Order — ECLI:EU:T:2011:770
Date: 2011-12-22
Language of the case: English
Court formation: President of the Chamber
Subject matter: External relations;Common foreign and security policy
Procedure: Action for annulment;Application for interim measures - unfounded

summary procedure, would scarcely be such as to dispel the suspicion which hangs over the applicant (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 52). 33 Further, since the purpose of proceedings for interim relief 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 the harm linked to the damage to reputation that the condition relating to urgency is not met (order of the President of 15 May 2003 in Case T‑47/03 R Sison v Council [2003] ECR II‑2047, paragraph 41). In any event, it is settled case-law that the grant of the suspension of operation sought would not be able to remedy the harm alleged any more than would any partial annulment of the contested measures when the main action is decided (see, to that effect, order in Case T‑306/01 R Aden and Others v Council and Commission [2002] ECR II‑2387, paragraph 117, and order in Melli Bank v Council, paragraph 53). 34 In the present case, annulment of the contested measures, in so far as they concern the applicant, when the main action is decided would constitute sufficient reparation for the harm linked to the damage to his reputation. Such a judgment of annulment would demonstrate formally and definitively that the Council acted unlawfully by damaging the applicant’s reputation, which would give satisfaction to the applicant (see, to that effect, order in Melli Bank v Council, paragraph 54). 35 It follows that the condition relating to urgency is not satisfied in relation to the harm arising out of the damage to the applicant’s reputation. 36 To the extent that, by claiming that the contested measures have incited opponents of the Syrian regime to make threats directed against him and his family in Syria, the applicant pleads a risk in respect of his personal safety and that of his family, it is clear that that claim is based on an affidavit which he drew up himself and which refers, by way of evidence, to a message published on an internet site, of which a transcript in English has been annexed to the application for interim measures. It is however not apparent from those documents that the alleged threats were made solely because of the listing of the applicant’s name in the contested measures. 37 In any event, in the circumstances which have prevailed for some time in Syria, characterised by increasingly violent riots approaching civil war, it is plausible that the primary cause – and therefore the decisive cause – of the threats addressed to the applicant and his family is to be found in the applicant being denounced as a supporter of the Syrian regime by groups opposing that regime, and the fact of his being so denounced may at the same time have been brought to the notice of the European Union. As the applicant admits in his affidavit, he occupied a prominent position in Syria as a successful businessman and President of the Aleppo Chamber of Industry. In those circumstances, it does not appear surprising that the applicant has been identified and targeted, by the opponents of the Syrian regime and in the context of what is approaching civil war, as a person benefiting from that regime and supporting it. 38 Consequently, the applicant has not adequately substantiated, by evidence, his assertions that threats directed against him and his family in Syria have been made following the publication of the contested measures. He has in particular not established that those measures constituted the decisive cause of those threats and, therefore, constitute the decisive cause of the risk that those threats may develop into acts of violence. In the absence of sufficient evidence, the President of the Court cannot accept that the urgency claimed exists merely on the basis of unsupported assertions by the applicant. Given that the granting of interim measures is strictly exceptional (see paragraph 13 above), they can be granted only where those assertions are corroborated by evidence (see, to that effect, the order in Babcock Noell v The European joint undertaking for ITER and the Development of Fusion Energy, paragraph 57 and case-law cited). 39 For the sake of completeness, it should be added that, as regards acts of violence directed against a person on whom there has been imposed a restrictive measure which is economic and financial, such as the measures at issue in the present case, the commission of such acts is manifestly not one of the objectives aimed at by the author of such a measure. The fact that they are committed is due to the independent actions of criminals for whom the restrictive measure serves only as a pretext. However, since the applicant admits that he has occupied a prominent position in Syria, it seems improbable, particularly in the situation approaching civil war and anarchy which now prevails in Syria, that criminals taking steps to commit attacks against him and his family would be impressed by the publication of an order for interim measures, the result of which would moreover be that the designation of the applicant in the contested measures would be erased only provisionally, following a purely summary examination by the judge hearing the application for interim measures and in opposition to the express will of the Council, which has the right to bring an appeal against that order. 40 It follows that the applicant has also failed to establish urgency in relation to the harm linked to the risk in respect of his personal safety and that of his family. 41 As regards, lastly, the harm linked to the infringement of certain fundamental rights and freedoms, which is claimed to be continuing and to be incapable of being compensated retrospectively, it must be observed that the applicant’s argument in that regard is designed to obtain an appraisal under the heading of urgency of factors which, in reality, fall within the scope of whether there is a prima facie case. While the strength or weakness of a prima facie case is not without relevance to the appraisal of urgency, it remains the case that the two conditions which govern the obtaining of an order of suspension of operation of a measure are distinct, and consequently the applicant remains bound to demonstrate the imminence of serious and irreparable damage (see order of the President of 31 January 2011 in Case C‑404/10 P(R) Commission v Éditions Jacob, not published in the ECR, paragraphs 26 and 27 and case-law cited). 42 In the present case, the applicant has however failed to clarify the nature of the claimed infringement of his fundamental rights and freedoms, or by what means and to what extent they have been infringed. Consequently, the President of the Court is not in a position to assess the strength or weakness of the prima facie case in that regard and to draw any conclusions as to whether the harm linked to that alleged infringement is serious. In accordance with the case-law, first, fundamental rights are not absolute, and their exercise may be subject to restrictions justified by objectives of general interest, and, secondly, any measure imposing sanctions has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, which may justify, as a general rule, negative consequences, even of a substantial nature, for some operators (Case C‑84/95 Bosphorus [1996] ECR I‑3953, paragraphs 21 to 23 and case-law cited). The Court of Justice has moreover recently confirmed that case-law by ruling that the right to property and to exercise the freedom to pursue a trade or profession, which is affected by the freezing of funds, does not enjoy absolute protection, either under European Union law or under the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (see, to that effect, Case C‑548/09 P Bank Melli Iran v Council [2011] ECR I-0000, paragraphs 89 and 114). 43 Consequently, the applicant has also failed to demonstrate urgency in relation to the harm linked to the infringement of his fundamental rights and freedoms. 44 Since the existence of urgency has not been established, this application for interim measures must be rejected, and there is no need to examine whether the other conditions governing whether the suspension sought should be granted, in particular the condition relating to the existence of a prima facie case, are satisfied. On those grounds, THE PRESIDENT OF THE GENERAL COURT hereby orders: 1. The application for interim measures is dismissed. 2. The costs are reserved. Luxembourg, 22 December 2011. E. Coulon M. Jaeger Registrar President * Language of the case: English.