ORDER OF THE PRESIDENT OF THE GENERAL COURT
12 December 2011 (*)
(Interim relief – Common foreign and security policy – Restrictive measures against Syria – Freezing of funds and economic resources – Application for suspension of operation of measures and for interim measures – No urgency – No serious and irreparable damage)
In Case T‑579/11 R,
Tarif Akhras, residing in Homs (Syria), represented by S. Ashley and S. Millar, Solicitors, and by D. Wyatt QC and R. Blakeley, Barrister,
applicant,
v
Council of the European Union, represented by M. Bishop and M.‑M. Joséphidès, acting as Agents,
defendant,
Application for, in essence, interim measures and the suspension of operation of Council Decision 2011/522/CFSP of 2 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 228, p. 16), Council Regulation (EU) No 878/2011 of 2 September 2011 amending Regulation (EU) No 442/2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 228, p. 1), Council Decision 2011/628/CFSP of 23 September 2011 amending Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 247, p. 17) and Council Regulation (EU) No 1011/2011 of 13 October 2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18), to the extent that those measures affect the applicant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 The applicant, Mr Tarif Akhras, is a Syrian citizen and businessman. He is legally resident in Homs (Syria). After being the subject of attacks and death threats, the applicant and members of his family left Homs on 10 October 2011, to take refuge first in Damas (Syria), then outside Syria. For security reasons, where they currently reside is not disclosed.
2 Strongly condemning the violent repression of peaceful protest in various locations across Syria and calling on the Syrian authorities not to resort to repression, on 9 May 2011 the Council of the European Union adopted Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ L 121, p. 11). In view of the seriousness of the situation, the Council established an arms embargo, a ban on internal repression equipment, restrictions on the admission to the Union of certain persons and entities responsible for the violent repression against the civilian population in Syria, and the freezing of their funds and economic resources.
3 The names of the persons responsible for the violent repression against the civilian population in Syria and of the persons (natural or legal) and entities associated with them are listed in the annex to Council Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). Under Article 5 of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, may amend that annex.
4 The name of the applicant is not one of the 13 names listed in the annex to Decision 2011/273.
5 Given that some of the restrictive measures taken against Syria fall within the scope of the FEU Treaty, the Council adopted Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 11). That regulation is, essentially, identical to Decision 2011/273, but provides for the possibility that frozen funds may be released. Annex II to that regulation – which consists of a list of names of persons, entities or bodies identified as being responsible for the repression in question, or associated with those responsible – is identical to the list in the annex to Decision 2011/273. The name of the applicant is not one of the 13 names listed in the annex to that regulation. Under Article 14(1) and (4) of the regulation in question, where the Council decides to subject a person, entity or body to the restrictive measures referred to, it is to amend Annex II accordingly and is to review, moreover, the list in Annex II at regular intervals and at least every 12 months.
6 By Decision 2011/522/CFSP of 2 September 2011 (OJ 2011 L 228, p. 16), the Council amended Decision 2011/273 with a view, inter alia, to applying the restrictive measures in question to other persons and entities benefiting from or supporting the regime, in particular persons and entities financing the regime, or providing logistical support to the regime. Consequently, the scope of Decision 2011/273 was extended to ‘persons benefiting from the regime or supporting it, and persons associated with them, as listed in the Annex’. Under Article 2 of Decision 2011/522, the names of four natural persons and three entities, ‘listed in the annex to [that] Decision’, were added to the list set out in the annex to Decision 2011/273. The applicant is one of those named, with the details ‘date of listing: 2.09.2011’ and the following ‘reasons’:
‘Founder of the Akhras Group (commodities, trading, processing and logistics), Homs. Provides economic support for the Syrian regime.’
7 By Regulation (EU) No 878/2011 of 2 September 2011 (OJ 2011 L 228, p. 1), the Council amended Regulation No 442/2011 by extending Annex II to that regulation to ‘persons and entities benefiting from or supporting the regime, or persons and entities associated with them’. Under Article 2 of Regulation No 878/2011, Annex II to Regulation No 442/2011 is to be amended in accordance with Annex I to Regulation No 878/2011, that annex containing the name of the applicant and stating the same date of listing and the same ‘reasons’ as given in Decision 2011/522.
8 On 23 September 2011 the Council adopted Decision 2011/628/CFSP amending Decision 2011/273 (OJ 2011 L 247, p. 17) and on 13 October 2011, the Council adopted Regulation (EU) No 1011/2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18). In accordance with recital 6 of the preamble to Decision 2011/628, Article 3 thereof and Annex II thereto, and Article 2 of Regulation No 1011/2011, the information relating to the applicant in the Annex to Decision 2011/273 and Annex II to Regulation No 442/2011 was updated as follows:
‘Name: Tarif Akhras;
Identifying information: Date of birth: 1949; place of birth: Homs, Syria;
Reasons: Founder of the Akhras Group (commodities, trading, processing and logistics), Homs. [Provides economic support to / Supports economically] the Syrian regime;
Date of listing: 2.9.2011’
9 Since the applicant considered that the Council had been wrong to impose on him the restrictive measures established by Decisions 2011/522 and 2011/628 and by Regulations 878/2011 and 1011/2011 (the ‘contested measures’) and had erred in accusing him of providing economic support to the Syrian regime, he sent letters on 12, 18, 19 and 24 October 2011 to the Council asking the Council to inform him of the specific and concrete grounds for this accusation and to suspend the restrictive measures applied to him. The Council did not respond to those letters.
Procedure and forms of order sought by the parties
10 By application lodged at the registry of the General Court on 11 November 2011, the applicant brought an action for, in essence, annulment of the contested measures, in so far as his name is mentioned in the annexes to them, and for a declaration that Decision 2011/273 and Regulation No 442/2011, in so far as those measures, as amended, order freezing of his funds and economic resources, are not applicable. In support of his action, he claims, inter alia, that the listing of his name in the contested measures is unlawful, since he has at no time provided any support, economic or otherwise, to the Syrian regime. Further, he complains that the Council failed to inform him of adequate reasons to justify such a listing, since the vague assertion that he supports the Syrian regime does not put him in a position to defend himself.
11 By separate document, lodged at the registry of the Court on the same date, the applicant brought this application for interim measures, whereby he claims, in essence, that the President of the Court should:
– suspend, pursuant to Article 105(2) of the Rules of Procedure of the General Court, the operation of the contested measures in so far as they concern him until the Court has ruled on this application for interim measures, or, in any event, until the Court has ruled on the main action;
– order the Council, by means of a press release and a notice in the Official Journal of the European Union, to make public the suspension of operation of the contested measures within 24 hours of being served with the order of the Court.
12 In its observations on the application for interim measures, lodged at the registry of the General Court on 21 November 2011, the Council contends that the President of the Court should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
13 After the lodging by the Council of its observations, the applicant was authorised to respond to those observations, which he did by statement lodged on 24 November 2011. The Council then responded by statement lodged on 29 November 2011.
Law
14 It is clear from reading the combined provisions of Articles 278 TFEU and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the court hearing an application for interim measures may, if it considers that the circumstances so require, order that the operation of a measure contested before the General Court be suspended or prescribe any necessary interim measures. Nonetheless, Article 278 TFUE establishes the principle that actions for annulment do not have suspensory effect, since measures adopted by the institutions, bodies, offices and agencies of the European Union enjoy a presumption of legality. It is therefore only exceptionally that the court hearing an application for interim measures can order the suspension of operation of such a measure or prescribe interim measures (see, to that effect, order of the President of the General Court 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 case‑law cited).
15 Further, Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures is 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. Accordingly, the court hearing an application for interim relief may order suspension of operation and interim measures, if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent (order of the President of the Court of Justice in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I‑4971, paragraph 30).
16 In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court of Justice in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25. Where appropriate, the court hearing an application for interim relief must also balance the interests involved (order of the President of the Court of Justice in Case C‑445/00 R Austria v Council [2001] ECR I‑8549, paragraph 73).
17 Further, the measures requested must be provisional inasmuch as they must not neutralize in advance the effects of the decision subsequently to be given in the main action (order in Commission v Atlantic Container Line and Others, paragraph 22, and order of the President of the General Court in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 41), since the purpose of proceedings for interim measures, which are entirely ancillary to the main action to which such proceedings are attached, is only to guarantee the full effectiveness of the judgment on the substance (see, to that effect, the order of the President of the General Court of 14 July 2011 in Case T‑187/11 R Trabelsi and Others v Council, not published in the ECR, paragraph 33 and case-law cited).
18 Lastly, when suspension of operation of a measure is sought, granting of the interim measure requested is justified only where the measure at issue constitutes the decisive cause of the alleged serious and irreparable damage (see, to that effect, orders of the President of the General Court of 26 March 2010 in Case T‑1/10 R SNF v ECHA, not published in the ECR, paragraph 66, and of 17 December 2010 in Case T‑507/10 R Uspaskich v Parliament, not published in the ECR, paragraph 31).
19 Having regard to the material in the file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures, without it being necessary first to hear oral argument from the parties.
20 In the circumstances of the present case, it is appropriate first to examine whether the condition of urgency is satisfied.
21 In the present case, it must be recalled, first, that the contested measures were adopted in order to apply pressure to the Syrian authorities not to resort to violent repression of protest in Syria (see paragraph 2 above). In that context, the Council adopted, inter alia, restrictive measures, economic and financial, against persons and entities benefiting from the regime or supporting it (see paragraph 6 above).
22 However, it is clear that the application for interim measures is not based on the negative effects which the contested measures might have on the applicant’s economic and financial activities, because of the freezing of his funds and economic resources. The applicant’s justification of the urgency of his application is limited to the claim that there is an imminent threat, caused by those measures, both to his own his life and personal safety and the lives and personal safety of his family.
23 The applicant asserts that the contested measures were imposed on him on the mistaken ground that he was providing economic support to the Syrian regime. He states that that entirely false allegation has been spread throughout Syria, in particular in Homs, and has incited opponents of the Syrian regime to commit acts of serious violence directed at himself and members of his family, the culmination being death threats addressed to his son and himself, an armed man making an attempt to murder him, and the attempted murder of his son-in‑law (‘the attacks’). He maintains that, as a result, he and his family have left Syria. Although they enjoy greater safety in their new place of residence, that safety is no more than relative, since they continue to be exposed to the same risk of attacks if that place were ever to become known to the individuals who threaten them. Further, he states that, if he and his family members were to return to Syria, as they are perfectly free to do, their lives would again be in great danger.
24 As regards the causal link between the listing of his name in the contested measures and the alleged damage, the applicant argues that, where those who are genuinely supporters of the regime are listed, the fact that those persons are allied to the regime is well known by their compatriots, and accordingly that listing will not expose them to retaliatory violence from political opponents. On the other hand, where an individual who is not a supporter of the regime is listed in such a way, that listing creates for the individual concerned a new and serious risk, that of being the victim of retaliatory violence from opponents of that regime. According to the applicant, it is difficult to find a person less likely to be a supporter of the Syrian regime than him, given that his business activities have received adverse attention and even serious obstruction from the regime. He states that in July 2011 the Syrian regime ordered the closure of the newspaper he directs, on the ground that it was critical of certain issues which the regime regarded as sensitive.
25 The applicant thus considers that it is not sufficient that the contested measures are suspended, but that the suspension should also be made public, in order to inform ‘those who wish to harm [him]’. A suspension of the contested measures could therefore contribute, by means of appropriate publicity, to the cessation of the attacks suffered by him and his family, and thereby ensure that the judgment on the substance of the case takes full effect.
26 As annexes to the application for interim measures, the applicant submits a witness statement which he drafted personally, a report made on 25 September 2011 to the Syrian police concerning the attempted murder of his son-in-law and Syrian police reports, dated 17 and 26 September and 4 October 2011, relating to attacks made on several of his lorries.
27 In that regard, it must be recalled that it has consistently been held that urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable damage to the party applying for those measures. It is not necessary for the imminence of the damage to be demonstrated with absolute certainty. It is sufficient to show that damage is foreseeable with a sufficient degree of probability (see order of the President of the General Court of 7 June 2007 in Case T‑346/06 R IMS v Commission [2007] ECR II‑1781, paragraphs 121 and 123 and case-law cited). However, the applicant claiming such damage is required to prove the facts forming the basis of his claim that serious and irreparable damage is likely (order of the President of Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I‑8705, paragraph 67; orders of the President of the General Court in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II‑3295, paragraph 188, and in Case T‑34/02 R B v Commission [2002] ECR II‑2803, paragraph 86).
28 In order to determine whether the damage claimed by the applicant is indeed serious, the court hearing the application for interim measures must have hard and precise information, supported by detailed documents showing the applicant’s situation and enabling the court to examine the precise effects which would follow, probably, if the measures sought were not granted. The applicant is thus obliged to provide, as supporting documents, information capable of establishing a true and complete picture of the situation which he claims to justify the granting of those measures (see, to that effect, order of the President of the General Court 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 the Court of Justice of 16 December 2010 in Case C‑373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).
29 In the present case, the applicant bases his claims that he is exposed to serious and irreparable damage on the occurrence of attacks directed against him and his family in Syria following the publication of the contested measures, and concludes that such attacks could recur, in all probability, at any moment if the application for interim measures were to be dismissed.
30 However, as regards the attacks carried out in Syria, it is clear that the applicant’s claims are essentially based on the single witness statement which he himself drew up.
31 Moreover, in relation to the causal link between the contested measures, on the one hand, and the attacks directed against the applicant and his family in Syria, on the other, only in paragraph 54 of that witness statement can be found the applicant’s claim that such attacks were carried out shortly after the sanctions imposed on him were the subject of wide coverage in the media, that information being in particular relayed by television channels continuously for three days. The applicant fails however to produce a DVD, an audio recording or a transcript, even partial, of the television broadcasts at issue in order to demonstrate their accuracy and content. Consequently, it must be held that the applicant has provided no evidence to demonstrate the reality of the ‘wide coverage in the media’ of the contested measures and to establish that those broadcasts were such as provoke the attacks claimed precisely to be against the applicant and his family.
32 As regards the Syrian police reports and the report made to the police, submitted by the applicant, they certainly constitute material capable of demonstrating that the attacks mentioned therein were actually carried out. However, they do not make it possible to establish that those attacks were provoked simply by the listing of the applicant’s name in the contested measures. The President of the Court cannot therefore reasonably rule out the possibility that they were carried out in the context of a situation, prevalent for weeks now in Syria, which is approaching civil war and anarchy and which may be conducive to an increase in general criminality.
33 As regards the applicant’s claim that his business activities have received adverse attention from the Syrian regime which, in July 2011, ordered the closure of the newspaper he directs, on the ground that it commented critically on certain issues which the regime regarded as sensitive (see paragraph 24 above), that claim is not supported by evidence. The applicant has adduced no evidence capable of proving the degree of editorial or financial influence which he, as proprietor and manager, has exercised on that newspaper, the details surrounding the claimed closure of that newspaper or the issues which met with the disapproval of the Syrian authorities. He has therefore not established that, before his name was listed in the contested measures, he had in fact been the ‘opposite of a supporter’ of the Syrian regime and that his stigmatisation, in the eyes of opponents of that regime, could therefore have its origin only in that listing.
34 In any event, in the circumstances which have prevailed for some time in Syria, characterised by increasingly violent riots approaching civil war, it is plausible that the primary cause – and therefore the decisive cause – of the attacks carried out against the applicant and his family is to be found in the applicant being denounced as a supporter of the Syrian regime by groups opposing that regime, and the fact of his being so denounced may at the same time have been brought to the notice of the European Union.
35 As the applicant admits in his witness statement, he occupied a prominent position in Syria as a successful businessman, chairman of the Homs Chamber of Commerce, deputy chairman of the Federation of Syrian Chambers of Commerce and member of a family linked by marriage to the Syrian regime, since the daughter of his cousin is the wife of the President of the Syrian Arab Republic. In those circumstances, it does not appear surprising that the applicant has been identified and targeted, by the opponents of the Syrian regime and in the context of what is approaching civil war, as a person benefiting from that regime and supporting it.
36 It follows from all the foregoing that the applicant has not adequately substantiated, by evidence, his assertions that attacks directed against him and his family in Syria have taken place following the publication of the contested measures. He has in particular not established that those measures constituted the decisive cause of those attacks and, therefore, constitute the decisive cause of the risk he claims to exist that there will be further attacks.
37 In the absence of sufficient evidence, the President of the Court cannot accept that the urgency claimed exists merely on the basis of unsupported assertions by the applicant. Given that the granting of interim measures is strictly exceptional (see paragraph 14 above), they can be granted only where those assertions produce a true and complete picture of the situation which is claimed to justify the granting of such measures and are corroborated by evidence (see, to that effect, the order of the President of the General Court of 31 August 2010 in Case T‑299/10 R Babcock Noell v The European joint undertaking for ITER and the Development of Fusion Energy, not published in the ECR, paragraph 57 and case-law cited).
38 For the sake of completeness, it should be added that, as regards attacks directed against a person on whom there has been imposed a restrictive measure which is economic and financial, such as the measures at issue in the present case, the commission of such acts of violence is manifestly not one of the objectives aimed at by the author of such a measure. The fact that they are committed is due to the independent actions of criminals for whom the restrictive measure serves only as a pretext. However, since the applicant admits that he has occupied a prominent position in Syria (see paragraph 35 above) and has in the meantime been stigmatised in Syria and abroad, it seems improbable, particularly in the situation approaching civil war and anarchy which now prevails in Syria, that criminals taking steps to repeat the attacks concerned against him and his family would be impressed by the publication of an order for interim measures, the result of which would moreover be that the designation of the applicant in the contested measures would be erased only provisionally, following a purely summary examination by the court hearing the application for interim measures and in opposition to the express will of the Council, which has the right to bring an appeal against that order.
39 Since the condition relating to urgency is not satisfied in the present case, there is no justification for granting the interim measures requested.
40 That conclusion is not affected by the fact that – as the applicant stated when referring to similarities between the facts of this case and the case which led to the judgment of 8 June 2011 in Case T‑86/11 Bamba v Council [2011] ECR II‑0000 – the condition relating to a prima face case is satisfied, given that the reason for the designation of the applicant, stated in the contested measures, seems prima facie as vague and general as that which led the General Court to hold, in Bamba, that there was a breach of the duty to state reasons and, therefore, that the regulation and decision at issue before it should be annulled.
41 The condition relating to urgency and that relating to there being a prima facie case are cumulative, and consequently an application for interim measures must be rejected whenever one of them is not satisfied (see paragraph 15 above), given that the granting of interim measures by the court hearing the application for such measures is strictly exceptional (see paragraph 14 above).
42 Moreover, as the General Court stated in paragraph 58 of Bamba v Council, the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union provides that decisions of the General Court declaring a regulation to be void are to take effect only as from the date of expiry of the period within which an appeal may be brought or, if an appeal has been brought within that period, as from the date of dismissal of the appeal by the Court of Justice. Further, in paragraph 59 of Bamba v Council, the General Court ensured that, on grounds of legal certainty, the effective date of annulment of the contested decision was in line with that of the contested regulation, since those two acts imposed identical measures on Mr Bamba.
43 It follows that that even an annulment of the contested measures at the conclusion of the main proceedings would not have the immediate and automatic effect of removing the name of the applicant from those measures, particularly if – as moreover occurred in Bamba v Council – the Council were to bring an appeal against the order for annulment. In the particular circumstances of these specific proceedings, governed by the second paragraph of Article 60 of the Statute of the Court, and taking into account the fact that interim measure proceedings are ancillary to the main proceedings (see paragraph 17 above), the existence of a prima facie case does not, therefore, justify, by itself, the grant of the interim measures requested.
44 For all the foregoing reasons, this application for interim measures must be dismissed.
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, 12 December 2011.