# 62015TO0207

ORDER OF THE PRESIDENT OF THE GENERAL COURT

16 July 2015 (
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‛Application for interim measures — Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Application for suspension of operation of a measure — Prima facie case — Balancing of interests — No urgency’

In Case T‐207/15 R,

National Iranian Tanker Company, established in Tehran (Iran), represented by T. de la Mare QC, M. Lester, J. Pobjoy, Barristers, R. Chandrasekera, S. Ashley and C. Murphy, Solicitors,

National Iranian Tanker Company

applicant,

v

Council of the European Union, represented by N. Rouam and M. Bishop, acting as Agents,

Council of the European Union

defendant,

APPLICATION for suspension of operation of Council Decision (CFSP) 2015/236 of 12 February 2015 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 39, p. 18) and Council Implementing Regulation (EU) 2015/230 of 12 February 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), in so far as each applies to the applicant,

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order (
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  )

Order

1

Background to the dispute

Background to the dispute

| 1 | The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.
  ... |
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1

The present case has been brought in connection with the restrictive measures introduced in order to apply pressure on the Islamic Republic of Iran to end proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems.

...

| 7 | The applicant, National Iranian Tanker Company, is an Iranian company specialised in the transport of crude oil and gas cargoes, operating a large fleet of tankers; it wrote several letters to the European Union informing it of its concerns as to the effects on its fleet of the restrictive measures taken against the Islamic Republic of Iran. In that connection, the applicant denied any connection with the Iranian nuclear programme and stated that it had already been privatised in 2000. |
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7

The applicant, National Iranian Tanker Company, is an Iranian company specialised in the transport of crude oil and gas cargoes, operating a large fleet of tankers; it wrote several letters to the European Union informing it of its concerns as to the effects on its fleet of the restrictive measures taken against the Islamic Republic of Iran. In that connection, the applicant denied any connection with the Iranian nuclear programme and stated that it had already been privatised in 2000.

| 8 | Nevertheless, on 15 October 2012, the Council included the applicant in the list of persons and entities subject to restrictive measures. |
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8

Nevertheless, on 15 October 2012, the Council included the applicant in the list of persons and entities subject to restrictive measures.

| 9 | First, the Council adopted Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58). According to recital 16 in the preamble to Decision 2012/635, in particular, Iranian State-owned entities engaged in the oil and gas sector were to be subject to restrictive measures, since they provided a substantial source of revenue for the Government of Iran. Consequently, Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, to the effect that restrictive measures are to be imposed on ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’. Article 2 of Decision 2012/635 listed the applicant in the table in Annex II to Decision 2010/413 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’. |
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9

First, the Council adopted Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413 (OJ 2012 L 282, p. 58). According to recital 16 in the preamble to Decision 2012/635, in particular, Iranian State-owned entities engaged in the oil and gas sector were to be subject to restrictive measures, since they provided a substantial source of revenue for the Government of Iran. Consequently, Article 1(8)(a) of Decision 2012/635 amended Article 20(1)(c) of Decision 2010/413, to the effect that restrictive measures are to be imposed on ‘other persons and entities not covered by Annex I that provide support to the Government of Iran and entities owned or controlled by them or persons and entities associated with them, as listed in Annex II’. Article 2 of Decision 2012/635 listed the applicant in the table in Annex II to Decision 2010/413 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

| 10 | Second, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation No 267/2012 (OJ 2012 L 282, p. 16). Article 1 of Regulation No 945/2012 listed the applicant in the table in Annex IX to Regulation No 267/2012 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’. |
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10

Second, the Council adopted Implementing Regulation (EU) No 945/2012 implementing Regulation No 267/2012 (OJ 2012 L 282, p. 16). Article 1 of Regulation No 945/2012 listed the applicant in the table in Annex IX to Regulation No 267/2012 containing the list of ‘[p]ersons and entities involved in nuclear or ballistic missile activities and persons and entities providing support to the Government of Iran’.

| 11 | The applicant was listed for the following reasons, which were identical in both cases: ‘Effectively controlled by the Iranian Government. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government.’ |
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11

The applicant was listed for the following reasons, which were identical in both cases: ‘Effectively controlled by the Iranian Government. Provides financial support to the Government of Iran through its shareholders which maintain ties with the Government.’

| 12 | Decision 2012/635 and Regulation No 945/2012 were sent to the applicant by letter of 16 October 2012. |
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12

Decision 2012/635 and Regulation No 945/2012 were sent to the applicant by letter of 16 October 2012.

| 13 | On 27 December 2012, the applicant brought, before the General Court, an action for annulment of those two measures, in so far as they concerned the applicant. |
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13

On 27 December 2012, the applicant brought, before the General Court, an action for annulment of those two measures, in so far as they concerned the applicant.

| 14 | In its judgment of 3 July 2014 in National Iranian Tanker Company v Council (T‐565/12, ECR, EU:T:2014:608; ‘the judgment in NITC’), the Court upheld the plea that the Council had committed a manifest error of assessment by including the applicant on the abovementioned lists. Therefore, upholding the action, it annulled Decision 2012/635 and Regulation No 945/2012, in so far as those acts concerned the applicant. |
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14

In its judgment of 3 July 2014 in National Iranian Tanker Company v Council (T‐565/12, ECR, EU:T:2014:608; ‘the judgment in NITC’), the Court upheld the plea that the Council had committed a manifest error of assessment by including the applicant on the abovementioned lists. Therefore, upholding the action, it annulled Decision 2012/635 and Regulation No 945/2012, in so far as those acts concerned the applicant.

National Iranian Tanker Company

Council

NITC

| 15 | As regards the temporal effects of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Court held that annulment with immediate effect of the measures at issue would allow the applicant to transfer all or part of its assets outside the European Union, without the Council being able, in good time, to correct the irregularities identified, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. According to the Court, relisting the applicant could not be ruled out automatically, since, in the course of a further review, the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. |
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15

As regards the temporal effects of the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Court held that annulment with immediate effect of the measures at issue would allow the applicant to transfer all or part of its assets outside the European Union, without the Council being able, in good time, to correct the irregularities identified, and consequently the effectiveness of any freezing of assets in relation to the applicant which might, in the future, be decided on by the Council might be seriously and irreversibly prejudiced. According to the Court, relisting the applicant could not be ruled out automatically, since, in the course of a further review, the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.

NITC

| 16 | Consequently, the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), maintained the effects of Decision 2012/635 and Regulation No 945/2012 as regards the applicant until the expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the date of the dismissal of that appeal. |
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16

Consequently, the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), maintained the effects of Decision 2012/635 and Regulation No 945/2012 as regards the applicant until the expiry of the period for bringing an appeal stated in the first paragraph of Article 56 of the Statute of the Court of Justice of the European Union or, if an appeal has been brought within that period, until the date of the dismissal of that appeal.

NITC

| 17 | The Council did not appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608). |
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17

The Council did not appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608).

NITC

| 18 | However, after having informed the applicant by letter of 23 October 2014 that it intended to include its name on the abovementioned lists again and following an exchange of correspondence between the parties, the Council adopted, on 12 February 2015, Decision (CFSP) 2015/236 amending Decision 2010/413 (OJ 2015 L 39, p. 18) and Implementing Regulation (EU) No 2015/230 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), by which the applicant was included again on the list of persons and entities subject to restrictive measures (‘the contested measures’). |
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18

However, after having informed the applicant by letter of 23 October 2014 that it intended to include its name on the abovementioned lists again and following an exchange of correspondence between the parties, the Council adopted, on 12 February 2015, Decision (CFSP) 2015/236 amending Decision 2010/413 (OJ 2015 L 39, p. 18) and Implementing Regulation (EU) No 2015/230 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), by which the applicant was included again on the list of persons and entities subject to restrictive measures (‘the contested measures’).

| 19 | That relisting of the applicant was based on the following grounds, identical in both cases:
  ‘The [applicant] provides financial support to the Government of Iran through its shareholders the Iranian State Retirement Fund, the Iranian Social Security Organization, and the Oil Industry Employees Retirement and Savings Fund, which are State-controlled entities. Moreover, [the applicant] is one of the largest operators of crude oil carriers in the world and one of the main transporters of Iranian crude oil. Accordingly, [the applicant] provides logistical support to the Government of Iran through the transport of Iranian oil.’ |
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19

That relisting of the applicant was based on the following grounds, identical in both cases:

‘The [applicant] provides financial support to the Government of Iran through its shareholders the Iranian State Retirement Fund, the Iranian Social Security Organization, and the Oil Industry Employees Retirement and Savings Fund, which are State-controlled entities. Moreover, [the applicant] is one of the largest operators of crude oil carriers in the world and one of the main transporters of Iranian crude oil. Accordingly, [the applicant] provides logistical support to the Government of Iran through the transport of Iranian oil.’

| 20 | By letter of 16 February 2015, the Council sent a copy of the contested measures to the applicant. |
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20

By letter of 16 February 2015, the Council sent a copy of the contested measures to the applicant.

Procedure and forms of order sought

Procedure and forms of order sought

| 21 | By application lodged at the Court Registry on 24 April 2015, the applicant brought an action seeking the annulment of the contested measures in so far as they concern the applicant or, in the alternative, requesting that Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, as amended, be declared inapplicable in respect of the applicant, raising an objection of illegality on the basis of Article 277 TFEU. In support of its action, it argues, in essence, that the Council, by penalising it again on the basis of the same objections as those which had been declared unlawful in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), deprived it of its right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union, while infringing the principle of res judicata and the principle of legal certainty. In addition, the Council committed manifest errors of assessment and breached the applicant’s rights of defence and fundamental right to property. |
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21

By application lodged at the Court Registry on 24 April 2015, the applicant brought an action seeking the annulment of the contested measures in so far as they concern the applicant or, in the alternative, requesting that Article 20(1)(c) of Decision 2010/413, as amended, and Article 23(2)(d) of Regulation No 267/2012, as amended, be declared inapplicable in respect of the applicant, raising an objection of illegality on the basis of Article 277 TFEU. In support of its action, it argues, in essence, that the Council, by penalising it again on the basis of the same objections as those which had been declared unlawful in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), deprived it of its right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights of the European Union, while infringing the principle of res judicata and the principle of legal certainty. In addition, the Council committed manifest errors of assessment and breached the applicant’s rights of defence and fundamental right to property.

NITC

res judicata

| 22 | 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 President of the General Court should:
  
  
  
  
  
  — | suspend the effect of the contested measures in so far as they apply to the applicant, pending the determination of the main application; |
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22

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 President of the General Court should:

—

suspend the effect of the contested measures in so far as they apply to the applicant, pending the determination of the main application;

| — | order the Council to pay the costs. |
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—

order the Council to pay the costs.

...

Law

Law

...

The prima facie case

The prima facie case

...

| 39 | In that regard, it must be pointed out that, according to established case-law, recalled by the Council, where a measure adopted by an EU institution has been annulled for formal or substantive defects, that institution is entitled to adopt afresh an identical measure, this time observing the formal rules and ensuring that the new measure is not vitiated by the same substantive defect (see, to that effect, judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‐256/07, ECR, EU:T:2008:461, paragraphs 65 and 75 and the case-law cited, and 13 December 2012 in Greece v Commission, T‐588/10, EU:T:2012:688, paragraphs 476 and 478). |
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39

In that regard, it must be pointed out that, according to established case-law, recalled by the Council, where a measure adopted by an EU institution has been annulled for formal or substantive defects, that institution is entitled to adopt afresh an identical measure, this time observing the formal rules and ensuring that the new measure is not vitiated by the same substantive defect (see, to that effect, judgments of 23 October 2008 in People’s Mojahedin Organization of Iran v Council, T‐256/07, ECR, EU:T:2008:461, paragraphs 65 and 75 and the case-law cited, and 13 December 2012 in Greece v Commission, T‐588/10, EU:T:2012:688, paragraphs 476 and 478).

People’s Mojahedin Organization of Iran

Council

Greece

Commission

| 40 | Furthermore, specifically as regards the present case, after pointing out that the reasons for the initial inclusion of the applicant on the lists at issue were not supported by sufficient evidence, the Court took care to state, in paragraph 77 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014: 608), that the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard. |
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40

Furthermore, specifically as regards the present case, after pointing out that the reasons for the initial inclusion of the applicant on the lists at issue were not supported by sufficient evidence, the Court took care to state, in paragraph 77 of the judgment in NITC, cited in paragraph 14 above (EU:T:2014: 608), that the Council had the possibility of again listing the applicant on the basis of reasons which are supported to the requisite legal standard.

NITC

| 41 | The Council concludes from this, in essence, that it was entitled to rely, in this case, on documents dating from before the initial listing of the applicant even if it had not submitted those documents to justify the initial listing and to use those ‘old’ documents to support the new reasons for listing the applicant, such as the ‘logistical support’ provided to the Government of Iran, especially since it acted in this way specifically to meet the criticisms contained in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), and it put forward new evidence that the applicant in fact provided ‘logistical support’ to that government. |
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41

The Council concludes from this, in essence, that it was entitled to rely, in this case, on documents dating from before the initial listing of the applicant even if it had not submitted those documents to justify the initial listing and to use those ‘old’ documents to support the new reasons for listing the applicant, such as the ‘logistical support’ provided to the Government of Iran, especially since it acted in this way specifically to meet the criticisms contained in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), and it put forward new evidence that the applicant in fact provided ‘logistical support’ to that government.

NITC

| 42 | The applicant claims, however, that the Council, if it is not to infringe the applicant’s fundamental right to an effective remedy, could not, in this case, either put forward grounds for listing the applicant that it could have already relied on at the time of the initial listing in October 2012 or present evidence that was already available to it on the date of that listing, especially since, according to the applicant, the factual allegations on which the contested measures are based are identical in substance to those on which its initial listing had been based and which were criticised in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608). |
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42

The applicant claims, however, that the Council, if it is not to infringe the applicant’s fundamental right to an effective remedy, could not, in this case, either put forward grounds for listing the applicant that it could have already relied on at the time of the initial listing in October 2012 or present evidence that was already available to it on the date of that listing, especially since, according to the applicant, the factual allegations on which the contested measures are based are identical in substance to those on which its initial listing had been based and which were criticised in the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608).

NITC

| 43 | The President of the General Court considers that the discussion of the issues by the parties reveals that there is a legal disagreement over the scope of Article 47 of the Charter of Fundamental Rights and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, both of which enshrine the right to an effective remedy, that is to say, to effective judicial protection ‘in practice as well as in law’ (judgment of the European Court of Human Rights, Ramadhi and others v. Albania, no. 38222/02, § 48, 13 November 2007). The issue to be resolved is whether the Council is entitled, in view of that right to an effective remedy, to rely on the case-law cited in paragraphs 39 and 40 above in order to correct the findings of illegality which led to the annulment of a restrictive measure, by adopting a new measure which has the same practical effect as the earlier measure, where the factual situation has not changed in substance. |
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43

The President of the General Court considers that the discussion of the issues by the parties reveals that there is a legal disagreement over the scope of Article 47 of the Charter of Fundamental Rights and Article 13 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950, both of which enshrine the right to an effective remedy, that is to say, to effective judicial protection ‘in practice as well as in law’ (judgment of the European Court of Human Rights, Ramadhi and others v. Albania, no. 38222/02, § 48, 13 November 2007). The issue to be resolved is whether the Council is entitled, in view of that right to an effective remedy, to rely on the case-law cited in paragraphs 39 and 40 above in order to correct the findings of illegality which led to the annulment of a restrictive measure, by adopting a new measure which has the same practical effect as the earlier measure, where the factual situation has not changed in substance.

Ramadhi and others v. Albania

| 44 | The sensitive nature of that question lies, in particular, in the fact that the restrictive measures adopted by the Council in the form of a regulation benefit from the protection conferred by the second paragraph of Article 60 of the Statute of the Court of Justice, to the effect that a decision declaring such a regulation to be void takes effect only as from the expiry of the period for bringing an appeal or, if an appeal is brought within that period, as from the date of dismissal of the appeal by the Court of Justice (see paragraphs 55 to 57 below). It follows that, if it were able in fact to act in the manner described in paragraph 43 above, the Council would be able — notwithstanding the annulment, on the basis that the alleged reasons for the listing were unlawful or due to a lack of sufficient evidence, of each of its successive regulations imposing restrictive measures in respect of the same company — to maintain in force, by systematically bringing appeals, an uninterrupted series of such measures, even without the factual context forming the basis of those measures and their annulment having changed in substance. |
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44

The sensitive nature of that question lies, in particular, in the fact that the restrictive measures adopted by the Council in the form of a regulation benefit from the protection conferred by the second paragraph of Article 60 of the Statute of the Court of Justice, to the effect that a decision declaring such a regulation to be void takes effect only as from the expiry of the period for bringing an appeal or, if an appeal is brought within that period, as from the date of dismissal of the appeal by the Court of Justice (see paragraphs 55 to 57 below). It follows that, if it were able in fact to act in the manner described in paragraph 43 above, the Council would be able — notwithstanding the annulment, on the basis that the alleged reasons for the listing were unlawful or due to a lack of sufficient evidence, of each of its successive regulations imposing restrictive measures in respect of the same company — to maintain in force, by systematically bringing appeals, an uninterrupted series of such measures, even without the factual context forming the basis of those measures and their annulment having changed in substance.

| 45 | It must therefore be considered whether the observance of the fundamental right to an effective remedy does not require that there be an element of a time-bar in subsequent legal proceedings which may be brought by the same company, which would require the Council to include in its first file compiled for restrictive measures all the reasons for inclusion and incriminating evidence which it could easily obtain by the date on which the file is compiled, and which would prevent it, if the Court censures those reasons and evidence, from using them to justify a relisting of the company. That would mean such a relisting could be envisaged only where new and relevant facts or evidence have emerged, while the Council would be prohibited from using, during future relistings, evidence that it had admittedly not yet invoked, but which could already have been invoked on the date of the first listing. |
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45

It must therefore be considered whether the observance of the fundamental right to an effective remedy does not require that there be an element of a time-bar in subsequent legal proceedings which may be brought by the same company, which would require the Council to include in its first file compiled for restrictive measures all the reasons for inclusion and incriminating evidence which it could easily obtain by the date on which the file is compiled, and which would prevent it, if the Court censures those reasons and evidence, from using them to justify a relisting of the company. That would mean such a relisting could be envisaged only where new and relevant facts or evidence have emerged, while the Council would be prohibited from using, during future relistings, evidence that it had admittedly not yet invoked, but which could already have been invoked on the date of the first listing.

| 46 | The present case seems to illustrate the need for the introduction of such an element of a time-bar: the applicant’s economic activity transporting Iranian oil did not change between October 2012, the date of the initial listing, and the date of adoption of the contested measures in the present case. Clearly, therefore, it is a case of a logistical service provided to customers who ordered that transport. It is not apparent from the file that the Council would have been prevented from justifying the initial listing already on the ground of ‘logistical support’. The same applies in respect of the composition of the applicant’s shareholding, which appears not to have changed between 2012 and 2015. The Council, which had set out the precise shareholding structure during the proceedings leading to the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608, paragraph 51), has not contended that the ground of ‘financial support’ based on that shareholding would not have been available at the time of the applicant’s initial listing in October 2012. As regards the evidence in support of the contested measures, the Council specifically referred only to five documents in its observations (footnote 28). Four of those documents date from before October 2012, while the only one with a later date (February 2014) does not appear to contain anything novel which would be relevant since it refers to the applicant’s role as an Iranian oil transporter and the importance of that role in the Iranian economy, which is not in dispute. |
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46

The present case seems to illustrate the need for the introduction of such an element of a time-bar: the applicant’s economic activity transporting Iranian oil did not change between October 2012, the date of the initial listing, and the date of adoption of the contested measures in the present case. Clearly, therefore, it is a case of a logistical service provided to customers who ordered that transport. It is not apparent from the file that the Council would have been prevented from justifying the initial listing already on the ground of ‘logistical support’. The same applies in respect of the composition of the applicant’s shareholding, which appears not to have changed between 2012 and 2015. The Council, which had set out the precise shareholding structure during the proceedings leading to the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608, paragraph 51), has not contended that the ground of ‘financial support’ based on that shareholding would not have been available at the time of the applicant’s initial listing in October 2012. As regards the evidence in support of the contested measures, the Council specifically referred only to five documents in its observations (footnote 28). Four of those documents date from before October 2012, while the only one with a later date (February 2014) does not appear to contain anything novel which would be relevant since it refers to the applicant’s role as an Iranian oil transporter and the importance of that role in the Iranian economy, which is not in dispute.

NITC

| 47 | It should be added that the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), having annulled the initial listing of the applicant, became res judicata. It is true that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and can be invoked only if the action which gave rise to that decision was between the same parties, had the same subject-matter and was based on the same cause of action (see, to that effect, judgment of 25 February 2015 in Walton v Commission, T‐261/14 P, ECR-SC, EU:T:2015:110, paragraphs 35 and 36 and the case-law cited). It is therefore not possible for the applicant to claim, in respect of the contested measures, that the judgment in NITC is, strictly speaking, res judicata since those measures relate to a different period of the applicant’s economic activity than that which was the subject-matter of the measures which had been annulled by that judgment. However, it cannot be overlooked that that activity of the applicant, consisting of the transport of Iranian oil, has remained unchanged in substance and that the difference in the periods of activity referred to is the result of the applicant’s relisting, carried out by the Council on a factual basis that has also not changed in substance. It could therefore be considered that, in the present case, the application of the concept of res judicata is excluded only on account of the Council’s action in extending artificially the restrictive measures imposed on the applicant, by now presenting evidence which could have been invoked at the time of the applicant’s initial listing. Such an approach, even if it is not considered incompatible with the concept of res judicata, could, in any event, contribute to an infringement of the applicant’s right to an effective remedy. |
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47

It should be added that the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), having annulled the initial listing of the applicant, became res judicata. It is true that res judicata extends only to the matters of fact and law actually or necessarily settled by the judicial decision in question and can be invoked only if the action which gave rise to that decision was between the same parties, had the same subject-matter and was based on the same cause of action (see, to that effect, judgment of 25 February 2015 in Walton v Commission, T‐261/14 P, ECR-SC, EU:T:2015:110, paragraphs 35 and 36 and the case-law cited). It is therefore not possible for the applicant to claim, in respect of the contested measures, that the judgment in NITC is, strictly speaking, res judicata since those measures relate to a different period of the applicant’s economic activity than that which was the subject-matter of the measures which had been annulled by that judgment. However, it cannot be overlooked that that activity of the applicant, consisting of the transport of Iranian oil, has remained unchanged in substance and that the difference in the periods of activity referred to is the result of the applicant’s relisting, carried out by the Council on a factual basis that has also not changed in substance. It could therefore be considered that, in the present case, the application of the concept of res judicata is excluded only on account of the Council’s action in extending artificially the restrictive measures imposed on the applicant, by now presenting evidence which could have been invoked at the time of the applicant’s initial listing. Such an approach, even if it is not considered incompatible with the concept of res judicata, could, in any event, contribute to an infringement of the applicant’s right to an effective remedy.

NITC

res judicata

res judicata

Walton

Commission

NITC

res judicata

res judicata

res judicata

| 48 | It follows that it may be necessary, from the aspect of the right to an effective remedy, to apply a restrictive interpretation, in the sense set out in paragraph 45 above, to the case-law cited in paragraphs 39 and 40 above. |
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48

It follows that it may be necessary, from the aspect of the right to an effective remedy, to apply a restrictive interpretation, in the sense set out in paragraph 45 above, to the case-law cited in paragraphs 39 and 40 above.

| 49 | Nevertheless it may be argued against such a restrictive interpretation that the scope of the right to an effective remedy, conferred on an undertaking which is the subject of restrictive measures, must not be unduly limited just to an action for annulment coupled with an application for suspension of operation of a measure, even though that undertaking has the possibility of pleading the illegality of the measures imposed in the context of an action to obtain reparation, by the Council, of the harm suffered by reason of that illegality. In another context, that of disputes relating to public procurement, the EU judicature has held that the unsuccessful tenderer’s right to an effective remedy had to be regarded as having been respected, even though that tenderer was not able to validly challenge the loss of the contract at issue by bringing an action for annulment coupled with an application for interim measures, since it had the possibility of obtaining damages by bringing an action for compensation (see, to that effect, order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C‐35/15 P(R), ECR, EU:C:2015:275, paragraphs 34, 35 and 38). The President of the General Court considers that it will be for the court hearing the main action to examine, if necessary, whether compelling grounds exist which would rule out extending that case-law to disputes concerning restrictive measures. |
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49

Nevertheless it may be argued against such a restrictive interpretation that the scope of the right to an effective remedy, conferred on an undertaking which is the subject of restrictive measures, must not be unduly limited just to an action for annulment coupled with an application for suspension of operation of a measure, even though that undertaking has the possibility of pleading the illegality of the measures imposed in the context of an action to obtain reparation, by the Council, of the harm suffered by reason of that illegality. In another context, that of disputes relating to public procurement, the EU judicature has held that the unsuccessful tenderer’s right to an effective remedy had to be regarded as having been respected, even though that tenderer was not able to validly challenge the loss of the contract at issue by bringing an action for annulment coupled with an application for interim measures, since it had the possibility of obtaining damages by bringing an action for compensation (see, to that effect, order of 23 April 2015 in Commission v Vanbreda Risk & Benefits, C‐35/15 P(R), ECR, EU:C:2015:275, paragraphs 34, 35 and 38). The President of the General Court considers that it will be for the court hearing the main action to examine, if necessary, whether compelling grounds exist which would rule out extending that case-law to disputes concerning restrictive measures.

Commission

Vanbreda Risk & Benefits

| 50 | It follows from all of the foregoing that it must be concluded that there is a major legal disagreement whose resolution is not immediately obvious and which therefore calls for a detailed examination that must be the subject of the main proceedings, such that, prima facie, the action does not appear to be unfounded (see, to that effect, order in Commission v Pilkington Group, EU:C:2013:558, paragraph 67 and the case-law cited). |
| --- | --- |

50

It follows from all of the foregoing that it must be concluded that there is a major legal disagreement whose resolution is not immediately obvious and which therefore calls for a detailed examination that must be the subject of the main proceedings, such that, prima facie, the action does not appear to be unfounded (see, to that effect, order in Commission v Pilkington Group, EU:C:2013:558, paragraph 67 and the case-law cited).

Commission

Pilkington Group

The weighing-up of the interests

The weighing-up of the interests

...

| 52 | As regards disputes relating to restrictive measures, it has been repeatedly held that a suspension of operation of restrictive measures could prevent their being fully effective in the event of the dismissal of the main application and therefore make it impossible to reverse the situation. Such a suspension of operation would make it possible for the entity subject to those measures to withdraw immediately all its funds deposited at the banks which are obliged to ensure that they are frozen and to empty its bank accounts before judgment is delivered on the merits. Thus it would be possible to circumvent the purpose of the restrictive measures taken against it, which is to put pressure on the Islamic Republic of Iran so that it puts an end to nuclear activities, even though the judge hearing the application for interim measures must not neutralise in advance the effects of the decision to be given subsequently in the main action (see, to that effect, orders of 14 June 2012 in Qualitest FZE v Council, C‐644/11 P(R), EU:C:2012:354, paragraphs 73 to 77, and Iranian Offshore Engineering & Construction v Council, EU:T:2013:118, paragraph 34 and the case-law cited). |
| --- | --- |

52

As regards disputes relating to restrictive measures, it has been repeatedly held that a suspension of operation of restrictive measures could prevent their being fully effective in the event of the dismissal of the main application and therefore make it impossible to reverse the situation. Such a suspension of operation would make it possible for the entity subject to those measures to withdraw immediately all its funds deposited at the banks which are obliged to ensure that they are frozen and to empty its bank accounts before judgment is delivered on the merits. Thus it would be possible to circumvent the purpose of the restrictive measures taken against it, which is to put pressure on the Islamic Republic of Iran so that it puts an end to nuclear activities, even though the judge hearing the application for interim measures must not neutralise in advance the effects of the decision to be given subsequently in the main action (see, to that effect, orders of 14 June 2012 in Qualitest FZE v Council, C‐644/11 P(R), EU:C:2012:354, paragraphs 73 to 77, and Iranian Offshore Engineering & Construction v Council, EU:T:2013:118, paragraph 34 and the case-law cited).

Qualitest FZE

Council

Iranian Offshore Engineering & Construction

Council

| 53 | In the present case, it is clear that by not bringing an appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Council, itself, enabled the applicant to take full advantage of the effects of the annulment by that judgment of the restrictive measures which had been imposed on it on 15 October 2012 (see paragraphs 9 and 10 above), since it enjoyed unencumbered access, between mid-September 2014 and mid-February 2015, to its assets following the unfreezing of its bank accounts. It follows that, given that situation, the Council can hardly contend that there is a risk that the purpose of the restrictive measures could be circumvented. |
| --- | --- |

53

In the present case, it is clear that by not bringing an appeal against the judgment in NITC, cited in paragraph 14 above (EU:T:2014:608), the Council, itself, enabled the applicant to take full advantage of the effects of the annulment by that judgment of the restrictive measures which had been imposed on it on 15 October 2012 (see paragraphs 9 and 10 above), since it enjoyed unencumbered access, between mid-September 2014 and mid-February 2015, to its assets following the unfreezing of its bank accounts. It follows that, given that situation, the Council can hardly contend that there is a risk that the purpose of the restrictive measures could be circumvented.

NITC

| 54 | However, that reasoning is valid only for the earlier restrictive measures which the Council adopted on 15 October 2012. By contrast, as regards the new restrictive measures imposed on the applicant by the contested measures, it cannot, at the outset, be ruled out that the court hearing the main application, refusing to adopt the restrictive interpretation mentioned in paragraph 48 above, will dismiss the action for annulment brought by the applicant. In those circumstances, account should be taken again of the purpose of those measures and the applicant should be prevented from being able to proceed immediately to withdraw the funds which it may have accumulated in its bank accounts in the five months in which there were no restrictive measures. |
| --- | --- |

54

However, that reasoning is valid only for the earlier restrictive measures which the Council adopted on 15 October 2012. By contrast, as regards the new restrictive measures imposed on the applicant by the contested measures, it cannot, at the outset, be ruled out that the court hearing the main application, refusing to adopt the restrictive interpretation mentioned in paragraph 48 above, will dismiss the action for annulment brought by the applicant. In those circumstances, account should be taken again of the purpose of those measures and the applicant should be prevented from being able to proceed immediately to withdraw the funds which it may have accumulated in its bank accounts in the five months in which there were no restrictive measures.

| 55 | In any event, according to well-established case-law, regulations laying down the restrictive measures, such as Regulation No 2015/230 (see paragraph 18 above) resemble both measures of general application in that they impose on a category of addressees determined in a general and abstract manner a prohibition on making funds available to persons and entities mentioned in their annexes and also a bundle of individual decisions affecting those persons and entities (see, to that effect, judgments of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‐402/05 P and C‐415/05 P, ECR, EU:C:2008:461, paragraphs 241 to 243; 16 November 2011 in Bank Melli Iran v Council, C‐548/09 P, ECR, EU:C:2011:735, paragraph 45; and 23 April 2013 in Gbagbo and Others v Council, C‐478/11 P to C‐482/11 P, ECR, EU:C:2013:258, paragraph 56). That prohibition is addressed to whoever might actually hold the funds in question (see, to that effect, judgment of 22 January 2015 in Bank Tejarat v Council, T‐176/12, EU:T:2015:43, paragraph 68). The fact that the measure at issue must be notified individually to those whose funds will be frozen does not affect its general application against all those who may be in possession of such funds (see Opinions of Advocate General Sharpston in Council v Bank Mellat, C‐176/13 P, ECR, EU:C:2015:130, and Council v Bank Saderat Iran, C‐200/13 P, ECR, EU:C:2015:134, paragraph 177). |
| --- | --- |

55

In any event, according to well-established case-law, regulations laying down the restrictive measures, such as Regulation No 2015/230 (see paragraph 18 above) resemble both measures of general application in that they impose on a category of addressees determined in a general and abstract manner a prohibition on making funds available to persons and entities mentioned in their annexes and also a bundle of individual decisions affecting those persons and entities (see, to that effect, judgments of 3 September 2008 in Kadi and Al Barakaat International Foundation v Council and Commission, C‐402/05 P and C‐415/05 P, ECR, EU:C:2008:461, paragraphs 241 to 243; 16 November 2011 in Bank Melli Iran v Council, C‐548/09 P, ECR, EU:C:2011:735, paragraph 45; and 23 April 2013 in Gbagbo and Others v Council, C‐478/11 P to C‐482/11 P, ECR, EU:C:2013:258, paragraph 56). That prohibition is addressed to whoever might actually hold the funds in question (see, to that effect, judgment of 22 January 2015 in Bank Tejarat v Council, T‐176/12, EU:T:2015:43, paragraph 68). The fact that the measure at issue must be notified individually to those whose funds will be frozen does not affect its general application against all those who may be in possession of such funds (see Opinions of Advocate General Sharpston in Council v Bank Mellat, C‐176/13 P, ECR, EU:C:2015:130, and Council v Bank Saderat Iran, C‐200/13 P, ECR, EU:C:2015:134, paragraph 177).

Kadi and Al Barakaat International Foundation

Council and Commission

Bank Melli Iran

Council

Gbagbo and Others

Council

Bank Tejarat

Council

Council

Bank Mellat

Council

Bank Saderat Iran

| 56 | As already stated in paragraph 44 above as regards the temporal effects of the annulment of a regulation laying down restrictive measures, the second paragraph of Article 60 of the Statute of the Court of Justice provides that decisions of the General Court declaring such a measure to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of dismissal of that appeal by the Court of Justice. That maintaining in force of the validity of such measures, which is justified by the need to give the Council the chance to correct the finding of illegality by adopting new measures, has been systematically extended to decisions imposing restrictive measures, and this by virtue of the second paragraph of Article 264 TFEU, which authorises this Court to indicate which of the effects of the measure it has declared void are to be considered definitive, on the ground that a difference between the date when the annulment of a regulation imposing a particular restrictive measure takes effect and that of the annulment of a decision imposing an identical measure would be likely to seriously jeopardise legal certainty (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraphs 37 and 38 and the case-law cited). |
| --- | --- |

56

As already stated in paragraph 44 above as regards the temporal effects of the annulment of a regulation laying down restrictive measures, the second paragraph of Article 60 of the Statute of the Court of Justice provides that decisions of the General Court declaring such a measure to be void are to take effect only as from the date of expiry of the period for bringing an appeal or, if an appeal has been brought within that period, as from the date of dismissal of that appeal by the Court of Justice. That maintaining in force of the validity of such measures, which is justified by the need to give the Council the chance to correct the finding of illegality by adopting new measures, has been systematically extended to decisions imposing restrictive measures, and this by virtue of the second paragraph of Article 264 TFEU, which authorises this Court to indicate which of the effects of the measure it has declared void are to be considered definitive, on the ground that a difference between the date when the annulment of a regulation imposing a particular restrictive measure takes effect and that of the annulment of a decision imposing an identical measure would be likely to seriously jeopardise legal certainty (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraphs 37 and 38 and the case-law cited).

Iranian Offshore Engineering & Construction

Council

| 57 | Therefore, were the Court, upon conclusion of the main action, to annul Regulation No 2015/230 with the suspensory effect provided for in the second paragraph of Article 60 of the Statute of the Court of Justice, it would also annul Decision 2015/236 (see paragraph 18 above), aligning, in all probability, the date when that annulment takes effect, pursuant to the second paragraph of Article 264 TFEU, with the date when the annulment of Regulation No 2015/230 takes effect. In any event, even if the temporal effects of an annulment of Decision 2015/236 were not aligned with those of an annulment of Regulation No 2015/230, the fact remains that the restrictive measures taken against the applicant under that regulation would have to be maintained, in accordance with the second paragraph of Article 60 of the Statute of the Court of Justice, beyond the date of delivery of the judgment annulling the measures, such that the applicant’s name would not, in any case, be immediately erased by reason of that judgment. |
| --- | --- |

57

Therefore, were the Court, upon conclusion of the main action, to annul Regulation No 2015/230 with the suspensory effect provided for in the second paragraph of Article 60 of the Statute of the Court of Justice, it would also annul Decision 2015/236 (see paragraph 18 above), aligning, in all probability, the date when that annulment takes effect, pursuant to the second paragraph of Article 264 TFEU, with the date when the annulment of Regulation No 2015/230 takes effect. In any event, even if the temporal effects of an annulment of Decision 2015/236 were not aligned with those of an annulment of Regulation No 2015/230, the fact remains that the restrictive measures taken against the applicant under that regulation would have to be maintained, in accordance with the second paragraph of Article 60 of the Statute of the Court of Justice, beyond the date of delivery of the judgment annulling the measures, such that the applicant’s name would not, in any case, be immediately erased by reason of that judgment.

| 58 | It is settled case-law that the procedure for interim relief is merely ancillary to the main action to which it is an adjunct and aims simply to guarantee the full effectiveness of the future decision on the main action (see orders of 16 November 2012 in Akzo Nobel and Others v Commission, T‐345/12 R, ECR, EU:T:2012:605, paragraph 25 and the case-law cited, and 16 June 2015 in Alcogroup and Alcodis v Commission, T‐274/15 R, EU:T:2015:389, paragraph 20 and the case-law cited) and that, under Article 158(3) of the Rules of Procedure, any interim measures ordered by the judge hearing the application automatically lapse when final judgment is delivered. It follows that the applicant’s interest in having its funds provisionally unfrozen relates to an advantage that it could not have secured even through a judgment annulling the contested measures. Such a judgment could produce the practical effects sought by the applicant — namely the removal of its name from the list of entities whose funds are frozen — only from a date after the date on which the judgment is delivered, whereas on that date, the judge hearing applications for interim relief at first instance would no longer have any jurisdiction ratione temporis and, in any event, the applicant’s name could be maintained on the list as a result of a new restrictive measure replacing, within the period laid down in the second paragraph of Article 60 of the Statute of the Court of Justice, the measures annulled. In those circumstances, the applicant’s interest in securing, through proceedings for interim relief, the provisional unfreezing of its funds, cannot be protected by the judge hearing the application for interim measures (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 40). |
| --- | --- |

58

It is settled case-law that the procedure for interim relief is merely ancillary to the main action to which it is an adjunct and aims simply to guarantee the full effectiveness of the future decision on the main action (see orders of 16 November 2012 in Akzo Nobel and Others v Commission, T‐345/12 R, ECR, EU:T:2012:605, paragraph 25 and the case-law cited, and 16 June 2015 in Alcogroup and Alcodis v Commission, T‐274/15 R, EU:T:2015:389, paragraph 20 and the case-law cited) and that, under Article 158(3) of the Rules of Procedure, any interim measures ordered by the judge hearing the application automatically lapse when final judgment is delivered. It follows that the applicant’s interest in having its funds provisionally unfrozen relates to an advantage that it could not have secured even through a judgment annulling the contested measures. Such a judgment could produce the practical effects sought by the applicant — namely the removal of its name from the list of entities whose funds are frozen — only from a date after the date on which the judgment is delivered, whereas on that date, the judge hearing applications for interim relief at first instance would no longer have any jurisdiction ratione temporis and, in any event, the applicant’s name could be maintained on the list as a result of a new restrictive measure replacing, within the period laid down in the second paragraph of Article 60 of the Statute of the Court of Justice, the measures annulled. In those circumstances, the applicant’s interest in securing, through proceedings for interim relief, the provisional unfreezing of its funds, cannot be protected by the judge hearing the application for interim measures (see, to that effect, order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 40).

Akzo Nobel and Others

Commission

Alcogroup and Alcodis

Commission

ratione temporis

Iranian Offshore Engineering & Construction

Council

| 59 | It follows that the balance of the various interests in the case is not in favour of the applicant. |
| --- | --- |

59

It follows that the balance of the various interests in the case is not in favour of the applicant.

Urgency

Urgency

...

| 63 | In the present case, it must be held at the outset that, as is clear from the details provided by the applicant in its reply of 4 June 2015, the alleged harm is financial in nature. However, although the applicant provided, in that reply, figures relating to its economic activity, it has not submitted any documentary evidence in support of those figures.
  ... |
| --- | --- |

63

In the present case, it must be held at the outset that, as is clear from the details provided by the applicant in its reply of 4 June 2015, the alleged harm is financial in nature. However, although the applicant provided, in that reply, figures relating to its economic activity, it has not submitted any documentary evidence in support of those figures.

...

| 66 | As regards the irreparable nature of that harm, it is settled case-law that damage of such a financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since financial compensation for that damage can normally be obtained subsequently. In such circumstances, the interim measures sought will be justified only if it appears that, without those measures, the party seeking them would be in a position that could jeopardise its financial viability before final judgment is given in the main action or that its market share would be irremediably and substantially affected, in the light, in particular, of the size of its business (see order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 20 and the case-law cited). |
| --- | --- |

66

As regards the irreparable nature of that harm, it is settled case-law that damage of such a financial nature cannot, save in exceptional circumstances, be regarded as irreparable or even as being reparable only with difficulty since financial compensation for that damage can normally be obtained subsequently. In such circumstances, the interim measures sought will be justified only if it appears that, without those measures, the party seeking them would be in a position that could jeopardise its financial viability before final judgment is given in the main action or that its market share would be irremediably and substantially affected, in the light, in particular, of the size of its business (see order in Iranian Offshore Engineering & Construction v Council, cited in paragraph 51 above, EU:T:2013:118, paragraph 20 and the case-law cited).

Iranian Offshore Engineering & Construction

Council

| 67 | As regards the present case, it has already been found above that the applicant had lost, following the restrictive measures taken against it, its entire market share in the shipping sector in the EU. However, that loss is precisely one of the objectives pursued by those measures and testifies rather to their effectiveness. On this view, such a loss can be relevant in the context of disputes relating to restrictive measures, only where its irreparable nature is established. On this point, the applicant has remained silent. It has, in particular, failed to show that obstacles of a structural or legal nature prevent it from regaining a significant proportion of the lost market share. The harm claimed in this respect cannot therefore be considered to be irreparable (see, to that effect, order of 24 March 2009 in Cheminova and Others v Commission, C‐60/08 P(R), EU:C:2009:181, paragraph 64). |
| --- | --- |

67

As regards the present case, it has already been found above that the applicant had lost, following the restrictive measures taken against it, its entire market share in the shipping sector in the EU. However, that loss is precisely one of the objectives pursued by those measures and testifies rather to their effectiveness. On this view, such a loss can be relevant in the context of disputes relating to restrictive measures, only where its irreparable nature is established. On this point, the applicant has remained silent. It has, in particular, failed to show that obstacles of a structural or legal nature prevent it from regaining a significant proportion of the lost market share. The harm claimed in this respect cannot therefore be considered to be irreparable (see, to that effect, order of 24 March 2009 in Cheminova and Others v Commission, C‐60/08 P(R), EU:C:2009:181, paragraph 64).

Cheminova and Others

Commission

| 68 | It should be added that the applicant does not claim that its financial viability is in jeopardy. On the contrary, it states, in its reply of 4 June 2015, that its current commercial activities consist of transporting Iranian oil to China, India, South Korea, Taiwan and Turkey, that its total turnover was approximately USD 895 million in 2013 and that, according to its estimates, its current annual turnover will be similar. |
| --- | --- |

68

It should be added that the applicant does not claim that its financial viability is in jeopardy. On the contrary, it states, in its reply of 4 June 2015, that its current commercial activities consist of transporting Iranian oil to China, India, South Korea, Taiwan and Turkey, that its total turnover was approximately USD 895 million in 2013 and that, according to its estimates, its current annual turnover will be similar.

| 69 | The applicant also argues that it would be difficult for it to prove in advance the harm directly attributable to the contested measures, since there are forensic difficulties in separating out the damage caused by the earlier measures or by the wider international sanctions framework from the damage caused by the contested measures. According to the applicant, this will need to be the subject of detailed forensic evidence that is not possible to adduce prospectively and predictively. To require the applicant to provide this evidence at this stage would be an insurmountable hurdle to obtaining interim measures. Thus, the harm caused to the applicant by the contested measures would be at least in part irreparable, since it could not be adequately quantified. Therefore, an action for damages would not provide the applicant with effective legal protection for the purposes of Article 47 of the Charter of Fundamental Rights. |
| --- | --- |

69

The applicant also argues that it would be difficult for it to prove in advance the harm directly attributable to the contested measures, since there are forensic difficulties in separating out the damage caused by the earlier measures or by the wider international sanctions framework from the damage caused by the contested measures. According to the applicant, this will need to be the subject of detailed forensic evidence that is not possible to adduce prospectively and predictively. To require the applicant to provide this evidence at this stage would be an insurmountable hurdle to obtaining interim measures. Thus, the harm caused to the applicant by the contested measures would be at least in part irreparable, since it could not be adequately quantified. Therefore, an action for damages would not provide the applicant with effective legal protection for the purposes of Article 47 of the Charter of Fundamental Rights.

| 70 | In that regard, it must be recalled, according to well-settled case-law, that harm of a financial nature may be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 52, and EDF v Commission, EU:C:2013:157, paragraph 60 and the case-law cited). |
| --- | --- |

70

In that regard, it must be recalled, according to well-settled case-law, that harm of a financial nature may be considered to be serious and irreparable if the harm, even when it occurs, cannot be quantified (orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 52, and EDF v Commission, EU:C:2013:157, paragraph 60 and the case-law cited).

Commission

Pilkington Group

EDF

Commission

| 71 | Admittedly, the uncertainty of obtaining compensation for financial damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measures is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment), to which the interlocutory proceedings are an adjunct (see, to that effect, orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 53, and of 14 December 2011 in Alcoa Trasformazioni v Commission, C‐446/10 P(R), EU:C:2011:829, paragraph 55 to 57). |
| --- | --- |

71

Admittedly, the uncertainty of obtaining compensation for financial damage if an action for damages is brought cannot in itself be regarded as a factor capable of establishing that such damage is irreparable. At the interlocutory stage, the possibility of subsequently obtaining compensation for pecuniary damage if an action for damages is brought following annulment of the contested measures is necessarily uncertain. Interlocutory proceedings are not intended to act as a substitute for an action for damages in order to remove that uncertainty, since their purpose is only to guarantee the full effectiveness of the final future decision that will be made in the main action (in this case an action for annulment), to which the interlocutory proceedings are an adjunct (see, to that effect, orders in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 53, and of 14 December 2011 in Alcoa Trasformazioni v Commission, C‐446/10 P(R), EU:C:2011:829, paragraph 55 to 57).

Commission

Pilkington Group

Alcoa Trasformazioni

Commission

| 72 | However, the situation is different where it is clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages (order in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 54). |
| --- | --- |

72

However, the situation is different where it is clear, when the assessment is carried out by the judge hearing the application for interim measures, that, in view of its nature and the manner in which it will foreseeably occur, the harm alleged, should it occur, may not be adequately identified or quantified and that, in practice, it will not therefore be possible to make good that harm by bringing an action for damages (order in Commission v Pilkington Group, cited in paragraph 30 above, EU:C:2013:558, paragraph 54).

Commission

Pilkington Group

| 73 | In the present case, it does not appear that the applicant is prevented from obtaining, in case of annulment of the contested measures, financial compensation for the financial loss which those measures will have caused it, by bringing an action for damages against the Council under Articles 268 TFEU and 340 TFEU, given that the mere possibility of being able to bring such an action is sufficient to show that the financial harm at issue is in principle reparable (see, to that effect, order of 14 December 2001 in Commission v Euroalliages and Others, C‐404/01 P(R), ECR, EU:C:2001:710, paragraphs 70 to 75). |
| --- | --- |

73

In the present case, it does not appear that the applicant is prevented from obtaining, in case of annulment of the contested measures, financial compensation for the financial loss which those measures will have caused it, by bringing an action for damages against the Council under Articles 268 TFEU and 340 TFEU, given that the mere possibility of being able to bring such an action is sufficient to show that the financial harm at issue is in principle reparable (see, to that effect, order of 14 December 2001 in Commission v Euroalliages and Others, C‐404/01 P(R), ECR, EU:C:2001:710, paragraphs 70 to 75).

Commission

Euroalliages and Others

| 74 | The President of the General Court does not see why the applicant would be prevented from properly quantifying the financial harm that has been caused to it by the contested measures, by calculating the income accruing from economic activities that it had carried out within the EU during a representative year, prior to the imposition of the first restrictive measures, and by comparing that income with that realised following the contested measures; in the event that that income has already been reduced to zero in the years prior to the adoption of those measures, the harm caused by those measures would consist of maintaining that situation and could thus be calculated by an average annual reference. |
| --- | --- |

74

The President of the General Court does not see why the applicant would be prevented from properly quantifying the financial harm that has been caused to it by the contested measures, by calculating the income accruing from economic activities that it had carried out within the EU during a representative year, prior to the imposition of the first restrictive measures, and by comparing that income with that realised following the contested measures; in the event that that income has already been reduced to zero in the years prior to the adoption of those measures, the harm caused by those measures would consist of maintaining that situation and could thus be calculated by an average annual reference.

| 75 | In that context, it should be noted that the applicant, itself, provided such figures in its reply of 4 June 2015. Accordingly, it stated the gross income accruing from its activities in the EU, namely its business relationships with major EU oil companies and EU traders for 2009 to 2013. It shows that that income consistently fell from USD 500 million (2009) to USD 160 million (2010), then to USD 100 million (2011), then to USD 40 million (2012) and to USD 0 (2013). |
| --- | --- |

75

In that context, it should be noted that the applicant, itself, provided such figures in its reply of 4 June 2015. Accordingly, it stated the gross income accruing from its activities in the EU, namely its business relationships with major EU oil companies and EU traders for 2009 to 2013. It shows that that income consistently fell from USD 500 million (2009) to USD 160 million (2010), then to USD 100 million (2011), then to USD 40 million (2012) and to USD 0 (2013).

| 76 | In any future proceedings for compensation, the Court would be entitled to calculate the loss caused to the applicant by the contested measures by means of an abstract assessment based on the likely developments of its market shares and profits in the normal course of events had the unlawful conduct alleged against the Council not been committed (see, to that effect, order of 5 June 2013 in Rubinum v Commission, T‐201/13 R, EU:T:2013:296, paragraph 50). With regard to the quantification of harm, the Court’s appraisal of the facts is not open to appeal and it has a margin of appreciation as to the method to be adopted to determine the extent of any reparation (see, to that effect, judgment of 21 February 2008 in Commission v Girardot, C‐348/06 P, ECR, EU:C:2008:107, paragraphs 72, 74 and 76). In the present case the Court could even rely on estimates based on mean statistical values, it being understood that the applicant must prove the data on which those estimates are based (see, to that effect, judgment of 28 April 2010 in BST v Commission, T‐452/05, ECR, EU:T:2010:167, paragraph 168 and the case-law cited). |
| --- | --- |

76

In any future proceedings for compensation, the Court would be entitled to calculate the loss caused to the applicant by the contested measures by means of an abstract assessment based on the likely developments of its market shares and profits in the normal course of events had the unlawful conduct alleged against the Council not been committed (see, to that effect, order of 5 June 2013 in Rubinum v Commission, T‐201/13 R, EU:T:2013:296, paragraph 50). With regard to the quantification of harm, the Court’s appraisal of the facts is not open to appeal and it has a margin of appreciation as to the method to be adopted to determine the extent of any reparation (see, to that effect, judgment of 21 February 2008 in Commission v Girardot, C‐348/06 P, ECR, EU:C:2008:107, paragraphs 72, 74 and 76). In the present case the Court could even rely on estimates based on mean statistical values, it being understood that the applicant must prove the data on which those estimates are based (see, to that effect, judgment of 28 April 2010 in BST v Commission, T‐452/05, ECR, EU:T:2010:167, paragraph 168 and the case-law cited).

Rubinum

Commission

Commission

Girardot

BST

Commission

| 77 | In any event, it seems permissible to conclude from the case-law of the President of the Court of Justice that an undertaking which is the subject of restrictive measures cannot validly claim irreparable financial harm, where it may invoke the specific provisions of the EU rules relating to the freezing of funds or economic resources which enable the competent national authorities to authorise, by exemption, the release of certain frozen funds, since those provisions enable expenses and basic needs to be covered, or contractual obligations entered into before the freeze took effect to be fulfilled (order of 11 March 2013 in North Drilling v Council, T‐552/12 R, EU:T:2013:120, paragraph 21; see also, to that effect, orders in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 41, 42 and 44, and of 25 October 2012 in Hassan v Council, C‐168/12 P(R), EU:C:2012:674, paragraph 39). |
| --- | --- |

77

In any event, it seems permissible to conclude from the case-law of the President of the Court of Justice that an undertaking which is the subject of restrictive measures cannot validly claim irreparable financial harm, where it may invoke the specific provisions of the EU rules relating to the freezing of funds or economic resources which enable the competent national authorities to authorise, by exemption, the release of certain frozen funds, since those provisions enable expenses and basic needs to be covered, or contractual obligations entered into before the freeze took effect to be fulfilled (order of 11 March 2013 in North Drilling v Council, T‐552/12 R, EU:T:2013:120, paragraph 21; see also, to that effect, orders in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 41, 42 and 44, and of 25 October 2012 in Hassan v Council, C‐168/12 P(R), EU:C:2012:674, paragraph 39).

North Drilling

Council

Qualitest FZE

Council

Hassan

Council

| 78 | Those exemptions ensure balance between, on the one hand, the restrictive measures’ objective of reducing the risk of nuclear proliferation in Iran and, on the other hand, the need to ensure the listed undertaking’s survival. Therefore, the outcome of a request for a suspension of operation of restrictive measures depends on the application, in the specific case, of those exemptions authorising the release of certain frozen funds (see, to that effect, order in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 45 and 66). |
| --- | --- |

78

Those exemptions ensure balance between, on the one hand, the restrictive measures’ objective of reducing the risk of nuclear proliferation in Iran and, on the other hand, the need to ensure the listed undertaking’s survival. Therefore, the outcome of a request for a suspension of operation of restrictive measures depends on the application, in the specific case, of those exemptions authorising the release of certain frozen funds (see, to that effect, order in Qualitest FZE v Council, cited in paragraph 52 above, EU:C:2012:354, paragraphs 45 and 66).

Qualitest FZE

Council

| 79 | In the present case, Article 20(3) to (4a), (6) and (7) of Decision 2010/413, as amended, and Articles 24 to 28b of Regulation No 267/2012, as amended, provide for a number of exemptions, permitting the release of the applicant’s funds in specific circumstances. The applicant has merely challenged the relevance of those potential exemptions in relation to the present case, without expressing a view on the abovementioned case-law of the President of the Court of Justice. In particular, it has not indicated whether it has submitted to the competent national authorities requests seeking authorisation to use the frozen funds or whether it has encountered difficulties or been refused such authorisation from those authorities. |
| --- | --- |

79

In the present case, Article 20(3) to (4a), (6) and (7) of Decision 2010/413, as amended, and Articles 24 to 28b of Regulation No 267/2012, as amended, provide for a number of exemptions, permitting the release of the applicant’s funds in specific circumstances. The applicant has merely challenged the relevance of those potential exemptions in relation to the present case, without expressing a view on the abovementioned case-law of the President of the Court of Justice. In particular, it has not indicated whether it has submitted to the competent national authorities requests seeking authorisation to use the frozen funds or whether it has encountered difficulties or been refused such authorisation from those authorities.

| 80 | Consequently, the requirement of urgency is not fulfilled. |
| --- | --- |

80

Consequently, the requirement of urgency is not fulfilled.

| 81 | It follows from all the foregoing considerations that the application for interim measures must be dismissed. |
| --- | --- |

81

It follows from all the foregoing considerations that the application for interim measures must be dismissed.

| | On those grounds,
  THE PRESIDENT OF THE GENERAL COURT
  hereby orders: |
| --- | --- |

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

| | 1. | The application for interim measures is dismissed. |
| --- | --- | --- |

1.

1.

The application for interim measures is dismissed.

The application for interim measures is dismissed.

| | 2. | The costs are reserved. |
| --- | --- | --- |

2.

2.

The costs are reserved.

The costs are reserved.

| | Luxembourg, 16 July 2015. |
| --- | --- |

Luxembourg, 16 July 2015.

| | E. Coulon
  Registrar
  M. Jaeger
  President |
| --- | --- |

E. Coulon

Registrar

M. Jaeger

President

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  )	Language of the case: English.

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  )	Only the paragraphs of the present order which the Court considers it appropriate to publish are reproduced here.

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