Judgment_paragraph 43 · Sina Bank v Council of the European Union (T-15/11)

43Concerning, first, the plea of illegality of Annex II to Decision 2010/413, as resulting from Decision 2010/644, in so far as the latter concerns the applicant, it should be stated that, by the latter, the applicant raises, in substance, the inapplicability of the maintenance of its inclusion on the list in Annex II to Decision 2010/413, as resulting from Decision 2010/644. According to consistent case-law, Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge, for the purpose of obtaining the annulment of a decision of direct and individual concern to that party, the validity of previous acts of the institutions which form the legal basis of the decision which is being attacked, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void (Case 92/78 Simmenthal v Commission [1979] ECR 777, paragraph 39). It may, further, be inferred from the case-law that the remedy of the plea of illegality is open only in the absence of any other available remedy (see, to that effect, Case C-188/92 TWD Textilwerke Deggendorf [1994] ECR I-833, paragraph 17; Case C-239/99 Nachi Europe [2001] ECR I-1197, paragraph 37; Case C-441/05 Roquette Frères [2007] ECR I-1993, paragraph 40; Case T-120/99 Kik v OHIM (Kik) [2001] ECR II-2235, paragraph 26). In this case, under the second paragraph of Article 275 TFEU, the applicant has the right to bring a direct action for annulment of the measure against which it claims to raise an objection of illegality. It follows that it cannot admissibly plead the illegality of that measure.