ORDER OF THE PRESIDENT OF THE GENERAL COURT
24 November 2022 (*)
(Interim relief – Common foreign and security policy – Restrictive measures in view of the situation in Belarus – Application for suspension of operation of a measure – Lack of urgency)
In Case T‑116/22 R,
Belavia – Belarusian Airlines AAT, established in Minsk (Belarus), represented by N. Tuominen and L. Engelen, lawyers,
applicant,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By its application based on Articles 278 and 279 TFEU, the applicant, Belavia – Belarusian Airlines AAT, seeks, in essence, the suspension of operation of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430 I, p. 16) and Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430 I, p. 1), in so far as they concern the applicant (together, the ‘contested measures’).
Background to the dispute and forms of order sought by the parties
2 The applicant is the State-owned national flag carrier airline of Belarus.
3 On 18 May 2006, the Council of the European Union adopted Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1).
4 On 15 October 2012, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5 On 2 December 2021, in view of the gravity of the situation in Belarus, the Council adopted the contested measures.
6 By Implementing Decision 2021/2125, the applicant’s name was added to the list of legal persons, entities and bodies subject to restrictive measures which is set out in the annex to Decision 2012/642.
7 The grounds for including the applicant’s name on the list of legal persons, entities and bodies subject to restrictive measures are as follows:
‘Open Joint Stock Company “Belavia” is the State-owned national flag carrier airline. Aliaksandr [Lukashenko] promised that his administration would provide all possible support to Belavia after the [European] Union decided to introduce a prohibition on the overflight of [EU] airspace and on access to [EU] airports by all Belarusian air carriers. To that end, he agreed with the Russian President Vladimir Putin on planning the opening of new airline routes for Belavia.
Belavia’s management also told its employees not to protest against the election irregularities and mass detentions in Belarus, in view of the fact that Belavia is a State-owned enterprise.
Belavia is therefore benefiting from and supporting the [Lukashenko] regime.
Belavia has been involved in bringing migrants from the Middle East to Belarus. Migrants wishing to cross the [European] Union’s external border have been flying to Minsk on board flights operated by Belavia from a number of Middle Eastern countries, in particular Lebanon, [United Arab Emirates] and Turkey. In order to facilitate this, Belavia opened new air routes and expanded the number of flights on existing routes. Local tour operators have acted as intermediaries in selling Belavia tickets to prospective migrants, thereby helping Belavia to keep a low profile.
Belavia is therefore contributing to activities by the [Lukashenko] regime that facilitate the illegal crossing of the external borders of the [European] Union.’
8 By Implementing Regulation 2021/2124, the applicant’s name was added, with the same reasons, to the list of legal persons, entities and bodies subject to restrictive measures which is set out in the annex to Regulation No 765/2006.
9 By letter of 3 December 2021, the Council informed the applicant of its decision to include its name on the list of legal persons, entities and bodies subject to restrictive measures which is set out in the annex to Decision 2012/642, as implemented by Implementing Decision 2021/2125, and in Annex I to Council Regulation No 765/2006, as implemented by Implementing Regulation 2021/2124.
10 On the same day, the Council published in the Official Journal of the European Union a notice for the attention of persons subject to the restrictive measures provided for in Decision 2012/642, as implemented by Implementing Decision 2021/2125, and in Regulation No 765/2006, as implemented by Implementing Regulation 2021/2124 (OJ 2021 C 486, p. 22).
11 On 6 December 2021, the International Air Transport Association (IATA) revoked the applicant’s airline accounting code and prefix. That revocation occurred due to the obligation on IATA to comply with the restrictive measures adopted by the European Union in view of the situation in Belarus, in particular those provided for in Article 2(2) of Regulation No 765/2006.
12 By application lodged at the Registry of the General Court on 3 March 2022, the applicant brought an action for annulment of the contested measures in so far as they concern it.
13 By separate document, lodged at the Court Registry on 19 September 2022, the applicant made the present application for interim measures, in which it claims that the President of the General Court should:
– order the suspension of operation of the contested measures with immediate effect in accordance with Article 157(2) of the Rules of Procedure of the General Court;
– order the suspension of operation of the contested measures pending the Court’s ruling on the main action;
– grant any other interim measures as appropriate and hold an oral hearing as needed;
– order the Council to pay the costs.
14 In its observations on the application for interim measures, lodged at the Court Registry on 4 October 2022, the Council contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
General considerations
15 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).
16 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must ‘state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
17 Thus, the judge hearing an application for interim relief 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 relief is also to undertake, when necessary, a weighing of the competing interests (see order of the Vice-President of the Court of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
18 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).
19 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.
20 In the circumstances of the present case, and without it being necessary to rule on the admissibility of the first part of the applicant’s third head of claim, by which it requests the President of the General Court to grant any other interim measure deemed appropriate, it is necessary to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
21 In order to determine whether the interim measures sought are urgent, it should be recalled that the purpose of the procedure for interim relief 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 Courts. To attain that objective, urgency must generally be assessed in the light of the need of 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 the Vice-President of the Court 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).
22 Moreover, according to the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
23 Thus, 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 the Vice-President of the Court 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).
24 It is also settled case-law that, in order to determine whether all the conditions referred to in paragraph 21 above are fulfilled, 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 produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).
25 It is in the light of those criteria that it should be examined whether the applicant has managed to demonstrate urgency.
26 In the present case, in the first place, in order to demonstrate the serious and irreparable nature of the damage suffered, the applicant claims that the contested measures will lead to a significant loss of its turnover and profit margin, which will inevitably jeopardise its activity. As a result of the contested measures, in particular the loss of the ability to issue electronic tickets due to IATA revoking its airline accounting code and prefix and their reassignment to another airline from 6 December 2022, upon the expiry of the 12-month protection period following the date of that revocation provided for by IATA’s rules, the applicant will suffer a 100% loss of its total passenger and cargo transportation sales, resulting in a 100% loss of its total profit margin related to passengers and cargo transportation.
27 In the second place, the applicant submits that it will suffer an irrevocable loss of market share as a result of the loss of the ability to issue electronic tickets and air waybills after IATA has reassigned its code and its prefix to another airline. In so far as obstacles of a structural or legal nature will prevent it from regaining a significant proportion of that market share, it will not be able to re-establish the market share lost and will therefore be forced to cease its activities completely. According to the applicant, the impossibility of issuing electronic tickets will result in the applicant’s being excluded from all international airports, will give its competitors an irreversible advantage and will lead to a change in the preferences of its customers. Even if the main action were upheld, the applicant would have to wait years before a new IATA code was available, while being unable to operate without that code.
28 In the third place, the applicant claims that, although it has managed to secure direct settlements with its partners, once IATA reassigns its code to another airline in December 2022, all international booking systems will be updated, which will result in an automatic and unique technical inability to carry out mutual settlements both with partner airlines and with agents, since the international booking systems are also used for direct settlements.
29 In the fourth place, the applicant submits that compensation alone will not be sufficient to constitute restitutio in integrum. Once its code and its prefix are reassigned to another airline, it will no longer be able to recover them. According to the applicant, it will be able to obtain a new IATA code only if IATA has a free code to assign at the time when it submits its application. If IATA does not have a free code to assign, it will have to wait for another airline to lose its code, which can take years. Consequently, the definitive loss of its market share cannot be made good.
30 The Council contends, in contrast, that the requirement of urgency has not been satisfied.
31 In that regard, in the first place, as regards the applicant’s argument that the contested measures will lead to a significant loss of turnover, it must be borne in mind that, where the harm referred to is of a financial nature, the interim measures sought are justified where, in the absence of those measures, the party seeking them would be in a position that would imperil its financial viability before final judgment is given in the main action, or where its market share would be affected substantially in the light, inter alia, of the size and turnover of its undertaking and, where appropriate, the characteristics of the group to which it belongs (see order of Vice-President of the Court of 12 June 2014, Commission v Rusal Armenal, C‑21/14 P-R, EU:C:2014:1749, paragraph 46 and the case-law cited). Since imminent disappearance from the market does constitute damage that is both irreparable and serious, adoption of the interim measure sought appears justified in such a situation (order of 9 June 2010, Colt Télécommunications France v Commission, T‑79/10 R, not published, EU:T:2010:228, paragraph 37).
32 Furthermore, in accordance with well-established case-law, damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he or she suffered the damage. Any such damage could be recouped by the applicant’s bringing an action for compensation on the basis of Articles 268 and 340 TFEU (see order of 23 April 2015, Commission v Vanbreda Risk & Benefits, C‑35/15 P(R), EU:C:2015:275, paragraph 24 and the case-law cited).
33 In the present case, the applicant claims, in particular, that, as a result of the loss of the ability to issue electronic tickets following IATA’s revocation of the airline accounting code and prefix and their reassignment to another airline from 6 December 2022, it will suffer a 100% loss of its total passenger and cargo transportation sales.
34 In that regard, first, it should be borne in mind that, as is apparent from the parties’ written pleadings, IATA represents 290 airlines in 120 countries, carrying 83% of global air traffic. Consequently, it must be pointed out, as the Council observes, that not all airlines are members of such an organisation and that membership of that organisation does not constitute a mandatory condition, for airlines, for operating their flights. The same is true of the IATA airline accounting and prefix codes which, for airlines, must not be regarded as an indispensable condition for operating their flights.
35 Second, as is apparent from IATA’s rules, the possession of accounting codes and numerical prefixes is not essential for the conclusion of an interline agreement with an airline holding a valid IATA airline code. It follows, therefore, that, even if the applicant lacks IATA airline accounting and prefix codes, it will still have the possibility of increasing cooperation with other airlines that have such a code.
36 Third, as the applicant itself acknowledges in paragraph 28 of its application for interim measures, if an airline loses the ability to issue electronic tickets and air waybills according to IATA standards, it will have to come up with its own passenger service technology. Admittedly, it adds that the implementation of that measure, by admitting passengers on board according to a paper list, is theoretically possible only at domestic airports. However, if, as the applicant itself concedes, it operated approximately 70% of passenger traffic at Minsk airport in 2021 and if, consequently, its flights are operated from Minsk, the tickets are issued at domestic airports and most passengers are Belarusian citizens who can purchase return tickets in Belarus.
37 Fourth, as is apparent from Annex B.22 to the Council’s observations, the applicant publicly stated, when its participation in the IATA billing and settlement plan and the cargo account settlement system was suspended, that Belarusian passengers would not notice any changes because, within the country, the airline is not linked to the billing and settlement plan. In that context, the applicant also stated that it would extend its network of agents working abroad under a direct contract.
38 It follows from all the foregoing that the applicant, even without an IATA airline accounting code and prefix, will still be able to carry out its activities and that, consequently, the foreseeable loss of turnover does not appear to be such as to jeopardise its very existence within the meaning of the case-law cited in paragraph 31 above.
39 In the second place, as regards the applicant’s argument that it will suffer an irrevocable loss of market share, it must be borne in mind that, although, in line with the case-law, account has been taken of the fact that, if the measure sought were not granted, the applicant’s market share would be irremediably affected, it must be stated 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. It is therefore not sufficient that a market share may be irremediably lost by an undertaking; rather, it is necessary for that market share to be sufficiently large in the light of, in particular, the size of that undertaking, regard being had to the characteristics of the group to which it belongs through its shareholders. An applicant seeking interim measures who invokes the loss of such a market share must demonstrate, furthermore, that regaining a significant proportion of that share is impossible by reason of obstacles of a structural or legal nature (see order of 28 April 2009, United Phosphorus v Commission, T‑95/09 R, not published, EU:T:2009:124, paragraph 35 and the case-law cited).
40 In the present case, it has already been concluded in paragraph 38 above that the share of turnover which the applicant fears it will lose does not appear to be such as to jeopardise its very existence.
41 However, the applicant submits that structural and legal obstacles prevent it from regaining a significant proportion of the market share which it will lose, in so far as the impossibility of issuing electronic tickets will result in the applicant’s being excluded from all international airports, will give its competitors an irreversible advantage, will bring about a change in the preferences of its customers and, even if the main action is upheld, it will have to wait years for a new IATA code to be available.
42 First, as regards the alleged exclusion of the applicant from all international airports, it must be stated that, as mentioned in paragraph 36 above, if the majority of the applicant’s flights are operated from Minsk, the tickets are issued at domestic airports and most passengers are Belarusian citizens who purchase return tickets.
43 Second, as regards the irreversible advantage of the applicant’s competitors and the change in customer preferences, the applicant has indeed produced, in Annex A.5 to its application for interim measures, a number of statements by certain partners expressing their concern about the applicant’s current situation and the financial consequences of such a situation on their business and requesting it to provide them with additional information to enable them to assess the prospects of future cooperation with the applicant.
44 However, it must be held that the applicant has not succeeded in establishing, to the requisite legal standard, that the loss of the IATA airline accounting code and prefix would confer an irreversible advantage on its competitors and that it would be impossible for it to win back its customers. The statements in question, formulated in general terms, do not show that any loss of customers would be irremediable and that it would not be possible for the applicant to regain its previous position should the contested measures be annulled at the end of the main proceedings. Moreover, it is not certain that, in the circumstances of an economy such as that of Belarus, the public authorities would allow competitors to capture the market share lost by the national airline.
45 Consequently, the difficulty invoked, as is apparent from the pleadings, in regaining market share lost as a result of the irreversible advantage conferred on its competitors and the change in the preferences of its customers cannot, therefore, in itself, convince the judge hearing the application for interim measures of the irreparable nature of the alleged harm (see, to that effect, order of 21 January 2019, Agrochem-Maks v Commission, T‑574/18 R, EU:T:2019:25, paragraph 71 (not published)).
46 Third, as regards the applicant’s argument that the procedure for reassigning a new IATA airline accounting code and prefix takes several years, it must be pointed out, as the Council has done, that, as is apparent from Annex B.18 to the Council’s observations, the duration of the procedure for the award of IATA codes depends on issues relating to non-compliance with the relevant requirements and does not take years.
47 It follows that, in the event of annulment of the contested measures, the alleged loss of market share is manifestly not irreversible and that the applicant will be able to regain a significant proportion of that market share.
48 In the third place, as regards the applicant’s argument that, when IATA reassigns its code to another airline as from 6 December 2022, it will no longer be in a position to carry out mutual settlements both with partner airlines and agents, since the international booking systems are also used for direct settlements. It must be stated, as the Council points out, that the applicant does not specify to what extent the absence of an IATA code makes it impossible for it to carry out its direct settlements and does not provide any information as to how the international booking system affects direct settlements.
49 In the fourth place, as regards the applicant’s claim that compensation alone will not be sufficient to constitute restitutio in integrum because, once its IATA code and prefix are assigned to another airline, it will no longer be able to recover them or obtain a new code and prefix for many years, it is not apparent from its pleadings 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 (see, to that effect, order of 22 June 2018, Arysta LifeScience Netherlands v Commission, T‑476/17 R, EU:T:2018:407, paragraph 94 and the case-law cited).
50 Although the applicant submits that there is a risk that the alleged harm cannot be compensated, it does not provide any evidence in support of its claims that financial compensation would not in itself be sufficient to constitute restitutio in integrum.
51 In those circumstances, it must be concluded that the present application for interim measures does not satisfy the condition of urgency.
52 Since the conditions for the grant of suspension of operation and interim measures are cumulative, it follows from all of the foregoing that the application for interim measures must be dismissed, without it being necessary to rule on whether there was a prima facie case or to weigh up the interests involved.
53 By virtue of Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
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, 24 November 2022.
E. Coulon | | M. van der Woude |