ORDER OF THE PRESIDENT OF THE GENERAL COURT
25 February 2015 (*)
(Interim measures — State aid — Financial sector — Aid granted in the context of the resolution of a bank — Decision not to raise objections — Application for suspension of operation of a measure — No urgency)
In Case T‑812/14 R,
BPC Lux 2 Sàrl, established in Senningerberg (Luxembourg),
BPC UKI LP, established in George Town (Cayman Islands),
Bennett Offshore Restructuring Fund, Inc., established in George Town,
Bennett Restructuring Fund LP, established in Wilmington, Delaware (United States),
Queen Street Fund Ltd, established in George Town,
BTG Pactual Global Emerging Markets and Macro Master Fund LP, established in George Town,
BTG Pactual Absolute Return II Master Fund LP, established in George Town,
CSS LLC, established in Chicago, Illinois (United States),
Beltway Strategic Opportunities Fund LP, established in George Town,
EJF Debt Opportunities Master Fund LP, established in George Town,
EJF DO Fund (Cayman) LP, established in George Town,
TP Lux HoldCo, established in Luxembourg (Luxembourg),
VR Global Partners LP, established in George Town,
Absalon II Ltd, established in Dublin (Ireland),
CenturyLink, Inc. Defined Benefit Master Trust, established in Denver, Colorado (United States),
City of New York Group Trust, established in New York, New York (United States),
Dignity Health, established in San Francisco, California (United States),
GoldenTree Asset Management Lux Sàrl, established in Luxembourg,
GoldenTree High Yield Value Fund Offshore 110 Two Ltd, established in Dublin,
San Bernardino County Employees Retirement Association, established in San Bernardino, California (United States),
represented by J. Webber, M. Steenson, Solicitors, and P. Fajardo, lawyer,
applicants,
v
European Commission, represented by L. Flynn and P.J. Loewenthal, acting as Agents,
defendant,
APPLICATION for the suspension of operation of Commission Decision C (2014) 5682 final of 3 August 2014 not to raise objections to State aid SA.39250 (2014/N), notified by Portugal, for the resolution of Banco Espírito Santo SA,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 In the first half of 2014, Banco Espírito Santo SA was one of the largest Portuguese banking groups and declared, as at 30 June 2014, net assets of EUR 80 216 million and customer deposits of EUR 35 932 million. It offered, at European and international level, the services of a universal bank.
2 From May 2014 it became known that Espírito Santo International, the parent company of the controlling shareholder in Banco Espírito Santo, was in a serious financial condition which was likely to have a negative impact on the solvency of Banco Espírito Santo. On 30 July 2014 Banco Espírito Santo published its results for the first half of 2014, showing losses amounting to EUR 3 577 million. Having regard to the impact of those losses on its Common Equity Tier 1 capital, Banco Espírito Santo no longer fulfilled the regulatory requirements as to the Common Equity Tier 1 ratio, as laid down by the central bank of Portugal as part of the implementation of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/2012 (OJ 2013 L 176, p.1). Furthermore, Banco Espírito Santo faced a liquidity problem resulting, in particular, from significant deposit withdrawals by its customers, which led the central bank of Portugal to grant it Emergency Liquidity Assistance (ELA) authorised by the European Central Bank (ECB). On 1 August 2014, the ECB decided to suspend Banco Espírito Santo as a counterparty to Eurosystem monetary policy operations, with effect from 4 August 2014, compelling it also to repay the entirety of its credit with the Eurosystem, approximately EUR 10 000 million.
3 The Portuguese authorities decided to put Banco Espírito Santo into resolution. That procedure consisted of the creation of a temporary credit institution (‘the Bridge Bank’), to which the sound business activities of Banco Espírito Santo would be transferred. Losses on the assets and liabilities transferred to the Bridge Bank were to be left in Banco Espírito Santo, which would have the role as a winding-down structure, along with residual assets and liabilities other than cash, retail deposits and performing loans, central bank funding, government-guaranteed bonds and T-Bills. Portugal’s Resolution Fund provided the Bridge Bank with an initial share capital of EUR 4 899 million to allow the resolution process to take place.
4 On 3 August 2014 Portugal notified to the Commission, as constituting State aid, the provision of share capital to the Bridge Bank, and at the same time gave commitments which were to govern the resolution of Banco Espírito Santo. In accordance with those commitments, within 24 months of the date of adoption of the contested decision, the Bridge Bank is to sell all assets transferred to it. If that is not done, the Resolution Fund is to sell all shares in the Bridge Bank, with any assets unsold at the end of that period to be put in wind down in the following month. The winding-down bank is prohibited from generating any new business, and is required to reduce its balance sheet and enter into liquidation proceedings by 31 December 2016.
5 On 3 August 2014, by Decision C (2014) 5682 final, the Commission decided not to raise objections to State aid SA.39250 (2014/N), notified by Portugal, for the resolution of Banco Espírito Santo (‘the contested decision’). In the light of the resolution process planned for Banco Espírito Santo, the Commission approved the measure notified as orderly resolution aid compatible with the internal market under Article 107(3)(b) TFEU.
6 The applicants BPC Lux 2 Sàrl, BPC UKI LP, Bennett Offshore Restructuring Fund, Inc., Bennett Restructuring Fund LP, Queen Street Fund Ltd, BTG Pactual Global Emerging Markets and Macro Master Fund LP, BTG Pactual Absolute Return II Master Fund LP, CSS LLC, Beltway Strategic Opportunities Fund LP, EJF Debt Opportunities Master Fund LP, EJF DO Fund (Cayman) LP, TP Lux HoldCo, VR Global Partners LP, Absalon II Ltd, CenturyLink, Inc. Defined Benefit Master Trust, City of New York Group Trust, Dignity Health, GoldenTree Asset Management Lux Sàrl, GoldenTree High Yield Value Fund Offshore 110 Two Ltd and San Bernardino County Employees Retirement Association are investment funds, pension funds and a private investment company. Each of them is a subordinated creditor of Banco Espírito Santo holding Lower Tier 2 Bonds.
Procedure and forms of order sought
7 By application lodged at the Registry of the General Court on 12 December 2014, the applicants brought an application for the annulment of the contested decision.
8 In support of their action, the applicants raise two pleas. First, they submit that the Commission made an error of fact, law and procedure in manifestly failing to correctly assess the counterfactual scenario, namely what would have happened if no State aid had been granted, in particular whether private capital was available that could have assisted in the recapitalisation of Banco Espírito Santo. They submit that by acting in that way the Commission, after an investigation that lasted for a single Sunday, committed a number of manifest errors of law by not verifying whether the essential requirements set out in its Communication on the application from 1 August 2013 of State aid rules to support measures in favour of banks in the context of the financial crisis (OJ 2013 C 216, p.1) had been complied with, or by not setting out the reasons for its assessment on that matter. According to the applicants, the effect of that was that serious difficulties, for the purposes of Article 108(2) TFEU, arose that should have led the Commission to open the formal investigation procedure, which the Commission wrongly failed to do. Second, by failing to open the formal investigation procedure, in breach of Article 108(2) TFEU, the Commission deprived the applicants of the opportunity to participate in the procedure as interested parties.
9 By separate document lodged at the Court Registry on 19 December 2014, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the General Court should:
– order the suspension of operation of the contested decision;
– order the Commission to pay the costs.
10 In its observations on the application for interim measures, lodged at the Court Registry on 8 January 2015, the Commission contends that the President of the General Court should:
– dismiss the application for interim measures as unfounded;
– order the applicants to pay the costs.
11 By document lodged at the Court Registry on 21 January 2015, the Commission submitted an application for measures of organisation of procedure seeking, in essence, that the President of the General Court order the applicants to undertake that their representatives would ensure that no part of the Commission’s observations or other written submissions in the present action would be made public. In support of its application, the Commission attached a letter, dated 20 January 2015, which the applicants’ representatives had addressed to the Commission and in which, in essence, they asked the Commission whether it had informed the Portuguese authorities of the contents of a specific paragraph of its observations or, if not, whether it considered that to be information that was already public, in which case the Commission could not object to the applicants disclosing the content publicly. The applicants’ representatives asked the Commission to inform them of its position before 26 January 2015. By document lodged at the Court Registry on 22 January 2015, the applicants submitted their observations on the Commission’s application. In that document they undertook not to disclose the Commission’s observations or other written submissions in the present action, in accordance with the rules applicable to the procedure before the General Court, while reserving the possibility of suggesting to the Portuguese national authorities that they obtain directly from the Commission disclosure of its observations, without, however, disclosing those observations themselves. By document lodged with the Court Registry on 23 January 2015, the Commission lodged further observations, in which it maintained its application for measures of organisation of procedure on the ground that the applicants, in their observations dated 22 January 2015, reserved that possibility.
Law
The application for measures of organisation of procedure
12 Under Article 49 of its Rules of Procedure, the General Court may, at any stage of the procedure, prescribe any measure of organisation of procedure referred in Article 64 of those Rules. Article 64 provides that ‘the purpose of measures of organisation of procedure is to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions’ and, in particular, ‘have as their purpose to ensure efficient conduct of the written and oral procedure’. They may, under Article 64(3), consist inter alia in putting questions to the parties or summoning the parties’ agents or the parties in person to meetings.
13 In the present case, the Commission requests that the President of the General Court ask the applicants to undertake that their representatives ensure that no part of the Commission’s observations or other written submissions in the present action will be made public.
14 In that regard, under the rules which govern procedure in cases before the General Court, parties are entitled to protection against the misuse of pleadings and other procedural documents. In particular, Article 5(8) of the Instructions to the Registrar of the General Court provides that no third party, private or public, may have access to the case-file or to the procedural documents without the express authorisation of the President of the Court or, where the case is still pending, of the President of the formation of the Court that is hearing the case, after the parties have been heard. Those rules reflect one of the essential aspects of the general principle of the sound administration of justice, according to which the parties have the right to defend their interests free from all external influences, and which requires that a party who is granted access to the procedural documents of other parties uses those documents only for the purpose of pursuing his own case and for no other purpose (judgment of 17 June 1998 in Svenska Journalistförbundet v Council, T‑174/95, ECR, EU:T:1998:127, paragraphs 135 to 137, and order of 28 April 1999 in Van Parys and Others v Commission, T‑11/99 R, ECR, EU:T:1999:86, paragraph 22). That assists in ensuring that throughout the court proceedings the exchange of argument by the parties and the deliberations of the Court in the case before it take place in an atmosphere of total serenity, and avoids exposing judicial activities to external pressure, albeit only in the perception of the public, and disturbing the serenity of the proceedings (see by analogy, the judgment of 21 September 2010 in Sweden and Others v API and Commission, C‑514/07 P, C‑528/07 P and C‑532/07 P, ECR, EU:C:2010:541, paragraphs 92 and 93). That is why the Court has held that the disclosure of procedural documents by a party to third persons in a situation where those documents were not communicated for the purposes of pursuing that party’s case could constitute an abuse of procedure (see, to that effect, judgment in Svenska Journalistförbundet v Council, cited above, EU:T:1998:127, paragraph 139).
15 The applicants, in their observations of 22 January 2015 on the Commission’s request for measures of organisation of procedure, state that, having regard to the Commission’s objection, they will refrain from any disclosure of the Commission’s observations or written submissions made in the present action, in accordance with the rules applicable to the procedure before the General Court. Accordingly, it is unnecessary to prescribe any measure of organisation of procedure intended to remind the applicants of their obligations.
16 Finally, the Commission gave as the reason for maintaining its application for a measure of organisation of procedure the fact that the applicants, in their observations of 22 January 2015, reserved the right to suggest to a Member State that it obtain disclosure of the Commission’s observations directly from the Commission, without however disclosing those pleadings. However, the mere fact of suggesting hypothetically the possibility of informing a third party that a procedural document is likely to be of interest to it, without indicating the content of that document, does not constitute, in the absence of any evidence to the contrary, an interference with the sound administration of justice that would disturb the serenity of the proceedings before the Court. At this stage of the proceedings, a measure of organisation of procedure does not therefore appear to be necessary.
The application for interim measures
17 In accordance with Articles 278 TFEU and 279 TFEU and with Article 256(1) TFEU, the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure challenged before the Court be suspended or prescribe any necessary interim measures. However, Article 278 TFEU lays down the principle that actions do not have suspensory effect (orders of 25 July 2000 in Netherlands v Parliament and Council, C‑377/98 R, EU:C:2000:415, paragraph 44, and of 28 June 2000 in Cho Yang Shipping v Commission, T‑191/98 R II, ECR, EU:T:2000:171, paragraph 42), since there is a presumption of legality of the acts adopted by the EU institutions. It is therefore only in exceptional circumstances that the judge hearing the application for interim measures may order the suspension of the operation of an act contested before the Court or prescribe interim measures (order of 15 October 2008 in Bank Melli Iran v Council, T‑390/08 R, EU:T:2008:446, paragraph 11).
18 Article 104(2) of the Rules of Procedure requires applications for interim measures to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing an application may order a suspension of operation of an act, or other interim measures, only 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 interests of the party seeking interim relief, it must be made and produce its effects before a decision is reached on the main application (order of 19 July 1995 in Commission v Atlantic Container Line and Others, C‑149/95 P(R), ECR, EU:C:1995:257, paragraph 22). Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent (order of 14 October 1996 in SCK and FNK v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30).
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 assessed (orders in Commission v Atlantic Container Line and Others, paragraph 18 above, EU:C:1995:257, paragraph 23, and of 3 April 2007 in Vischim v Commission, C‑459/06 P(R), EU:C:2007:209, paragraph 25).
20 Having regard to the material in the case-file, the judge hearing the application 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.
21 In the present case, without it being necessary to determine whether the application for interim measures is admissible, in particular having regard to the admissibility of the main application itself, it is appropriate first to examine whether the condition of urgency is satisfied.
22 According to settled case-law, urgency must be assessed in the light of the need for an interim order in order to avoid serious and irreparable damage to the party seeking the interim relief (orders of 10 June 1988 in Sofrimport v Commission, 152/88 R, ECR, EU:C:1988:296, paragraph 26, and of 21 January 2014 in France v Commission, C‑574/13 P(R), ECR, EU:C:2014:36, paragraph 19). That party is therefore required to prove that he cannot await the conclusion of the main action without personally suffering damage which would have serious and irreparable effects for him (orders of 8 May 1991 in Belgium v Commission, C‑356/90 R, ECR, EU:C:1991:201, paragraph 23, and 24 March 2009 Cheminova and Others v Commission, C‑60/08 P(R), EU:C:2009:181, paragraphs 35 and 36).
23 In the present case, the applicants submit, in essence, that the suspension of the operation of the contested decision is particularly urgent because the imminent implementation of the national measures authorised by that decision would irreversibly damage the full effectiveness of the judgment on the main application. If the Court were to annul the contested decision, the aid granted would be rendered illegal pending the outcome of a new investigation of the measure by the Commission. However, if the contested decision were not suspended, whatever the outcome of a fresh investigation of the measure by the Commission, that outcome would be deprived of its effectiveness. The applicants advance several arguments in support of their contentions. First, once the Bridge Bank is sold, that transaction would be irreversible, even if the aid were declared to be incompatible with the internal market. Second, the consequence would be that the applicants’ legal position, such as it was prior to the restructuring of Banco Espírito Santo, including their right to participate in the formal investigation procedure laid down in Article 108(2) TFEU, would be ‘irreparably lost’. Third, that would also have the effect of irreparably harming their financial situation, inasmuch as it would no longer be possible for them to participate in the restructuring of Banco Espírito Santo by contributing to its recapitalisation. Finally, fourth, the implementation of the national decision authorised by the Commission would lead to the impossibility of actually recovering the aid from the beneficiary and therefore the irreversibility of that State aid, even if it were to be declared illegal.
24 In that regard, it must be recalled first, that, in order to assess the urgency of the measures sought, the judge hearing the application for interim measures is required to take into consideration the applicant’s interests only, in particular the existence of a risk of serious and irreparable damage to those interests, without regard to other factors of a general nature (order of 13 January 2009 in Occhetto and Parliament v Donnici, C‑512/07 P(R) and C‑15/08 P(R), ECR, EU:C:2009:3, paragraph 58) or the interests of third parties (order of 4 May 1964 in Ley v Commission, 12/64 R, ECR, EU:C:1964:25; see also order of 25 July 2014 in Deza v ECHA, T‑189/14 R, EU:T:2014:686, paragraph 71 and the case-law cited).
25 Therefore, the alleged irreversibility of the transaction made possible by the contested decision, and the alleged impossibility of recovering the aid from its beneficiary in the event that the contested decision were subsequently annulled, which would affect the usefulness of any formal investigation procedure that would take place in the event of annulment and therefore the effectiveness of the decision in the main proceedings, cannot suffice, in themselves, irrespective of the applicants’ interests, to establish the urgency of suspending that decision. Even if it were established — which is not the case — that, failing the suspension of the contested decision, the usefulness of the formal investigation procedure or the effectiveness of the decision in the main proceedings would be likely to be affected, such prejudice to the public interest or to the rights of third parties would not be sufficient to establish urgency, without proof of serious and irreparable damage that would be suffered by the applicants.
26 Consequently, only the damage personal to the applicants and relied on by them may be taken into consideration.
27 This is the harm arising out of the adverse effect on their legal position. In that regard, the applicants rely explicitly on the loss of their right to participate in the formal investigation procedure. It is alleged, in essence, that the procedure should have been opened and that, failing a suspension, the procedure that will be organised in the event that the contested decision is annulled will only have limited effect due to the irreversible nature of the transaction and the impossibility of recovering aid at the end of the procedure. Moreover, it appears to follow from the applicants’ pleadings that damage to their legal position also results from the fact that they will not be able to participate in a restructuring of Banco Espírito Santo by contributing to its recapitalisation, and therefore that they will not be able to rely on that factor in support of their challenge to the compatibility of the aid measure. According to the applicants’ submissions the argument that, during the investigation of the aid, the Commission did not consider their willingness to participate in a restructuring of Banco Espírito Santo is one of the principal arguments in support of their action against the contested decision.
28 First, as regards the breach of the right to take part in the formal investigation procedure, it has repeatedly been held that it is not sufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the damage which could result would necessarily be irreparable (orders of 15 April 1998 in Camar v Commission and Council, C‑43/98 P(R), ECR, EU:C:1998:166, paragraph 47; of 10 September 2013 in Commission v Pilkington Group, C‑278/13 P(R), ECR, EU:C:2013:558, paragraph 40; and of 28 November 2013 in EMA v InterMune UK and Others, C‑390/13 P(R), EU:C:2013:795, paragraph 42). It is true that a breach of certain fundamental rights, such as the prohibition of torture and inhuman or degrading treatment or punishment enshrined in Article 4 of the Charter of Fundamental Rights of the European Union, may, on account of the very nature of the right violated, in itself give rise to serious and irreparable harm. However, the fact remains that it is still for the party seeking interim measures to set out and establish the likelihood of such harm occurring in his particular case (orders in Commission v Pilkington Group, cited above, EU:C:2013:558, paragraph 41, and EMA v InterMune UK and Others, cited above, EU:C:2013:795, paragraph 43).
29 A fortiori the infringement of a purely procedural right, such as that conferred on interested parties by Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [108 TFEU] (OJ 1999 L 83, p.1), even if proven, is insufficient to establish serious and irreparable harm. The applicants have not shown how the inability to take part in the formal investigation procedure would cause each of them personally to suffer serious and irreparable harm. Therefore, the submission based on interference with the right to take part in that procedure cannot establish urgency.
30 Next, the applicants appear also to rely on damage linked to the fact that, failing the suspension of the contested decision, the cogency of the plea made in the main proceedings arguing that, during examination of the aid measure, the Commission did not consider their willingness to participate in a restructuring of Banco Espírito Santo, would be negatively affected.
31 However, the lawfulness of the contested decision will be assessed in the main proceedings by reference to the circumstances as they existed on 3 August 2014. According to settled case-law, the lawfulness of a decision concerning State aid is to be assessed in the light of the information available to the Commission when the decision was adopted (judgments of 26 September 1996 in France v Commission, C‑241/94, EU:C:1996:353, paragraph 33, and of 15 April 2008 in Nuova Agricast, C‑390/06, ECR, EU:C:2008:224, paragraph 54). Therefore, even if the suspension of the contested decision would enable the applicants to participate in the restructuring of Banco Espírito Santo, that would not provide any support for the main application against the contested decision, since it would involve matters occurring after 3 August 2014. That argument must therefore be rejected.
32 In reality, the only personal harm relied on by the applicants in support of their case on urgency, and of a concrete nature, is the damage resulting from the impossibility for them of participating in the restructuring of Banco Espírito Santo by contributing to its recapitalisation. According to the applicants, whatever the outcome of the main proceedings, in the absence of suspension, the operation of the resolution of Banco Espírito Santo will be carried out within a short time-frame and the assets that made up Banco Espírito Santo will be irremediably sold, which will deprive the applicants of the possibility of participating in a restructuring. It may therefore be concluded from the applicants’ pleadings that the damage they rely on is the loss of an opportunity to participate in a restructuring and make a profit therefrom.
33 As stated above, Article 104(2) 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 measures applied for’. An application for interim measures must therefore be sufficiently clear and precise in itself to enable the defendant to prepare his observations and the judge hearing the application to rule on it, where necessary, without other supporting information. The essential elements of fact and law on which it is founded must be set out in a coherent and comprehensible fashion in the actual text of the application for interim measures, which may merely be supported and supplemented on specific points by references to specific passages of documents annexed to the application (see order of 20 June 2014 in Wilders v Parliament and Others, T‑410/14 R, EU:T:2014:564, paragraph 10 and the case-law cited, see also, to that effect, order of 30 April 2010 in Ziegler v Commission, C‑113/09 P(R), EU:C:2010:242, paragraph 13).
34 As recalled in paragraph 22 above, it is for the applicant to prove that he cannot await the outcome of the main proceedings without personally suffering harm which would have serious and irreparable effects for him (orders in Belgium v Commission, paragraph 22 above, EU:C:1991:201, paragraph 23, and Cheminova and Others v Commission, paragraph 22 above, EU:C:2009:181, paragraph 35). The question of urgency is a specific question which must be examined separately for each applicant (see, to that effect, orders in Cheminova and Others v Commission, paragraph 22 above, EU:C:2009:181, paragraph 36, and of 15 December 2009, Dow AgroSciences and Others v Commission, C‑391/08 P(R), EU:C:2009:785, paragraph 44).
35 It must be held that the applicants have not adduced any evidence to show that they are likely to suffer serious harm as a result of a failure to adopt the interim measures sought. They do not provide the slightest indication as regards the nature and extent of the damage that they would be likely to suffer individually, or even collectively, as a result of the impossibility of participating in a restructuring of Banco Espírito Santo. Indeed, the applicants provide absolutely no information, no economic or financial data, which could be taken into account to determine whether the damage alleged would be irreparable, that is to say, would place each of them in a situation likely to put his very existence at risk.
36 Therefore, the alleged harm arising from the impossibility for the applicants of participating in the restructuring of Banco Espírito Santo cannot justify the suspension of operation sought.
37 Finally, the applicants state in their presentation of the factual context and the procedure that Banco Espírito Santo’s debts with respect to subordinated creditors, such as the applicants, will remain on the balance sheet of the winding-down bank and that the market expects that, on the liquidation of the winding-down bank, the value of the applicants’ investments in Banco Espírito Santo will be less than 10% of their nominal value, which implies a loss of more than EUR 675 million on the issuance of the Lower Tier 2 Bonds.
38 Even supposing that that damage could be avoided by adopting the interim measures sought, which moreover the applicants do not claim, it must be observed that, in the absence of any information as to the distribution amongst the applicants of the Lower Tier 2 Bonds they hold, it is impossible in any event to assess the seriousness or the irreparable nature of the harm suffered by each of them.
39 Furthermore, the two figures provided by the applicants and referred to in paragraph 37 above are not substantiated in any way and in fact constitute an allegation unsupported by any evidence. They are moreover two isolated figures, without any contextual information as to the applicants’ circumstances, which do not provide the judge hearing the application for interim measures with a reliable overall picture of the situation at issue for the purposes of assessing the serious and irreparable nature of the harm alleged.
40 It follows that the applicants have not established that they will suffer serious and irreparable harm if the application for suspension of operation is not granted.
41 In the light of all the foregoing, the application for interim measures must be rejected for want of urgency, without it being necessary to consider whether the other conditions for the suspension of operation sought are satisfied.
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, 25 February 2015.