1 By a document lodged at the Registry of the Court of Justice on 16 January 1995, the appellants brought an appeal, pursuant to Article 168a of the EC Treaty and Article 50 of the Statute of the Court of Justice of the European Community, against the order made by the President of the Court of First Instance on 26 October 1994 granting an application for suspension of the operation of Article 2 of Commission Decisions C(94) 670/3, C(94) 670/2 and C(94) 670/1 of 24 March 1994 withdrawing the Community financial aid granted to each of the applicants for their respective projects to construct fishing vessels (Joined Cases T-231/94 R, T-232/94 R and T-234/94 R).
2 The order appealed against described the factual background to the dispute in the following terms:
"6 The applicants are companies whose object, under the instruments constituting them, is fishing, and who have a common majority shareholder and manager. Transacciones Marítimas SA (' Tramasa' ) was established in April 1984, and Makuspesca SA and Recursos Marinos SA were established in November 1986.
7 By Decision C(87) 2200/137 of 21 December 1987, adopted pursuant to Council Regulation (EEC) No 4028/86 of 18 December 1986 on Community measures to improve and adapt structures in the fisheries and aquaculture sector (OJ 1987 L 376, p. 7), the Commission granted financial aid of PTA 39 283 091 to Tramasa for the construction of a fishing vessel named "Tiburón III". That aid covered 35% of the amount of PTA 112 237 000 which the Commission stated was capable of being paid by way of subsidy. That amount was less than the total cost of the project, which amounted to PTA 126 500 000. As required by Regulation No 4028/86, the construction of the vessel 'Tiburón III' was also financed by aid from the Spanish authorities.
8 On 6 April 1988 Tramasa requested the Commission to make a part payment of the Community aid on the strength of an invoice from the constructing shipyard, dated 15 March 1988, which certified that 51% of the total investment had been paid. The Commission made the part payment on 12 July 1988. On 25 October 1988 Tramasa requested the Commission, on the strength of a shipyard invoice certifying payment of the full price of the vessel, to pay the balance of the aid. The Commission did so on 4 April 1989.
9 On 9 October 1989 Tramasa sold the vessel 'Tiburón III' for PTA 112 857 453.
10 By Decision C(89) 632/73 of 26 April 1989, adopted pursuant to Regulation No 4028/86, the Commission granted aid of PTA 107 570 097 to Recursos Marinos for the construction of a fishing vessel named 'Acechador' . That aid covered 35% of the amount which the Commission stated was capable of being paid by way of subsidy, namely PTA 307 344 850. That amount was less than the total cost of the project, which amounted to PTA 322 300 000. As required by Regulation No 4028/86, the construction of the vessel in question was also financed by aid from the Spanish authorities.
11 On 10 May 1989 Recursos Marinos requested the Commission to make a part payment of the Community aid on the strength of a shipyard invoice of 2 May 1989, which certified payment of 94% of the total investment. The Commission made the part payment on 28 July 1989. On 21 November 1989 Recursos Marinos requested the Commission, on the strength of a shipyard invoice of 4 October 1989 certifying that the full vessel price had been paid, to pay the balance of the aid. The Commission did so on 28 November 1989.
12 In May 1990 Recursos Marinos sold the vessel 'Acechador' for PTA 175 000 000.
13 By Decision C(89) 632/47 of 26 April 1989, adopted pursuant to Regulation No 4028/86, the Commission granted aid of PTA 79 934 630 to Makuspesca for the construction of a fishing vessel named 'Makus' . That aid covered 35% of the amount which the Commission stated was capable of being paid by way of subsidy, namely PTA 214 070 374. That amount was less than the total cost of the project, which amounted to PTA 217 250 000. As required by Regulation No 4028/86, the construction of the vessel was also financed by aid from the Spanish authorities.
14 On 5 June 1989 Makuspesca presented the Commission with a shipyard invoice of 8 February 1989, which certified payment of the full vessel price, and requested payment of the Community aid. The Commission paid it on 8 June 1989.
15 In July 1992 Makuspesca sold the vessel 'Makus' .
16 Between 25 and 31 March 1990, under powers conferred on them by Article 46 of Regulation No 4028/86, the Commission' s officers carried out inspection visits of the applicant companies to check the use of the aid granted. The inspections were particularly concerned with the companies' accounts. Following those visits, and at the request of the Commission, the departments of the Intervención General de la Administración del Estado (State Public Accounts Department) carried out inspections on the premises of the three companies in May 1990. The reports drawn up as a result of those inspections show, in particular, that authentication of the accounts of the companies in question had been refused for the financial year 1987, that the accounts for 1988 had been authenticated within the time-limit laid down by Spanish law, and that the 1989 accounts had been authenticated out of time. As a result of those inspections, the Spanish authorities adopted decisions reducing the aid they had granted and ordering repayment of the overpaid amounts.
17 The documents before the Court and the statements of the applicants' lawyers at the hearing on 9 August 1994 reveal that Recursos Marinos has been liquidated and that the two other applicants have not pursued any activity during the most recent financial years."
3 Article 1 of Decisions C(94) 670/3, C(94) 670/2 and C(94) 670/1 of 24 March 1994 withdraws the Community aid referred to. Article 2 of those decisions orders repayment of the aid granted.
4 On 15 June 1994, the now appellants instituted proceedings against the decisions before the Court of First Instance under Article 173 of the EC Treaty. On 6 July 1994, the appellants applied, pursuant to Article 185 of the EC Treaty, for suspension of the operation of Article 2 of the decisions. In the order now under appeal, the President of the Court of First Instance joined the three cases for the purposes of the application for provisional measures (first paragraph of the operative part), suspended the operation of Article 2 of the decisions (second paragraph of the operative part) and made the suspension conditional upon the provision of a bank guarantee in favour of the Commission covering the full amount of the aid granted, until judgment was given in the main action (third paragraph of the operative part).
5 In the present appeal, the appellants seek the annulment of the third paragraph of the operative part of the order under appeal.
6 In its defence, the Commission asks the Court of Justice to dismiss the appeal in its entirety, to grant in their entirety the forms of order sought at first instance and to order the appellants to pay the costs.
7 By a document dated 23 February 1995, the appellants sought leave, under Article 117(1) of the Rules of Procedure, to lodge a reply in order to give their views on certain matters and documents relied on by the Commission for the first time in its defence. The appellants allege a serious procedural irregularity detrimental to their right to a fair hearing, since no mention was made of those matters and documents at the appropriate time before the Court of First Instance.
8 The matters to which the appellants refer and the documents produced by the Commission in support of its contentions are irrelevant to the decision to be given on the present appeal. Consequently, it is inappropriate to grant the appellants' request to lodge a reply.
9 Since the parties' written submissions contain all the information necessary for a decision to be given on the present appeal, it is unnecessary for them to present oral argument.
10 In their appeal, the applicants claim that the President of the Court of First Instance, in determining the amount of the bank guarantee, infringed the principle of effective judicial protection and the principle of proportionality which are common to the laws of the Member States and have been recognized in Community case-law as being implicit in Article 185 of the EC Treaty and Article 107(2) of the Rules of Procedure of the Court of First Instance.
11 As far as the first principle is concerned, the appellants submit that the requirement of lodging security in an amount which cannot possibly be provided negates the right to judicial protection and contravenes Article 107(2) of the Rules of Procedure of the Court of First Instance, which, although allowing suspension to be made conditional upon the lodging of security, nevertheless requires that any decision to that effect be taken "in the light of the circumstances". According to the appellants, none of the undertakings can obtain a bank guarantee of an amount exceeding their own funds, nor can the shareholders, whose financial situation is not such as to enable them to obtain such a bank guarantee.
12 In assessing the ability of undertakings to furnish a bank guarantee, regard may be had not only to the circumstances of the undertaking which must lodge the guarantee but also to the financial possibilities of its shareholders, and to the resources available, as a whole, to the group of undertakings to which it belongs (see the order of the President of the Court of Justice of 7 May 1982 in Case 86/82 R Hasselblad v Commission [1982] ECR 1555 and the orders of the President of the Court of First Instance of 21 December 1994 in Case T-295/94 R Buchmann v Commission and T-301/94 R Laakmann Karton v Commission [1994] ECR II-000 and II-000, respectively).
13 The judge hearing the application for interim measures was therefore entitled to consider whether the appellants had at their disposal other financial means than their own resources in order to obtain the bank guarantee.
14 It is clear from paragraph 4 of the order under appeal that, at the hearing, the President of the Court of First Instance asked the appellants to provide certain information regarding their statutes, their legal and financial situation and their indebtedness to banks. The appellants were also asked to say whether it would be possible for them to furnish a bank guarantee covering the full amount of the aid granted.
15 The appellants replied on 26 August 1994 to the effect that it was difficult for them to obtain a bank guarantee. However, they provided no evidence of the impossibility of obtaining such a guarantee.
16 Consequently, in taking the view that he could require the appellants to lodge a bank guarantee in an amount exceeding that of their own funds, the President of the Court of First Instance did not contravene the principle of effective judicial protection.
17 As regards the principle of proportionality, the appellants state that the possibility of requiring an applicant to lodge a guarantee is a proper means of ensuring that no damage is suffered by the other party as a result of the requested suspension, not a self-contained protective measure for the benefit of the defendant. Consequently, the appellants consider that the Commission' s interest, which the Court of First Instance may consider it appropriate to safeguard in consideration of the grant of a suspension, is its interest in ensuring that the possibility of enforcing the suspended measure is not undermined, but not in improving enforcement possibilities beyond the rights it currently enjoys. According to the appellants, it must be made clear that, under the procedure for enforcement provided for in Article 192 of the EC Treaty, the Commission may apply for execution to be levied only upon the assets owned by the company to which the decision is addressed and for an amount not exceeding that of its own funds.
18 The appellants conclude that the order under appeal, by imposing as a precondition for suspension the constitution of a bank guarantee in an amount exceeding their own funds, infringed Article 107(2) of the Rules of Procedure of the Court of First Instance and contravened the principle of proportionality underlying that article.
19 The appellants' contention is untenable.
20 Article 2 of each of the Commission decisions orders repayment of all the aid obtained by the undertakings to which the decisions were addressed.
21 By suspending the operation of those provisions until the Court of First Instance has given judgment in the main action, the order under appeal not only temporarily prevents enforcement of the Commission decisions but also excludes recourse to any other legal remedy to recover all the aid withdrawn by the said decisions.
22 The judge hearing the application for interim measures took the view that, if the Commission had had to await the outcome of the main proceedings, it would have been exposed to a real risk of being unable to find sufficient assets to fund repayment of the contested aid in the event of dismissal of the actions. Consequently, he took the view that it was necessary, in order to safeguard the Community interest, to make the operation of his order conditional upon the provision of a bank guarantee capable of covering, if necessary, repayment of the aid received.
23 The judge hearing the application for interim measures thus weighed the interests of both sides in order to ensure the effectiveness of the judgment to be given in the main proceedings, whatever their outcome.
24 That approach is in conformity with Article 107(2) of the Rules of Procedure of the Court of First Instance and involves no breach of the principle of proportionality.
25 Consequently, the appeal must be dismissed.
Costs
26 Under Article 69(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs. Since the appellants have been unsuccessful, they must be ordered to pay the costs of the present appeal.
On those grounds,
THE PRESIDENT OF THE COURT
hereby orders as follows:
1. The appeal is dismissed.
2. Transacciones Marítimas SA (Tramasa), Makuspesca SA and Recursos Marinos SA are ordered to pay the costs of these proceedings in their entirety.
Luxembourg, 7 March 1995.
