ORDER OF THE PRESIDENT OF THE GENERAL COURT
1 February 2023 (*)
(Application for interim measures – Common foreign and security policy – Restrictive measures adopted in view of the situation in Belarus – Application for suspension of operation of a measure – No urgency)
In Case T‑117/22 R,
Grodno Azot AAT, established in Grodno (Belarus),
Khimvolokno Plant, established in Grodno,
represented by N. Tuominen and L. Engelen, lawyers,
applicants,
v
Council of the European Union, represented by A. Boggio-Tomasaz and A. Antoniadis, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1 By their application under Articles 278 and 279 TFEU, the applicants, Grodno Azot AAT and Khimvolokno Plant, seek the suspension of operation of Council Implementing Decision (CFSP) 2021/2125 of 2 December 2021 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus (OJ 2021 L 430 I, p. 16), and of Council Implementing Regulation (EU) 2021/2124 of 2 December 2021 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 430 I, p. 1), in so far as those measures concern the applicants (together ‘the contested measures’).
Background to the dispute and forms of order sought
2 Grodno Azot is a Belarusian State-owned company which produces nitrogen compounds and Khimvolokno Plant, which is owned by Grodno Azot, is a producer of polyamide, polyester and composites.
3 On 18 May 2006, the Council of the European Union adopted Regulation (EC) No 765/2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1).
4 On 15 October 2012, the Council adopted Decision 2012/642/CFSP concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5 On 2 December 2021, in view of the gravity of the situation in Belarus, the Council adopted the contested measures.
6 By Implementing Decision 2021/2125, the applicants’ names were added to the list of legal persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2012/642.
7 The grounds for including the applicants’ names on the list of legal persons, entities and bodies subject to restrictive measures are as follows:
‘Grodno Azot is a large State-owned producer of nitrogen compounds, based in Grodno. [Lukashenko] described it as “a very important enterprise, a strategic one”. Grodno Azot also owns Khimvolokno Plant, which is a large manufacturer of polyamide and polyester and composite materials. Grodno Azot and its Khimvolokno Plant are a source of substantial revenue for the [Lukashenko] regime. Grodno Azot is therefore supporting the [Lukashenko] regime.
[Lukashenko] visited the company and met with its representatives, discussing the plant’s modernisation and various forms of State support. [Lukashenko] also promised that a loan would be used for the construction of a new nitrogen plant in Grodno. Grodno Azot is therefore benefiting from the [Lukashenko] regime.
The workers of Grodno Azot, including its employees at the Khimvolokno Plant, who participated in peaceful protests against the regime and went on strike, were dismissed, intimidated and threatened both by the Grodno Azot management and regime representatives. Grodno Azot is therefore responsible for the repression of civil society.’
8 By Implementing Regulation 2021/2124, the applicants’ names were added, with the same statement of reasons, to the list of legal persons, entities and bodies subject to restrictive measures set out in Annex I to Regulation No 765/2006.
9 By letter of 3 December 2021, the Council informed the applicants of its decision to include their names on the list of legal persons, entities and bodies subject to restrictive measures set out in the annex to Decision 2012/642, as implemented by Implementing Decision 2021/2125, and in Annex I to Regulation No 765/2006, as implemented by Implementing Regulation 2021/2124.
10 On the same day, the Council published in the Official Journal of the European Union a Notice for the attention of persons subject to the restrictive measures provided for in Decision 2012/642, as implemented by Implementing Decision 2021/2125 and in Regulation No 765/2006, as implemented by Implementing Regulation 2021/2124 (OJ 2021 C 486, p. 22).
11 By application lodged at the Court Registry on 2 March 2022, the applicants brought an action for annulment of the contested measures in so far as they concerned them.
12 By a separate document lodged at the Court Registry 28 September 2022, the applicants brought the present application for interim measures, in which they claim that the President of the General Court should:
– order the suspension of operation of the contested measures with immediate effect, in accordance with Article 157(2) of the Rules of Procedure of the General Court;
– order the suspension of operation of the contested measures pending the Court’s ruling on the main action;
– grant any other interim measures as appropriate and hold an oral hearing as needed;
– order the Council to pay the costs.
13 In its observations on the application for interim measures, lodged at the Court Registry on 11 October 2022, the Council contends that the President of the General Court should:
– dismiss the application for interim measures;
– order the applicants to pay the costs.
Law
General considerations
14 It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the European Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
15 The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must ‘state the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
16 Thus, the judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
17 In the context of that overall examination, the judge hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre‑established scheme of analysis within which the need to order interim measures must be assessed (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
18 Having regard to the material in the case file, the President of the General Court considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.
19 In the circumstances of the present case, and without it being necessary to rule on the admissibility of the first part of the applicants’ third head of claim, by which they request the President of the General Court to grant any other interim measure deemed appropriate, it is necessary to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
20 In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the EU Courts. To attain that objective, urgency must generally be assessed in the light of the need of an interlocutory order to avoid serious and irreparable damage to the party requesting the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
21 In addition, under the second sentence of Article 156(4) of the Rules of Procedure, an application for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
22 Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
23 It is also settled case-law that, in order to determine whether all the conditions referred to in paragraph 20 above are fulfilled, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking the interim measures finds itself and enables the probable consequences, should the measure sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).
24 It is in the light of those criteria that it is necessary to examine whether the applicants have succeeded in demonstrating urgency.
25 In the present case, in order to demonstrate the serious and irreparable nature of the damage suffered, in the first place, the applicants claim that suspension of operation of the contested measures is essential for the purpose of avoiding a humanitarian and environmental technological disaster in Europe. According to the applicants, the contested measures make it impossible to access proper maintenance and repair services, including authentic spare parts and software, substantially increasing the risks of technological catastrophes which would most probably cause the imminent death of tens of workers in the event of equipment explosions and widespread intoxication of the population due to the resulting ammonia or oleum emissions.
26 In particular, first, the applicants claim that the contested measures do not allow for the immediate replacement, by a specialised EU supplier, of the synthesis column 105-D in the Ammoniac-3 workshop, which forms an essential integral part of the ammonia production facilities, in order to reduce pressure and improve the operational safety of the plant. By using other suppliers as the last resort, Grodno Azot would be able to purchase only inauthentic urgently needed spare parts, not originating in the European Union and with higher safety risks, in 2024 at the earliest, when the column in question will have been in service for 16 years since its last renovation, which significantly exceeds the period of safe operation of such equipment. According to the applicants, failure to replace the synthesis column in question could lead to a catastrophe affecting workers, the population in general, the environment and the neighbouring territories, including Lithuania and Poland.
27 Secondly, the applicants claim that the contested measures prevent a German company from reconstructing the oleum workshop, which is used for the production of 320 000 tonnes of sulphuric acid monohydrate per annum, and in particular from replacing equipment which is beyond repair and ensuring the safety of production. In that regard, the applicants state that without the reconstruction of the oleum workshop they will have to continue to operate with their old equipment, which could give rise to emergencies with catastrophic consequences for workers, inhabitants and the environment in the region and beyond, or suspension of their operations, thus leading to the loss of approximately 2 000 posts and a potential discontinuation of Grodno Azot’s operations.
28 Thirdly, the applicants claim that, on account of EU sanctions, they no longer have access to equipment, services, technical documentation, mandatory software updates and indispensable licences from the European Union, obliging them to use technological processes, equipment, control devices and obsolete software from the European Union and supplied prior to the adoption of the contested measures in order to carry out highly dangerous operations.
29 For the purpose of substantiating their arguments, the applicants attached, in Annex C.1 to the application for interim measures, two letters from companies setting out that it was impossible to supply spare parts, software and other technologies. In a first letter, it is stated that, in the context of the current sanctions and export restrictions, a company established in the United States suspended the supply and maintenance of its products in the Russian Federation and the Republic of Belarus in April 2022. The second letter states that a group of companies established in the European Union has decided, in connection with the sanctions policy, to suspend the supply of products to the Russian Federation and to the Republic of Belarus for an indefinite period.
30 In the second place, the applicants submit that compensation alone will not suffice to constitute restitutio in integrum, because potential human and environmental damage is foreseeable and unquantifiable.
31 The Council, on the other hand, contends that the condition relating to urgency has not been satisfied.
32 In that regard, in the first place, as regards the applicants’ argument that the contested measures do not allow for the immediate replacement of the synthesis column 105-D in the Ammoniac-3 workshop by a specialised EU supplier, first, it must be stated that that supplier is a company registered in Switzerland governed by Swiss law. For that reason, it must be held that that supplier is not legally required to implement the restrictive measures adopted by the European Union.
33 In addition, it is apparent from the parties’ written pleadings, in particular from the letter sent by that specialist supplier to Grodno Azot, in Annex A.11 to the application in the main proceedings, that the refusal of that supplier to continue cooperation with Grodno Azot is a consequence of the adoption by the Council, on 24 June 2021, of Regulation (EU) 2021/1030 amending Regulation No 765/2006 concerning restrictive measures in respect of Belarus (OJ 2021 L 224 I, p. 1), and not of the adoption of the contested measures.
34 Moreover, as is apparent from Annex B.20 to the Council’s observations, several representatives of Grodno Azot have publicly stated that the reconstruction project of the Ammoniac-3 and Ammoniac-4 workshops would finally be implemented in partnership with the Russian open joint stock company GIAP.
35 Secondly, as regards the reconstruction of the oleum workshop, it is apparent from Annex B.20 to the Council’s observations that the managing director of Grodno Azot publicly stated that, in view of the pressure exerted by EU sanctions and the German licensing company’s refusal to cooperate, Grodno Azot had concluded direct contracts with suppliers of basic equipment for the performance of installation supervision services and that contracts were in the process of being signed with the Russian institute JSC NIUIF (PhosAgro Group), the licensor of the technological process, for supervisory services of commissioning works. In addition, the managing director of Grodno Azot stated that negotiations were under way with Belarusian companies specialising in the adaptation of electrical equipment and the lining of the sulphur combustion furnace.
36 Consequently, it must be held that Grodno Azot found alternative solutions for completing the reconstruction project of the oleum workshop.
37 Thirdly, as regards the impossibility of having access to equipment, services, technical documentation, mandatory software updates and indispensable licences from the European Union, it must be held that the applicants, by their claims, formulated in rather broad terms, do not provide sufficient information on the exact products they need in order to continue to operate safely, so that it is possible to determine whether those products are genuinely necessary for the safety of their operations and whether they are produced exclusively by companies established in the territory of the European Union.
38 Furthermore, as the Council observes, it should be noted that the two letters provided by the applicants from companies stating that it was impossible to supply spare parts, software and other technologies refer to restrictive measures which are either not imposed by the European Union or are not directly linked to the contested measures. As regards the first letter, it is clear that the United States companies are not legally bound to implement the restrictive measures adopted by the European Union and that the suspension of the supply at issue is not linked to the adoption of the contested measures. In respect of the second letter, although the group of companies in question, mentioned in that letter, is established in the territory of the European Union, the suspension of the supply at issue is due, according to the wording of that letter, to ‘the policy of sanctions’, but not directly to the adoption of the contested measures.
39 In the second place, as regards the applicants’ claim that compensation alone will not suffice to constitute restitutio in integrum, because potential human and environmental damage is foreseeable and unquantifiable, it must be observed that, according to well established case-law, there is urgency only if the serious harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 27 February 2015, Spain v Commission, T‑826/14 R, EU:T:2015:126, paragraph 33 and the case-law cited).
40 In the present case, in the light of what has been stated in paragraphs 34 and 36 above, it must be held that the applicants have not proved, to the requisite legal standard, that potential human and environmental damage was so imminent that it was foreseeable with a sufficient degree of probability.
41 Furthermore, even if the safety risks relied on by the applicants should prove to be actual and high, the responsibility to avoid them lies first and foremost with the applicants themselves. They are required to comply with safety rules and must cease the use of non-compliant or defective production facilities.
42 In those circumstances, it must be concluded that the present application for interim measures does not satisfy the condition relating to urgency.
43 Since the conditions for the grant of suspension of operation and interim measures are cumulative, it follows from all of the foregoing that the application for interim measures must be dismissed, without it being necessary to rule on whether there was a prima facie case or to weigh up the interests involved.
44 Pursuant to Article 158(5) of the Rules of Procedure, it is appropriate to reserve the costs.
On those grounds,
THE PRESIDENT OF THE GENERAL COURT
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 1 February 2023.
E. Coulon | | M. van der Woude |