By Order of 11 October 2012 (Case T-389/12 R), the President of the General Court dismissed a request by Electricité de France ("EDF") for interim measures for lack of urgency. The application was aimed at the postponement of the date by which EDF had to make a final investment decision, relating to merger remedies.
In 2009, the Commission had given the green light for the acquisition by EDF of the Belgian undertaking Segebel, albeit subject to certain divestment obligations (Case COMP/M.5549). In its decision, the Commission required EDF inter alia to divest the ‘Nest-Energie’ power plant project, in the event it did not take a final decision to invest itself in that project by 30 June 2012. In May 2012, EDF requested the Commission to grant it a postponement of the deadline until late 2014 on account of unforeseeable changes on the Belgian electricity market. However, the Commission only granted an extension until 15 October 2012. EDF then lodged an application for annulment of this decision, as well as an application for interim measures, aimed at obtaining a postponement of the date by which it had to make a final investment decision.
By reference to established case law, the President recalls that when the harm invoked by an applicant for interim measures is of a financial nature, the applicant must demonstrate that, absent interim measures, its financial viability would be seriously threatened or that its market share would be affected substantially. In doing so, the applicant must present a faithful overall picture of the financial situation based on specific and precise particulars. Taking these considerations into account, the President concludes that in the application for interim measures EDF failed to provide any information whatsoever on the size and turnover of its undertaking, but instead confined itself to expressing doubts as to the quantifiability of the alleged harm. In addition, the President notes that EDF fails to provide any details on the financial strength of the group to which it belongs.
The President goes on to consider that the alleged financial harm would in any event remain substantially below the cost of the investment in the Nest-Energie project, which is estimated at €800 million. Furthermore, the President finds that the harm caused to EDF, either by the divestment of the assets of the company charged with the development of the Nest-Energie, or by the final decision by EDF to invest in the project itself, cannot be categorised as serious in the light of the EDF group’s overall financial strength, which amounts to €65 billion according to the group’s 2011 report. The application for interim measures is dismissed.