ORDER OF THE PRESIDENT OF THE GENERAL COURT
10 June 2011 (*)
(Application for interim measures – State aid – Decision declaring the aid incompatible with the common market and ordering its recovery – Application for suspension of operation – No urgency)
In Case T‑207/07 R,
Eurallumina SpA, established in Portoscuso (Italy), represented by L. Martin Alegi and R. Denton, solicitors,
applicant,
v
European Commission, represented by N. Khan and D. Grespan, acting as Agents,
defendant,
APPLICATION for suspension of operation of Commission Decision 2007/375/EC of 7 February 2007 concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)) (OJ 2007 L 147, p. 29), in so far as it concerns the applicant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 The applicant Eurallumina SpA produces alumina for sale on the Italian and world markets. It has been a wholly-owned subsidiary of United Company Rusal (‘UC Rusal’) since March 2007.
2 Alumina is a white powder mainly used in foundries to produce aluminium. It is extracted from bauxite by a refining process, the final stage of which is calcination. Mineral oils, including heavy fuel oil, may be used as fuel for the production of alumina.
3 The Italian Republic exempted from excise duty mineral oils used for the production of alumina in Sardinia from 1993. That exemption and similar exemptions in France and Ireland were authorised by several decisions of the Council of the European Union, most recently by Council Decision 2001/224/EC of 12 March 2001 concerning reduced rates of excise duty and exemptions from such duty on certain mineral oils when used for specific purposes (OJ 2001 L 84, p. 23), until 31 December 2006. Decision 2001/224 stated that it was without prejudice to the outcome of any procedures relating to distortions of the operation of the single market that might be undertaken, in particular under Articles 87 EC and 88 EC, and that it did not override the requirement for Member States to notify instances of potential State aid to the Commission under Article 88 EC.
4 On 30 October 2001 the Commission initiated the procedure provided for in Article 88(2) EC with regard to the exemptions mentioned above. On completion of that procedure, the Commission on 7 December 2005 adopted Decision 2006/323/EC concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia respectively implemented by France, Ireland and Italy (OJ 2006 L 119, p. 12).
5 In Decision 2006/323 the Commission found that the exemptions granted by the French Republic, Ireland and the Italian Republic until 31 December 2003 constituted State aid within the meaning of Article 87(1) EC, which, to the extent that it was incompatible with the common market, was to be recovered. In February 2006 the applicant and the Italian Republic, Ireland, the French Republic and an Irish undertaking brought actions before the General Court seeking annulment of Decision 2006/323. By judgment of 12 December 2007 in Joined Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06 Ireland and Others v Commission, not published in the ECR (‘the General Court’s judgment of 12 December 2007’), the Court annulled Decision 2006/323.
6 On 7 February 2007 the Commission adopted Decision 2007/375/EC concerning the exemption from excise duty on mineral oils used as fuel for alumina production in Gardanne, in the Shannon region and in Sardinia implemented by France, Ireland and Italy respectively (C 78/2001 (ex NN 22/01), C 79/2001 (ex NN 23/01), C 80/2001 (ex NN 26/01)) (OJ 2007 L 147, p. 29, ‘the contested decision’). In that decision the Commission concluded that those exemptions from excise duty granted by the French Republic, Ireland and the Italian Republic from 1 January 2004 constituted State aid which, to the extent that it was incompatible with the common market, was to be recovered. The Commission therefore called on the Italian Republic to take all necessary measures to recover that aid from the applicant.
7 At national level, the applicant, faced with two payment notices, one for the amount of EUR 13 273 442.29 (plus interest) for the period from 1 January 2004 to 7 February 2007 and one for the amount of EUR 4 598 516.22 (plus interest and a penalty for late payment) for the period from 8 February to 31 May 2007, issued by the Italian customs authorities with a view to the recovery required by the contested decision, applied to the Commissione tributaria di primo grado (Tax Court of First Instance, Italy, ‘the Tax Court’) for suspension of the payment notices. The Tax Court suspended them until the beginning of 2011.
8 By application lodged at the Registry of the General Court on 7 June 2007, the applicant brought an action for annulment of the contested decision (Case T‑207/07). By order of the President of the Eighth Chamber of the Court of 19 October 2007, the proceedings in that case were suspended until delivery of the General Court’s judgment of 12 December 2007 in Case T‑62/06 (see paragraph 5 above).
9 Following the appeal brought by the Commission on 26 February 2008 against that judgment of the General Court (Case C‑89/08 P), the proceedings in Case T‑207/07 were again suspended, by order of the President of the Eighth Chamber of the Court of 24 April 2008, pending delivery of the judgment of the Court of Justice.
10 On 9 March 2009 the applicant decided to decommission its refinery in Sardinia temporarily because of significant financial losses sustained as a result of the global financial crisis and high energy costs. Consequently, approximately 360 employees were made redundant. Only 45 full-time staff were retained in order to maintain the refinery and ensure compliance with health, environmental and safety obligations.
11 By judgment of 2 December 2009 in Case C‑89/08 P Commission v Ireland and Others [2009] ECR I‑11245, the Court of Justice set aside the General Court’s judgment of 12 December 2007 in so far as it had annulled Decision 2006/323, and referred Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06 back to the General Court. Following that judgment of the Court of Justice, the proceedings in Case T‑207/07 were suspended for a third time, by order of the President of the Second Chamber of the General Court of 24 March 2010, pending final judgment of the General Court in Cases T‑50/06 RENV, T‑56/06 RENV, T‑60/06 RENV, T‑62/06 RENV and T‑69/06 RENV and any decisions the Court of Justice might take if another appeal were brought.
12 In January 2010 the Commission approached the Italian authorities to remind them of their obligation to recover the aid in accordance with the contested decision, whereupon the Italian customs authorities issued a new payment notice and informed the applicant that the total interest payable as at December 2010 pursuant to the contested decision was EUR 3 128 024.78 and that the total amount to be repaid should be placed in a blocked bank account until the General Court gave final judgment on the cases referred back to it.
13 After initially granting an order suspending the new payment notice, the Tax Court on 1 March 2011 revoked the national suspension order on the grounds that since 2008 Italian domestic legislation no longer authorised the national courts to suspend the operation of a national recovery decision unless the applicant first made an application to the General Court of the European Union for an interim order suspending the operation of the basic Commission decision. The applicant states that the Italian customs authorities will therefore issue an account for the total amount of the alleged State aid to be recovered in accordance with the contested decision, approximately EUR 21 million (including interest), to be paid within 60 days from the date of the notice of account (‘the recovery order’).
Procedure and forms of order sought by the parties
14 By document lodged at the Court Registry on 6 April 2011, the applicant brought the present application for interim measures, in which it claims essentially that the President of the Court should:
– suspend the operation of the contested decision, in particular Article 4 of the decision ordering the Italian Republic to take all necessary measures to recover the alleged State aid before the end of the proceedings in the action for annulment;
– order the Commission to bear its own costs and to pay the applicant’s costs in connection with the present application and its correspondence to date with the Commission on this matter.
15 In its written observations on the application for interim measures, lodged at the Court Registry on 26 April 2011, the Commission contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
16 By letter of 11 May 2011, the applicant requested the President of the Court to arrange a hearing.
Law
17 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 application of a measure challenged before the General Court be suspended or prescribe any necessary interim measures.
18 Article 104(2) 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 relief 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 applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the judge hearing the application must also balance the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73). Those conditions are cumulative, so that an application for interim measures must be dismissed where any one of them is not fulfilled (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30, and order of the President of 10 December 2009 in Case C‑573/08 R Commission v Italy, not published in the ECR, paragraphs 11 and 12).
19 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 of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
20 It must be noted that Article 278 TFEU lays down the principle that actions do not have suspensory effect, since acts of the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing the application may order suspension of operation of an act that is being contested before the General Court or other interim measures (see, to that effect, order of the President of 17 December 2009 in Case T‑396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and the case-law cited).
21 Having regard to the material in the case-file, the President of the 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. Consequently, the applicant’s request for a hearing to be arranged must be rejected.
22 In the circumstances of the present case, it is appropriate to start by examining whether the condition of urgency is satisfied.
23 It is settled case-law that the urgency of an application for interim measures 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 interim relief (order of the President in Case C‑213/91 R Abertal and Others v Commission [1991] ECR I‑5109, paragraph 18; orders of the President in Joined Cases T‑195/01 R and T‑207/01 R Government of Gibraltar v Commission [2001] ECR II‑3915, paragraph 95, and in Case T‑181/02 R Neue Erba Lautex v Commission [2002] ECR II‑5081, paragraph 82). However, it is not sufficient to allege that the operation of the act whose suspension is sought is imminent, but it is for the party seeking such relief to adduce sound evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order of the President in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 85). While it does not have to be established with absolute certainty that the damage is imminent, its occurrence must nevertheless, in particular when it depends on several factors, be foreseeable with a sufficient degree of probability. The party requesting the interim relief is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67, and order in Neue Erba Lautex v Commission, paragraph 83).
24 It is also settled case-law that damage of a pecuniary 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. In such a case, the interim measure sought will be justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be affected irremediably and substantially, having regard in particular to the size of the undertaking (see order of the President of 28 April 2009 in Case T‑95/09 R United Phosphorus v Commission, not published in the ECR, paragraphs 33 to 35 and the case-law cited).
25 Moreover, in order to determine whether the damage feared by the applicant is serious and irreparable and therefore justifies the suspension, as an exceptional case, of the operation of the contested decision, the judge hearing the application for interim measures must have hard and precise information, supported by detailed documents showing the applicant’s financial situation and enabling the judge to determine the precise effects which would, probably, follow if the measures sought were not granted. The applicant must thus produce information, supported by documents, capable of producing a true overall picture of its financial situation (see, to that effect, order of the President of 7 May 2010 in Case T‑410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61, upheld on appeal by order of the President of 16 December 2010 in Case C‑373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).
26 It is settled case-law, moreover, that that true overall picture of the financial situation must be provided in the application for interim measures itself. Such an application must be sufficiently clear and precise in itself to enable the defendant to prepare its observations and the judge hearing the application to rule on it, where necessary, without other supporting information, it being necessary that the essential elements of fact and law on which it is founded are set out in a coherent and comprehensible fashion in the actual application for interim measures (order of the President of 31 August 2010 in Case T‑299/10 R Babcock Noell v Joint Undertaking Fusion for Energy, not published in the ECR, paragraph 17; see also order of the President of 30 April 2010 in Case C‑113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).
27 In the present case, the applicant claims that, if suspension of operation is not ordered, the enforcement of the contested decision will cause it serious and irreparable damage. First, it is objectively impossible for it to pay the amount of approximately EUR 21 million in the absence of funds or assets of its own. As its refinery in Sardinia has been decommissioned since March 2009, it has no resources of its own, so that it cannot repay the alleged State aid or make provision for its payment into a blocked bank account. Secondly, the immediate enforcement of the order for recovery would jeopardise the commercial viability of its refinery, in that it would prevent the initiation of its investment project for restarting operations in the refinery.
28 On the latter point, the applicant submits that it needs to restructure its refinery thoroughly in order to make it more efficient and less dependent on oil. That restructuring will require significant investment, approximately EUR 127 million, over two years. Citing a report prepared by its management for the board of its parent company UC Rusal, summarising that project, the applicant states that the project, worked out together with its shareholders, aims to ensure its long-term commercial viability. The internal approval process concerning the investment package is at an advanced stage. The negotiations are expected to be concluded in the coming months; if final agreement is reached, the management of UC Rusal will submit the project to its board and its bankers for approval. The applicant concludes that the immediate recovery of the alleged State aid would jeopardise the implementation of the investment project, as the amount to be repaid represents a substantial proportion of the investment required. It cannot wait until final judgment is handed down in the main proceedings, since it will be too costly to keep the refinery decommissioned until then.
29 The applicant manifestly confines itself to asserting that the immediate enforcement of the contested decision would cause it serious and irreparable financial damage because it would be unable to pay the sum sought to be recovered, without its assertions being supported by the documentary evidence required (see paragraph 25 above). In particular, it has not provided information, supported by documentation, that could establish a true overall picture of its financial situation. Consequently, the applicant’s assertions do not enable the President of the Court to assess the seriousness of the alleged damage, having regard to the size of the undertaking taken individually.
30 In view of the points put forward by the Commission to contest the existence of urgency, the President of the Court cannot therefore accept the existence of urgency on the sole basis of the unsupported assertions of the applicant. Bearing in mind the strictly exceptional nature of the ordering of interim measures (see paragraph 20 above), such measures can be granted only if those assertions are supported by evidence (see, to that effect, order in Babcock Noell v Joint Undertaking Fusion for Energy, paragraph 57).
31 It should be added that the applicant is a wholly-owned subsidiary of UC Rusal, which it has expressly described as ‘a global producer of alumina, aluminium and aluminium alloys, created in March 2007 through the merger of Rusal, Sual and the aluminium assets of Glencore’.
32 It is settled case-law that, to assess the factual situation of a company, particularly its financial viability, account must be taken of the characteristics of the group of companies to which it is linked by way of its shareholders and in particular of the resources available to that group as a whole (see, to that effect, orders of the President in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12; in Case C‑364/99 P(R) DSR-Senator Lines v Commission [1999] ECR I‑8733, paragraph 49; and in Ziegler v Commission, paragraph 44), which may lead to the conclusion that the condition of urgency is not satisfied despite the fact that the applicant company, taken individually, may become insolvent (see order of the President in Case C‑232/02 P(R) Commission v Technische Glaswerke Ilmenau [2002] ECR I‑8977, paragraph 56 and the case-law cited). It must therefore be assessed whether the alleged damage can be regarded as serious in the light of the characteristics of the group to which the applicant company belongs (see, to that effect, order of the President in Case C‑43/98 P(R) Camar v Commission and Council [1998] ECR I‑1815, paragraph 36 and the case-law cited).
33 That approach of taking into consideration the financial strength of the group to which the company concerned belongs is based on the idea that the objective interests of that company are not independent of those of the natural or legal persons controlling it or belonging to the same group. The seriousness of the alleged damage must therefore be assessed at the level of the group made up of those persons. That coincidence of interests is justification for not assessing the interest in continuing to trade of the company concerned independently of the interest in its continued existence of those controlling it or belonging to the same group (see, to that effect, order in Ziegler v Commission, paragraph 46 and the case-law cited, and order of the President of 18 June 2008 in Case T‑475/07 R Dow AgroSciences v Commission, not published in the ECR, paragraph 79).
34 In this respect, it has been held that a failure on the part of the judge hearing the application for interim measures, despite that coincidence of interests, to take into consideration the resources of the group to which the applicant company belongs in order to assess its factual situation would compromise the public interest in seeing decisions of the European Union institutions implemented and the objectives of those decisions attained. There would be a substantial risk that a group might organise the insolvency of the company which is the addressee of a decision requiring it to pay a sum of money, which would make that company unable to pay that sum once the General Court had given judgment in the main proceedings. That public interest cannot be called into question by the fact that the shareholders of such a company take the view that it is in their personal interest to allow that company to commence insolvency proceedings rather than to take its place to guarantee the payment in question (see, to that effect, order of the President of 28 March 2007 in Case T‑384/06 R IBP and International Building Products France v Commission, not published in the ECR, paragraph 84).
35 The applicant submits that that case-law is not applicable to the present case. There is no common or overlapping interest between the applicant and UC Rusal such that its parent company has an overriding objective interest in giving it financial support in order to maintain its commercial viability. Its refinery has been decommissioned since 2009 and is essentially a shell operation which generates no income for UC Rusal. Consequently, any contribution by UC Rusal towards repayment of the alleged State aid is likely to exceed the value of its shareholding in the applicant, while there is no legal obligation on UC Rusal to repay the aid. In the applicant’s view, no reasonable investor would provide assistance to its subsidiary in a similar situation. Moreover, taking into consideration the financial resources of the group to which the applicant belongs means that it is impossible for a company which is part of a group to obtain suspension of enforcement. Finally, the applicant is the only entity with standing to challenge and an interest in challenging the contested decision before the General Court.
36 None of those arguments can be accepted.
37 First, in so far as the applicant objects to the principle of taking the group into account, it must be recalled that in accordance with settled case-law the question whether serious damage might occur must be examined by reference to the personal and individual situation of the party seeking interim relief, which requires an assessment on a case-by-case basis having regard to the facts of each case and the legal issues involved (see, to that effect, order in HFB and Others v Commission, paragraph 57, and order of the President in Case T‑326/07 R Cheminova and Others v Commission [2007] ECR II‑4877, paragraphs 50 and 51, upheld on appeal by order of the President of 24 March 2009 in Case C‑60/08 P(R) Cheminova and Others v Commission, not published in the ECR, paragraph 35). In the light of that case-law, the claim which the applicant appears to raise concerning breach of the principle of non-discrimination – arguing that companies belonging to a group are placed at a disadvantage, as regards interim relief, compared to independent companies – must be rejected as it is general in nature and not supported by evidence relating to the circumstances of the present case (see, to that effect, order in Dow AgroSciences v Commission, paragraph 80).
38 In any event, the crucial question when assessing financial circumstances is whether the company which claims that it will suffer serious damage has other potential sources of income that might help it to avert that damage. If so, this must be taken into account by the judge hearing the application for interim measures, whether it is possible income from the sale of another product that is involved or, as in the present case, assistance from other persons. Finally, undertakings belonging to a group or having one or more major shareholders are in a special situation, and that must therefore be taken into account by the judge hearing an application for interim measures (orders in DSR-Senator Lines v Commission, paragraph 55, and Dow AgroSciences v Commission, paragraph 81).
39 It may be added that, if the judge hearing an application for interim measures limits his examination to the damage suffered solely by the company which has standing to bring such an application, while assessing the gravity of that damage on the basis of the financial strength of the group to which that company belongs, that approach is dictated by the simultaneous application of two different concepts, namely the concept – of a strictly legal nature – under the procedural rules relating to the admissibility of the application for interim measures and the concept – of an economic nature – requiring the assessment of the damage to take account of all the circumstances liable to reflect the actual financial situation of the applicant entitled to bring the main action and make the application for interim measures (order in Dow AgroSciences v Commission, paragraph 82). Moreover, the application of that economic approach merely draws the consequences, as regards interim measures, of the fact that companies belonging to a group generally rely on their membership of the group, which allows them to benefit from the economic and financial strength of the industrial and/or commercial geographical network existing within the group, with a view to attracting potential customers, investors and financiers.
40 Secondly, in so far as the applicant denies that its interests coincide objectively with those of UC Rusal (see paragraph 35 above), it suffices to recall that the applicant belongs wholly – 100% – to its parent company UC Rusal. In such a situation of complete economic control within a group, the judge hearing the application for interim measures is entitled to presume that the objective interests of the subsidiary are not independent of those of its parent company.
41 In the present case, the applicant has not put forward anything capable of rebutting that presumption. On the contrary, the documents in the case suggest that the objective interests of the applicant are not independent of those of its parent company. Thus the acceptance by UC Rusal of the decommissioning of the applicant’s refinery in 2009 (see paragraph 35 above) does not mean that the parent company of the group has decided to abandon its industrial activities in Sardinia or divest itself of the applicant (see, to that effect, order of the President of 7 December 2010 in Case T‑385/10 R ArcelorMittal Wire France and Others v Commission, not published in the ECR, paragraph 41), especially as part of the applicant’s workforce was retained in order to maintain the refinery and ensure compliance with health, environmental and safety obligations (see paragraph 10 above). Moreover, the applicant states that it intends to carry out, together with UC Rusal, an investment project aimed at restructuring and reopening the refinery, and observes that the project is already at an advanced stage (see paragraphs 27 and 28 above).
42 That conclusion is not invalidated by the argument that UC Rusal is not legally obliged to pay, in the place of the applicant, the sum of money the applicant has to repay, and that that sum exceeds the value of its shareholding in the applicant, so that, by refusing to give financial support to its subsidiary, it would be acting as a prudent and reasonable investor. By that argument the applicant is merely asserting that its parent company has no economic interest in giving it financial assistance, while declining to mention any legal obstacles that might prevent UC Rusal from providing such assistance.
43 It must be recalled that the ordering of interim measures is strictly exceptional (see paragraph 20 above), which in principle prevents the judge hearing the application from refusing to take account of the financial capacity of the parent company of a group and its actual ability to give financial support to a subsidiary which is unable to fulfil its obligation to pay. From this point of view, a preference on the part of UC Rusal, in accordance with the strategic interests of the group, for the applicant, unable to repay the sum at issue, to be liquidated rather than being rescued by means of financial assistance is equivalent in essence to a simple unilateral refusal to assist (see, to that effect, order in ArcelorMittal Wire France and Others v Commission, paragraph 52).
44 It is settled case-law that such a unilateral refusal on the part of the group in question to provide assistance is not sufficient, in principle, to exclude the taking into account of the group’s financial situation. The extent of the alleged damage cannot depend on the unilateral will of the parent company of the group to which a company seeking suspension of operation belongs, in a situation in which the interests of those companies within the group objectively coincide (see, to that effect, order of the President of 23 January 2009 in Case T‑352/08 R Pannon Hőerőmű v Commission, paragraph 53 and the case-law cited; see also order in ArcelorMittal Wire France and Others v Commission, paragraph 40).
45 Since the parent company UC Rusal is not prevented by law from assuming financial responsibility for the repayment obligation on the applicant, the applicant cannot demand that the examination of the condition of urgency should be limited to its individual financial situation. Consequently, should it prove to be the case that, having regard to the size and turnover of its parent company, the financial damage it alleges cannot be classified as serious, the risk of immediate enforcement of the recovery order would not in itself justify granting the suspension of operation sought, even if the parent company refused it all financial support and thus accepted the risk of its insolvency. Such an autonomous choice by the parent company would break the direct causal link between enforcement and possible liquidation, and would moreover be a mere unilateral refusal to assist, which would have no relevance as such (see, to that effect, order in ArcelorMittal Wire France and Others v Commission, paragraph 49).
46 It follows that the applicant, to show the seriousness of the alleged financial damage by producing a true overall picture of its financial situation, should have provided all the necessary evidence for the President of the Court to assess the financial characteristics of the Rusal group to which it belongs, in particular those of the parent company of the group (see, to that effect, order in ArcelorMittal Wire France and Others v Commission, paragraph 53).
47 The applicant has not, however, produced any such evidence which would have allowed the President of the Court to assess the seriousness of the alleged financial damage by comparing it in particular with the total turnover of the Rusal group. Such information should have been provided in the application for interim measures itself (see paragraph 26 above), especially as the Commission asserted in its observations that the parent company of the Rusal group had in 2010 achieved a substantial turnover amounting to nearly USD 11 billion, and that the group described itself as the largest aluminium producer at world level. It is clear that damage of approximately EUR 21 million, such as that alleged by the applicant, cannot be classified as serious if it is compared with that turnover of USD 11 billion (see, to that effect, order in Cheminova and Others v Commission, paragraph 121). The same is true, moreover, if one adds to that damage the alleged damage of EUR 9 million which was the subject of the order of the President of the Court of 9 June 2011 in Case T‑62/06 RENV‑R Eurallumina v Commission, not published in the ECR.
48 Consequently, the applicant has also failed to show that serious damage is imminent, having regard to the case-law relating to the taking into account of the characteristics of the group to which it belongs.
49 Moreover, as regards the irreparable nature of the damage alleged, the applicant has not shown, or even alleged, that it would be impossible for it to obtain subsequent financial compensation by means of an action for damages. There appears to be nothing to exclude the possibility of that damage being compensated by means of the remedies provided for in Articles 268 TFEU and 340 TFEU, bearing in mind that the possibility of bringing an action for damages is in itself sufficient to demonstrate that such damage is, as a rule, reparable (see, to that effect, order of the President of 24 April 2009 in Case T‑52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraphs 72 and 73 and the case-law cited).
50 It follows from all the foregoing that the applicant has failed to show that the condition of the imminence of serious and irreparable damage is satisfied.
51 The applicant contests that conclusion, arguing that the General Court applies an excessively onerous legal test when determining the issue of serious and irreparable damage. It submits that the Court should in particular reconsider its case-law under which, when examining the seriousness of the damage alleged by the applicant company, the financial strength of the group to which it belongs may be taken into consideration. That case-law could cause the company to become insolvent before judgment is given in the main proceedings and thus breaches its fundamental right to an effective judicial remedy. In support of its argument, the applicant relies on Article 47 of the Charter of Fundamental Rights of the European Union (OJ 2010 C 83, p. 392) and Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (‘the Convention’) and on the judgments of the European Court of Human Rights (‘the Court of Human Rights’) in Västberga Taxi Aktiebolag and Vulic v. Sweden (no. 36985/97, 23 July 2002), Janosevic v. Sweden (no. 34619/97, ECHR 2002-VII) and Jafarli and Others v. Azerbaijan (no. 36079/06, 29 July 2010).
52 According to the applicant, the immediate enforcement of the recovery order at issue would threaten its commercial viability before the Court could give judgment in the main proceedings, since the investment needed for the reopening and long-term restructuring of its refinery would be compromised. A later judgment on the validity of the contested decision would no longer be of any effect for the applicant, as it would already have had to close its refinery. The failure to apply reasonable criteria for the grant of the suspension of operation sought is particularly important in view of the length of the main proceedings.
53 That argument of the applicant cannot be accepted.
54 First, the applicant cannot validly complain that the formal and substantive conditions for interim measures to be ordered by the European Union judicature are excessively restrictive in the case of a company belonging to a group on the ground that such a company encounters insuperable obstacles in establishing the imminence of serious and irreparable damage. The concept of a group does not impose a condition that is impossible to satisfy, since it does not prevent a company belonging to a group from demonstrating the seriousness of the alleged damage by establishing in particular that its objective interests do not coincide with those of its group or its parent company, that the parent company is not legally entitled to provide it with financial support, or that the group as a whole is financially incapable of coming to its aid. In this respect, it suffices to mention, as examples, the orders of the President in Case T‑11/06 R Romana Tabacchi v Commission [2006] ECR II‑2491, in Case T‑31/07 R Du Pont de Nemours (France) and Others v Commission [2007] ECR II‑2767, of 2 March 2011 in Case T‑392/09 R 1. garantovaná v Commission, not published in the ECR, of 13 April 2011 in Case T‑393/10 R Westfälische Drahtindustrie and Others v Commission, not published in the ECR, and in United Phosphorus v Commission, in which the judge hearing the applications for interim measures allowed them, precisely after either refusing to apply the concept of a group as requested by the Commission or taking account of the financial resources of the groups to which the applicant companies belonged. That method of assessing the seriousness of the alleged damage cannot therefore in itself be regarded as an infringement of the right to an effective remedy and a fair trial within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union and Article 6 of the Convention.
55 Secondly, none of the judgments of the Court of Human Rights cited by the applicant can be interpreted as meaning that Article 6 of the Convention is violated if the financial resources of the group to which the applicant company belongs are taken into consideration in assessing the seriousness of the alleged damage in connection with an application for interim measures.
56 Thus, in so far as the applicant relies on paragraph 33 of the judgment of the Court of Human Rights in Jafarli and Others v. Azerbaijan, it suffices to note that that passage, far from disapproving of the application of the concept of a group in the context of Article 6 of the Convention, concerned a point of admissibility under Article 34 of the Convention relating to ‘individual applications’.
57 As to the judgments of the Court of Human Rights in Västberga Taxi Aktiebolag and Vulic v. Sweden and Janosevic v. Sweden, it is true that they contain passages (in paragraphs 120 and 108 respectively) to the effect that a system that allows enforcement of ‘considerable amounts’ before there has been a court determination of the liability to pay those amounts is open to criticism and should be subjected to strict scrutiny. However, nothing in the wording of those judgments prohibits the taking into account of the financial resources of the group to which the applicant company belongs in assessing whether the company should in fact pay ‘considerable amounts’.
58 Finally, in so far as the applicant further considers that the length of the main proceedings is incompatible with Article 6 of the Convention and Article 47 of the Charter of Fundamental Rights of the European Union, which give every person the right to have his case heard by a court ‘within a reasonable time’, it should be pointed out that the General Court suspended the main proceedings in Case T‑207/07 three times, while awaiting final judgment in Cases T‑50/06, T‑56/06, T‑60/06, T‑62/06 and T‑69/06, whose connexity with Case T‑207/07 is not disputed. The applicant has not argued that by so doing the Court breached the principle that it must act with the required swiftness. Moreover, as the Commission rightly observes, on the date when the present application for interim measures was brought, no measure for the enforcement of a recovery order had been taken by the Italian authorities against the applicant (see paragraph 13 above). The applicant thus avoided the financial damage feared for over four years.
59 As to the present proceedings for interim measures, they were obviously not initiated by the applicant until 6 April 2011. It does not therefore appear that the order made today could infringe the reasonable time principle, especially as the applicant on 11 May 2011 requested a hearing to be held (see paragraph 16 above), thereby necessarily accepting that the proceedings would be lengthened if its request were granted.
60 Since urgency has not been established, the present application for interim measures must be dismissed, without there being any need to examine whether the conditions relating to prima facie case and the balancing of interests are satisfied (see, to that effect, order in DSR-Senator Lines v Commission, paragraph 61).
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 10 June 2011.