ORDER OF THE PRESIDENT OF THE GENERAL COURT
11 November 2022 (*)
(Interim relief – Common foreign and security policy– Restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine – Application for suspension of operation of a measure – No urgency)
In Case T‑528/22 R,
Belaruskali AAT, established in Soligorsk (Belarus), represented by V. Ostrovskis, lawyer,
applicant,
v
Council of the European Union, represented by J. Rurarz, B. Driessen and A. Boggio-Tomasaz, acting as Agents,
defendant,
THE PRESIDENT OF THE GENERAL COURT
makes the following
Order
1        By its application under Articles 278 and 279 TFEU, the applicant, Belaruskali AAT, seeks suspension of the operation of Council Implementing Decision (CFSP) 2022/881 of 3 June 2022 implementing Decision 2012/642/CFSP concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2022 L 153, p. 77), in so far as that decision concerns the applicant, and of Council Implementing Regulation (EU) 2022/876 of 3 June 2022 implementing Article 8a(1) of Regulation (EC) No 765/2006 concerning restrictive measures in view of the situation in Belarus and the involvement of Belarus in the Russian aggression against Ukraine (OJ 2022 L 153, p. 1), in so far as that regulation concerns the applicant (together ‘the contested measures’).
Background to the dispute and forms of order sought
2        The applicant is the sole producer of potassium fertilisers in Belarus and one of the largest potassium fertiliser producers in the world.
3        On 3 June 2022, in view of the gravity of the situation in Belarus and the continuing violations of human rights and systematic repression of civil society and democratic opposition, the Council of the European Union adopted the contested measures.
4        By Implementing Decision 2022/881, the applicant’s name was added to the list of legal persons, entities and bodies subject to restrictive measures set out in Annex I to Council Decision 2012/642/CFSP of 15 October 2012 concerning restrictive measures against Belarus (OJ 2012 L 285, p. 1).
5        The grounds for including the applicant’s name on the list of persons, entities and bodies referred to are as follows:
‘OJSC Belaruskali is a state-owned enterprise and one of the biggest potash producers in the world, providing 20% of global potash exports. As such, it is a major source of revenue and foreign currency for the Lukashenka regime. Aliaksandr Lukashenka described it as “a national treasure, pride, one of the pillars of Belarusian exports”. Therefore, Belaruskali benefits from and supports the Lukashenka regime.
Employees of Belaruskali who took part in strikes and peaceful protests in the aftermath of the fraudulent August 2020 presidential elections in Belarus were intimidated and dismissed by the company's management. Lukashenka himself personally threatened to replace the strikers with miners from Ukraine. Therefore, Belaruskali is responsible for the repression of civil society in Belarus and supports the Lukashenka regime.’
6        By Implementing Regulation 2022/876, the applicant’s name was added, with the same statement of reasons, to the list of legal persons, entities and bodies subject to restrictive measures set out in Annex I to Council Regulation (EC) No 765/2006 of 18 May 2006 concerning restrictive measures against President Lukashenko and certain officials of Belarus (OJ 2006 L 134, p. 1).
7        On 7 June 2022, the Council published in the Official Journal of the European Union a Notice for the attention of persons subject to the restrictive measures provided for in Council Decision 2012/642/CFSP, implemented by Council Implementing Decision (CFSP) 2022/881, and by Council Regulation (EC) No 765/2006, as implemented by Council Implementing Regulation (EU) 2022/876, concerning restrictive measures against Belarus (OJ 2022 C 221, p. 2).
8        By application lodged at the Court Registry on 30 August 2022, the applicant brought an action for the annulment of the contested measures.
9        By separate document lodged at the Court Registry on the same day, the applicant brought the present application for interim measures, in which it requests the President of the General Court to:
–        order the suspension of operation of the contested measures, in so far as they concern the applicant;
–        order the Council to pay the costs.
10      In its observations on the application for interim measures, lodged at the Court Registry on 14 September 2022, the Council contends that the President of the General Court should:
–        dismiss the application for interim measures;
–        order the applicant to pay the costs.
Law
General considerations
11      It is apparent from reading Articles 278 and 279 TFEU together with Article 256(1) TFEU, that the judge hearing an application for interim measures may, if he or she considers that the circumstances so require, order that the operation of a measure challenged before the General Court be suspended or prescribe any necessary interim measures, pursuant to Article 156 of the Rules of Procedure of the General Court. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim measures may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures (order of 19 July 2016, Belgium v Commission, T‑131/16 R, EU:T:2016:427, paragraph 12).
12      The first sentence of Article 156(4) of the Rules of Procedure provides that applications for interim measures must state ‘the subject matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measure applied for’.
13      The judge hearing an application for interim relief may order suspension of operation of an act and other interim measures, if it is established that such an order is justified, prima facie, in fact and in law, and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative, and consequently an application for interim measures must be dismissed if any one of them is not satisfied. The judge hearing an application for interim relief is also to undertake, when necessary, a weighing of the competing interests (see order of 2 March 2016, Evonik Degussa v Commission, C‑162/15 P-R, EU:C:2016:142, paragraph 21 and the case-law cited).
14      In the context of that overall examination, the court hearing the application for interim measures enjoys a broad discretion and is free to determine, having regard to the particular 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 (see order of 19 July 2012, Akhras v Council, C‑110/12 P(R), not published, EU:C:2012:507, paragraph 23 and the case-law cited).
15      Having regard to the material in the case file, the President of the General Court considers that he has all the information necessary to rule on the present application for interim measures, without there being any need first to hear oral argument from the parties.
16      In the circumstances of the present case, it is appropriate to examine first whether the condition relating to urgency is satisfied.
The condition relating to urgency
17      In order to determine whether the interim measures sought are urgent, it should be noted that the purpose of the procedure for interim relief is to guarantee the full effectiveness of the future final decision, in order to prevent a lacuna in the legal protection afforded by the Court. To attain that objective, urgency must generally be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the interim measure. That party must demonstrate that it cannot await the outcome of the main proceedings without suffering serious and irreparable damage (see order of 14 January 2016, AGC Glass Europe and Others v Commission, C‑517/15 P-R, EU:C:2016:21, paragraph 27 and the case-law cited).
18      In addition, under the second sentence of Article 156(4) of the Rules of Procedure, applications for interim measures ‘shall contain all the evidence and offers of evidence available to justify the grant of interim measures’.
19      Thus, an application for interim measures must, of itself, enable the defendant to prepare its observations and the judge hearing the application to rule on it, if necessary, without any supporting information, since the essential elements of fact and law on which the application is based must be found in the actual text of that application (see order of 6 September 2016, Inclusion Alliance for Europe v Commission, C‑378/16 P-R, not published, EU:C:2016:668, paragraph 17 and the case-law cited).
20      It is also settled case-law that, in order to determine whether all the conditions referred to in paragraph 17 above are fulfilled, the judge hearing the application for interim measures must have specific and precise information, supported by detailed, certified documentary evidence, which shows the situation in which the party seeking interim measures finds itself and enables the probable consequences, should the measures sought not be granted, to be assessed. It follows that that party, in particular when it relies on the occurrence of financial damage, must produce, with supporting documentation, an accurate overall picture of its financial situation (see order of 29 February 2016, ICA Laboratories and Others v Commission, T‑732/15 R, not published, EU:T:2016:129, paragraph 39 and the case-law cited).
21      It is in the light of those criteria that it is necessary to examine whether the applicant has succeeded in demonstrating urgency.
22      In the present case, the applicant claims that the contested measures are liable to cause serious and irreparable harm to a significant part of the world population which already suffers from hunger, since it is impossible for the applicant to export the potash it produces, because of the restrictive measures relating to the transit and freezing of funds imposed by the contested measures. The applicant states that the unavailability of potash is likely to cause and increase famine in many countries, in particular in countries which depend largely or wholly on the potash which it produces, such as Angola, Zimbabwe, Malawi and Mali.
23      The Council, on the other hand, considers that the condition relating to urgency is not satisfied.
24      In that regard, in the first place, it should be noted that the serious and irreparable damage alleged by the applicant, which suspension of operation of the contested measures is intended to avoid, can be taken into account by the court hearing the application for interim measures, when examining the condition relating to urgency, only to the extent that it is liable to be caused to the interests of the party seeking the interim relief.
25      According to settled case-law, an applicant may not, in order to establish urgency, rely on damage caused to the rights of third parties or to the general interest (see order of 18 May 2022, OG and Others v Commission, T‑101/22 R, not published, EU:T:2022:305, paragraph 30 and the case-law cited).
26      It follows that the damage which implementation of the contested measures may cause to a party other than the party seeking interim relief may be taken into consideration, where appropriate, by the court hearing the application for interim measures only in the context of weighing up the interests involved (see, to that effect, order of 13 January 2009, Occhetto and Parliament v Donnici, C‑512/07 P(R) and C‑15/08 P(R), EU:C:2009:3, paragraph 58).
27      Therefore, the damage likely to be caused to countries which depend largely or entirely on the applicant’s potash, such as Angola, Zimbabwe, Malawi and Mali, on which the applicant relies, will be taken into consideration, where appropriate, only in the examination of that condition for suspension of operation.
28      In the second place, it is clear, as the Council contends, that, even if the increase in famine in many countries could constitute harm to the applicant’s interests, the extremely laconic allegations in its application for interim measures do not provide the slightest information on the link between the restrictive measures at issue and such an increase and are not, a fortiori, supported by any evidence relating to its personal situation that could justify the grant of the suspension of operation sought.
29      Consequently, even in such circumstances, the harm alleged by the applicant could not establish urgency, since it is purely hypothetical.
30      According to well established case-law there is urgency only if the serious and irreparable harm feared by the party requesting the interim measures is so imminent that its occurrence can be foreseen with a sufficient degree of probability. That party remains, in any event, required to prove the facts that form the basis of its claim that such harm is likely, it being clear that purely hypothetical harm, based on future and uncertain events, cannot justify the granting of interim measures (see order of 27 February 2015, Spain v Commission, T‑826/14 R, EU:T:2015:126, paragraph 33 and the case-law cited).
31      It follows from all the foregoing that the application for interim measures must be dismissed as the applicant has failed to establish that the condition relating to urgency is satisfied, without it being necessary to rule on whether there is a prima facie case or to weigh up the competing interests.
32      Under Article 158(5) of the Rules of Procedure, the costs must be reserved.
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, 11 November 2022.
E. Coulon
M. van der Woude
Registrar
President
*      Language of the case: English.