ORDER OF THE PRESIDENT OF THE GENERAL COURT
27 February 2024 (*)
(Interim measures – Common foreign and security policy – Restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine – Freezing of funds and economic resources – Application for interim measures – No urgency)
In Case T‑102/23 R,
SBK Art OOO, established in Moscow (Russia), represented by G. Lansky and P. Goeth, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio‑Tomasaz, acting as Agent, and by B. Maingain, lawyer,
defendant,
supported by
Republic of Croatia, represented by G. Vidović Mesarek, acting as Agent,
by
Kingdom of the Netherlands, represented by M.K. Bulterman, A. Hanje and C.S. Schillemans, acting as Agents,
and by
European Commission, represented by M. Carpus Carcea, C. Georgieva and L. Puccio, acting as Agents,
interveners,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application under Articles 278 and 279 TFEU, the applicant, SBK Art OOO, seeks, inter alia, suspension of the operation of Council Decision (CFSP) 2023/1767 of 13 September 2023 amending Decision 2014/145/CFSP concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 104) and of Council Implementing Regulation (EU) 2023/1765 of 13 September 2023 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2023 L 226, p. 3) (together, ‘the contested acts’), in so far as those acts prevent it from exercising its rights as stakeholder in Fortenova Group STAK Stichting (‘the Dutch holding company Fortenova’) and from voting in relation to the sale and transfer of shares of Fortenova Group MidCo BV (‘Mid-Co’) by Fortenova Group TopCo BV (‘Top-Co’).
Background to the dispute and forms of order sought
2 The applicant is a company established in Russia. Before 31 October 2022, the applicant was 100% owned by the Russian bank Sberbank. Since 31 October 2022, its sole shareholder has been Mr Saif Jaffar Suhail Markhan Alketbi, a national of the United Arab Emirates.
3 The Fortenova group, one of the largest food distribution groups in the Balkans region, is controlled by the Dutch holding company Fortenova. The latter holds 100% of Top-Co, which, in turn, holds 100% of Mid-Co, which itself holds 100% of Fortenova Group holdCo BV. Finally, the latter holds 100% of Fortenova Grupa d.d. The applicant holds 43% of the shares of the Dutch holding company Fortenova.
4 By Council Implementing Regulation (EU) 2022/396 of 9 March 2022 implementing Regulation (EU) No 269/2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2022 L 80, p. 1), Sberbank was added to the list in Annex I to Council Regulation (EU) No 269/2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 6), as amended.
5 On 19 August 2022, the Dutch holding company Fortenova convened a meeting stating that stakeholders subject to restrictive measures or sanctions would be excluded from the vote. That exclusion also covered the applicant, as a subsidiary of Sberbank.
6 The applicant challenged that decision before the competent Netherlands courts.
7 By judgment of 6 September 2022, the voorzieningenrechter van de rechtbank te Amsterdam (the judge hearing the application for interim measures of the District Court, Amsterdam, Netherlands) granted the applicant an interim measure, holding that the Dutch holding company Fortenova should allow it to exercise its voting rights.
8 On 16 December 2022, the applicant was included in the list in Annex I to Regulation No 269/2014, as amended by Council Regulation (EU) 2022/1905 (OJ 2022 L 259I, p. 76), pursuant to Council Implementing Regulation (EU) 2022/2476 of 16 December 2022 implementing Regulation No 269/2014 (OJ 2022 L 322I, p. 318) on the ground that Sberbank retains effective control over the applicant notwithstanding the alleged transfer of its shares to the new purchaser. The applicant was also included in the annex to Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine (OJ 2014 L 78, p. 16) pursuant to Council Decision (CFSP) 2022/2477 of 16 December 2022 amending Decision 2014/145 (OJ 2022 L 322I, p. 466).
9 By judgment of 29 December 2022, the Gerechtshof te Amsterdam (Court of Appeal, Amsterdam, Netherlands) set aside the judgment of the judge hearing the application for interim measures of 6 September 2022, holding that the refusal to allow the applicant to exercise its voting rights met the obligation to comply with the existing restrictive measures.
10 By document lodged at the General Court Registry on 26 February 2023, the applicant brought an action seeking, in essence, a declaration of inapplicability and annulment of Decision 2022/2477 and of Implementing Regulation 2022/2476.
11 On 13 March 2023, the Council of the European Union adopted Decision (CFSP) 2023/572 amending Decision 2014/145 (OJ 2023 L 75I, p. 134) and Council Implementing Regulation (EU) 2023/571 implementing Regulation No 269/2014 (OJ 2023 L 75I, p. 1), which extend the measures taken against the applicant.
12 By a statement of modification, lodged at the Court Registry on 13 April 2023, the applicant requested the Court to annul the measures referred to in paragraph 11 above.
13 On 13 September 2023, the Council adopted the contested acts, which extend the measures taken against the applicant.
14 By a statement of modification, lodged at the Court Registry on 24 November 2023, the applicant requested the Court to annul the acts referred to in paragraph 13 above.
15 On 29 November 2023, the Dutch holding company Fortenova issued a press release in which it announced an agreement for the sale of Mid-Co to Open Pass, a Maltese company with a 26.55% shareholding in the Dutch holding company Fortenova, with the aim of separating the latter from its sanctioned stakeholders. The agreement would cover the sale of 100% of the shares of Mid-Co to a newly constituted structure (‘Bid-Co’), composed of the Dutch foundation Iter STAK Stichting and the Dutch company Iter BidCo BV. The unsanctioned shareholders could either transfer their stake to the new structure, or provide a supplemental investment and increase their stake, or withdraw their stake and leave the group. As regards sanctioned shareholders, the funds to be paid to them would be paid into a special account, to which they would have access when the restrictive measures legislation so permits.
16 By separate document lodged at the Court Registry on 13 December 2023, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the Court should:
– suspend the operation of the contested acts in so far as those acts prevent it from exercising its rights as stakeholder in the Dutch holding company Fortenova and from voting in the context of the sale and transfer of shares of Mid-Co by Top-Co;
– adopt any interim measures which he considers appropriate to enable it to participate in the meetings of stakeholders in the Dutch holding company Fortenova and to vote at those meetings on issues relating to the preservation of its stake in that legal person, or its protection against the proposed expropriation measures;
– reserve the costs.
17 In its observations on the application for interim measures, which were lodged at the Court Registry on 8 January 2024, the Council contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
18 By document lodged at the Court Registry on 10 February 2024, the applicant lodged additional observations on its application for interim measures. It is apparent from those observations that the sale of Mid-Co to Bid-Co was approved by the shareholders’ meeting which took place on 18 December 2023. On 28 December 2023, a sale and purchase agreement was concluded between Top-Co and Bid-Co.
Law
General considerations
19 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
20 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures are to state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
21 The judge hearing an application for interim measures may order suspension of operation of an act and 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 applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim measures must also, when necessary, weigh up the interests involved (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
22 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular 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 assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
23 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 argument from the parties.
24 In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
25 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim measures is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Court. To attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
26 In addition, under the second sentence of Article 156(4) of the Rules of Procedure, applications for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
27 Accordingly, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
28 It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
29 In the present case, in order to demonstrate the imminent risk of serious and irreparable harm, the applicant submits, in essence, that the impossibility of exercising its right to vote as a shareholder of the Dutch holding company Fortenova would enable the non-sanctioned minority shareholders to put in place an eviction strategy with the objective of separating that holding company from its sanctioned stakeholders. That strategy would lead to the expropriation of the applicant’s shareholding in the Dutch holding company Fortenova. The applicant states that the implementation of that strategy would cause it the following damage.
30 In the first place, it refers to pecuniary damage which materialises in several ways.
31 First, the sale of Mid-Co to Open Pass would irreversibly and irreparably deprive it of its investment. Following approval of the sale of Mid-Co, the applicant would remain a participant in a smaller holding company as an empty shell company without any real economic activity, whereas the value-generating activity of the Fortenova group would have been transferred almost entirely to Open Pass.
32 Secondly, the applicant disputes the transaction price. The purchase price set (at most) at EUR 660 million, the ceiling of EUR 160 million of which reflects the conditional price for the benefit of the stakeholders not participating in the transaction, namely the sanctioned stakeholders, is too low.
33 Thirdly, the applicant claims that it would be difficult for it to seek redress, since Open Pass is an ad hoc entity devoid of any substance, which could easily transfer its shares in Mid-Co to another company, which would further complicate the claim for redress that the applicant could make against Open Pass.
34 In the second place, as regards the non-pecuniary damage, the applicant claims that if the sale of Mid-Co were concluded, it would be deprived of the possibility of developing the operational activities of the Fortenova group. It claims that, by investing in the applicant, Mr Alketbi’s objective was to promote the Fortenova group in food distribution in the Middle East and to create synergies in the food and retail sector between the Arabian Peninsula and Europe. That termination would deprive the applicant of a strategic, even geopolitical, opportunity. It would thus lose the opportunity to become a major player in deepening relations between the Gulf and the Balkans. No compensation would be capable of compensating for that loss of opportunity.
35 In the third place, in its additional observations on the application for interim measures, the applicant submits that, despite the approval of the sale of Mid-Co and the conclusion of the sales contract, the transfer of ownership of the shares has not yet taken place and submits that it could still exercise its voting rights effectively.
36 The Council contends, in contrast, that the requirement of urgency has not been satisfied.
37 In the first place, it should be observed, first, that the damage alleged by the applicant stems from the exercise of voting rights in a holding company governed by Netherlands law by shareholders who are not subject to restrictive measures. Although it is true that the sanctions imposed on the applicant prevent it from relying on its own voting rights in order to oppose decisions taken by those shareholders, the fact remains that that damage, even if proved, is attributable to those shareholders and that the applicant has brought proceedings before the Netherlands courts in order to challenge the legality of their actions under Netherlands law. It is therefore not certain that the damage on which the applicant relies is caused by the contested acts.
38 Secondly, the applicant’s line of argument seeks, in essence, to call into question the decisions of national courts. By the application for interim measures, the applicant is, in essence, asking the President of the General Court to compel the national courts to interpret the implementation of the contested acts at national level. Furthermore, it should be noted that the question whether those restrictive measures impose the prohibition on the exercise of voting rights as a shareholder or as a holder of securities is not the subject of the main proceedings, to which the present interim proceedings are ancillary.
39 In the second place, assuming that there is nevertheless a causal link between the damage claimed and the contested acts, it should be recalled that, according to settled case-law, in the event of damage of a pecuniary nature, an interim measure is justified if it appears that, without that measure, the party seeking it will be in a position that could imperil its financial viability before the decision ending the proceedings on the substance is taken or that its market share could be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, as the case may be, the characteristics of the group to which it belongs (see order of 12 March 2021, Ciano Trading & Services CT & S and Others v Commission, T‑45/21 R, not published, EU:T:2021:131, paragraph 32 and the case-law cited).
40 Furthermore, it follows from well-established case-law that such harm of a financial nature is considered to be irreparable if it cannot be quantified, that is to say, where it is already 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 such harm by bringing an action for damages under Articles 268 and 340 TFEU (see order of 13 February 2014, Luxembourg Pamol (Cyprus) and Luxembourg Industries v Commission, T‑578/13 R, not published, EU:T:2014:103, paragraph 90 and the case-law cited).
41 To that end, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must, in principle, produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 10 July 2018, Synergy Hellas v Commission, T‑244/18 R, not published, EU:T:2018:422, paragraph 27 and the case-law cited).
42 In the present case, first, it must be stated that the applicant has not adduced any evidence to show that, in the absence of the interim measures sought, it would be in a position that would imperil its financial viability.
43 Secondly, the applicant does not explain how the claims that Open Pass is an ad hoc entity empty of any substance which could easily transfer its shares in Mid-Co to another company would prevent it, in the event of the annulment of the contested acts, from obtaining subsequent financial compensation by means of an action for damages.
44 Thirdly, as regards the alleged strategy of expropriation of its shareholding, it should be noted that, despite the limitation on the exercise of certain rights connected with its assets, the applicant remains the owner of those assets and could bring legal proceedings in that regard before the national courts against any transactions which would be detrimental to it.
45 In the third place, as regards non-pecuniary damage consisting of the loss of the strategic opportunity to develop and redirect the activities of the Fortenova group, it should be noted that it is based on the occurrence of future and uncertain events. Since no evidence has been adduced concerning that strategy and no evidence has been provided to substantiate the certainty of that damage, it must be concluded that the damage is hypothetical.
46 It follows from all of the foregoing that the application for interim measures must be dismissed as the applicant has failed to establish that the condition relating to urgency is satisfied, without it being necessary to rule on the condition of whether there is a prima facie case or to weigh up the competing interests.
47 Under Article 158(5) of the Rules of Procedure, the costs are to be reserved.
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, 27 February 2024.
V. Di Bucci | | M. van der Woude |