguments in paragraphs 3, 5 and 6 of the present application relating to the implementation of Lot ESP 5 and the consequences it could have on the applicant's operations, staff and budget, such as in particular the alleged forthcoming dismissal of a large number of the applicant's staff. These arguments do not present any new facts. They were already made in the first application and expressly rejected in the Order of 10 November (paragraphs 49 to 52 and 81).
65. The data presented in paragraph 4 of the present application are not relevant to an analysis of the condition of urgency and cannot therefore cast doubt on the conclusions reached in the Order of 10 November. In any event, those data relate to historical levels of consumption of various lots in the ESP markets. The applicant does not allege and it does not appear from the file that such data contain new facts which came into being after the Order of 10 November or which the applicant could not have invoked during the proceedings leading to that order. They cannot therefore constitute new facts within the meaning of Article 109 of the Rules of Procedure. | T-303/04-R2
European Dynamics | 66-69 | CFIR-109 | 66. As regards the new reports annexed to the present application, the applicant claims that they show that its financial situation was worse than it was painted in the old reports, in particular that its revenue up to 2003 had declined, that the list of customers and suppliers presented in the old reports was wrong and that the applicant does not own any real estate.
67. However, as the Commission rightly points out in its observations, the new reports cannot be considered new facts' within the meaning of Article 109 of the Rules of Procedure nor even a change in circumstances.
68. It should first be observed that the reports are not new, since the applicant could have invoked the new reports during the proceedings leading to the Order of 10 November. The Dunn and Bradstreet report of 2 November 2004 pre-dates the Order of 10 November while the EuroDB report is of unspecified date, and both reports are based on data pre-dating the Order of 10 November, in particular interviews with the applicant's management which took place on 1 November 2004 (page 2 of the Dunn and Bradstreet report) and financial data presenting the situation of the company as of the end of the calendar year 2003 (page 4 of the Dunn and Bradstreet report and page 3 of the EuroDB report). The applicant was therefore capable of invoking the new reports when it wrote to the Court on 2 November 2004. It should be recalled that the applicant's letter of 2 November was taken into account by the Court at the applicant's request.
69. Second, the new reports do not contain data which the applicant could not have invoked during the proceedings leading to the Order of 10 November. Financial reports such as the reports in question merely discuss the financial situation of a company on the basis of data collected by the authors of the reports. They may constitute additional evidence relating to the financial situation of the applicant but they do not change the actual facts pertaining to that situation. As the Commission rightly points out in its observations, if the mere existence of those reports (as opposed to the actual financial situation which they discuss), which are made in real time' at the request of a client and based largely on data provided by that client, were regarded as new facts' within the meaning of Article 109 of the Rules of Procedure, a litigant would be given the possibility of creating endless new facts by simply ordering a new report without any real change in its financial situation. | T-303/04-R2
European Dynamics | 70-72 | CFIR-109 | 70. In this respect, the applicant was perfectly capable of presenting data regarding the actual state of its own financial situation at the time of the first application or in response to the Commission's observations on the first application. It did not need external financial reports in order to prove that it has a certain number of clients or that it does not own real estate. In addition, given that the reports can be obtained in real time at the request of a client, it cannot be considered that the applicant was incapable of invoking updated reports in order to support its allegations with regard to urgency in the first application.
71. However, as the Order of 10 November makes clear, the applicant failed, in the first application, to provide data supporting its arguments that in the absence of the requested interim measures its financial situation was such that its existence would be put in danger. The mere existence of the new reports does not change the underlying financial situation of the applicant at the time of the first application or of the adoption of the Order of 10 November. In this respect, it is hard to imagine that the financial situation of the applicant changed sufficiently in the short period of two weeks between the date of the Order of 10 November and the date the present application for interim measures was made or even in the period following the first application. The applicant does not even claim that this is the case.
72. In the light of the above considerations, it can be concluded that the two reports cannot be regarded as new facts within the meaning of Article 109 of the Rules of Procedure. | T-303/04-R2
European Dynamics | 73-74 | CFIR-109 | 73. It should be observed in addition that, in any event, an examination of the content of the new reports, which it should be recalled discuss the applicant's financial situation at a time pre-dating the Order of 10 November, reveals that the overall evaluation of its financial situation is not substantially different from that painted by the old reports. It cannot thus constitute evidence putting into question the conclusion reached in the Order of 10 November that the applicant had not shown that it would be in a situation which, in the absence of interim measures, could endanger its very existence or irretrievably alter its position in the market (paragraph 73 of the Order of 10 November).
74. As the Commission rightly points out in its observations, the Dunn and Bradstreet report of 26 July 2004 and the new Dunn and Bradstreet report of 2 November 2004 classify the overall financial situation of the applicant in identical terms as being fair' with a financial rating of 2A3. (The old EuroDB report characterised the financial situation of the applicant as good' whereas the new EuroDB report does not contain any such description.) The new Dunn and Bradstreet report of 2 November 2004 adds that the applicant can be characterised as self-financed [to] a satisfactory degree'. Nor does the content of these reports change the conclusion reached in the Order of 10 November that the applicant has a large number of clients and participates in a variety of projects. Despite referring to a smaller client base, the new reports continue to indicate that the applicant has a range of 27 clients (see page 3 of the new Dunn and Bradstreet report) including major clients such as the European Commission, EUROSTAT, OPOCE and Cedefop (see page 2 of the EuroDB report). The applicant itself acknowledges that it continues to participate in major projects for the European Commission. As the Commission points out in its observations, such facts are corroborated by the applicant's own website. | T-303/04-R2
European Dynamics | 75-78 | CFIR-109 | 75. Finally, it should also be noted that, in any event, neither the existence nor the content of the new reports is such as to have any bearing on the conclusions reached in the Order of 10 November.
76. The existence of the reports cannot cast doubt on the conclusion reached in the Order of 10 November, that the applicant had failed to prove to the requisite legal standard that the alleged damage would flow from the contested acts, or that any such damage could be regarded as serious and irreparable as defined in the Court's case-law (see, to that effect, in particular, the orders of the President of the Court of First Instance of 20 July 2000 in Case T169/00 R Esedra v Commission [2000] ECR II2951, paragraph 43, and of 27 July 2004 in Case T148/04 R TQ3 Travel Solutions Belgium v Commission [2004] ECR II-0000, paragraph 41, and the case-law cited). That order was not based primarily on the content of the old reports but, inter alia, first, on the failure of the applicant to show a link between the alleged damage and the acts suspension of whose operation was sought (paragraphs 66 to 70 of the Order of 10 November) and, second, on the failure of the applicant to produce evidence concerning its financial situation from which the President could conclude that its existence would be endangered pending the Court's judgment in the main action (paragraphs 75 to 76) or evidence that the applicant's position in the market would be irretrievably altered (paragraph 81).
77. In the light of the above, it cannot be considered that the present application provides new facts within the meaning of Article 109 of the Rules of Procedure or, in any event, facts which could cast doubt on the conclusions reached in the Order of 10 November.
78. It follows that in the absence of such new facts the present application should be dismissed as inadmissible. | T-303/04-R2
European Dynamics | 81-83 | CFIR-64
CFIR-65
CFIR-105.2
CFIR-109 | 81. As was already held in the Order of 10 November, the applicant's request for production of the documents at issue can be understood only as an application for measures of inquiry or measures of organisation of procedure.
82. Under the first subparagraph of Article 105(2) of the Rules of Procedure the President of the Court assesses whether a preparatory inquiry should be ordered. Article 65 of the Rules of Procedure specifies that measures of inquiry include inter alia the production of documents. Article 64 of the Rules of Procedure allows the Court to adopt measures of organisation of procedure, including inter alia the production of documents or any papers relating to the case.
83. Since the present application for interim measures must be dismissed for failure to meet the conditions of Article 109 of the Rules of Procedure, the President considers that the documents at issue are of no relevance for the examination of the present application for interim measures, and that the measures sought by the applicant concerning those documents should not therefore be adopted. |
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