Language of document : ECLI:EU:T:2008:301

ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE

27 August 2008 (*)

(Applications for interim measures – Regulation (EC) No 423/2007 – Restrictive measures against the Islamic Republic of Iran – Council decision – Measure to freeze funds and economic resources – Application for suspension of operation of a measure – No urgency – Absence of serious and irreparable damage)

In Case T‑246/08 R,

Melli Bank plc, established in London (United Kingdom), represented by R. Gordon, QC, J. Stratford, M. Hoskins, Barristers, R. Gwynne and T. Din, Solicitors,

applicant,

v

Council of the European Union, represented by M. Bishop and E. Finnegan, acting as Agents,

defendant,

supported by

United Kingdom of Great Britain and Northern Ireland, represented by V. Jackson, acting as Agent, and S. Lee, Barrister,

and by

French Republic, represented by E. Belliard, G. de Bergues and L. Butel, acting as Agents,

interveners,

APPLICATION for suspension of the application of paragraph 4, section B, of the Annex to Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29), in so far as Melli Bank plc is included in the list of legal persons, entities and bodies whose funds and economic resources are frozen,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES

makes the following

Order

 Background to the dispute

1        The applicant, Melli Bank plc, began United Kingdom banking operations in 2002. After operating as branches of Bank Melli Iran (‘BMI’), it is now a wholly owned subsidiary of BMI. The applicant has established its registered address in the United Kingdom, has 77 employees and its shareholders are Iranian. The applicant does business in Iran and makes investments there in the course of commercial relations. BMI, the applicant’s parent bank, is controlled by the Iranian State.

2        By its Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29, ‘the contested decision’), the Council took measures which had the effect of freezing the applicant’s funds and economic resources.

3        The contested decision was taken as part of a regime of sanctions which was set up in order to put pressure on the Islamic Republic of Iran to end aspects of its nuclear programme. Against that background, it is necessary to mention in particular the following international and Community measures.

4        On 23 December 2006, the United Nations Security Council adopted Resolution 1737 (2006), the annex to which lists a number of persons and entities involved in the Iranian nuclear and ballistic missile programmes and whose funds and economic resources were to be frozen. The principal motivation for that resolution was the Islamic Republic of Iran’s failure to suspend its uranium‑enrichment‑related activities or to respond to previous resolutions.

5        On 24 March 2007 the funds-freezing measures were extended by Resolution 1747 (2007) to further persons and entities, including Bank Sepah and its subsidiary in the United Kingdom, Bank Sepah International Plc.

6        In order to implement Resolution 1737 (2006) in the European Union, the Council adopted, on 27 February 2007, Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2007 L 61, p. 49), Article 5(1) of which provides that all funds and economic resources which belong to, are owned, held or controlled, directly or indirectly, by the persons or entities designated in Resolution 1737 (2006) are to be frozen. Article 5(1)(b) refers, inter alia, to ‘entities … that are engaged in, directly associated with, or providing support for, [the Islamic Republic of Iran]’s proliferation sensitive nuclear activities or for the development of nuclear weapon delivery systems, … entities acting on their behalf or at their direction, [and] entities owned or controlled by them’.

7        In order to implement Resolution 1737 (2006) in the European Community, the Council adopted, on the basis of Articles 60 EC and 301 EC, Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1). The aim of that regulation is inter alia to persuade the Islamic Republic of Iran to suspend all uranium-enrichment-related and fuel reprocessing activities. Article 7 thereof provides:

‘1. All funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in Annex IV shall be frozen. Annex IV shall include the persons, entities and bodies designated by the United Nations Security Council or by the Sanctions Committee in accordance with paragraph 12 of UNSCR 1737 (2006).

2. All funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in Annex V shall be frozen. Annex V shall include natural and legal persons, entities and bodies, not covered by Annex IV, who, in accordance with Article 5(1)(b) of Common Position 2007/140/CFSP, have been identified as:

(a)       being engaged in, directly associated with, or providing support for, Iran’s proliferation-sensitive nuclear activities; or

(b)       being engaged in, directly associated with, or providing support for, Iran’s development of nuclear weapon delivery systems; or

(c)       acting on behalf of or at the direction of a person, entity or body referred to under (a) or (b); or

(d)       being a legal person, entity or body owned or controlled by a person, entity or body referred to under (a) or (b), including through illicit means.

3. No funds or economic resources shall be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annexes IV and V.

4. The participation, knowingly and intentionally, in activities the object or effect of which is, directly or indirectly, to circumvent the measures referred to in paragraphs 1, 2 and 3 shall be prohibited.’

8        Annexes IV and V to Regulation No 423/2007 list the persons, entities and bodies whose funds and economic resources were to be frozen in accordance with Article 7(1) and 7(2) respectively. Those lists have been amended on several occasions. Before the adoption of the contested decision, the applicant’s name did not appear on it.

9        Article 15(2) of Regulation No 423/2007 provides, first, that the Council, acting by qualified majority, is to establish, review and amend the list of persons, entities and bodies referred to in Article 7(2) and in full accordance with the determinations made by the Council in respect of Annex II to Common Position 2007/140/CFSP and, second, that the list in Annex V is to be reviewed at regular intervals and at least every 12 months.

10      However, by way of derogation from Article 7, Article 9 of Regulation No 423/2007 authorises the competent authorities of the Member States, in essence, to release the frozen funds in order to enable the person, the entity or the body listed in Annex IV or V to honour obligations arising from contracts concluded prior to the adoption of the measure to freeze funds. Further, Article 10 of that regulation permits, inter alia, the release of frozen funds in order to enable the persons, entities and bodies referred to to pay for everyday expenses.

11      On 3 March 2008 the United Nations Security Council adopted Resolution 1803 (2008). By paragraph 7 of that resolution, the measures set out in Resolution 1737 (2006) are extended to further persons and entities that the United Nations Security Council determined ‘to have assisted designated persons or entities in evading sanctions [imposed]’. Paragraph 10 thereof makes specific reference to BMI, the Security Council calling upon ‘all States to exercise vigilance over the activities of financial institutions in their territories with all banks domiciled in Iran, in particular with Bank Melli and Bank Saderat, and their branches and subsidiaries abroad, in order to avoid such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapon delivery systems’. However, neither the applicant nor BMI were designated in the Annexes to Resolution 1803 (2008) under the funds‑freezing regime.

12      Finding that certain other bodies, entities and persons met the conditions laid down in Article 7(2) of Regulation No 423/2007 and therefore had to be entered on the list in Annex V to that regulation, the Council adopted, on 23 June 2008, the contested decision, which, under paragraph 4, section B of the Annex thereto, includes the applicant in that list, on the following grounds:

‘Providing or attempting to provide financial support for companies which are involved in or procure goods for Iran’s nuclear and missile programmes (AIO, SHIG, SBIG, AEOI, Novin Energy Company, Mesbah Energy Company, Kalaye Electric Company and DIO). Bank Melli serves as a facilitator for Iran’s sensitive activities. It has facilitated numerous purchases of sensitive materials for Iran’s nuclear and missile programmes. It has provided a range of financial services on behalf of entities linked to Iran’s nuclear and missile industries, including opening letters of credit and maintaining accounts. Many of the above companies have been designated by [United Nations Security Council Resolutions] 1737 and 1747.’

 Procedure and forms of order sought

13      By application lodged at the Court Registry on 25 June 2008, the applicant brought an action seeking, in essence, the annulment of the contested decision in so far as it concerns it. The applicant pleads infringement of the principles of proportionality and non‑discrimination in that, first, the freezing of its funds does not bear a rational relationship with the aim of preventing the Islamic Republic of Iran’s nuclear activities and is not the least restrictive measure to prevent the financing of those activities and, second, it is discriminated against in relation to certain other banks.

14      By separate documents lodged at the Court Registry on the same date, the applicant made an application for adjudication by the expedited procedure under Article 76a of the Rules of Procedure of the Court of First Instance, as well as this application for interim measures, in which it claims, in essence, that the President of the Court of First Instance should:

–        suspend the application of the contested decision, in so far as it relates to the applicant, on a temporary basis under Article 105(2) of the Rules of Procedure, pending the adoption of an order which will bring to an end these proceedings for interim measures and, in any event, until the Court has given judgment in the main action;

–        grant any other relief deemed appropriate;

–        order the Council to pay the costs.

15      In its written observations on the application for interim measures, lodged at the Court Registry on 11 July 2008, the Council contends that the Court should:

–        dismiss the application for interim measures;

–        order the applicant to pay the costs.

16      By orders of 11 and 14 July 2008, the President of the Court of First Instance granted leave to the United Kingdom of Great Britain and Northern Ireland as well as the French Republic to intervene in the present proceedings in support of the form of order sought by the Council. In their statements in intervention, lodged at the Court Registry on 23 and 24 July 2008, the interveners contend that the application for interim measures should be dismissed. By written pleading of 4 August 2008, the applicant commented on the statements in intervention. On that occasion, it pleaded, in particular, the unlawfulness of Article 7(2)(d) of Regulation No 423/2007.

17      By decision of 18 July 2008, the Court of First Instance (Second Chamber) granted the applicant’s request that the dispute in the main proceedings be disposed of under an expedited procedure pursuant to Article 76a of the Rules of Procedure.

 Law

18      Under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures.

19      Article 104(2) of the Rules of Procedure provides that an application 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECRI‑4971, paragraph 30).

20      Also, in the context of that overall examination, the judge hearing the application has a wide 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 Community law imposing a pre‑established scheme of analysis within which the need to order interim measures must be analysed and assessed (order in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).

21      Lastly, it should be pointed out that Article 242 EC lays down the principle that actions are not to have suspensory effect (order in Case C‑377/98 R Netherlands v Parliament and Council [2000] ECR I‑6229, paragraph 44, and order in Case T‑191/98 R II Cho Yang Shipping v Commission [2000] ECR II‑2551, paragraph 42). It is therefore only on an exceptional basis that a judge hearing an application for interim measures may order that application of the act contested before the Court of First Instance be suspended or prescribe any interim measures.

22      Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties.

23      In the circumstances of the present case, it is necessary to examine, first, whether the condition for urgency is satisfied.

 Arguments of the parties

24      The applicant claims that, if the interim relief sought is not granted, there is an urgent risk of serious and irreparable harm to its economic activity and reputation. As such, the requirement that urgency must be shown is satisfied. The contested decision prohibits it, outside certain narrow exceptions and subject to obtaining administrative licences, from carrying out transactions with other banks and with its customers and clients. It is therefore unable to undertake any economic activity within the European Union.

25      As regards the seriousness of its financial harm, the applicant states that it is a United Kingdom bank and that the majority of its assets are situated in the United Kingdom. As a result of the contested decision, it is unable to undertake any financial activities, at least without special licence. Consequently, its business relations are likely to disappear overnight and it will no longer be able to make profits, which may force it to abandon its activities, on account of the fact that the proceedings in the main action are likely to last many months. As such, it will be unable to trade freely for a considerable period of time and thus the financial harm which it suffers will be extremely serious. Furthermore, such financial harm will probably lead to job losses.

26      According to the applicant, as well as its operations in the UK, the measures introduced by the contested decision impact its business across the European Union and elsewhere. For example, its euro payments are made through banks in the Netherlands and in Germany. Such payments require a prior administrative licence in the United Kingdom and probably equivalent permission from the Netherlands and German authorities.

27      The applicant goes on to state that the financial harm suffered is irreparable on account of the fact that, if it were forced to abandon its United Kingdom and European Union business, it is improbable that it would be able to re‑establish its position on that market. In any event, even if it were able to survive until the Court gave a judgment of annulment in the main proceedings, it is extremely unlikely that it could return to a prosperous or normal trading situation. Having been ‘blacklisted’ as an entity supporting the allegedly hostile nuclear weapons programme of what is claimed by some to be a ‘rogue’ state, it is improbable that the applicant could return to a trading situation equivalent to its current one. Thus, many customers and clients would be expected to desert it in the time it takes for the Court to examine the case in the main proceedings and, even if it is ultimately vindicated before the Court, without interim relief, very few of those customers and clients are likely to return.

28      As regards the seriousness of the harm caused to its reputation, the applicant submits that, if the interim relief sought is not granted, it will be stigmatised as being an entity involved with and supporting the Islamic Republic of Iran’s nuclear activities. In this regard, it is placed on a list with entities and individuals that have been singled out by the international community for a particularly onerous form of economic restriction, and this even though the United Nations Security Council did not itself apply such restrictions to the applicant. The damage to the Bank’s reputation will be extremely serious, particularly at a time in which large banks and businesses are subject to heightened public scrutiny and are unwilling to conduct business with banks subjected to international censure.

29      Furthermore, once lost, the applicant’s reputation will be extremely difficult to recover. Even if it is ultimately successful before the Court, the damage will already irreparably have been done. If the interim relief sought is not granted, the applicant will be stigmatised for a lengthy period in which it will be prohibited from trading whilst being subjected to accusations that it supports the nuclear activities. It is highly unlikely that the applicant’s reputation could subsequently be re‑established. Furthermore, the market is currently uncertain and characterised by low bank and investor confidence. In particular, suspicion of Iranian banks is high. The applicant’s reputation is therefore one of its most valuable assets.

30      In respect of the balance of interests involved, the applicant refers, in essence, to the factors that it has already put forward in order to draw attention to the seriousness and the irreparable nature of the harm caused to its reputation and economic activities.

31      The Council, supported by the United Kingdom and the French Republic, submits, in essence, that the applicant has failed to prove that it will suffer serious and irreparable harm before the main action is disposed of if the suspension of operation is not granted. In particular, Articles 9 and 10 of Regulation No 423/2007 will allow the applicant to continue to exist pending the judgment of the Court in the main action. The applicant’s argument that it is legally and functionally distinct from BMI is purely formal. The fact remains that the applicant is a wholly‑owned subsidiary of BMI, which exercises effective control over the applicant. Consequently, the condition of urgency is not satisfied.

 Findings of the President of the Court

32      In accordance with settled case-law, urgency must be assessed in relation to the necessity for an order granting interim relief in order to prevent serious and irreparable damage to the party requesting the relief. It does not have to be established with absolute certainty that the damage is imminent; it is sufficient that the damage, particularly when it depends on the occurrence of a number of factors, should be foreseeable with a sufficient degree of probability (see the order in Case T-346/06 R IMS v Commission [2007] ECR II-1781, paragraphs 121 and 123, and the case-law cited). However, the party invoking damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (orders in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, paragraph 188; and in Case T-34/02 R B v Commission [2002] ECR II‑2803, paragraph 86).

33      It is also well-established case-law that damage of a purely financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since normally it can be the subject of subsequent financial compensation (orders in Case C-471/00 P(R) Commission v Cambridge Healthcare Supplies [2001] ECR I‑2865, paragraph 113, and in Case T-339/00 R Bactria v Commission [2001] ECR II‑1721, paragraph 94).

34      If the risk of damage is purely financial, the interim measure sought is justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its existence before final judgment in the main action (order in Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 84). Since imminent disappearance from the market does constitute damage that is both irremediable and serious, adoption of the interim measure sought appears justified in such a situation.

35      While account has also been taken of the fact that, if the interim measure sought were not granted, the applicant’s market share would be irremediably affected (orders in Case T-13/99 R Pfizer Animal Health v Council [1999] ECR II‑1961, paragraph 138, and in Case T-392/02 R Solvay Pharmaceuticals v Council [2003] ECR II‑1825, paragraph 107), it must be pointed out that this situation can be placed on an equal footing with that of the risk of disappearance from the market and justify adoption of the interim measure sought only if the irremediable effect on market share is also of a serious nature, which implies that the market share which may be irremediably lost must be sufficiently large (see, to this effect, the order in Case T‑369/03 R Arizona Chemical and Others v Commission [2004] ECR II-205, paragraphs 83 and 84). An applicant who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of it, in particular by appropriate publicity measures, is impossible by reason of obstacles of a structural or legal nature (see, to this effect, Commission v Cambridge Healthcare Supplies, cited above, paragraphs 110 and 111, and the order of the President of the Court of First Instance of 26 February 2007 in Case T-416/06 R Sumitomo Chemical Agro Europe v Commission, not published in the ECR, paragraphs 59 and 60).

36      It has however been held that even the fact that an undertaking may become insolvent does not necessarily mean that the condition concerning urgency is fulfilled. The assessment of the economic circumstances of an undertaking must, in particular, take into consideration the characteristics of the group to which it belongs by virtue of its shareholding structure (order of the President of the Court of First Instance of 2 May 2007 in Case T‑297/05 R IPK International – World Tourism Marketing Consultants v Commission, not published in the ECR, paragraph 59; see also, to that effect, the order in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12), which may lead the judge hearing the application for interim measures to hold that the condition concerning urgency is not fulfilled, in spite of the foreseeable insolvency of the undertaking (see the order in Case C‑232/02 P(R) Commission v Technische Glaswerke Ilmenau [2002] ECR I‑8977, paragraph 56, and the case‑law cited).

37      In that context, it is a question of assessing whether the damage pleaded may be classified as serious in the light, in particular, of the size and turnover of the undertaking and of the characteristics of the group to which it belongs (see the orders in Case C-43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36, and the case-law cited, and of 17 December 2007 in Case T‑367/07 R Dow AgroSciences and Others v Commission, not published in the ECR, paragraph 91, and the case-law cited).

38      That approach is based on the idea that the objective interests of the undertaking concerned are not distinct from those of the persons who control it. The serious and irreparable nature of the damage alleged must therefore be assessed also by reference to the financial position of the persons who control the undertaking. That coincidence of interests is justification in particular for not assessing the undertaking’s interest in its own survival separately from the interest of the persons controlling it in seeing it survive (order in HFB and Others v Commission, cited above, paragraph 62; orders in Case T‑241/00 R Le Canne v Commission [2001] ECR II‑37, paragraph 40, and in Case T‑192/01 R Lior v Commission [2001] ECR II‑3657, paragraph 55).

39      The reasons put forward by the applicant to establish that it would suffer serious and irreparable damage of both a financial and non‑material nature if suspension of the operation of the contested decision were not ordered, must be examined in the light of those considerations.

 Damage of a financial nature

40      It is common ground that the applicant forms part of the group whose parent company is BMI and that it is a wholly‑owned subsidiary of BMI, which is controlled by the Iranian State.

41      In this respect, it must be pointed out that, in the course of these proceedings, the applicant stated merely that it was ‘legally and functionally distinct from its parent BMI’, without however providing the slightest information on BMI’s financial position, or on the characteristics of the group to which it belongs. Nor has the applicant expressed a view specifically on whether, as a wholly‑owned subsidiary of BMI, it enjoyed, within the economic unit formed by the BMI group, real autonomy in determining its course of action in the market or whether it merely carried out BMI’s instructions (see, to that effect, Case C‑73/95 P Viho v Commission [1996] ECR I‑5457, paragraph 16). Although it stated that its business model and plan were ‘entirely different … to BMI’, that in no way precludes the possibility that those specific features might form part of the BMI group’s commercial strategy. In particular, the applicant has failed to establish that its objective pecuniary interests, which depend on its survival until the conclusion of the main action, are independent of those of its parent company or those of the Iranian State.

42      Consequently, the President of the Court can only conclude that the interests of the applicant in fact coincide with those of its parent company and the Iranian State which controls that parent company.

43      According to settled case‑law, any information on the financial position of the applicant’s parent company and on the autonomous nature of the pecuniary interests at issue ought to have appeared in the application for interim measures. Such an application must be sufficient in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where appropriate, without other supporting information, the essential elements of fact and law on which it is founded having to be set out in a coherent and comprehensible fashion in the text of the application for interim measures itself (orders in Case T‑236/00 R Stauner and Others v Parliament and Commission [2001] ECR II‑15, paragraph 34; in Case T-306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 52, and in Case T-85/05 R Dimos Ano Liosion and Others v Commission [2005] ECR II‑1721, paragraph 37).

44      It follows that, in the absence of such information in the application for interim measures, the President of the Court is unable to examine specifically whether the inability of the applicant, as a company belonging to the BMI group, to carry out banking operations would cause it, having regard to the total turnover of that group, a loss which could be classified as serious financial damage.

45      For the sake of completeness, it should be pointed out that several elements in the case support the argument that, even if the suspension of operation were not granted, the damage caused by the freezing of the funds in question could not be deemed serious.

46      The United Kingdom of Great Britain and Northern Ireland claimed, without being contradicted by the applicant, that in the meantime the competent national authorities have granted the applicant several licences aimed at releasing, pursuant to Articles 9 and 10 of Regulation No 423/2007, frozen funds in order to allow it, inter alia, to meet building costs, pay staff salaries or honour transactions with suppliers and depositors.

47      Furthermore, contrary to the fear expressed by the applicant, it appears unlikely that the proceedings in the main action will last ‘many months’, given that the Court of First Instance decided, on 18 July 2008, to allow its application for adjudication by the expedited procedure. It therefore appears conceivable that those proceedings will be concluded within a reasonable period of time in view of the specific circumstances of the main proceedings.

48      Moreover, at pages 9 and 12 of its 2007 Annual Report, the applicant draws attention to the leading role that it takes in the international trade of the Islamic Republic of Iran, a country ‘blessed with one of the largest … energy reserves of the world’ and expresses its gratitude for the ‘outstanding support from its parent … in all areas of business in 2007’, ‘without whose support [its] success would not have been possible’, and notes that its parent company occupies a leading position within the Iranian economy as the largest bank in Iran.

49      Accordingly, it appears realistic to expect, first, that the applicant has available to it the minimum funds necessary to ensure its survival until judgment is given in the main action and, second, that the BMI group is able to bear, during that period, the financial damage caused by the freezing of the funds imposed on its subsidiary in the United Kingdom, damage which cannot be classified as serious. In particular, it can be expected that the applicant will be able to resume fully its banking activities following a judgment of annulment. In that context, the Council rightly observed that many banks have made large transient losses through their trading activities, yet they still survived and were subsequently able to return to profitability.

50      In so far as the applicant claims that there is a risk of job losses, it should be added that, in as much as it thereby involves the harm that its employees would suffer, it is well‑established case‑law that it cannot plead damage to an interest which is not personal to it, such as for example damage to the rights of third parties, in order to establish that the condition relating to urgency is met (see, to that effect, the order in Case T‑316/04 R Wam v Commission [2004] ECR II‑3917, paragraph 28, and the case‑law cited). Accordingly, the harm suffered by the applicant’s employees cannot usefully be relied upon in order to substantiate the urgent nature of the suspension of operation sought. It is not a question in that case of damage to the applicant’s personal interests (see orders of the President of the Court of First Instance of 2 August 2006 in Case T‑69/06 R Aughinish Alumina v Commission, not published in the ECR, paragraph 81, and of 19 July 2007 in Case T‑31/07 R Du Pont de Nemours (France) and Others v Commission, not yet published in the ECR, paragraphs 147 and 168).

51      It follows from the foregoing that the applicant has failed to show, as matters stand, that it would suffer serious and irreparable financial damage if the suspension of operation were not granted.

 The non‑material damage

52      It should be pointed out that the damage to the applicant’s reputation, assuming that it is established, would already have been caused by paragraph 4, section B, of the Annex to the contested decision and would continue until that provision is annulled by the judgment in the main action. The Council adopted the contested decision at the end of a procedure based on Regulation No 423/2007, which is itself based on Articles 60 EC and 301 EC. The Court of First Instance has held that the Council enjoys broad discretion in its assessment of the matters to be taken into consideration for the purpose of adopting economic and financial sanctions on the basis of Articles 60 EC, 301 EC and 308 EC; the Community judicature carries out only a limited review of the lawfulness of decisions to freeze funds and may not substitute its assessment of the evidence, facts and circumstances justifying the adoption of such measures for that of the Council (see, to that effect, Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Council [2006] ECR II‑4665, paragraph 159). In those circumstances, a suspension of the operation of the contested decision, which the President of the Court could order only on a purely provisional basis and in summary proceedings, would scarcely be such as to dispel, among current or potential customers or clients of the applicant, the suspicion which, according to the applicant itself, hangs over all Iranian banks and which would have been intensified by the contested decision more specifically vis-à-vis the applicant.

53      Moreover, since the purpose of proceedings for interim relief is not to ensure reparation for damage but rather to ensure the full effectiveness of the ruling to be given in the main case, it must be concluded, with regard to the non-material damage alleged, that the condition relating to urgency is not met (see the order in Case T‑47/03 R Sison v Council and Commission [2003] ECR II‑2047, paragraph 41). In any event, it is well‑established case‑law that the grant of the suspension of operation sought would not be able to remedy the non‑material damage alleged any more than would partial annulment of the contested decision when the main action is decided (see, to that effect, the order in Aden and Others v Council and Commission, cited above, paragraph 117, and the case‑law cited).

54      In that context, the President of the Court considers that partial annulment of the contested decision when the main action is decided would constitute sufficient reparation for the non‑material damage allegedly caused by that decision. Such a judgment of annulment would demonstrate formally and definitively that the Council acted unlawfully by prejudicing the applicant’s reputation, which would give satisfaction to the applicant.

55      Moreover, the applicant has failed to establish to the requisite legal standard that it would be impossible for it, by reason of obstacles of a structural or legal nature, to regain its reputation, in particular by appropriate publicity measures.

56      It should be added that paragraph 4, section B, of the Annex to the contested decision contains a detailed and specific statement of reasons with regard to the financial support provided by the BMI group, namely ‘Bank Melli, Melli Bank Iran and all branches and subsidiaries’, for numerous companies which are involved in or procure goods for the Islamic Republic of Iran’s nuclear and missile programmes (see paragraph 12 above). It is clear that those reasons, assuming that they are correct, justify a freezing of the funds under Regulation No 423/2007 and any damage thereby caused to the reputation of the BMI group. Without there being any need for the President of the Court to carry out a detailed assessment of any prima facie case, he notes, in the present context of urgency concerning the non‑material damage alleged, that those reasons are not the subject of a similarly detailed and specific challenge in the application for interim measures.

57      The applicant merely claims in the abstract that ‘[it] does not invest, trade or deal in, or fund directly or indirectly, any person, entity or technology involved in proliferation’, that ‘[t]here is no evidence to suggest … that it provides funding to those connected with the Nuclear Activities, that ‘there is no evidence that [it] funds the Nuclear Activities [of Iran]’, and that ‘there is no evidence that [it] provides funds or support to, or deals with any individuals or entities which are involved with the Nuclear Activities’.

58      However, in its application for interim measures the applicant has not submitted anything disputing the involvement of its parent company or of other subsidiaries belonging to the BMI group in the support of the nuclear activities in question. It cannot therefore be considered, for the purposes of this application for interim measures, that the contested decision prejudices unjustifiably the reputation of those other companies of the BMI group. As the United Kingdom of Great Britain and Northern Ireland rightly observed, it would be unrealistic to seek to deny that that damage to the reputation of the BMI group as a whole, which is not disputed by the applicant, also affected the reputation of the banking activities carried out by the applicant. It is quite clear that the grant of suspension of operation in favour of the applicant alone would hardly be likely to prevent that damage to the reputation of the group as a whole.

59      For those additional reasons, the applicant cannot reasonably request that the suspension of operation be ordered in order to prevent it from suffering serious and irreparable non‑material damage consisting in the damage to its reputation.

60      Consequently, the application for interim measures must be dismissed for lack of urgency, without any need to examine whether the other conditions for granting the suspension of operation, in particular that of a possible prima facie case – and more specifically the alleged unlawfulness of Article 7(2)(d) of Regulation No 423/2007 – , are met.

On those grounds,

THE PRESIDENT OF THE COURT OF FIRST INSTANCE

hereby orders:

1.      The application for interim measures is dismissed.

2.      The costs are reserved.

Luxembourg, 27 August 2008.

E. Coulon

 

      M. Jaeger

Registrar

 

       President


* Language of the case: English.