Alcimos Consulting v ECB (Order) [2015] EUECJ T-368/15

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(Application for interim measures — Economic and monetary policy — Decisions adopted by the Governing Council of the ECB — Provision of emergency liquidity assistance to Greek banks — Application for suspension of operation of a measure — Breach of procedural requirements — Inadmissibility)

Alcimos Consulting SMPC, established in Athens (Greece), represented by F. Rodolaki, avocat,

APPLICATION for suspension of operation of the decisions of the Governing Council of the European Central Bank of 28 June and 6 July 2015 concerning the level of emergency liquidity assistance provided to Greek banks,

1 The Governing Council of the European Central Bank (ECB) decided on 28 June 2015 ‘to maintain the ceiling to the provision of emergency liquidity assistance … to Greek banks at the level decided on ... 26 June 2015’. On 6 July 2015, the Governing Council decided ‘to maintain the provision of emergency liquidity assistance (ELA) to Greek banks at the level decided on 26 June 2015 after discussing a proposal from the Bank of Greece’ and ‘to adjust the haircuts on collateral accepted by the Bank of Greece for ELA’.

2 By those two decisions (‘the contested decisions’), the ECB left the ceiling to the provision of emergency liquidity assistance unchanged, despite requests by the Bank of Greece, which, according to press reports, had submitted a request for an increase of the ceiling to ELA by EUR 6 billion, from a previous level of EUR 89 billion.

3 According to the applicant, the Greek company, Alcimos Consulting SMPC, the contested decisions resulted in the imposition of a bank holiday and capital controls in Greece, by virtue of an ‘act of legislative content’ published in the Government Gazette of the Hellenic Republic on 28 June 2015, as there was no other way to satisfy the demands for withdrawal of deposits from Greek banks.

4 By application lodged at the Registry of the General Court on 10 July 2015, the applicant brought an action essentially seeking the annulment of the contested decisions.

5 By separate documents lodged at the Court Registry the same day, the applicant made an application for an expedited procedure pursuant to Articles 151 to 155 of the Rules of Procedure of the General Court together with the present application for interim measures, in which it claims that the Court should :

– suspend the contested decisions until the final judgment is delivered in the main proceedings.

6 According to Articles 278 TFEU and 279 TFEU read in conjunction with Article 256(1) TFEU, the judge hearing an application for interim relief may, if he considers that circumstances so require, order that application of an act contested before the Court be suspended or prescribe any necessary interim measures, subject to the rules of admissibility laid down by Article 156 of the Rules of Procedure.

7 Since failure to comply with the Rules of Procedure constitutes an absolute bar to proceedings, it is for the judge hearing an application for interim relief to examine in limine litis, if necessary of his own motion, whether the applicable provisions of those rules have been observed (see order of 20 June 2014 in Wilders v Parliament and Others, T‑410/14 R, EU:T:2014:564, paragraph 7 and the case-law cited).

8 Under Article 156(3) of the Rules of Procedure, 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 measures applied for. The judge hearing an application for interim relief may order suspension of operation of an act, or 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, so that an application for interim measures must be dismissed if any one of them is absent (orders of 14 October 1996 in SCK and FNK v Commission, C‑268/96 P(R), ECR, EU:C:1996:381, paragraph 30, and of 12 May 2010 in Torresan v OHIM, C‑5/10 P-R, EU:C:2010:269, paragraphs 14 and 15).

9 Furthermore, under Article 156(4) and Article 76(d) of the Rules of Procedure, the application for interim measures must be made by a separate document, state the subject-matter of the proceedings and contain a summary of the pleas in law relied on.

10 It follows from a reading of those provisions of the Rules of Procedure in combination with one another that an application for interim measures must, on its own, allow the defendant to prepare its submissions and allow the judge hearing the application to rule on the application, if necessary without any other information in support. In order to guarantee legal certainty and the sound administration of justice it is necessary, in order for a plea to be admissible, that the essential matters of law and fact relied on are stated, at least in summary form, coherently and intelligibly in the application itself. Although specific points in the text of the application can be supported and completed by references to specific passages in the documents attached, a general reference to other documents cannot compensate for the failure to set out the essential elements of the legal argument (see order in Wilders v Parliament and Others, paragraph 7 above, EU:T:2014:564, paragraph 10 and the case-law cited; see also, to that effect, order of 30 April 2010, Ziegler v Commission, C‑113/09 P(R), EU:C:2010:242, paragraph 13).

11 Moreover, paragraph 264 of the Practice rules for the implementation of the Rules of Procedure of the General Court provides expressly that the application must be intelligible in itself, without necessitating reference to the application lodged in the main proceedings, including the annexes thereto.

12 In the circumstances of the present case, it must be ascertained whether the application for interim measures is admissible in so far as it contains a sufficiently precise statement of the factors enabling examination of the condition concerning urgency.

13 In that regard it must be observed that according to settled case-law, urgency must be assessed in the light of the need for an interlocutory order in order to avoid serious and irreparable harm to the party seeking the interim relief, bearing in mind that damage of a purely financial nature — such as that alleged by the applicant in the present case — cannot be regarded as irreparable if it can ultimately be the subject of financial compensation, unless it appears that, in the absence of such relief, the party concerned would be placed in a situation which could, inter alia, endanger its very existence before the decision concluding the main proceedings is made (see, to that effect, order of 11 March 2013 in Calestep v ECHA, T‑89/13 R, EU:T:2013:123, paragraph 13 and the case-law cited).

14 In order to determine whether the financial harm alleged is serious and irreparable, the judge hearing the application for interim relief must have actual and specific information, supported by detailed, certified documentary evidence showing the financial situation of the party seeking interim measures and enabling an assessment of the consequences if the measures sought are not granted. It follows that the party concerned must produce information, supported by documents, capable of producing a true and complete picture of its financial situation (see Calestep v ECHA, paragraph 13 above, EU:T:2013:123, paragraph 14 and the case-law cited).

15 In the present case, in order to describe the ‘damage suffered’, the applicant states as follows :

‘Alcimos holds a bank account with a Greek bank, Eurobank Ergasias S.A., with a balance of EUR 10,582.84 on the day the capital controls were imposed. The capital controls and the bank holiday resulted in Alcimos not being able to freely use the funds available for transactions outside Greece.

In addition, Alcimos has been acting as a sponsor for a number of ventures which are inextricably linked to the Greek economy, the Greek financial services system and their prospects. In particular, Alcimos is a sponsor for an application submitted to the UK Listing Authority on 17 February 2015 for the approval of a prospectus pertaining to an initial public offering of up to EUR 500 million for an investment vehicle which would invest in Greek residential property. Furthermore, Alcimos is in the process of establishing a Greek lending platform for mortgages, auto finance and factoring. Lastly, Alcimos is in advanced discussions for the acquisition of a number of receivables portfolios.

All these transactions have not only been put on hold by the imposition of the capital controls and bank holiday, but also run the risk of being cancelled, as investors lose confidence in the Greek financial system and the Greek economy, which is also a result of the imposition of said measures. This would cause serious and irreparable damage to Alcimos. In fact, the viability of Alcimos is currently in jeopardy and it is doubtful that the company will remain a going concern, purely as a result of the imposition of the bank holiday and capital controls.’

16 It must be held that these allegations are merely assertions. First, the applicant fails to provide a faithful overall picture of its financial situation, so that there is nothing to suggest that its economic and financial survival may be at risk. Second, the applicant’s allegations are unsupported by any evidence and, in particular, are not based on any figures. Consequently, the judge hearing the application for interim relief is not in a position to assess whether the alleged damage may in fact be considered to be serious and irreparable.

17 The applicant failed, in particular, to demonstrate that the alleged financial damage was irreparable. For instance, it did not state what would prevent it, in the event of the contested decisions being set aside, from obtaining financial compensation subsequently by means of an action for damages under Articles 268 TFEU and 340 TFEU, whereas the mere possibility of bringing an action for damages is sufficient to show that pecuniary damage is in principle reparable (see order in Calestep v ECHA, paragraph 13 above, EU:T:2013:123, paragraph 17 and the case-law cited.

18 It follows that the application for interim measures is not capable of justifying the grant of the suspension of operation requested, particularly as such a measure may be ordered only by way of exception, given that Article 278 TFEU lays down the principle that actions do not have suspensory effect and that acts adopted by the EU institutions enjoy a presumption of legality (see, to that effect, order of 17 December 2009 in Vereniging Milieudefensie and Stichting Stop Luchtverontreiniging Utrecht v Commission, T‑396/09 R, EU:T:2009:526, paragraph 31 and the case-law cited).

19 It follows from all the foregoing that the application for interim measures must be dismissed as inadmissible.

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Court of Justice of the European Communities (including Court of First Instance Decisions)