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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Melli Bank Plc, R (on the application of) v HM Treasury & Anor [2008] EWHC 1661 (Admin) (09 July 2008) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/1661.html Cite as: [2008] EWHC 1661 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice The Strand London WC2A 2LL
		9th July 2008

1. LORD JUSTICE MOSES: This is a claim for permission for judicial review and interim relief.
2. Melli Bank plc ("Melli UK") is a public limited company incorporated in England and Wales.
3. It is a United Kingdom bank, authorised and regulated by the Financial Services Authority. It began banking operations in the United Kingdom in January 2002. It is a wholly-owned subsidiary of Bank Melli Iran ("Melli Iran"). That is the largest commercial bank in Iran with a long history, going back to 1928, with a large number of branches, amongst which was originally Melli UK, which became legally and functionally distinct from its parent in January 2002.
4. It is managed in the United Kingdom, and as Mr Zand, the executive director and company secretary, tells the court in written statements, has an arm's length relationship with its parent. It also has a Hong Kong branch set up in April 2006.
5. Melli UK has a very significant proportion of non-Iranian assets, estimated at approximately 48 per cent of the total of the parent's assets, and by the end of 2006, 72 per cent of Melli UK's assets were non-Iranian.
6. It has an excellent record with regulators, and no proceedings of any nature, whether civil, disciplinary or supervisory, have ever been taken.
7. The independent auditors, Ernst & Young, have identified no significant concerns about the operations of the bank.
8. As a result of a combination of EC regulation, Council decision and the implementation of those measures by United Kingdom regulations, the assets of Melli Iran/Melli UK are frozen, and third parties are prohibited from making funds or resources available for their benefit.
9. Melli UK has challenged before the Court of First Instance the validity of the Council decision designating it as one whose assets should be frozen and with whom no third party is permitted to deal; it seeks interim relief from that court.
10. But pending the decision of the Court of First Instance, Melli UK seeks permission to move this court by way of judicial review and claim interim relief as a matter of urgency.
11. I turn then to the sanction regime.
12. Concern as to the proliferation of Iran's nuclear activities has triggered a regime of economic sanctions. There is no United Nations Resolution requiring the assets of Melli Iran, still less its wholly-owned subsidiary, Melli UK, to be frozen. But by United Nations Security Council Resolution 1737(2006) of 23 December 2006, the Security Council decided that all states should freeze funds and other financial assets and economic resources of various persons or entities, but not Melli Iran.
13. The later resolution of the Security Council, UNSCR 1803(2008) of 3 March 2008 added additional persons and entities, identified as those whose assets should be frozen, which again did not name either Melli Iran or its subsidiary. But it did call upon all states to exercise vigilance over the activities of financial institutions in those states' territories, in relation to banks domiciled in Iran and particularly named one other bank and Melli Iran.
14. But the European Community has chosen to go further. By Common Position of the Council 2007/140, the member states of the European Union named various entities as those in respect of whom funds and economic resources should be frozen. In particular, Article 5(1) of Council Common Position 2007/140/CFSP of 27 February 2007 listed a number of persons and entities said to be engaged or directly associated with providing support for proliferation of sensitive nuclear activities in Iran and required that those entities should be frozen.
15. But at that stage, neither Melli Iran nor Melli UK were named. However, that Council Common Position was amended by Council Common Position 2008/479/CFSP.
16. This amended what was described as annex 2, so as to name both Melli Iran and Melli UK. These Common Positions represented political agreements among Member States of the European Union but had no independent legal effect. Whilst they are said to be binding under international law and are adopted under the EU treaty, they are not binding under European Community law.
17. The Common Position under 2007/140 and as amended by 2008/479 were put into effect by Council Regulation 423(2007) of 19 April 2007.
18. I should highlight a number of the recitals to that regulation which is directly applicable. The first recital refers to the United Nations Security Council Resolution of 2006 to which I have already referred. It records that the purpose lying behind the original Security Council resolutions was to enforce compliance so far as possible with the monitoring regime of the International Atomic Energy Agency so as to ensure that the nuclear programme was pursued by Iran solely for peaceful purposes.
19. It was Iran's refusal to comply that had led to the resolutions in the first place.
20. The first recital concludes:

"In order to persuade Iran to comply with this mandatory decision (the Resolution) United Nations Security Council decided that all members of the United Nations should apply a number of restrictive measures."

21. The second recital refers to the restrictive measures taken in the Common Position in the European Union to which I have already referred. It refers in particular to the freezing of funds and economic resources of persons and entities directly associated with or providing support for nuclear activity in Iran.
22. The third recital provides:

"These measures fall within the scope of the treaty establishing the European Community and therefore notably with a view to ensuring their uniform application by economic operators in all member states, Community legislation is necessary in order to implement them as far as the Community is concerned."

23. By Article 7(1) of Council Regulation 423, all funds and economic resources of persons and entities listed in annex 4 are required to be frozen. By Article 7(2):

"All funds and economic resources belonging to, owned, held or controlled by the persons, entities and bodies listed in annex 5 shall be frozen. Annex 5 shall include natural and legal persons, entities and bodies not covered by annex 4 who, in accordance with Article 5(1)(b) of Common Position 2007/140/CFSP have been identified as: (a) being engaged in, directly associated with or providing support for Iran's proliferation-sensitive nuclear activities; or ... (c) acting on behalf of or at the direction of a person, entity or body referred to under (a) or (b); or (d) being a legal person, entity or body owned or controlled by a person, entity or body referred to under (a) or (b), including through illicit means."

24. There are then various articles which derogate from the restrictions imposed in Article 7.
25. By Article 15(2):

"The Council, acting by qualified majority, shall publish, review and amend a list of persons, entities and bodies referred to in Article 7(2) and in full accordance with the determinations made by the Council in respect of annex 2, the Common Position 2000/140/CFSP, the list in annex 5 shall be reviewed in regular intervals and at least every 12 months."

26. Following the Common Position 2008/479/CFSP which referred specifically to Melli Iran and Melli UK, that Common Position was put into legal effect by Council Decision 2008/475/EC of 23 June 2008.
27. This required the original annex 5 to Regulation 423 of 2007 to be amended so as to add Melli Iran and Melli UK. It referred to, in its amended annex 5, under section (b), at item 4:

"Bank Melli, Melli Bank Iran and all branches and subsidiaries including (a) Melli Bank plc."

28. It also referred to a subsidiary with an address in Moscow, Russia.
29. Under the column headed "Reasons", there were the reasons given for listing the parent and the subsidiary. These reasons had to be shown within the decision in order to comply with Article 15(3) of Regulation 423. That regulation requires the Council to:

"... state individual and specific reasons for decisions taken pursuant to paragraph (2) and make them known to the persons, entities and bodies concerned."

30. There was some controversy before this court as to whether the Council was confined to the reasons set out within annex 5 as amended. For reasons that will become apparent in my judgment, whether the Council is so restricted does not need to be determined today. I am content to consider the arguments advanced on both sides solely on the basis of that which is set out within annex 5, the amended annex 5 adjoined to Council Decision 475(2008). Those reasons are:

"Providing or attempting to provide financial support for companies which are involved in or procure goods for Iran's nuclear and missile programmes ..."

In parentheses a number of companies are then named.

"Bank Melli serves as facilitator for Iran's sensitive activities. It has facilitated numerous batches of sensitive materials for Iran's nuclear and missile programmes. It has provided a range of financial services on behalf of entities linked to Iran's nuclear and missile industries, including opening letters of credit and maintaining accounts. Many of the above companies (that is the companies named earlier under the reasons) have been designated by UNSCRs 1737 and 1747."

31. It is plain to my mind that those reasons are directed solely at the activities of the parent, Melli Iran, and not at its subsidiary, Melli UK. It is not suggested in those reasons that Melli UK, the subsidiary, was itself undertaking those activities or in any way facilitating or aiding them, at least directly.
32. It is interesting to compare those reasons with the reasons given in relation to a wholly owned subsidiary named at item 6 in that amended annex, in which it is alleged that that subsidiary's role is to manufacture electronic components for Iranian weapon systems. Other subsidiaries are named and identified in that amended annex solely by virtue of being a subsidiary of one of the companies directly involved in Iran's nuclear and missile programme.
33. The provisions of the EC Regulation 423 have been enforced within the United Kingdom by the Iran European Community Financial Sanctions Regulations 2007. By virtue of Regulation 3(1) of those regulations, Melli is now a designated person and the restrictions imposed by EC Regulation 423 are mirrored in the United Kingdom regulations, to which I do not need to refer in detail.
34. Her Majesty's Treasury has issued a Financial Sanctions Notice which publicises the designation of Melli UK as falling within annex 5 as amended of Regulation 423 of 2007. In particular, it sets out reasons for that designation focussed again upon the activities of its parent. No separate reasons are identified in relation to Melli UK.
35. On 25 June 2008, Melli UK lodged an application with the Court of First Instance pursuant to Article 230 of the treaty. It is important to note that Melli UK seeks in those proceedings to challenge that part of Council Decision 475(2008) which adds Melli UK to annex 5 to Regulation 423(2007). At the time of making that application, Melli UK also requested that the case be dealt with under expedited procedure provided for by the Court of First Instance rules of procedure.
36. In response, the Court of First Instance, by letter dated 27 June 2008, indicated that it had set a time limit at 14 July -- that is the week following the week in which I am giving this judgment -- for the Council to lodge observations on the request for expedition.
37. At the same time, Melli UK also sought before the CFI interim measures that interim measures should be taken in relation to the Council Decision 475. The Court of First Instance has fixed a time limit of 11 July 2008 -- that is the end of this week in which I am giving judgment -- for the lodging of observations in response to the application for interim measures.
38. But the Registry has, so the court has been told, indicated to Melli UK solicitors that it is unlikely that the interim measures application will be dealt with before August at the earliest, and if the President of the Court of First Instance decides that a hearing is necessary, then the proceedings may take even longer.
39. It is important to note that the challenge before the Court of First Instance is identical to the challenge which it has sought to mount in this court. Moreover, I should recall that the focus of the attack is on the Council Decision 475(2008), the decision of 23 June adding Melli UK and its parent to annex 5 of Council Regulation 423.
40. There is no challenge before the Court of First Instance, nor before this court, to Council Regulation 423. Nor is it suggested that the United Kingdom domestic regulations are ultra vires the Community measures. The challenge and proposed order, as the amended grounds make clear, are entirely focused upon the illegality of the Council Decision.
41. In particular, it is accepted that any final decision of this court as to domestic regulations must depend upon the ruling of the Court of First Instance, or the European Court of Justice. This is accepted in paragraph 82(a) of the amended grounds in which Melli UK:

"... accepts that the illegality of the UK implementing measures and legislation is dependent on the invalidity of the underlying decision. The bank further accepts that the invalidity of the decision cannot be determined by the national court. It is a matter for the European courts (case 314/85 Foto-Frost [1987] ECR 4199). Accordingly, the bank accepts that final relief in this claim cannot be granted pending a ruling by the CFI and/or any ruling by the ECJ."

42. Melli UK seek in these proceedings permission and an interim injunction which, amongst other things, suspends the operation and/or enforcement of Council Decision 475, insofar as it relates to Melli UK, pending determination of the application for interim relief before the Court of First Instance.
43. The injunction sought requires Her Majesty's Treasury to grant a general licence permitting lawful trading between Melli UK and those persons and entities which are not prohibited and seeks to restrain the Treasury from taking any administrative steps to implement the Council Decision.
44. There was little dispute before this court but that the court has jurisdiction to grant permission and interim relief, notwithstanding that any final decision in this court is wholly dependent upon the Court of First Instance or European Court of Justice's decision. It is accepted, as was made plain in the amended grounds, that only the courts of the European Community have power to declare Council Decision 475 invalid.
45. But the principle of effectiveness requires that those who seek to challenge Community measures should have the power to challenge, as a preliminary issue, the legality of Community measures before the national courts.
46. Authority for that proposition is to be found in joined cases C143/88 and 92/89 Zuckerfabrik [1991] ECR I-415, particularly at paragraphs 16 and 17.
47. In those paragraphs, the court made clear that legal protection guaranteed by the Community law requires the right of individuals to challenge such measures before the national courts, and for the purpose of inducing those courts to refer questions for preliminary ruling, and records that absent such right, rights under Community law may be compromised.
48. The purpose of the power of domestic courts to make such orders was made plain by Mr Justice Laws, as he then was, in the Crown v Licensing Authority Established by Medicines Act 1968 ex parte Rhone Poulenc Rorer Limited [1998] European Law Reports at 127, [1998] Eu LR 127.
49. The power, as he explained at page 1242 C to H was to protect actual or putative Community rights and thus uphold the Community legal order by the grant of effective remedies.
50. Thus, I accept that if it is necessary to protect the claimant's claimed rights under Community law, this court has power to grant interim relief. It seems to me that there was little for the purposes of this application in Mr Fisher's argument advanced on behalf of the defendants that a distinction was to be drawn between the enforcing regime in UK domestic law and the instrument levying duty under German law in Zuckerfabrik, but I need not decide finally the merits of the argument, whether any distinction is to be drawn.
51. But, however, it is important to observe that the application for interim relief in the instant case is not in support of any substantive relief sought in the domestic courts of England and Wales. As I have already noted, the only substantive relief available to Melli UK is that which might be obtained from the Community courts in relation to a Council Decision which is directly applicable. The question therefore arises as to whether Melli UK is entitled to interim relief in order to ensure the effectiveness of any remedies sought before the Court of First Instance or the European Court of Justice.
52. In that connection, I should recall that by Article 105 of the Court of First Instance's rules of procedure, the President of the Court of First Instance may not only prescribe a short period for written or oral observations in response to an application, but may even grant an application before the observations of the opposite party have been submitted.
53. Following the applications of Melli UK on 25 June, as I have noted, the President is shortly to receive, at the end of this week, observations from the Council, should they be minded to give them, in relation to interim measures and observations in relation to the challenge to the Council's decision next week, on 14 July.
54. This court cannot predict when or whether the President will take interim measures, or make a decision as to substantive relief. If the Council Decision is invalid as claimed, then this court can at least assume that the President will recognise that invalidity on seeing the Council's observations on 11 July at the end of this week or at the latest, next week. He has, as I have demonstrated, power to act forthwith.
55. Thus, this application must be seen not merely as an application for interim relief pending any substantive decision of the Court of First Instance but rather as an application for interim relief from a domestic court in relation to a Council Decision pending the decision of the Court of First Instance as to whether it should take interim measures itself.
56. The defendant suggested that this court's power was being invoked to second-guess the Court of First Instance. It is hardly being required to second-guess anything. Rather, it is being required to pre-empt any decision of the Court of First Instance and make a decision with which the Court of First Instance is entitled to disagree.
57. I should stress this: the application is made without the advantage which would be available to the President of the Court of First Instance, only two days from now, of seeing the Council's own commentary on the application for interim measures, and without the advantage available to the President next week of seeing the Council's own defence of its own decision.
58. This court is being asked to suspend, in the interim, the operation of a Community measure without even the chance of hearing from the institution responsible for the decision.
59. It is in that context that this court must consider whether the conditions for the grant of interim relief identified in Zuckerfabrik are satisfied.
60. The first question is whether there are serious doubts as to the validity of Council Decision 475 (see paragraph 25 of the decision of the ECJ in Zuckerfabrik).
61. Recognising that the stronger the case Melli UK has on validity, the greater the likelihood of success, Mr Gordon, QC, submits that no reason whatever has been put forward, in compliance with Article 15(3) of Regulation 423, for the disastrous restriction on Melli UK's trade. The importance of safeguards where such restrictions and sanctions have been imposed was expressed by the Advocate General in case C402/05 in his opinion of 16 January 2008 in Kadi v Council of the European Union and Commission of the European Communities.
62. No decision has yet been given by the European Court of Justice, but I hope I might be forgiven for observing that the observations of the Advocate General seem merely to represent well-settled and understandable principles in the context of an individual whose funds were completely frozen because he was suspected of supporting terrorism.
63. The Advocate General describes the measures taken as having strong coercive effect, but continues:

"In a case where it may be necessary to prevent terrorist acts, it also underscores the need for procedural safeguards which require the authorities to justify such measures and demonstrate their proportionality, not merely in the abstract but in the concrete circumstances of the given case. The Commission rightly points out that the prevention of international terrorism may justify restrictions on the right to property. However, that does not ipso facto relieve the authorities of the requirement to demonstrate that those restrictions are justified in respect of the person concerned. Procedural safeguards are necessary precisely to ensure that that is indeed the case. In the absence of those safeguards, the freezing of someone's assets for an indefinite period of time infringes the right to property."

64. I accept that any restriction on the lawful activities of Melli UK must be shown to be both necessary and proportionate. Here, no justification has been advanced as against Melli UK other than that it is a subsidiary of Melli Iran. The reasons given in compliance with Article 15(3) are solely confined to the activities of that parent.
65. It is common ground between both claimant and defendant that the Council was not required to list any subsidiary of Melli Iran. It was common ground that Article 7(2)(d) of Council Regulation 423 is not mandatory. That proposition was said to be founded on the words of Article 7(2), which read that annex 5 should include:

"Natural and legal persons, entities and bodies ... who in accordance with ... (the Common Position) have been identified as legal persons owned or controlled by those directly associated with nuclear activity."

66. It is said that the absence of duty to list is demonstrated by the use of the expression "identified as". It is clear from the written argument of Her Majesty's Treasury that they accept the position since they state that the true position is that that article confers a power to list a subsidiary in annex 5(2) of Council Regulation 423.
67. Melli UK has been identified as a wholly-owned subsidiary as a result of Common Position 2008/479. But, in consequence of the agreement between the parties, Melli UK founds its argument and is entitled to found its argument on the basis that the Council Decision 475(2008) was in the exercise of a power and not in performance of a duty.
68. I expressed some doubts as to whether that agreed position between the parties is a correct interpretation of Article 7(2) but it is not for me to go any further than that. I am content to be circumscribed in my analysis of this case by the agreed position of the parties.
69. Once it is recognised that there is merely a power to list Melli UK and no obligation to do so, the argument then advanced is that nothing has been shown to establish that it is both necessary and proportionate to list the subsidiary Melli UK. The assets of Melli Iran are frozen. It may not lawfully deal with its wholly-owned subsidiary, and its wholly-owned subsidiary Melli UK may not lawfully deal with its parent.
70. In those circumstances, it is argued, the mere fact that it is a subsidiary affords no justification for preventing Melli UK from dealing with third parties not proscribed, or engaging with them in a way which cannot directly or even indirectly support or finance Iran's nuclear activities as financed and advanced by its parent.
71. The subsidiary cannot declare any dividend nor, in favour of its parent, place any funds at the disposal of Melli Iran. Thus, it is argued, there is nothing that Melli UK can do which can add to the funds available to Iran to support its offensive nuclear activities.
72. All of that is true but I decline nevertheless to accept that there are serious grounds for doubting the validity of the Council Decision 475, even absent any opportunity for the Council to justify its decision. The purpose of the sanctions against both Melli Iran and Melli UK are plain and set out in the recitals to Council Regulation 423 which itself is not impugned. It is designed to augment the purpose of the United Nations sanctions, namely to persuade Iran to end what is perceived to be the proliferation of offensive nuclear activity and comply with the requirements of the monitoring regime of the IAEA.
73. Freezing the assets of a subsidiary and preventing that wholly-owned subsidiary from trading may be regarded as a powerful additional lever by which to persuade Iran to comply with the United Nations Security Council Resolution. Conversely, to sanction the parent whilst leaving the subsidiary in the United Kingdom free to trade, even though not with proscribed persons and without the opportunity to act for the financial benefit of the parent, might be seen as undermining the force and credibility of the sanctions imposed on the parent.
74. I should emphasise that this court has no need to reach any concluded view, but I am far from satisfied that it is plain that there is any realistic possibility of persuading the Court of First Instance that the Council Decision is invalid, let alone in persuading it that Melli UK has a strong case for the reasons I have expressed.
75. The very fact that Melli UK is the subsidiary of the parent provides the foundation in the exercise of its power, not duty, for the Council to provide sanctions against that wholly-owned subsidiary.
76. Moreover, even if the argument was sufficiently strong as to validity to justify interim relief, that would become apparent to the President in two days' time, at which time he would, if not earlier, have the power to act.
77. This conclusion is sufficient to dispose of both the permission application and the application for interim relief since, if interim relief is not to be granted, pending the decision of the Court of First Instance as to interim measures, there is no point in granting permission. But my grounds of refusal should not be confined to my views as to the validity of the substantive challenge. The sanction must be uniformly applied throughout the European Union, consistent with the third recital of Council Regulation 423.
78. If interim relief were granted, then it would be granted in circumstances where there remains a prohibition on anyone else throughout the European Union, apart from those within England and Wales, from dealing with Melli UK. True, that is inevitable if the power of a domestic court to grant interim relief is successfully invoked. It is inevitable that that relief will have effect only within the jurisdiction of a domestic court granting such relief. But such piecemeal removal of a sanction is inimical to the purpose for which it is imposed. Uniformity is essential to the effectiveness of economic sanctions.
79. Further, it is particularly inappropriate to grant so geographically confined a relief in circumstances where soon the Court of First Instance will have the opportunity to consider such relief, which will have uniform effect.
80. The claimant must also show serious and irreparable damage (see paragraph 33(2) of the decision in Zucker), and that the relief is urgent. Mr Zand on behalf of Melli UK has shown the serious financial and reputational damage caused as a consequence of Council Decision of 475. But such financial damage has to be considered in the context of the short period between the imposition of the sanction through the United Kingdom regulatory measures and consideration by the Court of First Instance of whether interim relief should be granted.
81. Furthermore, the damage to the reputation has to be considered in the context of the naming of the subsidiary's parent throughout the European Union and the subsidiary itself, both of which have been named by the United States in 2007. It is doubtful as to the extent to which Melli UK's reputation can be restored or alleviated by the action of the court of merely one member state. For these reasons, in my judgment, no case has been made out either for permission or interim relief.
82. On the contrary, I accept the clipped dismissal of Mr Swift on behalf of the Treasury that Melli UK has taken the wrong point in the wrong court with the wrong defendant. The complaint should be addressed to those who have jurisdiction to declare the Council Decision invalid, namely the Court of First Instance, who itself has the power to consider shortly the invalidity of the decision and whether the consequences are so severe that interim relief, which will have effect throughout the European Union, should be granted.
83. But in my view, for these reasons, neither permission nor such relief shall be granted by this court.
84. MR JUSTICE SULLIVAN: I agree. It is common ground that the Court of First Instance is the only court which has jurisdiction to determine the substantive issue, whether the Council Decision 475(2008) to add the claimant to the list of persons, entities and bodies in annex 5 to Council Regulation 423(2007) was lawful. All other things being equal, the court which is responsible for determining the substantive issue is likely to be the court that is best placed to decide whether or not some form of interim relief should be granted pending its final determination of that issue.
85. In addition to applying for its substantive challenge to be dealt with under the Court of First Instance's expedited procedure, the claimant applied to the Court of First Instance for interim measures. These applications are currently being considered by the Court of First Instance. The arguments in support of the claimant's application for interim measures to the Court of First Instance are precisely the same as the submissions that were advanced on its behalf in this court.
86. In deciding whether to grant interim relief, this court must apply the same four tests that will be applied by the Court of First Instance in deciding whether to grant the claimant's application for interim measures. The Court of First Instance has ordered the Council to lodge its observations on the claimant's requests for interim measures and for an expedited procedure in respect of its substantive challenge by Friday 11th and Monday 14 July respectively.
87. The Council is the true defendant in these proceedings. It is the lawfulness of its decision which is under challenge. However, the Council is not a party to the proceedings in this court. We do not know what answer the Council will give to the claimant's contention that serious doubts exist as to the validity of its decision.
88. In these circumstances, it would not be appropriate in my judgment for this court to decide whether serious doubts exist as to the lawfulness of the Council Decision upon the basis of information which is manifestly and seriously incomplete. I accept that in a very urgent case the court may need to consider the grant of interim relief on the basis of incomplete information and without having heard from the defendant.
89. However, the need for expeditious consideration of this matter has been recognised by the Court of First Instance. It has required the Council's responses to the claimant's applications for an expedited procedure and for interim measures within a very short timescale. If the Council's responses to the claimant's applications are inadequate and that inadequacy provides support for the claimant's contention that serious doubts do exist as to the validity of the Council Decision, then the Court of First Instance will be well able to take that factor into account in deciding whether, and if so when, interim relief should be granted.
90. The question for this court is not whether the claimant would suffer irreparable harm if no interim relief was granted pending the Court of First Instance's decision on the substantive issue, but whether the claimant would suffer such harm if this court does not grant interim relief pending the Court of First Instance's decision as to whether or not such relief should be granted.
91. The impact of the Council Decision on the claimant is undoubtedly very severe and I have no doubt that even if the defendant grants licences which enable the claimant to fulfil its existing business commitments, the claimant will suffer significant financial harm. However, I am not persuaded that requiring the claimant to wait for the decision of the Court of First Instance on interim measures will cause it to suffer irreparable harm.
92. Finally, in deciding whether interim relief should be granted, it is necessary to take account of the interests of the Community at large and in particular, the impact of granting interim relief on the effectiveness of the Community measure that is under challenge. In my judgment, the Court of First Instance is far better placed to weigh that factor in the balance than this court.
93. For these reasons, I would refuse interim relief as a matter of discretion and would therefore refuse to grant permission to apply for judicial review since, in the unusual circumstances of this case, that application is entirely parasitic upon the application for interim relief.