Language of document : ECLI:EU:T:2015:535

ORDER OF THE PRESIDENT OF THE GENERAL COURT

16 July 2015 (*) (1)

(Application for interim measures — Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Application for suspension of operation of a measure — Prima facie case — Balancing of interests — No urgency)

In Case T‑207/15 R,

National Iranian Tanker Company, established in Tehran (Iran), represented by T. de la Mare QC, M. Lester, J. Pobjoy, Barristers, R. Chandrasekera, S. Ashley and C. Murphy, Solicitors,

applicant,

v

Council of the European Union, represented by N. Rouam and M. Bishop, acting as Agents,

defendant,

APPLICATION for suspension of operation of Council Decision (CFSP) 2015/236 of 12 February 2015 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 39, p. 18) and Council Implementing Regulation (EU) 2015/230 of 12 February 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), in so far as each applies to the applicant,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute

1        The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.

2        On 9 June 2010, the United Nations Security Council adopted Resolution 1929 (2010) (‘Resolution 1929’) intended to widen the scope of the restrictive measures imposed by earlier resolutions and to introduce additional restrictive measures against the Islamic Republic of Iran.

3        On 17 June 2010, the European Council invited the Council of the European Union to adopt measures implementing those contained in Resolution 1929 as well as accompanying measures, with a view to supporting the resolution of all outstanding concerns regarding the Islamic Republic of Iran’s development of sensitive technologies in support of its nuclear and missile programmes, through negotiation. Those measures were to focus, in particular, on the areas of trade, the financial sector, the Iranian transport sector and key sectors in the oil and gas industry.

4        On 26 July 2010, the Council adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39), Annexes I and II to which list the persons and entities whose assets are to be frozen. Recital 22 in the preamble to that decision refers to Resolution 1929 and states that that resolution notes the potential connection between the revenues derived by the Islamic Republic of Iran from its energy sector and the funding of its proliferation-sensitive nuclear activities.

5        On 23 January 2012, the Council adopted Decision 2012/35/CFSP amending Decision 2010/413 (OJ 2012 L 19, p. 22). Recital 8 thereto recalls the potential connection between the Islamic Republic of Iran’s revenues derived from its energy sector and the funding of the Islamic Republic of Iran’s proliferation-sensitive nuclear activities and the fact that the chemical process equipment and materials required for the petrochemical industry have much in common with those required for certain sensitive nuclear fuel cycle activities. Article 1(7)(a)(ii) of Decision 2012/35 added the following point to Article 20(1) of Decision 2010/413, providing for the freezing of funds belonging to the following persons and entities:

‘(c)      other persons and entities not covered by Annex I that provide support to the Government of Iran, and persons and entities associated with them, as listed in Annex II’.

6        Subsequently, under the FEU Treaty, on 23 March 2012, the Council adopted Regulation (EU) No 267/2012 on restrictive measures against Iran and repealing Regulation (EC) No 961/2010 (OJ 2010 L 88, p. 1). In order to implement Article 1(7)(a)(ii) of Decision 2012/35, Article 23(2) of that regulation provides for the freezing of funds of persons, entities and bodies listed in Annex IX thereto, identified as:

‘(d)      being other persons, entities or bodies that provide support, such as material, logistical or financial support, to the Government of Iran, and persons and entities associated with them’.

7        The applicant, National Iranian Tanker Company, is an Iranian company specialised in the transport of crude oil and gas cargoes, operating a large fleet of tankers; it wrote several letters to the European Union informing it of its concerns as to the effects on its fleet of the restrictive measures taken against the Islamic Republic of Iran. In that connection, the applicant denied any connection with the Iranian nuclear programme and stated that it had already been privatised in 2000.

8        Nevertheless, on 15 October 2012, the Council included the applicant in the list of persons and entities subject to restrictive measures.

9        First, the Council adopted Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58). According to recital 16 in the preamble to Decision 2012/635, in particular, Iranian State-owned entities engaged in the oil and gas sector were to be subject to restrictive measures, since they provided a substantial source of revenue for the Government of Iran. Consequently, Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, to the effect that restrictive measures are to be imposed on ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’. Article 2 of Decision 2012/635 listed the applicant in the table in Annex II to Decision 2010/413 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

10      Second, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation No 267/2012 (OJ 2012 L 282, p. 16). Article 1 of Regulation No 945/2012 listed the applicant in the table in Annex IX to Regulation No 267/2012 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

11      The applicant was listed for the following reasons, which were identical in both cases: ‘Effectively controlled by the Iranian Government. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government.’

12      Decision 2012/635 and Regulation No 945/2012 were sent to the applicant by letter of 16 October 2012.

13      On 27 December 2012, the applicant brought, before the General Court, an action for annulment of those two measures, in so far as they concerned the applicant.

14      In its judgment of 3 July 2014 in National Iranian Tanker Company v Council (T‑565/12, ECR, EU:T:2014:608; ‘the judgment in NITC’), the Court upheld the plea that the Council had committed a manifest error of assessment by including the applicant on the abovementioned lists. Therefore, upholding the action, it annulled Decision 2012/635 and Regulation No 945/2012, in so far as those acts concerned the applicant.

15      As regards the temporal effects of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Court held that annulment with immediate effect of the measures at issue would allow the applicant to transfer all or part of its assets outside the European Union, without the Council being able, in good time, to correct the irregularities identified, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. According to the Court, relisting the applicant could not be ruled out automatically, since, in the course of a further review, the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.

16      Consequently, the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), maintained the effects of Decision 2012/635 and Regulation No 945/2012 as regards the applicant until the expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the date of the dismissal of that appeal.

17      The Council did not appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608).

18      However, after having informed the applicant by letter of 23 October 2014 that it intended to include its name on the abovementioned lists again and following an exchange of correspondence between the parties, the Council adopted, on 12 February 2015, Decision (CFSP) 2015/236 amending Decision 2010/413 (OJ 2015 L 39, p. 18) and Implementing Regulation (EU) No 2015/230 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), by which the applicant was included again on the list of persons and entities subject to restrictive measures (‘the contested measures’).

19      That relisting of the applicant was based on the following grounds, identical in both cases:

‘The [applicant] provides financial support to the Government of Iran through its shareholders the Iranian State Retirement Fund, the Iranian Social Security Organization, and the Oil Industry Employees Retirement and Savings Fund, which are State-controlled entities. Moreover, [the applicant] is one of the largest operators of crude oil carriers in the world and one of the main transporters of Iranian crude oil. Accordingly, [the applicant] provides logistical support to the Government of Iran through the transport of Iranian oil.’

20      By letter of 16 February 2015, the Council sent a copy of the contested measures to the applicant.

 Procedure and forms of order sought

21      By application lodged at the Court Registry on 24 April 2015, the applicant brought an action seeking the annulment of the contested measures in so far as they concern the applicant or, in the alternative, requesting that Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, as amended, be declared inapplicable in respect of the applicant, raising an objection of illegality on the basis of Article 277 TFEU. In support of its action, it argues, in essence, that the Council, by penalising it again on the basis of the same objections as those which had been declared unlawful in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), deprived it of its right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union, while infringing the principle of res judicata and the principle of legal certainty. In addition, the Council committed manifest errors of assessment and breached the applicant’s rights of defence and fundamental right to property.

22      By a separate document, lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the General Court should:

–        suspend the effect of the contested measures in so far as they apply to the applicant, pending the determination of the main application;

–        order the Council to pay the costs.

23      In its observations on the application for interim measures, lodged at the Court Registry on 13 May 2015, the Council contends that the President of the General Court should:

–        dismiss the application for interim measures;

–        order the applicant to pay the costs.

24      The applicant responded to the Council’s observations in its reply of 4 June 2015. The Council adopted a final position on that reply in its observations of 15 June 2015.

 Law

 General considerations

25      In accordance with Articles 278 TFEU and 279 TFEU, read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions, bodies, offices or agencies of the Union are presumed to be lawful. It is therefore only in exceptional cases that a court hearing an application for interim measures may order the suspension of operation of such an act or prescribe interim measures (see, to that effect, order of 17 December 2009 in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, EU:T:2009:526, paragraph 31 and the case-law cited).

26      In addition, Article 156(3) of the Rules of Procedure of the General Court 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 measures applied for. Thus, the judge hearing an application for interim measures may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party applying for the measures, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim relief must be dismissed if any one of them is absent (order of 14 October 1996 in SCK and FNK v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30).

27      In the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be analysed and assessed (order in Commission v Atlantic Container Line and Others, C‑149/95 P(R), ECR, EU:C:1995:257, paragraph 23, and order of 3 April 2007 in Vischim v Commission, C‑459/06 P(R), EU:C:2007:209, paragraph 25). Where appropriate, the judge hearing such an application must also weigh up the interests involved (order in Austria v Council, C‑445/00 R, ECR, EU:C:2001:123, paragraph 73).

28      Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral arguments from the parties.

29      In the circumstances of the present case, it is appropriate to consider first whether the requirement relating to the existence of a prima facie case is satisfied; the applicant expressly stated that the application for interim measures was not an adjunct to the plea of illegality raised in the alternative in support of the form of order sought in the main application.

 The prima facie case

30      According to settled case-law, the condition relating to a prima facie case is satisfied where at least one of the pleas in law put forward by the applicant for interim measures in support of the main action appears, prima facie, to be not unfounded, in that it reveals the existence, at the stage of the interim proceedings, of a major legal disagreement whose resolution is not immediately obvious. Since the purpose of the interim proceedings is to guarantee that the decision to be taken upon the outcome of the main proceedings is fully effective, in order to avoid a lacuna in the legal protection ensured by the Court, the judge hearing the application for interim relief must restrict himself to assessing ‘prima facie’ the merits of the grounds put forward in the main proceedings in order to ascertain whether the action has a sufficiently high probability of success (see, to that effect, orders of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), ECR, EU:C:2013:558, paragraph 67 and the case-law cited, and 8 April 2014 in Commission v ANKO, C‑78/14 P-R, ECR, EU:C:2014:239, paragraph 15 and the case-law cited).

31      In the present case, the applicant maintains that its relisting by the contested measures is incompatible with the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), in which the Court ruled in its favour and according to which the reasons previously put forward by the Council did not justify the applicant’s initial listing in October 2012. According to the applicant, the factual allegations relied on in support of the contested measures are identical in substance to those on which its initial listing had been based and which the Court declared unlawful in the judgment in NITC. The Council is thus attempting to circumvent that judgment and to relist the applicant on the basis of the same factual allegations, classifying them using different descriptive labels, even though there was no change in circumstances. In doing so, the Council infringed the principle of res judicata and the principle of legal certainty and deprived the applicant of its right to an effective remedy, enshrined in Article 47 of the Charter of Fundamental Rights.

32      The applicant states that the Council, having refrained from bringing an appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), cannot re-litigate the grounds on which the judgment is based. It would therefore be an abuse for the Council to accuse the applicant of providing ‘logistical support’, even though that objection is merely another name for the ‘financial support’ allegation invoked in support of the applicant’s initial listing and rejected in the judgment in NITC. To the extent that it does not present any new facts, the Council could have, and should have, already put forward that allegation at the time of the initial listing.

33      The applicant adds that the Council committed a manifest error of assessment, since it has not proved that it provided ‘financial support’ to the Government of Iran. It provides no such support, either through its shareholding or otherwise, since its shareholders are not State owned or controlled. The Council does not prove the directness of such support, whereas the Court held, in paragraph 60 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), that purely indirect support was insufficient. In any event, the evidence produced was available to the Council before the adoption of the earlier measures which were the subject of the judgment in NITC and should have been submitted when the applicant was listed for the first time in October 2012.

34      As regards the claim of ‘logistical support’, the applicant argues that the Council relied on the same factual allegations which it put forward when accusing the applicant of providing ‘financial support’. Referring to paragraphs 58 to 60 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the applicant considers that the Council could, and should, have advanced that argument at the time of the initial listing. In any event, the criteria for being listed set out in Article 23(2)(d) of Regulation No 267/2012 are not met, since the applicant does not engage in any activity which is capable of encouraging or contributing to the continuation of nuclear proliferation and, assuming that it does provide ‘logistical support’, it would be indirect support, which is not sufficient to justify it being listed.

35      The Council responds that the restrictive measures at issue in this case are not based on the same grounds as those put forward in support of the measures annulled by the Court in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608). A new reason has been added, namely the provision of ‘logistical support’ to the Government of Iran through the transport of Iranian oil. Although it was decided in the judgment in NITC that the support provided by the applicant as part of its transport activity could not be regarded as direct ‘financial support’ to the Government of Iran, it was not ruled out that such support could be regarded as direct ‘logistical support’ to that government. Contrary to what the applicant claims, the reason relating to ‘logistical support’ is not the earlier reason relating to ‘financial support’ under a different name. By definition, ‘logistical support’ differs from ‘financial support’, in that it refers, in particular, to material support, such as the transport of Iranian crude oil.

36      According to the Council, the fact that providing ‘logistical support’ to the Government of Iran was not among the reasons for the applicant’s initial listing does not prevent such a ground being invoked for the purpose of the applicant’s re-inclusion on the lists in question. It is precisely in order to address the findings of illegality in paragraph 60 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), that the Council relied on that new reason. Moreover, the Council provided new evidence supporting the reasons for relisting the applicant. In that context, nothing prevented the Council from relying on information and documents dating from before the applicant’s initial listing, but which were not produced at that time.

37      As regards the criteria for being listed set out in Article 23(2)(d) of Regulation No 267/2012, the Council argues that the term ‘support’ covers any activity of the person or of the entity concerned that is capable, by its quantitative or qualitative importance, of promoting nuclear proliferation by providing to the Government of Iran support in the form of resources or facilities of a material, financial or logistical nature which allow it to pursue nuclear proliferation. Thus, activities which, as such, have no link to nuclear proliferation may, nevertheless, be covered by that criterion.

38      The Council considers that the transport of crude oil by the applicant must be regarded as a direct logistical support to the Government of Iran which is capable, given its quantitative significance, of promoting the pursuit of nuclear proliferation. The evidence provided by the Council — in particular the five documents attached to the observations lodged on 13 May 2015 — show that the applicant is the principal shipping company that transports crude oil to and from Iran and that Iran has been increasingly reliant on the applicant to transport and export its oil, which provides it with a very significant source of revenues.

39      In that regard, it must be pointed out that, according to established case-law, recalled by the Council, where a measure adopted by an EU institution has been annulled for formal or substantive defects, that institution is entitled to adopt afresh an identical measure, this time observing the formal rules and ensuring that the new measure is not vitiated by the same substantive defect (see, to that effect, judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‑256/07, ECR, EU:T:2008:461, paragraphs 65 and 75 and the case-law cited, and 13 December 2012 in Greece v Commission, T‑588/10, EU:T:2012:688, paragraphs 476 and 478).

40      Furthermore, specifically as regards the present case, after pointing out that the reasons for the initial inclusion of the applicant on the lists at issue were not supported by sufficient evidence, the Court took care to state, in paragraph 77 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014: 608), that the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.

41      The Council concludes from this, in essence, that it was entitled to rely, in this case, on documents dating from before the initial listing of the applicant even if it had not submitted those documents to justify the initial listing and to use those ‘old’ documents to support the new reasons for listing the applicant, such as the ‘logistical support’ provided to the Government of Iran, especially since it acted in this way specifically to meet the criticisms contained in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), and it put forward new evidence that the applicant in fact provided ‘logistical support’ to that government.

42      The applicant claims, however, that the Council, if it is not to infringe the applicant’s fundamental right to an effective remedy, could not, in this case, either put forward grounds for listing the applicant that it could have already relied on at the time of the initial listing in October 2012 or present evidence that was already available to it on the date of that listing, especially since, according to the applicant, the factual allegations on which the contested measures are based are identical in substance to those on which its initial listing had been based and which were criticised in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608).

43      The President of the General Court considers that the discussion of the issues by the parties reveals that there is a legal disagreement over the scope of Article 47 of the Charter of Fundamental Rights and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, both of which enshrine the right to an effective remedy, that is to say, to effective judicial protection ‘in practice as well as in law’ (judgment of the European Court of Human Rights, Ramadhi and others v. Albania, no. 38222/02, § 48, 13 November 2007). The issue to be resolved is whether the Council is entitled, in view of that right to an effective remedy, to rely on the case-law cited in paragraphs 39 and 40 above in order to correct the findings of illegality which led to the annulment of a restrictive measure, by adopting a new measure which has the same practical effect as the earlier measure, where the factual situation has not changed in substance.

44      The sensitive nature of that question lies, in particular, in the fact that the restrictive measures adopted by the Council in the form of a regulation benefit from the protection conferred by the second paragraph of Article 60 of the Statute of the Court of Justice, to the effect that a decision declaring such a regulation to be void takes effect only as from the expiry of the period for bringing an appeal or, if an appeal is brought within that period, as from the date of dismissal of the appeal by the Court of Justice (see paragraphs 55 to 57 below). It follows that, if it were able in fact to act in the manner described in paragraph 43 above, the Council would be able — notwithstanding the annulment, on the basis that the alleged reasons for the listing were unlawful or due to a lack of sufficient evidence, of each of its successive regulations imposing restrictive measures in respect of the same company — to maintain in force, by systematically bringing appeals, an uninterrupted series of such measures, even without the factual context forming the basis of those measures and their annulment having changed in substance.

45      It must therefore be considered whether the observance of the fundamental right to an effective remedy does not require that there be an element of a time-bar in subsequent legal proceedings which may be brought by the same company, which would require the Council to include in its first file compiled for restrictive measures all the reasons for inclusion and incriminating evidence which it could easily obtain by the date on which the file is compiled, and which would prevent it, if the Court censures those reasons and evidence, from using them to justify a relisting of the company. That would mean such a relisting could be envisaged only where new and relevant facts or evidence have emerged, while the Council would be prohibited from using, during future relistings, evidence that it had admittedly not yet invoked, but which could already have been invoked on the date of the first listing.

46      The present case seems to illustrate the need for the introduction of such an element of a time-bar: the applicant’s economic activity transporting Iranian oil did not change between October 2012, the date of the initial listing, and the date of adoption of the contested measures in the present case. Clearly, therefore, it is a case of a logistical service provided to customers who ordered that transport. It is not apparent from the file that the Council would have been prevented from justifying the initial listing already on the ground of ‘logistical support’. The same applies in respect of the composition of the applicant’s shareholding, which appears not to have changed between 2012 and 2015. The Council, which had set out the precise shareholding structure during the proceedings leading to the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608, paragraph 51), has not contended that the ground of ‘financial support’ based on that shareholding would not have been available at the time of the applicant’s initial listing in October 2012. As regards the evidence in support of the contested measures, the Council specifically referred only to five documents in its observations (footnote 28). Four of those documents date from before October 2012, while the only one with a later date (February 2014) does not appear to contain anything novel which would be relevant since it refers to the applicant’s role as an Iranian oil transporter and the importance of that role in the Iranian economy, which is not in dispute.

47      It should be added that the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), having annulled the initial listing of the applicant, became res judicata. It is true that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and can be invoked only if the action which gave rise to that decision was between the same parties, had the same subject-matter and was based on the same cause of action (see, to that effect, judgment of 25 February 2015 in Walton v Commission, T‑261/14 P, ECR-SC, EU:T:2015:110, paragraphs 35 and 36 and the case-law cited). It is therefore not possible for the applicant to claim, in respect of the contested measures, that the judgment in NITC is, strictly speaking, res judicata since those measures relate to a different period of the applicant’s economic activity than that which was the subject-matter of the measures which had been annulled by that judgment. However, it cannot be overlooked that that activity of the applicant, consisting of the transport of Iranian oil, has remained unchanged in substance and that the difference in the periods of activity referred to is the result of the applicant’s relisting, carried out by the Council on a factual basis that has also not changed in substance. It could therefore be considered that, in the present case, the application of the concept of res judicata is excluded only on account of the Council’s action in extending artificially the restrictive measures imposed on the applicant, by now presenting evidence which could have been invoked at the time of the applicant’s initial listing. Such an approach, even if it is not considered incompatible with the concept of res judicata, could, in any event, contribute to an infringement of the applicant’s right to an effective remedy.

48      It follows that it may be necessary, from the aspect of the right to an effective remedy, to apply a restrictive interpretation, in the sense set out in paragraph 45 above, to the case-law cited in paragraphs 39 and 40 above.

49      Nevertheless it may be argued against such a restrictive interpretation that the scope of the right to an effective remedy, conferred on an undertaking which is the subject of restrictive measures, must not be unduly limited just to an action for annulment coupled with an application for suspension of operation of a measure, even though that undertaking has the possibility of pleading the illegality of the measures imposed in the context of an action to obtain reparation, by the Council, of the harm suffered by reason of that illegality. In another context, that of disputes relating to public procurement, the EU judicature has held that the unsuccessful tenderer’s right to an effective remedy had to be regarded as having been respected, even though that tenderer was not able to validly challenge the loss of the contract at issue by bringing an action for annulment coupled with an application for interim measures, since it had the possibility of obtaining damages by bringing an action for compensation (see, to that effect, order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), ECR, EU:C:2015:275, paragraphs 34, 35 and 38). The President of the General Court considers that it will be for the court hearing the main action to examine, if necessary, whether compelling grounds exist which would rule out extending that case-law to disputes concerning restrictive measures.

50      It follows from all of the foregoing that it must be concluded that there is a major legal disagreement whose resolution is not immediately obvious and which therefore calls for a detailed examination that must be the subject of the main proceedings, such that, prima facie, the action does not appear to be unfounded (see, to that effect, order in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 67 and the case-law cited).

 The weighing-up of the interests

51      According to well-established case-law, in weighing up the various interests involved, the judge hearing the application for interim relief has to determine, in particular, whether or not the interest in securing suspension of operation of the contested measure outweighs the interest in the immediate application of the measure, by examining, more specifically, whether the possible annulment of the measure by the court when ruling on the main application would allow the situation brought about by its immediate application to be reversed and, conversely, whether suspension of operation of the measure would prevent it from being fully effective in the event of the main action being dismissed (see order of 11 March 2013 in Iranian Offshore Engineering & Construction v Council, T‑110/12 R, ECR, EU:T:2013:118, paragraph 33 and the case-law cited).

52      As regards disputes relating to restrictive measures, it has been repeatedly held that a suspension of operation of restrictive measures could prevent their being fully effective in the event of the dismissal of the main application and therefore make it impossible to reverse the situation. Such a suspension of operation would make it possible for the entity subject to those measures to withdraw immediately all its funds deposited at the banks which are obliged to ensure that they are frozen and to empty its bank accounts before judgment is delivered on the merits. Thus it would be possible to circumvent the purpose of the restrictive measures taken against it, which is to put pressure on the Islamic Republic of Iran so that it puts an end to nuclear activities, even though the judge hearing the application for interim measures must not neutralise in advance the effects of the decision to be given subsequently in the main action (see, to that effect, orders of 14 June 2012 in Qualitest FZE v Council, C‑644/11 P(R), EU:C:2012:354, paragraphs 73 to 77, and Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 34 and the case-law cited).

53      In the present case, it is clear that by not bringing an appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Council, itself, enabled the applicant to take full advantage of the effects of the annulment by that judgment of the restrictive measures which had been imposed on it on 15 October 2012 (see paragraphs 9 and 10 above), since it enjoyed unencumbered access, between mid-September 2014 and mid-February 2015, to its assets following the unfreezing of its bank accounts. It follows that, given that situation, the Council can hardly contend that there is a risk that the purpose of the restrictive measures could be circumvented.

54      However, that reasoning is valid only for the earlier restrictive measures which the Council adopted on 15 October 2012. By contrast, as regards the new restrictive measures imposed on the applicant by the contested measures, it cannot, at the outset, be ruled out that the court hearing the main application, refusing to adopt the restrictive interpretation mentioned in paragraph 48 above, will dismiss the action for annulment brought by the applicant. In those circumstances, account should be taken again of the purpose of those measures and the applicant should be prevented from being able to proceed immediately to withdraw the funds which it may have accumulated in its bank accounts in the five months in which there were no restrictive measures.

55      In any event, according to well-established case-law, regulations laying down the restrictive measures, such as Regulation No 2015/230 (see paragraph 18 above) resemble both measures of general application in that they impose on a category of addressees determined in a general and abstract manner a prohibition on making funds available to persons and entities mentioned in their annexes and also a bundle of individual decisions affecting those persons and entities (see, to that effect, judgments of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, ECR, EU:C:2008:461, paragraphs 241 to 243; 16 November 2011 in Bank Melli Iran v Council, C‑548/09 P, ECR, EU:C:2011:735, paragraph 45; and 23 April 2013 in Gbagbo and Others v Council, C‑478/11 P to C‑482/11 P, ECR, EU:C:2013:258, paragraph 56). That prohibition is addressed to whoever might actually hold the funds in question (see, to that effect, judgment of 22 January 2015 in Bank Tejarat v Council, T‑176/12, EU:T:2015:43, paragraph 68). The fact that the measure at issue must be notified individually to those whose funds will be frozen does not affect its general application against all those who may be in possession of such funds (see Opinions of Advocate General Sharpston in Council v Bank Mellat, C‑176/13 P, ECR, EU:C:2015:130, and Council v Bank Saderat Iran, C‑200/13 P, ECR, EU:C:2015:134, paragraph 177).

56      As already stated in paragraph 44 above as regards the temporal effects of the annulment of a regulation laying down restrictive measures, the second paragraph of Article 60 of the Statute of the Court of Justice provides that decisions of the General Court declaring such a measure to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of dismissal of that appeal by the Court of Justice. That maintaining in force of the validity of such measures, which is justified by the need to give the Council the chance to correct the finding of illegality by adopting new measures, has been systematically extended to decisions imposing restrictive measures, and this by virtue of the second paragraph of Article 264 TFEU, which authorises this Court to indicate which of the effects of the measure it has declared void are to be considered definitive, on the ground that a difference between the date when the annulment of a regulation imposing a particular restrictive measure takes effect and that of the annulment of a decision imposing an identical measure would be likely to seriously jeopardise legal certainty (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraphs 37 and 38 and the case-law cited).

57      Therefore, were the Court, upon conclusion of the main action, to annul Regulation No 2015/230 with the suspensory effect provided for in the second paragraph of Article 60 of the Statute of the Court of Justice, it would also annul Decision 2015/236 (see paragraph 18 above), aligning, in all probability, the date when that annulment takes effect, pursuant to the second paragraph of Article 264 TFEU, with the date when the annulment of Regulation No 2015/230 takes effect. In any event, even if the temporal effects of an annulment of Decision 2015/236 were not aligned with those of an annulment of Regulation No 2015/230, the fact remains that the restrictive measures taken against the applicant under that regulation would have to be maintained, in accordance with the second paragraph of Article 60 of the Statute of the Court of Justice, beyond the date of delivery of the judgment annulling the measures, such that the applicant’s name would not, in any case, be immediately erased by reason of that judgment.

58      It is settled case-law that the procedure for interim relief is merely ancillary to the main action to which it is an adjunct and aims simply to guarantee the full effectiveness of the future decision on the main action (see orders of 16 November 2012 in Akzo Nobel and Others v Commission, T‑345/12 R, ECR, EU:T:2012:605, paragraph 25 and the case-law cited, and 16 June 2015 in Alcogroup and Alcodis v Commission, T‑274/15 R, EU:T:2015:389, paragraph 20 and the case-law cited) and that, under Article 158(3) of the Rules of Procedure, any interim measures ordered by the judge hearing the application automatically lapse when final judgment is delivered. It follows that the applicant’s interest in having its funds provisionally unfrozen relates to an advantage that it could not have secured even through a judgment annulling the contested measures. Such a judgment could produce the practical effects sought by the applicant — namely the removal of its name from the list of entities whose funds are frozen — only from a date after the date on which the judgment is delivered, whereas on that date, the judge hearing applications for interim relief at first instance would no longer have any jurisdiction ratione temporis and, in any event, the applicant’s name could be maintained on the list as a result of a new restrictive measure replacing, within the period laid down in the second paragraph of Article 60 of the Statute of the Court of Justice, the measures annulled. In those circumstances, the applicant’s interest in securing, through proceedings for interim relief, the provisional unfreezing of its funds, cannot be protected by the judge hearing the application for interim measures (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 40).

59      It follows that the balance of the various interests in the case is not in favour of the applicant.

 Urgency

60      According to the applicant, there is a sufficient degree of probability that it will suffer serious harm if the application for interim measures is not granted. The main purpose of the sanctions regime against the Islamic Republic of Iran and the contested measures is to impose hardships on the entities listed by effectively excluding them from trade in the EU, with a view to exerting political pressure on the Government of Iran. If the applicant were not at risk of suffering serious damage, the restrictive measures adopted against the Islamic Republic of Iran would not serve their objective and the contested measures would be manifestly disproportionate on that ground alone.

61      According to the Council, the applicant has failed to establish that it would suffer serious and irreparable harm in the event of the dismissal of its application for interim measures.

62      In that regard, it must be recalled that, according to settled case-law, urgency must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage being caused to the party seeking those measures. It is not necessary for imminent harm to be demonstrated with absolute certainty. It is sufficient to show that it is foreseeable with a sufficient degree of probability. Nevertheless, the party so pleading must prove the facts forming the basis of its claim that serious and irreparable harm is likely and submit to the judge hearing the application for interim relief specific and precise particulars, substantiated by detailed documents illustrating its situation and enabling the judge to examine the precise effects which would probably follow if the measures sought were not granted. The party seeking the interim measures is thus required to provide, with supporting documents, information that establishes a true overall picture of the situation, which, in its view, justifies the grant of those measures (see order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 19 and the case-law cited).

63      In the present case, it must be held at the outset that, as is clear from the details provided by the applicant in its reply of 4 June 2015, the alleged harm is financial in nature. However, although the applicant provided, in that reply, figures relating to its economic activity, it has not submitted any documentary evidence in support of those figures.

64      With regard to the seriousness of the alleged harm, it should be recalled that it has been held that financial harm which is objectively significant or even not inconsiderable could be regarded as serious, without there being any need to relate it systematically to the turnover of the undertaking which fears suffering that harm (see, to that effect, order of 7 March 2013 in EDF v Commission, C‑551/12 P(R), ECR, EU:C:2013:157, paragraphs 32 and 33; see also, by analogy, order in Commission v ANKO, cited in paragraph 30 above, EU:C:2014:239, paragraph 34).

65      In the present case, it is common knowledge that before the introduction, in 2012, of the restrictive measures imposed by the EU in order to apply pressure on the Islamic Republic of Iran to end its nuclear activities, the applicant’s business activities in the EU amounted to tens of millions of United States dollars (USD) and that those activities were, first, reduced and then came to a complete halt following the implementation of those measures. In those circumstances, despite the lack of evidence provided by the applicant, it may be accepted that the harm which would be caused to it by the forced continuation of that commercial inactivity must be qualified as objectively significant or, at least, not inconsiderable.

66      As regards the irreparable nature of that harm, it is settled case-law that damage of such a financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since financial compensation for that damage can normally be obtained subsequently. In such circumstances, the interim measures sought will be justified only if it appears that, without those measures, the party seeking them would be in a position that could jeopardise its financial viability before final judgment is given in the main action or that its market share would be irremediably and substantially affected, in the light, in particular, of the size of its business (see order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 20 and the case-law cited).

67      As regards the present case, it has already been found above that the applicant had lost, following the restrictive measures taken against it, its entire market share in the shipping sector in the EU. However, that loss is precisely one of the objectives pursued by those measures and testifies rather to their effectiveness. On this view, such a loss can be relevant in the context of disputes relating to restrictive measures, only where its irreparable nature is established. On this point, the applicant has remained silent. It has, in particular, failed to show that obstacles of a structural or legal nature prevent it from regaining a significant proportion of the lost market share. The harm claimed in this respect cannot therefore be considered to be irreparable (see, to that effect, order of 24 March 2009 in Cheminova and Others v Commission, C‑60/08 P(R), EU:C:2009:181, paragraph 64).

68      It should be added that the applicant does not claim that its financial viability is in jeopardy. On the contrary, it states, in its reply of 4 June 2015, that its current commercial activities consist of transporting Iranian oil to China, India, South Korea, Taiwan and Turkey, that its total turnover was approximately USD 895 million in 2013 and that, according to its estimates, its current annual turnover will be similar.

69      The applicant also argues that it would be difficult for it to prove in advance the harm directly attributable to the contested measures, since there are forensic difficulties in separating out the damage caused by the earlier measures or by the wider international sanctions framework from the damage caused by the contested measures. According to the applicant, this will need to be the subject of detailed forensic evidence that is not possible to adduce prospectively and predictively. To require the applicant to provide this evidence at this stage would be an insurmountable hurdle to obtaining interim measures. Thus, the harm caused to the applicant by the contested measures would be at least in part irreparable, since it could not be adequately quantified. Therefore, an action for damages would not provide the applicant with effective legal protection for the purposes of Article 47 of the Charter of Fundamental Rights.

70      In that regard, it must be recalled, according to well-settled case-law, that harm of a financial nature may be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 52, and EDF v Commission, cited in paragraph 64 above, EU:C:2013:157, paragraph 60 and the case-law cited).

71      Admittedly, the uncertainty of obtaining compensation for financial damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measures is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment), to which the interlocutory proceedings are an adjunct (see, to that effect, orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 53, and of 14 December 2011 in Alcoa Trasformazioni v Commission, C‑446/10 P(R), EU:C:2011:829, paragraph 55 to 57).

72      However, the situation is different where it is clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages (order in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 54).

73      In the present case, it does not appear that the applicant is prevented from obtaining, in case of annulment of the contested measures, financial compensation for the financial loss which those measures will have caused it, by bringing an action for damages against the Council under Articles 268 TFEU and 340 TFEU, given that the mere possibility of being able to bring such an action is sufficient to show that the financial harm at issue is in principle reparable (see, to that effect, order of 14 December 2001 in Commission v Euroalliages and Others, C‑404/01 P(R), ECR, EU:C:2001:710, paragraphs 70 to 75).

74      The President of the General Court does not see why the applicant would be prevented from properly quantifying the financial harm that has been caused to it by the contested measures, by calculating the income accruing from economic activities that it had carried out within the EU during a representative year, prior to the imposition of the first restrictive measures, and by comparing that income with that realised following the contested measures; in the event that that income has already been reduced to zero in the years prior to the adoption of those measures, the harm caused by those measures would consist of maintaining that situation and could thus be calculated by an average annual reference.

75      In that context, it should be noted that the applicant, itself, provided such figures in its reply of 4 June 2015. Accordingly, it stated the gross income accruing from its activities in the EU, namely its business relationships with major EU oil companies and EU traders for 2009 to 2013. It shows that that income consistently fell from USD 500 million (2009) to USD 160 million (2010), then to USD 100 million (2011), then to USD 40 million (2012) and to USD 0 (2013).

76      In any future proceedings for compensation, the Court would be entitled to calculate the loss caused to the applicant by the contested measures by means of an abstract assessment based on the likely developments of its market shares and profits in the normal course of events had the unlawful conduct alleged against the Council not been committed (see, to that effect, order of 5 June 2013 in Rubinum v Commission, T‑201/13 R, EU:T:2013:296, paragraph 50). With regard to the quantification of harm, the Court’s appraisal of the facts is not open to appeal and it has a margin of appreciation as to the method to be adopted to determine the extent of any reparation (see, to that effect, judgment of 21 February 2008 in Commission v Girardot, C‑348/06 P, ECR, EU:C:2008:107, paragraphs 72, 74 and 76). In the present case the Court could even rely on estimates based on mean statistical values, it being understood that the applicant must prove the data on which those estimates are based (see, to that effect, judgment of 28 April 2010 in BST v Commission, T‑452/05, ECR, EU:T:2010:167, paragraph 168 and the case-law cited).

77      In any event, it seems permissible to conclude from the case-law of the President of the Court of Justice that an undertaking which is the subject of restrictive measures cannot validly claim irreparable financial harm, where it may invoke the specific provisions of the EU rules relating to the freezing of funds or economic resources which enable the competent national authorities to authorise, by exemption, the release of certain frozen funds, since those provisions enable expenses and basic needs to be covered, or contractual obligations entered into before the freeze took effect to be fulfilled (order of 11 March 2013 in North Drilling v Council, T‑552/12 R, EU:T:2013:120, paragraph 21; see also, to that effect, orders in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 41, 42 and 44, and of 25 October 2012 in Hassan v Council, C‑168/12 P(R), EU:C:2012:674, paragraph 39).

78      Those exemptions ensure balance between, on the one hand, the restrictive measures’ objective of reducing the risk of nuclear proliferation in Iran and, on the other hand, the need to ensure the listed undertaking’s survival. Therefore, the outcome of a request for a suspension of operation of restrictive measures depends on the application, in the specific case, of those exemptions authorising the release of certain frozen funds (see, to that effect, order in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 45 and 66).

79      In the present case, Article 20(3) to (4a), (6) and (7) of Decision 2010/413, as amended, and Articles 24 to 28b of Regulation No 267/2012, as amended, provide for a number of exemptions, permitting the release of the applicant’s funds in specific circumstances. The applicant has merely challenged the relevance of those potential exemptions in relation to the present case, without expressing a view on the abovementioned case-law of the President of the Court of Justice. In particular, it has not indicated whether it has submitted to the competent national authorities requests seeking authorisation to use the frozen funds or whether it has encountered difficulties or been refused such authorisation from those authorities.

80      Consequently, the requirement of urgency is not fulfilled.

81      It follows from all the foregoing considerations that the application for interim measures must be dismissed.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 16 July 2015.

E. Coulon

 

      M. Jaeger

Registrar

 

      President


* Language of the case: English.


1 This order is published in extract form.