Language of document : ECLI:EU:C:2014:1749

ORDER OF THE VICE-PRESIDENT OF THE COURT

12 June 2014 (*)

(Application for interim measures — Appeal — Application for suspension of a regulation following a judgment declaring the regulation to be void — Dumping — Imports of certain aluminium foil originating in Armenia, Brazil and China — Accession of Armenia to the World Trade Organisation (WTO) — Undertaking operating under market economy conditions — Article 2(7) of Regulation (EC) No 384/96 — Compatibility with the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) — Prima facie case — Urgency — Serious and irreparable damage — Absence)

In Case C‑21/14 P-R,

APPLICATION for suspension of operation and for interim measures under Articles 278 TFEU and 279 TFEU, submitted on 2 April 2014,

European Commission, represented by J.-F. Brakeland, M. França and T. Maxian Rusche, acting as Agents, with an address for service in Luxembourg,

appellant,

the other parties to the proceedings being:

Rusal Armenal ZAO, established in Yerevan (Armenia), represented by B. Evtimov, advokat,

applicant at first instance and in the present proceedings,

Council of the European Union, represented by S. Boelaert and J.‑P. Hix, acting as Agents, B. O’Connor, Solicitor, and S. Gubel, avocat, with an address for service in Luxembourg,

defendant at first instance,

THE VICE-PRESIDENT OF THE COURT,

after hearing the Advocate General, J. Kokott,

makes the following

Order

1        By its appeal, lodged at the Court Registry on 16 January 2014, the European Commission requested the Court to set aside the judgment of the General Court of the European Union in Case T‑512/09 Rusal Armenal v Council EU:T:2013:571 (‘the judgment under appeal’) annulling Council Regulation (EC) No 925/2009 of 24 September 2009 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 262, p. 1) (‘the contested regulation’), in so far as it concerns Rusal Armenal ZAO (‘Rusal Armenal’).

2        That appeal brought against a judgment annulling a regulation had the effect, in accordance with the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, of postponing the date from which the judgment under appeal takes effect until the date of the possible dismissal of that appeal, without prejudice to the right of Rusal Armenal to bring an action before the Court under Articles 278 TFEU and 279 TFEU for the suspension of the effects of the annulled regulation or for any other interim measures.

3        By application lodged at the Court Registry on 2 April 2014, Rusal Armenal applied, in essence, for the suspension of the effects of the contested regulation.

 Background to the dispute and the judgment under appeal

4        Rusal Armenal is a producer and exporter of aluminium goods which has been carrying on business in Armenia since 2000. On 5 February 2003 the Republic of Armenia acceded to the Agreement establishing the World Trade Organisation (WTO) signed at Marrakech on 15 April 1994 (OJ 1994 L 336, p. 3) and approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (‘the WTO Agreement’).

5        Following a complaint lodged on 28 May 2008, the European Commission initiated anti-dumping proceedings concerning imports of certain aluminium foil originating in Armenia, Brazil and China. The notice of initiation of those proceedings was published in the Official Journal of the European Union of 12 July 2008 (OJ 2008 C 177, p. 13).

6        On 7 April 2009 the Commission adopted Regulation (EC) No 287/2009 of 7 April 2009 imposing a provisional anti-dumping duty on imports of certain aluminium foil originating in Armenia, Brazil and the People’s Republic of China (OJ 2009 L 94, p. 17).

7        On 24 September 2009 the Council of the European Union adopted the contested regulation, Article 1(2) of which imposed an anti-dumping duty on imports of aluminium goods manufactured by Rusal Armenal set at a rate of 13.4% applicable to the net, free-at-Community-frontier price, before duty.

8        By application lodged at the Registry of the General Court on 21 December 2009, Rusal Armenal brought an action for annulment of the contested regulation. It raised five pleas in law for annulment, the first of which was a plea of illegality based on infringement of Article 2(1) to (6) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17), (‘the basic regulation’) and of Article 2.1 and 2.2 of the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 103 (‘the Anti-Dumping Agreement’), included in Annex 1A to the WTO Agreement. The basic regulation was replaced by Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22).

9        The General Court held, in essence, that, by relying on the reference to the Republic of Armenia in the footnote accompanying Article 2(7)(a) of the basic regulation and by applying, after the rejection of the claim for market economy treatment brought by the applicant under Article 2(7)(b) of that regulation, the market economy third-country methodology, the contested regulation applied a method for calculating normal value incompatible with Article 2.1 and 2.2 of the Anti-Dumping Agreement and with the second supplementary provision to paragraph 1 of Article VI of the General Agreement on Tariffs and Trade 1994 (GATT) (OJ 1994 L 336, p. 11), included in Annex 1A to the WTO Agreement, and that it also infringed Article 2(1) to (6) of the basic regulation. That being the case, the General Court upheld the first plea for annulment.

10      Paragraph 1 of the operative part of the judgment under appeal is worded as follows:

‘[The General Court] [a]nnuls [the contested regulation] in so far as it concerns Rusal Armenal’.

 Forms of order sought

11      Rusal Armenal claims that the Court should:

–        suspend operation of the contested regulation in so far as it concerns Rusal Armenal, pending delivery of the judgment in the appeal proceedings; or

–        in the alternative, establish interim measures in the form of an enforceable decision prohibiting the customs authorities of Member States of the European Union from collecting anti-dumping duties on imports of certain aluminium foil manufactured by Rusal Armenal, as imposed by that regulation, pending delivery of the judgment in the appeal proceedings; and

–        order that the Commission and the Council, and any other party which intervenes in support of the appeal, shall each bear their own costs and pay those of Rusal Armenal.

12      The Commission and the Council contend that the Court should, in essence:

–        dismiss the application for interim measures as inadmissible or, in the alternative, as unfounded; and

–        order Rusal Armenal to pay the costs.

 The application for interim measures

13      It should be noted at the outset that, according to the first paragraph of Article 60 of the Statute of the Court, an appeal against a judgment of the General Court does not generally have suspensive effect. However, the second paragraph of Article 60 of that statute then provides that, by way of derogation from Article 280 TFEU, decisions of the General Court declaring a regulation to be void take effect only as from the date of expiry of the period referred to in the first paragraph of Article 56 of that Statute or, if an appeal has been brought within that period, as from the date of dismissal of the appeal, without prejudice, however, to the right of a party to apply to the Court of Justice, pursuant to Articles 278 TFEU and 279 TFEU, for the suspension of the effects of the regulation which has been declared void or for the prescription of any other interim measure.

14      By bringing the application for interim measures, Rusal Armenal made use of that right.

 Admissibility

15      The Commission argues that the application for interim measures is inadmissible on the ground that the suspension requested by Rusal Armenal is in reality a definitive measure and thus infringes the fourth paragraph of Article 39 of the Statute of the Court. It contends that the court hearing an application for provisional suspension of anti-dumping duties imposed by a regulation may grant the suspension applied for only subject to the provision of security by the applicant in the amount due from it under that regulation. Since the applicant failed to offer security in its application, that application is inadmissible.

16      In that regard, it follows from the necessarily provisional nature of the measures which the court hearing the application for interim measures may prescribe that the suspension of the effects of the contested regulation, sought by Rusal Armenal, can release that company from the obligation to pay the duties payable under that regulation only temporarily, subject to the requirement that it pay those duties not only in respect of the future but also with regard to the period of suspension in the event that the regulation is ultimately held to be lawful.

17      It should also be noted that, in accordance with Article 162(2) of the Rules of Procedure of the Court, the execution of the order made by the court hearing the application for interim measures may be made conditional on the lodging by the applicant of security, of an amount and nature to be fixed in the light of the circumstances. The exercise of that power is not conditional on the existence of an offer made by the applicant. As is apparent from the case-law, that court may, where it judges it to be appropriate, adopt temporary solutions, in particular by making the suspension granted subject to conditions (see, to that effect, order of the President of the Court in Case 71/74 R and RR Nederlandse Vereniging voor de Fruit- en Groentenimporthandel and Nederlandse Bond van Grossiers in Zuidvruchten en ander Geïmporteerd Fruit v Commission EU:C:1974:103, paragraphs 5 to 8; order of the President of the Court in Joined Cases 43/82 R and 63/82 R VBVB and VBBB v Commission EU:C:1982:119, paragraphs 9 to 12; and order of the Vice-President of the Court in Case C‑390/13 P(R) EMA v InterMune UK and Others EU:C:2013:795, paragraph 55).

18      Therefore, the lack of an offer of security by Rusal Armenal does not preclude the court hearing the application for interim measures from granting, where appropriate, the suspension applied for on condition that that company provide security in the amount due from it under the contested regulation.

19      It follows that the objection of inadmissibility raised by the Commission must be dismissed.

 Substance

20      Article 160(3) of the Rules of Procedure provides that applications for interim measures must ‘state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’. Suspension of operation and other interim measures may thus be granted by the court hearing the application for interim measures if it is established that their grant is justified prima facie, in fact and in law (fumus boni juris), and that they are urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party applying for them, they must be prescribed and take effect before the decision is taken in the main action (see, to that effect, order of the President of the Court in Case C‑404/04 P-R Technische Glaswerke Ilmenau v Commission EU:C:2005:267, paragraphs 10 and 11 and the case-law cited).

21      Those conditions must be satisfied in the case of an application for interim measures brought by the successful party at first instance in the context of an appeal brought by another party against a judgment of the General Court annulling a regulation. If such an appeal is not to be deprived of the suspensive effect provided for in the second paragraph of Article 60 of the Statute of the Court, those requirements must apply in the situation where a judgment of the General Court has been given in favour of the applicant at first instance. However, when applying those conditions, as they have been interpreted in the Court’s case-law, the appellate court hearing an application for interim measures cannot disregard the fact that the court at first instance ruled in favour of that applicant. Therefore, it must apply those conditions mutatis mutandis.

 Prima facie case

22      With regard to the condition of establishing a prima facie case, it should be recalled that it is satisfied where there is, at the stage of the interim proceedings, a major legal disagreement whose resolution is not immediately obvious.

23      In the case of an application for interim measures brought, in the context of an appeal, by the party which was unsuccessful at first instance, that means that the court hearing the application must restrict itself to assessing, prima facie, the merits of the grounds of appeal relied on in order to establish that the appeal is not wholly without merit, in other words whether there is a sufficient prospect that the appeal will succeed. The purpose of the procedure for interim measures is to guarantee that the final decision to be taken is fully effective by avoiding a lacuna in the legal protection ensured by the Court (see, to that effect, order of the Vice‑President of the Court in Case C‑78/14 P-R Commission v ANKO EU:C:2014:239, paragraph 15).

24      By contrast, in the case of an application for interim measures made, as in the present case, in the context of an appeal which has suspensive effect since it seeks to have set aside a judgment by which the General Court annulled a regulation, the application is made by the party which was successful at first instance. That being so, in order to assess whether, prima facie, there exists, at the interim measures stage, a major legal disagreement whose resolution is not immediately obvious, the court hearing the application for interim measures must determine whether the arguments of that party seeking to have the appeal dismissed are not without merit, in that they have a sufficient prospect of success.

25      That means that the successful party at first instance must establish that, notwithstanding the grounds of appeal put forward by the other party, its own opposing arguments are sufficiently cogent that, prima facie, they are capable of succeeding and that, consequently, it is not obvious that the judgment under appeal must be set aside. In the present case, Rusal Armenal will establish a prima facie case only if it fulfils that obligation with respect to each of the grounds of appeal, since any one of those grounds, to the extent that it is well founded, would suffice to justify setting aside the judgment under appeal.

26      In support of its appeal, the Commission raised three grounds, the first alleging, in essence, that the General Court ruled ultra petita by upholding a plea of annulment that had been withdrawn by Rusal Armenal, the second alleging an incorrect application of the judgment in Case C‑69/89 Nakajima v Council EU:C:1991:186 concerning the effect of the Anti-Dumping Agreement on judicial review by the Court of Justice, and the third alleging an infringement of the principle of institutional balance.

27      It must be noted that, by raising the first ground of appeal according to which the General Court was wrong to rule on the first plea for annulment, alleging illegality on the ground of an infringement of Article 2(1) to (6) of the basic regulation and of Article 2.1 and 2.2 of the Anti-Dumping Agreement, on the basis that Rusal Armenal had withdrawn that plea in its reply at first instance, the Commission is arguing that there was a procedural irregularity before the General Court affecting its interests within the meaning of Article 58 of the Statute of the Court of Justice.

28      Rusal Armenal states that by that plea for annulment it sought merely that the General Court should hold that Article 2(7) of the basic regulation was not applicable to its individual case and that the Commission and the Council were therefore obliged to calculate the normal value of Rusal Armenal’s goods in accordance with Article 2(1) to (6) of that regulation. By making that point in its reply, Rusal Armenal did not withdraw that plea for annulment, nor did it deprive it of substance. The Commission, supported by the Council, contends, on the other hand, that Rusal Armenal, having relied in its application at first instance on the illegality of Article 2(7) of that regulation, in the light of the provisions of WTO law, changed that argument in its reply by claiming that it merely requested that the General Court should hold that the Council had infringed its obligation to interpret that provision in conformity with WTO law.

29      In that regard, it is apparent from Rusal Armenal’s reply at first instance that an examination of that company’s explanation that it merely defined the scope of its plea in law, without withdrawing it, so as to respond to the Council’s arguments, requires an interpretation of its reply and, therefore, raises a major legal disagreement regarding the content and scope of that plea.

30      Rusal Armenal maintained, inter alia, in its reply that Article 2(7) of the basic regulation does not exclude the possibility of an Armenian producer enjoying individually the status of an undertaking operating under market economy conditions. According to Rusal Armenal, that provision was therefore incompatible with WTO law, in particular the Anti-Dumping Agreement, not in itself, but merely to the extent that the Council applied Article 2(7)(a) rather than Article 2(7)(b) and (c) of that regulation in the present case without taking account of the fact that, in accordance with Article 2.7 of the Anti-Dumping Agreement and the second supplementary provision to paragraph 1 of Article VI of the GATT, the Council was entitled to apply Article 2(7)(a) of that regulation to it only where the conditions provided for in that second supplementary provision were satisfied.

31      In the light of the specific content of that clarification in Rusal Armenal’s reply at first instance, it cannot be concluded prima facie, at the present interim measures stage of the proceedings, that it withdrew, before the General Court, its first plea for annulment or that it deprived that plea of its substance. Rusal Armenal’s arguments seeking the rejection of the first ground of appeal therefore appear sufficiently cogent for the resolution of the disagreement in that regard not to be immediately obvious.

32      As regards the second ground of appeal, alleging an incorrect application by the General Court of the judgment in Nakajima v Council (EU:C:1991:186), Rusal Armenal claims that, contrary to the Commission’s arguments, the Court identified in that judgment not the sole criterion of the ‘intention to implement a particular obligation assumed in the WTO’, but two alternative criteria, namely such an intention and an ‘express reference to the WTO Agreement’. The second ground of appeal is allegedly incompatible with the Court’s case-law and, in particular, with the second alternative criterion referred to above resulting from the express reference, in the fifth recital in the preamble to the basic regulation, to the detailed rules of the Anti-Dumping Agreement concerning calculation of the dumping margin. The Commission and the Council reply that Article 2(7) of the basic regulation does not implement obligations resulting from the GATT or from WTO law, so that the lawfulness of that provision cannot be reviewed in the light of any such obligations, in accordance with Nakajima v Council (EU:C:1991:186). The General Court therefore erred in law by reviewing the footnote relating to Article 2(7)(a) of the basic regulation, mentioning the Republic of Armenia, in the light of those obligations.

33      It should be noted that, in paragraph 36 of the judgment under appeal, the General Court held as follows:

‘… The preamble to the basic regulation, and more specifically the fifth recital therein, shows that the purpose of that regulation is, inter alia, to transpose into Community law the new and detailed rules contained in the Anti-Dumping Agreement, which include, in particular, those relating to the calculation of the dumping margin, so as to ensure a proper and transparent application of those rules. It is therefore established that the Community adopted the basic regulation in order to satisfy its international obligations arising from the Anti-Dumping Agreement (see Case C‑76/00 P Petrotub and Republica [EU:C:2003:4], paragraphs 53 to 56, and the case-law cited) by way of implementation of Article 18(4) of that agreement (Case T‑19/01 Chiquita Brands and Others v Commission [EU:T:2005:31], paragraph 160). In addition, by Article 2 of the basic regulation, entitled “Determination of dumping”, the Community intended to implement particular obligations created by Article 2 of that agreement, which also relates to the determination of whether there is dumping.’

34      It is therefore clear that there is disagreement between the Commission and the Council, on the one hand, and Rusal Armenal, defending in essence the position taken by the General Court in the judgment under appeal, on the other hand, on the major legal issue of whether the criteria identified by the Court in Nakajima v Council (EU:C:1991:186) are fulfilled in the present case. Without prejudice to the decision which will be taken by the Court on the merits of the second ground of appeal, Rusal Armenal’s arguments seeking the rejection of that ground, as supplemented by the arguments set out by the General Court in the judgment under appeal, appear plausible, in the light of the Court’s case-law and of the express reference, in the fifth recital in the preamble to the basic regulation, to the relevant rules resulting from the Anti-Dumping Agreement and Article VI of the GATT. Consequently, those arguments are not without merit, in the sense that they have a sufficient prospect of success for the purpose of the present assessment of the prima facie case.

35      With regard to the third ground of appeal, alleging an infringement of the principle of institutional balance on the part of the General Court when it ruled that the reference to the Republic of Armenia in the footnote relating to Article 2(7)(a) of that regulation was not compatible with the system established by the Anti-Dumping Agreement, it suffices to note, for the purpose of the present assessment of the prima facie case, that that ground is closely connected with the second ground of appeal. As the Commission implicitly acknowledged in its observations on the application for interim measures, it is because of an incorrect interpretation of the judgment of the Court in Nakajima v Council (EU:C:1991:186) that, in its opinion, the General Court committed that infringement. Consequently, it appears that the existence of that infringement depends, in the present case, on the existence of an error of law in the application of the criteria referred to in that judgment. Therefore, for the reasons set out in the previous paragraph of the present order, it must be considered that Rusal Armenal has also established the existence of a major legal disagreement concerning the merits of that third ground of appeal.

36      In the light of all the foregoing, the condition relating to establishing a prima facie case is satisfied in the present case.

 Urgency

37      With regard to the condition relating to urgency, it is for the party seeking the adoption of interim measures to prove that it cannot wait for the outcome of the main proceedings without suffering serious and irreparable harm (see, to that effect, order of the President of the Court in Case C‑225/91 R Matra v Commission EU:C:1991:460, paragraph 19, and order of the President of the Court in Case C‑268/96 P(R) SCK and FNK v Commission EU:C:1996:381, paragraph 30). In order to establish the existence of such serious and irreparable harm, it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, but that it be foreseeable with a sufficient degree of probability (order of the Vice-President of the Court in Commission v ANKO EU:C:2014:239, paragraph 23 and the case-law cited).

38      Rusal Armenal claims that the conditions to be satisfied for the grant of interim measures are interdependent, so that where the prima facie case is particularly serious, the condition relating to urgency may be assessed less strictly since the manifestly unlawful nature of a measure suffices to establish the need to protect provisionally the rights of the applicant for interim measures. In particular, according to Rusal Armenal, that is the case here, given that the General Court ruled in its favour by annulling the contested regulation.

39      In that regard, it should be noted that the latter circumstance relied on by Rusal Armenal in order to request, as its primary claim, the suspension of the effects of a regulation annulled by the General Court is not such as to relax the conditions required for the criterion of urgency. Therefore, the application of the contested regulation notwithstanding its annulment by the judgment under appeal does not in itself cause actionable harm to Rusal Armenal. Since the European Union legislature, by the adoption of Article 60 of the Statute of the Court, decided to confer suspensive effect on the bringing of an appeal against a judgment of the General Court annulling a regulation, it is not appropriate for the court hearing an application for interim measures in the context of an appeal to deprive that article of a part of its effectiveness by systematically relaxing the condition of urgency in such circumstances.

40      However, it is apparent from the Court’s case-law that the more or less serious nature of a prima facie case is not without relevance for the assessment of urgency (see order of the President of the Court in Case C‑404/10 P-R Commission v Éditions Odile Jacob EU:C:2011:37, paragraph 27). The urgency that may be pleaded by an applicant must be taken into consideration by the court hearing the application for interim measures all the more if the prima facie case raised by the pleas and arguments relied on appears particularly serious (see, to that effect, order of the President of the Court in Case C‑445/00 R Austria v Council EU:C:2001:123, paragraph 110). Without prejudice to the decision which will be taken by the Court concerning the merits of the appeal, it is apparent from paragraphs 26 to 36 of the present order that the prima facie case raised by the pleas and arguments of Rusal Armenal appears sufficiently serious to satisfy that condition, a fact which should be taken into account in the subsequent analysis and in particular, as appropriate, in the context of balancing the interests involved.

41      The fact remains that, in accordance with Article 160(3) of the Rules of Procedure, the conditions relating to a prima facie case and to urgency are distinct and cumulative, so that Rusal Armenal still needs to prove the imminence of serious and irreparable harm (see, to that effect, order of the President of the Court in Case C‑110/12 P(R) Akhras v Council EU:C:2012:507, paragraph 26, and order of the Vice-President of the Court in Commission v ANKO EU:C:2014:239, paragraph 14).

42      Furthermore, as the Commission and the Council point out, the contested regulation entered into force in September 2009 and therefore produced effects for more than four years, without Rusal Armenal requesting a suspension of operation of that measure by an application for interim measures to the General Court during that period. Therefore, it is for that party to establish in the present proceedings for interim measures that, notwithstanding the fact that an anti‑dumping duty of 13.4% has been applied to imports of some of its products into the European Union since 2009, it is urgent to adopt interim measures to keep it from serious and irreparable harm which it would be likely to suffer in the absence of such measures. It follows that Rusal Armenal must substantiate either harm which it did not suffer over the last four years despite its being attributable to the contested regulation, or harm which is now serious and irreparable, so that the grant of interim measures is urgent, even though Rusal Armenal has already suffered that harm during the four years of the proceedings before the General Court which resulted in the judgment under appeal.

43      On the other hand, the argument of the Commission and the Council that the anti-dumping measure imposed by that regulation will expire in September 2014, that is to say five years after it was imposed, so that the possible adoption of interim measures for a period of a few months only is not justified, must be rejected at the outset. Since the present case concerns a definitive anti-dumping duty, it cannot be excluded that proceedings for review of the measure at issue might be brought at the initiative of the Commission or at the request of European Union producers, and that, in that case, the measure imposing the duty would remain in force pending the results of the review pursuant to Article 11(2) of Regulation No 1225/2009, which has now replaced the basic regulation.

44      In the present case, Rusal Armenal identifies three types of irreparable harm which in its opinion, in the absence of suspension, would result from the application of the contested regulation, namely, first, its probable dissolution by its parent company, secondly, the definitive dismissal of a large number of its employees as a result of the probable closure of its factory and, thirdly, consequences for the economy of the Republic of Armenia and for that country’s exports to the European Union. Moreover, it argues that there would be a significant reduction in its market share.

45      First of all, with regard to the possible dissolution of Rusal Armenal, that company claims that it has suffered considerable losses since the entry into force of the contested regulation, principally because of the impossibility it now faces, as a result of that regulation, of exporting its products to the European Union. Its parent company, UC Rusal, is now no longer able to cover the losses of its subsidiaries, as a result of its own financial difficulties caused by the low price of aluminium on the world market. Therefore, it is highly likely that it will decide to close Rusal Armenal in the near future if there is no improvement in its profitability.

46      It should be noted that, according to the Court’s settled case-law, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the applicant would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and the characteristics of the group to which it belongs (order of the Vice-President of the Court in Case C‑551/12 P(R) EDF v Commission EU:C:2013:157, paragraph 54).

47      Rusal Armenal does not claim that the financial harm suffered by it as a result of losses allegedly flowing from the contested regulation is likely to call into question the viability of the group of companies to which it belongs, so that that group, including its parent company, might disappear. Therefore, it must be concluded that the possible dissolution of Rusal Armenal would be the direct result not of that regulation but of a commercial decision taken by its parent company. Such a decision, if it were taken, would have regard to all of the relevant commercial circumstances, including the effects on the profitability of Rusal Armenal of the anti-dumping duty resulting from that regulation. Other factors, in particular the difficult economic conditions on the international aluminium markets mentioned by Rusal Armenal, would also play an important part in that decision.

48      It should be pointed out that, in the case of an application for suspension of the operation of a European Union act, the grant of the interim measure sought is justified only where the act in question is the decisive cause of the serious and irreparable damage claimed (order of the Vice-President of the Court in EDF v Commission EU:C:2013:157, paragraph 41 and the case-law cited). In the circumstances of the present case, to which that case-law applies by analogy, with regard to an application for suspension of the effects of a regulation that has been annulled by the General Court, Rusal Armenal has not established to the requisite legal standard that the contested regulation, which has been in force for over four years, is the decisive cause of its future dissolution by its parent company, assuming that such dissolution takes place.

49      In that regard, it may be added, in so far as relevant, that the annulment of that regulation by the General Court has opened the prospect of the possible abolition in the near future of the anti-dumping duty at issue, as far as Rusal Armenal is concerned, which would improve its financial prospects in the medium term, including for the purpose of any commercial decisions to be made by its parent company carried out with a view to its possible dissolution.

50      Next, with regard to the harm alleged by Rusal Armenal resulting from the definitive dismissal of 677 of its employees in the event of the closure of its factory, the Commission and the Council reply that that undertaking may rely, in order to show urgency, only on harm suffered by it, to the exclusion of harm caused to third parties.

51      It is apparent from the Court’s case-law that the party requesting the interim measures is bound to show that it cannot await the conclusion of the main action without personally suffering damage which will have serious and irreparable consequences for it (order of the President of the Court in Case C‑60/08 P(R) Cheminova and Others v Commission EU:C:2009:181, paragraph 35). Therefore, Rusal Armenal cannot rely, as such, on the damage which would be suffered by its employees were they to lose their jobs.

52      However, it should be noted that the fact that an undertaking has to shed jobs and thus lose a trained and operational workforce may cause it direct and personal harm, independently of the separate harm suffered by its employees, to the extent that it will be more difficult subsequently to restart its activities should there be a change in economic conditions.

53      In the present proceedings, however, Rusal Armenal has failed to establish that the decisive cause, for the purpose of the Court’s case-law referred to in paragraph 48 above, of the possible closure of its factory in the future, whether as a result of its own dissolution or because of a restructuring of its activities with a view to reducing its costs, would be the anti-dumping duty imposed by the contested regulation more than four years ago.

54      Finally, it must be pointed out that the harm which would result from the detrimental consequences of the anti-dumping duty imposed by that regulation for the economy of the Republic of Armenia and its exports to the European Union, assuming it to be established, would be suffered not by Rusal Armenal personally but by the inhabitants of Armenia in general. Consequently, in accordance with the Court’s case-law referred to in paragraph 51 above, that harm cannot be relied upon to any purpose by Rusal Armenal in order to justify the urgency it claims.

55      Furthermore, Rusal Armenal fails to substantiate by any concrete and specific argument the significant reduction in its market share which it says results from the exclusion of its products from the European Union market. In the absence of specific information concerning the allegedly exclusionary effect of the anti‑dumping duty imposed by that regulation on exports of Rusal Armenal’s products to the European Union and the characteristics of the market in question, the court hearing the application for interim measures is not in a position to hold that any harm has been caused by the alleged reduction in the market share in question or to assess the seriousness and irreparable nature of that harm.

56      It follows from all of the foregoing that Rusal Armenal has failed to adduce evidence that the absence of suspension of the effects of the contested regulation, which has been in force since 2009, would be likely to cause it serious and irreparable harm. It follows that the condition of urgency is not satisfied, so that the present application for interim measures must be dismissed, without there being any need to balance the interests involved or to examine the admissibility of the application for interim measures brought in the alternative by Rusal Armenal.

On those grounds, the Vice-President of the Court hereby orders:

1.      The application for interim measures is dismissed.

2.      Costs are reserved.

[Signatures]


* Language of the case: English.