ORDER OF THE JUDGE HEARING APPLICATIONS FOR INTERIM MEASURES
28 September 2011 (*)
(Application for interim measures – Common foreign and security policy – Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation – Freezing of funds and economic resources – Application for interim measures – Lack of urgency)
In Case T‑384/11 R,
Safa Nicu Sepahan Co., established in Isfahan (Iran), represented by A. Bahrami, lawyer,
applicant,
v
Council of the European Union, represented initially by A. Vitro and R. Liudvinaviciute-Cordeiro, and subsequently by R. Liudvinaviciute-Cordeiro and I. Gurov, acting as Agents,
defendant,
APPLICATION for interim measures, including suspension of operation of point 19 of Table B of Annex I to Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26), in so far as the list of persons and entities whose funds and economic resources are frozen includes an entity designated under the name of ‘Safa Nicu’,
THE JUDGE HEARING APPLICATIONS FOR INTERIM MEASURES,
replacing the President of the General Court, in accordance with Article 106 of the Rules of Procedure of the General Court,
makes the following
Order
1 The applicant, Safa Nicu Sepahan Co., is a joint-stock company under Iranian law.
2 The present dispute arises from the inclusion of an entity designated under the name of ‘Safa Nicu’ in the list of persons and entities whose funds and economic resources are to be frozen, in the context of the regime of restrictive measures instituted with a view to putting pressure on the Islamic Republic of Iran to end its proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
3 In that regard, it must be noted that, on 23 December 2006, the United Nations Security Council (‘the Security Council’) adopted Resolution 1737 (2006), the annex to which lists persons and entities which, according to the Security Council, were involved in nuclear proliferation in Iran and whose funds and economic resources were to be frozen. That list has been regularly updated by the Security Council by means of various resolutions.
4 In order to implement Resolution 1737 (2006), on 27 February 2007, the Council of the European Union adopted Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2007 L 61, p. 49). That Common Position was repealed and replaced by Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran (OJ 2010 L 195, p. 39).
5 In addition to the freezing of funds and economic resources of the persons and entities designated by the relevant resolutions of the Security Council, provided for in Article 20(1)(a) of Decision 2010/413, Article 20(1)(b) of that decision provides for the freezing of funds and economic resources of persons and entities not designated by those resolutions but involved in the nuclear or ballistic missile programme of the Islamic Republic of Iran.
6 Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413 (OJ 2011 L 136, p. 65) included the entity named ‘Safa Nicu’ in the list of persons and entities referred to in Article 20(1)(b) of Decision 2010/413, which list is found in Annex II to Decision 2010/413.
7 With a view to implementing Common Position 2007/140, the Council adopted Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p.1). Regulation No 423/2007 was repealed by Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran (OJ 2010 L 281, p. 1). Article 16(2)(a) and (b) of Regulation No 961/2010 provides for the freezing of funds and economic resources belonging to persons and entities not covered by the relevant resolutions of the Security Council, which have been identified ‘in accordance with Article 20(1)(b) of … Decision 2010/413 …: as … being engaged in, directly associated with, or providing support for Iran’s proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems by Iran, including through involvement in the procurement of prohibited goods and technology, or being owned or controlled by such a person [or] entity …, including through illicit means, or acting on their behalf or at their direction; … being a natural or legal person, entity or body that has assisted a listed person, entity or body to evade or violate the provisions of this regulation, … Decision 2010/413 … or [Security Council Resolutions] 1737 (2006), … 1747 (2007), … 1803 (2008) and … 1929 (2010)’.
8 By its Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation No 961/2010 (OJ 2011 L 136, p. 26) (‘the contested regulation’), the Council included the entity designated under the name of ‘Safa Nicu’ in the list of persons and entities to which Article 16(2) of Regulation No 961/2010 applies, which list appears in Annex VIII to that regulation.
Procedure and forms of order sought by the parties
9 By application lodged at the Court Registry on 22 July 2011, the applicant brought an action seeking, in essence, annulment of the contested regulation in so far as it includes the entity designated under the name of ‘Safa Nicu’ in the list of persons and entities to which Article 16(2) of Regulation No 961/2010 applies, a declaration of the Council’s failure to act and compensation for the damage suffered.
10 By a separate document lodged at the Court Registry on the same date, the applicant brought the present application for interim measures, in which it claims, in essence, that the Judge hearing applications for interim measures should order the provisional suspension of operation of the contested regulation, in so far as it refers to ‘Safa Nicu’, and the removal of that entity.
11 In its written observations on the application for interim measures, lodged at the Court Registry on 22 August 2011, the Council contends that the judge hearing applications for interim measures should:
– dismiss the application for interim measures;
– order the applicant to pay the costs.
Law
12 It is apparent from reading Articles 278 TFEU and 279 TFEU, on the one hand, in conjunction with Article 256(1) TFEU, on the other, that the judge hearing applications for interim measures may, if he considers that the circumstances so require, order that application of an act contested before the General Court be suspended or prescribe any necessary interim measures.
13 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 judge hearing an application for interim measures may order suspension of operation of an act, or 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 interests of the party applying for it, 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 any one of them is absent (order of the President in Case C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing such an application must also weigh up the interests involved (order of the President in Case C‑445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).
14 Furthermore, in the context of that overall examination, the judge hearing an application for interim measures has a wide discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which the 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 (order of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
15 Moreover, it must be pointed out that Article 278 TFEU states the principle that actions do not have suspensory effect, since acts adopted by the European Union institutions are presumed to be lawful. It is therefore only exceptionally that the judge hearing applications for interim measures may order a suspension of operation of an act contested before the General Court or order other interim measures (see, to that effect, order of the President 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 the case-law cited).
16 Having regard to the documents in the case-file, the judge hearing the application for interim measures considers that he has all the information necessary to give a ruling on this application for interim measures without the need for the parties to present oral argument first.
17 First of all, it must be ascertained whether the condition relating to urgency is met.
18 The applicant claims, in essence, that it is suffering serious and irreparable harm, both financial and non-material, because of the contested regulation.
19 According to established case-law, urgency must be assessed in relation to the need for an interim order in order to avoid serious and irreparable damage being caused to the party seeking the interim measure. It is not necessary for the imminence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage – especially if its occurrence depends on a series of factors – is foreseeable with a sufficient degree of probability. However, the party invoking such damage is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (see order of the President of 8 June 2009 in Case T‑149/09 R Dover v Parliament, not published in the ECR, paragraph 25, and the case-law cited).
20 Firstly, the applicant alleges a financial loss of ‘several million euros’ and claims that its solvency is at risk.
21 In that regard, it must be borne in mind that, according to well-established case-law, damage of a purely pecuniary nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty, since it can normally be the subject of subsequent financial compensation (order of the President in Case C‑471/00 P(R) Commission v Cambridge Health Supplies [2001] ECR I-2865, paragraph 113, and order of the President in Case T‑339/00 R Bactria v Commission [2001] ECR II-1721, paragraph 94).
22 Thus, the fact that the contested regulation causes financial loss to the applicant does not, of itself, show that the condition relating to urgency is met.
23 The situation would be different if the applicant were able to prove that, if the interim measures applied for were not granted, it would be in a position that could imperil its existence before final decision in the main action. Since imminent disappearance from the market constitutes, in fact, damage both irreparable and serious, the adoption of the interim measure applied for appears justified in such circumstances (see order of the President of 9 June 2011 in Case T‑533/10 R DTS Distribuidora de Televisión Digital v Commission, not published in the ECR, paragraph 30, and the case-law cited).
24 However, although the applicant refers, succinctly to say the least, to a risk of insolvency, it must be noted that it supplies no information as to its general economic situation. Accordingly, it is not possible for the judge hearing the application for interim measures to ascertain whether the financial damage which the contested regulation could cause to the applicant would affect a sufficiently substantial part of its economic activities for it to be regarded as being such as to imperil its existence before final decision in the main action.
25 In the light of all the foregoing, it must be concluded that the condition relating to urgency is not met as regards the alleged financial damage.
26 Secondly, the applicant argues, in essence, that the resemblance between the name ‘Safa Nicu’ in the contested regulation and its company name causes it non-material damage, consisting of harm to its credit and reputation.
27 Although it is not impossible that the interim measures applied for might be able to remedy non-material damage of that kind, it must none the less be noted that the grant of such measures would not be able to remedy it any more than would, in the future, annulment of the acts concerned when the main action is decided (see, to that effect, order of the President of 27 August 2008 in Case T‑246/08 R Melli Bank v Council, not published in the ECR, paragraph 53). Since the purpose of proceedings for interim measures is not to ensure reparation for damage but rather to ensure the full effectiveness of the ruling to be given in the main case, it must be concluded, with regard to non-material damage, that the condition relating to urgency is also not met.
28 Consequently, the application for interim measures must be dismissed for lack of urgency, without it being necessary to examine whether the other conditions for granting of the interim measures applied for are met or whether the application for interim measures is admissible in so far as it seeks an order for the removal from the contested regulation of the entry ‘Safa Nicu’.
On those grounds,
THE JUDGE HEARING APPLICATIONS FOR INTERIM MEASURES
hereby orders:
1. The application for interim measures is dismissed.
2. Costs are reserved.
Luxembourg, 28 September 2011.