ORDER OF THE PRESIDENT OF THE COURT

22 November 2007 (*)

(Appeal – Interim measures – Order that there is no need to adjudicate – Application to set aside – Appeal manifestly unfounded)

In Case C‑296/07 P(R),

APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice, lodged on 20 June 2007,

Commission of the European Communities, represented by J. Flett, acting as Agent, with an address for service in Luxembourg,

appellant,

the other parties to the proceedings being:

Scott SA, established in Saint-Cloud (France), represented by Sir Jeremy Lever QC, G. Peretz, Barrister, and R. Griffith and M. Papadakis, Solicitors, with an address for service in Luxembourg,

applicant at first instance,

French Republic,

intervener at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, P. Mengozzi,

makes the following

Order

1        By its appeal, the Commission of the European Communities seeks to set aside of the order of the President of the Court of First Instance of the European Communities of 30 March 2007 in Case T‑366/00 R Scott v Commission, not published in the ECR (‘the order under appeal’), whereby the President of the Court of First Instance ruled that there was no longer any need to take a decision in that case.

 Background to the appeal

2        On 12 July 2000, the Commission adopted Decision 2002/14/EC on the State aid granted by France to Scott Paper SA/Kimberly-Clark (OJ 2002 L 12, p. 1). According to that decision, the State aid in the form of a preferential land price and a preferential rate of water treatment levy granted by the French Republic to Scott Paper SA/Kimberley-Clark (‘Scott’) was declared incompatible with the common market. By the same decision, the Commission ordered recovery of the aid.

3        By application lodged at the Registry of the Court of First Instance on 30 November 2000, Scott brought an action for annulment in part of Decision 2002/14. At Scott’s request, the Court of First Instance decided to rule on the plea alleging infringement of Article 15 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) before examining the other pleas in the action.

4        By judgment of 10 April 2003 in Case T‑366/00 Scott v Commission [2003] ECR II‑1763, the Court of First Instance dismissed Scott’s application in so far as it was founded on infringement by the Commission of Article 15 of Regulation No 659/1999 and decided that the remainder of the proceedings would be continued.

5        By application lodged at the Registry of the Court of Justice on 24 June 2003, Scott lodged an appeal against the judgment of the Court of First Instance.

6        Pending the judgment of the Court of Justice, the Court of First Instance suspended the proceedings in Case T‑366/00 Scott v Commission.

7        By judgment of 6 October 2005 in Case C‑276/03 P Scott v Commission [2005] ECR I‑8437, the Court of Justice dismissed Scott’s appeal.

8        The proceedings in Case T‑366/00 were resumed and the parties presented oral argument and answered the questions put to them by the Court of First Instance at the hearing on 25 October 2006.

9        By application lodged at the Registry of the Court of First Instance on 18 January 2007, Scott applied for interim measures, seeking an order suspending Article 2 of Decision 2002/14 ordering recovery of the aid granted to Scott. That application was registered as Case T‑366/00 R.

10      By ex parte order of 24 January 2007, the President of the Court of First Instance provisionally granted Scott’s application until such time as the order terminating the proceedings should be made.

11      By judgment of the Court of First Instance of 29 March 2007 in Case T-366/00, not yet published in the ECR, the Court annulled Decision 2002/14.

12      Consequently, the President of the Court of First Instance made the order under appeal.

13      By application lodged at the Registry of the Court of Justice on 14 June 2007, the Commission appealed against the judgment of 29 March 2007 in Scott v Commission. That appeal was registered as Case C‑290/07 P (‘the appeal in the main case’).

 The appeal

14      By a separate document lodged at the Court Registry on 20 June 2007, the Commission appealed against the order under appeal.

15      In this appeal, the Commission claims that if the Court should allow in whole or in part its appeal in the main case, the reasoning underlying the order under appeal would no longer be valid. In that case, it claims that the Court should vary the order under appeal either by dismissing Scott’s application in Case T‑366/00 R, if it considers that the state of the proceedings allows it to determine the matter, or by referring the case back to the Court of First Instance.

16      The Commission also proposes that the Court should join the present appeal and the appeal in the main case.

17      Scott lodged its observations on the present appeal on 18 July 2007. It submits, primarily, that the appeal is inadmissible. The appellant maintains that the order under appeal is not a decision of the Court of First Instance which, under the first paragraph of Article 56 of the Statute of the Court of Justice, is capable of being the subject of an appeal to the Court of Justice, namely a final decision or a decision disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. Furthermore, contrary to the first paragraph of Article 58 of the Statute of the Court of Justice, the appeal does not raise or disclose any errors of law vitiating the order under appeal.

18      In the alternative, Scott claims that the appeal is unfounded. It submits that Article 108 of the Rules of Procedure of the Court of First Instance, according to which, upon application by a party, an order of the President of the Court of First Instance on an application for interim measures may at any time be varied or cancelled on the ground of a change of circumstances, is the appropriate legal basis on which the Commission might seek a variation of the order under appeal should the Court set aside the judgment of 29 March 2007 in Scott v Commission.

19      By a document lodged at the Court Registry on 30 July 2007, the Commission applied, in accordance with Article 82a of the Rules of Procedure of the Court, for a stay of the proceedings in the present case pending delivery of the judgment of the Court on the appeal in the main case.

20      On 30 August 2007, Scott lodged its observations on that application for a stay of proceedings.

 The appeal

21      It must be borne in mind that, under the first subparagraph of Article 104(1) of the Rules of Procedure of the Court of First Instance, an application to suspend the operation of any measure adopted by an institution, made pursuant to Article 242 EC, is admissible only if the applicant is challenging that measure in proceedings before the Court of First Instance.

22      It necessarily follows that, as the Court of First Instance delivered its judgment in Case T‑366/00 and was no longer seised of that case, there was no longer any need to take a decision on the application for interim measures, as the President of the Court of First Instance correctly held (see, to that effect, order of the President of the Court of Justice of 13 September 2004 in Case C‑18/04 P(R) Krikorian and Others v Parliament and Others, not published in the ECR, paragraph 7).

23      Consequently, the appeal is manifestly unfounded and must be dismissed.

24      In those circumstances, there is no need to adjudicate either on the Commission’s application for joinder of the present appeal and the appeal in the main case or on its application to stay the present proceedings.

 Costs

25      Under Article 69(2) of the Rules of Procedure, which is applicable to the procedure on appeal pursuant to Article 118 of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As Scott has applied for costs and the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds,

THE PRESIDENT OF THE COURT

hereby orders:

1.      The appeal is dismissed.

2.      The Commission of the European Communities shall pay the costs.

Luxembourg, 22 November 2007.

* Language of the case: English.