ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
17 September 2008 (*)
(Applications for interim measures – Regulation (EC) No 423/2007 – Restrictive measures against the Islamic Republic of Iran – Council decision – Measure to freeze funds and economic resources – Application for suspension of operation of a measure – No urgency – Absence of serious and irreparable damage)
In Case T‑332/08 R,
Melli Bank plc, established in London (United Kingdom), represented by R. Gordon QC, M. Hoskins, Barrister, and T. Din, S. Gadhia and D. Murray, Solicitors,
applicant,
v
Council of the European Union, represented by M. Bishop and E. Finnegan, acting as Agents,
defendant,
APPLICATION for suspension of the application of paragraph 4, section B, of the Annex to Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29), in so far as Melli Bank plc is included in the list of legal persons, entities and bodies whose funds and economic resources are frozen,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Background to the dispute
1 The present case follows Case T-246/08 R Melli Bank v Council, which was brought to a close by the order of the President of the Court of First Instance of 27 August 2008, not published in the ECR, (‘the order of 27 August 2008’) and concerns Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29) (‘the contested decision’). Under paragraph 4, section B, of the Annex to the contested decision, the Council took measures which had the effect of freezing the funds and economic resources of the applicant, Melli Bank plc, which is a wholly-owned subsidiary of Bank Melli Iran (‘BMI’), the latter, for its part, being controlled by the Iranian State.
2 By application lodged at the Registry of the Court of First Instance on 25 June 2008, the applicant brought an action seeking, in essence, the annulment of the contested decision in so far as it related to the applicant. In support of its action, it raised two pleas, alleging infringement of the principles of proportionality and non-discrimination in that, first, the freezing of its funds was not the least restrictive measure to prevent the financing of the Islamic Republic of Iran’s nuclear activities and, secondly, it had been discriminated against in relation to certain other banks. That action was registered under the case number T-246/08.
3 By separate document lodged at the Registry of the Court of First Instance on the same date, the applicant made an application for interim measures, in which it requested, in essence, that the operation of the contested decision should be suspended, in so far as it concerns the applicant, until the Court had given judgment in the main action. That application was registered under the case number T-246/08 R.
4 By order of 27 August 2008, the President of the Court of First Instance dismissed that application for interim measures as unfounded for lack of urgency, as the applicant had failed to show that it would suffer serious and irreparable damage if the suspension of operation sought were not granted.
5 For a fuller account of the contested decision, the international and Community legal provisions of which it is part and the relevant provisions of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1), see the order of 27 August 2008.
Procedure and forms of order sought
6 By application lodged at the Registry of the Court of First Instance on 15 August 2008, the applicant brought a further action seeking, in essence, the annulment of the contested decision in so far as it relates to the applicant. In support of its action, it raised, first, a plea of illegality under Article 241 EC, submitting that Article 7(2)(d) of Regulation No 423/2007 is inapplicable and, secondly, a plea alleging infringement of Article 15(3) of that regulation in that the contested decision does not contain the necessary statement of specific reasons. That action was registered under case number T‑332/08.
7 By separate document lodged at the Registry of the Court of First Instance on the same date, the applicant made the present application for interim measures, in which is claims, in essence, that the President of the Court of First Instance should:
– suspend the operation of paragraph 4, section B, of the Annex to the contested decision in so far as it relates to the applicant, pending judgment of the Court in the main proceedings;
– order the Council to pay the costs.
8 In its written observations on the application for interim measures, which were lodged at the Registry of the Court of First Instance on 15 September 2008, the Council contended that the President of the Court of First Instance should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
9 By document lodged at the Registry of the Court of First Instance on 15 September 2008, the United Kingdom of Great Britain and Northern Ireland applied for leave to intervene in support of the form of order sought by the Council.
10 By decision of 16 September 2008, the Court of First Instance (Second Chamber) granted the applicant’s request, lodged on 15 August 2008, that the dispute in the main proceedings be disposed of under an expedited procedure pursuant to Article 76a of the Rules of Procedure of the Court of First Instance.
11 As regards the application for joinder of Cases T-332/08 R and T‑246/08 R, which was also lodged on 15 August 2008, it was implicitly dismissed by the adoption of the order of 27 August 2008, which was made solely in Case T-246/08 R.
Law
12 Under Articles 242 EC and 243 EC in conjunction with Article 225(1) EC, the judge hearing an application for interim measures may, if he considers that circumstances so require, order that application of the act contested before the Court be suspended or prescribe any necessary interim measures. However, Article 242 EC lays down the principle that actions are not to have suspensory effect (order in Case C-377/98 R Netherlands v Parliament and Council [2000] ECR I-6229, paragraph 44, and order in Case T-191/98 R II Cho Yang Shipping v Commission [2000] ECR II-2551, paragraph 42). It is therefore only on an exceptional basis that a judge hearing an application for interim measures may order that application of the act contested before the Court of First Instance be suspended or prescribe any interim measures.
13 Article 104(2) of the Rules of Procedure provides that an application 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. Those conditions are cumulative, so that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).
14 Having regard to the documents in the case, the President of the Court considers that he has all the material needed in order to rule on the present application for interim measures and that it is not expedient first to hear oral argument from the parties.
15 In the circumstances of the present case, it is necessary to examine, first, whether the condition for urgency is satisfied.
16 In that regard, the applicant submits that, in the absence of the interim measures applied for, it is suffering extremely serious damage as a result of the fact that, on account of the contested decision, it is losing customers and is unable to carry out any new business. That position is worsening with each day that passes. The possibility of national authorisations for the release of the frozen funds being granted to the applicant under Articles 9 and 10 of Regulation No 423/2007 does not suffice to protect the applicant’s market position. According to the applicant, the harm suffered is irreparable by virtue of the fact that it will be practically impossible for it to re-establish its position in the market at issue and to attract former customers back when they have established a relationship with other banks. In that context it refers to the highly-sophisticated, specialised nature of its banking activities and the very probable loss of its experienced staff.
17 In so far as the applicant submits that the condition for urgency has thus been satisfied, it is sufficient to refer to paragraphs 24 to 60 of the order of 27 August 2008, in which essentially identical arguments have already been rejected (see, to that effect, as regards the Community judicature’s power to give reasons for its decision by reference to an earlier decision ruling on largely identical questions, Case C-229/04 Crailsheimer Volksbank [2005] ECR I-9273, paragraphs 47 to 49, and the judgment of 11 July 2007 in Case T-47/03 Sison v Council, not published in the ECR, paragraph 102). On the same grounds, the corresponding arguments submitted in support of the present application must be rejected.
18 It must be added that, as regards urgency, the present application is more restricted than the applicant’s previous application, in that the applicant no longer submits, in the present case, that there is a risk of non-material damage. In any event, the applicant has not provided any new figures relating to the financial position of its parent company, BMI, of which it is a wholly-owned subsidiary, or to the characteristics of the group to which it belongs. In the absence of such information, the President of the Court is unable to examine specifically whether the inability of the applicant, as a company belonging to the BMI group, to carry out banking operations on account of the freezing of its funds would cause it, having regard to the total turnover of that group, a loss which could be classified as serious and irreparable damage (order of 27 August 2008, paragraphs 32 to 44).
19 Consequently, the application for interim measures must be dismissed for lack of urgency, without any need to examine whether the other conditions for granting the suspension of operation, in particular that of a prima facie case, are met. Accordingly, there is no need to give a ruling on the United Kingdom’s application to intervene.
On those grounds,
THE PRESIDENT OF THE COURT OF FIRST INSTANCE
hereby orders:
1. The application for interim measures is dismissed.
2. The costs are reserved.
Luxembourg, 17 September 2008.