ORDER OF THE PRESIDENT OF THE GENERAL COURT
29 August 2013 (*)
(Application for interim measures – Common foreign and security policy – Restrictive measures against Iran – Freezing of funds and economic resources – Prohibition of the execution of ongoing trade contracts – Application for suspension of the operation of a measure – Manifest inadmissibility of the plea of illegality on which the application is based – Inadmissibility of the application)
In Case T‑5/13 R,
Iran Liquefied Natural Gas Co., established in Tehran (Iran), represented by J. Grayston, Solicitor, G. Pandey, P. Gjørtler and D. Rovetta, lawyers,
applicant,
v
Council of the European Union, represented by M. Bishop and A. De Elera, acting as Agents,
defendant,
APPLICATION for suspension of the operation, first, of Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58), and Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16), in so far as those acts include the applicant in the list of persons and entities made subject to the restrictive measures, and, secondly, of Article 1(5) of Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation (EU) No 267/2012 (OJ 2012 L 356, p. 34), in so far as that act makes it impossible to perform the contracts concluded by the applicant with partners established in the European Union,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute, procedure and form of order sought
1 The applicant, Iran Liquefied Natural Gas Co., is an Iranian company formed in 2006 in order to carry out a special project consisting in building, owning and operating a liquefied natural gas production plant in Iran. For that purpose, the applicant has entered into a series of contracts with various European companies to provide the technology, equipment, works and supplies necessary to complete the project. In particular, the applicant concluded four contracts with a German company in 2008 and 2009 and concluded one contract in 2008 with another German company. The state of advancement of those contracts, which constitute the key technological basis of the project, is currently between 47 and 57%.
2 The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
3 The origin of the measures at issue is to be found in the United Nations. On 23 December 2006 the United Nations Security Council adopted Resolution 1737 (2006), the annex to which lists a series of persons and entities involved in nuclear proliferation and whose funds and economic resources were to be frozen.
4 So far as the European Union is concerned, Resolution 1737 (2006) was given effect by Council Common Position 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran (OJ 2007 L 61, p. 49), and, in so far as the powers of the European Community were concerned, Resolution 1737 (2006) was given effect by Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).
5 Following several amendments of the restrictive measures at issue, the Council of the European Union, on 26 July 2010, adopted Decision 2010/413/CFSP concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39). First, Decision 2010/413 established a ‘personalised device’, namely, the freezing of funds and economic resources belonging to the persons and entities listed in the annex, and the prohibition of making available to them any funds or economic resources (Article 20). Secondly, that decision established an ‘objective device’ by imposing, irrespective of the status of the operators involved, a commercial embargo on key equipment and technology for the oil and natural gas industry in Iran, in particular in respect of exploration, production, refining and liquefied natural gas (Article 4). Under Article 7 of Decision 2010/413, the commercial embargo was, however, to be without prejudice to the performance of contracts that had been concluded before that decision was adopted.
6 Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1) provided, in essence, for the same legal instruments as those introduced by Decision 2010/413, namely, the ‘personalised device’ (Article 23) and the ‘objective device’ (Articles 8 and 9). Under Article 10 of Regulation No 267/2012, the commercial embargo did not apply to, inter alia, transactions required by a trade contract concluded before 26 July 2010 and 27 October 2010 respectively, provided that the interested party had notified, at least 20 working days in advance, the transaction to the competent authority of the Member State in which it was established.
7 Considering that Iran had failed to engage seriously in negotiations in order to address international concerns about its nuclear programme, the Council adopted Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 282, p. 58).
8 As regards the abovementioned ‘personalised device’, the applicant’s name was included, pursuant to Decision 2012/635, in the list, annexed to that decision, of persons and entities subject to the restrictive measures, on the ground that the applicant was a ‘subsidiary of National Iranian Oil Company (NIOC)’. As regards NIOC, its name was also included in that list on the ground that it was a State-owned and -operated entity providing financial resources to the Iranian Government.
9 Under Council Implementing Regulation (EU) No 945/2012 of 15 October 2012 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 282, p. 16), the applicant’s name and that of NIOC were, for the same reasons as those set out in Decision 2012/635, also included in the list, annexed to that regulation, of persons and entities subject to the restrictive measures.
10 As regards the abovementioned ‘objective device’, Decision 2012/635 amends Decision 2010/413 (see paragraph 5 above) by the introduction of a text, namely, Article 4b, under which the commercial embargo referred to in Article 4 of Decision 2010/413 does not apply, in essence, to the fulfilment, ‘until 15 April 2013’, of any obligation relating to the delivery of goods provided for in contracts concluded before 26 July 2010.
11 Lastly, Council Regulation (EU) No 1263/2012 of 21 December 2012 amending Regulation No 267/2012 concerning restrictive measures against Iran (OJ 2012 L 356, p. 34) provides, in Article 1(5) thereof, that Article 10 of Regulation No 267/2012 (see paragraph 6 above) is replaced by a text – similar to that of the abovementioned Article 4b –, under which the commercial embargo referred to in Articles 8 and 9 of Regulation No 267/2012 does not apply, in essence, to the performance, ‘until 15 April 2013’, of trade contracts concerning, inter alia, the liquefaction of natural gas, concluded before 27 October 2010, provided that the interested party has notified, at least 20 working days in advance, the transaction to the competent authority of the Member State in which it is established.
12 In the present case, the applicant, seeking to carry out its liquefied natural gas project in Iran, had – until the amendment of the ‘objective device’ by Decision 2012/635 and by Regulation No 1263/2012 – benefited, by reason of its contracts, which had all been concluded before the relevant date, from an open-ended exemption, under Article 10 of Regulation No 276/2012, from the prohibition of the performance of such contracts. After its inscription in the list of entities subject to the restrictive measures (‘the contested list’) pursuant to Decision 2012/635 and Regulation No 945/2012 – the effect of which was to prevent any operator in the European Union from continuing to deal with it – the applicant was deprived of the benefit of the exemption under Article 10 of Regulation No 267/2012. Moreover, the effect of Article 4b of Decision 2010/413 and the new Article 10 of Regulation No 267/2012, introduced by Decision 2012/635 and by Regulation No 1263/2012, was to prohibit the further execution of those contracts with effect from 15 April 2013, thus putting an end to the exemption that the applicant initially benefited from.
13 It is in those circumstances that, by application lodged at the Court Registry on 9 January 2013, the applicant brought an action seeking, in essence, the annulment of Decision 2012/635 and of Implementing Regulation No 945/2012, in so far as those measures include its name in the contested list (together, ‘the contested measures’). In support of its action, the applicant raises six pleas in law, alleging breach of the right to be heard, of the obligation to give notice, of the rights of the defence and of the fundamental right to property, insufficient statement of reasons and a manifest error of assessment.
14 In the reply, lodged in the main proceedings on 21 May 2013, the applicant raised, pursuant to Article 277 TFEU, a plea of illegality against Article 1(5) of Regulation No 1263/2012, to the extent that it amends Article 10 of Regulation No 267/2012 by introducing a deadline, namely, 15 April 2013, for the performance of the contracts that economic operators, such as the applicant, had concluded before 27 October 2010.
15 By separate document, lodged at the Court Registry on 11 July 2013, the applicant brought the present application for interim measures, in which it claims, in essence, that the President of the Court should:
– suspend the listing of the applicant’s name, pursuant to the contested measures, in the disputed list, for the purposes of the performance of the existing construction contracts with partners established in the European Union;
– suspend, in relation to the applicant, Article 1(5) of Regulation 1263/2012, in so far as it imposes the deadline of 15 April 2013 for the execution of works on liquefied natural gas projects;
– order the Council to pay the costs.
16 In its observations on the application for interim measures, lodged at the Court Registry on 29 July 2013, the Council submits that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
17 It is clear from a combined reading of Articles 278 TFEU and 279 TFEU, and of Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that application of a measure contested before the Court be suspended, or prescribe any necessary interim measures.
18 Having regard to the documents in the case, the President of the Court considers that he has all the information necessary to give a ruling on this application for interim measures without it being necessary first to hear oral argument from the parties.
19 In the present case, the applicant complains that the combined effect of its inclusion in the contested list and the introduction of the new deadline of 15 April 2013 – which has already passed – for exemption from the trade embargo prevented it from performing the five contracts in question. While it emphasises that it is not seeking a general suspension of its inclusion in that list, it specifies that the present application for interim measures concerns those contracts principally. The applicant therefore claims that the Court should suspend, in relation to those contracts, the legal effects of both the listing of the applicant and the deadline for the trade embargo exemption, so as to allow the applicant to finalise the construction project in order to avoid extremely serious and irreparable harm.
20 According to the applicant, the freezing of its bank accounts under the contested measures is only a minor element of the restrictions imposed on it. Its major preoccupations are rather the severe negative consequences of the contested measures on its current contractual relationships. As a consequence of the obligations imposed by the contested measures, the applicant’s contractual partners in the European Union have declared, according to the applicant, that they are considering terminating their contracts. Such termination would place the overall project and, therefore, the very existence of the company in jeopardy.
21 The applicant submits that, from a technical point of view, the performance of the five contracts in question is essential to the completion of the project in question, since no alternative compatible technology could be acquired at this advanced stage in the design and implementation of the project. In the event of termination, the contracts will end and the applicant will no longer have in place the contracts that were entered into before the relevant date, namely 27 October 2010, which would mean that the remaining elements of the project could not be completed. From a financial point of view, that would lead to its winding up and to the liquidation of its assets.
22 In that respect, it must be noted that the present application for interim measures is primarily intended to obtain the suspension of operation of provisions which, for the applicant, make it wholly impossible to complete its construction project of a liquefied natural gas production plant. As regards the provisional removal of its name from the contested list, it emerges that the applicant seeks that removal only as an accompanying measure necessary to the performance of the five contracts in question. As is clear from paragraphs 5 to 12 above, the Council established, by introducing the abovementioned ‘personalised and objective devices’, two obstacles to any commercial transaction with Iranian businesses, obstacles which the applicant must overcome in order to be able to complete its construction project: its name must not appear in the contested list and the transaction in question must not be concerned by the commercial embargo established by the Council.
23 Accordingly, even if the applicant could obtain provisional removal of its name from that list, that provisional measure would be of no use to it if the second head of claim, by which the applicant seeks to be allowed (provisionally) to perform its contracts, were to be rejected.
24 As regards the head of claim referring to the performance of the five contracts in question, it must be noted that it is settled case-law that the purpose of the procedure for interim relief is limited to guaranteeing the full effectiveness of the future decision in the main proceedings (see, to that effect, orders of the President of the Court of Justice in Joined Cases C‑486/01 P‑R and C‑488/01 P‑R Front national and Martinez v Parliament [2002] ECR I‑1843, paragraph 87, and in Case C‑7/04 P(R) Commission v Akzo and Akcros [2004] ECR I‑8739, paragraph 36; and order of the President of the Court of 16 November 2012 in Case T‑345/12 R Akzo Nobel and Others v Commission [2012] ECR II-0000, paragraph 25). Consequently, that procedure is of an entirely ancillary nature in relation to those main proceedings (order of the President of the Court in Case T‑228/95 R Lehrfreund v Council and Commission [1996] ECR II‑111, paragraph 61), with the result that the decision taken by the judge hearing an application for interim measures must be provisional in the sense that it must not prejudge the decision on the substance of the case (see, to that effect, order of the President of the Court of Justice in Case C‑313/90 R CIRFS and Others v Commission [1991] ECR I‑2557, paragraph 24, and order of the President of the Court in Case T‑203/95 R Connolly v Commission [1995] ECR II‑2919, paragraph 16).
25 In other words, a provisional measure granted by the judge hearing an application for interim measures must seek only to safeguard, during the course of the procedure before the Court, the interests of the party which sought the interim measure, without exceeding the scope of the main proceedings (see, to that effect, CIRFS and Others v Commission, paragraphs 23 and 24, and order of the President of the Court in Case T‑6/97 R Comafrica and Dole Fresh Fruit Europe v Commission [1997] ECR II‑291, paragraph 51). Thus, that party cannot validly request the grant, by the judge hearing an application for interim measures, of a benefit that the Court could not grant it in the decision closing the main proceedings, in that the requested provisional measure would exceed the scope of the claims that that party may admissibly pursue in the main action to which the application for interim relief is ancillary.
26 In that regard, it must be pointed out that it is settled case‑law that the admissibility of the main action must not, in principle, be examined in the context of proceedings for interim relief. However, when the manifest inadmissibility of the main action is raised, the party seeking the interim measures must establish that there are grounds for concluding prima facie that the main action, to which the application for interim measures relates, is admissible, in order to prevent a situation in which that party is able, by means of an application for interim measures, to obtain suspension of the operation of a measure which the Court subsequently refuses to declare void because, on examination of the substance of the case, the application is declared inadmissible. Such examination, by the judge hearing an application for interim measures, of the admissibility of the main action is necessarily summary, given the urgent nature of proceedings for interim relief (see, to that effect, orders of the President of the Court of Justice in Case C‑329/99 P(R) Pfizer Animal Health v Council [1999] ECR I‑8343, paragraph 89, and Case C‑300/00 P(R) Federación de Cofradías de Pescadores de Guipúzcoa and Others v Council [2000] ECR I‑8797, paragraphs 34 and 35).
27 Thus, in the context of proceedings for interim relief, the admissibility of the main action may be assessed prima facie only and the judge hearing an application for interim measures must not declare an application for interim relief inadmissible unless the admissibility of the corresponding main action may be entirely excluded. Adjudicating on the admissibility of the main action at the interim proceedings stage when that admissibility is not prima facie entirely excluded would amount to prejudging the decision of the Court in the main proceedings (see, to that effect, order of the President of the Court of 8 April 2008 in Joined Cases T‑54/08 R, T‑87/08 R, T‑88/08 R and T‑91/08 R to T‑93/08 R Cyprus v Commission, not published in the ECR, paragraph 51 and the case-law cited).
28 In the present case, the request for operation of Article 1(5) of Regulation No 1263/2012 to be suspended, in so far as it sets 15 April 2013 as the deadline for performance of the work necessary for the applicant’s construction project, is based, not on the principal head of claim seeking annulment of the contested measures, but on the plea of illegality made against Article 1(5) of Regulation No 1263/2012, which was put forward in the reply lodged in the main proceedings.
29 In that context, there is no reason why the case-law relating to the examination, by the judge hearing an application for interim measures, of the admissibility of the main action cannot also be applied to a plea of illegality – which must be a plea raised in the context of the main action (see, to that effect, Case 188/88 NMB v Commission [1992] ECR I‑1689, paragraph 25, and Joined Cases T‑6/92 and T‑52/92 Reinarz v Commission [1992] ECR II‑1047, paragraph 54) –, where the application for interim measures relates to that plea.
30 As the Council rightly states, the plea of illegality raised by the applicant must be declared clearly inadmissible.
31 In the first place, the plea of illegality at issue was not raised until the stage of the reply, whereas Regulation No 1263/2012, against which it is directed, had already been published at the date the main action was lodged. The plea of illegality raised against that regulation is therefore not based on matters of law and fact which have come to light in the course of the main proceedings and nothing indicates that the applicant was prevented from raising that plea in the main application. Moreover, although the applicant, in its main application, made some allusions to the disturbance to its current contractual relationships caused by the contested measures, those references do not go beyond the limits of the pleas raised in support of the head of claim seeking the annulment of the contested measures alone. The plea of illegality cannot therefore be regarded as expanding upon one of the pleas put forward in that application and as being closely connected therewith. Consequently, and on the basis of a summary analysis, it must, prima facie, be declared to be clearly out of time and inadmissible, in accordance with Article 48(2) of the Rules of Procedure.
32 In the second place, according to settled case-law – which applies also to the new Article 277 TFEU (judgment of 25 April 2013 in Case T‑526/10 Inuit Tapiriit Kanatami and Others v Commission [2013] ECR II-0000, paragraph 24) –, the plea of illegality confers upon any party the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is contested (see, to that effect, Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraphs 39 to 41). The scope of a plea of illegality must be confined to what is essential to the resolution of the dispute. There must be a direct legal connection between the contested individual decision and the general measure claimed to be illegal, since Article 277 TFEU is not intended to enable a party to contest the applicability of any measure of general application whatsoever in support of some action or other (Reinarz v Commission, paragraphs 56 and 57; Case T‑146/96 De Abreu v Court of Justice [1998] ECR‑SC I‑A‑109 and II‑281, paragraphs 24 and 26; Case 21/64 Macchiorlati Dalmas e Figli v High Authority [1965] ECR 175, at pp. 187 and 188; Case 32/65 Italy v Council and Commission [1966] ECR 389, at p. 409). In the present case, the measures contested in the main proceedings, since they concern only the abovementioned ‘personalised device’, are based neither on Article 1(5) of Regulation No 1263/2012, nor on Article 10 of Regulation No 267/2012. Thus, the plea of illegality is directed against provisions which are not relevant to the resolution of the dispute in the main proceedings and have no direct legal connection therewith. Accordingly, it must, for that reason also, be rejected as clearly inadmissible.
33 In the third place, it is settled case-law that the admissibility of a plea of illegality depends upon whether the party was not entitled under Article 263 TFEU to bring a direct action against the previous act of the institutions which forms the legal basis of the individual decision challenged, by which it was thus affected without having been in a position to ask that they be declared void (see, to that effect, Simmenthal v Commission, paragraph 39, and Case 262/80 Andersen and Others v Parliament [1984] ECR 195, paragraph 6). In the present case, it seems, prima facie, clear that the applicant, as a party to the five contracts in question, was directly and individually concerned, for the purposes of the fourth paragraph of Article 263 TFEU, by Article 1(5) of Regulation No 1263/2012, in that it fixes 15 April 2013 as the deadline provided for in Article 10 of Regulation No 267/2012 for the execution of contracts.
34 First, fixing a specific deadline for the performance of contracts in hand directly affects the legal situation of each party to the contract and leaves no discretion to the authorities responsible for monitoring compliance with the provision in question, that monitoring being purely automatic and resulting from European Union rules alone without the application of other intermediate rules (see, to that effect and by analogy, order of 9 January 2007 in Case T‑127/05 Lootus Teine Osaühing v Council, not published in the ECR, paragraph 39 and the case-law cited).
35 Secondly, as a party to the five contracts in question, the applicant is individually concerned, since the regulation fixing the deadline for the performance of the contracts affects it as a member of a limited class of traders who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group (Case 11/82 Piraiki‑Patraiki and Others v Commission [1985] ECR 207, paragraph 31, and Joined Cases C-182/03 and C-217/03, Belgium and Forum 187 v Commission [2006] ECR I-5479, paragraph 60). In Piraiki-Patraiki and Others v Commission, inter alia, the Court of Justice accepted the admissibility of an action for annulment brought against a measure imposing restrictions on the importation of a product, brought by applicants which, before the adoption of that measure, had concluded contracts of sale of the product concerned, the performance of which was prevented entirely or in part by that measure. In the present case, the legislative provision at issue specifically prevents performance of the contracts in question, to which the applicant is a party and whose execution falls within the period of application of that provision, which, prima facie, gives rise to an application of the case-law established by that judgment.
36 Since the applicant had been entitled to bring, in good time, an action for annulment of the legislative provision against which it made the contested plea of illegality, that plea must, for that reason also, be declared clearly inadmissible.
37 Lastly, even if the plea of illegality made against Article 1(5) of Regulation No 1263/2012 were not inadmissible, it is likely, in any event, to be judged irrelevant, since the applicant’s ultimate goal, namely to be able to perform its contracts in progress after 15 April 2013 without any time-limit, could not be achieved. It must be pointed out that the applicant failed to contest the legality of the provision parallel to Article 1(5), namely, Article 4b of Decision 2010/413, as amended by Decision 2012/635, according to which the contracts concluded by the applicant would avoid the commercial embargo referred to in Article 4 of Decision 2010/413 only in so far as they were performed ‘until 15 April 2013’ (see paragraph 10 above). It follows that making a single plea of illegality against Article 1(5) of Regulation No 1263/2012 alone, without challenging Article 4b of Decision 2010/413 too, as amended by Decision 2012/635, is clearly of no legal utility to the applicant.
38 It follows from all the foregoing that the present application for interim measures must be declared inadmissible, given that the plea of illegality raised in the context of the main action, on which it is based, appears, prima facie, clearly inadmissible.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is rejected.
2.
3. The costs are reserved.
Luxembourg, 29 August 2013.