Al-Chihabi v Council (Interim relief) [2011] EUECJ T-593/11 (22 December 2011)

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(Interim relief - Common foreign and security policy - Restrictive measures against Syria - Freezing of funds and economic resources - Application for interim measures - No urgency - No serious and irreparable damage)

1 The applicant, Mr Fares Al-Chihabi, is a Syrian citizen and businessman. He currently holds the position of President of the Aleppo Chamber of Industry.

2 Strongly condemning the violent repression of peaceful protest in various locations across Syria and calling on the Syrian authorities not to resort to repression, on 9 May 2011 the Council of the European Union adopted Decision 2011/273/CFSP concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). In view of the seriousness of the situation, the Council established an arms embargo, a ban on internal repression equipment, restrictions on the admission to the Union of certain persons and entities responsible for the violent repression against the civilian population in Syria, and the freezing of their funds.

3 The names of the persons responsible for the violent repression against the civilian population in Syria and of the persons (natural or legal) and entities associated with them are listed in the annex to Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria (OJ 2011 L 121, p. 11). Under Article 5 of that decision, the Council, acting upon a proposal by a Member State or the High Representative of the Union for Foreign Affairs and Security Policy, may amend that annex.

4 The name of the applicant is not one of the 13 names listed in the annex to Decision 2011/273.

5 Given that some of the restrictive measures taken against Syria fall within the scope of the FEU Treaty, the Council adopted Regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria (OJ 2011 L 121, p. 11). That regulation is, essentially, identical to Decision 2011/273, but provides for the possibility that frozen funds may be released. Annex II to that regulation - which consists of a list of names of persons, entities or bodies identified as being responsible for the repression in question, or associated with those responsible - is identical to the list in the annex to Decision 2011/273. The name of the applicant is not one of the 13 names listed in the annex to that regulation. Under Article 14(1) and (4) of the regulation in question, where the Council decides to subject a person, entity or body to the restrictive measures referred to, it is to amend Annex II accordingly and is to review, moreover, the list in Annex II at regular intervals and at least every 12 months.

6 By Decision 2011/522/CFSP of 2 September 2011 (OJ 2011 L 228, p. 16), the Council amended Decision 2011/273 with a view, inter alia, to applying the restrictive measures in question to other persons and entities benefiting from or supporting the regime, in particular persons and entities financing the regime, or providing logistical support to the regime. Consequently, the scope of Decision 2011/273 was extended to 'persons benefiting from the regime or supporting it, and persons associated with them, as listed in the Annex'. Under Article 2 of Decision 2011/522, the names of four natural persons and three entities, 'listed in the annex to [that] Decision', were added to the list set out in the annex to Decision 2011/273. The applicant is one of those named - the name spelled Chehabi/Shihabi - with the details 'date of listing: 2.09.2011' and the following 'reasons':

7 By Regulation (EU) No 878/2011 of 2 September 2011 (OJ 2011 L 228, p. 1), the Council amended Regulation No 442/2011 by extending Annex II to that regulation to 'persons and entities benefiting from or supporting the regime, or persons and entities associated with them'. Under Article 2 of Regulation No 878/2011, Annex II to Regulation No 442/2011 is to be amended in accordance with Annex I to Regulation No 878/2011, that annex containing the name of the applicant and stating the same date of listing and the same 'reasons' as given in Decision 2011/522.

8 On 13 October 2011 the Council adopted Decision 2011/684/CFSP amending Decision 2011/273 (OJ 2011 L 269, p. 33) and Regulation (EU) No 1011/2011 amending Regulation No 442/2011 (OJ 2011 L 269, p. 18). By those measures, the Council, while adding other names to the list of persons and entities on whom the restrictive measures at issue were imposed, maintained the inclusion of the applicant's name on that list.

9 In brief, the effect of Regulations No 878/2011 and No 1011/2011 and Decisions 2011/522 and 2011/684 ('the contested measures') is that the applicant's entry into, or transit through, the territories of Member States of the European Union is prevented, all funds and economic resources which are within the European Union and belong to the applicant or are owned, held or controlled by him are to be frozen and, in principle, no funds and economic resources within the European Union are to be made available, directly or indirectly, to or for the benefit of the applicant.

10 By application lodged at the registry of the General Court on 28 November 2011, the applicant brought an action for, in essence, annulment of the contested measures, in so far those measures concern him. In support of that action, he complains that the duty to state reasons and his rights of defence have been infringed, since the Council has failed to inform him of the precise reasons for the inclusion of his name in the list of persons and entities on whom the restrictive measures at issue are imposed, with the result that he is not in a position properly to defend himself, and that a number of his fundamental rights have been breached, including the right to property, the right to engage in work and conduct a business, and the right to respect for his reputation.

11 By separate document, lodged at the Registry of the Court on the same date, the applicant brought this application for interim measures, whereby he claims, in essence, that the President of the Court should:

12 In its observations on the application for interim measures, lodged at the Registry of the General Court on 8 December 2011, the Council contends that the President of the Court should:

13 It is clear from reading the combined provisions of Articles 278 TFEU and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, that the judge hearing an application for interim measures may, if he considers that the circumstances so require, order that the operation of a measure contested before the General Court be suspended or prescribe any necessary interim measures. Nonetheless, Article 278 TFUE establishes the principle that actions for annulment do not have suspensory effect, since measures adopted by the institutions, bodies, offices and agencies of the European Union enjoy a presumption of legality. It is therefore only exceptionally that the judge hearing an application for interim measures can order the suspension of operation of such a measure or prescribe interim measures (see, to that effect, order of the President of 17 December 2009 in Case T-396/09 R Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, not published in the ECR, paragraph 31 and case-law cited).

14 Further, Article 104(2) of the Rules of Procedure of the General Court provides that an application for interim measures is to state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Accordingly, the judge hearing an application for interim relief may order suspension of operation and interim measures, if it is established that such an order is justified, prima facie, in fact and in law (fumus boni juris) 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, so that an application for interim measures must be dismissed if either of them is absent (order of the President in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).

15 In the context of that overall examination, the judge 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 (orders of the President in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 23, and of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25). Where appropriate, the judge hearing an application for interim relief must also balance the interests involved (order of the President in Case C-445/00 R Austria v Council [2001] ECR I-1461, paragraph 73).

16 Further, when suspension of operation of a measure is sought, granting the interim measure requested is justified only where the measure at issue constitutes the decisive cause of the alleged serious and irreparable damage (see, to that effect, orders of the President of 26 March 2010 in Case T-1/10 R SNF v ECHA, not published in the ECR, paragraph 66, and of 17 December 2010 in Case T-507/10 R Uspaskich v Parliament, not published in the ECR, paragraph 31).

17 Having regard to the material in the file, the President of the Court considers that he has all the information needed to rule on the present application for interim measures, without it being necessary first to hear oral argument from the parties.

18 In the circumstances of the present case, it is appropriate first to examine whether the condition of urgency is satisfied.

19 The applicant claims that he has suffered significant economic loss since his financial resources have been frozen and he has been unable to obtain access to them. The contested measures further make it impossible for him properly to engage in his professional activities, since those essentially involve companies established in the United States or in the European Union and therefore necessitate international financial transactions. Further, the inclusion of his name in the list of persons and entities on whom the restrictive measures at issue are imposed has already entailed serious harm to him and his family and has damaged his reputation both personally and professionally. The effect of the sanctions imposed on him is to make ordinary life in society extremely difficult, since every international financial transaction involves a risk that the assets will be frozen by financial institutions. Not only does the listing prevent him from exercising the day-to-day duties of his various functions, it has also incited opponents of the Syrian regime to make threats to the personal security of himself and his family.

20 The applicant adds that he is also suffering harm due to the infringement of other fundamental rights and freedoms. He claims that effective judicial review of the sanctions is possible only before the Court, since only there can he learn the reasons for the listing of his name, defend himself against the contested measures and prove that they are unfair and disproportionate. The infringement of his rights and fundamental freedoms is continuing and cannot be compensated retrospectively.

21 In that regard, it should be borne in mind that, according to settled case-law, the urgency of an application for interim measures must be assessed in relation to the need for interim measures in order to avoid serious and irreparable damage being caused to the party seeking interim relief (order of the President in Case C-213/91 R Abertal and Others v Commission [1991] ECR 1-5109, paragraph 18; orders of the President in Joined Cases T-195/01 R and T-207/01 R Government of Gibraltar v Commission [2001] ECR II-3915, paragraph 95, and in Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II-5081, paragraph 82). However, it is not sufficient to claim that operation of the act of which suspension is sought is imminent; rather, it is for the party seeking such relief to adduce sound evidence that it cannot wait for the outcome of the main proceedings without suffering damage of that kind (order of the President in Case T-34/02 R B v Commission [2002] ECR II-2803, paragraph 85). While it does not have to be established with absolute certainty that the damage is imminent, its occurrence must nevertheless be foreseeable with a sufficient degree of probability. The party seeking interim relief is required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67, and order in Neue Erba Lautex v Commission, paragraph 83).

22 It is also settled case-law that damage of a 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. In such a case, the interim measure sought will be justified only if it appears that, without such a measure, the applicant would be in a position that could imperil its financial viability before final judgment is given in the main action, or that its market share would be affected irremediably and substantially, having regard in particular to the size of its business (see order of the President of 28 April 2009 in Case T-95/09 R United Phosphorus v Commission, not published in the ECR, paragraphs 33 to 35 and case-law cited).

23 Moreover, in order to determine whether the damage feared by the applicant is serious and irreparable and therefore justifies, by way of exception, suspension of the operation of the contested decision, the judge hearing the application for interim measures must have hard and precise information, supported by detailed documents showing the applicant's financial situation and enabling the judge to determine with precision the effects which would probably arise if the measures sought were not granted. Accordingly, the applicant must produce information, supported by documents, capable of producing a true and complete picture of its financial situation (see, to that effect, order of the President of 7 May 2010 in Case T-410/09 R Almamet v Commission, not published in the ECR, paragraphs 32, 57 and 61, upheld on appeal by order of the President of the Court of Justice of 16 December 2010 in Case C-373/10 P(R) Almamet v Commission, not published in the ECR, paragraph 24).

24 It is settled case-law, moreover, that that true and complete picture of the applicant's financial situation must be provided in the body of the application for interim measures. Such an application must be sufficiently clear and precise in itself to enable the defendant to prepare its observations and the judge hearing the application to give a ruling, where necessary, without other supporting information, it being necessary for the essential facts and points of law on which the applicant relies to be set out in a coherent and comprehensible fashion in the actual application for interim measures (order of the President of 31 August 2010 in Case T-299/10 R Babcock Noell v The European joint undertaking for ITER and the Development of Fusion Energy, not published in the ECR, paragraph 17; see also order of the President of 30 April 2010 in Case C-113/09 P(R) Ziegler v Commission, not published in the ECR, paragraph 13).

25 In the present case, as regards the alleged pecuniary damage, the applicant refers to 'significant economic loss' and complains that the contested measures 'make it impossible for him to engage properly in his professional activities'. While those claims are supported by some figures and records, annexed to the application for interim measures, it is clear that the applicant does not even claim, far less demonstrate with supporting evidence, that there is a risk, because of the listing of his name in the contested measures, of his being in a position that could imperil his financial viability, as a businessman, or of the market share of his business being affected irremediably and substantially, within the meaning of the case-law cited in paragraph 22 above.

26 The applicant has also failed to provide, in the application for interim measures, information capable of establishing a true and complete picture of his financial situation as a businessman, that is to say as a property owner, shareholder and/or company director, within the meaning of the case-law cited in paragraph 23 above. Nor has he demonstrated that, if the contested measures were to be annulled, he could not obtain subsequent financial compensation by means of an action for damages under Articles 268 TFEU and 340 TFEU, given that, in accordance with settled case-law, the mere possibility of bringing such an action is sufficient to demonstrate that pecuniary damage is as a general rule reparable, notwithstanding uncertainty as to the outcome of such legal proceedings (see, to that effect, order of the President in Case C-404/01 P(R) Commission v Euroalliages and Others [2001] ECR I-10367, paragraphs 70 to 75, and order of the President of 24 April 2009 in Case T-52/09 R Nycomed Danmark v EMEA, not published in the ECR, paragraphs 72 and 73).

27 In the absence of such evidence, the applicant has therefore failed adequately to support his claims that the alleged pecuniary damage is serious and irreparable.

28 For the sake of completeness, it must be observed that the applicant has the option of making a request to the competent authorities of a Member State for the release of certain frozen funds. Article 6 of Regulation No 442/2011 provides:

29 In the application for interim measures, the applicant has not stated that he has submitted a request for permission to use the frozen funds and that he has encountered difficulties in obtaining such permission from a competent authority of a Member State.

30 It follows that the condition of urgency is not satisfied in relation to the alleged pecuniary damage.

31 As regards the harm linked to the damage to his reputation, personal and professional, the applicant has not demonstrated that that harm was caused by the contested measures rather than by the political events in Syria, events which led the Council to adopt those measures. Accordingly, no causal link has been established between the contested measures and that damage. In accordance with settled case-law, the grant of an interim measure is justified only if the measure at issue constitutes the decisive cause of the alleged harm (see, to that effect, the orders in SNF v ECHA, paragraph 66, and in Uspaskich v Parliament, paragraph 31).

32 It must be added that, even if the decisive cause of the damage to the applicant's reputation was the listing of his name in the contested measures, that damage would persist until that listing is annulled in the main action. In those circumstances, a suspension of operation of the contested measures, which the President of the Court could order only on a purely provisional basis and as part of a 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.

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