62011CO0644_EN
Parties
Grounds
Operative part
Parties
In Case C‑644/11 P(R),
APPEAL under the second paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 14 December 2011,
Qualitest FZE, established in Dubai (United Arab Emirates), represented by M.-L. Catrain González, abogada, E. Wright and H. Zhu, Barristers,
appellant,
the other party to the proceedings being:
Council of the European Union, represented by G. Marhic and R. Liudvinaviciute-Cordeiro, acting as Agents,
defendant at first instance,
THE PRESIDENT OF THE COURT,
after hearing the First Advocate General, J. Mazák,
makes the following
Order
Grounds
1. By its appeal, Qualitest FZE asks the Court to set aside the order of the Judge hearing applications for interim measures, replacing the President of the General Court of the European Union, of 3 October 2011 in Case T‑421/11 R Qualitest FZE
v Council
(‘the order under appeal’), by which the Judge dismissed Qualitest FZE’s application for suspension of operation of 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) and of Council Decision 2011/299/CFSP of 23 May 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 136, p. 65) (together ‘the acts at issue’).
Legal context, facts of the dispute and procedure before the Judge hearing applications for interim measures
2. The legal context and facts of the dispute were set out in paragraphs 1 to 8 of the order under appeal as follows:
‘1 … Qualitest FZE, a company established in the United Arab Emirates[,] is specialised in the supply of quality control and testing equipment for checking the physical properties of raw materials.
2 The present dispute arises from the inclusion of [Qualitest FZE] among the persons and entities whose funds and economic resources are to be frozen, in the context of the regime of restrictive measures adopted 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 should be noted that, on 23 December 2006, the United Nations Security Council (“the Security Council”) adopted Resolution 1737 (2006), the annex to which lists the persons and entities which, according to the Security Council, were involved in nuclear proliferation in Iran and whose funds and economic resources had to be frozen. That list has been regularly updated by the Security Council by means of various resolutions. [Qualitest FZE], however, has not itself been the subject of any asset-freezing measures adopted by the Security Council.
4 In order to implement Resolution 1737 (2006), the Council of the European Union adopted Common Position 2007/140/CFSP concerning restrictive measures against Iran (OJ 2007 L 61, p. 49) on 27 February 2007. That Common Position was 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 persons and entities designated by the relevant resolutions of the Security Council, provided for in Article 20(1)(a) of Decision 2010/413, provision is made in Article 20(1)(b) of that decision 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 … Decision 2011/299/CFSP … placed [Qualitest FZE] on the list of persons and entities referred to in Article 20(1)(b) of Decision 2010/413; that list is set out in Annex II to Decision 2010/413.
7 With a view to implementing Common Position 2007/140, the Council had 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). Under points (a) and (b) of Article 16(2) of Regulation No 961/2010, provision is made 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 … Implementing Regulation (EU) No 503/2011 …, the Council placed [Qualitest FZE] on the list of persons and entities to which Article 16(2) of Regulation No 961/2010 applies; that list is set out in Annex VIII thereto.’
3. By application lodged at the Court Registry on 6 August 2011, Qualitest FZE brought an action seeking the annulment of the acts at issue in so far as they concern Qualitest FZE.
4. By separate document lodged at the Court Registry on the same date, Qualitest FZE made an application for interim measures, requesting the suspension of operation of the acts at issue in so far as they concern Qualitest FZE.
5. In its written observations, lodged at the Court Registry on 5 September 2009, the Council requested that the Judge hearing applications for interim measures dismiss that application for interim measures.
The order under appeal
6. By the order under appeal, the Judge hearing the application for interim measures recalled that suspension of operation of an act, or other interim relief, may be ordered 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 relief, the order must be made and produce its effects before a decision is reached on the merits.
7. The Judge hearing the application for interim measures considered, in the first place, whether the condition relating to urgency was met, having regard to Qualitest FZE’s assertion that the acts at issue were causing it financial damage of such magnitude that its very existence was imperilled.
8. The Judge hearing the application for interim measures referred in that regard to the established case-law according to which damage of a purely pecuniary 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, such exceptional circumstances being established if it appears that, without the interim measure, the party seeking it would be in a position that could imperil its existence before final judgment in the substantive proceedings.
9. Referring, in particular, to the order of the President in Case C‑12/95 P Transacciones Marítimas and Others v Commission [1995] ECR I‑467, paragraph 12, the Judge hearing the application for interim measures also recalled that, in the context of the examination of the financial viability of the party seeking the interim measure, consideration may be given, for the purposes of assessing its economic circumstances, to the characteristics of the group of which, by virtue of its shareholding structure, it forms part. The Judge stated that that approach is based on the idea that the objective interests of the undertaking concerned are not distinct from those of the persons who control it. According to the case-law to which the Judge referred, that coincidence of interests is justification in particular for not assessing the undertaking’s interest in its own survival separately from the interest of the persons controlling it in seeing it survive.
10. After observing that that case-law applies not only to legal persons, but also to natural persons who control the undertaking concerned, the Judge hearing the application for interim measures noted that Qualitest FZE describes itself, in its application, as follows: ‘[Qualitest FZE] is part of the group of companies established by Mr [B], a Canadian citizen and entrepreneur. Mr [B] started his business thirteen years ago in Canada (Qualitest International Inc.). The business was so successful that it gradually expanded to the United States (Qualitest USA LC), [the] United Arab Emirates (Qualitest FZE), Mexico, India and Hong Kong (representative offices). These entities have no cross shareholding but have a common and sole shareholder. They are created geographically to serve local customers. For example, [Qualitest FZE] is responsible for serving customers from [the United Arab Emirates], Saudi Arabia, Kuwait, Qatar, Bahrain, Egypt, Jordan, Yemen, Oman, Pakistan and India. However, it specifically excludes any countries under embargo …’.
11. In concluding from that description that there is an economic unit made up of Mr B. and the various companies which he owns, the Judge hearing the application for interim measures considered that it was incumbent upon Qualitest FZE to provide him with information capable of demonstrating that Mr B. would not be able to ensure its survival pending the conclusion of the substantive proceedings, or, as the case may be, that Mr B.’s interests did not coincide with those of Qualitest FZE.
12. Given that, in his view, Qualitest FZE had provided no information of that kind, the Judge hearing the application for interim measures concluded that Qualitest FZE had failed to demonstrate that it would suffer serious and irreparable financial damage if the suspension of operation sought were not granted.
13. Accordingly, the Judge hearing the application for interim measures found that it was not necessary to examine the arguments of Qualitest FZE seeking to demonstrate that the financial damage caused by the acts at issue was such as to imperil its existence.
14. In the second place, the Judge hearing the application for interim measures examined the assertion by Qualitest FZE that the acts at issue were causing damage to its business reputation that was reparable only with difficulty, in so far as that assertion could be construed as seeking to establish the existence of distinct non-material damage. The Judge considered that, while it was not excluded that suspension of operation of the acts at issue could remedy such non-material damage, it nevertheless had to be noted that the grant of the suspension of operation sought would not be able to remedy the non-material damage alleged any more than would annulment of those acts when the main action was decided. In so far as the purpose of interlocutory proceedings is to ensure, not that damage is made good, but that the decision on the merits is fully effective, he found, as regards the non-material damage, that the condition relating to urgency also had not been met.
15. In those circumstances, the Judge hearing the application for interim measures dismissed the application for interim measures for lack of urgency.
Forms of order sought
16. Qualitest FZE claims that the Court should:
– set aside the order under appeal and, on the basis of Article 61 of the Statute of the Court of Justice of the European Union, suspend operation of the acts at issue in so far as they apply to Qualitest FZE, until such time as the General Court has ruled on the application for annulment in the main proceedings; or, in the alternative,
– set aside the order under appeal and refer the case back to the President of the General Court for reconsideration;
– order the Council to pay the costs.
17. In its observations, lodged at the Court Registry on 3 February 2012, the Council contends that the Court should dismiss the appeal and order Qualitest FZE to pay the costs.
The appeal
18. In support of its appeal, Qualitest FZE relies on three pleas in law, alleging, respectively:
– incorrect interpretation of the case-law;
– incorrect application of the case-law; and
– failure to state reasons in the order under appeal regarding its arguments alleging damage to its business reputation.
The first plea in law
Arguments of the parties
19. In the context of this plea, Qualitest FZE criticises the reference made by the Judge hearing the application for interim measures to the order in Transacciones Marítimas and Others
v Commission, as referred to in paragraph 9 of the present order.
20. It maintains that the approach followed in the order in Transacciones Marítimas and Others
v Commission cannot be applied to situations in which applicable legislative provisions of European Union law prevent the problem posed by the damage suffered by the party seeking interim measures from being resolved by the financial support of the group of companies to which that party belongs and/or of its shareholders. Qualitest FZE emphasises that, in the present case, the effects of the asset freeze and other restrictions to which it is subject by virtue of the acts at issue cannot be alleviated by any type of financial support, either from the group of companies of which it is a part or from its shareholder, Mr B.
21. Qualitest FZE submits, in the first place, that the order in Transacciones Marítimas and Others
v Commission
concerned solely the ability of undertakings to furnish a bank guarantee in cases concerning financial penalties. In subsequent cases, the application of the principle identified in that order was limited to purely economic cases which essentially concerned cash deficit and/or financial loss.
22. According to Qualitest FZE, there is just one exception: the order of the President of 27 August 2008 in Case T‑246/08 R Melli Bank
v Council . However, the Court of Justice did not have the opportunity to clarify the scope of application of the case-law arising from the order in Transacciones Marítimas and Others
v Commission, in particular with regard to the area of economic sanctions, since the order in Melli Bank
v Council was not the subject of an appeal. In any event, according to Qualitest FZE, the facts at issue in the case giving rise to the order in Melli Bank
v Council
must be distinguished from those in the present case in so far as, in the former case, the company concerned was acknowledged to be part of a large entity controlled by the Iranian State.
23. In the second place, Qualitest FZE submits that the difficulties faced by the party seeking interim measures in the case giving rise to the order in Transacciones Marítimas and Others
v Commission stemmed essentially from the fact that that party was experiencing a cash-flow deficit as a result of financial loss. According to Qualitest FZE, since, in such a situation, the shareholders of the undertaking in difficulties could effectively assist by injecting more cash or by obtaining a bank guarantee based on the existing resources of the group of companies, it was appropriate to examine whether or not that undertaking’s majority shareholder or a related company were prevented from providing it with assistance.
24. Qualitest FZE submits that its situation is totally different from the situation at issue in that case. Its business operations are completely paralysed not due to a cash-flow deficit resulting from financial loss but due to its inclusion in the list in Annex VIII to Regulation No 961/2010. Qualitest FZE recalls the terms of Article 16(3) of Regulation No 961/2010, according to which no funds or economic resources are to be made available, directly or indirectly, to or for the benefit of the natural or legal persons, entities or bodies listed in Annexes VII and VIII to that regulation. According to Qualitest FZE, when a company is subject to an asset freeze under that provision, the financial resources of the group of which it is a part or of its shareholder become irrelevant. Article 16(3) expressly prohibits any such direct or indirect financial support to a listed entity such as Qualitest FZE.
25. Qualitest FZE notes that, in any event, any funds made available to a company subject to an asset freeze will, by definition, themselves be frozen. It relies in that respect on Article 16(2) of Regulation No 961/2010, which provides that all funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in Annex VIII to that regulation are to be frozen.
26. Qualitest FZE concludes that the order under appeal is vitiated by an error of law in so far as Article 16(2) and (3) of Regulation No 961/2010 was completely disregarded.
27. The Council disputes the arguments of Qualitest FZE and contends that the first plea in law is unfounded.
28. In particular, it submits that the case-law arising from the order in Transacciones Marítimas and Others
v Commission
does not concern only cases in which the ability of an undertaking to furnish a bank guarantee is at stake. According to the Council, the question examined by the Court in that order, as well as in other decisions, actually relates more generally to the capacity of shareholders of an undertaking, or of a group of undertakings to which it belongs, to contribute to the financial possibilities of that undertaking.
29. That proposition is supported by the fact that the order under appeal does not rely exclusively on the case-law arising from the order in Transacciones Marítimas and Others
v Commission but also on other orders delivered in interlocutory proceedings, including, in particular, the order of the President in Case T‑192/01 R Lior
v Commission [2001] ECR II‑3657. The Council observes that that order does not address a question linked to the ability of a company to provide a bank guarantee, but addresses from a general point of view situations in which a group of undertakings may protect the interests of one of them, which is indeed the situation at issue in the present case.
Findings of the Court
30. It must be observed at the outset that, by the order under appeal, the Judge hearing the application for interim measures confined himself to considering the existence of an economic unit made up of Mr B. and the various companies which he owns, as well as the information capable of demonstrating that Mr B. would not be able to ensure the survival of Qualitest FZE pending the conclusion of the substantive proceedings, or, as the case may be, the absence of a coincidence of interests between Mr B. and Qualitest FZE.
31. In so doing, the Judge hearing the application for interim measures based his reasoning solely on the case-law according to which, in the context of the examination of the financial viability of the party seeking the interim measure, consideration may be given, for the purposes of assessing that party’s economic circumstances, to the characteristics of the group of which, by virtue of its shareholding structure, it forms part.
32. In that regard the Judge hearing the application for interim measures relied, in particular, on the order in Transacciones Marítimas and Others
v Commission . In the case giving rise to that order, the Commission had withdrawn the Community financial aid granted to each of the appellant companies for their respective projects to construct fishing vessels and had ordered the repayment of that aid. In an application for suspension of operation of the Commission’s decisions, the President of the General Court had granted that suspension, but made it conditional upon the provision by the appellant companies of a bank guarantee in favour of the Commission covering the full amount of the aid granted, until judgment was given on the merits of the action.
33. In ruling therefore that, in assessing the ability of undertakings to furnish a bank guarantee, regard may be had not only to the circumstances of the undertaking which must lodge the guarantee but also to the financial possibilities of its shareholders, and to the resources available, as a whole, to the group of undertakings to which it belongs, the Judge hearing the application for interim measures sought to ensure repayment of the aid granted and thus to ensure the effectiveness of the penalty imposed by the Commission.
34. That case-law arises in the field of competition (see, in particular, order of the President in Case 86/82 R Hasselblad
v Commission [1982] ECR 1555, paragraph 4). In that field, the account taken of the financial situation of the group that includes the undertaking which must provide a bank guarantee in order to pay a fine imposed by the Commission is justified by the concern to safeguard the effectiveness of the penalties imposed by the Commission for breach of European Union competition law.
35. While it is indeed the case, as the Council notes, that the order under appeal cites cases concerning situations other than the provision of a bank guarantee, the fact remains that the considerations which justified the taking into account of the financial situation of the group to which the undertaking required to lodge the guarantee belongs remain valid in the other situations referred to in the order under appeal.
36. Thus, in the case giving rise to the order in Lior
v Commission, the Judge hearing the application for interim measures took into consideration the financial situation of the members of the European Economic Interest Grouping (EEIG) established by Council Regulation (EEC) No 2137/85 of 25 July 1985 (OJ 1985 L 199, p. 1) in order to ensure performance of a contractual obligation entered into by that grouping vis-à-vis the Commission.
37. Furthermore, in the case giving rise to the order of the President in Case T‑241/00 R Le Canne
v Commission [2001] ECR II‑37, the Judge hearing the application for interim measures ruled that it was necessary to take into consideration the financial situation of the shareholders of the undertaking concerned where the Commission had decided to reduce the financial aid which it had granted to that undertaking, which was claiming that delays in payment of the aid were causing it irreparable damage.
38. It follows from the foregoing that the financial situation of the group to which the undertaking concerned belongs, or that of the undertaking’s shareholders, has been taken into consideration in cases in which the objective was to ensure the effectiveness of penalties imposed by the Commission in the field of competition, or of contractual obligations entered into vis-à-vis the Commission.
39. By contrast, the financial situation of the group to which an undertaking belongs or that of its shareholders cannot be taken into consideration in the same way in the particular situation of restrictive measures – such as those at issue in the present case – that are aimed at freezing funds or economic resources, since the objective of those restrictive measures is entirely different in nature from that pursued where the financial situation of the group to which the undertaking concerned belongs or that of its shareholders has been taken into consideration.
40. In the present case, the restrictive measures at issue were adopted 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.
41. In that context, the objective of the freezing of funds regime is to prevent the persons or entities designated from having access to economic or financial resources that they could use to support proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems.
42. For that prohibition to retain its practical effect and the sanctions imposed on Iran by the European Union to remain effective, it is necessarily the case that the group to which an undertaking belongs or its shareholders should not, in principle, be able to support it financially. If that were otherwise, the undertaking concerned would be able to circumvent the freezing of its funds or of its economic resources and to pursue its activity in support of the Iranian nuclear programme.
43. It must be added that while it is the case that restrictive measures such as those at issue in the present case have a considerable impact on the rights and freedoms of the persons, entities or bodies designated (see, to that effect, Joined Cases C‑402/05 P and C‑415/05 P Kadi and Al Barakaat International Foundation
v Council and Commission
[2008] ECR I‑6351, paragraph 375, and Case C‑340/08 M and Others
[2010] ECR I‑3913, paragraph 65), the fact remains that Regulation No 961/2010 and Decision 2010/413 contain provisions which serve to ensure the survival of the persons, entities and bodies referred to therein or which are referred to by the acts at issue, and thus to prevent the very existence of those persons, entities and bodies from being imperilled.
44. Under Articles 17 to 19 of Regulation No 961/2010, and Article 20(3) to (6) of Decision 2010/413, the competent national authorities may, in accordance with a detailed list of cases, authorise the release of certain frozen funds which should, in principle, enable expenses and basic needs to be covered, or contractual obligations entered into before the placing by the Council of a person, entity or body on the lists contained in the annexes to that regulation to be fulfilled.
45. Therefore, allowing the group to which an undertaking belongs or its sole shareholder to support it financially other than in the cases expressly provided for by Regulation No 961/2010 and Decision 2010/413 would call into question the balance struck by those acts between, on the one hand, the objective of reducing the risk of nuclear proliferation in Iran and, on the other, the need to safeguard the survival of the undertaking designated.
46. In the light of all of the foregoing considerations, it must be held that the Judge hearing the application for interim measures was not entitled to conclude that Qualitest FZE’s application for interim measures should be dismissed by confining himself to examining only the financial situation of the group to which that undertaking belongs or that of its sole shareholder, without taking into consideration the specific circumstances associated with the nature of the restrictive measures of freezing funds or economic resources.
47. Consequently, the first ground of appeal is well founded.
The second plea in law
Arguments of the parties
48. In the context of its second plea in law, Qualitest FZE submits that even if the reasoning followed in the order in Transacciones Marítimas and Others
v Commission were applicable in cases relating to economic sanctions, the fact remains that the order under appeal does not include any examination, on the basis of the evidence presented by Qualitest FZE and the nature of the underlying dispute, of the argument that the companies forming the group to which it belongs are economically or legally prevented from providing it with any financial support.
49. The Council disputes the arguments of Qualitest FZE.
Findings of the Court
50. Since, in the context of the examination of the first plea in law, it has been determined that the reasoning followed in the order in Transacciones Marítimas and Others
v Commission cannot be applied in the present case, the second ground of appeal has become devoid of purpose and must, therefore, be rejected.
The third plea in law
Arguments of the parties
51. Qualitest FZE claims that the Judge hearing the application for interim measures rejected the assertion that the acts at issue were harming its business reputation without making any finding of fact and without stating any reason to justify the rejection of that assertion. According to Qualitest FZE, the Judge hearing the application for interim measures merely stated that ‘[r]egarding [Qualitest FZE’s] assertion concerning detriment to its business reputation, if that assertion were to be construed as seeking to establish the existence of distinct non-material damage, it would also have to be rejected’. Accordingly, the order under appeal is vitiated by a failure to state reasons.
52. The Council disputes the arguments of Qualitest FZE.
Findings of the Court
53. It is sufficient to note that, contrary to what is claimed by Qualitest FZE, the Judge hearing the application for interim measures did not reject without giving reasons the assertion that the acts at issue were causing damage to its business reputation.
54. As has been noted in paragraph 14 of the present order, the Judge hearing the application for interim measures found that, while it was not excluded that suspension of operation of the acts at issue could remedy non-material damage of the kind referred to by Qualitest FZE, the grant of the suspension of operation sought would not be able to remedy the non-material damage alleged any more than would annulment of those acts when the main action was decided.
55. The Judge hearing the application for interim measures concluded from this that, in so far as the purpose of interlocutory proceedings is to ensure, not that damage is made good, but that the decision on the merits is fully effective, the condition relating to urgency had not been met with regard to the non-material damage.
56. Accordingly, the third plea in law must be rejected as unfounded.
57. Since the first plea in law is well founded, the order under appeal must accordingly be set aside in so far as the Judge hearing the application for interim measures thereby assessed the financial damage alleged by Qualitest FZE solely in the light of the ability of the group to which it belongs or that of its shareholders to support it financially and to ensure its survival pending the conclusion of the main proceedings, and the appeal dismissed as to the remainder.
58. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the Court quashes the decision of the General Court, it may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment.
59. The abovementioned provision applies also to appeals brought under the second paragraph of Article 57 of the Statute of the Court (see order of the President in Case C‑393/96 P(R) Antonissen v Council and Commission
[1997] ECR I‑441, paragraph 45).
60. Since the state of the proceedings so permits, the Court must rule on the application for suspension of operation of the acts at issue, in so far as they concern Qualitest FZE.
The application for suspension of operation
61. It has consistently been held that the Judge hearing an application for interim measures may order interim relief only if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Where appropriate, the Judge hearing such an application must also weigh up the interests involved (see, in particular, orders of the President of 29 April 2005 in Case C‑404/04 P‑R Technische Glaswerke Ilmenau
v Commission, paragraph 10, and of 28 February 2008 in Case C‑479/07 R France
v Council, paragraph 16).
62. The conditions thus imposed are cumulative, so that an application for interim measures must be dismissed if any one of them is absent (see, in particular, orders in Technische Glaswerke Ilmenau
v Commission, paragraph 11, and France
v Council, paragraph 17).
63. 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 those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (order of the President of 3 April 2007 in Case C‑459/06 P(R) Vischim
v Commission, paragraph 25).
64. The Court must, in the present case, assess first of all the condition as to urgency.
65. It is apparent from paragraphs 43 to 45 of the present order that Regulation No 961/2010 and Decision 2010/413 contain provisions which can, in principle, ensure that the magnitude of the financial damage caused to a person, an entity or a body by virtue of the restrictive measures adopted by those acts is not such as to imperil the very existence of that entity.
66. Therefore, the application for suspension of operation of the acts at issue, in so far as they concern Qualitest FZE, must be assessed in relation to the application of those provisions in the present case.
67. Qualitest FZE confined itself to stating that the group of which it forms part and its sole shareholder have no legal or practical means of providing it, directly or indirectly, with financial support to ensure its survival.
68. In particular, Qualitest FZE did not indicate whether it had submitted a request for authorisation to use the frozen funds or whether it had encountered difficulties or been met with refusals of such authorisation from the competent authorities of a Member State.
69. In the absence of evidence relating to the application in the present case of Regulation No 961/2010, in particular Articles 17 to 19, and of Decision 2010/413, in particular Article 20(3) to (6), which allow the release of certain funds or economic resources to be authorised, Qualitest FZE cannot be considered to have established that it will suffer serious and irreparable damage if its application for interim measures is rejected.
70. Qualitest FZE’s application for interim measures does not, therefore, satisfy the condition relating to urgency.
71. It must be added, in the present case, that the balance of the various interests involved does not favour Qualitest FZE either.
72. It is established case-law that, in weighing up the various interests involved, the Judge hearing an application for interim measures must determine, in particular, whether or not the interest of the applicant in obtaining the suspension of operation sought outweighs the interest in the immediate application of the contested act, by examining, specifically, whether the possible annulment of that act by the Court giving judgment in the main action would make it possible to reverse the situation that would be brought about by its immediate implementation and, conversely, whether the suspension of operation of that act would be such as to prevent its being fully effective in the event of the main application being dismissed (see, to that effect, orders of the President in Case C‑149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 50, and in Joined Cases C‑182/03 R and C‑217/03 R Belgium and Forum 187
v Commission
[2003] ECR I‑6887, paragraph 142).
73. In the present case, it appears that the grant of suspension of operation of the acts at issue could be such as to prevent their being fully effective in the event of the dismissal of the main application and, therefore, to make it impossible to reverse the situation brought about by that grant.
74. Suspension of operation would make it possible for Qualitest FZE to withdraw immediately all the 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.
75. Suspension of operation of the acts at issue would also make it possible for the group of which Qualitest FZE forms part or for its sole shareholder to support it financially without restriction.
76. Thus, it would be possible for Qualitest FZE to avail itself of its funds by circumventing the purpose of the restrictive measures adopted, which consist in putting pressure on the Islamic Republic of Iran to end its proliferation-sensitive nuclear activities and the development of nuclear weapon delivery systems, and it would not be possible for that situation to be reversed by a subsequent decision dismissing the main application.
77. To order suspension of operation of the acts at issue in those circumstances would effectively neutralise in advance the effects of the decision to be given subsequently in the main action (see, to that effect, order of the President in Commission
v Atlantic Container Line and Others, paragraph 22).
78. By contrast, Qualitest FZE having failed to establish serious and irreparable harm in the event of the dismissal of its application for interim measures, it appears that annulment of the acts at issue – in so far as they concern Qualitest FZE – by the Court giving judgment in the main action would make it possible for the situation brought about by their immediate implementation to be reversed.
79. In those circumstances, the application for suspension of operation of the acts at issue must be dismissed, and there is no need to rule on whether there is a prima facie case.
Costs
80. Under Article 122 of the Rules of Procedure, where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to costs.
81. Under the first subparagraph of Article 69(3) of the Rules of Procedure, where each party succeeds on some and fails on other heads, or where the circumstances are exceptional, the Court may order that the costs be shared or that the parties bear their own costs.
82. In the present case, it must be held that each party shall bear its own costs.
Operative part
On those grounds, the President of the Court hereby orders:
1. The order of the Judge hearing the application for interim measures, replacing the President of the General Court of the European Union, of 3 October 2011 in Case T‑421/11 R Qualitest FZE
v Council
is set aside in so far as the Judge thereby assessed the financial damage alleged by Qualitest FZE solely in the light of the ability of the group to which it belongs or that of its sole shareholder to support it financially and to ensure its survival pending the conclusion of the main proceedings.
2. The appeal is dismissed as to the remainder.
3. The application for interim measures is dismissed.
4. Qualitest FZE and the Council of the European Union shall bear their own costs.